IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D.2026
CORAM: PWAMANG JSC (PRESIDING)
GAEWU JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
AMALEBOBA JSC
CIVIL APPEAL
NO: J4/62/2014
28TH JANUARY, 2026
1 JOSEPH ANGMORTE AMADE
2 EBENEZER KOFI TEYE PLAINTIFFS/RESPONDENTS/APPELLANTS
3 NARH KWASI
VRS
THE ATTORNEY-GENERAL ……. DEFENDANT/APPELLANT/RESPONDENT
JUDGMENT
________________________________________
AMALEBOBA, JSC:-
INTRODUCTION AND BACKGROUND
[1] On 17th October 2013, the Court of Appeal reversed the decision of the High Court, Accra entered in favour of Plaintiffs/Respondents/Appellants, and against the Defendant/Appellant/Respondent. Being aggrieved by this decision, the Plaintiffs/Respondents/Appellants, filed this Appeal, praying that the Judgment of the Court of Appeal be reversed and Judgment entered in their favour. The parties will maintain their designations as used in the High Court.
[2] The Plaintiffs commenced this suit against the Attorney -General as Defendant, to recover from the Government of Ghana, what they assert to be compensation for acquisition of their family land in 1937. In their Amended Statement of Claim, the Plaintiffs aver that the 1st Plaintiff is the head of the Peignwa Yohe family of Odumase Krobo, which family is made up of two divisions, namely the Tetteh Gbame Amade division and the Akuma Teye division. The Plaintiffs further aver that the 1st Plaintiff also doubles as the head of the Tetteh Gbame Amade division, with the 3rd Plaintiff being the head of the Akuma Teye division and the 2nd Plaintiff, a principal member of the larger Peignwa family of Odumase Krobo.
[3] According to the Plaintiffs, in or about February 1937, the colonial government of Ghana acquired a vast parcel of their family land measuring 7. 77 km ² with a perimeter of 23.88 km, for the Yongwa Forest Reserve. They aver that the said acquisition was subject to compensation of One Thousand, One Hundred and Two Pounds (£1,102.00), with a compound interest of 5% to run from 1937, until the Governor – General makes an order under Section 17 of the FORESTS ACT, 1927 (CAP 157). According to the Plaintiffs, as a result of several competing claims to the land the subject matter of the acquisition, the Reserve Settlement Commissioner sitting at the Magistrate Court, Koforidua heard the various claims, declared the Plaintiffs owners of the reserve, and adjudged them to be due the compensation in respect of the acquisition. That the Governor – General subsequently made the said Order in accordance with Section 17 of CAP 157, by issuing the FORESTS ORDINANCE (CAP 157), THE FORESTS (YONGWA FOREST RESERVE ORDER ,1958 [LN 241].
[4] The Plaintiffs aver that since the said acquisition, however, the Colonial government, as well as successive Governments of the Republic of Ghana, have failed or refused to pay the compensation as determined by the Reserve Commissioner. They further aver that this refusal to pay compensation has caused them immense hardship, particularly as the Government has put a Ghanaian company in possession of parts of the Forest Reserve, thereby interfering with the Plaintiffs use of the land. By their Writ of Summons issued from the Registry of the High Court, Koforidua, against the State, represented by the Attorney – General, the Plaintiffs seek the following reliefs:
a. One Thousand, One Hundred and Two Pounds (£1,102), which amount is also subject to five per cent (5%) compound interest, to run from February 1937, until the date the Governor-General makes his order under Section 17 of CAP 157 (i.e. 11th July 1958).
b. Interest on the amount of compensation due as at 11th July 1958 at the prevailing bank rate till the date for final payment.
c. General damages or compensation for refusal to pay the compensation promptly.
[5] The Defendant having been served with the Plaintiffs amended Statement of Claim, filed an amended Statement of Defence. The said Statement of Defence raises in substance, two defences to the action. Firstly, that the Plaintiffs have been paid their compensation in full and thus no hardship has been occasioned them by the Government. Secondly, that the action is statute – barred since the Judgment of the Reserve Settlement Commissioner for payment of compensation was delivered in 1957 and the present action commenced in 2009. The Attorney – General further asserts in defence of the State, that the Plaintiffs are therefore estopped by the Statute of Limitation from making any claims for compensation.
HIGH COURT DECISION
[6] A full trial was held in the High Court. Though the Attorney – General cross- examined the Plaintiffs and their witness, no witnesses were called to testify in the State’s defence. The learned trial Judge entered Judgment for the Plaintiffs based on the 1957 Judgment of the Reserve Commissioner, Peter Myles Riley Esq, in the sum of £ 41,715, 453.07, or its cedi equivalent of
GH¢ 97,455,641.46. Costs were assessed at GH¢ 2,000.00, in favour of the Plaintiffs. The reasoning of the High Court was that the Government or President was a trustee of the Yongwa Forest Reserve, holding same in trust for the benefit of the Plaintiffs. That until the sums adjudged as compensation were paid to the Plaintiffs, the Government was not discharged of its duty under this fiduciary relationship. The reasoning of the High Court will be discussed further in this Judgment.
APPEAL TO THE COURT OF APPEAL
[7] Being dissatisfied with the decision of the High Court, the Defendant appealed to the Court of Appeal, Accra on six (6) grounds, among them, a ground (b), as follows: “the trial Judge did not consider the full legal import of the fact that the action is statute – barred. This error of law occasioned the Defendant substantial miscarriage of justice.” The Court of Appeal having considered the record, and applicable law, particularly the LIMITATION ACT, 1972 (NRCD 54), came to the conclusion that the action of the Plaintiff was statute – barred. The Court of Appeal accordingly reversed the decision of the High Court. It is from this decision that this Appeal has been lodged.
APPEAL TO THE SUPREME COURT.
[8] By their Notice of Appeal filed in this Court, on 24th December 2013, the Plaintiffs filed the following grounds of Appeal.
