Journal of Energy & Natural Resources Law

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The constitutionality of nominal trusteeship in the

regalian mineral ownership regime in Ghana

Vitus Ngaanuma

To cite this article: Vitus Ngaanuma (2021) The constitutionality of nominal trusteeship in the
regalian mineral ownership regime in Ghana, Journal of Energy & Natural Resources Law, 39:1,
83-104, DOI: 10.1080/02646811.2020.1794102

To link to this article: https://doi.org/10.1080/02646811.2020.1794102

Published online: 18 Aug 2020.

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Journal of Energy & Natural Resources Law, 2021
Vol 39, No 1, 83–104, https://doi.org/10.1080/02646811.2020.1794102

The constitutionality of nominal trusteeship in the

regalian mineral ownership regime in Ghana
Vitus Ngaanuma, (BA, MA, LLB, BL), is a Legal Practitioner and currently a thesis-based LLM
Candidate (Hon. ND McDermid Scholar) in Natural Resources Law at the University of
Calgary, Alberta, Canada. He has over a decade of senior management level experience in the
private sector of the Ghanaian mining industry and the public service of Ghana.
Email: ngaanumavi@yahoo.co.uk
(Received 15 April 2020; final version received 5 July 2020)

Article 257(6) of the 1992 Constitution of the Republic of Ghana creates a regalian
mineral ownership regime. Every mineral in its natural state within the territory of
Ghana is the property of Ghana, and is vested in the president on behalf of and in
trust for the people of Ghana. The trust relationship created between the president
and the people of Ghana in the mineral ownership has been determined as nominal
and, therefore, not justiciable. Citizens’ lack of power to question the president in
the exercise of mineral rights in court is a drawback for the principles of
constitutionalism, separation of powers, rule of law, judicial review,
administrative justice and good governance generally. This paper examines the
constitutionality of the theory of nominal trusteeship in the regalian mineral
ownership regime in Ghana.
Keywords: nominal trusteeship; constitutionality; regalian mineral ownership;
mineral regime in Ghana; mining law; justiciability of president’s decisions;
Article 257(6)

1. Introduction
Constitutional governance is broadly defined as a limited government in which the prin-
ciples of separation of powers and rule of law exist.1 Constitutionalism encompasses
the bedrock principles of constitutionality such as the principles of separation of
powers, rule of law, judicial review, sovereignty in the people, and administrative
justice. The primary purpose of these principles is preventing arbitrariness in govern-
ance, and engendering liberty and good governance.
Constitutional governance requires the active participation of the public in the
affairs of the state. The ability of citizens to question in court decisions of government
that affect or impact them is a form of public participation. Access to courts as a form of
public participation in the mineral rights management life cycle is invaluable to achiev-
ing constitutional governance.

1 See especially KC Wheare FBA, Modern Constitutions (2nd edn, 3rd Impression, Oxford University
Press 1966); also see CEK Kumado, Constitutionalism, Civil Liberties and Development: A Case Study
of Ghana since Independence (1st edn, Ghana Universities Press, 1980), 5–7; CH Mcllwain, Consti-
tutionalism and the Changing World: Collected Papers (1st edn, Cambridge University Press,
2010), ch 1 and 2.

© 2020 International Bar Association

84 V Ngaanuma

Minerals in their natural state in Ghana are public property vested in the president
who holds them ‘on behalf of, and in trust for the people of Ghana’.2 The trust relation-
ship established by the Constitution between the president and the people has been
determined to be nominal.3 Consequently, citizens do not have the standing to question
the decisions of the president in the exercise of mineral rights.4 Citizens’ lack of power
to question the president in the exercise of mineral rights in court is a drawback for con-
stitutionalism, separation of powers, rule of law, judicial review, administrative justice
and good governance generally.
The thesis of this paper is that the concept that vesting of mineral rights in the pre-
sident creates a nominal trust relationship that is unenforceable by court action is
unconstitutional. It is argued that the concept of nominal trusteeship as determined vio-
lates the critical constitutional principles of constitutionalism, separation of powers,
rule of law, judicial review and administrative justice. It further stifles good natural
resource governance and good governance generally.
The paper is divided into five further sections: section 2 describes the research
design and guiding theoretical framework, and reviews literature related to the thesis.
Section 3 briefly discusses regalian mineral ownership in Ghana. The concept of
nominal trusteeship is discussed in Section 4. In section 5, the arguments in support
of the thesis are set out extensively. The final section provides recommendations and
conclusions for the pursuit of constitutionality and good natural resource governance
in Ghana.

2. Research design, theory and literature review

This section describes the research design and the theoretical framework that structures
the paper. It also provides a brief review of the relevant literature.

2.1. Research design

The doctrinal approach was adopted to test the theory that the vesting of mineral rights
in the president creates a nominal trusteeship. This involved analysing documents from
existing sources such as the Constitution of Ghana, Ghanaian legislation on ownership
of natural resources, case law highlighting nominal trusteeship in mineral ownership,
and relevant secondary sources such as published books, book chapters, articles and
reports of credible government, and prominent non-governmental agencies.
To determine relevant sources, the following search terms were used: first, for own-
ership of minerals, ‘Regalian OR crown OR public’, and ‘minerals OR natural
resources OR extractives OR petroleum OR natural gas OR oil’; second, for public
trust doctrine, ‘public trust OR public trustee OR public trust doctrine OR nominal

2 See Constitution of Ghana, Republic of Ghana 1992, art 257 cl 6; see also Minerals and Mining Act,
Republic of Ghana 2006, Act 703 s 1; see generally Petroleum (Exploration and Production) Law,
Republic of Ghana 1984, PNDCL 84, s 1(1); see also Water Resources Commission Act, Republic
of Ghana 1996, Act 522, s 12.
3 See Adjaye & others v Attorney-General & others [30 March 1994] suit No. C.144/94 (High Court,
Ghana) [Adjaye] citing Tito v Waddell 2 [1977] 1 ch 106 (UK); Kinloch v. Secretary of State for
India in Council [1882] 7 App. Cas. 619 (UK).
4 Ibid.
 Journal of Energy & Natural Resources Law 85

trust OR special trust’; third, for the constitutional government, ‘constitutional OR

limited OR democratic government’, and ‘constitutionalism’; fourth, for public partici-
pation, ‘public participation OR stakeholder participation OR public access to courts
OR standing in court action’; and, last, for the theoretical framework, ‘good governance
OR good natural resource governance’.
Advanced searches were carried out by applying the search terms and noting cases and
articles in the following databases: HeinOnline; Environmental, Energy Law and Natural
Resources Law (NREEL); WestLawNext Canada; Lexis Advanced Quicklaw; LegalTrac;
Alberta Law Collection; Primo (Database by subject for political science and public
policy); CanLII; and Google Scholar. The following guides and journals were consulted:
LAW Finding Law Journal Articles, LAW Public Land & Natural Resources Law, and
Journal of Energy and Natural Resources Law. Bibliographies and footnotes of relevant
literature were consulted further to the point of saturation. Saturation was reached when
further searches returned no new literature relevant to the thesis of the paper.

2.2. The theory of good governance

The theory of good governance was adopted to highlight the thesis and provide a
context for the discussion of issues. This theory is suitable for illuminating the thesis
of this paper because of its pro-public participation outlook. The theory is equally rel-
evant because the paper normatively seeks to improve upon natural resource govern-
ance in an African country, for it is noted that ‘underlying the litany of Africa’s
development problems is a crisis of governance’.5
The theory of good governance gained prominence following two World Bank
reports, published in 1989 and 1992.6 The reports underscored the critical relationship
between good governance and development.7 Good governance has, therefore, become
an important determinant of development.
Generally, good governance is associated with the presence of the following in a
system: stakeholder participation, consensus building, accountability, transparency,
responsiveness, effectiveness and efficiency, equitability, inclusiveness and adherence
to rule of law. These characteristics collectively engender the minimisation of corrup-
tion and the promotion of sustainable development.8 In the extractive industry, the
theory is equated with the creation of administrative and procedural structures that guar-
antee sustainable development.9 Good governance depends more on the strengthening
of institutions than simply law and policymaking.10

