Registered Trustees of Afrikania Mission v Major Quarshie (RTD) (J4/36/2014)[2015] GHASC 116 (2 December 2015)

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA -AD 2015

CIVIL APPEAL NO. J4/36/2014

2^ND DECEMBER,2015

THE REGISTERED TRUSTEES OF

AFRIKANIA MISSION … PLAINTIFF/RESPONDENT/APPELLANT

VRS

MAJOR QUARSHIE (RTD) … DEFENDANT/APPELLANT/RESPONDENT

(SUBST. BY MRS. MARY QUARSHIE)

J U D G M E N T

BENIN, JSC:-

This is an appeal against the judgment of the Court of Appeal dated 16^th May 2013, wherein it had set aside the judgment of the High Court dated 11^th February 2011. It is one of those cases which have their roots from the days of the Armed Forces Revolutionary Council whereby a number of private assets were confiscated to the State. Property number B2 situate on Senchie Street, Airport Residential Area belonged to the defendant/appellant/respondent herein Major, later Colonel Quarshie, referred to hereafter as the defendant; this property was confiscated to the State by virtue of the Confiscated Assets Committee Decree, 1979, (AFRCD 25). Following the confiscation the Government of Ghana allocated the property in dispute to the Africania Mission, plaintiff/respondent /appellant herein, referred to hereafter as the plaintiff. The plaintiff moved into possession sometime in 1987. On the eve of his departure from office, former President His Excellency John Agyekum Kufuor did issue what appeared to be a deconfiscation order in favour of the defendant in respect of property situate at Labone, numbered H/NO. 100A 4^TH Norla Street, Accra. Apparently that was not the property intended by the deconfiscation order but the present one in dispute. So the Attorney-General acting on behalf of the State issued a corrective order, if I may so put it. Acting on the strength of that, the defendant took steps to recover the property from the plaintiff. It was on account of these moves by the defendant that compelled the plaintiff to issue the writ of summons at the High Court seeking these reliefs:

(a) Declaration of title to all that piece or parcel of land known as Plot No. B containing area of 0.32 acre situate at Airport Residential Area within the city of Accra in the Greater-Accra region of the Republic of Ghana and bounded on the north-east by Revenue Office, on the south-east by un-numbered plot and on the north-west by proposed road.

(b) Recovery of possession.

(c) Perpetual injunction restraining the defendant his assigns, servants, agents and whatever from preventing the plaintiff’s peaceful enjoyment of the disputed property.

(d) Costs.

The plaintiff pleaded that it was allocated this property for use as its headquarters by the Government of Ghana on 22^nd August 1987. They moved into occupation per its leader Osofo Komfo Damuah who lived and conducted the church business from these premises. The said church leader lived there until his demise in 1992. The plaintiff decided to pull down the existing structure and erect another one befitting its status. Whilst the preparations were going on, the defendant entered the place and caused some physical damage to properties on the site and disconnected electricity supply to the place. It was after all attempts at getting the defendant to desist from his acts of trespass had fallen on deaf ears that the plaintiff instituted this action at the High Court.

In his statement of defence, the defendant pleaded that he lawfully acquired the plot of land in 1977 from the Government of Ghana. He took possession of the land and built a dwelling house as well as a bakery on it. He averred that by AFRCD 25 the then ruling government confiscated a number of properties, including the instant, to the State. Then PNDCL 325 was published which prohibited even the courts from inquiring into the confiscated assets. In 2008 the government of the day magnanimously deconfiscated some of these assets and returned them to their owners. He benefited from that benevolence of the government. He accordingly counterclaimed for these reliefs:

a. Declaration of title to plot no 2 Senchie Street Airport Residential Area, Accra.

b. Restitution of his demolished three bedroom boys’ quarters and a bakery building up to roofing level.

c. Perpetual injunction against the plaintiff, his agents, assigns, privies and all who claim title through him in any way interfering with the peaceful enjoyment of defendant’s released deconfiscated property to him.

d. General damages for the unnecessary trouble of resorting to the police and for preventing him from enjoying his bona fide property and for trespass.

e. Recovery of possession.

f. Costs.