GROUNDS OF APPEAL
a. The Judgment of the Court of Appeal is against the weight of evidence on record and their Lordships in the Court of Appeal erred in concluding that the Plaintiffs/Respondents/Appellants action against the Defendant/Appellant/Respondent status barred (sic), at the commencement of the suit at the High Court.
b. Their Lordships in the Court of Appeal erred when they held that the record of appeal did not disclose any empirical evidence that the Respondents endeavoured to access the award made to them by the Court in 1957.
c. Their Lordships in the Court of Appeal erred when they failed to consider the empirical evidence in the record of appeal indicating that it is rather the Government of Ghana which refused to pay the compensation to the family of the Plaintiffs/Respondents/Appellants despite several demands from the predecessors of the Plaintiffs/Respondents/ Appellants and which evidence was not challenged throughout the trial.
d. Their Lordships in the Court of Appeal erred when they failed to avert their minds to the claim of the Defendant/Appellant/ Respondent that compensation had been paid to the family of the
Plaintiffs/Respondents/Appellants, and which claim was never proved throughout the trial, although the Plaintiffs/Respondents/Appellants challenged such claim as untrue and which challenge appears in the record of appeal.
e. Their Lordships in the Court of Appeal erred when they held that the Judgment of 1957 was in respect of claims of compensation rather than the determination of ownership of the land covering the Yongwa Forest and which suit was rather between claimant families.
f. Their Lordships at the Court of Appeal erred when they held that time to commence the action began to ran from 1958, according to statute and therefore the action instituted by the Plaintiffs /Respondents was status barred (sic) at the time of commencement of the suit in the High Court.
g. Their Lordships at the Court of Appeal erred when they held the Judgment creditors in the case by the Reserve Settlement Commissioner in 1957, went to sleep therefrom and only woke up from their deep slumber to enforce a Judgment which has accumulated interest over the years, without considering the neglect of the Government of Ghana in paying the compensation to the family in respect of the award under the Forest (Yongwa Reserve) Order 1958, in the face of overwhelming efforts to access the compensation awarded.
h. Their Lordships at the Court of Appeal erred when they held that there was no fiduciary relationship between the parties in the case in spite of overwhelming evidence in support of such situation and confirmed by the Defendant’s agent.
i. Further grounds to be filed in due course.
NON- COMPLIANCE WITH THE SUPREME COURT RULES,1996 (CWE16).
[9] We have considered the Plaintiffs’ grounds of appeal and deem it necessary to comment briefly on the Plaintiff’s non- compliance with the Supreme Court Rules, 1996 (CI 16), in formulating some grounds of appeal contained in the Notice of Appeal. This Court has on numerous occasions had cause to caution Counsel, on the repercussions of formulating grounds of appeal which are not in compliance with the rules governing the appeal.
[10] It has been settled by a plethora of cases determined by this Court, that an appeal being a creature of statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. The filing of grounds of appeal which are non – compliant with the rules governing the appeal, may be fatal to an appeal, as the said offending grounds of appeal may be struck out. SEE: SANDEMA – NAB VS. ASANGALISA & ORS [1996- 1997] SCGLR 302; DAHABIEH V. S.A TURQUI & BROTHERS [2001- 2002] SCGLR 498 and INTERNATIONAL ROM LIMITED V. VODAFONE GHANA LIMITED; CIVIL APPEAL NO. J4/2/2016; DATED 6TH JUNE 2016.
[11] Rule 6 (4) of the Supreme Court Rules,1996 (C.I6), requires that “the grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where the ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” We have examined grounds (b) – (h) of this appeal. The said grounds which are neither concise, nor under distinct heads are also a narrative. Due to the narrative nature of these grounds of appeal, the nature and particulars of the error of law complained of are not easily discernable. These grounds of appeal are clearly not in compliance with Rule 6 (4) of CI16.
[12] Having considered the grounds of appeal, We are satisfied that this appeal can be wholly determined on ground (a) of the appeal and the Plaintiffs will suffer no injustice by a striking out of grounds (b) – (h). We, therefore, exercise our discretion in striking out the said grounds of appeal and same are accordingly struck out. Now, ground (a) of the appeal raises two issues, that the Judgment is against the weight of evidence, and that the Court of Appeal erred in concluding that the Plaintiffs’ action was statute – barred at the date the suit was commenced in the High Court.
SUBMISSIONS OF PLAINTIFFS
[13] On ground (a) of the appeal, the Plaintiffs argue through their Counsel, that the Judgment is against the weight of evidence. Counsel argues that the Plaintiffs adduced sufficient evidence of their ownership of the parcel of land acquired for the Yongwa forest reserve and the compensation adjudged to be due to them by Peter Myles Miley, the Reserve Commissioner. It was further submitted by Counsel for the Plaintiffs, that they subpoenaed PW1, an expert witness, who testified and submitted current values of compensation and interest due the Plaintiffs. That PW1 was never cross- examined by the Defendant. (The record establishes the contrary). According to Counsel, the Plaintiffs discharged their obligation to adduce evidence in support of their assertions in accordance with sections 11 and 17 (1) of the EVIDENCE ACT, 1975 (NRCD 323), for which reason the Court of Appeal ought to have entered Judgment in their favour.
