Introduction
The Lands (Statutory Wayleaves) Act 1963, Act 186, provides a comprehensive legal framework for the creation and management of statutory wayleaves, essential for the development and maintenance of public utility works in Ghana. The Act defines a public utility as a service provided by the Republic, a local authority, or a statutory corporation, for supplying electricity, water for any purpose or gas, or for supplying sewerage, transport, or telecommunication facilities or facilities connected with the operation of a port, railway, tramway or an airport[1].
Given the increasing demand for infrastructure expansion and the rising conflicts between public utility projects and private property rights, this subject has become more pressing than ever. The purpose of this write-up therefore is to provide a comprehensive explanation of the Act’s provisions. By reading this paper, the reader will gain an in-depth understanding of the legal intricacies of statutory wayleaves. This knowledge will be valuable to landowners and the public as they will understand the processes involved in the creation of a Wayleave instrument, the compensation process, and when lands can be entered into by authorized persons.
Purpose of the Act
The purpose of Act 186 has been set out in the long title which reads:
“An Act to provide for entry on any land for the purpose of the construction, installation, and maintenance of works of public utility, and for the creation of rights of way and other similar rights in respect of such works and for purposes connected with the matters aforesaid.”
In the case of The Republic v High Court (Land Division) Accra; Ex parte; The Lands Commission[2] it was held in obiter that the preamble to this act is very important as it concerns the rights of the owners of the land upon which the said act would apply.
The Act came into effect on the 16th of July 1963. Its broad objectives include:
- To ensure that there is provision for entry on land for construction, installation, and maintenance of works and public utility.
- To create rights of way and other similar rights for the use of public utility service providers.
- To ensure that persons who suffer any loss as a result of the above are rightly compensated.
The key features of Act 186 include the following:
Procedure for the Creation of Statutory Wayleaves
Section 1 provides for the process through which statutory wayleaves can be created by the President. It provides that statutory wayleave can be created in the following process:
- Before a statutory wayleave can be created, the President must determine that it is in the interest of the public to establish a right of way or similar right over any land for public utility works.
- Once the President is convinced of the public interest, an Executive Instrument will be issued. This instrument will be referred to as a “Wayleave Instrument.” The instrument formally declares the specified land subject to the statutory wayleave.
- Publicity of the instrument. Upon the publication of the Wayleave Instrument and without further assurance, the land shall be deemed to be subject to that wayleave which shall, in accordance with the terms of the instrument, inure to the benefit of the Republic, any statutory corporation specified in the instrument or the public generally.
The particulars that must be contained in the Wayleave Instrument as contained in Section 1 (2) are:
- A description (with measurements) of the land affected by the statutory wayleave together with a plan showing the position of the works constructed thereon.
- Particulars of the person or body for whose benefit the wayleave is to inure; and
- Such other particulars of the said works as the President thinks necessary or expedient to include in the instrument.
A copy of every Wayleave Instrument shall be served on the owner or occupier of the land affected by the statutory wayleave, and if neither the owner nor occupier can be found, it shall be posted at a conspicuous place on the land and published in a newspaper circulating in the locality (Subsection (4)).
Any land subject to statutory wayleave shall (notwithstanding any rule of law) continue to existence until the wayleave is terminated by regulations made under this Act.1(4) of Act 183.
Legal Implication for non-compliance with Section 1
The legal implication for non-compliance was illustrated in the case of OBAAHEMA NANA KRAB II v. EMMANUEL SWANZY-KRAH[3]. In this case, the Court of Appeal held that while property rights are highly respected, any interference with these rights must be legally justified, typically for reasons of public safety or societal needs. In this case, there was no evidence that the disputed land was lawfully acquired under Act 186. Therefore, the presence of utility service lines on the land suggests a trespass by the utility authorities, rather than lawful acquisition.[4]
This case illustrates the consequences of failing to follow the prescribed procedure under Section 1 of the Act. When the process is not duly followed, it undermines the legitimacy of the acquisition and can lead to claims of trespass and unlawful interference with property rights.
Examples of Statutory Wayleave Instrument are State Lands (Statutory Wayleaves) (Achimota Interchange) (E.I 15) which was made on the 31st day of August 2004 and Lands (statutory way leaves) (Tarkwa—Bonsaso scheme) Instrument, 1973 (E.I 47) made on 24th day of April 1973. This latter wayleave was to inure to the benefit of the Electricity Corporation. Section 2 (1) provides for situations in which way leaves can be created. These include the purpose of construction of highways, and any other structure or works for the purpose of, or in connection with, a public utility service. Consequently, the statutory wayleave created should include the purpose in the Act unless a contrary intention is stated in the Act.
Rights of entry on the land
To determine if the land is suitable for constructing specified works, a public officer or person acting on behalf of the Republic, a local authority, or a statutory corporation may enter the proposed land. This entry is allowed if authorized by or on behalf of the Minister responsible for lands, with the agreement of the appropriate Minister[5]. However, before entering the land, the authorized person must give the occupier of the land at least 24 hours’ notice. The notice must include:
- Particulars of the land to be surveyed.
- The purpose of the survey.
- Details of the works proposed to be constructed on the land.
