STATE INSURANCE CORPORATION vs. BOTCHWAY [1993]DLCA4288

Date	1993-12-16
Suit No.
Citation No.	[1993]DLCA4288

LAMPTEY JA

ESSIEM JA

AMUAH JA

S KWAMI TETTEH (WITH HIM FIE) FOR THE APPELLANT.

JAMES AHENKORAH (WITH HIM YEBOAH) FOR THE RESPONDENT.

[1993]DLCA4288
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													<main id="main" class="content" style="min-height: 60rem" >STATE INSURANCE
CORPORATION<o:p></o:p>vs.<o:p></o:p>BOTCHWAY<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

1993 - 4 1 GBR 153 – 164&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 16 DECEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>S
KWAMI TETTEH (WITH HIM FIE) FOR THE APPELLANT.<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">

JAMES
AHENKORAH (WITH HIM YEBOAH) FOR THE RESPONDENT.<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">

LAMPTEY
JA, ESSIEM JA, AMUAH JA<o:p></o:p>

</div>LAMPTEY
JA. On 2nd October 1987 one Ebenezer Tetteh Amartei, in his capacity as Head of
Nii Amarh Sagblah Family of Osu on behalf of the said Family and people of Haatso,
(hereinafter referred to as “the plaintiff”) sued the State Insurance
Corporation (hereinafter referred to as “the corporation”) and sought the
reliefs endorsed on the writ of summons. In due course, the Attorney-General
was by an order of the court joined as 2nd defendant. Briefly put, the claim of
the plaintiff was that the President had no lawful power to compulsorily
acquire land for the benefit, use and purposes of the corporation. The
plaintiff further claimed that the entry of the corporation on the land in
dispute constituted actionable trespass. The defence put forward by the
corporation and the Attorney-General was that the President had lawful
authority to acquire the land in dispute and to vest it in the corporation. At
the end of the trial on the merits, judgment was entered for the plaintiff for
the reliefs he claimed except the claim for damages for trespass which claim
the court dismissed. The corporation was aggrieved by the judgment and appealed
to this court. The plaintiff was dissatisfied with the dismissal of his claim
for damages for trespass and asked this court to set aside the order dismissing
that head of claim and further to award him damages for trespass.<o:p></o:p>The
facts which gave rise to the instant litigation are fairly simple. The
corporation was desirous of acquiring a fairly large tract of land in order to
develop it into a housing estate. For the above purpose the corporation
selected land in Haatso area. On enquiries as to ownership of the land, the
corporation learnt that five different and unrelated families each laid claim
to ownership of the tract of land. In the circumstances, the corporation sought
the assistance of the Lands Commission to enable the corporation acquire the
tract of land by resorting to compulsory acquisition. The Lands Commission
therefore purported to compulsorily acquire the land by resorting to the power
granted by the State Lands Act, 1962 (Act 125). The corporation in the meantime
entered the land in dispute and commenced its project. The plaintiff took the
instant action to test the legality of the purported compulsory acquisition and
the entry on the land by the corporation at the time it entered it.<o:p></o:p>One
ground of appeal argued with considerable force was that the trial judge erred
in law when she held that EI 58 was ultra vires the Commissioner for Lands, and
was therefore of no legal force and effect. Counsel for the appellant argued
that the finding by the trial judge that the corporation cannot be a
beneficiary of land compulsorily acquired under Act 125 was erroneous in law.
He contended that the corporation is a “person” within the meaning and
intendment of Act 125 and therefore can lawfully be a beneficiary of land
compulsorily acquired pursuant to Act 125. He submitted that the Commissioner
for Lands was clothed with lawful authority by section 1(1) of Act 125 to sign
EI 58. He submitted that EI 58 was a lawful instrument and must be given its
legal force and effect by this court.<o:p></o:p>In
reply, learned counsel for the respondent submitted that the trial judge was
right in law in holding that EI 58 was a nullity and was void ab initio. He
argued that the Commissioner for Lands had no power under section 1(1) of Act
125 to purport to compulsorily acquire land for the benefit and purposes of the
corporation. He contended that the corporation had power under section 3(c) of
Act 232 to acquire land without recourse to the Commissioner for Lands. He
submitted that the Commissioner for Lands erred in signing EI 58 since he had
no legal power to do that.<o:p></o:p>In
my opinion two quite distinct issues arise for consideration and determination.
These are: (1) whether or not the Commissioner for Lands has power to
compulsorily acquire land; and (2) whether or not the corporation can be a
beneficiary of land compulsorily acquired under (1) above.<o:p></o:p>I
will deal first with issue (1) above. The trial judge had no difficulty in
resolving this issue. She held as follows:<o:p></o:p>“It seems to me plain from s 1(1) and
s 3 of Act 125 that the President has power under certain circumstances to
compulsorily acquire any land and vest it in himself for and on behalf of the
Republic free from any encumbrances.”<o:p></o:p>It
will be seen from the interpretation placed on the relevant section of Act 125
to which the trial judge made reference that land compulsorily acquired under
Act 125 vests in the President and not in the ultimate beneficiary or grantee
of the land so acquired. It is only after the land to be compulsorily acquired
had vested in the President pursuant to Act 125 that the right of the Lands
Commission to make grants and allocations of the land so acquired comes into
play. It will thus be seen that there is a clear right to compulsorily acquire
land in the public interest and an entirely different and further right to deal
with the land so acquired. The submission that the Commissioner for Lands
lacked legal power and lawful authority to sign EI 58 is plainly misconceived.
I hold that EI 58 is a lawful instrument of full legal force and effect.<o:p></o:p>Before
I deal with issue (2) raised above, I wish to consider the equally important
issue whether or not the land in dispute vested in the President in the instant
case within the meaning and intendment of Act 125. I have adopted this approach
because of the submission from learned counsel for the corporation that on the
mere signing by the Commissioner for Lands of EI 58 the corporation was,
without more, lawfully entitled to enter the land in dispute and commence its
project. I think this argument overlooks other provisions of Act 125, in
particular, the mandatory provisions of section 2 of Act 125. This section
deals with publication of EI 58 and provides as follows:-<o:p></o:p>“2. A copy of the instrument made
under the preceding section shall<o:p></o:p>(a) be served personally on any person
in occupation of the land; or<o:p></o:p>