When Judges Emphasise Diferent Facts Of A Case
The majority decision in the case of Samuel Okudzeto Ablakwa & Anor v Attorney General and Jake Okanta Obetsebi Lamptey (“Jake Bungalow Case”) raises intriguing questions about transparency and accountability in the management of state lands.
In this case, the Supreme Court by a 6-3 majority decision held that the Minister of Water Resources, Works and Housing, and the Lands Commission did not abuse their powers relating to the management of public lands, when the Lands Commission “at the request” of the Minister leased a state bungalow located at Ridge, Accra to Hon. Jake Okanta Obetsebi Lamptey. (Hereafter called “Jake”)
The majority decision has attracted both lay and professional commentary (by lawyers). As should be expected, Ghanaians are divided over the soundness of the majority decision. Many feel that the decision chips at the foundation of national efforts to clean up our public administration, and to rid it of its documented and incessant abuse of power by politicians and public officials.
Indeed, our country has a reprehensible historical record of politicians and public officials- as evidenced, inter alia, by countless commissions of inquiry reports – breaching public trust and engaging in practices subversive of our national development efforts.
Those who take the opposite view opine that the majority decision serves unwaveringly the rule of law, and provides safeguards against reckless reputational damage to politicians and public officials. That in any case, it was the unsubstantiated allegations of the plaintiffs that furnished the basis for the Supreme Court’s majority decision.
I must admit that a careful examination of the majority and minority opinions demonstrates that these disparate reactions are not bereft of substance. Yet upon a careful examination of both the majority and minority opinions, it appears to me the majority decision is unsound, the reasoning unpersuasive, and the facts and inferences relied upon in the majority opinion cannot stand on the totality of the evidence appearing in both the majority and minority opinions.
Chances are that you have heard or read about the decision, and you, like many Ghanaians, have been wondering what the whole case was all about. Shorn of the complexity of the reliefs the plaintiffs were seeking before the Supreme Court, the case presented quite a simple issue for our apex court to decide.
In 2008 the Minister for Water Resources, Works and Housing in the Kufuor Administration, in what looked like a protocol allocation, requested or directed the Lands Commission, which has the constitutional duty to manage public lands, to grant Bungalow No. 02, a public property located at Ridge, Accra, to Jake, and the Lands Commission complied with that directive, did the Minister and the Lands Commission abuse their discretionary powers concerning the management of public lands?
The majority opinion of the Supreme Court delivered by Brobbey JSC, joined in by Sophia Adinyira, Rose Owusu, Paul Baffoe-Bonne, Julius Ansah, and Vida Akoto-Bamfo JJSC, with a concurring opinion by Jones Dotse JSC, answered this question in the negative.
In contrast, William Atuguba JSC joined in by Sophia Akuffo and Sophia Adinyira JJSC, had no doubt in their minds this conduct constituted an abuse of discretionary powers. In this article, I do not seek to dissect the majority and minority opinions. What I seek to do is to highlight aspects of the majority opinion I consider problematic by focusing, in particular, on one issue emanating from the Court’s judgment that as a practising lawyer and legal academic I think is a constant irritant to the relative rationality of law. That is, how scientific is the process that judges use to arrive at the “facts” to support their opinions? A scrutiny of many controversial decisions of our Supreme Court in recent times shows that judges’ treatment of the “facts” of a case has a disproportionate influence on the outcomes or the kind of justification they are able to provide for their conclusions.
Facts of the Jake Bungalow Case
The disputed property, Bungalow No.02, located at Mungo St., Ridge, Accra, was state/public property that for a long time had been used to provide accommodation for public officials. In 2008 the Lands Commission, acting on behalf of the President of Ghana in whom all public lands are vested in trust for the people of Ghana, leased this bungalow to Jake.
Before the grant of the lease to Jake, he had occupied the bungalow as his official residence during his time as the Chief of Staff in the Kufuor Government after the bungalow had been renovated at considerable cost to the state. The Lands Commission had leased the bungalow to Jake “at the request of the Minister of Water Resources, Works and Housing”.
