State gold Mining Corporation v. Pieterson and others (GLR 428–433) [1998] GHACA 1 (04 February 1998);
STATE GOLD MINING CORPORATION v. PIETERSON AND OTHERS [1987–88] 1 GLR 428–433
COURT OF APPEAL, ACCRA
4 FEBRUARY 1988
AMUA-SEKYI J.S.C., AMPIAH AND ESSIEM JJ.A.
Land law and conveyancing—Concessions—Transfer of interest—Claim by children of deceased (P) to have inherited father's interest in three concessions—Documentary evidence showing P never holding lease to two concessions and did assign interest in the other in his lifetime—Whether P can pass property in any of the three concessions to his children.
Land law and conveyancing—Concessions—Validation—Effect—Ordinance No. 14 of 1900 providing for registration and validation of grants—Section 26 providing certificate of validity conclusive proof of ownership—Certificate of same effect as judgment—Whether plaintiffs can challenge defendants' certificate 43 years after issue—Whether trial judge empowered to set certificates aside—Concessions Ordinance, 1900 (No. 14 of 1900), s. 26.
Acquisition of land—Compulsory acquisition—Compensation—Injurious affection of adjoining land—Right to compensation for injurious affection statutory—Defendants acquiring concessions under N.L.C.D. 204—N.L.C.D. 204 not a statute for compulsory acquisition of land or compensation for injurious affection—Meaning of word "encumbrance" in section 3 of N.L.C.D. 204—Whether plaintiffs entitled to compensation—State Gold Mining Corporation (Acquisition of Assets) Decree, 1967 (N.L.C.D. 204), s. 3.
[p.429]
HEADNOTES
P died in 1927. In 1970 his children, the plaintiffs, issued a writ at the High Court, Sekondi against the defendant-corporation claiming damages for trespass they alleged had been committed by the corporation in respect of three mining concessions, i.e. P.A., P.D.L. and H.P.D.L., belonging to their deceased father. The trial judge entered judgment in favour of the plaintiffs. His decision was reversed on appeal and a retrial was ordered. At the retrial before Anterkyi J. the plaintiffs amended their claim to one for compensation for injurious affection of their rights in the concessions. The defendants admitted that one of the concessions had belonged to P but they asserted that he had assigned it in 1899 and in support they tendered in evidence Renner's report on the evidence which P had given in favour of the assignees during an inquiry in respect of those concessions. They however denied that P had ever held the other concessions. They also tendered the certificates of validity issued in 1903, 1906 and 1907 in respect of the concessions and which showed that P was not their owner. The trial judge declared the assignment illegal and that the certificate of validity should have been issued in favour of P. He discredited Renner's report on the concession inquiry, and ignored the fact that P had been paid £3,400 sterling in cash and in shares for the assignment. Anterkyi J. therefore gave judgment in favour of the plaintiffs. On appeal to the Court of Appeal against that decision,
Held, allowing the appeal:
(1) the documentary evidence put beyond dispute the fact that P was never the holder of Pieterson's Deep Levels or Hunt's Pieterson's Deep Levels and established that although he was once the lessee of Pieterson's Abontiakon he assigned his interest to the Ashanti Gold Coast Acquisitions Ltd. In those circumstances P had no property in any of the concessions which he could pass to his children.
(2) The Concessions Ordinance, 1900 (No. 14 of 1900) had been enacted to control and regulate the concessions fever which had then gripped the country. It provided for the registration of concessions and gave power, jurisdiction and authority to the court to inquire into and certify any concession as valid or invalid. Section 26 of the Ordinance provided that a "certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto." Those clear and unambiguous words had the effect of placing the certificate on the same level as a judgment obtained in contentious proceedings. The plaintiffs could not therefore challenge the certificates of validity on the concessions and the trial judge lacked jurisdiction to set them aside. Wassaw Exploring Syndicate Ltd. v. African Rubber Co. Ltd. [1914] A.C. 626, P.C. and Tamakloe v. The Basel Trading Co. Ltd. (1940) 6 W.A.C.A. 231 cited.
(3) The right to compensation for the compulsory acquisition of land or for the injurious affection of adjoining land was statutory. The State Gold Mining Corporation (Acquisition of Assets) Decree, 1967 (N.L.C.D. 204) under which the defendants acquired title to the three concessions was not a statute for the compulsory acquisition of any land or for the payment of compensation for any such acquisition or the injurious affection of adjoining land. The word "encumbrance" appearing in section 3 of N.L.C.D. 204 was not synonymous with damages or compensation or a reference to a claim thereto but meant a claim, lien or liability attached to property. The plaintiffs were therefore not entitled to any compensation. Dictum of Lord Guest in Lababedi v. Chairman, Lagos Executive Development Board [1962] 3 W.L.R. 740, P.C. cited.
