Mining –
Royalties- Jurisdiction –
interpretation - Allodial
ownership - Whether or not
Companies are required to pay
royalties that, by definition
and law - Whether or not such
royalties have to be paid to the
owners of the lands on which
they carry out their mining
activities.- Whether or not
Ghana Revenue Authority is
unlawfully and
unconstitutionally exercising
the powers and functions
reserved by the Constitution to
the Administration of stool
lands - under Section 8(2) of
Act 481 Office the of
Administratar of stool lands -
Article 2 (1), article 130 (1),
- 1992 Constitution - section
3 (1) - Courts Act, 1992 (Act
459) (3): Whether or not the
Plaintiffs have properly invoked
the Jurisdiction of the Supreme
Court - whether or not the
Plaintiffs have taken advantage
of the procedure prescribed for
redress of grievances(s) before
invoking the exclusive special,
original jurisdiction of the
Court. - whether or not the
Plaintiffs have taken advantage
of the procedure prescribed for
redress of grievances(s) over
apportionment of rents,
royalties,
HEADNOTES
The
Plaintiffs claim to be allodial
owners of land on which some
mining companies have their
concessions and have been
extracting gold. The Plaintiffs
are seeking from this Supreme
Court a declaration that the 2nd
Defendant, the Office of thee
Administrator of Stool lands who
is mandated to collect royalties
in the nature of income or
capital from stool lands is the
constitutionally mandated to
collect royalties from the
minerals mined in stool lands in
Ghana under Article 267 clauses
2 (a) (b) and (c) and clause.
Further Plaintiffs seek to have
the 3rd Defendant the
Ghana Revenue Authority
restrained from collecting
royalties from the various
mining companies which they
claim is contrary and in
contravention of the clear words
of Article 267 clauses 2 (a)
(b) and (c)and clause 6. Chapter
21 of the Constitution 1992
deals with Land and Mineral
Resources. Article 267 which
deals with Stool and Skin Lands
falls under this Chapter. One
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 would lead into internal
inconsistency. In applying this
principle in construing the
constitution the Court must look
at all the provisions under this
chapter as a whole.
HELD
(1)The
administrative correspondence
set out by my respected brother
Dotse JSC refers to “mineral
royalties ceded to the
Administrator of Stool Lands”
the word cede does not
connote entitlement as of right
on the part of the recipient of
what is ceded to him. However,
since article 257 (6) itself
concedes that though minerals in
their natural state are thereby
made “the property of the
Republic of Ghana and shall be
vested in the President on
behalf of, and in trust for the
people of Ghana”, those
minerals are undoubtedly, “in ,
under or upon … land in Ghana”,
it follows that the lands in
which they are found, if they
are stool lands, can attract
“annual ground rent in respect
of mineral rights over stool
lands”, in accordance with
section 23(2) of the Minerals
and Mining Act, 2006 (Act 703).
In my opinion such rents are
receivable by the Office of the
Administrator of Stool Lands
under article 267(2). Such
annual ground rent is therefore
not within the remit of the
third defendant but rather of
the second defendant, as per the
provisions of s 23(2) of Act
703, aforesaid. However as
there is no claim in respect of
such rent it would seem that
there has been no infraction in
respect of the same. For all the
foregoing reasons I would
dismiss the plaintiffs’ action.
STATUTES
REFERRED TO IN JUDGMENT
Office the
Administrator of Stool Lands
Act, 1994 (“Act 481)
1979
Constitution
1992
Constitution
Courts Act,
1992 (Act 459)
Ghana Revenue
Act, 2009, Act 791 as amended by
Act 794
Stool Lands
(Northern Territories)
Instrument, 1963 (EI 109 of
1963)
Accra-Tema
City Stool Lands (Vesting)
Instrument, 1964 (EI 108),
Administration of Lands Act,
1962 (Act 123)
Provisional
National Defence Council
(Establishment) Proclamation
(Supplementary and Consequential
Provisions) Law, 1982 (PNDCL
42),
Minerals and
Mining Act, 2006 (Act 703).
CASES
REFERRED TO IN JUDGMENT
Amegatcher v
Attorney-General (No. 2) (20012)
SCGLR 933
Asseh v Anto
(1961) GLR 103 SC
Saaka v
Dahali (1984-86)2 GLR 774 C.A.
Wiredu v.
Kobia-Amanfi (1991)I GLR 517
Gabbs Ltd v.
Boakye (1991)1 GLR 533 C.A
Okwan v
Amankwa II (1991)1 GLR 123 C.A.
Republic v.
Kwadwo II (1991) 1 GLR I C.A.
Osei Kwadwo
II v The Republic (2007-2008)
SCGLR 148
Omaboe III
and Others v. Attorney-General,
(2005-2006) SCGLR 579.
Omaboe III
and Others v. Attorney-General
and Lands Commission [2005-2006]
SCGLR 579
Kangah v.
Kyere (1982-83) 2 GLR 649, SC
BOOKS
REFERRED TO IN JUDGMENT
MODERN
APPROACH TO THE LAW OF
INTERPRETATION IN GHANA. Sir
Dennis Adjei
DELIVERING
THE LEADING JUDGMENT
ATUGUBA, JSC
DISSENTING
OPINION
DOTSE JSC:-
COUNSEL
ADDAE ABOAGYE
ESQ. ( WITH HIM OWUSU BANAH)
FOR THE PLAINTIFFS.
DR. B. I.
KORAY ESQ.(PRINCIPAL STATE
ATTORNEY ) FOR THE 1ST
2ND
DEFENDANTS .
MRS. JOYCE
RITA ADDAE- KUMI ESQ. FOR THE 3RD
DEFENDANT.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MAJORITY
OPINIONS
ATUGUBA, JSC
Facts
In this case
the five plaintiffs represent
Ghanaian landowners, who share
the common trait that mining
companies have been extracting
gold for the Republic of Ghana
on their land. These companies
include Anglo Gold Ashanti,
Newmont Ghana Limited, and
Goldfields Limited (“The
Companies”).
At the moment
the royalties from these mining
operations are not paid to the
landowners, but rather collected
by government agencies. The
Ghana Revenue Authority (the
“GRA”), one of the Defendants in
this case, serves the role of
royalty collector for the
minerals at issue here. However,
the Office of the Administrator
of Stool Lands, the institution
charged by the Constitution and
by the Administrator of Stool
Lands Act, 1994 (“Act 481), is
charged with establishing stool
land Accounts, collection of
royalties, and disbursing
revenues due and payable.
In 1992 a
fund was established to provide
a portion of Government mineral
royalties to host communities to
support local development,
address the negative effects of
mining in the host communities,
to supplement the budget of the
mining sector institutions, and
to fund research in the mining
sector. Accordingly, 20% of the
Government mineral royalties are
paid into the fund to be managed
by the Minerals Commission. The
Commission was to disburse 50%
of this revenue to fund
development projects in the host
communities, and 50% to District
Assemblies, Stools, and
traditional authorities in the
ration of 50%/20%/20%.
The
Plaintiffs believe that the
Companies are required to pay
royalties that, by definition
and law, have to be paid to the
owners of the lands on which
they carry out their mining
activities. Further, the
royalties that the Companies pay
to the Republic should and ought
to go to the Plaintiffs, who
hold the stool lands in trust
for their subjects. Lastly, the
Plaintiffs maintain that the GRA
is unlawfully and
unconstitutionally exercising
the powers and functions
reserved by the Constitution to
the 2nd Defendant.
The issues in
this case as per the parties
memorandum of issues dated
7/5/2002 are as follows:
1.
Whether or not the Plaintiffs
have properly invoked the
Jurisdiction of the Supreme
Court, and whether or not the
Plaintiffs have taken advantage
of the procedure prescribed for
redress of grievances(s) over
apportionment of rents,
royalties, etc. under Section
8(2) of Act 481 before invoking
the exclusive special, original
jurisdiction of the Court.
2.
Whether or not revenues or
incomes specified under Article
267 2(a)(b) and (c) and clause 6
of the 1992 Constitution are
public funds.
3.
c
4.
Whether or not the rents, dues,
royalties or other payments,
whether in the nature of income
or capital from stool lands, are
revenues or other monies
intended to be paid into the
consolidated fund, the
contingency fund or other public
funds envisaged under Article
175 and 176 clause 1 (a) and (b)
or revenues or other moneys
envisaged under Article 176 (2)
(a) of the 1992 Constitution.
5.
Whether or not the 2nd
Defendant has failed, refused or
neglected to perform its
constitutional statutory
functions under the 1992
Constitution and the Office of
the Administrator of Stool lands
Act, 1994 (Act 481).
6.
Whether or not the 2nd
Defendant is mandated to collect
and disburse mineral royalties
under the Constitution.
