The stool occupants accountability regime under Ghana’s Land Act, 2020: Overdue reform or overmuch regulation?

A: Introduction
If there is one law that prides itself for being an assortment of provisions on various subjects of societal relevance, it is the Land Act[1]. The Land Act, as the name implies, is a law that deals with land. It covers the different types of interests in land, sale and purchase of land and registration of title to land, and so forth. In addition to these obvious topics on land that any land law worth its name will cover, the Land Act has the unique feature of being a mixed bag of various subject-matter. For instance, the Land Act has provisions relating to how spousal property must be distributed or shared when there is death or divorce[2]. Thus, for the first time since the 1992 Constitution came into force, an attempt has been made to comply with Article 22 of the Constitution to pass a law to regulate the property rights of spouses. And that attempt materialised in the Land Act. All things considered, a more comprehensive and stand-alone law on the property rights of spouses would have been preferable.

Another example of a broader-than-land subject that has found its way into the Land Act is the stool or skin occupants and clan heads accountability provisions.[3] This article discusses the historical antecedents of the provisions on accountability for persons who hold positions that require good faith. It argues that a stool/skin/clan head accountability law should have been passed long ago to regulate the fiduciary obligations of chiefs/tendaana/clan heads as is the case for heads of families. The article concludes that the stool occupants accountability provisions in the Land Act is a welcome development, though a stand-alone law would have covered more grounds and would have had more depth.

B. Customary law rules on stool occupant and head of family roles in protecting stool and family property.

Under customary law, the occupant of a stool (while the stool is vacant, the regent or caretaker of such stool) or head of family may sue and be sued on behalf of the stool or family. An illustrative case will suffice here: in the case of Bukuruwa Stool v Kumawu Stool,[4] Nana Kwame Baadu II, chief of Bukuruwa, representing the Bukuruwa stool sued Nana Otuo Achampong I, representing the Kumawu stool, for declaration of title to a piece of land in Kwahu. The defendant stated in his statement of claim, among others, that the plaintiff is estopped per rem judicatam by virtue of a judgment of the Land Court, Kumasi, dated 23rd February, 1959, in the case Nana Otuo Achampong I, Kumawuhene, for and on behalf of the Kumawu stool versus Nana Yaa Sakaa, Bukuruwahemaa for and on behalf of Bukuruwa stool, and two others. The said suit was for a declaration of title to the same piece of land as in the case under consideration.

It was shown, however, that at the time the 1959 suit was instituted, the Bukuruwa stool was vacant. And that although the queen-mother was served with all the processes in that suit, she was destooled before the suit could be heard. The suit was in the circumstances undefended and a new Bukuruwa chief was not enstooled until 7th September, 1959. It was held that the general principle is that, only the occupant of the stool or the head of the family can sue or be sued in respect of stool or family property. When a stool is vacant, the regent or a person appointed by the council of the stool may sue or be sued.

The principle of law as to who may sue and be sued on behalf of a family is set out clearly in Kwan v Nyieni & Anor[5] and applies mutatis mutandis to a stool. Other exceptions to the customary law rule are set out in Kwan v Nyieni & Anor[6]. The Court added that it was to give effect to that customary law principle that the following rule was added to the old High Court Rules[7]: "the head of a family in accordance with custom, and the occupant of a Stool (or where the Stool is vacant, the Regent or Caretaker of such Stool) may sue and be sued on behalf of or as representing such Family or Stool."

C. The decision in Kwan v Nyieni and family members’ right to protect family property.

No analysis on the customary law rule that states the persons with requisite capacity to sue or defend a suit to protect family or stool property will be complete without a discussion of Kwan v Nyieni. The facts of the case are that, sometime between 1953 and 1954, the members of family of Osei Kojo wanted to remove him as head of family for squandering the family’s property. An arbitration was held and the arbitrators concluded that, Osei Kojo’s removal was wrong and so, he should not be removed. The family was not satisfied with the arbitrators’ decision and so, appointed one Kojo Kwan as another head of the family. The family had six cocoa farms. In April, 1953, Osei Kojo (then still head of the family), together with one female member of the family, mortgaged four of the six farms to Kwesi Nyieni. Kojo Kwan’s family got to know of this in January, 1954, when Nyieni advertised the four farms for sale in exercise of a power of sale under the mortgage. Kojo Kwan, purporting to act as head of the family, sued Osei Kojo and Nyieni, claiming a declaration that the said four farms were his family’s property, among other reliefs. The Land Court, Kumasi, dismissed Kwan’s case on grounds that Kwan was not the head of the family, nor a person authorised by the family to sue. Kwan appealed and he won on appeal.

The Court of Appeal held that, as a general rule, the head of a family as representative of the family, is the proper person to institute a suit for recovery of family land. But there are exceptions to this general rule in certain special circumstances, such as: (i) where family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it; or (ii) where, owing to a division in the family, the head and some of the principal members will not take any steps; or (iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole. The Court of Appeal added that, in any such special circumstances, the courts will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property[8].

Thus it was that after the decision in Kwan v Nyieni, it became established that if for any good reason the head of a family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family, any member of the family may sue on behalf of the family. Kwan v Nyieni, therefore, set the precedent as an exception to the long-held customary law rule that it is only the head of family who can sue for and on behalf of the family.

D: The decision in Hansen v Ankrah I
In March, 1985, an interesting appeal came up for determination before the Supreme Court in the case of Hansen v Ankrah I.[9] The facts of the case were as follows: The Mantse Ankrah family of Accra comprised three branches—the Ankrah, Ayi and Okanta branches. Each branch had a head. H, the first appellant was the head of the Ankrah branch; K, the second appellant, was the head of the Ayi branch and O, the second respondent, was the head of the Okanta branch; while A, the first respondent, was the overall head of the entire family. The family maintained an account at the Ghana Commercial Bank, High Street, Accra which was operated by the parties on the mandate of the family. Any two of them could operate the account. In 1977, an amount of ¢13,968.95 received by the family as compensation for family land compulsorily acquired by the government was paid into that account. However, A paid a further sum of ¢160,547.40 he received in 1979 from the government on behalf of the family into his personal and not the family account. The appellants (H and K) in their capacities as heads of their branches of the family brought an action in the High Court against A and O for an account of their expenditure of the ¢13,969.95, some of which they claimed the respondents had spent on Homowo festivities against their express opposition. The respondents contended in their defence that they had spent the moneys on the Homowo festivities and paid the ¢160,547.40 into A’s personal account in accordance with resolutions passed by the entire family in response to the appellants’ unco-operative attitude to A in his discharge of family responsibilities. The respondents also raised a preliminary objection to the propriety of the action on the ground that they were not accountable at customary law to the appellants in court.

The Supreme Court, by a 3-2 majority decision[10], dismissed the appeal on grounds that a head of family was not accountable in court to the writ of a member of the family. But he was accountable to the family at a family meeting for his stewardship. Then the then Chief Justice, the late Mr. Fred Apaloo, found himself in the minority. His Lordship put forth a spirited dissenting opinion as follows: “The customary rule [that the head of family cannot be sued for accounts] . . . is productive of injustice and provides a potent shield for the breach of fiduciary duties. After all, the law must adapt itself to changing social conditions and those precedents are inapplicable to modern conditions. There is some question whether doing this amounts to judicial legislation. Refusing to follow an obviously unjust precedent cannot rightly be construed as judicial legislation. We have constitutional authority to refuse to be bound by a precedent which injures the innocent, benefits the guilty and puts a premium on blatant breach of fiduciary duty. To do otherwise, would be an exhibition of judicial inertia wholly indefensible in our day and age.” It is submitted that the dissenting opinion of Apaloo, C.J. and Taylor, J.S.C in the Hansen case was more forward-looking and in tune with modern trends of making persons in authority accountable to the people on whose behalf they hold and exercise power. Sadly, the better-reasoned minority opinion lost on the day hence, throwing a cog in the Court’s wheels in its desire to crystalize the exceptions in Kwan v Nyieni.

D. The birth of the Head of Family (Accountability) law[11].

As noted in the preceding paragraph, the Supreme Court failed to seize the opportunity presented by Hansen v Ankrah I to affirm the rights of any member of a family to sue a head of family to account for their stewardship to the members of their family. To put matters right, the PNDC revolutionary government stepped in with a substantive legislation to deal adequately with the situation. Thus, the Head of Family (Accountability) Law was born in 1985.

The law provides that any head of family or any person who is in possession or control of any family property is accountable for such property to the family to which the property belongs[12]. The head of family must also prepare and keep an inventory of all such property.[13] Again, under the law, any member of a family whose head fails to render accounts on family property in their possession can apply to a court for an order to account. Furthermore, a court has jurisdiction to make an order compelling the head of family to render account or file an inventory in respect of all family properties in their possession, control or custody.

It is interesting to observe that the Supreme Court gave its decision in Hansen v Ankrah I on 21 March 1985 and PNDCL 114 was made on 14th June, 1985 and notified in the Gazette on 8th July, 1985. It is fair to presume then, that the law was made pursuant to the unsatisfactory majority decision in Hansen v Ankrah I. The reason appears to be because the minority decision as alluded to earlier, made practical sense. Secondly, it was to give full statutory backing to the Kwan v Nyieni exceptions so as to avoid the atrocious misapplication of the general customary law rule as happened in Hansen v Ankrah I. Indeed, Francois, JSC, a member of the majority in the case, had suggested that, the best way to make any changes in the customary law rules on head of family accountability was by passing a law and not by ‘judicial legislation’. His Lordship stated that, “f the principle of non-accountability of the head before the courts has been accepted by hallowed practice and it now no longer meets the changing circumstances of a developing nation, then the answer is a change by legislation or decree and not pre-emption by judge-made reform. Law reform by judges in areas where the law is well settled and known and families have regulated their affairs by it, should rarely be undertaken.” It appears, therefore, that PNDCL 114 was passed to allay the fears of the Supreme Court and to put paid to all notions that to hold a head of family to account will amount to “judicial legislation.” Such swift action by government to pass law to regulate matters where the Supreme Court (and in modern times, Parliament) has failed is commendable.

Indeed, it has been observed that under the current constitutional and democratic 4^th Republic with a full-fledged Parliament, judgments given by the Supreme Court in which the justices have recommended certain laws to be passed to regulate various aspects of civil life have been largely ignored. Even where the Constitution itself has directed that certain laws must be passed, Parliament has failed to act. Civil society has said nothing. A notable example is Article 22 which provides that Parliament must pass a law to regulate the property rights of spouses upon death or divorce. Twenty nine years after the 4^th Republic was ushered in, the law to regulate the property rights of spouses is yet to be passed. This state of affairs remains a blot on our collective conscience as a Republic.[14]

E. The need for accountability for stool occupants and customary land caretakers.

It is surprising that a law was not made to make occupants of stools also accountable to their subjects in the same way PNDCL 114 was made for and about heads of family accountability. The reason appears to be that the subject-matter of Hansen v Ankrah I being family property, the PNDC Government at the time felt constrained to limit the law to head of family accountability. It is submitted that, if the principle of law as to who may sue and be sued on behalf of a family as held in Kwan v Nyieni & Anor^[15] applies mutatis mutandis to a stool, then a Stool/Skin Occupant & Clan Head (Accountability) Law should have also been passed in 1985. That law would have regulated the actions of such office holders and hold them to account to their subjects. Though this was not done, a veritable opportunity presented itself in 1991 in a case before the Supreme Court.

In Owusu & Ors v Adjei & Ors[16], the Supreme Court held that, the exceptions set forth in Kwan v Nyieni on the accountability of head of family applied equally to a chief. Therefore, it was proper for the Kumawu Youth Association to bring an action against the chief of Kumawu to render accounts on the compensations received from the Forest Reserves in the area. The Court continued that the principle in Kwan v Nyieni providing exceptions to the general rule that the head of family was the proper person to institute suits for recovery of family land was not confined to land. Under customary law, the Court added, wherever those clothed with authority to protect family interests failed to do so but rather formed an unholy alliance or conspiracy to damage the interests of the family, an urgent situation had to be deemed to have arisen allowing for a relaxation of rules and permitting more responsible members of the family to protect the endangered family interests.

The Supreme Court noted further that, since the respondents who should have protected Kumawu stool revenue formed an unholy alliance to enrich themselves at the expense of the state, their conduct which amounted to fraud disabled them from performing their duty in preserving Kumawu stool revenue. And it could hardly be expected that they would take steps on their own volition to refund moneys they had illegally appropriated or rather misappropriated. In the circumstances, it was only the plaintiffs who were the remaining entity capable of championing the rights of the state. Accordingly, the exceptions to the general rule in Kwan v Nyieni applied to clothe them with capacity.

The Court further relied on the rules of court[17] to state that the plaintiffs had to have a common interest, common grievance and common benefit for a representative action on behalf of the ‘Oman’ to be valid. The Court added that the plaintiffs were citizens of Kumawu town and, therefore, had a fundamental traditional role to play in constitutional issues of the state and by virtue of their citizenship, had a stake in all moneys payable on the acquisition of stool land and their proper utilisation. The Supreme Court concluded that, in the circumstances of the case, they were entitled to sue on behalf of the ‘Oman’.[18]

The decision in this case is most interesting for the fact that, though PNDCL 114 is confined to accountability of the head of family, the Supreme Court in Owusu & Ors v Adjei & Ors extended the application of the law to make stool occupiers equally accountable to their subjects. Unfortunately, for reasons that are not readily apparent, the PNDC regime failed to take advantage of the Supreme Court’s decision and pass a Stool/Skin Occupant & Clan Head (Accountability) Law. Considering that Owusu & Ors v Adjei & Ors decision was given in 1991, at the dawn of the Fourth Republic, the PNDC revolutionary regime was, perhaps, more preoccupied with metamorphosing into a political party to enter the new Republic than to be concerned with passing a law to regulate chiefs allegedly fleecing their subjects of stool revenue and other properties.

Needless to say, all the National Democratic Congress and New Patriotic Party governments that have been in power on an eight-year rotational basis from 1992 to date had not been able to pass a law to make stool occupants accountable to their subjects until recently. The reason may not be far-fetched. All governments in this Fourth Republic have made use of chiefs in all their endeavours. Stool and skin occupants, also mostly known as chiefs, are a ready source of government appointees to statutory and para-statal bodies and boards. Some chiefs are ‘political ‘endorsers’ during national general elections. Many are occasional organizers of festivals to remind us of our identity as a people. Yet some are also alleged beneficiaries of gas-guzzling SUVs from governments and they become voices of conscience only when their preferred political parties do not win power. If stool occupants are this ‘beneficial’ to governments both in and out of power, then there is little wonder that making them accountable to their subjects by law has been so long in coming. The activities of chiefs have largely been regulated by customary law, outside the purview of the courts and formal legislation.

F: Stool/skin occupants accountability provisions in the Land Act, 2020: A new dawn.

Just when all hope was almost lost regarding the passage of a Stool/Skin Occupant & Clan Head (Accountability) Law, the Land Act was passed with provisions that made stool/skin occupants accountable to their subjects. The Land Act provides that, “a chief, tendana, clan head, family head or any other authority in charge of the management of stool or skin, or clan or family land, is a fiduciary charged with the obligation to discharge the management function for the benefit of the stool or skin, clan or family concerned and is accountable as a fiduciary.”[19] The Act also makes PNDCL 114 applicable to stool/skin occupants and clan heads as it applies to family heads, with the necessary modifications. Additionally, sanctions are imposed on persons who fail to comply with the provisions set forth in Section 13 (2), including fines (5,000 to 10,000 penalty units) and terms of imprisonment (5 to 10 years).

G. Conclusion
The 7^th Parliament needs to be commended for finally passing a law to make stool/skin and clan heads accountable. A full legislation on the subject, it is respectfully submitted, would have been ideal. In the light of Section 13 of the Land Act, it is highly recommended that the Rules of Court Committee amend Order 4 rule 9 of C.I 47[20] forthwith (if it has not been done already) to bring the Rules in line with the provisions of the Land Act.

FOOTNOTES
[1] The Land Act, 2020 (Act 1036) came into force on 23rd December, 2020.

[2] For the writer’s earlier discussion on the subject, read her article: https://fsboateng.com/2020/11/16/the-property-rights-of-spouses-in-ghana-why-the-eighth-parliament-should-bite-the-bullet-and-pass-a-bill-to-regulate-it/

[3] See: Section 13 of the Land Act. Where ever stool occupant is used in this article, it includes skin occupants and clan heads as well unless all three are distinctly mentioned.

[4] [1962] 1 GLR 353
[5] [1959] G.L.R. 67, C.A. See also: Ofuman Stool v Nchiraa and Branam Stools [1957] 2 W.A.L.R. 229; Ofori Atta II and Ors v Boateng [1957] 3 W.A.L.R. 38

[6] Ibid at 72-73.
[7] Order 16, rule 8 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

[8] [1959] G.L.R. 67 at 72-73
[9] [1987-88] 1 GLR 639 SC.
[10] By Sowah, J.S.C, Francois and Mensah-Boison, JJ.A concurring and Apaloo, C.J and Taylor, J.S.C dissenting. The lawyers in the case were Mr. Tsatsu Tsikata for the appellants and the late Mr. S.A.X. Tsegah for the respondents.

[11] The full title is Head of Family (Accountability) Law, 1985 (PNDCL 114)

[12] Section 1 (1) of PNDCL 114
[13] Section 1 (2) of PNCL 114
[14] See: note 2 (supra)
[15] [1959] G.L.R. 67, C.A. See also: Ofuman Stool v Nchiraa and Branam Stools [1957] 2 W.A.L.R. 229; Ofori Atta II and Ors v Boateng [1957] 3 W.A.L.R. 38

[16] [1991] 2 GLR 493, SC. The decision of Francois, Wuaku, Osei-Hwere and Aikins, JJSC and Adjabeng, JA. Interesting, Francois, JSC who was a member of the majority decision in Hansen v Ankrah I presided over the Supreme Court panel in the Owusu & Ors case and gave a different opinion. Most importantly, no reference was made to Hansen v Ankrah I at all!

[17] Order 16, r 9 of the High Court (Civil Procedure) Rules, 1954 (LN 140A)

[18] ‘Oman’ is and Akan word that means the State.

[19] Section 13(2) of the Land Act.
[20] The High Court (Civil Procedure) Rules, 2004