THE COMMISSIONER, CHRAJ VRS THE EXECUTIVE SECRETARY, LANDS COMMISSION (HR/0048/2022) [2023] GHAHC 505 (24 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HUMAN RIGHTS DIVISION, COURT 2, ACCRA, HELD ON FRIDAY THE 24TH DAY OF NOVEMBER, 2023, BEFORE HIS LORDSHIP JUSTICE NICHOLAS M. C. ABODAKPI (J). ==================================== CASE CALLED AT 11:36 A. M. SUIT NO. HR/0048/2022 THE COMMISSIONER, CHRAJ VS THE EXECUTIVE SECRETARY, LANDS COMMISSION ====================================== PARTIES: APPLICANT REPRESENTED BY ANDREW SIMPSON RESPONDENT – ABSENT COUNSEL: 1. ABEIKU ESHUN FOR THE APPLICANT – PRESENT 2. JONATHAN S. LARI FOR THE RESPONDENT – ABSENT ========================================= JUDGMENT 01. The motion to enforce the decision of CHRAJ, was filed on 30/05/2022, with a supporting Affidavit and eleven (11) annexures. The Motion Paper contains the relief Applicant is seeking. It reads: “That the Lands Commission allocates a replacement plot of land similar to what complainant, SAFARI MOTOR WORKS previously owned in an industrial area Accra, as per the grounds set out in the supporting Affidavit hereto annexed.” ‘BEA’ Page 1 of 18 The dispute placed before CHRAJ, the Applicant herein, in respect of which a decision had been made is about an allocation of Industrial plot, on which money was spent in preparing it and fencing it for development. It has been alleged steps have been taken to build on the land then Respondent purport to have re-entered the land validly granted and gave it to another company. The Respondent alleged there has been violations of the lease agreement between it and Applicant hence, it re-entered the land. It also alleged CHRAJ and this High Court have no jurisdiction to deal with the dispute. 02. In every proceedings the issue of jurisdiction is so fundamental, it has been proffered as a defence, and this Court has to deal with it before it embarks on the examination of whether to grant Applicants request or otherwise. a) Halsbury’s Laws of England Vol. 9 [3rd edition 350 - ] defines jurisdiction of a Court in this terms. “Jurisdiction in its accepted connotation is often defined as the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted, and may be extended or restricted by a like means.” When the issue of jurisdiction is raised, it may be a compliant of a Court or an Agency with quasi-judicial powers acting in excess of its powers. It means that from inception of the enquiry the Court or Agency has no jurisdiction whatsoever because the nature of the case or value involved in ‘BEA’ Page 2 of 18 beyond its jurisdiction. But it may also mean that although the Court has jurisdiction to hear the case, the orders which it can pronounce are restricted by statute. If an order is therefore beyond the powers of the Court or Agency, it is perfectly correct say that it has exceeded its jurisdiction. I refer to the case: THE REPUBLIC VRS. THE HIGH COURT, ACCRA EX-PARTE: PORT HOLDING CIVIL MOTION. J5/23/2013 b) The position of the law is that, where the issue of the Court’s jurisdiction is raised, it is an issue touching on the competence of the Court rather than the rights of the parties in the subject matter of the litigation. Therefore the objection to the jurisdiction of this High Court touches on the rights of Applicant to approach this Court to decide the matter before it. A Court will be competent and having the requisite jurisdiction to entertain a case when he following conditions exist: a. It is properly constituted as regards qualification of the CORAM. b. The subject matter in dispute is within its jurisdiction and there is no feature prevents the Court from exercising it jurisdiction. c. The suit came before the Court initiated by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction ‘BEA’ Page 3 of 18 c) Jurisdiction is also determined by looking at Plaintiffs CLAIM [or Applicant’s claim] and not the defence put forward by the Defendant or a Respondent. The legal principle which is fundamental is that jurisdiction is determined by Plaintiff’s DEMAND and not by Defendant’s ANSWER, which in most cases is a disputation of the existence of Plaintiff’s claim. I refer to the case: AKATI VRS NARTEY [1980] GLR 218 d) The High Court of Ghana, which is only one with various divisions in terms of its structure and composition could been seen in ARTICLE 139 of the 1992, Constitution. In Article 140 of the Constitution the details of its jurisdiction could be found. Clause 1 provides: The High Court shall subject to provision of this Constitution, have jurisdiction in all matters and in particular, in CIVIL and CRIMINAL matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law. Clause 