AREA OF LAW PRINCIPLE & AUTHORITY

WHAT IS PROPERTY?
INTRODUCTION It is the interest that can be acquired in external objects or things.
Can also be said to be the relationship between the owner and the
thing.
The things themselves are not in the sense property but they
constitute its foundation and material and the idea of property
springs out of the connection or control or interest which
according to law may be acquired in them or over them.

TYPES OF PROPERTY
1. Tangible property
2. Intangible property
WHAT IS IMMOVABLE PROPERTY LAW?
It is the branch of law concerned with the relationships which
arise between persons in respect of things.
It comprises the range of legal rules and principles which regulate
the proprietary issues concerning that which is classified as land.
Immovable property has been defined to mean Land
1. Section 46 of the interpretation Act 2009 (Act 769)

WHAT THEN IS LAND?

Land has been defined to include the solid surface of the earth,
trees, plant, crops and other vegetation, a part of the earth surface
covered by water, any house, building or structure whatsoever and
any interest in or right in to or over immovable property.
1. Section 281 of the Land Act, 2020
In customary law, land includes the earth and the developments on
it, the airspace and the space beneath the earth.
Land also includes all trees, shrubs, hedges, plants and flowering
plants growing thereon.
However, in Dadzie v Kokofu, the supreme court held that
ownership of cocoa farm was to be distinguished from ownership
of the land.

SURFACE RIGHTS, RIGHTS ABOVE AND BELOW THE SURFACE

There is a general rule under common law that ownership of the
surface of the land carries with it rights to what is below the
surface and to control of the airspace above which is expressed in
Latin as “cuius est solum eius est usque ad coelum et ad inferos”
meaning whoever owns the soil owns everything up to the
heavens and down to the depths of the earth.
1. Kelsen v Imperial Tobacco
However, with the airspace, the owner enjoys rights not unlimited
but only up to a height which would constitute his ordinary and
reasonable use of the land and not more
2. Bernstein v Skyviews & General ltd
 QUID QUID PLANTATUR SOLO SOLO CEDIT
This common law notion means whatever is attached to the land
becomes part of it.
Fixtures attach to the ground and thus become part of the land and
thus vests automatically and exclusively in the owner of the land.
Fixtures are regarded as having merged with the land by reason of
legal metamorphosis and thus pass with all subsequent
conveyances of the land unless and until lawfully severed from the
land
1. Holland v Hodgson
Thus, where a fixture is attached to the land, the maxim requires
the fixture and the land to be treated as a single entity and enjoyed
solely and exclusively by the owner of the land.
This means that the owner of the land is prima facie the owner of
all the crops found on that land
2. Ahiable alias Vivor & ors v Dosu & ors

DOES THE MAXIM APPLY TO CUSTOMARY LAND LAW?

On one hand Korsah C.J claims that the maxim doesn’t apply in
Ghana. Especially under native tenure where the owner of the land
gives another permission to another to build or farm on the land.
The farm or building remains the property of the licensee who
built or farmed on the land and the property devolves unto the
licensee’s successors until the fixture is destroyed when the land
reverts to the owner.
1. Asseh v Anto
This position is reaffirmed by Amua-Sekyi JSC
2. Toure v Baako
On the other hand, Apaloo JA (as he then was) also claims that
there is no warrant to why the maxim cannot apply in Ghana
3. Kofi Adu v Sarkodee-Addo
Thus, in customary law, the principle applies just as it does in
common law, except where the fixture has been attached by the
permission of the owner.
4. Kofi Adu v Sarkodee-Addo

A person who acquires land in Ghana may have a freehold,

INTERESTS leasehold, or any lesser interest depending on the citizenship of
the person and the grantor of the interest.
IN LAND There are 6 interests recognized by the Land Act in Ghana. These
are;
a. Allodial title
b. Customary law freehold
c. Common law freehold
d. Usufructuary interest
e. Leasehold interest
f. Customary tenancies
1. Section 1 of the Land Act 2020 (Act 1036)
We would at this point take each of the interests in discussion.
 ALLODIAL TITLE
Also referred to as the “absolute title” and the “ultimate title”.
This is the highest interest an owner can hold in land
1. Section 2 of Act 1036

WHAT ENTITIES CAN HOLD THE ALLODIAL TITLE?

The entities that can hold the allodial title include; The State,
Customary communities. i.e. stools or skins, Clan or Family and
Individuals
1. Section 2 of Act 1036
As introduced by the Land Act, the State now includes the entities
that can hold an allodial title in land.
NB: Apart from the express mention of the State as an entity that
can hold the hold the allodial title, the other mentioned entities ae
just the same as those that we already knew under customary law
and as such we would just use the same discussion.
Thus, some authorities have held that in certain parts of the
country, the allodial title is vested in the customary communities
called the Stools.
2. Akwei v Awuletey
3. Nii Amon Kotei v Asere Stool
4. Nyamekye v Ansah
However, in other authorities, it has been held that the allodial
title is vested in sub-stools. Thus, the sub-stool had allodial title to
a quarter designated to them
5. James Town v Sempe Stool
6. Kotey v Asare
In other parts of the country, the allodial title is vested in
customary communities called Skins
7. Saaka v Dahali
8. Azantilow v Nayeri
Other authorities have held that allodial title could also be vested
in families.
9. Ameoda v Pordier
10. Prampram Paramount stool v Central University & ors
The allodial title can also be held by individuals
11. Dennis & Arthur v Ababio
12. Nyasemhwe v Afibiyesan
13. Djomoa v Amargyei

INCIDENTS OF ALLODIAL TITLE

These refer to the bundle of rights and obligations which accrue to
the holder of an interest and determined by the applicable source
of law which is the basis of that interest and in this case an allodial
interest in land.
 1. Section 8 of Act 1036
In the enjoyment of the rights, there’s a distinction made between
subjects of the stool on one hand and strangers on the other.
Among the incidents include;
a. The community may control the member’s use of the land
b. The community can grant land to members and also to
strangers either by customary freeholding or in the case of
strangers even transferring allodial title if it so pleases
1. Djomoa v Amargyei
c. The community has the right to defend its interest in
litigation. E.g. where the community has sold the allodial
title or customary freehold to a stranger, it may retain the
power to sue a 3rd party for a declaration of title to the
land
2. Majolagbe v Larbi
However, in such a situation, the community sues as a past vendor
under a customary law principle empowering a vendor to litigate
not as a person holding a present interest in land
3. Akwei v Awuletey
d. The community is entitled to allegiance and customary
service from the subjects or strangers in occupation of the
land
4. Achiase stool v Appiah
e. Members are entitled to take natural fruits and products,
farm or build on the land and thus acquire a customary
law freehold in the land
f. The community retains the revisionary interest in cases
where the holder of the customary law freehold abandons
his interest or dies without a successor.
5. Sasraku v Okine

ACQUISITION OF ALLODIAL TITLE

The modes of acquisition has been provided for under Section 2
of the Land Act 2020 (Act 1036) and under customary law,
described in Ohimen v Adjei as;
a. Through Compulsory acquisition by the State
1. Section 233 of Act 1036
b. Conquest and subsequent settlement thereon and
cultivation by the customary community (which refers to
stool, skin, family or clan)
1. Nyamekye v Ansah
2. Owusu v Manche of Labadi
c. Discovery by hunters or pioneers of the customary
community of unoccupied land and subsequent settlement
thereon and use thereof by the customary community’s
subjects
1. Ngmati v Adetsia
d. Gift
e. Purchase
LOSS OF THE ALLODIAL TITLE
As the allodial title is the highest title in land, it cannot be
extinguished or terminated because to do so means there is a
higher title than it which there isn’t.
What happens rather is that the allodial title can only be
transferred from one owner to another through
a. Abandonment
Abandonment of land has the possibility of the effect of
transferring the allodial title in the land to a community who
subsequently takes possession of said land
1. Ohimen v Adjei

b. Conquest
The defeated community is forced to surrender (transfer) its
allodial title in the land to the conquer.
1. Owusu v Manche of Labadi

c. By gift or purchase
The sale of the land transfers the allodial title to the purchaser of
the land if said sale is valid
1. Golightly v Ashirifi
2. Sasraku v David

d. Adverse possession
Where a person is in adverse possession of one’s land of which
said one has allodial interest, the owner of the land is statute
barred if after 12 years he doesn’t bring an action to the effect of
exercising his ownership of the land and thus loses his allodial
interest
1. Section 10 of the Limitation Act 1972 (NRCD 54)
NB: However, where the State is in this case the allodial title
holder in the land, an adverse possession in the land would not
amount to the loss of title of the state or an acquisition of a title by
said person. In other words, when it comes to the state or public
lands, the operation of the principle of adverse possession is not
operational
2. Section 236(1) and (2) of Act 1036

e. Extinction by effect of constitutional provisions

After 22nd August 1969, any foreigner having a freehold interest
in land in Ghana was converted to leasehold for 50years and
freehold revisionary interest in the land was now vested in the
president
1. Article 266(3) of the 1992 constitution

f. Compulsory acquisition
The state can compulsorily acquire allodial land in the public
interest.
1. Article 20 of the 1992 consitution
2. Section 233 of Act 1036
 3. Section 249(4) of Act 1036
4. Nana Hyeaman II v Osei

