A Critical Review by Abdul-Malik Kweku Baako, New York, May 25, 2012
Controversy is raging over the recent 6-3 Supreme Court verdict on the "Jake Bungalow Saga" and the subsequent Cabinet decision not to sell the land "in dispute" to Mr. Jake Obetsebi-Lamptey.
As usual divergent views are being articulated passionately across the political and social divide as to the merits or otherwise of the two decisions; namely the May 23rd Supreme Court Jugdment which ruled in favour of the Attorney-General and Jake Obetsebi-Lamptey as the first and second defendants respectively on one hand and the May 24th Cabinet Decision not to respect or allow the sale of that particular state asset to Mr Obetsebi-Lamptey on the other hand.
Issues of morality or immorality; respect for rule of law and sanctity of contracts/leases entered into by the Lands Commission; the principles of equity, fairness and non-discrimination; malicious attacks on the integrity of judges and the judiciary as well as a streak of politics of populism and ethnocentrism tailored at playing on the keyboards of people`s emotions and sentiments for partisan electoral capital have combined to create a potentially ``volatile`` mix on our airwaves and print media.
Indeed, it does appear hypocrisy has virtually become a virtue in the Ghanaian body-politic with so many of our politicians and the ruling class suffering from the "disease of selective amnesia".
For those who are in support of the Cabinet's decision which is based on morality or the perceived immoral nature of Jake`s acquisition of the land "in dispute", this author has two questions for their perusal. First: are they aware that by the time the parties went to court the transaction was a fait accompli in that the contract between the Lands Commission and Jake had been completed and the lease signed and the land paid for and receipt given for the transaction?
Where two parties enter into a contract, can one party unilaterally cancel the contract? In law, the answer is in the negative. In politics, the cabinet appears to say yes! Secondly, where was morality when duty post accommodation facilities were sold to MPs of the first and second Parliaments of the 4th Republic?
I suppose the future accommodation needs of future MPs had been satisfied? Where was morality when state assets placed on divestiture and government lands were sold to PNDC secretaries, NDC ministers and party functionaries and their close relatives/associates /spouses during the 19 years of uninterrupted PNDC/NDC (1 & 2) governments? Isn't it obvious that the cabinet`s decision seeks to pre-empt the legal option of judicial review which the plaintiffs, who are incidentally and paradoxically members of the incumbent government, had indicated they would pursue in the wake of the Supreme Court Judgement? Is this a reflection of the cabinet`s tacit admission of lack of faith in the sustainability of the case of the plaintiffs in a court of law and not in the court of public opinion driven by emotions and malice?
The attacks on the judges who “voted” in the majority relative to the critical issue of the constitutional requirement that public lands should be put to use “in the public interest”, are not only misplaced but also uneducated and infantile. In summary, the majority judgement held that three blocks of flats of at least four storeys which Jake had been directed by the Lands Commission as part of the terms of the transaction/lease to put up, were of better public interest than one house.
The plaintiffs` case was that the land should be retained for the original purpose for which it was acquired, i.e. housing public officials which meant that it should be retained for the occupation of one family. The minority took the view that leaving the land in its original form of one house for occupation of one family will serve public interest or public purpose better. Clearly, the majority judgement was in line with the letter and spirit of the “Accra Re-development Scheme” put in place in 1999 by the NDC(2) government to the effect that old dilapidated buildings occupying large plots of state/ government land should be demolished and replaced with more buildings capable of housing more families.
It ought to be emphasized that the parties in the litigation (i.e. the plaintiffs and the defendants) agreed that the sale of the land to Jake Obetsebi-Lamptey was in line with the "Accra Re-development Scheme". And the latter Scheme as already stated, was meant to demolish old buildings and replace them with as many buildings as the plots can occupy hence when the plaintiffs and the minority judgement advocated the continuity or retention of the original policy or purpose of acquiring the land to house public officials did that position or advocacy not defeat the policy of or rationale behind the "Accra Re-development Scheme" put in place by the NDC(2) Administration in 1999; a Scheme which has since "given birth" to" a tall list"of beneficiaries including politicians and former government officials across the political divide, businessmen, diplomatic missions, foreign companies, traditional rulers, public corporations/agencies and Non-Governmental Organisations(NGOs).
It is also a public record that some of the proceeds/revenue accruing from the sale of lands/buildings have been applied to construct new accommodation facilities to house public and civil servants as well as government officials and other political appointees. These are the hard facts which unbridled partisanship, ugly politicization and "selective amnesia" have combined to relegate into near obscurity.
The preceding opinion and the summary which follows have been informed by a critical review of both the majority and minority judgements delivered on May 23rd, 2012 and the subsequent Cabinet Decision of May 24, 2012 and the reactions for and against all three( i.e. two judgements and cabinet decision). It is more or less a layman`s or if you like a “pocket or street lawyer's” perspective on the issues arising from the “twin palaver” of the May 23rd Supreme Court Judgement and the May 24th Cabinet Decision. Of course, this perspective has also benefited from useful information and education courtesy of some trained legal minds and land economists and experts who wish to remain anonymous.