After a hearing, the trial High Court upheld the plaintiff’s claim and dismissed the counterclaim. The defendant appealed to the Court of Appeal which upheld the appeal by a majority decision relying, inter alia, on sections 3 and 4 of PNDCL 325. The plaintiff being dissatisfied with the decision of the Court of Appeal has appealed to this court on these grounds:

a. The Court of Appeal erred when it concluded that the defendant/appellant/respondent’s title has not been extinguished by AFRCD 25 hence his title is superior to the plaintiff/respondent/appellant.

b. The Court of Appeal erred when it concluded that PNDCL 325 has resuscitated the title of defendant/appellant/respondent awarding judgment in favour of the defendant/appellant/respondent.

c. The Court of Appeal erred when it concluded that the Attorney-General could correct an act of the President to deconfiscate an asset confiscated by AFRCD 25 contrary to express provisions of the Transitional Provisions of the 1992 Constitution.

d. The Court of Appeal erred in the interpretation, application, import or effect of the decision in CHRAJ v. ATTORNEY-GENERAL (1998-99) SCGLR 871.

e. The Court of Appeal erred when it relied on PNDCL 325 to award judgment in favour of defendant/appellant/respondent contrary to the express provisions of section 35(2) of the Transitional Provisions of the 1992 Constitution.

f. The Court of Appeal erred when it ignored the equitable and accrued interest of the plaintiff/respondent/appellant in House No. B2 Senchie Street, Airport Residential Area and awarded damages against the former for pulling down a structure in good faith.

This appeal turns on pure questions of law. The facts are not in dispute. The defendant was the owner of the property in dispute having acquired the plot of land and erected the structures thereon. It is also not in dispute that by AFRCD 25 the government of the Armed Forces Revolutionary Council confiscated this property to the State. That situation remained without any room for deconfiscation until the passage into law of the Confiscated Assets (Removal of Doubt) Law, 1993, (P.N.D.C.L 325), just on the eve of the Fourth Republic. Sections 3 and 4 are of relevance and they provide:

3. Notwithstanding the provisions of the Confiscated Assets Committee Decree, 1979, (AFRCD 25) any confiscated assets held by the Confiscated Assets Committee shall be released by the said committee to such a person, organisation or body as the Provisional National Defence Council may in writing direct.

4. Notwithstanding the other provisions of this law or any other law the Provisional National Defence Council may in writing release any assets confiscated to the state to such person as the Council may determine.

By these provisions, the PNDC had empowered itself to release any confiscated assets as it deemed fit. However, the Constitution 1992 extended the party empowered by sections 3 and 4 of PNDCL 325, supra to a President elected into office under the Constitution. Reference is hereby made to section 29(3) of the Transitional Provisions which states that:

A reference to the Provisional National Defence Council in any enactment in existence immediately before the coming into force of this Constitution, where the reference relates to an executive function of the Council shall be construed as a reference to the President.

It was on the strength of these laws, namely sections 3 and 4 of PNDCL 325 and Section 29(3) of the Transitional Provisions of the Constitution, that former President J. A. Kufuor released the defendant’s property to him. The defendant tendered the deed of transfer signed by the former President to him. That is exhibit 6 at page 212 to page 215 of the record of proceedings. The entire case centres on this exhibit so for its full force and effect it has become necessary to set it out in extenso. The deed of transfer was conveyed to the defendant by a letter from the office of the Attorney-General dated 6^th January 2009 signed by Mr. V.C.R.A.C. Crabbe, Commissioner, Statute Law Revision for the Attorney-General. The deed reads:

WHEREAS by section 1 subsection 1(a) of the Confiscated Assets (Removal of Doubt) Law, 1993 (P.N.D.C. L 325), the immovable properties specified in part 1 of the schedule to the Law, are deemed to have been confiscated to the State from the date of the announcement or publication of from the date they were taken into possession by the Confiscated Assets Committee and shall remain, subject to section 3 of the Law, confiscated to the State.

AND WHEREAS H/No. 100A 4^th Norla Street, Labone, Accra, belonging to REV. COL. K.A. QUASHIE is specified in Part 1 of the schedule to the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325) as having been confiscated to the State.

AND WHEREAS by section 3 of the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325), any confiscated assets held by the Confiscated Assets Committee shall be released by the Committee to that person, organization or body as the Provisional National Defence Council may in writing direct.