CUSTOMARY LAW
FREEHOLD
This is an interest which arises from a transaction under
customary law.
1. Section 3 of Act 1036
It is a derivative of the allodial title under customary law.
The customary law freehold used to be used synonymously with
the usufructuary interest but Act 1036 has segregated the two
interests.
Section 3 of Act 1036 deals with the customary law freehold and
Section 5 deals with the usufructuary interest.
It is seen as a form of absolute ownership and it prevails against
the whole world including the allodial interest so long as the
holder of the customary freehold acknowledges his loyalty to the
allodial owner
1. Adjei v. Grumah
2. Nyamekye v. Ansah
It can also be seen as a qualification or burden on the allodial
interest but it co-exists with the allodial interest

WHO MAY HOLD THE CUSTOMARY LAW FREEHOLD

The customary law freehold may be held by a customary
community or a person or group of persons from a transaction
under customary law

ACQUISITION OF CUSTOMARY LAW FREEHOLD

A customary law freehold may be acquired where the law
permits through purchase, gift or inheritance.
1. Section 3 of Act 1036
NB!!! The acquisition of customary law freehold interest by a
non-citizen in respect of stool and skin lands has since 22nd August
1969 been prohibited
2. Article 266 of the 1992 Consitution
3. Section 3 of Act 1036
4. Section 10(3) of Act 1036
In fact, it is now prohibited to create an interest in or right over
land in Ghana which vest in a foreigner a freehold interest
howsoever described.
5. Section 10(1) of Act 1036
So that any agreement, deed or conveyance of whatever nature
which seeks to confer on a foreigner a freehold interest in or over
land would be void!
6. Section 10(2) of Act 1036

INCIDENCE OF CUSTOMARY LAW FREEHOLD

a. The customary law freehold is an absolute interest in land
and is not subject to any proprietary obligation
b. It is subject to the jurisdictional and cultural rights of the
stool or skin or clan or family that holds the allodial title
c. It is acquired when a person or group of persons where
the law permits purchase land outright from the customary
community which holds the allodial title or acquired
through gift or inheritance.
d. It is of perpetual duration and is inheritable and alienable
without the consent of or payment to the stool or skin or
clan or family
1. Section 3 of Act 1036

COMMON LAW
FREEHOLD
This is an interest which arises from a transaction to which the
rules of law generally known as common law are applicable.
1. Section 4 of Act 1036
It is also a derivative of the allodial interest but under common
law.

INCIDENCE OF COMMON LAW FREEHOLD

a. The rules of law generally known as common law are
applicable
b. It is of perpetual duration or for any other uncertain
duration such life interest.
c. It is subject to the interest of the state, the jurisdictional
and cultural rights of the customary community that holds
the allodial title
d. It is held free from obligations to any other person
e. It is inheritable and alienable
NB!!! The acquisition of common law freehold interest by a non-
citizen in respect of stool and skin lands has since 22nd August
1969 been prohibited
1. Article 266 of the 1992 Consitution
2. Section 4 of Act 1036
 USUFRUCTUARY
INTEREST
The usufructuary interest is also a derivative of the allodial
interest.

ACQUISITION OF THE USUFRUCTUARY INTEREST

The usufructuary interest may be acquired in two ways;
a. Acquired in the exercise of an inherent right by a subject
or member of a customary community which holds the
allodial title through the development of an
unappropriated portion of the land of the customary
community or by virtue of express grant
b. Acquired through the settlement for a period of not less
than 50 years with the permission of the holder of the
allodial title by a non-indigene or a group of non-
indigenes or by their descendants except where the
settlement is on agreed terms.
1. Section 5(1) of Act 1036
NB: Where alienation of the usufructuary interest is to a non-
indigene or a group of non-indigenes or to non-indigenes or a
group of non-indigenes

WHAT ENTITIES CAN HOLD THE USUFRUCTUARY TITLE?

The usufructuary title may be held by members of allodial clans or
families or subjects of the allodial stool or skins
1. Section 5(1)(a) of Act 1036
2. Ohimen v Adjei
Families can be vested with the usufruct where their clans holds
their allodial title
The usufructuary title can be held by the individual where the
family is the allodial owner
NB: The usufructuary title may also be held by non-indigenes and
groups of non-indigenes and their descendants through settlement
for a period of not less than 50 years except where the settlement
is on agreed terms.
3. Section 5(1)(b) of Act 1036

INCIDENTS OF THE USUFRUCT

a. The usufruct owner claims title through someone with the
allodial title
1. Section 5(1) of Act 1036
2. Thompson v Mensah

b. The usufruct owner’s interest in the land is inheritable and

 alienable
3. Section 5(1)(c) of Act 1036
NB: Where the usufruct is being alienated to an indigene, the
consent of the allodial holder is not important however, where the
alienation is to a stranger who is not covered under Section 5(1)
(b), then the written consent of the allodial owner is required and
same is the performance of established customary obligations.
4. Section 5(2)(b) of Act 1036

c. The usufructuary owner cultivates or makes use of the

land by building on an unoccupied portion of the land and
should maintain possession of the land. i.e. he must be in
possession of the land
5. Ohimen v Adjei
The presence of economic trees on the land is prima facie
evidence that someone is on the land
6. Norquaye-Tetteh v Malm
7. Owusu v Manche of Labadi
8. Wuta Ofei v Danquah

d. Perpetual and cannot be determined by the allodial owner

without his consent except it is an accordance with the
Act.
Thus in furtherance of the expansion of a town or settlement and
for the purpose of serving the communal interest of the
beneficiaries of the allodial interest, the allodial holder may
determine the interest of the usufruct over bare land of farm land
but cannot do so without prompt of fair and adequate
compensation which must not be less than 40% of the plots of the
land or their market value or providing suitable alternative and
where possible
9. Section 50(21) of Act 1036

e. The Usufruct is the owner of palm trees and any economic

crops found on the land and the allodial cannot sell any
economic crop found on the land under the control of the
usufruct
1. Mansu v Abboye
2. Attah v Esson

f. Any purported alienation or disposition by the allodial

owner without his consent is of no effect and does not
bind him
1. Total Oil Products v Obeng
2. Mansu v Abboye
3. Thompson v Mensah
4. Bressah v Asante
5. Kwadwo v Sono
6. Norquaye-Tetteh v Malm
7. Golightly v Ashrifi
8. Ohimen v Adjei
 g. The holder of the usufruct has exclusive right of
possession and use of the land.
1. Mansu v Abboye
Even an attempt of the allodial owner or his grantees to enter the
land of the usufructuary holder without his consent would amount
to trespass.

h. The holder of the usufruct can maintain an action in

trespass against the stool and can impeach a grant made
by the stool without his consent
1. Awuah v Adututu
2. Mansu v Abboye
3. Total Oil Products v Obeng
4. Baidoo v Osei & Wusu
The holder of the usufructuary title has the right to defend his
interest in litigation. He may sue the community or any other
person for a declaration of title, damages for trespass, and
recovery of possession
5. Ohimen v Adjei
6. Tawiah v Gyampo
7. Amoabimaa v Okyir

f. The holder of the usufructuary title is required to render

customary services to the allodial holder
1. Achiase Stool v Appiah

POWER OF ALIENATION
The usufruct owner can alienate his interest to another member of
the community or a stranger recognized under Section 5(1)(b)
without the consent of the stool so long as the obligation to
recognize the allodial ownership of the stool is preserved.
1. Section 5(2) of Act 1036
2. Total Oil Products v Obeng
3. Awuah v Adututu
4. Thompson v Mensah
5. Norquaye-Tetteh v Malm
6. Addai v Bonsu
NB: However, where the alienation is to a total stranger then
alienation would be subject to the written consent of the stool,
skin or clan or family and the performance or established
customary obligations.
7. Section 5(2) of Act 1036
NB: It is reasonable therefore to say that when such an alienation
is without the consent of the allodial owner, the alienation would
be void..
This position is however my position subject to discussion by
friends because under the old principle enunciated by Buor v
Beede, such an alienation would not be void but rather voidable
and can be set aside only when the allodial owner acts timeously
to set the alienation aside.
LOSS OF THE USUFRUCT/ COMMON LAW/
CUSTOMARY FREEHOLD
The usufruct may potentially subsist forever.
There are nevertheless circumstances in which it may be
terminated.
These are; by abandonment, by forfeiture, by failure of successors,
by compulsory acquisition by the state and by sale or gift.

