REPUBLIC vs. REGIONAL LANDS OFFICER, HO; EX PARTE KLUDZE [1997-98] 1 GLR 1028

CASES REFERRED TO

(1) Kuenyehia v Archer [1993-94] 2 GLR 525, SC.

(2) Concession Enquiry No 1118 (Accra) [1961] 1 GLR 448.

(3) Okwan v Amankwah [1981] GLR 417.

(4) Amankwah II v Okwan, Court of Appeal, Accra, 10 January 1981, unreported.

(5) Tijani (Amodu) v Southern Nigeria (Secretary) [1921] AC 399; 90 LJPC 236, PC.

(6) Adegbero v Akintola [1963] AC 614; [1963] 3 WLR 63; [1963] 3 All ER 544, PC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant for inter alia, an order of mandamus to compel the respondent, the Regional Lands Officer, Ho to register his deed of gift evidencing the grant to him by his family of a freehold interest in a portion of the family land. The facts are sufficiently stated in the ruling.

COUNSEL

Prof AKP Kludze, the applicant, in person.

Miss Ellen Kwanwukume, Principal State Attorney, for the respondent.

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JUDGMENT OF ACQUAH JA.

This is an application seeking the protection of this court under article 33(1) of the Constitution, 1992 to compel the respondent to register the title deeds of the applicant.

The applicant is a member of the Amega Edze family of Gbi-Kpeme, Hohoe. The said family gifted a portion of its Kaleve family’s land to the applicant and executed the relevant deed to evidence the transaction. He presented his documents as required by law, to the respondent for registration, but the latter refused, stating: “ . . . that in line with the executive secretary’s circular letter No 720/Vol V dated 17 June 1995 your document cannot be processed as a freehold but rather as a leasehold. Your document is hereby returned, please.”

Naturally aggrieved by the above response, the applicant filed the instant application for mandamus to have his document registered as freehold. Moving his application personally, Prof Kludze reiterated the gravamen of his complaint as sworn to in paragraphs (9) and (12) of his affidavit as follows:

(9) That I am advised and verily believe same to be true that article 267(5) of the Constitution, 1992 which prohibits the creation of freehold interests in stool lands, does not apply to family lands, since family lands are not stool lands.

(12) That I believe that in any event, the said circular letter is ineffectual to the extent of its repugnancy to articles 18 and 20 of the Constitution, 1992 because the effect of the circular letter would be the curtailment of private property rights.”

The applicant contended that violation of articles 18 and 20 of the Constitution, 1992 are justiciable at the High Courts. Hence his resort to this court for the relief he seeks. He argues that as a member of this family, he has an inherent right to the use and enjoyment of his family’s property and to be granted any interest in a portion thereof by the head and principal members of his family. This right has not been taken away by the Constitution, 1992 nor any other enactment. He argues therefore that the circular seeking to curtail his property rights is not only devoid of any legal foundation but repugnant to the property rights of the [p.1032] of [1997-98] 1 GLR 1028 individual as guaranteed in articles 18 and 36(7) of the Constitution, 1992.

The respondent, represented by the principal state attorney, filed no affidavit in opposition to the application. Indeed, at the hearing, the learned principal state attorney honourably conceded that mandamus lies as requested, and that the respondent was wrong in refusing to register the document. She said that she advised the respondent to collect the document back from the applicant for registration, and that this had been done. She assured the court that the registration of the deed is in an advanced stage.

Now, notwithstanding the fact that the respondent has thrown in the towel, both parties have seen the need to determine the validity of that circular since it was forwarded to all regional secretariats of the Lands Commission. In this circular, the full text of which was furnished to the court, the executive secretary directed that all categories of family lands be processed for concurrence. In other words, for a grant affecting any family land to be valid in law, there should be statutory concurrence. The reason for this, as stated in the circular is:

“ . . . in article 36(8) of the Constitution, 1992 family lands have been grouped with public and stool lands as lands to be recognised in the economic objective of state policy as land held in fiduciary capacity by managers of such lands. The State’s role in this directive would certainly entail some kind of certification and revenue collection or monitoring.”

Now, article 36(8) of the Constitution, 1992 which is part of chapter 6 dealing with the Directive Principles of State Policy, reads:

“36. (8) The State shall recognise that ownership and possession of land carry a social obligation to serve the larger community and, in particular, the State shall recognise that the managers of public, stool, skin and family lands are fiduciaries charged with the obligation to discharge their functions for the benefit respectively of the people of Ghana,

[p.1033] of [1997-98] 1 GLR 1028 of the stool, skin, or family concerned and are accountable as fiduciaries in this regard.”

