1. NTIAMOAH DANKYIRA 2. KOFI DANKYIRA 3. ASIEDU MICHAEL VRS NEWMONT GOLDEN RIDGE LIMITED

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. J4/65/2021
11TH FEBRUARY, 2026

1. NTIAMOAH DANKYIRA ………. PLAINTIFFS/APPELLANTS/
2. KOFI DANKYIRA APPELLANTS
3. ASIEDU MICHAEL

VRS

NEWMONT GOLDEN RIDGE LIMITED .……… DEFENDANT/RESPONDENT/RESPONDENT

JUDGMENT
MAJORITY OPINION
PWAMANG JSC:
My Lords, the key issues that arise for our determination in this appeal against the judgment of the Court of Appeal dated 16th December, 2020 are not complicated.
The plaintiffs/appellants/appellants, to be referred to as “the plaintiffs”, claimed to be the usufructuary owners of various parcels of land within lands owned by the Stools of Afosu, Yaayaso, Mamanso, Adausena and Hwekwae in the Akyem Kotoku Area of the Eastern Region. In the year 2010 the defendant/respondent/respondent, to be referred to as “the defendant”, was granted a 15 years mining lease by the Government of Ghana that covered the plaintiffs’ said lands. In compliance with the Minerals and Mining Act, 2006 (Act 703), the defendant engaged the plaintiffs and other persons whose lands fell within the area of their mining lease and negotiated compensations payable to them for disturbance to their surface rights in respect of their lands. The negotiations concluded and certain amounts were agreed upon to be paid to each claimant. The plaintiffs received their compensations and gave written receipts for the monies paid to them.
That notwithstanding, on 8th December, 2017, the plaintiffs filed the instant case in the High Court Koforidua, and by their amended statement of claim, they claimed for payment of additional compensation to the tune of 100% of the amounts they received multiplied by 15, as representing the years of the mining lease granted to the defendant. They also claimed that ground rent payable under Act 703 ought to be paid to them and not through the Administrator of Stool Lands to the Stools that own the allodial title over their lands.
The defendant entered appearance but did not file a statement of defence and rather filed a motion to dismiss the plaintiffs’ suit as disclosing no reasonable cause of action, frivolous and otherwise an abuse of the process of the court. In an affidavit in support, the defendant deposed that the plaintiffs’ action was not maintainable by virtue of the provisions of Act 703 in accordance with which they acted throughout in their dealings with the plaintiffs.

The High Court in a reasoned ruling dated 24th October, 2019 upheld the motion by the defendant and dismissed the entire suit. The plaintiffs appealed to the Court of Appeal and suffered the same fate there, hence this final appeal.
The relevant provisions of Act 703 that defendant relied on against the plaintiffs are the following;
73(1) The owner or lawful occupier of any land subject to a mineral right is entitled to and may claim from the holder of the mineral right compensation for the disturbance of the rights of the owner or occupier, in accordance with section 74.
(2) A claim for compensation under subsection (1) shall be copied to the Minister and the Government agency responsible for land valuation.
(3) The amount of compensation payable under subsection (1) shall be determined by agreement between the parties but if the parties are unable to reach an agreement as to the amount of compensation, the matter shall be referred by either party to the Minister who shall, in consultation with the Government agency responsible for land valuation and subject to this Act, determine the compensation payable by the holder of the mineral right.
75. Access to the Court in respect of compensation
(1) The owner or lawful occupier of land affected by a mineral right shall not apply to the High Court for determination of compensation to which the person is entitled unless the person is dissatisfied with the terms of compensation offered by the holder of the mineral right or as determined by the Minister under section 73 (3) or 73 (5) (b).
(2) The person entitled to be compensated or the holder of the mineral right may apply to the High Court for a review of a determination by the Minister made under section 73 (3) or 73 (5) (b).
(3) In proceedings brought before the High Court under subsection (2), the High Court shall be exercising its supervisory jurisdiction.
23. Annual ground rent
(1) A holder of a mineral right, shall pay an annual ground rent as may be prescribed.
(2) Payments of annual ground rent shall be made to the owner of the land or successors and assigns of the owner except in the case of annual ground rent in respect of mineral rights over stool lands, which shall be paid to the Office of the Administrator of Stool Lands, for application in accordance with the Office of the Administrator of Stool Lands Act 1994 (Act 481).

My Lords, these provisions are plain in what they mean. Compensation payable for disturbance of rights of a person in possession of land shall be by agreement between the person and the holder of the mineral right. If the parties are unable to agree on the amount of compensation, the matter shall be referred to the Minister by either party. When the matter is referred to the Minister, the Minister shall, in consultation with the government agency in charge of land valuations, make a determination of the amount of compensation to be paid by the owner of the mineral right to the claimant. If either party is dissatisfied with the determination by the Minister, the party may then take the matter to the High Court. Without a determination by the Minister, neither the owner of the mineral right nor the claimant for compensation can go to court. The determination by the Minister is therefore a condition precedent to the High Court having jurisdiction to entertain a cause or matter concerning the amount of compensation payable in respect of disturbance of land rights arising from a mining lease.
When these provisions were cited to the plaintiffs, they did not dispute that the provisions have the effect of annulling their claim for additional compensation. Their main response to the objection was, that the statute is “totally void and bad law having regard to Article (1) Sub Cause (2) and Article 20(1) sub clauses (a) and (2) (a) and (b) of the 1992 Constitution of the Republic of Ghana.” The plaintiffs have throughout this case claimed that under article 20 of the Constitution a person whose land is compulsorily acquired is given direct access to the High Court and that cannot be made contingent upon a determination by the Minister by Act 703 since the Constitution is the Supreme Law and any law inconsistent with it is void. From this submission, the plaintiffs stretched their arguments in this case to talk about whether land that is affected by a mining lease is land compulsorily acquired or not, and have written copiously on that issue and dragged the judges along that path.
My Lords, with due regard to the lawyer for the plaintiffs, this whole discussion before the High Court and Court of Appeal about whether land affected by a mining lease is compulsorily acquired or not is disingenuous and completely irrelevant to the matters within the jurisdictions of those courts that arose for determination in this case. The answer of the plaintiffs to the meaning and effect of the provisions of section 73(3) and 75(1) of Act 703 on the validity of their suit was to contend that the Act is inconsistent with article 20 of the Constitution. If so, then the plaintiffs ought to have invoked the exclusive jurisdiction of the Supreme Court under article 2(1)(a) of the Constitution, which they appeared to be aware of, or applied under article 130(1) and (2) of the Constitution for the High Court, or even the Court of Appeal, to make a reference to the Supreme Court for an interpretation as to whether land affected by a mining lease under Act 703 was compulsory acquisition or not and whether the requirement that a person dissatisfied with the amount of compensation offered him under Act 703 cannot access the High Court unless the person has first petitioned the Minister is inconsistent with article 20 of the Constitution. Articles 2(1)(b) and 130(1) and (2) of the Constitution are as follows;
2(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.
130 (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.
(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.
The plaintiffs failed to seek redress in the Supreme Court which is the proper forum if they sincerely believed that they had a genuine question for interpretation or enforcement of the Constitution. They instead kept pressing arguments that Act 703 is void before Judges who were bound to give effect to the provisions of the Act of Parliament that had been brought to their attention. We think that both the High Court and the Court of Appeal were right in dismissing the suit of the plaintiffs in the face of the clear provisions of Act 703 which they had no power to strike down.
In any event, we are of the firm view that no genuine question of constitutional interpretation or enforcement arises on the face of the provisions of article 20(1) and (2) of the Constitution referred to by the plaintiffs. The provisions are so clear and devoid of any ambiguity that they do not call for any interpretation or enforcement by the Supreme Court. See Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, and Republic v Maikankan & Ors [1971] 2 GLR 473.
The position on compulsory acquisition urged by the plaintiff stems from a basic and conjectured misreading of article 20(1) and (2) of the Constitution which state as follows;
20 (1) No property of any description or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied.
(a) the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit; and
(b) the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.
(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 other authority, for the determination of his interest or right and the amount of compensation to which he is entitled. [Emphasis supplied]
From the plain language of article 20 (1), the Constitution permits two distinct forms of compulsory interference with property rights in Ghana;
a) Taking possession of, or
b) Acquisition.
These have been expounded in various legislations and the legal consequences of either of these forms of compulsory interference with property rights are determined by these legislations. The legal effect and consequences of compulsory acquisition are as provided for under sections 249 (1) & (4), Chapter Seven, subtitle; Acquisition of Land by the State, the Land Act, 2020 (Act 1037) which state that;
(1) Acquisition takes effect from the date of publication of the Executive Instrument referred to in subsection (4) of section 233.
(4) On the publication of the instrument, under subsection (4) of section 233, the land shall, without further assurance, vest in the President free from any encumbrances. [Emphasis supplied]
Therefore, for a compulsory interference with land rights to be considered compulsory acquisition, the interference must entail the total extinguishing of the legal title of the owner in the land. Other forms of compulsory interference with rights in land would come under the taking of possession, which is permitted by article 20 (1), provided it is done under the authority of a law, Act 703 in this case, and provision is made for payment of compensation, which Act 703 has provided for.
The question that arises from the arguments of the plaintiffs in this case is; can it by any stretch of the facts surrounding the compulsory interference with the plaintiffs surface rights in the land in this case occasioned by the 15-years mining lease be interpreted to entail extinguishment of title in the land? The answer is a straight away NO. Therefore, there can be no talk of compulsory acquisition in the circumstances of the plaintiffs. Compulsory taking possession of lands for mining has been taking place in this country under mining legislations from colonial times and this cannot be confused with compulsory acquisition which is regulated by different legislation. It use to be the State Lands Act, 1962 (Act 125), and now the Land Act (supra). On the lapse of a mining lease, the land automatically reverts to the owners and does not belong to the state, whereas with compulsory acquisition, the land on acquisition remains state land forever, unless the government returns it to the original owners.

