History of Compulsory Acquisition
The emergence of modern state and development in science and technology with their associated increase in population have brought in their wake the need for state to acquire land for public purposes such as railways, canals, hydroelectric projects, school s and universities for Town and Country Planning schemes. Also referred to as “the power of Eminent Domain” compulsory acquisition of land is essentially coercive taking of private lands (individual or communal) or estate in these lands for public purposes and the payment of prompt and adequate compensation for the land so acquired.
Klien (1968) observed that the history of eminent domain is obscure, and that it well antedates the constitutional provisions. Despite its historical obscurity, it certainly reflects the supremacy of the state over the people and their private property. And therefore it is similar to the power of Monarch whose powers are reflected in the doctrine of eminent domain in the United States and the royal prerogative in the United Kingdom
The concept was first mentioned in American court in 1831. It was therefore argued by Arthur Lenhoff (1942) that the term did not originate from English law.
Individuals everywhere fear and abhor compulsory acquisition because no amount of compensation paid would be sufficient to recompense for the interests appropriated. Experiences in Europe, Africa and elsewhere in the world show that if not properly handled, compulsory acquisition could cause untold political disorders and thus because a source of embarrassment for governments. Hence, the significance of private property has been recognized in most jurisdictions; all of which invariably have constitutionally provided for compensation to be paid adequately to property owners whose interests have been infringed.
By Article 545 of the French civil Code, no one’s property may be compulsory taken except for purpose of public utility for whose sake adequate compensation would be paid.
Article 438 of the Italian code declares that:
“no one shall be constrained to surrender his property, except payment and of just indemnity”.
The Fifth Amendment to the United States Constitution provides:
“Nor shall private property to be taken for public use without just compensation.”
With the above information about the protection for private property even in urgent need for them for public interest, it was argued that this protection in the form of compensation followed the concept of “compulsory acquisition” rather than accompanied it. Klien (1968) argued that historians agreed on this assertion. He argued further that it was judicially imposed as a limitation upon the exercise of the powers of eminent domain on the grounds of morality and natural justice. Today, compensation has become a statutory remedy for leases incurred as a result of compulsory acquisition of land. It means therefore that any law now that empowers compulsory acquisition of land should necessarily make provision for payment of adequate compensation for land so acquired in public interest. Where the statute provides no compensation, the claimant may have a remedy only in tort; but is more important to state that such acquisition of land compulsorily without adequate compensation being provided for ceases the fall under the issue being discussed in this work.
The United Kingdom’s Experience in Compulsory Acquisition
The latter part of the Eighteenth and the first half of the Nineteenth centuries saw a period of large scale statutory undertakings such as building of canals, dams, highways, railways and mining activities in the United Kingdom. The period after the first half of the nineteenth century was the Industrial Revolution which brought in its wake rapid and uncontrolled growth of manufacturing towns with their associated sanitary and other environmental problems. This period of development and environmental changes brought pressure on existing public lands. The government responded to the new development by giving enormous powers to public authorities to acquire lands for undertakings such as housing, road construction, sanitary and drainage projects, and any other improvement which ought to further public interest. Having given the authority to take private lands generally, the government enacted “special Act” to regulate the course of compulsory acquisition and compensation and the relations of acquiring bodies and parties who lose their interests in land. The lands Clauses Consolidation Act 1845 was one of the earliest laws to serve this purpose. Subsequent enactments sought to modify and amend some parts of the 1845 laws; nevertheless, the basic aim of the original Act has not changed any substantially.
Many litigations were the outcome of the frequent use of the concept of compulsory acquisition of land and compensation. These litigations involved the state and people who had lost their interests in land without “adequate” compensation.
