Okwan & Ors. v. Amankwa [1981] GLR 417, Holding 1 @ 421, 423, H.C.

OKWAN AND OTHERS V. AMANKWA II [1991] 1 GLR 123 @ P.130, PER WIREDU J.A. COURT OF APPEAL, ACCRA. APALOO C.J., CRABBE J.S.C. AND WIREDU J.A
Ref.: Administration of Lands Act, S.17(1)

“The courts have always excluded private family stool lands from the operation of Act 123. The rationale underlying the view taken by the courts is not far to find. The main purpose for enacting Act 123 was to streamline the administration and revenue collection of “oman” or public stool lands to be used for maintaining the stool and the development of the areas where such stool lands are situate. In this regard it is such lands as are in common use by the subjects of the area that will be within the contemplation of the legislature for achieving that purpose. The objective envisaged did not stretch to cover private family lands the enjoyment and control of which are the exclusive rights of members of the family concerned. “Family” in this context is used in the narrow acceptation of the word. Were it otherwise, the burden on the Administrator of Stool Lands would be very heavy and his duties will be impossible to perform. The fallacy in any other interpretation than the above will be that whenever an individual owning land died intestate his land which should devolve on his family would become a stool land within the language of Act 123. Finally, were it not so then section 17 (1) of Act 123 will be otiose since all lands in Ghana will be taken as stool lands within the language of Act 123.”

JUDGMENT OF EDWARD WIREDU J.A.
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The parties to this appeal will for purposes of convenience be referred to in this judgement as the plaintiff, the first, second and third defendants respectively in the manner in which they have been described on the writ of summons or simply as defendants

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where the context so requires. The appeal is from a ruling of Okunnor J. sitting at the High Court, Cape Coast dated 1 April 1980 in which he dismissed an objection taken against the plaintiff’s capacity to maintain an action for accounts and rents in respect of his family stool lands.
The facts of this case which are devoid of any complexity may be briefly stated as follows. The parties to this suit are all members of the same family, namely the Kona family of Barko near Breman-Asikuma in the Central Region. The plaintiff is the odikro of Barko village. On the writ of summons issued on or about 18 November 1979, he is described as “the chief of Barko and of the Kona family of Barko”. The first defendant is the head of the said family whilst the second and the third defendants are on the pleadings described as members of the family.
The facts before the court show that this family owns lands in the Ajumako Traditional Area on portions of which are abusa farm tenants. The facts further show that these tenant farmers obtained their grants from the family and that members of this family are the exclusive beneficiaries of rents collected from the tenants including the felling of palm trees on the lands.
According to the plaintiff it had been the established practice in the family for the occupant of the family stool to take charge and manage the said family lands and that all rents accruing from the tenant farmers are collected on his authority and later distributed in accordance with established practice in the family.
The defendants deny the plaintiff’s claim to be the custodian of the family lands. The first defendant contends that as the head of the family he is by custom the custodian of all the family lands. The defendants in their statement of defence do not deny (a) that the lands in question are the private family lands of members of the Barko Kona family, (b) that members of the family are the exclusive beneficiaries of rents collected from stranger farm tenants working on portions of the family land granted them on abusa basis and (c) the proportions in which rents collected from tenant farmers working on the lands are shared as pleaded by the plaintiff. The only area of difference between the parties as to the sharing of rents is who takes and keeps the share of the family stool.
The events which seem to have sparked off the plaintiff’s action are pleaded in paragraphs (11)-(18) of the statement of claim as follows:
“(11) By custom every year the proceeds from the cocoa abusa tenants are shared into three as follows: one-third to the plaintiff, one-third to the stool which is also kept by the plaintiff for custom and stool expenses and one-

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third to the family for sharing among members of the family.
(12) The plaintiff is still the odikro of Barko. He has not been destooled.
(13) A little over a month ago the first defendant without authority from the plaintiff caused a gong-gong to be beaten to the effect that all the dues from palm trees on the land and the cocoa abusa dues should be collected by the second and the third defendants and paid to the first defendant.
(14) Since then the second and the third defendants have prevented the cocoa abusa tenants from paying the dues thereof to the plaintiff and have been collecting the moneys aforesaid without accounting to the plaintiff. They have also collected dues on palm trees.
(15) The plaintiff contends that the unlawful acts of the defendants amount to a usurpation of the plaintiff’s right.
(16) The plaintiff says the refusal by the defendants to account to him is also unlawful.
(17) The plaintiff says the defendants must account to him for all moneys already collected and must pay such moneys to him.
(18) The plaintiff says if the defendants are not restrained they will collect the moneys, misappropriate them and will not be able to render true and proper accounts.”

