Constitutional law - Review –
Public Land - Compulsorily
acquired by the State - Article
20(5) and (6) of the 1992
constitution
– Interpretation – Review
jurisdiction of this court -
Article 133(l) of the 1992
constitution – Retrospectivity
concerns vested rights -
Whether or not there is
exceptional circumstances which
have resulted in a miscarriage
of justice - Whether or not
there is a discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within the
applicant’s knowledge or could
not be produced by the applicant
at the time when the decision
was given - Whether or not
compulsory acquisition of
private property by state for
public purposes, primarily
breach the fundamental right of
private persons to own property
or to shelter
HEADNOTES
On 19/05/10, this court by a
majority decision (of 4-1) held
that Article 20 (5) and (6) of
the 1992 constitution do not
operate retrospectively to
affect the La wireless station
Land situate, lying and being at
Cantonments, Accra compulsorily
acquired by the state in 1947.
The applicant who is the Mantse
(chief) of La had instituted an
action against the
Attorney-General for a
declaration at that the said
land which was compulsorily
acquired for the purpose of a
wireless station had ceased to
be used as a wireless station
and that the La Stool was
entitled as the original owner
to be given the first option to
reacquire it under the said
Article of the 1992
constitution.
HELD
The import of the distinction in
article 258 (1) (a) between
public lands and lands vested in
the President is probably of
historical significance only,
since article 257 (1) also vests
public lands in the President,
and both public lands and lands
vested in the President are held
by the State in trust for the
people of Ghana and for the
public service of Ghana. At any
rate, both categories of land,
as envisaged under article 258
(1) (a), are expected to be
managed by the Lands Commission.
It follows that the Osu Mantse
Layout, as lands vested in the
President, comes under the
management portfolio of the
Lands Commission, and not the
Office of the Administrator of
Stool Lands. Finally, there are
lands which might have had no
stool origins or connections,
such as family or individual
lands, but which could also
become public lands by virtue of
compulsory acquisition or
negotiated transactions. These
would also fall under the Lands
Commission’s management
umbrella.” The net effect of the
decision of the Supreme Court in
the Omaboe case, vis-à-vis the
constitutional relationship
between the stools as original
owners of lands and the vested
authorities i.e. the President
as captured in articles 257,
258, and 267 of the Constitution
1992 is that once stool lands,
such as the La Wireless Lands,
had become vested in the
President or Government of the
Gold Coast as far back as 1957,
they remain so vested in the
President irrespective of the
express provisions of the
Constitution 1992 per articles
257, 258 and 267, unless there
is a specific statutory regime
to de-vest and re-vest in the
original stool owners. Secondly,
the Supreme Court has amply
stated the distinctions between
public lands as defined in
article 257 (2) of the
Constitution and lands vested in
the President as being of
historical significance only,
since both are held by the State
in trust for the people of Ghana
for the use of the public
service of Ghana. Since our
interpretation is in tandem with
the decision in the Omaboe III
case, we feel emboldened to
stick to our original decision
in the instant case. The above
constitute sufficient
justification in our refusal of
the review application. The
application is thus refused.
DESSENTING
The Applicant, on 3rd
November, 2006, among other
reliefs, prayed the High Court
that, the piece of land known as
the La Wireless Station which
was compulsorily acquired from
the La Stool by the Gold Coast
Government by way of a
leasehold, under a Certificate
of title dated 9th
August, 1957 and had since
ceased to be used as a Wireless
Station entitled the La Stool
(Applicant herein) as the
original owners under provisions
of article 20 (5) & (6) of the
Constitution 1992 to be given
the first option to re-acquire
the said parcel of land. On the
11th day of July
2008, the High Court, Accra
presided over by Ofoe J.A,
sitting as an additional Judge
of the High Court made a
reference to this Court pursuant
to article 130 (2) of the
Constitution 1992 for the
interpretation of article 20 (5)
and (6) of the Constitution 1992
to assist the High Court in the
determination of the suit.On the
19th day of May 2010,
this court by a 4 to 1 majority
decision held as follows that:
Article 20 (5) & (6) of the
Constitution 1992 is
inapplicable to acquisitions of
property made before the coming
into force of the Constitution
1992. Article 20 (5) & (6) does
not have retrospective effect or
application. Public purpose or
public interest should be given
a wide, broad and expanded
interpretation such as would
admit of a use that will have a
beneficial effect on the entire
community or is open to members
of the public. The dissenting
opinion of the court was however
of the view that the case of the
applicant as presented in the
High Court, is governed by
article 20 (5) & (6) and 257 (1)
of the Constitution 1992
Dissatisfied with the majority
decision of the court, the
applicant, on the 18th
day of June 2010 filed this
review application seeking to
set aside the majority decision
and adopting the minority
opinion.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996
(C.1.16)
Public Lands (Leasehold)
Ordinance (Cap 138)
State Lands Act, 1962 (Act 125)
Hemang Lands [Acquisition and
Compensation] Law 1992 [PNDCL
294]
CASES
REFERRED TO IN JUDGMENT
Republic v Tetteh [2003-2004]
SCGLR
Ellis Tamakloe v The Republic
[J7A/1/2010] dated 20/1/2011
Cordell v.Second Clanfield
Properties Ltd. (1968)3 All ER
746
Bulstrode v Lambert (1953) 2 All
ER 728
Mason v. Clarke (1954)1 All ER
189, C.A
Edusei v. Diners Club Suisse S.A
(1982- 83)2 GLR 809 C.A
Duah v Yorkwa (1993-94)1 GLR 217
C.A
Nimolgu v. The Republic (1980)
GLR 714
Abudulai Mohammed v Republic,
(1971) CC 36
Swaniker v Adotei Twi II (1966)
GLR 151 S.C
Tsatsu Tsikata (No. 2) v.
Attorney-General (No. 2)
(2001-2002) SCGLR 620
Koglex Ltd (No. 2) v. Field
(2000) SCGLR 175.
Hagan v Adum (1940) AC 98 P.C.
Abbot v. Minister of Lands
(1895) AC 425 P.C
Sam (No. 2) v. Attorney-General
(2000) SCGLR 305
Ellis v Attorney-General [2000]
SCGLR 24
Omaboe III v Attorney-General &
Lands Commission (2005-2006)
SCGLR 579
Tuffuor v. Attorney-General
[2003-2004] 2 SCGLR 823,
Adjei Twum v. Akwetey &
Attorney-General [2005-2006]
SCGLR 732
Ghana Army; Ex parte Barimah
[1967] GLR 192; C.A
Mensima v. Attorney-General
[1996-97] SCGLR 676
Hanna Assi (No.2) v. GIHOC
Refrigeration & Household
Products Ltd (No. 2) [2007-2008]
SCGLR 16
Afranie v.. Quarcoo [1992] 2 GLR
561
Mechanical Lloyd Assembly Plant
v Nartey [1987-88] 2 GLR 598,
Quartey v Central Services Co.
Ltd. [1996-97] SCGLR 398
Bisi v Kwayie [1987-88] 2 GLR
295, S.C
Nasali v Addy [1987-88] 2 GLR
286
Ababio v Mensah (No. 2)
[1989-90] 1 GLR 573 S.C.
Pianim (No. 3) v Ekwan [1996-97]
SCGLR 431
In Re Gomoa Ajumako Paramount
Stool (No. 2), Acquah , Kwa Nana
v Apaa and Another [2000] SC GLR
394.
