Events and the Debates preceding the Bill

Following the reports on anomalies in the mining industry, Sir William Brandford Griffith, Governor of the Gold Coast, undertook a tour of some of the mining districts of the Western Province. His objective was to acquaint himself with the nature and extent of the problems. At the end of his tour, he became convinced from what he had seen that the best way to solve the problems was the vesting of all vacant lands in the crown from whom all titles to land may be held.

It may be recalled the discussion of the dispute in which he had

The doctrine that there is no land without an owner in the Gold Coast was generally accepted without question. Chief Justice Hutchinson in his memorandum on the Lands Bill in 1891 made this clear. See his memorandum, o p . c i t . Sarbah wrote that Mr. Justice Smith explained the doctrine in his "Report on Land Tenure in the Gold Coast."

F . C . L . , London, 1904, 271-81. See also Wiapa v Solomon (1905) Renner, 405. Dr. A. P. K. Kludze is the 'only one known to have doubted the validity of this rule. See his "Ownerless Lands of Ghana", (1974) 11 U.G.L. 123.

had to intervene while on his tour between the Essaman Mining Company and a local chief, Kofi Chay. 202 When he returned from his tour, he despatched a letter to the Secretary of State in which he outlined the problems. 203 Commenting on the dispute referred to above, he informed the latter that he did not think the sort of claims being made by the company was justifiable, having regard to the fact that the chief involved in the dispute was anxious to be on good terms with the "white man".

He noted that the rents being paid by the mining firms were "trifling amounts".

Yet, he felt it was inexpedient at that time to interfere directly.

The policy of interference should be limited to the levels necessary with a view not to check the development of the mines which if they succeeded "would open up the country and lead to a great revolution

and prosperity of that part of the Colony". The policy of non-interference he thought could be justified, bearing in mind the fact that the natives could only work the ore in small quantities while the great majority of the European companies worked the mines below the surface far beyond the power of any native could carry on successfully. 204

He expressed the need for some measure of control over the mines.

He required the Secretary of State to furnish him with copies of the mining legislation of British Guiana or South Africa which might help him enact a similar law for the Gold Coast. It will be observed here that, although the Governor found on his tour of the mining areas that the agreements by which speculators and mining firms obtained concessions were vague and "somewhat one-sided"in favour of the companies with which they were executed, and that the rents being paid were of "trifling amounts", his suggested solutions fell far short of any direct control of land use acquisition or its management.

Outlining the -.immediate policy, he said:

See page 83.> This section is based on Colonial Office Records.

Some of the manuscripts are difficult to decipher and some of their authors sign their names without their initials. Thus some of the names may besupplied without the initials.

203 Secret dispatch from W. B. Griffith to Knutsford, 25 June, 1889, C.0. 96/202.

204 Ibid.

"Looking to the extreme primitiveness of the whole country at present, the insufficiency df staff of the government to exercise really much control over so large a space of territory, and the infancy of the industry, no steps should be taken which are not rendered immediately desirable for its regulation."

Envisaging a policy for the future, he continued:

"As regards the future, or the protection of the legitimate rights of the owners of the s o i l , the question arises whether the simplest course to take in the event of the mines beginning to pay, would not be to assume the whole country as Crown lands, preserving exist­

ing individual rights for the life time of the holders, and devote the revenue arising from the sale or lease of these lands for the exclusive benefit of the people of the district."

It can be seen from this projection of future policy on land tenure and administration that, in terms of applying the natural resources of the land, the Governor thought they must be used to the benefit of the people in the districts where such resources were to be found.

It follows that at this moment in time, the colonial government still regarded the natural resources, such as minerals, as not belonging to the Gold Coast as a nation, but to the communities in which they were to be found. Perhaps, because the question of British sovereignty was still unresolved, it would be asking for too much to expect the formulation of a national land policy for the Gold Coast at this time.

Five months after this dispatch to London, the Secretary of State responded favourably. In forwarding the mining legislations of British Guiana, Zululand and British Bechuanaland to the Governor as he had requested, the latter was reminded that these acts applied to Crown lands while in the Gold Coast, "except to a very limited extent, is not British territory in the full sense of the term and the land is therefore not the property of the Crown." 206 He was thus required to ascertain if any of the provisions could be introduced in the Gold Coast.

Lord Knutsford wanted further clarification on the Governor's proposals:,.

He would like to know if the scheme was to be applied to mining areas alone or to the whole of the protectorate. Lord Knutsford was prepared to admit that there were many reasons in favour of making the whole

2 0 5 r v , • ^I b i d .

Knutsford to Griffith, 4 December, 1889, C.O. ,879/46, No. 513, African West.

of the colony and protectorate British territory, and therefore Crown lands, and many advantages to be gained for it. 207 He thought such a measure "would no doubt get rid- of many troublesome questions of juris­

diction", particularly as the country was practically ruled "as if it were British territory, though nominally it is not."

