Ghana’s new Land Act, 2020 (Act 1036) came into force on 23^rd December 2020. The purpose of this law, as contained in its long title is to revise, harmonise and consolidate the laws on land to ensure sustainable land administration and management, effective and efficient land tenure and to provide for related matters. This law intends to provide answers to contentious legal questions about ownership of land, the land tenure system, acquisition and transfer of land rights, among others. The Act also establishes dispute resolution modalities in land administration in Ghana.

Just like any new piece of legislation, the import of some of its provisions have raised concerns among lawyers, judges, legal scholars, and other key stakeholders of land administration in Ghana. Key among these issues is Section 98(1) of the Land Act which provides as follows:

 “Resolution of Land Dispute
An action concerning any land or interest in land in a registration district shall not be commenced in any court unless the procedures for the resolution of disputes under the Alternative Dispute Resolution Act, 2010 (Act 798) have been exhausted.”

This provision has been the subject of at least three different interpretations. First, some believe that section 98(1) partially ousts the jurisdiction of the court in land disputes until a later time. This is because the said provision appears to have introduced a condition precedent to the commencement of land disputes in a Registration District. More specifically, section 98(1) seems to have made it a requirement for all land disputes in such areas to be submitted to the relevant dispute resolution mechanisms as contained in the ADR Act, prior to the commencement of a court action.

Second, others believe section 98(1) potentially has the effect of completely ousting the jurisdiction of the court in land disputes in a Registration District. This is so because the two main dispute resolution mechanisms under the ADR act, mediation and arbitration, yield binding decisions. Therefore, if parties choose arbitration for the resolution of their land dispute, it means that the dispute will never see the courtroom since an arbitral award is final and binding on the parties. Additionally, an arbitral award can only be appealed on very specific and limited grounds.

Third, some others hold the view that section 98(1) cannot completely or partially oust the jurisdiction of the High Court in respect of land disputes in a Registration District. Some of the arguments advanced to support this position are that one of the key elements of ADR is the voluntary submission of the parties to either mediation or arbitration. As such section 98(1) cannot automatically compel parties to submit their land disputes to ADR when they do not wish to do so. Another argument is that land disputes are very technical subject matters and to that extent are matters of national interest to all citizens. Thus, the resolution of land disputes cannot be left to the choices of private individuals. Additionally, section 98 has the potential of breeding inconsistencies in the resolution of land disputes in Ghana since the decision of one arbitral tribunal or mediation panel is not binding on the other, especially on principles of law. Also, this could bring an end to the age-old doctrine of stare decisis / judicial precedents in adjudicating land disputes in Ghana.

Additionally, an arbitral tribunal or mediation panel is not clothed with powers to compel the production of evidence in the form of discoveries/disclosures that will aid its work.  The strict rules of evidence do not apply here. Furthermore, the database of land ownership and administration in Ghana sits with the Lands Commission. The Lands Commission may not be willing to release such sensitive data to an arbitral tribunal or mediation panel contracted by private individuals to resolve their land disputes. Also, the effect of a literal interpretation of section 98(1) means that we may not be seeing any new cases or a limited number of land cases in our courts for the next couple of years. Essentially, applying the literal interpretation will create more problems than the legislature had intended: the legislative intention for the new Land Act was not to introduce a new system of resolving land disputes in a Registrations District.

The Supreme Court was seized with the opportunity to finally interpret section 98(1) of the new Lands Act and settle the legal contentions surrounding it in the recent case of The Republic vrs. High Court (Labour Court 1); Ex Parte A & C Development Company Limited: Gladys Forson, Liberty Estate Agency & James  Orleans-Lindsay (Interested Parties) [(Civil Motion No J5/63/2022) Judgment dated 26^th July 2022].

In this case, the Applicant applied to the Supreme Court for an order of certiorari to quash the decision of the High Court (Labour Division) dated 1^st April 2022. In the impugned decision, the High Court dismissed an application to strike out the suit because the Plaintiff had not complied with section 98 of the Land Act. The Plaintiff, in this case, commenced the action for alleged acts of trespass to her workplace. The Applicant was by an order of the High Court added as the 4^th Defendant to the suit pending before the High Court. After being served with the amended Writ of Summons and Statement of Claim the 4^th Defendant entered a conditional appearance. Thereafter, the 4^th Defendant filed its Statement of Defence and subsequently filed a motion to strike out the action on the grounds that by virtue of section 98 of the Land Act, the Plaintiff’s action in the High Court against it was premature.

