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Constitutional law –
Interpretation - Land -
Compulsory acquisition -
Violation of the 1992
Constitution - public interest
at large - Article 20(5) and
(6) - 1992 Constitution Whether
or not the La Stool is entitled
to be given the first option for
acquiring the property and the
government cannot put the land
to any other use than use of the
Wireless Station - Whether or
not any development of the said
land other than for the purpose
for which it was compulsorily
acquired is unconstitutional or
otherwise unlawful -
HEADNOTES
“The property
in dispute, popularly known as
“La Wireless Station is the
property of the plaintiff. It
is not in dispute that the land
of 92.490 acres was acquired
pursuant to the Public Lands
(Leasehold) Ordinance of 1950 by
the Government of Ghana for a
term of 99 years commencing from
the 1st day of
January, 1948. It is also not
in dispute that by virtue of the
Certificate of Title that was
issued under the Ordinance the
said land was acquired for the
purposes of a “Wireless
Station”. Further it is a fact
that recently the Government of
Ghana has entered unto the land
which had hitherto been lying
fallow for years and had
commenced extensive developments
of substantial buildings not
meant for use by the Wireless
Station. These said
developments the government is
executing through a body known
as “Ghana @ 50”. It is
plaintiff’s case that the act of
the government is in violation
of the 1992 Constitution,
specifically Article
20(5) and (6).
HELD
I do not
think that article 257(1) can be
read free from the fact that
some of the lands it comprehends
were originally acquired
compulsorily and thus within the
contemplation of article 20(5)
and (6). Article 20(5) is quite
comprehensive. It embraces “Any
property compulsorily
taken possession of or
acquired in the public
interest or for a public purpose
“
As article 20(5)
applies to compulsory
acquisitions generally and since
also article 257(1) embraces
such acquisitions, the
ascertainment of the purpose for
which the lands in question were
acquired must harp back to the
time of their acquisition.
Since as shown supra, it cannot
be categorically said with
regard to the La Wireless lands
that they were acquired for a
wireless station only but not as
well as for extension to a
residential area and since under
ss.2 and 3(3) of Cap 138 “public
purposes” is defined only in an
inclusive but not exhaustive
sense and inter alia, includes “the
use of the general public”
it cannot be said that the
present user of the land,
despite the sales of the houses
in question, is not for
residential purposes unless the
contrary be proved. If some of
them are used other than for
residential purposes, bearing in
mind what is merely incidental
or de minimis then
articles 20(5) and (6) can be
invoked. So much for the La
Wireless Lands.
As to the other
general finding of the trial
judge, namely “I will find
that in the Cantonments area
also compulsorily acquired land
have now private buildings on
them as testified by the
plaintiff” there is not
enough evidence on that issue to
enable me come to a conclusion
as to impropriety of such user.
The ambit, circumstances and
conditions of such compulsory
acquisition are not clear before
me.I am therefore unable to
answer the 1st
question in view of the
evidence. 2nd
question affirmative. 3rd
question, article 20 (6) is
applicable and whether it is so
applicable retrospectively or
otherwise is immaterial, but its
applicability is indeed not
retrospective.
I will
conclude this matter by stating
finally that, all the
constitutional issues referred
to this court are inapplicable
to the circumstances of this
case. In the first place, it is
my opinion that article 20 (5) &
(6) of the Constitution 1992 is
inapplicable to acquisitions of
property before the coming into
force of the Constitution 1992.
The entire article 20 of the
Constitution looks to the
future, not past. Secondly, the
said articles 20 (5) & (6) of
the Constitution do not have
retrospective effect or
application. Thirdly, public
purpose or public interest
should be given a wide, broad
and expanded interpretation such
as would admit of any use of
property that will have a
beneficial effect on the entire
community or is open to members
of the public. In the result, I
would dismiss the constitutional
referral as wholly inapplicable
under the circumstances of this
case. The case is therefore
remitted to the trial High Court
to be determined in terms of
article 130 (2) of the
Constitution.
STATUTES
REFERRED TO IN JUDGMENT
Public Lands
(Leasehold) Ordinance of 1950
1992
Constitution
State Lands
Act, 1962 (Act 125) (as amended)
Police
Service Act, 1970 (Act 350),
Police
Service (Amendment) Decree, 1974
(NRCD 303)
Police
Service Regulations, 1974 (LI
880)
Property and
Contracts Act 1960 (C.A 6).
Legal Service
Law, 1993 (PNDCL 320)
Interpretation Act, 1960 (C.A.4)
Statute Law
Revision Act, 1996 (Act 516)
Supplementary
and Consequential Provisions)
Law, 1982 (PNDCL 42)
Local
Government Ordinance, Cap. 64
(1951 Rev.),
Akim Abuakwa
(Stool Revenue) Act, 1958 (No. 8
of 1958)
Conveyancing
Act, 1973, NRCD 173
Limitation
Decree 1972 NRCD 54.
CASES
REFERRED TO IN JUDGMENT
Gbedemah v
Awoonor-Williams (1969)2 G&G 442
Omaboe III v
Attorney-General & Lands
Commission (2005-2006) SCGLR 579
The Republic
v. Judicial Secretary, Ex parte
Torto (1979) GLR 444 C.A
Yovuyibor v
Attorney-General (1993-94) 2 GLR
343 S.C,
Yakubu v
Attorney-General (1993-94)1 GLR
307 S.C and Abakah v
Attorney-General (1993-94) 1 GLR
307 S.C
British
Airways v Attorney-General
(1996-97) SCGLR 547
Tuffuor v
Attorney-General (1980) GLR 637
C.
Kuenyehia v
Archer (1993-1994)2 GLR 525
Minister of
Home Affairs v Fisher [1979] 3
All ER 21
Fenuku v.
John Teye (2001-2002) SCGLR 985
Ennin v. The
Republic (1976) 1GLR 326 C.A.
Tsatsu
Tsikata v. The Republic
[2003-2004] 2 SCGLR 1068
C.F.A.O v.
Thome (1966) GLR 107 S.C
Ansah-Addo v
Addo And Ansah-Addo v Asante
(Consolidated) (1972)2 GLR 400
C.A
R v.
Secretary of State for Trade and
Industry and others, ex parte R
(1989) 1 All ER 647
Ellis v
Attorney-General [2000] SCGLR
24,
Regina v.
Chapman (1960)1 WLR 147 CCA
Ghana
Commercial Bank Ltd. v.
Commission on Human Rights and
Administrative Justice
[2003-2004] SCGLR 91
Republic vrs
Special Tribunal; Ex parte
Akosah [1980] GLR 592 CA;
Edusei vrs
Attorney-General [1996-97]
SCGLR 1;
Aduamoa II
vrs Adu Twum [200] SCGLR 165 at
171;
Bimpong-Buta
vrs General Legal Council
[2003-2004]2 SCGLR 1200
Republic vrs
High Court (Fast Track Division)
Accra, Ex-parte Electoral
Commission (Mettle-Nunoo &
others, Interested Parties)
[2005 – 2006] SCGLR 514.
Republic vrs
High Court, Fast Track Division
Accra, Ex-parte (CHRAJ) Dr.
Richard Anane, Interested Party,
[2007-2008] SCGLR 213
Nii Nikoi
Olai Amontia (substituted by Nii
Tafo Amon II) vrs Managing
Director Ghana Telecom Civil
Appeal H/33/04 dated 11/2/2005
Court of Appeal, reported in
[2006] vol. 2. G.M.L.R. 69
Hemang Lands
(Acquisition and Compensation)
Law, 1992 (PNDCL 294)
Fattal vrs
Minister for Internal Affairs
[1981] GLR 104 SC
Baiden vrs
Graphic [2005-2006] SCGLR 154
Ghana
Commercial Bank vrs CHRAJ
[2003-2004] SCGLR 91
Benneh vrs
Republic [1974] 2 GLR 47 CA
(full bench),
Sam vrs
Attorney General [2000] SCGLR
Tufuor vrs
Attorney General [1980]GLR 637
Asare vrs
Attorney General [2003 – 2004] 2
SCGLR 823
CEPS vrs N.
L. C (Public Services Workers
Union of TUC Interested Party)
[2009] SCGLR 531
Sasu vrs Amua
Sakyi [2003-2004] SCGLR 742
Nii Nikoi
Olai Amontia vrs Managing
Director, Ghana Telecom, [2006]
2 GMLR
Memuna Moudy
& Others vrs Antwi [2003-2004]
SCGLR 967
BOOKS
REFERRED TO IN JUDGMENT
Ghana Land
Law and Conveyancing (second
edition), BJ da Rocha and CH K
Lodoh
Blacks Law
Dictionary. 6th
edition
The Law of
Interpretation in Ghana, Dr. S.Y
Bimpong-Buta
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:-
COUNSEL
WILLIAM
ADOTEI ADDO FOR THE PLAINTIFF.
MRS. SYLVIA
ADUSU PRINCIPAL STATE ATTORNEY
FOR THE DEFENDANT
.
J U D G M E N
T
ATUGUBA,
J.S.C:-
This case
came before us upon a reference
from the High Court, Fast
Track/Automated Division, Accra,
presided over by Victor Ofoe,
J.A. The facts as stated by him
are as follows:
“The property
in dispute, popularly known as
“La Wireless Station is the
property of the plaintiff. It
is not in dispute that the land
of 92.490 acres was acquired
pursuant to the Public Lands
(Leasehold) Ordinance of 1950 by
the Government of Ghana for a
term of 99 years commencing from
the 1st day of
January, 1948. It is also
not in dispute that by virtue of
the Certificate of Title that
was issued under the Ordinance
the said land was acquired for
the purposes of a “Wireless
Station”. Further it is a fact
that recently the Government of
Ghana has entered unto the land
which had hitherto been lying
fallow for years and had
commenced extensive developments
of substantial buildings not
meant for use by the Wireless
Station. These said
developments the government is
executing through a body known
as “Ghana @ 50”. It is
plaintiff’s case that the act of
the government is in violation
of the 1992 Constitution,
specifically Article 20(5) and
(6).
X
X X
It is the
contention of the plaintiff that
the land in issue was compulsory
(sic) acquired not in the public
interest at large, but for a
specific public purpose i.e. for
the establishment of a Wireless
Station for which purpose it is
no longer required.
Consequently the La Stool is
entitled to be given the first
option for acquiring the
property and the government can
not put the land to any other
use than use of the Wireless
Station, the only purpose for
which the land was acquired.
The plaintiff
has a further complaint. It is
that succeeding governments have
compulsorily acquired large
tracts of “La lands for next to
nothing in financial terms and
are being allocated by the
Government of Ghana to private
developers at astronomical sums
of money
while the people of La “languish
in poverty, squalor, hunger and
state of utter deprivation of
roads, sanitary facilities and
other modern amenities of life”.
It is the
same manner the present
government is treating La land.
The plaintiff contends that in
so taking over the lands, which
presently is their only valuable
asset, resulting in
“emasculating the development of
La to discriminatory, unfair and
unjust treatment to the total
disadvantage of the people of La
to the advantage of some other
sections of the Ghana population
contrary to the preamble and the
Directive Principle of State
Policy of the Constitution of
Ghana 1992”.
The foregoing
forms the grounds for what the
plaintiff is claiming per its
writ of summons i.e.:-
“1. A
declaration that under
clauses (5) and (6) of article
20 of the Constitution of the
Republic of Ghana, 1992 the land
popularly referred to as
“Wireless Station Land” situate
at a part of La which falls
under the description
“Cantonments” and compulsorily
acquired under a certificate of
Title dated 9th
August, 1957 registered as
number 2488/1957 more
particularly described in a
cadastral plan numbered Z.2399D
attached to the said Certificate
of Title incorporated by
reference herein has ceased
to be used as a wireless station
for which it was acquired and
consequently that the plaintiff
is entitled to be given the
first option for reacquiring the
said land.
2. A
declaration that any development
of the said land other than for
the purpose for which it was
compulsorily acquired is
unconstitutional or otherwise
unlawful.
3. An
order restraining the Government
of Ghana and or all its agencies
and privies from dealing with
the said land other than for the
purpose for which it was
compulsorily acquired and in
particular, from carrying on
with the developments which they
have now embarked upon on the
said land.”
Continuing at
p.10 of the Reference the
learned trial judge states thus:
“I will find that by the
Certificate of Title the land
was acquired for a Wireless
Station. The evidence before me
is clear that the developments
on the land by the various
developers and on the authority
of Ghana @ 50 Secretariat are
not in conformity with the
purpose for which the land was
acquired. There is sufficient
evidence that the buildings
which were put with the
intention of housing the Heads
of State during Ghana’s 50th
Anniversary were never used for
that purpose. They have now
been put up for sale by a
private company, Top Kings
Enterprises Limited. This to me
is a clear change of user, a
violation of Cap 138 and cannot
be development in conformity
with a Wireless Station.
I will find
that in the Cantonments area
also compulsorily acquired land
have now private buildings on
them as testified to by the
plaintiff. But then from
the pleadings and evidence
before me certain issues arise
which call for interpretation of
Article 20(5) & (6) of the 1992
Constitution for a final
determination of this case.
The change of
user of the land as I have found
in the matter, on interpretation
of the Constitution can it be a
change of use for public
interest or for the purpose for
which it was acquired on
interpretation of Article 20(5)
of the 1992 Constitution?
(2) If
the user is not for public
interest or for the purpose for
which it was acquired whether
Article 20 is applicable as to
give the La Stool the option to
reacquire the land.
(3)
Whether granting the La Stool
the option to reacquire the land
will be retrospective
application of the said Article
20(6) and whether the said
Article can be applied
retrospectively.
I will refer
these for the Supreme Court
interpretation – Article 130(2)
of the 1992 Constitution
applied.”
