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VIESA AND OTHERS
V.
B. C. K. ASINOR OF KADJEBI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
W.A.C.A. NO. 5/53
2PLR/1952/85 (WACA)
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OTHER CITATION(S)
2PLR/1952/85 (WACA)
(1954) XIV WACA PP. 419-420
LEX (1954) – XIV WACA 419-420
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
1. VIESA
2. ABOTSI WIGA
3. KWAKU
4. KWAKU BAKPA
ALL OF TEVIE NOW RESIDENT AT KADJEBI
5. OPANYIN SEKYERE – Appellants
AND
B. C. K. ASINOR OF KADJEBI – Respondent
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REPRESENTATION
Appeal by the defendants
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REPRESENTATION
No appearance by or for Respondent.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Native Lands— Acquisition by non-native without precious consent required by law – How treated
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CASE SUMMARY
The Administration (Togoland under British Mandate) Ordinance (Cap. 96), section 3 (3a).
The Administration (Togoland under British Mandate) (Amendment) Ordinance, No. 15 of 1940, section 3A (2).
Section 3 (3a) of the Administration (Togoland under British Mandate) Ordinance (Cap. 96), reads:-
(3) (a) In the case of any laws relating to the transfer of land which are in force in any part of Togoland under British Mandate under the terms of Article V or Article VI of the Togoland under British Mandate Order in Council, 1923, the provisions of any such law shall be construed together with and subject to the provisions of paragraph 2 of Article V of the British Mandate for Togoland; which paragraph is in the following terms:-
“No native land may be transferred, except between natives, without the previous consent of the public authorities, and no real rights over native land in favour of non-natives may be created except with the same consent.”
Section 3A (2) of the Administration (Togoland under British Mandate) (Amendment) Ordinance, No. 15 of 1940, reads:-
“3A (1) In the interpretation of this section, ‘Native’ means a person who belongs to a tribe indigenous to Togoland under British Mandate. ‘Native of the Southern Section and Native of the Northern Section’ respectively mean a person who belongs to a tribe indigenous to the Southern Section or the Northern Section, as the case may be.
“Provided that where a section of a tribe which is indigenous to Togoland under British Mandate, or to the Southern Section or to the Northern Section, as the case may be, does not belong to Togoland under British Mandate, or to the Southern Section, or to the Northern Section, as the case may be, a member of such section of the tribe shall not be a native within the meaning of this definition.”
The respondent had sold lands to the appellants and given them possession; but as the appellants, who were “non-natives”, had not obtained the previous consent of the authorities required by law, they acquired no title or interest.
When sued by the respondent for the land, they lost, and they appealed, arguing that he was in pari delicto and that they ought in equity to be confirmed in their possession against him.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. The position is that the contract of sale is prohibited by law for want of the necessary consent. That being so it is an illegal contract. Their contract of purchase being illegal and void by statute, there was no contract on which to found a right of possession.
2. The appellants cannot insist upon a right of possession of the land by virtue of their occupation. That would be a right correlative and co-extensive with the right to enforce the very contract of sale which is declared void by statute.
3. To found a right of possession, there must be a legal contract and here there was no contract at all because the conditions for its validity were disregarded.
4. Equity cannot assist the appellants. They may have some other remedy or remedies arising from failure of their agreement, but as to that, issues different from those now before the Court would arise.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
At the hearing of this appeal it was conceded by counsel for the defendants-appellants who admittedly are non-natives, i.e. not natives of Togoland under British Mandate or natives of the Southern section of Togoland, that as neither the previous consent of the public authorities nor of the Governor had been obtained under section 3, sub-section 3(a) of Cap. 96 or section 3A(2) of Ordinance No. 15 of 1940 which repealed sub-section 3 of Cap. 96, the defendants-appellants did not acquire any title to or interest in the land in dispute by virtue of the transaction of sale and purchase upon which the appellants relied.
They cannot dispute the correctness of the judgment of the Land Court from which this appeal is brought, but they pray this Court to hold that as the plaintiff-respondent’s predecessor was in pari delicto with the second defendant-appellant in not observing the provisions of the Ordinance, and as the appellants have been suffered for many years to occupy and improve the land in question as if they were owners, on equitable grounds they should be confirmed in their possession and occupation of the land as against the plaintiff-respondent.
As the law operates in this case, the defendants-appellants are undoubtedly the sufferers. Probably they were ignorant of the Ordinance and therefore they did not see to it that the requisite prior consent to the sale was obtained. They excite, therefore, considerable sympathy in that, after some twenty-five years of occupation, they are declared to have no interest in the land.
But the position is that the contract of sale is prohibited by law for want of the necessary consent. That being so it is an illegal contract. How then can the appellants insist upon a right of possession of the land by virtue of their occupation? That would be a right correlative and co-extensive with the right to enforce the very contract of sale which is declared void by statute. In other words to found a right of possession there must be a legal contract and here there was no contract at all because the conditions for its validity were disregarded. Equity cannot assist the appellants. They may have some other remedy or remedies arising from failure of their agreement, but as to that, issues different from those now before the Court would arise, and they will no doubt seek advice. The Court intimated that the appeal would be dismissed for these reasons but that there would be no order as to costs in this Court, the plaintiff-respondent not having appeared.
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FOSTER-SUTTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
Appeal dismissed.
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