Republic v High Court, Kumasi;
ex-parte Abubakar (No.3) [2000]
SCGLR 45,
NTHC Ltd. v Antwi [2009] SCGLR
117.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE, J.S.C:
DESSENTING
ATUGUBA, J.S.C:
COUNSEL
WILLIAM ADDO FOR THE APPLICANT.
MRS. SYLVIA ADUSU (CSA) FOR THE
RESPONDENT
______________________________________________________________________________________
ATUGUBA, J.S.C:
______________________________________________________________________________________
The main issue raised by this
Review application is whether
the decision of this court (by
4-1 majority) dated 19/5/2011
that
article 20(5) and (6) of the
1992 constitution is
inapplicable to the La Wireless
Station Land situate,
lying and being at Cantonments,
Accra, because the said land had
been
compulsorily acquired
by the State in 1947, long
before the advent of the
said constitution, should be
reversed.
“133 Power of the Supreme
Court to review its decision
The Supreme Court may review any
decision made or given by it on
such grounds and subject to such
conditions as may be prescribed
by Rules of Court.”
or
The present application is
plainly premised on r.54(a) and
does not involve r.54 (b).
It is very trite learning that
r.54(a) has been construed to
mean the incidence of a
fundamental or basic error which
has occasioned substantial
injustice to a party.
Per Incuriam Decisions
It is indisputable that one of
the settled fundamental or basic
errors that a court can commit
is to give a decision per
incuriam. This means, as is
well known, in its technical
context of the doctrine of stare
decisis that the decision
overlooked consideration of a
provision of a statute or a
binding decision of a court,
such as would have affected the
outcome of such a decision were
it considered.
Otherwise the ordinary meaning
of per incuriam is through
oversight. Thus in
Republic
v Tetteh [2003-2004] SCGLR
140 this court unanimously
reversed its earlier decision
because it had overlooked
certain mandatory statutory
provisions relating to the
rendition of Court-Martial
decisions.
Inadequate Consideration of a
Case
In
Ellis
Tamakloe v The Republic
[J7A/1/2010] dated 20/1/2011
this court dealt with the
situation where a court in
reaching its decision has given
inadequate consideration to
vital matters, by overlooking
them. But inadequate
consideration of a case is also
serious enough to warrant review
when an important matter, though
considered, is only cursorily
considered. Thus in
Cordell
v.Second Clanfield Properties
Ltd. (1968)3 All ER 746 at
750 Megarry J dealing with the
effect of the decisions in
Bulstrode
v Lambert (1953) 2 All ER 728
and
Mason v. Clarke (1954)1 All ER
189, C.A relating to s.65(1)
of the Law of Property Act,
1925, said: “If in those cases
the court had put a particular
construction on the words
“without ...any regret by him”
in s.65(1), I should, of course,
bow to authority. However, as
one judgment did not refer to
the subsection and the other,
although referring to it, made
no mention of the particular
words in question, I must
discharge my double duty of
obedience to case law and to
statute by giving effect to the
statute”(e.s) This principle
has been followed by Ghanaian
courts. See
Edusei v.
Diners Club Suisse S.A (1982-
83)2 GLR 809 C.A at 814 and Duah
v Yorkwa (1993-94)1 GLR 217 C.A
at 226. Again in Nimolgu v.
The Republic (1980) GLR 714
at 720 Taylor J
Also stoutly said: “It seems to
me with respect that ...the case
of
Abudulai Mohammed v. The
Republic (supra) .....
if......capable of sustaining
the construction which learned
counsel for the appellant
seeks... then the decision was
given per incuriam and I am
therefore unable to follow it.
The Darko case (supra) mentioned
section 154 of Act 30 but apart
from merely citing it, it did
not indicate why it should be
considered inapplicable. For
these reasons, I am unable to
accept counsel’s argument....”(e.s)
Similarly in
Swaniker
v Adotei Twi II (1966) GLR 151
S.C, the headnote, which can
be regarded as the locus
classicus exposition of the
Review jurisdiction of this
court, states thus: “Held,
granting the application (Sakordee-Adoo
C.J. dissenting): (1) a review
would be allowed if the
circumstances of the case were
exceptional and that in the
interest of justice there should
be a review. However, no fixed
rule could be laid down for
determining what the court ought
to regard as exceptional
circumstances. Each particular
case would depend on its own
merits. A review was not
intended to take the place of an
appeal and was not to be dealt
with as if it were an appeal;
therefore the mere fact that
there was a good ground upon
which the judgement could be set
aside on appeal was not of
itself a ground for granting
review. (2) The judgement of the
Supreme Court proceeded on the
footing that the reasoning of
the trial court on the various
controverted matters on which it
pronounced a decision was
fallacious. That being so it
behoved the court to show this
by its independent reasoning.
That clearly was not done and
was apparent on the face of the
judgment. In the circumstances,
ordinary fairness required that
the judgment be reviewed.”(e.s)
Applying these principles to the
present application for Review
it is quite clear that, of the
majority, only my thorough
brother, Dotse JSC adverted his
mind to article 257 (1) of the
constitution, but to borrow the
apt words of Taylor J in Nimolgu
v The Republic, supra, at
720-721, “...apart from merely
citing it, ...did not indicate
why it should be considered
inapplicable.” In such
situations, the issue concerned
is really at large and warrants
a review of the same.
Absurd Decision
In Ellis Tamakloe v The
Republic, supra, this court held
that a decision that can be
described as perverse is
reviewable. Equally there is no
reason why an absurd decision
should not be reviewable. Just
consider the meaning of the word
absurd. According to the
Encarta World English Dictionary
the word absurd, in effect,
connotes a high voltage of
irrationality. Surely a
decision that is absurd must be
the product of a fundamental or
basic error which cannot conduce
to justice. The distance
between an absurd decision and
one that is palpably wrong is so
narrow that it is permissible to
regard the two situations as
congruent and therefore a
palpably wrong decision is also
reviewable as was held in
Tsatsu
Tsikata (No. 2) v.
Attorney-General (No. 2)
(2001-2002) SCGLR 620 and Koglex
Ltd (No. 2) v. Field (2000)
SCGLR 175.
Multiple provisions of a
statutory provision
A section of a statute or as
here an article of a
Constitution may comprise
several subsections. It by no
means follows that those
subsections or clauses serve the
same purpose, though they
normally should be read
together. In some cases the
subsections or some of them are
such that they cannot even be
read together because they
address very different
situations, see
Hagan v
Adum (1940) AC 98 P.C.
In addition to what I said in my
original opinion I should draw
attention to the fact that
article 20(4) relating to the
operation of a general law
addresses a situation different
from article 20(1) – (3) and
cannot be said to be limited to
matters occurring only after the
coming into force of the 1992
Constitution; see particularly
article 20(4) (a) to (d). It is
also clear that while article
20(1) to (3) deals with fresh
compulsory acquisitions after
the coming into force of the
1992 Constitution, article 20(5)
and (6) deals with the user of
“Any property compulsorily taken
possession of or acquired in the
public interest or for the
public purpose...” and
significantly is not stated to
be limited to situations
governed by article 20(1), as is
expressly so limited in the case
of article 20(3), which plainly
reveals that it is concerned
with situations arising under
article 20(1). The point being
stressed here is clearly borne
out by Brophy v The
Attorney-General of Manitoba
(1895) A.C 202 P.C. In that case
the Privy Council had to
construe, inter alia, s.22(1)
and (2) of the Manitoba Act, 33
Vict. C.3 (Dominion) Statute) as
follows:
“In and for the Province, the
said Legislature may exclusively
make laws in relation to
education, subject and according
to the following provisions:-
Nothing in any such law shall
prejudicially affect any right
or privilege with respect to
denominational schools which any
class of persons have by law or
practice in the Province at the
Union.