7.
Whether or not the 3rd
Defendant has usurped the
functions and powers of the 2nd
Defendant by its collection of
rents, dues, royalties etc. form
stool lands.
8.
Whether or not rents, dues,
royalties etc. from stool lands
are specifically intended for
Plaintiffs and other bodies
mentioned under Article 267(6)
(a), (b), and (c) of the
Constitution of 1992.
9.
Whether or not royalties
obtained from mining operations
and which are paid to the
Republic are public funds within
the meaning of Article 175 of
the Constitution
10.
Whether or not royalties
obtained from the operations of
mining companies are to be paid
to owners of stool lands.
Jurisdiction
First to be
considered is whether in fact
these issues before the Supreme
Court are appropriate,
specifically as to whether or
not the Supreme Court has
original jurisdiction on this
matter. Looking to the
Constitution it becomes clear
that the jurisdiction of the
Court is properly invoked in
resolving the current dispute.
Article 2 (1) of the 1992
Constitution states:
“A person who
alleges that – (a) an enactment
or anything contained in or done
under the authority of that or
any other enactment; or (b) any
act or omission of any person is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
Of additional
importance is article 130 (1),
which states:
“Subject to the jurisdiction of
the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in; (a) all matters
relating to the enforcement or
interpretation of this
Constitution; and (b) All
matters in excess of the powers
conferred on Parliament or any
other authority or person by law
under this Constitution.
This article
is reproduced in section 3 (1)
of the Courts Act, 1992 (Act
459) (3):
“Original
Jurisdiction (1) In accordance
with Article 130 of the
Constitution, and subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of the Constitution, the
Supreme Court has exclusive
original jurisdiction; (a) In
matters relating to the
enforcement or interpretation of
the Constitution, and (b) In
matters arising as to whether an
enactment was made in excess of
the powers conferred on
Parliament or any other
authority or person by law or
under the Constitution.”
The decision
by the Court in the outcome of
this suit will undoubtedly
require the application and
interpretation of the
Constitution, which would on its
face lend to the conclusion that
the Supreme Court is the
appropriate venue for this case.
However, the 1st and
2nd Defendant, the
Attorney-General and the Office
of the Administration of Stool
Lands, argue that it is mere
application of the Constitution
at heart in the present dispute,
and not interpretation or
enforcement.
How can the
court possibly decide whether or
not the 2nd Defendant
or the 3rd Defendant
is the appropriate revenue
collection body without
interpreting the Constitution?
Application requires
interpretation in this case, and
further, the application of the
Court requires enforcement of
the Court’s decision. In the
present case, it is impossible
to separate application from
enforcement and interpretation,
and as such the Plaintiffs have
appropriately brought this
matter before the Court. This
situation obviates the necessity
to pry into the useful and
meticulous dissection of the
question whether this court’s
original jurisdiction can be
invoked when only enforcement of
the constitution is involved in
an action undertaken by Sir
Dennis Adjei at pp 318-331 of
his invaluable book, MODERN
APPROACH TO THE LAW OF
INTERPRETATION IN GHANA.
Notwithstanding the prolixity of
the issues settled by the
parties for determination the
pith and substance of this
action revolve around the 4th
relief sought by the plaintiffs
as per their writ as follows:
“A
declaration that the collection
of royalties from the various
mining companies in the country
by the 3rd Defendant
instead of the 2nd
Defendant is contrary to and in
contravention of the clear and
unambiguous words of the 1992
Constitution and sections 2(a)
(b) and (c) of Act 481 of 1994.”
The functions
of the 2nd defendant,
the Office of the Administrator
of Stool Lands are laid down in
article 267 (1) (2)(a) – (c) and
(6) of the 1992 constitution as
follows:
“Stool
and Skin lands property
(1)
All
stool lands in Ghana shall vest
in the appropriate stool on
behalf of, and in trust for, the
subjects of the stool in
accordance with customary law
and usage.
(2)
There
shall be established the Office
of the Administrator of Stool
Lands which shall be responsible
for
(a)
the
establishment of a stool land
account for each stool into
which shall be paid all rents,
dues, royalties, revenues or
other payments whether in the
nature of income or capital from
the stool lands;
(b)
the
collection of all such rents
dues, royalties, revenues or
other payments whether in the
nature of income or capital, and
to account for them to the
beneficiaries specified in
clause (6) of this article; and
(c)
the
disbursement of such revenues as
may be determined in accordance
with clause (6) of this article.
(6) Ten
percent of the revenue accruing
from stool lands shall be paid
to the Office of the
Administrator of Stool Lands to
cover administrative expenses
and the remaining revenue shall
be disbursed in the following
proportions:
(a)
twenty-five percent to the stool
through the traditional
authority for the maintenance of
the stool in keeping with its
status;
(b)
twenty percent to the
traditional authority; and
(c)
fifty-five percent to the
District Assembly, within the
area of authority of which the
stool lands are situated.”
(e.s.)
By contrast
article 257(6) of the
constitution provides as
follows:
“Every
mineral in its natural state in,
under or upon any land in Ghana,
rivers, streams, water courses
throughout Ghana, the exclusive
economic zone and any area
covered by the territorial sea
or continental shelf is the
property of the Republic of
Ghana and shall be vested in the
President on behalf of, and in
trust for, the people of
Ghana.”(e.s)
Quite clearly
mineral resources in their
natural state cannot be “the
property of the Republic of
Ghana and shall be vested in the
President on behalf of, and in
trust for the people of Ghana”
under article 257 (6) and at the
same time “vest in the
appropriate stool on behalf of,
and in trust for the subjects of
the stool in accordance with
customary law and usage” under
article 267 (2) so as to entail
the administrative powers of the
Office of the Administrator of
Stool Lands under article 267(2)
with regard to them. The maxims
expressio unius est exclusio
alterius and verba generalia
specialibus non derogant are
apposite here. Quite clearly
then the powers of the Office of
the Administrator of Stool Lands
relate to “all rents, dues,
royalties, revenues or other
payments whether in the nature
of income or capital from the
stool lands” under article 267
(2) (a). These powers then
cannot relate to the special
provisions concerning minerals
in their natural state. Since
it is the Trustee that
administers the Trust property
it is the president, being the
Trustee of minerals in their
natural state who should
administer the same, not for the
beneficiaries listed in article
267(6) as provided in art 267(2)
(b) and (c), but “on behalf of,
and in trust for the people of
Ghana” as provided in article
257(6). Similarly but for the
express provisions of article
267 (2) (a)-(c) and (6)-(9) the
stools would have been the
administrators of stool lands
“on behalf of, and in trust for
the subjects of the stool in
accordance with customary law
and usage” as provided in
article 267(1).
However the
moneys generated by the
President from minerals in their
natural state either directly or
through administrative agencies
will have to be paid into the
consolidated Fund under articles
175 and 176.
They are as
follows:
“175.
The public funds of Ghana shall
be the Consolidated Fund, the
Contingency Fund and such other
public funds as may be
established by or under the
authority of an Act of
Parliament.
176.
(1) There shall be paid into
the Consolidated Fund, subject
to the provisions of
this article –
(a) all
revenues or other moneys raised
or received for the purposes of,
or on behalf of, the Government;
and
(b) any
other moneys raised or received
in trust for, or on behalf of,
the Government,
(2) The
revenues or other moneys
referred to in clause (1) of
this article shall not include
revenues or other moneys –
(a)
that are payable by or under an
Act of Parliament into some
other fund established for
specific purpose; or
(b)
that may, by or under an Act of
Parliament, be retained by the
department of government that
received them for the purposes
of defraying the expenses of
that department.”
and
withdrawals will be regulated by
article 178.
The
constitution however does not,
unlike the case of stool lands
specify how the president is to
administer the specific moneys
accruing from minerals in their
natural state. That being so
the situation is further
governed, it being an executive
matter, by article 58
particularly clauses (1) and (2)
thereof as follows:
“ (1) The
executive authority of Ghana
shall vest in the President and
shall be exercised
in
accordance with the provisions
of this Constitution.
(2) The
executive authority of Ghana
shall extend to the execution
and maintenance of
this
Constitution and all laws made
under or continued in force by
this
Constitution.”
This being so
the Ghana Revenue Authority Act,
2009 (Act 791) under which
mineral royalties are collected
being a law made under the
Constitution the president is
bound to execute it by complying
or seeing to compliance with it,
under articles 58(1) and (2)
aforesaid, unless of course,
‘such law is contrary to the
Constitution itself, which by
article 1(2) “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.”
See
Amegatcher v Attorney-General
(No. 2) (20012) SCGLR 933 at
950-951 per Dr. Date-Bah JSC and
at 967 per Atuguba JSC.