Article 20(5)
and (6) provides thus:
“(5)
Any property compulsorily
taken possession of or acquired
in the public interest or for a
public purpose shall be used
only in the public interest
or for the public purpose for
which it was acquired.
(6)
Where the property is not used
in the public interest or for
the purpose for which it was
acquired, the owner of the
property immediately before the
compulsory acquisition, shall be
given the first option for
acquiring the property and
shall, or such re-acquisition
refund the whole or part of the
compensation paid to him as
provided for by law or such
other amount as is commensurate
with the value of the property
at the time of the
re-acquisition.”
The purview
of the 1992 Constitution
From the
facts stated the land in
question was acquired as long
ago as 9th August
1957. The question is whether
article 20(5) and (6) covers or
relates to such an acquisition.
It is trite
learning that the 1992
Constitution is in pari
materia with the
preceding 1979 and 1969
Constitutions of Ghana. It is
also trite law that statutes in
pari materia are
to be taken and construed
together whether they are
expired or not.
In
Gbedemah v Awoonor-Williams
(1969)2 G&G 442, Apaloo J.A, for
the majority, said:
“As we
read the Constitution, it has no
retrospective effect ........
We illustrate our
appreciation of the effect of
the Constitution on this aspect
of the case by a simple
example. Before the
Constitution came into force,
the Court of final resort in
Ghana was the Court of Appeal.
Judgments delivered by that
court on or before 22 August
1969 were final for all purpose.
When the Constitution came into
force on 22 August, one further
appellate court – the Supreme
Court – was created which
replaced the Court of Appeal as
the court of final resort.
Judgments delivered by the Court
of Appeal on or after 22 August
1969, are appealable in certain
specified cases to the Supreme
Court but any findings or
conclusions reached by the Court
of Appeal before 22 August
remain wholly untouched by the
provisions of the Constitution.
Thus a man whose conviction for
fraud was affirmed by the Court
of Appeal on 21 August 1969,
will suffer the disqualification
imposed by article 72(2) (c) of
the Constitution, whereas if his
appeal had been disposed of on
23 August he will be entitled,
if his original conviction had
been in the High Court, to
appeal to the Supreme Court.
Accordingly,
if the report of the Jiagge
Commission had been published
after the Constitution came into
force, then the validity of NLCD
129 and NLCD 354 would have been
of more than academic
consequence to the defendant.
Being part of the existing law
within the meaning of article
126 (1) (d), their validity
would have to be considered
against the provisions of
article 102. Our view of the
matter is, that on the facts of
this case, the validity or
invalidity of NLCD 129 and NLCD
354 is irrelevant to the success
or failure of the plaintiff’s
case.”(e.s)
The principle
that the Constitution is
prospective and not retroactive
is a general one. But as is
well known virtually every
general rule has its
exceptions. Some judges have
therefore, even if subsequently,
stated this principle of
prospectivity with caution.
Certain provisions of the
Constitution are clearly
retrospective. See for examples
sections 1, 2(1) 3, 4 and 17 of
the Transitional Provisions.
This question
of retroactivity however need
not detain us in this case. The
lands, the subject-matter of
this Reference were acquired
long ago. With the lands
popularly known as La Wireless
lands, they were originally
acquired on the 31st
day of December 1947 but the
acquisition was varied by a
certificate of title dated 9th
July 1957. There can be no
doubt that this land was
compulsorily acquired under
sections 3(1) and (3), 5, 8 and
10 of the Public Lands
(Leasehold) Ordinance, 1950,
Cap. 138. They are as follows:
“3
(1) Notwithstanding the
provisions of any other
Ordinance relating to the
acquisition of land, the
Minister may acquire any land
required for any public purposes
for such term of years as
he may think proper, paying
such compensation as may
be agreed upon or
determined as hereinafter in
this Ordinance provided.
x
x x
(3)
All land so acquired shall
be leased to or become vested in
and be held by the Governor of
the Gold Coast for the time
being and his successors in
office in trust for her Majesty
for public purposes.
x
x x
5. Whenever the Minister
shall direct that land shall
be acquired for public
purposes
under the provisions of this
Ordinance, and by reason of
disputes or doubts as to the
ownership of the land required
or inability of the parties
to agree the terms of a lease
or for any other cause the
acquisition is hindered, the
Commissioner of Lands shall
cause a notice that the land is
required for public purposes
for a stated term of years to be
published in the Gazette
and delivered to the traditional
authority with a request that
the notice of intention shall be
made known in such manner as is
customary in the area of the
traditional authority. Such
notice shall be in the Form A in
the Schedule or to the like
effect.
x
x x
8.
The Commissioner of Lands on
behalf of the Governor may,
at any time after the expiry of
four months from the publication
of notice of intention to
acquire in accordance with the
provisions of section 5,
apply ex parte by
motion to the Supreme Court
for a certificate of title to
the land described in the
notice, and upon such
application and upon proof of
such publication and service
the Court shall grant a
certificate of title in Form B
in the Schedule.
x
x x
10. A
certificate of title granted
under this Ordinance shall-
(1) not
be questioned or defeasible by
reason of any irregularity or
error or defect in the notice of
intention to acquire or the
publication or service and
posting thereof or the want of
notice or of any other
irregularity, error or defect in
the proceedings previous to the
obtaining of such certificate;
(2)
confer on the Governor to
whom such certificate shall be
given and on every succeeding
Governor for the time being
in trust for Her Majesty for
public purposes, an absolute and
indefeasible right to the land
described therein for the estate
therein specified free from all
adverse or conflicting rights,
titles, interests, trusts,
claims and demands whatsoever;
(3)
when produced in any Court be
held to be an absolute bar and
estoppels to any action or
proceeding by or in which the
right of the Governor to the
estate therein specified in the
land therein described is sought
to be impugned or questioned.”
From these
provisions it is clear that the
property affected is
compulsorily acquired for the
period specified even though it
is a leasehold estate. Thus in
their sterling work, Ghana Land
Law and Conveyancing (second
edition), the distinguished
authors, BJ da Rocha and CH K
Lodoh state at p. 21 as follows:
“The State
has statutory power to acquire
land compulsorily from any
proprietor of land whether a
community, an individual or a
corporate body and whether
the title is allodial, a
free-hold or whatever.”(e.s)
Public Land
Article
257(1) and (2) of the
Constitution provides as
follows:
“(1)
All public lands in Ghana
shall be vested in the President
on behalf of and in trust
for, the people of Ghana.
(2) For
the purposes of this article,
and subject to clause (3) of
this article, “public lands”
includes any land which
immediately before the coming
into force of this
Constitution, was vested
in the Government of Ghana
on behalf of, and in trust for,
the people of Ghana and any
other land acquired in the
public interest, for the
purposes of the Government of
Ghana before, on or after that
date.”
It is quite
clear that the La Wireless Lands
are “Pubic Lands” within the
definition of that expression in
article 257(2). Once acquired
under Cap. 138 they have
statutorily devolved on the
President since then. This
position is captured in holding
(2) of Omaboe III v
Attorney-General & Lands
Commission (2005-2006) SCGLR
579 thus:
“Portions of
stool lands, like other private
lands, may be compulsorily
acquired by the Government of
Ghana or the State under the
State Lands Act, 1962 (Act 125)
(as amended) and become part of
public lands under article 257
of the constitution even after
the coming into effect of that
Constitution. But in that case,
their management falls to the
Lands Commission under article
258(1), and not the Office of
the Administrator of Stool
Lands. The regulatory regimes
for stool lands and compulsorily
acquired lands are simply
different.”
Since the
lands in question in this
Reference have been brought
within the purview of the 1992
Constitution cadit
quaestio. The
Constitution thus expressly
applies to them and the question
of retroactivity simply does not
arise, since the intention that
it should apply to them is thus
quite plain- see The Republic
v. Judicial Secretary, Ex parte
Torto (1979) GLR 444 C.A.
Once within the purview of the
constitution all relevant
articles will apply to the lands
in question, for example article
258 1(a) on the power of the
Lands Commission to manage
public lands. There is no
conceivable reason therefore why
article 20 (5) and (6) should
not likewise apply to them. It
is true that article 20(1) to
(6) can be regarded as a self
governing code on the question
of compulsory acquisition of
property and that it’s opening
provisions point to
prospectivity. However where
these provisions are meant to be
limited to situations arising
only after the coming into force
of the constitution, that is
made quite clear. Hence article
20(3) provides thus:
“20.(3)
Where a compulsory acquisition
or possession of land
effected by the state in
accordance with clause (1) of
this article involves
displacement of any inhabitants,
the State shall resettle the
displaced inhabitants on
suitable alternative land with
due regard for their economic
well-being and social and
cultural values.”
By contrast
article 20(5) and (6) is not so
limited to the provisions of
clause (1) and is therefore of
general and wider scope.
Article 20 thus clearly has,
like article 257(1) provisions
relating to matters both before
and after the coming into force
of the 1992 Constitution.
This
construction is reinforced by
the cases of Yovuyibor v
Attorney-General (1993-94) 2
GLR 343 S.C, Yakubu v
Attorney-General (1993-94)1
GLR 307 S.C and Abakah v
Attorney-General (1993-94) 1
GLR 307 S.C etc, in which
offices pre-existing the 1992
Constitution have been
brought within the purview of
the 1992 Constitution and
regulated thereunder. In the
Yovuyibor case the
constitutional ramifications
which altered the pre-existing
service conditions of police
officers, are stated per
Amua-Sekyi JSC (his other
brethren concurring) at 346
thus:
“Article
190(1) of the Constitution, 1992
restored the Police Service to
its place within the public
services. It is this fact that
has brought the present
plaintiffs to court. The
plaintiff, Yovuyibor, is a
superintendent of police, as is
the plaintiff Bonuedi. They
say that as the compulsory
retiring age for public officers
under article 199(1) of the
constitution, 1992 is 60 years,
the compulsory retiring age for
members of the Police Service is
no longer 55 years but 60 years,
and that their premature
retirement at the age of 55
years is wrongful and a breach
of the Constitution, 1992.
The answer of the defendants is
that under section 8 of the
transitional provisions of the
Constitution, 1992 the Police
Service continues to be governed
by the Police Service Act, 1970
(Act 350), the Police Service
(Amendment) Decree, 1974 (NRCD
303) and the Police Service
Regulations, 1974 (LI 880)
which, they contend, require all
police officers to retire at the
age of 55 years.
Section 8(1)
A person who immediately
before the coming into force of
this Constitution held or was
acting in an office in existence
immediately before the coming
into force of this Constitution,
shall be deemed to have been
appointed as far as is
consistent with the provisions
of this Constitution, to hold
or act in the equivalent office
under this Constitution.
(2) A person
who before the coming into force
of this Constitution would have
been required under the law in
force to vacate his office at
the expiration of a period of
service shall, notwithstanding
the provisions of subsection (1)
of this section, vacate his
office at the expiration of that
period.
(3) This
section shall be without
prejudice to any powers
conferred by or under this
Constitution or any other law
not being inconsistent with any
provision of this Constitution,
upon any person or authority to
make provision for the abolition
of office, for the removal from
office of persons holding or
acting in any office and for
requiring those persons to
retire from office.”
Upon these
facts this court held as stated
in the headnote thereof thus:
“Held:
on a proper construction,
section 8(1) of the transitional
provisions to the Constitution,
1992 catered for public
officers holding appointments
for a fixed period, such as
those on contracts for a number
of years as well as
pensionable officers whose
appointments were not limited in
terms of years, and provided
that a person who before the
coming into force of the
Constitution , 1992 held or was
acting in an office shall be
deemed to have been appointed to
hold or act in the equivalent
office under the Constitution.
On the other hand, section 8(2)
of the transitional provisions
of the Constitution, 1992
catered only for public officers
holding appointments for fixed
periods and required that
such public officers vacate
their offices in accordance
with the terms of their
engagement. Hence, the view
that section 8(2) of the
transitional provisions to the
Constitution, 1992 also affected
pensionable officers was
erroneous and ought to be
rejected. Accordingly,
as public officers holding
pensionable appointments, the
compulsory retiring age of the
plaintiffs was 60 years so that
their purported retirement from
the Police Service at the age of
55 years was a breach of article
199(1) of the constitution, 1992
and a nullity.”
Cap. 138
under which the La Wireless land
was acquired was repealed by the
State Property and Contracts Act
1960 (C.A 6). Except that lands
acquired under Cap. 138 at one
time vested in the President
under s.1 of C.A.6, I do not see
the relevance of C.A.6 to this
case. The effect of a repeal is
succinctly stated by Dr. S.Y
Bimpong-Buta in his classic
work, The Law of Interpretation
in Ghana, at p.171 as follows:
“The general common Law rule is:
when an Act is repealed or
expires, lapses or otherwise
ceases to have effect, it is
regarded, in the absence of a
contrary provision, as having
never existed except as to past
and closed matters or
transactions. This common
law position has been
codified in Ghana by the
Interpretation Act, 1960, ss 8
and 9…”
It has not
been shown what past and closed
matters or transactions, that is
to say vested rights or
obligations, existed under Cap
138 and are now sought to be
overreached. What constitutes a
vested right or obligation has
been analysed luminously by Dr.
Bimpong-Buta in his said book at
pp.177-185. In any case in the
face of articles 1,2 and
11(4)-(6) on the supremacy of
the Constitution it is idle to
think of anything being done as
from the 7th day of
January 1993 in a manner
inconsistent with its provisions
– see British Airways v
Attorney-General (1996-97)
SCGLR 547. In short all acts
and laws must as from the 7th
day of January 1993 conform with
the provisions of the
Constitution.
It is quite
clear that under article 257(2)
the, expression, “public lands”
embraces lands compulsorily
acquired
in the public interest both
before and after the coming into
force of the 1992 Constitution
and they are all to be commonly
administered by the new Lands
Commission under article 258(1).