Secondly, lets come to the claim of the plaintiff that article 20 (2)(b) of the Constitution grants a person aggrieved with compensation payable for land compulsorily acquired direct access to the High Court but Act 703 has interposed the Minister between the aggrieved person and the court. He contends that the interposition makes those provisions of the Act inconsistent with the provision of article 20 (2)(b). Here again, no genuine question of interpretation or enforcement of the Constitution arises as the provision is clear and unambiguous. For emphasis I shall repeat article 20(2)(a) and it provides as follows;
(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 other authority, for the determination of his interest or right and the amount of compensation to which he is entitled. [Emphasis supplied]
The plaintiffs certainly failed to read the words of clause 2 (b) of article 20. It is stated there in black and white that the access to the High Court may either be direct or on appeal from a determination by other authority. So the impression created by the plaintiff that article 20(2)(b) conferred direct access to the courts is clearly misconceived and, in fact, is opposite what is stated in article 20(2)(b). Act 703 provides that access to the High Court shall be after a determination by other authority, in this case, the Minister, so the Constitution has not been violated.

The final point we shall address is the contention of the plaintiffs that ground rent should be paid to them the usufructuary owners and not the Stools which are the allodial title owners. Ghanaian customary land law has always been that ground rent in respect of Stool lands is payable to the Stool through the Office of the Administrator of Stool Lands. If it is the case of the plaintiffs that this renown principle is not applicable in their community, they may take it up with their Stools and not the defendant herein who is just complying with a valid and binding law.
For the reasons explained above, the entire appeal of the plaintiff/appellant/appellant is hereby dismissed as being without merit.

(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.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINION

DZAMEFE JSC:-

This is an appeal against the judgment of the Court of Appeal, Koforidua dated 16th December 2020.
FACTS
The plaintiffs /appellants hereinafter referred to as the plaintiffs are leaders of the 347 usufructuary owners of portions of lands at Afosu, Yaayaso, Mamanso, Adausena and Hwekae, while the defendants/ respondents referred to as the defendants, are a limited liability company registered under the laws of Ghana to mine. The plaintiffs are citizens of Akyem Kotoku who claim that the defendants came unto their farming lands in 2010, and informed them that the government had granted them prospecting license to prospect for gold in the area. The plaintiffs alleged that they appointed a team of lay people to validate how much compensation the defendants will pay each farmer.

The plaintiffs allege that the defendants’ paid some paltry compensation based not on the intrinsic or time value of their crops and houses but rather on the assumed value of the size of land on which each plaintiff owns. The plaintiffs not pleased with this petitioned their MP but to no avail. They alleged the defendant also failed to pay them ground rent which by law are due them. The plaintiffs are therefore praying for enhanced compensation since the earlier assessment they claim was unfair wherefore the plaintiffs issued this writ against the defendants for the following reliefs;-

i. Declaration that the Plaintiffs, the usufructuary land owners of the portions of the Lands at AFOSU, YAAYASO, MAMANSO, ADAUSENA and HWEKWAE are the persons the Defendant, NEWMONT GOLDEN RIDGE Company Limited shall pay the Annual Rents provided under Section 23(2) of the Minerals and Mining Act (Act 703), 2016.
ii. An order of the court to compel the Defendant to pay the accumulated Annual Rents to the Plaintiffs from 2010 to the year of judgment.

iii. Plaintiff to enhance his /her first payment.

iv. Costs

DEFENCE
The defendants on 23rd January 2018 filed a motion on notice to dismiss the suit against them pursuant to ORDER 11, C.I.47 and inherent jurisdiction of the High Court.

The crux of the motion for dismissal of the suit against the defendant is that, the suit discloses no reasonable cause of action, and also frivolous, vexatious or otherwise an abuse of the process of the High Court.
In their affidavit in support of the motion the defendant/applicant stated that by the provisions of the Minerals and Mining Act, annual ground rent payable for the land owned by the Stool and covered by the Defendants Mining lease shall be paid to the Office of the Administrator of stool lands, as per the Office of the Administrator of the Stool Lands Act, 1994, (Act 481). Therefore any fees or royalty or other payment done is a debt owed to the Republic and recoverable in the court by the Republic and not the plaintiffs.

They argued further that the plaintiffs have no capacity to maintain an action for the payment of ground rent since that cause of action is vested in the Republic. The defendants also averred that as admitted by the plaintiffs in their statement of claim, they have assessed and paid all compensation due the plaintiffs in accordance with the provisions of the Minerals and Mining Act as far back as 2010. They also allege that by the dictates of the Minerals and Mining (Compensation and Resettlement) Regulations 2012 (L12175), representatives for the plaintiffs’ communities formed the Compensation Negotiation Committee that negotiated the payment of compensation on their behalf. The defendants state further that by law any person dissatisfied with the compensation offered to be paid must complain to the Minister responsible for mines who shall determine the compensation payable by the holder of the mineral right. It is the defendants’ case that, the plaintiffs having not complained to the Minister responsible for mines of the compensation offered them by the defendants and having voluntarily accepted the compensation, are estopped by the provision of the Minerals and Mining Act from maintaining the instant action. Wherefore the defendants prayed the court for an order dismissing the plaintiffs’ suit against the defendants.

RULING
The two substantive issues in the motion were (i) whether or not the plaintiffs are the proper person to be paid annual ground rent by the defendants and (ii) whether plaintiffs have brought the instant action properly before the High Court for enhanced compensation, having regard to the provision of redress in the Minerals and Mining Act.