2 provides: The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution. ‘BEA’ Page 4 of 18 Clause 3 provides … Clause 4 provides A justice of the High Court may in accordance with Rules of Court exercise in Court or in chambers all or any of the jurisdiction vested in the High Court by this constitution or any other law. e) The Courts Act, 1993 [Act 459], as amended by Act 620 in Section 15 (1) provides: Subject to the provisions of the Constitution. a. The High Court shall have an original jurisdiction in all matters. b. … c. Jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by the Constitution. d. Any other jurisdiction conferred by the Constitution, this ACT or any other enactment [as stated by the Courts, amendment Act, 2002, Act 620] 03. (a) In addition to the above, the jurists definition of jurisdiction provides further perspective on how to deal with the issue of jurisdiction raised by Respondent/Lands Commission, in this action. I refer to the case: REPUBLIC VRS. ADU BOAHENE [1992/1993] GBR 684/693. ‘BEA’ Page 5 of 18 KPEGAH J. S. C., speaking for the Supreme Court wrote: “An objection to jurisdiction when raised is either in relation to some TERRITORIAL limitation, affecting the tribunal or lack of jurisdiction affecting the SUBJECT MATTER of the dispute or CHARGE [in criminal cases] or the lack of jurisdiction over the PARTIES or NON-EXISTENCE of a CONDITION PRECEDENT to the assumption of jurisdiction.” (b) The scope of jurisdiction as enshrined in Article 140 (1) cited supra, is defined by the Supreme Court in the case: THE REPUBLIC VRS HIGH COURT, ACCRA LABOUR DIVISION EX-PARTE: PETER SANGBER-DERY [Civil Motion No. J5/53/2017] now reported in 2017-2020 SCGLR page. In the case cited supra, the Supreme Court had to interpret ART 140 (1) of the 1992, Constitution in light of an objection taken based on Section 63 of the Labour Commission to deal with aspects of labour disputes, which appear to conflict with jurisdiction conferred on the High Court to adjudicate all civil matters subject only to the prohibitions in the Constitution. BENIN J. S. C. in his judgment stated that Article 140 (1) is a peculiar and special provision, in the sense that only a provision of the constitution may limit the jurisdiction of the High Court and not by an Act of Parliament. He also stated that, the legislature may enhance but not diminish the High Court’s jurisdiction by an Act of Parliament. He continued as follows: ‘BEA’ Page 6 of 18 “… thus it seems to us that the legislature could not by Act 651 take away the jurisdiction of the High Court in light of Article 140 (1) of the Constitution, which grants it jurisdiction in all matters. There are instances where the jurisdiction of the ordinary Court is deferred by statute in favour of an inferior tribunal with specialization in a particular field but that is not the case here. Under Article 140 (1), a High Court has jurisdiction to enforce every right created by statute except it is ousted by a provision of the Constitution. In the case of GRA VRS. A. G. unreported Suit No. 14/95, the Supreme Court in a unanimous judgment dated 7/02/1995, upheld the ouster of the jurisdiction of the High Court in Chieftaincy matters only because it interpreted Article 274 (5) of the Constitution as conferring that jurisdiction on the Traditional Councils and House of Chiefs to the exclusion of the High Court.” In continuation the Supreme Court stated: “The authority granted the Commission to hear certain cases arising from Section 63 of Act 651 cannot, and is not exclusive of the High Court’s jurisdiction in all matters civil and criminal under the Constitution. We shall therefore state that the High Court has CONCURRENT jurisdiction with the Labour Commission in granting the Reliefs set in Section 63 of Act 651.” In conclusion the apex Court stated: “… the principle running through these cases which we/Supreme Court endorse is that, where a Court has jurisdiction in a matter but for some reason whatever it may be, declined to assume jurisdiction ‘BEA’ Page 7 of 18 that decision is amenable to the orders of CERTIORARI and MANDAMUS. The Court below clearly committed an error when it declined jurisdiction and referred the parties to the Commission, when the issue of wrongful termination was cognizable before the High Court as well as what damages or compensation arises from such termination. The error is patent so the Applicant should have his remedy in this proceedings. Consequently, we grant the application to set aside the order of the High Court and order the High Court to assume jurisdiction to hear and determine the matter.” 