HIGH COURT, SEKONDI
Date: 12 JUNE 1975
EDUSEI J
CASES REFERRED TO
(1) Marbury v. Madison 1 Cranch 137; 2 L.Ed. 60 (1803).
(2) Republic v. Maikankan [1973] 2 G.L.R. 384, C.A.
NATURE OF PROCEEDINGS
APPLICATION for an order to compel the Lands Commission to give its consent and concurrence to an assurance of stool land. The facts are fully set out in the ruling.
COUNSEL
Applicant in person.
A. D. Tagoe, State Attorney, for the respondents.
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JUDGMENT OF EDUSEI J.
This is an application by applicant to order the respondents to consent or concur in the assurance of land situate at Ebolo Adwoba on Samenyi stool land in Western Nzima. The Lands Commission, the respondents herein, have refused to give their consent to a conveyance executed by the applicant, as the grantee, and the stool of Samenyi in Western Nzima, as the grantors. This grant was confirmed by the Omanhene of Western Nzima. The grant covers an area of 320 acres.
In order to appreciate the ruling about to be delivered, I shall set out in extenso some of the paragraphs of the affidavit in support of the application, which I consider very material. These averments have not been denied by the respondents. The paragraphs are as follows:
“(2) I am Nzima by birth.
(3) Since 1965, I have given free legal aid to the stool of Samenyi, a town in Nzima in the Western Region.
(4) The aid I have been giving to the said stool includes both contentious and non-contentious matters, the most recent one being Akye Erzuah v. Nana Ahwa Anyimah, chief of Samenyi in which judgment was given in favour of Nana Ahwa Anyimah by the High Court, Sekondi, on 27 November 1974.
(5) As a matter of fact, Nana Ahwa Anyimah II, the chief of Samenyi is my cousin. I am therefore, indeed by customary law entitled to till any part of uncultivated forest land belonging to the Samenyi stool without the consent of anyone.
(6) However, in 1968, the oman of Samenyi in appreciation of my services decided to make a formal grant of a part of the stool lands to me.
(7) The stool lands of Samenyi are very vast. At present, the uncultivated forest is well over 25,000 acres.
(8) Nevertheless, I specified that I did not need any land above 350 acres. Consequently, the stool made a grant of approximately 320 acres, out of which I have utilised about 30 acres for a coconut farm.
(13) By a letter dated 19 September 1969, the Lands Department, Sekondi, wrote to inform me that concurrence to the transaction has been refused. A copy of the letter is attached and marked BB.
(14) I pointed it out to the Lands Department, Sekondi, that the letter was unreasonable and oppressive since I could give them several instances where total strangers have been granted lands of over 2,500 acres with the concurrence of the Land Department.
(15) Thereafter, the Lands Department asked me to submit the conveyance so that they could reconsider the position. I did so.
(16) By a letter dated 1 May 1973, the Lands Department, after sitting on my conveyance for nearly four years, then wrote to me to say that the Lands Commission has refused concurrence. A copy of the letter is attached and marked CC.
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(17) It is a national policy that land acquisition should be as simplified and cheap as possible so as to aid and accelerate agriculture.
(18) The stand taken by the Lands Department, Sekondi, and the Lands Commission cannot be reconciled with this national policy.
(19) More specifically, the refusal to consent and concur in the grant to me is very discriminatory; having regard to the fact that large grants covering several thousand acres have been concurred in, the refusal to do so in my case which covers only some 300 acres is unreasonable and unjust.
(20) In any case, my services to the stool, in the opinion of the oman and elders of Samenyi are invaluable.”
It is clear that the applicant, first and foremost, is a citizen of Samenyi, being a cousin to the occupant of the stool of Samenyi. It is also evident that the land is for the development of agriculture, and it is also manifest that 30 acres of the said land has been cultivated into a coconut plantation.
The deed of gift, dated 28 December 1968, was made by the stool of Samenyi to the applicant herein in appreciation of his free legal services to the stool which, if converted into hard cedis and pesewas, would have been very large sums of money that might have impoverished the stool. What was given to the applicant as revealed in the conveyance was a usufructuary or determinable interest in land, and as a citizen of the stool of Samenyi there is nothing untoward about it if consideration is given to the fact that the land covers an area of only 320 acres-a half square mile. The absolute ownership in the land still remains in the stool of Samenyi. The applicant being a subject of the stool has an inherent right to this title in stool land and he becomes vested with it by grant, express or implied. Ollennu in his book, Principles of Customary Land Law in Ghana states at pp. 54—55:
“The determinable estate, as already stated, is just a qualification or burden on the absolute or final title. It has co-existence with the absolute ownership. It is the most perfect estate which a subject or member of the family or community may have in communal, tribal or stool land. Its existence is concurrent with the existence of the absolute ownership, which latter is generally dependent upon the occupation or possession by the subject.
