Land Rights: Domestic Judges and International Law

LAND RIGHTS: THE DOMESTIC JUDGE AND INTERNATIONAL LAW. HOW WELL ARE WE DOING?

1. INTERNATIONAL INSTRUMENTS ON LAND RIGHTS
2. LEGAL FRAMEWORK FOR LAND RIGHTS IN GHANA
3. THE ROLE OF THE DOMESTIC JUDGE
4. CONCLUSION

This exposé at the 18th IAWJ regional conference by Hon. Justice Rebecca Naa Shormeh Sittie explores how international and Ghanaian laws shape land rights, the role of judges in enforcing these rights, and the challenges faced in land disputes.

INTRODUCTION

The incidents of the rights and interests in land are shaped by the history, culture, and customs of a people as well as their laws, which have usually been influenced by international conventions, declarations, and guidelines. The spread and deepening of economic globalization have highlighted the ever-closer connections between global demands for natural resources, which has put pressure on land and land rights at the local and national levels. There are increasing claims to land, and rights to land and natural resources by indigenous people, marginalized and minority groups against their governments, transnational companies, and investors who have intruded upon the land rights and interests of local people as well as their access to natural resources.

Though there have been various declarations and internationally instituted research to encourage the security of land rights for indigenous people, minority groups, landless people, and women, it must be stated, however, that there are no codified international laws governing land rights and interests in land. We cannot talk about land rights without talking about interests in land. Issues of land rights and interests in land usually appear as human rights issues. They can be found in international as well as local instruments.

INTERNATIONAL LEGAL INSTRUMENTS

There are several international instruments on land rights. A number of them are tied to land governance, gender, agriculture, environment, and poverty eradication or economic empowerment. Reference is made to the:

1. Universal Declaration of Human Rights
2. United Nations Declaration on the Rights of Indigenous People (DRIP) Article 26(2)
3. International Labour Organization Article 169
4. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981.

1. The Universal Declaration of Human Rights (UDHR)

In the UDHR, land and property rights are treated as human rights. Article 17 states:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

2. United Nations Declaration on the Rights of Indigenous People (DRIP) Article 26(2)

Articles 26-30 deal with the rights to land and natural resources. Governments are required to legally recognize and respect the indigenous laws and traditions about land and natural resources. Indigenous people must have the right to own, use, and develop their land and resources. It makes provision for compensation, resettlements, and reacquisition when the lands are acquired. It also requires that before any compulsory acquisition, the people must be consulted.

3. International Labour Organisation’s Convention 169

ILO No. 169 outlines member states' obligations in protecting the rights of indigenous peoples. Part II, Articles 13-15, address protections for land territories while Article 14 recognizes property and natural resource ownership in lands which indigenous people have traditionally occupied. Article 14:

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession.

4. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981

The Convention explicitly acknowledges that "extensive discrimination against women continues to exist” and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in Article 1, discrimination is understood as "any distinction, exclusion, or restriction made on the basis of sex...in the political, economic, social, cultural, civil, or any other field". The Convention gives positive affirmation to the principle of equality by requiring States parties to take "all appropriate measures, including legislation, to ensure the full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men".

One can clearly see that all these international instruments listed above have the same aim. A cursory look at some of them reveals a repetition of the same principles. These provisions are basically to ensure that no person is deprived of owning or using their own land and that no person's land rights are restricted, denied, forcefully evicted, or compulsorily acquired without consultation or compensation. These instruments seek to promote security of tenure and access to land. Thus, it is required of states and governments who are signatories to internalize these instruments in their constitutions, policies, laws, and statutes. The states and governments are also required to legally recognize the customs of all peoples relating to land because there are spiritual, cultural, moral, and social values associated with land. To deny people these rights amounts to denying their existence.

LEGAL FRAMEWORK FOR LAND RIGHTS IN GHANA

The issue of protection of land as well as the rights and interests therein started in the colonial era when a pressure group of the intellectuals and chiefs known as the Aborigines Rights Protection Society (ARPS) in the Gold Coast sought to protect the traditional land tenure practices of the indigenous Gold Coast peoples from being usurped by the British colonial government. The ARPS presented their dissent on the Lands Bill of 1894 and 1897 to Joseph Chamberlain, the Secretary of State of Britain at the time. Fortunately, the ARPS succeeded in having the Bill withdrawn.

Ghana, being a signatory to these international declarations and conventions, has institutionalized a number of these rights in the 1992 Republican Constitution and various laws, statutes, and policies.

