Sir John’s will, state lands and the law
By Jerry John Gyasi Mensah
Public uproar greeted the publication of a will purported to be that of Kwodwo Owusu Afriyie, aka Sir John, the Chief Executive Officer (CEO) of the Forestry Commission until his demise.
The shock and public uproar as well as extensive discussion in the public was based on the fact that some portions of the Achimota Forest, which are public lands and Ramsar sites at Sakomono, a protected wetland, were allegedly devised to his heirs “forever”, a very popular catch phrase in Ghana now.
I am not in any way placing judgement on the period within which the said properties were acquired even if there are rumours out there that they were acquired during his tenure as a public officer.
My focus is to look at the legality of public lands becoming the property of individuals and being given away in wills ‘forever’.
I am of the view that as a country, we have to take a critical look at the assets declaration regime as stipulated under Article 286 of the 1992 constitution for public officers to ensure that no one amasses illegitimate wealth at the expense of the public.
This will be another topic for discussion later. For now let me concentrate on wills and establish why the Achimota and Ramsar sites portions of the purported will of Sir John cannot be recognised in law.
Self –acquired property
Wills are documents written by the testator himself or under his directions which seeks to determine how his self acquired properties should be devolved.
It is trite that one cannot give what he or she does not have hence the legal principle of nemo dat non quad habet (you cannot give what you not have) will be applicable strictly.
This principle in law is very likely to be applicable in some paragraphs of the will as such properties within the proper context of the law cannot be counted as self acquired properties of Sir John especially when there is no public record of any devesting from the state to him.
In this vain, some sections of the purported will, especially the lands at Achimota Forest and the Ramsar sites may suffer the fate of nemo dat non quad habit rule as these properties cannot be termed as self acquired properties of the late Sir John in its strictest sense.
The properties mentioned above are properties of the state which cannot be devolved by an individual to anyone in his personal capacity.
It is on record that the Achimota Forest was compulsorily acquired by the colonial government as far back in 1927. There is no evidence on record that the state has disposed any interest in any portion of that land to any individual as at the time of Sir John’s demise.
The state is therefore the owner and has the sole right to devise the land not an individual irrespective of the fact that he was the CEO of the forestry commission.
It must also be noted that the constitution under article 257 vests all public lands in the President of the Republic in trust for the people of Ghana. The President cannot under any circumstances transfer the ownership of any state land to his heirs let alone a caretaker who only sees to its management.
There are legion of legal authorities to affirm the position of the law that one cannot give what he or he does not have as you cannot put something on nothing and expect it to stand.
In the case of Kofi Kyere (Deceased) v Afia Penya and Others, the Court of Appeal was emphatic when it annulled portions of the Will of the testator on grounds that a house which he sought to devise was not his self-acquired property rather a family property.
Again, in Madam Nafisa Iddrisu v. Norga Grumah, the Supreme Court reversed a sale of land to the defendant on the grounds of nemo dat quod non habet, since on compulsory acquisition, the appellant received full compensation from the State, the unused portion remained the property of the State.
It is therefore to be established that, the portions of land at the Achimota Forest and the Ramsar Sites in Sakomono are state lands.
The testator (Sir John deceased) had no legal capacity to have devised them to his heirs.
In any case even if they were to be valid, legal technicalities would have again prevented the beneficiaries from laying claim to those properties as they were not directly in the name of the testator (Sir John deceased) but rather in the name of some companies.
Companies are separate legal entities, distinct from their owner, to the effect that members of the company have no direct proprietary rights over the assets of the company as held in Salomon v. Salomon.
The writer is a law student
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