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Acquisition of land - Compulsory
acquisition - Vesting of
property - Property acquired
vests outright in President and
not in beneficiary - State Lands
Act 1962 (Act 125), ss 1 and 3.
Acquisition of land - Compulsory
acquisition - Publication of
acquiring Instrument - Omission
to publish fatal - State Lands
Act 1962 (Act 125), s 2.
Acquisition of land -
Compulsory acquisition - Purpose
of acquisition - Acquisition for
statutory corporation - Whether
statutory corporation qualified
as a beneficiary of acquisition
- - Whether acquiring Instrument
ultra vires, null and void -
State Lands Act 1962 (Act 125),
s 1(1) - Interpretation Act
1960, CA 4 section 32(1).
By the Executive Instrument No
58 of 1979 made under the State
Lands Act 1962 (Act 125), the
Supreme Military Council
declared the land in dispute to
be land required in the public
interest for use by the
appellant statutory corporation.
The appellant’s workers
thereupon entered onto the land,
pulled down some buildings
constructed thereon and ordered
other building operations to
stop forthwith. The respondent
instituted the present action as
the Head of Nii Amarh Sagblah
Family of Osu on behalf of the
said family and the people of
Haatso township for a
declaration that the said
executive instrument and the
purported compulsory acquisition
of the disputed land were
ultra vires, null and void
and damages for trespass and
perpetual injunction restraining
the appellants from interfering
with the land. The trial judge
gave judgment in favour of
respondent and dismissed the
appellant’s counterclaim for
declaration of title. She held
that the Instrument was ultra
vires and of no legal effect
because the appellant
corporation did not qualify as a
“person” for whose benefit land
might be acquired compulsorily
under Act 125. She held further
that because there was no
publication of EI 58 as required
under Act 125 the land in
dispute never vested in the
President and therefore all the
dealings of the appellant in the
land were unlawful. She however
dismissed the respondent’s claim
for damages for trespass.
Held,
Amuah JA
dissenting, (1) that land
acquired compulsorily under Act
125 vested in the President and
not in the ultimate beneficiary
or grantee of the land so
acquired. It was only after the
land had vested in the President
that the Lands Commission could
make grants and allocations
thereof.
(2) The claim that the
Commissioner for Lands lacked
legal power and lawful authority
to make EI 58 was plainly
misconceived. EI 58 was a lawful
instrument of full legal force
and effect.
Per
Amuah JA.
The words “any person” appearing
in section 1(1) of Act 125
cannot be given a narrow meaning
so as to exclude statutory
bodies. The Interpretation Act
1960, CA 4 section 32(1)
provides that in an instrument
“person” includes “a body
corporate (whether corporation
aggregate or a corporation
sole)”. Under subsection 1 of
section 1 of Act 125 the
President can declare land
required for the benefit of a
statutory corporation such as
the State Insurance Corporation.
(3) The Lands Commission was
enjoined under Act 125 to ensure
that actual notice of the
intended compulsory acquisition
was given to all persons who
might be affected by the
compulsory acquisition. The
legal effect of the failure of
the commission to publish the
Instrument was that the land in
dispute never vested in the
President. The trial judge
however erred in dismissing the
claim for trespass. Rockson v
Agadzi [1979] 1 GLR 106
approved.
Cases referred to:
Majolagbe v Larbi
[1959] GLR 190.
Rockson v Agadzi
[1979] GLR 106.
Vanderpuije v Golightly
[1965] GLR 453, SC.
APPEAL from the judgment of the
High Court.
S Kwami Tetteh
(with him Fie) for the
appellant.
James Ahenkorah
(with him Yeboah) for the
respondent.
LAMPTEY JA.
On 2nd October 1987 one Ebenezer
Tetteh Amartei, in his capacity
as Head of Nii Amarh Sagblah
Family of Osu on behalf of the
said Family and people of
Haatso, (hereinafter referred to
as “the plaintiff”) sued the
State Insurance Corporation
(hereinafter referred to as “the
corporation”) and sought the
reliefs endorsed on the writ of
summons. In due course, the
Attorney-General was by an order
of the court joined as 2nd
defendant. Briefly put, the
claim of the plaintiff was that
the President had no lawful
power to compulsorily acquire
land for the benefit, use and
purposes of the corporation. The
plaintiff further claimed that
the entry of the corporation on
the land in dispute constituted
actionable trespass. The defence
put forward by the corporation
and the Attorney-General was
that the President had lawful
authority to acquire the land in
dispute and to vest it in the
corporation. At the end of the
trial on the merits, judgment
was entered for the plaintiff
for the reliefs he claimed
except the claim for damages for
trespass which claim the court
dismissed. The corporation was
aggrieved by the judgment and
appealed to this court. The
plaintiff was dissatisfied with
the dismissal of his claim for
damages for trespass and asked
this court to set aside the
order dismissing that head of
claim and further to award him
damages for trespass.
