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Land - Declaration of
title - Lands (Statutory
Wayleaves) - Certiorari -
Wether or not the High Court,
have jurisdiction to declare
statutes and subsidiary
legislations revoked by any
other means other than those set
out by law - Wether the Lands
Commission has no power to grant
leases over the unutilised
portions of the lands covered by
the Instruments.
HEADNOTES
The Government of Ghana
passed the Lands (Statutory
Wayleaves) Act, 1963 (Act 186)
to enable entry on any land in
the country for purposes of
construction, installation and
maintenance of works of public
utility, and
for
the creation of rights of way
and other similar rights in
respect of such works and other
connected purposes.
Consequently, in exercise of the
powers conferred upon the
National Redemption Council by
subsection 1 of Section 1 of the
Lands (Statutory Wayleaves) Act,
1963), E.I. 46 and E.I. 44 were
passed, declaring that in the
public interest the disputed
land is subject to a wayleave
for purposes of a public utility
service to enure to the benefit
of the Public Works Department.
The lands which were
subject to the way leaves, have
been sufficiently described in
E.I 46 and E.I. 44
According to the 1st
and 2nd Interested
parties, the entire land so
described above is owned by 1st
interested party and forms part
of its ancestral land, but in
1973 the Government of Ghana
passed an Executive Instrument,
E.I. 44, that is, Lands
(Statutory Wayleaves) (Accra-Tema
Motorway) Phase II Instrument,
1973 creating statutory
wayleaves over the land. 1st
and 2nd interested
parties contended that the E.I.s
of 1973 were issued pursuant to
the Statutory Wayleaves Act of
1963 (Act 186) and that only
created a right of way over the
land but 1st
interested party’s ownership and
title to the land was never
interfered with.
The Government of Ghana
used a portion of this land for
the entire Accra-Tema Motorway
but could not develop the entire
width of the subject land
described in E.I. 46 and 44.
In or around 2007, the
Applicant herein with the
approval of the Metropolitan
Authority and the Town and
Country Planning rezoned
portions of the exterior
corridor of the Accra-Tema
motorway into
commercial/industrial plots and
processed grants for leases from
the interested parties in
respect of portions of the
subject land where upon the 1st
and 2nd interested
parties instituted an action in
the respondent High Court”
Claiming declaration of
title and ancillary reliefs.
Judgment was given “for the said
interested parties. The
applicant thereupon has brought
this application for an Order
of Certiorari directed at
the High Court (Lands Division)
presided over by His Lordship
Justice S.H. Ocran, to move into
this Honourable Court for the
purpose of quashing the judgment
dated 19th December,
2014,
HELD :-
What is therefore certain is
that, the said exercise of
jurisdiction where none is
available to the judge amounts
to an exercise which is not only
so patent and discernible but
laden with errors on the record
and thus amounts to a
jurisdictional error upon which
this court must exercise its
supervisory Jurisdiction by
quashing it. Having satisfied
ourselves, that the Applicants
have met requirements for grant
of certiorari, we will
accordingly proceed to issue
certiorari to quash the error
contained in the decision of the
High Court, Accra presided over
by Ocran J, in suit No.
BL.143/08 wherein by that
decision two existing executive
instruments numbered E.I 46 and
E.I. 44 of 1973 were declared to
have been impliedly revoked by
conduct of two state
Institutions. The said
proceedings and judgment are
accordingly brought up and same
are therefore quashed. That is,
Applicants, as the
constitutional body charged with
responsibility to manage all
public and vested lands must
exercise that constitutional
mandate prudently.
In that respect, it is
recommended that the Applicants
and the 1st
Interested Party engage
themselves in discussions aimed
at using ADR to resolve their
differences. The Application
thus succeeds in its entirety
DISSENTING OPINION
There is
nothing however in my opinion
which warrants an owner of
land’s interference with the
terms of a wayleave. Neither
can a statutory wayleave warrant
the subversion of the rights of
the owner of the land in
question which are consistent
with the terms of the wayleave
involved.It follows that the
error complained of is not the
operative basis for the
respondent court’s decision.I
say nothing about the disputed
questions of fact which are
matters for appeal. For these
reasons I dismiss the
application.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
Lands Commission Act,
2008, Act
Lands (Statutory
Wayleaves) Act, 1963 (Act 186)
Accra-Tema, Motorway, E.
I. 46 1973
Accra-Tema, Motorway, E.
I. 44 1973
Lands (Statutory Wayleaves)
Regulations 1964 (LI 334)
Electricity Act, 1947
CASES REFERRED TO IN JUDGMENT
Republic v High Court,
Sekondi, Ex-parte Ampong aka
Akrufa Krukoko I (Kyerefo III
and Others – Interested Parties)
[2011] 2 SCGLR, 716
Republic v Court of
Appeal, Ex-parte Ghana Cable Co.
