Land Law Questions

1. Read the Osu Manche Layout Case in light of Art 267(1) and art 258 of the 1992
Constitution. Has the Osu Manche Case resolved the issues of vesting and
compulsory acquisition?

Read the Supreme Court judgment on EI 108:

The prevailing thought was that EI108 had lapsed and other vesting instruments had
also automatically lapsed.
Has the judgment blurred the distinction between vested land and compulsorily
acquired land?

What is the continuing validity of EI108 in light of the Osu Manche Layout Case?

KEY LEGAL CONCLUSIONS OF THE COURT.

Pick the statement of case of the parties from the case.

a. That E.I. 108 issued under the authority of the Administration of Lands Act
1962 (Act 123), section 7, purported to vest the Osu Mantse Layout and other
stool lands within the Accra-Tema metropolis in the President of Ghana.

b. The legal position appears to be that upon the publication of the executive
instrument referred to above, the lands ceased to be stool land as defined in
s.31 of the Administration of Lands Act 1962 (Act 123).

c. The legal characterization of “vesting” under Act 123 section 7, appears to be

the same as under Article 267(1) of the 1992 Constitution, that is the
acknowledgement of the allodial ownership of land in a particular entity.

d. Allodial ownership of the sort being referred to under Article 267(1) and
s. 7 of the Administration of Lands Act, 1962, cannot be held
simultaneously in two distinct entities unless a joint ownership was
intended. The property in stool lands either vests in the President, or in
the stool. Now if Article 267 (1) provides, “ stool lands in Ghana shall vest
in the appropriate stool on behalf of, and in trust for , the subjects of the
stool in accordance with customary law and usage….” Then such lands
cannot simultaneously vest in the President even as a trustee of the
subjects of the stool. Therefore, after the coming into force of the 1992
Constitution on 7th January 1993, any statute or subsidiary legislation
which purports to vest in the President or Government, lands which are
still stool lands would run counter to Article 267(1) of the 1992
Constitution.

e. Question is what of lands that were once stool lands, but which had been
vested at some point, without any subsequent de-vesting by the President or
Government in favour of the original owning stool?

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 LEGAL EFFECT: The Supreme Court has no difficulty in
characterising stool lands that had not been vested in the President or
Government prior to Jan. 7th 1993 as stool lands that are considered as
vested in the respective stools under Article 267(1).

Even though such lands have been legally vested in the stool, Article
267(2) of the same Constitution directly establishes the Office of the
Administrator of Stool Lands whose functions are those of management,
revenue collection and disbursement; and whose authority covers all stool
lands.

Neither the stools ( Article 267(5) nor the Lands Commission 267(3) can
purport to create and transfer a freehold interest in stool lands to any
person without the consent and concurrence of the respective Regional
Lands Commission in which the particular land is situated.

CRITICAL:

A look at Article 258(1) (a) indicates that there are three basic categories
of lands entrusted to the management of the Lands Commission on behalf
of Ghana

i. Public Lands
ii. Lands vested in the President by the Constitution or any other law,
and
iii. Any lands vested in the Lands Commission itself

ACCORDING TO THE SUPREME COURT THE DISTINCTION

DRAWN BETWEEN LANDS VESTED IN THE PRESIDENT AND
PUBLIC LANDS PER THE RESPECTIVE DEFINITIONS GIVEN IN
ARTICLES 258(1) AND 257(1) IS PROBABLY OF HISTORICAL
SIGNIFICANCE ONLY. FOR LANDS COMPUSORILY ACQUIRED
PRIOR TO THE 1992 CONSTITUTION AND LANDS VESTED IN THE
PRESIDENT PRIOR TO THE 1992 CONSTITUTION BOTH VIEWED
AS PUBLIC LANDS

THE RULING OF THE COURT IS CAPTURED IN THE LAST TWO

PARAGRAPHS OF THE CASE.

2. Read the Nana Hyeaman v. Osei case

What is the effect of the SC judgment in the Osu Manche Layout Case on this case?

Determine whether the judgment in Nana Hyeaman v. Osei is still good law in view
of the Osu Manche Layout Case.

