I want to begin this epistle with how Dr. J. B Danquah, as captured by Magnus Sampson in his Introduction to Gold Coast Men of Affairs, summarised the heroic life of John Mensah Sarbah. He said, “[A]nd a great saviour the Gold Coast can never have for unless our right to our land be attacked again, one can hardly think of a greater or more sacred right that might demand the enormous energies of Sarbah, unless it be the intangible right to live.”
As Chinua Achebe said some threescore years ago, “the sun will shine on those who stand, before it shines on those who kneel under them”, in all manners and facets of life, it is imperative to pay more attention to matters which need attention the most at every point in time. ‘First things first’ as the saying goes, but what are the first things which the saying says they should be first? The first things here, it is submitted, are the most important things. The reasons why I am saying all these were espoused by Dr. J. B Danquah in his above appellations to J.M Sarbah. In his opinion the most crucial collective right of every society is the right to the ownership of land after the right to life. In my view, another reason why matters surrounding land ownership are invaluable is the Brobdingnagian number of cases which are annually subjected to our adjudicative bodies for both traditional and legal resolution. I will later expatiate this second reason why I think land matters are most important in the next two paragraphs.
There are more than a hundred branches of law and more novel branches are created as the world develops and as new emergent situations call for the need to create new branches of law. For instance, the abundant profound changes which emerged in the general conception of government around 1914 in the United Kingdom called for the establishment of the contemporary branch of law called Administrative Law in that jurisdiction. This branch of law inter alia, deals with the State-Citizen day-to-day interactions. Some schools of thought put this branch of law under the rubric of Constitutional law but as a matter of fact, Constitutional law and Administrative law are two distinct branches of law. As H.W.R Wade puts it, “it is convenience rather than necessity that dictates the division” between these two branches of law. Consequently, other modern branches of law like Aviation and Space Law were established and institutionalized due to the advent or invention of air and space crafts, trips to space and their significant effects on the globe at large. In summary, new situations usually call for the establishment of new branches of law and most branches of law as we have now are novel and there are more yet to come as long as the world doesn’t come to an end.
However, some branches of law, as we still have them in various legal systems and traditions, have been there since this world came into existence. One of these most ancient branches of law is Land Law or, put in more generic terms, Law dealing with Land issues. Lets make a quick and brief recollection from the Garden of Eden as captured in the Bible. God, the ultimate owner or the landlord of the Garden of Eden, had the power to and in fact ejected Adam and Eve, who were, by implication, God’s tenants. Having regards to the reasons he gave for their ejection, I submit that God saw their actions or disobedience as a breach of the tenancy agreement that existed between God himself and Adam and Eve. He was able to sack or chase them out of the Garden because Adam and his wife were his tenants. This tells you that land law in its broad sense, has been in existence since time immemorial, unlike some of the above mentioned branches of law which recently emerged. I will classify the Land Law, as it anciently existed, as informal or non-institutionalized. Land law has since then been institutionalized globally and has been given keen recognition under the learning and practice of the law.
“A quick survey of the Ghana Law Reports from 1959 to 1994 shows an enormous amount of Land Cases that pass through the courts for adjudication…land cases have constituted the bulk of litigation from the Gold Coast period up to the present day in Ghana….Georgina Wood J.A. (as she then was), delivering a paper on “the courts and land disputes” at a forum of the Ministry of Land and Forestry et al. made a shocking revelation. She said that from 1998 to June 2002, the total number of Land Cases before the Courts stood at 2,341, out of which only 73 had been disposed of…this must be a major concern to Land Law practitioners, litigants and students alike…”- Poku Adusei, candidate for LLM, UGLJ 2000-2002. This justifies my point, which I made in the immediately two previous paragraphs, that is, matters in relation to land are very important.
The numerous number of land law cases, the number of centuries it has been in existence and many other factors has made it imperative on us, without prejudice to the other branches of law, to pay more attention to it. This is because, as I said at the beginning of this paper, it is a very important branch of law.
As our elders wittingly say, “ the stubborn housefly which overstays on a corpse is buried with the corpse.” I now have to move on to the crux of this paper without any delay. The discussion of the topic under review would be utterly obscure and for that matter tedious to comprehend without briefly shedding light on the Ghanaian customary land law term of “allodial title”. Bentsi-Enchill describes the term as absolute or ultimate title. An allodial title holder has no superiors or land lords. They are the landlords of themselves. This allodial title by virtue of the decision in the case of Wiapa v. Solomon can be held by stools(including skins), families and individuals. As was enunciated in the Nigerian case of Amodu Tijani v. Secretary of Southern Nigeria, with regards to stools and families, the occupier of the stool or the family head, holds the allodial title to the family or stool land in trust of or on behalf of the members of the family or stool. This means the occupier of the stool or the family head is not necessarily the owner of the stool or family land, he or she is merely a trustee. For example, Asantehene is the allodial title holder of all Ashanti lands. This does not make him the owner of Ashanti lands but a trustee who administratively holds the land in trust of the Ashanti Stool or the Ashanti People.
In the mostly celebrated and hackneyed case of Ohimen v. Adjei, four modes of acquiring allodial title were established per Ollenu J, as he then was. One is “discovery by hunters or pioneers of the stool, of unoccupied land and subsequent settlement thereon and use thereof by the stool and its subjects.” Our discussion would mostly evolve around this mode of acquiring allodial title under Ghanaian Customary Law. In the olden days, as most of us have read, groups of people moved from places to places and when they come across a certain conducive location which is unoccupied , they decide to settle there and eventually become the allodial title holders. In contemporary Ghana, can a person or a group of persons claim to have come across unoccupied land any where in Ghana and further assert that they are the “allodial title” holders because they discovered it? Are there still unoccupied lands?
