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The place the Legislation of Immovable Property Met Jurisprudence: Memuna Moudy v Antwi and the Use of Public Coverage When Opposed Possession in Compulsorily Acquired Property is Involved

Abstract

Everybody loves the story of the victim, or at least a majority of us. This feature of humans, fueled the backlash that followed the decision in Memuna Moudy v Antwi. People believed that it was unfair for the court to deny people who had been on land for decades, the right to use the land by virtue of a compulsory acquisition that at the material time had not been useful. The court justified its decision with public policy, but this piece, which is a blend of the law of immovable property and jurisprudence, seeks to justify the use of public policy in that case and deal, briefly with other important matters in the law of compulsory acquisition.

 Compulsory Acquisition

Defined in Black’s Law Dictionary[1] as “the right of a state, through its regular organization to reassert whether temporary or not, its dominion over any portion of land on account of public good“, the power of compulsory acquisition (also known as the power of eminent domain) has been used by the state as an exercise of its sovereignty to advance the public good. The term can be traced to the writings of the seventeenth century scholar, Hugo Grotius[2] who noted in his book that;

… The property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property.

This concept has not been alien to our land tenure system. In colonial times, the government enacted the Public Lands Ordinance which was used to acquire land for this same public use.  This was demonstrated in the case of Re Ayima[3] where the Colonial Government used the power conferred by the Ordinance to acquire a tract of land at Somanya from the Krobos for the establishment of the Mount Mary Training College.

Post-independence however, the State Lands Act[4] has been used by successive governments, to acquire land for what is stipulated in section 1 of the said Act, as public interest[5]. A process, posited in sections 1 and 2 of the Act, ought to be followed for a valid acquisition. Failure to follow this process has seen the courts, invalidating the acquisition. The case of Rockson v Agadzi[6] clearly shows this position of the law. In that case, Ollenu J held that in order to divest the plaintiff of his property and vest it in the President, there must be evidence of a due publication of the Executive Instrument (E.I.) used in acquiring the land, in the manner laid down in section 2 of Act 125. Apart from evidence which established that a copy of the acquiring E.I was affixed at a point on the land, other evidence adduced clearly showed that there was no service of the Executive Instrument on the plaintiff personally either as owner of the land or as the person in occupation. This, therefore invalidated the acquisition, as the steps, outlined in Act 125 were not adhered to.

However, the crux of this article is the nature of adverse possession, the interest it creates after the acquisition has been made and the role of public policy in determining the interest of parties on the land. It is necessary then, to look at the essence of adverse possession after the land is compulsorily acquired.

What is Adverse Possession?

As stated earlier, there is the need for a special type of possession to invoke the Limitation Act. This was demonstrated in the case of Djin v Musah Baako[7]. In this case, the plaintiff brought an action against the defendants for a declaration to a piece of lying situate at Sabon Zongo at Laterbiorkorshie. He claimed that the defendants had lost title to the land because they had been barred. In 1984, the plaintiff put sand and stone on the land and was warned by letter by the defendant family. The plaintiff then did nothing on the land till 1999 when the action was commenced at the High Court. It must be noted however that the plaintiff gave part of the land out to mechanics to work on. It was held[8] that the act of the defendant warning the plaintiff through the letter was enough to prevent the accrual of rights in the land. On the issue of whether the rights had accrued in the land for the mechanics, Atugubah JSC, in quoting Omrod L.J. in Wallis Holiday Camp v Shell and BP[9] ltd stated that;

 “courts are reluctant to allow the encroacher to acquire a good title to land against the true owner and have interpreted the word possession in this context narrowly”

He also cited Buckinghamshire County Council v Moran[10] (headnote 2) which also provided;

“there was no special rule of law that an owner of land who intended to use it for a particular purpose at some future date could lose title by adverse possession to a squatter, whose actions did not substantially interfere with the owner’s plans for the future use of the land. Where a claimant could demonstrate factual possession and an intention to exclude the world at large, including the paper owner, he could establish adverse possession, whether or not he was aware of the owner’s planned use of the property

There also exists the case of Memuna Moudy v Yaw Antwi[11] which also spoke to the issue of this adverse possession and would be discussed in detail subsequently.

From the reading of the cases it can be concluded that the entry to the property must be of such nature that amounts to an affront to the right of the original owner. The one seeking to claim adverse possession must show that his actions or inactions “…substantially interfere with the owner’s plans for the future use of the land” and that the claimant must “…demonstrate factual possession and an intention exclude the world at large, including the paper owner”.