A number of the international instruments seeking to guarantee and protect rights of people usually refer to “indigenous people”. In Ghana, people are indigenous to the localities where they hail from. There are various land rights and interests as to ownership. A person who does not hail from a locality is usually referred to as a “stranger.” The fact of being a “stranger” has certain restrictions when it comes to ownership and use of land outside one’s traditional area. Customary law forms part of Ghana’s legal framework. See Article 11(2)

Under customary law, the highest form of land ownership is the Allodial title. The Allodial title is usually vested in Chiefs, Heads of Families, and Clans who are referred to as Traditional Authorities on behalf of their people. Subjects of Stools and Members of Families and Clans by reason of their membership have the usufructuary interest. There are lesser interests in land derived from the Allodial or usufruct like leases, tenancies, and licenses. Common law interests also exist side by side with the customary law interests. We have the Common law freehold, leases, tenancies, and licenses.

Land and property rights have been enshrined in the Constitution of Ghana under Article 18 (1&2) as Human Rights:

(1) Every person has the right to own property either alone or in association with others. (Article 17 (1) (UDHR)) (2) No person shall be subjected to interference with the privacy of his home, property, correspondence, or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country for the protection of health or morals for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

The Constitution further guarantees the land and property rights of the Ghanaian in Article 20. I wish to quote some portions as follows:

1. No property of any description or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied under (a) and (b): a. The taking of possession or acquisition is necessary in the interest of defense, public safety, public order, public morality, public health, town and country planning, or the development or utilization of property in such a manner as to promote the public benefit; and b. The necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.
2. Compulsory acquisition of property by the State shall only be made under a law which makes provision for: a. The prompt payment of fair and adequate compensation; and b. A right of access to the High Court by any person who has an interest in or right over the property, whether direct or on appeal from other authority, for the determination of his interest or right and the amount of compensation to which he is entitled.
3. Where a compulsory acquisition or possession of land effected by the State in accordance with clause (1) of this article involves the displacement of any inhabitants, the State shall resettle the displaced inhabitants on suitable alternative land with due regard for their economic well-being and social and cultural values.
4. Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired.
5. Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition shall be given the first option for acquiring the property and shall on such reacquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurate with the value of the property at the time of the reacquisition.

The above provisions in Article 20 are similar to those found in DRIP and ILO 169. Thus, the State or Government or any governmental institution does not have unfettered power to deny a person of his land rights for any and every reason. The power of eminent domain can be exercised under the specified conditions as expressly stated in the 1992 Constitution. Article 20 (4) provides for resettlement of displaced persons where necessary. Furthermore, under Article 20 (5) and (6), the Constitution makes provision for reacquisition of lands acquired in the public interest from the original owner where the purpose of the acquisition fails, subject to the payment to the government of the whole or part of the compensation paid to the person, depending on the value of the land at the time of the reacquisition of the land.

Under Article 257 (1) and (5), all public lands and all minerals in its natural state, in, under, or upon any land in Ghana, no matter where they are found, are the property of the Republic of Ghana and are vested in the President on behalf of and in trust for the people of Ghana. However, the Constitution makes provision for distribution of part of the incomes derived from the control and management of these lands and resources to the owners under Article 267 (2) (c).

Whenever these land rights are interfered with, the people affected have the right to seek redress in the courts. There are Civil Society Organisations (CSOs) and Non-Governmental Organisations (NGOs) working with indigenous peoples/nationals to protect and fight for their rights in the use of their lands and natural resources through advocacy and civil action in the courts.

The Constitution goes further in Article 22 to make provision on spousal rights during the marriage, on divorce, or upon death. This provision is in line with CEDAW, of which Ghana is a signatory. Article 22(1) states: “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will." (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.

THE ROLE OF THE DOMESTIC JUDGE IN SECURING LAND AND PROPERTY RIGHTS

The Domestic Judge for our discussion today refers to the Judiciary and the hierarchy of adjudication and the appeal system. Article 125-162 of the Constitution and the Courts Act 1993 (ACT 459) provides for the Judiciary. We have the Supreme Court as the Apex Court, then the Court of Appeal, followed by the High Court, the Regional Tribunals, and the Lower Courts, namely the Circuit Courts, the District Courts, and Juvenile Courts.

The Domestic Judge, in dealing with land rights and interests in land, is required to have recourse to the Constitution of Ghana, the various laws and statutes on land, our customary law, and international legal instruments, the peculiar facts of each case, and the evidence available, and the principles of stare decisis. The Domestic Judge will have regard to the Rules of Court as well as the rules of evidence in arriving at his/her judgment.

Any party dissatisfied with the judgment has the right of appeal from the lowest Court to the Apex Court. Even the Supreme Court may review its decision on application by the dissatisfied party or on referral by a lower court. Where there are omissions in the law, the Domestic Judge would fill in to protect the human rights of Ghanaians as the Supreme Court has done in the area of spousal rights:

In the area of spousal rights, though Parliament has failed to pass legislation as envisaged under Article 22(2), the Supreme Court has taken it upon itself to deal with spousal rights under Article 22 of the 1992 Constitution because the rights of spouses had accrued. It also applied the existing legislation on spousal rights under section 20 of the Matrimonial Causes Act 1971 [Act 367] and the human rights of parties under Article 18(1) (1)” Every person has the right to own property either alone or in association with others.”