The language of the above clause is so clear and unambiguous that it would be atrocious to read into it what is not stated therein. As Francois JSC said in Kuenyehia v Archer [1993-94] 2 GLR 525 at 562. “In interpreting the relevant provisions of the Constitution, 1992 we must be very careful to avoid importing into the written document what does not appear therein . . . . Rules of construction do not permit a passage which has a clear meaning, to be complicated or obfuscated by any interpretation, however well intentioned.”

All what article 36(8) of the Constitution, 1992 does is to acknowledge and point out that all those who are in charge of public, stool, skin and family lands are trustees for the beneficiaries of such lands, and that such managers are accountable to the beneficiaries. Nowhere in the said clause is the State given any role of certification, revenue collection and monitoring. Neither does the clause curtail the interest of the beneficiaries of these lands in their respective lands.

Whenever the framers of the Constitution, 1992 desire to impose restrictions on the disposition, development or interest in any type of land, this is done in clear and unambiguous words. Thus article 267 of the Constitution, 1992 dealing with stool and skin lands, provide, inter alia:

“267. (3) There shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned . . .

(5) Subject to the provisions of the Constitution, no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest however described.”

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There are no similar provisions in the Constitution, 1992 affecting family lands. Neither does the definition of stool land in article 295(1) of the Constitution, 1992 cover family lands to warrant the extension of the restrictions in article 267 to family lands. What process of reasoning therefore led the executive secretary to direct the processing of family lands for concurrence, beats my imagination.

Now, the history of concurrence shows that the yardstick for determining whether a grant of an interest in a land ought to receive the necessary concurrence, has depended upon the definition of the types of land statutorily required to receive concurrence in respect of any grant thereof. Thus in Concession Enquiry No 1118 (Accra) [1961] 1 GLR 448, Adumua-Bossman J (as he then was) held that stool family land and family lands did not require concurrence under section 75 of the Local Government Ordinance, Cap 64 (1951 Rev); section 16(1) of the State Councils Ordinance, No 8 of 1952; and section 7 of the Stool Lands Control Act, 1959 (No 79 of 1959). For the expression “stool land” used in the said enactments had the same meaning and applied to public (ie Oman) or state stool lands as opposed to family or private stool lands.

The administration of Lands Act, 1962 (Act 123) continued the requirement of concurrence in respect of grants affecting stool lands. “Stool land” under Act 123 was defined in section 31 thereof, as: “Stool land” includes land controlled by any person for the benefit of the subjects or members of a stool, clan, company or community, as the cases may be and all lands in the Upper and Northern Regions other than land vested in the President and accordingly ‘stool’ means the person exercising such control.”

Since the above definition of stool land did not cover family lands, family lands were not processed for concurrence. Indeed, in considering the above definition in Okwan v Amankwah [1981] GLR 417, Okunor J pointed out that land in the possession of a chief could be of three kinds: first, land attached to the stool; secondly, lands owned by the chief for himself and the members

[p.1035] of [1997-98] 1 GLR 1028 of his immediate family (stool family land); and finally land which belonged to the chief personally. He then held, like Adumua-Bossman J (as he then was) in Concession Enquiry No 1118 (Accra) (supra) that the definition of stool land in section 31 of Act 123 could only refer to public or oman stool and not to family or private stool. J Okunor’s decision was upheld by the Court of Appeal: see Amankwa II v Okwan, Court of Appeal, Accra, 10 January, 1981, unreported.

The Constitution, 1969 likewise did not embrace family lands in its definition of stool land, and therefore the requirement of obtaining concurrence continued only in respect of grants affecting stool lands. For, article 172(1) of the Constitution, 1969 defined stool land, thus:

“Stool land includes any land or interest in, or right over, any land controlled by a stool or skin, the head of a particular community or the captain of a company for the benefit of the subjects of that stool or the members of that community or company; and stool includes a skin and the person or body of persons having control over stool land.”

It was not till the coming into force of the Third Republican Constitution, 1979 that the definition of stool land was couched to cover family lands. Article 213(1) of the Constitution, 1979 provided: “[S]tool land” includes any land or interest in, or right over, any land controlled by a stool, the head of a particular community or a family for the benefit of subjects of that stool or the members of that community or family.”

(The emphasis is mine) Following the above definition, grants affecting family lands were required to receive the concurrence of the Lands Commission with effect from the coming into force of the Constitution, 1979. And the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) which repealed the Lands Commission Act, 1980 (Act 401) followed the definition in the Constitution, 1979 and defined stool land to include family lands. Sections 63 and PNDCL 42 defined stool land to include:

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“any land or interest in or right over, any land controlled by a stool, the head of the particular community, including a family as known to customary law for the benefit of the subjects of that stool or the members of that community.”