With regard to how proceeds from the family lands are disbursed, the defendants by paragraph 26 of their statement of defence pleaded thus:

(26) With respect to paragraph (11) the defendants aver that the proceeds of the family lands are divided into three with one-third to the plaintiff, one-third to the family and one-third to the stool, and that it is the first defendant who keeps the family and the stool’s share.”

It is thus clear from the pleadings that the main issues joined between the parties at this stage of their pleadings are:

(a) Who controls and manages the Barko Kona family lands? Is it the plaintiff as the occupant of the family stool and therefore the chief of the family or the first

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defendant as head of the family?

(b) Who keeps the one-third portion of proceeds from the family lands which goes to the family stool?

On or about 27 November 1979, on the application of the plaintiff, Osei-Hwere J, as he then was, granted an interim injunction restraining the parties from collecting rents from the abusa tenants farming on the family lands. The registrar of the court was appointed receiver and manager to take over the collection of the rents.

A statement in the ruling on the application for the appointment of a receiver and manager that the lands on which the abusa tenants were farming “are family stool lands” provoked an amendment to the statement of defence as follows:

“(30A) The defendants will contend further and in the alternative that if the land of the Barko Kona family is stool land then the plaintiff’s action contravenes section 17 of the Administration of Lands Act, 1962 (Act 123) and further that this court has no jurisdiction to entertain the plaintiff’s suit.

This amendment was settled as an issue on summons for directions and was set down at the hearing of the summons for legal arguments under Order 25, r. 2 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).

After hearing arguments from counsel on the above issue and after a careful examination of the case law on the matter the learned High Court judge (Okunnor J.) in what appears to me a well considered ruling, overruled the objection holding that the plaintiff’s action related to a private family stool land and was therefore not caught by section 17 of the Administration of Lands Act, 1962 (Act 123) and was therefore maintainable.

It is from this ruling dismissing the objection to the plaintiff’s capacity that the present appeal has been brought on three main grounds as follows:
“Grounds of appeal
(1) The learned trial judge erred in law in not considering adequately or at all the definition of ‘stool lands’ as provided in section 31 of the Administration of Lands Act, 1961 (Act 123).
(2) The learned trial judge erred in law in failing to consider the definition of ‘stool lands’ as provided in article 213(1) of the Constitution, 1979.

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(3) The learned trial judge erred in law in holding that stool family land or family stool land is not caught by section 17 of Act 123. (Further grounds will be filed on receipt of the record of proceedings).”

Grounds (1) and (3) of the grounds of appeal were argued together. The arguments submitted were in the main a reiteration of counsel’s submissions in the High Court. The pith of Mr. Mercer’s submissions on these two grounds in a nutshell can be grouped as follows:

(a) that when family lands are handed to a chief on his installation the character of the land changes and becomes stool property: see Republic v. Assua; Ex parte Blewey [1973] 2 G.L.R. 283, C.A.;
(b) that section 31 of Act 123 does not recognise any distinction between public stool lands and private family stool lands; and
(c) that the learned trial judge based his ruling on cases decided on statutes which had been repealed and therefore bore no relevance to the matter before him which were covered by cases like Asuon v. Faya [1963] 2 G.L.R. 77 and Republic v. Ekumfi Traditional Council [1974] 2 G.L.R. 412.

On ground (2) Mr. Mercer submitted that whatever must have been the accepted definition of stool land under previous legislations, article 213 (1) of the Constitution, 1979 has set the matter at, rest by treating family land as a stool land.