A. ABANDONMENT
Where the usufruct holder abandons the land with the intention
not to use it any longer, it reverts to the allodial owner from whom
the usufruct was derived.
1. Mansu v Abboye
Abandonment is a question of fact. Thus, there must be evidence
of a clear intention not to use the land any more.
Where the land is acquired for building, abandonment again
consists of acts indicating an intention to surrender the interest.
Thus, a temporary disuse of the building is insufficient to
constitute abandonment
2. Agbloe II v Sappor
A mere neglect or non-use of the land for a period however long
does not in itself constitute abandonment. Some act or conduct
must be exhibited by the owner to show an intention of not to use
the land any longer.
3. Total Oil Products v Obeng
4. Malm v Lutterodt (illness of the tenant causing him not to develop the
land was held not to be abandonment)
A person cannot be said to have abandoned the land if he
manifests a clear intention to exercise dominion over the land
although he may not be physically in occupation
5. Norquaye-Tetteh v Malm
Thus, where the land is deemed to have been abandoned, the
allodial owner has the right to retake the land
6. Komey v Korkor

B. BY FORFEITURE
The holder of the usufructuary interest forfeits his interest when
he denies the title of the allodial owner by e.g. acknowledging that
the land he occupies is owned by another community or refuses to
perform customary services when demanded to do so by the
allodial owner.
1. Total Oil Products v Obeng
2. Amoabimaa v Okyir
3. Mansu v Abboye

C. COMPULSORY ACQUISITION
The state has statutory power to acquire land from any proprietor
of land whether allodial or freehold or whatever.
The compulsory acquisition has the effect of vesting the allodial
title and all other subordinate titles including the usufruct in the
state absolutely free from encumbrances from whoever
1. Section 1 and 233 of Act 1036
2. Section 249(4) of Act 1036
3. Nana Hyeaman II v Osei

D. FAILURE OF SUCCESSORS
The usufructuary title subsists potentially forever so long as the
original usufruct has successors in title.
The usufructuary interest terminates when the unlikely event of
failure of successors occurs
1. Mansu v Abboye

E. BY SALE OR GIFT
The usufructuary land may be sold by an auction in an execution
of a judgement debt against the usufructuary holder.
1. Mensah v Ackwonu (Chief Kofi Atta Baah- claimant)
2. Mensah v Jonfia
Similarly, where the customary holder makes a gift or sale to
another person, whether stranger or member of the community, he
looses his usufructuary interest in the land

F. BY CONSENT OF THE USUFRUCTUARY

HOLDER
The interest of the usufruct could be determined by his consent
1. Mansu v Abboye

CUSTOMARY
TENANCIES
Another interest in land as provided for under Section 1 of Act
1036 is customary tenancies.
Customary Tenancies has been explained as;
a. An interest in land which is created by contract
b. Arises where a stool or skin or clan or family which holds
the allodial title or person who holds the customary law
freehold or usufruct grant to other person an interest in
land upon agreed terms and conditions
c. May involve the payment of rent, the sharing of produce
of a farm or the physical partition or severance of the farm
 or land.
1. Section 7 of Act 1036
From the provision, we see that the customary tenancy may be in
respect of agricultural arrangement or an interest created in the
land which does not have to do with agriculture.
Customary tenancies are mostly having to do with farm lands or
agricultural tenancies since leases and tenancies of premises is a
creation of common law and not customary law
2. Boateng v Dwinfuor
Thus, we would have the discussion on these grounds i.e.
agricultural tenancies

AGRICULTURAL TENANCIES
Agricultural tenancies are contractual arrangements regulated by
custom whereby the tenant cultivates the land and share the
produce from the land with the landlord on an agreed formula.
This formula is the ABUNU or ABUSA formulae (NB: This is
Akan and has their equivalent in other Ghanaian languages like in
Fante called abehyem or dibimadibi in Ewe).

THE TRADITIONAL VIEW OF THE ABUNU AND ABUSA

TENANCIES
Traditionally, ABUSA tenancy arises when the owner of the land
grants it to another person to cultivate and share the produce of the
farm with the landowner in the ratio of 2/3rd to the tenant-farmer
and 1/3rd to the landowner.
The tenant-farmer at his own expense clears and cultivates the
land allocated to him by the landowner.
Thus, ABUSA is where a stranger with his own labour and at his
own expense, cultivates and maintains a farm on another person’s
land.
The reason the tenant-farmer gets 2/3rd of the produce of the land
is that since the landlord contributes nothing to the making of the
farm except the land, the tenant-farmer who contributed his labour
and other inputs to the farm must necessarily get the greater share.
NB: With the ABUNU, the landowner may have already
cultivated the farm and hands it over to another person to maintain
it and share the produce equally or the landowner gives financial
assistance to the tenant to make the farm on the land and share the
produce equally.
In any case, the landowner and not the tenant-farmer bears the
cost of making the farm.

MODERN VIEW OF THE ABUNU AND ABUSA TENANCIES

The modern view of the abunu and abusa tenancies are that the
terms of the tenancies are a question of fact and that customary
law is not inflexible so as to binding its incidence that no parties
could contract out of it.
Thus, the terms of the tenancy are fully based on the agreement of
the parties i.e. whether it is abunu or abusa would depend on the
agreement between the landlord and the tenant-farmer.
Thus, the parties can decide to contract out of the traditional view
and the court would still give primacy to the agreement even if the
practice reflected either of the tenancies.
1. Lamptey alias Npka v Fanyie
In fact, Act 1036 has now made it clear that the customary
tenancy involves an agreement between the allodial or usufruct
and the person to whom the interest is given so the act inclines
itself with the modern view of the agricultural tenancies.
NB: Where there’s such an agreement between the parties, the
strict application of the Abunu Abusa agreement would be subject
the agreement by the parties to the agreement!

INCIDENCE OF CUSTOMARY TENANCIES (ABUNU &

ABUSA)
a. The arrangement is normally used to cultivate cash crops
such as cocoa, Kola nuts, rubber and oil palm.
Cash crops take time to mature and thus the tenant-farmer is in the
interim allowed to plant seasonal or perineal crops like cassava,
plantain etc. to give shade to the cash crops whilst seedlings and
also for the survival of the tenant-farmer until the crops have
grown. These perineal crops belong to the tenant-farmer and not
to the land owner.
1. Fori v Ayirebi
Also, the landlord cannot benefit from the land until the
permanent or cash crops mature.
2. Fori v Ayirebi
This is however subject to the agreement between the parties

b. Subject to the agreement of the parties, the toll or sharing

arrangement discloses the nature of tenancy between the
parties
1. Fori v Ayirebi

c. The tenant-farmer has no ownership in the soil but has a

usufruct in the land because of his cultivation on the land
but again this is subject to the agreement between the
parties
1. Akofi v Wiresi

d. Alienability:
The customary tenancy being an interest less than the freehold is
only alienable subject to the consent of the landlord.
This is because generally, legal ownership in the land remains
vested in the land owner and the tenant only has a possessory
interest in the land.
He may however alienate his interest in the produce to a 3rd party
with due notice to the landlord
1. JB Danquah “Akan laws and customs”

e. Irrevocability:
The customary tenancy is irrevocable so long as the tenant
continues to observe the conditions of the grant.
1. Ado v Wusu
2. Kuma v Kuma
Thus, the landlord may not terminate the tenancy at will
3. Donkor v Asare
4. Manu v Ainoo

TERMINATION OF CUSTOMARY TENANCIES

A customary tenancy may be terminated in the following ways;
a. By express provision in the agreement;
As an agreement, the parties may expressly provide for the
termination of the tenancy when specific events subsequent
occurs.

b. By compulsory acquisition:
The effect of the acquisition of land by the state is to extinguish
all interest inferior to the allodial and transferred to the state free
from all encumbrances
1. Section 233 of Act 1036
2. Section 249(4) of Act 1036
3. Nana Hyeaman II v Osei

c. By forfeiture:
The customary tenancy subsists so long as the tenant-farmer
continues to observe the conditions of grant and does not deny the
title of the landowner.
When he denies the title of the landowner, the tenancy is
automatically forfeited.
1. Alifo v Amedza
2. Manu v Ainoo
A tenant-farmer may deny the title of the landowner when he
claims the land as his own
3. Bodoa v Ofoli
Or where he asserts that the land belongs to another person and
not the landowner
4. Anomabo stool v Acquah

LEASEHOLD INTEREST

A lease;
a. Is an interest in land which is created to last for a duration
which is fixed/ certain or capable of being ascertained
b. Arises when the allodial, customary or common law
freehold or usufructuary interest holder conveys interest
in the land to another person for a specified term subject
to terms and conditions
 c. In the case of a sublease or assignment arise when the
holder of the leasehold grants a sublease out of that
interest or assigns that interest
d. Does not exhaust the interest of the grantor in the land
1. Section 6 of Act 1036
We would look at leases into details under the discussion of
leases!

