GHANA CONSOLIDATED DIAMONDS LTD v. BOAHENE AND ANOTHER [1987-88] 1 GLR 87.

GHANA CONSOLIDATED DIAMONDS LTD v. BOAHENE AND ANOTHER [1987-88] 1 GLR 87.

JUDGMENT OF AMPIAH J.A.

STATUTORY REF.

Ref: Administration of Lands Act, 1962, S.8

A grant of digging license was voided by a lack of compliance with section 8 of the Lands Administration Act, 1962, (Act 123)

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The plaintiff-respondent (hereinafter referred to simply as the plaintiff) sued the defendant-appellants-company (also referred to hereinafter simply as the defendant-company) for:

“(a)      . . . recovery of possession of all that piece or parcel of land situate and being at Akwatia (Yawaso fetish lands) and bounded on the north by S K Awuah’s concession and on the south-west and west by Akwatia stool lands or otherwise described as all that piece or parcel of land containing an approximate area of 23 acres situate at Akwatia and lying to the south of Aman Pumping Station and to the West Akim Abuakwa District of the Eastern Region of the Republic excluding the fetish, all residential buildings and sheds in the area which piece or parcel of land the defendants have taken possession of without lawful excuse.

  • ¢200,000 damages for trespass.
  • Perpetual injunction against the defendants, their servants or agents.

On 10 March 1978 the plaintiff’s grantor was joined in the action as the co-plaintiff. Both filed a joint statement of claim which amended the original writ of summons by claiming an additional relief, namely a declaration of title to the disputed land and also for increased damages of ¢500,000.

By its amended statement of defence, the defendant-company counterclaimed for:

“(i) A declaration that the defendants have a valid concession in respect of the disputed                land.

(ii) A perpetual injunction restraining the plaintiff and/or the co-plaintiff, their respective servants and agents from entering upon the land in dispute and prospecting diamonds thereon or in any way interfering with their quiet enjoyment of the defendants’ concession.”

The parties joined issues on their pleadings and the case proceeded to trial with a view to determining the issues involved, as agreed upon. On 23 September 1980 judgment was given for the plaintiff against the

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defendant-company for recovery of possession of the land in dispute. The court made an order of perpetual injunction against the defendant-company and awarded the plaintiff general damages of ¢500,000. The court also declared title in the land in the co-plaintiff and awarded a total of ¢ 10,000 costs against the defendant-company. It is against this judgment that the defendant-company has appealed.

Many grounds of appeal were filed and argued in this appeal. It appears to me however that the most crucial is the one which alleges that:

“the learned trial Judge erred in law in holding that the certificate of validity (exhibit 2) specifically, expressly or in any other way excluded the fetish land within the area granted the defendants under the lease (exhibit 1) from the concession. The limitation, modification or condition imposed on the defendants with respect to the fetish land by the certificate of validity did not, and could not in law, divest them of the title of lessee to the fetish land lying within the area granted them by the lease.”

This ground too was argued together with grounds (2), (3), (4), (5), (6), and (7).

It is the contention of counsel for the defendant-company that the trial judge erred in law in coming to that conclusion. One of the issues which arose for determination on the pleadings was, “whether the ‘Ayawa fetish land’ was excluded from the concession of the defendant-company or whether only limitations were placed on the defendant-company as to the use of the fetish land.

That the defendant-company has a concession over a portion of the Akwatia stool lands is really not in dispute. There was overwhelming evidence to establish that sometime in 1922 or thereabout, the Government of Ghana (then Gold Coast) granted a mining concession of an area of 3.87 square miles of the Akwatia stool lands to the defendant-company. This is contained in the certificate of validity No 387 which was tendered in evidence as exhibit 2. The land for the concession was leased to the defendant-company and this is evidenced by exhibit 1. There can be no doubt that the land referred to as the “Ayawa fetish land”, “fetish grove” or “fetish lands” or simply as “fetish” is within the said concession of the defendant-company. At page 2 of the certificate of validity (exhibit 2) it is stated in no uncertain words that: “The fetish lands mentioned in the evidence in this inquiry shall in no way be interfered with by mining or other operations of the holder for the time being of the concession.” (The emphasis is mine.) All the various plans tendered in evidence in this case showed that the so-called fetish lands were within the concession evidenced by the certificate of validity No 387. The co-plaintiff himself

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admitted in his evidence that “These Ayawaso fetish land and others were excluded from the concession  . . . these were all in the concession which was granted to CAST.” The holder of that concession admittedly is the defendant-company.

It became necessary to define the extent of these so-called fetish lands because by section 13 (8) and (9) of the Concessions Ordinance, Cap 136 (1951 Rev)-the applicable law at the time-certain limitations, modifications and conditions were to be placed on the holder of the concession in so far as the use of the land was concerned. Section 13 (8) and (9) of Cap 136 provides:

“13. No concession shall be certified as valid— . . .

  • if it grants or purports to grant rights to remove natives from their habitations within the area of such concession;
  • unless the Court is satisfied that the customary rights of natives are reasonably protected in respect of fetish lands”.

It was in pursuance of this provision that an inquiry was called for. Unfortunately the area referred to as the fetish land although it was contained in exhibit 2, was never clearly described. All that the document, exhibit 2, said was that, “the fetish land mentioned in evidence in this inquiry shall in no way be interfered with . . .” A lot of controversy has generated from the failure to describe with certainty the so-called “fetish lands” in the defendant-company’s concession. The plaintiff’s own grant is said to have been given within the fetish lands area. So also, the grant made to S K Awuah. The evidence of the co-plaintiff, the common grantor of the parties, is:

“The name usually given to this land in dispute is Ayawa fetish land. This land is called Ayawa fetish land because we have a fetish grove there and the name of the fetish is Ayawaso but the Europeans called it Ayawa. I have in my hand exhibit B which is a plan showing the Ayawaso fetish land. The plan exhibit B was made by the Lands Department. The Ayawaso fetish land covers a vast area and originally I granted a portion of it to one Kwame Awuah for prospecting and mining of diamond.”

Yet in the grant to the plaintiff, the fetish was excluded—see exhibit A and the endorsement on the writ  of summons. It is obvious that the plan, exhibit B, was made without reference to exhibit 2 which did not describe the area with certainty. It was false to have stated in exhibits C and G that the lands which were within the concession held by the plaintiff and S K Awuah were not within the concession held by the defendant-company. The authors of the letters were themselves uncertain about the so-called fetish lands. Consequently, they made the

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plans under a misapprehension as to the extent of the fetish lands which they concluded were outside the concession of the defendant-company. No wonder the licences were withdrawn subsequently.

The concession inquiry itself did not make the position clearer. The proceedings of the inquiry culminating in making the limitation, modification and conditional orders were tendered in evidence as exhibit 7. I must admit that it is very difficult to decipher the writings but fortunately there was an expert who testified as to the writings in some parts of the proceedings. He was one Caspard Kwaku Brempong, a document examiner of the Police Forensic Laboratory, CID Headquarters, Accra. He testified as the second defendant witness and tendered in evidence exhibits 6, 7, and 8. In the said proceedings, the evidence which the defendant-company considered relevant to the fetish lands, came from one Quamina Kuma, a native of Akwatia. It appears this witness had been recalled to give evidence. His evidence as deciphered by the second defendant witness was:

“By consent of both parties Quamina Kuma, native of Akwatia is recalled by the court and gives the following evidence:

Q: Is there any fetish land included in the areas of the three concessions which have been granted?

A: There is a fetish land in the land granted in the first concession. It is called (Yawa). It is near a stream called Abena Sasu. It is a large brass pan and is left full of water as the ground on which it stands is sacred.

Q: Is there any other fetish land included in the concession?

A: There is no fetish on any of the other concessions but there may be burial grounds.The burial grounds are used for the burial of all the inhabitants of Akwatia.

This was the only evidence which gave some description of the so-called fetish land which was referred to in the concession. It had been contended by counsel for the plaintiff and co-plaintiff that since  Quamina Kuma gave this evidence when he was recalled, it could not be said that his evidence as to the description of the fetish land was all he had said and that it was for the defendant-company to have satisfied the court on that issue of description of the fetish land. The trial judge seemed to have agreed with this submission. After careful consideration of the submission by counsel for the defendant-company the judge had held that:

“since it was the defendants who sought to rely on the evidence adduced before the concession inquiry, the onus was on them to satisfy the court as to which evidence on the whole was led by the Akwatia stool in respect of the fetish lands.”

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With due deference to the learned trial judge, I do not seem to share the same view with him. From the nature of Quamina Kuma’s evidence, it seemed that he had been purposely recalled to describe to the court, the “fetish lands.” If any other description had been given to the court of the fetish land, I do not think it would have been necessary to recall this witness. I think when it became necessary after the hearing of the other witnesses that a limitation should be placed on the fetish land in the concession as required under section 13 (9) of Cap 136, the court found it prudent and necessary to recall this witness to enable it to know precisely the area for the purpose of its restrictive orders. If the plaintiffs knew of any other description given in the inquiry, they also have a duty to adduce evidence of that. After all, they, particularly the co-plaintiff, were natives of Akwatia. In the absence of any other evidence, I think the evidence offered by the defendant as evidence of the description of the fetish land in the inquiry was sufficient.

Be that as it may, as stated before, this description of the fetish land was not satisfactory to both parties and for years the controversy as to the extent of this area went on. There was evidence that the defendant-company worked on this fetish land without objection from the stool. There was also the evidence that the stool itself granted portions of the fetish land to other persons even though it excluded the fetish land from such grants.

In 1952 the matter came to a head. By an agreement made between Nana Ofori Atta II, Omanhene of the Akim Abuakwa paramount stool and his elders, Baffour Kofi Bempong II, Odikro of Akwatia (the predecessor of the co-plaintiff) and his elders and the defendant-company, an attempt was made to demarcate and define clearly this “fetish land” which had brought so much conflict between the stool of Akwatia and the defendant-company. It is significant to note that the Akwatia stool is under the Akim Abuakwa paramount stool and that even though the land the subject matter of the agreement was for the Akwatia stool, the paramount stool itself had to come in ostensibly to put finality to a dispute between a subject of the paramount stool and the defendant-company. A dispute which did not augur well for peaceful co-existence and progress in the whole paramountcy. The intention was unambiguous. The recital in the agreement states:

“Whereas questions have arisen between the parties hereto on the subject of fetish areas and burial grounds in the concession areas held by the company of the stool of Akwatia. And whereas correspondence have passed between the parties and plans have been submitted by the stool and the company concerning such fetish areas and burial grounds AND whereas in order to resolve such questions in the spirit of understanding and co-operation the

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parties have met together and have agreed to enter in to these presents . . .”

Thus, by this agreement the parties to the controversial fetish lands agreed finally to describe the areas the subject of the restrictive orders in the defendant-company’s concession.

This was agreed to by not only the predecessors of the co-plaintiff but also by his paramount stool and their elders. The co-plaintiff has not demonstrated why he should not be bound by the agreement and the judge did not appear to have resolved the issue whether or not the co-plaintiff is bound by it. Rather, the trial judge came to the conclusion that the agreement was a modification or variation of the concession limitations and as such, they were of no legal effect. In coming to this conclusion, the judge relied on the provisions of section 2 of the Concessions Act, 1962 (Act 124) which saved concessions made prior to that Act. Section 7 of Cap 136 which was operative at the time of the agreement (exhibit 3) provides: “No proceedings shall, without the leave of the Court, be taken to give effect to any concession unless such concession has been certified as valid by the Court.” Section 34 (1) and (2) of Cap 136 also states:

“34. (1) It shall be lawful for the Court,  subject  to  any  conditions  contained  in  an  Order  by  the Governor in Council made under section 22 (2) (b), by order with the consent of the grantor and the holder of a concession, in respect of which a certificate of validity has been issued; to vary, add to or otherwise modify the terms of such certificate of validity. The terms of any  such order shall be endorsed upon or attached to the certificate of validity by the Court. A copy of every such order shall be transmitted by the Registrar of the Court to the Commissioner of Lands who shall cause particulars thereof to be published in the Gazette.

  • Any application under this section shall be made by motion and the Court may in its discretion, permit an affidavit to be used for purposes of proving consent.”

To justify his conclusion that the agreement was a modification or variation the trial judge referred to that part of the agreement which seems to withdraw “ . . . all letters from the odikro of Akwatia to the company regarding fetish areas and mentioned in any of the company’s certificate of validity and regarding boundaries of fetish areas other than as stated in the said certificate of validity. . .”

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and to embark on the interpretation and distinction between “fetish land” and “fetish grove”. Since the judge came to the conclusion that these were variations and modifications, he held them legally unenforceable because there was no compliance with section 34 (1) and (2) of Cap 136.

To modify is “to make or become somewhat different in form, character or to revise by making less extreme”, and to vary is to “change or alter or introduce new or different form” - see Oxford English Dictionary. The evidence is that there had been misunderstanding between the stool and the defendant-company as to the precise area of the fetish lands referred to in the concession inquiry culminating in the certificate of validity (exhibit 2). The parties themselves were aware of the difficulty created by the “fetish lands.” Even though reference had been made in the inquiry to the “fetish”, “the fetish grounds” and “the burial grounds”, there was no certainty as to what area covered these. The parties were not really concerned with words such as “fetish ground” or “fetish grove” or “fetish lands” or “fetish”. They were certain that there was a fetish called “Ayawaso” or “Yawa” for short on the land. It was clear from the limitation imposed on the use of the land that the defendant was not to mine in any area containing either the fetish or the fetish ground or the fetish grove. But as the co-plaintiff himself said, this Ayawaso fetish land covered a very vast land.

It was not the intention of the parties to the concession and for that matter the judge granting the concession that an indefinite area should compose this fetish area. What the parties to the agreement had sought to do was to try as much as possible to define this fetish land as mentioned in the concession. Naturally in their attempt to settle this, various views had been expressed and various correspondence had gone on between them. These letters they realised did not help to identify the area. To enable a fair decision to be arrived at without any bias they in their wisdom had decided that these letters should be withdrawn. This, in my opinion, cannot be a variation or modification of the limitations, modifications and conditions imposed by the court regarding the fetish land. Also, it cannot be said that the areas recognised by the parties as fetish grove, and for that matter fetish lands, varied or modified the limitations imposed by the court. A close and critical study of the agreement would show that what the parties referred to as the “fetish grove” comprised not only the fetish itself but also an area of land. After all the fetish is said to be a brass pan and that cannot occupy an area of 71 square yards. The co-plaintiff cannot claim to be more knowledgeable than his predecessors and elders. It is not only the co-plaintiff who is worried about his fetish land, his predecessor and elders also were. So, it can be said with certainty that when they

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decided to bring the dispute to an end they knew exactly what they meant by the “fetish land.” The use of the word “grove” cannot alter the clear intention of the parties. I find that exhibit 3 was not a proceeding either to modify or vary the certificate of validity. It was therefore not necessary to comply with the provisions of section 34 of Cap. 136 for its effectiveness. Since it was an agreement between the co-plaintiff’s predecessor-in-office and his elders and the defendant-company, it was binding on the co-plaintiff as well as the defendant-company. It was therefore wrong for the judge to have held that it was legally unenforceable.

