Comprehensive Study Notes on Compulsory Land Acquisition and Compensation Law in Ghana

LE 352: Compulsory Land Acquisition & Compensation — Course Objectives and Overview

• Instructor: W.M. Adolwine Esq, BSc. LLB. BL. MPhil.

• Primary Objective: To expose students to practical applications of property law in Ghana, fostering a deep understanding of landownership constraints, compulsory purchase processes, and compensation mechanisms.

• Key Learning Outcomes:

  • Understanding the basis and categories of landowners in Ghana.

  • Differentiating between private and public lands.

  • Outlining constitutional recognition and protection procedures for private ownership.

  • Appreciating the origins and legal basis of public land.

  • Understanding constitutional and statutory restrictions on development and ownership.

  • Appreciating the legal basis and necessity of the State’s Power of Eminent Domain.

Essential Reading List and Statutory Framework

• Core Texts:

  • Tony Johnson, Keith Davies, and Eric Shapiro (2005). Modern Methods of Valuation of Land, Houses & Buildings; Estates Gazette & EPP Books Services.

  • da Rocha and Lodoh. Ghana Land Law & Conveyancing (2nd edition).

  • Woodman, Gordon R. (1968). The Allodial Title to Land ($[1968]$ Vol V. No. 2 UGLJ 79—114).

• Primary Statutes:

  • The Land Act, 2020 (Act 1036): The current comprehensive legislation governing land acquisition (Sections $233$ to $267$).

  • The Land Statutory Wayleaves Act, 1963 (Act 186): Governs access for utility providers.

  • 1992 Constitution of Ghana: Specifically Articles $18$, $20$, $257$, $266$, and $267$.

• Repealed Statutes (Historical Context):

  • Public Lands Ordinance, 1876 (Cap $134$).

  • Public Lands (Leasehold) Ordinance, 1950.

  • Administration of Ashanti Ordinance, 1902 (Cap $110$).

  • Administration of Northern Territories Ordinance, 1902 (Cap $111$).

  • State Property and Contracts Act, 1960 (CA $6$).

  • Administration of Lands Act, 1962 (Act $123$).

  • State Lands Act, 1962 (Act $125$).

  • Public Conveyancing Act, 1965 (Act $302$).

Land Ownership and the Allodial Title

• Definition of Allodial Title: The highest or ultimate interest in land. It is absolute, with no title beyond it. It forms the basis from which all lesser interests or rights are derived.

• Traditional Vesting: Traditionally, the Allodial title was vested in a stool, skin, clan, or family, and never in an individual (Amodu Tijani v. the Secretary, Southern Nigeria, 1921).

• Modern Modification: Colonization and monetization have modified the law, making individuals capable of owning allodial title.

• Section 2 of Land Act, 2020 (Act 1036): Defines Allodial Title as the highest interest held by the state, a stool, skin, clan, family, or an individual. Acquisition methods include:

  • Compulsory acquisition.

  • Conquest.

  • Discovery and settlement.

  • Gift.

  • Purchase or agreement.

Categories of Landownership in Ghana

• Private Lands ($80 \%$ of Total Land):

  • Regulated by Section $9$ of Act 1036.

  • Ownership types: Stool/Skin lands, Family/Clan lands, and Individual lands.

  • Article $267$: Stool lands vest in the appropriate stool in trust for subjects according to customary law.

• Public Lands ($20 \%$ of Total Land):

  • Regulated by Article $257(2)$. Includes lands vested in the Government before 1992 or acquired in the public interest since.

  • State Lands ($18 \%$ of Total Land): Absolute ownership held by the state (Allodial title). Managed by the government, often acquired through the (now repealed) State Lands Act, 1962 (Act $125$).

  • Vested Lands ($2 \%$ of Total Land): Characterized by "split ownership." The state holds management rights and legal title, while the Allodial title remains with stools or families. Vested under the Administration of Lands Act, 1962 (Act $123$) for reasons like wildlife or forest protection.

