The 1992 Constitution of Ghana as the supreme law of Ghanais the legal document that provides the basis for powers, duties and obligations of the organs of government and the citizenry. The supremacy of the Constitution means that its expressly laid down provisions cannot be overridden or obliterated without complying with the cumbersome procedures of amendment of its provisions. Just as any document is subject to being misunderstood or misapplied, the Constitution forestalls this by empowering the highest court of the land, the Supreme Court with the exclusive jurisdiction of interpreting its provisions.
The approach to Constitutional interpretation arguably has its starting point from the dicta of Sowah JSC (as he then was) in the celebrated case of Tuffuor v Attorney-General where he stated that, ‘ …the Constitution is a living organism, capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation…’
This dictum has been the point of reference, serving as a guideline to generations of justices of the Supreme Court in their role as interpreters of the Constitution.
The Constitution proscribes the creation of freehold interest in land in any foreigner and any receiver of land from any stool in Ghana. The interpretation section of the Constitutiondefines stool land to include lands controlled by a ‘skin.’ This definition of stool presupposes that there are two systems of traditional rule in Ghana; that is stools and skins. This classification may seem apposite except that it cannot be so, as regards ownership of land in Ghana. Arguably, the supposition then gleaned, leads to an inevitable conclusion, that the purpose of these two provisions in our Constitution is that no person or entity shall create an interest in land which vests one with a freehold interest in Ghana.
Professor Justice A K P Kludze in his book, The Ewe Law of Property, states that
‘The Ewe chiefs,, however, have never assumed such a role in land administration, with the result that the paramount interest in practically all lands in Eweland is held by families in their own right and not as grants from stools.’
Prof. Kluzde continues thus, ‘The Ewe family does not hold its interest in land from any stool. The family’s original title to its lands is paramount or absolute in its own right, which is unaffected by the political sovereignty of the stool. The Ewe stool while clothed with jurisdiction authority over the whole territory, has no proprietary rights or interests in the lands generally.’
Rayner CJ also states that ‘The notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual.’
The two propositions by the learned authors above makes it clear that in Ghana, the paramount interest in land is not only held by traditional authorities.
The question we are faced with, is whether Articles 266 and 267 (5) of the 1992 Constitution can be applied to family lands. The reason for this quest is clear. The Constitution did not expressly mention so. Our courts admit of the modern purposive approach to the interpretation of statutes. Although the Constitution is a statute sui generis, the courts have often applied this as well as other approaches to constitutional interpretation, in a bid to live up to the ‘living organism’ standard, enunciated in Tuffuor, supra.
Professor Date-Bah JSC in the case of Danso Acheampong v Attorney-General and Abodakpi stated that giving purposive meaning to words in a Constitution to make it socially acceptable does not amount to rewriting of the Constitution.
The purposive approach looks at the purpose of the provision, in the context of the whole document to determine what the legislature intended to achieve by the provision it drafted. Clearly, the two articles, subject matter of this paper, should be interpreted to include other entities who hold land from creating a freehold interest in that land. A literal reading and textualist approach to interpretation will result in unfair results whereby stools and skins are barred in how they can alienate their lands, whilst other entities, such as the Ewes, will have a free pass to create any interest out of the lands they hold. This will go against the constitutional principle of equality before the law since there is no reasonable purpose served by the exception.
This issue, came up for discussion by the High Court in the case of Republic v Regional Lands Officer, Ho; Ex Parte Kludze and has oft been cited whenever the matter is raised. The case of ex parte Kludze, supra approached the matter from a private right perspective and a literal reading of article 267 (5) of the 1992 Constitution. This paper however deals directly with article 267(5) and its interpretation in light of the equality principle enshrined in articles 17 (1), (2) and (3), which the High Court in Ho lacked jurisdiction to deal with.
A literal reading of the provision will mean that, persons by virtue of their place of origin and its system of traditional authority (as it relates to entities who hold land) will be treated differently when it comes to the title they can create in land. An illustration being that A, by virtue of where he comes from (being a place where land is held by a stool) will be proscribed from creating a freehold interest in land whilst B, by virtue of his place of origin (being a place where land is held by families) is permitted to create a freehold interest in land. Without any reasonable justification given for this differentiation in the rights of the two individuals to create an interest in land, the article cannot be interpreted literally. The measure of article 17 was discussed by the Supreme Court in T. T. Nartey v Godwin Gati where the court stated that, ‘The crucial issue is whether the differentiation in their rights is justifiable, by reference to an object that is sought to be served by a particular statute, constitutional provision or some other rule of law.’
In conclusion, the non-existence of a reason for such a justification in right leading to discrimination by place of origin and acquisition of land in that place of origin, I dare say that the failure of the legislature to include the word ‘family’ in the definition of stools in article 267(5) of the 1992 Constitution was simply an omission and not a free pass to creation of freehold interests in places where land is held byfamilies as opposed to stools.