The trial High Court held that the word “owner” as stated in Section 23(2) of the Minerals and Mining Act, refers to an allodial or absolute or final owner of the land, in this case, the stools which allowed the plaintiffs to occupy and use the land as subjects of the stool. It is the stools to which the plaintiffs hold allegiance, as absolute owners of the land, who are entitled to be paid the ground rent and not the usufructuary owners, whose legal interest in the lands in mainly possessory. Therefore, if the defendants have failed to pay the annual ground rent as stipulated, it is the administrator of stools lands who has the right to recover the amount in arrears and not the plaintiffs. The court therefore declared that the plaintiffs have no capacity to bring an action against the defendant under Section 23 of the Minerals and Mining Act in respect of annual ground rents owed to the respective stools on whose lands the plaintiffs exercise their usufructuary rights – [page 302 ROA]

On the second issue, the court held that the land belonging to the plaintiffs acquired by the defendants under the Minerals and Mining Act is not a compulsory acquisition under Article 20 of the 1992 Constitution. Therefore, the relationship between the plaintiffs and the defendants in respect of the land in issue, is regulated by the provisions of the Minerals and Mining Act. That being the case, the plaintiffs are required by the Minerals and Mining Act to first petition the Minister responsible for Mines for redress and if not satisfied with the Minister’s decision, may then apply to the High Court for redress – [page 308 ROA].

The trial judge said from the evidence before the court, there is nothing to show that the plaintiffs have taken any legal action against Section 73(3) and 75(1) of the Minerals and Mining Act. Section 73(3) is a condition precedent and the failure of the plaintiffs to comply with same rendered this instant action before the High Court void, by virtue of Section 75(1) of the Act – [page 311 ROA]

The trial High Court in conclusion upheld the defendants’ motion and struck out the plaintiffs’ action as disclosing no reasonable cause of action against the defendants describing same as frivolous, vexatious and an abuse of the court process.

NOTICE OF APPEAL
The plaintiffs dissatisfied with the ruling of the High Court filed this appeal on the following ground;-
i. That the ruling is against the weight of evidence.

ii. That additional grounds of appeal shall be filed on receipt of the record of appeal.

ADDITIONAL GROUND
a. That the Learned Trial Judge was wrong in law in failing to dismiss the respondent’s application under the court’s inherent jurisdiction and under Order 11 rule 18 of C.I 47 in limine and that occasioned a gross miscarriage of justice.

b. That the Learned Trial Judge was wrong in law to have said and held that: “There is nothing to show that the Plaintiffs have taken any legal actions against section 73(3) and 75(1) of the Minerals and Mining Act. Section 73(3) is a condition precedent and the failure of the Plaintiffs to comply with same rendered this instant action before the High Court void by virtue of section 75(1) of the Act.” And it occasioned a gross miscarriage of justice.

c. That the Learned Trial Judge was wrong in law by dismissing the Plaintiffs claim that they are entitled to be paid ground rent under Section 23 of the Minerals and Mining Act 2006 (Act 703) and that has occasioned a gross miscarriage of justice.

The relief sought is an order to set aside the ruling of the High Court and such further orders as may be deemed fit by the appellate court.

COURT OF APPEAL JUDGMENT
The Court of Appeal dismissed ground ‘A’ of the appeal that the trial judge was wrong in law in failing to dismiss the respondents (Defendants’) application under the court’s inherent jurisdiction and under Ord 11 r 18 of C.I.47 in limine which occasioned a gross miscarriage of justice. The court found no merit in that ground of appeal.

The Court of Appeal on the second ground of appeal affirmed the trial court’s holding that the plaintiffs’ land was not compulsorily acquired by the state under any enactment. The Court Appeal held that the trial court was right in finding that the plaintiffs’ land was never compulsorily acquired by the respondent acting through the Minister. On grounds ‘C’ of the appeal, the Court of Appeal held that the learned trial judge was wrong in law by dismissing the plaintiffs’ claim that they are entitled to be paid ground rent under Section 23 of the Minerals and Mining Act 2006 (Act 703) and that has occasioned a gross miscarriage of justice. The Court of Appeal delivered itself thus:- “ Having closely examined the record in this appeal, I am of the opinion that the learned trial judge erred in law by dismissing the Plaintiff’s action on the basis that as alleged usufructuary owners, they are not entitled to be paid ground rent and for that reason lacked the requisite capacity. Under the circumstances, the Plaintiffs claim for ground rent cannot also be described as frivolous or vexatious or an abuse of process” – [page 415 ROA]

The Court of Appeal held further that “On this ground, my conclusion is that, the dismissal of the plaintiff’s action was against the weight of the affidavit evidence, the trial judge also erred in law and these have indeed caused a miscarriage of justice. Accordingly, the appeal is allowed on this ground”.

In conclusion the Court of Appeal allowed the appeal in part and said the trial ought to proceed with reliefs (a) (b) and (d) endorsed on the plaintiffs’ amended writ of summons and recommended that the trial be conducted by the High Court differently constituted – [page 420 ROA].

NOTICE OF APPEAL
The plaintiffs/appellants dissatisfied with the Court of Appeal judgment launched this appeal on the following grounds;-
(i) That the Judgment is against the weight of the evidence.

(ii) That the Court erred in law by holding that “the over-stretched argument by Plaintiffs’ Counsel that their land was compulsorily acquired, does not simply add up” and that has occasioned miscarriage of justice.

(iii) That the Court of Appeal erred in “law by holding that “without complying with the laid down procedure under section 73(3) of Act 703, the Plaintiffs cannot invoke the jurisdiction of the High Court for compensation for the disturbance of their surface right” and that has occasioned a grave miscarriage of justice.

(iv) That the Court of Appeal was wrong in law by implying that the grant of the mining lease to the Defendant/Respondent was the exclusive act of the Minister but not by the State of Ghana and that has occasioned a grave miscarriage of justice.

(v) That the Court of Appeal was wrong in law by holding that the grant of the Mining lease that covered and encompassed the surface lands of the Plaintiffs was not compulsory taking or acquired of their supra jacent lands and that has occasioned a gross miscarriage of justice.

SUBMISSIONS
GROUND II
That the Court of Appeal erred in law by holding that “the over-stretched argument by Plaintiffs’ Counsel that their land was compulsorily acquired, does not simply add up” and that has occasioned miscarriage of justice.

GROUND V
That the Court of Appeal was wrong in law by holding that the grant of the Mining lease that covered and encompassed the surface lands of the Plaintiffs was not compulsory acquisition of their supra jacent lands and that has occasioned a gross miscarriage of justice.

Counsel for the appellant argued both grounds together and submits that the land was compulsorily acquired by the state. He submitted that the negotiation for this compulsory acquisition was between the Minister on behalf of the President for the State of the Republic of Ghana on one side and the Directors of the defendant company. It is his argument that the plaintiffs, were never part of that negotiation yet it was their lands that were affected by the mining lease.
It is his submission that, the Court of Appeal erred in holding that the acquisition was not a compulsory acquisition by the State and that error has resulted in a very serious miscarriage of justice and urged this court to uphold the appeal. Counsel submits further that it was the Sovereign State of the Republic of Ghana acting by the President through his Minister who negotiated, discussed and agreed to grant the lease of the surface/supra jacant lands of the plaintiffs/appellants to the respondent company and that agreement culminated in a lease which was confirmed by parliament. Counsel alleged that the government never obtained the consent or approval of the appellants before the grant even though they are the owners of the land. That the lease has impoverished the appellants.

RESPONDENT
Counsel for the Respondent in his statement of case submitted that one of the appellant’s ground of appeal is the omnibus ground of judgment against the weight of evidence. He said such a ground of appeal deals essentially with factual and not legal issues and the court has held that where a matter is determined on legal arguments that party will not be permitted to argue points of law. Thus where facts are not in issue, such a ground of appeal is wrong and ought not to be entertained. Counsel referred this court to the following cases to buttress this point.

i. BROWN VRS QUARSHIGAH [2003/2004] SC GLR 930
ii. RE SUHYEN STOOL; WIREDU VRS AGYEI [2005/6] SC GLR 424

It is his contention that the decision of the court in this case was purely on legal and not factual issues, accordingly this ground of appeal is impermissible and same ought to be struck out.