It is the contention of the counsel for the defendant-company that the trial judge erred in holding that the fetish area was excluded from the concession. As stated before in this judgment, the fetish land could not be said to have been excluded from the concession area. The limitations, modifications and conditions imposed by the court in accordance with the provisions of section 13 (9) of Cap 136 are contained in exhibit 2. They are: “The fetish land mentioned in the evidence in this inquiry shall in no way be interfered with by mining or other operations of the holder for the time being of the concession.” (The emphasis is mine.) It cannot be said by any stretch of imagination that by this provision in exhibit 2, the fetish land area has been excluded from the concession.

As I understand, by this provision, the fetish land remained part of the concession except that the defendant-company could not mine or carry on any other operations pertaining to mining in that area. This I interpret as a limitation to the user of the land and not that the land was taken out of the concession. After all, exhibit 1, the lease that gave the land to the defendant-company, referred to all the land including the fetish land.

It has been contended by counsel for the plaintiff and co-plaintiff that the defendant-company’s own witness admitted that the fetish land was excluded from the concession. On the clear face of the evidence before the court, I do not think anyone would interpret the word “excluded” to mean “taken out” of the concession. The concession shows clearly that that area is part of the concession. What “excluded” here can only mean is that the defendant-company has been restricted from using this area for mining purposes. The evidence of the defendant’s representative alone, even if it is accepted, is not sufficient to displace the legal and factual situation that the land is within the concession.

The intention of the legislature in restricting the use of the land is to preserve the area for its original and natural use by the natives as a fetish or residential area. As long as the natives continued to use the

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place as such, the defendant-company was precluded from using the land for mining. This is why even though the township of Akwatia is included in the concession, the natives and for that matter the chief and his elders are permitted to use the place for housing their subjects without any objection. It would not lie in the power of the chief and his elders to use an area which they had claimed as their fetish land and therefore had been limited in its use as such, to go back and use the same area for mining. This would amount to the perpetration of fraud on the lessee.

Even if it is accepted for purposes of argument that the fetish land was excluded from the concession, the land by its nature became an adjoining land and if the defendant-company’s grantor intended to lease that area now for mining purposes, as it did, then by the provisions in exhibit 1, Fifth Sched, the lessors shall:

“(2) Not at anytime during the continuance of the term hereby granted so long as the lessee shall have observed all the stipulations on his part herein contained demise or let any of the adjoining lands or mines to any other person or persons, company or corporation without previously offering by notice in writing to demise or let the same to the lessee who shall have the option of accepting the proposed demise or letting at any time within six months after the service of such notice. If such option shall be exercised the lessors shall within six months of such exercise execute a lease of the said adjoining mines or lands to the lessee on the same terms and conditions as are herein contained. If such option shall not be exercised the lessors shall be at liberty to demise such lands or mines to any other party provided that such demise or letting shall not be on more favourable terms than the terms for the same offered to the lessee”.

It was therefore unlawful for the lessor to have granted the land to either Awuah or the plaintiff. This was pleaded by the defendant-company in paragraph 6 of the statement of defence. On this issue the trial judge said:

“Unfortunately there was no evidence from the defendants to this effect; neither the concession agreement nor the certificate of validity talks of right of first refusal in respect of the fetish lands excluded. Counsel for the defendants in his address also never touched on this issue. The defendants therefore failed to establish this right of first refusal of the fetish lands pleaded by them.

Indeed even if the defendants have led any evidence to prove the said right of first refusal, the violation of it by the co-plaintiff

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does not give the defendants the right to forcibly enter and take over the disputed land from the plaintiff who has had a lawful grant from the co-plaintiff. Their action, if any, would have been against the co-plaintiff for breach of a term of the agreement.”

With respect to the learned trial judge, I think he side-stepped the issue by conveniently referring land as fetish land and excluding it from the concession. The fetish land as already stated was part of the land leased to the defendant-company. It remained a fetish land as long as there remained an intention to use it as such. Immediately its use as such changed, it reverted to the lessee automatically for his use as a mining land since it was already within the concession, and, if it is accepted to be outside the concession, then it became an adjoining land and by the terms of the concession, it was unlawful for the lessors to have granted to any other person without offering it first to the defendant-company.

