The starting point is article 18(1)-the right to own property.
Art 20 of the constitution-no property or interest can be compulsorily acquired by the state unless
⦁ The taking or acquisition is necessary in the interest of defense or public purpose in such a manner as to promote public benefit
⦁ The necessity for the acquisition is clearly stated in such as to provide reasonable justification for causing hardship
⦁ Made under a law which makes provision for prompt, fair and adequate payment
⦁ The right of access to the high court to anyone with an interest in the property for the determination of his interest and the amount of compensation
State Lands Act 1962 Act 125 as amended by (Act 586) 2000 governs the compulsory acquisition of lands
Section 1 provides that where it appears to the president to be in the public interest, the president may by executive instrument compulsorily acquire any piece of land. This is by virtue of the publication of an executive instrument.
PUBLICATION BY EXECUTIVE INSTRUMENT
Section 2 : for there to be effective publication , four things must be done:
• Personal service –section 2(a): there must be personal service of the executive instrument on all persons who have an interest in the land in question and
• Service on the traditional authority of the area in which the land is situated.-serice of the executive instrument on the traditional authorities and the chief will notify the people of the area concerned.
• Fixing a copy of the executive instrument at a convenient place on the land.
• The executive instrument must be published on three consecutive occasions in a newspaper circulating in the area where the land that is being acquired is situate and in any other manner directed by the land commission.
Rockson v. Agade : all fours must be complied with for there to be a valid publication of the executive instrument. It also holds that if any one of the elements of eth publication is not done , the purported compulsory acquisition is not valid because the executive instrument would not have been published as required by Act 125.
Once the executive instrument has been published the compulsory acquisition is complete and the effect is that all persons who had an interest in the land , will have their interest extinguished by virtue of the compulsory acquisition.-section 1(5). Mensah-Moncar v. Chainartey, Memuna Moudy v. Antwi.
Therefore any dealings by the previous occupants after the publication of the executive instrument is null and void.
It should be noted as was held in Mensah-Moncar , that under our law, the payment of compensation is not a necessary condition for the validity of an act of compulsory acquisition.
Under our scheme the compensation issue comes after the compulsory acquisition is complete.
COMPENSATION-section 4
A person who claims a right or has an interest in land subject to an instrument made under section 1may submit claims for compensation within six months on the day the instrument is acquired. This makes it clear that compensation is after the land has been acquired. He should indicate the particular interest in the land , the manner the acquisition has affected his interest, the market of replacement value, the benefit to be derived by the people in the area to which the land is situated and the amount of compensation he is claiming. It is usual for the claimant to attach a valuation report.-4(3)
This is then submitted to the lands commission, particular the lands valuation division will then assess the compensation to be paid.
Where there is a dispute with the assessment of the compensation then the claimant may apply to the High Court under section 3 for the amount of compensation to be determined.
The other situation in which the application may go to the High Court is where there are disputing claims of interest with the property.-section 3
Article 20 of the 1992 Constitution.
Public Interest and The Public Purpose:
20(1) : the property can be compulsorily acquired for the purposes stated in this section , viz, public defense, public morality, public safety, public order, public health, town and country planning in such a manner as to promote the public benefit.
Look at Jake Obetsebi Lamptey. the Supreme court explained what constitutes a public interest and public benefit-primarily it is a matter for the state to determine, it is a matter of state policy, and that the fact that an incidental benefit is conferred on particular members of the state does not mean that it is not in the public interest or that there is no public benefit. The court held that the policy by which public bungalows as part of the Accra re development areas, the fact that the land on which public bungalows stood, the republic decided that the fact that it demarcated to private persons for development etc. and the fact that some Ghanaians acquired some of these lands at prices fixed by the lands Commission does not mean that it is not in the public interest.
Article 295:
In the US it has been held that there must be a distinction between the object of the acquisition and the vehicle by which the object has been taken. The fact that the project is to be executed by a private person does not meant that the development in is not in the public interest.
Whether in the Constitution you can acquire land without given purpose for which it is being acquired but just merely saying it is being acquired in the public interest? According to Prof. Kotei , the combined effects of Articles 20(5)(6)(1), you must indicate the purpose for which you are acquiring the land and thereafter you cannot change it.
However Act 125 merely says where it appears to the president to be in the public interest. Kotei thinks the purpose should be stated instead of ‘it appears to the president to be in the public interest’. This was the position in Colonial times where the colonial government indicates the purpose for which it was acquired. Do you agree with Kotei’s view?
COMPENSATION
The constitution provides under Article 20(2) that compulsory acquisition will only take place under a law which makes provision for the prompt payment of fair and adequate compensation. Does this provision change the law in Mensah-Moncar , kotei thinks it does not.
When is the compulsory acquisition effective? What happens if there is no prompt payment of fair and adequate compensation? The provision does not say that the compulsory acquisition shall be ineffective. Kotei suggest the SC interpret it to be that if there is no prompt payment of adequate and fair compensation then the compulsory acquisition becomes invalid.
What is prompt payment? Is there the need to pay compensation for instance to build hospitals or schools for the entire public? If it is an individual land , the answer seems yes. But if it is for a group like Osu Stool should this be done?
RIGHT OF RE-ENTRY-section 20(6)
The Constitution says that where the land is not used for the purpose for which it was acquired or in the public interest (although it will not be used for the purpose , it might be used in the public interest)-jake’s case, NIi Kpobi Tetteh; Nii Niikoi.
THE OBLIGATION TO RE-SETTLE PERSONS DISPLACED BY AN ACQUISITION-article 20(3)
Where the compulsory acquisition results in large scale displacement, then the state will be under an obligation to re-settle such persons. There should be resettled on suitable accommodation land as well as taking into consideration their social and cultural lives.
E.g. If they are farmers. If there are no unowned land in Ghana, then where is this suitable land to be found? What title will they have in this new buildings?