Although
there is some fluctuation on the
matter, in Asseh v Anto (1961)
GLR 103 SC at 104 Korsah C.J
(Van Lare and Sackodee-Adoo
JJ.S.C. concurring), held thus:
“There is ample authority for
the view that the legal maxim
quicquid plantatur solo solo
cedit is not applicable to land
held under native tenure”. That
being so minerals in stool land
are not part of the land.
However even if they are, the
courts have consistently held
concerning ordinary stool land
that when usufructuary titles
are acquired in stool land by
the stool’s subjects such lands
become individual or family
lands as the case may be and
such lands (subject to the
reversion), cease to be stool
lands. Thus in Saaka v
Dahali (1984-86)2 GLR 774 C.A.
the headnote states as follows:
“One S, a
native of Dagomba, acquired a
plot of land in Tamale
customarily from the chief of
Tamale. He erected a building,
No G 30, on the plot in 1920 and
subsequently allowed a relative
M a friend U and U’s aunt Y to
share the house with him. Some
time later S was made the chief
of his village and he left the
house in the care of M and U.
Subsequently both M and U also
left Tamale and, with the
approval of S, they left the
house in the sole care of Y who
had by then been joined in the
house by her daughter D, the
mother of the defendant. Some
time in 1948 a part of the house
collapsed and without notifying
S, Y repaired the house at a
cost of £75. However, when S
became aware of it he
immediately refunded that amount
to Y. The refund was, however,
not accepted by Y who pleaded
that accepting the refund would
mean that S was evicting her
from his house. S died in 1948
survived by the plaintiff, his
daughter, as his sole
successor. In 1979 the
plaintiff who had been living in
Takoradi returned to Tamale.
Her attempts to make some
extensions to the house were
resisted by the defendant who
claimed the house as the
property of her grandmother Y
which she had inherited through
the mother. The plaintiff
therefore sued for, inter alia,
declaration of title to and
recovery of possession of the
house. In his judgment, the
trial High Court judge accepted
the customary acquisition of the
plot and the erection on it of
the house by S but nonetheless
dismissed the plaintiff’s claim
and found for the defendant on
the grounds that (i) since the
death of S in 1948 Y and her
descendants had been the
occupants of the house; (ii) D
had in 1957 been granted a year
to year tenancy by the then
Chief Commissioner of Lands of
the plot on which the house had
been erected; and (iii) the
Stool Lands (Northern
Territories) Instrument, 1963
(EI 109 of 1963) passed under
the Administration of Lands
(Act, 1962), s 7(1) on 4
September 1963 had vested all
skin lands within the area of
authority of the Tamale Urban
Council in the President and
thereby divesting the plaintiff
of her customary title to the
land. On appeal by the
plaintiff, the Court of Appeal
found, inter alia, that: (i) Y
and her daughter D were not
relatives of S; (ii) in her
affidavit in support of her
application for the lease, D had
falsely sworn that she was a
relative and the next of kin of
S the rightful owner, and (iii)
D had been granted the lease on
the basis of that false claim.
Held,
allowing the appeal: xxx
(2) S as a
member of the Dagomba tribe was
entitled under Dagomba customary
law to be given part of the land
attached to the Dagomba skin for
building purposes. Once he had
exercised that right and built
on it, he had a usufruct of that
land which could not without
just cause be taken away from
him by the skin. Having built
on the land, it ceased to be
vacant land attached to the skin
and became the property of S and
would revert to the skin only on
the failure of his heirs. In
the circumstances the Stool
lands (Northern Territories)
Instrument, 1963 (EI 109 of
1963), passed under the
Administration of Lands Act,
1962 (Act 123), s 7 (by which
all skin lands within the area
of authority of the Tamale Urban
Council were declared to be
vested in the President in
trust) did not cover the
usufructuary interest which S
and his heirs or assigns had in
the plot. In any case, the
fundamental rule applicable to
all statutes and statutory
instruments was that prima facie
they were prospective and unless
by their specific terms or by
necessary implication they had
retrospective operation they did
not affect rights and
obligations which had already
crystallized. On the evidence
EI 109 of 1963 came into force
43 years after the land had been
allotted and the building had
been erected. It could not
therefore operate
retrospectively to extinguish
rights S had acquired in the
skin land before its
promulgation.”
Then follows
a chain of decisions arising in
consimli casu with Saaka v
Dahali, supra.
Hence the
head note in Wiredu v.
Kobia-Amanfi (1991)I GLR 517 is
as follows:
“In May 1961,
one L obtained a grant of land
covering plots numbers 14 and 16
in the North Dzorwulu Extension
area of Accra by way of gift
from the Osu stool. The grant
(exhibit 9) was duly registered
in 1966. L later sold the land
to one A who also duly
registered her document (exhibit
10). She then in turn, sold the
land to the defendant. The
plaintiff on the other hand
obtained a lease of the plot in
dispute from the Government of
Ghana in 1976. He also duly
registered his lease. Following
a dispute over the plots, the
plaintiff in an action against
the defendant at the Circuit
Court, Accra sought for a
declaration of title to the
disputed plots. He relied on
the strength of his document and
a default judgment he had
regularly obtained in 1981. The
defendant denied the plaintiff’s
claim and counterclaimed, inter
alia, for a similar relief. The
trial judge found, inter alia,
that (i) by the gift to L in
1961, the Osu stool had divested
itself of any interest in the
land, (ii) L sold her land to A,
and (iii) though the defendant
did not succeed in registering
his land he would be deemed to
have possession of registered
documents because of his claim
through A and L who had
registered documents on the
land. The trial judge
nevertheless held, relying on
the Accra-Tema City Stool Lands
(Vesting) Instrument, 1964 (EI
108), that since the whole of
Osu stool lands had been vested
in the Government of Ghana,
after 1964 only the government
could grant portions of Osu land
so that exhibit 10 conferred no
title on the defendant. On
appeal by the defendant, the
question before the court was
whether or not EI 108 legally
divested all previous owners of
Osu land of their title to the
plots they had acquired before
its coming into force.
Held,
allowing the appeal: xxx
(2)The
fundamental rule applicable to
all statutes and statutory
instruments was that, prima
facie they were prospective and
unless by their specific terms
or by necessary implication they
had retrospective operation,
they did not affect rights and
obligations which had already
crystallized at the time they
became law. EI 108 of 1964
therefore could only affect
vacant land of the stool
concerned. In the instant case,
since the defendant’s
predecessor in title, L,
obtained her title (exhibit 9)
in 1961 and government
concurrence was obtained and the
land registered in 1966, her
title had already vested and the
land so acquired no longer
formed part of the land
envisaged under EI 108 of 1964.
And since in compliance with
section 8 of the Administration
of Lands Act, 1962 (Act 123) L’s
grant to the defendant’s vendor,
by exhibit 10 also received the
concurrence of the government,
it did not lie in its mouth to
say that the land still remained
part of the Osu stool lands.
Consequently, the trial judge
erred in holding exhibits 9 and
10 null and void and in giving
judgment for the plaintiff whose
grant was made in 1976 by the
government at a time when it had
no interest in the land and
therefore, the defendant had a
better title.” (e.s)
To the same
effect is Gabbs Ltd v. Boakye
(1991)1 GLR 533 C.A as reflected
in its headnote as follow:
“The
plaintiff’s uncle by virtue of
being the prime cultivator of a
virgin forest became owner of
it. The land, through
inheritance, became family
property. The plaintiff
inherited it and was in active
and effective possession. The
defendant-company applied to the
Lands Department for land and
the land granted included a
portion of the plaintiff’s
land. The Lands Department
claimed its source of ownership
from the Stool Lands Act, 1960
(Act 27) and the Stool Lands
Instrument, 1961 vested all
stool lands within the
boundaries of Nkawkaw and
Koforidua in the President. The
plaintiff contended that his
land was family land and not
stool land and therefore not
subject to Act 27 and EI 195 of
1961. The High Court, Koforidua
gave judgment for the
plaintiff. The defendants
appealed to the Court of Appeal
against that judgment.
Held
dismissing the appeal: it was
not until 1979 that officially
family land and stool land
became merged. Stool land as
defined in article 213 of the
Constitution, 1979 included any
land or interest in, or right
over, any land controlled by a
stool, the head of a particular
community or a family for the
benefit of the subjects of that
stool or the members of that
community of family. If it
needed a Constitution in 1979 to
bring about the concept that
“stool land” included “family
land”, then clearly, in 1962,
when by an executive instrument,
ie the Stool Land Instrument,
1961 (EI 195 of 1961), a
minister purported to seize
family land in the guise that he
had power to compulsorily seize
stool lands, he acted without
jurisdiction and his seizure was
wrongful, and so a nullity.”