NB: Most of the discussions here have already been done under
STOOL LANDS AND allodial and usufructuary interests and thus we would merely refer
MANAGEMENT OF where appropriate
STOOL PROPERTY
ACQUISITION OF STOOL PROPERTY
A stool land includes any land or interest in, or right over, any
land controlled by a stool or skin, the head of a particular
community or the captain of a company, for the benefit of the
subjects of that Stool or the members of that community or
company
1. Article 295 of the 1992 constitution
A stool/ skin land shall vest in the appropriate stool/skin on behalf
of and in trust for the subjects of the still in accordance with
customary law and usage
2. Article 267(1) of the 1992 consitution
3. Section 9 of Act 1036
The acquisition of the stool property is the same as has been
discussed under the acquisition of the allodial and the
usufructuary interests!
NB: There’s a distinction as between the properties of the stool
and that of the occupant of the stool
However, upon ascension to the throne, if the chief fails to
earmark his self-acquired properties if became mixed up with the
stool property and could not be recovered upon death or
disposition
4. Adjubi v Mensah

MANAGEMENT OF STOOL PROPERTY

Management of stool property is part of the chief’s customary
duties
1. Korblah II v. Odartei II
The chief is a fiduciary of the stool and in his duties of
management of stool land, he is accountable as a fiduciary for
which a breach of this fiduciary duty can result in his payment of
fine or imprisonment or both.
2. Section 13 of Act 1036
NB: These duties have however been affected by the Constitution
particularly Articles 267 (2), (6) and (7) on the Office of
Administrator of stool lands.
NB: The management of stool land revenue is the responsibility of
the secretariat of the Lands Commission through the
Administrator of Stool Lands
1. Republic v. Kwadwo II
2. Western Hardwood Enterprises Ltd. v. West African
Enterprises Ltd
3. Omaboe III v. A-G and Lands Commission
4. Mahama v. Issah
5. Kan II v. A-G

ALIENATION OF STOOL PROPERTY

A stool may grant land in which they have the allodial interest to
subjects, strangers, companies and individuals.
NB: A stool can only transfer or alienate land to which it has an
interest.
Once the stool divests itself of an interest to another person, it
cannot resell it to another person unless a valid re-entry or
forfeiture has been made.
Any attempt by the stool to further alienate said land would render
said action Void as it is against the nemo dat quad non habet rule.
1. Tetteh & another v Hayford (substituted by) Larbi v
Decker
NB: an oral customary grant made in accordance with customary
law is effective from the day it was made and would render a
registered deed made to another subsequently void once it is
proved the customary grant was valid even if the subsequent one
is registered.
2. Odoi v Hammond
3. Malm v Lutterodt
4. Dovie & Dovie v Adabunu
NB: In so dealing with the stool land, the creation of a freehold
interest in the stool land however described has been prohibited!
5. Article 266 and 267 of the 1992 constitution
6. Section 9(2) of Act 1036
Under what circumstances can the stool be said to have divested
itself of the right to alienate or convey land?

A stool may be represented the Chief, sub-chief and the elders.

The person who occupies the stool is considered as the
embodiment of all the subjects and the custodian of the land and
therefore is indispensable in the alienation of stool land.
NB: Thus, the proper person to validly alienate stool land is the
occupant of the stool, the caretaker or the regent acting with the
consent and concurrence of the principal members of the stool.
1. Adumuah v Tettey-Kwao
2. Nkwantibisah III v Bonsu
3. Akunsah v Botchway & Jei Farm Ltd
4. Republic v Court of Appeal; Ex parte Lands
Commission
5. Mechanical Lloyd v Nartey
6. Awuku v Tetteh
An alienation of stool land by the occupant of the stool, without
the consent, knowledge and concurrence of the principal members
of the stool renders the alienation void.
7. Awuku v Tetteh
8. Akwei v Awuletey
9. Akunsa v Botchway
10. Kwami v Quanyor
In any case, where the occupant of the stool claims that he made
the grant with the consent and concurrence of the principal
members, would not automatically render the grant void, but the
chief would be required to establish who the said members and
that he indeed sought and got the consent of that person
11. France v Golightly; France v Addy (consolidated)
NB: It is key to note that a grant by the occupant of the stool with
a minority of the principal members of the stool would not make
the alienation void but rather voidable and may be set aside by an
application to the court by other principal members of the stool if
they acted timeously
12. Richard Appiah-Nkyi v Nana Achina Nuamah
A grant or alienation of stool land to a person by a chief with the
consent and concurrence of the elders remain valid even if the
chief’s enstoolment is subsequently nullified. Except where the
alienation was fraudulently made or illegal. Thus, a successor to a
stool cannot dissociate himself from any grant of land made by his
predecessor before the latter’s time of reign elapsed either by
destoolment, abdication or death
13. Amankwah v Kyere
NB: It is important at the point to note that the alienation of stool
property is subject to the concurrence and approval of the Lands
Commission
14. Article 276(3) of the 1992 consitution
15. Section 20 of Act 1036
16. Western Hardwood Enterprises Ltd. v West African
Enterprises Ltd
17. Hammond v Odoi
18. Schandorf v Zeini
19. Omaboe III v A-G and Lands Commission
20. Wiafe v. Bortey
21. Trasacco Estates Devt. Co. Ltd v Woodfields Devt. Co.
Ltd. & anor
NB: In addition to the concurrence of the Lands Commission, an
alienation is also voidable unless done with the consent and
concurrence of the Traditional council concerned!
22. Section 45 of the Chieftaincy Act 2008

Customary services due the stool

In so discussing the incidence of the allodial title, it was
mentioned that the usufruct must perform customary services to
the allodial owner which in this case is the Stool.
But then that brings up the question what is customary services?
Generally, we can say that customary services are those service
that stool subjects (be it subjects or strangers) render to the stool
as a result of being possession of stool land. It may include the
following;
Since tribal wars have ceased to exist, subjects are no longer
required to lay down their lives to win more land or to protect the
land. Thus, the general form which the customary services take
include;
a. provision of foodstuff, firewood or some other articles to
the stool at the feasts of the stool, at annual festivals
b. or when necessary, contributions to funds for financing
litigation in respect of the land.
c. With the rapid developments taking place, it soon may
happen that the performance of the customary rites to the
stool and litigation in respect of stool land may be
financed from a central fund to which all the dwellers,
subjects and strangers alike, within the territorial limits of
the stool land are bound to contribute. In such a case since
the contribution by the subject to that fund amounts to
performance of customary rites to the stool, the
compulsion upon the stranger too to contribute to that
same fund would amount to the stool admitting him to
actual performance of the said customary services.
1. Total Oil products v Obeng & Manu

The customary services are known to be rendered by the subjects

of the stool. However, a stranger to whom stool land has been
transferred is also bound to render customary services to the stool
2. Thompson v Mensah
It is the stool who enforces the payment of the customary services.
And when it comes to commuting the customary service, it is the
duty of the stool to commute the customary services to the
stranger-transferee and not the subject-transferor
3. Total oil products v Obeng & Manu
4. Wutor v Gyebi

CAPACITY TO LITIGATE ON BEHALF OF THE

STOOL
A stool is said to be a corporate sole with perpetual succession and
can sue and be sued. The stool is usually occupied by a chief who
is an agent of the stool.
1. Republic v Court of Appeal; Ex parte Lands
Commission
2. Nkwantibisah III v. Bonsu
3. Republic v. Lands Commission; Ex Parte Vanderpuye
Orgle Estates
The occupant of a stool may come and go but the stool subsists
forever
4. Quarm v Yankah II
A stool as a corporation sole has the capacity to sue and be sued
and it is occupant who may sue or be sued as representing the
stool or where the stool is vacant, it is the regent or the caretaker
 who would have the capacity to sue.
Thus, in a litigation, it is only the occupant of the stool that may
sue or be sued to the extent that apart from the occupant of the
stool, where the stool is not vacant, no one other person can sue or
be sued even if the occupant fails to sue and such failure would
lead to the danger or jeopardy of the stool land.
5. Owusu v Gyamfi
6. Frimpong v Nana Asare Obeng II
7. Nii Ashitey Sasaabi II v. Basharu Ibrahim Agoro & 2
Ors
NB: Where the stool is vacant then the capacity to sue is then
behest on the regent or the caretaker of the stool
8. Order 4 Rule 9 of C.I.47
This is same for where a person seeks to sue the stool. He can
only sue the occupant of the stool or where the stool is vacant, the
regent or caretaker.