[14] Counsel for the Plaintiffs further submits that the Court of Appeal erred in its finding that the action is statute – barred. According to Counsel, the proclamation and publication of the FORESTS , ACT 1927 (CAP 157), and
THE FORESTS ORDINANCE (CAP 157), THE FORESTS (YONGWA
FOREST) RESERVE ORDER 1958(LN 241) and the provisions of the said legislation confirm the creation of a trust and therefore a fiduciary relationship between the Plaintiffs and the President as a Trustee. It is argued by Counsel for Plaintiffs that though not expressly stated in the legislation, a further reading of a publication by the Ministry of Local Government and Rural Development in 2006, under the heading “Ghana Districts”, (Exhibit C), confirm an implied or constructive trust. Relying on the case of Re: Bliss [1903] 2 CH 40, Counsel argues that due to the fact that a trustee is in a fiduciary relationship with the beneficiary, the former is not permitted to benefit from his position. Counsel further relies on the case of Re Dartnell [1895] 1 CH 474 and argues that the trustee ought to account to the beneficiary on how the account has been dealt with, including investments made, among others, particularly when a Ghanaian company has been put in possession of the land by the Government of Ghana. Counsel further submits that a defence by the Defendant that the Plaintiffs have been paid compensation and a claim for indemnity under the LIMITATION ACT , 1972 (NRCD 54), is an attempt to perpetuate fraud on the Plaintiffs. Counsel submits that by the decision in DZOTEPE V. HARHORMENE (N0, 2) [1984 – 86]. 1 GLR 294, the said fraud vitiates all transactions as a result of which the action was not statute – barred, under the LIMITATION ACT, 1972 (NRCD 54). Counsel also referred to section 22 (1) (a) of NRCD 54 in support of this argument.
[15] Counsel for the Plaintiffs further submits that the Plaintiffs were unaware of the trust created in their favour, until the Ministry of Local Government and Rural Development published Exhibit C, whereupon they commenced this action within three (3) years of having acquired such knowledge. Counsel sought to blame the Defendant for this lack of knowledge, contending that the information of creation of a trust in Plaintiffs’ favour had been fraudulently concealed from them. That, furthermore, the claim by the Defendant that compensation had been paid led to a further delay in the commencement of this action.
SUBMISSIONS OF DEFENDANT
[16] In Defendant’s Written Submissions before this Court, Counsel argues that the Judgment is consistent with the evidence on Record. Counsel contends that since the Plaintiffs have raised the omnibus ground of appeal, this Court ought to conduct a re- hearing of the matters which were canvassed before the High Court and the Court of Appeal, by examining the entire record to determine whether the Judgment is indeed against the weight of evidence. The decision of this Court in the case TUAKWA V. BOSOM [2021- 2022] SCGLR 61,was cited by Counsel in support of this submission.
[17] Counsel for the Defendant also urges the Court in its evaluation of the Record, to determine that the action is statute- barred. According to Counsel for the Defendant, by sections 5 (2) of the LIMITATION ACT , 1972 (NRCD 54), “a person shall not bring an action on a Judgment after the expiration of twelve years from the date the Judgment first became enforceable”. Similarly, a person shall not bring an action to recover the proceeds of sale of land after the expiration of twelve years from the date when the right to receive the money first accrued.” Counsel submits that since the Judgment of the Reserve Commissioner was entered in 1958, and the suit commenced in 2009, a period in excess of twelve years from 1958, the action is statute – barred and the position of the law does not change regardless of whether the Yongwa Forest Reserve is a compulsory acquisition or a Trust.
[18] Counsel further argues that no information on the compensation was concealed from the Plaintiffs. That the notification of the compulsory acquisition was gazetted and it was Plaintiff’s predecessors- in -title who contested competing claims before the Reserve Commissioner and had an award made in their favour in 1958. According to Counsel, having slept on their rights for decades, it would be contrary to public policy to permit the Plaintiffs to successfully claim the said compensation in this suit.
a. DETERMINATION OF THE APPEAL ON GROUND (A)
[19] As earlier stated in this Judgment, in their ground (a), in addition to the assertion that the Court of Appeal erred in its conclusion that the action is statute-barred, the Plaintiffs have canvassed the omnibus ground of appeal, that the Judgment is against the weight of evidence. It is settled law that an appeal is by way of rehearing and where particularly, the Plaintiffs as Appellants contend that the Judgment is against the weight of evidence, they bear the burden of establishing their assertions with reference to the Record. The duty of this Court in determining the omnibus ground of appeal requires that it resorts to the record for a fresh consideration of the facts and evidence on the Record, to determine whether a party’s case was more probable than not. This Court’s decision in cases such as TUAKWA V. BOSOM [ 2001- 2002] and DJIN V. MUSA BAAKO have settled the law on the use of the omnibus ground of Appeal.
[20] We are, however, minded in this Appeal, to first determine whether or not the Court of Appeal erred in its determination that the action is statute – barred and whether the said decision ought to be set aside, as also raised by the Plaintiffs in ground (a) of the appeal. For where a determination of this question results in a finding that the action is statute- barred, then the
Plaintiff’s rights to their claim would be deemed extinguished, barring the Plaintiffs’ from asserting same in this suit. There will then be no need to determine the merits of the action. However, should the finding be to the contrary, same will be maintainable and it will then be necessary to proceed to determine this appeal on the omnibus ground. We must state that in determining the ground that the action is statute – barred, we will necessarily have recourse to relevant facts on the record.
[21]. In answer to the Defendant’s assertion that the action is statute- barred, the Plaintiffs assert that the President is a trustee of the Yongwa Forest Reserve, for their benefit. Counsel for Plaintiffs submits that the State perpetuated fraud against the Plaintiffs, by concealing from them that such a trust had been created and that they were entitled to compensation for acquisition of their land. The process by which the Yongwa Forest was declared as a forest reserve has variously been referred to by the Defendant as a compulsory acquisition and by the Plaintiffs as land vested in the President in trust for them, thereby creating a fiduciary relationship. Since the Plaintiffs are raising fraud by a trustee, among other exceptions to the Statute of limitations, the nature of the interest acquired by the State if any, in the Yongwa Forest Reserve, ought to be determined at this stage. Only then, can a determination be made as to whether the action is indeed statute- barred.
[22] Did the declaration of the Yongwa Forest as a reserve, amount to a compulsory acquisition, or was a trust created by which the land was vested in the President, in trust for the Plaintiffs.
