NANA HYEAMAN II vs. OSEI AND OTHERS [1981]DLHC2160

Date	1981-04-06
Suit No.
Citation No.	[1981]DLHC2160

TWUMASI J.

MR. POLLEY FOR THE PLAINTIFF-RESPONDENT.

MR. BOATENG FOR THE FIRST DEFENDANT-APPLICANT.

MR. GWIRA FOR THE SECOND DEFENDANT.

MR. AMANING SENIOR STATE ATTORNEY THE FOURTH DEFENDANT

DR. TACKIE OTOO FOR THE CO-DEFENDANT

[1981]DLHC2160
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													<main id="main" class="content" style="min-height: 60rem" >NANA HYEAMAN II <o:p></o:p>vs. <o:p></o:p>OSEI AND OTHERS <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1982-83] GLR 495<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
6 APRIL 1981<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MR. POLLEY FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

MR. BOATENG FOR THE FIRST DEFENDANT-APPLICANT. <o:p></o:p>

MR. GWIRA FOR THE SECOND DEFENDANT. <o:p></o:p>

MR. AMANING, SENIOR STATE ATTORNEY, THE FOURTH
DEFENDANT. DR. TACKIE OTOO FOR THE CO-DEFENDANT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>The
preliminary question that erupted in this proceeding is whether the plaintiff,
who is the divisional chief of Gwira Banso in the Gwira Traditional Area, has
capacity to institute an action for the cancellation and setting aside of a
timber lease of a piece or parcel of land attached to his stool. Counsel for
the defendants and co-defendants submitted that there is no such capacity and referred
to the Concessions Act, 1962 (Act 124) in substantiation of their submission,
particularly section 16 thereof. The answer to the question therefore requires
the interpretation of section 16 of Act 124 which provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“16. (1)
All lands referred to in subsection (2) or subsection (4) of section 4 of the
Forests Ordinance (Cap. 157) and which have been constituted or proposed to be
constituted as forest reserves under that Ordinance and all lands deemed to be
constituted as forest reserves under subsection (7) of this section are hereby
vested in the President in trust for the stools concerned:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Provided
that all rights, customary or otherwise, in such lands validly existing
immediately before the commencement of this Act shall continue on and after
such commencement subject to this Act and any other enactment for the time
being in force. (2) All lands which in the future shall be proposed to be
constituted as forest reserves under the Forests Ordinance (Cap. 157) shall
become vested in the President in trust for the stools concerned with effect
from the date of the publication of the notice relating to such land and
prescribed under section 5 (1) of that Ordinance. (3) Any land, other than land
referred to in the preceding subsections, subject to the Administration of
Lands Act, 1962 and in respect of which rights have been granted with respect
to timber or trees under any concession and in force immediately before the
commencement of this Act are vested in the President in trust for the stools
concerned, subject to the terms of the concession, this Act and any other
enactment for the time being in force. (4) All rights with respect to timber or
trees on any land other than land specified in the preceding subsections of
this section are vested in the President in trust for stools concerned. (5) It
shall be lawful for the President to execute any deed or do any act as a
trustee in respect of lands or rights referred to in this section. (6) Any
revenue from lands or rights vested in the President under this section or
derived under subsection (11) shall be collected, paid in and disbursed as
provided by the Administration of Lands Act, 1962.”<o:p></o:p><o:p>&nbsp;</o:p>As seems
clear from their plausible submissions, counsel for the defendant and
co-defendants were apparently influenced in their view by the magic words
“vested in the President in trust for the stools concerned” used in the section
and were thus induced to opine that the Act had in effect taken away the
tradition-clothed powers of our chiefs over stool lands. They submitted in
concert that only the President could institute proceedings, as trustee, on
behalf of the stools concerned. That there has been in the pre- and immediate
post-independence decades, a sustained legislative incursion into the
traditional powers of our chiefs over their stool lands needs hardly be
over-emphasised. The policy rationale assignable to this piecemeal legislative
nibbling of the authority of our chiefs has been the compelling need to ensure
efficient administration of stool lands for the public benefit because land has
ever been and still is the fulcrum to our economic survival. It seems therefore
necessary to throw a searchlight on the amplitude of the relevant statutes and
case law in order properly to appraise their impact and effect on the
traditional authority of our stools.<o:p></o:p><o:p>&nbsp;</o:p>First in
the series was the Local Government Ordinance, Cap. 64 (1951 Rev.), ss. 72 and
75 of which vested the management of stool lands in the urban or local councils
and insisted upon the concurrence of these councils in the disposal of stool
lands. In Ofori Attah II v. Mensah (1957) 3 W.A.L.R. 32 at pp. 34-35, Ollennu
J. (as he then was) said:<o:p></o:p>