Ltd. (Barclays Bank Ghana Ltd -
Interested Party) [2005-2006]
SCGLR 107
Republic v Accra Circuit
Court; Ex-parte Appiah
[1982-83]1 G.L.R. 129, CA.
Republic v High Court
Accra; Ex-parte Soku [1996-97]
SCGLR 525
Republic v High Court,
Accra; Ex-parte
Industrialization Fund for
Developing Countries.
[2003-2004]1 SCGLR 348.
Okofoh Estates Limited v
Modern Signs Ltd. [1996-97]
SCGLR 224
Republic v Court of
Appeal, Accra, Ex-parte Tsatsu
Tsikata [2005-2006] 612
Republic v High Court,
Accra, Ex-parte Commission on
Human Right and Administrative
Justice (Addo Interested Party)
[2003-2004]SCGLR 312
Republic vrs Court of
Appeal, Accra, Ex parte Tsatsu
Tsikata [2005-2006] SC GLR 612
Natural Beauty v Midlands
Electricity Board and Another
(1952)1 Ch 380
Central Electricity
Generating Board v Jennaway
(1959)I WLR 937.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC
DISSENTING OPINION
ATUGUBA JSC
COUNSEL
CARLIS APPIAH BRAKO ESQ. FOR THE
APPLICANT.
RAYMOND BAGNABU ESQ. (WITH HIM
MS. BELINDA PWAMANG) FOR THE 1ST
AND 2ND INTERESTED
PARTIES
EMMANUEL AVENORGBO ESQ. FOR THE
3RD INTERESTED
PARTY.
YONI KULENDI ESQ. ( WITH HIM
MRS. AMA AMPONSAH AND MS. SENA
EDEKOR) FOR THE 4TH &
5TH INTERESTED
PARTIES.
JOE SLOV TIA ESQ.(WITH HIM
CEPHAS MATEY FOR 7TH
INTERESTED PARTY).
------------------------------------------------------------------------------------------------------------------
RULING
------------------------------------------------------------------------------------------------------------------
DOTSE
JSC: (FOR THE MAJORITY OPINION)
The Lands Commission, a
Constitutional body established
under article 258 of the
Constitution 1992, and Lands
Commission Act, 2008, Act 767
who are the Applicants herein,
have applied to this court,
pursuant to article 132 of the
Constitution 1992 thereof, for
the following:
“An order of certiorari directed
at the High Court (Lands
Division) coram Ocran J, for the
purpose of quashing the judgment
of the said High Court, dated 19th
December 2014 and for any
further orders as this court may
deem fit to prevent illegality
and a failure of justice.”
emphasis
GROUNDS OF
APPLICATION
The grounds upon which the
Applicants have based their
application has been stated
thus:-
“That the High Court (Land
Division) presided over by
Justice S. H. Ocran committed a
jurisdictional error patent on
the face of the record when he
declared Executive Instruments
46 and 44 of 1973 to be
impliedly revoked by the conduct
of two state institutions.”
BRIEF FACTS
The Applicants supported their
application with a 41
paragraphed affidavit sworn to
by James Dadson, the Greater
Accra Regional Lands Officer of
the Applicant Commission.
The 1st,4th,5th
and the 7th
Interested Parties have all
sworn to affidavits in
opposition and or in support
thereof, of the instant
application.
The rendition of the facts
herein constitute the undisputed
and bare cold facts of this
case.
In 1963, the Lands (Statutory
Wayleaves) Act, 1963 (Act 186)
was enacted as an Act of
Parliament and the headnote to
the Act provides as follows:
“An Act to provide for entry on
land for the purpose of the
construction, installation and
maintenance of works of public
utility and for the creation of
rights of way and any other
similar rights in respect of the
works and for related matters.”
The above is very important as
it concerns the rights of the
owners of the lands upon which
the said Act would be made
applicable.
The issue also arises as to
whether the original owners of
land in respect of statutory
Wayleaves created in the case of
the construction of the
Accra-Tema, Motorway, reference
E. I. 46 and 44 of 1973 have
unimpeded access or not to the
lands the subject matter of the
said Instrument Numbers 46 and
44.
Section 1 (1) of Act 186
provides as follows:-
“Where the President is of the
opinion that it is in the public
interest that a right of way or
any other similar right over a
land be created in respect of
the whole or a part of any of
the works specified in section
2, the President may subject
to this Act, by executive
instrument, declare the land
specified in this instrument to
be subject to the statutory
Wayleave specified in the
instrument.” Emphasis
supplied
Pursuant to the above Act 186,
the erstwhile National
Redemption Council Government,
created a right of way over two
large parcels of land by
statutory instruments entitled
Lands (Statutory Wayleaves)
Accra-Tema Motorway (Phase 1)
Instrument, 1973 (Executive
Instrument No. 46) and Lands
(Statutory Wayleaves) Accra –
Tema Motorway (Phase II)
Instrument, 1973 (Executive
Instrument No. 44).
