IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT ACCRA - A.D 2017
MATHIAS KOFI BOATENG - (Defendant/Respondent/Appellant)
ATTORNEY GENERAL, LANDS COMMISSION & OFFICE OF THE ADMINISTRATOR OF STOOL LANDS -(Defendant/Respondent/Appellant)
DATE: 8 TH NOVEMBER, 2017
CIVIL APPEAL NO: J1/28/2015
JUDGES: DOTSE, JSC PRESIDING YEBOAH, JSC BAFFOE-BONNIE, JSC GBADEGBE, JSC AKOTO-BAMFO (MRS), JSC BENIN, JSC AND PWAMANG, JSC
ABDUL BAASIT AZIZ BAMBA FOR THE PLAINTIFF
DOROTHY AFRIYIE ANSAH, CHIEF STATE ATTORNEY FOR THE 1ST AND 3RD DEFENDANTS
KWAME POKU-BOAH FOR THE 2ND DEFENDANT
BENIN, JSC: -
The facts as neatly set out by the 1st and 3rd defendants in their statement of case are as follows. By the State Lands (Barekese – Site for Dam and its Catchment Area) for Ghana Water Company Limited-Instrument 2001, EI 23, the Government of Ghana acquired 9,669.47 acres of land situate at Barekese in the Ashanti Region on behalf of the Ghana Water Company Ltd. The land covered about twelve stool lands. Subsequently, the 2nd defendant sought advice from the 1st defendant by a letter dated 1st April 2008 as to who was to be paid compensation from the compulsorily acquired land. That is whether the compensation payable should be made under article 267 into the Stool Lands Account or to be paid directly to the stools concerned. The 1st defendant, in a letter dated 11th April 2008 advised that article 267(2) of the 1992 Constitution did not apply to compensation for stool lands compulsorily acquired by the State. The reason that was given was that acquisition of land made under the State Lands Act, 1962 (Act 125) as amended, fell under article 20(2) of the Constitution, thus it was to be paid directly to the stools as owners of the stool land. It is this advice that the Plaintiff claims to be fundamentally at odds with the clear meaning of “revenue or other payments whether in the nature of income or capital from stool lands” as provided by article 267(2) of the 1992 Constitution.
Consequently, the Plaintiff has invoked the exclusive original jurisdiction of the Supreme Court pursuant to articles 2(1) and 130(1) of the 1992 Constitution, seeking the following reliefs:-
(i) A declaration that to the extent that section 19(1) of the Administration of Lands Act, 1962 (Act 123) empowers the Minister to direct or order the payment of moneys from stool land accounts to local authorities, the said section is inconsistent with Article 267 (6) of the 1992 Constitution and to the extent of the inconsistency, null and void.
(ii) A declaration that on a true and proper interpretation of Article 267(2) of the 1992 Constitution the expression “revenue or other payments whether in the nature of income or capital from stool lands” covers compensation payable by the Government of Ghana for the compulsory acquisition of property interests in stool lands.
(ii) A declaration that the payment of compensation for the compulsory acquisition of property interests in stool lands vested in stools directly to the affected stools instead of the Office of Administrator of Stool Lands to be disbursed in the manner prescribed by article 267(6) of the 1992 Constitution is unconstitutional, null and void.
(iv) An order of perpetual injunction restraining the Government of Ghana from paying compensation for stool lands (including the Barekese stool land acquired pursuant to Barekese- Site for Dam and its catchment area) for Ghana Water Company Limited-instrument, 2001 (EI 23), compulsorily acquired by the State since the coming into force of the 1992 Constitution to any person or entity other than the 3rd Defendant to be disbursed in the manner prescribed by article 267(6) of the 1992 Constitution.
(v) Any other consequential order(s) as this Honourable Court may deem fit.
The Plaintiff contended that the 1st Defendant’s interpretation of article 267(2) of the 1992 Constitution
in its advice to the 2nd defendant that article 267(2) of the Constitution did not apply to compensation for stool lands compulsorily acquired by the State and thus, such compensation must be paid directly to the Allodial owners/Stools instead of the Office of the Administrator of Stool lands, should not become the guiding principle for the payment of compensation to stool lands.
He also contended that a careful reading of article 267 of the 1992 Constitution reveals that the disbursement formula in clause 6 is intended to give effect to the notion of stool land as “ trust property”. In other words the stool lands are vested in “the appropriate stools for and on behalf of, or in trust for the subjects of the stool.” Thus any benefit derived or accruing from property interest in stool lands vested in the appropriate stool is not for the exclusive benefit of the Allodial owners/Stools but rather for a broader range of interest groups consisting of “chiefs, the traditional council, stool subjects and for the development of the area comprising the stool.”
Further, that article 267(6) of the 1992 Constitution seeks to balance all these competing interests by prescribing a mandatory formula for the disbursement of revenues from stool lands.
Next he posited that it would be absurd for rents and other periodic payments from the use and occupation of the stool lands to be subject to the disbursement formula in article 267(6) while compulsory acquisition of stool lands by the State which takes away forever the prospect of periodic or other payments for the use and occupation of stool lands, is not.
It was also his case that compensation payable by the State for compulsory acquisition of stool lands being “revenue or other payments whether in the nature of income or capital from stool lands” must be paid to the Office of the Administrator of Stool lands.
He opined that the legal position as stated above, to the effect that all revenues or incomes in respect of Stool lands must be paid into the Stool Lands Account is not new since it has been the law since 1962. Thus the 1969 Constitution per article 164(2) provided for the establishment of the Stool lands account into which shall be paid stool land revenue of which appropriate portions were allotted to the stool, traditional authority and local district authorities. Similarly under the 1979 Constitution, per article 190(2) all moneys or revenues from stool lands were to be paid into the appropriate stool lands account.
He reiterated the history of disbursement of stool revenues that at first they were collected and disbursed by the Minister in charge of lands, then by the Regional Councils, then the Lands Commission and finally the Administrator of Stool Lands to be disbursed in a manner canvassed under article 267(6) of the 1992 Constitution.
In his view the reason for the disbursement formula was to remedy the past problems and abuses associated with stool lands revenue by creating various institutional mechanisms to ensure that revenues from and compensation funds for, stool lands are fairly distributed to the stools, traditional authorities and district assemblies for developmental projects for the benefit of present and future generations unborn.
Consequently, the meaning of “revenue or other payments whether in the nature of income or capital from stool lands” in the context of article 267 cannot be limited by the meaning of “rents, dues or royalties”. The qualifier “whether in the nature of income or capital from stool lands means exactly what it means – any conceivable money arising from or in connection with stool lands of whatever description. In other words, the principles of “Ejusdem generis” and “Noscitur a Sociis” are totally irrelevant to the proper construction of article 267 of the 1992 Constitution.
The 1st and 3rd Defendants contended that the compensation payments by the State for compulsory acquisition of stool lands do not fall under “revenue or other payments whether in the nature of income or capital from stool lands” in article 267(2) of the Constitution and as such, should not be paid into the stool lands account but rather should be paid directly to the stools.
That the formula used in article 267 of the 1992 Constitution with respect to rents, dues, royalties, revenues or other payments in the nature of income or capital would mean other payments of periodic nature. A compensation payment under article 20 of the Constitution is a one off payment. It is not a periodic payment therefore it is not encompassed in article 267 according to the principles of “Ejusdem Generis” and “Noscitur a Sociis”
In their view, section 19 of Act 123 does not introduce new disbursement arrangements that are contrary to article 267(6) of the 1992 Constitution.
They submitted that there is a distinction between articles 20 and 267. Unlike rents, dues and royalties which do not completely deprive a person of ownership of his/her property, compensation is meant to be for person/s deprived of his/their property in most cases forever and therefore it is only fair to pay monies to them as stated under article 20(2).
In addition to these submissions made by the 1st and 3rd Defendants, the 2nd Defendant contended that following the revision made to Act 123, section 19(1) has been brought into conformity with the 1992 Constitution especially through the provision of a Footnote to section 19 in the revised Act 123 which states that all payments out of the Stool Land Account should be governed by clause 6 of article 267 of the 1992 Constitution.
The parties agreed on the following issues for determination by the Court:-
Whether or not sections 19(1), (2) and/or (3) of Act 123, to the extent that they give the Minister responsible for lands the power to determine any proportion of moneys to be paid from stool lands accounts to local authorities are inconsistent with article 267(6) of 1992 Constitution and are therefore null and void.