The legal
position regarding the
privatization of stool land has
been carried to its furthest end
by the case of Okwan v Amankwa
II (1991)1 GLR 123 C.A.
As stated in
its headnote:
“The
plaintiff and the defendants are
members of the same family. The
plaintiff is the occupant of the
family stool and the first
defendant is the head of the
family. In a dispute as to
which of the two has the
authority to collect and control
rent received from tenant
farmers in occupation of the
family lands, the stool occupant
applied to the High Court for an
interim injunction to restrain
the family head and the other
defendant members of the family
from collecting rent from the
tenant farmers until the final
determination of the dispute.
The trial High Court judge in
his ruling granting the
application and appointing the
registrar as manager and
receiver, referred to the land
in question as “family stool
lands”. That provoked an
amendment of the statement of
defence by the defendants who
contended that if the land was
stool land, then the action
contravened section 17 of the
Administration of Lands Act,
1962 (Act 123) which vested the
administration and the
collection of stool land revenue
in the Minister responsible for
Lands. Hence they argued, the
court had no jurisdiction to
entertain the suit. The trial
judge overruled the objection,
holding that the plaintiff’s
action referred to private
family stool land and the suit
was therefore not caught by
section 17 of Act 123. On
appeal to the Court of Appeal,
it was contended by the
defendants that the trial judge
erred in law because (a) the
definition of “stool land” as
provided under section 31 of Act
123 did not recognize a
distinction between public stool
lands and private stool lands
and (b) the definition of “stool
lands” as provided under article
213(1) of the Constitution, 1979
specifically included family
land in its definition of stool
land. Accordingly, the trial
judge erred by holding that the
words “family stool land” was
not caught by section 17 of Act
123.
Held,
dismissing the appeal: (1) the
courts have always excluded
private family stool lands from
the operation of the
Administration of Lands Act,
1962 (Act 123). The rational
underlying the view taken by the
courts was clear since the main
purpose for enacting Act 123 was
to streamline the administration
and revenue collection of “oman”
or public stool lands to be used
for maintaining the stool and
the development of the areas
where such stool lands were
situate. In that regard, it was
such lands as were in common use
by the subjects of the area that
would be within the
contemplation of the legislature
for achieving that purpose. The
objective envisaged did not
stretch to cover family lands
the enjoyment and control of
which were the exclusive rights
of members of the family
concerned. “Family” in that
context was used in the narrow
acceptation of the word. The
fallacy in any other
interpretation than the above
would be that whenever an
individual owning land died
intestate his land which should
have devolved on his family
would become a stool land within
the language of Act 123. Were
it not so, section 17(7) of act
123 would be otiose since all
lands in Ghana would be taken as
stool lands within the language
of Act 123.
(2) To
interpret “family land” in the
narrow acceptation of that word
as the true meaning of the word
within the language of article
190 of the Constitution 1979
would produce a palpable
injustice. When the provisions
of article 190 providing for the
administration of stool land
revenue by the Lands Commission
were read together with the
provisions of Act 123 the true
intent of the two enactments
would be defeated by giving a
narrow interpretation to “family
land” as contained in article
213 of the Constitution, 1979.
The public status or nature of
the property sought to be
administered in the interest of
the general community would be
made applicable to such family
land and that would arbitrarily
deprive individual families of
control and management of their
lands, a situation not envisaged
under the Constitution, 1979.
It would be a case of injustice
to resort to an interpretation
which would deprive individual
citizens of their rights to
their family lands.
Accordingly, where a word was
capable of two interpretations
one producing an injustice and
the other conducive to a just
result, the courts had held on
to the interpretation that did
not produce injustice. “Family
land” as referred to in article
213(1) therefore had to be
interpreted in its broadest
sense to connote the public
nature of the subject matter or
to the same genus as the
specific words which preceded
its, namely “community land” and
“stool land” commonly enjoyed by
all subjects of the stool.
Since the land in issue was a
private family stool land, it
was not a stool land within the
language of either the
Constitution, 1979, art 213(1)
or Act 123, s 31. R v Tonbridge
Overseers (1884) 13 QBD 339, CA
cited.
In sharp
contrast to Okwan v. Amankwa II,
supra is the case of Republic v.
Kwadwo II (1991) 1 GLR I C.A.
The headnote thereof is as
follows:
“The
respondent was the Omanhene of
Bekwai under whom was Fahiakobo
village. After a boundary
dispute between two sub-chiefs,
a piece of unclaimed land, ie
Fahiakobo, was given to the
respondent to rule directly.
All revenue accruing from the
Fahiakobo lands were given
directly to the respondent.
The Lands Commission Secretariat
however insisted that apart from
money which fresh stranger
farmers paid to chiefs on
acquiring land, all other
revenue was to be paid to the
Lands Commission. The
respondent however argued that
his predecessors had always
collected revenue from the
Fahiakobo lands and that
Fahiakobo was not even on the
list of stool lands from which
the government collected stool
lands revenue. He was
subsequently charged with
stealing tributes from stranger
farmers and was convicted by the
circuit court. On appeal to the
High Court, the High Court,
found, inter alia, that the
trial judge convicted the
accused without particularizing
the counts on which he was
convicted and passed one
sentence for all the several
counts. He was consequently
acquitted. The State appealed
against the decision on the
grounds that (1) the High Court
judge misdirected himself as to
the meaning of section 17(1) of
the Administration of Lands Act,
1962 (Act 123) which vested the
right to collect revenue from
stool lands in the Minister
responsible for Lands or his
agent; (2) the claim of right of
the accused was not bona fide
because he had had prior
warning from the Lands
Commission; and (3) that the
failure of the High Court judge
to particularize the counts for
conviction was a mere
irregularity.
Held,
allowing the appeal: (1) it was
indisputable that the management
of stool lands and the
collection of moneys itemized
under section 48 of the
Provisional National Defence
Council (Establishment)
Proclamation (Supplementary and
Consequential Provisions) Law,
1982 (PNDCL 42), which had
modified sections 1 and 17(1) of
the Administration of Lands Act,
1962 (Act 123) was the monopoly
of the Secretariat of the Lands
Commission through the
Administrator of Stool Lands.
It was not in dispute that the
Fahiakobo lands were stool
lands. Therefore dispute the
history behind how those lands
became part of the stool lands
of the respondent, those lands
were under the management of the
Stool Lands Commission
Secretariat and it was only the
administrator or his duly
appointed agent who could
lawfully collect revenue from
stranger farmers on those stool
lands in accordance with section
48(1) (c) of PNDCL 42. Since
there was no evidence which
created any exemption which took
the Fahiakobo stool lands from
the jurisdiction of the
Administrator of Stool Lands as
provided under section 48(1) (b)
and (c) of PNDCL 42, the
collection of revenue by the
respondent and his agents was
unlawful and constituted
stealing.”
It should be
emphasized that the reversal of
the Court of Appeal’s decision
by this court, on appeal, in
Osei Kwadwo II v The Republic
(2007-2008) SCGLR 148 does not
affect the law as to the nature
of stool lands as stated by the
Court of Appeal.
From all the
foregoing it should be clear
that the powers of management of
stool revenues, Royalties etc
vest in the stool or the
Administrator of Stool Lands
where the stool concerned has
proprietary title over the land
or property concerned for and on
behalf of a particular community
as a whole. The lack of stool
proprietary title over minerals
in their natural state makes all
stool pretences to control or
management over the same idle.
In clearer terms, if as
demonstrated at length, supra,
the acquisition by a customary
citizen of a usufruct in stool
land operates to exclude the
enjoyment, management and
control of such land from the
stool, then it must also follow
that the lodgment of the
ownership of minerals in their
natural state in the Republic of
Ghana and the President in trust
for the people of Ghana,
generally, does also exclude the
enjoyment, management and
control of such minerals from
the stools in whose lands such
minerals are found. This means
that the powers of control or
management of revenues,
royalties etc over minerals in
their natural state vest “in the
President on behalf of, and in
trust for the people of Ghana,”
under article 257(6) aforesaid.
It should be noted that this
trust over minerals in their
natural state is a “trust for
the people of Ghana” generally
therefore any attempt to have
the revenue, royalties accruing
from such minerals vested in a
stool and administered for the
benefit of a stool, traditional
authority or District Assembly
within the area of authority of
which such stool land is situate
under article 267(1) (2) and (6)
will be contrary to article
257(6) and accordingly null and
void. There is supportive
thinking, (in a broad sense),
on this issue from the
celebrated case of Omaboe III
and Others v. Attorney-General,
(2005-2006) SCGLR 579. At 596
-597 Professor Ocran JSC
delivering the unanimous
judgment of this Court held as
follows:
“The legal
import of the Administration of
Lands Act, 1962 (Act 123) in the
context of the 1992
Constitution, arts 257, 258 and
267(1)
The legal
characterization of “vesting”
under Act 123, s 7(1), appears
to be the same as under article
267(1) of the 1992 Constitution,
ie the acknowledgment of the
allodial ownership of land in a
particular entity. Indeed, this
provision is little more than a
re-enactment of the relevant
provisions in the Ghana
Constitutions of 1969 and 1979;
and article 267(1) of the 1992
Constitution simply restates the
constitutional policy of vesting
stool lands in the appropriate
stool for the benefit of the
subjects of the stool.