5 See Francis N Botchway, ‘Good Governance: The Old, the New, the Principle, and the Elements’
(2001) 13(2) Fla J Intl L 159 at 163, citing World Bank Report, Sub-Saharan Africa from Crisis to Sus-
tainable Growth (1989), 60 http://documents1.worldbank.org/curated/en/498241468742846138/pdf/
multi0page.pdf accessed 24 November 2019.
6 See World Bank Report 1989 (n 5); World Bank Report, Governance and Development (1992) www.
documents.worldbank.org/curated/en/604951468739447676/pdf/multi-page.pdf accessed 13 Decem-
ber 2019.
7 Ibid.
8 See ‘What Is Good Governance’ UNESCAP (2009), 1 www.unescap.org/sites/default/files/good-
governance.pdf www.unescap.org/pdd accessed 12 December 2019.
9 See Tumai Murombo, ‘The Effectiveness of Initiatives to Promote Good Governance, Accountability
and Transparency in the Extractives Sector in Zimbabwe’ (2016) 60(2) J Afr L 230 at 233.
10 Ibid, 236.
86 V Ngaanuma

According to the Natural Resource Governance Institute, good governance means

‘strong, comprehensive rules; competent institutions to enforce them; independent
oversight; and willingness on the part of governments to follow the rules’.11 This defi-
nition emphasises checks and balances on the exercise of power and the rule of law as
critical elements of good governance.
Good governance is foundational to creating and sustaining an environment of
strong and equitable development and is an essential complement to sound econ-
omic policies.12 Kaufmann and Aart Kraay established a positive correlation
between good governance and development.13 By implication, good governance
is important for creating and maintaining a thriving mining and general natural
resources industry.

2.3. Literature on the constitutionality of nominal trusteeship

The literature on constitutional governance is vast. Wheare argues that constitutional-
ism means government limited by the terms of a constitution, not government limited
only by the desires and capacities of those who exercise power.14 Like Wheare,
Kumado defines constitutionalism as the existence of separation of powers, rule of
law and judicial review in a jurisdiction.15 Mcllwain, in examining the fundamental
law behind the Constitution of the United States of America, argues that constitution-
alism seeks to determine that sovereign power must be established with justice and not
at discretion.16
Gwyn conducted an extensive historical study of the principle of the separation of
powers from as early as the period of Montesquieu to as late as the period of the adop-
tion of the American Constitution and concluded that the essence of the principle is to
establish a balanced government and ensure that the executive is answerable.17
The central theme in all these books is that there must be safeguards or checks and
balances on the exercise of governmental power to prevent arbitrariness and abuse of
power. Wheare, Kumado, Mcllwain and Gwyn have set out clear standards for measur-
ing constitutional governance. These standards are adopted here in testing the constitu-
tionality of the concept of nominal trusteeship in the regalian mineral ownership regime
in Ghana.
The concept of nominal trusteeship in the regalian mineral ownership regime as
established in the Ghanaian legal system emanated from case law.18 In Adjaye &
others v Attorney-General & others, the court, in explaining the type of trust relation-
ship that exists between the president and the people of Ghana concerning the

11 See Kaisa Toroskainen, Resource Governance Index: From Legal Reform to Implementation in Sub-
Saharan Africa (Natural Resource Governance Institute 2017), 30.
12 See World Bank Report 1992 (n 6), 1.
13 See Daniel Kaufmann and Aart Kraay, Growth Without Governance (2002) World Bank Institute and
Development Research Group, Policy Research Working Paper No. 2928, 2.
14 See Wheare (n 1).
15 See Kumado (n 1).
16 See Mcllwain (n 1).
17 See William B Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its
Origin to the Adoption of the United States Constitution (2nd edn, vol 9, Tulane Studies in Political
Science, Tulane University Press 1965).
18 See Adjaye (n 3).
 Journal of Energy & Natural Resources Law 87

ownership of minerals under the constitution, established the concept of nominal trus-
teeship. The court determined this trust relationship to be special and not subject to the
incidence of an ordinary trust. This special trust is nominal and unenforceable.19 Adjaye
cited with approval Kinloch v Secretary of State for India in Council and Tito v Waddell
(no. 2) which held that the trust relationship between the Crown and its subjects is a
trust in a ‘higher sense’ and therefore not enforceable.20
The concept of nominal trusteeship has negative implications for the standing of
citizens regarding mineral development. Apart from violating principles of consti-
tutional governance, it violates fundamental human rights. According to Date-Bah
(JSC),

the unhampered access of individuals to the courts is a fundamental prerequisite to the

full enjoyment of fundamental human rights. This court has a responsibility to preserve
this access in the interest of good governance and constitutionalism. Unhampered access
to the courts is an important element of the rule of law to which the Constitution [of
Ghana], 1992 is clearly committed.21

He added that
a further reason for prohibiting the barring of access to the courts is that it brings into
question the very function of the judiciary. Under our Constitution, 1992, the judiciary
is given the role of a watchdog against abuse or excess of power by the executive or the
legislature.22

Adam Babich agrees with Date-bah when he notes that the right to access the judi-
cial system is ‘one of the highest and most essential privileges of citizenship’.23 He con-
cludes rightly that expanding the right to access to courts is good for good governance
and the rule of law.
Shaun Fluker, in scrutinising the right to public participation in resources and
environmental decision-making in Alberta, Canada, concludes that ‘there is currently
no legal right to public participation in resources and environmental project decision
making in Alberta’.24 He arrived at this conclusion because the general public is pro-
hibited from asserting a right to participate in resources and environmental decision-
making except where standing is established. This position supports the claim that citi-
zens’ lack of power to question the president in the exercise of mineral rights is a
setback for public participation.
Like Fluker, Nickie Vlavianos, in appraising challenges to public participation
across the different stages of mineral development, found the absence of public partici-
pation mechanisms in crown mineral and surface rights disposition in Alberta a

19 Ibid.
20 See Kinloch v Secretary of State for India in Council (n 3); Tito v Waddell (no. 2) (n 3).
21 See Adofo v Attorney-General & Cocobod [2005–2006] SGCLR 42, at 51 (Supreme Court, Ghana); see
also Centre for Juvenile Delinquency v Ghana Revenue Authority & Attorney-General [30 July 2019]
suit No. J1/61/2018 (Supreme Court, Ghana).
22 Ibid.
23 See Adam Babich, ‘Can Preemption Protect Public Participation’ (2011) 61(4) Case W Res L Rev
1109.
24 See Shaun Fluker, ‘The Right to Public Participation in Resources and Environmental Decision-
Making in Alberta’ (2015) 52(3) Alt L Rev 567.
88 V Ngaanuma

drawback. She consequently advocates for the integration of public participation in all
stages of natural resource development.25
Thomas Kojo Stephens, in examining the constitutional provisions on mineral own-
ership in Ghana, concludes that although the provisions are expected to protect the
interest of the people of Ghana, the opposite is the case.26 Stephens highlights some
of the failures of the constitutional arrangements to protect the public interest concern-
ing mineral rights for which reason citizens should be allowed to participate directly in
the mineral development process.
The concept of nominal trusteeship is therefore at variance with the principle of con-
stitutional governance and has negative implications for public participation. Succeed-
ing sections of this paper elaborate on this thesis.

3. Regalian mineral ownership in Ghana

The discussion in section 2 sets the tone for examining the regalian mineral ownership
regime in Ghana in this section. This section discusses regalian mineral ownership and
related matters such as vesting of minerals in the president as opposed to vesting in the
state, the relationship between vesting of minerals in the president and vesting of public
and stool lands in the president, the distinction between vesting of land and compulsory
acquisition, and the debate over private versus public ownership of minerals.