Counsel submits further that, by Rule 15 of C.I.16 as amended, the appellant is required to argue its case based on the grounds of appeal as set out in the notice of appeal. When he does not, the appellant is deemed to have abandoned that ground of appeal. Counsel states that from the appellants’ statement of case, they never advanced a single argument on this omnibus ground so must be deemed to have abandoned same and this court must have no difficulty in dismissing that ground of appeal.

Ground ‘i’ of the appeal states; – that the judgment is against the weight of the evidence. There are a legion of authorities on this ground of appeal to the effect that any appellant who chooses same is calling on the appellate court to re-hear the case in totality, read all the proceedings of the case, take a look at all the exhibits and all annexures so tendered and re-examine all the evidence and to come to its own conclusion. It is the duty of the appellate court, in civil cases to re-examine and analyse the entire record of appeal, take into account all the testimonies, documents and all evidence adduced at the trial court before arriving at its decision to be sure that on the balance of probabilities, the conclusion by the trial judge are reasonably and completely supported by the evidence before the court – See TUAKWA VRS BOSOM [2001-2002] SCGLR 61..

For such a ground of appeal to succeed, it is incumbent on the appellant to demonstrate to the appellate court the lapses in the judgment appealed against. This is so because in sum what the appellant is saying in that ground is that there were certain pieces of evidence which the trial court failed to consider and if it did would have changed the decision in his favour or that the court considered certain pieces of evidence which it should not have and that went against him.

See Djin vrs Musah Baako [2007/8] SC GLR 656. This ground of appeal should be distinguished from misdirection or errors of law, challenge to jurisdiction or capacity. An appeal based on the omnibus ground allows the party to argue solely issues on points of fact; it does not permit reliance or arguments on points of law – BROWN VRS QUARSHIGAH (SUPRA).

In the instant appeal, there is no submission made by the appellant on the omnibus ground of appeal. Counsel made submissions on grounds ‘II’ and ‘V’ together and left out all other grounds. Those grounds left out are struck out as abandoned.

GROUND II
That the Court erred in law by holding that “the over-stretched argument by Plaintiffs’ Counsel that their land was compulsorily acquired, does not simply add up” and that has occasioned miscarriage of Justice.

GROUND V
That the Court of Appeal was wrong in law by holding that the grant of the Mining lease that covered and encompassed the surface lands of the Plaintiffs was not compulsory taking or acquired of their supra jacent lands and that has occasioned a gross miscarriage of Justice.

SUBMISSIONS BY THE APPELLANT
Counsel for the appellants submits that, the said lease of the appellant’s lands to the respondent was a “compulsory acquisition” by the government of Ghana. He said the lands covered and encompassed towns and many other landed properties of the appellants yet the appellants were not consulted. They were not allowed to put in any words about their properties described in the lease. Counsel referred the court to the cognitive principles of compulsory acquisition in land law as was “consecrated into Ghanaian Constitutional law in 1992”. He said the relevant and pertinent clauses for the present purpose are in Article 20 Clause (1) (a) and (2) which reads:
20. PROTECTION FROM DEPRIVATION OF PROPERTY.
(1) No property of any description, or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied-
a. the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit; and

b. the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.

(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..

Counsel submitted further that the Court of Appeal was in grave error resulting in a very serious miscarriage of justice when it held that the lease was not a “compulsory acquisition”. Counsel argued that it was a compulsory acquisition because it was the governing State of the Republic of Ghana acting by the President, through his Minister who negotiated, discussed and agreed to the grant of the lease of the Appellant’s lands to the Respondent Company without their knowledge and consent.

RESPONSE
Counsel for the Respondent in his response submitted that the grounds formulated by the Appellants do not meet the requirement of law and therefore ought not to be entertained. Counsel said Rule 6(2) (f) of C. I. 16 requires an appellant, when he alleges as a ground of appeal a misdirection or error of law, to provide the particulars of the alleged misdirection or error of law. It is his case that in ground (ii), the appellant allege that the Court of Appeal “erred in law” and in ground “v” alleged that the Court of Appeal “was wrong in law”, yet the Appellant failed to provide the particulars of the error of law they alleged.

Counsel referred this court to cases where this court struck out similar grounds of appeal in which the Appellants failed to particularize the errors complained of. DAHABIEH V SA TURQUI [2001/2] SCGLR 498. TETTEH V CHANDIRAM & CO. GH LTD. [2007/20] 2 SCGLR 770. Counsel invited this court to strike out those grounds.

Supreme Court Rules, C. I. 16 Rule 6(2) (f) referred to by Counsel for the Respondents under the general heading “Notice of grounds of Appeal” states:
“A notice of civil appeal shall set forth the grounds of appeal and shall state
(f) the particulars of a misdirection or an error in law if that is alleged.

This requirement the Appellants failed to meet in their notice of grounds of appeal. The Appellant failed to particularize their allegations of misdirection or error of law. They just stated the Court of Appeal ‘erred in law’ or “was wrong in law” without providing those particulars of error of law alleged.
Counsel for the Appellant was therefore right in inviting this Court to strike out those grounds. Be it as it may, as the final court of the land we shall look at the intent more than the form at this point.

Counsel for the Respondent in his response to grounds, (ii) & (v) submitted that the Appellants’ case at the trial High Court was not that their land had been compulsorily acquired. He said the appellants’ case from their statement of claim was that the compensation paid them by the respondent was inadequate. It was for that reason they wanted the High Court to order the Respondent to pay them enhanced compensation. Counsel said this issue of compulsory acquisition arose only as a collateral issue.

Counsel submits further that in the High Court, one of the grounds on which the Respondent had applied to the court to dismiss the Appellants’ claim was that a person aggrieved with the compensation paid him, by virtue of Section 75 of the Minerals & Mining Act, shall apply first to the Minister responsible for Mines for determination of the compensation payable to him. It is only after the Minister’s determination that the person may apply to the High Court for redress.

Counsel argued that the Appellants’ response was that Section 75 was contrary to Articles 20(1) and 2(a) of the 1992 Constitution and further that the grant of the mineral right by the Government to the Respondent amounted to compulsory acquisition. Counsel said the High Court dismissed the Appellants’ contention that their lands had been compulsorily acquired when the Government granted the Mineral right to the Respondent.

Counsel submits further that the Appellants in their written submission argued, under their additional ground (b), that the provisions of the Minerals & Mining Act, 2006 (Act 703) contravened Article 20 (2) (b) of the 1992 Constitution in that Sections 73(3) & 75(1) of the Act 703 fetter the rights of any person who seeks compensation if their land has been compulsorily acquired by the State to first apply to the Minister for Mines before approaching the High Court.

The Court of Appeal considered the contentions of the Appellant and found them unmeritorious. The Court of Appeal stated that “from the nature of these grounds of appeal coupled with the submissions made by Counsel, three issues arose, namely:
i) Compulsory acquisition of land
ii) Failure to follow laid down compensation procedures
iii) Constitutionality of Section 73(2) & 75(1) of Act 703
We cannot but agree with the Court of Appeal that resolving these three issues will effectively deal with the Appellants’ first ground of appeal that the judgment is against the weight of evidence on record.

COMPULSORY ACQUISITION OF LAND
The Oxford dictionary meaning of acquisition is the act of getting something especially knowledge, skill etc. something that somebody buys to add to what they already own, usually something valuable. Compulsory is that act that must be done because of a law or rule.

In effect putting the two words together, “compulsory acquisition” simply means acquiring something to add to what you have by the use of a law or rule, so to speak.

The Black’s Law Dictionary, 8th edition defines “acquisition” as “the gaining of possession or control over something, something acquired & “compulsory” as something mandated by legal process or by statute”.