Prior to the advent of the Europeans in the Gold Coast and until the latter parts of the 19th century, chiefs, headmen and individuals in the part of the colony known as Protectorate had enjoyed their inherent rights under customary law. They had granted to foreign investors several pieces of land for mining and timber-felling activities. The colonial government saw the grant of land by the natives to foreign investors as “illegal according to native custom” and the Government decided to “intervene”. On the 14th day of November 1894, in the days of our Lord, the Government read the Lands Bill, 1897 in the Legislative Council for the first time. The bill sought to vest waste-lands, forest-lands and minerals in the Crown, that is the colonial Government. Every student of Land Law is aware that vesting of land extinguishes allodial title and therefore if the aforementioned lands are vested in the crown, the Chiefs and Headmen and the whole Protectorate will be rid of their birthright of owning their own homeland.
On 9th April, 1895, on the advice of John Mensah Sarbah, the kings, chiefs and inhabitants of Cape Coast despatched a petition to Her Majesty’s Principal Secretary of State for the Colonies, Mr. Chamberlain, communicating their strongly-worded opposition to the Land Bill, 1897, to him. Again, on another advice of J.M Sarbah, in all parts of the Colony people fenced their land and burned the bush upon it. This was the method of preparing land for farming activities. The people of the Gold Coast resorted to this method not only to indicate that beneficial use had been made of their lands but also to show that their land did not come within the definition of the land which had been lying waste for thirty years before the passing of the Crown Lands Ordinance. They did this as a proactive safety measure to shield their lands, should the iniquitous Land Bill be passed. As it is often said, “abnormal situations call for abnormal measures to deal with them.” Though J.M Sarbah knew for a fact that a very great portion of the native lands in the colony were bare unoccupied lands which would have otherwise come under the affected lands by the Land Bill, 1897, but in order to urgently save his people’s land owning birthrights, he had to declared the principle of “No Unowned or Unoccupied Land in Ancient Ghana.” He had to make the people act as if every single land in the Colony was occupied or owned by a native in one way or the other. Sarbah knew that his declaration was de jury and de facto not the case because it was clearly to his knowledge that there were some lands which were not occupied or not owned by any stool, family or individual during that time.
After the principle of “No Unowned or Unoccupied Land in Ancient Ghana” was implied from the advice of Sarbah to the people, he put it into a speech when he attended the Legislative Council meeting at the second reading of the Bill. In the speech J.M Sarbah said, “…Looking at the definition of public land, our instructions are that the Bill seems to fall into error that every piece of land in this country except those enumerated in section 13 of the Bill is public land; we most respectfully refer Your Excellency…[to the fact that]…every piece of land and every plot of land in the Gold Coast has an owner whether such piece or plot be waste land or forest land.” By doing this, J. M Sarbah was rendering the Land Bill useless even before it is passed into law. This is an extremely smart and proactive move made by the patriot, John Mensah Sarbah, to protect the birthright of his people. As J. M Sarbah said when he was called to the bar, “the qualification of a lawyer is not an end in itself but a means to an end.” He did not see his qualification as a lawyer as an ultimate achievement but he rather saw it as a medium through which he could attain greater achievements for himself and his people of the Gold Coast. According to Gordon R. Woodman, the superior courts have followed the principle of “No Unowned or Unoccupied Land in Ancient Ghana” since their inception. The principle has been applied in the analysis of events before the courts’ inception, although it is unclear how far back into history it will be extended. Probably it would not be applied to the events before the early 18th century, Woodman continues.
In August 1898, it was announced that the Lands Bill, 1897, had been disallowed. This announcement filled the whole Colony with rejoicing and merry. The dis-allowance of the Lands Bill,1897, was personal victory for John Mensah Sarbah, and to him and the other leaders of the Aborigines’ Right Protection Society this country, both present and future Ghana, owe invaluable or priceless debt of gratitude. It is however disheartening to notice that Sarbah’s great contribution to continue the existence of the land owning birthright of Ghanaians, among other things, have not been well projected and properly appreciated. It is also sad to note that the only monumental remembrance of this great man is the naming of a hall in the University of Ghana after him, that is the John Mensah Sarbah Hall.
It seems impossible to end this paper without espousing one Golden-Action which re-affirms the fact that the legendary J. M Sarbah was never a selfish individual but an outstanding selfless statesman who should forever remain in our memory as a grateful nation. Before travelling to Accra to legally represent the people and chiefs of the Gold Coast, Sarbah Was given a handsome sum of 400 guineas as his legal fees. When Sarbah returned to Cape Coast from Accra after representing the case of the chiefs and the people before the Legislative Council, he returned to the Secretary of the Aborigines’ Right Protection Society all his previously given legal fees of 400 guineas. He said in a letter to the society, “[I] do not spurn or refuse the very handsome retainer of four hundred guineas, but in serving my country, the land of my birth, within her borders, I seek no reward, nor expect any remuneration…at such a crisis my countrymen selected me to plead their cause, is in itself a solemn honour which will not be unremembered or unappreciated by me. I shall always treasure the confidence which, in this instance, my countrymen have reposed in me.” This sum, that is the 400 guineas, which Sarbah returned was utilized to establish a Press which published newspapers such as the Gold Coast Aborigines and the Gold Coast Nation, which contributed in no small measure in the struggle of the emancipation of the Gold Coast. It is tragic that such an honourable man spent only forty six(46) years before he passed away, that from 1864-1910.