• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  ACCRA - A.D 2019
  

DAKPEM ZOBOGU-NAA HENRY A. KALEEM - (Plaintiff/Appellant)

vs.

LANDS COMMISSION, ATTORNEY GENERAL AND DAKPEMA ALHASSAN MOHAMMED DAWUNI - (1st Defendant/Appellant)

JUDGEMENT

---

 

TORKORNOO (MRS), J.A.

This is an appeal from the High Court, Tamale. The original plaintiff described himself as a sub-chief of the Gumbiliya gate of the Dakpema Skin. He sued the Lands Commission as 1^st defendant, and the Attorney General as 2^nd defendant. The Lands Commission is the appellant in this appeal.

It was the case of the plaintiff that the Dakpema Skin had 3 gates, and accession to the skin was rotational among the various gates, hence his capacity to sue regarding the proper utilization, protection and preservation of Dakpema Skin lands. After his death during the course of proceedings in the high court, he was substituted with the respondent to this appeal.

The dispute in court is over 208.84 acres of land (Kaladan lands) out of the generality of Dakpema Skin lands. It was the case of the Plaintiff Respondent (hereinafter referred to as Respondent) that sometime in 1905, part of Dakpema Skin land which included the Kaladan lands were ‘released to and or acquired by’ the British colonial government for varied purposes. He pleaded that no compensation was paid for the acquisition. He averred further that the Kaladan lands in particular were occupied by the Gold Coast military. After independence, these lands held by the crown became vested in the President of the Republic of Ghana.

 

He went on to plead that in or about 1997, a portion of these 208.84 acres were released to the Dakpema Skin through a committee with representatives of the 3 gates. The released lands were distributed among the gates. Thereafter, more efforts were made for the release of more of the Kaladan land and this was done. However, after the second release of Dakpema lands, the 1^st defendant/Appellant (hereinafter referred to as Appellant) took control of the released lands and started to dispose of, grant and sell same to private individuals without recourse to the Dakpem Skin – the pre-acquisition owners of the lands. The contention of the Appellant in defence of these dispositions was that the Kaladan lands constituted state lands. The Respondent described the dispositions as illegal and the contentions of the Appellant as contrary to law. In the endorsement on his amended writ, the Plaintiff/Respondent claimed for:

i.              A declaration that the conduct of the 1^st defendant is ultra vires and therefore null and void

ii.             A declaration that the conduct of the 3rd defendant in the circumstances of this lawsuit is unconscionable, inequitable, unfair and unjust.

iii.            A declaration any purported alienation of any portion of the subject matter of this lawsuit by the 3^rd defendant alone is illegal and null and void.

iv.           A declaration that the Dakpema skin as a corporation sole is bound and or estopped from refusing to share or caused to be shared the subject matter of the law suit among the 3 gates that constitutes the Dakpema skin.

2. Recovery of possession for the benefit of the 3 gates that constitutes the Dakpema skin any portion of the Land unlawfully alienated by the defendants.

      i.        Judicial distribution of the land amongst the 3 gates that constitutes the Dakpema skin or in the alternative a mandatory order directed at the 3^rd defendant to release and share the subject matter into 3 parts/portions for each skin gate within such period as the Court may deem fit.

     ii.        Perpetual injunction against the 1^st defendant restraining it from entering upon or doing anything and or interfering with the Dakpema skin rights, or title to the said land.

3. An order of perpetual injunction or prohibitive (sic) restraining the defendants, particularly the 1^st defendant, it agents, assigns etc. and persons driving (sic) title through it from disposing of and alienating any portion of Dakpema skin land in any manner whatsoever.

 

In its Statement of defence, the Appellant did not deny the averment that part of Dakpema skin lands was released to the British Government some time around 1905. Their defence was that under the Administration (Northern Territory) Ordinance of 1902 CAP 111, a large stretch of land was acquired for government buildings under a Certificate of Appropriation dated 31^st December 1922. They averred that the 208.84 acres of Kaladan land was part of this larger land.

It was their case that pursuant to provisions of Cap 111, which did not confer a right to compensation for this acquisition, the original owners of the land lost every right of reversion to this larger stretch of land.