Act 125, the State Lands Act, 1962 empowers the President of the Republic to acquire land for public interest. The State Lands Act (Act 125) was a foundational law for compulsory land acquisition, which was later expanded by other legislations like the Land Act, 2020, which replaced its provisions. The State Lands Act 1962 (Act 125) authorized the President to declare land needed for public interest, allowing entry for related purposed. It enabled State acquisition for public purposes, defence, health, planning and development, with compensation for affected parties as stated in Article 20 of the 1992 Constitution. However, Act 125 currently is largely superseded and expanded by late laws, notably the Land Act, 2020 (Act 1036) which now governs compulsory acquisition. A new innovation by the new Land Act 2020 (supra) allows the State to acquire allodial title (absolute ownership) to compulsorily acquired land, unlike previous laws where ownership remained with the original owner, whether stool or family or even an individuals.

This power by the State to compulsorily acquire land for purposes stated above has been given constitutional support by Article 20(2) of the 1992 Constitution.

The Constitution of the Republic of Ghana, 1992, Article 20, subheading “Protection from deprivation of property” states: – (1) (a) & (b), (2) a, b, (3) (5) & (6)
(1) No property of any description, or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied
a. the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit; and

b. the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.

(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.

(3) Where a compulsory acquisition or possession of land effected by the State in accordance with clause (1) of this article involves displacement of any inhabitants, the State shall resettle the displaced inhabitants on suitable alternative land with due regard for their economic wellbeing and social and cultural values.

(5) Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired.

(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 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.

The Minerals & Mining Act 2006, Act 703, Section 2 headed “Compulsory acquisition of land” states:-
“Where land is acquired to secure the development or utilization of a mineral resource, the President may acquire the land or authorize its occupation and use under an applicable enactment for the time being in force”.

 

(5) Power of Minister to grant mineral rights:-

“Subject to subsections (4) & (5) the Minister on behalf of the President and on the recommendation of the Commission may negotiate, grant, revoke, suspend or renew mineral rights in accordance with this Act”.

It will be gleaned from these provisions of the law that the State after satisfying the conditions stated in Article 20(1) (a) & (b) can compulsorily acquire any land in the country. The State need to clearly state the necessity from the acquisition and to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property. The law is to make sure that citizens are not arbitrarily deprived of their personal properties. This is to support the right of citizens to own property as enshrined in Article 18 of the 1992 Constitution. It states “Protection of privacy of home & other property” – 18(1) every person has the right to own property either alone or in association with others.

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

Coming to the grounds of appeal as canvassed by the appellants especially grounds ‘ii’ & ‘v’, that the Court of Appeal erred in law by holding that “the over-stretched argument by plaintiff’s counsel that their land was compulsorily acquired, does not simply add up” and that has occasioned miscarriage of justice.

Counsel for the appellants submits that the discussion or negotiation between the then Minister Alhaji Collins Dauda on behalf of the then President, John Mahama, who is now the current President, for the State of the Republic of Ghana and the Directors of the Newmont Company Limited, the respondents, did not in any way affect or refer to, mention or connect any of the Plaintiffs, yet it resulted in the mining lease of 15 years term to take their superjacent parts of their lands. The appellants argue further that the verbal description in the lease and the site plan annexed to the said indenture of a lease also cover and encompass the lands and towns and many other landed properties of theirs. Yet, not a word was said by them nor did the law allow a word to be written by themselves about their properties described in that document.

The plaintiffs in their statement of claim, paragraph 3 averred that “the defendant has been granted a Mineral lease to mine gold in the Akyem Kotoku area in the Eastern Region of the Republic of Ghana by the Minerals Commission”. The Plaintiff in paragraph 6 avers further that the defendants came unto their lands on or about 2010 and apprised them that the government of Ghana has granted them prospecting license to find out whether there is gold in the area. The plaintiffs averred further that the defendants after all reconnoitering of their farms called meetings with the plaintiffs and in their presence appointed teams of lay people to evaluate how much the defendants will pay each of them as compensation required by law. The plaintiffs alleged further that the defendant has paid paltry sums as compensation based not in the intrinsic or true values of their crops and houses but based on the assumed size of land each plaintiff owned.

74 (1) The compensation to which an owner or lawful occupier may be entitled, may include compensation for,
a. deprivation of the use or a particular use of the natural surface of the land or part of the land,

b. loss of or damage to immovable properties.

c. the case of land under cultivation, loss of earnings or sustenance suffered by the owner or lawful occupier, having due regard to the nature of their interest in the land,

d. loss of expected income, depending on the nature of crops on the land and their life expectancy, but no claim for compensation lies, whether under this Act or otherwise
e. in consideration for permitting entry to the land for mineral operations,

f. in respect of the value of a mineral in, on or under the surface of the land, or

g. for loss of damage for which compensation cannot be assessed according to legal principles in monetary terms.

(2) In making a determination under section 73(3), the Minister shall
observe the provisions of article 20(2)(a) of the Constitution which
states that, in the case of compulsory acquisition of property,
prompt payment of fair and adequate compensation shall be made.

(3) An agreement or determination in respect of a compensation to
which an owner or lawful occupier is entitled, shall take account of
payments and the value of benefits made or given to the owner or
occupier in the past or undertaken to be made or given in the future by
or on behalf of the holder and which are in the nature of compensation
including without limitation,
a. the cost of resettlement,
b. the annual ground rent, and
c. work that the holder has carried out or undertakes to carry out
to make good damage to the land and improvements.
Access to the Court in respect of compensation

75. (1) The owner or lawful occupier of land affected by a mineral right shall not apply to the High Court for determination of compensation to which the person is entitled unless the person is dissatisfied with the terms of compensation offered by the holder of the mineral right or as determined by the Minister under section 73(3) or73 (5) (b).

(2) The person entitled to be compensated or the holder of the mineral right may apply to the High Court for a review of a determination by the Minister made under section 73(3) or 73(5)(b).

(3) In proceedings brought before the High Court under subsection
(2), the High Court shall be exercising its supervisory jurisdiction.

We should not be oblivious of the fact that all minerals in the country are the property of the Republic and vested in the President in trust for the people of Ghana.

CONSTITUTIONALITY OF SECTION 73 (2) (3) & 75(1) (2) OF THE MINERALS & MINING ACT, 2006
These two sections have been reproduced in full and copiously referred to in the judgment. Albeit, I shall reproduce them once again.

Section 73 – Compensation for disturbance of owner’s surface
(2) A claim for compensation under subsection (1) shall be copied to the Minister and the Government agency responsible for land valuation.

 

 

 

 

 

Section 75 – Access to the court in respect of compensation

(2) The person entitled to be compensated or the holder of the Mineral right may apply to the High Court for a review of a determination by the Minister under Sub-section 73(3) or 73(5) (b).
Section 73 (2)
This section referred to subsection (1) which states;-
(1) The owner or lawful occupier of any land subject to a mineral rights is entitled to and any claim from the holder of the mineral right compensation for the disturbance of the right of the owner or occupier, in accordance with Section 74.

Article 20(2) and (2) (a) & (b) of the 1992 Constitution states;-
(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.

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.

This Article supports the compensation regime and processes as stated in Article 20 of the Constitution. The State proposes the prompt payment of fair and adequate compensation to anybody or individual whose land has been compulsorily acquired. If that subject is not satisfied with the quantum of compensation has the right to proceed to the High Court for redress. It must be stated clearly that, per Article 20 of the Constitution that right to proceed to the High Court accrues only to those whose lands were compulsorily acquired by the State. It does not extend to those subjects whose lands were granted for mining lease. Those subjects in that category must deal directly with the Minister as a first recourse. This is in line with Section 75 of the Act 703. It states “A person entitled to be compensated when his land has been granted to a mining company to mine thereon, if not satisfied with the compensation proposed or paid him shall have the right to complain about same to the Minister in charge for a review. When still not satisfied with the Minister’s review can then seek redress from the High Court”. Subjects in those categories do not have the right to go to the High Court without the Minister’s intervention. This is the beef of the appellants.

Section (1) of the Minerals and Mining Act, 2006 Act 703 states; – Minerals property of Republic (1) “Every mineral in its natural state in, under or upon the land in Ghana, rivers, streams, water-courses throughout the country, the exclusive economic zone and an area covered by the territorial sea or continental shelf is the property of the Republic and is vested in the President in trust for the people of Ghana”.