AND WHEREAS by section 4 of the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325), the Provisional National Defence Council may in writing release any assets confiscated to the State to the person concerned as the Council may determine.

AND WHEREAS by subsection (3) of section 29 of the Transitional Provisions of the Constitution, 1992 a reference to the Provisional National Defence Council in an enactment in existence immediately before the coming into force of the Constitution, where the reference relates to an executive function of the Council shall be construed as a reference to the President.

NOW THEREFORE, pursuant to the above mentioned legislation, the President on the recommendations of the Confiscated Assets Committee, the Restoration of Assets Committee and the Attorney-General, and in the spirit of national reconciliation, hereby deconfiscates and transfers any interest the Government of Ghana has acquired in H/No. 100A 4^th Norla Street, Labone, to REV. COL K.A. QUASHIE.

For the avoidance of doubt, Government of Ghana shall where the context admits or requires, include any sub division of Government or statutory body wholly owned by Government.

DATED THIS 5^TH DAY OF JANUARY 2009

SIGNED”

This deed of transfer was in respect of property situate at Labone, which had nothing to do with the property in dispute. The defendant therefore addressed a letter to the Attorney-General to correct the description of the property particularised in exhibit 6. In response, the Attorney-General in a letter dated 19^th June 2009, accepted the defendant’s request and effected the change. That letter was put in evidence as exhibit 6A, and it reads:

DEED OF TRANSFER

I am directed by the Attorney-General

(a) To acknowledge the receipt of your letter of the 18^th June 2009, and

(b) To inform you

(i) That the reference to H/No 100A 4^th Norla Street, Labone, Accra in the Deed of Transfer is a wrong reference.

(ii) That the correct reference should have been to H/No. 2, Senchi Street, Airport Accra as indicated in the Schedule to the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).

(c) That this letter serves as an addendum to the Deed of Transfer intended to correct the mistake with reference to the correct property deconfiscated to you, by substituting for the expression, “H/No. 100A 4^th Norla Street, Labone Accra” the expression, “H/No. 2 Senchi Street, Airport, Accra” and

(d) That this letter and the Deed of Transfer shall be read together for the benefit of your property H/No. 2 Senchi Street, Airport, Accra.

This letter was once again signed by Mr V.C.R.A.C. Crabbe for the Attorney-General. The validity of exhibit 6A is derived from the last sentence or paragraph of exhibit 6. Therefore all things being normal the President had authorized the release of the property in dispute to the defendant. The majority of the Court of Appeal relied on the provisions cited in exhibit 6, namely sections 3 and 4 of PNDCL 325 and section 29(3) of the Transitional Provisions of the Constitution in upholding the defendant’s counterclaim. The court also made reference to some decided cases, but before going into any further discussions it is necessary to look at the applicable law.

Counsel for the plaintiff argued that PNDCL 325 had been repealed as at 2009 when the President purported to apply it to release the property to the defendant. Counsel for the defendant said his research has not disclosed any such repealing statute. Such an enactment indeed exists. The repealing law is Statute Law Revision Act, 1997 (Act 543). Under Part 1 thereof, certain enactments were repealed and listed as number 38 is PNDCL 325. This enactment was gazetted on 20^th February 1998. As to how Act 543 escaped the attention of government advisers is hard to understand. But the result is that the President acted under a non-existing law thereby undermining all the goodwill and good intention with which he had acted.

Following the repeal of PNDCL 325 the status quo was restored, meaning AFRCD 25 fully applied except in cases where the Commission on Human Rights and Administrative Justice could act under section 35(2) of the Transitional Provisions of the Constitution.

In the result we hold that the Deed of Transfer –exhibit 6- was invalid having been effected under a non-existing legislation and so could not be used to transfer the property in dispute to the defendant. Grounds a, b, c and e of the grounds of appeal succeed. This is sufficient to dispose of this appeal. The position then is that the transfer from the Government of Ghana to the plaintiff remains intact. We affirm the minority opinion whilst we disaffirm the majority opinion of the Court of Appeal. We hereby restore the judgment of the High Court. The appeal succeeds accordingly.

(SGD) A. A. BENIN