So long as the subject acknowledges his loyalty to the stool or tribe, his determinable title to the portion of stool land he occupies prevails against the whole world, even against the stool, community or tribe.
The subject has an inherent right to this title in stool land; he becomes vested with it by grant, express or implied. In the case of agricultural land he is vested mostly by implied grant, i.e., by occupation and development… By custom, a subject obtains nothing less than a determinable title in vacant stool or tribal land which he occupies.
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The subject’s occupation of the land and his acquisition of the title is not by contract—he cannot contract for a lesser title, and the stool or tribe has no right to grant him anything less than the title which custom of the land allows him. It is therefore ridiculous to suggest that when he occupies the land upon express grant he obtains something less than determinable estate, i.e., farming right, but if he occupies without express grant he obtains the better title—the determinable title. Whatever title, therefore, a stool or tribe purports to grant to a subject must be deemed to be the determinable estate … It is, therefore, enough only to say at this stage that the subject’s right to obtain the determinable title in stool land is an inherent right inseparable from his birth; it does not arise out of any contractual relationship. Therefore, whether the subject obtained possession of stool land upon actual or presumed grant, he acquired an estate inferior only to the absolute ownership.”
(The emphasis is mine.)
This expression of the principle of customary land law makes clear the position of the applicant, and the suggestion made by the Lands Commission in their letter of 19 December 1969 that “Consideration may, however, be given to a lease at a reasonable rent” is to give him something less which will be the creation of a contract. For after all, a lease is a contract of land. In effect, such a lease can only give the applicant farming rights which is less than a determinable or usufructuary title. And this is contrary to the customary law position of the applicant as a citizen or subject of the stool.
It is quite clear from the conveyance that customary grant was made to the applicant by the Samenyi stool and the document was “to evidence the said transaction described herein, and to secure the confirmation of their Omanhene, the confirming party.” It is also patent from the affidavit of the applicant that in order to develop the land in a husbandmanlike manner, he requires a loan, and no bank whether the Agricultural Development Bank or the Ghana Commercial Bank, would give such a loan without seeing the document giving title in the land to the applicant. The Agricultural Development Bank always insists on seeing the document of title before considering an application for a loan for an agricultural development. And the document must have the concurrence of the Lands Commission before it can be considered a perfectly legal document by the bank that may grant the loan.
It is provided in article 164 (3) of the 1969 Constitution as follows: “An assurance of stool land to any person shall not operate to pass any interest in or right over any stool land unless the same shall have been executed with the consent and concurrence of the Lands Commission . . . “ This provision in the suspended: Constitution of 1969 has been saved by the Lands Commission Decree, 1972 (N.R.C.D. 24). Indeed, without the required consent or concurrence by the Lands Commission, no interest whatsoever can pass to the applicant and it is therefore necessary for the Lands Commission to give the said consent. I know that the management
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of stool lands in the country is given to the Lands Commission, and in the course of performing their duties, they must exercise their power or discretion judicially and judiciously but not capriciously. The applicant herein is a subject of the stool and by customary law is entitled to a determinable estate in the stool land, and which the stool has granted him for his loyal services to the said stool. I find it difficult to appreciate any reason for the refusal of the Lands Commission; in fact no reason was stated in either of their two letters to the applicant. I would have gone the whole hog with the Lands Commission if the applicant had been a stranger who wanted a parcel of land to farm because, as a stranger to the stool, he can have farming rights only, though I am aware of cases where stools have, in the past, sold large parcels of land to strangers. In the case of a stranger, he would enter into a tenancy agreement with the stool and the conditions upon which the grant is made will appear in the lease or agreement, and since the Lands Commission are charged with the responsibility of managing stool lands for the benefit of stool subjects they must see to it that a grant does not operate to the disadvantage of the stool and its subjects.
