From : Numo Notse Amartey

To: Okyeame, Gamei

Ganyobi on the Question of Accra Lands

Having hurriedly reviewed fragments of the current argument about the state of land tenure in Accra I wish to intervene on the side of accuracy and precision to ensure a more fruitful and balanced discussion. The various writers have left entirely out of account any legal exposition of the land problem in Ghana; without that any attempt at resolution will remain flawed and misdirected. Indeed in a forum which appears to include some of the most eminent future savants of Ghanaian scholarship one has seen several patently false assertions gone unremarked; and unrealistically optimistic and unpracticable recommendations applauded.

It has, for instance, been stated that "the practice of reversion is rarely used and there is no definitive legal opinion on it" ; the government does not have any right to decide how lands owned by the chiefs and peoples of Accra is used" lands expropriated by government should be taken from the allottees and either resold at going market prices or be kept in the public domain there is a need for a well-defined "property rights" system (Bonti-Ankomah); federal government (sic) should relocate people to other regional zones; and "government still has overall authority in designating the purposes to which land can be put in most areas in Accra".

Each of the above is factually flawed and that they above were offered ex cathedra by serious academics and thinkers diminishes the quality of discussion surrounding the land issue. On one occasion the term "expropriation" was even erroneously employed to describe the activities of traditional chiefs and their right to the reversionary interest in stool land.

Before turning to an outline discussion of the land law of Ghana and its negative impact on urban residential developments, I shall take each of the above in turn. For the uninitiated many of the issues discusssed under the present heading, particularly as regards Accra lands, have been excellently researched and documented by E.N.A. Kotey, Residential Tenancies and the Urban Land Law: The Ghanaian Experience, Unpublished University of London PhD thesis 1981; and Nii Armah Aryeh, Family, Property and the State in Ghana: Changing Customary Law in an Urban Setting, Unpublished University of London PhD thesis 1994. As I have suggested it is incorrect to state that there is no judicial authority on the practice of reversion.

The matter was settled in the case of Armah v. Lands Commission (1979) G.L.R. (Ghana Law Reports) 79. This was a case in which private persons successfully asserted their right to land which had originally been acquired by government as part of the Odorkor cemetery, but was subsequently allocated to respondents. Although it is certainly true that government has no control over lands sold by private treaty to individuals by traditional leaders, it is not the same as saying that government has no right to decide how lands owned by the chiefs and people of Accra are used.

In fact the Lands Commission, with the Lands Department as its implementing Secretariat, is charged with formulating land policy throughout the country and advising the government thereon; further, we have seen the reversion of the allodial title to Northern Ghanaian lands to the various skins as a result of provisions of the 1979 Constitution. Therefore government, both through constitutional enactment and the activities of the Lands Commission, has continually influenced land policy in Ghana. Also, under the Administration of Lands Act, 1962 (Act 123), government has a right to assume management powers over stool lands. Under section 2 of the Act government can direct the institution or defence of proceedings relating to any stool land.

The taking of land by government, also known as expropriation, is governed by the law of eminent domain (See, e.g., Nichols on Eminent Domain, London: Matthew Bender & Co. Ltd., pp. 7-8; J.A.C. Grant, "The Higher Law Background of the Law of Eminent Domain", Wisconsin Law Review, Vol. 6 (1930-32), pp. 65-85); and J.L. Sax, "Takings and the Police Power", Yale Law Journal, (1964), pp. 36-76.

Lands around Cantonments, East Legon, Airport Residential were acquired by eminent domain and allocated to members of the social élite which obviously excludes the traditional élites of Accra, to judge by the present occupants.

It is fatuous to suggest that such lands could be clawed back from the present allottees and resold at market prices. How does one square that with the argument elsewhere about property rights of private citizens? The idea of property rights, at least as eleborated by the jurists, is about protecting the interests of present holders, not those of the dispossessed; it is about defending the rights of those whose names appear on legal instruments and other deeds - the processes of the civil courts are about the same thing. The rights of the poor to land has throughout the advanced world taken the form of mass housing principally in tenement apartments and high rise blocks. Herein lies the failure of the Ghanaian state (since independence) in excluding the interests of the poor in mass housing where the usual networks work against the interests of original owners. This sort of thing has occurred throughout major Ghanaian cities.

Expropriation involves the extinguishment of the rights of the original owner, and once land has been allocated new rights are created therein. A proper and entirly original view would be to work out ways of exploiting the ground rent (since the majority of such lands are given out as leases) in a way that benefits the holders of the allodial title and minimises social tensions.

On current evidence the manifest social inequity of having the urban poor cheek by jowl with the filty rich (e.g. Nima and Airport Residential) is bound in the future to feed social tensions. Under customary law, a stool subject has an inalienable right to occupy unoccupied stool land for farming or residential purposes; but tell this to the people of Bukom and Chorkor. The grim irony in such places is that people who under our customary law have an inalienable right to land, are today to all intents and purposes landless. When next in Accra take a nightly stroll through such places and witness people sleeping in the streets. Apparently government neither cares nor has the imagination to help such people out.