One would therefore wonder why
the constitution when
specifically dealing with
compulsorily acquired lands in
article 20(5) and (6) should not
embrace both types of
compulsorily acquired land. If
that is not so it would mean
that with lands compulsorily
after the coming into force of
the constitution if there is a
departure in use from its
acquired purpose, the original
owner can enjoy the option in
article 20(6) whereas if such
departure occurs even after the
coming into force of the 1992
Constitution in respect of those
lands compulsorily acquired
before it came into force the
original owner is left in the
cold, even though both types of
land have been brought under the
same umbrella as public lands
under articles 257(1) and (2)
and 258(1) (a). A
constitution which abhors
discrimination and which
requires that all acts and laws
must, as laid down in articles
1(1) and (2) and 2(1), conform
with it upon its coming into
force, could hardly contemplate
such a scenario. Indeed in an
analogous situation in the
Yovuyibor case Edward Wiredu
JSC (as he then was), was
constrained to state forcefully
as captured by the headnote
thus:
“Per
Edward Wiredu JSC. To
construe section 8(1) of the
transitional provisions of the
Constitution, 1992 in the way
the defendants are urging,
would mean that no employee
in any of the services listed
under article 190(1) of the
Constitution, 1992 with the
exception of members of the
legal class some of whom
enjoy up to 65 years under the
existing law, i.e the Legal
Service Law, 1993 (PNDCL 320)
can benefit from the provisions
of section 8(1). The
benefit created by its provision
cannot enure to the benefit of
any public office holder who
“held or was acting in an office
in existence” within the
language of that section. It
would also mean that within the
same service there will be two
types of personnel. Those to be
appointed under the
Constitution, 1992 and those
continuing under the
Constitution, 1992. The former
retiring at 60 years and the
later retiring at 55 years.
This would bring disparity
between the personnel in their
conditions of service. Such a
construction would lead to an
absurdity.”
Similarly in
British Airways v
Attorney-General (1996-97)
SCGLR 547 the plaintiffs’
prosecution though begun before
the coming into force of the
1992 Constitution was continued
thereafter despite the repeal of
the law in question. This court
therefore had to pronounce on
s.8(1) of the Interpretation
Act, 1960 (C.A.4) and article
19(11) of the Constitution.
They are as follows:
“8(1) The repeal or revocation
of an enactment shall not –
(e)
affect any investigation, legal
proceeding or remedy in respect
of any such rights,
privilege, obligation,
liability, penalty,
forfeiture or punishment,
and such investigation, legal
proceeding or remedy may be
instituted, continued or
enforced, and any such penalty,
forfeiture or punishment may be
imposed, as if the enactment had
not been repealed or revoked.
9 (11) No
person shall be convicted of
a criminal offence unless the
offence is defined and the
penalty for it is prescribed in
a written law.”(e.s)
Upon these
facts this court forcefully,
stated as captured in holding
(2) of the headnote thus:
“(2) The
criminal trial of the plaintiffs
after the repeal of PNDCL 150
should be discontinued; it could
not be justified (as contended
by the defendant) under section
8(1) (e) of the Interpretation
Act, 1960 (CA4) which was
inapplicable because under
article 19(11) of the 1992
Constitution, no person could be
convicted or punished unless a
written law has defined the
offence or provided sanctions
for same. The provision in
section 8(1) (e) was now
inconsistent with article 19(11)
in respect of criminal offences
contained in a repealed law such
as PNDCL 150. The position
would have been different if the
plaintiffs had been convicted
before the repeal of PNDCL 150
by the Statute Law Revision Act,
1996 (Act 516) or if Act 516 had
saved offences committed before
the repeal of PNDCL 150.
Consequently, the provision in
article 19(11) became applicable
in respect of the criminal case
pending against the plaintiffs.
Per Acquah
JSC concurring.
Note that the verb used in
article 19(11), is “is” and not
“was”. If it had been “was” the
formulation could have referred
to the past and not the present.
The use of “is, clearly shows
that the formulation looks
beyond the time of the
commission of the offence to
ensure the legality of what
happens thereafter. If at
any stage before conviction, the
law creating the offence and the
punishment is totally repealed
without any saving, the
investigation and proceedings
cannot be continued.”(e.s)
This decision
clearly upheld the new
constitutional order as against
s.8 1(e) of C.A.4. As stated
eternally in Tuffuor v
Attorney-General (1980) GLR
637 C.A, the constitution being
a political document meant to
achieve certain objectives of
governance in the interest of
the people, that consideration
and not puristic principles of
construction of statutes should
be the overriding factor in
applying or interpreting the
constitution. This principle
has been forcefully revisited by
Francois JSC in Kuenyehia v
Archer (1993-1994)2 GLR 525
at 562 thus:
“Any attempt
to construe the various
provisions of the Constitution,
1992 relevant to the present
inquiry must perforce start with
an awareness that a
constitutional instrument is a
document sui generis to be
interpreted according to
principles suitable to its
peculiar character and not
necessarily according to the
ordinary rules and presumptions
of statutory interpretation.
Though basic rules of statutory
construction may provide the
first steps, they should
strictly be kept at the first
rung as servants and never
elevated in flight as maters.
This
essential prerequisite is
illustrated in a number of
cases. In Minister of Home
Affairs v Fisher [1979] 3
All ER 21 at 26, PC, Lord
Wilberforce delivered himself at
the Privy Council as follows:
“A
constitution is a legal
instrument giving rise, amongst
other things, to individual
rights capable of enforcement in
a court of law. Respect must be
paid to the language which has
been used and to the traditions
and usages which have given
meaning to that language. It is
quite consistent with this, and
with the recognition that rules
of interpretation may apply,
to take as a point of departure
for the process of
interpretation a recognition of
the character and origin of the
instrument.”
It appeals
that the overwhelming
imperatives are the spirit and
objectives of the Constitution
itself, keeping an eye always on
the aspirations of the future
and not overlooking the receding
footsteps of the past.
It
allows for a liberal and
generous interpretation rather
than a narrow legalistic one.
It gives room for a broader
attempt to achieve enlightened
objectives and tears apart the
stifling straight jacket of
legalistic constraints that
grammar, punctuation and the
like may impose. Moreover
it ensures that what has been
termed “the austerity of
tabulated legalism”, is avoided,
as also the dry interpretation
of a section with its attendant
difficulties: see per Lord
Summer in Brooks’ case [1915] AC
493.”
Applying
these principles to the present
case it is quite clear that the
1992 Constitution, inter
alia, set out to
straighten certain injustices in
the land tenure of Ghana. See
articles 266-267. This policy
is reflected therefore also in
article 20(5) and (6) and should
be upheld for the welfare of the
people of Ghana as laid down in
article (1).
In any event
a statute can be prospective in
some respects but retrospective
in some respects. See Fenuku
v. John Teye (2001-2002)
SCGLR 985. A vivid example is
given by Dr. Bimpong-Buta in his
said book at as follows:
“A
striking example of a
legislation which is both
prospective in some respects and
retrospective in others, is to
be found in the now repealed
Provisional National Defence
Council (Establishment)
Proclamation (Supplementary and
Consequential Provisions) Law,
1982 (PNDCL 42), s 67.
The section stated that the
provisions of the Law made on
(sic) December 1982 were to
be deemed to have come into
force on 31 December 1981 unless
the PNDC decided in a specific
instance or the context so
provided that the provisions
were to take effect from the
date of the making of the law;
or unless there was a
specific provision (like section
60 thereof) indicating that it
was to take effect from a
specified date, ie 4 September
1979.”(e.s)
Operative Law
of the case
At the risk
of repetition but since there
are varying views on this issue
I wish to emphasise that the
applicable law to this case is
in the main the 1992
Constitution.
(a)
Alternative Law
In the United States their
Supreme Court has adopted a
policy to the effect that, for
the avoidance of constitutional
tension and conflict owing to
the sensitive nature of
constitutional litigation, if a
case can go off on some other
ground than constitutionality
the former course should be
preferred. See Ennin v. The
Republic (1976) 1GLR 326
C.A. I have myself sometimes
followed this principle, see for
example Tsatsu Tsikata v. The
Republic [2003-2004] 2 SCGLR
1068. Upon reflection however I
think the better course for
Ghana, except in grave
circumstances, is for the
Judiciary to uphold and entrench
the supremacy of the
constitution as clearly
contemplated by articles 1, 2,
3(4), 35, 37(1) and 41(b) of the
constitution
This will
produce, hopefully, a national
culture of constitutionalism.
(b)
Vested Rights
There is much
complexity about the
introduction of new
legislation. In C.F.A.O v.
THOME (1966) GLR 107 S.C the
facts of the case as stated in
the headnote are as follows:
“By a
home-made agreement dated 1
April 1949, the plaintiff let a
store and flats in his building
to the defendants at an agreed
rent. The agreement provided
that the defendants were to
surrender possession of the
premises in good and tenantable
condition at the expiration of
the lease. The agreement
expired on 31 March 1959 but the
defendants renewed their tenancy
of the store only. They could
not surrender the flats
apparently because they could
not conformably with the
agreement, deliver them to the
plaintiff in a good and
tenantable condition. They
sought to renegotiate the rent
for the flats with the plaintiff
but negotiations eventually
failed. By agreement, the
parties obtained the advice of
an expert who assessed the cost
of repairs to be done on the
flats of £G2,337 10s. The
defendants having failed to
effect the repairs, the
plaintiff caused a writ of
summons to issue against the
defendants claiming (a) an order
for possession of the flats in a
state of repair and (b) mesne
profits from 1 April 1959 to the
date possession was given. The
trial judge gave judgment for
the plaintiff and ordered the
defendants to surrender t he
flats to the plaintiff in a
state of repair and also pay
mesne profits at the rate of
£G60 per month until such
possession was delivered.”
Upon these
facts, Apaloo JSC delivering the
judgment of the Supreme Court
held at 115-116 thus:
“I agree
therefore with the contention of
counsel for the company that the
evidence being that the premises
were let in 1949 at the agreed
rent of £45 and there being no
evidence of any previous
letting, the sum became, by
force of the statute, the
standard rent of the premises
and that the position is in no
way affected by the fact that
the company undertook to make
initial repairs to the tune of
£500 to put the premises into a
habitable condition. If
therefore the rights of the
parties fell to be determined by
the Rent Control Ordinance,
1952, I should accede to the
contention of the company that
the plaintiff was precluded by
the mandatory provisions of
section 12 of that Ordinance
from demanding £G60 for a part
of the premises. But are the
rights of the parties governed
by the 1952 Ordinance? In my
judgment, they are not. The
contract from which the parties
acquired rights and incurred
obligations was entered into in
1949 and it seems to me that
those rights and obligations
must be judged by the rent
legislation then in force,
namely, the Rent Control
Ordinance, 1947. This
Ordinance was repealed with
effect from 1 March 1952.
It seems to
me the question which falls to
be answered is: Did the 1947
Ordinance turn the contractual
rent of £45 into a standard
rent? To answer this question,
it is necessary to consider the
statutory definition of standard
rent in 1947. That legislation
says, a standard rent means, in
so far as material,
(a)
the rent fixed for any
particular premises or any class
of premises by the appropriate
committee;
(b)
where no rent has been fixed-
(i) in the case of premises
which were let on 3 September
1939, the rent at which the
premises were then let; or
(ii) in the case of premises
which were vacant on 3 September
1939, the rent at which the
premises were last let before
that date.
There is no
evidence that any committee
fixed the rent for the premises
in question nor is there any
evidence that they were let
before 3 September 1939, or on
that date. It follows therefore
that if this dispute fell to
be adjudged either in 1950 or
1951, the plaintiff could
successfully contend that there
was no standard rent of the
premises. It cannot, in my
judgement, be argued that his
rights were adversely affected
by legislation passed three
years after the contract. I
think therefore that the learned
trial judge was right in holding
that there was no standard rent
of the premises....”
Again in
Ansah-Addo v Addo And
Ansah-Addo v Asante
(Consolidated) (1972)2 GLR
400 C.A the facts as stated in
the headnote are as follows:
“In 1928
six buying syndicates bought
land from the stool of Akwatia.
Notwithstanding the sale, the
stool granted mining leases of
the same land to C.A.S.T. In
1933, the stool and the
syndicates agreed to share the
mining revenues in the
proportions of two-thirds and
one-third. At this time the
syndicates acted through two
agents, Asante and Addo. In
1951 by the Local Government
Ordinance, Cap. 64 (1951 Rev.),
all mining revenues became
payable to the Akwatia Local
council. Thus when in 1956 the
syndicates sued for their share
of the revenue, they sued that
council. The stool joined the
action as co-defendant, arguing
that the full extent of the land
transferred to the syndicates
had not been mutually
determined. At this time the
mouthpieces of the syndicates
were Oppong Addo, the son of
Addo (deceased) and Asamoah.
The syndicates lost the action
in 1959 on the ground that they
had failed to establish with
certainty the area they had
bought. They appealed to the
Court of Appeal but whilst
the appeal was pending the
parties submitted to a mutually
satisfactory arbitration which
confirmed the area sold to the
syndicates and reduced their
portion of the revenues to
one-third. The syndicates,
now acting by Sekyi and Oppong
Addo, requested the
Administrator of Stool Lands to
pay them their revenue, and
this was ultimately paid to
“E.K. Sekyi and Oppong Addo and
others.” Neither Sekyi nor
Oppong shared the revenue with
the other members of the
syndicates.
In suit No.
461/69 the plaintiff, a paternal
half-brother of Oppong Addo,
claimed against him a share of
moneys which were allegedly
received on account of the
estate of their father, Oppong.
