A: Introduction

Under the current constitutional regime of the 4^th Republic, every stool, skin, clan or family land is owned by the appropriate stool, skin, clan or family concerned. The State (or Government of Ghana) does not own stool, skin, clan or family land. In fact, it is unlawful to vest stool, skin, clan or family land in the State.^[1] As the Supreme Court reinforced in one case,^[2] “after the coming into force of the 1992 Constitution on 7th January, 1993, any statute or subsidiary legislation which purports to vest in the President or Government of Ghana lands which are still stool lands, would run counter to article 267 (1) of the 1992 Constitution.”

There are times when the Government may need to use land belonging to another person (be it a stool, skin, clan or family) as an access road for the construction of public works and installations. In such situations, the Government can gain access to such land by using the processes in a law known as the Statutory Wayleaves Act and its regulations.^[3] The law was passed in 1963 and it has been used on a few occasions.

This article affirms the position of the law that the State owns and controls public lands and natural resources in Ghana. It also discusses the right created by statutory wayleaves on other people’s lands. It contends that just like rights such as easements, profits a prendre and restrictive covenants, statutory wayleaves only give the State the right to use such land for access. It does not give the State ownership over the land. Therefore, the State cannot acquire a statutory wayleave over a stool’s land and turn around to change the user, re-zone the land and sell it to private entities without the knowledge, consent or approval of the stool concerned. Any decision by the Supreme Court giving its blessing to any such action by the State – as it happened in Republic (No. 2) v High Court (Land Division), Accra; ex parte Lands Commission (Nungua Stool & Others Interested Parties – ought to be revisited.

B: The State owns public lands and natural resources, not stool lands

All public lands are vested in the President on behalf of, and in trust for, the people of Ghana.^[4] Every mineral (such as gold, diamond, manganese, lithium, bauxite and so forth) in its natural state found anywhere in Ghana, either on land or in the sea or continental shelf belongs to the Republic of Ghana. All such minerals found in Ghana in their natural state are vested in the President on behalf of, and in trust for the people of Ghana.^[5] The Lands Commission is the body set up to coordinate with public agencies and governmental bodies and manage public lands vested in the President on behalf of the Government, among other things.^[6]

This means that the powers of control or management of revenues, royalties and so forth over minerals in their natural state vest in the President on behalf of, and in trust for the people of Ghana. It should be noted that this trust over minerals in their natural state is a “trust for the people of Ghana” in general. Therefore, any attempt to have the revenue and royalties accruing from such minerals vested in a stool and administered for the benefit of a stool, traditional authority or District Assembly within the area of authority of which such stool land is situate will be null and void.^[7] The Supreme Court affirmed this position recently in the case of Kan II & Others v Attorney-General & Others.^[8]

The facts of the case - Kan II & Others v Attorney-General & Others^[9] - were that the five plaintiffs (being the paramount chiefs of Adansi, Bekwai, Kenyasi (No. 1), Kenyasi (No. 2) and Wassa Fiase Traditional Areas) represented Ghanaian landowners on whose lands mining companies have been extracting gold for the Republic of Ghana. These mining companies included AngloGold Ashanti, Newmont Ghana Limited and Goldfields Limited. The plaintiffs sued the Attorney-General, Office of the Administrator of Stool Lands and Ghana Revenue Authority at the Supreme Court.

It was the plaintiffs’ case that the mining companies were required to pay royalties that, by definition and law, had to be paid to the owners of the lands on which they carried out their mining activities. Further, the royalties that the mining companies paid to the Republic should rather be paid the plaintiffs, who hold the stool lands in trust for their subjects. Lastly, the plaintiffs contended that the Ghana Revenue Authority (3^rd defendant) was unlawfully and unconstitutionally exercising the powers and functions reserved by the Constitution to the Office of the Administrator of Stool Lands (2^nd defendant).

The Supreme Court dismissed the plaintiffs’ case. It was held^[10] that the powers of control or management of revenue and royalties from minerals in their natural state vest in the President on behalf of, and in trust for the people of Ghana. Therefore, any attempt to have the revenue and royalties accruing from such minerals vested in a stool and administered for the benefit of a stool, traditional authority or District Assembly within the area of authority of which such stool land is located will be contrary to law^[11] and, therefore, null and void.

