IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
DAKPEM ZOBOGU-NAA HENRY A. KALEEM - (Plaintiff/Appellant)
LANDS COMMISSION, ATTORNEY GENERAL AND DAKPEMA ALHASSAN MOHAMMED DAWUNI - (1st Defendant/Appellant)
DATE: 22ND FEBRUARY, 2019
SUIT NO: H1/5/2017
JUDGES: OFOE J.A. (PRESIDING), TORKORNOO (MRS) J. A., NICHOLAS J.A.
COUNSEL FOR 1ST DEFENDANT/APPELLANT: JONATHAN S. LARI
COUNSEL FOR PLAINTIFF/RESPONDENT: MOHAMMED MUSAH
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 1st defendant, and the Attorney General as 2nd 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 1st 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 1st 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 3rd 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 3rd 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 1st 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 1st 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 31st 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 22nd January 1955.
This letter of authority was revoked and cancelled on 4th 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 2nd 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 20th 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 4th 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 3rd 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.’
In a Reply, the Respondent reiterated his position as against the various Defences filed and so joined issues on them.
The 2nd defendant did not testify in the suit, leaving the defence of the government position to the Appellant. In the trial, the parties tendered documents to establish the documentary trail over the land in dispute, according to the cases they had made out. To support their position on the acquisition of the larger territory alleged by Appellant, Appellant’s witness tendered the Administration (Northern Territories) Ordinance, Cap 111 as exhibit RA2, which can be found on page 176 of the Record of Appeal (ROA), and the No 1 Amendment to Cap 111 of 1923 as exhibit RA3 found on page 179 of the ROA. These were the statutes from which the Appellant urged the court to find compulsory acquisition of the lands that the kaladan lands fell within.
Appellant’s representative also tendered exhibits LC and LC1, a schedule of the lands they urged to have been compulsorily acquired, and the map arising from the dimensions on the Schedule. He tendered exhibit LC2 dated 20th January 1955 and headed ‘TAMALE – MILITARY AREA (found on page 162 of the ROA and also tendered as P1D2 by Respondent and found on page 83). It was a letter from the Lands department authorizing the Military to occupy 208.84 acres of land lands set out in the schedule to the letter. Exhibit LC3 is the map created from the schedule to that letter.
Exhibit LC4 is a notice dated 7th June 1955 and headed ‘TAKEN FOR THE GOVERNMENT’ and it certified that on 7th June 1955, a notice had been issued pursuant to Section 5(2) of Cap 111 and posted on ‘land appropriated for the public service for the development of a military area’. It was signed by the Government agent of Tamale and addressed to the Chief Regional Officer of Northern Territories in Tamale. These were tendered in support of the Appellant’s case that the military had been authorized by the lands department in 1955 to occupy the lands in dispute (found on page 165 of the ROA)
From the foregoing, the pleadings, uncontested parts of testimonies and uncontested exhibits settle a record of dealings with the land in issue in the following manner:
First, the 208.84 acres of land which is the subject matter of dispute are not contested as Dakpema skin lands. Second, a Letter of Authority dated 20th January 1955 was addressed to the military by the Commissioner of Lands authorizing the military to occupy these 208.84 acres of land in Tamale. Third, a notice was issued by the Government agent of Tamale certifying that notices had been posted on land appropriated ‘for the Public Service for the development of a military area’ on 10th June 1955
Fourth, on 12th 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 3rd 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.
The learned trial judge erred when he disbelieved the evidence of the defendants that no portion of the Kaladan lands were released by the government to the Dakpema skin during the reign of Dakpema Richard Alhassan of the Gunbiliya Gate and accepted the evidence of the plaintiff and his witnesses on that without properly going into the evidence offered by the defendant.
Additional grounds to be filed upon receipt of the judgment and proceedings.
I will consider the first three grounds of appeal together.
In his submissions, Appellant counsel was emphatic that the evidence established that government owned a large tract of land that the lands in issue formed part of prior to 1955, and that the ownership was in the nature of compulsory acquisition under Section 29 (7) of the Administration (Northern Territories) Ordinance, Cap 111, Amendment No 1 of 1923. He first pointed to Respondent’s pleading in paragraph 5 of his statement of claim found on page 52 of the ROA to the effect that the land in dispute was acquired in or about 1905 by the British colonial government for varied purposes and submitted that all the parties agreed that the colonial government’s acquisition of Dakpem lands commenced before 1955.
Concerning the evidence tendered, he asserted that it had been proved that the government entered the land through exhibit LC and LC1 dated 7th August 1925 respectively and that these constituted proper records on compulsory acquisition, while the military entered same through LC2, a letter of authority issued to the military to occupy the lands, and that this was a license given by the Government through the Lands Commission to use the 208.84 acres. It was his case that with the revocation of authority to the military to use the land, the land reverted to Lands Commission, as the custodians of state lands under the 1992 Constitution.