The plaintiff was joined by
other members of the syndicates
and E.K. Sekyi joined as
co-defendant. In suit No.
189/71 the plaintiff and
co-plaintiffs in the first suit
jointly sued E,K. Sekyi claiming
their share of the mining
revenues. The main defence in
both actions was that the
plaintiffs were estopped by the
1959 judgment from alleging that
they had any interest in the
land in dispute. The trial
judge thinking that the issue of
estoppels might conclude the
matter one way or the other
ordered the suits to be
consolidated and the issue of
estoppels to be set down as a
preliminary matter. He
subsequently gave his ruling
that in both suits the
plaintiffs were estopped and
that the arbitration was void as
it contravened the Akim Abuakwa
(Stool Revenue) Act, 1958 (No. 8
of 1958), the Local Government
Ordinance, Cap. 64 (1951 Rev.),
and the Administration of Lands
Act, 1962 (Act 123). The
plaintiffs appealed from this
ruling.”
Upon these
facts, it was held, inter alia,
as per holding (2) of the
headnote thus:
“The
arbitral award in this case
merely confirmed a sale that
took place in 1928 and a
contract that was entered into
in 1933, the pith of sections 14
and 75 of the Akim Abuakwa
(Stool Revenue) Act, 1958, and
the Local Government Ordinance,
Cap. 64, is that section 14
transferred management of
Abuakwa stool lands to the
receiver of stool revenue and
section 75 denied legal validity
to any disposal of stool land in
any council area without the
concurrence of the council. In
any case these statutes were
passed in 1958 and 1951
respectively and they have no
retrospective effect. The
arbitral award was therefore
unaffected by those statutes.”
Similarly in
R v. Secretary of State for
Trade and Industry and others,
ex parte R (1989) 1 All ER
647 it is succinctly stated in
the headnote thus:
“The
Secretary of State for Trade and
Industry’s power under s 105
of the Financial Services Act
1986 to investigate the affairs
of an investment business’
does not entitle him to
investigate business
transactions which took place
before the date on which the
material provisions of that Act
setting out his investigative
powers and characterising the
different types of investment
business activity that could be
investigated came into effect,
ie 18 December 1986, since the
investigative scheme created by
the Act is not retrospective
and transactions which took
place prior to that date are not
“investment business’ within the
meaning of the Act.”
I do not
understand these decisions to be
contrary to what Dr.
Bimpong-Buta has stated in his
said book at 183-184 thus:
“The decision
of the majority in CFAO v Zacca
in construing the right to apply
for a review – a remedy to be
granted in the discretion of the
full bench as an accrued right
and not a mere right existing on
the coming into force of the
1969 Constitution is clearly
contrary to the decision of the
Privy Council relied upon
namely:
Abbot v Minster for Lands and
Director of Public Works v Ho Po
Sang, In Abott v Minister for
Lands the appellant had
purchased a portion of Crown
Land in New South Wales. He
was thus entitled under the 1861
Crown Lands Alienation Act to
make further purchases of Crown
Lands Alienation Act to make
further purchases of Crown Land
adjoining the original holding.
The 1861 Act was,
however, repealed by the 1884
Crown Lands Act which
provided in a saving clause that
notwithstanding the repeal,
“all rights accrued under the
repealed enactment should remain
unaffected.” It was held
that the mere right existing
at the date of the repealing
legislation to make additional
purchases of the adjoining land
did not constitute an accrued
right. In the words of the
Privy Council per the Lord
Chancellor:
It has been
very common in the case of
repealing statutes to save all
rights accrued. If it
were held that the effect of
this was to leave it open to any
one who could have taken
advantage of any of the repealed
enactment still to take
advantage of them, the result
would be far-reaching.
It may
be...that the power to take
advantage of an enactment may
without impropriety be termed ‘a
right.’ But the question is
whether it is a ‘right accrued’
within the meaning of the
enactment which has to be
construed.
Their
Lordships think not,... They
think that the mere right
(assuming it to be properly so
called) existing in the members
of the community or any class of
them to take advantage of an
enactment, without any act done
by an individual towards
availing himself of that right,
cannot properly be deemed a
‘right accrued’ within the
meaning of the enactment.
In Director
of Public Works v Ho Po Sang
(supra) it was held that the
mere hope or expectation of a
lessee of landed property of
obtaining a rebuilding
certificate from the Director of
Public Works under the Hong Kong
Landlord and Tenant Ordinance
(which was later repealed in
1957) did not constitute an
accrued right even though the
director had given notice to
issue the certificate before the
repeal. As was pointed out
by the Privy Council, the lessee
did not know at the time of the
repeal, whether or not he would
be given a rebuilding
certificate – the issue of which
was dependent upon a further
decision of the Government of
Hong Kong.” (e.s)
I understand
all the foregoing to come to
this: if a statute creates
rights and obligations and such
rights and obligations have
actually materialised as per the
provisions of the said statute,
they remain good and enforceable
even after the repeal of the
statute in question. It
certainly cannot mean that the
repealed statute still governs
matters to which its provisions
would have been relevant had it
not been repealed, but which had
not yet crystallised before its
repeal. If that were so, as
pointed out in some of the
authorities quoted by Dr.
Bimpong-Buta supra, no repeal of
a statute would be effective.
In Ellis v Attorney-General
[2000] SCGLR 24, it was sought
to invalidate a compulsory
acquisition which had fully
taken place before the 1992
Constitution on the grounds that
it violated that constitution.
That certainly is not the matter
in this case. In this case the
question is whether the vested
purpose of the compulsory
acquisition can be enforced on
the provisions of article 20(5)
and (6) in respect of acts
committed not before but after
the 1992 Constitution came into
force.
In my opinion
had the alleged acts of
misapplication of the
compulsorily acquired lands in
this case accrued before the
repeal of Cap. 138 they could
still today, barring any statute
of limitation, have been
questioned under s.21 of Cap.
138, they being vested rights.
It provides as follows:
“21.(1)
The person entitled to the
reversion to any land
expectant on a term of years
acquired by the Governor under
the provisions of this Ordinance
may, if he claim that the
land or any part thereof is
being used otherwise than for
public purposes, proceed
by petition to the Governor
in Council to seek the
surrender of the term of years
in respect of the whole or any
part of the land.
(2) If
the Governor in Council on
receipt of a petition under the
provisions of subsection (1) of
this section, and after such
investigation as he may deem
necessary, shall so direct, the
Commissioner of Lands shall
apply under the provisions of
section 11 of this Ordinance for
the variation of the certificate
of title to the land so far as
may be necessary to effect the
surrender of the term of years
in respect of such part of the
land as the Governor in council
is satisfied is being used
otherwise than for public
purposes, or, if the Governor in
Council is satisfied that the
whole of the land is being so
used, for the rescission of the
certificate of title.” (e.s)
Even there
the procedure by way of petition
would not still hold under
article 293 of the
constitution. But if the
constitution has plainly altered
or substituted a new right in
the circumstances of the matter
it is the new order that ought
to prevail. I would therefore
conclude that the rights of the
parties in this case are
governed by articles 20(5) and
(6) and 257(1) of the 1992
Constitution.
The trial
court’s findings as to misuser
of the lands
It is clear
from Ofoe J.A’s findings that
the La Wireless lands were
acquired solely for the purpose
of a Wireless Station under
Cap.138. With respect he
erred. As stated earlier the La
Wireless lands were not
originally acquired by Exhibit A
which Ofoe J.A relied on. As
exhibit A did not appear
entirely clear, we by order
dated 5/5/2010 called for the
original thereof. This resort to
the Public Records and Archives
Administration department
reveals that that land was first
acquired on the 31st
day of December 1947. In the
Gold Coast Gazette Extraordinary
Gazette Notice No. 2086 dated
Thursday, 18th
December 1947, undoubtedly
issued pursuant to s.5 of Cap
138 the notice for the
acquisition of the land is
headed:
“GAZETTE NOTICE NO. 2086.
NOTICE OF
LAND REQUIRED FOR THE SERVICEOF
THE COLONY AND ASHANTI SITUATE
AT CANTONMENTS, ACCRA AND
REQUIRED FOR
WIRELESS
STATION AND EXTENSION TO
RESIDENTIAL AREA”
Although
pursuant to application the said
certificate of title was on the
9th day of August
1957 varied by the substitution
of the original plan No. Y605 by
Plan No. Z2399D there was no
order as to the alteration of
the purpose for which the said
land was acquired. Indeed the
very application for the said
variation described the Land in
question in the same terms as
contained in the said Gazette
Notice. Consequently the
description of the purpose of
the land in the pursuant varied
certificate of title as “LAND AT
ACCRA CANTONMENTS FOR A WIRELESS
STATION” without more does not
seem to be an exhaustive
description thereof.
Since the
houses for the visiting heads of
state to the “Ghana at 50”
celebrations are a use as part
of a residential area, if the
second purpose for the
acquisition of the said land,
proves true, that user of the
land is not improper.
Authority to
disagree with findings of trial
judge
Certainly
this court cannot be constrained
by any erroneous statement of
the facts of the case in a
referral to give judgment
contrary to the fundamental law
of the land, for it takes
precedence over all other laws.
It is trite law that when a
court is called upon to make an
order contrary to a statute, it
is open to the court to take the
point suo motu.
In any case
in analogous situations such as
committal for sentence it has
been held that the court to
which the matter has been
committed is not constrained to
pass sentence upon an
unsupportable conviction, see
Amissah Criminal Procedure in
Ghana p. 160. Although there is
some contrary authority, the
preferable view on this question
is as just stated. See also
Regina v. Chapman (1960)1
WLR 147 CCA and Ghana
Commercial Bank Ltd. v.
Commission on Human Rights and
Administrative Justice
[2003-2004] SCGLR 91 holding (3)
of the headnote.
Conclusion
It is true
that when the State Property and
Contracts Act 1960 (C.A6)
repealed Cap. 138 it provided in
s.1 thereof as follows:
“1.
Vesting of property
(1)
Property vested in the Crown as
trustee for the Public Service
of the Republic
and whether situated in or
outside the Republic shall, on
the coming into force of this
Act, vest without further
authority than this section
in the President in trust for
and on behalf of the people of
Ghana for the Public Services of
the Republic.”
However
article 257(1) of the
Constitution provides as
follows:
“257.
(1) All public lands
in Ghana shall be vested
in the President on behalf
of, and in trust for, the
people of Ghana.”
There is a
difference between the two
provisions. Under s.32 of the
Interpretation Act 1960 (CA4)
the definition relating to “public
officer” shows clearly that
the expression Public Services
refers to certain governmental
institutions. On the other hand
article 257(1) refers to the “people
of Ghana” not the Public
Services of Ghana. Hence
article 257(1) is the prevailing
provision of law relating to
“public lands.” It is true that
the definition of “public lands”
in article 257(1) could have
been better drafted to reflect
the history of public lands in
Ghana but we must interpret it
ut res magis valeat quam
pereat.
I do not
think that article 257(1) can be
read free from the fact that
some of the lands it comprehends
were originally acquired
compulsorily and thus within the
contemplation of article 20(5)
and (6). Article 20(5) is quite
comprehensive. It embraces “Any
property compulsorily
taken possession of or
acquired in the public
interest or for a public purpose
“
As article
20(5) applies to compulsory
acquisitions generally and since
also article 257(1) embraces
such acquisitions, the
ascertainment of the purpose for
which the lands in question were
acquired must harp back to the
time of their acquisition.
Since as shown supra, it cannot
be categorically said with
regard to the La Wireless lands
that they were acquired for a
wireless station only but not as
well as for extension to a
residential area and since under
ss.2 and 3(3) of Cap 138 “public
purposes” is defined only in an
inclusive but not exhaustive
sense and inter alia, includes “the
use of the general public”
it cannot be said that the
present user of the land,
despite the sales of the houses
in question, is not for
residential purposes unless the
contrary be proved. If some of
them are used other than for
residential purposes, bearing in
mind what is merely incidental
or de minimis then
articles 20(5) and (6) can be
invoked. So much for the La
Wireless Lands.
As to the
other general finding of the
trial judge, namely “I will
find that in the Cantonments
area also compulsorily acquired
land have now private buildings
on them as testified by the
plaintiff” there is not
enough evidence on that issue to
enable me come to a conclusion
as to impropriety of such user.
The ambit, circumstances and
conditions of such compulsory
acquisition are not clear before
me.
I am
therefore unable to answer the 1st
question in view of the
evidence. 2nd
question affirmative. 3rd
question, article 20 (6) is
applicable and whether it is so
applicable retrospectively or
otherwise is immaterial, but its
applicability is indeed not
retrospective.
W.
A ATUGUBA
JUSTICE OF
THE SUPREME COURT
ANSAH, JSC:-
I had the
privilege of reading beforehand
the opinion of my learned
brother Dotse JSC about to be
read. I agree with the
conclusion and reasoning reached
by him. I have nothing useful to
add.
J. ANSAH
JUSTICE OF
THE SUPREME COURT
OWUSU (MS),
JSC:-
I have read
before hand the Judgments of my
respected brothers, the
president and Dotse JJSC and I
wholly agree with the conclusion
arrived at by Dotse JSC that
Article 20 (5) and (6) of the
constitution are not applicable
in the instant case pending
before the High Court in respect
of which a referral was made to
this court.
I associate myself with the
reasons which informed his
decision. I would however want
to add a few words of mine own.
The facts and
issues have sufficiently been
set down in the Judgment just
read and I do not deem it
necessary to repeat them.
I share the
view of my brother that Article
20 of the constitution must be
read as a whole to discern from
it whether the framers of the
constitution intended that the
Article should cover
acquisitions made before the
coming into force of the
constitution.