[p.430]
CASES REFERRED TO
(1) Concession Enquiry No. 446 (Axim) and No. 800 (Cape Coast) (1908) 1 Ren. 261.
(2) Wassaw Exploring Syndicate Ltd. v. African Rubber Co., Ltd. [1914] A.C. 626, P.C.
(3) Tamakloe v. The Basel Trading Co. Ltd. (1940) 6 W.A.C.A. 231.
(4) Lababedi v. Lagos Executive Development Board (Chairman) [1962] A.C. 800; [1962] 3 W.L.R. 740, P.C.
NATURE OF PROCEEDINGS
APPEAL from the decision of the High Court in an action for trespass to land. The facts are sufficiently set out in the judgment.
COUNSEL
Kwame Tetteh for the appellants.
Archampong for the respondents.
JUDGMENT OF AMUA-SEKYI J.S.C.
The late William Edmund Pieterson, a native of Awukugua in Akuapem, but for many years a resident of Cape Coast, died in 1927. In 1970, that is some 43 years later, his children Edmund, Ernestina and Ernest issued a writ at the High Court, Sekondi against the defendant-corporation claiming damages for trespass alleged to have been committed by the corporation in respect of three mining concessions they said belonged to their late father. The case came before Charles Crabbe J. (as he then was) who, after hearing preliminary arguments, entered judgment in favour of the plaintiffs. His decision was, however, reversed on appeal and a retrial ordered before the High Court, Accra. Anterkyi J. took evidence and gave a judgment on the merits in favour of the plaintiffs. The present appeal is from that judgment.
The concessions are Hunt's Pieterson's Deep Levels, Pieterson's Deep Levels and Pieterson's Abontiakon, all in the Tarkwa area. The defendants admitted that Pieterson was the holder of Pieterson's Abontiakon, but averred that he assigned the concession to a mining company in or about June 1899 As to Hunt's Pieterson's Deep Levels and Pieterson's Deep Levels, the defendants denied that Pieterson ever held them. They said that the former was leased to Frederick Giles Hunt on 3 October 1902 and the latter, to Douglas John Neame on 10 January 1901. According to them certificates of validity No. 173 and 172 were issued for the two concessions.
The defendants relied heavily on the report of Concession Enquiry No. 446 (Axim) and No. 800 (Cape Coast) (1903) 1 Ren. 261 decided by the Full Court in 1903. The case was an appeal from the judgment of Fennington J. granting a certificate of validity to the claimants in Concession Enquiry No. 446 (Axim), Pieterson's Deep Levels. The [p.431] appellants were the opposers and claimants in Concession Enquiry No. 800 (Cape Coast), Pieterson's Abontiakon. The judgment begins at 271. It is recorded that Pieterson took two leases dated 10 January 1890 and 8 January 1897 and that in 1898 one Gwira, a civil and mining engineer, went to England on behalf of Pieterson and entered into negotiations with the Ashanti Gold Coast Abontuyakun Co. Ltd. with regard to Pieterson's leases and that in June 1899 Pieterson assigned the leases to the company. The report shows, and the judgment confirms, that Pieterson gave evidence for his assignees and an account was given of how No. 446 (Axim) owned by Neame was named by his agent, one Swift, as Pieterson’s Deep Levels to distinguish it from the reef mine which constituted No. 800 and which had been named after Pieterson.
In the course of the trial before Anterkyi J. the certificates of validity of the three concessions were tendered in evidence. Exhibit B, which relates to Pieterson's Abontiakon, describes the Ashanti Gold Coast Acquisitions Ltd. as "present holders" of the concession, thus confirming that as at the date of issue of the certificate, that is 16 September 1907, Pieterson was not the holder. The certificate was published in the Gold Coast Gazette No. 68 of 12 October 1907. Exhibit 2 shows that Hunt's Pieterson's Deep Levels was originally leased to Hunt and that as at the date of the certificate, that is 28 September 1906, the persons entitled to the benefit of the concession and of the certificate of validity were the Fanti Mines Ltd. Exhibit G is the certificate of validity issued on 5 August 1903 by Pennington J. in favour of Neame as holder of Pieterson's Deep Levels.
The documentary evidence puts beyond dispute the fact that Pieterson was never the holder of Pieterson's Deep Levels or Hunt's Pieterson's Deep Levels, and establishes that although he was once the lessee of Pieterson's Abontiakon he assigned his interest to the Ashanti Gold Coast Acquisitions Ltd. In those circumstances, Pieterson had no property in any of the concessions which he could pass to his children.
In the court below, Anterkyi J. came to a different conclusion. He declared the assignment illegal and said that the certificate ought to have been issued in favour of Pieterson. He looked with disfavour on Renner's reporting of the concession enquiry at which Pieterson had given evidence for his assignees and he ignored the important fact that Pieterson was paid £3,400 sterling in cash and shares for the assignment.
