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Land - Declaration of title -
Administration of Lands Act,
1962 (Act 123). - Whether
Executive Instrument No.
108 of
1964, was vested land, in
the President of the Republic of
Ghana - Whether the said lands
vested were to be held in trust
for subjects of the Osu Stool
and for use in the public
interest .
The Appellant averred, among
other things, that by an
indenture registered at the
Deeds Registry, Accra as number
840/1962, she was, as a subject
of Osu, granted a large piece of
land, of which the land in
dispute herein forms a part, by
Nii Noi Dowuona IV, the Osu
Mantse at the time, On 9th September
1964 whilst the Plaintiff
herein, was in effective
possession, an Executive
Instrument No. 108 purported to
have compulsorily acquired the
land under subsection (1) of
Section 7 of the Administration
of Lands Act, 1962 (Act 123). By
virtue of the said Executive
Instrument No. 108 dated 9th September
1964, the 2nd Defendant
herein held itself out as having
been vested with interests in
the Plaintiff’s land and
proceeded to deal with the said
land as if it had been vested in
the President of the Republic of
Ghana.” She further contended,
in effect, that, in any event,
lands vested under section 7(1)
of Act 123 were to be held in
trust for subjects of the Osu
Stool and for use in the public
interest Whether or not by
E.I.108 Accra/Tema City Stool
Land (Vesting) Instrument, 1964
(hereinafter “E.I. 108”) the
said Executive Instrument vested
all Stool lands and Public lands
in the Accra/Tema areas and in
the North Dzorwulu areas in the
President, in trust for the
State. Whether or not the
compulsory acquisition per
E.I.108 of 1964 lapsed with the
coming into force of the 1992
Constitution. -
HELD :-
Consequently, the appeal herein
succeeds, the judgment of the
Court of Appeal is hereby
reversed and the decision of the
High Court entered the 2nd of
February 2009 is hereby set
aside. The Appellant’s claim
for declaration of title to the
land described in her writ of
summons issued the 6th of
September 2005 is hereby
granted. Consequently, we hereby
order that the Appellant herein
recover from the 3rd Respondent
possession of the said land and
that the Respondents, their
agents, servants and assigns be
and are hereby perpetually
enjoined from interfering with
the quiet possession and
enjoyment of the said land by
Appellant, her agents, servants,
privies or assigns.
STATUTES REFERRED TO IN JUDGMENT
Administration of Lands Act,
1962 (Act 123). subsection
(1) of Section 7
Executive Instrument No. 108
dated 9th September
1964,
Executive Instrument No. 109 1st
October 1964
High Court (Civil Procedure)
Rules, 2004 (C.I.47) Order 33(5)
Land Registry Act, 1962 (Act
122) sections 24 and 25
1992 Constitution. Article 20
(1) (a) and(5)
CASES REFERRED TO IN JUDGMENT
Nii Nortey Omaboe III v Attorney
General and Lands Commission
[2005-2006] SCGLR 579
Tularley v Abaidoo (1962) 1 GLR,
411, at page 417
Awuni v WAEC [2003-2004] 1
SCGLR,
Saaka v Dahali, [1984-86] 2 GLR
774,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
COUNSEL.
ROBERT YARTEY FOR
PLAINTIFF/APPELLANT/APPELLANT.
EVELYN APPIAH, SENIOR STATE
ATTORNEY FOR THE 1ST DEFENDANT/
RESPONDENT/RESPONDENT.
NICHOLAS ADDAE-TWENEBOA FOR THE
2ND DEFENDANT/
RESPONDENT/ RESPONDENT.
KWABLA SENANU FOR THE 3RD DEFENDANT/
RESPONDENT/RESPONDENT.
______________________________________________________________________
AKUFFO, CJ:-
Brief Background of the Case
On 6th
September 2005, the Appellant
(hereinafter referred to as “the
Appellant”) commenced an
action against the Respondents
in the High Court, Land
Division, Accra, for a
declaration of title to the land
described in the writ of
summons, and for other reliefs.