Counsel for the Lands Commission, Mr. Tagoe, stated that “a stool can grant land ‘in fee simple’ to an individual or family, and this was done by the Ga state to the Ankrah family and concurrence given. But an individual who gets 320 acres is getting too much as in this case.” Here counsel, in using the expression “in fee simple,” was in fact referring to the determinable or usufructuary title. If a concurrence was given by the Lands Commission to an assurance of stool land by the Ga state, I fail to fathom the reason for refusing concurrence to a subject of a stool who, for his loyal services to the stool, has been granted a parcel of land of only 320 acres for the cultivation of a coconut plantation. I do not consider an acreage of 320 to be too large or extensive for a coconut plantation.
Mr. Tagoe further based his opposition to the application on “the fact that any grant in excess of 25 acres to a native should be by way of concession. The Administration of Lands Act, 1962 (Act 123), made certain regulations which make a grant of more than 50 acres to an individual void.” No regulations were produced to the court nor was any statute making the grant of agricultural land of more than 25 acres to an individual the subject-matter of a concession inquiry shown to me.
My own researches have revealed that the limitation of acquisition of land is rather placed on mining and timber rights. However, section 12 (2) of the Administration of Lands Act, 1962 (Act 123), stipulates:
“No grant of any Stool land to any one person and no aggregate of such grants shall exceed the following limits, that is to say,
(a) mining rights, twenty square miles for any grant or, in the aggregate, sixty square miles,
(b) timber rights, forty square miles for any grant or, in the aggregate, two hundred and forty square miles,
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(c) rights to collect rubber, to cultivate products of the soil (other than timber) or relating to the pursuit of animal husbandry twenty-five square miles for any grant or, in the aggregate, one hundred square miles.”
(The emphasis is mine.)
Here it is provision (c) that is applicable, and the limit of land for the cultivation of products of the soil (other than timber) and which includes the cultivation of coconut is 25 square miles or 16,000 acres but the applicant’s grant is a mere acreage of 320. Even where the limits prescribed by section 12 (2) appear “prejudicial to the national interest or to the interest of any stool,” the government may direct the limits to be exceeded: see section 12 (3) of Act 123 as amended by the Administration of Lands Act, 1962 (Amendment) Decree, 1968 (N.L.C.D. 233).
The policy of self-reliance which has become the bedrock principle of the government of the National Redemption Council has as its offshoot the “Operation Feed Yourself Programme.” The rationale behind this concept is to encourage Ghanaians to go to the land and grow food for our consumption instead of spending large sums of valuable foreign exchange for the importation of food that can be grown in our rich soils. The latest addition to this idea of doing things for ourselves is the “Operation Feed Your Industries.” In simple language, industries that require raw materials in this country must grow such raw materials themselves and not rely on foreign countries. This message is not directed to the factories only, it is indeed the government policy that we the citizens of this country must make every determined effort to grow our raw materials that our factories need for the manufacture of finished products. Such a step will also preserve for us foreign exchange earnings that may be required for other articles that cannot be produced locally. If this is so, then individuals should be encouraged to make farms of diverse kinds. The applicant’s land granted to him by his stool is for the cultivation of coconut which will help feed the Asiama Oil Mill in that area. I think such a person must be given every encouragement, and nothing must be done to kill his interest. As evidence of his good faith to develop the land into a coconut plantation he has, out of his own resources, cultivated 30 acres of the 320 acres, and he requires a substantial financial assistance from the Agricultural Development Bank to develop the remaining 290 acres. Why should the Lands Commission try to kill the interest of this young man and thereby to thwart the agricultural revolution of the times? If the Lands Commission are in doubt as to the purpose for which the land is to be used, they can, in giving their consent and concurrence, stipulate that the land should be used solely for development of agricultural product, and the applicant has indicated that he has no objection to such a limitation.
Counsel for the Lands Commission raised another point which I consider to be of great constitutional importance since it hinges on the right and liberty of the individual citizen. His contention is that the
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application to the court is misconceived and that the proper procedure was for the applicant to have complied with the provisions of section 2 (4)-(6) of the Lands Commission Act, 1971 (Act 362). The provisions of subsection (4) require the aggrieved person who desires to appeal against the refusal of the Lands Commission to give consent and concurrence, to serve a request in writing on the commission to state a case for the consideration of the High Court. The commission shall, within fourteen days after receipt of such a request and upon payment by the applicant of 5.00, state a case and transmit the case to the High Court and serve a copy thereof on the applicant. Subsections (5)-(7) are as follows:
“(5) The case stated shall set forth the decision of the Commission appealed against and the. facts and reasons on which the decision was based and such other matters as the High Court may direct.
