PASTOR YAW BOATENG v. KWADWO MANU & ANOR
September 11, 2006
SUPREME COURT
GHANA
CORAM
- ATUGUBA, J.S.C
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Evidence Law
- Alternative dispute resolution
September 11, 2006
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Atuguba J.S.C. considered an application for special leave to appeal following land litigation that began in the Circuit Court, Kumasi, and proceeded unsuccessfully in the Court of Appeal, where leave to appeal was refused. The Applicant emphasized the public importance of the registrability of allocation notes in land transactions, but the Court was not moved by this policy-based contention in light of its established test in Amuzu v. Oklikah. The Court focused instead on affidavit assertions that the Oman of Bosore had resolved to demarcate outskirt lands for building, with the 1st Respondent’s family represented by Opanin Kwabena Owusu without objection, and on disputes surrounding a customary arbitration award. These raised unsettled questions about eminent domain at the customary level, potential limits on usufructuary title, and the boundary between prior inconsistent statements and fraud. Finding these matters of general public importance, the Supreme Court granted special leave.
ATUGUBA, J.S.C:
This is an application for special leave to appeal to this court. The suit originated in the Circuit Court, Kumasi, whence the Plaintiff/Appellant/Applicant (hereinafter referred to as the Applicant) appealed unsuccessfully to the Court of Appeal. The applicant’s application to the Court of Appeal for leave to appeal to this court was also dismissed.
The Applicant contends that an issue as to whether an allocation note relating to land is registrable or not which arose in the case and attracted a split decision in the Court of Appeal is one of public importance, since “it is a matter of public knowledge that transactions relating to the sale or grant of stool or family lands for building purpose in Ghana is usually preceded by the issuance of an Allocation Note by the grantor and it will be stretching the law too far to require that such Allocation Notes be registered before they can become valid as held by the majority.” This is a contention arising solely, ab incovenienti, and in view of the test for registrability of instruments affecting land by this court in AMUZU V. OKLIKAH. (1998-99) SCGLR 141, would not move this court as a special reason for granting special leave to appeal to this court.
In paragraphs 11 to 13 of his supporting affidavit, however, the applicant deposes as follows:
“That there is uncontroverted evidence on record to show that the whole Oman of Bosore met and agreed and resolved that vacant portions of outskirt lands be demarcated for building purpose.
That I repeat paragraph 11 supra and state that the 1st Respondent’s family was duly represented by one Opanin Kwabena Owusu who never raised any objection to the decision taken by the Oman.
That it was upon the said decision and resolution by the Oman of Bosore that Plaintiff/Applleant/Applicant acquired the disputed land.”
Even though these are strenuously denied by the Respondent, these matters arise upon a careful reading of the judgments delivered in this case in the Court of Appeal. These matters raise the question of what the esteemed late Professor Bentsi-Enchill in his book, “Ghana Land Law” described as the Eminent Domain, that is to say, the right of the State to compulsorily acquire land in the public interest.
This question of Eminent Domain has reared its head even at the customary level. Judges have expressed views as to the possible limits and qualifications that may be necessary to be made to the subject’s usufructuary title in the face of mod