In her Statement of Claim, the
Appellant averred, among other
things, that by an indenture
registered at the Deeds
Registry, Accra as number
840/1962, she was, as a subject
of Osu, granted a large piece of
land, of which the land in
dispute herein forms a part, by
Nii Noi Dowuona IV, the Osu
Mantse at the time. Of
particular significance are
paragraphs 7 and 8 of the
Statement of Claim, which are in
the following terms:-
“On 9th September
1964 whilst the Plaintiff
herein, was in effective
possession, an Executive
Instrument No. 108 purported to
have compulsorily acquired the
land under subsection (1) of
Section 7 of the Administration
of Lands Act, 1962 (Act 123).
“By virtue of the said
Executive Instrument No. 108
dated 9th September
1964, the 2nd
Defendant herein held itself out
as having been vested with
interests in the Plaintiff’s
land and proceeded to deal with
the said land as if it had been
vested in the President of the
Republic of Ghana.”
She contended that, as at the
date of the said Executive
Instrument, the land in dispute
was not stool land but was
rather her land, the Osu Stool
having divested itself of the
same by the grant made to her.
She further contended, in
effect, that, in any event,
lands vested under section 7(1)
of Act 123 were to be held in
trust for subjects of the Osu
Stool and for use in the public
interest
Eventually, after the
Appellant, as Plaintiff, filed
an application for directions
setting out certain issues, and
3rd Respondent herein
(3rd Defendant in the
said suit) filed two additional
issues for legal argument. At
the hearing of the application
for directions, on 14th
May 2007, the learned High Court
Judge, Justice Ofori Atta,
ordered that “issues A and B of
the issues on the application
and 1 and 2 of the additional
issues be set down for legal
argument”, pursuant to Order
33(4). These issues were:
a.
“Whether or
not the Plaintiff is and has at
all material times been the
lawful owner of the disputed
property.
b.
“Whether or
not the purported compulsory
acquisition of the land in
dispute through the Executive
Instrument No. 108 dated 9th
September 1964 succeeded in
vesting the President of the
Republic of Ghana with title in
the said land, and
1.
“Whether or
not by E.I.108 Accra/Tema City
Stool Land (Vesting) Instrument,
1964 (hereinafter “E.I. 108”)
the said Executive Instrument
vested all Stool lands and
Public lands in the Accra/Tema
areas and in the North Dzorwulu
areas in the President, in trust
for the State.
2.
Whether or not
the compulsory acquisition per
E.I.108 of 1964 lapsed with the
coming into force of the 1992
Constitution.”
For ease or reference, the
terms of Order 33(5) of the High
Court (Civil Procedure) Rules,
2004 (C.I.47) are as follows:-
“Dismissal of action after
determination of preliminary
issue
5.
Where it appears to the Court
that the decision of any
question or issue arising in any
cause or matter and tried
separately from the main cause
or matter substantially disposes
of the cause or matter or
renders trial of the main cause
or matter unnecessary, it may
dismiss the cause or matter or
make such other order or give
such judgment as may be just.”
The thrust of the
Appellant’s legal argument in
the High Court was that E.I. 108
did not divest her of her title
in the disputed land because, at
the date of the Instrument,
title to the said land had
completely vested in her already
and was no longer in the Osu
Stool; in other words, by the
date the Instrument came into
effect, the land in dispute was
private property rather than
Stool land. In the said Legal
Arguments, Counsel for the
Appellant, argued further that,
by the registration of indenture
number 840/1962, her title to
the said land was notified to
the whole world, pursuant to
sections 24 and 25 of the Land
Registry Act, 1962 (Act 122),
including the 2nd
Respondent.