They went on to say that the colonial government gave a license to the military through a Letter of Authority to use the Kaladan land for military purposes on 22^nd January 1955.

This letter of authority was revoked and cancelled on 4^th January 2013 and the land reverted to the management and control of the Appellant. It was their case that part of the land known and called Ward E was taken over by the Tamale Municipal Assembly for a World Bank sponsored housing development scheme.

 

It was also the case of the Appellant that as long as the occupant of the Dapkem skin was alive, the Respondent, a sub-chief of a gate to the skin did not have locus standi to litigate title to skin land. Their conclusion was that the land in question is public land within the meaning of Article 257 (2) of the 1992 Constitution and subject to the management regime under the Appellant found in Article 258.

In its Statement of Defence, the 2^nd defendant pleaded that the Kaladan Barracks land was lawfully acquired by the British monarch who was head of state in the Gold Coast. It said that on 20^th January 1955, 208.84 acres of the acquired lands was released to the military to be used for military purposes. After independence, all lands vested in the monarch became vested in the President of the Republic under the State Property and Contracts Act, 1960.

Further, on 4^th January 2013, the letter of authority to the military was revoked to pave the way for better use of the land. It was its case that the land is state land, and properly managed by the Appellant. It also challenged the capacity of the Respondent to commence the action when the occupant of the Dakpem skin was available to defend Dakpema skin lands

The 3^rd defendant is the occupant of the Dakpema skin. He was joined to the suit as a defendant on his own application. The substance of his case was that there are six sub chiefs within the Dakpema skin who hold separate lands as caretakers for the Dakpema. Their lands together form the larger Dakpema skin lands and they could not allocate same without the consent of Dakpema skin. He described the Dakpema skin as a corporation sole represented by the occupant of Dakpema skin and said in view of this, the Respondent could not have an inalienable right and stake in Dakpema skin lands. He said that the kaladan lands fell under Silimboma Naa and Kukuo Naa and not within the area of the Respondent as a sub-chief and so he could not sue in respect of kaladan lands.

 

He admitted the earlier release of land to his predecessor and denied that any Dakpema skin lands were in danger of getting lost. He also admitted having been part of negotiations for the release of Dakpema lands leading to the military releasing same to the Appellant, who took the position that the lands were state lands. He further admitted the subsequent release of land complained about by the Respondent and said that it was done by the Appellant and on an agreed ratio with the Dakpema skin because they retained management and control over the entire kaladan lands. His position was that the Respondent could not customarily challenge or call him to account for his control and management of the land allocated to the Dakpema skin in the second release and that he has the customary right to ‘occupy, use and alienate Dakpema lands particularly, those under Silimboma Naa’s skin which he had assumed direct control and management over.’

Fourth, on 12^th August 2010, the military acting by the Minister of Defence wrote to the Minister of Lands and ceded up a part of the lands described as Area B that had become heavily encroached and requested that a Certificate of Allocation should be issued to the military on the remaining 122.75 acres of land designated as Area A (exhibit P1D1 tendered by Respondent and found on pages 80 and 81).

Sixth, the Lands Commission issued a certificate revoking the January 1955 authority given to the military to use the 208.84 acres. This was on 4th January 2013 (exhibit LC5 found on page 167).

 

The critical disagreement between the parties was over the mode in which the state obtained it’s interest over the 208.84 kaladan lands in issue, and the nature of interest it obtained. While the Appellant asserts that the state compulsorily acquired it as part of a larger tract of land through Cap 111, the Respondent’s position is that part of its lands were ‘released to or acquired’ by the colonial government in 1905, but these 208.84 kaladan lands have been occupied by the military since 1955. Further, ‘By operation of law, the said lands which was held by the crown became vested in the president of the Republic of Ghana’ (paragraph 10 of their Amended Statement of Claim).

After the trial, the learned trial judge arrived at the following findings

That the evidence brought to court did not support the case that there had been a compulsory acquisition of a larger tract of land beyond the 208.84 acres of land that had excited the suit, and that ‘if there was the acquisition of a larger area of which the land in dispute formed a part, the certificate in respect of that larger area should have been tendered’.