Allodial ownership of the sort
that is being referred to under
article 267(1) and section 7 of
the Administration of Lands Act,
1962, cannot be held
simultaneously in two distinct
entities unless a joint
ownership was intended. The
property in stool lands either
vests in the President, or in
the stool. Now, if, as article
267(1) provides: “stool lands in
Ghana shall vest in the
appropriate stool on behalf of,
and in trust for, the subjects
of the stool in accordance with
customary law and usage …”, then
such lands cannot simultaneously
vest in the President even as a
trustee of the subjects of that
stool. Therefore, after the
coming into force of the 1992
Constitution on 7 January 1993,
any statute or subsidiary
legislation which purports to
vest in the President or
Government of Ghana, lands which
are still stool lands, would run
counter to article 267(1) of the
1992 Constitution. In that
event, the constitutional
provision must prevail. Article
1(2), the supremacy clause, is
categorical. It states that:
“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.”…” (e.s.)
More
pertinent support for my view
that land or property vested in
the State or the President in
trust is outside the purview of
article 267(2) and consequently
outside the purview of stool
ownership and administration by
the Office of the Administrator
of Stool Lands is found at 599
as follows:
“
When we put together articles
257, 258 and 267, the following
appears to be the scheme of
landholding policy establishing
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.” (e.s.)
In sharp
contrast to this legal position,
Professor Justice Ocran
continues at 600 thus:
“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
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 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)
indicated 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 part 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.”
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.” (e.s.)
From all the
foregoing it is quite clear that
(1) Revenues, royalties, rents
etc accruing from stool lands
which have not been privatized
through the subjects’
acquisitions of usufructuary
titles vest in the stool and
consequently in the
administrator of stool lands,
(2) that revenues, royalties,
rents etc accruing from lands
privatized by individuals and
families out of stool lands vest
in such private owners and
consequently not in the stools
and therefore the Administrator
of stool lands, and (3)
similarly, since minerals in
their natural state are the
property of the Republic of
Ghana it follows that royalties,
charges etc relating to them
belong to the Republic and not
to any stool or skin and
subsequently vest in the
President in trust for the
people of Ghana and cannot
therefore be administered by the
Administrator of Stool Lands.
However since
the constitution, apart from
payments into the consolidated
Fund, does not stipulate, unlike
article 267 in the case of stool
lands how revenues, royalties
etc, can be collected and
administered the matter falls to
be regulated, if need be, under
the residual powers of
Parliament under article 298 as
follows:
“298.
Subject to the provisions of
Chapter 25 of this Constitution,
where on any matter, whether
arising out of this Constitution
or otherwise, there is no
provision, express or by
necessary implication of this
Constitution which deals with
the matter, that has arisen,
Parliament shall, by an Act of
Parliament, not being
inconsistent with any provision
of this Constitution, provide
for that matter to be dealt
with.”
Accordingly
parliament has rightly assigned
the revenue collection tasks of
the government or of the
President to the Ghana Revenue
Authority Act, 2009 (Act 791),
particularly under ss. 2(c),
3(h) and 28 thereof. This is
further supplemented by
particularly ss.22 – 26 of the
Minerals and Mining Act, 2006
(Act 703).
It is obvious
that s. 23(2) of Act 703
maintains the distinction drawn
at length in this judgment
between land revenues belonging
to private persons and to stools
respectively. It is as follows:
“Payments of
annual ground rent shall be made
to the owner of the land or
successors and assigns of the
owner except in the case of
annual ground rent in respect of
mineral rights over stool lands,
which shall be paid to the
Office of the Administrator of
Stool Lands, for application in
accordance with the Office of
the Administrator of Stool Lands
Act 1994 (Act 481).”
It must be
emphasized that the Constitution
has to be read with relevant
ordinary legislation where
compatible, see Kangah v. Kyere
(1982-83) 2 GLR 649, SC.
The
Constitution never intended that
the management of Lands and
Mineral resources should be
fused in one state agency, even
such as the Lands Commission let
alone the Office of the
Administrator of Stool Lands.
Thus at p.139 of the Report of
the Committee of expert on
Proposal for a Draft
Constitution of Ghana it is
stated as follows:
“THE
LANDS COMMISSION
STATUS OF THE
COMMISSION
305. The 1979
Constitution charges the Lands
Commission with responsibility
for the management of any land
or minerals vested in the
President. The fusion of the
management of lands and mineral
resources in one state agency is
not conducive to efficiency.
Most countries have a separate
agency dealing with mineral
resources, and it is hardly
surprising that the Lands
Commission was divested of this
responsibility by PNDCL 42. The
Committee endorses this
development.”
Conclusion
The
administrative correspondence
set out by my respected brother
Dotse JSC refers to “mineral
royalties ceded to the
Administrator of Stool Lands”
the word cede does not
connote entitlement as of right
on the part of the recipient of
what is ceded to him. However,
since article 257 (6) itself
concedes that though minerals in
their natural state are thereby
made “the property of the
Republic of Ghana and shall be
vested in the President on
behalf of, and in trust for the
people of Ghana”, those
minerals are undoubtedly, “in ,
under or upon … land in Ghana”,
it follows that the lands in
which they are found, if they
are stool lands, can attract
“annual ground rent in respect
of mineral rights over stool
lands”, in accordance with
section 23(2) of the Minerals
and Mining Act, 2006 (Act 703).
In my opinion such rents are
receivable by the Office of the
Administrator of Stool Lands
under article 267(2). Such
annual ground rent is therefore
not within the remit of the
third defendant but rather of
the second defendant, as per the
provisions of s 23(2) of Act
703, aforesaid.
However as
there is no claim in respect of
such rent it would seem that
there has been no infraction in
respect of the same.
For all the
foregoing reasons I would
dismiss the plaintiffs’ action.
(SGD) W. A. ATUGUBA
JUSTICE OF THE
SUPREME COURT
SOPHIA
ADINYIRA (MRS.) JSC:
This court is
unanimous in its decision that
the Plaintiffs have properly
invoked our jurisdiction under
Articles 2 (10 (a) and 130 (1)
of the 1992 Constitution. I had
the privilege to read beforehand
the contrasting opinions of my
respected brother, Atuguba and
Dotse and I seem to agree with
the conclusion reached by my
brother Atuguba that the
Plaintiffs’ action be dismissed.
Upon my
reflection and appreciation of
the facts and submissions filed
on behalf of the parties, I
think in those circumstances I
can properly express my own
views as to the capacity in
which the 3rd
defendant, the Ghana Revenue
Authority acts in collecting
revenue from the exploitation of
mineral resources in this
context gold from stool lands,
instead of the 2nd
Defendant, the Office of the
Administrator of Stool Lands the
body mandated under Article 267
to collect revenue, royalties
etc accruing from stool lands.
The facts,
and issues for determination are
fully and ably set out in the
opinions of my eminent brothers
and I need not set them out
here. The position of the
Supreme Court on the role of the
Office of the Administrator of
Stool Lands and the Lands
Commission was clearly set out
by the Supreme Court in the case
of Omaboe III and Others v.
Attorney-General and Lands
Commission [2005-2006] SCGLR
579
The
Plaintiffs claim to be allodial
owners of land on which some
mining companies have their
concessions and have been
extracting gold. The Plaintiffs
are seeking from this Supreme
Court a declaration that the 2nd
Defendant, the Office of thee
Administrator of Stool lands who
is mandated to collect royalties
in the nature of income or
capital from stool lands is the
constitutionally mandated to
collect royalties from the
minerals mined in stool lands in
Ghana under Article 267 clauses
2 (a) (b) and (c) and clause.
Further Plaintiffs seek to have
the 3rd Defendant the
Ghana Revenue Authority
restrained from collecting
royalties from the various
mining companies which they
claim is contrary and in
contravention of the clear words
of Article 267 clauses 2 (a)
(b) and (c)and clause 6.
Chapter 21 of
the Constitution 1992 deals with
Land and Mineral Resources.
Article 267 which deals with
Stool and Skin Lands falls under
this Chapter. One 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 would
lead into internal
inconsistency. In applying this
principle in construing the
constitution the Court must look
at all the provisions under this
chapter as a whole.