Specifically, Jake’s allocation letter dated 2nd June 2008 stated, inter alia, that: “The Lands Commission at the request of the Minister of Water Resources, Works and Housing has decided to offer you plot No. 02, St. Mungo St., Ridge Residential Area, edged pink on the attached plan and enclosing an area 1.06 acres at a price of three hundred and ninety thousand (GH) cedis (GH 390,000.00) for redevelopment… The plot shall be used for the development of a two storey duplex or detached houses… [for a] 50-year renewable lease on terms and conditions usually embodied in leases in government land for residential purposes…”
Reliefs sought by the Plaintiffs
Based on the undisputed facts above and other allegations, the plaintiffs started an action in the Supreme Court against the Attorney-General as 1st Defendant (Hon. Jake Okanta Obetsebi Lamptey later joined the suit as 2nd Defendant) seeking the following reliefs:
- A declaration that by virtue of Articles 20 (5), 23, 257, 258, 265, 284,and 296 of the Constitution of the Republic of Ghana,1992, the Minister of Water Resources, Works and Housing in the previous Government of His Excellency, President J.A Kufuor, did not have the power to direct the sale, disposal or transfer of any Government or public lands to the 2nd Defendant or any other person or body under any circumstances whatsoever, and that any such direction for disposal, sale or transfer to the 2nd Defendant was unconstitutional and illegal;
- A declaration that by virtue of Articles 20 (5), 20 (6), 23, 257, 265, 284, and 296 of the Constitution of the Republic of Ghana, 1992, the Government of Ghana is obliged to retain and continue to use in the public interest the property compulsorily acquired for public purpose the parcel of land… on which is situated… Bungalow No. 02, located at St. Mungo St., Ridge, Accra;
- A declaration that the purported sale of the said Government Bungalow to one of its high ranking public officials, the 2nd Defendant, was in utter contravention of Article 20 (5), 23, 257, 258, 265, 284, and 296 of the Constitution of the Republic of Ghana, and the purported direction of the Minister of Water Resources, Works and Housing in the previous Government of His Excellency, President J.A Kufuor, for the disposal, sale or outright transfer of the said property in dispute to the 2nd Defendant smacks of cronyism, and same is arbitrary, capricious, discriminatory, and a gross abuse of the discretionary power vested in a public officer under the 1992 Constitution;
- A declaration that the publication by the Lands Commission and the Land Title Registration Office at page 18 of the “Ghanaian Times” published on 22/11/2008 in respect of Notice of Application for the Registration” by the 2nd Defendant of the parcel of land designated as …Bungalow No.02, located at St Mungo St. Ridge, Accra, a step taken by the Chief Registrar of the Land Title Registration Office to grant to the 2nd Defendant a land certificate in relation to the said property so as to effectuate the said sale of the said Government property to him, was in utter contravention of Article 20 (5), 23, 257, 258, 265, 284, and 296 of the Constitution of the Republic of Ghana,1992, and thus unconstitutional and void and the same must be struck out as such;
- An order of perpetual injunction restraining the Lands Commission and the Chief Registrar of the Land Title Registration Office, their workers and agents from perfecting the registration of the parcel of land designated as… Bungalow No.02, located at St. Mungo St., Ridge, Accra, in the name of the 2nd Defendant.”
The reliefs sought by the plaintiffs appear extremely packed and complex. Many distinct remedies underpinned by different and independent constitutional provisions have been lumped together, and the legalese within which the reliefs have been couched make it necessary to unpack and simplify the real substance of the remedies the plaintiffs were seeking. Simply put, the plaintiffs were asking the Supreme Court to declare as unconstitutional and illegal the lease granted by the Lands Commission to Jake and other persons or bodies in similar circumstances, and to halt all ongoing processes at the Land Title Registration Office to perfect Jake’s tile in Bungalow No.02. The grounds for the reliefs were that:
- In requesting or directing the Lands Commission to grant the lease to Jake, the Minister of Water Resources, Works and Housing contravened:
- Article 258 which empowered the Minister to give, subject to the approval of the President, only written general directions on matters of policy in respect of the functions of the Lands Commission;
- Article 265 which stated, inter alia, that the Lands Commission shall not be subject to the direction or control of any person or authority in the performance of its functions;
- Article 23 which required administrative bodies and officials to act fairly and reasonably, and in compliance with the requirements of the law;
- Article 284 which asked public officers to avoid conflict of interest or situations likely to lead to conflict of interest; and
- Article 296, in the sense that, the ministerial request or directive to the Lands Commission was arbitrary, discriminatory and capricious, smacked of cronyism, and did not follow due process.