The evidence before the court was that the 208.84 acres of land had been compulsorily acquired by the colonial government for the military through a Letter of Authority dated 1955. This acquisition was premised on section 5(7) of Cap 111.

Section 5 of Cap 111 was repealed by Section 26 of the State Property and Contract Act 1960. Because the military’s right to occupy the land had accrued from 1955, it could not be avoided by the repeal.

Section (5) (8) of Cap 111 had provided that where the government at any time rescinded (or varied) any certificate vesting land under the statute, such certificate shall become void order shall from the date thereof vest and be held and enjoyed as though it had never been taken for the government or held or occupied as government property The right to reversion therefore accrued to the pre-acquisition owners under the Cap 111.

 

Under the 1979 Constitution and subsequently the 1992 Constitution, rights of reversion of ownership in stool lands in the northern region and two upper regions of the country also accrued to pre-acquisition/vesting owners.

The ministry of defence had issued a notice of its decision to discontinue its interest in part of the land in 2010 on account of encroachment.

The Letter of Authority giving the military rights over the entire 208.84 acres land had been revoked by the Government acting through the Lands Commission in 2013.

The revocation of the letter of authority extinguished any government interest in the land by reason of the rights of reversion which had accrued to the original owners under Section 5(8) of Cap 111 and the 1992 Constitution.

The Government should therefore have issued a disclaimer over the remainder of lands ceded up by the military in favour of the Dakpem skin as pre-acquisition owners.

The court granted Reliefs 1 (i) to (iv), and (3) as prayed. He also granted Relief (2) in the following numbered manner

(3) An order of recovery of possession is also made in favour of the Dakpema skin in respect of the land which has been unlawfully alienated by the defendants

(4) An order is also granted in favour of the plaintiff that the 3^rd defendant aside any customary rule that was not brought to the attention of this court is to share the land in dispute among the three gates Gumbiliya, Nambiligu, and Nun-Kora in equal proportions. As stated, barring any customary rule to the contrary the equally is equity principle should be used in sharing the land.

The court also granted ‘A declaration of title in favour of the Dakpema skin in respect of the 122.75 acres of the kaladan lands which were covered in the Certificate of Revocation and that the Dakpema skin being a corporation sole is bound to share the skin land among the three gates constituting the Dakpema skin’

 

Being aggrieved with the judgment, the Appellant appealed on the following grounds of appeal:

1.    The judgment was against the weight of evidence.

2.    The learned trial judge misdirected himself in holding that Exhibits LC and LC1 did not comply with the requirements of section 29(7) (a) and (b) of No. 1 of 1923, Cap 111 when there was evidence on record that the said exhibits duly complied with that law.

3.    The learned trial judge made wrong conclusions when he held that there was no large acquisition of which the land in dispute formed part in the face of overwhelming evidence on record that there was such large acquisition.

4.    The trial judge erred when he came to the conclusion that Exhibit LC2 was an acquisition instrument of the land in dispute when in deed the said Exhibit, on the face of it, does not comply with No. 1 of 1923, i.e. Cap 111.

5.    The trial court erred when it relied on Exhibit P1D1 to conclude that the land in dispute was acquired for the military and by extension held that the government was bound by the contents of the said Exhibit to issue a disclaimer in favour of the plaintiff, being the pre-acquisition owners of the land.

6.    The trial court erred when it adjudged that Exhibit LC5 automatically reverted the land in dispute to the pre-acquisition owners, the plaintiffs.

Now to the evaluation of how we arrived at the positions stated above. This requires a review of the import of Cap 111 and its amendment no 1 of 1923 which introduced the Section 29 (7) that the Appellant points to as the acquisition instrument of the larger land that rendered the Dakpema lands state lands.

The appellant counsel tried to draw a distinction between the intent of sections 29 (1), (2), (3), (4) and section 29 (7) (a) and (b). He stated in paragraphs 50 to 57 of his submissions that ‘there were two forms through which the state could acquire land which it was not already in possession of. To do so, it had to comply with Section 29 (1) to (4) of N0 1 of 1923 of Cap 111. The other form was where the state sought to acquire land which it was already in possession of. The state needed to comply with Section 29 (7) (a) and (b) of the law.’