Based on these distinctions, appellant invited this court to reverse the findings of the trial judge because they were inconsistent with documentary evidence. He cited Koglex Ltd. (No 2) v Field 2000 SCGLR 175; and Gregory v Tandoh & Hanson 2010 SCGLR 971 on the position that an appellate court may reverse findings of a lower court where they are based on a wrong proposition of law or a rule of evidence or the findings are inconsistent with documentary evidence in the record. He invited the court to reverse the finding of fact by the trial judge that there was no larger acquisition which the land in dispute forms part of, and that the government acquisition of the Kaladan lands commenced with the letter of authority to the military to occupy the 208.84 acres of the land dated 20th January 1955, and that the notice on lands Taken by Government dated June 1955 formed part of this acquisition. Respondent counsel on the other hand disagreed with submissions of appellant counsel in 81 pages of submissions and invited this court to uphold the judgment.
The established direction in Rule 8 (1) of the Court of Appeal Rules 1997 CI 19 is that an appeal is by way of rehearing of all the material placed before the court within the context of the grounds of appeal. And in this mandate, we have considered the copious submissions and studied the pleadings, testimonies and exhibits in the Record of appeal (ROA). We find no reason to reverse the final judgment of the trial court given in favor of the Respondent, though we agree that the learned trial judge failed to fully construe the import of Section 5 of Cap 111 and section 29 (7) of No 1 Amendment of Cap 111 in 1923. We also find reason to reverse some orders made.
The ground of appeal that a judgment is against the weight of evidence constitutes a complaint that there are pieces of evidence on record that had been wrongly construed and applied against the appellant, and had this not been so, the judgment would have gone in favour of the appellant. Again, that there are pieces of evidence on record which, if applied in favour of the Appellant, could have changed the decision in his favor. See the first holding of the Supreme Court in Djin v Musah Baako 2007-2008 SCGLR 686.
While the appellant is required to point out these pieces of evidence and demonstrate how a different appreciation of them would have caused the court to arrive at a different conclusion, the appellate court is also enjoined to consider the contents of the entire record to determine whether the court had properly appreciated the import of the case submitted, the testimonies given and exhibits tendered. If a proper consideration should have led to a conclusion different from the judgment, then the duty of the appellate court is to draw the right conclusions and ensure that justice is served. These principles have been arrived at from a rich store of cases including Tuakwa v Bosom 2001-2002 SCGLR 61, Ayeh & Akakpo v Ayaa Iddrisu 2010 SCGLR 89
A review of the records shows a marked variance between the case presented by the appellant in its pleadings, and the case it presented in court through the testimony and exhibits. There was also some variance in the submissions on appeal. We find that this created some incoherence in the due appreciation of the issues to be resolved by the court. However, on the totality of evidence adduced at the trial, we find no reason to disturb the essence of the judgment and the majority of orders made.
The Appellant began its case with the pleading in paragraph 4 of their Statement of Defence that:
The 1st defendant admits paragraph 7 of the statement of claim and adds that the said property in dispute commonly known as Kaladan Barracks situate and lying within the Tamale metropolis forms part of a larger land acquired under a Certificate of Appropriation dated 31st December, 1922 under the Northern Territory Ordinance of 1902 (Cap 111) for government buildings and hence does not form part of the Plaintiff’s skin land with effect from the date the state acquired same.’ (emphasis mine).
By this pleading, the appellant put the parties on notice that there existed a Certificate of Appropriation dated 31st December 1922. In his witness statements, Appellant’s representative Peter Osei Owusu testified in paragraph 3 that the acquisition was done pursuant to Section 29 (7) (b) of Cap 111 and was loudly silent about the alleged Certificate of Appropriation dated 31st December 1922. It is therefore not surprising that the evaluation of the learned trial judge found on page 25 of his judgment and page 352 of the Record of Appeal was 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’.
Mr. Osei Owusu’s testimony after the pleadings was that the compulsory acquisition of the larger land traced on exhibits LC and LC1 arose directly from Section 29 (7) (b) Cap 111. He then described Cap 111 as the acquisition instrument.