04. In respect of CHRAJ, it is a public sector Agency or institution established as in Article 216 of the 1992 Constitution. Article 218 provides that the functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty: a. To investigate complaint of violations of fundamental Rights and Freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties b. To investigate complaint concerning the functioning of the public services Commission, Armed Forces, Police etc., that is virtually all the public services and their officers with a few exceptions, could be investigated by CHRAJ. Article 219 of the 1992, Constitution provides for legislative backing or the powers to issue subpoenas, requiring attendance of any person before the Commission. CHRAJ has power to cause person in contempt to be prosecuted in Court. Act 456 – CHRAJ. ‘BEA’ Page 8 of 18 CHRAJ has been set up as an independent institution as envisaged in Article 218 of the 1992 Constitution. It powers and functions has been stated in the statute as in the constitutional provision Section 7 on its functions, especially, sub- section 1 (b) (c) and (d). It has power to investigate public service institution and their officers in the practices and actions of the institution. Section 1 (b) “to take appropriate action to call for remedying, correction and reversal of instances specified in paragraph (a), (b) (c) of sub-section through means that are fair, proper and effective including (i) negotiation, compromise between parties concerned. (ii) Report to superiors (iii) BRING proceedings in a competent Court for a remedy of the offending action or conduct or the abandonment or alteration of the offending procedure” 05. The provisions of the 1992 Constitution and statute that establish the Lands Commission, the Respondent herein are also relevant to this dispute and the objection to jurisdiction raised. Article 258 on the Lands Commission provides: Clause 1: There shall be established a Lands Commission which shall in accordance with the relevant public Agencies and governmental bodies, perform the following functions: a. On behalf of the Government manage public lands and any lands vested in the president by the Constitution or by any other law or any land vested in the commission. b. Advise Government, local authorities on policy framework for the development of particular areas of Ghana to ensure that the development of individual pieces of land is coordinated with the relevant development plan for the area concerned. ‘BEA’ Page 9 of 18 c. Formulate and submit to Government recommendation on national policy with respect to land use and capability d. Advise on and assist in the execution of a comprehensive programme for registration of title to land throughout Ghana. e. Perform such other functions. Act 767 is the Lands Commission Act, 2008 statute made pursuant to Art 258 of the 1992 Constitution cited supra. Yet another constitutional provision, relevant to this dispute is/Article 20 of the 1992, Constitution on protection from Deprivation of property. It provides: 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. a. The taking of possession or acquisition is necessary in the interest of Defence, public safety, public order, public morality, public health, Town and Country planning etc. to provide public benefit and b. The necessity to acquire is clearly stated and reasonable justification provided. 06. (a) EVIDENCE ADDUCED The deposition of Daniel Afetsi made on behalf of the Commissioner of CHRAJ showed that it is an Agency created by the Constitution and an Act of parliament with powers to investigate complaints of Human Right ‘BEA’ Page 10 of 18 abuses, allegations of corruption and complaints of Administrative injustice, abuse of power, unfair treatment among others. Article 216 of the 1992 Constitution, and Act 456 were cited as the relevant laws. The above is evidence of power and authority which was the basis of the work it did. In paragraph 6, the deposition showed that on 17/09/1998, a compliant had been received by the office of the president, from Safari Motors about replacement of plot of similar size like the plot which had been allocated to it and subsequently taken away. And refund of all cost incurred in respect of reclamation and fencing of the land. The subject matter of the petition in PLOT NO: 55 A RING ROAD, SOUTH INDUSTRIAL AREA, ACCRA, allocated as per Exhibit ‘A’, an allocation letter. The Court has perused the document signed by the Executive Secretary of the Lands Commission as the time on 20/03/1999. It showed that the land has been allocated and paid for as alleged. The evidence in support is also to the effect that money was spent to re- claim and fence the land. Exhibit C and D, are the title