The plaintiff, the divisional chief of Gwira Banso in the Gwira Traditional Area,
instituted an action for the cancellation and setting aside of a timber lease of a

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parcel of land attached to his stool. Counsel for the defendant and co-
defendants, however, raised a preliminary objection as to the capacity of the
plaintiff to institute such an action on the ground that by virtue of the
Concession Act, 1962 (Act 124), particularly section 16 thereof, only the
President could institute such proceedings on behalf of the stools concerned.
Counsel argued in concert that the effect of the words "vested in the President
in trust for the stools concerned" used in Act 124, s. 16 was to take away the
tradition-clothed powers of chiefs over stool lands.
Held, dismissing the preliminary objection:
(1) the meaning of the words "vested in the President in trust for the stools
concerned" should be construed univocally in both the Concessions Act, 1962
(Act 124) and the Administration of Lands Act, 1962 (Act 123).  The provisions
were in pari materia and ought to bear the same construction.  An incisive
study of the provisions of the two Acts, however, disclosed nothing, open or
esoteric, in the two statutes which suggested, even faintly, that the legislature
by enacting that stool lands including those subject to existing or future
concessions should be vested in the President for the stools  concerned ,
intended that the stools should be denuded of their inherent rights to
ownership of stool lands. The statutory powers of the President ought to be
construed as running side by side with the powers of the stools as the allodial
owners of stool lands. Dictum of Lord Mansfield in R. v. Loxdale (1758) 1
Burr. 445 applied. Ofori Attah II v. Mensah (1957) 3 W.A.L.R. 32; B.P. (West
Africa) Ltd. v. Boateng [1963] 1 G.L.R. 232 and Frimpong v. Nana Asare
Obeng II [1974] 1 G.L.R. 16 cited.
Per curiam. It becomes obvious, if we adopt the purpose—oriented  policy of
statutory interpretation that the legislature had never had the intention of
depriving the stools of this country of their inherent right to ownership of stool
[p.496] lands, notwithstanding statutory provisions entrusting stool lands to
the President for the stools. This is made manifest by the fact that in one
statute, Act 123, there is provision in section 8 to the effect that stools can
make grant of stool lands even though the same lands may be entrusted to
the President.
(2) Under Act 124, stool lands could lawfully be taken away to a
concessionaire; but before such a process was brought into fruition, the right
of the stool to deal with the land in a manner not inconsistent with the
provisions of Act 123 still persisted. Consequently, the occupant of the stool
could, without any inhibition, challenge the validity of a purported concession
affecting his land.  The objection to the capacity of the plaintiff was therefore
untenable.

a. The legal characterization of “vesting” under Act 123 section 7, appears to be

the same as under Article 267(1) of the 1992 Constitution, that is the
acknowledgement of the allodial ownership of land in a particular entity.

b. Allodial ownership of the sort being referred to under Article 267(1) and s. 7
of the Administration of Lands Act, 1962, cannot be held simultaneously in

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 two distinct entities unless a joint ownership was intended. The property in
stool lands either vests in the President, or in the stool. Now if Article 267 (1)
provides, “stool lands in Ghana shall vest in the appropriate stool on behalf of,
and in trust for , the subjects of the stool in accordance with customary law
and usage….” Then such lands cannot simultaneously vest in the President
even as a trustee of the subjects of the stool. Therefore, after the coming into
force of the 1992 Constitution on 7th January 1993, any statute or subsidiary
legislation which purports to vest in the President or Government, lands which
are still stool lands would run counter to Article 267(1) of the 1992
Constitution.

The Supreme Court has no difficulty in characterising stool lands that had not
been vested in the President or Government prior to Jan. 7th 1993 as stool lands
that are considered as vested in the respective stools under Article 267(1).

Nana Hyeaman II v. Osei is still good law with particular reference to the incidences
attached to the allodial title of stools.

3. The land around Ogbojo was acquired by the government for the National
Women’s Center but was not used. The government says it is no longer required for
public purposes. Ogbojo is a La settlement so the La Stool holds the allodial title. The
state wants to give the land back to the owners. The Ga Paramount Chief has sent
surveyors to measure the land and is selling it off.