 

He went on to say that Section 29 (7) declared all lands held and occupied as Government property by 31^st December 1922 as state lands. The compulsory acquisition was completed by the preparation of a schedule and a plan of all the said lands and certification as these lands having been held as government property. He concluded paragraph 53 with the words ‘The essence of section 29 (7) (b) was merely to identify the lands so declared as government property under section 29 (7) (a).’

We think that save for the last sentence above, the rest of the evaluation is wrong. Exhibit LC is headed ‘Schedule Of Government Lands under Northern Territories Ordinance No 1 of 1923 S. 29 (7) (b)’ and dated 7^th August 1925. Written thereon in manuscript are the words ‘Certified under my hand & official seal as required by N.T. Ord No 1 of 1923. Dated at TAMALE this 7^th day of August 1925. I certify that these lands held and occupied as government property on 31^st December 1922’. On a simple reading of these words, the two documents simply identified the parameters of lands held and occupied as government lands by the 31^st December 1922. Exhibits LC and LC1 therefore do not contain a certification of appropriation for acquisition purposes (as paragraph 4 of the Statement of Defence seemed to suggest), but a certification that the documents reflect the area held and occupied as government property as at 31^st December 1922.

There are very strong principles for the interpretation of documents and statutes. A foundational principle is that a statute must be read, understood and interpreted as a whole to determine the intention of the law maker. A second principle is that a statute must be interpreted within the context of its’ clear words. It is only when the interpretation of the clear words will produce an absurd result that the one interpreting it is allowed to look beyond the literal words. Even then, the principle is to find the legislative intent and ensure that this is achieved in the interpretative exercise

 

These principles were articulated in the seminal case of Becke v Smith 1836 2 M&W 191 at 195, and quoted by the Court of Appeal in Ghana Muslim Representative Council and Others v Salifu and Others 1975 2 GLR 246 at 255 in these words:

‘In construing a statute, the primary duty of the Court is to ascertain the general purport of that legislation from the words actually used in the statute. This is what is called the golden rule of statute interpretation formulated by Park B in his oft-quoted dictum in Becke v Smith 1836 2 M&W 191 at 195:

“It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used; and to the grammatical construction, unless that is, at variance with the intentions of the legislature, to be collected from the statute itself or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further”.

Again, in order to appreciate the purpose, intent and directions of a statute, construing it must begin from the title, the preamble and take note of the entire law. In Larbi v Salloum 1984-86 1 GLR 449 at 452, the court of appeal stated these words when it had to interpret section 17 (10) of the Rents Act Act 220 regarding the nature of premises that the law referred to. The court per Taylor JSC said

“in order to ascertain the true construction of Section 17(10) of Act 220, the whole enactment must be looked.. if an occupier or tenant of premises is in occupation in circumstances contravening the building regulations of the Republic or the tenancy requirements of the law, section 17 cannot save him from ejectment…It cannot therefore be the law that when the building becomes dangerous and therefore unsafe and unfit for human habitation and necessitates taking remedial statutory action to make it safe and fit for human habitation an occupant can claim a legal right to thwart this statutory remedy by a reliance on the provisions of section 17 as authority for the proposition that, the peril to his life notwithstanding he must remain in occupation while dangerous work is undertaken to make the house habitable”.

The court said of the proposition it dealt with ‘Although the argument looks attractive and it would seem to be impressive, we think its consequences are so extravagant and absurd that it must be rejected’.

 

In Omaboe 111 and others v Attorney General & Lands Commission 2005 – 2006 579 the Supreme Court provided this thesis regarding the proper interpretation of statue. It said on page 589

‘It seems fair to start from the proposition that if the words of the provision to be interpreted are clear, we must follow them’.

After quoting from Tuffuor v Attorney-General 1980 GLR 637, it went on to say

‘However a commitment to use the plain meaning rule as a starting point does not take us very far; for it is also said that if the words admit of two or more plausible interpretations, then they are not clear. Since there are so many situations with any given document, the plain meaning rule in practice suffers the same fate as the monarch to whom full homage is paid moments before he falls victim to a palace coup.