After the construction of the
Accra-Tema motorway which forms
part of the land covered under
E. I. 46 and 44, portions of the
lands covered by the said
Instruments have remained
unutilized to date. No doubt,
the learned trial Judge Ocran J,
stated in his judgment which is
the subject of this Certiorari
application as follows:
“It was agreed between the
parties that the land in dispute
falls within the land covered by
Accra Tema motorway (phase 11)
instrument 1973 E. I. 44. This
E. I. 44 was made under Land
(Statutory Wayleaves) Act, 1963,
Act 186.”
Following the above phenomenon,
in or around 2007, the Accra
Metropolitan Planning Committee
with the approval of Accra
Metropolitan Assembly, re-zoned
portions of the exterior of the
motorway corridor into
industrial/commercial use and
amended the planning scheme
accordingly.
Based upon the above, the
Applicants consequently began
processing lease applications in
respect of the re-zoned areas
from interested individuals,
companies and institutions. As
a result, Samjoeda Enterprise
and KIMAG Limited (the 4th
and 5th Interested
parties herein) had their
application approved by the
Applicants, (there were earlier
grants made to the same parties
by the 1st Interested
Party, the Nungua Stool).
The 1st Interested
Party, believing that the
conduct of the Applicants in
granting leases in respect of
the lands covered by E. I. 46
and 44 is wrong subsequently
instituted an action with 2nd
Interested Party as Plaintiffs
as follows:-
Suit No. BL 143/08 intituled,
Nungua Stool and Another Vrs
Tema Municipal Assembly and
Others at the High Court, Lands
Division,
in which they claimed the
following reliefs against the
Defendants therein, jointly and
severally:
(i)
Declaration of title to
the land described therein.
(ii)
An order cancelling the
leases granted by 6th
Defendants to 2nd, 3rd,
4th and 5th
Defendants.
(iii)
An order directed at 6th
Defendant to process and plot
grants by 1st
plaintiff particularly the grant
to 2nd plaintiff.
(iv)
Damages for trespass.
(v)
Perpetual injunction.
It has to be noted that, the 1st
and 2nd interested
parties herein were the
plaintiffs in the High Court
suit which is the subject of
this certiorari application. The
3rd interested party
herein, who did not contest the
suit at the High Court was the 1st
Defendant therein.
The 4th and 5th
Interested parties who are in
support of the Applicants
application to this court, were
the 2nd and 3rd
Defendants therein in the High
court.
The 6th Interested
party herein on the other hand
was the 4th Defendant
therein in the High Court,
whilst the 7th
interested party herein was the
5th Defendant therein
and the Applicants herein were
the 6th Defendants in
the High Court. The 8th
Interested party herein were the
7th Defendants
therein in the High Court.
From the pleadings in the High
Court, it appears the plaintiffs
anchored their case on the
following:
(i)
That the Applicants
herein, therein 6th
Defendants had made
representation to the 1st
interested Party of a process
that will result into the
release of the unused portion of
the land under E.I. 46 and 44
respectively.
(ii)
That the two instruments
i.e. E.I. 46 and 44 did not
affect their ownership and
proprietary rights, but only
created a right of way over
their land, and they could
therefore reclaim and or re-
possess their land.
SUPREME COURT RULING
DATED 5TH DECEMBER
2013
During the trial of the suit at
the High Court, the Applicants
herein filed an application to
dismiss the suit on grounds of
lack of Jurisdiction but this
was dismissed by the learned
trial Judge.
A subsequent application by the
Applicants to this court, to
quash that ruling was itself
refused in a unanimous decision
of the court, rendered on its
behalf by it’s President Wood C.
J, in unreported Civil Motion
No.J5/4/2014 dated 5th
December 2013 intituled -The
Republic v The High Court,
(Lands Commission) Accra,
Ex-parte The Lands Commission,
Cantonments, Accra, Nungua Stool
& 7 others – Interested Parties
in which it was held as
follows:-
“The applicant commission
confesses that the statutory
infraction of encroachment on or
disposal of public land which
they complain of, which no court
must in the interest of public
policy countenance is not an
offence of strict liability but
one which is subject to the
defence of reasonable cause. I
hold the view that, the court,
must be given the opportunity to
enquire into the disputed facts,
after which it must judge
whether, the interested parties
– respondents have proven
reasonable cause, in which case
the illegality plea must be
examined in that light, or
whether this case falls into
any of the known exceptions
highlighted above, wherefore it
would be fraudulent,
unconscionable, inequitable or
for some other compelling reason
be altogether unjustified to
uphold the illegality question.