The facts which gave rise to the
instant litigation are fairly
simple. The corporation was
desirous of acquiring a fairly
large tract of land in order to
develop it into a housing
estate. For the above purpose
the corporation selected land in
Haatso area. On enquiries as to
ownership of the land, the
corporation learnt that five
different and unrelated families
each laid claim to ownership of
the tract of land. In the
circumstances, the corporation
sought the assistance of the
Lands Commission to enable the
corporation acquire the tract of
land by resorting to compulsory
acquisition. The Lands
Commission therefore purported
to compulsorily acquire the land
by resorting to the power
granted by the State Lands Act,
1962 (Act 125). The corporation
in the meantime entered the land
in dispute and commenced its
project. The plaintiff took the
instant action to test the
legality of the purported
compulsory acquisition and the
entry on the land by the
corporation at the time it
entered it.
One ground of appeal argued with
considerable force was that the
trial judge erred in law when
she held that EI 58 was ultra
vires the Commissioner for
Lands, and was therefore of no
legal force and effect. Counsel
for the appellant argued that
the finding by the trial judge
that the corporation cannot be a
beneficiary of land compulsorily
acquired under Act 125 was
erroneous in law. He contended
that the corporation is a
“person” within the meaning and
intendment of Act 125 and
therefore can lawfully be a
beneficiary of land compulsorily
acquired pursuant to Act 125. He
submitted that the Commissioner
for Lands was clothed with
lawful authority by section 1(1)
of Act 125 to sign EI 58. He
submitted that EI 58 was a
lawful instrument and must be
given its legal force and effect
by this court.
In reply, learned counsel for
the respondent submitted that
the trial judge was right in law
in holding that EI 58 was a
nullity and was void ab
initio. He argued that
the Commissioner for Lands had
no power under section 1(1) of
Act 125 to purport to
compulsorily acquire land for
the benefit and purposes of the
corporation. He contended that
the corporation had power under
section 3(c) of Act 232 to
acquire land without recourse to
the Commissioner for Lands. He
submitted that the Commissioner
for Lands erred in signing EI 58
since he had no legal power to
do that.
In my opinion two quite distinct
issues arise for consideration
and determination. These are:
(1) whether or not the
Commissioner for Lands has power
to compulsorily acquire land;
and (2) whether or not the
corporation can be a beneficiary
of land compulsorily acquired
under (1) above.
I will deal first with issue (1)
above. The trial judge had no
difficulty in resolving this
issue. She held as follows:
“It seems to me plain from s
1(1) and s 3 of Act 125 that the
President has power under
certain circumstances to
compulsorily acquire any land
and vest it in himself for and
on behalf of the Republic free
from any encumbrances.”
It will be seen from the
interpretation placed on the
relevant section of Act 125 to
which the trial judge made
reference that land compulsorily
acquired under Act 125 vests in
the President and not in the
ultimate beneficiary or grantee
of the land so acquired. It is
only after the land to be
compulsorily acquired had vested
in the President pursuant to Act
125 that the right of the Lands
Commission to make grants and
allocations of the land so
acquired comes into play. It
will thus be seen that there is
a clear right to compulsorily
acquire land in the public
interest and an entirely
different and further right to
deal with the land so acquired.
The submission that the
Commissioner for Lands lacked
legal power and lawful authority
to sign EI 58 is plainly
misconceived. I hold that EI 58
is a lawful instrument of full
legal force and effect.