The Assessment of Compensation Act, 1919, was made as a new code of laws to regulate the assessment and payment of compensation and any other matters concerning compensation anytime the Power of Compulsory Acquisition is used. Thus, the Act was made to reduce the incidence of court cases arising from the application of the concept of compulsory acquisition and payment of compensation in the United Kingdom
Further social and economic developments frequently called for modification in the existing laws. These modifications were intended to amend and streamline the laws to suit modern trends and developments. Laws made in this respect included:
- The Acquisition of Land (Authorization Procedure) Act, 1946,
- The Town and country Planning Act, 1947,
- The Lands Tribunal Act, 1949 which provided for a Tribunal in the assessment of compensation in place of the provisions of the 1919 Act.
A number of Acts were passed between 1945 and 1965 to provide the basis for the exercise of compulsory acquisition powers in the United Kingdom. These include the Lands Compensation Act, 1961, and the Compulsory Purchase Act, 1965.
Ghanaian Situation
It is significant to consider the influence British laws have on the Ghanaian laws and these relating to compulsory acquisition of land.
As far back as 1897, John Mensah-Sarbah established that all lands in Ghana had owners. This view is supported by Ollenu (1962) who contends that:
“There is no land in Ghana without an owner; every inch of land is vested in somebody”
As indicated earlier, land in Ghana is owned basically by communities, stools and individuals with the exception of a few which could strictly be described as state lands. To increase the stock of land to be held under state ownership, the power of compulsory acquisition and other practices like “piecemeal nationalization” have been embarked upon by the Government. – Sections 45 and 46 of PNDCL 42.
Pre-Colonial Situation
The concept of compulsory acquisition of land has a very old history in Ghana. The traditional chief had the power of eminent domain before the advent of the colonial rule, and by this, the chief was to acquire any land within his sovereignty for such public uses as market place, palace or fetish grounds and sacrificial grounds. Acquisition of private lands in such a manner was compensated for by another piece of land.
The abundance of land and the influence of chief limited the occurrence of disputes over the acquisition of lands from individuals. Effective communication link between the chief, the acquiring body and his people from whom lands were acquired also contributed to reducing conflicts and disputes over the exercise of such a power by the chief.
Post-colonial Situation
The advent of colonial rule brought in its wake a new wave in the dimension of the concept of compulsory acquisition of land. An important characteristic of the period was that attempts by the colonial government to acquire land for the crown were fiercely resisted in Ghana Ghana (except Kumasi
Nevertheless, laws in the form of ordinances were enacted in those days to acquire lands for public use. The Public Lands Ordinance, which was enacted on 19th April, 1876 applied to the southern part of the colony. The Administration (Ashanti
At present the government of Ghana derives her powers of compulsory acquisition of lands mainly from the State Lands Act 1962 (Act 125). Even though the concept of “private treaty” is provided to be the genesis for any acquisition by the state organization, nevertheless, these state organizations by their various instruments of incorporation have been clothed with the power to acquire landed property without the agreement of the owners.
Apart from the fact that all these laws have the force of transferring land from individuals to government corporations especially beyond the stage of private treaty they cannot be considered strictly as a compulsory acquisition law. This is because; they all rely on the provisions of the State Lands Act for its operations. A compulsory acquisition law should in itself provide the power of acquisition and at the same time provide the means and manner of compensation. The current meaning of compulsory acquisition is conditional on the payment of adequate compensation. A compulsory acquisition law which does not provide for the payment of compensation prima facie ceases to be a compulsory acquisition law. It seems therefore that the only law that can be regarded as the law relating to compulsory acquisition and payment of compensation strictly speaking is the State Lands Act 1962 (Act 125) as indicated above.
Compulsory Acquisition as Legal Constraints on Land and Ownership Rights in Ghana
“Property and law are born together. Before the laws there was not property; take away the laws, all property ceases”. Jeremy Bentnam Principles of the civil code 11786.
Ownership of land as already enumerated gives the owner the right to possess and deal with land as he pleases. However these rights are subject to certain constrains which could either, be constitutional or statutory. These constraints may either restrict the owner in the use of his land or deprive him of his land altogether. As Justice Holmes said in the case of
Pennsylvania Coal Company v Mathon:
“The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as taking”.