New Legal Provisions for Vested Lands under Land Act, 2020

• Section 268(1): Following the 1992 Constitution, it is now unlawful to vest new stool or skin land in the state.

• Section 268(2): As of December 23, 2020, it is unlawful to vest clan or family land in the state.

• Section 269: Management of existing Vested Lands is overseen by a Management Committee consisting of the Lands Commission and allodial owners.

• Section 270 (De-vesting): The President is mandated to authorize the de-vesting of all currently vested lands, returning them to original owners. The Lands Commission was given $6$ months from the Act's commencement to begin an inventory for the President to recommend de-vesting via Executive Instrument.

Constraints and Restrictions on Private Property Rights

• The Dual Form of Restriction:

  • Compulsory Acquisition: The state takes the land and must pay compensation.

  • Regulation of Land Use: The state regulates development and generally does not pay compensation.

• Justice Holmes Principle: In Mahatmahattan v. Pennsylvania Coal Co. Ltd., it was established that if regulation "goes too far," it constitutes a taking and requires compensation.

• The Police Power: This is the sovereign power of the central government to control land development through planning and zoning to ensure orderly growth.

  • Article 267(3): Stool land disposition or development requires certification from the Regional Lands Commission to ensure consistency with approved development plans.

  • Land Use & Planning Agency Act, 2016: Prohibits development in "Planning Areas" until a final scheme is approved.

  • Requirements: Every development must have Planning and Building permits from the District Assembly. Unauthorized developments are subject to demolition and surcharged costs.

Eminent Domain (Compulsory Acquisition)

• Definition: The right of a governmental or quasi-governmental agency to take private property for public use/purpose. Also known as condemnation, expropriation, or compulsory acquisition.

• Premise: Owners may be required to yield property for "just compensation" to advance the common good.

• Implicit Justification: Society is dynamic; population growth and urban expansion necessitate land for:

  • Highway construction and airports.

  • Public buildings (schools, hospitals, offices, military installations).

  • Flood control and railroads.

  • Urban renewal projects.

Constitutional and Statutory Basis for Acquisition

• Article 20(1) Conditions: No property shall be taken unless:

  • Moving is necessary for defense, public safety, order, morality, health, or town and country planning.

  • The development promotes public benefit.

  • The necessity is clearly stated with reasonable justification for the hardship caused.

• Land Act 2020, Section 233: Re-emphasizes Article $20$ and specifically adds needs for roads, railways, bridges, pipelines, canals, dams, sewerage, or public utilities.

• Section 234: Allows the state to acquire land via purchase (agreement with owner) or gift/donation.

Compensation Framework

• Purpose: To achieve Restitutio in Integrum (restoration to the original position). The owner is neither to gain nor lose wealth because of the expropriation.

• Components of Compensation:

  • Market Value: The fair price based on current market conditions.

  • Severance Damages: Paid if only part of a property is taken, lowering the value of the remaining portion.

  • Disturbance Costs: Relocation expenses, including searches for alternative accommodation.

  • Injurious Affection: Compensation for damages to adjoining lands (e.g., State Gold Mining Corpn. v Pieterson, 1987).

• Methods of Valuation:

  • Market Comparison.

  • Investment/Income Capitalization.

  • Cost Method.

  • Profit Method.

  • Residual Method.

Use and Re-acquisition of Acquired Lands

• Article 20(5) and Section 235: Acquired land must be used only for the specific public purpose for which it was acquired.

• Article 20(6) - Right of First Refusal: If the land is not used for that purpose, the original owners must be given the first option to re-acquire it.

• Refund Logic:

  • The owner must refund the compensation paid (whole or part) or an amount commensurate with the value at the time of re-acquisition.

  • Argument against high refunds: If land appreciated naturally over time without state effort, requiring a higher refund constitutes "unjust enrichment" for the state. The state shouldn't get "rich in its sleep."

  • Argument for higher refunds: If the state made improvements (drainage, roads, infrastructure), the refund should reflect the added value.

Challenges and Consequences of Compulsory Acquisition

• Socio-Economic Impacts: Loss of livelihoods, poverty, landlessness, loss of ancestral ties, and intergenerational inequity.