Article 20(1)
reads as follows:
“No property
of any description, or interest
in or right over any property
shall be compulsorily taken
possession of or acquired by the
state unless the following
conditions are satisfied”
– [emphasis mine]
This provision reads into the
future and the conditions set
out in 20 (1) to 20 (6) are to
be met in the future.
20 (5) under
which the plaintiff bases his
claim states thus
“Any property compulsorily taken
possession of or acquired in the
public interest or for a public
purpose shall be used only in
the public interest or for the
public purpose for which it was
acquired!
The land the
subject matter of the
plaintiff’s claim was acquired
under a certificate of title
dated 9th August,
1957 under the Public Lands
(Leasehold) Ordinance (CAP. 138)
of 1950.
This
Ordinance, even though repealed
by the State property and
contracts Act (C. A. 6) it (the
Act) did not change the
character of the land otherwise
known as La Wireless Land
indicating the purpose for which
the land was acquired. If the
whole of Article 20 reads into
the future, then 20 (5) and (6)
cannot have any reference to the
acquisition made in 1957.
The 1992
Constitution frowns upon
retroactive legislation.
Article 107 forbids even
parliament from passing any law
–
“which operates retrospectively
to impose any limitations on, or
to adversely affect the personal
rights and liberties of any
person or to impose a burden,
obligation or liability on any
person except in the case of a
law enacted under articles 178
to 182 of this constitution.”
if Article 20(5) and (6)are
meant to operate
retrospectively, I am sure it
would expressly have stated so.
Under Article 266 of the
constitution which deals with
ownership of land by
Non-Ghanaians, where the law
operates retrospectively, it is
so expressly stated.
Art. 266 (1) states that –
“No interest in, or right over,
any land in Ghana shall be
created which vests in a person
who is not a citizen of Ghana a
freehold interest in any land in
Ghana.”
266 (3) goes on to state that –
“Where, on the twenty-second day
of August 1969, any person not
being a citizen of Ghana had a
freehold interest in or right
over any land in Ghana, that
interest or right shall be
deemed to be a leasehold
interest for a period of fifty
years at a peppercorn rent
commencing fro the twenty-second
day of August 1969, and the
freehold reversionary interest
in any such land shall vest in
the president on behalf of, and
in trust for, the people of
Ghana.”
In the case of a leasehold Art.
266 (4) stated that –
“No interest in, or right over,
any land in Ghana shall be
created which vests in a person
who is not a citizen of Ghana a
lease hold for a term of more
than fifty years at any one
time.”
266(5) continues that –
“where on the twenty-second day
of August 1969 any person not
being a citizen of Ghana had a
leasehold interest in, or right
over, any land in Ghana for an
unexpired period of more than
fifty years, that interest in,
or right over, any such land
shall be deemed to be an
interest or right subsisting for
a period of fifty years
commencing from the
twenty-second day of August
1969.”
Counsel for the plaintiff
quoting from the definition of
“Retrospective legislation”
submits that from the
definition, the application of
the provisions of Article 20 (5)
and (6) of the constitution
cannot amount to retrospective
application to the acquisition
of the La Wireless Land.
The definition covers a whole
range of situations and is as
follows:
“A law which looks backward or
contemplates the past; one which
is made to affect acts or facts
occurring, or rights accruing,
before it came into force.
Every statute which takes away
or impairs vested rights
acquired under existing laws, or
created a new obligation,
imposes a new duty, or attaches
a new disability in respect to
transactions or considerations
already past - - -”.
Clearly, if Article 20 (5) and
(6) are made applicable to the
plaintiff’s case, the law will
be looking backwards to affect
acts or facts occurring before
it came into force.
Simply, in dictionary of Law by
L. B. Curzon, retrospective
Legislation is defined as “Laws
which, expressly or by
implication, operate so as to
affect acts done prior to their
having been passed.”
Counsel’s submission therefore
that application of those
provisions to his claim before
the High Court cannot amount to
retrospective application is
untenable.
I have had a look at the case of
ELLIS VRS ATTORNEY-GENERAL
[2000] SCGLR 24 which my brother
has digested in his Judgment and
I am convinced the more that
since the law had been passed
and the plaintiff’s land had
been vested in the Republic
under the law before the coming
into force of the constitution,
which could only be applied
prospectively and not
retrospectively. Articles 20
(5) and (6) have no application
in the instant case.
Having come
to the conclusion that Article
20 (5) of the constitution is
not applicable, issues 2, and 3
require no further
consideration.
R. C. OWUSU (MS)
JUSTICE OF
THE SUPREME COURT
DOTSE, JSC:-
I have been
privy to the ruling just
delivered by my respected
brother and President of this
Court, Atuguba JSC and it is no
longer worthwhile to re-state
the facts which he has
chronicled in detail.
Except as may
be necessary to elucidate the
point being made, I will not
repeat the facts of this case.
Suffice it
that, the facts of this case
admit of no controversy
whatsoever. This is a referral
case from the High Court, Accra
presided over by Ofoe JA sitting
as an additional Judge of the
High Court.
The Plaintiff
in this case, who is the La
Mantse, and President of the La
Traditional Council, on the 3rd
November, 2006, issued a writ
against the defendants in
respect of a piece of land known
as La Wireless which was granted
to the Government of the Gold
Coast, now Ghana by way of a
leasehold under the Public Lands
(Leasehold) Ordinance (CAP 138)
of 1950 for a term of 99 years
and under a certificate of title
dated 9th August,
1957.
In that writ,
the Plaintiff sought a
declaration that under clauses 5
and 6 of article 20 of the
Constitution 1992
“the land compulsorily
acquired under certificate of
title dated 9th
August, 1957 had ceased
to be used as a wireless station
for which it was
acquired”
and that the
Plaintiff as the original owners
of the land is entitled to be
given the first option to
reacquire the land.
The plaintiff
sought a further declaration
that any development of the land
other than for the purpose for
which it was acquired is
unconstitutional and therefore
the Defendant ought to be
restrained from using the land
other than for the purpose for
which it was acquired.
From the
records before this court,
reference the statement of case
filed by the parties, as well as
the judgment of the trial court,
which is attached and is dated,
11th day of July,
2008, the firm impression is
given that the trial High Court
had given judgment in the matter
before making the reference.
PROOF OF
DELIVERY OF JUDGMENT
1.
The judgment of the trial High
Court itself, dated 11/7/2008 is
entitled judgment, and
this also contains the referral.
2. In
the detailed statement of case
filed by learned counsel for the
plaintiff Mr. William Addo,
pursuant to a court order dated
17th day of June,
2009 it is stated in
paragraph 1 (one) thereof as
follows:
“On
the 11th day of July,
2008 the High Court, Accra
presided
over
by Justice Ofoe JA
gave judgment on the facts in
favour of the
plaintiff herein and referred to
this honourable court for
interpretation, the scope and
applicability of article 20 (5)
& (6)
of 1992 Constitution of Ghana to
the land popularly
known as the “wireless
Station land” acquired under a
certificate
of Title dated 9th
August, 1957 pursuant to the
Public lands
(leasehold)
Ordinance, 1950 chapter 138 of
the Laws of the Cold
Coast.
3. In the
statement of case filed on
behalf of the defendant pursuant
to
the order of this court dated
17/6/2009 on the 12th
of January,
2010 this is what is contained
in the second paragraph on page
2 of
the said statement.
“The case was
tried by the High Court presided
over by
Mr.
Justice Victor Ofoe who
delivered judgment on 11th
July
2008. The
learned Judge found that by the
certificate of
Title, the land was acquired for
a wireless station and
he stated further that the
evidence is clear that the
developments on the land by the
various developers on the
authority of Ghana at 50
Secretariat are not in
conformity
with the purpose for which the
land was acquired. He also
found
that compensation had not been
paid in respect of the
acquisition.”
I have
decided to refer to these
quotations in order to establish
beyond any shadow of doubt that,
the learned trial Judge actually
delivered judgment in the case
and therefore clearly
overstepped his jurisdiction as
is stated in article 130 (2) of
the Constitution 1992.
That being
the situation, it is important
to examine what the duty of a
trial Judge is whenever a
referral is made under article
130 (2) of the Constitution
1992. This examination no doubt
will also consider the relevant
rules of court made in the
Supreme Court Rules, 1996 C. I.
16 to regulate and control
referrals by Courts lower to
this court to the Supreme Court.
On the 11th
day of July 2008, whilst
delivering judgment in Suit No.
AL 18/2007 intituled Nii
Kpobi Tettey Tsuru II –
Plaintiff vrs The Attorney
General - Defendant the
learned trial Judge, Ofoe JA,
referred the following issues to
the Supreme Court for
determination. He stated thus:
“The change of user of the
land as I have found in the
matter on
interpretation of the
Constitution can it be a change
of use for public
interest or for the purpose for
which it was acquired on
interpretation of
article 20(5) of the 1992
Constitution?
2. If the user is not
for public interest or for the
purpose for which
it was
acquired whether article 20 is
applicable as to give the
La Stool the option to reacquire
the land.
3. Whether granting the
La Stool the option to reacquire
the land
will
be retrospective
application of the said article
20(6) and
whether
the said article can be applied
retrospectively.
I
will refer these for the Supreme
Court interpretation – article
130 (2) of the 1992
Constitution applied”.
These were
the issues that the learned
trial Judge referred to this
court for interpretation.
It is
provided in article 130 (2) of
the Constitution 1992 as
follows:
“Where an issue that relates to
a matter or question referred to
in clause (1) of this article
arises in any proceedings in a
court other than the
Supreme Court, that court
shall stay the proceedings and
refer the question of
law involved to the Supreme
Court for determination,
and the court in which the
question arose shall dispose
of the case in
accordance with the decision of
the Supreme Court”.
This
therefore means that, as soon as
the issue of Constitutional
interpretation arises, in any
Court other than the Supreme
Court, that Court shall stay
further proceedings in the case
and refer the question of
interpretation to the Supreme
Court.
The trial
Court, or the other Court as the
case may be shall finally
dispose of the case in terms of
the interpretation that the
Supreme Court will give in the
matter.
In the
instant case, the learned trial
Judge proceeded with the hearing
of the case until judgment when
he decided to refer the
Constitutional matter for
interpretation whilst reserving
to himself the determination of
issues which he found not to be
constitutional matters.
In my mind,
what the learned trial Judge
should have done was to have
simply made a referral in terms
of the Supreme Court Rules,
1996, C. I. 16 rule 67 which
sets out in detail, the
modalities for referral of cases
by courts below the Supreme
Court to this Court.
Out of
abundance of caution, let me
refer in extenso to the
provisions of this rule:
“67 (1) A reference to the Court
for the determination of a
question, a
cause or matter pursuant to a
provision of the Constitution or
of any
other law shall be made by way
of a case stated by the Court
below, or by the
person or authority making the
reference.
2. A case stated under
sub-rule (1) shall contain
a. a summary of the
action or matter before the
court below or
the
person or the authority from
which or from whom the
reference is made.
b. the issue involved in
the matter before the court
below or
that person or
authority from which or from
whom the
reference is made.
c. the matter or
question referred for
determination by the
court.
d. the findings of fact
relevant to the matter or
question
referred to the
court.
e. the arguments of
Counsel
f. the ruling or
decision of the court below or
of that person or
authority; and
g. a statement by the
court below that the
determination
of the
Constitutional matter or
question is necessary to the
determination of the
action, where the reference is
made under clause (2) of article
130 of the Constitution.
3. Each party may,
with the consent of the Court
below or that
person or authority
and shall, when so ordered by
the court,
state a case or jointly state
a case containing arguments of
law
and a list of the decided cases
and the Statute law in support
of the
case.
4. The Court may call
for the record of the
proceedings before the
Court below or before the
person or authority making
the
reference.
5. Rule 53 shall, with
the necessary modifications,
apply to a
reference before the
Court.
The above
provisions therefore set out the
detailed guidelines which should
regulate courts below the
Supreme Court in what they are
supposed to be doing whenever
they refer constitutional
matters to the Supreme Court for
interpretation.
In the
instant case for example, where
the learned trial Judge himself
stated that he was making the
referral pursuant to article 130
(2) of the Constitution 1992, it
was incumbent upon the learned
trial Judge to have stayed all
further proceedings in the
matter to await the
interpretation that the Supreme
Court will give in the matter.
Besides, it is also important to
note that the Supreme Court
Rules 1996 C.I. 16 Rule 67 sub
rule 2 (g) specifically mandates
the referral court to
specifically make it clear that
the determination of the
constitutional matter or
question is necessary to the
determination of the action
before the court.
Where
therefore, as in the instant
case, the learned trial Judge
proceeded to deliver what he
termed a judgment in which he
made pronouncements and
determinations which are clearly
prejudicial to the outcome of
the case before him, such a
conduct is inconsistent with the
provisions of Rule 67 (2) (g)
of C.I. 16, the Supreme Court
Rules. It is therefore to be
noted by all courts below the
Supreme Court, that whenever it
appears to them that a case or
matter before them depends upon
a constitutional interpretation
or requires constitutional
interpretation to determine the
issues raised in the case, and a
referral is made pursuant to
article 130 (2) of the
Constitution 1992, such a
referral must be consistent with
Rule 67 of the Supreme Court
Rules C. I. 16 already referred
to supra.
Similar
circumstances and facts arose in
the case of Republic vrs
High Court (Fast Track Division)
Accra, Ex-parte Electoral
Commission (Mettle-Nunoo &
others, Interested Parties)
[2005 – 2006] SCGLR 514.
In this case,
the plaintiff in the High Court
therein, Interested Parties
herein in the Supreme Court,
sued the Electoral Commission in
the High Court, (Fast Track
Division) Accra seeking three
declarations, which were all
declarations in respect of
Presidential Elections that were
held in Ghana on 7th
December, 2004.