In the case of Mensah v Mensah (2012) 1 SCGLR 391, the petitioner filed for divorce and sought an equal share of assets acquired during the marriage. But at the inception of marriage, neither party owned any property. The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him and therefore should not be considered an equal holder of marital assets. When the case went on appeal, the Supreme Court affirmed the decision of the High Court and the Court of Appeal. The Supreme Court held that a spouse was entitled to benefit from property acquired during the pendency of the marriage without proof of substantial contribution. The Court held that; “property jointly acquired during marriage would become joint property of the parties and such property should be shared equally on divorce because the ordinary incidents of commerce had no application in marital relations between husband and wife who had jointly acquired property during marriage.”

Furthermore, the Supreme Court applied the provisions of the Constitution as well some international conventions: “For example, Article (1) of the Universal Declaration of Human Rights provides as follows: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 12 (1) and (2) of the Constitution 1992 give the scope and content of the fundamental Human Rights and Freedoms which the individual is entitled to enjoy. As a matter of fact, even though the Universal Declaration of Human Rights is not a binding treaty, its principles and underpinning philosophy have been incorporated into national constitutions and referred to by several national courts. This is the context into which our national Constitution 1992 has to be understood in relation to this principle of Jurisprudence of Equality. Ghana is also a signatory to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).

The Supreme Court also made reference to Article 1 and 5 of CEDAW when it stated: “For example, article 1 of CEDAW provides a definition of discrimination as follows: “For the purposes of the present convention, the term “discrimination against women” shall mean any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Furthermore, article 5 of CEDAW adds a key concept to international equal protection analysis; the need to eradicate customary and all other practices which are based on the idea of the inferiority or the superiority of the sexes or on stereotyped roles for men and women. On the basis of the above conventions and treaties and drawing a linkage between them and the Constitution 1992, it is our considered view that the time has indeed come for the integration of this principle of “Jurisprudence of Equality” into our rules of interpretation such that meaning will be given to the contents of the Constitution 1992 especially on the devolution of property to spouses after divorce. Using this principle as a guide, we are of the view that it is unconstitutional for the courts in Ghana to discriminate against women in particular whenever issues pertaining to distribution of property acquired during marriage come up during divorce. There should in all appropriate cases be sharing of property on an equality basis.”

The Supreme Court has applied the principle of non-substantial contribution in spousal property rights on a case-by-case basis. In the case of Fynn v Fynn & Osei (2013-2014) 1 SCGLR 727, another divorce case, the Supreme Court held that the principle in Mensah v Mensah should not be applied to restrict the ability of spouses to acquire their own properties during the marriage. Because to do so would amount to denying a spouse the right to own property guaranteed under Article 18 of the 1992 Constitution.

In the area of compulsory acquisition, compensation, and reacquisition of lands where the land is no longer needed for the stated purpose of acquisition, I will cite the case of Nii Kpobi Tettey Tsuru v Attorney General (2010) SCGLR 904. The plaintiff, who is the Allodial owner, brought an action against the Government seeking the return of the land compulsorily acquired since the purpose of the acquisition, which was a leasehold, had failed under Article 20 (5) and (6). The plaintiff claimed the right of first option under Article 20 (6) of the Constitution. The Supreme Court, by majority decision, held that the plaintiff’s claim was not within the application of Article 20 (5) and (6) because the constitution was prospective, not retrospective. The matter came for review on a referral from the High Court in Nii Tettey Kpobi Tsuru v Attorney General [2011] GHASC 20. Even though the review application was dismissed, the Supreme Court in considering the application for a review of its earlier decision made references to several international instruments regarding land rights as fundamental human rights which must be protected.

Adinyara JSC stated: “The combined effect of Article 20 (5) and (6) is to enforce and sustain the judicious use of public lands and to prevent capricious compulsory acquisition of property by the State. These two clauses serve as one of the constitutional safeguards to promote, enforce and sustain a truly democratic system of government, accountability, good governance and fundamental human rights and freedoms in Ghana.

It is my thinking that our approach to constitutional interpretation should not be to whittle down the abundant rights guaranteed by the 1992 Constitution. These rights are not only restricted to the personal liberty of a person but extend to his property and economic rights, etc. It is the judiciary that is assigned the role of the sentinel of the constitution to uphold these rights and to even the scale of justice between the state and the individual. The court’s vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle of maintaining the equilibrium.

And where the constitutional provision(s) in the reference form part of the Fundamental Human Rights and Freedoms then it becomes even more crucial that particular care be taken by the Court to assure that there is nothing in the decision sought to be reviewed that has a tendency to do damage to the word or spirit of any of these (or other) provisions of the Constitution. She continued: ………the right to private property has been one of the key underpinnings of our statehood and formally dates back to the Bond of 1844.”