In view of the assurance
allegedly made by the applicant
to the 1st interested
party respondent which
expectations the latter claims
he was encouraged to act on to
his prejudice through grants
made to the 2nd
interested party respondent,
provided evidence is led in
proof of same, would require
that the court scrutinizes the
alleged legitimate expectations
viz-a-viz the equitable doctrine
of proprietary estoppel, a rule
which works to prevent a failure
of Justice, in order
to reach a fair conclusion in
this matter.
The foregoing analysis amply
demonstrates that when the court
dismissed the application as
being premature at that stage of
the proceedings, it acted
properly within jurisdiction and
not in fundamental error as
alleged in this application.
What orders were the
court expected to make, when it
conclusively ruled that the
facts in which the application
were grounded, being facts in
genuine dispute, ought to be
investigated first before any
effectual determination of the
legal questions raised . The
weight of the evidence and the
law therefore justifies a
dismissal of this application to
invoke our supervisory
jurisdiction. The same is
accordingly dismissed. The trial
in the High Court is to proceed
accordingly, with the applicants
being at liberty to raise the
two legal questions afresh at
any subsequent stage of the
proceedings, when the matters
referred to have been enquired
into.”Emphasis
Following the conclusion of the
trial in the High Court, and the
delivery of judgment on the 19th
of December, 2014, the
Applicants herein state as
follows:
“Not surprisingly, no evidence
was led by 1st and 2nd
interested parties on the
alleged representations of the
Lands Commission and no
reference even made to it in
their counsel’s written
submission although the
Applicant led uncontroverted
evidence on the absence of any
such representations.”
HIGH COURT JUDGMENT
There is no dispute that Ocran
J, presiding over the High
Court, Accra in the suit
referred to as No. BL. 143/08
dated 19th December
2014, delivered judgment in
favour of the 1st and
2nd interested
parties herein, therein
Plaintiffs, against the other
parties in the above suit,
therein Defendants.
We have read the judgment of the
learned trial Judge, and it is
crystal clear that the following
constitute the basis for the
judgment. The learned trial
Judge stated thus:
“Under the peculiar factual
situation in this case, even
though there is no evidence
before me that E.I 44 and 46
have been revoked formally, the
Acts of the organs of the state,
being Town and Country Planning
under the Ministry of Local
Government Rezoning the land for
industrial use, and Lands
Commission leasing portions of
the land for private use, is
conclusive evidence that the
wayleaves over the land has been
revoked.” Emphasis
From the above rendition of the
learned trial Judge, it is clear
that the basis for his
declaration that the
instruments, E.I. 46 and 44 have
been revoked has nothing to do
with the formalities set out in
sections 1(6) of Act 186 and
Regulation 16 (1) and (2) of
Land (Statutory Wayleaves)
Regulation, 1964 (L. I. 334) but
subject to what he considered as
acts of commission or omission
by the two state institutions
mentioned Supra.
It must be noted that, after
recounting some of the acts of
the Applicants in granting
leases to 2nd and 3rd
defendants therein, herein 4th
and 5th Interested
Parties, among others, the
learned trial Judge continued
the judgment thus: -
“These Acts by the town and
country planning and the 6th
defendant in particular estopps
the 6th defendant
from saying that the
Wayleaves over the land has not
been revoked.”
SUPERVISORY
JURISDICTION OF THIS COURT
Article 132 of the Constitution
1992, provides as follows: -
“The Supreme Court shall have
supervisory jurisdiction over
all courts and over any
adjudicating authority and may,
in the exercise of that
supervisory jurisdiction, issue
orders and directions for the
purpose of enforcing or securing
the enforcement of it’s
supervisory power.”
This is the jurisdiction that
the Applicant has invoked, to
wit, that the learned trial
judge committed a patent
jurisdictional error by holding
that E. I’s 46 and 44 were
impliedly revoked by the conduct
of two state institutions that
is, the Town and Country
Planning Department and the
Lands Commission.
Does the High Court,
have jurisdiction to declare
statutes and subsidiary
legislations revoked by any
other means other than those set
out by law?
This is especially so when the
method for revocation of an
instrument made pursuant to a
statutory Wayleaves has been
spelt out under Section 1(6) of
Act 186 and Regulations 6 (1) &
(2) of L. I. 334 of 1964.
Besides, it should be noted that
Act 186 and all the instruments
made pursuant to it, including
E.I.46 and 44, and Regulation
334 of 1964 constitute the
existing law of the country as
provided for in article 11 (1)
(d) of the Constitution 1992
thereof.
That being the case, it is
incumbent upon this court to
examine the grounds of the
Application critically in terms
of article 132 of the
Constitution 1992, the peculiar
facts of this case as recounted
supra and the litany of decided
cases on the subject.
It is interesting to observe
that, the affidavit of the 1st
and 2nd interested
parties in opposition devoted a
considerable portion thereof to
issues such as:
1.