Meggary R. E. also said in his book that:
“Take and you must compensate, regulate and you need not”.
These two statements support the fact that there exist legal constraints on the land ownership rights of individuals all over the world. These constraints may either be in the form of a regulation or an outright taking of their rights and interests in land.
Constitutional Constraints
Even though Article 18 of the 1992 Constitution allows for the ownership of property without any interface, Article 20 gives the state the power to compulsorily acquire property of any description or interest in or right over any property. The state in compulsorily acquiring property must satisfy certain conditions as spelt out in clause 1a and 1b of Article 20 as follows:
“1a. 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
1b. 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”.
Thus the compulsory acquisition of property by the state must be because the use to which the land is going to be put to will serve the interest of the public and not an individual. Also the land must be used for only that public interest or public purpose for which the acquisition is made. Where a person is dispossessed of his property, he has no right over the land except to be paid adequate and prompt compensation. Where it becomes necessary to resettle the dispossessed person (s), article 20 clause 3 requires that the people must be resettled on a suitable alternative land taking into consideration their economic well being as well as their social and cultural values.
In the event that the compulsorily acquired property is not used for the purpose for which it was acquired, the owner from whom the property was taken has the first option to re-acquire it upon refunding part or all compensation he received as will be determined by law or the value of the property at the time of the re-acquisition (Article 20, clause 6).
Any person who has an interest in or right over property compulsorily acquired has a right of access to the High Court for the determination of his interest or right and the amount of compensation he is entitled to.
Statutory Constraints
The right to own property is fundamental under our constitution but the right to take a person’s property by the state has always been an inseparable right of the state’s sovereignty unless denied to it by its fundamental law.
With regards to Article 18 of the Constitution, which gives power to the President to acquire land for public interest and purpose, the State Lands Act, 1962, (Act 125) has been enacted. Act 125 is therefore an Act to provide for the acquisition of land in the national interest and other purposes connected with national interest, Section 1 (1) of Act 125 states as follows:
“Whenever it appears to the President in the public interest so to do, he may, by executive instrument, declare any land specified in the instrument other than land subject to the Administration of Lands Act, 1962 (Act 123), to be land required in the public interest” and accordingly on the making of the instrument it shall be lawful for any person, acting in that behalf and subject to a month’s notice in writing to enter the land so declared for any purpose incidental to the declaration so made”.
Thus the President has the power to acquire any land at all if the land will be put to a use, which will be beneficial to the public and not an individual. The acquisition must also be made under a law. Therefore the section quoted above requires that the acquisition must be made through the issuing of an executive instrument. Again by the provision is subsection 1, it is not lawful for a person acting on the authority of the President to enter a land compulsorily acquired to commence work in respect of the public interest or purpose for which the land was acquired provided a month’s notice in writing has been served on any one having an interest in the land or in occupation of the land. In addition, section 1 (3) states that upon the publication of the executive instrument, the land shall without any further assurance becomes vested in the President on behalf of the Republic, free from any encumbrance whatsoever. Thus the actual owners of the land’s interest become totally extinguished and ownership becomes the states. It cannot be restrained or referred to as a trespasser by anyone having an interest in or in occupation of the compulsorily acquired land if the necessary notice has been served.
The State Lands Act, 1962 (Act 125)
The power of compulsory acquisition and payment of compensation is found in the State Lands Act, 1962 (Act 125) Section 1 (1) provides as follows:
“Whenever it appears to the President in the Public interest so to do he may be executive instrument declare any land specified in the instrument, other than land subject to the Administration of Lands Act, 1962 (Act 123), to be land required in the public interest and accordingly on the making of the instrument it shall be lawful for any person acting in that behalf and subject to a month’s notice in writing to enter the land so declared for any purpose incidental to the declaration so made.”