Mr. Agadzi for the plaintiff took a different view of the matter. He posed the question at issue thus: “Does the property belong to an oman stool or private family stool? He submitted that private family stool land was not caught by Act 123 or article 213 of the Constitution, 1979. He argued that public or oman stool land is property which all subjects of the oman are entitled to free use of. The finally submitted that the provisions of section 17 of Act 123 would have been unnecessary if the Act did not recognise a distinction between private family stool lands and an oman or public stool lands.

On the issue whether Act 123 recognises a distinction between oman stool lands on the one hand and private family stool lands on the other hand, there is a considerable body of case law on the matter. A recognition of this distinction by the court is evidenced by cases like Asuon v. Faya (supra) and Republic v. Assuah; Ex parte Blewey (supra). A careful reading of the judgments in these cases reveal

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that in deciding whether the lands which formed the subject-matter of a dispute were stool lands within the true intendment of Act 123 the court have always gone to great lengths to consider whether the lands involved were oman stool lands or private family stool lands and have come to conclusions one way or the other after deciding the status of the land involved.

The courts have always excluded private family stool lands from the operation of Act 123. The rationale underlying the view taken by the courts is not far to find. The main purpose for enacting Act 123 was to streamline the administration and revenue collection of “oman” or public stool lands to be used for maintaining the stool and the development of the areas where such stool lands are situate. In this regard it is such lands as are in common use by the subjects of the area that will be within the contemplation of the legislature for achieving that purpose. The objective envisaged did not stretch to cover private family lands the enjoyment and control of which are the exclusive rights of members of the family concerned. “Family” in this context is used in the narrow acceptation of the word. Were it otherwise, the burden on the Administrator of Stool Lands would be very heavy and his duties will be impossible to perform. The fallacy in any other interpretation than the above will be that whenever an individual owning land died intestate his land which should devolve on his family would become a stool land within the language of Act 123. Finally, were it not so then section 17 (1) of Act 123 will be otiose since all lands in Ghana will be taken as stool lands within the language of Act 123.

Whilst I agree that the learned trial judge made use of cases decided on repealed legislation like the Local Government Ordinance, Cap. 64 (1951 Rev.), I am unable to agree that his ruling was based on that repealed legislation. The learned trial judge in my considered view approached the matter before him with a sense of appreciation of the issue involved. What he did was to compare the definition given to stool land as contained in both Cap. 64 and Act 123 to ascertain whether there was any material difference in the two definitions. After considering the two, he rightly, in my view, came to the conclusion that there was no striking material difference in the two. Using the decided cases on the previous legislation, i.e. Cap. 64 therefore as a guide, he came to the conclusion that the land in dispute was a private family stool land and was therefore not caught by the provisions of Act 123.

The only new point taken before us by Mr. Mercer was his submission on the definition of stool land as contained in article 213 of the Constitution, 1979 which reads:

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“stool land” includes any land or interest in, or right over, any land controlled by a stool, the head of a particular community or a family for the benefit of subjects of that stool or the members of that community or family; ‘stool’ includes a skin and the person or body of persons having control over skin or family land.”

The above definition governs the provisions of article 190 of the Constitution, 1979 which deals with stool lands. I would under normal circumstances have ignored that definition. For the general rule of interpretation is that where an enactment has clearly defined particular words in its interpretation section it is uncalled for and most unnecessary to look elsewhere for the meaning of those words. Since the objection taken by the defendants was based on the provisions of Act 123 I would have limited them to the definition of “stool land“ as given in that Act but for the fact that the Constitution, 1979 is the supreme law of the land and that all enactments must be brought within its provisions to avoid inconsistencies. Both article 190 and Act 123 deal with administration of stool lands. It is necessary therefore to see that the provisions of the latter do not conflict with the former.

Article 190(2)(a) of the Constitution, 1979 imposes on the Administrator of Stool Lands the duty of collecting rents, revenues, etc accruing from stool lands in place of the Minister responsible for Lands as provided by section 17 of Act 123. The beneficiaries specified under clause (5) of article 190 provide a clue as to the nature of the land envisaged under the provisions of the article. The imposition of the duty of collecting rents from stool lands on the Administrator of Stool Lands by the present Constitution demands that the defendants’ amendment would need a further amendment by substituting the Administrator of Stool Lands in place of the minister. Article 190(5) reads as follows:

“(5) There shall be paid out of the stool lands account,
(a) to the stool, through the traditional authority, for the maintenance of the stool in keeping with its status,
(b) to the traditional authority, and
(c) to the councils established pursuant to article 182 of this Constitution,

within whose area of authority are situate the stool lands concerned such moneys and in such proportions as may be determined by the Lands Commission.”