The crux of the 3rd
Respondent’s case, on the other
hand, was that the government
having compulsorily acquired the
lands specified in the E.I. 108,
of which the land in dispute
forms a part, the Appellant’s
interest therein by the prior
transaction with the Osu stool
was extinguished and became
vested in the President, on
behalf of whom the 2nd
Respondent acted to convey
the land to the 3rd
Respondent. The 3rd
Respondent, therefore, submitted
therein that “much as the
Plaintiff acquired her land from
the Osu stool in 1960 and had
been in possession therefore,
the Osu lands and the land upon
coming into force of the 1992
Constitution and by E.I. 108,
all such lands become vested in
the President.” (sic)
Ruling of the High Court, Land
Division, Accra
On 2nd February
2009, the High Court, per His
Lordship Justice F. K. Awuah,
delivered its ruling and
dismissed the action brought
before it by the Appellant. The
Court, in its decision, relied
on the judgment of the Supreme
Court in the reference matter of
Nii Nortey Omaboe III v Attorney
General and Lands Commission
[2005-2006] SCGLR 579
In arriving at its
decision the learned High Court
Judge correctly observed that
the main controversy is between
the Plaintiff and the 3rd
Defendant and it was “whether or
not the land claimed by the
Plaintiff , having been acquired
prior to the Land Administration
Act of 1962 and also EI 108 of
1964, the latter which gave
effect to the vesting of the
Dzorwulu stool lands in the
President, the Plaintiff’s land
which she describes as private
should be affected by these laws
and therefore deprive her of her
right to same.” The learned
Judge expressed the view that
any attempt to exclude any
portion of land covered by EI
108 on the grounds that the same
is private or individual
property “will lead to absurdity
and anarchy”. He did not expand
on the manner in which such
absurdity or anarchy would arise
from the recognition of the
alleged pre-existing interest.
Rather, he concluded that in
character, control and reality
the Appellant’s land cannot be
described as private property,
notwithstanding the pre-existing
conveyance by way of a gift, the
registration of the same or the
issue of a Land Title
Certificate, because the land is
“intrinsically Stool Land”. His
Lordship found, further, that,
even if the land had been
private property, the same had
been ‘subsumed or ousted’ by the
effects of Act 123, according to
whose preamble the Act is
intended to cover Stool and
other Lands. It is noteworthy
that, apart from the fact that
section 7(1) of Act 123 makes
reference only to ‘any Stool
Land’, in the schedule to the
E.I. 108, mention is made only
to ‘stool lands’, and one needs
not lose sight of the title of
the same.
The High Court Judge then
held as follows:
“That by E.I. 108 the said
Executive Instrument vested all
stool lands in the Accra-Tema
areas and in the North Dzorwulu
as prescribed or delineated in
the Survey plan, aforesaid with
the President in Trust for the
stool.
“And that, by E.I.108, the
compulsory acquisition of 1964
did not lapse with the coming
into force of the 1992
Constitution.”
Judgement of the Court of
Appeal, Accra
The Court of Appeal on 1st
March, 2012 delivered its
judgment, wherein it unanimously
affirmed the decision of the
High Court against which the
Appellant appealed to this court
on 14th May, 2012. The Grounds
of Appeal may be summed up as
follows:
a.
The judgment
is against the weight of the
evidence.
b.
The Court of
Appeal erred in law when it
relied on the provisions of E.I.
108 to divest the Appellant of
her privately acquired land and
vested the same in the
Respondents.
Consequently, the
Appellant prayed this Court for
an order setting aside or
reversing the judgment of the
Court of Appeal and giving
judgment in favour of the
Appellant.
Appellant’s Case and Legal
Arguments Herein
Ground A
It is the case of the
Appellant that, even though no
evidence was taken at the High
Court and it was agreed that the
case be based on the
determination of the preliminary
issue pursuant to
Order 33
Rule 5 Of C.I 47, there is
on record Exhibit A, the
indenture made between the Osu
Mantse and the Appellant, in
addition to the pleadings filed
by the Appellant, which clearly
showed that the land in dispute
bore the features of a private
land and not a Stool Land, and
that the same was the
Appellant’s private land gifted
to her by the Osu Stool in 1955,
which gift was evidenced in
writing by an indenture made in
1960, duly stamped in 1961 and
registered at the Deeds Registry
in 1962. The Appellant submitted
that the Court of Appeal erred
in law when it relied on the
provisions of E.I.108 to divest
the Appellant of her privately
acquired land and vested the
same in the Respondents.
The Appellant argued that
the Administration of
Lands Act, 1962 (Act 123)
relates to Stool Lands and not
Private Lands and, therefore,
submitted that if there was any
intention on the part of the
government to acquire her land
compulsorily, then it ought to
have done so under the
State
Lands Act, 1962 (Act 125)
and paid a fair and adequate
compensation to her for the
same, as required by the law.
The Appellant also
submitted that, in any event,
the land in dispute was not used
for any public purpose, but
rather it was given to another
private individual thereby
violating the provisions of
Article 20 (1) (a) and(5) of the
Constitution.