[23] It is important to emphasise, that a determination as to whether a parcel of land has been compulsorily acquired, lies not necessarily in the fact that there is some restriction to the use of the land by the owner and, or that some compensation has been paid to the owner. The ultimate effect of a compulsory acquisition after the certificate or the instrument of acquisition is published, is to extinguish the rights of the owner to the land, in exchange for a compensation to be paid, so that the land may be used in the public interest.
In the case of SAGOE & ORS V SOCIAL SECURITY & NATIONAL INSURANCE TRUST [2012] 2 SCGLR 1093 AT 1099, this Court speaking through Gbadegbe JSC reiterated the effect of compulsory acquisition as follows:
“Since an acquisition by the state operates to extinguish any title and or interests that a person might have had at the date of the publication of the instrument of acquisition, it does not matter whether the acquisition was previous to the interest held in the land by an individual or subsequent thereto”.
[24] Compulsory acquisition vests the land in the President or State. By article 257 (1) of the 1992 Constitution of Ghana, all public lands in Ghana are also vested in the President in trust for the people of Ghana and all minerals within the territory of Ghana, including its territorial waters are by Article 257 (6) of the 1992 Constitution, similarly vested in the President.
[25] The jurisprudence on land acquisition clearly makes a distinction between land compulsorily acquired and vested in the President and vested lands which the President holds in trust for the people of Ghana, or certain communities. Vested lands are lands held in trust by the President for the communities by which the State or President acquires the legal title, to enable the State to manage same in the public interest, while the owners retain the beneficial interest thereof.
[26] The distinction between compulsory acquisition and vested lands was reiterated in the case of DAKPEM ZOBOGU-NAA HENRY A. KALEEM (SUBSTITUTED BY RICHARD ADAMS) CIVIL APPEAL NO. J4/17/2020 13TH MAY 2020, where this Court speaking through Amegatcher JSC, stated thus:
“In their judgment, the learned justices of the Court of Appeal attempted to differentiate between lands compulsorily acquired and lands vested in the State before arriving at the conclusion that the disputed Kaladan lands were not compulsorily acquired. This is what the Court of Appeal said at page 512: “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. While we agree with the Court of Appeal that there is a distinction between vested and compulsorily acquired land, to ‘vest’ or ‘vested’ land has acquired two different meanings in legislation. A critical look at Act 123 and 125 will bring to the fore the characteristics and legal effect of the distinction. In one sense, land is vested in the President in trust for stools, skins and communities. In another sense, land is acquired and vested absolutely in the President in trust for the public services or on behalf of the people of Ghana free from any incumbrances, titles or interest whatsoever. The characteristics and legal effect are as follows. Vested Lands in trust for the benefit of stools, skins & communities: Such vested lands were lands previously owned by stools, skins and traditional indigenous communities and by law were vested in the President and administered in trust for the benefit and on behalf of the communal owners. One characteristic of such vested land held in trust is that though the State possesses the legal interest in the land as the trustee, the community possesses the beneficial interest as the beneficiary. Another characteristic is that no compensation is paid for such lands. The allodial interest remains in the community despite the fact that the customary authority over the land has been taken over by the State….”
[27] Compulsory acquisition and acquisition of vested lands are both guided by the Constitution and, or statute enacted for the purpose. In the High Court, while the Defendant’s contention that the land was compulsorily acquired by the State through an Executive Instrument did not find favour with the Court, the Plaintiffs’ contention that the said land was vested in the President in trust for the Plaintiffs swayed the Court, which after discussing express and constructive trusts, gave its reasoning in part as follows (page 148 and 149 of the Record of Appeal):
“I have already decided that the relation is one of a fiduciary nature. The principle is set out in Banning on limitation of actions (3rd ed) at page 217. See Eboe v. Eboe (1961) 1 GLR 324 at 332,in the case of Lyell v. Kennedy ( supra) Lord MacNagthen expressing his concurrence with the Earl of Selborne stated the principle in the following words: I would only venture to add with regard to the appeal that it seems to me that the principle which governs the case may be stated concisely in the words of the late Lord Justice Guildford in Burdik Garrik that learned Judge expressed himself as follows, ‘I do not hesitate to say where a duty of a person is to receive property and to hold it for another and keep it until it is called for, they cannot discharge themselves from that trust by appealing to the lapse of time. They can only discharge themselves by handing over that property to someone entitled to it’…”
[28]. The Court of Appeal in departing from the position taken by the High Court, stated its own understanding of the issue as follows (Pages 297 and 298 of the Record of Appeal):
“It is our considered opinion that prior to the order made in 1957, that is between 1937 and 1957 when the Court made the order, indeed the Reserve was held in trust for the beneficiaries by the republic. But once the order was made, it was the duty of the Respondents’ family to proceed with executing the Judgment order made by the Court in order to access their compensation. There was no fiduciary relationship at that point.”
[29] The High Court and Court of Appeal, in arriving at their decisions seemed to have been influenced by a document tendered in evidence by the 2nd Plaintiff as Exhibit C.” The 2nd Plaintiff testified that he obtained Exhibit C from the internet and that same was published by the Ministry of Local Government and Rural Development, on a website under the heading, “Ghana Districts”. Paragraph 6 of Exhibit C states as follows: “the ownership of the Yongwa forest is vested in the President of the Republic of Ghana in trust for the alienation holders, however, the communities are granted the following community rights….”
[30] The Defendant did not object to the admission of Exhibit C. That notwithstanding, can a Court of law determine the nature of acquisition or expropriation of land by the State, based on a publication on the internet? We think not. The admission of Exhibit C notwithstanding, it is important to note that a trust is a creation of law and cannot be created by virtue of a publication on a website, even if it is suggested that the website belongs to a Government agency or ministry. It is only by recourse to the enabling or governing statute that this Court can determine whether the creation of the Yongwa Forest Reserve, was a compulsory acquisition, a trust, or otherwise.