- According to the plaintiffs, the Lands Commission was also at fault because in granting the lease to Jake at the request of the Minister, it violated:
- Article 20 (5) as the lease which was for the purpose of building “ a duplex or a two-story building” did not serve the “public interest” nor met the requirements of a “public purpose” as demanded by Article 20 (5) for use of public lands;
- Article 23 as it failed to act fairly and reasonably, and in compliance with the requirements of law;
- Article 296 as it acted in a capricious or arbitrary manner without following the due process of law.
- Owing to these alleged constitutional infractions, it was the case of the plaintiffs that the lease granted to Jake was unlawful and should be declared as such by the Supreme Court, and all ongoing processes at the Lands Commission/Land Title Registration Office to perfect Jake’s title must be halted.
The Majority Opinion and the Facts Relied On
The Supreme Court by a majority decision of 6-3 held that:
- The allegations relating to conflict of interest, and the reliefs founded thereon were incompetent because the Commission for Human Rights and Administrative Justice (CHRAJ) was the proper forum to ventilate concerns about conflict of interest involving public officials.
- The plaintiffs did not provide any proof to substantiate their allegations of discrimination, cronyism, arbitrariness, caprice, unreasonableness, and abuse of power against the Minister of Water Resources, Works and Housing and the Lands Commission. “In proof of their averments all that happened was that the plaintiffs based their complaints on bare allegations. No evidence was led whatsoever to substantiate those allegations”.
- The allocation of Bungalow No. 02 to Jake “served the public purpose or interest” because “the three flats to be constructed [by Jake on the land] will be obviously available to members of the public who can afford the cost of renting or buying them”. Stated differently, once there is a possibility of Jake renting the house to those who can afford it, the grant of Government land to Jake to put up flats for sale or rent served the public interest or purpose.
- In the absence of evidence to the contrary, the court would presume that the lease was properly granted to Jake by the Government of Ghana. In the words of the majority, “On the face of the documents before the court, the lease was granted by the appropriate authority”. Finally, there was no evidence to show that the Minster or the Lands Commission abused their discretionary powers concerning the management of stool lands.
In holding thus Brobbey JSC, who delivered the majority opinion, did not mention or advert his mind to text of the allocation letter to Jake, which expressly stated that the allocation of Bungalow No. 2 to Jake was done “at the request” of the Minister. Owing to this omission the majority opinion did not address the question whether the said request or directive contravened, inter alia, Articles 258 (2) and 265 relating to the relative operational autonomy of the Lands Commission as regards the management of stool lands.
What is more, Brobbey JSC determined that an extract of minutes from a Cabinet meeting that suggested that the lease to Jake conflicted with Government policy regarding a redevelopment scheme for some public lands, was inadmissible and had no truth value as it suffered from many evidentiary defects. First, it did not come from proper custody and authority. Second, it was not certified, and third, it had no specific connection to Bungalow No. 02. Based on these reasons, the majority dismissed all the reliefs being sought by the plaintiffs.
Minority Opinion and Facts Relied On
The minority opinion, per the judgment of Atuguba JSC, held that:
- The allegation of conflict of interest should be dismissed for CHRAJ is the proper authority to deal with conflicts of interest involving public officials;
- The plaintiff’s allegations regarding discrimination and corruption were unsubstantiated.
- The Lands Commission contravened Articles 23, 20 (5) and 296 because the grant and privatization of the Bungalow No 02 to Jake for the purpose of building flats did not meet the requirements of “public interest” or “public purpose” under Article 20 (5). Public interest or public purpose implied a purpose that benefited the larger community.
- The Ministerial directive to the Lands Commission to grant a lease to Jake, and the Commission complying with that directive, constituted an abuse of discretionary powers granted both the Minister and the Lands Commission under the Constitution.
- The allocation of the Bungalow No. 02 to Jake at the request of the Minister of Water Resources, Works and Housing, was unreasonable, procedurally improper, and illegal, and in contravention of, among other things, Articles 23, 258 and 296.
- For the above reasons, the minority, per the judgment of Atuguba JSC, granted all the reliefs sought by the plaintiffs except the reliefs founded on allegations of conflict of interest, discrimination and corruption.