The Concessions Ordinance, 1900 (No. 14 of 1900) was enacted to control and regulate what the Full Court calls the "concession fever" which had gripped the then Gold Coast. It provided for the filling with the registrar of the Divisional Court of the province within which the [p.432] land is situate of a notice by the person claiming to be entitled to the benefit of the concession and gave power, jurisdiction and authority to the court to inquire into and certify any concession as valid or invalid. Section 26 of the Ordinance provided as follows: “A certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto."
These clear and unambiguous words have the effect of placing the certificate on the same level as a judgment obtained in contentious proceedings. This is what I make of the decision of the Privy Council in Wassaw Exploring Syndicate Ltd. v. African Rubber Co. Ltd. [1914] A.C. 626, P.C. The facts were that the appellant obtained a concession in 1909 and a certificate of validity under the Concessions Ordinance in 1910. The territory covered by the concession included part of a concession obtained by the respondent in 1906. When in 1912 the respondents applied for a certificate of validity they were opposed by the appellants. The Divisional Court disallowed the opposition and this judgment was affirmed by the Full Court. On appeal to the Privy Council it was held that the appellants were entitled to remain parties to the application until the terms of a certificate with such modifications or conditions as would preserve their rights had been settled by the court under section 13 and 16 of the Ordinance. It is worthy of note that relying on this provision the West African Court of Appeal in Tamakloe v. The Basel Trading Co. Ltd. (1940) 6. W.A.C.A. 231 rejected an attempt to recover as rents a larger sum than that stated in the certificate. I am of the opinion that the plaintiffs cannot now challenge any of the terms of exhibit B nor can Anterkyi J. lawfully set it aside. The defendant-corporation derive their title to the three concessions from the State Gold Mining Corporation (Acquisition of Assets) Decree, 1967 (N.L.C.D. 204). This Decree gave statutory effect to agreements entered into by the corporation with the subsidiary companies which as at 31 December 1965 were holders of various mining concessions. It was common ground between the parties that the agreements and the Decree operated to vest in the corporation the three concessions alleged by the plaintiffs to have been held by Pieterson. When the suit was tried before Charles Crabbe J. (as he then was) the writ sought damages for trespass. On the retrial before Anterkyi J. the claim was amended to one for compensation for injurious affection of their rights in the said concessions. Without admitting that the plaintiffs were entitled to compensation, Mr. Tetteh argued that none was payable to them for injurious affection of their rights, and he drew attention to the case of Labadedi v. Chairman, Lagos Executive Development Board [1962] 3 W.L.R. 740, P.C. where compensation was claimed under the Lagos Town Planning Ordinance (Cap. 103). Section 38 (1) of the [p.433] Ordinance had provided for the payment of compensation to persons whose property was injuriously affected by the making of a planning scheme, and section 42 (1) (4), for the payment of compensation for the compulsory acquisition of land pursuant to the approval of a planning scheme. Dealing with the question whether the appellants who where lessees of property in Lagos which was to be compulsorily acquired as falling within the area of the Lagos Central Planning Scheme, 1951, made by the respondent board, were entitled to compensation under section 38 or section 42, Lord Guest, who read the judgment of the judicial committee of the Privy Council, said at 745.
“‘Injurious affection’ is a well-known term in English law and is in fact the very word used in the English Town Planning Act, 1925, s. 10, a section which is in very similar terms to section 38 (1) of the Ordinance and was probably the origin of section 38 (1). In English Law the term ‘injurious affection’ does not cover the acquisition of land or leaseholds and is a term which is certainly not apt for such a purpose.”
Mr. Tetteh submitted that injurious affection applies to cases where the effect of a scheme is to diminish the value of property which has not been compulsorily acquired. Thus, even if the leases were held by Pieterson the plaintiffs could not be said to have been injuriously affected by their acquisition.
The right to compensation for the compulsory acquisition of land or for the injurious affection of adjoining land is statutory. Examples may be found in the Public Lands Ordinance. Cap. 134 (1951 Rev.), ss. 3 and 9 and the State Lands Act, 1962 (Act 125), ss. 1 and 4. N.L.C.D. 204 is not a statute for the compulsory acquisition of any land or for the payment of compensation for any such acquisition or the injurious affection of adjoining land. The word "encumbrance" appearing in section 3 of the Decree is not synonymous with damages or compensation, or a reference to a claim thereto but, as defined in Wharton's Law Lexicon, means "a claim, lien, or liability attached to property."
In the light of the foregoing, I am of the opinion that Anterkyi J. erred both on the facts and on the law in entering judgment for the plaintiffs and that this appeal ought to be allowed.
JUDGMENT OF AMPIAH J.A.
I agree.
JUDGMENT OF ESSIEM J.A.
I also agree.
DECISION
Appeal allowed.
M.C.N.-N.
ACQUISITION OF LAND - Compulsory acquisition - Compensation