ACCOUNTABILITY OF CHIEFS IN RESPECT OF STOOL

PROPERTY
Previously, it was the law that a chief could not be called upon by
his subjects to account during his reign
1. Hansen v Ankrah
It is now the position of the law that the chief as a fiduciary of
stool property and therefore under a duty to be transparent, open
and fair and impartial in making decisions affecting stool
properties and also, the provisions of the Head of family
accountability Act applies to chiefs also with some modifications
2. Section 13 of Act 1036
Thus, a chief may be made to account for dealings with stool
property.
NB: However, for a person to invoke the jurisdiction of the court
on such an issue, certain requirements must be met. These include;
a. The person should have first exhausted the established
customary procedure for making the chief accountable if
such a procedure exists;
b. The person should be qualified under the relevant
customary law to bring an action against the chief; or
c. The person should be a subject of the stool and should
have been granted leave by the court upon proof that the
rightful person has failed to take action within 30 days
after being informed of the need to take action
3. Section 13(6) of Act 1036

Generally, a family can be described as a group of people related

FAMILY PROPERTY by blood. And thus, family land is land owned by a family.
AND THE In Ghana, family comprises not only of the nuclear family but the
extended as well.
MANAGEMENT OF A family may have the allodial, usufructuary or leasehold interest
FAMILY PROPERTY in land depending on its mode of acquisition.
A family may be matrilineal or patrilineal depending on the ethnic
group of the person. The most important reason to know what the
orientation of an ethnic group is whether matrilineal or patrilineal
is for the sake of succession or inheritance.
For example, it is a settled position of law that succession in an
Ashanti family is matrilineal i.e. succession through one’s
mother’s lineage and not one’s father.
1. Beng & another v Poku
2. Krabah v Krakue

MODES OF ACQUISITION OF FAMILY

PROPERTY (LAND)
Family land is land belonging to members of a particular family
including the dead, the living and the unborn and it is considered a
valuable property to them.
Family land (immovable property) may be acquired in the
following ways;

A. ACQUISITION OF PROPERTY WITH FAMILY

RESOURCES
Generally, all property acquired with family resources is family
property.
Family resources may consist of property bought with family
money or the use of assistance in the form of labour of family
members in the acquisition of property.
Family money may be acquired through the income generated
from existing family property or the proceeds from the sale of
existing family property.
For a property to be considered as family property by virtue that it
was acquired with the assistance or contribution of family
members, the assistance or contribution so proffered must be
substantial or it must be a real contribution and not a de minis
1. Larbi v Cato
2. Amissah-Abadoo v Abadoo
So that where for instance a person takes a small quantity of
materials belonging to the family, the property would not be
family property by virtue of the non-substantiality of the
contribution by the family
3. Cudjoe v Kwatchey
Thus, where a person acquires the property from the joint labour
of the members of the family, the property may be considered a
family property by virtue of the joint labour of family members in
putting up the property
4. Nkonnua v Anarfi
5. Mensah v S.C.O.A and Boahene
6. Araba Tsetsewah v Acquah
NB: Where a person acquires a property and subsequently allows
family members to make use of the property would not change the
property to a family property
7. Cudjoe v Kwatchey
There are instances where family money is given to members of
the family to aid them in their education and other enterprises.
After said family money is given to members, the properties
acquired by the recipients of these monies from their own effort
do not make the properties automatically family property but
rather the individual property of said person unless he willingly
expends the property to the family.
8. Larbi v Cato

B. B UILDING BY A MEMBER ON FAMILY LAND

NB: Quid Quid plantatur doesn’t apply to family land
Ollenu J previously was of the opinion that building on family
land whether developed or undeveloped vest the said family
member with a lifetime interest in the land and as such upon his
death renders the property family property by virtue of him
building on family land
1. Ansah v Sackey
2. Owoo v Owoo
He however reviewed the decisions in the cases as they being too
general and brought about a much clearer position of the law such
that.
Where a member builds with his own resources on family land
which is undeveloped and unpossessed i.e. a vacant family land,
the member gains a usufructuary interest in the land which he can
maintain against the whole world which he can alienate.
However, where the member builds on family land which has
already been developed and possessed for example by adding a
few rooms to a family building, the member only acquires a life
time interest in the property to which after his death, the property
becomes fully a family property and thus the person cannot
attempt to alienate the property or will it to someone else after his
death. Here, the member acquires license to make use of the
property.

C. REDEMPTION OF FAMILY PROPERTY BY A MEMBER

This concerns the re-acquisition for the family of property to
which it formerly had title.
The title may have been lost in either because the property was
pledged according to customary law or mortgaged according to
common law or the property may have been lost in some way with
an appearance of greater finality, such as sale, or foreclosure
under a mortgage.
NB: Here if a family member recovers the property it resumes its
character as family property and as such doesn’t not become the
self-acquired property of the member who redeemed it.
In either case, if a member of the family recovers it, it may resume
its character of family property because the member is said to
recover the property for the benefit and on behalf of the family
1. Manukure v Aniapam
2. Bruce v Adjah
3. Afriyie v Paramount stool of Breman-Esiam
This principle holds unless the member distinctly informed
members of his family that he intended to redeem or purchase the
property for his own individual or beneficial use and the family
agreed to this!
4. Manukure v Aniapam

D. SEVERANCE WITH FAMILY TIES

Customary law provides that a single family can divide into two
or more independent families.
When this happens, lands which belonged to the original family
will be divided between its successors
1. Okaikor v Opare & Mensah

E . SUCCESSION
Self-acquired property of member dying intestate becomes family
property.
1. In re Atta (Decd)
2. Hausa v. Hausa
Per Kludze, this principle is inapplicable in Ewe law. This is
because it is individuals who succeed to property and not families.
3. Togbe Akpoma v Gladys Mensah

F. GIFT

ALIENATION OF FAMILY PROPERTY

Previously, the law forbade the alienation of family land with the
exception being for the payment of a family debt
1. Awortchie v Eshon
NB: The position of the law has however changed. The current
position of the law is that where necessary consents are given,
there is no obstacle to the alienation of family property.
A family property belongs to the family and thus an alienation of
family property requires the consent of the family head and the
members, particularly the principal members of the family.
NB: Generally, where the family head and principal members of
the family agree, an alienation of family property would be valid
even if the junior members oppose to it.
However, there are some exceptions to this general rule. These
exceptions include;
a. In the Ga custom, the consent of the children of a Ga six-
cloth marriage must be obtained for the alienation of the
self-acquired property of their father, after his death
intestate
1. Vanderpuye v Botchway
b. Also, where a member of the family has acquired a
usufructuary interest in the land, his consent is
prerequisite before any attempt to alienate the property is
valid
c. Where the family head and the principal members are
wantonly wasting family property for their own benefit,
 such alienation may be challenged
1. Kwan v Nyieni