3.1. Regalian mineral ownership

The basic principle of immovable property law is the Cuius est solum, eius est usque ad
coelum et ad inferos principle, meaning whoever owns the soil owns everything up to
the heavens and down to the depths of the earth.27 Under this principle, the owner of
surface rights will be deemed the owner of the subsurface rights as well.
The principle is, however, subject to exceptions as a result of the operation of law or
private contractual agreements. It is, therefore, possible for the ownership of surface
rights and subsurface rights to be severed and ‘when so severed are independently
and separately inheritable and capable of conveyance’.28 ‘There may be a further sep-
aration of the different strata, or of minerals of different kinds, each of which may have
a different owner and constitute a distinct estate in land’.29
There are two main ownership regimes for minerals; namely, private freehold
ownership, and state or crown or public or regalian ownership. A private freehold

25 See Nickie Vlavianos, ‘The Issues and Challenges with Public Participation in Energy and Natural
Resources Development in Alberta’ (2010) 108 Resources 1.
26 See Thomas Kojo Stephens, ‘In Their Name and for Their Welfare: Rethinking Ghana’s Constitutional
Provisions for the Natural Resource Sector in the Light of Ghana’s Upstream Petroleum Industry’
(2015) 28 UGLJ 159, at 159 and 170.
27 See Pountney v. Clayton [1881–85] ALL ER REP 80; see also Henry Campbell Black, Black’s Law
Dictionary (4th edn, St. Paul: West, 1951), 453; William Blackstone’s Commentaries on the Laws of
England, George Sharswood (ed) vol. 2 chapter 2, 18 (1753); Kibuta Ongwamuhana and Anthony
Regan, ‘Ownership of Minerals and Petroleum in Papua New Guinea: The Genesis and Nature of
the Legal Controversy’ (1991) 7 Queens l & U of Tech L J 109 at 118.
28 See D Moreau Barringer and J Stokes Adams, The Law of Mines and Mining in the United States
(Keefe-Davidson, 1900), 3.
29 Ibid, 35.
 Journal of Energy & Natural Resources Law 89

ownership regime exists whereby a non-state legal person owns the subsurface
mineral rights while public or state or crown ownership of minerals exists whereby
the ownership of the subsurface is in the public or state or crown, respectively. Indi-
genous ownership of minerals is another form of mineral ownership, but it is limited
to a few jurisdictions such as Canada under ownership vested by treaties and in
reserve lands.30
Public or regalian mineral ownership can occur in different ways, for instance where
ownership is in the state but vested in either the executive arm of government or the
president in trust for the public.31 There are also cases where the state owns both
surface and subsurface rights. Public or state ownership of minerals can also exist in
a situation whereby the surface rights are held by a private legal person while the
public or state holds the subsurface mineral rights.
The latter case can occur where the state reserves in itself all mineral rights in all
lands and, therefore, private legal persons who hitherto held both surface and subsur-
face rights lose their rights to the subsurface. The reservation could be general or
over specific minerals.32 Consequently, under regalian mineral ownership regimes,
private legal persons cannot grant mineral rights except where mineral rights granted
a person are being transferred, assigned, mortgaged or in any way encumbered by
that person. Any such encumbrance must receive prior approval of the sector minister.33
In Ghana, it is a criminal offense to exercise mineral rights without the consent of the
state.34
In the petroleum and natural gas sector, regalian ownership is referred to as the
Domanial system.35 ‘In the Domanial Law system, oil-bearing deposits and the oil
they contain belong to the state and are part of its realm’.36
In this paper, regalian ownership of minerals is used in the sense of state or public
ownership or crown ownership. Regalian, state, public and crown ownership of min-
erals will, therefore, be used interchangeably.
Most natural resources in the world are owned by the public, with main exceptions
being some parts of the United States of America and Canada. In Ghana, before 1962,
mineral rights were held by the landowning stools, skins and families.37 In South
Africa, minerals were owned privately under a previous law until the ownership
regime was changed under its current law.38 According to the law, ‘Mineral and

30 See Indian Act, RSC 1985, c. 1–5, ss 2(1), 18(1); Agreement between the Inuit of the Nunavut
Settlement Area and Her Majesty the Queen in Right of Canada; Umbrella Final Agreement
between the Government of Canada, the Council for Yukon Indians and the Government of the
Yukon (1993).
31 See Constitution of Ghana (n 2).
32 See e.g. Mines and Minerals Act, RSA 2000, s 10.
33 See Minerals and Mining Act (n 2), s 14(1).
34 Ibid, ss 106, 54(1), 63(1).
35 See Yinka Omorogbe and Peter Oniemola, ‘Property Rights in Oil and Gas Under Domanial Regimes’
in Aileen McHarg, Barry Barton, Adrian Bradbrook and Lee Godden (eds) Property and the Law in
Energy and Natural Resources (Oxford University Press, 2010), 115.
36 See Victor Rodriguez-Padilla, ‘Sovereignty Over Petroleum Resources: The End of an Era?’ 1991 3(2)
Energy Stud Rev 110.
37 See Fui Tsikata, ‘The Vicissitudes of Mineral Policy in Ghana’ (1997) 23(1/2) Resources Pol’y 9 at 10.
38 See HM Van den Berg, ‘Ownership of Minerals under the New Legislative Framework for Mineral
Resources’ (2009) 20(1) Stellenbosch L Rev 139; Under the Minerals Act 50, Republic of South
Africa, 1991.
90 V Ngaanuma

petroleum resources are the common heritage of all the people of South Africa and the
State is the custodian thereof for the benefit of all South Africans’.39 The prevailing
mineral ownership regime in South Africa is, therefore, regalian.
Under the current dispensation, minerals in their natural state in Ghana are public
property vested in the president who holds them ‘on behalf of, and in trust for the
people of Ghana’.40 The exact exposition of the provision is that:

Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams,
water courses throughout Ghana, the exclusive economic zone and any area covered by
the territorial sea or continental shelf is the property of the Republic of Ghana and shall
be vested in the President on behalf of, and in trust for the people of Ghana.41

This means that Ghana operates a regalian mineral ownership regime whereby all min-
erals in their natural state are reserved in the republic. Therefore, where minerals in situ
are in lands owned by private legal persons, families, skins, stools and other non-state
actors, then such ownership is restricted or reduced to surface rights.

3.2. Vesting of minerals in the president

Minerals were under private ownership regime in pre-independence Ghana. The own-
ership regime changed to the public as part of the immediate post-independence
revised mining framework. The change in ownership regime was premised on pro-
moting equity in the mining industry.42 It is interesting to note that since the owner-
ship regime of minerals changed from private to public in 1962, minerals in their
natural state in Ghana have been vested in the president.43 The only exception is
the repealed Minerals and Mining Law of 1986 which vested mineral rights in the
executive arm of government but not in the head of state.44 It is therefore unclear
whether vesting in the president can be interpreted as vesting in the executive arm
of government.
Ghana is not a lone ranger in this regard. In Zambia, ‘all rights of ownership in,
searching for, mining and Rights to disposing of, minerals wheresoever located in
the Republic are hereby vested in the President on behalf of the Republic’.45
Do the drafters of these provisions intend to distinguish between vesting in the
executive arm of government and vesting in the president? Is there a reason for, or
what is the purpose of, the change in the language of drafting in the case of Ghana?
Although the president is the head of the executive arm of government, the latter is
broader than just the former. Does this have implications for the delegated power of
the minister responsible for mining to grant mineral rights?46

39 See Mineral and Petroleum Resources Development Act 28, Republic of South Africa, 2002 s 3(1).
40 See Constitution of Ghana (n 2).
41 Ibid.
42 See Tsikata (n 37), 9.
43 Ibid.
44 See Minerals and Mining Law, Republic of Ghana 1986, PNDCL 153 s 1.
45 See Mines and Minerals Development Act Republic of Zambia 2008 s 3(1); Muna Ndulo, ‘The Own-
ership of Base Minerals in Zambia’ (1980) 13(1) Comp & Intl L J of Southern Afr 78.
46 See Minerals and Mining Act (n 2), s 5.
 Journal of Energy & Natural Resources Law 91

It is unclear whether the drafters intend to make a distinction with the change in
language. Such a distinction if intended will, however, be inconsequential, since the
president is the head of the executive arm of government and constitutionally empow-
ered to delegate in the execution of the functions of the office.47

3.3. Regalian ownership and vesting of land

‘All public lands in Ghana shall be vested in the President on behalf of, and in
trust for, the people of Ghana’.48 The wording regarding vesting of public lands
and ownership of minerals is similar and, in fact, under the same article of the
constitution.49 Like ownership of minerals in their natural state, public lands
are trust property held by the president for the benefit of the people. It is there-
fore implied that vesting of public lands and mineral ownership in Ghana share
similar incidents.
The president has the power to vest stool or skin land in trust for such stools or
skins on grounds of the public interest.50 Vesting of stool or skin lands by the pre-
sident neither transfers ownership to the president or the republic nor extinguishes
the power of the stool or skin to litigate in respect of such lands.51 The Supreme
Court of Ghana in the Osu Matche Layout case declared unconstitutional any
vesting of stool or skin land in the president after the coming into force of the
1992 Constitution on 7 January 1993. In the reasoning of the court, by the
express implication of clause 1 of article 267, stool or skin lands cannot be vested
in the president and the stool or skin at the same time. Since stool or skin lands
are to be vested in the appropriate stool or skin, this therefore limits the control of
the state over such lands.52
Another trust relationship in land is established in stool and skin lands because ‘[a]ll
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’.53 In this case, the
stool is the trustee and its subjects the beneficiaries.
A further trust relationship is created in land through compulsory acquisition.
Compulsory acquisition of land is a constitutional and statutory intervention
through which the state acquires land in the public interest subject to prompt
payment of compensation.54 Vesting of land in the president is different from compul-
sory acquisition. While ownership of land is transferred to the state under compulsory
acquisition, the ownership status is unaffected by vesting of non-public land in the
president.