deeds and site plan and report/survey exploration on the land to determine it suitability for use. This c has examined them. ‘BEA’ Page 11 of 18 The aggregate of evidence proffered in support showed that some time was spent on these activities, then the Respondent, as per Exhibit E, a Notice of Re-Entry took over the land. The grounds of re-entry were stated as breached of the obligation to pay rent and building which are covenants in the lease. Exhibit ‘F’, is a petition against the re-entry addressed to the Respondent, it is dated 27/07/1990. In addition, on 12/08/199, Applicant had petitioned the Minister for Lands and Forestry over the issue, and EXHIBITS ‘K’, dated 16.11.1994 and September, 1994 were correspondence and consideration/consultation among various institutions and officers on the mater. Meanwhile in 3/7/1990, as per Exhibit ‘L’, Japan Motors wrote to Respondent, expressing interest in the subject matter land which it described as land which has been walled but lying next to the their yard and unoccupied. It is the above testimony and exhibit which were considered by Applicant/institution and what had been said in rebuttal before Exhibit ‘M’, which is the decision it arrived at. The document is dated 25/06/2002. This Court has perused same. There were four (4) issues which were set down as being relevant to the dispute whether or not it was provided in the leasehold document that the plot must be developed in one year and completed within two (2) years, whether or not the complainant developed the plot within the specified time, and whether or not 1st Respondent were ‘BEA’ Page 12 of 18 justified in re-entering the plot and lastly whether or not the complainant is entitled to replacement or compensation. The concluding part of Exhibit ‘M’, contains the reasoning behind the decision of CHRAJ. It reads in part: “Lastly, the commission is alarmed at the dispatch with which the re-entry was done. Japan Motors applied for the allocation of the land on 3rd July, 1990 and the Re-Entry letter was dated 18th July, 1990. If the two (2) letters were as a result of coincidence then it was a striking one indeed. The commission is inclined to believe that the re-entry was generated by the application by 2nd Respondents. And unfortunately, 1st Respondent deliberately ignored all the civil works done on the land and amid protestations and pleas virtually snatched the land from complainant and allocated it to 2nd Respondent without valuing the works previously done on the land. From the totality of the evidence adduced, the commission is of the view that the complainant was not treated fairly and it must be compensated. The complainant must not only be replaced with an industrial plot but must be paid damages equivalent to the value of the works done on the land after due assessment by a Government Valuer and paid interest at the current Government rate.” (b) The salient parts of the Affidavit in opposition [which has not been so described appropriately] showed that, Respondent denied paragraph 5 of the Affidavit in support that described, the Respondent as an institution created by law. This is the contestation: ‘BEA’ Page 13 of 18 “… he is not an institution but rather the Executive secretary, the Administrative Head of the Lands Commission an institution created and mandated by law to administer public land.” This averment is virtually the game as the words and import of paragraph 5 in support and I find that the paragraph quoted supra is a classic example of red herring and an unnecessary disputation of the obvious and conflicted reasoning. In paragraphs 8 and 9, Respondent contended that, if a complaint was first sent to the President, the, the Presidency is the complainant. I fail to see the evidential value of these averments to the extent that Respondent is not stating that there is no complainant. The deposition of Respondent contains an admission of the fact that PLOT NO. 55A Ring Road South Industrial Area, Accra, has been allocated to SAFARI MOTORS LTD. In effect, paragraph 8 and Exhibit ‘A’, of Applicant, have been accepted as stating accurately the facts stated therein. Also admitted are Exhibit ‘B’ and ‘C’, the leasehold and site plan, Respondent executed in Applicant’s favour. Furthermore, Respondent denied that the place was swampy and contended that, if it was, if would not have been allocated to Applicant. But the fact that, surface exploration was done and detail Report in the ‘BEA’ Page 14 of 18 form of Exhibit ‘D’, issued on it, contains information contrary to what the Respondent has stated. The fact that the plot had has been worked on and fence wall built around it which are the material averments