Agip v Abass & Another (CIV APP 45 of 1999) [1999] SLCA 1 (23 July 1999)

“Gales BF. te a f My Lerdi, the portion of land in dispute in this appeal ia situated at Bo in tho Kolua Chiofdom in what waa in the old duya thé Protectorate, tut now, tho Provinces of Sierra Toone. ‘Tho ite was of erent commorcial valuc or at least hhea great potential cosmercial value, I shall hereafter refer to At as "tho land, Boing aituated in the Prorincoa ‘the iond was and is still subject to the provisions of the Provinces Lend Act, Cap. 122 of our Lawg, I olull hereafter refer to it'as "the Act", By Soction 2 thereof, tho Act should be read and construed as one vith the Provinces Act, Cop. 60, I have nontionod this because of tho fact that both ‘the appollants ond the first respondent are non-natives. The expression "non-native" ia defined in Section 3 of the Interpretation Act, 1961 (ilo. 46 of 1961 ~ vhich is the Act relovant to this appeal) to mean - ‘ony person other than a native". : ‘tho sao Interpretation Act-by that same section defines “a nacivo" as boing : - Wany person who isa meaber of a raco trive er coumunity settled in Siorra Leone (or the territories adjacent thereto) other than a race, tribe or conmunity (a) which is of Buropean or Asiatic origin oF (b) vhoso principal plaoe: of sottles ont io in the Vestorn Area. mit io Provineos Let, Cap. 60, dos not define the expros=° + ~ gson non-native", but st doce define the exprosgion "native", — ~ ‘het dof inition which is contained in Section 2(1) thereof ‘states that - Py ry | nativo" moana any seater of the aboriginal - racoo or tribes of Africa ondimrily roai~ font within the Provinces or within the forsitorice adjacont thereto outaide Sierra. - sono", #: Undor the Act ali land in the Provinces 4a vested in tin ‘Tribol Authéritics who hold such land for and on tohalf of be

Authority" to moan “paronount chiefs and their councillors,

‘and men of noto, or sub-chiefs and their

= eouneiLlors, and non of note". The second respontonts fall within this definition,

By Soction 3 of the Act a non-native eannot occupy Lond in the Provinces unlesa he first obtains the conaont of the Tridel Authority as voll aa tho approval of the District Commissioner to his occupation of such land, fy a oattor of Jew no non-native con occupy land in the Provinces oxcopt under and in accordance with the Act. ot ne hore and now state that 4t io ny considered view that fron the vholo tonor of the Act the Legislature intended to confer just as great a onofit on non-natives who wish to hola lend in the Provinces as on the Tribal Authorities who, as I have alroady stated, hold sich ants on trust for tho native coamnities. On a propor constnictich of the ket I hold tho view that non~ notives-holding land of the Tribal futhoritics under and by virtue of the Act aro‘noant to have thes tenancies not only rogilatod but miso macleccute. At the sae tine the Act protects Tribal Authorities against unlinited oquatting.

By @ lease datod tho 16th day of May, 1962, the socond respondents loased to tho first respondent ~~

suai that pioce or parcel of land aituato at Do in tho Kaan Chiotdom of tho Bo District BE tho Protectorate of Siorra Toone the doin Gary whoroot, comoncing at a Proporty Boscon Strkod fat unkeh doacon 48 130.0 fee on a Touring of 150 dogroce 45 oimivoa ¢2 Property Beacon marked 425 thonco ona distance of Brio Fes on a boating 240 dogrooa 43 minitos tte Property Boncon naxked £43; thonco on a distance of 150.0 ft. on a doaring 328 dogroee 06 minaton to Property Boacon marked Aids Shonco on a diatanco of 95,0 f4. with a boars Sng of 60 dogreca 40 sinitoa to Proporty Soscen marked AAI which 4@ tho point of coanen~ conont this oncloeing the arc of 0.2685 nero by tho somo sovoral dienaions 1ittio nore or Teen aa, tho ano prosisos or moro particularly Goidnaated end. shown odgod RED on tine olas~ ‘tral Plan lo, 1S/471/58 attached, which pioce oF percel of land for groator eloamoas snd 90 a3 hot to reatrict or emargo tho dssceiption