47 See Constitution of Ghana (n 2), art 57 cl 1, 58 cl 3.

48 Ibid, art 257 cl 1 [emphasis added].
49 Ibid, art 257.
50 See Administration of Lands Act, Republic of Ghana 1962 Act 123 s 7(1).
51 See Nana Hyeaman II v Osei [1982–83] GLR 495 (High Court, Ghana).
52 See Nii Nortty Omaboe III & 3 ORS v Attorney General & Lands Commission [2006] MLRG 54
(Supreme Court, Ghana). This case is popularly referred to as the Osu Manche Layout case.
53 See Constitution of Ghana (n 2), art 267 cl 1 [emphasis added].
54 Ibid, art 20; see Administration of Lands Act (n 50), s 10(1); See State Lands Act, Republic of Ghana
1962 (as amended), Act 125.
92 V Ngaanuma

The vesting of public lands in the president has a striking similarity to the ownership
of minerals in Ghana. The holding of stool or skin lands by stools and skins in trust for
their subjects is equally similar in principle to the trust relationship between the presi-
dent and the people of Ghana in the ownership of minerals. Compulsory acquisition is
premised on the public interest and benefit. Therefore, the ownership of minerals,
vesting of lands and compulsory acquisition of land in Ghana are intrinsically
interlinked.

3.4. Private versus public ownership debate

Public ownership of natural resources is a contentious subject, with scholars divided on
its relevance. Some scholars argue for private ownership on the ground that public insti-
tutions are generally weak, especially in developing countries, and therefore incapable
of supporting the sustainable development of natural resources.55 They argue, for
instance, that public ownership of minerals is a disincentive for the state to strengthen
institutions for fear of such strengthened institutions obstructing the government’s
autonomy in the natural resources sector.56
Further, it has been forcefully argued that ‘the ability of the state to control and regu-
late the mining industry is not predicated on state ownership of the resources … . The
state can play its regulatory role without a right to ownership of the resources’.57 The
efficiency of the mining industry is not directly linked with the mineral ownership
regime.
Another forceful argument in favour of private ownership is that

the realization of the people’s right to natural resources necessitates a de-concentration

of the right to the management of the resources from the government, particularly in
those countries where political leaders have consistently demonstrated an inability to
manage the resources for the public good.58

On the other hand, it is argued that public ownership promotes effective state
control, investment and stability in the mining industry.59 Furthermore, public owner-
ship of minerals has been justified on grounds of equitable development of the state
and promotion of an attractive business environment. It has, for instance, been
explained that:

A further reason for the intervention of the Ghanaian central government was the need to
eliminate insecurity of title for investors in natural resource projects arising from con-
flicting or overlapping claims of Stools to title over land. By vesting all mineral
rights in the state, foreign and local investors now needed only to deal with the

55 See Erika Weinthal and Paulina Jones Luong, ‘Combating the Resource Curse: An Alternative Solution
to Managing Mineral Wealth’ (2006) 4(1) Perspectives on Politics 35 at 42.
56 Ibid.
57 See Ongwamuhana and Regan (n 27), 124.
58 See Emeka Duruigbo, ‘Realizing the People’s Right to Natural Resources’ (2011) 12(1 Whitehead J of
Diplomacy & Intl Rel 111 at 112.
59 See Ongwamuhana and Regan (n 27); PJ Badenhorst, ‘Ownership of Minerals in Situ in South Africa:
Australian Darning to the Rescue’ (2010) 127(4) SALJ 646 at 666, citing Robert Chambers, An Intro-
duction to Property Law in Australia (2nd ed, Lawbook Co, 2008), 176.
 Journal of Energy & Natural Resources Law 93

central government in relation to the grant of rights over the subsoil, although surface
rights remained vested in their usual owners.60

Public ownership has also been justified based on the exhaustible nature of the min-
erals. Since mineral resources are not renewable, special care is required in their man-
agement, and the state is better placed to provide such care.61
Some scholars have strenuously sought justification for state ownership of natural
resources in the United Nations General Assembly Resolution 1803 (XVII) of 14
December 1962 on Permanent Sovereignty over natural resources.62 For instance, it
is stated that ‘the international principle of permanent sovereignty is important in
that it allows the state to remove domestic natural resources from private ownership
in accordance with international law’.63 This is, however, a misconception of the res-
olution. A proper interpretation of the resolution acknowledges that natural resources
are not property subject to international law but within the domain of municipal law.
Furthermore, the resolution refers not only to the rights of states over the resources
but also ‘peoples and nations’.64 The term ‘peoples’ has been interpreted to mean all
human beings in the state.65 The real purpose of the resolution was to protect natural
resource-rich developing countries from unfavourable dealings of multinational compa-
nies mostly from the developed world and to protect the interest of the latter in cases of
expropriation.66
Notwithstanding the potency of the arguments for private ownership, public own-
ership of minerals remains the most prevalent form of mineral ownership. The strength
of public ownership lies in its amenability to creating a stable and certain mineral indus-
try and promoting equitable development. Public ownership of minerals has been
described as a ‘fundamental mining law principle’.67
In conclusion, Ghana operates a regalian mineral ownership regime which establishes
a trust relationship between the president as trustee and the people of Ghana as benefici-
aries. The ensuing section of the paper discusses this trust relationship extensively.

4. Nominal trusteeship in regalian mineral ownership regime

This section discusses the principle of trust in the context of the public and the concept
of nominal trusteeship, and their implications for standing to challenge the decisions of
the president of Ghana concerning mineral rights.

60 See SK Date-Bah, ‘Rights of Indigenous People in Relation to Natural Resources Development: An

African’s Perspective’ (1998) 16(4) J of Energy & Nat Resources L 400, doi:10.1080/02646811.
1998.11433148.
61 See Ndulo (n 45), 79.
62 See Walied El-Malik, ‘State Ownership of Minerals under Islamic Law’ (1996) 14(3) J of Energy & Nat
Resources L 310 at 311–12.
63 See Van den Berg (n 38), 144 [footnotes omitted].
64 See 7th declaration of the Resolution ohchr.org/Documents/ProfessionalInterest/resources.pdf accessed
20 December 2019.
65 Duruigbo (n 58), 113, citing Emeka Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of
Natural Resources in International Law’ (2006) 38 Geo Wash Intl L Rev 43.
66 See Daniel Augenstein, ‘Paradise Lost: Sovereign State Interest, Global Resource Exploitation and the
Politics of Human Rights’ (2016) 27(3) Eur J Intl Law 669 at 673.
67 Badenhorst (n 59), 661, citing Meepo v Kotze [2008] 1 SA 104 (NC) para 8.3 (Republic of South
Africa).
94 V Ngaanuma

Like many principles of law, it is difficult to find a universally acceptable definition

of trust.68 However, a definition that largely represents the principle is that:

It is the relationship which arises wherever a person called a trustee is compelled in

Equity to hold property, whether real or personal, and whether by legal or equitable
title, for the benefit of some persons (of whom he may be one and who are termed
cestuis que trust) or for some object permitted by law, in such a way that the real
benefit of the property accrues, not to the trustee, but to the beneficiaries or other
objects of the trust.69

