GAABS LTD v. BOAKYE

JUDGMENT OF BOATENG JA.

This is an appeal against the judgment of the High Court, Koforidua. In 1960, the Government of Ghana passed the Stool Lands Act, 1960 (Act 27); section 1 (1) of which provides:

"1. (1) Where it appears to the President that it is in the public interest so to do he may by executive instrument declare any stool land which is subject to the provisions of the Stool Lands Acts to be vested in him and accordingly it shall be lawful for the President, on the publication of the instrument, to execute any deed or do any act as a trustee in respect of the stool land specified in the instrument."

In accordance with this section the Stool Lands Instrument, 1961 (EI 195 of 1961), was passed; it states:

"In exercise of the powers conferred on the President by section 1 of the Stool Lands Act, 1960 (Act 27) the following Instrument is made this 1st day of November, 1961.

The stool lands specified in the Schedule hereto which are subject to the Stool Lands Acts are hereby declared to be vested in the President.

SCHEDULE

All stool lands within the boundaries of the towns of Koforidua and Nkawkaw."

The legal effect of EI 195 of 1961 is that on the day it was made on 1 November 1961, the President became vested with the duties and the rights of a trustee to these stool lands. By the Administration of Lands Act, 1962 (Act 123), Act 27 was repealed; but the repeal could not affect any acts done or rights already vested or accrued under Act 27: see section 8(c) of the Interpretation Act, 1960 (CA 4). For purposes of determining this case, the proper law will have to be essentially the repealed Act 27 and EI 195 of 1961 unaffected by the more refined Act 123, particularly its section 10.

The plaintiff's case is that many years ago his uncle, the Krontihene of Koforidua, by virtue of being the prime cultivator of the virgin forest became the owner of it, and it had through inheritance become family property. He inherited fruiting cocoa trees and palm trees and other food crops, and that he had all the time been in active and effective possession. This evidence was not challenged by the defendant-company.

The defendant-company's case was that about 1973 they applied for [p.535] land to the Lands Department. In 1978 a part of a piece of land previously granted to the State Housing Corporation was granted to them by the Lands Department and this portion happened to include a part of the plaintiff's land.

The Lands Department claims its source of