That passage of an instrument
creating a right of way did not
acquire the proprietary interest
of the owners of the land under
the land (Statutory Wayleaves)
Act, 1963, (Act 186) and
2.
That title in the said lands
over which the wayleaves were
created in E.I. 46 and 44 did
not vest the lands in the state,
so therefore the Lands
Commission has no power to grant
leases over the unutilised
portions of the lands covered by
the Instruments.
However, the clear cold words of
the learned trial Judge referred
to in the judgment show that he
actually revoked the E.I. 46 and
44 on account of acts of two
state institutions contrary to
the contentions of the 1st
and 2nd Interested
Parties.
Besides, in applications of this
nature, the merits of the case
are immaterial. As recent as 29th
March, 2011, this court in a
unanimous decision rendered on
behalf of the Court by our
esteemed sister, Vida
Akoto-Bamfo (Mrs) JSC, in the
case of the Republic v
High Court, Sekondi, Ex-parte
Ampong aka Akrufa Krukoko I
(Kyerefo III and Others –
Interested Parties) [2011] 2
SCGLR, 716 at 722 set
out the scope and nature of
Certiorari under article 132 of
the Constitution 1992, where,
speaking on behalf of the court,
she stated thus:-
“It is evident that, this court
is being called upon to invoke
it’s supervisory jurisdiction in
the nature of certiorari. It is
therefore necessary to set out
it’s scope. An order of
certiorari, it is trite
learning, is a discretionary
remedy granted on grounds of
excess or want of jurisdiction
and or some breach of a rule of
natural justice. See
Republic v Court of Appeal,
Ex-parte Ghana Cable Co. Ltd.
(Barclays Bank Ghana Ltd -
Interested Party)
[2005-2006] SCGLR 107 at 118
where Dr. Twum JSC, delivering
the lead judgment of the Supreme
Court Said:
“Certiorari is not concerned
with the merits of the
decision. It is a complaint
about jurisdiction or some
procedural irregularity like the
breach of natural Justice”
“Additionally, it would issue to
correct a clear error on the
face of the ruling of the court,
or an error which amounts to
lack of jurisdiction in the
court so as to make the decision
a nullity. See Republic v
Accra Circuit Court; Ex-parte
Appiah [1982-83]1 G.L.R. 129,
CA. In other words,
the applicant must show the
existence of an error of law
apparent on the face of the
record. As to what
constitutes an error of law,
this court held in the case of
Republic v High Court Accra;
Ex-parte Soku [1996-97] SCGLR
525 per Adjabeng JSC at 529
that it must be an error so
grave as to amount to the wrong
assumption of Jurisdiction. It
must be so obvious as to make
the decision a nullity.
Where, however, the High Court
has made an error of law or fact
not apparent on the face of the
record, the applicant’s remedy
lies in an appeal. See
Republic v High Court, Accra;
Ex-parte Industrialization Fund
for Developing Countries.
[2003-2004]1 SCGLR 348.
Emphasis supplied.
Applying the above stated
principles to the circumstance
of the instant case it shows
sufficiently that, this is a fit
case where this court should
issue the writ of certiorari to
quash the judgment of Ocran J,
dated 19th December
2014 sitting at the High Court
Accra. What are the reasons?
1.
In the first place, it is
trite learning that the error of
law must be patent on the face
of the record if such error went
to jurisdiction. See also the
cases of Okofoh Estates
Limited v Modern Signs Ltd.
[1996-97] SCGLR 224 holding 4
and the notable
pronouncement by the Supreme
Court in the case of
Republic v Court of Appeal,
Accra, Ex-parte Tsatsu Tsikata
[2005-2006] 612, where
the court unanimously held
whilst dismissing an application
for certiorari which was
directed at quashing a ruling
rendered by the Court of Appeal
as follows:-
“The discretionary
jurisdiction of the Supreme
Court under article 132 of the
1992 Constitution should be
exercised only in those
manifestly plain and obvious
cases where there were patent
errors of law on the face of the
record, which either went to
jurisdiction or were so plain as
to make the impugned decision a
nullity.
The error of law on which the
decision was founded, must
therefore be fundamental,
substantial, material, grave or
so serious as to go to the core
or root of the matter complained
of”. Emphasis supplied
As
is manifest in the instant case,
the decision of the trial High
Court went to jurisdiction and
is so plain and manifest that it
admits of no controversy that
certiorari must remove it from
the records, by quashing it.
However, like was stated
supra, if the error is not
patent, meaning it is not
clearly discernible from the
record, certiorari is not an
appropriate remedy. In such an
instance, an appeal would be a
better remedy. See also
Republic v High Court, Accra,
Ex-parte Commission on Human
Right and Administrative Justice
(Addo Interested Party)
[2003-2004]SCGLR 312 holding 4.