The Supreme Court explained that where a stool has proprietary title over land or property for and on behalf of a particular community, the powers of management of stool revenue and royalties vest in the stool or the Administrator of Stool Lands. But when it comes to minerals in their natural state, the proprietary interest in it vests in the President who holds in trust for the people of Ghana in general. Therefore, the stools on whose lands such minerals are found are excluded from enjoying, managing and controlling such minerals. The reason is simply that the stools lack proprietary title over minerals found in their natural state on their lands.

The Court noted, obiter, that if when a subject of a stool obtains an usufructuary right in a piece of stool land it excludes the stool from the enjoyment, management and control of such land from the stool, then it must also follow that by putting the ownership of minerals in their natural state in the Republic of Ghana to be held in trust by the President, the stools on whose lands such minerals are found cannot lay any claim to enjoy, manage and control the revenue and royalties from such lands.

C: Overview of statutory wayleaves

The Statutory Wayleaves Act^[12] is the law that allows a person to enter any land in the country to install, construct, install and maintain public works for public utility services^[13] and to create rights of way and other similar rights in respect of such works. Wayleaves are similar to rights enjoyed over property belonging to other persons such as easements, profit a prendre and restrictive covenants. The difference is that while these other rights usually apply between private property owners, statutory wayleaves are created and enjoyed by the State over other persons’ private property to help with provision of public works.

D: How are statutory wayleaves created?

Where the President of Ghana is of the opinion that it is in the public interest that a right of way or any other similar right over land must be created in respect of the whole or a part of any public works, the President may issue an executive instrument (E.I.) to that effect. The land that is specified in the E.I. will be subject to the statutory wayleave created in it.^[14] When the E.I. for a wayleave is published, the land will be deemed to be subject to that wayleave without further assurance. The land will enure to the benefit of the Republic, a statutory corporation specified in the instrument, or the public generally.^[15]

The E.I. creating a wayleave must contain the following information:

• A description, with measurements, of the land affected by the statutory wayleave together

with a plan showing the position of the works constructed on the land.

• Particulars of the person or body for whose benefit the wayleave is to enure.
• Any other particulars of the works that the President thinks necessary or expedient to include in the instrument.^[16]

A copy of the E.I. creating a wayleave must be served on the owner or occupier of the land affected by the statutory wayleave.^[17]

E: Termination of wayleaves

Once a statutorywayleave is created over any property, it remains in force until it is terminated by going through the processes set down in the law.^[18] Anything short of what the law has stipulated for terminating a wayleave will not be sufficient. Thus, it has been held that a court cannot declare that an executive instrument has been revoked when the formalities set down under the law have not been complied with. This was the decision of the Supreme Court in Ex parte Lands Commission. The case is digested below.

F: Can the State sell land affected by a statutory wayleave? A critique of the decision in Ex parte Lands Commission

The case of Republic (No. 2) v High Court (Land Division), Accra; ex parte Lands Commission (Nungua Stool & Others Interested Parties),^[19] simply called Ex parte Lands Commission, started as follows. Sometime in 1973, the Government passed two executive instruments (E.I. 44^[20] and E.I. 46) and declared certain lands to be used as statutory wayleaves to serve public utility services of the Public Works Department (PWD). According to the Nungua Stool (1^st interested party), the lands concerned, described in the E.Is, were owned by the Nungua Stool and formed part of the Stool’s ancestral lands. The Government used a portion of the land for the entire Accra-Tema Motorway but could not use the entire width of the subject land described in E.I. 46 and 44.

In 2007, the Lands Commission (the applicant) with the approval of the Metropolitan Authority and the Town & Country Planning Department re-zoned portions of the exterior corridor of the Accra-Tema motorway into commercial/industrial plots. The Lands Commission then processed grants for leases for some persons in respect of portions of the land. The Nungua Stool and the 2^nd interested parties (as plaintiffs) sued Lands Commission and the others in the High Court for declaration of title and other ancillary reliefs. They contended that the E.I.s only created a right of way over the land and that the Nungua Stool’s ownership and title to the land was never taken away.