The defendant-company relied on paragraphs (1)-(8) of the statement of defence for their counterclaim. It asked for an order of perpetual injunction against both plaintiff and co-plaintiff. It was entitled to do so. Since the defendant-company claimed the area to be part of its concession and since it took the entry of the plaintiff on the land as an act of trespass, it was not bound to resort to the courts for remedy; it was entitled to take the law into its own hands and redress the wrong itself. This is the principle of self-help acceptable in law. In addition it may sue for damages. There was sufficient evidence on record to enable the judge to settle the issue. This he failed to do. I find that even if the fetish land had been found to have been excluded from the concession, the co-plaintiff breached the provisions of exhibit 1, ie. clause (2) of the Fifth Schedule. On the evidence however, I find that the fetish land is not excluded from the concession of the defendant-company. I find that the trial judge erred in finding that it was excluded.

It is contended by counsel for the plaintiff and the co-plaintiff that the plaintiff having been granted a diamond digging licence is entitled to enter unto the land the subject matter of the licence and dig for diamonds despite the concession granted to the defendant-company. I have already referred to exhibit C (the letter from the district chief executive) and said that in view of the defendant-company’s concession which indisputably covered the area given to the plaintiff, his statement that “the land has been inspected and is not affected by any scheme preferred by the defendant” was palpably false. This fact was admitted by the plaintiff’s own witness later.

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It is conceded that by definition the plaintiff is a native and therefore by section 38 (1) of Cap 136 which has been preserved by Act 124, s 1, what the plaintiff required was a diamond digging licence which was given him—vide exhibit A. The area granted for the operation of the licence specifically excluded the fetish lands. Apart from this, section 40 of Cap 136 which has also been saved by section 1 of Act 124 provides:

“40. No person entitled  or claiming to be entitled to the benefit of any concession, or to any right to  prospect, shall in the exercise of the powers conferred by such concession or of any such right, disturb or interfere with any railway, public road or pathway, or with any public building, burial ground, or land appropriated by law to any public purpose, and any person guilty of any such disturbance or interference shall be liable to a penalty not exceeding one hundred pounds, to be recovered in the Supreme Court and in addition may be ordered by the Court to pay the cost of making good any damage so caused by him.”

The plan attached to the digging licence (exhibit A) does not show the fetish which has been excluded. But in as much as he co-plaintiff describes the whole area as fetish land which according to him has been excluded from the defendant-company’s concession, the grant to the plaintiff infringed the provisions of section 40 of Cap 136.

Be that as it may, the licence which the plaintiff required to enable him to dig was to be as “in Form E of the Schedule hereto” vide section 38 (1) of Cap 136. Perhaps at this stage it would be relevant to state that, even though Act 124 ceased to apply to stool lands, section 30, Part 4 and section 40 of Cap 136 continued to apply to all concessions with effect from the date of commencement of Act 124. Part 4 of Cap 136 comprises sections 36, 37, 38 and 39. Form E has as its note the following:

“This licence is not transferable and does not confer any right of entry upon lands or any right of property in any products of the soil and is subject to the provisions of the Prospecting and Digging Licences Regulations for the time being in force.”