(6) Within twenty-eight days after service on him of a copy of the case stated under subsection
(5) of this section the person at whose instance the case was stated shall file a motion in the High Court setting forth his objections to the decision of the Commission and the grounds for such objections and serve a copy of such motion on the Commission and on all parties (if any) to the proceedings before the Commission.
(7) The High Court may on any appeal under this section confirm, reverse, or amend the decision of the Commission appealed against or order the decision to be sent back to the Commission for amendment or otherwise make such orders and give such directions as the justice of the case may require.”
The applicant’s reply to this submission, he said, is contained in the second leg of article 164 (3) of the 1969 Constitution which is still operative by virtue of Lands Commission Decree, 1972 (N.R.C.D. 24). It reads “ . . . and where the Commission fails or refuses to give any such consent and concurrence any person aggrieved by such failure or refusal may appeal to the High Court of Justice.” The applicant has contended that no power is given to either Parliament or the Lands Commission to make rules or regulations governing appeals to the High Court. The only requirement of the Constitution is that the aggrieved person may appeal to the High Court for redress.
It is quite plain that under the provisions in Act 362, the aggrieved person is required to serve a letter of request on the commission and pay 05.00 before a case will be stated to the High Court by the commission. But under article 164 (3) of the 1969 Constitution, the aggrieved person, like the applicant, can appeal direct to the High Court. The two provisions in the Act and the Constitution conflict. What then is the legal position?
I think it is pertinent here to advert to the classical statement of Marshall C.J. of the United States Supreme Court in the case of Marbury v. Madison 2 L Ed. 60 at p.73 (1803). The learned Chief Justice said:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
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must of necessity expound and interpret that rule. if two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”
Be that as it may, this great principle is enshrined in our 1969 Constitution, for article 1 (2) states: “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 and of no effect.”
It therefore follows that since the provisions in subsections (4)-(7) of section 2 of the Lands Commission Act, 1971, are in conflict with article 164 (3) (the second leg) they are to that extent void and of no effect. The provision in article 164 (3) is supreme and the applicant exercised his constitutional right by coming to the High Court. And I may add that the framers of the Constitution in their wisdom made this specific provision, undoubtedly, for the protection of individuals like the applicant, and they did not consider it reasonable or expedient for an aggrieved to go through the procedure laid down in the Lands Commission Act of 1971.
I am fortified in this my view by the decision of the Court of Appeal in Republic v. Maikankan [1973] 2 G.L.R. 384. It is provided by section 10 (5) of the Courts Act, 1971 (Act 372), that “Any person aggrieved by any interlocutory order or decision [of] the High Court … may appeal to the Court of Appeal … with the leave of the High Court or the Court of Appeal.” But article 110 (2) of the 1969 Constitution says that “an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.” It is to be observed that the two provisions of the Courts Act, 1971, and the Constitution are dramatically opposed to each other. The court held that the provisions in section 10 (5) of the Courts Act, 1971, requiring leave before an appeal could be lodged were in conflict with the provisions of article 110 (2) of the 1969 Constitution and therefore unconstitutional. I must interpolate here that though the 1969 Constitution has been suspended since the National Redemption Council took over the administration of the country, they have by the National Redemption Council (Establishment) Proclamation, 1972, s. 4 provided as follows:
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“Notwithstanding the suspension of the Constitution, and until provision is otherwise made by law—
(a) all Courts in existence immediately before the 13 th day of January, 1972 shall continue in existence with the same powers, duties, functions and composition as they had immediately before that date . .
And the jurisdiction of the Court of Appeal is contained in article 110 of the Constitution. In the result, the point taken by Mr. Tagoe on behalf of the Lands Commission fails because the applicant under article 164 (3) has a right of appeal to this court direct.
I am inclined to agree with the applicant that the refusal of the Lands Commission to give its consent and concurrence in the particular circumstances of this case is “unreasonable and oppressive.” Finally, I rule that the applicant succeeds, and I order that the Lands Commission do give its consent and concurrence to the grant of land as contained in a deed of conveyance dated 28 December 1968. This order should be carried out within two months from today. I award the applicant 0100.00 costs against the Lands Commission.
DECISION
Application for order of mandamus against the Lands Commission granted.
Order accordingly.
K. S. N.D.