The High Court gave judgment for the Nungua Stool.^[21] Lands Commission filed an application for certiorari in the Supreme Court. The ground for the application was that the High Court committed a jurisdictional error patent on the face of the record when it declared the two E.I.s to be impliedly revoked by the conduct of Lands Commission and Town & Country Planning Department. The Supreme Court granted the application^[22] and issued an order of certiorari to quash the High Court’s decision to correct the patent jurisdictional error committed by the trial judge and restored the validity of the two E.Is. So, the Nungua Stool lost.

(a) The ownership issue

In the course of rendering the majority opinion of the Supreme Court in Republic (No. 2) v High Court (Land Division), Accra; ex parte Lands Commission (Nungua Stool & Others Interested Parties),^[23] Dotse, JSC recounted some of the contentions the interested parties (mainly the Nungua Stool) made in opposition to Lands Commission’s application for certiorari. He recalled that the interested parties devoted a considerable part of their affidavits in opposition to issues such as these:

• That passage of an instrument creating a right of way did not acquire the proprietary interest of the owners of the land under the Land (Statutory Wayleaves) Act, 1963, (Act 186); and
• That title in the said lands over which the wayleaves were created did not vest the lands in the State; therefore, the Lands Commission had no power to grant leases over the unutilised portions of the lands covered by the executive instruments.

Unfortunately, after recounting such weighty issues raised by the interested parties, the majority in the Supreme Court failed to address them. The issues were brushed aside in an off-handed manner with the excuse that “in applications of this nature, the merits of the case are immaterial.” It is submitted that those issues that were ignored by the majority, as it were, were very fundamental to the parties’ case. Therefore, since a certiorari application was going to make it difficult for the Supreme Court to deal with it – as the majority alleged – then certiorari was not the appropriate remedy for the Lands Commission to pursue. Appeal would have been the better option so that the entire record of proceedings would have been placed before the appellate court. Since an appeal is by way of rehearing, the appellate court would have had the chance to deal justly with those and other pertinent issues canvassed before the lower court.

At any rate, even after the majority turned a blind eye to those issues, Atuguba, JSC addressed it in his dissenting opinion. In the event, the sky did not fall. He ruled, agreeing with the majority, that the trial judge’s decision that the E.I.s were impliedly revoked by the Lands Commission and Town & Country Planning Department’s conduct was erroneous in law. However, the trial judge had held further that the E.I.s did not vest title or ownership in the land used as wayleave in the State. On this holding, Atuguba, JSC agreed with the trial judge. Relying on some persuasive English decisions^[24] and section 6 (2) of the Wayleaves Act, he held that the statutory wayleave granted to the Government under the E.I.s did not affect the ownership rights of the Nungua Stool, except to the extent warranted by the terms of the said wayleave. 

It is submitted that the position that a statutory wayleave granted to the Government under an E.I. does not affect the ownership rights of the owners of the land in question is sound in law. The reasons are not far-fetched. First of all, a statutory wayleave does not confer a right over land. It is also not a form of compulsory acquisition of land by the State. It is only a permission to construct or install public works and services on the land and to give ‘right of way’ to get to those public utilities. Therefore, the State never acquires any ownership or proprietory interest in land earmarked for a statutory wayleave under an executive instrument. The owner remains the legal owner, though the State or Government institution may be in possession in furtherance of the purpose and terms of the wayleave. It is trite knowledge that possession of land, however long, cannot mature into ownership.

Secondly, it is for the reason that a wayleave is not a right to ownership of land or an interest in land that it has had its own legislation since 1963. Statutory wayleaves have never been part of land laws passed since independence to regulate various interests in land.^[25] Indeed, it is not mentioned at all in the latest Land Act of 2020.^[26] All other rights that are enjoyed over other persons’ lands - such as easements, restrictive covenants, profit á prendre, overriding interests and licences^[27] – are covered under the Land Act, 2020 except statutory wayleaves. Compulsory acquisition of land by the State is also covered under the Land Act,^[28] but statutory wayleaves are not.

(b)   Can the State sell land acquired for use as statutory wayleave?