hereinbefore contained is dvlincated on the plan attachod horoto and ° ~~

. thereon coloured RED togothor with the

uildings and othor fixturoa ond fittings

now thoreon and spseified in the Schedule

hisreto 70 Hi0LD tho said promises horeby

damised unto the tenant from the 16th day

of tay, 1962, for tho torn of soventy- : five yoara yiolding and paying thexefor

during tho oaid tora tho yourly rout of

£55.00 (e130) 4n tho manner heroinaf tor

oot forth",

I shell hereafter refor to it as "the loasc", Tho Yoaso 4a Exhibit B, Wo quostion arises here that the leaso wos not cbtaina with tho prior consent of tho Tribal Authority and the prior approval of ‘tho District Consiesionors Although tho tom donisod is said to bo sovonty-five years yot by virtue of Section 4 of the Act the firot reapondont'e tennnoy could not excocd a tom of fifty years. I do not think that tho torm stated in the lease by excceding the statutory tora in any way affects tho validity of the loose and T 96 told, Tn any case this point vas nover at any stage ralsod ner tina &t aver ante an sesucy

Tt wes anongot other things*mstunlly agroed between tho parties to the loose that if tho’ lease was not rogistored within afzty dayo of ita exooution in the office of the RogistrarGonorc] in Froctovn thon tho lease vas Vosdable at the option of either party.

{Section 9 of the bot provides 9 follow:

savory dood orvating a tenancy of land

hell vo votdable by esthor party,

tinless it~

(a) 49 executod in the presence of two witnosses by tho lessor before tho District Codnisoioner of tho district {in vhich tho and i eituatody and 35 oxcoutod in tho prosonce of two witnonsea by tho lessee or hia attornoy oF lita ngont before a Hagistrate; and

(») haa endorsed upon it cortificates of cxecition in their prenonco signed rospactivoly by tie Diatrict Conniaosonor Bn tho linglatento vofore won St waa exoautoas and

(c) provides that the lessco shall not sublet Sransiin hin interval thonwntor oxespe

— ee with hy consent of the trib authority * Gwsassétonor, provided thse meh setae «shall net bo’ unrenvombly WA tinell eet (@) contatne stsputations wlth rogand to ait tho sattors aot out in auto 3°t0 ts Behoiude to thie kets” oat (0) 49 roglatored within atzty daya in the oftice of the Rogistranctongsel"s Tt should at once to notot thct what both Uw ket and tho ease confor 48 tho right of avoidance pf the lease in costain spocifiod strcunstences, It 1s quite cloar that the Let does ot nko @ loose void ab initio or invalid if the provisions Of Section 9 of' the Act are not complica vith. To ¢o back to the facts, ‘the Loase, though executed on t tho 16th day of May, 1962, une due to aose technical reasons concoming tho plan to bo attachod to tho loaso, not rogistored within ataty days oa roguired by Section 90) of the Zot nor 44a At corply with Section 9a), tho Yoavo was in fact xogic= ‘terod on cr about 27th Movenber, 1962. According to Iixhibit J which 4s dstod 20th Doconber, 1962, the District Ofttedr ackenow Lodged receipt of n registered copy of thé" loaco, At that dato he mist or cugit #2 hive bon avare that cortatn‘provistons of Section 9 of tho Ast had not boon complied with. It Sa ny considered view that knowledge of the Dlotrict Ofttcor (f65~ nerly District Coustsstoner) of any non-conpltenco with the - provitons of tho Let was in tho eireunstanco also knowledge of tho second respondents, I am of tho orton mae ‘the whole atmicturo not only of the Act but aloo of the Provinceo set, ap. 60 (with vnich, a0 T have alzondy pointod out, it chow to rond ao one) ahovo that the District officer (foruesty : Diatrict Coratssioner) 8 lognlly tho natn pivot on whch tho | whole of tke adainistration of the districts in tho Provinces i and all thet vont wish thon revolves, | With thts knowledge of non-coaplianco by the firat respon | dont not orly the socond rospondonts allowed tho first rospon= t

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