3rd Respondent’s Case
and Legal Argument
Ground A
In response to
the first ground of appeal, the
3rd Respondent
submitted that the ground is
vague and misconceived.
According to the 3rd
Respondent no evidence was
adduced by any of the parties in
the proceedings before the High
Court in respect of the subject
matter in dispute, as the case
was determined on preliminary
legal arguments pursuant to
Order 33. According to the 3rd
Respondent therefore, it was
dubious for the Appellant to
allege that the judgment was
against the weight of evidence.
Ground B
The 3rd
Respondent submitted that, by
virtue of Section 7(1) of the
Administration of Lands Act,
E.I. 108 was made to effectively
and effectually vest all stool
Lands in Accra-Tema areas and in
the North Dzorwulu areas in the
President. The said provision
states:
“(1) Where it appears to the President that it is in the
public interest so to do he may,
by executive instrument, declare
any Stool land to be vested in
him in trust and accordingly it
shall be lawful for the
President, on the publication of
the instrument, to execute any
deed or do any act as a trustee
in respect of the land specified
in the instrument.
“(2) Any moneys accruing as a result of any deed executed or act
done by the President under
subsection (1) shall be paid
into the appropriate account for
the purposes of this Act.
The Respondent, argued,
that Sections 10 (3) and (4),
and 13 (1) of Administration of
Lands Act, 1962 (Act 123)
prescribes a mode for the
Appellant to enforce her
ownership right to the land in
dispute or at best, lodge an
appeal. According to the 3rd
Respondent, since it is a
principle of law that where a
statute prescribes a particular
procedure for the enforcement of
an individual’s rights, those
specific procedures must be
complied with, the Appellant
cannot seek to exercise or enjoy
those rights without application
of such alleged procedures. The
Respondent cited the decisions
in the cases of Tularley v
Abaidoo (1962) 1 GLR, 411, at
page 417 and Awuni v WAEC
[2003-2004] 1 SCGLR, and made
elaborate arguments and
submissions thereon in support
his position.
Analysis
To begin with, it is quite
patent that all parties
concerned (as well as both the
High Court and the Court of
Appeals to some extent) totally
misapprehended the scope and
application of the State Lands
Act, 1962 and the difference
between that enactment and the
Administration of Lands Act,
otherwise the question of
compensation and procedure for
objecting to the application of
either enactment would never
have arisen in the matter. The
Appellant’s claim arose from the
application of the
Administration of Lands Act,
particularly its enforcement by
way of EI 108. That being so,
the cases relied on by the 3rd
Respondent and the application
of the provisions of the
Constitution were entirely
irrelevant and immaterial. More
importantly, it is rather
unfortunate that the application
of a wonderful, and normally
efficacious, rule of procedure
for effective case management
should lead to the outcomes
generated in this matter, which,
if not corrected, might
complicate our already fraught
land title system.
It is clear from the
record that the crux of the
Appellant’s claim before the
High Court was that, by the time
the provisions of EI 108 were
enacted, she was already the
bona fide owner of the property
in dispute, having acquired the
same by way of a valid gift from
the Osu Stool, which acquisition
was, subsequently, evidenced in
writing by the indenture, made
between the said Stool and
herself and registered at the
Deeds Registry as No. 840/1962.
However, although the issues
arising from this claim formed
part of those set down by the
original High Court Judge for
legal argument, it was
inexplicably (maybe caused by
the ‘red herrings’ introduced by
the 3rd Defendant
before the High Court)
side-lined in the ruling of the
High Court Judge who finally
dealt with the legal arguments.
I have already set out the
salient portions of utterances
made by the learned trial judge.
In the final analysis, the
disposition of the matter on the
basis of the effect of Omaboe
III v A G et al., did not serve
to dispose of the plaintiff’s
claim, as the conclusion still
begged the question of whether
at the time of the vesting of
the Osu Stool lands in the
government, the land in dispute
was Stool land or Appellant’s
private land. In other words,
under Ghanaian Law, did E.I. 108
extinguish the title she
acquired under the indenture?