Advise (with reference to the Nartey v Mechanical Lloyd case)

LEGAL ISSUES

a. Whether or not the government could legally and validly acquire the land at
the National Women’s Centre?
ANS: YES THROUGH VESTING OR COMPULSORY ACQUISITION
Article 20 (6)
b. Whether or not the allodial title in the land automatically reverts back to the
La stool?
c. Whether or not the Ga Paramount Stool purport to alienate the Ogbojo land?

The applicants, a limited liability company, were the defendants in an action

instituted by the respondent as the plaintiff in the High Court, Accra for, inter
alia: [p.599] (i) a declaration of title to a piece of land at Frafraha; (ii) recovery
of possession of the said land and (iii) an injunction restraining the
defendants, their servants and agents from interfering with the land.
The village of Frafraha formed part of the La rural lands acquired by the La
stool through conquest.  It was subsequently settled by members of the
Agbawe quarter of La. The overall head of the Agbawe quarter at La was the
Atofotse (A) and one O was the Frafraha Mantse. Both O and A were

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illiterates. In 1976 O with the purported consent and concurrence of the elders
granted a plot measuring 9.12 acres to the appellant for farming and a
document, exhibit B, was executed by the parties and was registered. The
appellant went into occupation. Subsequently, the La stool granted a lease of
a 22.07-acre plot of land at Frafraha to one D, the executive chairman of the
respondent-company. The plot engulfed the appellant's.  A document, exhibit
R1, executed between the La stool and D was however not registered. When
the respondent-company became aware of a claim by O that the Frafraha
lands were owned by the Agbawe quarter and not the La stool they obtained
another grant of the same plot from both O and A who jointly executed the
document, exhibit F, in their favour. The company then had that document
registered, and then went on to the land. Following the refusal of the company
to vacate the land, the appellant brought action against them for, inter alia,
declaration of title to the land and damages for trespass. The company
contended in their defence that since Frafraha was La rural land, it was only
the La stool who could make a valid grant of the land in dispute. In the
alternative, they contended that if the land was Agbawe quarter land then
since the Frafraha lands were jointly owned by the Agbawe families of La and
Frafraha of which there were two heads, the grant by O alone was null and
void. However in his evidence for the appellant, O claimed that he alone had
the right to alienate land at Frafraha. The trial judge gave judgment for the
appellant on the ground that the Agbawe family had always had the right to
alienate land at Frafraha and that although the La stool had been adjudged
the owner of the land the stool had never exercised that right.  An appeal by
the respondent-company was unanimously allowed by the Court of Appeal on
the grounds, inter alia, that (i) the occupation of Frafraha by the Agbawe
family was occupation by stool subjects of stool land and was therefore not
adverse to the La stool, (ii) a predecessor of O had admitted in Owusu v.
Manche of Labadi (1933) 1 W.A.C.A. 278 that the Frafraha lands were La
stool lands and O was bound by that admission, and (iii) even if it were
assumed that the Frafraha lands were owned by the Agbawe family, given the
structure of that family a grant by O alone without the consent and
concurrence of the principal elders of that family and that of A was void. On
appeal by the appellant from that decision to the Supreme Court,
Held, allowing the appeal (Francois and Amua-Sekyi JJ.S.C. dissenting):
(1) per Taylor and Wuaku JJ.S.C. The fact that the La Mantse was the proper
authority to alienate or grant portions of La stool lands could not be disputed
save that the general proposition was qualified. But on the evidence none of
the contesting parties had a better or a proper grant from the La stool.
Consequently, the issue for resolution was which of the parties had a better
claim to possession against the whole world except the true owner. Since the
plaintiff's grant from the Frafraha Mantse was first in time and he had it
stamped and registered the defendants who had no better grant than the
plaintiff from the La Mantse could not claim to dispossess the plaintiff simply
on the ground that the plaintiff never had a grant from the La Mantse.
[p.316]
(a) Per Taylor J.S.C. There is no doubt at all that in Owusu v. Manche of
Labadi (1933) 1 W.A.C.A. 278 there were firm pronouncements made that
Frafraha lands were La stool land ... it is not therefore easy, nor am I prepared