Before I deal with issue (2)
raised above, I wish to consider
the equally important issue
whether or not the land in
dispute vested in the President
in the instant case within the
meaning and intendment of Act
125. I have adopted this
approach because of the
submission from learned counsel
for the corporation that on the
mere signing by the Commissioner
for Lands of EI 58 the
corporation was, without more,
lawfully entitled to enter the
land in dispute and commence its
project. I think this argument
overlooks other provisions of
Act 125, in particular, the
mandatory provisions of section
2 of Act 125. This section deals
with publication of EI 58 and
provides as follows:-
“2. A copy of the instrument
made under the preceding section
shall
(a) be served personally on any
person in occupation of the
land; or
(b) be left with any person in
occupation of the land and
(c) be affixed at a convenient
place on the land and
(d) be published on three
consecutive occasions in a
newspaper circulating in the
district where the land is
situate.”
The obligations and duties
imposed on the Lands Commission
in the acquisition process as
spelt out above are mandatory
and not permissive. The Lands
Commission is enjoined to
strictly observe and carry out
these mandatory obligations. The
intendment of the legislature is
to ensure that actual notice of
the intended compulsory
acquisition is given to all
persons who may be affected by
the compulsory acquisition. I do
not think that the intention of
the legislature was to authorise
entry onto the land to be
compulsorily acquired and
thereafter serve notice of
compulsory acquisition on the
owners of the land. I find
support for the view I have
expressed in exhibit 2. This
exhibit is the document by which
the Lands Commission among other
matters granted the corporation
the right of entry on the land
in dispute. Exhibit 2 granted
the corporation a right of entry
on the land commencing 2
November 1986. For the avoidance
of doubt, I must point out that
EI 58 was signed on 12 April
1979. It will thus be seen that
the submission that on the mere
signing of EI 58 the corporation
acquired a lawful right to enter
the land in dispute is plainly
misconceived. I hold that the
corporation did not acquire a
lawful right to enter the land
in dispute commencing with the
date of signing EI 58, that is,
12 April 1979.
I now return to deal with and
consider the issue whether or
not the land in dispute ever
vested in the President. In my
view, it is desirable to
ascertain whether or not the
land in dispute ever vested in
the President. If the answer is
in the affirmative, then the
next issue to consider and
determine is whether or not the
corporation was in law entitled
to benefit from a grant of any
interest in that land. Of
course, if the answer is in the
negative it will be an exercise
in futility to consider the
claim of the corporation that it
can lawfully be granted an
interest in the land
compulsorily acquired pursuant
to Act 125.
It seems to me that in
considering and determining
whether or not the land the
subject-matter of compulsory
acquisition had vested in the
President pursuant to Act 125,
the enabling law must be read as
a whole. In my opinion, land
would be deemed to have been
compulsorily acquired when all
the mandatory statutory
provisions have been fully and
strictly complied with. In the
instant case the trial judge
addressed herself to the
mandatory provisions of section
2 of Act 125. On the evidence
before her, she stated as
follows:
“... where a statute imposes a
mandatory duty as in the case
here, these strict legal
requirements cannot be waived,
especially if these requirements
deal with fundamental issues as
I think it was...”
and held that there was no
publication of EI 58 within the
intendment of section 2 of Act
125. This finding of fact is
supported by the evidence before
her. I entirely agree with the
finding of the trial judge on
this issue and affirm that there
had been no publication of EI
58.
What is the effect in law since
EI 58 was not and had not been
published as strictly required
by section 2 of Act 125? In
considering this important
issue, I have found the case of
Rockson v Agadzi [1979] 1
GLR 106 helpful. In that case,
the court was faced with the
issue whether or not land the
subject-matter of compulsory
acquisition, had vested in the
President pursuant to Act 125.
In particular, the court was to
determine whether or not section
2 had been strictly complied
with; that is to say, whether or
not there had been due
publication of the enabling
executive instrument within the
meaning and intendment of
section 2 of Act 125. The High
Court considered in detail the
evidence seeking to show and
prove due and strict compliance
with section 2 of Act 125. The
court held at holding (1) as
follows:
“(1) ... in order to divest the
plaintiff of his property (on
compulsory acquisition) and vest
it in the President, there must
be evidence of due publication
of the acquiring instrument in
the manner laid down in section
2 of Act 125.”
In the Rockson case
publication of the enabling
instrument was not carried out
as decreed by section 2 of Act
125. The court held that the
land to be compulsorily acquired
had not vested and could not
have vested in the President in
the absence of evidence of due
and strict compliance with all
the mandatory conditions spelt
out under section 2 of the Act.