[31] The Yongwa Forest was declared or constituted a Reserve, pursuant to the FORESTS ACT, 1927 (CAP 157) and THE FORESTS ORDINANCE (CAP 157), THE FORESTS (YONGWA FOREST) RESERVE ORDER (1958), (LN
241). What was the purpose and import of these legislation? A consideration of these legislation will determine the purpose of same and the nature of the interest if any, acquired by the State, in the Yongwa Forest Reserve.
[32] To determine the purpose of these legalisation, it is necessary to consider the text as a whole. Having considered the FORESTS ACT, 1927 (CAP 157), as a whole, it seems to me that its long title and sections 2, 17, 18 and 19 of CAP 157, encapsulate its purpose. These provide as follows:
“AN ACT for the protection of forests and for the constitution and protection of forest reserves and to provide for related matters.
2. Creation of forest reserves
Subject to section 21 the President may by executive instrument, constitute as a forest reserve:
(a) lands which are the property of the Government;
(b) stool lands, at the request of the relevant authority;
(c ) private lands, at the request of the owner;
(d) lands in respect of which the President is, on the advice of the Forestry
Commission, satisfied that the forests on those lands ought in the public interest to be protected from injury or destruction, or from further injury or destruction or that forest growth should be established on those lands in order to (i) (ii) (iii) safeguard the water supply of the district, or assist the well-being of the forest and agricultural crops grown on those lands or in the vicinity of those lands, or secure the supply of forest produce to the inhabitants of villages situated on those lands or in the vicinity of those lands.
17. Ownership of land within forest reserve.
(1) The ownership of land within a proposed forest reserve shall not be altered by its constitution as a forest reserve.
(2) A forest reserve shall be managed by:
(a) the owner under the direction of the Forestry Commission, or
(b) the Government for the benefit of the owner.
(3) For the purposes of paragraph (b) of subsection (2), there shall be paid to the owner in the proportion decided by the Forestry Commission the whole of the gross yearly revenue of the forest reserve accruing under this Act, subject to the deduction of a sum of money not exceeding one third of the gross revenue as the Forestry Commission may reserve for expenditure on the improvement of the forest in the interest of the owner.
(4) Where the deduction is made the Forestry Commission shall render an account of its expenditure to the owner.
(5) The method of management of a forest reserve shall be at the option of the Forestry Commission who may vary the method of management where a variation appears necessary or desirable.
(6) An owner may refuse to undertake the management under the method specified in paragraph (a) of subsection 2.
(7) Where a recognised fetish grove or fetish tree is included in a forest reserve, the forest officers concerned shall not willfully interfere with the grove or tree and shall do their utmost to ensure that the fetish character is respected.
18. Transfer of rights in a forest reserve
A right in a forest reserve shall not be alienated by sale, lease, mortgage, charge, or trans fer, unless the right holder has given a written notification of that intention to the Forestry Commission.
19. Power to declare forest no longer reserved
The President may, if satisfied that a particular land should not be a forest reserve, by executive instrument published in the Gazette, direct that from a date specified in the order, the land or a portion of that land reserved under this Act shall cease to be a forest reserve”.
[33] Pursuant to Section 15 OF CAP 157, THE FORESTS ACT (CAP 157),
THE FORESTS ORDINANCE (CAP 157) THE FORESTS (YONGWA FOREST) RESERVE ORDER (1958), (LN 241) , was issued, which we will reproduce in full, as follows:
“WHEREAS by notice issued under the provisions of subsection (1) of Section 5 of the Forests Ordinance and published in the Gazette No. 68 of 2nd August, 1952, the Governor stated his intention of constituting as a Forest Reserve the area of land the situation and limits of which were specified in the said notice, which area of land includes the area of land the situation and limits of which are described in the First Schedule to this order, and by the aforesaid notice appointed CHRISTOPHER HERBERT COOKE, ESQ., to be Reserve Settlement Commissioner:
AND WHEREAS C. H. COOKE, ESQ. was unable to complete his duties as Reserve Settlement Commissioner, a further notice under the provisions of subsection (2) of Section 5 of the Forests Ordinance was published in Gazette No. 77 dated 1st December, 1956, appointing P. M. Riley, Esq., hereinafter referred to as the “Reserve Settlement Commissioner”, to be Reserve Settlement Commissioner:
AND WHEREAS in pursuance of the duties imposed upon and powers vested in him by section 9 of the Ordinance the Reserve Settlement Commissioner proceeded to hold an enquiry into the limits of the aforesaid area of land and into the existence nature and extent of rights affecting the land or over the land which have been claimed, alleged to exist or brought to his notice:
AND WHEREAS the Reserve Settlement Commissioner has completed his enquiry and has delivered his judgment in accordance with section 15 of the Ordinance:
AND WHEREAS the Reserve Settlement Commissioner in his said judgment inter alia described the limits, set out in the First Schedule hereto, of an area of land which area he recommended for reservation as a forest reserve:
NOW THEREFORE in exercise of the powers conferred upon the GovernorGeneral by Section 17 of the Forests Ordinance the following Order is hereby made: —
“Order 1—Title.
This Order may be cited as the Forests (Yongwa Forest Reserve) Order, 1958.
Order 2—First Schedule.
The area of land the situation and limits of which are specified in the First Schedule to this Order is hereby constituted a Forest Reserve under the name of the Yongwa Forest Reserve.
Order 3—Second, Third, Fourth and Fifth Schedules.
The Yongwa Forest Reserve is hereby declared to be affected by the rights particularised in the Second, Third, Fourth and Fifth Schedules to this Order.