Sections 2-5 of the Act, Act 703 gives the power to the Minister by Executive Instrument to declare land available for applications for mineral rights, reserve land for mining and also grant mineral rights.

The Constitution uses the terminology ‘compulsory acquisition’ as stated in Article 20, same as that in Section 2 of Act 703 (supra). The Court of Appeal stated that counsel for the appellants relied heavily on the dictionary definition of “compulsory taking of land” as in Halsbury’s law of England (4th ed) Vol. 8 page 6 thus “where land or interest in land is purchased or taken under statutory power without the agreement of the owner” – [page 391 ROA]. Counsel concluded that the farms on the surface lands in the areas the mining lease covered have indeed been compulsorily taken by the State and that is a classic example of “compulsory acquisition of land”. Hence, the claim for enhanced compensation based on Article 20 of the 1992 Constitution. To them their lands were compulsorily acquired and so they can invoke the original jurisdiction of the High Court to enforce their constitutional rights to compensation.

The Court of Appeal on this issue delivered itself thus “ingenious as the submission by counsel for plaintiffs may sound, one cannot by any stretch of imagination raise the grant of a mineral lease by the Minister to the level of compulsory acquisition of land by the State. I cannot find the slightest indication in plaintiff’s pleadings and affidavit evidence to the effect that the State at any point in time acquired their land in the interest of defence, public safety, public order, public morality, public health, town and country planning or to the benefit of the public as expressed in Article 20 of the 1992 Constitution. This court cannot accept the dictionary definition of “compulsory acquisition” to defeat the purpose of an enactment i.e. the Minerals and Mining Act 2006 (Act 703)”

The Court of Appeal supported and affirmed the High Court decision that compulsory acquisition is not the same as the grant of mineral rights in land. The High Court delivered itself thus:-
“However, it is my view that there is a difference between compulsory acquisition of land and land acquired under the Minerals and Mining Act. In the case of compulsory acquisition of land, it is acquired only by the State and there are strict conditions under Article 20(1) (a) and (5) of the 1992 Constitution that have to be fulfilled before the land can be compulsorily acquired… Compulsory acquisition of land by the State is made under Statutory Instruments, such as the Administration of Lands Act, 1962 (Act 123), the State Lands Act, 1962 (Act 125), the State Property and Contract Act, (C. A 6) and the Towns Act,
1892 (Cap 86), etc.”

The trial High Court Judge in her judgment came to a conclusion that the Plaintiffs’ land was not compulsorily acquired by the State under any enactment. The Court of Appeal affirmed this decision of the High Court saying that the fact that Section 74 (2) of Act 703 enjoins the Minister to observe the provisions of Article 20 (2) of the 1992 Constitution does not transform the grant of a mineral license to “Compulsory acquisition” by the State. The Court of Appeal also held that if the President of the Country intends to acquire land compulsorily for mining, he could do so under an enactment as spelt out under Section 2 of Act 703, which states “Compulsory acquisition of land” thus:-
“Where land is required to secure the development or utilization of a mineral resource, the President may acquire the land or authorize its occupation and use under an applicable enactment for the time being in force.”

ANALYSIS
In constitutional interpretation, consideration relating to the essence of the constitution and its role in social life prevails. In a constitution, the intent of the legal system carries the day. The purpose of the law is the end and language is just the means. Judicial interpretation does not think again what has been thought before, but thinks through what has been thought of. The interpreter may understand the law better than its creators understood it; the law may be wiser than its authors –indeed, it must be wiser than its authors – (page 53 Aahron Barak – Purposive interpretation in Law).

Counsel for the Appellants contend that the Minister by granting the mining lease to the Respondents to mine on their private property, is tantamount to their lands being compulsorily acquired by the State through the Minister.

Counsel for the Respondent opposed this vehemently saying the grant of a mining licence by the Minister is never compulsory acquisition. The trial High Court and the Court of Appeal as seen above held the view of the respondent that a mining lease granted by the Minister cannot by any stretch of imagination become compulsory acquisition.

With all due respect to the two lower courts, I beg to differ and disagree with their decision. I am of the view that both acquisitions are “compulsory acquisitions”. This was the understanding we all had about Article 20 of the Constitution and the Minerals and Mining Act, 2006 Act 703. We all had assumed that when the State under Article 20 acquires land, that is “compulsory acquisition” but when the Minister grants a Mining license as per Act 703, its not “compulsory acquisition”. The terminology for both acquisitions, that is per Article 20 and Act 703 is “compulsory acquisition”. Why will the law makers who always choose their words carefully use same terminology if the two are different? With all due respect, we always were thinking of the end user of the land so acquired instead of the mode of acquisition. In both circumstances, be it under Article 20 or Act 703, the consent of the owners were never sought before the acquisition, hence the terminology “compulsory”. We must forget about the user or the purpose of the acquisition and concentrate rather on the mode of acquisition. This court as interpreters of the law, must as much as possible give purposive interpretations to every law so as to improve the legal system. Law is a social tool and we must always have the best interest of society in all our dealings with the law. After all, law is just the means and justice the end. I lam of the view that the mode of acquisition of lands both under Article 20 by the State and under Act 703, are the same since the prior consent of the owners were not sought. To me both are compulsory acquisitions and I hold as such.

I hold that counsel for the appellants was right when he contended that the acquisition of the plaintiffs’ land was “compulsory acquisition” by the State through the Minister. As I said earlier, all minerals in the country are for the State but vested in the President in trust for the people. The Minister who granted the licence acts on behalf of the State through the President and derived his authority to grant the mining licence from the President.

In effect Sections 73 (3) and 75 (1) (2) of the Minerals and Mining Act, 2006, Act 703 to my mind are inconsistent with Article 20 (2) (b). Article 20 (2) (b) and Section 73 (3) and 75(1) and (2) of Act 703 deal with compensations to be paid owners of lands taken from them “compulsorily”. I hold that whether the land was taken by the State under Article 20 or through the Minister as per Act 703, the mode of acquisition is the same. Both are compulsory acquisitions since in the two scenarios the owner’s lands were taken without their consent. Why will the law allow a set of people who are not satisfied with compensations paid them the right of access to the High Court for the determination of their interest and rights and the amount of compensation to which they are entitled while the other set of people in the same circumstances are forbidden? This is discriminatory before the law.

In fact the worst form of compulsory acquisition is that by Act 703, where private property of a person, family, group, or Stool is compulsorily taken from them by the Minister in the name of “Mining licence” and given to another private person for a benefit. For want of a better expression I term this phenomenon “Statutory robbery”. To digress a little from the issues, I dare ask, would it not be better if the licence holder met the owners, discussed and agreed on some terms and conditions so as to make them stakeholders in the mining activities on their own lands instead of this situation where they are passive non-stakeholders in an activity on their land? Why will the law allow a Minister to grant licences over their private property without their consent when the constitution guarantees private ownership of property?

The courts or the law must never be used to take property from any person or groups of persons or a Stool and given to another private person for profit purposes. If this phenomenon is not nipped in the bud by the courts it will blossom to the stage where the Minister backed by enactments will arbitrarily take land from private owners, and give same to their cronies for collateral reasons.

In the instant appeal, the plaintiffs were not consulted, their consent was not sought and without their knowledge, the Minister gave out their lands, including their farms, houses and other personal properties to the defendants, a mining company for gold prospecting and mining. Section 74(2) of the Minerals and Mining Act (supra) states “on making a determination under Section 73(3) the Minister shall observe the provisions of Article 20(2) (a) of the Constitution which states that, in case of compulsory acquisition of property, prompt payment of fair and adequate compensation shall be made”. This provision buttresses my decision that the law makers knew that the granting of mining licence by the Minister is same as compulsory acquisition of those lands. As I said earlier law makers do not choose words for nothing sake. The constitution as well as Act 703 used the same terminology “compulsory acquisition”. We cannot therefore interpret the two differently to favour one group of people as against another group when they fall in the same circumstances before the law.

