COMPULSORY ACQUISITION OF LAND AND THE MYTH ABOUT EXTINGUISHMENT by Eugene Alagskomah

Introduction

Compulsory acquisition of land is defined by Harold Parrish1 as a situation whereby land or an interest in land is purchased or taken under statutory powers without the agreement of the owner. Asante-Ansong2 in his publication “Compulsory Land Purchase and Compensation” also defined compulsory land acquisition as a situation whereby land is taken without the agreement of the owner, in the national interest, by a statutory power under an Act or an instrument granting that power. This article adopts the definition by Asante Ansong3 as the working definition of compulsory acquisition. The constitutionally guaranteed right to own property under Articles 18 (1) and 36 (7)4 is not sacrosanct. It can be interfered with through the due process of law5

There is a raging debate as to the nature of the rights of the pre-acquisition land owners subsequent to the compulsory acquisition. While others (especially our good friends Apraku and Maameyaa) are of the view that the rights of the pre-acquisition landowners are completely extinguished, others are of the view that where the property of a subject has been compulsorily acquired by the government the right of the subject to the property is compulsorily changed in form6. The authors are agreed to the latter view which is rooted in case law. 

This article, therefore, seeks to illustrate the effect of compulsory acquisition of land on the pre-acquisition landowners. It does so by forcefully advancing cogent arguments in favor of the proposition that compulsory acquisition of land does not completely extinguish the rights of the pre-acquisition landowners but rather it changes them in form and character7. That is, some of those rights are transformed and new rights emerge. 

Effects of Compulsory Acquisition on the Rights of the Original Owner

The effects of compulsory acquisition of land by the government on the rights of the original landowners are explained below. While the first point talks about the transformed right of the pre-acquisition landowners (i.e the right to outright alienation of the land) the other points talk about the new rights which accrue to the pre-acquisition landowners by virtue of the acquisition (i.e right to compensation, right of first refusal and reversion, occupation as licensee). 

 

  • The Right to “Exclusively” Alienate the Property is Extinguished

 

After the publication of the acquiring executive instrument the pre-acquisition owner is divested of his property in the land and the property becomes automatically vested in the President8. Once the formalities for the compulsory acquisition are completed, the pre-acquisition landowners have no right to unilaterally convey the land to another person9. In Memuna Amoudy v. Antwi10, when the plaintiff sought for an order of ejectment against the defendant on the grounds that as their licensee, the defendant, by asserting that the title to the land in dispute was not vested in them (the lessors) but the Government of Ghana, he had denied his lessor’s title and had therefore forfeited his right to remain on the land; the Supreme Court in dismissing the suit held per Atuguba JSC that the plaintiff was a licensee of the government after remaining on the land which had been compulsorily acquired by the government and as a licensee, he has no estate to transfer to anyone (the defendant). 

The operative word here is “exclusive” or “unilateral” alienation. That is an alienation as of right which is done without the need for any concurrence by a third party. However, the pre-acquisition owners can only convey the land to another person with the consent of the government11. The government acquires the allodial or paramount title after the completion of the formalities of the acquisition. In Mensah-Moncar v. Chairnartey12, the plaintiff brought an action for a declaration of title to a piece of land which he bought from his vendor and had the conveyance registered with the deeds registry and which unknown to him was compulsorily acquired by the government and leased to the defendant after the publication of the notice of acquisition.  On whether or not the plaintiff had a better title to the land, the High Court per Abban J held that where a notice of acquisition of property is published in the Gazette, a subject with interest in the property has no right after such publication to convey the title to the land to anyone without the consent of the government. Any purported conveyance by a vendor without the said consent will be void irrespective of the fact that the conveyance is registered with the Deeds Registry. 

This shows that the right to alienate the land is not completely extinguished, as some people would want to argue, but is rather changed in form (transmogrified). 

 

  • Right to Compensation

 

The state in the exercise of its power of eminent domain compels the individual to acquiesce his/her rights in the property13. But how does it interpose and compel without absolutely stripping the subject of his property in an arbitrary manner? The answer cannot be farfetched; it does this by giving the individual in the words of Blackstone14 “full indemnification and equivalent for the injury thereby sustained” or “prompts payment of fair and adequate compensation” in the language of the 1992 Constitution15. This is why the High Court per Abban J in Mensah Moncar v. Chairnartey16 held that where the property of a subject has been compulsorily acquired by the government the subject has the right to maintain a claim for compensation against the government provided the said claim is made within three months of the publication of the notice of acquisition. Where the acquisitions have the effect of depriving owners of land of their entitlement to compensation it would be a violation of section 4 of Act 125 and would therefore be declared ultra vires17. 

 

  • Licensee

 

After the compulsory acquisition of the land by the government, the pre-acquisition landowner may remain on the land as a licensee of the government and not an adverse possessor18. As a licensee, he has no interest which he can transfer to another person19. Also, as a licensee, he can maintain an action against trespassers except for the owner.  

 

  • Right of First Refusal

 

The right of first refusal of the original landowner is a constitutionally guaranteed right20. This is succinctly provided for under Article 20 (6) of the Constitution, 1992 which provides inter alia that “where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option for acquiring the property and shall, on such reacquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurable with the value of the property at the time of the reacquisition”. It is worth pointing out that this is a 1992 Constitutional novelty as pre-1992 constitutions did not provide for the right of first refusal by the pre-acquisition land owners21. Implicit in the right of first refusal is the right of reversion. What this means is that so long as the property is acquired, the pre-acquisition landowners’ reversionary rights are not extinguished. They remain and when the land is not used for the intended purpose, the pre-acquisition landowners have the right to re-acquire the land by refunding the whole or part of the compensation paid to them as provided for by law or such other amount as is commensurable with the value of the property at the time of the reacquisition22. However, when the land is used for the intended purpose, the right of reversion is completely extinguished. 

The Myth of Extinguishment (Nii Olai Amontia v. MD, Ghana Telecom23)

The case of Nii Olai Amontia v. MD, Ghana Telecom24 is often relied upon as an authority for the proposition that the compulsory acquisition of land by the government completely extinguishes the rights of pre-acquisition landowners. 

In the Amontia case (supra) the Court of Appeal per Dotse J. A (as he then was) said in obiter that “since the certificate of title of the compulsorily acquired land had created an absolute and indefeasible title in the land so acquired by the government against all persons, free from all adverse and competing rights; what it means is that the rights of the pre-acquisition owners of the land so acquired appear to have been completely extinguished at all times” (emphasis mine). The choice of words by the learned Justice of the Superior Court must be given great consideration. Instead of being unequivocal, he decided to use the word “appear”. It is this obiter that has been wrongly construed by some lawyers and students of the law as the ratio of the decision. Some even wrongly go far to quote the Amontia case (supra) as a locus classicus of the proposition that “the compulsory acquisition of land completely extinguishes the rights of pre-acquisition landowners”. 

Conclusion

In conclusion, it is the position of the author that compulsory acquisition of land does not completely extinguish the rights of the pre-acquisition landowner but rather compulsorily changes them. After the compulsory acquisition of the land, the pre-acquisition landowners cannot unilaterally alienate the land to another person but they can do so with the consent of the government. The pre-acquisition landowners also have the right of first refusal and reversionary interest so long as the land is not used for the intended purpose. They have the right to compensation and to the extent that if the acquisition is done in a manner that will deprive them of their right to compensation, that acquisition will be null and void. Finally, they can remain on the land as licensees of the state. 

REFERENCES

  1. Halsbury’s Laws of England (4th ed.), Vol. 8, p. 6
  2. Asante Ansong “Compulsory Purchase and Compensation [1976] Vol. VIII No. 1 RGL 28-38
  3.  ibid
  4. 1992 Republican Constitution, Ghana
  5. Article 18 (2) of the Constitution, 1992
  6. Mensah-Moncar v. Chainartey [1972] 2 GLR 293
  7. ibid
  8. Rockson v. Agadzi and Another [1979] GLR 106
  9. Mensah-Moncar v. Chainartey [1972] 2 GLR 293
  10.  Memuna Amoudy v. Kofi Antwi [2003-2004] 2 SCGLR 967
  11.  Mensah-Moncar v. Chainartey [1972] 2 GLR 293
  12.  ibid
  13.  Ibid (note 2)
  14.  Halsbury’s Laws of England (4th ed.), Vol. 8, p. 6
  15.  Article 20(2) of the Constitution of Ghana, 1992
  16.  Mensah-Moncar v. Chainartey [1972] 2 GLR 293
  17.  Ellis and Wood Families v. Nana Kyei Baffour II [1975] 2 GLR 46
  18.  Memuna Amoudy v. Kofi Antwi [2003-2004] 2 SCGLR 967
  19.  ibid
  20.  Article 20(6) of the Constitution of Ghana, 1992
  21.  Odame Larbi (2008), “Compulsory Land Acquisition and Compensation in Ghana: Searching for Alternative Policies and Strategies” FIG/FAO/CNG International Seminar on State and Public Sector Land Management, Vienna Italy
  22.  Article 20(6) of the Constitution of Ghana, 1992
  23.  Nii Nikoi Olai Amontia v. Managing Director, Ghana Telecom; Civil Appeal H/33/04 CA; [2006] Vol. 2 GLR 69
  24.  ibid