At the
hearing of the application for
directions in the trial court,
the defendant (Electoral
Commission) specifically prayed
the Court to refer to the
Supreme Court for its
interpretative opinion under
article 130 (2) of the
Constitution 1992 the issues
which had been set down by the
court for trial. But the trial
Judge, Ofoe J, as he then was,
declined the application for
referral until he was certain in
his mind “what facts there are
to the case” to enable him
“formulate the referral
accordingly. The learned trial
Judge also explained that “where
there would be need for a
referral, it would be determined
during the course of the trial”
The Electoral
Commission, the defendants
therein therefore brought an
application in the Supreme
court, in the exercise of its
supervisory jurisdiction under
article 132 of the Constitution
for an:
(i) an order staying
further proceedings of the suit
involving the
parties
pending before Ofoe J, and
(ii) a referral to the
Supreme Court for the
determination of the issues
set down in the
said pending action.
After
arguments in the Supreme Court,
Counsel for the Interested
Parties then made an oral
application to decouple the
statutory provisions from the
constitutional provisions, such
that the suit would no longer be
cognizable before the Supreme
Court for any constitutional
interpretation.
In a majority
decision, the Supreme Court laid
down basic guidelines which
should serve as a roadmap for
Judges or courts below the
Supreme Court to follow when
making referrals to the Supreme
Court pursuant to article 130
(2) of the constitution. The
Supreme Court held as follows:-
i.
(3) “The trial Judge, in the
exercise of his discretion, was
not bound to
comply with the request to refer
a constitutional issue to the
Supreme Court for
determination under article 130
(2) of the Constitution.
However, the
discretion was not limitless,
boundless, or was it to be
exercised in a
petulant fashion. The discretion
must be exercised within
reasonable bounds, i.e. it must
be exercised judicially, not
capriciously or
arbitrarily and also in a timely
manner, having regard to the
nature of the case and the
reliefs sought, the issues
arising for referral, even more
crucially, its expected outcome
on the pending action, bearing
in mind that all courts had a
duty to ensure the
efficacious and expeditious
disposal of all cases. If at the
stage of the referral
application, it was
plain that, the taking of
evidence was not at all
necessary, and that the
determination of the
issues might dispose of the case
one way or the other,
i.e. bring the entire
hearing or proceedings to an
end, then, the taking of
evidence for whatever purposes
would amount to an improper
exercise of discretion.
Consequently, whenever there
were no disputed facts
to be resolved, for either a
determination of whether or not
a genuine question for
interpretation had arisen, or
for a formulation of the
issues for referral, the
referral ought to be made
promptly and without any delay.
In the instant case, the action
pending in the High
Court, did not raise any genuine
or serious disputed facts. In
the circumstances, the
trial Judge had erred in
refusing the request for a
referral to the Supreme Court.
The reasons given by the trial
Judge, namely, that he
was not ready to make a referral
until he had taken more
evidence and made
more findings of facts, were
improper”.
ii. (4)
“The question as to whether on
the facts of any given case a
real or genuine interpretative
issue for referral had arisen
for the Supreme Court’s
opinion, would depend on, inter
alia, the nature of
the pending action, the
reliefs sought and the
pleadings. A
further criterion was whether or
not the action was one which had
been neatly
clothed as a case involving
the exercise of the original
jurisdiction of the
Supreme Court. In the instant
case, at the centre of the
whole controversy, lay
the disputed interpretation of
important constitutional
provisions, namely articles 45,
63 (9) and 64 (1) of the
1992 Constitution;
section 2 of the Electoral
Commission Act, 1993 (Act 451);
and the Public Elections
Regulations, 1996 (CI 15). The
case was not in substance,
an election petition as
contended by Counsel for the
applicant. Consequently, the
applicant had made a genuine
case which called for the
interpretative opinion of the
Supreme Court under
article 130 (2) of the 1992
Constitution. Republic vrs
Special Tribunal; Ex parte
Akosah [1980] GLR 592 at 604-605,
CA; Edusei vrs
Attorney-General [1996-97] SCGLR
1; Aduamoa II vrs Adu
Twum [200] SCGLR 165
at 171; and Bimpong-Buta vrs
General Legal Council
[2003-2004]2 SCGLR 1200 at 1253
cited.
See also the
case of Republic vrs High
Court, Fast Track Division
Accra, Ex-parte (CHRAJ) Dr.
Richard Anane, Interested Party,
[2007-2008] SCGLR 213, holding 1
From the
above expositions of the law on
the issue of referral, it is
clear that just as in other
cases where courts have
discretion, that discretion in
the instant case was not
limitless, boundless and most
important of all it must be
exercised in a timely manner,
having regard to the nature of
the case and the reliefs that
have been sought.
For example,
if as in the instant case, from
an ordinary reading and
appreciation of the plaintiffs
claims, it was clear that the
taking of evidence was not at
all necessary, and the
determination of the issues
might dispose of the suit one
way or the other, the taking of
evidence for whatever reason
would amount to an improper
exercise of discretion and
usurpation of the jurisdiction
of the Supreme Court in a
reckless manner.
This is
because, a cursory glance at the
core relief claimed by the
plaintiff herein, to wit,
“a declaration that under
clauses 5 and 6 of article 20
of the Constitution
1992, the land compulsorily
acquired under a certificate of
title dated 9th
August, 1957 had ceased to be
used as a wireless station for
which it was acquired”
should have
been apparent to the learned
trial judge that this was a case
which called for constitutional
interpretation, pure and simple.
In that regard therefore, the
High Court did not have
jurisdiction and the court ought
to have promptly stayed
proceedings and made the
referral to the Supreme Court to
enable the trial court get
guidance from the Supreme Court
for the determination of the
case before it in line with the
decision of the Supreme Court,
referred to supra in the
Ex-parte Electoral Commission
case.
In line with
article 130 (2) of the
Constitution 1992 and Rule 67 of
the Supreme Court Rules, 1996
C.I.16, the following are the
prescribed and recommended road
map that a court making a
referral to the Supreme Court
should follow:-
i.
Summary of the matter or action
before the Court.
ii.
The issues involved before the
court.
iii.
The matter or question referred
to the Supreme Court for
determination.
iv.
Findings of fact if any relevant
to the matter or question
referred to the Supreme
Court. It should be noted that,
since it is the lower court that
has the pleadings of the
case, and other documentary
evidence if any had been
tendered the summary and
findings of fact will be
prepared from the said
pleadings and evidence led so
far.
v.
Arguments of Counsel in the
matter before the referral
court.
vi.
Statement or narrative by the
court below on how the
determination of the
constitutional question by the
Supreme Court will determine the
decision before the court
below pursuant to clause (2) of
article 130 of the Constitution.
If the
procedure set out above is
followed, the temptation of the
court below to make
determinations of some of the
issues raised before them or
pretend to be the Supreme Court
itself will be prevented.
The duty cast
on the courts below in referrals
pursuant to article 130 (2) of
the Constitution 1992 admits of
some discretion on their part.
Aside that
limited discretion, referral
courts must do the following:
1. In
the first place, they must stop
all further proceedings and
refer the case to the
Supreme Court and await the
determination from the Supreme
Court to guide them in their
final decision. This they must
carry out once they are
satisfied at first instance that
a constitutional
interpretation arises. The
referral must be contemporaneous
with the realization
that a constitutional
interpretation has arisen.
2.
Secondly, the referral must
comply with rule 67 of the
Supreme Court Rules,
1996 C.I. 16.
CONSTITUTIONAL AND LEGISLATIVE
PROVISIONS ON REFERRALS TO
SUPREME COURT
I have
observed that, whilst article
130 (2) of the Constitution 1992
provides that only courts can
make referrals to the Supreme
Court for interpretation of
constitutional issues that arise
before them for guidance, Rule
67 of the Supreme Court Rules,
1996, C. I. 16 in addition to
courts, mentions the following
as also capable of making
referrals of constitutional
issues for interpretation to the
Supreme Court for guidance when
they arise before them. These
are:
i. a person, or
ii. authority
This would
seem to connote the fact that an
individual person or authority
of whatever description can on
his or their own make referrals
to the Supreme Court for
interpretation.
However,
article 11 of the Constitution
1992, states that the
Constitution shall be the basic
law of the land and this is what
is known in jurisprudence as the
GRUNDNORM. The Supreme Court
Rules C. I. 16 which is what is
known generally as subsidiary
legislation is the third tier on
the sources of law in Ghana and
is captured in article 11 (c) of
the Constitution 1992.
Subsidiary
legislations are therefore
subordinate to constitutional
provisions and substantive Acts
of Parliament. It must at this
stage be noted that the
Constitution
1992 actually entrenches the
principle of supremacy of the
Constitution.
In that
respect, article 1 (2) of the
Constitution 1992 provides as
follows:-
“This Constitution shall be
the Supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall to
the extent of the
inconsistency be void”
This
therefore means that whenever
there is an inconsistency
between article 130 (2) of the
Constitution and a subsidiary
legislation like Rule 67 (1) of
C. I. 16, the constitutional
provision shall prevail.
And for the
avoidance of doubts, it is
hereby stated that court as
stated in article 130 (2) of the
constitution shall take the
meaning ascribed to the
definition of a court in article
295 of the Constitution which
provides as follows:
“Court means a court of
competent jurisdiction
established by or under
the authority of this
Constitution and includes a
tribunal”.
The following
are the courts that have been
established under the
Constitution 1992 and the Court
Acts. These are:
1.
Supreme
Court
- Article 126 (1) (a)
(i)
2.
Court of
Appeal
- Article 126 (1) (a)
(ii)
3.
High
Court
- Article 126 (1) (a)
(iii)
4.
Regional Tribunal
- Article 126 (1) (a)
(iii)
5.
Lower Courts such as Circuit
-
Article 126 (2) (i) and the
Courts and other
adjudicating
Courts Act 1993, Act 459
Tribunals
and the Courts Amendment
Act 2002, Act 620
It is
therefore to be noted that, only
courts properly so called and
duly established under the
Constitution 1992 or an Act of
Parliament can qualify to make
referrals to the Supreme Court.
Since the
referral in this case was made
by a duly recognised court, i.e.
the High Court, the issue raised
above really does not arise in
the instant case.
DETERMINATION
OF REFERRAL ISSUES
This now
brings me to the determination
of the core issues that have
been raised in this referral
already referred to supra.
In order to
make the referral really
meaningful and also relevant, to
the circumstances of this case,
the issues for determination
will be re-formulated as
follows”
1.
Whether the land acquired under
a certificate of title dated 9th
August, 1957 (known as
La Wireless Land) under the
Public Lands (Leasehold)
Ordinance (CAP 138) of
1950 is affected by article 20
(5) & (6) of the
Constitution 1992.
2.
Whether or not if the State is
unable to use the La Wireless
land for the purpose for
which it was acquired the
plaintiff herein has to be given
the 1st option
to re-acquire it by virtue of
article 20 (5) and (6) of the
Constitution 1992.
3.
Whether or not the said
constitutional provisions can
have retrospective effect.
For purposes
of clarity, I will like to argue
issueS 1 and 3 first. I have
persued the erudite and well
reasoned statement of case of
the plaintiff in this case just
as I have done that of the
statement of case filed by the
defendants.
In paragraph
64 of the statement of case of
the plaintiff, learned counsel
for the plaintiff brilliantly
captured the undisputed facts in
this case.
This is that,
the land in dispute was acquired
as a leasehold by the then
colonial Government for use as a
wireless station. That at the
time of the institution of the
action the land was no longer
being used as a wireless
station.
It was also
contended that none of the
buildings developed on the land
was used either to accommodate
the heads of state and their
delegations attending Ghana’s 50th
anniversary of attainment of
independence or the African
Union conference in July of
2007. Finally it was not denied
that the buildings on the land
have been offered for sale to
the general public.
This being a
leasehold, it meant that the
rights of the lessor in the said
land, which in this case is the
plaintiff (stool) are not
extinguished completely upon the
grant of the lease. The legal
regime that governs leases
therefore have to apply in this
case.
It is
therefore the resolution of
these constitutional issues that
is paramount.
1.
Whether the land acquired under
a certificate of title dated 9th
August, 1957 (known as La
Wireless Land) under the Public
Lands (Leasehold) ordinance (CAP
138) of 1950 is affected by
article 20 (5) & (6) of the
Constitution 1992
In order to
properly assess and evaluate the
constitutional significance of
the above issues, it is
necessary to put into context,
the entire provisions of article
20 of the Constitution 1992. For
it is by such an exercise that
the significance of the clauses
(5) and (6) of article 20
thereof of the Constitution can
be understood and put in proper
context since I believe the
entire article must be read
together. This is necessary
because the philosophical
underpinnings of the entire
provisions of article 20 of the
Constitution have to be read
together such that the meaning
can be ascertained holistically
without isolating certain
clauses. Any attempt to isolate
some provisions from the rest
will make those clauses lose
their actual meaning.
20 (1)
“No property of any
description, or interest in or
right over any
property shall be
compulsorily taken possession of
or acquired by
the State unless the following
conditions are satisfied:-
a. the
taking of possession or
acquisition is necessary in the
interest of defence,
public safety, public order,
public
morality, public health, town
and country planning or the
development or utilization of
property in such a manner as
to promote the public benefit;
and
b. the necessity for
the acquisition is clearly
stated and is such
as to provide
reasonable justification for
causing any
hardship that may result to any
person who has an interest
in or right over the property.
(2) Compulsory
acquisition of property by the
State shall only be
made under a law
which makes provision for-
a. the prompt payment of
fair and adequate compensation;
and
b. a right of access to
the High Court by any person who
has an
interest in or right
over the property whether direct
or on
appeal from any other authority
for the determination of his
interest or right and the amount
of compensation to which
he is entitled.