Whether or not the expression “revenue or other payments whether in the nature of income or capital from stool lands” in article 267(2) of the Constitution covers compensation payable by the State for the compulsory acquisition of stool lands.
CONSIDERATION BY THE COURT
Jurisdiction of the Court
The Plaintiff has invoked the original jurisdiction of the Court pursuant to articles 2(1) and 130(1) of the 1992 Constitution seeking the reliefs set out above. Before delving into the merits of the case, it becomes necessary to determine whether the Plaintiff has effectively invoked the interpretative jurisdiction of the Supreme Court.
Articles 2(1) and 130(1) of the 1992 Constitution state as follows
(1) A person who alleges that -
(a) An enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.
(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.
As stated above, the Plaintiff has come under articles 2(1) and 130 (1) of the 1992 Constitution. These provisions have been the subject of several decisions by the apex Court. In the case of Nartey v. Gati  SCGLR 745 at 751 the Court stated, per Date-Bah, JSC that:-
“The context within which this Court will exercise its original jurisdiction, whether by way of a reference or otherwise, was set out lucidly by Anin JA in the locus classicus in Republic v Special Tribunal; Ex parte Akosah  GLR 592 at p. 604 as follows (in relation to the 1979 Constitution):
‘From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118(1) (a) arises in any of the following eventualities:
(a) where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;
(b) where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;
(c) where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;
(d) where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.’ ”
This Court also stated in that case that no case for enforcement or interpretation arises where the language of the article of the Constitution is clear, precise and unambiguous.
The instant case raises a question of constitutional interpretation because the controversy between the Plaintiffs and Defendants centres on the rival positions taken by the parties on the issue of whether compensation for stool lands compulsorily acquired by the State must be paid to the Office of the Administrator of Stool Lands (called the Administrator) or rather to the Allodial/Stool owners. It also raises for the court’s consideration the constitutionality of section 19(1) of Act 123 in the light of article 267 of the Constitution. These questions bring up for the Court’s decision, the true meaning, purpose and application of article 267 of the 1992 Constitution. The Court’s exclusive original jurisdiction has therefore been properly invoked.
In the interpretation of the Constitution, this Court has stated in a number of cases that a broad and liberal approach should be used. These cases include Tuffuor v Attorney General  GLR 637. In the case of Sabbah (No. 2) v. The Republic (No. 2) (2015-2016) SCGLR 402, this Court stated per Wood CJ at page 422 that:-“Another cardinal rule of construction requires that the constitutional text under consideration must not only be broadly and liberally interpreted, but purposively construed as a whole, in the context of its own wording. Constitutional adjudication does not therefore admit of piecemeal and out–of-context mechanical interpretation of words in the written text.”
This principle was earlier reiterated and applied by this Court in the case of New Patriotic Party v Attorney General (31st December) [1993-94] 2 GLR 35 at 50 per Archer CJ.
The issue has been set out above. With regard to this issue, the plaintiff submitted that, pursuant to the provisions of the 1992 Constitution, all revenues or incomes in respect of Stool lands must be paid to the Office of the Administrator of Stool Lands. The Plaintiff’s reason is that from the wording of article 267(2) of the 1992 Constitution, all rents, moneys or other payments whether in the nature of income or capital arising from or in connection with stool lands are to be paid into the requisite stool lands accounts with the Office of the Administrator of Stool Lands to be disbursed in accordance with the prescribed formula under article 267(6). Consequently, to the extent that section 19 of the Administration of Lands Act confers power on the Minister of Lands to determine the proportion of moneys from stool lands account that should go to local authorities it is inconsistent with article 267 of the 1992 Constitution.
Conversely, the Defendants contend that the impression the plaintiff gives that a dual system of payment exists and/or that the Minister responsible for Lands determines the proportion of monies payable to the Stool lands account is erroneous. The defendants contend that there has been a revision of the material provisions of Act 123 to bring them in conformity with the Constitution following the review of the Laws of Ghana pursuant to Act 562. Consequently, the said section 19(1) was modified in the revised statute to cure the anomaly in Act 123 to the effect that the Minister’s power to determine amounts payable to the local authorities was subject to article 267(6) of the 1992 Constitution. The change was effected by the Laws of Ghana (Revised Edition) Act, 1998 (Act 562) which came into force on 5th February 1999. Prior to the revision of the laws of Ghana, the
Administration of Lands Act 1962 (Act 123) section 19(1) provided that:
“Out of the moneys standing to the credit of the Stool Lands Account there shall, subject to subsection (2) of this section be paid to the local authorities in whose areas the lands are situated from which those moneys are derived such amounts as the Minister may by order determine.”
The effect of this provision clearly, was to give the Minister the power to determine amounts payable to local authorities from stool lands accounts.
However, after the coming into force of Act 562, the provisions of Act 123 were brought in conformity with article 267 of the 1992 Constitution. Accordingly, section 19(1) was modified and it now reads:
“Out of the moneys standing to the credit of the Stool Lands Account, there shall, subject to subsection (2) be paid to the local authorities in whose areas the lands are situated from which these moneys are derived the amounts of money that the Minister may by order determine or as required to be paid under article 267 of the 1992 Constitution.” (Emphasis supplied)
Furthermore, Counsel for the 2nd Defendant submitted that “since the Footnote to the proviso of section 19 of Act 123 is considered as an aid to the construction of an enactment as provided in section 15 of the Interpretation Act, 2009 (Act 792), same restricts the powers given to the Minister by the provision under the Act and therefore section 19(1) read in the light of the footnote admits no ambiguity which warrants an interpretation.”
Section 15 of the Interpretation Act provides:
Titles placed at the head or beginning of a subdivision of an enactment and notes and references placed before the beginning of a provision are intended for convenience of reference only but may be used as an aid to construction of the enactment.
This provision has nothing to do with footnotes in an enactment even when read cursorily. The words used are unambiguous as they deal with headings and notes placed at the beginning of a provision. ‘Heading’, ‘head’, and ‘beginning’ cannot in any way be stretched to cover footnotes. We thus have to resort to the saving provision in section 3 of the said Act 792 which reads:
This Act shall not be construed as excluding the application to an enactment of a rule of interpretation or construction applicable to that enactment and not inconsistent with this Act.
This provision enables the court to apply any known and legally acceptable rule of construction which is relevant and applicable to the enactment that is being construed. However, a footnote is regarded as a mode of rendering part of an enactment, and thus constitutes an integral part of the enactment; it is not merely an aid to the construction of the enactment.
Bennion on Statutory Interpretation, 5th edition at page 750 expresses it in these words: “If material is put into the form of a footnote it is still fully a part of the Act, and must be construed accordingly.” See also the case of ERVEN WARNINK BV and Others v. J TOWNEND & SONS (HULL) LTD and Others (1982) 3 All ER 312 at 316.
Since it forms part of the revised section 19(1) of Act 123, the footnote is core to the understanding of the new provision. The footnote in question reads: “All payments made out of the Stool Lands Account is governed by clause (6) of article 267 of the 1992 Constitution”
Clause 6 of article 267 provides the disbursement formula of revenues in the Stool Lands Account including payment to District Assemblies, formerly local authorities.
From the combined effect of these provisions above, it is evident that with the coming into force of the 1992 Constitution specifically article 267, the distribution of revenue from the Stool Lands account is intended to be governed solely by the Office of the Administrator of Stool Lands and no other person as well as in accordance with the formula enshrined in clause 6 of article 267. Section 19(1), even after it has been modified, appears to permit the Minister or the Administrator to apportion funds to the local authorities. In this respect, section 19 of Act 123 which gives the Minister responsible for lands the power to determine any proportion of moneys to be paid from stool lands accounts to local authorities is inconsistent with article 267 (1), (2) and (6) of the 1992 Constitution. Consequently, to the extent of the inconsistency, that part of section 19(1) of Act 123 namely “the amounts of money that the Minister may by order determine or” is hereby declared to be unconstitutional. Indeed the various roles assigned to the Minister responsible for Lands to collect and disburse revenue from stool lands in sections 17, 18 and 19 of Act 123 are all inconsistent with article 267 of the Constitution, so all these provisions in Act 123 must be applied subject to article 267 of the Constitution.
This issue has also been set out above. Article 267 (2) (a) of the 1992 Constitution provides that:
“2. There shall be established the Office of the Administrator of Stool Lands which shall be responsible for –
(a) the establishment of a stool land account for each stool into which shall be paid all rents, dues, royalties, revenues or other payments whether in the nature of income or capital from the stool lands.”
As regards this issue, the Plaintiff contends that the general words “revenue or other payments whether in the nature of income or capital from stool lands” covers compensation payable by Government in respect of Stool lands compulsorily acquired. Plaintiff’s argument is premised on the fact that the addition of “whether in the nature of income or capital” modifying other payments makes it different from the class of specific items listed as “rents, dues, royalties, revenues.” The plaintiff’s arguments have already been set out in detail.
The defendants, on the other hand, argue that where in a statute or legal document, there are general words following particular or specific words, the general words must have their meaning restricted or confined to the meaning as conveyed by the specific words. This is referred to as the principles of Noscitur a Sociis and Ejusdem Generis. Thus, according to the defendants, the words “rents, dues, royalties, revenues” specifically create a genus of periodic payments which the general words ‘other payments whether in the nature of income or capital’ are restricted to. Consequently, the general words in article 267(2)(a) do not include compensation payable by Government in respect of Stool Lands compulsorily acquired by the State.
The defendants further claimed that, by virtue of article 267 the whole of the interest in the stool land is not extinguished, but the stool is entitled to compensation so called for compulsory acquisition which is governed by article 20 of the Constitution. Under Act 123 the State as grantee pays an annual amount (rent) for its occupation and use of the stool land and these rent payments are what are paid into the Stool Lands Account to be disbursed by the Administrator under article 267(6) of the Constitution.
The rule of construction Noscitur a Sociis simply means that a word is to be judged by the company it keeps. In other words, the meaning of a doubtful word may be ascertained by the meaning of the words associated with it. The doctrine of Noscitur a Sociis is only a broader version of the Ejusdem Generis rule.
The Ejusdem Generis rule is a rule of interpretation which is usually applied where general words follow specific words and such specific words successfully form a genus. Nevertheless, this rule will not apply in such situations where there is something to show that a wider sense was intended. Thus, Maxwell on Interpretation of Statutes (12th ed.) in explaining the operation of this rule of construction stated thus:
"In the abstract, general words, like all others, receive their full and natural meaning, and the courts will not impose on them limitations not called for by the sense or objects of the enactment ...But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words ... In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended ...”
Similarly, Justice G P Singh in his book, Principles of Statutory Interpretation 13th Edition, 2012, states at page 514 that the Ejusdem Generis rule usually applies only where “…there is no indication of a different legislative intent.” In effect this means that where it is shown that the legislator intended something different from the general words being construed in the same way as the specific words, the Ejusdem Generis rule would not apply.
Another aspect of this principle is stated by Justice G P Singh in his book, referred to supra, at page 516 that “in cases where particular words can belong to a broad based genus it is not open to confine them to a narrower genus so as to limit the meaning of the general words.”
Whilst the plaintiff was of the view that these rules of construction do not apply, the defendants strongly believed that they do. In applying these principles to the instant case, rents, dues, royalties and revenues which are specifically mentioned under article 267(2) of the 1992 Constitution are capable of forming the narrower genus of ‘periodic payments’ as espoused by the defendants. However the expression “other payments whether in the nature of income or capital” is also capable of forming a broader genus consisting of general payments, whether periodic or lump sums, which are obtained from using or dealing with stool land, which construction suits the plaintiff’s case.
Much as we treat with respect these arguments in respect of which appropriate rule/s of construction to apply, we bear in mind that the Constitution is not an ordinary statute, so we need to interpret it purposively in order to come out with a clear decision reflecting the objects and purposes of the provisions being interpreted. Rules of construction may be helpful in a limited number of cases just to supplement the interpretation but counsel and the court cannot place total reliance on such rules of construction which does not achieve the purpose of the enactment. Therefore what is relevant in such a constitutional interpretation is the view that where the object or purpose of the provisions may be ascertained from the words employed in the Constitution itself or other relevant reference materials like the Constitutional Proposals, these rules of construction will not apply. Thus they are servants not masters and should thus not play a lead role in the subject of interpretation.
It is desirable to approach this issue by first paying regard to the antecedent legislations which have relevance to the provisions of the Constitution under consideration, bearing in mind that the lawmaker is presumed to know the state of the existing law. Next we shall endeavor to find out the intent of the framers of the Constitution as far as it may be ascertained from the provisions of the Constitution. There are current statutes that regulate land acquisition by the State and management of stool lands, as the case may be. These existing statutes are the Administration of Lands Act, 1962 (Act and the State Lands Act, 1962, (Act 125) both of which have undergone some amendments. The scope of these two statutes was discussed at lengt h in the case of OWUSU and Others v. AGYEI and Others (1980) GLR 1 by the High Court presided over by Roger Korsah J. That case travelled all the way to the Supreme Court, reported in (1991) 2 GLR 493, which therefore had the opportunity to explain the scope and application of the two enactments. In affirming the High Court's decision it held that compulsory acquisition of stool land by an instrument could only be done under section 1(1) of Act 125 which provides that:
Where it appears to the President in the public interest so to do, the President may, by executive instrument, declare the land specified in the instrument, other than land subject to the Administration of Lands Act, 1962 (Act123), as land required in the public interest.
Consequently it held that the modalities provided under Act 123 do not apply to such an acquisition.
Osei-Hwere JSC put it this way at page 511:
"......the Court of Appeal....was in error when it held that Act 123 was the operative statute for the compulsory acquisition of stool land......The provision in NLCD 234......that 'the Administration of
Lands Act, 1962 shall not apply to any such land....' seems clearly to mean that the regimen of the administration contemplated under Act 123 (such as sections 7, 17, 21, 22 and 23 which the Court of Appeal thought were relevant) cannot be called into service in respect of such stool lands compulsorily acquired under section 1(1) of Act 125."
The amendment contained in NLCD 234 namely State Lands Act, 1962, (Amendment) Decree, 1968 has been re-enacted as section 1(3) of Act 125. It reads:
Where the President is satisfied that special circumstances make it expedient that a particular land which is subject to the Administration of Land Act, 1962 (Act 123) should be declared under subsection (1) as land required in the public interest, the President may, by executive instrument, declare that land as land required in the public interest, and the Administration of Lands Act, 1962 shall not apply to the land in respect of which an executive instrument is made in accordance with this subsection.
This provision completely excludes the application of the provisions of Act 123 from compulsory acquisition that is carried out under Act 125.
Thus it is clear that Act 123 deals with acquisition of stool land by the State for its ordinary operation, in the form of leases, grants, rentals and what have you, described in section 10(1) of Act 123 as land acquired for "occupation and use." The Act says that payments due under such acquisition and other dealings with stool land that generate revenue, being distinct from compensation for compulsory acquisition, should be paid into a stool lands account under the Minister of Lands, but now under the Administrator by virtue of Article 267 of the Constitution 1992, as well as under section 19(1) of Act 123, as amended.
On the other hand, Act 125 applies where the State compulsorily acquired land including stool land. Here the statute makes provision for payment of compensation to be made directly to the person or entity whose land has been compulsorily acquired. See section 4(1) and (2) thereof. The two different modes of who receives the payment is a distinctive feature of the two enactments.
Before the promulgation of Act 125, compulsory acquisition of stool land had been regulated by the Public Lands Ordinance of 1876, re-enacted as Public Lands Ordinance, Cap. 134 (1951) Rev. This was replaced by the State Property and Contracts Act, 1960 (C.A. 6). It is noteworthy that the State Property and Contracts Act was in force when Act 123 was legislated but the latter did not repeal the former. It was Act 125 which repealed the State Property and Contracts Act, C.A. 6 and brought its salient provisions within its fold, namely the State's right to engage in compulsory acquisition and the mode of paying compensation and who the recipient should be.
It therefore becomes apparent, that the law has always recognized and indeed maintained two distinct modes of acquiring stool land, one under Act 123 and the other under Act 125. In the OWUSU v. AGYEI case, supra, the court made it clear that compensation was entirely distinguishable from revenue. The Supreme Court upheld the High Court's judgment and restored same after the Court of Appeal had set it aside. Where a particular word in an enactment has received construction by a court of competent jurisdiction, that construction should be applied to a later legislation with the same or similar objects, in which the same word or expression is employed. The reason being that, unless the lawmaker intended something to the contrary in the subsequent legislation, he must be deemed to have intended the word or expression to have the same meaning as in the old law as construed by the court.