It is difficult to see how a "property rights system" could influence the existing state of land tenure. The notion that a property rights scheme can resolve land problems in Ghana is an attractive fiction. Property law deals with interests in land, not property rights which fall under human rights law. What should be at stake is the question of giving the poor a stake in landed property. Both traditional authorities, scholars and political parties have a role here. The colonial government purposely developed the Mamprobi and Kaneshie estates to settle poorer people from Accra Central; this together with the provision of market facilities was standard colonial fare which saw their demise with independence when government, while preaching socialism, started to follow a diametrically different policy.

Having noted the acerbity of the criticism against the Accra chiefs, I should now disclose that to date government has not paid the people of Jamestown a penny for land taken for the Dansoman estate (the largest housing estate in Ghana) and the Akwasa cemetery (Mile 11); I have these on the authority of the Chief of Jamestown, Nii Kojo Ababio IV. To a large extent, the problem lies in the nature of Ghanaian customary law.

As set out by N.A. Ollennu, Bentsi-Enchill, Mensah Sarbah, et. al. Individuals, families, various types of stool (paramount, divisional, quarter, etc.), can all own the allodial or paramount title to land in Ghana (See, e.g. N.A. Ollennu, Principles of Customary Land Law in Ghana, London: Sweet & Maxwell, 1962, p. 11). This means that once land is acquired all sorts of claimants come forward as the holders of the allodial interest, disputing the title of the head stool; this situation, already as clear as mud, is further complicated by the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions), P.N.D.C. Law 42 which defines stool lands to include family lands.

In practice, therefore one finds various powerful families claiming stool lands to be family lands. Given the dearth of historical and other records on land tenure, parol evidence is often the only type of evidence on which these matters are resolved. Operating in tandem with the foregoing factors are various principles of English law, particularly those relating to limitations of time. In English property law possession is nine-tenths of the law. Consequently, the people of Labadi find that they cannot uproot non-Labadi citizens from, say, Madina where Hausas and other elements sell land to Labadi citizens.

The town of Labadi itself is completely encircled by lands acquired by government: East Cantonments, Burma Camp and the Military Academy. Within the town there are hardly any compensating benefits for the people. When the present Labadi chief made an attempt to get the Madina chiefs to even acknowledge his jurisdiction or in the alternative have a Labadi-born chief installed, powerful elements at the Castle, fearing that the validity of their families’ and their own titles might be called in question, deployed police around Madina in defence of the current non-Labadi chief. The matter is still smouldering; it is anybody's guess where the justice lies in this.

Nearly the whole of Tema lands and large parts of Nungua and Kpone lands have been acquired by the TDC; but their peoples hardly feature in land allocations by the same body. One recently read of the chief of Lashibi signing away his rights to Lashibi lands at a ceremony held at Burma Camp and witnessed by the Army Commander (The document was published in the Ghanaian press). One wonders whether the signing was done in a tank with a gun to the chief's head. This highly unsavoury act needs examining. What has the Army commander, who is not a native of Lashibi, got to do with a stool's right to land. The example of the Nungua chief, Nii Odai Ayiku, who was driven to a lonely exile in London, is as compelling as any of the endless pressures brought to bear on those chiefs who resist. Although Nii Ayiku was endlessly harassed and incarcerated on several occasions, no charge was ever preferred; his crimes seem to lay in having resisted powerful people with designs on Katamanso (where Rawlings famously "planned" his guerrilla training) and other lands. Although his detractors and factions within Nungua were stirred to agitate for his destoolment, the state with all the apparatus at its disposal found nothing to pin on him, despite a almighty effort.

We have already noted that until 1979 all lands in Northern Ghana were vested in the state. Attempts to vest lands in the original Gold Coast colony in the Crown through the Crown Lands Bill 1897 was resisted by the Aborigines' Rights Protection society to much celebrated applause from the generality of Ghanaians. A body of opinion is rapidly emerging that that was the greatest error of the old colonial intelligentsia who appeared to have served only their own interests in securing mining concessions from the chiefs and laying claim to vast tracts of land (Cf. the land-grabbing activities of the Reindorf family below). In the result lands remained vested in chiefs and families and the emerging customary law based on the verdicts of white judges was shaped by Sarbah's Fanti Customary Laws, London 1897 which has tended to uniformise all southern Ghanain customary laws within an Akan traditional law format.

For the Ga-Dangme this was disastrous. To illustrate, official records show that it was the Ga Manche Okaikoi (and not the Osu chiefs) who ceded the land upon which Christiansborg Castle now stands to the Danes; Okaikoi's successors gave lands to the people of Jamestown; to Manche Ankrah, who re-named the Ga Manche's gift Awudome after his famous victory at Tsito-Awudome across the Volta; King Tackie Commey settled Brazilian immigrants at Amusudai, Adabraka; and further gifted some lands to the Arde-Nkpa family at Bortianor. The above show the Ga Manche's initial right over lands across Accra.