(3) Where a compulsory
acquisition or possession of
land effected by
the
State in accordance with clause
(1) of this article involves
displacement of any inhabitants,
the State shall resettle the
displaced inhabitants on
suitable alternative land with
due regard for
their economic well-being and
social and cultural values.
(4) Nothing in
this article shall be construed
as affecting the
operation of any
general law so far as it
provides for the taking of
possession or acquisition of
property –
a. by way of vesting or
administration of trust
property,
enemy property or
the property of persons adjudged
or
otherwise declared bankrupt or
insolvent, persons of
unsound mind, deceased persons
or bodies corporate or
unincorporated in the course of
being wound up; or
b. in the
execution of a judgment or order
of a court; or
c. “by reason
of its being in a dangerous
state or injurious to
the health of human
beings, animals or plants; or
d. in
consequence of any law with
respect to the limitation of
actions; or
e. for so
long only as may be necessary
for the purpose of any
examination,
investigation, trial or inquiry;
or
f. for so
long as may be necessary for the
carrying out of work
on any land for the
purpose of the provision of
public
facilities or utilities, except
that where any damage results
from any such work there shall
be paid appropriate
compensation.
(5) Any
property compulsorily taken
possession of or acquired
in the pubic
interest or for a public purpose
shall be used
only in the public interest or
the public purpose for which it
was acquired.
(6) Where the
property is not used in the
public interest or for
the purpose for
which it was acquired, the owner
of the
property immediately before the
compulsory acquisition,
shall be given the first option
for acquiring the property and
shall, on such re-acquisition
refund the whole or part of the
compensation paid to him as
provided for by law or such
other amount as is commensurate
with the value of the
property at the time
of the re-acquisition”.
Considered as
a whole, it becomes very clear
that the said article 20 (1) has
a clear futuristic intention and
not concerned with things of the
past.
For example,
if as is the case, article 20
(1) of the Constitution provides
that no property of any
description, or interest over
any type of property shall be
compulsorily taken possession of
by the state unless the
conditions stated therein in
sub-clauses (a) and (b) are
complied with. This is a clear
indication of the fact that the
commencement provisions of the
said article 20 refer to a state
of things yet to happen after
the coming into force of the
Constitution. The simple but
plain meaning then is that, if
the State of Ghana, represented
by the Government of the day, is
desirous of acquiring or taking
compulsory possession of any
property of whatever
description, then the State can
do so only if the conditions
stated therein are satisfied.
These
conditions have been carefully
spelt out in sub clause (1) (a)
as follows:
i. in the interest of
defence
ii. public safety
iii. public order
iv. public morality
v. public health
vi. for town and country
planning
vii. for utilization of
property in such a manner as to
promote public
benefit.
The rationale
for the said provisions are
quite clear. This is because, in
the ensuing provisions of
article 20 (1) up to article 20
(4) of the Constitution 1992,
very elaborate conditions had
been stated to justify why only
properties needed for
acquisition in the areas
mentioned could be compulsorily
taken possession of, but before
you do that, certain conditions
or pre-conditions must be
fulfilled to minimize the
negative effect on the people
whose interest in the land will
be affected by such a compulsory
acquisition of the property.
For example,
the provisions recognise the
prompt, fair and adequate
payment of compensation to any
person, whose property shall be
compulsorily acquired and the
right of such a person to go to
the High Court for the
vindication of his or her rights
if he or she feels that the
conditions precedent to a
compulsory acquisition have not
been met. Furthermore, if pieces
of land had been acquired or
taken possession of compulsorily
in the past as in the instant
case under a different
statutory regime, and for
certain reasons prompt or
adequate compensation had not
been paid, it will be wrongful,
illegal, illogical and
unconstitutional to expect
provisions in article 20 (1) to
regulate the transaction.
Article 20
(3) of the Constitution referred
to supra also mentions the need
for the State to re-settle any
displaced inhabitants on the
acquired property having regard
to their economic, social and
cultural values.
What this
means is that, if a frontage of
a beach land for example has
been compulsorily acquired, and
the people there are fishermen
and fishmongers, in re-settling
the original owners of the
property the State shall
consider their economic, social
and cultural values.
In this
respect, it will not be out of
place for the State to ensure
that the said displaced people
are resettled on alternative
beach land to ensure that their
economic, social and cultural
lives are not adversely affected
as fishermen etc.
In similar
circumstances, where the
original settlers of a land that
has been compulsorily taken
possession of, or has been
slated for compulsory possession
has communities who are
dominantly farmers, traders or
artisans of whatever
description, steps must be taken
to ensure that in resettling
them on alternative plots of
land, their economic activities
are taken into consideration to
ensure that they are not worse
of than they were previously
before the acquisition.
As a matter
of fact, if the entire
provisions of article 20 of the
Constitution 1992 are not
construed with this
philosophical understanding in
mind, serious dislocations will
result in the land use policy in
Ghana. This is because over the
years, various Governments of
the State of Ghana have come out
with different land use polices
which might deviate slightly or
substantially from the original
purpose for which the land was
acquired and put to use e.g.
demolition of Makola market and
it present use as a car park.
This need for variation is
always necessary because of the
changing roles that Governments
play in the socio, economic and
cultural affairs and activities
of its citizens.
Thus, even
though a land might have been
acquired solely as a residential
facility, the need might have
arisen for the same facility to
be used for the pubic either as
an office for a state
institution or still as a
facility for public purpose. In
such situations it is incumbent
upon the court to determine
whether the said use is
ancillary to the original
purpose for which the property
was acquired. See case of
Nii Nikoi Olai Amontia
(substituted by Nii Tafo Amon
II) vrs Managing Director Ghana
Telecom Civil Appeal H/33/04
dated 11/2/2005 Court of Appeal,
reported in [2006] vol. 2.
G.M.L.R. 69.
In the
instant case, it is my
considered opinion that, the La
Wireless Land, being property
already covered by a valid and
subsisting Leasehold Agreement
is not the type of properties
whose compulsory acquisition has
been envisaged under the entire
provisions of article 20 of the
Constitution 1992.
As already,
explained supra, this is because
it is very apparent that the
said provisions are intended to
be applicable in respect of
compulsory possession or
acquisitions of properties done
after the coming into force of
the Constitution 1992. It is
under such circumstances that
the elaborate procedures
outlined in article 20 with
particular reference to clauses
(5) and (6) thereof come into
operation in reference to post 7th
January, 1993 compulsory
acquisitions of property.
Under these
circumstances, I am of the
opinion that the land acquired
under a certificate of title
dated 9th August,
1957 and known as La Wireless
Lands under the Public Lands
(Leasehold) Ordinance CAP 138 of
1950 is not affected by article
20 sub-clauses (5) and (6) of
the Constitution 1992.
I have been
emboldened in the decision I
have taken by the Ruling of the
Supreme Court in the case of
Ellis vrs Attorney General
[2000] SCGLR 24.
This was a
case where the plaintiff’s
invoked the original
jurisdiction of the Supreme
Court for a declaration under
article 2 of the Constitution,
1992 that the Hemang Lands
(Acquisition and Compensation)
Law 1992 (PNDCL 294) was
inconsistent with and in
contravention of articles 20 and
107 of the Constitution and
therefore a nullity. It was held
upholding the preliminary
objection as follows:
1.
“The Court could not declare the
Hemang Lands (Acquisition and
Compensation) Law, 1992 (PNDCL
294) null and void under the
1992 Constitution, because the
law had been passed and the
plaintiffs’ land had been
acquired and vested in the
Republic under the law before
the coming into force on 7th
January, 1993 of the
Constitution, which could
only be applied prospectively
and not retrospectively.
Fattal vrs Minister for
Internal Affairs [1981] GLR 104
SC applied”
My respected
brother Atuguba JSC, who is the
President of this panel in his
opinion in the Ellis vrs
Attorney-General case
referred to supra put the matter
beyond doubt in these forceful
terms:-
“PNDCL 294
relates to matters concluded by
it both in terms of the vesting
of the plaintiffs’ lands in the
PNDC on behalf of the Republic
and as to the quantum of
compensation for the same.
As these
matters do not fall to be done
on or after the coming into
force of the 1992 Constitution,
that Law, even if it be regarded
as an operative existing law
within the meaning of article 11
(5) is incapable of infringing
the 1992 Constitution.”
Continuing
further, Atuguba JSC ended the
matter as follows:-
“The
pertinent question therefore is
whether PNDCL 294, which
expropriated the plaintiffs’
property requires anything to be
done which can affect the period
commencing from 7 January 1993,
when the 1992 Constitution came
into force, in a certain manner,
whereas a provision of the
Constitution requires that very
thing to be done as from 7
January 1993 in a different
manner. The answer is clearly
No.”
The principle
of retrospectivity of past and
completed acts during past
regimes and their relationship
to the Constitution 1992 which
was stated in Ellis vrs
Attorney General referred to
supra, has been applied in the
following cases:-
1.
Baiden vrs Graphic [2005-2006]
SCGLR 154, per Atuguba JSC at
160, holding 4
2.
Ghana Commercial Bank vrs CHRAJ
[2003-2004] SCGLR 91 at 119 per
Atuguba JSC where he stated
that:
“It
has constantly been held by the
courts in respect of the
Constitutions of
Ghana, from 1979 up to the
present one, that they
not are
retrospective, relying on cases
like Awoonor-Williams vrs
Gbedemah 1969 2 G & G, 403,
Benneh vrs Republic [1974] 2 GLR
47 CA (full bench), Sam vrs
Attorney General [2000] SCGLR
and Ellis vrs Attorney General
already referred to supra”
The above
then is the evidence which
should embolden this court to
reject the retrospective
application of article 20 to
acquisitions made prior to the
coming into force of the
Constitution.
Since no good
reason has been urged on this
Court why it should depart from
its previous decision on the
matter, I am in line with the
provisions in article 129 (3)
not departing from the previous
decision of the Supreme Court.
Acquisitions of interest in land
done prior to 7/1/1993 are not
affected by article 20 of the
Constitution.
In coming to
the above conclusion, I have
been guided by the locus
classicus decision of Sowah JA,
as he then was in the celebrated
case of Tufuor vrs
Attorney General [1980]GLR 637
Court of Appeal,
sitting as the Supreme Court,
which case was followed by the
Supreme Court in the case of
Asare vrs Attorney General
[2003 – 2004] 2 SCGLR 823, at
825-826 where it is
stated as follows:
“modern judicial technique
had tended away from simple
liberalism towards a purposive
approach to interpretation which
was more likely to
achieve the ends of justice. It
was a flexible approach which
would enable the Judge to
determine the meaning of a
provision, taking into
account the actual text of the
provision and the broader
legislative underpinnings and
purpose of the text. In
applying the purposive
approach, a court
might give an ordinary or
artificial meaning of words in a
statute or Constitution,
depending upon its perception of
the legislative
purpose of the provision.
Consequently, the court would
give purposive interpretation to
article 60 (1)…”
Again in the
CEPS vrs N. L. C (Public
Services Workers Union of TUC
Interested Party) [2009] SCGLR
531, at 568-569, I
stated the following in the
majority decision:-
“What should be noted is that
national Constitutions are made
by people to control,
regulate and guide the community
to achieve goals and objectives.
The modern view to
constitutional interpretation
seems to dwell on
purposive approach.”
It is the
above constitutional principles
of interpretation which guided
me to arrive at the conclusion
that article 20 (5) and (6) of
the Constitution 1992 are
inapplicable to interprete
acquisitions of land or of
property under legal and or
constitutional regimes prior to
the coming into force of the
Constitution 1992 on 7th
January, 1993, such as the La
Wireless Land.
This now
brings me to a determination of
issue 3 supra.
3.
Whether or not the said
constitutional provisions can
have retrospective
effect.
Retroactivity
of article 20 (5) and (6)
Article 107
(b) of the Constitution 1992
provides as follows:-
“Parliament shall have no power
to pass any law
(b) Which operates
retrospectively to impose any
limitations on or to
adversely affect the personal
rights and liberties of any
person or to impose a
burden obligation or liability
on any person except in the
case of a law under
articles 178 to 182 of this
Constitution.”
The meaning
of the above is that, the
Constitution 1992 as a basic law
of the state, frowns upon
retroactive legislation. In that
respect therefore it is to be
noted that, the constitutional
provisions themselves, such as
those contained in article 20,
sub-clauses (5) and (6) cannot
by any rule of interpretation be
deemed to operate
retrospectively.
This is
because, the state and possibly
individuals and institutions
might have acquired vested
interests in the parcels of land
that had been compulsorily taken
possession of under different
legislative regimes before the
coming into force of the
Constitution and its provisions
as contained in article 20 (5)
and (6).
It is also a
fact that the Public Lands
(Leasehold) Ordinance (CAP 138)
of 1950 has since long been
repealed. What should be noted
is that, despite its repeal by
the State Property and Contracts
Act, 1960 (C.A.6) and to some
extent, Conveyancing Act, 1973,
NRCD 173 the rights, interests,
etc. that have accrued to
persons or has been vested in
the State and those individuals
and entities who have had the
use of the land or have been on
the land for all these years
have gotten rights which cannot
be extinguished save by
operation of the leasehold
agreement as is legally
enforceable under the
constitutional dispensation
provided in the instant case,
what should be noted is that,
since the La Wireless Land had
been taken possession of as a
Leasehold it, means the La Stool
has the reversionary interest,
and it is in the interest of the
Lessee, the defendant herein to
ensure that they do not commit
acts which will make it
difficult for the Lessor to
renew the lease when it expires.
In this
respect therefore, I am unable
to accept the interpretation
learned Counsel for the
plaintiff sought to give
Retrospective Legislation as
defined in the 6th
edition of Blacks Law
Dictionary.