The case of the 4^th Defendant was that where the land in dispute is situated, East Legon, Accra was declared a Registration District by the Land Title Registration—Declaration of Registration District (Accra District ) Instrument, 1992 (L.I 1534). Therefore, the Plaintiff could not commence an action in court concerning that land without first exhausting the procedures under the ADR Act. The High Court dismissed the application and aggrieved by the ruling; the 4^th Defendant invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the decision of the High Court.

The Supreme Court in this case applied one of the canons of interpretation which is to apply the meaning and interpretation of the antecedent legislation to the current legislation.  Section 98(1) of the new Land Act was a reproduction of Section 12(1) of the Land Title Registration Act, 1986 (PNDCL 152). Thus, the Supreme Court compared both provisions and the legal effect of both. The Supreme Court indicated that the only real difference between section 98(1) of the new Land Act and section 12(1) of the Land Title Registration Act was that whereas section 98(1) refers to the procedure for the resolution of disputes under the ADR Act, section 12(1) of the previous statute talks of the procedures for settling disputes under the Land Title Registration Act that is the Land Title Adjudication Committee established under section 22 of the repealed Act.

The Supreme Court also relied on its construction or interpretation of the previous statute in the case of Boyefio v NTHC Properties Ltd [1996-97] SCGLR 531 where the court held that the true import of section 12 was that whenever in a registration district, a dispute arises in the course of registration of title to land or interest therein in the Land Title Registry, no party to such a dispute shall commence any action in respect of this dispute in any court until the Land Title Adjudication Committee has had the opportunity of first determining the said dispute. Accordingly, the ban on taking action in the courts as imposed in section 12(1) of the Land Title Registration Act, was restricted solely to actions relating to a dispute arising in the course of the Land Title Registry’s exercise of registering such titles to land and interest therein.

The above case thus settled the meaning and the legal effect of section 12(1) of the Land Title Registration Act for over two decades until its reproduction in section 98(1) of the new Land Act. The minor change made to section 98(1) by the legislature as already indicated reignited the issue of interpretation of the said provision in a statute for the second time.

The Supreme Court after its comparative analysis concluded that since section 98 is not novel and existed in the previous statute it will apply the interpretation that was placed on the same provision in the previous statute. The Court held in a unanimous decision per Pwamang JSC as follows “Having regards to what has been explained above regarding the similarities between PNDC 152 and Act 1036, the established principle of interpretation of statutes which applies here is that where a statutory provision has received judicial interpretation and lawmaker repeats that provision in a subsequent enactment, then the lawmaker is to be presumed to intend the meaning ascribed to the provision by the judicial interpretation unless express qualifying words are introduced in the later provision or the court is convinced that the earlier interpretation was not sound. See Republic v. Tekperbiawe Divisional Council & Another; Ex Parte Nene Korle II [1972] 1 GLR 199-209.” The Court thus applied the already existing interpretation of the said provision under section 12(1) of the previous statute to section 98(1) of the new statute to resolve controversies around the said provision.

 The legislature just repeated section 12(1) of the previous statute in the new Land Act and did not introduce any new addition to section 98(1) that is intended to change the meaning and legal effect of the said provision in the new statute. Thus, just like section 12(1) of the Land Title Registration Act, the legal effect of section 98 (1) is that disputes relating to the registration of title or interest in land in a Registrations District cannot be commenced unless it has been submitted to ADR under the ADR Act. This means that just like the old statute the new statute partially ousts the jurisdiction of the High Court over disputes relating to the registration of title or interest in land in a Registrations District.

His Lordship Pwamang JSC also went further in the ruling of the Court to conclude as follows:

“We do not find any qualifying word in Act 1036, and none has been pointed out to us by the applicant, who portray an intention by Parliament to change the existing law on litigation in land disputes in Ghana. Furthermore, we are satisfied about the soundness of the interpretation by this court in Boyefio vs NTHC (supra), which is ordinarily binding on us anyway. In our considered opinion, section 98 of Act 1036 refers to only disputes that arise in the course of the process of registration of title or interest in land falling within a registration district. The complicated rule that apply in the determination of land ownership disputes makes the courts more suitable, competent and tested forum for resolving such disputes, while matters of technical nature about the land title registration process may be settled by arbitration under Act 798.”

In conclusion, the Supreme Court’s decision means that all land disputes aside from those arising out of the registration of title or interest in land in a Registration District can be commenced in the High Court at the first instance without resorting to the procedures for the resolution of disputes under the ADR Act.

Find the full ruling of the Supreme Court below: