CUSTOMARY LAND LAW AND THE CONSTITUTION. OVERRIDING TRADITION FOR STATE PRUDENCE. by Selikem Donkor

The territory of a state is one of the most vital assets of a state. Not only for its economic importance, but also, the very existence of a state is dependent on having a territory . This existential importance has awakened African nations who have had colonial experience to take steps both legally and illegally to reclaim part of their territory which has either being ceded to foreign nations under international agreements or owned by foreigners within their territorial boundary during the striving days of colonialism. Legal systems of nations in Sub-Saharan Africa such as Ghana and Nigeria have had these experiences, also Southern African nations such as Zimbabwe, Botswana and South Africa have not been kept away from this Pan-Africanist struggle . Though over 30 African states have policies and laws reflecting the ceaseless urge to reclaim lands gained by colonial officers during the times of colonial struggle, attention will be paid to the experience of Ghana. Here, the statutory work which will be under legal microscope is the 1992 constitution which will be discussed in light of the ‘Our Land’ claims.

The three post 1960 constitutions of Ghana had adopted a character, a Pan-Africanist attitude which undertook a retrospective reclaiming of lands from foreigners through the application of substantive and procedural limitations on the Land Rights of foreigners. Under the 1969 Constitution, Article 163 (7) barred non-citizens from earning or owning freehold interests in any Land within the territory of Ghana. Similarly, the 1979 constitution depicted same attitude under Article 189(8). Under the 4th republican constitution, this Is captured under Article 266(1). The tentacles of this provision in ending the colonial trademark on land ownership in Ghana was not limited to the absolute embargo placed on the inability of non-citizens to acquire a freehold interest in lands. It stated further, that any such deed which attempts to confer freehold interest on a non-citizen is void ab initio. But that was not all. Realizing that non-citizens have already acquired freehold interest in lands before the coming into force of the various post 1960 constitutions, the framers went further to state that, all freehold interest held by a non-citizen before the 22 of August 1969, shall be converted to a leasehold interest of 50 years. Thus, per mathematical quantification, all freehold interest held by any non-citizen before 1969 converts to a leasehold which terminates on 22 of August 2019.
It has been opined Justice Acquah that this provision was a progressive step to protect the economic interest of citizens realizing the enormous economic and financial benefits that comes from land ownership.

One other step in limiting land rights of foreigners is depicted under Article 266(3) of the 1992 constitution. It states that no leasehold interest shall be placed in any foreigner which vest in him a leasehold right beyond 50 years. Any non-citizen who before the 22nd of August 1969 who held a leasehold interest of more than 50 years, shall convert immediately to a leasehold right of 50 years beginning from 22nd of August 1969. This provision together with provisions discussed above, have sort of and have in fact protected the land rights of citizens and at large, their economic interest since the larger section of Ghana’s population is into farming and farming is impossible without having land under one’s disposal .

But fortunately for some and unfortunately for others, the 1992 constitution extended its tentacles through substantive limitations on the land rights of its own citizens. The 1992 constitution made giant excursions into the land rights of its own citizens which has met mixed reactions from a sizable number of legal actors and jurists. What was this bold yet questionable step?

Article 267(5) states that no freehold interest shall be created in any stool land for any person or body of persons. One may want to think that, the usage of the word ‘person’ means only natural persons. But subject to the decision of the court in CIBA , where person is used, it includes both natural and legal persons. Thus, this restraint bars both individuals, companies or anybody with legal rights from owning freehold interest in any stool land in Ghana. But why has this provision met a lot of jurisprudential resistance from commentators?

The first litigation concerning Art 267(5) was in Ex-parte Kludze(supra). In that case the applicant contends that the restraint by Article 267(5) applies only to stool lands and not family lands and since the Hohoe lands are family lands, freehold interest can be created in it. Justice Acquah upheld the prayer of the applicant, thus re-emphasizing the position that, with respect to stool lands a freehold interest cannot be created. The decision of the court has been subjected to rigorous scrutiny by Mr. Kwame Gyan , who argued that the bi-furcation between stool lands and family lands with respect to the limitation is unnecessary and also that the interpretation placed on Article 267(5) is not the most plausible interpretation if reference is made to Article 267(1) and other policy considerations.

 

EXAMINING THE TENABILITY OF KWAME GYAN’S PRAYERS.

According to the learned jurist, subject to Article 267(1), the constitution realizes and recognizes the role of customary law and usage as an applicable law regulating rights and privileges bothering stool lands. Article 267(1) vests stool lands in the appropriate stool in accordance with customary law and usage. He contends that due to this, the 1992 constitution gives recognition to customary law as still the regulating force of land rights over stool lands. And since Article 11(2) recognizes customary law as part of the laws of Ghana and the constitution of Ghana through Article 267(1) re-assures the applicability of customary law with respect to stool lands , in order to maintain consistency between Article 267 (1) and 267(5) , Article 267(5) should not be interpreted as nullifying the customary law rights of subjects of stools over vacant stool lands with respect to making implied grants.
He further corroborated this position by arguing that, subjects of stools have implied grants over vacant stool lands . By this implied grant, a subject of a stool can by acts of possession occupy any vacant land of a stool and by so doing, acquires a freehold interest in that land. According to the learned jurist, this customary position is insured by Art 267(1) thus, Article 267(5) cannot and should not be interpreted to have overridden this customary right of subjects to acquire freehold interest in stool lands. The learned jurist argues further that, per the linguistic meaning of Article 267(5), emphasis should be laid on the word ‘Created’. Thus, Article 267(5) should be constructed in such a way that, since the right to make implied grants is not a creation of the stool as it is in the case of actual grants, then Article 267(5) doesn’t delimit nor nullify this right to make implied grants by subjects of a stool. The learned jurist went on to note further that, the policy reason behind Article 267(5) is to ensure intergenerational equity such that the right to benefit from stool lands by the future generation is not seized by the current generation through the acquisition of freehold interest in all stool lands or a majority of it. He argued that the policy reason is justified though the reasoning is unfounded because, under customary land law, freehold interest is inheritable thus, what is within the possessory domain of the current generation shall be inherited by the future generation there by not preventing the future generation from having access to these lands. According to him the inheritable nature of the freehold interest even allows for intergenerational equity to be kept.