have been corroborated by receipts. It is Respondent case that, the Re-Entry is justifiable given violations of Rent payment and building on the land, which are covenants in the lease. Besides, this is the challenge to CHRAJ jurisdiction and the jurisdiction of the High Court to hear this case. These claims of lack of jurisdiction were made without an iota of evidence in support as I have illustrated clearly that, the High Court has jurisdiction to hear and determine this case. 07. EVALUATION OF EVIDENCE The facts to the mind of this Court which were clearly established are that a valid allocation of the subject matter and has been made by Respondent institution to the Applicant and a leasehold document duly executed on it. The fact that Applicant took possession of the land, entered it and commenced development of it, by building a fence wall and preparation of the surface have been clearly established. Then notice of Re-Entry was served on 12/07/1990, and the plot was re-allocated to Japan Motors who had applied for the land on 3/07/1990. The evidence showed no compensation whatsoever was paid. ‘BEA’ Page 15 of 18 In Section 7 (1) (d) cited supra, the procedure to make effective the results of its investigation has been provided therein. CHRAJ is empowered to bring proceedings in Court to enforce is decision, whilst CHRAJ is prohibited from dealing with disputes which are sub judice i.e. pending in Court, it was equally prohibited from investigating matters related to judicial proceedings and time lines have been set in the statute. These provisions need no further interpretation beyond what has been stated in the law in simple and clear terms. Where a statute is clear in its meaning and intent it is unacceptable to read other meanings into it. I cherish the wisdom in the saying that it is not permissible to prohibit what is lawful and permit what is prohibited. CHRAJ has power to approach the High Court by instituting proceedings to enforce its decisions. It is therefore false to state that it has no jurisdiction to take such a step. Similarly to claim that it has no power to conduct the investigation in question, is to exhibit the height of crass ignorance, about the important functions and powers given to the Applicant institution. I have elaborated sufficiently the source and nature of authority the High Court of Ghana has as in constitutional and statutory provisions cited supra. I have illustrated the meaning and scope put on these provisions by the Highest Court of Ghana. ‘BEA’ Page 16 of 18 It is therefore ludicrous to say that the High Court lacks jurisdiction to enforce decisions of CHRAJ made about/on, violations of Human Rights as enshrined in Chapter 5 of the 1992 Constitution. I find and hold that this Court has power to hear the application placed before it and deal with issues raised according to law. This jurisdiction as conferred on the High Court, is not an appellate power to re- hear cases brought before it for enforcement of decisions made. The High Court is not to rubber stamp every decision by adopting them automatically but it has power to examine the methods used and the legal basis of these decisions placed before it by CHRAJ. When prima facie there is sufficient reason to accept the decision as having been made regularly and devoid of errors on the face of the record, the High Court will have to adopt those decisions. This is how the intendment of the law giver could be realized. BY COURT: 1) Given the position of the law on Relief of specific Performance which is the legal effect of the request/claim of Applicant, and the conditions which can crystalize the Relief being onerous and not granted easily, compensatory damages is what will suffice to put Applicant in the position in which he/it was before Respondent re-entered the land. The above is the amendment or alteration I will make to the decision of CHRAJ. 2) The Applicant is entitled to recover cost of the land and cost of reclamation (i.e. ¢1,860,000.00 + ¢140,000.00 + cost of survey and reclamation and cost of fence wall etc.) with the interest being calculated from July 1990 to date. The rate of ‘BEA’ Page 17 of 18 interest shall be prevailing bank rate from the date aforementioned till the time of final payment. (SGD.) H/L NICHOLAS M. C. ABODAKPI JUSTICE OF THE HIGH COURT REFERENCES: 1. THE REPUBLIC VRS. THE HIGH COURT, ACCRA, EX-PARTE: PORT HOLDING CIVIL MOTION. J5/23/2013. 2. AKATI VRS. NARTEY [1980] GLR 218. 3. REPUBLIC VRS. ADU BOAHENE [1992/1993] GBR 684/693. 4. THE REPUBLIC VRS HIGH COURT, ACCRA LABOUR DIVISION EX-PARTE: PETER SANGBER-DERY [Civil Motion No. J5/53/2017] now reported in 2017-2020 SCGLR page. ‘BEA’ Page 18 of 18