On a rehearing of this case, we are satisfied that the Appellant failed to prove that there was compulsory acquisition of the larger area of land reflected on exhibits LC and LC1 which rendered them state lands by operation of Section 29 (7) of Cap 111. Appellant and it’s counsel misconceived the import of Cap 111 generally, and the meaning of Section 29 of Amendment No 1 of 1923 specifically. Further, the certification on the exhibits LC and LC1 did not constitute a certificate of appropriation of the lands described thereon in the nature of compulsory acquisition. This is because the clear, literal and purposive meanings of Sections 5(7) and 29(7) of Cap 111 was the vesting in the crown the legal interest in lands occupied and held by government as at 31st December 1922 and not the compulsory acquisition of those lands without a right and possibility of reversion to the original land owners. Thus, even if the Kaladan lands formed part of the lands reflected on exhibits LC and LC1, and the military was authorized by LC2 to occupy the kaladan lands in the nature of a licence, the Government of Ghana could only hold reversionary interest in the Kaladan lands if the land remained vested in the government. In the case before us, government lost its reversionary interest by operation of law and fact. It is these legal evaluations that render it inappropriate for this court to reverse the judgment on appeal and give judgment for the Appellant.
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 31st 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 7th 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 7th day of August 1925. I certify that these lands held and occupied as government property on 31st 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 31st 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 31st 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.
A reading of the whole of Section 5 in Cap 111 and Sections 29 in the 1923 Amendment reveal that the law creates conditions for government to have land for public services free of charges and encumbrances. While Sections 29 (1) to (6) sets out the steps for validating the taking of new lands for public services, Sections 29 (7) vests legal and ownership rights to lands that were already held and occupied by government by 31st December 1922 in the crown and provides a regime for validating that vesting. No part of Cap 111 addresses the option of compulsorily acquiring those lands without the option of reversal to the original owners of lands needed for public services.
Section 5 (1) reads:
5(1) It shall be lawful for the Chief Commissioner or any person appointed by him with all necessary workmen and other servants to enter any land required for public services and to set out, appropriate and take so much of such land for the said service’
Just like Section 5(1), Section 29 (1) provides:
29 (1) It shall be lawful for the Chief Commissioner or any person appointed by him with all necessary workmen and other servants to enter upon any land required for the public service, and to set out, appropriate, and take, so much of such land as shall be required for the said service
These two provisions of Cap 111 therefore provided for the physical exercise of entering on land and taking it for public services.
The remainder of Section 5 up to Section 5 (6) is dedicated to the rest of the steps needed to validate this physical act of taking land for public services. In the same way, Sections 29 (2) to (6) provide the steps required to validate such appropriation of land for public service. In subsection (2) of 29, it also directs that the taking of these lands ‘vests’ them in His Majesty the King free from all other estates and all liens, rights, charges, and encumbrances. It reads
29 (2) When the Chief Commissioner or any person so appointed by him shall set out, appropriate, and take, any land for the public service he shall cause such land to be marked out and a notice to be posted in some conspicuous part thereof, which notice shall be in these words viz:- ‘Taken for the Government,’ and shall be signed by the Chief Commissioner or person so appointed by him and dated with the date of posting. All such land belonging to any stool or private person when so set out, appropriated and taken shall be vested in His Majesty the king free from all other estates and all liens, rights, charges, and incumbrances, whatsoever’.
Section 5(7) then moves from the process of taking lands for public services and created a legal status for lands that were held and occupied as government property in these words:
7(a) the ownership in all lands, premises, and buildings, which were on the 31st day of December, 1922, held and occupied as Government property, is hereby declared to be vested absolutely in Her Majesty the Queen, free from all competing estates, incumbrances, titles, interests, liens, charges, and claims, of whatsoever nature and by whomsoever alleged to be held or claimed. (emphasis mine)
(b) The Chief Commissioner shall with all convenient dispatch cause to be prepared a schedule of all the said lands, premises, and buildings, together with proper plans thereof; and he shall cause the original of such schedule and plans, duly certified under his hand and official seal, to be deposited in his office, and a duplicate original of such schedule and plans similarly certified to be transmitted for deposit to the office of the Commissioner of Lands at Accra. Such original land duplicate original schedule and plans, and any duly certified office copy of or extract from such schedule and plans, shall for all purposes and without proof of signature be deemed to constitute conclusive evidence of the facts as to Crown ownership of which they purported to be a record.
These words are mirrored in Section 29 (7) (a) and (b):
7(a) the ownership in all lands, premises, and building, which were on the thirty-first day of December, 1922, held and occupied as Government property is hereby declared to be vested absolutely in His Majesty the King, free from all competing estates, incumbrances, titles, interests, lies, charges, and claims of the whatsoever nature and by whomsoever alleged to be held or claimed. (emphasis mine)
(b) The Chief Commissioner shall with all convenient dispatch cause to be prepared a schedule of all the said lands, premises, and buildings, together with proper plans thereof; and he shall cause the original of such schedule and plans duly certified under his hand and official seal to be deposited in his office, and a duplicate original of such schedule and plans similarly certified to be deposited in the office of the Surveyor-General, at Cantonments, Accra. Such original and duplicate original schedule and plans, and duly certified office copy of or extract from such schedule and plans, shall for all purposes and without proof of signature be deemed to constitute conclusive evidence of the facts as to Crown ownership of which they purport to be a record.