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to resist the implication in the Owusu case (supra) that La rural lands belong
to the La stool.
Per Francois J.S.C. (concurring in part).  Frafraha land is undisputedly La
rural land.  Many decisions of our courts have given judicial recognition to title
of their rural lands to the Osu and La chiefs.
Per Amua-Sekyi J.S.C. (concurring in part).  The law on the alienation of rural
land in the Ga State ought not now to be in doubt . . . there is direct
persuasive authority that as with Osu, La rural lands are stool lands.
Per Adade J.S.C. (dissenting in part).  Put at its highest Owusu v. Manche of
Labadi (supra) establishes no more than that the Frafraha lands are lands
attached to the La stool, but in the care and possession of the stool's sub-
stool at Frafraha . . . In our customary law the concept of ownership,
particularly of land, is not the same as in other jurisdictions. For instance,
ownership does not necessarily carry with it the right of exclusive control. And
where land belonging to or attaching to a paramount stool is in the care and
possession of a sub-stool, control often becomes a shared responsibility
between the paramount stool and the sub-stool.
(b) Amua-Sekyi J.S.C. (dissenting in part).  There seems to be a
misunderstanding of the cases which decide that a party who is in possession
of land is entitled to the protection of the courts against all these who cannot
prove a better title.  The cases show that it is not possession for a day or two,
a week, a month, or even a year which suffices to bring the rule into
operation.  It is rather long, peaceful, undisturbed possession over a
considerable period of time, long and peaceful enough to raise a presumption
that the occupation of the land must have a lawful origin.  Abina v. Kennedy
(1921) FC, '20-'21, 21 and Aidoo v. Adjei [1976] 1 G.L.R. 431, CA cited.
(2) Per Adade, Taylor and Wuaku JJ.S.C. By the mandatory provisions of
section 25 (1) of the Land Registry Act, 1962 (Act 122) the registration of a
deed of sale constituted actual notice of the fact of registration to the whole
world.  Consequently, on the assumption that the La Mantse was the true
owner of Frafraha lands, he had intentionally for very many years and
certainly since 28 September 1969 led the general public by his deliberate
omission or failure to assert his ownership to believe that the Agbawe family
of Frafraha were the owners of Frafraha lands.  At any rate the stool had by
its inaction permitted the general public including the appellant and even the
government to believe that it had no objection to the conveyances made by
the Agbawe family.  In the circumstances the stool could not now assert any
title against an innocent purchaser who had dealt with the Agbawe family
following the La stool's inaction and acquiescence.  Consequently, as against
the appellant, the La stool were estopped by conduct from impugning the
appellant's title which had been perfected by registration and his possessory
acts. Dictum of Anin J.A. (as he then was) in Boateng v. Dwinfour [1979]
G.L.R. 360 at 370, CA applied.
(3) Per Adade, Taylor and Wuaku JJ.S.C. The claim of the respondent-
company to be entitled to enter the land in dispute by virtue of the grant,
exhibit R1, by the La Mantse to the late D, the former executive chairman of
the company, was untenable because:
(a) the La stool's inaction to and acquiescence in the Frafraha Mantse's
alienation of Frafraha lands conclusively raised a statutory estoppel by

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conduct wider section 26 (1) of the Evidence Decree, 1975 (N.R.C.D. 323)
against the La stool and [p.317] disabled its supposed successor in title,  the
respondent-company, or, any grantee of the La stool from taking under the
said grant, the land already granted by the Frafraha Mantse to the appellant.
(b) Per Taylor and Wuaku JJ.S.C.  Since by the evidence of the La Mantse
the land in dispute was stool land, by the provisions of sections 1 and 8 of the
Administration of Lands Act, 1962 (Act 123) he needed the concurrence of the
Secretary for Lands for valid alienation of the land.  But since that had not
been obtained the inevitable consequence was that the grant was of no legal
consequence whatsoever and was void. In the circumstances the Court of
Appeal erred in purporting to give legal validity to that void document for by
the statutory law of the country no person, company or institution could derive
any title whatsoever from exhibit R1.
(4) Per Adade, Taylor and Wuaku JJ.S.C.  Since exhibit F was registered in
1979 but the appellant's document, exhibit B, was registered in 1976, and by
the provisions of section 26 (1) and (5) of Act 122 each of those instruments
would take effect from the date of its registration, the appellant's document
would have priority over it.
(5) Per Taylor and Wuaku JJ.S.C.  The admissions of the predecessor in title
of the Frafraha Mantse in Owusu v. Manche of Labadi (supra) that the
Frafraha lands were La stool lands could not be used is estoppel against the
claim of the Frafraha Mantse that he had title to pass on to the appellant
because contrary to the provisions of Order 19, r. 16 of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A) which required that a party relying on
estoppel must plead it, the facts grounding the estoppel were not pleaded by
the respondents.
3. A linguist of a stool gives Mr. Gyan a piece of stool land as a freehold in gratitude
for Mr. Gyan helping his son.
What are the issues?

