In re Public Lands (Leasehold) Ordinance, Osu Mantse & Ors (Claimants) [1959] GLR 163

Material Facts:

The government compulsory acquired a piece of land, and an issue arose as to whether compensation for the land should be paid to the Osu Mantse (the first claimant), one Nii Yeboa Nortey (the second claimant), the acting Gbese Mantse (the third claimant who claims on behalf of the Ga Stool, the Gbese Stool, and the Korle Stool), or the fourth claimants. The first and third claimants are the principal claimants, and they base their claim on the fact that the acquired land covers portions of their Stool lands.

The second claimant bases his claim on the fact that the acquired lands cover a portion of land that was granted to his ancestor by the Osu Stool. He, however, admitted that for the alienation to be valid, there is a custom that the grant ought to be made through the Osu Mankralo, the immediate Stool through which he serves the Osu Stool. There was, however, no proof that the grant of the portion of land to his ancestors was made in compliance with this custom.

Issue:

Whether the second claimant is entitled to receive compensation following the acquisition of the land by the government

Holding:

It is the Stool to which the claimant belongs that will receive compensation from the government. The second claimant, as a usufructuary, is, however, entitled to receive part of the compensation money paid to the stool.

Ratio Decidendi:

In the absence of any proof that the alleged grant to the ancestors of the second claimant was made through the Osu Mankralo, as required by custom, the second defendant has failed to prove that there was a grant made to his ancestors. However, the fact that no evidence of such a grant exists does not mean the second claimant has no right, title, or interest in the land because:

a subject of a stool has an inherent right to be granted portions of the stool land; that is to say, the subject has a right to occupy any vacant portion of the stool land. The grant may be express or implied. Occupation of stool land by the subject (whether an individual, or the head of a family with members of the family, or the head of a recognised section of the community with members of that section or community) is presumed by custom to be upon a grant of that land from the Stool to the individual, family or section in such occupation.

When a subject of a stool acquires such a possessory title, he also has the right to alienate that title. However, "the right to occupy stool land has as its corollary the stool’s right to exact customary services and homage from the subject at all times." Even when the subject alienates his usufructuary title, such alienation "carries with it an obligation upon his grantee to recognize the title of the Stool in the land, and to perform the customary services which the subject is liable to render to the Stool." This is often the case where the grantee is also a subject of the stool. However, in instances where the grantee is a stranger to the stool, it may sometimes be undesirable or impractical to admit such a grantee to perform customary services to the Stool, as the Stool may be desecrated.

When there is compulsory acquisition of land, there is an alienation, but this alienation is not one that carries with it an obligation upon the acquirer, which is the government, to perform customary services to the Stool. Per Section 11 of the Public Lands Ordinance, an acquisition operates "to bar and to destroy all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever of and in the lands" acquired. The effect of this is that compulsory acquisition terminates the rights of the Stool to demand customary services from the Government that acquired the land (and from successive governments).

In light of the above, Ollennnu J. then explained why the Stool should be the one to receive compensation for the land even if a subject has a usufructuary interest in the land:

Now where stool-land is to be granted free from all claims and demands whatsoever, the only authority which can make so wide a grant is the Stool, not a subject. It is the Stool’s rights to service in respect of the land that are being extinguished, and only the Stool can dispose of its own rights. In the case of compulsory acquisition of land, the place of a grant by the Stool is taken by the Court’s Certificate of Title following an expropriation of the Stool by operation of the relevant statute. But though in such a case the Stool does not grant the land, nevertheless it remains appropriate that the Stool should be the recipient of the compensation. And so it has been held that the proper person to receive compensation for land compulsorily acquired under the Public Lands Ordinance is the occupant of the Stool.

However, because compulsory acquisition destroys all existing rights and interests in the land, including the usufruct of a subject, the subject is entitled to receive a share of the compensation after it has been paid to the Stool by the government.

Principle:

In the event of a compulsory acquisition of land over which subjects hold a usufruct, it is the allodial title holder who receives compensation for the land, but the subject is entitled to a share of the compensation.