SCHEDULES
FIRST SCHEDULE
DESCRIPTION OF THE AREA OF THE YONGWA FOREST RESERVE
All that area of land lying within the boundary following, that is to say a boundary commencing at B.P.1 which is situated on the Obopa-Kabos footpath 35 chains from Obopa, thence following this footpath in a Westerly direction for 42 chains to Boundary Pillar 2: thence on a bearing of 28 degrees for a distance of 83 chains to B.P.3; thence on a bearing of 118 degrees for a distance of 3 chains to B.P.4; thence on a bearing of 28 degrees for a distance of 37 chains to B.P.5; thence on a bearing of 298 degrees for a distance of 3 chains to B.P.6; thence on a bearing of 34 degrees for a distance of 43.16 chains to B.P.7; thence on a bearing of 124 degrees for a distance of 10.46 chains to B.P.8; thence on a bearing of 34 degrees for a distance of 7 chains to B.P.9; thence on a bearing of 148 degrees for a distance of 5.50 chains to B.P.10; thence on a bearing of 43 degrees for a distance of 4 chains to B.P.11; thence on a bearing of 323 degrees for a distance of 16.20 chains to B.P.12; thence on a bearing of 34 degrees for a distance of 27 chains to B.P.13; thence on a bearing of 108 degrees for a distance of 9.85 chains to B.P.14; thence on a bearing of 34 degrees for a distance of 10.10 chains to B.P.15; thence on a bearing of 298 degrees for a distance of 25.44 chains to B.P.16; thence on a bearing of 307 degrees for a distance of 19 chains to B.P.17; thence on a bearing of 26 degrees for a distance of 20 chains to B.P.18; thence on a bearing of 73 degrees for a distance of 70 chains to B.P.19; thence on a bearing of 118 degrees for a distance of 68 chains to B.P.20; thence on a bearing of 224 degrees for a distance of 68 chains to B.P.21; thence on a bearing of 251 degrees for a distance of 47 chains to B.P.22; thence on a bearing of 169 degrees for a distance of 43 chains to B.P.23; thence on a bearing of 211 degrees for a distance of 32 chains to B.P.24; thence on a bearing of 301 degrees for a distance of 1 chain to B.P.25; thence on a bearing of 211 degrees for a distance of 8 chains to B.P.26; thence on a bearing of 121 degrees for a distance of 1 chain to B.P.27; thence on a bearing of 211 degrees for a distance of 80 chains to B.P.28; thence on a bearing of 256 degrees for a distance of 17.75 chains to
B.P.29; thence on a bearing of 211 degrees for a distance of 12.60, chains to B.P.30; thence on a bearing of 258 degrees for a distance of 10.13 chains to
B.P.1, the point of commencement.
All bearings are approximate and refer to True North. All distances are more or less.
The Letters B.P. followed by a number refer to a boundary pillar bearing that number.
SECOND SCHEDULE
DETAILS OF COMPENSATION AWARDED
1 2 3
Name of Farm Company Acreage excluding demarcated farms Compensation awarded.
Akoma Teye & Company….
Teeteh Gbame Amade & Company. 861.83
974.85 £516
£ 586
Total £1,102
To the Compensation figure in column III is to be added in each case 5 per cent compound interest to run from February 1937 until the date the GovernorGeneral makes his order under Section 17 of Cap. 157.
THIRD SCHEDULE
COMMUNAL RIGHTS
1 2 3
Nature of Right, Extent of Right and Persons Permitted to exercise Rights.
1. Hunting – Unrestricted but no Steel traps to be used. Members of each farm Company on their own Huza.
2. Fishing – Unrestricted but no dams to be made or water courses altered. – do-
3. Collection of Snails, Honey, Fruits. Unrestricted -do. –
4. Collection of deadwoods for fuel Unrestricted for personal use and not for sale. do.
5. Collection of sand, Stones, and Clay. On Free Permit at the discretion of the Forestry Officer. -do-.
6. Collection of Tie-Tie, Sponges, Canes, Raffia, Thatch, Building Poles, Bamboo, Grass. -do-.
7. Collection of Palm nuts and tapping for Palm wine -do -.
8. Use of existing bush paths – Unrestricted – By the landowner on his own land.
To general public.
FOURTH SCHEDULE
INDIVIDUAL FARMING RIGHTS
Unrestricted rights of access to and cultivation in the demarcated farms shown in columns 1 and 2 below in favour of the persons named in column 3.
1 2 3
No. Acreages Owners
1.)
2.) Blocked 2 acres – Tekper
Manya Teye
Nartey Badua of Yongwasi.
3.. 17 acres – Teye of Yongwasi.
4.. 89 acres – Tetteh Kwame of Yongwasi.
5. 3.46 acres – orda Tekper
Akoma Teye
Tetteh Asare
Tetteh Tekper
Tetteh Korla of Yongwasi.
Total _________
6.52 acres
_________
FIFTH SCHEDULE
CLAIMS NOT ESTABLISHED
Claims by the Stool of Kotrope not to have sold the land in the Reserve to the Manya Krobo Farm Companies.
Dated at Accra this 11th day of July 1958.
By the Governor-General’s Command.
F.Y. ASARE
Minister of Agriculture”
[34] A combined reading of the above provisions of the FORESTS ACT, 1927 (CAP 157) and THE FORESTS ORDINANCE (CAP 12) THE FORESTS (YONGWA FOREST) RESERVE ORDER (LN 241), establish the following:
(i) The President is empowered to by an executive instrument constitute state lands, stool lands, or individual lands as a forest reserve subject to restrictions in section 21 of CAP 157. (Section 2 of CAP 157).
(ii) The creation of the forest reserve does not change the ownership of the land so constituted as a forest (Section 17 (1) of CAP 157).
(iii) The owner of the land may manage same under the supervision of the forestry commission. Alternatively, the Government may manage same for the benefit of the owner and where the Government manages same it shall pay a yearly revenue from sums accruing, to the owner of the said land (Section 17 (2) of CAP 157).
(iv) A right in the reserve shall not be alienated by sale, mortgage, charge or transfer, unless a written notification of such transfer is given to the Forestry Commission. (Section 18 of CAP 157).
(v) The President may declare that any Forest Reserve cease to operate as such, by Executive instrument published in the Gazette.