I agree with counsel for the appellants that Section 75 (1) & (2) of Act 703 are a fetter to the constitutional rights of the plaintiffs. On that ground of appeal, I hold that both courts erred in holding that the grant by the minister is not “Compulsory acquisition” I do not fault them because for a very long time that was the impression and meaning put to those two laws.

I hereby uphold the arguments of the Appellants and grant that ground of appeal. Further to that, I hold that Section 73 (3) and 75 (1) (2) of Act 703 are inconsistent with and are in contravention of Article 20(2) (a) of the 1992 Constitution and therefore unconstitutional and invalid. It violates the constitution and therefore invalid and void and of no legal effect.

ARTICLE 1 (2) OF THE 1992 CONSTITUTION
“(2) This Constitution shall be, the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.

I recommend that Sections 73 (3) and 75 (1) (2) of Act 703 be struck down as unconstitutional.
OWNERSHIP/ALLODIAL TITLE
The next issue to look at is the ownership or allodial title of lands so acquired by the State either by compulsory acquisition or grant of mineral leases to third parties.

Where a property of a subject has been compulsorily acquired by the State (government), the right of the subject to the property is neither diminished nor extinguished, but it is compulsorily changed in form and the subject can still maintain a claim for compensation against the government or for leases, the company or that body to whom the lease is granted.

Whenever land is acquired compulsorily by the State as per Article 20 or licence issued by the Minister for lease to mine, as in the instant appeal in which I held was also compulsory acquisition, the owner’s cause of action is for compensation either against the State or the mining company in mining leases. The procedures for each of them are specifically stated in the constitution as well as the Minerals & Mining Act.

See also Mensah-Moncar vrs. Chainartey [1972] 2 GLR 293.

COMPENSATION PROCEDURES
In the instant appeal, the Plaintiffs’ assertion is that the State compulsorily acquired their land as I agreed with them, then anything to do with the compensation should be held against the State and not the Defendants. Their cause of action, if any, will be against the State and not the Defendants and I hold so.

Section 75 of Act 703 has laid down the procedure in seeking redress when a party is dissatisfied with compensation paid by the holder of a mineral right. It reads:
“Access to the court in respect of compensation
1. The owner or lawful occupier of land affected by a mineral right shall not apply to the High Court for determination of compensation to which the person is entitled unless the person is dissatisfied with the terms of compensation offered by the holder of the mineral right or as determined by the Minister under Section 73(3) of 73(5) (b).

2. The person entitled to be compensated or the holder of the Mineral right may apply to the High Court for a review of a determination by the Minister under Sub-section 73(3) or 73(5) (b).

3. In proceedings brought before the High Court under sub-section (2), the High Court shall be exercising its supervisory jurisdiction.
The effect of these is that, an aggrieved subject when it comes to compensation paid by a “holder of a mineral right” must first report to the Minister and if still not satisfied before he goes to seek redress in the High Court. The aggrieved subject cannot go to the High Court as a first choice for remedy. The jurisdiction of the High Court is ousted until the domestic processes provided by the Act have been exhausted. This is in contrast with the right of a subject in the case of a compulsory acquisition by the State. In the instant appeal, I am of the view and so hold that the acquisition of the appellants land was compulsory acquisition, same as described in Article 20 of the 1992 Constitution. In effect, the Appellants were right in seeking redress of their rights to fair and adequate compensation at the High court. The appellants had a cause of action when they invoked the original jurisdiction of the High Court.

The question however is, who the cause of action was against? If the appellants were of the belief that their lands were compulsory acquired, as I agreed with them in this judgment, than their cause of action must be against the State and not the Defendants. The appellants should have instituted this action against the Attorney General. They were wrong in instituting the case against the defendants. I hold that the appellants had no cause of action against the defendants and their action must fail. Though the appellants were right is seeking redress at the High Court, they instituted the action against the wrong party and so their action must fail. The High Court, but for this error in holding that the acquisition was not compulsory acquisition should have addressed this issue and dismissed the appellants’ case as establishing no cause of action against the defendants. Order 11 r (18) of C.I.47.

Order 11 r (18) (1) of C. I. 47
1. The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that ;
a. It discloses no reasonable cause of action or defence or
b. It is scandalous, frivolous or vexatious or
c. It may prejudice, embarrass, or delay the fair trial of the action or
d. It is otherwise an abuse of the process of the court and may order the action to be stayed or dismissed or judgment to be entered accordingly.

2. No evidence whatever shall be admissible on an application under sub-rule (1) (a).
Its trite law that such pleadings be struck out promptly and timeously. See Oblie Nartey v. Nettas Properties [2015-16] SCGLR.

GROUND RENT
One of the grounds of appeal by the Plaintiff to the Court of Appeal was that as usufructuary owners, they deserve to be paid ground rent.

Section 23(2) of Act 703 on Ground Rent states:-
23- Annual Ground Rent:-
1. A holder of a mineral right, shall pay an annual ground rent as may be prescribed.
2. Payments of annual rent shall be made to the owner of the land or succession and assignor of the owner except in the case of annual ground rent in respect of mineral right nor stool lands, which shall be paid to the office of the Administrator of stool land, for application in accordance with the office of the Administrator of Stool Lands Act 1994 (Act 481).
In the instant appeal, from the record of appeal, counsel on both sides put conflicting interpretations on Section 23(2) of Act 703, hence I reproduced the section above.

The crux of the issue is the meaning of the word “owner” of the land to whom payments of annual ground rent shall be made.

From the evidence before us, the Defendants paid ground rents to the Administrator of Stool lands. Payment of annual ground rent is made to the owner of the land or his successors in title by the holder of a mineral right except where the payment is in respect of annual ground rent of mineral rights over Stool lands which shall be paid to the office of the Administrator of Stool lands. – Sir Dennis Dominic Adjei [2017] Land Law, Practice & Conveyancing in Ghana 2nd Ed. Pg. 349.

The learned Jurist went on further that according to Section 23 of Act 703, where the lands are owned by individuals or families and the lands are not Stool lands, the annual ground rent shall be paid to the owners of the lands and their successors and assigns. On the other hand, where it is on Stool land, the ground rent shall be paid to the Administrator of Stool Lands and to be disbursed in accordance with the law. It is very important to resolve the ownership of the land so as to decide the rightful person or entity to be paid the ground rents by the holder.

The plaintiffs in their statement of claim averred that they are citizens of Akyem Kotoku in the Eastern Region of Ghana. The first relief of the plaintiffs from their writ of summons states;-
i. A declaration that the Plaintiffs, the usufructuary land owners of portions of Lands at Afosu, Yaayaso, Mamanso, Adausen: and Hwekwae are the persons the Defendant, Newmont Golden Ridge Company Limited, shall pay annual rents provided under Section 23(2) of the Minerals and Mining Act, 2016 (Act 703);

The plaintiffs claim for payment of annual grant rent is based on their assertion that they are the usufructuary owners of the land which falls within the land over which the Government of Ghana has granted the defendant mining rights under the Minerals and Mining Act, 2006 (Act 703). This claim by the Plaintiffs is confirmed by their relief ‘i’ endorsed on the Plaintiffs’ amended writ of summons. Counsel for the Respondent in response to this asked, who is usufructuary owner of the land at customary law? He submits that it is trite law that at customary law, the land in which subjects exercise usufructuary interest remains Stool land.

Counsel referred this court to Sir Dennis Adjei’s book (Supra) where he stated that “Usufructuary interest is an interest a clan, family or an individual who are subjects of a stool may acquire from the land where the allodial interest is vested in the stool.” The jurist explains that one of the characteristics of the usufructuary interest is that the holder of such interest claims through someone who is the allodial owner, that is the stool. In other words the fact that the subject exercises usufructuary interest on a stool land does not make the usufruct the owner of the absolute title in the land.