i. WHETHER OR NOT THE LINGUIST ALONE CAN ALIENATE

STOOL LAND?

Ans: The general rule was stated by Ollennu J. in the case of :

Allotey v. Abrahams

A valid alienation is one which is made by the occupant of the stool with the consent
and occurrence of the principal elders/councillors

Agbloe v. Sappor is the authority for the proposition that where the occcupant of the
stool does not participate in the transaction, it is void.

However, a document purported to be executed by the occupant of the stool and at

least the linguist would be deemed to be binding on the stool. Amankwanor v. Asare

ii. Whether or not the linguist can purport to create a freehold interest in a
stool land.

ANS: Article 267(5) provides as follows:

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 “ Subject to the provisions of this Constitution, no interest in,or right over,
any stool land in Ghana shall be created which vest in any person or body
of persons a freehold interest however so described.”

iii. Whether or not the purported alienation is a valid one?

Ans: Clearly not from the above.

4. What are the effects of the 1992 Constitution and the other legislative instruments
on the allodial title?

Pg. 12 and 13 of Gyan’s notes .

5. In reference to Oblee v. Armah and Amartei v. Hammond – has the promulgation

of the 1992 Constitution, especially art 267(5) prohibited the grant of freeholds in
Ghana?
Arts 266(1-5) – with respect of foreigners.

267(5) Subject to the provisions of this Constitution, no interest in, or right over, any
stool land in Ghana shall be created which vests in any person or body of persons a
freehold interest howsoever described.

Ownership of land by Non-Citizens

266.
(1) No interest in, or right over, any land in Ghana shall be created which vests in a
person who is not a citizen of Ghana a freehold interest in any land in Ghana.
(2) An agreement, deed or conveyance of whatever nature, which seeks, contrary to
clause (1) of this article, to confer on a person who is not a citizen of Ghana any
freehold interest in, or rights over, any land is void.
(3) Where, on the twenty-second day of August 1969, any person not being a citizen
of Ghana had a freehold interest in or right over any land in Ghana, that interest or
right shall be deemed to be a leasehold interest for a period of fifty years at a
peppercorn rent commencing from the twenty-second day of August 1969, and the
freehold reversionary interest in any such land shall vest in the President on behalf of,
and in trust for, the people of Ghana.
(4) No interest in, or right over, any land in Ghana shall be created which vests in a
person who is not a citizen of Ghana a leasehold for a term of more than fifty years at
any one time.
(5) Where on the twenty-second day of August 1969 any person not being a citizen of
Ghana had a leasehold interest in, or right over, any land in Ghana for an unexpired
period of more than fifty years, that interest in, or right over, any such land shall be

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deemed to be an interest or right subsisting for a period of fifty years commencing
from the twenty-second day of August 1969.