Are judges at liberty to choose or emphasize different facts?
In arriving at their decisions, the majority and minority opinions did not rely on the same sets of facts. One major part in Atuguba JSC’s narration of the relevant facts was that the Lands Commission offered the Bungalow No.02 to Jake “at the request of the Ministry of Water Resources, Works and Housing”. In contrast, as stated earlier, the majority did not consider this piece of evidence. The critical question to ask is whether or not judges are at liberty to emphasise different facts of a case?
An idealized application of law looks like this: when a court is confronted with a case, it makes findings of fact through the evidence presented to it and considered through the application of certain legal doctrines and principles. Once the “facts of the case” are established, the court applies the law to the facts to arrive at a conclusion. However, the process of establishing facts can be quite complicated and sometimes extremely subjective, especially where there are conflicts in the evidence. Where there is such conflict in the evidence, the ideal posture is for the court to consider the conflict, weigh and rank the evidence in order to arrive at facts that fairly represent the entire evidence on record.
Over a century ago, a school of legal thought called the Realist School focused attention on the slippery character and complexities of “so-called facts of the case”. In some cases, the realists called for enlightened skepticism or rational doubt about the “facts” used to support judicial decisions. Sadly, even today the process of gathering the “facts” of a case, far from being scientific with a measure of predictability, can be quite problematic. It is therefore not surprising that there have been many cases decided by our courts, where the outcome depended primarily on what judges considered to be the “facts” of the case. The Supreme Court decision in the Jake Bungalow palaver is an example of a case where one “fact” or a couple of “facts” or admissions considered by some judges but glossed over or considered insignificant by other judges, can tip a case in one direction or the other.
Can the majority sustain the contours of its reasoning if Brobbey JSC had considered the legal effect of this piece of incontrovertible evidence: that the allocation of Bungalow No. 02 to Jake was “at the request of the Minister of Water Resources, Works and Housing”? Was this request consistent with, or an abuse of the Minister’s power under Article 258 and 265, to give general directions only on matters of policy to the Lands Commission? Did the Lands Commission in exercising its power under Article 258 to manage public lands abuse its discretionary power by offering Bungalow No 02 to Jake “at the request of the Minister of Water Resources Works and Housing” .
The questions assume further salience when we consider the fact that the 2nd Defendant (Jake) did not deny that Bungalow No.02 was granted to him at the request or upon the directive of the Minister. According to the 2nd Defendant:“Paragraph 5: The allocation and grant in issue, as well as other parcels within the redevelopment scheme, we contend, were made within the mandate and discretion of the Executive or Government in the management of public lands pursuant to Article 258(1) of the Constitution, particularly within the mandate of the Minister who was in charge of housing policy and management of government housing stock; and of section 2(1) of the Lands Commission Act, 1994, Act 483…”
As is evident in the above submission, it was the case of Jake that the grant and allocation of the bungalow fell within “the mandate of the Minister who was in charge of housing policy and management of government housing stock”. Quite evidently, there was indisputable evidence that the grant to Jake was founded on a specific request from the Minister of Water Resource, Works and Housing. Arguably, this ministerial request clearly impinged upon the relative autonomous status of the Lands Commission as stipulated under Articles 258(2) and 265.
Presumptive findings, Unsubstantiated Claims, Wrong inferences in the majority decision
Both the majority and minority opinions dismissed the plaintiffs’ allegations of corruption, cronyism, and discrimination leveled against the Minister and officers of the Lands Commission. The insistence on positive evidence to support claims, however, does not appear to have been consistently applied in the majority decision.
In his judgment, Brobbey JSC noted that “the use to which the Lands Commission directed the 2nd Defendant to put the land will serve the public interest or will be for public purpose. This is because the three blocks of flats to be constructed will obviously be available to members of the public who can afford the cost involved in renting or buying them”. In order words, without any explicit evidence before Brobbey JSC as to whether Jake would rent or sell the three blocks of flats or the Lands Commission required Jake to rent or sell any flats he put up on the land to members of the public who can afford the cost of renting or buying them, His Lordship made a presumptive finding that Jake would sell or rent the flats he put up on the land, and therefore the use of the property “will serve the public interest”.