This section is amended by the State Lands Act 1962 (Amendment) Decree 1968 (NRCD 234) by the addition of the following provision. By section 10 (1) of the Administration of Lands Act, 1962 (Act 123) the President:
“may authorize the occupation and use of any land to which this Act applies for any purpose which in his opinion, is conducive to the public welfare or interests of the state, and may pay into the appropriate account of moneys granted by vote of the National Assembly such annual sums as appear to him, having regard on the one hand to the value of the land on the other to benefits derived by the people of the area in which the land is situated from the use of the land; and the money so paid into the account shall be applied in the same way as other revenues collected under this Act.”
This amendment was necessary to make the law more effective since about ninety (90) per centum of land in the country is stool land.
Section 2 discusses the administration of the Instrument and its publication. By paragraph (a) under Section 2, the instrument is to be served personally by a bailiff on any person having an interest in the land. The owner could be ascertained by land registry at the Land Secretariat of the Lands Commission. Paragraph (b) to (c) provided an alternative to the requiring stipulated in paragraph (a). As far as paragraph (e) is concerned, the instrument is to be published on three consecutive occasions in newspaper circulating in the district where the land is situate. Apart from the fact that publication on consecutive occasions is not strictly followed by the publishers, there are different days involved in passing the information to the land owners. Which date must be adopted for the calculation of valuation? Technically, however, the last date of publication must be taken for valuation.
Section 4 lays down the procedure for compensation. By section 4 (1):
“Any person claiming a right or having an interest in any land subject to an instrument made under section 1 of this Act or whose right or interest in any such land is affected in any manner shall, within six months from the date of the publication of the instrument made under the said section (1) submit in writing to the Ministries, Valuation Board:
a) particulars of his claim or interest in the land:
b) the manner in which his claim or interest has been affected by the instrument:
c) the extent of any damage done;
d) the amount of compensation claimed and the basis for the calculation of the compensation.
And the Minister may, having regard to the market value or the replacement value of the land or the cost of disturbance or any other damage suffered thereby, pay compensation in respect of that land or make an offer of land of equivalent value”.
Section 4 (2) makes transference of disputed right or interest claimed possible to the Tribunal.
Section 4 (3) looks somehow restrictive. Thus no account shall be taken of any improvement on the land made within two years previous to the date of the publication of the instrument made under section 1 of this Act unless the improvement was bona fide and not made in contemplation of acquisition under this Act. Although provisions made in the State Lands Act regarding compulsory acquisition and payment of compensation may look laudable, there are certain difficulties that go with it.
Critique to the Laws of Compulsory Acquisition
1 The Meaning of Public Interest
The first problem identified with the law is the issue of “public interest”. The State Lands Act 1962 as amended, the Administration of Lands Act, 1962 Public Conveyancing Act 1965 and PNDCL 42 all authorize the President where it appears to be in the public interest to exercise the powers of compulsory acquisition, but no where in these Acts has the expression public interest been defined .
An Executive Instrument was issued by the Ministry of Justice on the 18th February, 1962, declaring that Laterbiokorshie land was acquired in the “public interest”. Later events showed that “public interest” was synonymous with “Nkrumah’s private and personal interest”. No doubt this ambiguity was somehow corrected when the formers of the 1969 Constitution with hindsight, provided in Article 18 (4) that land compulsory acquired “shall be used only in the public interest for public purposes”. This provision was repeated in Article 24 (4) of the 1979 Constitution; Section 43 (4) of the PNDCL, 42 however clearly provides that the PNDCL will publish in the Gazette inter alia “the use to which the land is intended to be put”. What about if use ‘A’ is published yet the land is used for ‘B’?
In Armah v. Lands Commission (1979), the use published, was public cemetery, later, the Lands Commission dished out part of the land acquired to individuals to build dwelling houses. The High Court on the application of original owner granted an injunction against the Lands Commission and its grantees. This case was decided on the sole ground of infringement of constitutional right, in that, a landowner had a first refusal in case the land has not been put to the use for which it was acquired.