An appeal shall lie to the
Governor-General in Council from
any Act or decision of the
Legislature of the Province, or
of any provincial authority,
affecting any right or privilege
of the Protestant or Roman
Catholic minority of the Queen’s
subjects in relation to
education.”
Delivering the judgment of the
Privy Council, the Lord
Chancellor at 219 forcefully
stated with regard to these
provisions thus:
“It would do violence to sound
canons of construction if the
same meaning were to be
attributed to the very different
language employed in the two
sub-sections.
In their Lordships’ opinion the
2nd sub-section is a
substantive enactment, and is
not designed merely as a means
of enforcing the provision which
precedes it. The question then
arises, does the sub-section
extend to rights and privileges
acquired by legislation
subsequent to the Union? It
extends in terms to “any” right
or privilege of the minority
affected by an Act passed by the
Legislature, and would therefore
seem to embrace all rights and
privileges existing at the time
when such Act was passed. Their
Lordships see no justification
for putting a limitation on
language thus unlimited. There
is nothing in the surrounding
circumstances, or in the
apparent intention of the
Legislature, to warrant any such
limitation. Quite the
contrary.”
Vested rights
It is a palpable error to equate
contingent rights with vested
rights.
Retrospectivity concerns vested
rights but not contingent
rights. Thus in
Abbot v.
Minister of Lands (1895) AC 425
P.C at 431 the Lord
Chancellor, delivering the
judgment of the Privy Council
stoutly stated thus:
“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
enactments still to take
advantage of them, the result
would be very far-reaching. It
may be, as Windeyer J. observes,
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, and
they are confirmed in this
opinion by the fact that the
words relied on are found in
conjunction with the words
“obligations incurred or
imposed.’ 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. ”(e.s)
Accordingly, a proper
appreciation of
Ellis v
Attorney-General [2000] SCGLR 24
is that since the Hemang
lands therein were already fully
acquired before the 1992
Constitution it would be a
retrospective application of it
to require that the manner in
which they had already been
acquired, ought to comply with
the 1992 Constitution. However
if a change in the user of that
land occurred after the 1992
Constitution came into force the
1992 Constitution would govern
its consequences under article
20(5) and (6). This is clearly
demonstrated by
Sam (No.
2) v. Attorney-General (2000)
SCGLR 305. That is what
article 11(5) and (6) clearly
requires.
Applying this principle it would
be a palpable error to hold that
any destruction of accrued
rights would necessarily be
involved in the application of
article 20(5) and (6) to lands
compulsorily acquired before the
1992 constitution and embraced
by article 257(1) and (2) but
with respect to which a change
of user has occurred after the
coming into force of the 1992
Constitution. The error in
excluding other lands
compulsorily acquired in the
public interest or for a public
purpose before the coming into
force of the 1992 constitution
from the purview of article
20(5) and (6) is clearly
highlighted by chapter 10 of the
Report of the Committee of
Experts (Constitution) on
Proposals for a draft
Constitution of Ghana at p.138
as follows:
“304. The Committee would
stress the principle enshrined
in Article 188 of the 1979
Constitution, that all public
lands in Ghana are vested in the
President on behalf of, and in
trust for, the people of Ghana.
It follows that the
administration of public lands
is a matter of the highest
public interest and that the
organisational arrangements
relating to such administration
should be efficient, viable and
productive.”(e.s)
Clearly this relates to all
lands acquired by the State
before or after the 1992
Constitution since they are all
public lands by virtue of
article 257(1) and (2).
I also wish to clarify my
earlier opinion by saying that
the true purpose for which the
La Wireless land was acquired
can only be properly established
by fuller evidence in the trial
court and the ensuing
consequences of such a finding
will be governed by the
interpretation of articles 20(5)
and (6) and 257(1) and (2) given
in my first opinion and
confirmed herein.
Consequently I would allow this
application.
W.
A. ATUGUBA
JUSTICE OF THE SUPREME COURT
AKUFFO (MS.)J.S.C.
I join my
esteemed brother and sister,
Atuguba and Adinyira JJSC, in
their conclusion that the
Ordinary Bench of the Court in
its decision committed an error
and application herein for
review be granted. Taking into
account the nature of the
question referred to this Court
by the learned High Court Judge,
it is my view that this is one
of those relatively rare
circumstances wherein the review
jurisdiction of the Supreme
Court has been properly invoked.
I fully endorse the reasons they
have given and have only the
following observations to make:-
This matter
came before the Supreme Court by
way of a reference from the High
Court, pursuant to article 130
of the Constitution. Considering
the language of the article, it
is clear that a reference may
aptly be described as an
invocation of the original
interpretative and enforcement
jurisdiction of the Court,
albeit not by any of the parties
to a dispute, but rather by the
referring court. Hence,
regardless of the nature of the
action before the court that
made the reference, the decision
of this Court immediately goes
beyond the scope of the peculiar
matter in the court below and
becomes a matter involving
constitutionalism, since it will
affect, forever, the meaning and
application of the
constitutional provision(s)
under consideration. Where after
it has decided on the referred
question there is an application
for review, it becomes even more
legitimate for the review panel
to adopt a more liberal approach
which takes into due account the
underlying intents of the
Constitution (as a whole and the
specific provisions in
particular) and the public
interests as well. In such a
case, demonstrable miscarriage
of justice to the applicant is
not necessarily a sufficient
measure for determining whether
or not the application should be
granted. Nor should the
repetitive nature of arguments
of counsel be given excessively
great significance. Thus, as was
noted by Atuguba JSC, in
Ellis Tamakloe v. The Republic
(SC. J7A/2010, delivered on
20/1/2011):-
“Since before
an application for review can be
brought the matter would have
been argued invariably, it would
be inconceivable that a Review
application is entirely free
from re-argument. The
formulation in the In Re
Effiduase case... lends support
to this line of reasoning.
Obviously if the pursuant
judgment does not contain a
palpably serious error a review
application in that situation
can aptly be described as “A
mere re-arguing of his original
application”. However if that is
not the situation the argument
on review cannot be described as
“a mere re-arguing....”
His Lordship,
in that case, continued as
follows:-
“It would
emasculate the Review
jurisdiction if too much
emphasis is put on the question
whether the matter has
previously been argued rather
than on the character of the
judgment emanating from the
matter argued. If despite
argument on the matter a court
arrives at a decision that is so
palpably unsustainable as to be
describable as perverse, it that
not an exceptional circumstance?
....”
And where the
constitutional provision(s) in
the reference form part of the
Fundamental Human Rights and
Freedoms, then it becomes even
more crucial that particular
care be taken by the Court to
assure that there is nothing in
the decision sought to be
reviewed that has a tendency to
do damage to the word or spirit
of any of these (or other)
provisions of the Constitution.
If there is evident inadequate
consideration of any aspect of
the matter, pertinent to the
issues to be determined, the
interpretation given by the
majority should, as my learned
brother Atuguba has stated in
his opinion herein, be
sufficient justification for
review in a referral case.