I find this is a correct
statement of the law on that
issue. In the lower court the
trial judge having held that EI
58 had not been published
according to law proceeded
further and held that in the
circumstances the land in
dispute did not vest and could
not have vested in the
President. I find that the
conclusion reached by the trial
judge is supported by the
Rockson case. At holding (3)
of the report on the Rockson
case appears the following
statement of the legal position
consequent upon non-publication
of the Executive Instrument:
“3 ... consequently the title in
the land therefore remained in
the plaintiff as owner and the
Lands Commission could not
transfer any interest in the
property (land) to the defendant
and all her dealings with the
land were therefore unlawful.”
In my opinion the above
statement is good and sound law.
I adopt it. I find that the
trial judge was right in the
conclusion she reached, namely
because there was no publication
of EI 58 according to law, the
land in dispute never vested in
the President for and on behalf
of the people of Ghana. I
therefore affirm that the land
in dispute never vested in the
President at any time after 12
April 1979. I hold that title to
the land in dispute remained in
the true owners of the land.
I now turn to the claim for
damages for trespass allegedly
committed by the corporation.
For the corporation it was
submitted that it had lawful
authority to enter the land in
dispute. It was contended that
the combined effect of Act 125,
Act 232 and LI 424 was to
empower the corporation to
lawfully enter the land in
dispute. In my view this
argument over-looks the legal
requirement that the land in
dispute must first vest in the
President free from any
encumbrances. It follows that in
a case where the land to be
compulsorily acquired had not
vested in the President, the
Lands Commission cannot lawfully
grant any interest in such land
to “any person”. It is trite
learning that “nemo dat quod
non habet”. I have earlier
referred to holding (3) in the
Rockson case on this
issue. In my opinion, no useful
purpose would be served in
considering whether or not the
corporation can lawfully benefit
from land compulsorily acquired
pursuant to Act 125. That
exercise would be merely
academic in the light of the
conclusion I have reached,
namely, that the land in dispute
had never vested in the
President. Consequently the
Lands Commission cannot lawfully
authorise “any person” to enter
that land. Since the corporation
points to the Lands Commission
as its grantor and since the
land had not legally vested in
the President it follows that it
unlawfully entered the land in
dispute and therefore committed
trespass. On the facts on
record, the respondent
successfully proved its claim
for damages for trespass. The
trial judge gravely erred in law
in dismissing the claim of the
respondent for damages for
trespass. I am satisfied on the
evidence on record that the
respondent successfully proved
that the corporation committed
trespass on the land in dispute.
I hold that the respondent is
entitled to damages for
trespass. Accordingly I set
aside the order of the lower
court dismissing the
respondent’s claim for trespass.
I enter judgment for the
respondent on his claim for
damages for trespass.
There was undisputed evidence of
acts of trespass committed by
the corporation. The corporation
admitted it entered the land by
its agents, servants and workmen
of all categories and it further
admitted that it carried out the
acts in evidence on record. Some
of these unlawful acts consisted
of pulling down dwelling houses
at various stages of
construction and destroying food
crop farms. Unfortunately
evidence was not led as to
actual value of the properties
destroyed by the corporation. In
the circumstances this court is
seriously handicapped in
evaluating the damage done and
financial loss suffered by the
respondent and all the persons
occupying the land lawfully
deriving title from the
respondent. I am not unmindful
of the fact that the respondent
claimed the colossal sum of ¢30
million as damages for trespass.
No attempt was made to call
evidence to show how the ¢30
million was computed by the
respondent. Since there was no
claim for special damages none
was proved. In the circumstances
I would award ¢5 million as
general damages.
ESSIEM JA.
I have had the privilege of
reading beforehand the opinion
which has just been read by my
brother Lamptey JA and I am in
agreement with that opinion.
The claim before the court below
was:
“The Plaintiff as head of the
Nii Amarh Sagblah Family of Osu,
on behalf of the said Family and
the people of Haatso, claims
against the defendant:
(1) Declaration that the
executive instrument entitled
“Site for the State Insurance
Corporation (S.I.C.) Instrument,
1979, (EI 58) and the compulsory
acquisition of land purported to
have been made by virtue of the
said Instrument are ultra
vires, null and void:
(2) ¢30 million damages for
trespass to all that area of
land with an approximate acreage
of 52.6 which forms part of the
total acreage purported to have
been so acquired and also for
unlawfully and wrongfully
preventing or delaying
development within the said 52.6
acre area.