NB: Generally, an alienation is valid when it is done by an

agreement between the family head and only a majority of the
principal members of the family and its effect is binding on the
entire family.
1. Hausa v Hausa
2. Kwan v Nyieni
3. Dotwaah v Afriyie
4. Dzefi v Ablorkor VI
5. Fianko v Aggrey
6. Boateng v Mckeown Investments
So that where the head of the family agrees with a minority of the
principal members of the family to alienate family property, such
alienation would be invalid.
NB: An alienation of family property without the consent and
concurrence of a majority of the principal members of family
would render the alienation voidable
NB: Also, where a family head seeks to alienate the family
property alone, without the consent and concurrence of the
principal members of the family, the alienation is rendered
voidable and the principal members may act timeously to set
aside the alienation
7. Boateng v Mckeown Investments
8. Agyei v Appiagyei per Granville Sharp JA
9. Fianko v Aggrey
10. Bayaidee v Mensah
Except that where the family head has asked the members of the
family to contribute to the expenses of litigation in defence of the
family land and they have refused to contribute then he may
validly alienate the land alone to settle the family debt
11. Gaisiwa v Kraba
NB: The consent of the family head in an alienation seems to be
of prior importance such that where all or majority or minority of
the principal members of the family alienate family property
without the consent and concurrence of the family head, said
alienation is void ab initio
12. Agloe v Sappor
13. Dotwaah v. Afriyie
14. Dr. Edward Asante & anor vs. Kwaku Preko
Generally, where there is no duly appointed head of family or the
duly appointed family head is absent, the eldest male member of
the family is vested with the right to represent the family and
perform as the family head and such he may in concurrence with
the principal members of the family alienate family property and
if he does it alone, the alienation would be voidable
15. Mills v Addy
16. Fosu v Kramo
There are instances where there are many branches of the family
with no clear family head. Here, a valid alienation is valid only
when it is done by all the branches of the family. Such that an
alienation by only majority or minority of the branches of the
family would be rendered invalid
17. Akiwumi v Sappor

REMEDIES OF A PURCHASER UNDER AN INEFFECTIVE

ALIENATION
The persons who purported to alienate the property will, if they
acted knowingly, be guilty of a criminal offence. In addition, they
may be liable for breach of contract for the tort of deceit, or in
quasi-contract; often they will be liable for breach of covenant.
Thus, the purchase price, and sometimes damages in excess of
this, can be recovered if the payee can be found and has the means
to pay.
However, where the purchaser knows that the land is family land
and that the consent and concurrence from the appropriate persons
was not acquired, then he cannot recover the purchase price
because he would be in dilecto and the law does not have any
remedies for an illegal contract.
1. Awortchie v Eshon

CAPACITY TO MAINTAIN AN ACTION FOR OR

ON BEHALF OF THE FAMILY ON ISSUES
RELATING TO FAMILY PROPERTY
The general principle is that an action to protect family property
must be instituted on behalf of or as representing the family by the
head of family.
1. Kwan v Nyieni
2. Mahama Hausa v Baako Hausa
3. Dotwaah v. Afriyie
4. Tagoe v. Idun
5. Dzefi v. Ablorkor VI
6. In re Ashalley Botwe Lands; Agbosu v. Kotey
7. In re Neequaye (Decd)
This is because the head of family has the responsibility to protect
family property which are being used to the disadvantage or
detriment of the family.
However, the family head may sit unconcerned when family
property is being used to the detriment of the family or may even
collude with other people to dispossess the family of the property.
Thus, to avoid such situations, exceptions have been made to the
general rule that only the family head may sue or be sued on
behalf of the family.
These traditional exceptions were discussed in Kwan v Nyieni.
The exceptions include;
a. Where family property is in danger of being lost to the
family, and it is shown that the head, either out of
personal interest or otherwise, will not make a move to
save or preserve it or
 b. Where, owing to a division in the family, the head and
some of the principal members will not take any steps; or
c. Where the head and the principal members are
deliberately disposing of the family property in their
personal interest, to the detriment of the family as a whole
In any such special circumstances the Courts will entertain an
action by any member of the family, either upon proof that he has
been authorised by other members of the family to sue, or upon
proof of necessity, provided that the Court is satisfied that the
action is instituted in order to preserve the family character of the
property
1. Kwan v Nyieni
These exceptions are however not exhaustive and as such any
family member may sue to protect the family property where he
can demonstrate special circumstances as to why he should sue on
behalf of the family.
Every reason proffered by the family member would be
determined on its own merits as to whether said member should
be clothed with the capacity to sue.
NB: A family member who comes under the exceptions must
explain the reason why he is suing on behalf of the family when
he is not the family head and where his reasons is allowed by the
court a writ is served on the family head who within 3days must
apply to the court to object to the writ or to be substituted as
plaintiff or joined as co-plaintiff
2. Order 4 rule 9 of the High Court (Civil procedure) Rules
On the other hand, where a person claims to be the family head
with evidence adducing to the fact and that fact is disputed by the
defendants, then the onus lies on the defendant to prove that the
claimant is not the head of the family and show to the court with
evidence who the appropriate head of family is
3. Akrofi v Otenge
NB: A customary successor may maintain an action to protect the
family property on behalf of the members of said family
4. Mahama Hausa v Baako Hausa
5. Dotwaah & anor v Afriyie

ACCOUNTABILITY OF THE HEAD OF FAMILY

The customary law position is the head of the family is not
accountable or is immune from suit to compel him to render
accounts. He may be questioned during family meetings for his
stewardship and the best remedy available for gross misconduct
may be to remove him as head and replace him by the principal
members of the family. But so long as the person occupies the
position as head of the family, he can’t be dragged to court to
render accounts of family property by any member of the family.
However, it is only when the person has been removed from office
as the head of the family and a new one appointed can the new
head of the family institute proceedings against the old for the
rendering of accounts of family property. In that case it would be
the current against the old head of family
 1. Hansen v Ankrah
However, the scope and extent of the head of family’s immunity
to accountability in respect of family property in his possession is
limited to properties attached to the post of headship and not self-
acquired properties of a deceased member dying intestate, which
by operation of law came under the head’s control where no
customary successor to the deceased had been duly appointed to
take charge of them
2. Annan v Kwogyirem
NB: Notwithstanding the customary law position, the current law
which is statutory law is to the effect that any head of family who
is in possession or control of, or has in his custody, any family
property shall be accountable for such property to the family to
which the property belongs and every Head of family or any
person who is in possession or control of, or has in his custody,
any family property shall cause to be taken and filed an inventory
of all such family property
3. Section 1 of the Head of Family Accountability Act 1985
(PNDCL 114)
Where a head of family fails or refuses to render account or file an
inventory of the family property, a member of the family to which
that property belongs who has or claims to have a beneficial
interest in the property, may apply by motion to a Court for an
order compelling the head of family to render account or file an
inventory of the family property to the family.
NB: However, the application shall not be entertained by the
Court unless the Court is satisfied that the applicant had taken
steps to settle the matter within the family and that the attempts
had failed.
4. Section 2 of PNDCL 114
On the accountability of the head of family, the Land Act has
given recognition to PNDCL 114 in that it provides that the
provisions of PNDCL 114 apply with necessary modification.
5. Section 9(5) of Act 1036
However, for a person to invoke the jurisdiction of the court on
such an issue, certain requirements must be met. These include;
a. The person should have first exhausted the established
customary procedure for making the chief accountable if
such a procedure exists;
b. The person should be qualified under the relevant
customary law to bring an action against the chief; or
c. The person should be a subject of the stool and should
have been granted leave by the court upon proof that the
rightful person has failed to take action within 30 days
after being informed of the need to take action
6. Section 13(6) of Act 1036
NB: The head of family stands in a fiduciary relationship to the
family and in the management of the family’s property, he is
accountable as a fiduciary.
7. Section 13(2) of Act 1036
 APPOINTMENT OF THE HEAD OF
FAMILY
The head of family occupies a very important position in the
family. He has control over the family properties and over all the
members of the family and the issue of such members.
He is vested with authority to manage and direct the affairs of the
family. As such, he is the natural guardian of every member
within the family.
NB: For a head of family to be appointed, the headship must to
the knowledge of the family be vacant.
The headship becomes vacant when the existing head of family
dies, is removed from office, resigns, abdicates etc.
NB: The appointment is then made at a meeting of the council of
the family consisting of such of elders or principal members of the
family who accept the invitation to the meeting
NB: The head of family is appointed by the principal members of
the family at a meeting of the family specifically convened for
that purpose
1. Abakah v Ambradu
In summary, the appointment takes this form;
a. The head of family is elected at a family meeting
b. The meeting must be convened for the purpose of the
election
c. All principal members of the family must be summoned
or invited to the meeting
d. The notice of the meeting must be circulated or given to
all the members who are entitled by custom to participate
in the election or appointment.
e. The notice must state that the meeting is being convened
for the purpose of election or the appointment of a head of
family.
1. Lartey v Mensah
NB: Where the meeting is convened for some other purpose other
than for the appointment of a head of family, an appointment
made under such a meeting would be invalid because a meeting
convened for example for the settlement of a dispute between two
members of the family may not be of interest to a principal
member of the family and such would not attend the meeting.
2. Lartey v Mensah
3. Abakah v Ambradu
Also, if notice of the meeting was given to all the principal
members who are entitled to be invited to it, an appointment made
at the meeting would be valid and effective notwithstanding the
absence of some of the principal members from the meeting.