For example,
in this case, it is not denied
that the Leasehold on the La
Wireless land was executed
first in 1948 and varied on 9th
August 1957 for 99 years. Thus,
if rights that have accrued,
since the lease was entered
into, the various public
entities like PWD, Ghana Civil
Aviation Authority, etc. who
have acquired rights and vested
interests should now be faced
with the application of article
20 (5) and (6) supra then no
doubt, such an event connotes
retroactivity and is to be
frowned upon.
In view of
the decision that I have already
given on the applicability of
article 20 (5) and (6) of the
Constitution, 1992, it follows
then that, once the said
articles do not even apply to
the La Wireless Land
Acquisition/Leasehold, the issue
of the said provisions having
retrospective effect has
therefore been effectively
decided. See the Supreme Court
case of Sasu vrs Amua
Sakyi [2003-2004] SCGLR 742 at
778 - 779
This issue
with which I am faced with here
had been adequately addressed by
the court of Appeal speaking
with one voice in the case of
Nii Nikoi Olai Amontia vrs
Managing Director, Ghana
Telecom, [2006] 2 GMLR
at page 102 to 104 where the
court held as follows:-
“However, this court will have
to determine whether Articles 20
(5) and (6) of the
Constitution, 1992 have
unrestricted and unlimited
operations without due regard to
any time frame.
In determining this matter,
sight must not be lost of the
fact that the Constitution is
the basic and supreme law of the
country and any law found
to be inconsistent with any
provision of this Constitution
shall to the extent
of the inconsistency be void,
Article 1 (2) of the
Constitution, 1992.
A
detailed perusal of article 20
(1) and the many clauses therein
of the Constitution, 1992
would leave no one in doubt as
to the scope and time frame
envisaged by the framers of the
Constitution.
This is because, article 20(1)
for example provides as follows:
Our understanding of the above
provision and the conditions
stated therein show
clearly that the Constitutional
provisions cannot be said to
have retrospective effect
to all lands that had been
acquired under the
different regimes of land
acquisition that we have had in
this country.
We are certain in our views that
Article 20 of the Constitution,
1992 only deals with land
acquisitions that are effected
after the 1992
Constitution came into effect,
and this by operation of law is
January 7th , 1993.
Our conviction and resolve is
further buttressed by the
provisions in Article
20(2) of the Constitution which
provide that compulsory
acquisition of property by the
State can only take place under
a legal regime which provides
for prompt payment of fair and
adequate
compensation and a right of
access to the High Court by any
affected person of such
an acquisition.
It must be noted that there have
been several instances of a lot
of acquisition of lands by
the State in the past, for which
compensation has not yet
been paid.
We think we can take Judicial
notice of a seminar that was
recently conducted by the LAND
ADMINISTRATION PROJECT (LAP) of
the Ministry of Lands and
Forestry for the Judiciary. From
this seminar, it became
clear that there are many
instances where there has been
no payment of
compensation whatsoever to the
owners of the land. In some of
these cases, the lands have been
acquired for more than twenty
or thirty years and
completely utilized by the
State.
If the Constitutional provisions
should have retrospective effect
then all such acquisitions
of land by the State under the
past legal regimes
would be unconstitutional. This
state of affairs would not only
create chaos and
confusion in the land
administration sector of the
country but would
lead to anarchy.
Thirdly, it must be noted that
since the Constitution 1992
itself frowns upon and
actually prohibits retrospective
legislation, it is doubtful if
the Constitution itself would
be interpreted to have
retrospective effect.
Such an
interpretation will not only be
reactionary but counter
productive and will
not be in the interest of the
good and orderly
development and administration
of the country.
This court will therefore hold
and rule that Articles 20 (5)
and (6) of the
Constitution, 1992 have no
retrospective effect on
acquisitions of land done
under CAP 134 the Public Lands
Ordinance which is the subject
matter of this appeal.
This court is
not alone in this line of
thinking. Abada J in the case of
Nii Kpobi Tettey Tsuru II
– Plaintiff vrs Ghana Civil
Aviation Authority and 2 others
– Defendants unreported
ruling of the High Court, Accra
dated 7/5/2003 held as follows:
“A careful reading of article
20 of the 1992 Constitution
shows that it is to be a
future guide as to how the state
should proceed in acquiring land
and the conditions that are
specified to be fulfilled before
the state could compulsorily
acquire land.”
We prefer the
logic and rationale behind Abada
J’s ruling in the above case to
the other cases decided by Nana
Gyamera Tawiah especially the
case of Nii Tetteh
Opremreh II Chief of Shiashie –
Plaintiff vrs Attorney General
and Another, High Court, Accra
dated 20/4/1999.”
The combined
effect of the above is that,
article 20 sub-clauses (5) and
(6) definitely then cannot have
any retrospective application to
the coming into force of the
Constitution 1992 on 7th
January 1993”.
Learned
Counsel for the plaintiff in his
well thoughout and reasoned
statement of case referred this
court to the opinion of Prof.
Ocran Jsc of blessed memory in
the case of Memuna Moudy &
Others vrs Antwi [2003-2004]
SCGLR 967.
With the
greatest respect, the said
opinion of Prof. Ocran JSc is
not the ratio of the case. This
is because the issues involved
in the above case were:
1.
Whether after the State has
compulsorily acquired land under
relevant legislation, any
person or entity may
nevertheless acquire title
subsequently in that same piece
of land through what is in
effect a prescription namely,
by adverse possession for twelve
years or more, pursuant
to the Limitation Decree 1972
NRCD 54.
2.
Whether on the facts of the said
case, the plaintiffs have
succeeded in establishing
such adverse possession, and
3.
Whether a person who enters on
land, as a result of and, on the
basis of an agreement with a
person, in effect, asserts title
through the purported
prescription rights referred to
above, is to be held to have
forfeited his or her
rights, if he or she challenges
the title of his or her
grantor”.
If Prof.
Justice Orcan’s opinion are
viewed against the above issues
which called for determination
in the Memuna Moudy vrs
Antwi case, then clearly
that opinion which is an obiter
dicta did not address the issues
of the case and is therefore not
the opinion of the court. This
court is therefore not bound by
it, as the case is clearly
distinguishable from the instant
case.
This is
because, it is trite law that it
is only the ratio decidendi of a
court that forms the binding
decision of a court and has
binding effect and not the
obiter dicta.
Under the
circumstances, I hold that
article 20 (5) and (6) are not
capable of having a
retrospective effect.
This now
brings me to a discussion of the
last issue which is
Whether or not if the state is
unable to use the La Wireless
Land for the public
(interest) purpose for which it
was acquired, the plaintiff
herein has to be given
the 1st option to
re-acquire it by
virtue of article 20 (5) (6) of
the Constitution 1992.
Quite
clearly, the resolution of the
above issue poses no complexity
whatsoever. This is because, the
Constitution 1992 contains
provisions on the definition of
what is a public interest.
Article 257
(2) of the Constitution
describes what is meant by
public lands mentioned in
article 257 (1) as”-
“For the
purposes of this article, and
subject to clause (3) of this
article “Public lands” includes
any land which immediately
before the coming into force of
this Constitution was vested in
the Government of Ghana on
behalf of and in trust, for the
People of Ghana, for the public
service of Ghana, and any other
land acquired in the public
interest, for the purposes of
the Government of Ghana before,
on or after that date.”
Article 295
of the Constitution, 1992, which
is the definition section
defines public interest in the
following words:-
“Public interest” includes any
right or advantage which
enure or is intended to enure to
the benefit generally of the
whole of the people of
Ghana.”
Under,
section 2 of the then applicable
Law, the Public Lands Leasehold
(CAP 138) under which the La
Wireless Lands were taken
possession of as a leasehold,
public purpose is defined to
include:
(a) “
the exclusive use of the
Government of the Gold Coast or
the use of the general public.
(b) the provisions,
extension or improvement of any
public utility
service
(c) the effectuation of
any scheme undertaken by a
statutory body,
the effectuation of which will
in the opinion of the Governor
in
Council, be of public benefit or
importance and with respect to
which the Governor in Council is
satisfied that by reason of
disputes, as to the ownership of
the land required, or inability
of
the parties to agree to the
terms of a lease, or for any
other cause,
the
effectuation of such scheme is
being hindered to the detriment
of the public
interest
“Public
works” is defined in the same
law as:
“include any works done or being
done or contemplated by the
Government of Gold Coast
or any Town Council, Native
Authority or other
statutory body, and any public
scheme of development,
redevelopment or reconstruction
(including schemes of
preservation for
development) and any work done
or to be done and any change of
user under any such scheme.”
The above
definitions clearly admit of a
wide, broad and liberal
interpretation of what is public
interest, or public purpose or
public works. Thus , even if the
view is taken that the
constitutional provisions in the
Constitution 1992 prevail the
same expansive, broad and
liberal view shall prevail,
since the two definitions are
similar in context.
However, as
is to be noted, the La Wireless
Land had been acquired in the
colonial era but the definitions
therein contained in CAP 138
admit of no restrictive use such
as has been urged on this Court
by the plaintiff.
My opinion is
that, the President of the
Republic of Ghana will just be
substituted for the Governor in
Council mentioned in CAP 138,
and Ghana also for Gold Coast.
With such an
interpretation and
understanding, will it be said
to be contrary to public
interest or the public purpose
if the state as is exemplified
in the authority of the
President decided to use
portions of the La Wireless Land
to build Executive Mansions for
visiting Heads of State who will
attend Ghana @50 Independence
Anniversary and the African
Union Conference also slated for
Ghana some few months away from
Ghana @ 50?
My answer is
a big No. This is because, as a
country, there have been
numerous examples where land
that had been acquired for use
in the public interest for
specific purposes have had the
use changed without any question
or blemish. That is however not
to say the people of La should
sit down and raise their hands
in despair without exercising
their constitutional rights.
For example,
part of the Accra Race Course
land has had to be taken away
for another public interest ,
purpose or use, and this was the
construction of the multi
purpose Accra International
Conference Centre.
The second is
the conversion of one of the
Makola markets to a modern
public car park.
My view of
the matter therefore is that,
once the use to which the land
is to be put, is not restricted
to any personal or individual
interest, but one to which the
general public will have a
benefit, or the benefits of the
project will enure to the
entire country either directly
or indirectly, the public
interest purpose will be deemed
to have been adequately catered
for.
In the
instant case, I agree entirely
with the plaintiff that the
intended sale or actual sale of
the Houses built specifically
for the Ghana @50 anniversary
and African Union Conference to
private individuals is a use
that seems to be inconsistent
with the use envisaged under
both CAP 138 and the
Constitution.
Even though
the La Wireless Land is a
leasehold to which the people of
La have the reversionary
interest, and therefore the
argument might be made that the
plaintiff has the reversionary
interest in the long run, it is
still considered by me as a
reckless exercise of discretion
by the Executive in the sale of
the Houses built for a public
purpose and interest to private
individuals.
The only
saving issue is the fact that
the actual sale of the Houses
was opened to all members of the
general public based on the
ability to pay. In that respect
therefore, it could be stated
that such a use is not
inconsistent with the user
clause
In view of
the above decisions, it is my
view that, the complaint of the
plaintiff is not a
constitutional dispute.
Quite
clearly, the plaintiff is not
without a remedy. This is
because, even though in totality
I have come to the conclusion
that all the relevant
constitutional issues referred
to this court by the learned
trial judge do not avail the
plaintiff in the material nature
which would have positively
enhanced their claims, they are
definitely not without a remedy.
There are adequate provisions
under the State Property and
Contracts Act, 1960 C. A. 6
which the plaintiff’s can make
use of to address their concerns
if they are so minded.
GENERAL
COMMENTS
I have noted
with much concern the reliance
by learned Counsel for the
plaintiff on a host of foreign
decided cases. I am however of
the view that, whenever the
words in the Constitution or the
Statute such as CAP 138 or C.A.6
are simple and straightforward,
it is not necessary to refer to
foreign cases for guidance.
Instead, the court should adopt
the principles of constitutional
and statutory interpretation
espoused in cases like the
Tufuor vrs Attornery-General
line of cases already referred
to supra.
In situations
like this, the ordinary and
plain meanings of the words must
be used.
In this
context, public purpose or
public interest must be taken to
mean any use of property to
which members of the public have
access to or are entitled to
have beneficial enjoyment or use
whenever desired or
circumstances permit, in contra
distinction to restrictive use.
CONCLUSION
I will
conclude this matter by stating
finally that, all the
constitutional issues referred
to this court are inapplicable
to the circumstances of this
case.
In the first
place, it is my opinion that
article 20 (5) & (6) of the
Constitution 1992 is
inapplicable to acquisitions of
property before the coming into
force of the Constitution 1992.
The entire article 20 of the
Constitution looks to the
future, not past.
Secondly, the
said articles 20 (5) & (6) of
the Constitution do not have
retrospective effect or
application.
Thirdly,
public purpose or public
interest should be given a wide,
broad and expanded
interpretation such as would
admit of any use of property
that will have a beneficial
effect on the entire community
or is open to members of the
public.
In the
result, I would dismiss the
constitutional referral as
wholly inapplicable under the
circumstances of this case.
The case is
therefore remitted to the trial
High Court to be determined in
terms of article 130 (2) of the
Constitution.
J. V.M.
DOTSE
JUSTICE OF
THE SUPREME COURT
BAFFOE-BONNIE,
JSC:-
I had the
privilege of reading beforehand
the opinion of my learned
brother Dotse JSC. I agree with
the reasoning and conclusion
reached by him.
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
WILLIAM
ADOTEI ADDO FOR THE PLAINTIFF.
MRS. SYLVIA
ADUSU PRINCIPAL STATE ATTORNEY
FOR THE DEFENDANT.
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