(3) Order of perpetual
injunction restraining the
defendant through its directors,
officers or other servants and
whosoever interfering with the
52.6 acres forming part of the
area purported to have been
acquired by the executive
instrument.”
The facts have been given by my
brother Lamptey JA in some
detail. The State Insurance
Corporation had started
negotiations to acquire land
from the plaintiffs who are the
owners of the land in dispute.
The same State Insurance
Corporation later managed to get
the EI 58 mainly in order to
escape the demands of the
plaintiff. In my opinion the
genuineness of the needs of the
state for the acquisition is
thus called in question.
The Estate Officer of the State
Insurance Corporation who gave
evidence for defendants stated
in his evidence-in-chief:
“Before the compulsory
acquisition the corporation made
attempts to acquire the land by
private agreement. We realised
there were a number of competing
claims to the land... Because of
these conflicting claims the
corporation decided to approach
the Government to acquire the
land compulsorily. Then in 1976
an executive instrument was
published.”
It will be seen that the
acquisition of the land by the
State was mainly at the instance
of the State Insurance
Corporation after they had
attempted to acquire the land
themselves from the owners.
Whatever the reason for the
acquisition the evidence on
record shows that “copies of the
instrument were not affixed at a
convenient place on the land” as
required by law. Thus the law
was not complied with and the
purported acquisition cannot be
said to have been done in
accordance with law. In my
opinion as the law was not
complied with, the acquisition
cannot be said to have been done
in accordance with the law. The
defendants therefore committed
trespass when they entered the
plaintiff’s land.
In my opinion therefore the
plaintiff should succeed on all
the reliefs he claims except
that, for damages, I think
nominal damages should be
enough. I would assess damages
at ¢5,000,000.
AMUAH JA.
This is an appeal brought by the
State Insurance Corporation
(hereinafter referred to as “the
SIC” for short) and the
Attorney-General (hereinafter
referred to as “the 2nd
defendant-appellant”) against
the decision of an Accra High
Court delivered on 16th day of
November 1990. The brief facts
of the case are as follows: The
Supreme Military Council in
exercise of the powers conferred
on it under subsection 1 of the
State Lands Act 1962 (Act 125)
declared the land in dispute and
described in the writ to be land
required in the public interest
for use by the SIC; see
Executive Instrument No 58 of
1979. According to the plaintiff
before the publication of the
executive instrument in the
papers plots of land in dispute
had been allocated to about
twenty persons who had commenced
building operations on them. As
a result of the purported
acquisition workers of the SIC,
the 1st defendant-appellant,
entered the said land, pulled
down the buildings so
constructed and ordered all
building operations to stop
forthwith. According to Benjamin
Quaye, witness of the plaintiff,
because of this interference he
lost about 300,000 cedis. In
fact, as he said, no notice of
the instrument for acquisition
was served on them as required
by section 2 of Act 125 which
provides as follows:
“2. A copy of the instrument
made under the preceding section
shall
(a) be served personally on the
person having an interest in the
land or
(b) be left with any person in
occupation of the land and
(c) be published on three
consecutive occasions in a
newspaper circulating in the
district where the land is
situate.”
Faced with this situation the
plaintiff being the Head of Nii
Amarh Sagblah Family of Osu as
he stated “instituted this
action on 2 October 1987 on
behalf of the said family and
the people of Haatso township”
claiming:
“1. A declaration that the said
executive instrument and the
purported compulsory acquisition
are ultra vires and null
and void.
2. 30 million cedis damages for
trespass to all that area of
land with an approximate acreage
of 52.6 which forms part of the
total acreage and also for
unlawfully and wrongfully
preventing or delaying
development within the said
area.
3. An order of perpetual
injunction restraining the
defendants through their
directors, officers or other
servants from interfering with
the 52.6 acres described above.”
The defendants resisted the
claim and in particular the 1st
defendant pleaded that the
action was statute-barred since
the plaintiff failed to submit
within three months from the
date of publication of EI 58
particulars of his claim as
required by section 4(1) of the
State Lands Act 1962 (Act 125)
and counterclaimed for a
declaration of title to the land
in dispute.