We have already stated
clearly that Instrument Number
E.I 46 and 44, form part of the
existing laws of Ghana,
reference article 11(1) (d) of
the constitution 1992. Being an
existing law, the said
Instruments have been further
given constitutional validity by
articles 11(4)(5) and (6) of the
Constitution 1992.
Furthermore, like all
legislation, the enabling law or
the Constitution 1992, has
procedure for amendment, repeal
or revocation of such laws or
Statutory Instruments,
(legislative or executive). It
is only where there is a
conflict and an inconsistency
between provisions of the
existing law and any
constitutional provision that
the judiciary intervenes. Even
in such cases, it is only the
Supreme Court that has exclusive
jurisdiction to all other courts
to decide such issues.
Reference articles 1(2), 2(1)
(a) and (b) and (2) and 130(1)
(a) and (b) of the Constitution
1992.
2.
Secondly, the learned
trial judge in assigning reasons
for revoking Executive
Instrument Numbers 46 and 44
stated quite clearly that he was
doing so because of the acts of
conduct of two state
institutions, namely Town and
Country Planning Department and
the Lands Commission.
However, a perusal of all the
relevant laws applicable, to
wit, Act 186, LI. 334 and E.I.
46 and 44 makes it clear that
the learned trial High Court
Judge has no such jurisdiction
to declare as revoked the said
Instruments arising from the
reasons assigned.
In the
unreported Supreme Court ruling
referred to supra, it was stated
that the trial court must be
given the opportunity to enquire
into the disputed facts, to wit,
that the Applicants gave
assurances to the 1st
Interested Party about the
possibility of releasing the
lands covered by the Wayleaves,
Instruments, E. I. 46 and 44. It
was also stated that the 1st
Interested Party was encouraged
to act on those assurances in
making grants to the 2nd
Interested Party to their
prejudice.
We have
perused the judgment of the
learned trial Judge but has not
found any analysis or discussion
of the said issues even though
the Applicants herein, therein 6th
Defendants addressed on it. The
inference to be drawn thereby is
that, the 1st
Interested Party did not lead
any evidence on the said
assurances.
Even if
any evidence was led it would
still not cloth the trial High
Court with jurisdiction to
revoke the E.I. 46 and 44 for
the said reasons.
That way
of thinking by the 1st
Interested Party is suggestive
of the fact that, they are aware
of the fact that, the Lands
(Statutory Wayleaves) Act, 1963
Act 186 operated to deprive them
of the use and ownership of the
land and hence were awaiting a
decision from the Applicants
before they can re-possess the
land.
We have
already referred to the preamble
to the Act. We have also
referred to the creation of
statutory Wayleaves as provided
for in section I (1) of the Act
elsewhere in this judgment.
It is
however worthy of note that,
Section 1, (6) of Act 186
provides as follows:-
“A land subject to a
statutory Wayleave shall despite
a rule of law, continue to be
subject to the Wayleave until
the Wayleave is terminated in
accordance with Regulations made
under this Act.”
What must
be noted very clearly is that,
once the parent legislation, in
this case Lands (Statutory
Wayleaves) Act 1963, Act 186 and
the Regulations made under it,
to wit L.I.334 of 1964 and E. I.
46 and 44 of 1973 respectively,
contain specific and clear
procedures by which Instruments
enacted therein are to be
terminated, revoked and or
repealed, it is only these
procedures that must be used and
or applied whenever any issue of
revocation, termination etc of
the Instrument is called into
question.
Since the
revocation of E. I. 46 and 44 by
the learned trial Judge
completely falls short of laid
down procedures, it is clear
that the court was in error
since it had no jurisdiction to
have given the decision it
rendered. Under these
circumstances certiorari will
lie to quash the said decision
of 19th December
2014.
The
combined and total effect of all
the above pieces of legislation
is that, where appropriate, a
land in respect of which the
Wayleaves has been created
cannot be available for use by
the original owner unless
specific legislative steps are
taken in accordance with the Act
and Regulations made there
under.
For
example in the instant case, the
lands in respect of E. I. 46 and
44 had been created to make way
for the construction of the
motorway and its related
matters. It is therefore clear
that, any land in respect of
which an instrument had been
duly created in respect of Act
186 cannot be revoked,
terminated, repealed, amended or
taken away unless in accordance
with due process. The procedure
adopted by the learned trial
Judge in revoking the lands in
respect of which a statutory
Wayleaves has been created is
illegal, wrongful and is a
patent error of law on the face
of the record.
Certiorari will lie to quash
such impugned decisions
containing patent errors of law.
3.
Thirdly, what a court like
this Supreme Court must do
whenever such applications are
brought before the Court is to
consider what the net effect of
the decision of the trial court
is? In the instant case, when
that is considered, the result
is that, the learned trial
judge, without any jurisdiction
whatsoever has purportedly
struck down an existing law in
E.I. 46 and 44 as having been
revoked. Armed with that bold
decision, the learned trial
judge proceeded to deliver
judgment in favour of the 1st
and 2nd Interested
Parties on their claims and
dismissed the counter claims of
the Applicants, among others.