We should not lose sight of the employment of expressions like “rents” "revenue" etc in Act 123 which have been repeated in article 267(2) of the Constitution; and the use of the word or expression “compensation” in Act 125 which is repeated in article 20(2) of the Constitution. The choice of these words was no sheer coincidence but deliberate in order to maintain the status quo whereby a clear distinction had all along been maintained between lands compulsorily acquired and lands acquired by other means including leaseholds, each of which attracted a different mode and procedure for payment and also the recipient of such payment was also different, clearly signifying that the two are not the same and were not intended to be the same.
The expression “any other payments, whether in the nature of income or capital” is not a novelty introduced by the 1992 Constitution. It is significant to note that the provision in article 267(2) is almost a verbatim reproduction of section 17(2) of Act 123. The latter provision reads:
Revenue for the purposes of this Act includes the rents, dues, fees, royalties, revenues, levies, tributes and any other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act.
This throws light on what interpretation to place on article 267(2) of the Constitution that the entire expressions or words used are intended to mean revenue accruing from dealings with stool lands, other than those acquired compulsorily under Act 125 and article 20(2) of the Constitution. Article 267(6) buttresses this view; it prescribes the formula for disbursing "revenue accruing from stool lands." It uses only ‘revenue’ and leaves out the other expressions like royalties, fees etc used in clause 2 of article 267 but it is my view that reading article 267 as a whole the expression "the revenue accruing from stool lands" employed in clause 6 is intended to encompass all the various forms of receipts mentioned in clause 2. Thus the use of the expression "revenue" in section 17(2) of Act 123 has the same meaning as in article 267(6) of the Constitution. And before the coming into force of the 1992 Constitution, payments under section 17(2) of Act 123 did not include compensation payable under Act 125. Therefore section 17(2) of Act 123 having been re-enacted as Article 267 of the Constitution, unless express and unambiguous words exist to the contrary, it is clear the intention was for the constitutional provision to embrace the same payments as were made under section 17(2) of Act 123, and this excluded compensation under Act 125.
There is yet another reason for this clear distinction and it is the fact that under Act 123 the Minister of Lands had a role to play in such land management, a role which has been expanded and entrusted to the Administrator to manage and collect revenue from stool lands and disburse same in accordance with the formula set out in article 267(6) of the Constitution. As Osei-Hwere JSC observed in the OWUSU v. ADJEI case, supra at 511 "The view that section 17 of Act 123 is inapplicable by reason of the compulsory acquisition of stool land under section 1(1) of Act 125 commends itself to practical reality because if the substratum or foundation (i.e. the stool land) is gone then there is nothing to be administered."
The Administrator is responsible to administer stool lands which have not been compulsorily acquired by the State. And it is in respect of such lands which he administers that the rents, royalties etc mentioned in clause 2 of article 267 could be collected and disbursed by him as revenue under clause 6. Act 125 and article 20 of the Constitution make provision for the payment of compensation to the land owners and persons with interest in land compulsorily acquired under those legislations. And as was stated by this court in the case of OMABOE III v. ATTORNEY-GENERAL & LANDS COMMISSION (2005-2006) SCGLR 579 lands compulsorily acquired formed part of public lands under the administration of the Lands Commission under article 258(1) of the Constitution. It sounds reasonable and logical that since the Administrator does not administer lands compulsorily acquired by the State, payments accruing from such lands fall outside the remit of his authority, which is to collect and disburse revenue accruing from only stool lands which are under his administration.
Consequently, these sets of legislations namely Act 123 and article 267 of the Constitution on one side, and Act 125 and article 20 of the Constitution on the other side, must be given effect to simultaneously and either must not be subsumed under the other; they can co-exist harmoniously and must thus be allowed to operate independently of each other under the principle of harmonious interpretation as the legislators intended them to be.
This clear distinction between compulsory acquisition and others should be observed because of the policy of the law, duly recognized in article 20 of the Constitution as a human rights issue, that whoever is deprived of his land through compulsory acquisition should be adequately compensated, the applicable principle being one of equivalent re-instatement.
One other factor to consider is that if we are to accede to the plaintiff’s argument, it would mean that we have to add the word or expression ‘compensation’ to the list set out in clause 2 of article 267. This is so because except that is the case, none of the expressions in article 267(2) could be described as compensation. And to do so would be legislating by amending this portion of the Constitution, something which is beyond the court’s power which is to interpret and enforce the Constitution, and not to legislate. This court has had cause to caution on the insertion of words into a constitutional provision as that would amount to straying into the realm of legislation. See the dictum of Acquah JSC (as he then was) in the review application in the case of ATTORNEY-GENERAL (No. 2) v. TSATSU TSIKATA (No. 2) (2001-2002) SCGLR 620 at 639 which was cited with approval in the case of REPUBLIC v. HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (RICHARD ANANE INTERESTED PARTY) (2007-2008) SCGLR 213 per Wood CJ at 243.
Thus from the totality of article 267, the Administrator replaced the Minister in performing the functions set out in Act 123, and whatever receipts were coming in under Act 123 were described as revenue, a description which has been retained in clause 6 of article 267 of the Constitution. The use of the expression "revenue" in article 267(6) to represent all the various receipts mentioned in clause 2 of this article manifests a clear intent to invoke the rule noscitur a sociis and its partner ejusdem generis. And what is provided for under article 20 and Act 125 is compensation which becomes payable following compulsory acquisition, and the payment is made to land owners and persons interested in the land. And most significantly lands compulsorily acquired are administered by the Lands Commission and not the Administrator. Thus these modes of acquisition, administration, payments and institutional or regulatory arrangement/framework run parallel and are not intended or meant to be fused.
What was the intent of the framers of the Constitution?
We have made references in the foregoing discussions to relevant points which make the legislative intent manifestly clear and certain. We shallll proceed to address article 20 of the Constitution that deals specifically with matters pertaining to compulsory acquisition of land, including stool land. The fact that there is no explicit provision in the 1992 Constitution as to who should receive compensation from stool land compulsorily acquired by the State must be due to the fact that it has never been in doubt that the stool that holds the inalienable title to stool land has always been the recipient of such compensation payment. The provisions in article 20 clauses 2 and 6 inherently recognize the existing state of affairs, bearing in mind the concept of land ownership in the country. These provisions equally throw light on the intent of the framers of the Constitution as to who should be paid such compensation. These provisions read:
20(2) Compulsory acquisition of property by the State shall only be made under a law which makes provision for –
(a) the prompt payment of fair and adequate compensation; and
(b) a right of access to the High Court by any person who has an interest in or right over the property whether direct or on appeal from any other authority, for the determination of his interest or right and the amount of compensation to which he is entitled.
20(6) Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of property immediately before the compulsory acquisition, shall be given the first option for acquiring the property and shall, on such re-acquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurate with the value of the property at the time of the re-acquisition. (emphasis supplied)
The provision in clause 2, supra, enables any person with interest in land compulsorily acquired to pursue his claim for compensation at the High Court. Surely neither the Administrator nor the District Assembly can pursue such claim because they have no direct interest in or legitimate claim over stool land. It is unreasonable to envisage that the stool would expend money to pursue such claim in court only for the benefit to be paid to another person.
Clause 6, supra, is even more relevant to the ongoing discussion. This provision entitles only the owner of the land to the reversionary interest unless he declines same. And he is required to refund the entire amount of compensation that has been paid to him, which I understand to mean in cases where no part of the land has been utilized. On the other hand he has to make a part refund, which I understand to mean payment for the part of the land un-utilized. The refund should be done in accordance with the law, which in this context means the law enacted for the purpose of the compulsory acquisition under clause 2 of article 20, supra, or any other relevant law. The only irresistible inference that may be drawn from this provision is that it was intended that the compensation should be paid to the land owners.
This provision clearly underscores the existing law and time-honoured practice whereby such compensation has always been paid to the stool and any person with real interest in the land. It is only logical that the person who has been paid the amount of compensation should be the one to refund it in the event of a reversion. The framers of the Constitution would not have asked the owner of the land to refund the compensation if their intention was that compensation should, in the first place, be paid to the Administrator. It would indeed be absurd and palpably capricious for them to have intended such a result; such absurdity and capriciousness should not be attributed to the framers of the constitution. Their intention is clearly deducible from clause 6, supra, that the owner of the land should be paid the compensation so that in the event of a reversion he would be in a position to refund same.
Elsewhere, the courts have been guided by and have applied the well-known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms. See these cases: COLONIAL SUGAR REFINING COMPANY, LIMITED V. MELBOURNE HARBOUR TRUST COMMISSIONERS (1927) A.C. 343 PC; WESTMINSTER BANK LTD. V. MINISTER OF HOUSING AND LOCAL GOVERNEMENT; (1971) A.C. 508 H.L. Even though these cases cited were decided upon some Acts of Parliament, the principle is sound, save that it may be applied subject to article 20 of the Constitution which completely eliminates compulsory acquisition without payment of compensation. In the Colonial Sugar Refining case, supra, the Privy Council held the view, which we agree with, that it was desirable to apply a more reasonable construction, and one which would not have the effect of destroying private rights already acquired. If it was intended that compensation should be paid to the Administrator, the law would have said so expressly and unambiguously, since the owner of the land is being deprived of that benefit. We cannot infer that from article 267(2) of the Constitution. And as was suggested by Lord Reid in the Westminster case, supra, if the law does not expressly say the subject should not be paid compensation thereby raising some reasonable doubt in the mind of the court, the law should be construed for his benefit. It has not become necessary for us to go that far, as Lord Reid suggested, because as pointed out earlier, the only irresistible inference to be drawn from clause 6 of article 20, supported by provisions of Act 125 is that compensation is intended to be paid to landowners and/or persons with real or direct interest in the land.
For the foregoing reasons we hold that the expression "or other payments whether in the nature of income or capital" in article 267(2) does not encompass compensation payable in respect of land compulsorily acquired under Section 1(1) of Act 125 and/or article 20 of the Constitution.
Consequently, Relief (i) is partly granted in these terms: to the extent that the Minister responsible for lands is reserved a role to play in the disbursement of stool lands revenue to local authorities, section 19(1) of Act 123 is inconsistent with article 267(2) and (6) of the Constitution and to that extent is declared unconstitutional and is accordingly struck down.
For reasons advanced above, Reliefs (ii), (iii) and (iv) are denied.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
(JUSTICE OF THE SUPREME COURT)
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
My respected brother, Benin JSC has just delivered a brilliant judgment which represents the views of the majority of the court in this case. I had the benefit of reading it beforehand and have given serious thought to the reasoning in it but tried as I did, I could not bring myself to come to terms with it so I decided to take a lone path. The following is how I see this case.
By a writ filed in this court on 15th July, 2015, the plaintiff in his capacity as a citizen of Ghana claimed against the defendants for the following reliefs;
1. A declaration that to the extent that Section 19(1) of the Administration of Lands Act, 1962 empowers the Minister to direct or order the payment of moneys from stool land accounts to local authorities the said section is inconsistent with Article 267(6) of the 1992 Constitution and to the extent of the inconsistency, null and void;
2. A declaration that on a true and proper interpretation of Article 267(2) of the 1992 Constitution the expression "revenue or other payments whether in the nature of income or capital from stool lands" covers compensation payable by the Government of Ghana for the compulsory acquisition of property interests in stool lands vested in stool lands (sic);
3. A declaration that the payment of compensation for the compulsory acquisition of property interest in stool lands vested in stools directly to the affected stools instead of the office of Administrator of Stool Lands to be disbursed in the manner prescribed by Article 267(6) of the 1992 Constitution is unconstitutional, null and void;
4. An order of perpetual injunction restraining the Government of Ghana from paying compensation for stool lands (including the Berekese stool land acquired pursuant to Barekese-Site for Dam and its catchment area) for Ghana Water Company Limited-Instrument 2001 (EI 23), compulsorily acquired by the State since the coming into force of the 1992 Constitution to any person or entity other than the 3rd defendant to be disbursed in the manner prescribed by Article 267(6) of the 1992 Constitution.
5. Any other consequential orders as this Honourable Court may deem fit.
The facts of this case are quite simple. In 2001 the Government of Ghana, by compulsory acquisition pursuant to the provisions of the State Lands Act, 1962 (Act 125), acquired a tract of land in Ashanti Region for the Barekese Dam and for a catchment area of the dam. After ascertaining the allodial owners to be some twelve stools, the Land Valuation Board calculated the compensation payable and informed the stools concerned that the money would be paid to the Office of Administrator of Stool Lands (OASL) in accordance with Article 267 of the 1992 Constitution. The stools through their lawyer strongly objected to payment of the compensation to the OASL contending that it was only where lands were occupied pursuant to the Administration of Lands Act, 1962 (Act 123) that revenue accruing thereto would be payable to the OASL. His position was that where stool lands are acquired under Act 125 the compensation was payable direct to the stools concerned. The Land Valuation Board in April 2008 wrote to the 1st defendant to advise them as to the correct position of the law having regard to the arguments of the lawyer for the claimant stools in the Barekese Dam acquisition as against the constitutional provisions. The 1st defendant in its advise concurred with the position taken by the claimants lawyer that Article 267 did not apply to compensation for compulsory acquisition of stool lands. From the processes filed in this case it is evident that the compensation was subsequently paid directly to the claimants in the Barekese acquisition but the plaintiff contends that the advice rendered in relation to the Barekese Dam acquisition has been adopted by the 2nd defendant for payment of compensations for stool lands compulsorily acquired, which according to him, is unconstitutional.
Though the OASL was made a party to this case it did not file a separate statement of case but contended itself with the 1st defendant's answer in their joint statement of case which was a confirmation of its earlier advise. The 2nd defendant, who now has the Land Valuation Board under it as a division called Land Valuation Division, has abandoned its earlier stands that the money ought to be paid to the OASL and has made strong submissions in support of the legal advice of the 1st defendant. Be that as it may, the suit calls on us to give an authoritative interpretation of the relevant constitutional provisions since it is this court which has exclusive jurisdiction in the matter notwithstanding the opinion any other authority or person may hold.
The parties filed a joint memorandum of issues and set down only two issues for determination and these were adopted by the court. They are as follows;
Whether or not section 19(1), (2) and/or (3) of the Administration of Lands Act, 1962 (Act. 123) to the extent that it gives the Minister responsible for lands the power to determine any proportion of moneys to be paid from stool lands accounts to local authorities is inconsistent with article 267(6) of the 1992 Constitution and is therefore null and void;
Whether or not the expression “revenue or other payments whether in the nature of income or capital from stool lands” in article 267(2) of the Constitution covers compensation payable by the state for the compulsory acquisition of stool lands.
The 2nd defendant proposed a third issue which referred to the side note to Section 19(1) of Act 123 but it has been effectively covered under issue 1. More importantly, upon reading the statements of case of the defendants it is clear that they agree with plaintiff on that issue, the only difference being whether it ought to be struck down or it is sufficient if it is applied with the necessary amendment occasioned by Article 267(6) of the Constitution. I shall deal with that at the concluding part of this opinion but let me tackle the main issue which is issue 2. Article 267 of the 1992 Constitution has provided as follow;
"Stool and Skin Lands and Property
(1) All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage.
(2) There shall be established the Office of the Administrator of Stool Lands which shall be responsible for -
(a) the establishment of a stool land account for each stool into which shall be paid all rents, dues, royalties, revenues or other payments whether in the nature of income or capital from the stool lands;
(b) the collection of all such rents, dues, royalties, revenues or other payments whether in the nature of income or capital, and to account for them to the beneficiaries specified in clause (6) of this article; and
(c) the disbursement of such revenues as may be determined in accordance with clause (6) of this article.
(3) There shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned.
(4) Where the Regional Lands Commission fails or refuses to give the consent and concurrence under clause (3) of this article, a person aggrieved by the failure or refusal may appeal to the High Court.
(5) Subject to the provisions of this Constitution, no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest howsoever described.
(6) Ten percent of the revenue accruing from stool lands shall be paid to the office of the Administrator of Stool Lands to cover administrative expenses; and the remaining revenue shall be disbursed in the following proportions-
(a) twenty-five percent to the stool through the traditional authority for the maintenance of the stool in keeping with its status;
(b) twenty percent to the traditional authority; and
(c) fifty-five percent to the District Assembly, within the area of authority of which the stool lands are situated.