[35] The provisions of CAP 157 and LN 241, leave one in no doubt that upon the publication of an Executive instrument and in this case the Order, LN 241 by the colonial government, the Plaintiff’s rights were restricted within the forest reserve. These restrictions affected their use of the land and not their title or ownership to the land, for Section 17 (1) of CAP 157 is clear that the ownership of the land by the Plaintiffs does not change. The restrictions imposed under the statute, and which were targeted at the preservation of the flora and fauna, placed the management and preservation of the forest in the
State or President through the Forestry Commission, for the public interest. Even then, CAP 157 gave an option to the owners to manage the forest reserve under the supervision of the Forestry Commission under section 17 (2), though the said option was subject to the discretion of the Forestry Commission under section 17 (5).
[36] The creation of a Trust operates to vest the legal title in the Trustee, while the beneficial interest is vested in the beneficiary. However, in certain instances, the title which the trustee holds in property may be an equitable one. This second concept is, however, not the subject of this Judgment and need not be discussed further. The learned authors, Da Rocha and CHK Lodoh state this position succinctly in their book, Ghana Land law and Conveyancing (2nd ed) at page 105 as follows:
“The concept of trust is one of the most important inventions of equity. Under a trust, a person holds the nominal title in property not for his own beneficial enjoyment but for the benefits of some other person. The person who holds the legal title is known as the trustee. The person entitled to the benefit of the property is the beneficiary. A trustee may himself also be one of the beneficiaries. Thus, wherever there is a trust, the nominal title to the property is held by one person, the trustee, and the equitable right to enjoy the property is vested in another person, the beneficiary. It must be noted that the property which is the subject of a trust may be movable or immovable and the title which the trustee holds may be legal or equitable.”
[37] In this Judgment, we have referred to the position of this Court on the nature of interests created where lands are vested in the President in trust for the people of Ghana, or various communities as determined in the case of DAKPEM ZOBOGU-NAA HENRY A. KALEEM (SUBSTITUTED BY RICHARD ADAMS) (supra).
[38] Therefore, notwithstanding Exhibit C’s description of the Yongwa Forest
Reserve, as a trust, it is clear from the foregoing, that no trust was created by CAP 157 and LN 241. In fact, in making their respective submissions in this case, both Counsel referred to Exhibit C and discussed its import. It was wrong for Counsel to rely on information from a website (Exhibit C), rather than the Statute (CAP 157), the Order (LN 241) and the certified Judgment of the Reserve Commissioner. Counsel are officers of the Court. Therefore, where relevant statute exists, they ought to bring same to the Court’s attention, in the interest of justice.
[39] The trial High Court judge also relied wrongly on Exhibit C, in arriving at the conclusion that the President holds the Yongwa Forest Reserve in trust for the Plaintiffs. Similarly, the Court of Appeal’s finding that there was a trust between 1937 when the Order was made till 1957 but ceased to operate upon the publication of LN 241, cannot be the true position. The said Courts were in error, and the findings are set aside. We find that there is no fiduciary relationship between the President and the Plaintiffs, as no trust was created in respect of the Yongwa Forest Reserve. That being so, the authorities on the law of trusts cited by Counsel for Plaintiffs are inapplicable to this case.
[40] By the provisions of CAP 157 and LN 241, the intention of the colonial government was clear. The intention was to constitute a Forest Reserve and nothing more. The interests and rights affected, as well as the extent of land affected, by constituting the forest as a Reserve were clearly spelt out in the legislation. No rights of ownership were affected.
[41] It is also important to note, that at the date of the constitution of the Yongwa Forest Reserve, there was in place legislation governing compulsory acquisition and other forms of expropriation of land by the State, such as the PUBLIC LANDS ORDINANCE, (CAP 134) 1951 for compulsory acquisition and vesting of land in the public service and the PUBLIC LANDS (LEASEHOLD) ORDINANCE, CAP 138 OF 1951), among others, which have since been repealed and none of these were used.
[42] The effect of compulsory acquisition under section 11 of the PUBLIC LANDS ORDINANCE, (CAP 134) 1951 was clearly stated in the statute as follows: “Conveyance of lands under this ordinance may be in the form B of the schedule, or as near as may be in any other form, which the Governor may think fit, and every conveyance made according to the form in the schedule or as near as may be shall be effectual to vested lands thereby conveyed in the Governor and shall operate to bar and to destroy all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever off and in the lands comprised in such conveyance.” In MEMUNA MOUDY AND ORS V. ANTWI, [2003- 2004] SCGLR 967, this Court reiterated that land compulsorily acquired under CAP 134, operated to vest same automatically in the Government upon publication in the gazette and by virtue of section 11 operated to bar all rights, estates, among others as provided for by the said section.
[43] From the foregoing, the effect of the constitution of the Yongwa Forest Reserve did not operate to extinguish the rights of the Plaintiffs’ family to the land, as in a compulsory acquisition. While the Plaintiffs’ family maintained certain rights of farming among others, in some parts of the Forest Reserve, compensation was awarded to the Plaintiffs’ family for the loss of use of farms and farming rights in certain restricted portions, as is evident from the proceedings held before the Reserve Commissioner and his Judgment, Exhibit A. As far as the creation of the Yongwa Forest Reserve did not operate as a bar to extinguish all rights of ownership of the Plaintiffs, it was not a compulsory acquisition, as argued by Counsel for the Plaintiffs.
[44] Now is the action of the Plaintiff statute – barred? Limitation is a defence available to a party against whom proceedings have been commenced. Though a party may have a right or claim at law, where proceedings are instituted outside of the time limits provided by the Statute of Limitations, that party may have its rights extinguished, except it is able to seek relief under exceptions provided within the statute, other law, or at equity.
[45] Where the Court makes a finding that an action is statute- bared, it will not proceed to determine the merits of the case. This Court reaffirmed the position of the law in CIVIL APPEAL NO: J417/2016: JEAN HANNA ASSI V. ATTORNEY – GENERAL AND ORS DATED 9TH NOVEMBER 2016.