In addition to the United Nations Universal Declaration of Human rights and Freedoms which dates back to 1948, the African Charter on Human and People’s Rights (entered into force October 1986), which has been ratified by Ghana, also seeks to guarantee the right to property and adds that this ‘may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.’ It is the duty of our courts to safeguard to the utmost the fundamental rights enshrined in our Constitution; these are what really make us a democracy and we may only derogate from them where the dictates of the law are patently clear. Where this Court is called upon to interpret or define the applicability of a provision of the Constitution, adequate consideration must be given to every provision and we must not impose a limitation that may result in a tendency to defeat the underlying vision of the Constitution – to ‘secure for ourselves and posterity the blessings of liberty, equality of opportunity, and prosperity ...’ – and the ends of justice.”

It has not been all rosy. In seeking to enforce, secure, and protect the land and property rights of individuals, others have been deprived of their land rights on the blind side of the Judiciary when decisions of the Domestic judge are being enforced physically or spatially.

In the case of Klu v Agyeman II Civil Appeal No 49/80, a 25-acre land on the Adjancote hill was compulsorily acquired for a Television Station in 1975. Three families applied for compensation. The matter went on appeal, and title was declared in the plaintiff family, popularly known as the Numo Nmashie Family, who received compensation. By reason of this decision, many adjoining villages; about seventy of them covering 72,000 acres belonging to other Allodial owners and individual owners lost their land rights and interests in the large tract of land. A High court granted the plaintiff a Writ of Possession. The plaintiff executed the order of the court to demolish people’s buildings and forcefully evicted others from their lands. Most of these landowners were unfortunately not party to the suit. Fortunately, the Writ of Possession was set aside by the Supreme Court. In the case of Boi Stool v Daniel Addoquaye Addo and Others November 2023, the Supreme Court set aside the decision of the Appeal Court in Klu v Agyeman II CA 49/80 on grounds of fraud. The Supreme Court was careful to protect the land rights of persons who had acquired interests in the lands wrongfully acquired by the Plaintiff family over a period of more than forty years and also clearly declared that all lands within the 72,000 acres lands previously held as belonging to the plaintiff family null and void. This is a feather in the cup of the Domestic Judge.

To date, unfortunately, the decisions of the courts are recorded and reported without the attachment of the maps, site plans, or judgment plans. The Domestic judge will usually grant title per the description of the land in the Statement of Claim and the endorsement on the Writ.

When it comes to physical identification of the land for which judgment has been given, it is often fraught with problems. The plans and maps form part of documents in evidence stored in the court files and computers. Sometimes, due to the inaccuracy of the plan submitted in evidence, the actual land the party is claiming is differently located but will use the judgment of the court to wrongfully evict other persons and even go ahead to demolish their properties. It is not uncommon to see in the electronic media cases of demolishing of properties based on an order of the court during execution of the court order.

Another scenario I wish to bring to our attention is the effect of having many Courts adjudicating on lands in the same area. How does the Judge in Court A know that land before him/her is also being contested in several other courts? As a matter of fact, it is not uncommon to find the land owning Allodial owners rushing from one court to another seeking to protect their land rights. It is possible to obtain judgment in one or two courts and lose in another Court. Sometimes, these decisions are from courts of concurrent jurisdiction like the Circuit Courts or the High Courts. There is also the situation of the same land becoming the subject of a different judgment, sometimes by different persons who were not parties to the first suit. For example, family A obtains judgment over a piece of land in 2010. In 2020, family B, who were not parties to the suit, also obtain judgment over portions of A’s land. How are these several decisions executed or interpreted physically on the ground? This creates room for judgment creditors to seek self-help in protecting their lands.

I must say that the Domestic Judge cannot be faulted for these unfortunate incidents. However, these adverse effects can be reduced considerably.

CONCLUSION

I have taken pains to quote extensively views of some judges to show that the Domestic Judge is abreast with international conventions, declarations, and other international legal instruments and applies them in the day-to-day administration of justice in securing and protecting the land and property rights of the Ghanaian. Where there are omissions in our laws, the Judges will apply international legal instruments where necessary to protect and secure the land rights of the citizenry.

I can confidently say that the Domestic Judge has performed creditably and will continue to uphold land and property rights of Ghanaians with an eye on international legal instruments. However, in the areas where people’s land rights are unintentionally adversely affected, the introduction of technology, amendments to the process of filing land cases, the inclusion of geographic information in judgments, as well as the creation of a depository of such judgments for reference purposes, among others, will go a long way to reduce the unintended loss of the land rights we seek to secure and protect. This may call for some amendments to some laws and rules of court.