Furthermore,
as is aptly pointed out by my
esteemed sister Adinyira, in her
opinion herein, the right to
private property has been one of
the key underpinnings of our
statehood and formally dates
back to the Bond of 1844.
Indeed, from the standpoint of
the theory of constitutionalism
and the Rule of Law, as a
fundamental human right, it is
innate to the humanity of the
people and cannot even be
correctly viewed as having been
conferred by any document,
declaration, guaranty or other
legislative or executive action.
As is noted by Tibor R. Machan:-
“People
are not ghosts and so they
cannot act freely without taking
up space. And if this space is
not within their own control,
they are not free but subject to
the will of others. That is one
of the central moral and
political reasons for protecting
the right to private property...”
(‘The Right to Freedom of
Speech, Worship, and Private
Property’, article published by
Adelton Academic Publishers in
the journal of Geopolitics
History and International
Relations, July 2010, page 91)
In addition to the United
Nations Universal Declaration of
Human Rights and Freedoms, which
dates back to 1948, the African
Charter on Human and Peoples’
Rights (entered into force
October 1986), which has been
ratified by Ghana, also seeks to
guarantee the right to property,
and adds that this ‘may only be
encroached upon in the interest
of public need or in the general
interest of the community and in
accordance with the provisions
of appropriate laws.’
It is the
duty of our courts to safeguard,
to the utmost, the fundamental
human rights enshrined in our
Constitution; these are what
really make us a democracy, and
we may only derogate from them
where the dictates of the law
are patently clear. Where this
Court is called upon to
interpret or define the
applicability of a provision of
the Constitution, adequate
consideration must be given to
every provision and we must not
impose any limitation that may
result in a tendency to defeat
the underlying vision of the
Constitution – to ‘secure for
ourselves and posterity the
blessings of liberty, equality
of opportunity and
prosperity....’ (Preamble to the
Constitution) - and the ends of
justice.
S.
A. B. AKUFFO
(MS.)
JUSTICE
OF THE SUPREME COURT
ANSAH, J.S.C:
I have read beforehand the
judgments by Atuguba JSC, the
President the court, as well as
that which my brother Dotse JSC
is about to read.
I agree with the reasons and
conclusion reached by Dotse JSC
that the application for the
review of the majority judgment
be dismissed.
I have nothing useful to add to
it.
J.
ANSAH
JUSTICE OF THE SUPREME
ADINYIRA (MRS.), J.S.C:
“The first objects of law are
the protection of individuals
and property.”The Bond of 1844
I have read beforehand the
opinion of my esteemed brother
Atuguba JSC and I concur with
it. I however wish to add my
observations.
The applicant is seeking a
review of the majority decision
of this Court (by 4 to 1) on
the grounds that the majority
failed to consider the effect of
Article 257 (1) and (2) on
Article 20 (5) and (6) of the
1992 Constitution; which
constituted exceptional
circumstances which has resulted
in a substantial miscarriage of
justice.
Basically the complaint of the
applicant as captured in
paragraph 9 of his affidavit in
support of the application for
review is that:
“... [T]he majority ruling in
the said referral is gravely
erroneous since they did not
advert their minds to Article
257(1) of the 1992 Constitution,
and consequently viewed the case
solely in terms of a pre-1992
land acquisition rather than
land that has been brought
within the purview of the 1992
Constitution by Article 257(1)
and involves public land
management by the government
made in the post 1992
Constitutional era.”
It is to be noted that the
ordinary bench at its own
discretion requested counsel on
both side to address the court
on whether Article 257(1) is
applicable to the issues before
it. It is therefore reasonable
to expect that the Court in its
ruling would have indicated
whether the said Article 257(1)
applied or not.
As it is, it is only my brother
Atugugba JSC who considered
Article 257(1) in his minority
decision and relying on holding
2 in
Omaboe III v Attorney-General &
Lands Commission (2005-2006)
SCGLR 579 declared that:
“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
the La Lands 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.”
On the issue as to the effect of
Article 257(1) on article 20 (5)
and (6), Justice Atugugba said:
“Article 257(1) is the
prevailing provision 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.”
The issue then is whether this
Court should review the majority
decision for merely failing to
consider article 257(1)? Does
this failure constitute an
exceptional circumstance which
has resulted in a substantial
miscarriage of justice?
As has often been repeated, the
most secured democracy is the
one that assures the realisation
of the Universal Declaration of
Human Rights and Freedoms. This
includes the right to private
property. Even before Ghana’s
independence this right to
protection of property was
proclaimed in one of the key
provisions of the Bond of 1844
that: “the first objects of law
are the protection of
individuals and property.”
However, article 20 (5) and (6)
serve a different purpose and
for clarity I set them out.
Article 20(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, on such reacquisition
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
reacquisition.”
The combined effect of Article
20 (5) and (6) is to enforce and
sustain the judicious use of
public lands and to prevent
capricious compulsory
acquisition of property by the
State. These two clauses serve
as one of the constitutional
safeguards to promote, enforce
and sustain a truly democratic
system of government,
accountability, good governance
and fundamental human rights and
freedoms in Ghana.
Guided by the principles of the
purposive approach followed by
this Court on constitutional
interpretation in such cases as
Tuffuor
v. Attorney-General [2003-2004]
2 SCGLR 823, Adjei Twum v.
Akwetey & Attorney-General
[2005-2006] SCGLR 732, I am
inclined to give a pragmatic and
purposive approach to the
interpretation of Article 20 (5)
and (6) to cover public lands
acquired before the 1992
Constitution.
I therefore share the views
expressed by my esteemed brother
Atuguba that whereas article 20
(1) (2) and (3) clearly address
acquisitions made after the 1992
Constitution, article 20 clauses
(5) and (6) on the other hand
are wider in scope and apply to
any property compulsorily
acquired in the public interest
and for public purposes
irrespective of the time of
acquisition and where there is
any issue or question about the
use or purpose for which the
property was compulsorily
acquired by the state.