Public Policy and the Law

It is no secret that courts across the world have increasingly taken cognizance of public policy when determining the merits of the case and not just looking at the law. In fact, in the case of R v Wilson[12] the court even considered public policy when determining the culpability or otherwise of a man who tattooed the letters ‘W’ and ‘A’ on the buttocks of his wife.

Ghanaian courts have been no different.  In the case of Quaye v Koiwah Investment Co.Ltd[13], Justice Marfu Sau, referring to the case of  Barrow v. Bankside Agency Ltd[14], made a strong case for public policy as he defended the rule of res judicata with it. Furthermore, in the celebrated judgement of the 31st December Case[15], Amua-Sekyi stated that;

In my view, even though Parliament has the right to legislate, this right is not without a limit, and the right to enact a law that 4 June and 31 December should be declared public holidays cannot be left to linger in the realm of public policy.

This statement represents the forces with which judges, many a time, have to grapple with, when making a decision. It represents the rift between the law itself and public policy and which of the two should be given the seat at the high table when pronouncing judgements. In the Memuna Moudy[16] case, the court seemed to tilt to the favour of public policy as against the letter of the law. But can the court be blamed?

The decision of the court may have been necessitated by predominant practices on the ground and the problems they pose to societal life and order. According to Professor Kotey JSC,[17] the rapid growth in the urban population coupled with inadequate resources for housing provision and bad planning has led to a shortage of housing in the urban areas. This has created the ubiquitous thirst for land to utilize by citizens and in effect, encroachment on state lands. The response of the state to this phenomenon is to embark on demolishing exercises from time to time[18], the latest, being a threat by the minister for Lands and Natural Resources on the 13th of January, 2020 to embark on such exercises.

This response has been described as unfair by many people, particularly Mr. Herbert Krappa[19], who noted that the court’s decision  to classify the claimants as licensees in the case of Memuna Moudy[20] left them in the middle of nowhere and without rights. Mr. Krappa then goes on to defend the ‘victims’ of the story when he notes that the failure of the state to secure and protect its property should not be the grounds to take the rights away from the claimants. Obviously, he was interchanging the meaning of the state with government and painted the picture of an all-powerful draconian entity that could devour its own citizens using public policy as a disguise.

It is my submission that the court was justified to make that determination based on public policy. This is not to say that in every instance, the law can be thrown to the wind while considerations of public policy are the only factors considered in making judgements. However, in this particular case, and other cases like it, it was right to make a determination based on public policy.

One may ask why I have decided to disagree with a person I admire so much and side with the relatively harsh side of the justice system. The answer lies in the concept of the state and what it represents in the process of compulsory acquisition. Unlike what we perceive the state to be when we see artillery and weapons during military parades, the state is very powerless as it represents an abstract concept that citizens ascribe to. Encyclopedia Britannica[21], for instance defines the state as;

a form of human association distinguished from other social groups by its purpose, the establishment of order and security; its methods, the laws and their enforcement; its territory, the area of jurisdiction or geographic boundaries; and finally by its sovereignty. The state consists, most broadly, of the agreement of the individuals on the means whereby disputes are settled in the form of laws.

But this definition is not novel, as it finds root in the plethora of writings of philosophers that share the common notion of what the state is. From Plato[22], who extensively wrote on the idea of the polis[23] as the association of man where his needs were satisfied in the larger group, to Hobbes[24], Machiavelli[25], even this paper and many others being written today, the state is seen as a concept which keeps human behavior in line with the greater ideals needed to maintain peaceful living and the improvement of the standards and dignity of man. This means that in stark contrast to the State of Nature that predated the existence of civilization, the creation of the state has had, at the core of its foundation, the betterment of man and his livelihood.  In short, the state in and of itself, is a powerless concept that represents the embodiment of the people and the conscious decision they undertake to ensure adherence to a set of rules.

The government is the mechanism responsible for running this powerless concept and bridging the gap between the state and the citizens. The government of the day, compulsorily acquires the land not for itself but in the name of the state which exists in perpetuity as governments themselves come and go from time to time. It is conceded that the irresponsibility of government agencies has caused the phenomenon of encroachment, but this should not be used as a trump card to prejudice the position of the state in the process of land ownership. Since the state is perpetual, the acquisition is made for citizens of the state yet unborn[26] and an attempt by a few irresponsible citizens to hijack the plans for the future of the whole state and its people will make it next to impossible for the state to realize its potential and its core mandate of increasing the standard of living for all its citizens.