Now where the words in a document are unclear, a number of possibilities open up for those called upon to interpret and apply the legal provision. One is that if a literal approach would lead to an absurdity, repugnance, or logical inconsistency, then one would have to avoid it and adopt another interpretation because it is presumed that the makers of the document did not intend to create an absurdity or inconsistency. Logical consistency covers not simply internal consistency (i.e. consistency between the various parts of the very document being interpreted), but also consistency with other rules of the legal system within which one is operating’

 

When these proper canons of and guidelines to interpretation of statutes are applied, one finds the purpose of Cap 111 is set out in these words ‘AN ORDINANCE TO PROVIDE FOR THE ADMINISTRATION OF THE NORTHERN TERRITORIES OF THE GOLD COAST’. As a statute created for the general administration of the Northern Territories, the scope of Cap 111 of 1902 stretched from the sale of drinks to management of landed property. It was not a statute created for the compulsory acquisition of property for the State. In these circumstances and given that the compulsory acquisition of property without payment for it or the option of reversal of that acquisition must be repugnant to any society that is not practicing slavery, it is important to ensure that the clear words of the statute give that direction before construing it to arrive at that meaning.

A simple reading of Cap 111 when it came to the appropriation of land clarifies that it dealt with lands needed for public services. In this wise, it gave direction as to how the taking of lands for public services was to be conducted, and provided that lands already held and occupied as government lands were to be vested in the crown free of encumbrances and charges. The statute then went on to provide for the variation and rescission of the vesting of such properties, thereby ensuring that the vesting of interest in the crown did not constitute compulsory acquisition without a hope of reversal to the original land owners.

Section 5 (7) is the progenitor of the Section 29 (7) that the Appellant relies on to justify the alleged compulsory acquisition of the larger land found on exhibits LC and LC1. Section 5(1) and section 29 (1) have the exact same wording, just like Section 5(7) and Section 29 (7) have almost the exact same wordings.

 

Our summation therefore is that these two provisions, Section 5 (7) and 29 (7) clarified that as part of the administration of the Northern Territories, the lands held and occupied as government property by 31^st December 1922 became vested in the crown for use in public services. With this vesting, the crown could hold the lands ‘free from all competing estates, incumbrances, titles, interests, liens, charges, and claims, of whatsoever nature and by whomsoever alleged to be held or claimed’ and the statute and schedule and map created therefrom were enough evidence of this vested ownership.

There is a distinct difference between vesting lands in a body other than its original owner for the purposes of administration, and compulsorily acquiring it as state lands without a right of reversion to its owner. While both practices have been consistently regulated by statute and incorporated in land administration of the country, the second practice has been accompanied by provisions to ensure proper compensation to the original owner.

Indeed, it must be noted that as far back as in 1892, if land was required by the State for uses that could not allow reversion to the original owners, law ensured payment for such acquisition. Section 3 of the Towns Act 1892 reads

 

Purchase of land for streets

The Minister, on paying compensation to the persons entitled to it, may acquire a land or an easement for the purpose of widening, opening, enlarging, draining, otherwise improving a street, or of making a new street

In Omaboe 111 cited supra, the Supreme Court provided direction on the meaning of the similar term ‘vested in the President in trust’ used in section 7 (1) of Administration of Lands Act 1962 (Act 123). It said ‘the term ordinarily connoted the real transfer of the allodial ownership to the President as trustee, not simply the management and control functions of land administration. It signifies the non-derivative title to the maximum range of liberties with respect to the ownership and use of land….However any moneys accruing as a result of any deed executed or other act done by the President were to be paid into ‘an appropriate account’ for specified uses to the benefit of the statutory local authorities and the communities concerned’

It is trite law that the incidents of trusteeship are attached with a duty of conferring beneficial entitlements on the beneficiary of the trust, and the possibility of vesting the legal title back in the beneficiary if circumstances change.

Thus the suggestion that the provision made to take land for Public Services without payment of compensation compelled an interpretation of compulsory acquisition without a right of reversion to the original owner is to introduce a foreign concept into the rights regimes of the nation from colonial times.