It seems to
me that the real issue for
determination before us turns on
who owns the mineral resources
for which mining companies pay
royalties, who is mandated to
collect such mineral royalties;
and how it is to be disbursed.
It should be pointed out that
Article 267 does not contain the
words ‘mineral royalties’ as
described by the plaintiffs; but
simply ‘royalties’ from stool
lands.
In relation
to mineral resources, Article
257(6) of the 1992 Constitution
under chapter 21 provides:
“Every
mineral in its natural state in,
under or upon any land in Ghana,
rivers, streams, water course
throughout Ghana, the exclusive
economic zone and any area
covered by the territorial sea
or continental shelf is the
property of the Republic of
Ghana and shall be vested in the
President on behalf of, and in
trust for the people of Ghana.”
[e.s]
It is noted
though, that Article 257 is
headed ‘Public Lands’, the side
notes says Public Lands and
Other Public Property. From the
reading of the whole of Article
257, it is evident that only
clause (6) deals with public
property which is natural
resources found in any land
which is vested in the President
on behalf of and in trust for
the people of Ghana. [e.s].
Clearly by
the use of the words ‘any
land in Ghana’ in Article
257 (6), no distinction is made
between public and stool lands.
This constitutional provision is
clear and unambiguous, and the
plain and ordinary meaning one
can give is that all the mineral
resources found in the
territorial area of Ghana
including water course, the
economic zone, sea and
continental shelf; is the
property of the Republic of
Ghana and is vested in the
President on behalf of and in
trust for the people of Ghana
It follows
that irrespective of where
mineral resources in its natural
state are found in Ghana, no
person including the stool,
skin, family or individual is
entitled to any mineral in its
natural state found in, under or
upon land of which he/she holds
title or rights.
It is
important to stress that since
the Constitution has vested the
ownership of mineral resources
in the President, by necessary
implication, the management of
royalties accruing from the
exploitation of same also vests
in the President on behalf of
and in trust for the people of
Ghana Accordingly all revenue
accruing from mineral resources
extracted from any land in Ghana
including stool land is
primarily public funds and
therefore shall be paid into the
Consolidated Fund under Articles
175 and 176 of the Constitution.
The disbursement and use of such
revenue is by the discretion of
the executive contained in
appropriate legislation.
Although the
Constitution was silent as to
what body that was to actually
collect and administer the
revenue accruing from minerals
in their natural state for and
on behalf of the people of
Ghana; it is the executive arm
of government that is to carry
out the function, purpose and
policy flowing from Article 256
(6). In this connection I refer
to Article 58 (1) and (2) which
provides:
(1)
The
executive authority of Ghana
shall vest in the President and
shall be exercised in accordance
with the provisions of this
Constitution.
(2)
The
executive authority of Ghana
shall extend to the execution
and maintenance of this
Constitution and all laws made
under or continued in force by
this Constitution.
The 3rd
Defendant, the Ghana Revenue
Authority is the body set up by
an Act of Parliament, the Ghana
Revenue Act, 2009, Act 791 as
amended by Act 794 to collect
tax, royalties or other moneys
raised or received for the
purposes of, or on behalf, of
government and any other monies
raised or received in trust for,
or on behalf, of government. The
Minerals (Royalties)
Regulations, 1987 (L.I. 1349)
specifically mandates the Ghana
Revenue Authority to collect
royalties on behalf of the
government.
The executive
usually acts with the
authorization of the legislature
and “[W]here the Executive
Branch of government acts with
the authorization of the
legislature, one would be hard
put to question the authority of
the executive, unless, of
course, the legislature itself
had exceeded its constitutional
authority in enacting the
enabling power for the
executive” Per Date-Bah JSC in
Amegatcher v Attorney-General
(No 2) [2012] 2 GLR 933 at
956.
There is no
conflict between these two
legislations and Article 267 (2)
since the mineral being
exploited is vested in the
President; the Office of the
Administrator of Stool Lands is
therefore not the proper body to
collect royalties from the
exploitation of mineral
resources. What properly falls
within the constitutional ambit
of the office of the
Administrator of Stool Lands is
the 10% of mineral royalties
collected by the Ghana Revenue
Authority and paid into the
Consolidated Fund that in
compliance with the provisions
of the Minerals and Mining Act,
is paid out of the Consolidated
Fund as disbursable revenue to
the Accounts of the Office of
the Administrator of Stool Lands
for disbursement to beneficiary
stools. The correspondences
attached to the
Plaintiffs’statement of case
amply support this view. This
arrangement is not
unconstitutional.
Further the
exploitation of any such mineral
resources is regulated by the
Minerals and Mining Act, 2006,
Act 703. Section 1 reproduces
Article 257 (6) of the
Constitution supra, and
section 9(1) of Act 703 provides
that:
“Despite a
right or title which a person
may have to land in, upon, or
under which minerals are
situated, a person shall not
conduct activities on or over
the land in Ghana for the
search, reconnaissance,
prospecting, exploration or
mining for a mineral unless the
person has been granted a
mineral right in accordance with
this Act.’’
The owner of
such mineral enriched land is
however entitled to receive
payment of ground rent from the
holder of a mineral right
acquired under section (1) of
Act 703 supra and also
compensation for the disturbance
of his rights as provided under
section 73(1) of Act 703:
“The owner or
lawful occupier of any land
subject to a mineral right is
entitled to and may claim from
the holder of the mineral right
compensation for the disturbance
of the rights of the owner or
occupier, in accordance with
section 54.”
Meanwhile
Section 23 (1) and (2) of Act
7o3 provide:
(1)
A
holder of a mineral right shall
pay an annual rent as
prescribed.
(2)
Payments of annual ground rent
shall be made to the owner of
the land or successors and
assigns of the owner except
in the case of annual ground
rent in respect of mineral
rights over stool lands, which
shall be paid to the Office of
the Administrator of Stool
Lands, for application in
accordance with the Office of
the Administrator of Lands Act
,1994 ,Act 481. [ e.s]
In applying
the section 23 (2) of Act 703,
it means the only revenue that
the Office of the Administrator
of Stool Lands collects, and
disburse is the annual ground
rent paid by the holder of a
mineral right operating on
stool land as required under
Article 267 (2)of the
Constitution and Act 481.
From the
foregoing I will dismiss the
Plaintiffs’ action.
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
AKAMBA, JSC:-
I have had
the privilege of reading in
draft the divergent opinions in
this proceeding of my two
respected brothers Atuguba, JSC
and President of the Court and
Dotse, JSC. I fully agree with
the views of my esteemed
President and the conclusions
arrived that the plaintiffs’
writ be dismissed. I however
wish to express myself, on a few
matters arising from this case
in the light of this court’s
decision in Omaboe III and
others v Attorney General
(2005-2006) SCGLR 579, in the
hope that some confusion
regarding that case may be
clarified.
The facts and
issues for determination have
been fully and ably set out in
the opinions of my two respected
brothers, hence I will skip
repeating them. The Omaboe case
was a case stated by the High
Court, Accra under article 130
(2) of the 1992 Constitution for
interpretation by this court of
the following: “Whether or not
by virtue of article 267 (1) of
the 1992 Constitution, the
vesting power of E.I. 108 of
1964, namely, the Accra-Tema
City Stool Lands (Vesting)
Instrument, 1964 has lapsed.”
The court by
its unanimous decision held that
upon a true and proper
construction of article 267 (1)
of the Constitution 1992, the
Accra-Tema City Stool Lands
(Vesting) Instrument 1964 (EI
108 of 1964) made under section
7 (1) of the Administration of
Stool Lands Act, 1962, (Act 123)
has not lapsed. The decision
also significantly construed
that, article 267 (1) of the
Constitution 1992 does not bar
the state, subject to the
protective terms of article 20,
from compulsory acquisition of
stool lands, under appropriate
legislation pointing out that
portions of stool lands, like
other private lands, may be
compulsorily acquired by
Government 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.
However, in such case the
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. The
court construed that the
management regime for stool
lands vested in the appropriate
stools under article 267 (1) and
other consequential matters come
under the various provisions of
article 267 of the Constitution,
including the management role of
the Office of the Administrator
of Stool lands and the
concurrence role of the Lands
Commission.