AMATEI v. HAMMOND AND ANOTHER [1981] GLR 300-311

One NA was the mankralo of the Osu Ashanti Blohum Quarter, Accra. As a
result of differences between him and the Gyasetse, the Gyasetse declared
him customarily destooled and instituted destoolment proceedings against
him before the Ga State Council. Meanwhile one Y was appointed the acting
mankralo and in that capacity he performed the customary functions of the
office including the granting of stool lands with the consent of the stool elders.
A dispute arose between A, a subject of the mankralo stool and H as to the
ownership of a building plot on mankralo stool land at Osu. A therefore
brought the instant action for a declaration of title or right of occupation of the
plot against H. In support of his claim A testified, inter alia, that he used to
farm on a piece of land part of which was the plot in dispute and that when the
area was later carved out into building plots as a result of a lay-out carried out
in the area, he obtained a grant of the disputed land as a gift from Y, who at
that time was the acting mankralo, and some stool elders, and a deed of gift,
exhibit A, was executed in his favour. After the grant, he went into possession
and erected four pillars at the corners of the plot. A's evidence was
corroborated by Y and also T, an adjoining landowner who testified that he
had also obtained his grant from Y. No evidence was, however, led in support
of the proper customary destoolment of NA before Y was made the acting
mankralo. H on the other hand claimed that the disputed plot was part of two
plots of land customarily granted him by NA and his elders in 1956. He
testified that after the grant he appointed one W, an elder of the mankralo
stool, as caretaker of the land but did nothing on the land. The grant to H was
confirmed by NA. No evidence was given by W.
Counsel for A submitted, inter alia (1) since Y was the acting Mankralo at the
time of the grant and A had obtained the grant in good faith it could not be
impugned; (ii) a stool-subject in occupation of stool land could not be deprived
of his land without his consent; and (iii) A's conduct in dealing with the land
had been in good faith and he was thus entitled to protection under the Land
Development (Protection of Purchasers) Act, 1960 (Act 2). Counsel for H
however contended, inter alia, that since NA was the substantive mankralo,
want of his participation in the grant to A rendered the grant void ab initio and
also that any prior farming rights A had to the plot ceased on the subsequent
assumption of control by the stool in carving out the area into building plots
which changed the nature of the use of the land.
The court found that A had constructed a building on the land in good faith
although it rejected his claim of a customary grant of the disputed land to him
in 1956. On the issues whether (a) it was competent for elders of a stool to
appoint an acting chief to deal with stool matters where the substantive chief
had not been declared customarily destooled and (b) the customary law
principle that a stool-subject had an inherent right to occupy any vacant stool
land for farming (whether arable or for animal husbandry) needed to be
looked at to reflect changes in modern farming,

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Held:
(1) the evidence brought to support Y's appointment as acting Osu Mankralo
showed nothing more than that the destoolment of the co-defendant as Osu
Mankralo was a mere declaration by the Gyasetse. [p.302] It was apparent
from the evidence that no charges were formally preferred against the co-
defendant whose destoolment was accepted without question. Preferment of
such charges was a customary law requirement and the rules of natural
justice were part of the general rules of the administration of justice
countenanced by customary law also and failure to comply with them should
be held to annul any adjudication made in that regard. Therefore, the
declaration made by the Gyasetse destooling the co-defendant on the facts of
the case offended the customary practice of removing a chief and was of no
effect. It followed therefore that the subsequent appointment of Y as acting
mankralo was also void.
(2) The grant of land made to the plaintiff by Y without the participation of the
co-defendant who had been and was still the Osu Mankralo was void.
(3) As between the plaintiff and the defendant none of them had a valid grant
of the disputed land and they both lacked title. But the plaintiff on the facts of
the case was in actual physical occupation of the land as against the intruding
defendant. The plaintiff's possession should therefore be protected. He acted
in good faith in his dealing with the disputed land and deserved protection
under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) and
the Land Development (Protection of Purchasers) (Accra Prescribed Area)
Instrument, 1961 (L.I. 118). The evidence showed that he did approach the
Osu Mankralo stool and acknowledged title in the stool. He obtained a grant
from the stool represented by the acting mankralo and the elders. Even
though the acting mankralo lacked the capacity because his appointment was
void, it was that want of capacity which was cured by the combined effect of
Act 2 and L.I. 118.
(4) There was a common area of agreement among textwriters and the case
law that there existed an inherent right of a stool-subject to occupy any vacant
stool land and that such occupation was deemed to be an implied grant by the
stool and that whilst in such occupation the subject was entitled to alienate
such interest as he acquired in the land and was also entitled to its protection
even against the stool. However, some exceptions, reflecting the present
socio-economic and political changes, should be made to the customary law
principle that although the absolute title in land was vested in a stool, any
conveyance made by the stool of any such land in the occupation of a subject
was void. In the instant case, the plaintiff had lost his prior occupation right to
the stool because of the new lay-out by which the whole area including his
portion was carved out into building plots for the whole community. The
plaintiff's contention that it was incompetent for the stool to make valid grants
of any portion of the land he originally occupied for farming would therefore be
rejected.
Per curiam. Where a subject of a stool requires land for farming, whether
arable or for animal husbandry, and engages himself in a commercial
mechanised farming he should be required to obtain an actual grant in the
form of a lease. If such a person with the necessary resources and [p.303]
equipment is permitted to rely on this inherent right to clear miles and armies

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of stool land, it would not be long when other subjects of the same stool will
be deprived of any share of the land. It is in this same light that I consider that
the authorities of Donkor v. Danso [1959] G.L.R. 147 and Ashiemoa v. Bani
[1959] G.L.R. 130 should also be looked at again. Where an outskirt land in
possession of a subject is required for general development of the community
such as for building a school, lavatory, etc. or where as in this case, the area
already in the occupation of the plaintiff had been carved into building plots for
the use of the general community and the complete lay-out of the area has
changed, I am of the view that the subject's prior occupation should give way
subject, of course, to preference being given him in the allocation of such
plots if he requires one to build or in the alternative another suitable area
given him in place of the one lost and his consent should not be a prerequisite
to the stool taking over control of such an outskirt land. Otherwise it would
mean that his prior occupation could hamper all future developments of the
area occupied by him

MAIN POINTS

According to Mr. Gyan in his article titled Ministry of Lands and Forestry,
Position Paper on Article 267 (5) of the 1992 Constitution

a. Article 267(5) does not prohibit the grant of a “customary law freehold”
in stool land, and neither could the provision invalidate such freehold,
where already declared nor prohibit the registration of a land transaction
described as “customary law freehold”, where the grantee or transferee is
a subject of the landowning stool.

b. First, although the Report of the Committee of experts is silent on the

policy or rationale behind the provision, one could be right in saying that
the rationale behind Article 267(5) was to assure some intergenerational
equity, through the prohibition of permanent alienation and resultant loss
of stool lands in a manner detrimental to the future generations of stool
subjects

c. Second, the operative part of Article 267(5) is “shall be created”. Indeed

“created” forms the subject matter of the prohibition contained therein.
The prohibition does not apply to the subject of the landowning stool,
because among other reasons,, the stoolsubject’s entitlement to the
“customary law freehold” is inherent-and not conferred by an act
amounting to creation.

d. 3rd, Article 267(5) does not impose an absolute prohibition or restriction,

but rather makes provision for the clause to be read and construed in
light of other provisions in the Constitution. Indeed the specific words are
“ Subject to the provisions of this Constitution…….”

e. Article 267(5) should be read and interpreted in the light of “customary

law and usage”. As enunciated in cases such as Oblee v. Armah and
Amartei v. Hammond, the subject of a stool and for that matter a
member of a family is entitled as of right to a portion of vacant stool or

Compiled by Dora G. A. Inkumsah

October 31, 2008
 family land and upon such occupation the subject or member acquires the
“customary law freehold.”

6. A group of Ga Chiefs have come to consult you. They want Cantonments, Ridge
and East Cantonments back because Bright Akweitey has told them that because of
art 20(6) they can get their land back if it has not served the purpose of it’s
acquisition.
Advise the parties using decided cases.

THE ACHIMOTA LAND CASES DECIDED THE FOLLOWING WITH

RESPECT TO ARTICLE 20 (5)

a. That when land is compulsorily acquired from the original owners, if for
any reason the land is no more needed for that public purpose, then they
must be given the first option to re-acquire it.

b. It must be noted however that the law does not confer on the pre-
acquisition owners an automatic right of title or interest to the land.

c. As stated in the case of Nii Nikoi Olai Amontia v. The M.D. Ghana
Telecom,

“ Where lands are not used for the purpose for which they were acquired,
or the public interest behind the acquisition no longer exists then the
following things may happen:

i. The pre-acquisition owners of the land shall have the first option
to re-acquire the land.
ii. The whole of the compensation paid to the pre-acquisition owners
or part thereof as is consistent with the use of the land shall be
refunded by the pre-acquisition owners to the relevant authorities.
iii. The amount of the compensation shall depend either on the value
of the property at the time of the refund, i.e. re-acquisition or as is
provided by law.

Compiled by Dora G. A. Inkumsah

October 31, 2008