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It is clear from the above provision of article 190 that private family lands are not intended to provide the funds for the maintenance of institutions which are of a public nature as specified under it.

Section 31 of Act 123 defines stool land as follows:

“‘Stool land’ includes land controlled by any person for the benefit of the subjects or members of a Stool clan, company or community, as the case may be and all land in the Upper and Northern Regions other than land vested in the President and accordingly ‘Stool’ means the person exercising such control.”

It does not mention “family land,” but contains “stool, clan.” The definition under article 213 of the Constitution mentions “family land,” and not “clan.” Clan ordinarily means larger family. I am of the view that to interpret “family land” in the narrow acceptation of that word as the true meaning of that word within the language of article 190 would produce a palpable injustice.

When the provisions of article 190 are read together with provisions of Act 123, the true intent of the enactments will be defeated by giving a narrow interpretation to “family land” as contained in article 213 (1) of the Constitution, 1979. The public status or nature of the property sought to be administered in the interest of the general community would be made applicable to such family land and that would arbitrarily deprive individual families of control and management of their lands, a situation which is not envisaged under the Constitution, 1979. In my view, it would be a case of injustice to resort to their family lands. Where a word is capable of two interpretations one producing an injustice and the other conducive to a just result, the courts have held on to the interpretation that does not produce injustice. In the case of R. v. Tonbridge Overseers (1884) 13 Q.B.D. 339 at 342, C.A. Brett M.R. said:

“If an enactment is such that by reading it in its ordinary sense you produce a palpable injustice, whereas by reading it in a sense which it can bear, although not exactly its ordinary sense it will produce no injustice, then I admit one must always assume that the legislature intended that it should be so read as to produce no injustice”.

Again in the case of Barlow v. Ross (1890) 24 Q.B.D. 381, C.A. Lord Esher M.R. in the course of delivering his judgment said at 389:

“But it is a familiar rule of construction that, although the

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Courts are prima facie bound to read the words of an Act according to their ordinary meaning in the language, if there are other circumstances which show that the words must have been used by the legislature in a sense larger than their ordinary meaning, the Court is bound to read them in that sense.”

I am of the view that “family land” as referred to in article 213 (1) of the Constitution, 1979 must be interpreted in its broadest sense to connote the public nature of the subject-matter or to the same genus as the specific words which precede it, i.e. “community land” and “stool lands” commonly enjoyed by all subjects of the stool. Family as used here connotes a wider clan.

The facts of this case show that the land the subject-matter of dispute in this appeal is a private family property of the parties and it will be unjust to construe “family land” contained in article 213 of the Constitution, 1979 in its narrowest sense to deprive the family of its control and management. Being a private family stool land it is not a stool land within the language of either the Constitution, 1979, art 213(1) or Act 123, s. 31.

I am of the view therefore that the ruling appealed from is sound and unimpeachable, and ought to be affirmed. The appeal fails and I accordingly dismiss it.

JUDGMENT OF APALOO C.J.

I also think the ruling appealed from was right and ought to be affirmed. Had the complaint against the ruling been founded only on the fact that the occupant of a family stool is bereft of capacity from maintaining an action to enforce his rights to the revenue or other income from the land by the provisions of section 17 of the Administration of Lands Act, 1962 (Act 123), I would have contented myself with merely dismissing the appeal and adopting the learned judge’s reasoning. It seems to me basically sound.

But before us, a further ground was found to impeach his conclusion. It is article 213(1) of the Constitution, 1979 which gives some definition of “stool land.” There is clearly in customary law jurisprudence, a distinction between stool lands properly so-called and family lands. Lands owned by the stool family belong to this latter category.