• Administrative Issues: Delayed and inadequate compensation payments, excess land acquisition, and frequent litigation.

• Why avoid the Private Market? Governments use compulsory powers because private treaty negotiations can be slow, owners might refuse to sell at any price, boundary disputes can stall projects, and assembling large land tracts (e.g., Akosombo or Bui Dams) is nearly impossible through individual market transactions.

Key Legal Precedents and Case Law

• Consent and Concurrence:

  • Republic v. Lands Commission; Ex parte Akainyah (1975): Commission cannot reject registration just because acreage is large.

  • Musa v. Tali (1991): Concurrence is only required where valuable consideration is paid; does not apply to customary gifts without consideration.

  • Republic v. Chief Lands Officer; ex parte Allotey (1982-1983): Registrar has a duty to register instruments in prescribed form.

• Public Purpose Definitions:

  • Amontia v. MD, Ghana Telecom (2006): Broad interpretation. Public purpose includes state-assisted projects for private companies (hotels, banks, real estate) if they contribute to general welfare.

  • Kelo v. City of New London (US, 2005): Economic rejuvenation by a private developer justifies eminent domain.

  • Alliance Spring Co. Ltd. v. First Secretary of State (UK, 2005): Compulsory purchase of homes to build Arsenal's stadium was justified as "comprehensive redevelopment."

• Publication of Executive Instrument (E.I.):

  • Amartei v. SIC (1992) and Botchway v. SIC (1993-1994): Failure to publish the E.I. makes the acquisition null and void.

  • Owusu v. Agyei (1991): Counter-view; acquisition may be valid despite lack of publication.

• Discretionary Power:

  • Roncarelli v. Duplessis (Canada, 1959): There is no "untrammelled discretion." Decisions must be made in good faith relevant to the statute’s purpose.

  • Wednesbury Case (1948): Public officers must exercise discretionary power reasonably.

Questions & Discussion

• What is Eminent Domain? Discussed as the "highest authority" based on common welfare over private interest.

• What are the reasons for the injunction on freeholds? (Discussion regarding protecting ancestral lands for future generations).

• Does Article 20(5) and (6) have retrospective effect? (Courts generally hold it does not affect lands acquired before January $7$, $1993$).

1. What is Eminent Domain?
   Eminent Domain is the right of a governmental or quasi-governmental agency to take private property for public use. It involves the state taking land from private owners for purposes deemed to benefit the public, such as infrastructure projects or urban development, usually with compensation provided to the property owner.

2. What are the reasons for the injunction on freeholds?
   The injunction on freeholds is aimed at protecting ancestral lands for future generations. It prevents the complete commercialization and transfer of generational lands, ensuring that these lands remain available for descendants and maintain their cultural and historical significance.

3. Does Article 20(5) and (6) have retrospective effect?
   Courts generally hold that Article 20(5) and (6) do not affect lands acquired before January 7, 1993. This means that any acquisitions made prior to this date would not be subjected to the provisions set out in these articles, maintaining the legality of prior transactions.

Problems from Compulsory Land Acquisition for the Expropriated:

1. Loss of Livelihoods: Expropriation can lead to the displacement of individuals and families, resulting in loss of income and livelihoods, particularly for those who depend on the land for agriculture, housing, or businesses.

2. Compensation Disputes: Expropriated individuals may feel that the compensation offered is inadequate or unfair, leading to disputes and lack of trust in the compensation process.

3. Social Displacement: Communities can be disrupted, leading to social fragmentation where families and social networks are broken apart, creating long-term psychological and socio-economic issues.

4. Inadequate Re-housing: Insufficient alternatives for re-housing may leave displaced individuals in a precarious living situation, increasing the risk of homelessness.

5. Intergenerational Impacts: The effects of compulsory acquisition can resonate through generations, impacting family heritage, land ownership among descendants, and cultural ties to the land.

6. Legal Challenges and Delays: The process of claiming compensation can involve lengthy legal battles, which may delay compensation and property rights restoration for the affected parties.