(7) The Administrator of Stool Lands and the Regional Lands Commission shall consult with the stools and other traditional authorities in all matters relating to the administration and development of stool land and shall make available to them all relevant information and data.
The Lands Commission and the Administrator of Stool lands shall coordinate with all relevant public agencies and traditional authorities and stools in preparing a policy framework of the rational and productive development and management of stool lands.
(9) Parliament may provide for the establishment of Regional branches of the office of the Administrator of Stool Lands to perform, subject to the directions of the Administrator of Stool Lands, the functions of the Administrator in the region concerned."
ARGUMENTS OF THE PARTIES
The plaintiff in his statement of case has argued that Article 267(2) is encompassing and includes compensation payable for the compulsory acquisition of stool lands. He referred the court to the case of Pool v Guardian Investment Trust Co Ltd (1921) TC 167 which relied on the United States Supreme Court case of Eisner v Macomber (1919) 252 US 189 where the relationship between income and capital was described as being the same as that between a tree and its fruits. The fruits being the income and the tree the capital. To him the provision was stated to include both income payments and capital payments meaning that periodic payments as well as payments for the land itself were intended to be covered under the mandate of the OASL. He said the provision should be given a purposive interpretation by the court and to him the purpose of the provision is to give effect to the status of stool lands as trust property held in trust for the subjects of the stool. He said applying the provision to cover compensation for compulsory acquisition of stool lands would ensure that the funds are fairly distributed to the stool occupant, the traditional authorities and the local administration which is to carry out development projects to benefit future generations of the community.
The defendants in their statements of case are contesting the case on two alternative grounds. On the one hand they contend that upon a proper interpretation of Article 267(2) of the Constitution, compensation for compulsory acquisition of stool lands is not among the payments contemplated by the provision. They submitted that Article 267(2) was intended by the framers of the Constitution to cover only periodic payments in relation to stool lands and that compensation which is a one off bulk payment was not to be covered. They referred to the periodic payments arising in relation to land in the form of rents, dues and royalties specifically mentioned in the provision as indicative of the type of payments contemplated. They relied on the maxims ejusdem generis and noscitur a sociis.
On the other hand, the defendants argued that article 267(2) is not even applicable to payments due upon the compulsory acquisition of stool land. In their view compensation for compulsory acquisition arises out of the exercise by the state of its power of eminent domain which is provided for at Article 20 of the Constitution so it is that article and not Article 267(2) that ought to apply to payments in respect of such acquisition. For them an application of Article 20 of the Constitution would result in the payment of compensation direct to the stool. They were of the view that Article 267(2) applies only to land taken under Act 123 and is inapplicable to land acquired pursuant to Act 125 as we have in this case. They relied to a large extent on the Supreme Court case of Owusu & Ors v Agyei & Ors  2 GLR 493. They submitted that if compensation is shared out as provided for in Article 267(6) of the Constitution then in the event that the land is to be given back to the original owner in return for the compensation paid as provided at Article 20(6), it would be impracticable to refund the compensation. For them it is when we adopt an interpretation that excludes compensation from the sharing formula provided for at Article 267(6) that Article 20(6) of the Constitution would be made functional.
Plaintiff, in reaction to the contentions of the defendants rejected defendants' argument that Article 267(2) by mentioning payments which are periodic in nature intended to limit the provision to periodic payment only and compensation for compulsory acquisition is not included. He maintained that the provision is clearly in reference to both periodic and bulk sum payments. He said the principles of ejusdem generis and noscitur a sociis are inapplicable in the case of the provisions we are dealing with here. He further dismissed the argument that Article 267(2) is only applicable to compensation payable for use and occupation of stool land under Act 123 and contended that it applies to compensation for stool lands acquired under Act125 as well. Plaintiff disputed the claim that if compensation is shared out to the OASL and the District Assembly Article 20(6) will be incapable of effective implementation. He said Article 20(6) made provision for payment of part only of the original compensation.
ANALYSIS OF ARGUMENTS
The primary issue of whether upon a true and proper interpretation of Article 267(2) of the 1992 Constitution, compensation payments for compulsory acquisition of stool lands is covered by the provision or not, calls for an interpretation of the provision to determine its scope. In construing a constitutional provision, and same applies to other enactments, the objective of the court is always to discover the intention of the framers of the Constitution. In Tuffour v Attorney-General  GLR 637 Sowah JSC (as he then was) at page 659-660 of the report gave the following guidelines to be followed by a court in discovering the intention of the framers of the Constitution;
"We start by reminding ourselves of the major aids to interpretation bearing in mind the goals the Constitution intends to achieve. Our duty is to take the words as they stand and give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context."
In the case at hand, when we start from the language used in the Constitution and giving the words their plain and natural grammatical meaning it becomes clear from the text of article 267(2) that the framers of the Constitution coughed it in as wide a language as was possible and I am in no doubt that the intention was to rope in all forms of payments that may be made in respect of stool land. After listing various forms of payment for land they added "... or other payments whether in the nature of income or capital". This to me was to signify the expanded breadth they intended the provision to have. If the framers had intended to refer to only periodic payments as defendants contend, they would have stopped the provision at "or other payments," period. To have gone beyond that to indicate the character and nature of the other payments can only mean that they are additional to what has been specifically mentioned. Payments for land in the nature of capital are substantially different from the other payments mentioned in Article 267(2) and prior to the constitutional provision, Act 123 provided for a different management scheme for such payments at Section 23 thereof in the following words;
"Section 23—Capital Payments.
Any part of the moneys received by the Minister under this Act which, in his opinion, is of a capital nature shall not be applied under this Part of this Act except to defray expenditure which is designated by the Minister in a scheme under this Part of this Act as being of a capital nature, and in case there is no such expenditure or in any other case the money may be invested in such manner as the Minister responsible for finance may direct."
Though Act 123 does not explain "payments of a capital nature" in respect of land, payments for land in the nature of capital is a technical term in matters of land valuation. It is a well known principle of interpretation that when technical words are used in an enactment they should be given their technical meaning. In fact, at paragraph 44 of the statement of case of the 2nd defendant filed on 1/3/2017 it conceded that compensation payments for land compulsorily acquired are in the nature of capital payments except that it tries to make a distinction between payments that are tax exempt and those not, a totally irrelevant analysis for our purposes here. This is what it stated;
"44. It may be noticed that compensation payments fall within an entirely different genus, unlike the specific payments mentioned in article 267 all of which are taxable incomes or revenues. Even though compensation payments are in the nature of capital payments (properly so called) they do not confer a benefit on the recipient but instead seek to place him in the position that he was before the compulsory acquisition."
Capital value of land has been defined in the Land Valuation Act of South Australia, 1971 at section 5 (the interpretation section of the Act) as; "amount a fie simple in the land is reasonably expected to realise upon sale." The 1st and 3rd defendants in their joint statement of case adopted the definition of compensation in Black’s Law Dictionary which stated that compensation is the property's fair market value where it is taken under the eminent domain by the government. When land is compulsorily acquired and the title of the allodial owner is taken away, the compensation is the open market value of the land upon sale and that payment is definitely of a capital nature as admitted by 2nd defendant.
The defendants in urging the court to hold that compensation is not covered under Article 267(2) enlisted the assistance of two under aids to the interpretation of statutes namely; ejusdem generis and noscitur a sociis. These aids are presumptions used to guide courts in efforts at discovering the intention of the maker of an enactment where general and imprecise words are used in a manner that leaves the intention of the maker of the enactment unclear. As I said earlier, if the provision had stopped at “other payments” after the mention of rents, dues and royalties, then probably these presumptions could have been resorted to in the absence of other guides but that is not the case here.
In his book, "The Law of Interpretation in Ghana, 1st Ed (1995), Dr S.Y. Bimpong-Buta stated as follows at page 111;
"It must be stressed that the rule (ejusdem generis) is not to be applied merely because a provision in a statute or document has a general word or words following particular words. If there are sufficient grounds to show that the general words have not been used as limited by the class of things falling within the class of specific words, if an overall view of the scope of the Act shows that the general words are to be construed generally, the court must construe them even if they follow specific expressions."
In the instant case, the controlling words are; "....other payments…in the nature of...capital" in respect of stool lands. The makers of the enactment here have made their intention clear that other payments are not to be limited by the preceding specific words so the services of the presumptions in the two maxims are not called for.