E.I. 108 specifically
dealt only with Stool land, not
all lands, in the demarcated
area. Furthermore, there are no
provisions in either the
substantive Act or the Executive
Instrument which could be
construed as extinguishing
previously existing legal or
customary title in the area
acquired and reverting the same
to Stool land status for the
purposes of vesting the same in
the government. Certainly, there
is no reason to give a
retroactive effect to EI 108 so
as to nullify existing legal
rights and to hold otherwise
would fly in the face of the
most elementary laws of
conveyancing and contract. It is
interesting to note that in the
case of Saaka v Dahali,
[1984-86] 2 GLR 774, (wherein,
the High Court, Tamale, at first
instance, had held, inter alia,
that a usufructuary interest in
land may be extinguished by EI
109 (similarly made under
Section 7(1) of Act 123, vesting
lands in the Northern
Territories in the government))
the esteemed Taylor, JSC.,
delivering the judgment of the
Court of Appeal, expressed
himself thus, at page 781:-
“… it is my view that the
learned High Court Judge erred
in law when he held that EI 109
operated to divest the plaintiff
… of her customary title in the
land.… The Executive Instrument
cannot operate retrospectively
to extinguish rights acquired in
stool and skin lands before
promulgation. The fundamental
rule applicable to all statutes
and statutory instruments is
that prima facie they are
prospective and unless by their
specific terms or by necessary
implication they have
retrospective operation, they do
not affect rights and
obligations which have already
crystallised at the time they
became law.”
I do not think that the
definition of ‘Stool Land’ in
Article 295 of the Constitution
in any way affects this
conclusion.
Conclusion
Consequently, we hold
that, although E.I. 108 did,
indeed, vest all Stool lands
(public lands were not
mentioned) in Accra and Tema in
the President of the Republic of
Ghana in trust for the Stool, at
the time the said vesting
occurred the Appellant was the
owner of the land in dispute
and, therefore, the said
Instrument did not and could not
operate to divest the Appellant
of her interest in the land.
Furthermore, the decision in the
Omaboe II case dealt only with
the issue of whether or not,
with the coming into force of
the Constitution, the vesting
power embodied in EI 108 lapsed.
Though the answer was ‘no’, and
the same Instrument is still in
effect, the Court also made it
very clear that article 267(1)
does not cover lands that were
not Stool lands on the coming
into force of the 1992
Constitution. The High Court
Judge, therefore, erred in
determining otherwise and the
Court of Appeal erred in
allowing such determination to
stand.
As a footnote, I need to
mention that on 18th
October, 2017, when judgement
was to have been delivered, this
Court ordered that the Attorney
General and the Lands Commission
who had been previously struck
out as Defendants in the matter
by the High Court, be joined as
Respondents since the core issue
in this matter was one of public
interest. Although they were
directed to file legal
submissions on the issue of the
status of the Appellant’s title
as at the date of the enactment
of EI 108, only the Attorney
General did so in a very brief,
and admirably candid, submission
admitting that at the date the
said Executive Instrument came
into existence the land the
subject matter in dispute herein
was not Stool Land but was
rather the private property of
the Appellant. We appreciate
such candour on the part of the
Office of the Attorney General
whose primary function is to
uphold all the Laws of the
Republic of Ghana.
Consequently, the appeal
herein succeeds, the judgement
of the Court of Appeal is hereby
reversed and the decision of the
High Court entered the 2nd
of February 2009 is hereby set
aside. The Appellant’s claim
for declaration of title to the
land described in her writ of
summons issued the 6th
of September 2005 is hereby
granted. Consequently, we hereby
order that the Appellant herein
recover from the 3rd
Respondent possession of the
said land and that the
Respondents, their agents,
servants and assigns be and are
hereby perpetually enjoined from
interfering with the quiet
possession and enjoyment of the
said land by Appellant, her
agents, servants, privies or
assigns.
S. A. B. AKUFFO (MS)
(CHIEF JUSTICE)
J. V. M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE- BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
ROBERT YARTEY FOR
PLAINTIFF/APPELLANT/APPELLANT.
EVELYN APPIAH, SENIOR
STATE ATTORNEY FOR THE 1ST
DEFENDANT/
RESPONDENT/RESPONDENT.
NICHOLAS ADDAE-TWENEBOA
FOR THE 2ND
DEFENDANT/ RESPONDENT/
RESPONDENT.
KWABLA SENANU FOR THE 3RD
DEFENDANT/
RESPONDENT/RESPONDENT. |