WHO IS ELIGIBLE TO BECOME HEAD OF THE FAMILY

The family is not tied down to choose any particular person. They
are entitled to appoint any eligible person in the family.
By native custom a person does not automatically become head of
a family as of right.
In the non-Akan areas as an example, where the family consists
principally of descendants in the male line, the family can, if in
their opinion there is no suitable candidate among the descendants
in the direct male line, appoint a descendant in the female line
1. Hervi v. Tamakloe

WHO HAS THE AUTHORITY TO CONVENE THE FAMILY

MEETING ?
The meeting for the appointment of the head of the family may be
convened by the most senior member of the family, male or
female, by two or more elders or principal members of the family
or even by any respectable member of the community, an elder or
chief of the quarter, or town, upon the request of members of the
family.
The meeting being convened by a stranger like the respectable
member of the community does not invalidate the meeting and the
subsequent appointment because it would be not only be
reasonable but also prudent and desirable in cases of internal
dissension in the family for such a meeting convened for the
purpose of electing a successor to be chaired by a neutral person
of standing in the local community who is acceptable to all sides
1. Banahene v Adinkra

REMOVAL OF THE HEAD OF FAMILY

The right of removing the Head of family from office is vested in
the principal members of the family and the act of the majority
would be binding on the rest.
To depose a head of family:
a. A complaint must be lodged against him.
b. The complaint must show what offences the head of
family has committed against the family in order to afford
him an opportunity to answer them.
c. The head must be summoned to a family meeting to
answer the charges. He cannot be removed without this
due notice given to him
1. Abaka v Ambradu
d. If the complaint is proved he may be removed by a
majority of the principal members of the family present at
the meeting.
1. Hansen v Ankrah
Also, just like the appointment of the head of family, for the
removal to be valid, the principal members of the family must be
given notice to attend the meeting which is purported to remove
the head of family and failing to do this would invalidate the
removal.
2. Abaka v Ambradu
NB: What would constitute a ground is within the domestic
jurisdiction of the family to decide on what they regard as good
grounds for deposing their head of family
 NB: Where the head of family summoned fails to attend the
meeting and does not give good reasons for his absence, he may
be removed in his absence
3. Abaka v Ambradu
The courts would generally not interfere in such matters.
However, the court would only interfere when there had been a
complete or substantial denial of justice
4. Allotey v Quarcoo
The burden of alleging and proving specific grounds of invalidity
of either the appointment or removal of a head of family at a
family meeting rested with the family member seeking to avoid
the decision reached at the meeting.
5. Welbeck v M. Captan Ltd
6. Allotey v. Quarcoo

As provided for by Section 2 of Act 1036, the allodial interest in

PUBLIC land may be held by entities including the State.
The State acquires such interest in land through inter alia,

LANDS compulsory acquisition, conquest, pioneer discovery and

settlement, gift, purchase or agreement.
1. Section 2 of Act 1036
Lands held by the State are referred to as Public lands.
Public lands are vested in the president on behalf of and in trust
for the people of Ghana
2. Article 257 of the 1992 Constitution
Public lands have been explained as “any land which, immediately
before the coming into force of this Constitution, was vested in the
Government of Ghana on behalf of, and in trust for, the people of
Ghana for the public service of Ghana, and any other land
acquired in the public interest, for the purposes of the Government
of Ghana before, on or after that date”
3. Article 257(2) of the 1992 constitution
Public interest has been defined as “any right or advantage which
inures or is intended to inure to the benefit generally of the whole
of the people of Ghana”
4. Article 295(1) of the 1992 constitution
The means through which the State may acquire lands which
become public lands include through compulsory acquisition.
This aspect of the discussion thus purports to delve into that
aspect.
NB: Thus, from the definitions, public lands are lands which have
been compulsorily acquired or taken possession of by the
government for public purpose, interest or for the benefit of the
people of Ghana and such lands are vested in the government as
trustees for the benefit of the people of Ghana. Not only lands
compulsorily taken or acquired under the 1992 consitution but
lands previously acquired or taken and vested in the government
before the coming into force of the 1992 constitution all form part
of public lands.
Anytime a land is compulsorily acquired, it is done by the lands
commission and the AG prepares the relevant EI which vests the
land in the government as the trustee and the people as the
beneficiaries.
The power of the state to compulsorily acquire land is limitless.
However, for the compulsory acquisition to be valid, it must have
conformed to some constitutional and statutory validity
requirements laws which are spelt out in Article 20 of the 1992
constitution and in the Land Act 2020 (Act 1036)

COMPULSORY
ACQUISITION

Property ownership is a fundamental right strictly protected by

law under Article 18 of the 1992 constitution but there may arise
at times, legitimate public concerns which may override private
ownership of property.
The underlying principle therefore is the State’s control over
people and their private property which may be needed for
providing land for public and social amenities thereby correcting
agricultural, economic, social inefficiencies and infrastructural
disequilibria in private market operations with the primary view to
providing greater equity and social justice in the distribution of
land and land resources generally.
But for compulsory acquisition to be valid, it must be in
conformity with the provisions of Article 20 of the consitution
and the provisions of Act 1036

HOW HAS THE POWERS BEING LIMITED BY THE LAW?

The government cannot acquire any land without adhering to
Article 20 and Section 233 of Act 1036
The government in acquiring any land must adhere to said
provisions lest rendering the acquisition invalid.
Article 20(1) provides that no property of any description or
interest in or right over any property shall be compulsorily taken
possession of or acquired by the State unless the following
conditions are satisfied; i.e. the requirements for a valid
compulsory acquisition include;
a. The taking of possession or acquisition is necessary in the
interest of defence, public safety, public order, public
morality, public health, town and country planning or the
development or utilization of property in such a manner as
to promote the public benefit.
1. Article 20(1)(a) of the 1992 constitution
2. Section 233(1)(a) of Act 1036
Thus, the government ought to spell out what particular public
interest for what the compulsory acquisition was effected.
 b. the necessity for the acquisition is clearly stated and is
such as to provide reasonable justification for causing any
hardship that may result to any person who has an interest
in or right over the property
1. Article 20(1)(b) of the 1992 constitution
2. Section 233(2) of Act 1036
There must be a necessity clause so as to justify the acquisition.

c. The compulsory acquisition of property by the State shall

only be made under a law which makes provision for the
prompt payment of fair and adequate compensation and a
right of access to the High Court by any person who has
an interest in or right over the property whether direct or
on appeal from other authority, for the determination of
his interest or right and the amount of compensation to
which he is entitled
1. Article 20(2)(a) and (b) of the 1992 constitution
2. Section 233(3) of Act 1036
It is the lands commission that is responsible for the payment of
said compensation.
Even though it is the lands commission that is responsible, since
the Lands commission owns no land but rather acts on behalf of
the state the right to person to sue when aggrieved is the Attorney
General.
3. Nene Dokutso v Lands Commission

d. Where the person is displaced as a result of the

compensation, the state shall resettle the displaced
inhabitants on suitable alternative land with due regard for
their economic well being and social and cultural values
1. Article 20(3) of the 1992 constitution

e. The property compulsorily acquired in public interest or

for public purpose is to be used only in public interest or
for the public purpose for which it was compulsorily
acquired
1. Article 20(5) of the 1992 constitution
2. Armah v Lands Commission
When the government acquires any piece of land for any purpose
stated, there are some consequential effect that can reasonably be
seen as supporting the reason for the acquisition though not falling
squarely in the reason for acquisition. Thus, it is prudent to look at
it in the context of the services provided whether they make the
enjoyment of said public purpose complete
3. Nii Niikoi Olai Amontia v MD GH Telecom
4. Omaboe III v AG

f. Where the property is not used in the public interest or for

the purpose for which it was acquired, the owner of the
property immediately before the compulsory acquisition,
shall be given the first option for acquiring the property
 and shall, on such reacquisition refund the whole or part
of the compensation paid to him as provided for by law or
such other amount as is commensurate with the value of
the property at the time of the reacquisition
1. Article 20(6) of the 1992 constitution
2. Armah v Lands commission

g. The Acquisition is to by the publication of and EI in the

gazette specify the nature, extent and location of the land
acquired and the purpose of the acquisition
1. Section 233(4) of Act 1036

THE PROCEDURE IN COMPULSORY

ACQUISITION
As provided by Section 239 of Act 1036, the procedures for
compulsory acquisition ae provided in Sections 240 to 249
a. Declaration of Land intended for compulsory
acquisition
Where the States decides that land is required for any of the public
reasons a declaration shall be published in the Gazette. The
declaration would lapse and cease to be of any effect on the
expiration of 2 years after the publication of the declaration in the
Gazette. However, the Lands commission may for good reason
before the expiration of the 2year or within that time apply to the
court for an extension of that period for a further one year.

b. The next procedure is the preliminary investigation.