Lord Knutsford believed that the conversion of the whole country into a Crown land would lead to a social revolution; therefore, before making such a decision, he would like to receive fuller reports on further development and a statement on how the scheme, if adopted, would be

implemented without causing any serious trouble or d i s t u r b a n c e . He further warned that although the change might be of advantage to- and * in the best interests of, the natives in the end, it did not necessarily follow that they would be prepared to accept it quietly in the first instance.

As the Secretary of State welcomed the idea of the Crown's assumption of lands, the Governor became committed to its implementation. But

before carrying this intention into effect, he sought the advice of the chief Justice, Sir Joseph Hutchinson as to the desirability of such a measure. Hutchinson having seen Lord Knutsford's Dispatch, disagreed with him on several issues. In his memorandum to the Governor, he criti­

cised the Secretary of State's suggestion that the making of the country into a British colony involved the making of the lands Crown lands.

"Perhaps", he argued, "all that the Secretary of State meant to suggest was that the result of making the country British territory would be to make the Sovereign the ultimate lord of all the land, all private rights being left untouched." 208 If this was the meaning of the propo­

sal, then he saw no objection to it. But if the proposals implied the appropriation of all the land by the Crown with or without compensation, becoming the immediate and not merely the ultimate landlord, the case would be very different.

"I believe", he argued, "that all the land in the colony and the protectorate, whether occupied or not, . „ , .

has according to native law an owner." 209 He drew attention to the

207 208

209

I b i d .

Hutchinson to Griffith, 7 April,1891, C.0. 879/46, No. 513, African West.

Ibid.

fact that natives appeared to have a strong feeling of attachment to

their stool or family (lands. A large part of the litigation in the courts, he pointed out, was about land, and he was often amazed at the pertinacity with which the right tQ the possession of a small piece of land, sometimes land which had hardly any value except the sentimental value arising

fpgm connection with the stool or a family member having been.buried in it or from its association with some tribal or family fetish.

Like the Secretary of State, he conceded the fact that there were many advantages to be gained if the scheme were to be implemented.

Some of these would be the possible increase in revenue from sales and leases of the land and possible benefit to the community from the creation of indisputable title to the land to be held from the crown. But he did not think these advantages constituted a sufficient reason for the introduction of a measure of such far-reaching consequences.

What he considered to be the strongest objections, to the measure was that which he described in the following words:

"Perhaps the most important effect of expropriation by the Crown of the present owners of waste lands would be that it would perman­

ently lower the dignity of and importance, and therefore the power of the chiefs and heads of families." 2 1 0

He stated that the chief was the life owner of all the land, unoccupied or waste, belonging to his stool or family. It was he who had power

to make grants of it upon the customary native terms and tenure and

received the customary presents and tribute due from grantees. In Hutchinson's opinion, if this power and these emoluments were taken away from the

native chief and the head of the family, it was impossible that their estimation in the eyes of their people should not be lowered. This consideration alone, would, in his view, be enough to make him reject the proposed legislation unless the reasons in favour of it were "over­

whelmingly strong".

He suggested that instead of a wholesale appropriation of lands by the crown, steps should be taken to control the mining industry by regulation. He conceded the fact that there were many reasons why the crown should control minerals and unused and unopcupied forests.

He observed that minerals in the country had not been a source of revenue to the country, except to a very few owners. Concessions of timber

and mining rights were being made on a large scale to European companies for speculation purposes. He expressed the opinion that it would be a public misfortune if those rights over such large tracts of land should fall into the hands of p e r s o n s , especially absentees who for reasons of speculation would not work them. He therefore concluded that all minerals should be vested in the crown. 211

The issues discussed by Hutchinson deserve some comments. In the first place, he seemed to have fallen into the common error of confusing the control functions or the jurisdictional rights of the traditional authorities with proprietary rights over land. It is misleading to

say that the Chief and the head of the family are the life owners respect- ively of stool and family land. Failure to draw this distinction was one of the principal misunderstandings concerning the land tenure system that misled many opponents of the Land Bills and caused them to reach erroneous conclusions about the measure.

Similarly, the Chief Justice erred in suggesting that the head of the family or the Chief had the legal capacity to deal with stool or family lands in their own right* The factor which the Chief Justice ignored in his argument was that the scheme was being designed partly to protect the citizen against the illegal alienation of the large tracts of land to which he referred in his memorandum. His confusion of the title situation misled him to overlook the interest of the communities of

which the Chief and heads of families were representatives. He did not advert to the fact whether or not the revenue derived from the grant of concessions by the land authorities were applied to the benefit of their communities. Instead, he was concerned with the preservation

of their "power" and "dignity". The overriding interest of the community, represented by the rank and file of its members ought not to have been thus relegated to a secondary position in this regard.