In my respectful view, the presumptive finding that Jake’s use of the property will serve the “public interest” because the “three blocks of flats to be constructed will obviously be available to members of the public who can afford the cost involved in renting or buying them” is too speculative. For all we know, the flats will be occupied by members of his family on a rent-free basis. If this view is correct, the implication of the majority opinion is that if a person acquires Government land to build flats to house members of his family, this use of Government land will serve the “public interest”, and not necessarily a private interest.
Quite apart from the above, the majority opinion draws erroneous inferences from the facts before the Court. For instance, Brobbey JSC noted that: “The issue in this case is this: The plaintiffs contended that the property should be retained for the purpose for which it was originally acquired. That would mean that it would be used by one Minister or one public officer. The grant to the 2nd Defendant was to develop the property into three blocks of flats of at least four storeys. Which of the two houses will benefit the public more or satisfy the public purpose as required by the constitutional provisions?”
The inference being drawn by Brobbey JSC that the property would be used by “one Minister or one public officer,” was clearly a non-sequitur. As Atuguba JSC pointed out in his dissenting judgment: “The bungalow has been used for many years for public official accommodation. The location of the house and the plot on which it stands are obviously strategic for easy access to the Ministries, the hub of governmental activity. Judicial notice is taken of the scarcity of bungalows for high ranking officials including judges. If the plot of land could be used “for the redevelopment of three blocks of flats of at least four storeys… which the 2nd defendant undertook to build under the terms of the grant of the plot to him why could it not hold more bungalows for public official accommodation?…”.
Here Atuguba JSC amply demonstrates that if the argument is about utility, the efficient use of state lands, and cost savings to the state in housing public officials, the facts, circumstances and justice of the case cautioned against the grant of the bungalow to Jake. Juxtaposed against these observations by Atuguba JSC, Brobbey JSC’s analysis about the utility of the grant to Jake and his conclusion that Jake’s use of the property will “obviously” serve the public interest appears exceedingly unconvincing.
Other Inconsistencies in the majority opinion
Article 20(5) and (6) of the Constitution states that property compulsorily acquired by the state shall be used only in the public interest or for the purpose for which it was acquired, and where the property is not used in the public interest or according to the purpose of acquisition, the previous owners of the land shall have the first option to buy the property from the state. In his majority opinion, Brobbey JSC stated that the position of the law as held in the case of Kpobi Tsuru II v Attorney-General (on review)  SCGLR 1042 was that Articles 20(5) and (6) do not apply to property compulsorily acquired by the state before the coming into force of the Constitution.
Specifically, Brobbey JSC opined that “…the first point that may be made on these provisions is that this Court has by a majority decision of four to three decided that Article 20(5) and (6) do not apply to lands compulsorily acquired before the coming into force of the 1992 Constitution. That was the decision in Kpobi Tsuru II v Attorney-General (supra)…. That is the state of the law as at now until it is set aside by another decision of this court or by statute. If that is the correct state of the law it follows that the plaintiff’s reliefs do no hold water so long as they are founded on Article 20(5) and (6)”.
If Article 20(5) and (6) does not apply to the land in dispute as it was acquired by the state before the coming into force of the Constitution then it was unnecessary for the majority opinion to seek to demonstrate (infra) that the lease to Jake would serve a public interest/purpose within the meaning of Article 20(5) of the Constitution.
Public Interest/Purpose as an Unruly Horse
Perhaps the most knotty aspect of the majority decision is the holding, stated above, that the grant of the bungalow to Jake serves a public interest/purpose as required by Article 20(5) for the simple reason that “the three blocks of flats to be constructed will obviously be available to members of the public who can afford the cost involved in renting or buying them”. This is a revolutionary extension of the meaning of public interest/purpose as explained in recent Supreme Court decisions. In the case of Kpobi Tsuru II v Attorney General, Dotse JSC, who delivered the majority judgment shed light on the concept of public interest/purpose as follows: “…once the use to which the land is to be used is not restricted to any individual or personal interest, but one to which the general public will have a benefit or the benefit of the project will inure to the entire country either directly or indirectly/ the public interest/purpose would be deemed to have been adequately catered for”.
A legitimate question to ask is whether the grant to Jake of public land, located in an upper-class residential neighborhood such as Ridge, Accra, to build flats thereon confers a personal benefit or it benefits directly or indirectly the general public. The reasoning that there is a public interest/purpose in the grant for the simple reason that Jake may rent out or sell the flats he puts on the land to members of the public who can afford property at Ridge, Accra, appears too attenuated as to be extremely unconvincing.