What is therefore certain is
that, the said exercise of
jurisdiction where none is
available to the judge amounts
to an exercise which is not only
so patent and discernible but
laden with errors on the record
and thus amounts to a
jurisdictional error upon which
this court must exercise its
supervisory Jurisdiction by
quashing it.
CONCLUSION
Having satisfied ourselves, that
the Applicants have met
requirements for grant of
certiorari, we will accordingly
proceed to issue certiorari to
quash the error contained in the
decision of the High Court,
Accra presided over by Ocran J,
in suit No. BL.143/08 dated 19th
December 2014 intituled
Nungua Stool and Another V Tema
Municipal Assembly & Others
wherein by that decision two
existing executive instruments
numbered E.I 46 and E.I. 44 of
1973 were declared to have been
impliedly revoked by conduct of
two state Institutions. The said
proceedings and judgment are
accordingly brought up and same
are therefore quashed.
We
state and emphasise without any
reservation whatsoever that the
grant of this certiorari
application is necessary to
correct the patent
jurisdictional error committed
by the said judge and restore
the validity of the two
Instruments, E.I. 46 and 44.
Without prejudice to the
decision we have come to in this
case, we feel constrained to
address an issue that is dear to
our hearts.
That is, Applicants, as the
constitutional body charged with
responsibility to manage all
public and vested lands must
exercise that constitutional
mandate prudently.
In
that respect, it is recommended
that the Applicants and the 1st
Interested Party engage
themselves in discussions aimed
at using ADR to resolve their
differences.
The Application thus succeeds in
its entirety.
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO - BAMFO
[MRS.]
JUSTICE OF THE SUPREME COURT
DISSENTING OPINION
ATUGUBA JSC
FACTS OF
THE CASE
The facts
of this case, as contained in
the statement of case dated the
10th day of April
2015 filed for and on behalf of
the 7th Interested
party, are as follows:
“Brief Facts:
The Government of Ghana passed
the Lands (Statutory Wayleaves)
Act, 1963 (Act 186) to enable
entry on any land in the country
for purposes of construction,
installation and maintenance of
works of public utility, and
for the creation of rights of
way and other similar rights in
respect of such works and other
connected purposes.
Consequently, in exercise of the
powers conferred upon the
National Redemption Council by
subsection 1 of Section 1 of the
Lands (Statutory Wayleaves) Act,
1963), E.I. 46 and E.I. 44 were
passed, declaring that in the
public interest the disputed
land is subject to a wayleave
for purposes of a public utility
service to enure to the benefit
of the Public Works Department.
The lands which were subject to
the way leaves, have been
sufficiently described in E.I 46
and E.I. 44
….
According to the 1st
and 2nd Interested
parties, the entire land so
described above is owned by 1st
interested party and forms part
of its ancestral land, but in
1973 the Government of Ghana
passed an Executive Instrument,
E.I. 44, that is, Lands
(Statutory Wayleaves)
(Accra-Tema Motorway) Phase II
Instrument, 1973 creating
statutory wayleaves over the
land. 1st and 2nd
interested parties contended
that the E.I.s of 1973 were
issued pursuant to the Statutory
Wayleaves Act of 1963 (Act 186)
and that only created a right of
way over the land but 1st
interested party’s ownership and
title to the land was never
interfered with.
….
The Government of Ghana used a
portion of this land for the
entire Accra-Tema Motorway but
could not develop the entire
width of the subject land
described in E.I. 46 and 44.
In or around 2007, the Applicant
herein with the approval of the
Metropolitan Authority and the
Town and Country Planning
rezoned portions of the exterior
corridor of the Accra-Tema
motorway into
commercial/industrial plots and
processed grants for leases from
the interested parties in
respect of portions of the
subject land where upon the 1st
and 2nd interested
parties instituted an action in
the respondent High Court”
Claiming
declaration of title and
ancillary reliefs. Judgment was
given “for the said interested
parties. The applicant
thereupon has brought this
application for an Order of
Certiorari directed at the
High Court (Lands Division)
presided over by His Lordship
Justice S.H. Ocran, to move into
this Honourable Court for the
purpose of quashing the judgment
dated 19th December,
2014, . . . . . . and for any
further orders as this
Honourable Court may deem fit to
prevent illegality and a failure
of justice.
The
Ground for the Application is as
follows:
1.