Once Sarbah's principles were applied to Accra lands together with English notions of acquisition by adverse possession, stare decisis and res judicata, the context became ripe for the loss of land rights by ordinary people and the virtual ousting of the Ga Manche's rights to vast portions of his own lands. What one sees in Accra today is a feeding frenzy by the rentier class, eager to sell to the highest bidder lest someone else secures a deal on the same land ahead of him. In several places to purchase a piece of land is to purchase a virtual lawsuit.

This culture of land sale was facilitated by the system of deeds registration which preceded the land title registration system. The first deeds registration legislation was the Registration Ordinance of 1883; followed by the Land Registry Ordinance 1895; the latter was replaced by the Land Registry Act, 1962. Although it is popularly believed that land registration under any of the above enactments secured title for the purchaser, that was not the case. The deeds registry system only provided evidence as to which of two purchasers from the same vendor won the race to the registry, and was thus incidentally of some relevance in resolving sales from the same vendor to different purchasers. Where the land was sold by different vendors claiming title to the property the system of deeds registration was virtually useless.

The commoditisation of land around the early twentieth century did not help as various clan heads laid claim to land to the exclusion of all others. Until the Ga Manche and the Korle Wulomo, Numo Ayitey Cobblah won a court case recently, the Reindorf or Onamrokor Adain family of Gbese laid claim to lands stretching from Kokomlemle along the Nsawam road; along the Akwapim foothills and southwards along the Aburi Road. The family of the late Albert Heward-Mills (Agbado) of Jamestown, famous race-horse owner and celebrated criminal lawyer claimed nearly the whole of Tesano. The Adumuah-Bossman's have claimed the suburb of Tantra Hill.

Add to this the workings of the State Lands Act, 1960 (act 27) and one rapidly concludes that the chiefs and people of Accra have relatively little land left to themselves. As is well known the assertion of chiefly rights over land developers is further complicated by the operation of the Land Development (Protection of Purchasers) Act, 1960 (Act 2). Under this Act all sorts of intruders enter stool lands, commence to build quickly and then seek court protection once the building has reached a certain level; this Act applies to Accra and one or two other "designated" places; and as is obvious was one of the very first Acts under the first republic.

Furthermore, while before independence government had attempted to allocate sections of all housing estates to indigenous people, the CPP government pursued policies in such places as Kaneshie and Kanda which totally overlooked local interests; this was the major grievance of the Ga Shifimo Kpee. Again the current Land Title Registration Law (P.N.D.C.L. 156) although ostensibly a law enacted to apply nationally is at present only operating in Accra. Under that legislation once a purchaser registers a title, however defective, the stool's title is effectively extinguished.

One other factor is the operation of the customary law of succession; although this is today mitigated somewhat by the Intestate Succession Law, P.N.D.C.L. 111. The traditional rules of succession upon intestacy tend to cause a multiplicity of ownership in land with the subsequent creation of a large class of owners. Thus ever increasing numbers of people lay claim to various families lands, selling them in competition with other claimants.

The problem is not with such plethora of legislation; it is with lack of governmental will to fashion a land policy that recognises that there are people, Ga, Hausa, Akan and others in Accra who stand to lose if land policy is enforced half-heartedly. Aside from the poorer sections of the indigenous Ga population, many Ghanaians who emigrate to the city tend to cut their ties with their places of origin and consequently lose land rights there.

The challenge is to fashion a policy that accommodates all such persons without creating a tinder-box. I believe the mechanisms are already in place for government to ensure the implementation of a good land policy for Ghana; I am sceptical that any further legislation would achieve any particular purpose. Under the Land Registry Act, 1962, for instance, it is provided in section 34 that anyone who knowingly makes multiple sales or conflicting grants of the same piece of land shall be liable to certain penalties. To my knowledge that provision has never been evoked despite the widespread occurrence of double sales and other fraud in land transactions.

Without hyperbole, what is called for is a multi-disciplinary and/or multi-agency approach to resolving the land problem; this problem must at last find its own professional constituency. The time seems right to set up a Customary Law Research Unit at Legon to work together with banks and other financial institutions, developers, the Lands Commission, government, Law Reform Commission, Parliamentary draftsmen, traditional chiefs and others to formulate ways of ensuring greater social equity in the distribution and enjoyment of land.

They can make a case for setting aside reasonable percentages (perhaps 15 per cent with guaranteed mortgages and rental deals to third parties to minimise cases of financial hardship) of all developed lands to indigenes around the country; and test various hypothesis in the real fires of argument and debate; by assembling evidence, reasoned advocacy and a fair degree of lobbying they might succeed in taking the sting from the problems which bedevil the land issue so seriously in Accra.

Whether they can overcome the obduracy of government remains to be seen. I rest my case; and leave it to the professional agitators and the peripatetic pamphleteers to work out what the consequences might otherwise be several decades down the road. The same currents of confusion and frustration over land rights are slowly eddying across other parts of urban Ghana; one hopes that they will not be met with the same contempt with which problems are frequently countered in our country. They say that the more a pepper has to struggle during growth the hotter it tastes.

Long Live Ghana !

NUMO NOTSE AMARTEY