It is my thinking that our
approach to constitutional
interpretation should not be to
whittle down the abundant rights
guaranteed by the 1992
Constitution. These rights are
not only restricted to the
personal liberty of person but
extends to his property and
economic rights etc. It is the
judiciary that is assigned the
role of the sentinel of the
constitution, to uphold these
rights and to even the scale of
justice between the state and
the individual. The court’s
vigilance in protecting the
citizen against any
encroachments on his liberty by
the executive becomes meaningful
and real only when pursued on
the basis of this principle of
maintaining the equilibrium, see
State v. General Officer the
Commanding the
Ghana
Army; Ex parte Barimah [1967]
GLR 192; C.A (full bench);
Mensima v. Attorney-General
[1996-97] SCGLR 676;
But even then, Section 21 of
the repealed Public Lands
(Leasehold) Ordinance, 1950,
Cap. 138 under which the La
Wireless lands were compulsorily
acquired gave the original owner
of the land the right to
petition to the Governor in
Council to seek the surrender of
his land or part thereof where
there is a misapplication of the
use or purpose of the
compulsorily acquired land. I
therefore agree with Justice
Atuguba that:“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 article 20(5) and
(6) and 257(1) of the 1992
Constitution.”Accordingly I hold
that under article 257 (1)
and(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);
and that article 20 (5) and (6)
is applicable to all public
lands regardless of the time of
acquisition; provided
that the change of the purpose
for which the property was
acquired occurred after the 1992
Constitution. To hold otherwise
would amount to discrimination
and denial of justice and a
clear departure from the basic
tenets of the ConstitutionI do
not think the decision in Ellis
v. The Attorney General [2000]
SCGLR 24 which was heavily
relied on by my esteemed brother
Dotse JSC in his opinion on the
ordinary bench is applicable to
the facts of this case. In the
Ellis case, the applicant was
seeking a declaration that the
Hemang
Lands [Acquisition and
Compensation] Law 1992 [PNDCL
294] was null and void,
whereas in the instant case, the
applicant was not challenging
the acquisition of the La
Wireless land made in 1947 but
was rather seeking a purposive
approach in the interpretation
and application of Article 20
(5) and (6) in matters which
occurred after the coming into
force of the 1992 Constitution
over the purpose for which the
land was acquired for public
use. Our jurisprudence on the
scope of the review jurisdiction
of the Supreme Court and the
stand the Court has taken to bar
any attempt to turn the review
jurisdiction into a further
arena for appeal is quite
extensive but clear. This is
demonstrated by the numerous
cases cited in both the majority
and minority opinions expressed
by the ordinary bench. The
Supreme Court has exercised its
power to review in exceptional
circumstances where the failure
to intervene would amount to a
miscarriage of justice. The
eminent scholar and Justice of
the Supreme Court, Justice
Modibo Ocran (of blessed memory)
in the case of
Hanna
Assi (No.2) v. GIHOC
Refrigeration & Household
Products Ltd (No. 2) [2007-2008]
SCGLR 16; after undertaking
an academic journey to appraise
the depth of cases on the
special jurisdiction of the
Supreme Court in these matters
stated strongly at page 39
that:“Underlying all these later
cases on conditions of grant of
review, is the basic concern
that reviews should be motivated
by a desire to do justice in
circumstances where the failure
to intervene would amount to a
miscarriage of justice. The
question was asked at some point
in our last hearing in this
application: “What is justice?”
I would refer to justice in this
context not simply in the
Aristotelian sense of
commutative or rectifiable
justice; but more importantly to
justice as an external standard
by which we measure the inner
quality of the law itself. Upon
reviewing all these precedents,
I have arrived at the conclusion
that the case presently before
us is reviewable, because the
effect of our failure to correct
the majority decision handed
down at the ordinary panel of
this court would be to brush
aside a legitimate case of
exceptional circumstances that
would in turn result in a
substantial miscarriage of
justice. I would adopt the
definition of miscarriage of
justice as “prejudice to the
substantial rights of a party.”
And I base my opinion on the
real likelihood that applicant
would be confronted with a
brickwork defence of res
judicata if he should return to
the High Court to file a fresh
case of recovery of title”
Having read the opinions of the
ordinary bench in respect of the
reference from the Accra High
Court, I hold the view,
respectfully, that the majority
committed a substantial error
when it ruled that article 20
(5) and (6) is inapplicable to
acquisitions of property before
the coming into force of the
1992 Constitution. This error is
prejudicial to the substantial
rights of the applicant which is
yet to be determined by the High
Court. This constitutes
exceptional circumstances
calling for a review. Our
failure to correct the majority
decision at the ordinary panel
would result in a substantial
miscarriage of justice.
After drafting this opinion, I
had the opportunity to read the
opinion of my esteemed brother
Dotse JSC which he is about to
be read. I regret to say that I
differ from his opinion that the
Omaboe case supra answers the
points at issue as to the effect
of article 257(1) on article 20
(5) and (6), in this case.
For the above reasons I concur
with the views of Atuguba JSC
that the application ought to be
granted in the interest of
justice.
S. O. A. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME COURT
OWUSU (MS.), J.S.C:
I have read the judgments of my
brothers Atuguba and Dotse JJSC
and I am in entire agreement
with the conclusion of Dotse
J.S.C. . that this application
must fail. I however have a few
observations to make.
The applicant who is the Mantse
(chief) of La had instituted an
action against the
Attorney-General for a
declaration at that the said
land which was compulsorily
acquired for the purpose of a
wireless station had ceased to
be used as a wireless station
and that the La Stool was
entitled as the original owner
to be given the first option to
reacquire it under the said
Article of the 1992
constitution.
The application is brought under
Article 133 (1) of the
constitution and rule 54 of the
Supreme court Rules of 1996
(C.I. 16) which provides that:-
“The court may
review a decision made or given
by it on the ground of
(a).
exceptional circumstances which
have resulted in a miscarriage
of justice,
(b). For
purposes of this application,
sub-rule (b) is of no relevance.
The exceptional circumstance
which has resulted in a
miscarriage of justice according
to the Applicant is that the
majority ruling is gravely
erroneous since they did not
advert their minds to Article
257 (1) of the constitution of
1992 and consequently viewed the
case solely in terms of a pre
1992 land acquisition rather
than land that has been brought
within the purview of the 1992
constitution by Article 257(1)
and involves public land
management decision by the
Government made in the post 1992
constitution era.
The failure of the majority to
advert their minds to the said
Article (257) (1) raises very
profound public policy issues in
the administration of public
lands since contrary to the
provisions of the 1992
constitution, the majority’s
ruling sanctions discriminatory
methods of management of public
lands acquired before and after
the coming into force of the
said constitution.
The Applicant in his affidavit
in support of the application
also avers that the majority’s
interpretation of public purpose
or public interest is wide,
broad and expansive and will
render meaningless the
constitutional limitation that
lands acquired in the public
interest or for a public purpose
must be used only for that
purposes or interest. It is his
case that such an interpretation
is gravely erroneous and amounts
to exceptional circumstance
resulting in a miscarriage of
Justice.
I agree with counsel for the
Respondent that it is indeed a
misleading statement for the
applicant’s counsel to say that
the majority in our Judgment
failed to advert our minds to
Article 257(1) of the
constitution.
If we had not adverted our minds
to that Article, the court would
not have found it necessary to
call upon the parties to address
us on it.
A review application is not a
process for which a losing party
in the Supreme Court may seek to
have another bite of the
cherry. This principle has been
stated over and over again and
has become too notorious to be
re-echoed.
“There is only one
Supreme Court. A review court
is not an appellate court to sit
in judgment over the Supreme
Court.”
“The review jurisdiction is not
intended as a try on by a party
losing an appeal neither is it
meant to be resorted to as an
emotional reaction to an
unfavorable judgment.”
Rule 54 of C.I. 16 clearly
spells out when this special
jurisdiction of the court can be
invoked . To me the second limb
on which the application is
premised will be more of a
ground of appeal if indeed the
interpretation which the
applicant describes as “grossly
erroneous” is indeed so. On
that ground the application must
fail.
At the time when the 1992
constitution came into force,
there is a valid leasehold for a
term certain between the parties
which has not lapsed, under
which the applicant can seek
redress if there is a breach.
I am of opinion that the
Applicant cannot seek protection
under Article 20(6) of the
constitution.
Consequently, even if the
majority in our judgment had
inadvertently over looked
Article 257(1) and (2) as the
Applicant contends, though not
accepted that there was any such
inadvertence, I am of the view
that the inadvertence has
occasioned no miscarriage of
justice.
It is for these other reasons
and the reasons that informed my
brother Dotse J.S.C’s conclusion
that I will also dismiss the
application as not a proper one
under rule 54 (a) of C.I. 16 and
therefore same is dismissed.
R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME COURT
The facts of this review
application admit of no
complexities whatsoever.