This court in the case of Ghana Lotto Operators v NLA [2007-2008] SCGLR 1088 upheld and applied article 34(1) of the Constitution which provides that the Directive Principles of State Policy shall guide the judiciary in the interpretation of the Constitution. Article 36(8) is part of the Directive Principles of state policy in the Constitution and provides as follows;
"The State shall recognise that ownership and possession of land carry a social obligation to serve the larger community and, in particular, the State shall recognise that the managers of public, stool, skin and family lands are fiduciaries charged with the obligation to discharge their functions for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned and are accountable as fiduciaries in this regard."
Consequently, if we take account of the above provision, it leads us to the irresistible conclusion that the purpose for which the framers of the constitution included article 267(2) and (6) in the Constitution was to enable effect to be given to the policy of the Constitution expressed in Article 36(8) reproduced above.
Notwithstanding the fact that the Constitution in express words has combined periodic payments and capital payments together in Article 267(2)(b), the defendants argued strenuously that since there is a distinction between acquisition of stool lands under Act 123 and Act 125, Article 267(2)(b) has to be confined to payments for acquisitions under Act 123 only. Nothing has been pointed out in the Constitution as limiting Article 267(2) but they say it ought to be so. They claim such was the decision of the Supreme Court in the case of Owusu & Ors v Agyei & Ors  2 GLR 493. In that case the chief of Kumawu in the Ashanti Region conspired with others to claim compensation for Kumawu stool land that the Government of Ghana acquired in 1971 for a forest reserve. The compensation collected was not paid into the stool land account but was pocketed by the chief and his co-conspirators. Some subjects of Kumawu, claiming to represent the Oman of Kumawu, brought an action in the High Court praying the court to order the defendants to refund the compensation for the benefit of the Oman of Kumawu. E.D. Kom Esq, who was counsel for the chief of Kumawu, argued among other grounds that by virtue of section 17 of Act 123 it was only the Minister for Lands alone who by law could bring an action to recover the compensation paid in respect of the Kumawu stool land compulsorily acquired since it was stool land revenue as defined in the Section and prayed the court to dismiss the plaintiffs' case for want of capacity. He cited a number of cases in which private actions to recover stool land revenue were dismissed for want of standing on account of section 17 of Act 123.
The section provided as follows; "Section 17—Collection of Revenue.
(1) All revenue from lands subject to this Act shall be collected by the Minister and for that purpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of any power of delegation conferred by this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy.
(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act" (Stool lands)."
(Though the wording of section 17 (1) of Act 123 bears close resemblance to Article 267(2) (b) there is a significant difference that ought to be noted.)
Roger Korsah J who decided the Owusu v Agyei case in the High Court reviewed the authorities cited by E. D. Kom Esq and observed that the facts in those cases were not complicated by evidence of fraud in the collection of stool revenue as in the case before him. So he set out to wriggle his way pass the statutory hurdle in order to determine the case on its merits. He said section 17 of Act 123 has to be given a restricted interpretation because if the court held that it was only the Minister that could sue to recover stool revenue as the section clearly stated, then when there are conflicting claims for compensation by several stools, on behalf of which of them would the Minister sue to recover the compensation. He then held that since section 4 of Act 125 under which compensation for compulsory acquisition of stool lands was payable provided a procedure for claiming compensation by a person who claims an interest in acquired land without specifically excluding a stool, compensation under Act 125, though it is payment of a capital nature for stool land, must be deemed excluded from revenue as defined in section 17 of Act 123. He applied the doctrine of implied repeal of an earlier enactment by a later one and concluded that Act 125 being later that Act 123 by implication excluded compensation for stool land acquired under it from section 17 of Act 123.
Now before proceeding further, I like to point out that the issue that was raised by E. D. Kom Esq in the High Court had to do more with the part of section 17 of Act 123 that made the Minister the only person who could seek a remedy and therefore who alone could sue to recover stool land revenue. It is significant to note that that part of section 17 has been taken out in the wording of Article 267(2) which now talks only of establishment of stool land accounts, collecting payments in respect of stool lands and disbursement of same. It therefore appears to me that the conflict perceived by Roger Korsah J to have existed between the right to sue for compensation conferred on the Minister alone under Act 123 and the right of a stool to claim compensation under Act 125 no longer exists, if it ever existed. The stool can make its claim under section 4 of Act 125 and if it is disputed by other stools, the High Court under section 3 of Act 125 would determine the rightful claimant(s) but when the money is ready the OASL collects and disburses. In any event, when the High Court referred to the problem that would confront the Minister in the event of conflicting claims for compensation for stool land compulsorily acquired, it should have realised that there could also be conflicting claims by stools for rents, tributes and royalties in respect of stool land so the practicability argument he used to distinguish compensation and restrict section 17 of Act 123 to only periodic payments was clearly unjustifiable.
Be that as it may, the High Court was reversed by the Court of Appeal. The Court of Appeal upheld the arguments of the defendants that the plaintiffs had no capacity to sue because the wording of section 17 of Act 123 was so wide that it covered compensation under the definition of stool land revenue so it was only the Minister for Lands, and not the stool, that could sue. They nevertheless agreed that the defendants' conduct was fraudulent and therefore directed that monies paid into court by the defendants following the judgment of the High Court should remain there pending action by the Minister.
Upon appeal by the defendants to the Supreme Court, the Supreme Court held that by virtue of an amendment to Act 125 effected in 1968 by the State Lands (Amendment) Decree, NLCD 234, section 17 of Act 123 was not applicable to stool lands acquired under Act 125. A little background here is important for us to appreciate the context within which the Supreme Court decided that case. Initially when Acts 123 and 125 were passed in 1962, compulsory acquisition of stool lands could not be made under the provisions of Act 125. The original Act 125 in section 1(1) thereof stated as follows;
"1) Where it appears to the President in the public interest so to do, the President may, by executive instrument, declare the land specified in the instrument, other than land subject to the Administration of Lands Act, 1962 (Act 123), as land required in the public interest."
That meant that from that time compensation payable in respect of stool lands compulsorily acquired was subject to the provisions of section 17 of Act 123 so it was the Minister who was supposed to collect such compensation and disburse it according to the provisions of that Act. However, in 1968 the National Liberation Council by NLCD 234 made it possible for stool lands to be compulsorily acquired under Act 125 but it stated that where a stool land was acquired under Act 125, the provisions of Act 123 (particularly section 17, I believe) were not to apply to that acquisition. With this background one may ask, if compensation for acquisition of stool lands was not covered under section 17 of Act 123, why was there a need to specifically exclude it in the amendment? So it was on account of NLCD 234 that the Supreme Court held that the Court of Appeal erred in holding that it was the Minister who had capacity to sue for the compensation and reinstated the decision of the High Court. The legal effect however is that, though the Supreme Court came to the same conclusion as the High Court on the non-applicability of section 17 of Act 123, they did so on different legal grounds which effectively set aside the legal reasoning adopted in the judgment of the High Court. For the law is that, where a lower court arrives at a correct conclusion but for wrong reasons, an appellate court may uphold the judgment but provide the right legal grounds to justify it. In view of the fact that this present case is premised on a constitutional provision, that amendment relied upon by the Supreme Court in Owusu v Agyei is of no consequence, hence even the defendants have not sought to base their case on it. This is more so because if even we apply the doctrine of implied repeal adopted by Roger Korsah J, then Article 267(2) being a constitutional provision and a later enactment at that, effectively repelled NLCD 234.
Though the Supreme Court did not discuss the issue whether compensation was stool land revenue within the context of the provisions of Act 123 as against those of Act 125 indulged in by the High Court judge, a close reading of the opinions of Francois, Wuaku and Aikins, JJSC, suggests that their view of the matter was that, but for the amendment to Act 125, the compensation was payment covered under Section 17 of Act 123. For instance, at page 507 of the report Francois JSC, who delivered the lead judgment of the court, stated as follows;
"In my view, section 17 of Act 123 seeks to regulate and promote the orderly management of stool revenues. It does not encroach on inalienable rights of stools to their title to land. I differ from those who think title to stool properties has been effectively sequestrated by legislation. Section 17 only maps out revenue administration but does not edge out rights appertaining to ownership of stool lands. It should not be forgotten that NLCD 234 erodes the force of Act 123 by making the latter Act inapplicable in certain acquisitions, and consequently abating the force of section 17."