That is, fully stretched, all private interests partake of a public purpose/interest. Does a real estate company which puts up estate houses for sale to members of the public based on the ability to pay, serve the public interest/purpose? Similarly, does a private person who sets up a private company serve a public interest/purpose because the company is likely to provide employment to some Ghanaians? The majority’s expansive definition and application of public interest/purpose needlessly collapses the distinction between what counts as private and public interests without any fully articulated policy reasons why such collapse is necessary.
Again, as pointed out by Atuguba JSC, conceivably, every private interest can be extended to include a public interest/purpose, and therefore it is necessary to note gradations or degrees of public interest. And that “certainly a public trustee [of public land] with fiduciary accountability under articles 257(1), 258 and as clearly expounded in Article 36(8) [which talks about land carrying a social obligation, and placing a duty on managers of public land to “serve the larger community”] cannot be said to have taken such a decision [that is, granting public land to Jake to put flats possibly to rent or sell to those who can afford them] in the best manner. I am compelled by the force of the facts and common sense… to reach this conclusion [that is, the lease to Jake does not serve the larger community”]. Here again, Atuguba JSC’s reasoning appears more persuasive as to what is meant by public interest/purpose within the meaning of Article 20(5) and (6) of the Constitution.
What does the majority decision mean?
In my considered opinion, the majority opinion of the Supreme Court does not mean that the grant of Bungalow No.02 to Jake is a legal fait accompli that can never be challenged. Rather, the decision implies that unless there is positive, admissible and cogent evidence of illegality, procedural impropriety, unreasonableness, discrimination, conflict of interest, etc or some other legitimate legal justification against the grant of Bungalow No. 02 to Jake, and this provides a legal basis for setting aside or vitiating the lease transaction, the lease granted to Jake is regular and lawful, and so it shall remain.
In other words, nothing prevents the Executive for good and lawful cause, amply communicated to Jake, from seeking to reverse the lease of Bungalow No. 02 granted to Jake and other public officials. The majority opinion makes this point abundantly clear when Brobbey JSC stated that: “We are not condoning cronyism, corruption, arbitrariness, capriciousness or discrimination….The judgment merely states the position that the plaintiffs have applied to the court to make specific declarations against public officers. They base their claim for declarations on specific acts. They were not able to prove those facts. Their applications remain baseless and without justification. Therefore their applications for those reliefs have failed. That is all.”
In other words, if anyone can substantiate allegations of illegality, wrong-doing, etc regarding the grant of the lease to Jake or other lessees of Government lands, it might be possible to set aside or vitiate those grants of public lands.
In dismissing the reliefs founded on corruption, discrimination and conflict of interest, the Supreme Court provided reasons and justifications I consider unassailable. Yet I find unpersuasive the reasons the majority gave for holding that the Minister for Water Resources, Works and Housing and the Lands Commission did not abuse their powers relating to the management of public lands.
Unlike the minority opinion, the majority opinion never considered the incontrovertible evidence that the Lands Commission leased Bungalow No. 2 to Jake “at the request” of the Minister nor assessed the legal effect of this directive on the relative autonomy and independent status of the Lands Commission as guaranteed under the Article 258(1) and 265 of the 1992 Constitution.
But this case raises a bigger policy issue. Article 296 of the Constitution states, inter alia, that where a person or body is given discretionary powers under the Constitution, and the person or body is not a court or judge, the exercise of the discretionary power should be governed by regulations published in a constitutional or statutory instrument. This is to ensure transparency, accountability and to set out a clear framework within which non-judicial exercise of discretionary power can be legally assessed and challenged.
Unfortunately, almost 20 years after the coming into force of the Constitution, there are no such published or gazetted guidelines to regulate the Lands Commission’s exercise of discretion in the management of public lands. Parliament must step in to set out a transparent regulatory framework to govern the Lands Commission’s constitutional function of managing, and for that matter, leasing public lands.
[The Author, Abdul Baasit Aziz Bamba holds a PhD in Law from Harvard Law School, USA, and is a Lecturer at the Faculty of Law, University of Ghana, Legon E-mail: [email protected] ]