This definition illuminates key elements of trust. First, the subject matter of a trust
may be movable or immovable property such as minerals. Second, a trustee can
also be a beneficiary of that trust property. Third, a trust can be created for either
human or non-human objects. Furthermore, the benefits of the trust property accrue
to the benefit of the beneficiaries but not the trustee. Moreover, there is a duality in
ownership of trust property whereby the legal ownership is vested in the trustee
and the equitable ownership in the beneficiaries. Finally, trust creates a fiduciary
relationship between the trustee and the beneficiaries. While the definition restricts
the scope of trust to equity, trusts are today substantially regulated by statutes in
most common law jurisdictions.70
Broadly, trusts can be classified as private or public. A trust is private where it exists
for the benefit of an individual or a class of individuals, even if the benefit may be acci-
dentally conferred on the general public. A public or charitable trust has the object of
protecting public welfare though parenthetically it may confer a benefit on an individ-
ual.71 While private trust is enforceable by the beneficiaries, public trust is only
enforceable by the Attorney General.72
The regalian mineral ownership regime in Ghana satisfies the defining elements of
public trust. The republic is the settlor, the president the trustee, and the people of
Ghana including the president the beneficiaries. It is, however, unclear whether this
trust relationship shares the incidents of other public trusts such as charities. A major
difference between them is that while the settlor in regalian minerals is the republic,
the donor of charities is private persons or private entities.
Secondly, the purpose of the regalian mineral ownership kind of public trust is not
charity.73 In the literature on trust, public trust is often construed to mean charitable
trust.74 Therefore, the lack of standing of beneficiaries of charitable trusts to enforce

68 AKP Kludze, Modern Principles of Equity (2014 edn, Kludze 2014), 623, citing Harold Greville
Hanbury and Ronald Harling Maudsley, Modern Equity (11th edn, Stevens 1981) at 154.
69 Ibid, 262–63, citing GW Keeton, The Law of Trusts (9th edn, Pitman 1968), 3.
70 Richard Edwards and Nigel Stockwell, Trusts and Equity (9th edn, Pearson Longman 2007), 192 refer
to the Charitable Uses Act 1601 of England.
71 See Edmund HT Snell, H Gibson Rivington, and A Clifford Fountaine, The Principles of Equity:
Intended for the Use of Students and Practitioners (18th edn, Sweet and Maxwell 1920), 45.
72 Ibid; see also Edwards and Stockwell (n 70), 216.
73 See Constitution of Ghana, Republic of Ghana 1992, art 257 cl 6, wherein it is stated that the minerals
belong to the republic and are therefore the common property of citizens. The relationship created here
is mandatory. This is contrasted with a charity situation which is not mandatory and not based on
ownership.
74 See Snell, Rivington, and Fountaine (n 71).
 Journal of Energy & Natural Resources Law 95

the trust cannot be said to apply to the trust relationship created under the regalian
mineral ownership regime.
Jurisdictions such as the United States of America have developed a public trust
doctrine that seeks to clarify the difference between public trust, in the context of the
state holding property in trust for the people, and charitable trusts.

4.1. Public trust doctrine

The public trust doctrine is generally described as

a limitation on the power of the sovereign to privatize or destroy certain property and a
guarantee of public access to certain resources. The doctrine maintains that the public
owns the trust property in common, and the government holds it in trust for public
benefit.75

There is a great deal of scholarship in the Anglo-American jurisdiction on the public

trust doctrine. The contours of the doctrine are, however, sharply disputed.76 While one
school of thought contends that it should be limited to its historical context of water-
ways, the other advocates an expansionist scope that includes inland public lands, wild-
life, forests, public parks and natural resources.77 Some have discounted the inclusion
of wildlife in the list of objects. It is argued that the doctrine is focused on access rather
than conservation and therefore is not suitable for wildlife.78
Expansionists generally define the doctrine as ‘the duty of sovereign states to hold
and preserve certain resources, including wildlife, for the benefit of its citizens’.79 This
definition indicates that the ultimate purpose of the doctrine is promoting the public
interest.
The expansionist doctrine has received favour with some environmental law scho-
lars.80 Joseph Sax, an environmental law professor, is credited with the revival of the
doctrine in the 1970s. He found the doctrine an appropriate special purpose vehicle

75 See Kacy Manahan, ‘The Constitutional Public Trust Doctrine’ (2019) 49(1) Envt L 263 at 264.
76 See James P Power, ‘Reinvigorating Natural Resource Damage Actions through the Public Trust Doc-
trine’ (1995) 4(2) NYU Envt L J 418 at 420; see also Badenhorst (n 59), 659.
77 See Michael C. Blumm, ‘The Public Trust Doctrine – A Twenty-First Century Concept’ (2010) 16(1)
Hastings W-NW J Envt L & Pol’y 105; see also James M Olson, ‘Toward a Public Lands Ethic: A
Crossroads in Publicly Owned Natural Resources Law’ (1979) 56(3) U Det Mercy L Rev 739 at
852, 854; Power (n 76), 429; David L Callies, ‘The Public Trust Doctrine’ (2019) 8 Brigham-
Kanner Property Rights Conference J 71 at 72; Thomas W Merrill, ‘The Public Trust Doctrine:
Some Jurisprudential Variations and Their Implications’ (2016) 38(2) U Haw L Rev 261 at 262;
Van den Berg (n 38), 147.
78 Thomas Schumann, ‘Pushing the Boundaries of the Public Trust on the Last Frontier: A Study in Why
the Doctrine Should Not Apply to Wildlife’ (2017) 44(2) Ecology LQ 269 at 270.
79 Allan Kanner, ‘The Public Trust Doctrine, Patrine Patiae, and The Attorney General as the Guardian of
the State’s Natural Resources’ (2005) 16(57) Duke Envtl Pol’y Forum 57 at 61 citing Darren K Cottriel,
‘The Right to Hunt in the Twenty-First Century: Can the Public Trust Doctrine Save an American Tra-
dition?’ (1996) 27 PAC L J 1235.
80 Manahan (n 75), 148; see also Patricia Kameri-Mbote, ‘The Use of the Public Trust Doctrine in
Environmental Law’ (2007) 3(2) L, Environment & Dev J 195 at 197; see generally Monique
Evans, ‘Parens Patriae and Public Trust: Litigating Environmental Harm Per Se’ (2016) 12(1)
JSDLP 1 at 13 for a Canadian perspective: ‘The doctrine, as a tool of Canadian environmental law,
is still in its infancy, but may present a next-best option for environmental activists in combatting
environmental harm per se’.
96 V Ngaanuma

to promote citizen standing for environmental protection. He saw the doctrine as a tool
for promoting democracy through citizen suits. He succinctly stated that the public trust
doctrine has the most ‘breadth and substantive content which might make it useful as a
tool of general application for citizens seeking to develop a comprehensive legal
approach to resource management problems’.81
The doctrine is a ‘substantive safeguard against abuse of the property power by the
legislative and executive branches of government’.82 Similarly, it ‘ensures that govern-
mental action can be checked to ensure that it benefits the citizenry with regard to key
environmental resources’.83 It is, therefore, an important tool for promoting constitu-
tionalism by granting standing to citizens to question decisions made by the executive
or legislature in relation to public trust property.
The doctrine has also received some strong criticisms; for instance:

It has also attracted scathing criticisms of the theoretical foundation of the doctrine and
its concomitant expansive scope of application. Criticisms have been leveled against its
counter-majoritarian pedigree in our democratic system, its lack of flexibility in accom-
modating administrative expertise in managing natural resources, and its hostility
toward private property protection.84

Some scholars have described three restrictive features of objects under the public trust
doctrine, namely that the objects cannot be sold, must be maintained for particular uses
and must be held for the use of the general public.85 If this description is accepted, then
the doctrine will be in discord with the regalian mineral ownership in Ghana because the
president can alienate or transfer mineral rights to private legal persons through the grant
of mining leases.86 It has, however, been determined elsewhere that objects of the doc-
trine can be sold. For instance, ‘Illinois Central Railroad Co. v Illinois did provide that
privatization of public trust doctrine resources could occur if the conveyance furthered a
public purpose and there was no substantial impairment of remaining trust resources’.87
The public trust doctrine can be founded on common law or statute.88 It must,
however, be noted that although many laws declare property including natural
resources to be held by the state in trust for the public, such laws rarely declare such
property subject to the public trust doctrine.89