And we feel quite confident that the Appellant, as the depositary of land records and regulator of lands, in this country, well knows this difference. But it would seem that the Appellant, whether intentionally or haplessly, has misconstrued the essence of the words of the statute. It seems to joyfully mix the oranges of vesting with the apples of compulsory acquisition regardless of the deep import of this position on the constitutional right to own property conferred on the original owners of the lands in issue.

 

Again in Omaboe 111 cited supra, the Supreme Court examined the vesting and acquisition regimes over stool lands from previous statutes and the effect of relevant provisions in the 1992 Constitution and described as ‘clearly misplaced’ the position taken by the Lands Commission that the vesting of stool lands in the President under section 7 of Administration of Lands Act, 1962 Act 123 is equivalent to compulsory acquisition of the land.

The court clarified that once lands had become public lands through vesting, they ‘continue to be vested in the President or Government of Ghana until the State takes measures by an express statutory language to de-vest itself and re-vest in the original stool owners’ Vested lands may be de-vested, and re-vested, and this is done by express measures.

And to appreciate that Section 5 of Cap 111 created the former situation (vesting) and not the latter (compulsory acquisition), one did not have to look beyond the statute itself. Apart from using the operative word ‘vested’ in how legal interest in the lands held and occupied as government property were being given to the crown in Sections 5(2) and (7), Sections 29 (2) and (7), there was an addition to Section 5 after Section 29 was included in the statute to cater for variation or rescission of the vested status of the lands.

As the document reveals, it deals with land ‘appropriated (past tense) for the Public Service for the development of a military area’. And it reveals that the taking of land as a military area was done under Section 5(2) of Cap 111 in June 1955. And there can be no contradiction in the arrangements reflected in exhibits LC, LC1, LC2, LC3 and LC4 and I will explain this.

 

In summary, our opinion is that by the use of the process of ‘vesting’ in the crown the properties already held as government property, and by the amendment in section 5(8) introduced by No 6 of 1931, the only interpretation that could be put on the language of Cap 111 is that it did not intend to create an absolute and irreversible acquisition of lands held and occupied as government property for the State, but it transferred the legal interest in the lands to the crown free of all competing interests, estates, and liens and charges and encumbrances. The law made provision for this transfer to be varied or rescinded by a later certificate, and such certificate varying or rescinding the vesting would have the effect of rendering the original vesting void as if it had never occurred. The Appellant’s position that Cap 111 is a statute that compulsorily acquired larger land is not only against the weight of evidence, but also flies in the face of the full content of cap 111.

Ground 1 of the appeal is dismissed. To the extent that we are satisfied that all lands held and occupied as government properties by 31^st December 1922 in the Northern Territories as depicted on exhibit LC and LC1 were vested in the crown by Section 29 (7) of Cap 111, and not compulsorily acquired as urged by Appellant, we also dismiss Grounds 2 and 3 of the appeal.

Counsel for appellant urges in ground 4 of the appeal that the trial judge erred when he came to the conclusion that Exhibit LC2 was an acquisition instrument of the land in dispute when in deed the said Exhibit, on the face of it, does not comply with No. 1 of 1923, Cap 111.

 

I have read the judgment carefully. On page 24 of the judgment, the learned trial judge made the finding that the kaladan land was acquired by the colonial government for the military. After setting out the contents of exhibit LC4, he concluded the words ‘could only mean that the Government was appropriating the land for the military’. Then he switched his language again and said the land was compulsorily acquired. These changes in language created the impression of incoherence regarding the Judge’s evaluation of the effect of the documents. But what we understand him as saying is that these documents were the inception documents that gave legal interest to the military over the kaladan lands.

And this is the thrust of this dispute. Who is entitled to the reversionary interest in this land after the military decided it no longer needed it for public services? And was it that act that de-vested the land from the ownership of the government? The case of the appellant is that the question of reversionary interest did not arise because the land had been compulsorily acquired by Cap 111. We have stated our contradiction with that position and held that the land was vested in the crown for public services and the right to a reversionary interest in its original owners was provided for under Section 5 (8) of Cap

This finding goes for the larger land identified by the Appellant itself, and the kaladan lands identified by all the parties, which is the land in dispute.