Now, the word “family” appearing in the above definitions of ‘stool land’ did not even imply that grants involving private and single family lands needed concurrence. The word “family” was used in place of the word “clan.” Thus the Court of Appeal in Amankwa v Okwan (supra) held that to interpret the word family as appearing in the definition to cover single family lands would deprive individual citizens of their rights to their family land. Edward Wiredu JA (as he then was) said:

“I am of the view that to interpret family land in its narrow acceptation of that word as the true meaning of that word within the language of article 190 would produce a palpable injustice . . . In my view it would be a case of injustice to resort to an interpretation which would deprive individual citizens of their rights to their family lands.”

Apaloo CJ in his contribution also said:

“The only way to interpret ‘any land controlled by the head of a family for the benefit of the members of that family’ as used in article 213 of the Constitution, 1979 to conform with the law, established usage and avoid an injustice, is to give it the same meaning as ‘land held by the head of a community for the benefit of members of that community.’”

PNDCL 42 was repealed by the Constitution, 1992 which reproduced the Constitution, 1969’s definition of stool land. Article 295(1) of the Constitution, 1992 defines stool lands as:

‘‘‘stool land’ includes any land or interest in, or right over, any land controlled by a stool or skin, the head of a particular community or the captain of a company, for the benefit of the subjects of that Stool or the members of that community or company.”

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This definition, as already pointed out, is the very definition of stool land in article 172(1) of the Constitution, 1969 in respect of which family lands were not in 1969 processed for concurrence. There can therefore be no justification why the same definition of stool land appearing in both the Constitution, 1969 and 1992 be treated differently under the latter Constitution. The word “family” does not appear at all in the definition of stool land in both the 1969 and 1992 Constitutions. The definition of stool land in these two Constitutions is reminiscent of that of Lord Haldane in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 410, which reads:

“Their Lordships doubt whether any really definite distinction is connoted by the expression ‘stool lands’. It probably means little more than lands which the chief holds in his representative or constitutional capacity as distinguished from land which he and his own family held individually.”

To demand statutory concurrence therefore, in respect of grants affecting family lands is an absolutely unlawful demand which cannot be justified on any provision of the Constitution, 1992. It is a demand without jurisdiction and therefore a nullity. Accordingly, the executive secretary’s circular that all categories of family lands be processed for concurrence is not only palpably misconceived in view of the plain language of article 295(1) of the Constitution, 1992 but subversive of the constitutional rights of the individual to his family lands. The circular leads to the ridiculous conclusion that a grant affecting the self-acquired land of an intestate needs the concurrence of the Lands Commission to make same valid.

There is nothing to suggest, even remotely, that article 36(8) of the Constitution, 1992 calls for concurrence in respect of grants affecting family lands. The article simply draws attention to the fiduciary nature of the responsibility imposed on managers of public, stool, skins and family lands. In the case of family lands this has already been given the force of law in the Head of Family Accountability Law, 1986 (PNDCL 114).

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Let me venture to point out that with the coming into force of the Constitution, 1992 the previous law empowering concurrence can only be followed within the confines of the Constitution and not in its entirety as directed by the executive secretary in his circular under consideration. For as article 11(6) of the Constitution, 1992 provides:

“11. (6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

(The emphasis is mine.) Thus if the definition of stool land in the Constitution, 1979 or PNDCL 42 had embraced family land and therefore rendered grants affecting family lands to be processed for concurrence during those periods, such practices cannot continue to operate under the Constitution, 1992 in which the definition of stool land expressly and indisputably excludes family land. A Constitution as stated in Adegbenro v Akintola [1963] 3 WLR 63 at 73: “ . . . must be interpreted according to the wording of its own limitations and not to limitations which that wording does not import.”

In conclusion, I am satisfied that under the Constitution, 1992 no category of family land requires concurrence and that the limitation on freehold interest provided in article 267(5) thereof does not apply to grants in family lands. Accordingly, exercising my powers under article 33(2) of the Constitution, 1992 to protect the fundamental rights of the individual in his family land, I declare the executive secretary’s circular No 720/Vol V of 17 June 1993 a nullity. I order that the respondent furnishes a copy of this ruling to the executive secretary for his due compliance.

The application for mandamus thus succeeds with no order as to costs since the respondent honourably conceded to the claim. DECISION Application granted.

Endnotes

1 (Popup – Footnote) 1 same in original 2 (Popup – Footnote) 2 same in original