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 31st 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.
On the last page of the mother ordinance tendered as exhibit RA2, these words are found:
‘subsection (8) added by 6 of 1931, and amended by 4 of 1932 s.2’ This subsection 5(8) reads:
8. The Chief Commissioner may at any time by order under his hand and official seal rescind or vary any certificate or schedule issued under this section, and thereupon such certificate or schedule shall become void of effect or shall have effect as varied, as the case may be, and any land affected by such 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. Such order shall be deposited in the office of the Commissioner of the district in which such land is situated, and a certified copy thereof shall be deposited in the office of the Chief Commissioner, and shall also be transmitted for deposit to the office of the Commissioner of Lands at Accra. (Section added by N.T. 1 of 1923, s. 2; subsection (8) added by 6 of 1931, and amended by 4 of 1932, s.2.)
By the introduction of section 5(8), Cap 111 carried within it the provisions for varying and rescinding the vesting created by the same statute.
The simple exercise of reading Cap 111 and its amendments as a whole document satisfies us that though sections 5 and 29 seem to mirror each other, Section 29 of the 1923 amendment did not purport to amend section 5 of the mother statute of 1902. So Section 5 remained a part of Cap 111. The law makers of the statute took pains to cater for the variation and rescission of orders vesting lands in the crown in an amendment to Section 5 of Cap 111.
Moving from the statute to the exhibits, we also find that though the words on Exhibits LC and LC1 show that they took their life from the 1923 Amendment of Cap 111, the words on exhibit LC4 shows that that document took its life from Section 5 of Cap 111. This is the notice by the government agent of Tamale dated six months after the letter authorizing the military to use the 208.84 acres. The words of this notice are clear that they refer to ‘land appropriated for the public service for the development of a military area’.
After tendering this document from its records on the 1955 appropriation of the kaladan lands, Appellant counsel has tried in this appeal to reduce its value to this case by suggesting that it was not related to this case because it was issued six months after exhibit LC2. I think that is an effort that is extremely difficult to appreciate given who they are, and their duties and mandates in this country. Surely, if that communication was not related to the kaladan lands, then under what circumstances did they as the Lands Commission, bring it to court as part of the records on kaladan lands? And how many areas were appropriated in 1955 in the Tamale area as a military area? The posture of Appellant counsel in this submission is troubling.
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 31st 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 true. Exhibits LC2, LC3 and LC4 were acquisition instruments that appropriated the kaladan lands for the military. Exhibits LC2, LC3 and LC4 supported the taking or appropriation of the 208.84 acres of land for the military by the colonial government, as required by the language of sections 5 and 29 of Cap 111.
It is also my considered opinion that even if a larger tract of land from which the 208.84 acres were carved had been earlier vested in the crown by Section 29 (7) of Cap 111, the vesting of the larger land was not inconsistent with the Commissioner of Lands authorizing that a portion of it be occupied particularly by the military (as found on LC2). The issue of notices that this particular piece of land had been ‘appropriated for the Public Service for the development of a military area’ by the Government Agent in Tamale as was stated on exhibit LC4 was also not inconsistent with the prior vesting of all lands held and occupied by government properties in the crown.
We note from Cap 111 that under both section 5 and section 29, a detailed regime was set out for the taking of land for public services. Exhibits LC2, LC3 and LC4 show compliance with the due process of taking land for public services under Cap 111. They do not pretend to ground compulsory acquisition of land with no reversionary interests, and the trial judge was right when he used the expression that the land was ‘appropriated’ for the military on page 24 of the judgment. To the extent that exhibit LC2 was not an instrument for compulsory acquisition without an entitlement to vesting, but appropriation of the kaladan lands for the military under Section 5 of cap 111, Ground 4 of the appeal is dismissed.
The major complaint in ground 5 was that 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.
We do not understand the trial judge as relying on only exhibit P1D1 to conclude that the land in dispute was acquired for the military. He had the benefit of all the exhibits and he commented not only on exhibit P1D1 as convincing him that the kaladan lands were acquired for the military, but also on exhibits LC3 and LC4. It was the holding of the trial judge that the contents of exhibit P1D1 being a letter from the Minister of Defence were in law presumed facts against the appellants and the 2nd defendant which presumptions they failed to displace. What we also understand the trial judge as saying was that having been convinced that the kaladan land was acquired for the military, then when the military ceded possessory right to the land, it was the duty of the government to issue the disclaimer requested by the Minister of Defence in favor of the original owners. It is not the request in P1D1 that bound the minister to issue a disclaimer, but the operation of the law that allowed the appropriation of the land for the use of the military in 1955.
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 2nd 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