The decision
appreciates the distinction
between proprietary title over
minerals in their natural state
which are vested in the state
and proprietary title over land
which may be vested in a stool
for and on behalf of a
particular community. Article
257 of the Constitution 1992
deals with Public Lands and
other Public Property. Article
257 (1) states that: “All public
lands in Ghana shall be vested
in the President on behalf of,
and in trust for, the people of
Ghana.” Article 257 (6) also
states that: “Every mineral in
its natural state in, under or
upon any land in Ghana, rivers,
streams, water course throughout
Ghana, the exclusive economic
zone and any area covered by the
territorial sea or continental
shelf is the property of the
Republic of Ghana and shall be
vested in the President on
behalf of, and in trust for the
people of Ghana.” The article is
quite clear and devoid of any
complexities as to who should be
entitled to royalties accruing
from the extraction of mineral
wealth even if those lands fall
within stool lands. The stools
may be entitled to rents and
other benefits for the use over
their stool land as provided by
article 267 (2) of the
Constitution (1992) but not the
minerals in or under their stool
lands. The Office of the
Administrator of Stool Lands
created under article 257 (2) is
entitled to collect rents, dues,
royalties, revenues or other
payments whether in the nature
of income or capital from the
stool lands. As I indicated
above since all minerals belong
to the Republic of Ghana by
virtue of article 257 (6) they
cannot be part of the stool’s
ownership of the stool land and
hence cannot derive royalties,
so called from them.
In the
circumstance, I am also unable
for reasons that follow shortly,
to agree with Dotse, JSC that
because the Ministry of Finance
and the Controller and
Accountant General, both
represented by the 1st
defendant herein, have by some
correspondences ceded to the
Administrator of Stool Lands,
mineral royalties otherwise due
to the Government of Ghana, that
this tantamounts to a ‘clear
recognition ‘ and indications
that ‘they have all acknowledged
the 10% revenue that is due to
the 2nd defendant for
disbursement as mineral
royalties as is contained in
article 267 (6) of the
Constitution 1992.’ Such an
interpretation is clearly
unsupportable in view of the
distinction between Public Lands
and other Public Property on one
side and Stool and Skin Lands
and Property on the other as
formulated in articles 257 (1)
to (6) and 267 (1) to (9)
respectively of the Constitution
1992.
The State per
the President, acting with
proper authorization and through
the appropriate Ministry may
cede what is rightly for the
State to the Administrator of
Stool Lands for development
purposes of a stool area but
this would not be because they
are under any Constitutional
obligation arising from section
257 so to do. The Office of the
Administrator of Stool Lands is
created to be responsible for
stool land accounts. It also has
the responsibility under article
267 (6) of the Constitution to
disburse revenue accruing from
stool lands according to laid
down formula. The Administrator
of Stool Lands has no business
in disbursing revenue accruing
from the State’s ownership of
minerals in their natural state.
The assignment by the State for
the Administrator of Stool Lands
to distribute the ceded funds
appears to be the source of the
confusion which could have been
avoided by using the Lands
Commission for the undertaking.
Revenue accruing from mineral
extraction from any land in
Ghana, be it ordinarily public
land or stool land, remains
public funds payable into the
appropriate funds as provided
in articles 175 and 176 of the
Constitution.
For these
reasons and those advanced by
Atuguba, JSC I find the
Plaintiffs’ writ bereft of any
merit and is dismissed in its
entirety.
J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD) R. C. OWUSU
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE
SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE
SUPREME COURT
DISSENTING
OPINION
DOTSE JSC:-
I have been
privileged to have read the
opinion of my respected brother
Atuguba JSC and President of the
Court this morning.
Unfortunately I am unable to
agree with the conclusions
reached in his opinion. I am
therefore constrained to proceed
to give my opinion in this case,
because it is my view that,
looking at the reliefs the
plaintiffs have claimed in this
court, especially their claims
in reliefs (a) (b) and (c), and
the unanimous decision of this
court in the case of Omaboe
III and others v
Attorney-General & Land
Commission [2005-2006] SCGLR
579 from which this Court has
not departed from, the
Plaintiffs must succeed on their
claims.
In this
action, the Plaintiffs have
invoked the original
jurisdiction of this court,
claiming the following reliefs:
a.
Declaration that:-
i.
It is the 2nd
Defendant which is mandated to
collect and disburse royalties
due to the beneficiaries
mentioned under Article 267
clauses 6 (a) (b) and (c)
of the 1992 Constitution.
ii.
The royalties mentioned under
Article 267 Clauses (2) (a) (b)
and (c) and clause (6) are to
be shared by or among the
institutions, mentioned
under the said Article and in
the manner specified
therein.
b. A
declaration that the Plaintiffs
and the other beneficiaries
under Article 267 (6) (a) –
(c) have been underpaid
consistently since the coming
into force of the
Constitution on the 7th
day of January 1993 by the
Defendants which have
ceded only ten per centum (10%)
of all royalties collected by
the 3rd Defendant
from the various mining
companies operating on the
plaintiffs’ respective
stool lands to the 2nd
Defendant and all the
beneficiaries named
under Article 267(6).
c. A
declaration that the 2nd
Defendant has failed, refused or
neglected to perform its
Constitutional and statutory
functions under the 1992
Constitution and the Office of
the Administrator of Stool lands
Act, 1994 (Act 481).
d. A
declaration that the collection
of royalties from the various
mining companies in
the country by the 3rd
Defendant instead of the 2nd
Defendant is contrary to and in
contravention of the clear and
unambiguous words of the
1992 Constitution and sections 2
(a) (b) and (c) of Act 481
of 1994.
e. An
order directed to the 2nd
Defendant to strictly perform
its functions in accordance
with Article 267 (2) (a) (b) and
(c) and (6) of the 1992
Constitution and sections 2 (a)
(b) and (c) and 8 (a) (b) and
(c) of Act 481 of
1994.
f.
An order prohibiting the 3rd
Defendant or any other state
institution or agency
from performing the
constitutional and statutory
functions clearly and
expressly reserved for the 2nd
Defendant.
g. An
order directed to the Defendants
to account for the collection of
royalties from the various
mining companies since the 7th
day of January 1993 and to pay
the total sum being the
difference between what has
been paid and what ought to have
been paid between the 7th
day of January 1993
and the dates of final Judgment
to the Plaintiffs.
h.
Legal costs
I have
perused the erudite statements
of case filed by Counsel for the
respective parties in the suit.
In this very
brief judgment, I have decided
to refer to some exhibits
(letters) that have been
attached to the case of the
Plaintiffs. As will presently be
seen in these letters, they have
been authored by Institutions,
to wit, the 3rd
Defendants, the Ministry of
Finance and the Controller and
Accountant General, all
represented therein by the 1st
Defendants, Attorney-General.
These then are as follows:
“3rd
April 2012
“The Hon.
Minister
Ministry of
Finance & Economic Planning
P. O. Box
M.40
Accra
Dear Sir,
PAYMENT OF
MINERAL ROYALTIES CEDED TO THE
ADMINISTRATOR OF STOOL LANDS FOR
THE MONTHS OF SEPTEMBER,
OCTOBER, NOVEMBER AND DECEMBER
2011
Kindly find
enclosed the statement of
account of Mineral Royalties
collected by the Domestic Tax
Revenue Division of the Ghana
Revenue Authority and ceded to
the Administrator of Stool Lands
for the above-stated period.
The total
Royalties collected by the
Service over the period amounted
to Seventy Six Million Three
Hundred and Thirty-Two Thousand
Three Hundred and Seventy one
Ghana Cedis thirty-eight Ghana
Pesweas (GH¢76,332,371.38) based
on amounts credited by Bank of
Ghana of which 10% portion
amounting to seven Million, Six
Hundred and Thirty-Three
Thousand, two Hundred and
Thirty-Seven Ghana Cedis
Fourteen Ghana pesewas
(GH¢7,633,237, 140 is ceded to
the Minerals Commission in
accordance with letter No. AB.
85 136/01 dated 21st
January 1999.
We wish to
request you to authorize Bank of
Ghana and Controller &
Accountant General to transfer
(7,633,237.14) into the
Administrator of Stool Lands’
Account Number 01256=600740-25
(Disbursable Revenue) with Bank
of Ghana from the Consolidated
fund.
We count on
your usual co-operation
Yours
faithfully,
For:
Commissioner-General
Comfort
Boohene-Osafo (Mrs)
Ag.
Commissioner- DTRD”
Based on the
above letter, the Hon. Minister
of Finance, to whom the letter
of the Ghana Revenue Authority,
dated 3rd April 2011
replied as follows:
“10th
May 2012
Our Ref. No.
040/MLNR/MC/12/05
PAYMENT OF
MINERAL ROYALTIES CEDED TO THE
ADMINISTRATOR OF STOOL LANDS FOR
THE MONTHS OF AUGUST, SEPTEMBER,
OCTOBER, NOVEMBER AND DECEMBER
2011
Please refer
to Ghana Revenue Authority
letter dated 2nd
November 2011 and 3rd
April 2012 and addressed to
this Ministry on the above
subject (copy attached).
2.