The learned trial judge heard
the case, resolved the issues in
favour of plaintiff, entered
judgment for the plaintiff and
dismissed the defendants’
counterclaim. The defendants,
dissatisfied with the decision,
have appealed against parts of
the judgment declaring:
“(a) the acquisition of the land
by the State under the State
Lands Act 1962 Act 125 by virtue
of which the State subsequently
granted the land to State
Insurance Corporation is void.
(b) That plaintiffs are not
statute-barred from pursuing
their claim against the
defendants and co-defendants
under Act 125 and
(c) That there was no
publication of the Executive
Instrument No 58 of 1979, that
is to say the State Lands (Accra
- Greenhill - Legon Site for
State Insurance Corporation)
Instrument 1979 (EI 58) and
therefore that executive
instrument is void.”
In the view of the defendants
“the learned trial judge’s
evaluation, analysis and
statement of the law on the
above matters are erroneous”.
Further ground of appeal was
meant to bring pressure to bear
on this court to grant the
relief of damage which the
learned trial judge was
unwilling to grant. I will now
proceed as follows having
narrated the facts of the case.
In his book entitled
Customary Land Law in Ghana
1st edition, Ollennu JA (as he
then was) writes on the three
ways in which a person may
become a head of family: “(1) by
formal election or appointment;
(2) by popular acclamation of
acknowledgement; (3) in the
absence of appointment or
acknowledgement, the eldest male
member of the family”.
Also in the case of Majolagbe
v Larbi [1959] GLR
190 at page 191 he discusses
what is meant by proof of law.
It will be observed by the
plaintiff that when in his
examination-in-chief he made a
claim to the headship of the
family by testifying that he was
“appointed to act in his stead”,
learned counsel for the
defendants put him to task by
asking him to answer the
following questions:
“Q. You were not attending
family meetings when you were
not an elder of the family.
A. We were meeting regularly at
the end of each month.
Q. In what capacity.
A. As a representative of the
youth.
Q. I suggest the elders’
meeting is not the same.
A. Yes but I represent the
youth at the elders' meeting. We
do it regularly.
Q. In 1979 at the time of the
acquisition no one was living on
the land.
A. This is not true.”
He should have realised that his
claim to headship of the family
was being challenged and that he
required facts to establish this
in law. Here he did not adduce
sufficient evidence in support
of his claim to headship and we
are left in a situation in which
we do not know who the principal
members or elders of the family
are and at which family meeting
was the election or appointment
made.
In other words, he failed to
establish a prima facie
case on the issue of capacity
for the defendants to answer.
The defendants were however
called upon to enter their
defence. The executive
instrument speaks for itself. It
specifies the Act under which
the acquisition is being made as
well as the particulars of the
area declared as land acquired
in the public interest.
The President under subsection 1
of section 1 of Act 125 can
declare land required for the
benefit of a statutory
corporation such as the State
Insurance Corporation.
Subsection 1 of section 1 of Act
125 provides as follows:-
“(1) Whenever it appears to the
President in the public interest
so to do, he may, by executive
instrument, declare any land
specified in the instrument,
other than land subject to the
Administration of Lands Act,
1962 (Act 123), to be land
required in the public interest
and accordingly on the making of
the instrument it shall be
lawful for any person, acting in
that behalf and subject to a
month’s notice in writing to
enter the land so declared for
any purpose incidental to the
declaration so made.”
The words ‘any person’ appearing
in subsection 1 of section one
of Act 125 cannot be given a
narrow meaning so as to exclude
statutory bodies. The
Interpretation Act 1960, CA 4
section 32(1) fully endorses
this view when in interpreting
particular terms in enactments.
It states:
“In an instrument person
includes a body corporate
(whether corporation aggregate
or a corporation sole) ...”
Resort to subsequent legislation
for assistance in the
interpretation of the said words
is unnecessary as the words are
not ambiguous. I have read the
evidence given by the plaintiff
in court and apart from what he
said that certain buildings
erected on the land were being
demolished he did not testify
that the land was being used for
a purpose other than the one for
which it was being acquired.
Section 2 of the Act requires
that copies of the instrument
shall be served on any person
having an interest in the land
or be left with any person in
occupation of the land and be
affixed on a convenient place on
the land. By the same said
section 2(d) the Instrument is
to be published on three
consecutive occasions in a paper
circulating in the district
where the land is situate. All
these are measures to bring to
the notice of those in
occupation and owners of the
land that their interests are
being interfered with. If the
said section 2 of the Act is not
complied with the land does not
vest in the President (see
subsection 3 of section 1 of Act
125). I have read the Act under
which the instrument was made.