Counsel contend that the Plaintiff in their amended statement of claim as well as relief “i”, concede they are subjects of the Akyem Kotoku Stool and as usufructs “generally eke their livelihood from farming on the land”. As such, as usufructs of the Akyem Kotoku Stool, plaintiffs are not owners of the Stool lands on which they are eke their livelihood from farming.
By Section 23(1) of Act 703, a person who has been given a mineral right shall pay annual ground rent. Subsection (2) of Section 23 stipulates the person to whom such ground rent shall be paid.

In effect since the land is stool land and the Plaintiffs described themselves as having usufructuary interest in the Akyem Kotoku Stool Lands, they are not by the Act entitled to be paid ground rents but the stool and therefore to the Administrator of stool lands. The Plaintiffs’ action in respect of the reliefs “i” and “ii” in light of Act 703 must fail. This is because they are not the stool and are not the right people to sue or institute this action. The court cannot grant them those reliefs because in doing so will be in breach of statute. The Court has a duty to uphold the law rather than condone its breaches. Any act of the court that is contrary to a statute is, unless otherwise expressly or impliedly provided a nullity.

See i. Agbeko vrs the Republic [1977] 1 GLR 408
ii. Adjei vrs The Republic [1977] 1 GLR 156
iii. In Republic vrs High Court (Fast Track Division) Accra
Exparte National Lottery Authority [2009] SC GLR 390

As I said earlier, from the evidence before us, the Defendants paid the ground rents to the Administrator of the Stool lands, meaning the land belongs to the Stool. The plaintiffs if they do not agree with this have the right to issue a fresh writ to that effect against the Administrator, joining the Defendants. This opens the window for them to establish the true ownership of the land to clear any doubts as to ownership. Aside the plaintiffs own averment in their pleadings that they are usufructuary right owners of the land, there is no clear evidence on record as to how the Defendants got the information that the land was stool land and so decided to pay ground rents to the Administrator. The Plaintiffs in that fresh suit will have to lead evidence to establish the true ownership of the land. Until that is done and the rightful owner, different from the stool is established, the Plaintiffs cannot stop the Defendants from paying ground rents to the Stool Administrator.

The Court of Appeal has elaborated so much on the concepts of allodial and usufructuary rights and so there is no need for this court spending more time on same since we are in agreement with all that the court said in its decision on the issue.

On this issue of payment of ground rents, the Court of Appeal delivered itself thus:-
“Having closely examined the record in this appeal, I am of the opinion that the learned trial judge erred in law by dismissing the Plaintiffs action on the basis that as alleged usufructuary owners, they are not entitled to be paid ground rent and for that reason lacked the requisite capacity. Under the circumstances, the Plaintiffs claim for ground rent cannot also be described as frivolous or vexatious or an abuse of process”.

The Court of Appeal concluded that the dismissal of the Plaintiff’s action was against the weight of the affidavits evidence and that the trial judge also erred in law and these have indeed caused a miscarriage of justice. Accordingly, the appeal was allowed on that ground – [page 416 ROA]

I beg to disagree with the Court of Appeal. Ownership of land cannot be established by affidavit evidence. The Plaintiffs never led any evidence to show they were the owners of the land and therefore deserve to be paid ground rent. As I said earlier, if they claim they are the ‘owners’ then they have to issue a fresh writ to establish same. In the absence of any evidence to establish their ownership, the trial court never erred in dismissing their claim of ownership and the right to be paid the ground rent.

COMPENSATION
In the instant appeal, the Plaintiff’s in their statement of claim admit they were paid compensation pursuant to the provision of Act 703 for the disturbance of surface right by the Defendants. The crux of the Plaintiffs’ action was that they are not satisfied with the quantum of the compensation paid them, hence they seek enhanced compensation. There is evidence before this court that the Plaintiffs and the defendants sat down, discussed the compensation and signed an agreement before the payment. This is the “Compensation share Agreement.” See pages 129-139 of the Record of Appeal.

There is also a schedule of Compensation Sharing and receipt of full payment. All these were duly signed by the various representatives of the communities affected by the lease – [page 135 of ROA]. Furthermore there is a “Crop Compensation Agreement with property owners / lawful occupiers” document duly signed by the plaintiffs and their representatives – [page 137 ROA]. There is also the Crop Compensation Receipt, Annex B, duly signed – [page 140 ROA]

With all these agreements duly signed by the plaintiffs, it beats our imagination that after receipt of payments they will turn round to complain about the quantum. It is abundantly clear from the evidence before this court that the compensation for the disturbance of the rights of the Plaintiffs in respect of their lands have been assessed and paid them as far back as 2010 in accordance with the provisions of Act 703. The Plaintiffs’ action must therefore fail since they were parties to the Compensation Agreements entered into by both parties before payments were effected. They cannot now resile or complain about the amounts paid. By Section 73(3) of the Act, the amount of compensation payable for disturbance of surface right must be agreed between the parties. There is evidence on record that in fulfilment of this condition, the Defendants and Plaintiffs set up a Compensation Negotiation Committee made up of representatives selected by the Plaintiffs from their various communities.

It is our view that it is too late in the day for the Plaintiffs to resile from the agreements they voluntarily accepted and signed. The Plaintiffs are therefore estopped by law from demanding enhanced compensation having already received compensation for the disturbance of their surface rights as far back as 2010. It is clear the Plaintiffs’ action was bound to fail because having requested and received payments under Section 73 of Act 703, they are estopped from demanding more compensation beyond that agreed onto.

CONCLUSION
The Court of Appeal in its judgment allowed the appeal in part, holding that the trial ought to proceed with reliefs a, b & d endorsed on the Plaintiffs amended writ of summons. The Court of Appeal also recommended that the trial be conducted by the High Court differently constituted. For ease of reference, I shall reproduce reliefs a, b & d:

a. A declaration that the Plaintiffs, the usufructuary land owner of portions of Lands at Afosu, Yaayaso, Mamanso, Adausen: and Hwekwae are the persons the Defendant, Newmont Golden Ridge Company Limited, shall pay annual rents provided under Section 23(2) of the Minerals and Mining Act, 2016 (Act 703);

b. An order of the Court to compel the Defendant to pay the accumulated Annual Rents to the Plaintiffs from 2010 to the year of judgment;

d.Cost.

 

ARTICLE 129 GENERAL JURISDICTION OF SUPREME COURT

129 (1) The Supreme Court shall be the final court of appeal and shall have such appellate and other jurisdiction as may be conferred on it by this constitution or by any other law.

(2) The Supreme Court shall not be bound to follow the decisions of any other court. Among other;

The Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.

The Supreme Court as an appellate court may reverse findings of a lower court where they are based on a wrong proposition of law, or rule of evidence or that the findings are inconsistent with documentary evidence on record. See PROF, STEPHEN ADEI & 1 OR VRS. GRACE ROBERTSON & SEMPE STOOL – CIVIL APP NO. J4/2/2015, delivered on 10th March, 2016 per PWAMANG JSC.

With all due respect, we do not agree with the findings of the Court of Appeal and therefore reverse the consequential orders so made by it. From the analysis, we find that the land involved is Akyem Kotoku Stool Land and the Plaintiffs are usufructuary interest holders and so not the rightful people to be paid ground rents but the Stool and we hold so. The High Court cannot compel the Defendants to pay any accumulated ground rents to the Plaintiffs from 2010 to the year of judgment. The plaintiffs also deserve no costs.

In the exception of ground (ii) of the appeal which succeeds, all other grounds lack merit and same are dismissed.

The appeal therefore succeeds in part.

(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)

 

COUNSEL

SIR S. ASANTE ANSONG ESQ. FOR THE PLAINTIFFS/APPELLANTS/
APPELLANTS WITH HIM ABIGAIL OFORI APPIAH ESQ.

KIZITO BEYUO ESQ. FOR THE DEFENDANT/RESPONDENT/RESPONDENT
WITH HIM EDEM NUHOHO ESQ. AND JOSHUA MBOWURA ESQ.