Authority is hereby conveyed to
you to transfer the sum of
GH¢8,998,403.37 (Eight Million,
Nine Hundred and Ninety Eight
Thousand, Four Hundred
and Three Ghana Cedis and Thirty
Seven Ghana pesewas) from
the Consolidated Fund into
the Office of the Administrator
of Stool Lands
Account No. 01256-600740-15
(Disbursable Revenue) lodged at
the Bank of Ghana for
disbursement to beneficiary
stools.
3.
The total amount of
GH¢8,998,403.37 represents 10%
of Mineral Royalties
collected by the
Ghana Revenue Authority for the
month of August, September,
October, November and
December, 2011 amounting to
GH¢8,998,403.37 and ceded to the
Administrator of
Stool Lands.
Hon. Seth
Terkper
Deputy
Minister
For: Minister
The
Controller and
Accountant-General
Cc: The
Hon. Minister MOFEP
The Hon. Minister, MLNR
The Hon. Deputy Minister (EP),
MOFEP
The Chief Director, MOFEP
The Chief Director, MLNR
The Director of Budget, MOFEP
The Auditor-General
The Administrator, OASL”
“My Ref. No:
C2/BTA/G&
S/12/3732
11th June 2012
The Director
Banking Dept
Bank of Ghana
Accra
Dear Sir,
BANK TRANSFER
ADVICE
Please
transfer the sum of
GH¢8,998,403.37 (Eight Million,
Nine Hundred and Ninety Eight
Thousand, Four Hundred Three
Ghana Cedis and Thirty Seven
Ghana pesewas) from the Govt
Main Treasury Cash Account,
Account No.01213-600140-39 into
the Ministry of Lands and
Forestry SUB CF Operational
Account No. 01211360074001.
This transfer
is to facilitate the payment
representing 10% of Mineral
Royalties collected by the GRA
for the months of August,
September, November and December
2011.
Grace Adzroe
Dep. Cont. &
Acct. Gen. (F& A)
Cc:
Auditor-General
Reconciliation Unit, CAGD
Director-Research, Bank of Ghana
Head of Accounts, MLNR”
As can be
seen from all the above letters,
clear recognition and
indications has been given to
the provisions contained in
article 267 (2) and (6) of the
Constitution 1992. Specifically,
it is observed that the relevant
state institutions therein
mentioned, namely the 3rd
Defendants, the Ministry of
Finance and Controller and
Accountant General represented
by the 1st
Defendants, have all
acknowledged the 10% of the
revenue that is due to the 2nd
Defendant for disbursement as
mineral royalties as is
contained in article 267 (6) of
the Constitution 1992.
There is a
further recognition of the
management role that the office
of the 2nd Defendant
is required to perform under the
Constitution 1992. There is
therefore some consistency
between the rule of practice
that has developed between the
relevant state institutions in
respect of their management role
over royalties and the
applicable constitutional
provisions in article 267 (2)
and (b) of the Constitution
1992.
I have also
looked at the memorandum of
agreed issues filed jointly by
the counsel in the case on 7th
May 2012. From the said
memorandum of agreed issues, the
issues that are germane to the
resolution of the real and
genuine issues in this case are
the following.
1.
Whether or not revenue or
incomes specified under Article
267 (2) (a), (b) and (c) and
clause 6 of the 1992
Constitution are public funds.
(Note that, public funds is
defined in article 175 of the
Constitution as “the public
funds of Ghana shall
be the consolidated fund, the
contingency fund and such
other pubic funds as may be
established by or under the
authority of an Act of
Parliament.)
2.
Whether or not the collection
and disbursement being done by
the 3rd
Defendant are inconsistent with
and in contravention of Article
267 clause (2) and clause 6
of the 1992 Constitution.
The remaining
issues are all subsumed under
these two issues. Before the
substantive issues are dealt
with, the issue as to whether
this court has jurisdiction in
the action has to be dealt with.
The
defendants have argued that the
plaint of the plaintiffs is
cognisable before the High Court
and that, this Supreme Court
lacks jurisdiction. The argument
of the Defendant is that no
serious constitutional issue has
been raised, and as a result,
this court must decline
jurisdiction. I beg to differ.
Having
perused the submissions on this
issue of jurisdiction, I am of
the considered view that the
plaintiffs action is perfectly
sustainable in this court and is
warranted by article 2 (1) (a)
and 130 (1) of the Constitution
1992.
I will
therefore dismiss this
preliminary objection.
After a
careful analysis of the
pleadings, the statements of
case, relevant constitutional
provisions, substantive and
subsidiary legislations as well
as case law, I am of the
considered opinion that the
resolution of the issues set out
supra has already been properly
dealt with by the unanimous
decision of the Supreme court in
the case of Omaboe III and
Others v Attorney General &
Lands Commission [2005-2006]
SCGLR 579, especially holding 3
and 4. Wherein it was held as
follows:-
“(3) The management regime for
stool lands vested in the
appropriate stools under
article 267 (1) and other
consequential matters come under
the various provisions of
article 267 of the Constitution,
including the management
role of the Office of the
Administrator of Stool Lands and
the concurrence role of the
Lands Commission.
(4) Article 267 (2) of the same
Constitution directly
establishes the Office of the
Administrator of Stool Lands
whose function 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 of Stool Lands 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 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.”
In view of
this lucid and authoritative
decision of the Supreme Court, I
do not think there is any reason
to depart from same. In deciding
to anchor my decision on this
Omaboe case, I have taken into
account, the provisions of
article 257 (6) of the
Constitution 1992 which vests
all minerals in their natural
state in the Republic through
the President as a trustee.
I have also
looked at the definition of
stool lands as has been captured
in article 295 of the
Constitution 1992 as well as
definitions or inferences of
what is a mining royalty under
the Minerals and Mining Act,
2006, Act 703. In view of the
lack of clarity in all the
relevant constitutional
provisions and statutes, I am of
the view that, once the
Constitution has distinguished
the fact that “ownership of all
minerals” in their natural state
are vested in the President and
there is the same distinction
between stool lands and public
lands, the clear words of
article 267 (2) and (6) of the
Constitution 1992 make the
decision in Omaboe very
compelling and irresistible to
follow.
In view of my
analysis and appreciation of the
facts of this case based on the
above decision in Omaboe case, I
am of the view that pubic funds
have been so defined that it
admits of no complexities or
absurdity.
Any funds
which are public in nature and
which are paid into the
consolidated, contingency or
other funds established by
authority of an Act of
Parliament are public funds. It
therefore follows that, mining
royalties collected under the
Minerals and Mining Act, Act 703
are public funds.
Besides, this
court in the Omaboe case clearly
spelt out the functions of the 2nd
Defendants to include among
others management, revenue
collection and disbursement of
the revenue so collected. If
they are to collect revenue and
disburse same, it follows that,
revenue collection and
disbursement can only be of the
public funds that have been
entrusted to them under the
Constitution. I therefore hold
that, the revenue or incomes
specified under Article 267 (2)
(a) (b) and (c) and clause (6)
of the Constitution 1992 are
public funds with clear mandate
as to the agency authorised to
collect and disburse same in
contra distinction to
utilization of other public
funds which do not have any such
limitation.
Flowing from
the above and the decision of
this court in the Omaboe case,
it follows that the collection
and disbursement of these funds
as is being done by the 3rd
Defendants is in contravention
and inconsistent with the
provisions of article 267 clause
(2) and clause (6) of the
Constitution 1992.
Under the
circumstances, I am of the
considered opinion that, from
the nature the plaintiffs have
couched their reliefs, it is
imperative that, based on the
decision in the Omaboe case,
they must succeed substantially
in their action as follows:
Based on the
above decision, I will grant the
plaintiff’s the following:
Reliefs (a) (i)
and (ii) are hereby granted.
Relief (b) is also granted,
however there will be a provisio
that funds not paid since 7th
January 1993 need not be paid,
but any arrears from January
2012 must be paid. This is
because, from records, the last
disbursement to the 2nd
Defendants was in December 2011.
Relief (c) is
also granted
Relief (d) is
also granted
Relief (e) is
also granted
With the
grant of the reliefs (a), (c)
and (d) relief (f) has become
superfluous.
Relief (g) is
refused as that is likely to
lead to confusion. Save as
stated above, the plaintiffs’
succeed on their claims.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE
SUPREME COURT
COUNSEL
ADDAE ABOAGYE
ESQ. ( WITH HIM OWUSU BANAH)
FOR THE PLAINTIFFS.
DR. B. I.
KORAY ESQ.(PRINCIPAL STATE
ATTORNEY ) FOR THE 1ST
2ND
DEFENDANTS .
MRS. JOYCE
RITA ADDAE- KUMI ESQ. FOR THE 3RD
DEFENDANT. |