Published below for the perusal of our numerous readers and “in the public interest” is the summary of the critical review of the issues arising from the “twin palaver” under reference. Please read on and stay tuned for more......
SUPREME COURT RULING ON ``JAKE BUNGALOW SAGA`` SIMPLIFIED
*1. Majority of six to three judges ruled against the plaintiffs
*2. The majority judges were Brobbey, Adenyira, Ansah, Dotse, Rose Owusu and Baffoe Bonnie
*3. The minority were Atugubah, Sofia Akufo and Akoto Bamfo
*4. All the 9 judges were unanimous that the plaintiffs failed to prove their case based on allegations of corruption, cronyism, arbitrariness, capriciousness and conflict of interest. All 9 judges held that this aspect of the plaintiffs' case was based on mere unsubstantiated allegations which did not amount to proof in law. So that aspect of the plaintiffs' case was unanimously dismissed.
*5. The judges disagreed on the issues relating to abuse of discretionary power vested in public officers.
*6. The majority ruled that the plaintiffs were not able to prove that the Lands Commission or the public officials who granted the land to Jake exercised their discretion wrongly.
*7. The minority ruled that the public officials who granted the land to Jake exercised their discretion wrongly and further that there was the need to obtain cabinet approval but that was not done. For these reasons, the sale was void.
*8. The reasons why the minority ruled that the discretion was exercised wrongly were that the land was originally acquired to build bungalows for occupation by public servants. The Lands Commission directed that instead of one building for the use of one family, Jake was to “develop the property into three blocks of flats of at least four storeys.”
*9. The 1992 Constitution required that public lands should be put to use “in the public interest” or for “public interest.”
*10. The majority were of the view that the sale of the land was in furtherance of what is called “Accra Redevelopment Scheme” which was put in place in 1999 by the NDC Government. The essence of the Scheme was that old dilapidated buildings occupying large plots of land should be demolished and replaced with more buildings capable of housing more families. To implement that Scheme, an Oversight Committee was set up to decide what should be done with each piece of land affected by the scheme. That Committee decided that the land should be developed into a three blocks of flats of at least four storeys. The majority held that three blocks of flats were of better public interest than one house. The plaintiffs' case was that the land should be retained for the original purpose for which it was acquired, i.e. for housing public officers which meant that it should be retained for the occupation of one family.
*11. The exercise of discretion was based on whether or not the land would be better used "in the public interest" or will be better used for "the purpose of the public." The majority took the view that three blocks of flats would serve the public better. The minority took the view that leaving it in its original purpose of one house for occupation of one family will serve public interest or public purpose better.
*12. On the issue of cabinet approval, the majority ruled that the plaintiffs were not able to establish that there was any rule on the need for cabinet approval to grant such lands. The minority insisted that there was the need for cabinet approval. For this, the minority relied on exhibit AG1 which the majority debunked as no authority for the proposition that cabinet approval was required to grant such lands.
*THE IMPLICATIONS OF THE CABINET DECISION TO CANCEL THE SALE OR LEASE TO JAKE OUTLINED:
*a. The established rule is that the 1992 Constitution provides that in civil matters, the State is to be treated on the same basis as an individual.
*b. The whole transaction was a contract of sale or contract of lease between The President and Jake.
*c. The contract had been completed and the lease signed and the land paid for and receipt given for the transaction. By the time the parties came to court, the transaction was a fait accompli.
*d. The question is this: Where two parties enter into a contract, can one party unilaterally cancel the contract? In law, the answer is in the negative. In politics, it lies in the corridors of the Cabinet.
*e. It is apparently the view of Cabinet that Jake's acquisition of the bungalow in dispute was immoral and unbecoming of an incumbent or former political appointee, hence the retroactive Cabinet decision to annul a completed transaction in the face of a judgement pronounced by the highest court of the land. How is this re-echoing of the infamous “no court no court” refrain of yesteryears in the best interest of the government? A classic case of politicians playing on the keyboards of people`s emotions to appease foot soldiers and seek short-term electoral capital at the expense of judicial integrity?
*f. Are we living in a state of the rule of law? Is this the manifestation of the rule of law that the government professes that it believes in?
*g. How will the international community take this? Is this the best way to trumpet to the international community that Ghana is the best haven for attracting investment? If an international company has a case with the Ghana Government and the court rules against the Government, what is the guarantee that the cabinet will not meet the next moment to annul the court decision?
*h. The 1992 Constitution provides that
“The judicial power of Ghana shall be vested in the Judiciary; accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
*i. In the light of this provision, what is the effect of the decision on the independence of the Judiciary? Is the cabinet decision calculated to cow the judges into giving judgments to the government in all cases involving the government or is it calculated to antagonize the judges? Has anybody within the ruling class thought of the implications of the cabinet decision?
Watch out for more critical analysis and reviews of the unfolding saga.