81 See Joseph Sax, ‘The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’
(1970) 68 Mich L Rev 471 at 474; see also George P II Smith and Michael W Sweeney, ‘The Public
Trust Doctrine and Natural Law: Emanations within a Penumbra’ (2006) 33(2) Boston College EnvtI
Aff L Rev 307 at 307.
82 See Olson (n 77), 850.
83 See Kameri-Mbote (n 80), 197 citing Patrick S Ryan, ‘Application of the Public Trust Doctrine and
Principles of Natural Resource Management to Electromagnetic Spectrum’ (2004) 10 Mich. Telecomm.
& Tech L Rev 285.
84 See Haochen Sun, ‘Toward a New Social-Political Theory of the Public Trust Doctrine’ (2011) 35(3)
Vermont L Rev 563 at 567–68 [footnotes omitted].
85 See Kameri-Mbote (n 80), 199.
86 See Minerals and Mining Act, Republic of Ghana 2006, Act 703 s 46 (c): A holder of a mining lease is
empowered to ‘take and remove from the land the specified minerals and dispose of them in accordance
with the holder’s approved marketing plan’.
87 See Callies (n 77), 80, citing Illinois Central Railroad Co. v Illinois 146 US at 453–54 (Supreme Court).
88 Ibid, 79; see also Richard C Lane, ‘The Pennsylvania Public Trust Doctrine: Its Use as a Restraint on
Government’ (1975) 13(3) Duq L Rev 551; Manahan (n 75), 270.
89 See Callies (n 77), 80.
 Journal of Energy & Natural Resources Law 97

The public trust doctrine continues to generate controversy in many jurisdictions

today.90 As James Huffman concisely puts it,

the public trust doctrine in its modern formulation purports to carry the banners of trust
law, constitutional rights, and governmental power, as well as property law, it is imposs-
ible to say which answer is correct as a matter of positive law.91

In response to Huffman, it is argued that the ‘doctrine is a good legal fiction because
it enables new uses of the doctrine to perform a gap-filling function in the absence of
positive law and, therefore, that it deserves to continue unchallenged’.92 In answer,
Huffman argues that the true history of the doctrine had nothing to do with ownership
of land but rather with the grant of rights to the public to fish and navigate in navigable
waters. He cautions against the rewriting of the history of the doctrine.93
There is, however, no scholarship on the doctrine in Ghana even though the
elements of the doctrine, in its expansive context, are explicit in the supreme law of
Ghana and much legislation.94 These laws should be the vehicle for introducing the
public trust doctrine into Ghanaian law. Whether the mineral ownership regime in
Ghana falls squarely within the public trust doctrine in the Anglo-American sense or
not, what is indisputable is that it creates a public trust relationship between the presi-
dent and the people of Ghana.95

4.2. Nominal trusteeship

The type of trust relationship established between the president and the people of Ghana
concerning ownership of minerals in their natural state in Ghana appeared to have been
resolved through a judicial pronouncement.96
In Adjaye & others v Attorney-General & others, the plaintiffs were three ordinary
citizens of Ghana, while the first defendant was the Attorney General for the govern-
ment as by law provided, and the second defendant was Ashanti Goldfield Corpor-
ation.97 The brief facts of the case are that sometime in 1972 the government
acquired 55% shares in the second defendant for and on behalf of the people of
Ghana in the government’s quest ‘to capture the commanding heights of the
economy’.98
The government of Ghana at the time of the suit purported to transfer 25% of the
55% share it had in the second defendant, a mining company in Ghana, to Lonhro, a

90 Ibid, 91.
91 See James L Huffman, ‘A Fish out of Water: The Public Trust Doctrine in a Constitutional Democracy’
(1989) 19(3) Envtl L 527 at 567.
92 See Hope M Babcock, ‘The Public Trust Doctrine: What a Tall Tale They Tell’ (2009) 61(2) SCL Rev
393 at 394.
93 See James L Huffman, ‘The Public Trust Doctrine: A Brief (and True) History’ (2019) 10(1) Geo Wash
J of Energy & Envtl L 15 at 32.
94 See Constitution of Ghana (n 2).
95 See ibid, art 257 cl 6; see also Minerals and Mining Act, Republic of Ghana 2006, Act 703 s 1; Adjaye
(n 3).
96 See Adjaye (n 3).
97 See Constitution of Ghana (n 2), art 88.
98 See Adjaye (n 3).
98 V Ngaanuma

private entity. The plaintiffs contended that the government held the shares in trust for
the people of Ghana. They further contended that the decision to sell said shares to
Lonhro constituted a grave breach of trust which will injure the interests of the bene-
ficiaries, who are the people of Ghana including the plaintiffs.
According to the endorsement of the plaintiff’s writ of summons, the relief sought
that is relevant to this discussion was ‘a declaration that the Government of the Repub-
lic of Ghana holds 55% shares in Ashanti Goldfields Corporation in Trust for all the
citizens of Ghana’.99 Concerning this relief, the issue set out for determination was
‘whether or not there is an enforceable trust relationship between the plaintiffs and
the Government by virtue of the acquisition of shares in Ashanti Goldfields Corporation
by the Government’.100
In resolving the issues, the court clarified that the subject matter of clause 6 of article
257 is strictly minerals in their natural state and shares are outside its scope. The court
accepted, however, the plaintiffs’ claim of a trust relationship based on the consti-
tutional provision of sovereignty that resides in the people.101 According to the
court, ‘a trust relationship should extend to all areas where functions of government
are carried out’.102
On the issue of the enforceability of the trust relationship, the court determined that
the trust relationship established in clause 6 of article 257 for minerals and clause 1 of
article 1 for other governmental functions is a nominal one and not justiciable. The case
cited with approval Kinloch v Secretary of State for India in Council and Tito v Waddell
(no. 2) which held that the trust relationship between the crown and its subjects is a trust
in a ‘higher sense’ and therefore not enforceable.103
The holding of the court was based on three main grounds; first, the precedents
from the above English cases; second, that proving the existence of a trust relation-
ship must be supported by its enforceability – in this case, governmental obligation
relating to duties and functions of government are unenforceable; and, finally, that
the constitution grants the president executive powers and this includes decision-
making.104
It is, however, important to distinguish these foreign cases from the Ghanaian case,
because while the Ghanaian case was determined within a republican constitutional
context, the foreign cases were determined within a colonial, imperial and monarchical
context. In other words, the determination of trust concerning the crown cannot be the
same as that in relation to a republic. Therefore, the foundations for determining Adjaye
are not solid. James Huffman puts it similarly in the case of a jus publicum, that ‘there is
a difficulty in relying on jus publicum constraints on a crown that derives its authority
from God as precedent for similar limits on governments that derive their authority
from the people’.105
Secondly, the argument of the unenforceability of governmental obligations under
the constitution is not entirely accurate. The law is that the entire constitution is

99 Ibid.
100 Ibid, para 8 of Statement of Claim.
101 See Constitution of Ghana (n 2), art 1 clause 1.
102 See Adjaye (n 3).
103 See Kinloch v Secretary of State for India in Council (n 3); Tito v Waddell (no. 2) (n 3).
104 See Adjaye (n 3).
105 See Huffman (n 91), 18.
 Journal of Energy & Natural Resources Law 99

enforceable without derogation even for provisions under the directive principles of
state policy under chapter 6 of the Constitution of Ghana. In India, where these prin-
ciples are not justiciable, the constitution clearly states so.106 Even if the law was
that these principles are not justiciable, the constitutional provisions concerned in
this case are outside the scope of these principles and found in entirely different chap-
ters of the constitution.
Third, the executive power granted the president is not absolute. It is to be exercised
in accordance with the provisions of the constitution.107 It therefore does not bar citi-
zens from questioning the decisions taken by the president. In other words, the argu-
ment is not about the power of the president to make decisions, but about the
questionability of those decisions.
Moreover, the determination of nominal trusteeship in Adjaye is not entirely helpful
in properly resolving the confusion over the trust relationship in mineral ownership in
Ghana, because it was not a case of constitutional interpretation of clause 6 of article
257. Parties to the case did not directly request a constitutional interpretation, and if
they had, the high court would have denied jurisdiction in that regard. The Supreme
Court of Ghana has exclusive jurisdiction for the interpretation of the constitution.108
On the foregoing grounds and others to be argued in section 5 of this paper, it is
argued that the determination in Adjaye, that the trust relationship established in
clause 6 of article 257 of the constitution of Ghana is a nominal one and not justiciable,
is unconstitutional.

4.3. Implications for standing

The determination that the trust relationship created between the president and the
people in the ownership of minerals is nominal and, therefore, an unenforceable trust
has implications for the standing of citizens to question the decision of the president
in this regard.
Austin Probst defines standing as ‘a judicial determination of a complaint’s alle-
gations to determine whether the plaintiff is entitled to adjudication of the particular
claims asserted in the complaint’.109 He contends that standing could originate from
statute or a constitution, and the latter is unclear.110
Access to courts by citizens to question decisions of the president and the executive,
in general, is a fundamental right in constitutional systems. It is ‘one of the highest and
most essential privileges of citizenship’.111 It is important not only for improving the
quality of justice in the state but also for guaranteeing that the government listens to
the citizens, and ‘results in enforcement of laws that otherwise could be violated

106 See Dennis Dominic Adjei, Modern Approach to the Law of Interpretation in Ghana (Adwinsa Publi-
cations (Gh) 2015) at 154–58; see especially Ghana Lotto Operators Association and others v National
Lottery Authority [2007–8] 2 SCGLR 1088 (Republic of Ghana, Supreme court), in which the court
held that the Directive Principles of State Policy are justiciable.
107 See Constitution of Ghana (n 2), art 58 cl 1.
108 See ibid, art 130 cl 1 (a).
109 See Austin W Probst, ‘Go with the Flow: The Public Trust Doctrine and Standing’ (2017) 62(3) Wayne
L Rev 535 at 543.
110 Ibid citing Steven L. Winter, ‘The Metaphor of Standing and the Problem of Self Governance’ (1988)
40 Stan L Rev 1371.
111 See Babich (n 23) citing Chambers v Bait. & Ohio R.R. Co. [1907] 207. 142, 148 (US).
100 V Ngaanuma

with impunity. This is a plus in terms of good government and the rule of law, but it can
annoy powerful people who are accustomed to getting their own way’.112
In the United States of America, the federal courts have been inconsistent on the
matter of standing of citizens to vindicate public interests. From the late 1960s
onwards, the courts began granting such jurisdiction.113 However, ‘by the mid-
1970s, an increasingly conservative Supreme Court began to cut back on the standing
of private litigants to vindicate public interests’.114 As recently as 2016, a court in the
United States of America granted standing to 21 plaintiffs on grounds including
the federal government’s violation of its ‘duty to manage public resources in trust for
the people and for future generations’.115
Conservative courts generally consider the following factors when deciding citizen
standing in public interest-related matters: whether the plaintiff has a significant stake in
the cause or matter; proof that the plaintiff is injured or likely to be injured by the cause
or matter, and that it is not a generalised injury.116
In Canada, access to courts on grounds of public participation by citizens of the pro-
vince of Alberta appears to be growing steadily. Albertans are not, however, fully sat-
isfied with the present standard of public participation.117 The level of access to courts
is limited to only project-affected persons who can satisfy the grounds of standing.
Therefore, ‘there is no legal right to public participation in resources and environmental
project decision-making in Alberta’.118
The public trust concerning public natural resources should be categorised as
special and different from an ordinary charitable trust. The distinction is necessary
because in the case of the former,

since the Commonwealth is the trustee of the natural resources, and the Attorney
General is the trustee’s chief counsel, to hold that the Attorney General is the only
party who may seek to enforce the terms of the trust, would be to hold, in effect, that
only the trustee could question its own performance.119

As Austin Probst aptly puts it, ‘there is little value to an unenforceable right.
If the public trust is to have any “teeth” … as an effective policy, conferring
standing through the use of the rights given by it is a logically necessary
condition’.120

112 Ibid at 1109.

113 See Seth Davis, ‘The New Public Standing’ (2019) 71(5) Stan L Rev 1229 at 1232, citing Louis L. Jaffe,
‘The Citizen as Litigant in Public Actions – The Non-Hohfeldian or Ideological Plaintiff’ (1968)116
UPA L Rev 1033; see also Flast v Cohen [1968] 392 US, 83, 85–86, 88; e.g. United States v Students
Challenging Regulatory Agency Procedures (SCRAP), [1973] 412 US 669, 674–76, 688–90.
114 Ibid citing Hein v Freedom from Religion Foundation [2007] 551 US 587, 602, 608–09 (opinion of
Alito, J.); see also Jaffe (n 111), 1033–35.
115 Michael C. Blumm and Aurora Paulsen Moses, ‘The Public Trust as an Antimonopoly Doctrine’ (2017)
44(1) Boston College EnvtI Aff L Rev 1 at 53–54, citing Juliana v United States, [2016] No. 15-ev-
01517-TC, 2016 WL 6661146, *2–3 US (decided on 10 November 2016).
116 See Matthew I Hall, ‘Standing of Intervenor-Defendants in Public Law Litigation’ (2012) 80(4)
Fordham L Rev 1539 at 1543.
117 See Vlavianos (n 25).
118 See Fluker (n 24).
119 See Lane (n 88), 572 citing Fox Appeal [16 May 1974] No. 73-078-B at 4 (Pa. Environmental Hearing
Bd.) US.
120 Probst (n 109), 555.
 Journal of Energy & Natural Resources Law 101

In conclusion, the primary purpose of public trust in mineral ownership is to

promote democracy and good governance. It does this by promoting the account-
ability of public officials, including the president.121 Therefore, concerning
‘public natural resources, it would seem that any citizen, as beneficiary of the
public trust, would have sufficient interest in the matter to become a party or to
take an appeal’.122

5. Constitutionality of the concept of nominal trusteeship

This section argues that apart from the significant shortfalls of the Adjaye case and its
implications for standing for citizens, there are strong arguments for granting citizens
standing in matters of regalian mineral ownership, and the concept of nominal trustee-
ship as determined violates the critical constitutional principles of constitutionalism,
separation of powers, rule of law, judicial review and administrative justice. It
further stifles good natural resource governance and good governance broadly.
The principle of constitutionalism means government limited by the terms of a con-
stitution, not government limited only by the desires and capacities of those who exer-
cise power.123 As Kumado puts it, constitutionalism is ‘the art of providing a system of
effective restraints on the exercise of governmental power’.124 Inherent in the principle
is the idea that individuals or institutions granted powers should in the exercise of those
powers be restrained to prevent arbitrariness in the exercise of those powers. These
limitations could be structural or substantive.125
The unenforceability of the nominal trust violates constitutionalism. It gives unfet-
tered and unlimited power to the president over mineral resources in their natural state
in Ghana. An unrestrained president tends to act arbitrarily and injure the interest of the
people of Ghana.126
Like the principle of constitutionalism, the principle of separation of powers seeks
to promote liberty and prevent arbitrary exercise of governmental power.127 The prin-
ciple achieves its goals by breaking up governmental power among different
bodies.128 Adopting the popular exposition of Justice Jackson on the principle,
‘while the Constitution diffuses power the better to secure liberty, it also contemplates
that the practice will integrate the dispersed powers into a workable government. It

121 Lane (n 88), 569–70 citing Sax (n 81), 561.

122 Ibid, 570 citing Bucks County Bd. of Comm’rs v Public Util. Comm’n, (1973)11 Pa. Commw. 487, 313
A.2d 185 (US).
123 See Wheare (n 1); see also Kumado (n 1); Mcllwain (n 1); John McCain, ‘Limited Government and the
Rule of Law’ (2007) 5(2) Geo J of L & Public Policy 301 at 303; Richard B Sanders and Barbara
Mahoney, ‘Restoration of Limited State Constitutional Government: A Dissenter’s View’ (2003) 59
(2) New York U Annual Survey of American L 269 at 276; Frank Johnson Goodnow, Principles of Con-
stitutional Government (Harper & Brothers 1916), 3.
124 Kumado (n 1), 6.
125 Gerhard Casper, ‘Constitutionalism’ (1987) U of Chicago L Occasional Paper No 22, 16 http://
chicagounbound.uchicago.edu/occasional_papers accessed 20 February 2020.
126 Ibid.
127 See Gwyn (n 17), vii and 159; see also Albert Conway, ‘Separation of Powers Doctrine: Historical
Sources’ (1956) 2(4) NYL Sch L Rev 351 at 352; Rhoda E Howard, ‘Legitimacy and Class Rule in
Commonwealth Africa: Constitutionalism and the Rule of Law’ (1985) 7(2) Third World Q 323 at
330 http://jstor.org/stable/3991605 accessed 22 February 2020.
128 Casper (n 125), 11.
102 V Ngaanuma

enjoins upon its branches separateness but interdependence, autonomy but

reciprocity’.129
The unenforceability of the nominal trust violates the principle of separation of
powers because it does not promote the diffusion of powers and restricts the judicial
organ from exercising its judicial authority concerning mineral ownership. This
equally violates the principle of judicial review, a principle under which legislative
and executive actions are subject to review.130
The principle of rule of law is essential for constitutionality. It is generally and sub-
stantially defined as:

A principle of governance in which persons, institutions and entities, public and private,
including the state itself, are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with international
human rights norms and standards. It requires, as well, measures to ensure adherence
to the principles of supremacy of law, equality before the law, accountability to the
law, fairness in the application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness and procedural and legal
transparency.131

The principle promotes public participation in governance and is, therefore, ‘an attri-
bute of democratic governance’.132 Rule of law is different from rule by law. While
the latter means the existence of laws, the former goes beyond that to include the attri-
butes of fairness, equality and accountability in the law. The unenforceability of the
nominal trust violates the principle of rule of law because it is in discord with the defin-
ing attributes of the principle.
Sovereignty resides in the people. This is a fundamental principle in the consti-
tution. The court in the Adjaye case accepted that this principle created a trust relation-
ship between the president and the people. It is a foundation for accountability.133 The
importance of this principle in the constitution cannot be underrated with any deroga-
tion. It is, therefore, a strong basis and not merely an ideological argument that the prin-
ciple provides a strong basis for declaring the unenforceability of nominal trust
unconstitutional.
An important argument that is canvassed in the challenge of the principles of con-
stitutionalism, separation of powers, and sovereignty in the people is the argument of
parliamentary oversight over the executive.134 The gravamen of this argument is that
parliament represents the people and therefore exercises the sovereignty of the

129 Arnold I Burns and Stephen J Markman, ‘Understanding Separation of Powers’ (1987) 7(3 and 4) Pace
L Rev 575 at 583–84 citing Youngstown Sheet & Tube Co. v Sawyer (1952) 343 US 579, 635 (Jackson, J
concurring).
130 See Marbury v Madison (1803) 5 US (1 Cranch) 137 (Supreme Court).
131 Henrietta Mensa-Bonsu and Philip Attuquayefio, ‘Rule of Law and the Do You Know Who I Am Syn-
drome: Reflections on Political Security in Ghana’ (2016) 24(4) Afr J of Intl & Comp L 604 at 611,
citing UNSG, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict
and Post-Conflict Societies (2004).
132 Ibid; see also Howard (n 127), 347.
133 See Kimberly N Brown, ‘We the People, Constitutional Accountability, and Outsourcing Government’
(2013) 88(4) Ind LJ 1347 at 1373 [footnotes omitted].
134 See Huffman (n 91), 555–56, citing James Huffman, ‘Public Trusts: Gaining Access to the Courts’
(1977) 8 Envt’l L 217, 228.
 Journal of Energy & Natural Resources Law 103

people. Although this appears to be a potent argument, the failure of many parliaments
in representative democracies to hold the executive in check is equally well documen-
ted.135 It has been aptly stated that in Ghana,

Even though Parliament is supposed to serve as a check on the powers of the executive,
the practice under the 1992 Constitution has been to allow the executive to do virtually
anything it wants. This is partly due to the hybrid system where the executive draws the
majority of the cabinet from the legislature. Such a state of affairs does not augur well for
the democracy of the country, in the sense that an over-concentration of power in the
hands of an ‘uncontrollable’ executive may lead to a democratic dictatorship, which
has the tendency of reversing the gains made in our democratic governance
experiment.136

Furthermore, records from the Parliament of Ghana show that between 1994 and 2007,
18 mining leases were not ratified, in violation of the parliament’s constitutional func-
tion of ratifying agreements relating to natural resources.137
Another constitutional argument in support of the enforceability of the trust is the
constitutional duty of administrative officials, such as the president, to ‘act fairly and
reasonably and comply with the requirements imposed on them by law and persons
aggrieved by the exercise of such acts and decisions shall have the right to seek
redress before a court or other tribunal’.138 The president makes decisions in mineral
ownership in his administrative role; therefore, such decisions must be subject to ques-
tion in court by aggrieved citizens. The constitution should be at peace with itself, not
providing guaranteed rights in article 23 and taking away those rights in clause 6 of
article 257.
Also, since the trust relationship created through the vesting of stool and skin lands in
the president on grounds of public interest is justiciable, and the trust relationship created
between stools or skins and their subjects is justiciable, by parity of reasoning, the trust
relationship created concerning ownership of minerals should also be justiciable.139
From the foregoing reasons and grounds of general good governance, the thesis of
this paper, that the concept that vesting of mineral rights in the president creates a
nominal trust relationship that is unenforceable by court action is unconstitutional, is
affirmed.

6. In pursuit of constitutionality and good natural resources governance

This final section provides recommendations and conclusions for the pursuit of consti-
tutionality and good natural resource governance in Ghana.

135 See Stephens (n 26).

136 See Kwame Frimpong and Kwaku Agyeman-Budu, ‘The Rule of Law and Democracy in Ghana since
Independence: Uneasy Bedfellows’ (2018) 18(1) Afr Human Rights L J 244 at 265.
137 See Hansard of Parliament of the Republic of Ghana [20 October 2008] (Statement by Hon. EK
Adjaho); see also Constitution of Ghana (n 2), art 268 on parliamentary ratification of agreements relat-
ing to natural resources.
138 See Constitution of Ghana (n 2), art 23 [emphasis added].
139 See Administration of Lands Act, Republic of Ghana 1962 Act 123 s 7(1); but see Nii Nortty Omaboe III
& 3 ORS v Attorney General & Lands Commission [2006] MLRG 54 (Supreme Court, Ghana) wherein
the Supreme Court of Ghana declared unconstitutional any vesting of stool or skin land in the president
after the coming into force of the 1992 Constitution on 7 January 1993.
104 V Ngaanuma

6.1. Recommendations
First, it is recommended that parliament introduces legislation including the public trust
doctrine in its expansive definition in Ghana.140 This will provide clarity to the public
doctrine and promote public participation in the affairs of the state. This will enhance
good governance, especially in nonrenewable sectors like mining. Without parliamen-
tary intervention, the remaining avenue will be the opportunity of overruling Adjaye by
either the Court of Appeal or the Supreme Court in the future.
Second, a liberal standing position should be adopted by the courts in cases where
citizens seek to question the decision of the president concerning minerals. The paper is
not oblivious to the challenges this could create, such as opening the door for frivolous
suits and delay in decision-making concerning minerals.141 However, ‘The expense and
annoyance of legal processes is part of the social burden of living under a
government’.142
These challenges are surmountable through appropriate procedural guidelines to
govern such suits. For instance, courts could, through deterrent and exemplary costs,
ward off frivolous causes. Also, in order not to delay mining projects and related
decisions through suits, the guideline could provide for a time limit between when a
decision is taken by the president and when suits concerning those decisions can be
entertained, say a period of six months maximum. Furthermore, special courts could
be set aside, as is regularly done in the country to deal with specific important national
issues, to deal with these suits timeously to prevent delays. Where different rights are
competing, a balancing act is usually required.

6.2. Conclusions
From the discussion of issues in the paper, the following major conclusions can be
drawn: first, that a trust relationship is created between the president and the people
of Ghana concerning minerals in their natural state in Ghana; second, that this trust
relationship is a special kind of public trust which does not share the incidents of chari-
table trusts; third, and ultimately, that the determination of a nominal and unenforceable
trust is erroneous, unconstitutional and a drawback for good natural resource
governance.
In conclusion, to promote constitutionality and good governance, the revised theory
of trusteeship should be one that complies with the constitutional principles of consti-
tutionalism, separation of powers, rule of law, judicial review, sovereignty in the people
and administrative justice. Such a revised theory will accept the justiciability of this
special trust and insulate citizens from Plato’s caution that ‘no human being is
capable of having irresponsible control of all human affairs without being filled with
pride and injustice’.143

140 See e.g. Manahan (n 75), 284.

141 See e.g. Van den Berg (n 38), 149.
142 Babich (n 23), 1115, citing FTC v Standard Oil Co. of Cal, (1980) 449 US 232, 244.
143 See Joshua B Stein, Commentary on the Constitution from Plato to Rousseau (Lexington Books 2011),
11.