I must say, with all humility and respect, one afforded me by being privileged to be a student of the learned jurist, that I disagree entirely with his position on the matter. My dissent engulfs his construction with respect to Art 267(1) and Art 267(5) and his arguments with regards to policy reasoning behind Article 267(5). On the first point of dissent, I humbly suggest that there is no prima facie inconsistency between the construction of Art 267(1) and Art 267(5) as being the land policy adopted by the land commission. With reference to Art 267(5), the operative independent clause there is ‘no interest … in any stool land shall be created which vests in a body…a freehold interest’. From the above quote, it appears that the word ‘created’ was used in reference to freehold interest. Thus, the contention by the learned jurist that since implied grant doesn’t create the freehold interest since it was inherently an entitlement of the stool subject is untenable. It is not denied that every subject under customary law has an inherent right to make implied grant. But upon the exercise of that implied grant, there is an instantaneous creation of a freehold interest in that vacant stool land. In that, even with respect to an implied grant as it is with an actual grant, there is still the creation of a freehold interest in the stool land when an implied grant is exercised. It is this creation which Article 267(5) bars. If we should consider the position of the learned jurist carefully , per his contention that the freehold interest is not created when an implied interest is exercised rather it is inherently a right of the subject in the stool , then it means that even before the exercise of the right to make an implied grant , there was already an existing freehold interest to every subject in that vacant stool land. If this is so, there is in fact no need for the right to be ‘exercised’ through an act of possession or occupation. What rather appears to be the coherent and a consistent position of the customary law is that, every subject has a right to potentially create a freehold interest in a vacant stool land. And that potentiality becomes a reality if that subject exercises his possessory or occupancy right by bringing that vacant land under his skill and cultivation. Thus, it is through the exercise of the said occupancy acts which leads to the creation of the freehold interest in the said vacant stool land. From this, we have reached a conclusive decision that even with respect to implied grants, there is still a creation of a freehold interest. And once there is a creation, it goes antithetical to the legal implications of Art 267(5), thus is void. From a historical trajectory, the right to make an implied grant existed before the coming into force of the 1992 constitution. Which means that the right was not a creation of the 1992 constitution. It was a customary right which by virtue of tradition existed in the various ethno-cultural communities. Now, what Art 267(5) aims at doing is to nullify this right. It does so by preventing the existence of any right either under statutory law, customary or common law, to confer a freehold interest in any person in any stool land. The word ‘created ‘was what misled the learned jurist into thinking that, Art 267(5) meant only a creation by the stool or its stool actors and not all forms of creation either by statutory law, customary law or common law. On this horn, I rest my case that the position of the learned jurist is inaccurate in the face of the law.
On the second case of construction, the learned jurist suggested that Art 267(1) resurrected the customary law rules and usages that govern stool lands and as such, implied rights which is part of the customary rules and usages is maintained. I must say that on the face of Art 267(1) this position cannot be inferred. Art 267(1) states that ‘all stool lands …. shall vest in the appropriate stool on behalf and in trust for the subject of the stool in accordance with customary law and usage. What we must ask is, what does the phrase ‘in accordance with customary law and usage’ apply to in the provision above. Is it with respect to the vesting of the stool lands in the stools or it is with the creation of a fiduciary duty in accordance to the fiduciary duty that exists under customary law or it is both? Personally, I think it does both. The vesting is in accordance with the customary law that was applicable to who owns what lands and also It reaffirms the fiduciary duty between the stool and the subjects. So, let’s say if before 7th January 1993, lands in Frafraha were Lands vesting in and belonging to the La Stool per customary law, then what Art 267(1) does is to affirm this customary law position. Subject to the decision in Nii Nortey Omoboe v. Attorney General , Art 267(1) does not have a retrospective implication. It only reaffirms the applicability of the valid customary law and usage in the various ethno cultural communities before 7th January 1993. With reference to the fiduciary duty, it affirms that the stool lands are held on behalf of the subjects as it applies under customary law. A similar provision as this is the definition of a chief as depicted under Article 277. But does this affirmation go beyond the limits characterized above to include the resurrection of the right to make implied grants by subjects? I think No. I think the only valid interpretation which can ensure coherence and consistency is that, Art 267(5) terminates this implied right with reference to the creation of freehold interest and that the fiduciary duty under Art 267(1) does not include this right to make implied grant by subjects. What it includes is the right of the stool to still be accountable to subjects with regards to the usage of stool lands and other customary rights which are not inconsistent with Art 267(5).
With reference to the policy analysis by the learned jurist, I am myself disturbed and same time amazed by the differential treatment Art 267(5) makes between stool lands and family lands by allowing the creation of freehold interest in family lands yet barring it with respect to stool lands. I must say that, though this seem emotionally troubling, the court is not one of emotions nor feelings nor is the law hinged on our personal inclinations nor desires. It is for the law to be the law and for man to express it as such, devoid of all personal idiosyncrasies. So, the family- stool differential treatment is what Art 267(5) intends and so be it. With regards to the argument of the learned jurist that his position still upholds the principle of intergenerational equity, I disagree in all boldness. I contend that, even though the freehold interest is inheritable, if the law still allows for implied grants to be exercisable with respect to stool lands, a particular family can take more of a stool land than another family assuming members of that family exercised their right to make implied grants more than other families. It makes that family to acquire more freehold rights over the stool land than other families. And though the right is inheritable, the inheritability remains only among family members and that makes it impossible for redistribution among other families. This makes it impossible for the future generation of other families who had less access to lands in this present time, to have equal or equitable access to stool lands which is but an entitlement of all stool subjects. This rather defies the fiduciary duty affirmed by Art 267(1) and also in Art 36(8) since it denies those future generations effective and sufficient use of stool lands.
It was the concern to cure this, which was why the framers created Art 267(5) to prevent the ever creation of freehold interest by either implied or actual grant or through sale or alienation in any stool land. I shall here advise the various stool communities to adopt new norms and usages which are not in conflict with Art 267(5). Which is that, they should maintain the right of a subject to make implied grants. But this implied grant should only create leasehold interest of 50 years in the vacant stool land. This in effect still allows the current generation access to vacant stool lands yet not denying the future generation access to those lands since the leasehold interest terminates upon the expiry of that 50 years or any number of years which parliament shall consider appropriate.