With the various state organs clothed with power of compulsory acquisition, there appears to be no problem since they can only acquire land for the express purposes for which they have been established or incidental to it, but the courts will grant injunction to restrain them if they attempt to take the land for any “collateral object”. This principle is illustrated in the famous case of West India Electricity Co. Ltd. v. Kingston Corporation (1914), AC 986. It is also wrongful for statutory bodies to take land and refuse to use it for the statutory purpose – Agr. Harbour Trustee v. Oswald (1883).
2 Prompt and Adequate Compensation
The second major problem relating land acquisition in Ghana relates to prompt payment. Technically, the concept of compulsory acquisition means three (3) things:
i. the acquisition must be in public interest
ii. there must be due procedure of acquisition
iii. there must be prompt and adequate compensation
The powers of compulsory acquisition provide for payment of compensation. Experience has shows that there are certain compulsory acquisitions for which the land owners are still waiting for payment of compensation. An example is the acquisition of the Kwaprow, Amamoma, Akotokyir, Kokwado, and Apewsika lands for the establishment of the University of Cape Coast (UCC) in the early sixties for which land owners are yet to be paid. It is to remedy such situations that the 1959 Constitution, Article 18 (1) a, b, and c provides:
“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired by the state, except where the following conditions are satisfied:
a) the taking of possession is necessary in the interests of defense, public safety, public order, public morality, public health, town and country planning of the development or utilization of any property in such manner as the promote the public benefit.
b) The necessity therefore is such as to afford reasonable justification for causing any hardship that may result to any person having an interest in or right over, the property, and
c) Provision is made by a law applicable to that taking of possession acquisition.
i. for the prompt payment of adequate compensation and
ii. securing to any person having an interest in or right over the property a right of access to the High Court of Justice, whether direct or an appeal from any other authority for the determination of his interest or right and the amount of any compensation to which he is entitled and for the purposes of obtaining prompt payment of that compensation.
The above article was repeated verbatim as Article 24 (1) (a) (b) and (c) in the 1979 Constitution. To comply with the constitutional injunction for prompt payment of compensation, the Busia government spread payment over a period: first payment was for cash and then the land owners were given government bonds which matured at specific period of intervals.
Payment by bonds cannot be said to be prompt payment. It is at least a conditional payment which cannot be the same thing as “prompt payment” as the constitution demanded.
Even though article 18 of the 1992 Constitution allows for the ownership of property without any interference, article 20 gives the state the power to compulsorily acquire property of any description or interest in or right over any property. The state in compulsorily acquiring property must satisfy certain conditions as spelt out in clause 1(a) and 1(b) of Article 20 as follows;
1.(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
1.(b) “the necessity before 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.”
Thus the compulsory acquisition of property by the state must be because the use to which the land is going to be put to will serve the interest of the public and not an individual. Also the land must be used for only that public interest or public purpose for which the acquisition was made. Where a person is dispossessed of his property, he has no right over the land except to be paid adequate and prompt compensation. Where it becomes necessary to resettle the dispossessed persons, article 20 clause (3) requires that the people must be re-settled on a suitable alternative land taking into consideration their economic well being as well as their social and cultural values.
In the event that the compulsorily acquired property is not used for the purpose for which it was acquired, the owner from whom the property was taken has the first option to re-acquire it upon refunding part or all compensation he received as will be determined by law or the value of the property at the time of the re-acquisition (article 20 clause 6).
Any person who has interest in or right over property compulsorily acquired has a right of access to the High Court for the determination of his interest or right and the amount of compensation he is entitled to.
Another problem that can be seen with the acquisition is the correct definition of the land affected by various laws.