That the High Court (Land
Division) presided over by
Justice S.H. Ocran committed a
jurisdictional error patent on
the face of the record when he
declared Executive Instruments
46 and 44 of 1973 to be
impliedly revoked by the conduct
of two State institutions”
Decision
For error
of law on the face of the record
to lead to the quashing of a
decision the error as held in
Republic vrs Court of Appeal,
Accra, Ex parte Tsatsu Tsikata
[2005-2006] SC GLR 612 at
619 “must be fundamental,
substantial, material, grave or
so serious as to go to the root
of the matter. The error of law
must be one on which the
decision depends. A
minor, trifling, inconsequential
or unimportant error, or for
that matter an error which does
not go to the core or root of
the decision complained of; or
stated differently, on which the
decision does not turn, would
not attract the court’s
supervisory intervention.”
(e.s)
In this
case though the holding of the
judge that the aforementioned
Executive instruments were
impliedly revoked by the
applicant’s conduct is erroneous
in law his decision cannot be
said to be thereby vitiated
since it is also based on the
ground that the said Instruments
did not vest title in the land
in question in the state or
institution concerned. The
latter holding is quite clearly
right in law and therefore the
decision remains sound despite
the said error of law. Indeed
in National Trust for places
of Historic Interest
or Natural Beauty v Midlands
Electricity Board and
Another (1952)1 Ch 380 the
grantees of a statutory wayleave
were sued for breaches of
covenants relating to the land
in question by the owners of the
land. Though unsuccessful their
title thereto was never
questioned.
The
headnote of that case as far as
relevant is as follows:
“By a deed dated April 2, 1936,
and made between the
Ecclesiastical Commissioners
(the predecessors in title of
the Church Commissioners, the
second defendants) of the one
part and the plaintiffs of the
other part, it was recited that
the commissioners had agreed to
impose on certain common lands
of which they were the owners
restrictive covenants therein
contained for the benefit of
Midsummer Hill (owned and
occupied by the plaintiffs) and
for the purpose of preserving
the amenities of the Malvern
Hills, and the two relevant
restrictive covenants were: (1)
No act or thing shall be done or
placed or permitted to remain
upon the land which shall injure
prejudice affect or destroy the
natural aspect and condition of
the land and (2) No building
shall at any time hereafter be
erected upon any part of the
land by or with the consent of
the covenantors.
The first defendants, an area
board constituted under the
Electricity Act, 1947, entered
on a small part of those common
lands and began to erect poles
on it for the purpose of
carrying electric cables across
it. In an action brought by the
plaintiffs claiming an
injunction against both
defendants to restrain the
erection or maintenance of the
poles on the common lands:-
Held,
(1) that the first covenant was
void for uncertainty and
therefore unenforceable; (2)
that it was only as owners of
Midsummer Hill that the
plaintiffs would have had any
right of action in respect of
those covenants and no right of
theirs as such owners had been
infringed; (3) that there
had in fact been no breach of
either covenant and (4) that in
any event the first defendants
were acting within their
statutory powers, so that, even
if the covenants had been (a)
enforceable and (b) infringed,
both defendants were relieved
from any obligation to comply
with the restrictions.” (e.s)
This case
clearly shows that the statutory
wayleave there granted to the
first defendants did not affect
the ownership rights of the
owners of the land in question
except to the extent warranted
by the terms of the said
wayleave. See also Central
Electricity Generating Board v
Jennaway (1959)I WLR 937.
This is reinforced by reference,
to s.6(2) of Act 186 which shows
that where the operation of the
wayleave results in an accretion
to the value of the land the
owners’ compensation for loss is
to be reduced by the amount of
such accretion in the said land
of the owner. The Act thereby
acknowledges that ownership of
the land subject to a way leave
remains in the owner thereof.
If I had
considered it useful to do so I
would have granted the
Certiorari but limited to that
part of the decision relating to
the revocation by conduct of the
statutory Instruments in
question. But in view of my
conclusion I see no utility in
that course.
There is
nothing however in my opinion
which warrants an owner of
land’s interference with the
terms of a wayleave. Neither
can a statutory wayleave warrant
the subversion of the rights of
the owner of the land in
question which are consistent
with the terms of the wayleave
involved.
It
follows that the error
complained of is not the
operative basis for the
respondent court’s decision.
I say
nothing about the disputed
questions of fact which are
matters for appeal.
For these
reasons I dismiss the
application.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE
SUPREME COURT
COUNSEL
CARLIS APPIAH BRAKO ESQ. FOR THE
APPLICANT.
RAYMOND BAGNABU ESQ. (WITH HIM
MS. BELINDA PWAMANG) FOR THE 1ST
AND 2ND INTERESTED
PARTIES
EMMANUEL AVENORGBO ESQ. FOR THE
3RD INTERESTED
PARTY.
YONI KULENDI ESQ. ( WITH HIM
MRS. AMA AMPONSAH AND MS. SENA
EDEKOR) FOR THE 4TH &
5TH INTERESTED
PARTIES.
JOE SLOV TIA ESQ.(WITH HIM
CEPHAS MATEY FOR 7TH
INTERESTED PARTY).
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