There is nothing in it which
limits the period for the
acquisition and renders an
acquisition null and void if
this period is exceeded. I do
not think it is the intention of
the legislators that whenever
there is an authority to acquire
under the instrument of
incorporation of a corporation
on whose behalf an acquisition
is being made by the President,
the authority of the President
to acquire, preserved by the
Act, becomes invalidated. The
President acquired the land
without giving reasons for so
doing. He was however satisfied
that such an acquisition will be
in the interest of the State.
In the case before the court
therefore I will not declare the
instrument and the acquisition
illegal null and void. I will
regard the instrument still in
force and that it is the process
of acquisition which has not
been complied with to enable the
land to vest in the President.
The land is still vested in its
owners. At least there were four
competing claims for the land
during this period, according to
the estate officer of the SIC.
But that is not all. The
plaintiff cannot say he is not
aware that an executive
instrument has been published
interfering with his interest in
the land. Even where “a stop
order notice” had been affixed
on the land the only witness of
the plaintiff continued to
build. In my opinion the
plaintiff flatters himself by
relying on section 2 of the Act
and his allegation that he was
not served with copies of the
Instrument is a mere affectation
and a disguise. Unlike
Rockson v Agadzi [1979] GLR
106 the executive instrument was
published in the papers on three
consecutive days (see the
evidence of the Executive
Officer of the Lands Commission
and exhibits 3, 4 & 5). By a
letter, exhibit 2, written by
the Executive Secretary of the
Lands Commission Secretariat,
the Secretary assured the SIC a
right of entry to the land.
Meanwhile the plaintiff did not
submit in writing to the
Minister in the form prescribed
by section 4(4) of the Acts a
letter indicating his interest
in the land.
The 1st defendant honestly
believing that the land was
vested in the President took
steps to develop its
infrastructure. This was what
the estate officer of the State
Insurance Corporation said:
“The corporation then took steps
to develop the land, by
commissioning a firm of land
surveyors, Messrs Andrews Osai
to survey the land. A firm of
planning consultants by name
Messrs PISS Planning
Consultants, were commissioned
to undertake a planning scheme
for the area in question. It
cost the corporation 39,000
cedis. This was paid to the
surveyors and about 115,000
cedis paid to the planning
consultants. We had ministerial
approval for the planning
scheme. We engaged a firm of
engineers who are the BRRI,
(Building and Road Research
Institute), to provide designs
for the basic infrastructure.
This was to comprise the roads,
water, sewerage and waste
management for the area. It cost
the corporation about ¢4.1
million. We also engaged a firm
of quantity surveyors Messrs Q.
S. Consultants to be responsible
for the cost aspect of the
development. They came out with
the bills of quantities to
enable us invite tenders for
prospective tenders for the
infrastructural units. Their
fees came to ¢2.1 million. We
invited contractors to tender
for the works. We awarded the
contracts for the construction
of the roads to Messrs Kassab.
The construction of the road was
to cost 84 million cedis. The
other infrastructural works were
awarded to All Topps Engineering
Works at a cost of about 39
million cedis. These were all
costs at the date of contract.
We were to commence work. On 15
March 1989 when we went to the
site with our contractors to
hand over the land we were
prevented by a group of people
claiming to come from Haatso who
claimed ownership of the land.
To avoid a confrontation we
decided to withdraw.”
The facts which were given by
this witness were not disputed.
In my opinion it is too late in
the day i.e. six years from the
date of the publication of the
instrument for the plaintiff to
institute this action when they
have allowed the defendant,
honestly believing that the land
had been acquired by the
government for them, to
institute measures to develop
it, and have been encouraged to
do so by the silence of the
plaintiffs. The plaintiffs are
therefore estopped from
asserting their rights and
litigating this action:
Vanderpuije v Golightly
[1965] GLR 453 holding (2).
I will therefore allow the
appeal and set aside the
judgment of the court below; in
lieu of it, I will enter
judgment for the defendants on
the plaintiff’s claim.
The counterclaim of the 1st
defendant succeeds. Judgment
will be entered for the
defendants on the counterclaim.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner. |