In Republic (No. 2) v High Court (Land Division), Accra; ex parte Lands Commission (Nungua Stool & Others Interested Parties),^[29] the Supreme Court concluded that the effect of the Statutory Wayleaves law is that, where appropriate, land in respect of which wayleaves have been created cannot be available for use by the original owner unless specific legislative steps are taken in accordance with the law and its regulations. We cannot fault this conclusion. The only contention is about the use of the term ‘original owner’ because the ownership never changed. The owner of the land (Nungua Stool) remained the owner while the State used it for the public works concerned. If the State no longer had use for the wayleave, it should have revoked the E.Is properly by the procedure under the law and returned the land to its owner. Therefore, for the State to have appropriated the land earmarked for statutory wayleave unto itself is nothing short of misappropriation. This is similar to a person (A) who has an easement of right of way over someone’s land (B) and A decides to take B’s land over which he passes and sells it!

So, the big question is this: Can the State re-zone land affected by a wayleave created under an executive instrument and sell it to private entities? More so, without the knowledge and consent of the owner of the land? The answer is in the negative twice over. Here is why it is so.

First, is the nemo dat quod non habet principle. The principle of nemo dat quod non habet operates ruthlessly and by the principle, an owner of land can only convey title that he owns at the material time he decides to sell or convey the title to another person. Therefore, one cannot sell land he does not own to another person. The following cases will help explain how the principle works in practical terms. In Sarkodie v F.K.A. Co Ltd.^[30] the Managing Director of the plaintiff company took a customary grant of the land in dispute from the Weija Stool in 1980.

When he later formed the company in 1998, he asked the Stool to prepare the title documents on the land in the name of the company. The Stool obliged and did as requested. Subsequently, the same Stool purported to grant title to the same land to the defendant/appellant when it had divested itself of title to the land and had nothing to pass to the defendant/appellant according to the “nemo dat quod non habet” principle. The Supreme Court held that based on this principle, the defendant/appellant got nothing from the Stool.

Similarly, it was held in Wordie & Others v Awudu Bukari,^[31] applying the principle of nemo dat quod non habet thus:

“It follows that, although the conveyance the first appellant took from the Osu Stool is valid so far as the necessary legal formalities are concerned, yet it conveyed nothing because the Osu Stool had no land in the area in dispute on the maxim nemo dat quod non habet.”

In Christiana Aboah v Major Keelson^[32] it was held that since the Begoro and Akim Abuakwa Stools had already divested themselves of title in the very parcel of land to Kwabena Agyakwa (the plaintiff’s father), any attempt by W. D. Ghartey (the defendant’s predecessor) to obtain a conveyance and secure validity for his document (exhibit ‘1’) could not hold since there was no interest or title left for them to convey. This was because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro stool could not revoke what his predecessor had done. Exhibit 1’’ was, therefore, a worthless document.

In Seidu Mohammed v Saanbaye Kangberee,^[33] the Supreme Court adopted, with approval, the dictum of Kanyoke, JA in the Court of Appeal where he analyzed how the parties traced their respective roots of title, and applied the nemo dat rule as follows:

“On the basis of the documentary evidence provided … and my finding that the parties were fighting over the same piece or parcel of land, the question is whether Anna Benieh Yanney having in 1986 conveyed or transferred her title or interest in the disputed land to Emmanuel Yaw Nkrumah – the appellant’s vendor, she had any title or interest in that land again to convey or transfer to Mr. & Mrs. Marcus and Yvonne Nuamah the respondent’s vendors in 1989? The answer is clearly in the negative. The principle of nemo dat quod non habet applied to prevent or prohibit or render null and void Anna Benieh Yanney from any further dealing with the land or anything that she did in respect of the land after 1986. In effect, in point of law, Mr. & Mrs. Marcus and Yvonne Nuamah got nothing from Anna Benieh Yanney in 1989 in respect of the land in dispute and consequently, had no title or interest in that land to convey to the respondent in 2006. The respondent, (referring to the defendant herein) therefore, got nothing in respect of the land in dispute from Mr. & Mrs. Marcus and Yvonne Nuamah by exhibit 2.”

G: Conclusion

From the explanation in these cases, since the statutory wayleave on the Accra –Tema Motorway did not transfer ownership in the land to the State, by the nemo dat principle, the State could not have re-zoned and sold the land to other private entities. Moreso, without the knowledge, consent and approval of the owner, Nungua Stool.  In the result, the purchasers receive no valid title because they cannot claim to be bona fide purchasers for value without notice of the fact that, a wayleave does not confer any proprietary rights on the State.