It is therefore significant to note that the letter from the Ministry of Lands and Mineral Resources indicating approval by the Lands Commission to the issue of the digging licence (exhibit A) to the plaintiff (exhibit E) states in no uncertain terms that:

“2. You are hereby advised to ensure that the relative lease is executed within six months from the date of this letter. If this is not done it will be assumed that you are no longer interested in the

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application and the approval conveyed by this letter will automatically lapse.”
Thus, for a right of entry upon the land to dig, the plaintiff required a lease from the co-plaintiff.
Sections 8 (1) and (5) of the Administration of Lands Act, 1962(Act 123) provides:
“8. (1) Any disposal of any land which involves the payment of any valuable consideration or which
would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, and which is made,
(a) by a Stool;
(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration,
shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted . . .
(5) It shall not be lawful without the concurrence of the Minister to make any transaction affecting land which is a Stool property as defined in section 52 of the Chieftaincy Act, 1961(Act 81).
Even though the plaintiff is a native by definition, he cannot claim to be entitled by customary law to a free use of the land since the evidence shows he is not a subject of the co-plaintiff’s stool. The evidence of the plaintiff which is not denied is that, “I paid ¢60 for live sheep and one case schnapps.” This, I find, is payment of valuable consideration.
It has been argued that the disposal of land does not include the leasing of land and therefore there was no need to have a lease with the concurrence of the minister. “Disposal” has not been defined in the Act, but its meaning can be found from the reading of the Act as a whole. Section 11 of Act 123 states, under the marginal heading, “Disposition of Stool lands” thus;
“11. No instrument executed before or after the commencement of this Act shall have the effect of granting or demising any right, title or interest in or to land in respect of minerals, timber, rubber or other products of the soil in or growing on that land or option of acquiring any such right, title or interest except in so far

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as such grant or demise shall contain express words granting or demising such right, title or interest or option thereon.”

I am satisfied that the words “dispose”, connotes any dealing with the land or the rights therein whether the land is for sale or leasing, etc. I find that the transaction by which the co-plaintiff purported to grant a right in the land to the plaintiff amounted to a disposal of the land within the meaning of section 8 (1) of the Act 123. Even if I am wrong, section 8 (5) of Act 123 enjoins that any transaction affecting lands which are a stool property as defined in section 52 of the Chieftaincy Act, 1961 (Act 81) shall have the concurrence of the minister. Act 81 has been repealed by the Chieftaincy Act, 1971 (Act 370). Section 36 of Act 370 defines stool properties. It is admitted that the land in question is a stool land hence the joinder by the co-plaintiff on behalf of the Akwatia stool in the action.

There is no evidence that there was any lease. The granting of the digging licence (exhibit A) is no evidence that the minister has concurred in the grant of the land because the approval of the licence, itself was subject to a valid lease. There is no compliance with the provision of section 8 of Act 123. Section 8 (6) of Act 123 states that “Any transaction entered into in contravention of the provisions of section 8 shall be void.” Since the transaction which put the plaintiff on the land is void, he could not claim to have acquired any legal title which could be infringed by the defendant-company.

On the evidence before the court, I find that the plaintiff and co-plaintiff failed to establish any claim to the area in dispute. It was therefore wrong for the trial judge to have declared title of the land in the co-plaintiff and to have ordered recovery of possession of it to the plaintiff. It follows that the plaintiff and the co-plaintiff could not have been awarded any damages. Accordingly, I would allow the appeal and set aside the judgment and all the orders including orders for damages and costs against the defendant-company. The plaintiff’s action against the defendant-company is dismissed.

The defendant-company counterclaimed for a declaration that it has a valid concession of the disputed land. It also asked for an order of perpetual injunction against the plaintiff and the co-plaintiff. I think there was more than sufficient evidence to support the defendant-company’s claim. The trial judge failed to consider the defence adequately; there was no proper evaluation of the evidence. He was therefore wrong in dismissing the defendant’s counterclaim. I would allow the appeal on this also. The defendant-company succeeds on its counterclaim and is declared to have a valid concession of the land in

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dispute subject to the limitation imposed on the use of the fetish lands as made certain by the 1952 agreement (exhibit 3). The plaintiff and the co-plaintiff, their successors-in-office, agents, servants, workmen and assigns are restrained from in any way interfering with the defendant-company’s concession as long as the said concession remains valid.

JUDGMENT OF OSEI-HWERE J.A. I agree.

JUDGMENT OF WUAKU J.A.    I also agree.

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