On the 11th day of
July 2008, the High Court, Accra
presided over by Ofoe J.A,
sitting as an additional Judge
of the High Court made a
reference to this Court pursuant
to article 130 (2) of the
Constitution 1992 for the
interpretation of article 20 (5)
and (6) of the Constitution 1992
to assist the High Court in the
determination of the suit.
On the 19th day of
May 2010, this court by a 4 to 1
majority decision held as
follows that:
2. Article 20 (5) & (6)
does not have retrospective
effect or application.
3. Public purpose or
public interest should be given
a wide, broad and expanded
interpretation such as would
admit of a use that will have a
beneficial effect on the entire
community or is open to members
of the public.
The dissenting opinion of the
court was however of the view
that the case of the applicant
as presented in the High Court,
is governed by article 20 (5) &
(6) and 257 (1) of the
Constitution 1992.
Basically, the grounds of the
Applicant in seeking the review
application can be deduced from
paragraphs 9, 10 and 11 of the
affidavit of the application in
support of the application.
These are:
1. That the majority
decision is gravely erroneous
since they did not advert their
minds to article 257 (1) of the
Constitution 1992 and wrongly
considered the case solely in
terms of a pre-1992 land
acquisition rather than land
that has been brought within the
purview of the Constitution 1992
by article 257 (1) of the
Constitution.
2. That the failure of
the majority decision to advert
their minds to the issues raised
in article 257 (1) of the
Constitution and the policy
issues raised in the
administration of public lands
since the coming into force of
the Constitution, renders the
majority decision discriminatory
in the management of public
lands acquired before and after
the coming into force of the
Constitution 1992 and which
therefore constitutes
exceptional circumstances which
has led to a miscarriage of
justice.
3. That the majority’s
interpretation of public purpose
or public interest is wide,
broad and expansive and will
render meaningless the
constitutional limitation that
lands acquired in the public
interest or for a public purpose
must be used only for that
purpose or interest. The
applicant therefore contended
that the majority interpretation
is also gravely erroneous and
amounts to exceptional
circumstances which have
resulted in a miscarriage of
justice.
Learned Counsel for the
Applicant, W.A. Addo, in a well
prepared and lucid Statement of
Case, articulated the above
grounds.
Learned Counsel for the
Respondent, Mrs. Sylvia Adusu
(Principal State Attorney) in a
brief but incisive statement of
case debunked the submissions of
the Applicant and contended that
the majority decision considered
in detail the provisions of
article 257 (1) of the
Constitution 1992 alongside the
other provisions before arriving
at their conclusions. Learned
Counsel for the Respondent
therefore prayed the court to
dismiss the application for
review since the applicant has
not proved the existence of any
exceptional circumstances that
merit a consideration of the
review application.
In his arguments before this
court, learned Counsel for the
applicant did not depart from
the grounds stated in the
affidavit and statement of case,
both of which have been referred
to supra.
Expanding upon the said
submissions, learned counsel for
the applicant argued as
follows:-
1. That the Constitution
1992 basically frowns upon
discriminatory legislation and
enforcement of laws and since
the majority decision seems to
have one set of legal regime for
pre and post Constitution 1992
acquisitions of land, there is
the need to review the majority
decision. This is because not
doing so will result into a
miscarriage of justice as
exceptional circumstances have
been shown to exist to warrant
the case for a review.
2. That the majority
decision either did not advert
their minds properly to article
257 (1) of the Constitution
1992, or whether if they did,
they were in error by the view
they took of their wide, broad
and expanded interpretation of
what constitutes public interest
or public purpose. Learned
Counsel therefore referred the
court to various constitutional
provisions spanning the 1969 and
1979 Constitutions to buttress
his argument that there has been
exceptional circumstances which
has led to miscarriage of
justice.
On her part, learned Counsel for
the respondent argued that this
is not a fit and proper case for
review since no exceptional
circumstances have been proven
to exist. Counsel therefore
argued that the application be
refused.
SCOPE OF REVIEW JURISDICTION
There appears to be some
inconsistency in the application
of the scope of the review
jurisdiction of this court. This
inconsistency is the result of
the desire on the part of
applicants to reduce this review
jurisdiction of the Supreme
Court into an appellate process.
What must be noted is that, the
failure of an ordinary bench of
this court to accede to the
points of law canvassed before
it should not automatically
entitle an applicant to apply
for a review of a decision that
has been given against him.
This is because, the scope of
the review jurisdiction vested
in this court pursuant to
article 133 (1) & (2) of the
Constitution 1992 and Rules 54
(a) & (b) of the Supreme Court
Rules, 1996 C. I. 16 has been
held in a long line of cases as
not an appellate process.
Wuaku JSC in the celebrated case
of Afranie v Quarcoo [1992] 2
GLR 561 at pp. 591-592 stated as
follows:-
“There is only one Supreme
Court. A review court is not an
appellate court to sit in
judgment over the Supreme
Court”.
Other cases which espouse the
above principle of law are the
following:
Mechanical Lloyd Assembly Plant
v Nartey [1987-88] 2 GLR 598,
where the Supreme Court held as
follows:-
“The review jurisdiction is not
intended as a try on by a party
losing an appeal neither is it
meant to be resorted to as an
emotional re-action to an
unfavourable judgment.”
In the instant case, it does
appear sufficiently to us that
the applicant herein has
embarked upon this review
application simply because of
the unfavourable decision or
interpretation that the majority
decision has given in the
matter. It is our considered
opinion that irrespective of how
an applicant considers the
decision of the ordinary bench
of the court to be once there
are no exceptional circumstances
which amount to a miscarriage of
justice, a review process must
not be countenanced and or
tolerated in order to ensure the
integrity, sanctity and
legitimacy of the scope of the
review jurisdiction of the
Supreme Court as provided for in
article 133 (1) of the
Constitution 1992 and rule 54
(a) & (b) of the Supreme Court
Rules, 1996 C. I. 16.
“A review jurisdiction is a
special jurisdiction and not an
appellate jurisdiction,
conferred on the court, and the
court would exercise that
special jurisdiction in favour
of an applicant only in
exceptional circumstances. This
implies that such an application
should satisfy the court that
there has been some fundamental
or basic error which the court
inadvertently committed in the
course of considering it’s
judgment and which fundamental
error has resulted in gross
miscarriage of justice. These
principles have been stated over
and over again by this court.
Consequently, a losing party is
not entitled to use the review
process to re-argue his appeal
which had been dismissed or use
the process to prevail upon the
court to have another or second
look at his case.”
See also cases like:
Nasali v Addy [1987-88] 2 GLR
286
Ababio v Mensah (No. 2)
[1989-90] 1 GLR 573 S.C.
Pianim (No. 3) v Ekwan [1996-97]
SCGLR 431
Koglex (GH) Ltd. V Attieh
[2001-2002] SCGLR 947 and
Attorney-General (No. 2) v
Tsatsu Tsikata (No. 2)
[2001-2002] SCGLR 620
In an apparent call upon his
brethren in the Supreme Court to
protect the integrity, sanctity
and usage of the review process
as conferred by article 133 (1)
of the Constitution 1992 and
also rules 54 (a) & (b) of the
Supreme Court Rules, 1996 (C. I.