[46] At the date the Yongwa Forest was declared a Forest Reserve in 1958, the prevailing law on limitations of actions in Ghana was the Limitation Act 1623, as well as other statutes such as the Statute of Frauds Amendment Act 1828, the Mercantile Law Amendment Act 1856, among others. According to paragraph 2 of the memorandum to the LIMITATION ACT, 1972 (NRCD 54), these English Statutes of General application numbering five in all, threw the law on limitations in Ghana into some confusion, therefore, resulting in the enactment of NRCD 54 to bring clarity to the position of the law. These Statutes were repealed by the second schedule to NRCD 54.
[47] Be that as it may, at the date the Plaintiffs commenced their action in
2009, the prevailing law on limitation was the LIMITATION ACT (NRCD 54). Section 5 (2) of NRCD 54, provides as follows:
“(2) A person shall not bring an action on a judgment after the expiration of twelve years from the date on which the judgment became enforceable”.
[48] The provisions of section 5 of NRCD 54 are applicable to proceedings against the State in the words of section 30 of NRCD 54 as follows:
“30. Application of Act
(1) This Act applies to proceedings by or against the Republic as if the Republic were a private individual.
[49] The facts before the Court and from the proceedings Exhibit A, establish that though in 1937, a notice had been served on the traditional authorities of Krobo and Akwamu of the Governor’s intention to constitute the Yongwa Forest, it was not until 3rd September 1957, that the Reserve Commissioner entered Judgment for the Plaintiffs’ family, declaring them owners of the land to be constituted as the Yongwa Forest Reserve. The Plaintiffs were awarded compensation due them, in the sum of £ 1,102, with interest to run from February 1937, till the date the Governor – General makes his order under section 17 of CAP 157. The said order being LN 241, was made on 11th July 1958. The Judgment of the Reserve Settlement Commissioner was therefore made in 1957 and not 1958 as argued by Counsel for Defendant. On 11th July 1958, when the Reserve Commissioner issued the Order LN 241, constituting the Yongwa Forest as a reserve, the Judgment of the Reserve
Settlement Commissioner became enforceable. From 11th July 1958, till 7th October 2009 when this suit was commenced, spanning some 51 years, the Plaintiffs’ family took no action to recover the said sums of money.
[50] As already stated, NRCD 54 was not the applicable Statute of Limitations at the date of the Judgment. But since NRCD 54 came into force in 1972, the Plaintiffs took no steps to enforce the Judgment of the Reserve Commissioner, until 2009, for a period spanning some 35 years. Upon a reading of sections 5(2) and 30 of NRCD 54, the conclusion of this Court ought to be that the Plaintiffs’ action is statute – barred, for twelve years have lapsed since the date the Judgment of the Reserve Commissioner became enforceable.
[51] But then, the Plaintiffs rely on some exemptions provided by the Statute, which they assert should save their action, notwithstanding the delay in commencing same. Counsel for Plaintiffs contend that the President is a trustee of the Forest reserve for the benefit of the Plaintiffs and further that fraud had been perpetrated against them as the State had concealed from them the information that the property was held in trust. The Plaintiffs also claim that compensation has not been paid. According to Counsel this Court should apply sections 15 (4) and 22 (1) (a) of NRCD 54, to save this action. The said sections provide as follows:
“15 (4) A period of limitation fixed by this Act shall not apply to an action against a trustee or a person claiming through that trustee.
22 (1) Where, in an action for which a period of limitation is fixed by this Act
(a) the action is based on the fraud of the defendant or the agent of the defendant or of a person through whom the defendant or the agent claims,”
[52] A determination has been made in this Judgment, that there is no trust and as such no fiduciary relationship between the President and the Plaintiffs or their family. Furthermore, the Plaintiffs have adduced no evidence to establish that prior to this action, they pursued their claim for compensation and same had been denied them by the State, on the basis that payment had already been paid. The defence put up by the Defendant in the trial that the Plaintiffs have been paid, is not sufficient proof of the facts the Plaintiffs assert.
[53] Counsel for the Plaintiffs also submit that the Plaintiffs were not aware of their rights in respect of the Yongwa Forest, until the 2006 publication of Exhibit C. This argument is untenable, since it was the Plaintiffs family which submitted their claims to the Reserve Commissioner, as owners of the Yongwa Forest. The case spanned over some 20 years, until a declaration of ownership was made in their favour and compensation awarded. The Plaintiffs’ family were therefore aware that they were due compensation in respect of the Forest Reserve, even though they claim that same was not paid.
[54] The Plaintiffs have failed to discharge their obligation under sections 11 and 17 of the EVIDENCE ACT, 1975 (NRCD 323), to adduce credible evidence in support of the facts they assert, to exempt them from the application of section 5 (2) of the LIMITATION ACT, 1972 (NRCD 54).
[55] Counsel for Plaintiffs in his submissions, prays that since the Plaintiffs seek equitable reliefs, the Court should invoke section 6 (2) of NRCD 54, to do justice to the Plaintiffs. Though section 6 (2) of NRCD 54 provides exemptions for equitable reliefs, in doing justice to the parties, same does not bar the application of section 5 of NRCD 54. The claim by the Plaintiff for compensation is decades out of time and the maxim, delay defeats equity is applicable in this case. The Plaintiff has been indolent and cannot be aided by this Court. We agree with the Court of Appeal that it will be contrary to public policy, to permit the Plaintiffs who have slept on their rights for decades, to wake up from their slumber with the expectation of claiming sums on a Judgment debt entered in 1957, with interest accruing from 1937.
[56] We find the Plaintiffs action to be statute – barred within the intendment of section 5 (2) of NRCD 54 and same is accordingly dismissed.
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ANDY KWAME APPIAH-KUBI ESQ. FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS.WITH HIM JOSEPH PADI ESQ.
ELFREDA DANKYI (MRS.) PRINCIPAL STATE ATTORNEY. FOR THE DEFENDANT/APPELLANT/RESPONDENT WITH HIM FRANK ASAMOAH ESQ.