It is therefore prudent for us to look at the role of the courts in the system of governance as an arm of government itself.  Justice Marshall, in the case of Marbury v Madison[27] noted that it was within the ambit of the judiciary to state what the law is, after he had discussed effectively, the duties of the other arms of government. Thus he demonstrated the essence of the judiciary in the governance system of the United States. This position still holds to this day. Our courts, as recent as 2016 in the case of Ramadan and Another v Electoral Commission and Another[28] made reference to the judgement of Marbury[29] and its effect in contemporary governance. If this is the duty of the court, then is it not prudent the court steps in to protect the state from a few opportunistic citizens when the executive and the legislature fail to do so? This is not an endorsement of the culture of irresponsibility, but an attempt to look beyond the sentiments that cloud opinions when critiquing this case (Memuna Moudy v Antwi[30]). This case represented the act of the judiciary stepping in to ensure that the failure of the Executive and the Legislature does not impede the prime duty of the state. The judiciary rose to defend the defenseless state when other organs had failed to do so.

Such a brave act by the Judiciary was with the aim of ensuring the core mandate of the state- to ensure that people live in accordance with a code of conduct with the aim of bettering their lives by preventing the plans of the whole state from being stalled because of the activities of a minority.

Conclusion

In this article, we have analyzed the history of compulsory acquisition and its application in the Ghanaian legal system. We also went on to analyze why the general opinion of people on the Memuna Case, concerning the ability for illegal occupants to acquire rights in compulsorily acquired land is false. We gleaned, from the judgement, the fact that these adverse claimants can acquire interest in compulsorily acquired property though that will be near impossible. We proceeded, then, to discuss the rationale behind the judgement and why that rationale of public policy is justified.

Rights ought to be secured by the state and the Judiciary in the past, has stepped in when necessary to do so. But it also has a duty to secure the right of the state itself in the light of the capture of state resources by a few, when the need be. There needs to be sensitization on the sale of lands in the Republic and a conscious effort by government agencies like the Lands Commission and the Ministry for Lands and Natural Resources to prevent what happened to the unfortunate claimants in the Memuna Case[31]. But the failure of these same agencies to do this should not preclude the courts from stepping in when necessary to check the menace, that is, encroachment of public land. If the courts do not step in, and the rights of adverse claimants are fully secured by the same arms of government, we render that notion of community and statehood that informs our adherence to a set of norms, redundant and encourage the breakdown of that already fragile entity, that is the state. The government comprises the executive, legislature and judiciary. Where the executive and legislature fail in one regard, we cannot let the hands of the judiciary be tied when the judiciary itself has the power to solve the problem. We must allow the government to have its own self cleansing mechanism to secure the interest of the state.

Even if this disrespect was to be as a result of governmental action and incompetence, the good old judiciary should not be the culprit in the act of weakening the same creation it is bound to protect.

Photocredit: James Wainscoat on Unsplash

[1] Black’s Law Dictionary, 8th Edition, pg 562

[2] De Jure Belli et Pacis, 1625

[3]  [1960] GLR 80-84

[4] Act 125, 1965

[5] Section 1, supra note 5

[6] 1979 GLR 106

[7] (2008-2009) 1 S.C.G.L.R. pg 686

[8] Per Aninakwah and Atugubah JJSC

[9] [1974] 3 All ER 575; [1974] 3 WLR 387

[10] [1990] Ch. 623

[11]  [24/11/04] CA NO. J4/6/2004 and (2003-2004) 2 S.C.G.L.R. 967

[12] (1996) 2 Cr App Rep 241

[13] (J4/42/2018) [2019] GHACA 2 (30 January 2019);

[14] {1996} 1WLR 257 at 260

[15] New Patriotic Party v Attorney General; [1993-94] GLR 35 (SC)

[16] Supra, note 12

[17] Kotey, E.N.A. Legal Control of Rents Premises in Urban Areas of Ghana: Lessons and Prospects (1989-90) 17 RGL

[18] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Lands-Ministry-vows-to-reclaim-encroached-state-lands-836083

[19] Adverse Possession of State Lands in Ghana: Does Memuna Moudy Raise Legal Questions For Our Jurisprudence; Student Law Journal University of Ghana, Legon Volume VIII, 2016

[20] Supra, note 12

[21] https://www.britannica.com/topic/state-sovereign-political-entity

[22] In his book, The Republic. Published in 380 BC

[23] Means city state. It was a system of Ancient Greek societal organization that saw states organized in a metropolitan form. Hence the city was the state. Examples of city states today are the Vatican and Singapore. Examples of the polis include Athens, Corinth, Sparta among others

[24] The Leviathan (1651)

[25] The Prince (1532)

[26] A very good example is the University College of Gold Coast Acquisition which today has served as the basis of the expansion of the University of Ghana.

[27] 5 U.S. 137 (Cranch)

[28] (J1/14/2016) [2016] GHASC 83 (05 May 2016)

[29] Supra, note 39

[30] Supra, note 12

[31] Supra, note 12

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