Happily, the Governor, Sir William Brandford Griffith, sought a

second opinion on the matter. He sought the advice of his son Sir William Brandford Griffith, who had spent some years in the Gold Coast but was recently transferred to Jamaica, where he became a resident Magistrate.

In his letter to his father, he agreed with Hutchinson that the lands

belonged to the natives of the Gold Coast, but the difficulty, he thought was how individual claims were to be ascertained. 212

He disagreed with Hutchinson who seemed to be suggesting that if the lands "were vested in the crown, it would amount to confiscation.

He argued that such a policy would not mean confiscation or spoilation.

He believed, it would simply aim at holding the land for them as a "trustee".

He argued that the land, once acquired by the crown would practically be the "property of the Gold Coast". He wrote:

"The land so acquired would then be used for the benefit of the Gold Coast. Any revenue derived from such crown lands would go to the credit* of the natives and the few scores or possibly hundreds of Europeans temporarily residing on the Gold Coast." 213

He thought it was unnecessary to take account of any gain to the handful of Europeans who would then become joint owners of the land along with the natives. What could be done in their case was the imposi­

tion of a poll tax on them in order to compensate for the advantage they might gain from the scheme.

It will be observed that the scheme envisaged by Sir William Brandford Griffith (Junior), if accepted, could be of far-reaching consequence.

Unlike his father, Sir William Brandford Griffith, and Sir Joseph Hutchinson who both suggested the revenue derived from the minerals exploited should be applied to the exclusive benefit of the communities from where such resources were to be found, Brandford Griffith (Junior) saw the problem within the context of a wider Gold Coast national land policy. It was his opinion that such revenues as were derived from concession grants should go to the credit of the people of the Gold Coast as a whole.

As the assumption of control by the Crown would- have the effect of vesting the lands in it as a "trustee" for the benefit of the country as a whole, it could not amount to confiscation or spoilation as Hutchinson seemed to suggest.

Referring to the question of insecurity of title, he made the follow­

ing observations:

Brandford Griffith Junior, to Sir W. B. Griffith, Enclosure No.

2, C.O. 879/46, African West, No. 513.

Loc.cit.

"No doubt the land will belong to some native, but what individual claims are, it will be hard to ascertain, probably numerous per­

sons would each of them possess some indefinite claim to the land.

Some of the claims would probably conflict, and if any person desired to purchase this land, he would experience great difficulty in getting a secure title owing to this indefinite and conflicting claim."214 One of the sources of such conflicting claims and uncertainty was what Hutchinson described in his memorandum as "great difficulty in discovering owners or persons entitled to sell or mortgage".

No doubt the scheme of land administration envisaged by young Brandford Griffith (Junior) could have successfully dealt with the land problems

of the time and could have laid a firm foundation for the future management and administration of the land and its resources of the country on the basis of a sound national land policy. The far-reaching consequences of the implementation of such an elaborate programme of land reform would have been:

i. the abolition of the tribal territorial basis of beneficial enjoyment of rights in land;

ii. the establishment of the principle that membership of the Gold Coast Colony and the Protectorate formed the basis for the exercise of inherent traditional rights in respect of land;

iii. the elimination of tribal territorial and family boundaries with their associated disputes; and

iv. the identification of social and economic problems with the Gold Coast as a Colony under British administration instead of identifying them with ethnic and tribal affiliations.

It is evident that if the servants of the Crown assumed control over the administration of all lands, prospective acquirers of interests in it would have had no difficulty in identifying the bodies which might be created to perform the functions relating to the allocation and dis­

position of interests in land. Similarly, if boundaries had ceased to matter so would disputes associated with them. Perhaps Brandford Griffith (Junior) himslef did not realise that his scheme would have all these effects, but his objectives were clear.

His main goal was the security of title and the creation of freehold titles. In this regard, he proposed the following measures to be the principal objectives of land policy:

i. the creation of freehold titles:

ii. that the system by which land is held may be simplified;

iii. that unoccupied lands should become Crown lands; and that the present inconvenient distinction between the Protected Territories and the Colony be done away with.

He suggested a skilful scheme by which this programme might be implemented. He recognised that it would be politically unwise to rush the programme through. He therefore suggested a land tax system whereby land for which such taxes remained unpaid for seven or ten years might become liable to forfeiture. "Land in the Gold Coast", he said, "as in almost all other places under civilised governments must bear the burden of taxation, and it is better that the present wretched system of land tenure should be got rid of as soon as practicable before the mixed application of English law and native custom gets things into an inextricable tangle."215

Provision must therefore be made in the proposed Bill imposing

Provision must therefore be made in the proposed Bill imposing