The State Lands Act, 1962 was promulgated for the acquisition of lands other than stool lands. And in the Administration of lands Act which was passed solely for the acquisition of stool lands, “stool lands” was defined to include:
“ lands 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 lands vested in the President”.
The definition includes other lands e.g. Family lands, communal land, clan land, etc. which stricto sensu are not regarded by the layman as stool land. This definition advanced, is considered too wide and inapplicable to some areas, especially the Volta region where stool lands are not present. Does the Chief Lands Officer or the Land Commission in publishing notice of acquisition of family or clan land in Ewe-speaking areas of the Volta region use the State lands Act or the Administration of Lands Act? If he employs the latter, then compensation due to the family or the clan will have to be paid to the Administrator of Stool Lands for the benefit of non-existent stool, or for a stool which has suffered no loss as a result of the acquisition – Gyamfi and another V. Owusu and others
Even the current attempt of the Lands Title Registration Law, 1986, PNDCL 152 would not correct the anomaly. Here too, it is a pity that “stool land” is defined to include:
“any land or interest in or right over any land controlled by a stool or the head of the particular community including a family as known as customary law, for the benefit of the subjects of that stool or the members of that community”.
If this definition is an attempt to improve upon the earlier definition in Act 123, then it becomes cosmetic. A greater portion of this problem is added by the amendment made to State Lands Act (1966) NRCD 234, which makes State Lands applicable to almost all lands in the country.
4 Return of land not put to use
Another important problem identified is the inability of the laws of compulsory acquisition to decide on what to do with lands acquired but not put to the intended use.
Article 20 (6) of the 1992 Constitution enabled land compulsorily acquired but has not been put to immediate use to be returned to the original owners if they refunded the whole or such part of the compensation paid them. There is no equivalent provision in PNDCL 42 or even the State lands Act.
It is argued that the position assumed by both the State Lands Act and PNDCL 42 on the issue is better. This is because it violates the principle of compulsory acquisition. If these lands are sold out to individuals other than the original owners to make claim the current value of the lands. It is equally unreasonable to give back the lands to the original owners and let them pay part or the whole compensation money that had been paid to them. The value now would not be the same as it was during the compulsory acquisition.
A classical example of this breach of the principle of compulsory acquisition is sale of the Cocoa Marketing Board cocoa plantations to different people other than the original owners.
5 The Lands Tribunal
Last but not least criticism observed is related to the land Tribunal concept. The lands Tribunal has been established by section 3 (1) of the State lands Act, 1962 for the purpose of settling disputes relating to:
(a) conflicting rights or interest in the land acquired under the Act, and
(b) quantum of compensation to be paid.
The Tribunal is composed of a High Court Judge as the Chairman. Its decision is final “save that it may reserve for the consideration of the Supreme Court any question of law”.
In 1974, the State Lands (Amendment) Decree 1974 NRCD 307 was passed. It permitted any person aggrieved by a decision of the Tribunal or any matter to appeal to the Court of Appeal within 28 days after the date of decision was given.
The fact that permission is provided for appeal against a decision of the Land Tribunal ridicules its position as the final arbiter, and it cannot be considered the final opinion in relation to disputes that, it is set up to settle. Better put, did the Lands Tribunal exist in 1974 for the right of appeal to be granted against its decision?
Notwithstanding the impotency of the Lands Tribunal, it seems by PNDCL 42, Section 43; much revival has been given to it as it states that:
“Any person aggrieved by any valuation of the Board in respect of compensation for land may apply to the Tribunal established under the State Lands Act, 1962 (Act 125) for review”.
To conclude, it could be said that although the state recognizes the need to remove discontent and disagreement as far as compulsory acquisition of land is concerned, by establishing certain laws, procedures and structures, to that effect, it is evident that, certain problems cannot be removed at all and there are some which are precipitated by the law itself.
This article is carved from " Compulsory Acquisition and issues arising, a case study of University of Cape Coast Acquisition" by William Abban Ghansah, unpublished.
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