As pleaded by the 2^nd defendant, all lands vested in the monarch became vested in the President of the Republic under the State Property and Contracts Act, 1960, after independence. Although Section 5 of Cap 111 was repealed by Section 26 of the State Property and Contract Act 1960, C.A.6, all rights accrued under Section 5 of Cap 111, including the rights of reversion under Section 5 (8) in the event of rescission of the vested status of the land remained. This was the holding of the trial judge and we agree with him.

And it is instructive to note that under the State Property and Contracts Act 1960 C.A.6, there is a distinction given between ‘Acquisition and vesting of property’ Section 3 provides:

 

3. Acquisition and vesting of property

“Where it is provided in an Act that the crown may or shall acquire property and then vest the property so acquired in an authority, that power shall, on the coming into force of this Act be exercisable by the President”.

The law draws the distinction between the process of acquiring land and the conferring of legal ownership rights in the land by vesting same in government. And the law continues to reflect the practice of ensuring compensation when the intention is to acquire the property without a right of reversion.

But, for the purposes of the case we are dealing with, by 2010 when the military ceded the interest given to them in 1955, a new and more formidable legal regime had arisen for the reversal of vested lands under the 1992 Constitution. The lands in issue had become de-vested by the actual operation of law.

In Article 257, the 1992 Constitution directs:

257(1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.

(2) For the purposes of this article, and subject to clause (3) of this article, "public lands" includes any land which, immediately before the coming into force of this Constitution, was vested in the Government of Ghana on behalf of, and in trust for, the people of Ghana 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.

(3) For the avoidance of doubt, it is hereby declared that all lands in the Northern, Upper East and Upper West Regions of Ghana which immediately before the coming into force of this Constitution were vested in the Government of Ghana are not public lands within the meaning of clauses (1) and of this article.

(4) Subject to the provisions of this Constitution, all lands referred to in clause (3) of this article shall vest in any person who was the owner of the land before the vesting, or in the appropriate skin without further assurance than this clause.

(5) Clauses (3) and (4) of this article shall be without prejudice to the vesting by the Government in itself of any land which is required in the public interest for public purposes.

 

By operation of the 1992 Constitution, public lands in the Northern, Upper East and Upper West Regions which had been vested in the State reverted to the owners or the appropriate skin without further assurance than Article 257 clauses (3) and 4. This right of reversion directly to its owners for any public lands would affect any lands vested under Cap 111 or other statute that enabled the vesting of lands in the Northern, Upper East and Upper West Regions from as far back as 1992.

And we return to the case of Omaboe 111 cited supra. In that decision directly given to the Appellant herein and others, the Supreme Court clarified that once lands had become public lands through vesting, they ‘continue to be vested in the President or Government of Ghana until the State takes measures by an express statutory language to de-vest itself and re-vest in the original stool owners’. The court gave the following direction albeit per incuriam.

‘When the constitution sought to de-vest the government of hitherto public lands in the Northern, Upper East and Upper West regions of Ghana and to re-vest them in the original owners, it did so in express terms under Article 257 (3)’.

Thus when the military ceded their right of occupation granted through the appropriation done in 1955, the lands reverted not to the Lands Commission, as trustees of public lands, but to the original owners, as a constitutionally conferred right. And once again, the holding by the learned trial judge that the Lands Commission should have issued a disclaimer in favour of the original land owners is in consonance with this position.

Grounds 5 and 6 of the appeal are dismissed. I will not evaluate Ground 7 of the appeal for the reason of having settled that the reversionary interest in all the legal and equitable rights over the land remained with the original land owners as a matter of the operation of the law under which the land was vested.

We review the orders of the learned trial judge in the following manner: Declaration of title for the Dakpem Skin as original owner of the kaladan lands is given with regard to the entire 208.84 acres of land as having accrued under Article 257 of the 1997 Constitution. The right to possession is however subject to any encumbrances that may have been created over any portions of it by the Lands Commission, the institution that managed vested lands for the government of Ghana. We order recovery of possession in relation to 110 plots of land as indorsed on the Amended Statement of Claim found on page 53 of the Record of Appeal.

All other orders remain as made by the trial judge