The provision under section 4 provides that an authorized person may enter the land to carry out specified work if he or she provides written notice to the owner or occupier of the land at least one week before the proposed entry. However, if the owner or occupier cannot be found, a notice must be posted at a conspicuous place on the land and it must indicate the proposed date for the entry, which must be at least a week. The notice, whether given to the owner or occupier or posted on the land, must include the details of the land affected by the proposed work, and the specifics of the proposed works, including their positions as shown on the proposed plan.
Persons who willfully obstruct an authorized person in the exercise of their rights will be liable on conviction to a fine not exceeding fifty pounds or to a term of imprisonment not exceeding three months or both[6].
Rights of entry for construction
Authorized persons may at any time enter land to inspect, maintain, replace, or remove a specified work.[7] Section 6 provides for compensation for losses that arise as a result of the carrying out of surveys, installation, construction, inspection, maintenance replacement or removal of specified work.
Where a person suffers a loss or damages as a result of the carrying out of a survey under the Act or as a result of the installation, construction, inspection, maintenance, replacement or removal of a specified work, that person is entitled, except where the loss or damage resulted from or arose out of the acts of that person, the servants or the agents, of that person and subject to this section, to compensation of an amount assessed by the Minister in respect of the loss or damage.
In assessing the compensation, the Minister responsible for lands may consider a reduction of an amount by which a person’s land has increased in value as a result of the installation or construction of the work.
Compensation to affected landowners
All claims for compensation under subsection (1)[8] shall be made to the Minister responsible for lands in the prescribed form not more than three months, or a longer period that the Minister responsible for lands may generally or in any particular case direct, after the date of the declaration made by the President under section 1.
A person is not entitled to compensation under this section for a loss or damage if:
(a) In the opinion of the Minister,
(i) Where the alleged damage is to land, that land has been sufficiently reinstated; or
(ii) Where the alleged loss arises out of the deprivation of the use of land, the person alleging the loss has been offered other land of equivalent value.
(iii) Where the alleged damage is to movable property, that property has been replaced or sufficiently restored; or
(iv) The work constructed does not substantially interfere with the enjoyment of the land.
(b) Where the alleged loss arises out of the construction of a highway, that construction does not deprive the owner of the parcel of land affected thereby of more than one-fifth of the parcel and the remainder of that parcel continues to be suitable for use for the purposes for which it was being used before the highway was constructed.
In situations where a person is dissatisfied with the amount of compensation assessed by the Minister under this section, but in no other case, the matter may be referred by the Minister to a tribunal established under the Act[9]. The tribunal shall consist of three persons appointed by the President, following consultation with the Chief Justice, and one of those persons shall be a Justice of the High Court as the chairman of the tribunal.
Section 7 makes provision for regulations to be made by ministers concerning the Act. It provides that the Minister responsible for lands has the authority to create regulations through a legislative instrument. These regulations can address matters related to the procedures and functions of the tribunal established under the Act, ensuring its proper operation. Additionally, the regulations can facilitate the effective implementation of the Act’s provisions. Furthermore, the regulations may impose charges or fees payable to the Minister or a designated person and can also address the termination of statutory wayleaves and other related matters. Accordingly, the following Regulations were made by the Minister responsible for lands by virtue of section 7 of the Act: Lands (statutory Wayleave) Regulations 1964 L.I 334 and Lands (statutory Wayleave) (Amendment) Regulations (LI 346) which came into force to amend L.I 334 paragraph (2) of regulation I and addition of form 5 to its schedule.
Section 9 of the Act stipulates that the provisions of the Act are not to be interpreted as being affected or overridden by any other laws related to land entry or acquisition. This ensures that the Act’s provisions remain applicable and enforceable regardless of other legislative enactments concerning land use.
Conclusion
In conclusion, the Act, along with its amendments, establishes a comprehensive framework for the creation, management, and compensation associated with statutory wayleaves, ensuring that public utility works are conducted with due regard for landowners’ rights and interests, especially their right to own property and privacy. This is done while maintaining the Act’s precedence over other land-related legislation.
[1] Section 2(2)
[2] (J5 /15 /2015) [2015] GHASC 96(30 JULY 2015)
[3](2007) JELR 69604 (CA)
[4] The brief fact of this appeal is that the Stool of Butumagyebu represented by the plaintiff/appellant is the lessor of the defendant/respondent in respect of plot number 100A. This transaction was reduced into writing. The disputed land which is unnumbered lies at the frontage of plot number 100A. The defendant/respondent leveled the land to commence a block manufacturing enterprise and so placed a Metal Container on it. When questioned by the plaintiff/appellants through letters and other mediums, the defendant/respondent claimed that he had purchased that portion of the land from a deceased head of the plaintiff/appellant’s family. The defendant/respondent also claimed that the unnumbered plot was part of an area reserved for road and public utility services and therefore belonged to him. The trial judge dismissed the plaintiff’s suit, ruling that the land was public land reserved for way leaves and that neither party had authority over the disputed land. Dissatisfied with this decision, the plaintiff filed an appeal.
[5] Section 3
[6] Section 4(3)
[7] Section 5
[8] Section 6
[9] Section 6(6)
Author: Nancy Bonsing