16) and also to ensure that the
scope of the review jurisdiction
is not abused, Dr. Date-Bah JSC
in his concurring opinion in the
majority (5-2) decision in
dismissing a review application
in the unreported ruling in the
Civil Motion No. J7/10/2009
dated 5th May, 201
intitutled Chapel Hill School
Limited –
Plaintiff/Appellant/Respondent v
The Attorney-General, The
Commissioner, Internal Revenue
Service – 2nd
Defendant/Respondent/ Applicant
stated in clear and unambiguous
language as follows:
“I do not consider that this
case deserves any lengthy
treatment. I think that it
represents a classic case of a
losing party seeking to re-argue
it’s appeal under the garb of a
review application. It is
important that this court should
set its face against such an
endeavour in order to protect
the integrity of the review
process. This court has
reiterated times without number
that the review jurisdiction of
this court is not an appellate
jurisdiction, but a special one.
Accordingly an issue that has
been canvassed before the bench
of five and on which the court
has made a determination cannot
be revisited in a review
application, simply because the
losing party does not agree with
that determination. This
unfortunately is in substance
what the current application
before this court is.”
From the above decisions, the
principle seems to be fairly
well established as follows
that:
1. The review
jurisdiction of this Supreme
Court is a special jurisdiction
and is not intended to provide
an opportunity for a further
appeal.
2. This special review
jurisdiction can however be
exercised when an applicant
succeeds in convincing the court
that:
a. there has been some
fundamental or basic error which
the court committed in the
course of delivering the
judgment, and
b. that, this error has
resulted in a miscarriage of
justice
3. There must be the
discovery of an important matter
of evidence, which after the
exercise of due diligence, was
not within the applicant’s
knowledge or could not have been
produced by him at the time
judgment was given.
The above is however
inapplicable or inappropriate to
the circumstances of this case.
We should by no means be
misunderstood to be saying that
this court does not review its
decisions. What we have
laboured to state is that there
is a big and often times an
insurmountable hurdle in the
review jurisdiction of this
court unlike the appellate
jurisdiction which is automatic
and as of right provided it is
filed within time.
However, as was pointed out by
Atuguba JSC in his lead and
majority, (6-1) ruling in the
unreported ruling in Criminal
Motion No. J7A/1/2010, of 20th
January, 2011 intitutled Ellis
Tamakloe – Applicant v The
Republic – Respondent the
Supreme Court has indeed
reviewed its previous decisions
in the following cases:
In the above case, the Supreme
Court unanimously granted an
application for review because
at the time the ordinary bench
of the court gave it’s decision
the court was misled into
believing that a process had
been served on Kwa Nana who was
dead at the time and could not
have been served. Based on the
fundamental error principle, the
previous decision was reviewed.
2. In the case of
Republic
v High Court, Kumasi; ex-parte
Abubakar (No.3) [2000] SCGLR 45,
the Supreme Court reviewed
its earlier decision mainly
because this court had
overlooked certain basic and
material facts relating to the
election of a Moshiehene.
3. Finally, the Supreme
Court was compelled to review
it’s decision on the exigible
interest rates, applicable in
the previous judgment because of
certain factual errors relating
to its duration and computation,
in the case of
NTHC Ltd.
v Antwi [2009] SCGLR 117.
After referring to the above and
other cases, Atuguba JSC in the
unreported ruling in the Ellis
Tamakloe v Republic case,
already referred to supra,
rightly in our view stated as
follows:
“All this should not be
surprising because as a matter
of principle, since it is trite
law that this court can review a
decision which is per incuriam
as to the law, why can’t it also
review a decision that is per
incuriam as to compelling facts.
After all, the expression per
incuriam simply means through
oversight. It is also trite law
that a statute must be construed
as a whole and purposively. The
second ground of this courts
review jurisdiction, namely r.
54 (b) relates to ‘discovery of
new and important matter or
evidence which, after the
exercise of due diligence, was
not within the applicant’s
knowledge or could not be
produced by him at the time when
the decision was given.’ Quite
clearly then, the legislature is
anxious that any fact that could
have altered the decision of the
court, were it known, should be
given effect even after judgment
has been delivered. Very clearly
then, it stands to reason that
if ‘important matter or
evidence” was adduced but was
overlooked by the court such a
situation should qualify as an
exceptional circumstances under
r. 54 (a) of C I 16. After all
it is trite law that the spirit
of a statute cannot be divorced
from its true consideration.
This means that if the substance
of an application for review is
that a different decision from
the earlier one is merely
preferable and not that the
earlier decision is starkly
wrong, it is a proper matter for
appeal not review.”
What then is the fate of the
instant application for review
bearing in mind all the decided
cases and their respective
principles stated supra?
The applicant has anchored the
substance of the review
application on the erroneous
impression that the majority
decision did not consider the
provisions of article 257 (1) of
the Constitution 1992.
In the first place, it must be
noted that the reference and
application of the said
constitutional provision was at
the instance of the court which
then elicited submissions on the
point from both counsel, which
they did.
Secondly, it must be noted that,
the said article 257 (1) of the
Constitution had been adequately
considered by the majority
before the decision was arrived
at. The fact that the decision
was not favourable to the
applicant should not be a ground
for the applicant to conclude
that the court did not consider
the provision.
Thirdly, since it is almost
impossible for the applicant to
know what operated in our minds
when we considered the said
constitutional provision, the
conclusion that we did not
consider it is untenable.
It is to be noted that the
majority actually considered in
detail not only the
constitutional provisions
provided for in article 257 (1)
but went on to consider article
257 (2) and 295 of the
Constitution 1992 which is the
definition article before it
arrived at its decision, the
subject matter of this review.
Basing ourselves on the cases
referred to supra on the scope
of review jurisdiction of this
court, especially cases already
referred to such as, Afranie v
Quarcoo, Mechanical Lloyd
Assembly Plant v Nartey, Quartey
v Central Services Co. Ltd, Bisi
v Kwayie, Nasali v Addy, Ababio
v Mensah (No. 2) Pianim (No.3) v
Ekwam, Koglex (Gh) Ltd. v Attieh
[2001-2002] SCGLR 947,
Attorney-General (No.2) v Tsatsu
Tsikata (No.2), unreported
decisions in Chapel Hill School
Ltd. v Attorney General & Anr,
and Ellis Tamakloe v Republic,
we are of the considered view
that the instant application
does not come within the scope
of review applications permitted
under the rules of this court
In our considered opinion, this
application which has been very
well prepared and argued, is
only a re-harsh of the previous
referral case and is nothing but
a subtle attempt to re-argue the
very issues that had been raised
and considered in the previous
decision.
In arriving at the decision we
have come to in the instant
case, we take note and are
emboldened by the unanimous
decision of this court in the
case of Omaboe III and others v
Attorney-General & Another,
[2005-2006] SCGLR 579, holding
1, 2 & 3 especially at pp.
599-601.
The Editorial note at page 584
of the Omaboe case states as
follows:
“The unanimous decision of the
Supreme Court in the instant
case of Omaboe III v
Attorney-General & Lands
Commission is in line with its
previous decision in Ellis v
Attorney-General [2000] SCGLR
24, which was regrettably not
cited to the court. In Ellis v
Attorney-General, the Supreme
Court held that it could not
declare the Hemang Lands
(Acquisition and Compensation
Law) 1992, (PNDCL 294) a nullity
under the 1992 Constitution
because those lands had been
acquired and vested in the
Republic under PNDCL 294 before
the coming into force of the
Constitution, which could only
be applied prospectively and not
retroactively. In so holding,
the Supreme Court applied and
followed its previous decision
in Fattal v Minister of Internal
Affairs [1981] GLR 104.”