The above quotation seems to me to be a criticism directed at the reasoning of Roger Korsah J when he considered section 17 of Act 123 as taking away from the right of stools to claim compensation under Act 125 which he thought he had to salvage. It also answers the 2nd defendant's argument at paragraph 73 of its statement of case that statutory provisions for compensation to be shared according to the formula in Article 267(6) would amount to denial of the title of stools in their lands. As for the question whether compensation payments are of a capital nature, the answer in Owusu v Agyei was undoubtedly in the affirmative.
What I have laboured to demonstrate above is that the decision of the Supreme Court in Owusu v Agyei, turned on a statute that has ceased to have effect in the face of Article 267(2), so it did not decide the question facing us and has no binding effect on us. If anything at all, the persuasive effect of that decision favours the case of the plaintiff. If the framers of the Constitution had intended Article 267(2) to be exclusive of payments under Act 125 (as was intended by the legislature in NLCD 234) they would have excluded it as has been done in several parts of the text of the 1992 Constitution including Article 19(16), Article 20(4) and Article 21(4).
Article 267(2) of the 1992 Constitution had two precursors in Article 164(2) of the 1969 Constitution and Article 190(2) of the 1979 Constitution but they were never interpreted by the Supreme Court during the brief lives of those Constitutions. It is therefore a historic opportunity that has been afforded this court to interpret and give effect to the policy of the framers of our Constitution as plainly expressed in Article 267(2) and the defendants should not obfuscate the provision with notions that have not been given expression in the Constitution.
In the recent Supreme Court case of Mrs Margaret Banful & Anor v The Attorney-General & Anor, Writ No J1/7/2016 the court had to interpret the words "treaty, agreement or convention by or under the authority of the President shall be subject to ratification by" Parliament in Article 75 of the 1992 Constitution to determine if its scope covers instruments exchanged between the Government of Ghana and that of the United States in respect of the Gitmo two. The defendant argued that the court should maintain a distinction between executive agreements which did not require parliamentary approval and treaties which do. In rejecting that distinction the majority of the court through Sophia Akuffo, CJ in the unreported judgment dated 22th June, 2017 at page 13 said as follows;
"The language of Article 75 is perfectly clear. The Article forms part of the set of provisions governing the role of the Executive arm of government in Ghana's international relations. The scope of the Article deals with treaties in general (c.f. the side notes) and the body of the text makes reference to 'treaties, agreements and conventions'. It is also clear that the instruments referred to relate to Ghana's international relations with other countries or groups of countries and the Article requires that such instruments must be ratified by parliament. The Constitution makes no mention of any distinctions that are dependent on the formality with which such an instrument is formatted or brought into being..."
In similar vein, Article 267(2) does not mention any distinction dependant on how the stool land in respect of which the payments arise was acquired but it is defendants who are trying to read such a distinction into the provision and it must be rejected.
Another leg of the argument of the defendants is that compulsory acquisitions are made under article 20 of the Constitution so it is article 20 and not 267(2)(b) that ought to be our guide in determining the proper person to collect the compensation. Article 20 is a general provision which is stated expressly to provide for protection from deprivation of property of any description without the prompt payment of fair compensation. Though it requires that compensation shall be paid on compulsory acquisition of property, there is no provision in it directing to whom the compensation shall be paid. Nonetheless, defendants argued that if article 20 is construed as a whole, clause (6) thereof tends to suggest that the compensation is to be paid to the owner of the property acquired because, according to them, it is only if it is paid to the owner that clause (6) would be operative in respect of all acquisitions. Their contention is that if compensation for stool land is shared out as provided for in article 267(2) & (6) then in the event of return of the land for not using it in the public interest, how the owner would refund the compensation which was shared to the OASL and the District Assembly. This convoluted argument collapses upon a close reading of the whole of clause (6) itself. It states;
"(6) Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option for acquiring the property and shall, on such reacquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurate with the value of the property at the time of the reacquisition.(emphasis supplied)"
As was rightly argued by Dr Abdul Bassit, learned counsel for the plaintiff, Clause (6) does not demand a refund by the original owner of the whole of the compensation paid in respect of the land. It allows for a refund of part of the compensation paid in respect of the acquisition. Clearly therefore, clause (6) of article 20 anticipated the situation that would arise under article 267(2) & (6) where, by operation of law, part of the compensation is not paid to the original owner.
Article 267(2)(b), as against article 20, specifically deals with payments in respect of stool lands and who is entitled to collect such payments and how they are to be disbursed. That is the crux of the dispute in this case. It will be noticed that article 267(2)(b) is plain and unambiguous and unlike article 267(5)of the constitution it is not stated to be subject to any provision of the Constitution or article 20 for that matter. It is thus clear that article 20 is not applicable in the circumstances of this case. But supposing it were relevant, the provisions of article 267(2)(b) being specific on payments in respect of stool lands, would prevail over article 20 which is general in nature and effect. In the case of New Patriotic Party v Rawlings & Anor [1993-94] 2 GLR 193 this court held as follows in the Headnote;
"The language of section 23(1) of the transitional provisions of the Constitution, 1992 is clear and unambiguous... The subsection stands out without any qualification whatsoever. It is not made subject to any provision of the Constitution, 1992 unlike article 11(6) of the Constitution, 1992 and sections 31(1) and 36(2) of the transitional provisions of the Constitution, 1992 where we find repeated use in the sections of the expressions "with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it (ie the law) into conformity with the Constitution and in so far as it is not inconsistent with the Constitution." These expressions are general provisions as against the specific provision of section 23(1) which appears to have been put in for transitional arrangements, and which, in my view, did not cease to have effect on the coming into force of the Constitution, 1992. The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment, and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply... This is an application of the maxim generalia specialibus non derogant. This special provision stands as an exceptional proviso upon the general."
See also Zakaria v Nyimakan [2003-2004] SCGLR 1.
The 2nd defendant in its submissions on the distinction between compulsory acquisitions under Act 123 and 125 created the impression that it is alright for periodic payments in respect of use and occupation of stool land to be shared under article 267(2) & (6) but there is something wrong with lump sum payments for permanent lost of title being shared according to the formula in the article. 2nd defendant however did not point to any provision in the Constitution as justification for its theory. If periodic payments can be shared with District Assemblies for development projects to benefit future generation of subjects of a stool, one would have thought that bulk payments would achieve even more. I consider those submissions of 2nd defendant as value judgments of the policy in the constitutional provision but our duty as a constitutional court is not to indulge in value judgments of plain and unambiguous provisions of the Constitution. Our province is to interpret the Constitution to give effect to the declared intention of its framers.
In Republic v Fast Track High Court, Accra; Ex parte Daniels [2003-2004] SCGLR 364 at 370 Kludze JSC said as follows;
"We cannot, under the cloak of constitutional interpretation, rewrite the Constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the lawgiver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution."
The defendants have to recognise that Article 267(2) which established the OASL limited its functions to collecting and sharing money payable in respect of stool lands. The OASL's mandate is not to manage stool lands contrary to the impression being created, which wrong impression is partly attributable to its name. An appropriate name would be; "Office of the Administrator of Stool Lands Payments". It is the 2nd defendant that is in charge of managing stool lands by giving or withholding consent or concurrence for grants of stool lands under section 8 of Act 123 and Article 267(3) of the Constitution. So while the 2nd defendant manages stool lands as well as public lands, the OASL collects and shares money payable in respect of stool lands. It makes for the orderly administration of payments for stool lands as Francois JSC said. The Land Valuation Board was therefore right in proposing to pay the compensation due in respect of the Barekese Dam acquisition to the OASL in view of the fact that the acquisition took place at the time the 1992 constitution was in force.
In my considered opinion, upon a true and proper construction of article 267(2) of the 1992 Constitution, compensation payable in respect of compulsory acquisition of stool land is payment in the nature of capital to be paid to the OASL to be applied in accordance with article 267(6).
The offending provision in section 19(1) of Act 123 that provoked issue 1 in this case was inserted by the Statutory Law Review Commissioner in an effort to bring the said Act in line with the 1992 Constitution. It is obvious that he did not succeed so I think it is better to strike it down so I grant relief 1 of plaintiff's claims. On the basis of the reasons I explained above I hereby grant reliefs 2 and 3 of plaintiff's claims. I am unable to grant relief 4 because the processes before us indicate that the claimants in the Barekese Dam acquisition were paid before the case was filed and I thought that accounted for plaintiff's failure to make them parties in this case.