The problem posed by this case is to consider whether the present Constitution, 1979 has done away with the distinction between stool lands and family lands by the somewhat wide definition it gave to stool land by clause (1) of article 213. The Constitution, 1979 dealt broadly with two types of lands, namely “public lands” which by definition are government lands and secondly, “stool lands.” Clause (1) of article 190 provides that the latter “shall vest in the appropriate

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stool on behalf of and in trust for the subjects of the stool.”

While in either case title to these lands vested in the government or stools as the case may be, the Constitution, 1979 sought to vest their management and control in one case in a Lands Commission and in the other case an Administrator of Stool Lands. The object seems to secure their efficient management.

It seems clear the Constitution, 1979 has no truck with family lands. It did not seek to regulate their enjoyment and made no provision for their management. The right to manage, control and alienate property is an inseparable incident of ownership. Family lands in this sense being private property are protected against expropriation without compensation by article 24 of the Constitution, 1979. Public and stool lands are in fact trust properties held in one case, for all the people of Ghana and in the other case, for all the subjects of a stool. One can therefore see the rationale in the statutory regulation of their alienation and enjoyment. It is difficult to think of one for family lands.

It is against this background that one must consider the definition of stool land in clause (1) of article 213. It says:

“Stool land includes any land or interest or right over any land controlled by a stool, the head of a particular community or a family for the benefit of the subjects of that stool or members of that community or family.”

Unlike stool lands which enure for the beneficial enjoyment of all the subjects of a stool, family lands are exclusively enjoyed by the members of a family and as I said, are in their truest sense, private properties. Should such properties now be deemed stool lands and subject to the statutory regulation and controls imposed on stool and public lands? It is hard to think that the makers of our Constitution, 1979 sought to convert family lands into stool lands by mere definition with such far-reaching consequences.

I have looked in vain at the proposals placed before the 1979 Constitutional Commission for any material on which it could have taken such a decision. The significant difference between a stool land and a family land was nowhere adverted to. Contrariwise, the 1968 Constitution Commission showed itself alive to this difference. It said at 193, para. 712 of its Memorandum on the Proposals for a Constitution for Ghana, 1968.

“712. In making these proposals we have taken into consideration the fact that certain lands are designated as stool lands which in fact are not stool lands but family property which

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stool on behalf of and in trust for the subjects of the stool.”

While in either case title to these lands vested in the government or stools as the case may be, the Constitution, 1979 sought to vest their management and control in one case in a Lands Commission and in the other case an Administrator of Stool Lands. The object seems to secure their efficient management.

It seems clear the Constitution, 1979 has no truck with family lands. It did not seek to regulate their enjoyment and made no provision for their management. The right to manage, control and alienate property is an inseparable incident of ownership. Family lands in this sense being private property are protected against expropriation without compensation by article 24 of the Constitution, 1979. Public and stool lands are in fact trust properties held in one case, for all the people of Ghana and in the other case, for all the subjects of a stool. One can therefore see the rationale in the statutory regulation of their alienation and enjoyment. It is difficult to think of one for family lands.

It is against this background that one must consider the definition of stool land in clause (1) of article 213. It says:

“Stool land includes any land or interest or right over any land controlled by a stool, the head of a particular community or a family for the benefit of the subjects of that stool or members of that community or family.”

Unlike stool lands which enure for the beneficial enjoyment of all the subjects of a stool, family lands are exclusively enjoyed by the members of a family and as I said, are in their truest sense, private properties. Should such properties now be deemed stool lands and subject to the statutory regulation and controls imposed on stool and public lands? It is hard to think that the makers of our Constitution, 1979 sought to convert family lands into stool lands by mere definition with such far-reaching consequences.

I have looked in vain at the proposals placed before the 1979 Constitutional Commission for any material on which it could have taken such a decision. The significant difference between a stool land and a family land was nowhere adverted to. Contrariwise, the 1968 Constitution Commission showed itself alive to this difference. It said at 193, para. 712 of its Memorandum on the Proposals for a Constitution for Ghana, 1968.

“712. In making these proposals we have taken into consideration the fact that certain lands are designated as stool lands which in fact are not stool lands but family property which

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