FACTS IN THE OMABOE CASE
Like the instant case, the
Omaboe case was a referral case
from the High Court, Accra per
Owusu Arhin J, pursuant to
article 130 (2) of the 1992
Constitution requesting for
interpretation by the Supreme
Court of the constitutional
issue whether or not by virtue
of article 267 (1) of the
Constitution, the vesting power
of the Accra-Tema City Stool
Lands (vesting) Instrument, 1964
(EI 108 of 1964) had lapsed.
It is interesting to observe
that in the High Court, the
Plaintiffs therein in the Omaboe
case claimed inter alia the
following reliefs:
1. “A declaration that
the control and management by
the defendants of the Osu Mantse
Layout lapsed with the
promulgation of the 1992
Constitution.
2. A declaration that
all leases renewed after the
promulgation of the 1992
Constitution are null and void
and of no effect.”
We have decided to refer to the
above two reliefs claimed in the
Omaboe III vrs Attorney-General
Case because of the similarity
between that and the reliefs in
the instant case.
The Supreme Court stated their
response to the referral from
the High Court in the following
words:
“Upon a true and proper
construction of article 267 (1)
of the Constitution, the vesting
power embodied in the Accra-Tema
City Stool Lands (vesting)
Instrument, 1964 E.I 108 of 1964
has not lapsed.”
On pages 599-601 of the report,
the Supreme Court per Prof.
Modibo Ocran JSC of blessed
memory stated by way of
explanation, the rationale
behind the referral thus:
“In the absence of any extrinsic
aid, we must still make sense of
the Constitution that we have
been called upon to interpret.
One age-old canon or maxim of
interpretation is that there is
a presumption of consistency
among the various parts of the
same document; and that one
should as far as possible avoid
an interpretation that will lead
to internal inconsistency.
When we put together articles
257, 258 and 267, the following
appears to be the scheme of
landholding policy established
under the 1992 Constitution:
First of all, stool lands that
had not been vested in the
President or Government of Ghana
prior to January 7 1993, that
is, those stool lands properly
envisaged under article 267 (1),
continue to be duly vested in
their respective stools in trust
for the subjects of the stool in
accordance with customary law
and usage.
Even though such lands have been
legally vested in the stool,
article 267 (2) of the same
Constitution directly
establishes the Office of the
Administrator of Stool Lands
whose functions are undoubtedly
those of management, revenue
collection and disbursement; and
whose authority covers all stool
lands. More specifically,
article 267 (2) directs that the
Administrator of Stool Lands
establish a stool lands account
for each stool into which all
rents, dues, royalties, revenues
or other payments shall be paid.
The Administrator is to account
for monies so collected to the
beneficiaries named in that
article; and to make
disbursements to his office and
to the beneficiaries according
to a formula also spelt out in
the same article. There is no
inconsistency between article
267 (1) and article 267(2)
because, as already explained,
the vesting of title in one
party may go side by side with
management functions being
lodged in another entity. Nor is
there any absurdity in the
constitutional arrangement, even
though others might question the
policy choices made by the
framers of the 1992 Constitution
on land tenure.
There is a further stricture on
the powers of the stools even as
the holders of the allodial
title. Under article 267 (3),
there can be no disposition of
an interest in such lands, and
no development thereof, unless
the Regional Lands Commission of
the region in which the land is
situate has certified that such
an act is consistent with the
development plan approved by the
planning authority for the area
concerned. Further, under
article 267 (5), the stools
cannot, subject to other
provisions of the Constitution,
create and transfer a freehold
interest in stool lands to any
person. But what is also clear
from the constitutional
provisions is that the Lands
Commission cannot by itself
create any interest in stool
lands.
The role of the Lands Commission
is confined in this respect to
giving consent and concurrence
under provisions such as article
267 (3).
The second landholding policy
arrangement concerns those lands
that were once stool lands, but
which had been vested at some
point in time in the President
or Government, without any
subsequent de-vesting in favour
of the original stools by a
statutory or constitutional
provisions. Our position is that
they continue to be vested in
the President or Government of
Ghana, without any subsequent
de-vesting in favour of the
original stools by a statutory
or constitutional provision. Our
position is that they continue
to be vested in the President or
Government of Ghana until the
State takes measures by an
express statutory language to
de-vest itself and re-vest them
in the original stool owners. As
long as they remain vested, they
come under the administration
and management of the Lands
Commission created under article
258 of the Constitution.
A close look at article 258 (1)
(a) indicates that there are
three basic categories of lands
entrusted to the management of
the Lands Commission on behalf
of the Government of Ghana:
public lands, lands vested
in the President by the
Constitution or by any other
law, and any lands vested in the
Lands Commission itself. The
distinction drawn in this
article between lands vested in
the President and public lands
is amplified by the definition
of public lands in article 257
(2), which confines them to
lands vested or to be vested in
the Government of Ghana as such.
The clause reads in parts as
follows:
“…’public lands’ includes any
lands 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.”
Finally, there are lands which
might have had no stool origins
or connections, such as family
or individual lands, but which
could also become public lands
by virtue of compulsory
acquisition or negotiated
transactions. These would also
fall under the Lands
Commission’s management
umbrella.”
The net effect of the decision
of the Supreme Court in the
Omaboe case, vis-à-vis the
constitutional relationship
between the stools as original
owners of lands and the vested
authorities i.e. the President
as captured in articles 257,
258, and 267 of the Constitution
1992 is that once stool lands,
such as the La Wireless Lands,
had become vested in the
President or Government of the
Gold Coast as far back as 1957,
they remain so vested in the
President irrespective of the
express provisions of the
Constitution 1992 per articles
257, 258 and 267, unless there
is a specific statutory regime
to de-vest and re-vest in the
original stool owners.
Secondly, the Supreme Court has
amply stated the distinctions
between public lands as defined
in article 257 (2) of the
Constitution and lands vested in
the President as being of
historical significance only,
since both are held by the State
in trust for the people of Ghana
for the use of the public
service of Ghana.
Since our interpretation is in
tandem with the decision in the
Omaboe III case, we feel
emboldened to stick to our
original decision in the insta
nt case.
The above constitute sufficient
justification in our refusal of
the review application. The
application is thus refused.
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
BAFFOE-BONNIE, J.S.C
I have had the benefit of
reading before hand the opinions
of my Learned Brothers, Atuguba
and Dotse JJSC and those of my
Learned Sisters, Sophia Adinyira
and Rose Owusu JJSC and I am of
the view that the application
for review should be dismissed.
It is my honest opinion that the
application is only an attempt
to take a second bite at the
cherry. Learned counsel’s
submissions is nothing new as it
merely rehashes his earlier
submissions before the ordinary
panel.
The falsity in counsel’s claim
that the majority did not
consider the effect of article
257 (1) on Article 20 of the
Constitution lies in the fact
that it was the court itself,
that drew counsels attention to
the said article and asked for
submissions on same. That the
majority’s consideration did not
support counsel’s position on
the matter is not a ground for
review. See the case of Chapel
Hill School Limited v The
Attorney-General and the
Commissioner of IRS (unreported
dated 5/05/2010 particularly the
opinion of Date – Bah JSC.
It is for these reasons that I
concur with the majority that
the application for review
should fail.
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL;
MRS. SYLVIA ADUSU (CSA) FOR THE
RESPONDENT.
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