Here, after the state is satisfied that the land is required for a
public purpose, it makes it lawful for a person authorised by the
Lands commission and his staff/ workmen to enter the land and
survey same and its adjoining lands. They do this by digging
through the subsoil for analysis; undertake a valuation of the land
and do all other necessary things to ascertain the suitability of the
land.
In doing so they give a 30 day notice to the locality where the land
is situated of their intention to enter the land.
Generally, the person require the consent of the occupier however,
the person and his staff may enter within 14 days after notice is
given if consent is not granted them.
On entry, where the authorised person or his staff cause any
damage, they shall pay for same and where there is dispute as to
the amount to be paid, the matter shall be referred to the Lands
commission and where the person is dissatisfied, he may resort to
arbitration under ADR.

c. Notice to a person of interest

After the preliminary investigation, if the state decides to acquire
the land, the Lands Commission shall give notice to persons who
have interest in the land and that notice is to be published in the
Gazette.
The notice is to be published at least once in the gazette and a
daily newspaper of national circulation, a copy sent to the official
notice board of the District assembly and the Traditional council
and also affixed on a conspicuous part of the land
NB: The notice lapses if no action takes place in pursuance to the
notice within one year from the date of publication in the gazette.

d. Land to be demarcated, surveyed and entered on

register
After publication of the notice, the Lands commission shall cause
the areas affected by the compulsory acquisition to be demarcated
and surveyed (unless this has already been done to the satisfaction
of the Lands commission); and make a note of the intended
compulsory acquisition in the Land Register or Deeds Register.

e. Consultation with Stakeholders

The compulsory acquisition shall not be done unless the Lands
commission has consulted the person with interest in the affected
lands and occupiers of same, the traditional authorities and
community leaders and their concerns taken into consideration

f. Report of Consultation
A report of the consultation in respect of the acquisition is
prepared by the Commission and published and a copy of that
report is made available to the persons with interest in the land

g. Further Survey
The commission may by written authority authorize a land
surveyor together with his staff to enter the land specified in the
notification published to carry out further survey work.
The authorized person before entering the land is to seek the
consent of the occupier and upon failure to get consent, give the
occupier a 14 day notice in writing of the intention to enter

h. Withdrawal of State from acquisition

The State may withdraw its intended compulsory acquisition of
land by publishing a notice of the withdrawal in the same manner
as they gave the notice to enter.
Where there I withdrawal, the Lands Commission shall in
consultation with the persons affected by the withdrawal
determine the amount of cost incurred by said person; reserve the
right to forfeit an amount which is sufficient to defray the amount
of costs and damages and deduct the amount determined from the
deposit or escrow account.
NB: Despite the withdrawal a person affected may make a claim
for compensation for any loss he has incurred on account of the
restrictions imposed by the proposed compulsory acquisition on
the use or enjoyment of the land

i. Information on land use of scheduled land

For the purpose of assessing the amount of compensation, the
Commission shall request from the local planning authority
information relating to whether the scheduled land is subject to
any local plan under the Land use and Spatial Planning Act, 2016
(Act 925); if there’s a local plan, the land use indicated therein
and environmental considerations.
The local authority is to provide the information within 30days
after the request is made and the information received would be
conclusive evidence for the purpose of valuing the land with
regard to the approved land use at the date of acquisition

j. Publication of Executive Instrument

The acquisition takes effect from the date of publication of the EI.
A copy of the EI shall;
a. be served personally on the persons having interest in the
land or left with a person in occupation thereof or where
the person affected outside the district or region where the
land is located, then a copy of the EI be sent to his last
known address; also on the tradition authority of the area
within which the land is situate and the authority request
the chief to notify the people of the area concerned;
b. affixed at a conspicuous place on the land and also served
on the district assembly of where the land is located
c. published on 3 consecutive occasions in a newspaper
circulating in the district where the land is situated and in
other manner directed by Lands commission and also
published on a local radio station where the land is
situated.
NB: On the publication of the EI, the land shall without further
assurance vest in the president free from any encumbrances
1. Okudzeto Ablakwa & anor v AG & Obitsebi Lamptey
2. Nana Hyeman v Osei
NB: The instrument is which is not published in the gazette
specifying the nature, extent and location of the land acquired and
the purpose of the acquisition is VOID!
NB: By Section 238, compulsory acquisition shall not be
undertaken unless the intended user of the acquired land proves in
writing to the satisfaction of the Lands Commission that the funds
for the payment of the compensation and other cost associated
with the acquisition have been paid into an interest yielding
escrow account!
However, where the intended user is a public body fully
dependent on pubic funds, that body shall obtain cabinet approval
and have an approved budget allocation for the payment of the
compensation and other cost associated with the acquisition. But if
the public body is not fully dependent on public funds, then they
have to pay into the escrow account before the compulsory
acquisition process shall begin!
Please I’m not making notes on the following
Read from Section 260 to 267 on your own! They are important!

EFFECTS OF THE COMPULSORY ACQUISITION

 NB: On the publication of the EI, the land shall without further
assurance vest in the president free from any encumbrances
1. Okudzeto Ablakwa & anor v AG & Obitsebi Lamptey
2. Nana Hyeman v Osei
Thus, by law, any person who claims to have an interest in the
land and has his right affected by the acquisition shall within a
period not exceeding 6 months from the date of publication of the
EI submit in writing to the commission the particulars of the claim
he has, how those interest he had has been affected by the
acquisition and the amount of compensation he seeks to claim and
the basis of said calculation.
1. Section 250 of Act 1036
Like I said… read the remaining provisions!

A lease is an agreement to use another’s land, usually for a

LEASES specific time in return for the payment of rent.

It creates between the Lessor and the Lessee the special
relationship of landlord and tenant
NB: A lease (tenancy) is defined as the exclusive possession of a
property for a defined term at a rent with the parties having the
intention to create a tenancy
1. Street v Mountford
A lease in the new Land Act has been explained as;
a. Is an interest in land for a duration which is certain or
capable of being ascertained;
b. Arises when a person who holds an allodial title,
customary law freehold, common law freehold or
usufructuary interest conveys to another person an interest
in land for a specific term subject to terms and conditions;
c. May, in the case of a sublease or an assignment, arise
where the holder of a leasehold interest grants a sublease
out of that interest or assigns that interest; and
d. Does not exhaust the interest of the grantor in the land.

THE INDICIA
The elements/conditions in the definition are that which are
referred to as the Indicia of leasehold
A valid lease must have the following indicia;
a. The land must be well defined to make its identity certain
b. The lessee must have the right to exclusive possession of
the property during the subsistence of the lease
c. The fulfilment of the requirements of a valid lease
including reducing it into writing and signed by the
parties/ their agents
d. Certainty of duration/ fixed period
e. The grantor’s interest does not exhaust by the grant of the
lease
NB: a lease cannot exist outside of the Indica. Thus, where the
indicia exists, the court would declare such an agreement as a
lease regardless of how the parties have named or characterized
the agreement
 1. Street v Mountford
Let’s take the indicia in discussion;

a. CERTAINTY OF DURATION/ TIME

The most important of the conditions is the certainty of time or the
fixed period within which the lease is to subsist.
NB: Every lease must have a clearly defined date on which it
commences and a date on which it expires.
1. Section 6(a) of Act 1036
2. Ashburn Anstalt v Arnold (here by an agreement between C and D, C
was allowed by D to remain on the property until 29 September without paying
rent. C subsequently purchased the property subject to the initial agreement. The
court dismissing the claim of C held inter alia that although no rent was payable,
the 1973 agreement gave C exclusive possession for a certain period and thus
created a tenancy)
This mean that the lease must have a certain or ascertainable date
of commencement
3. Harvey v Pratt
If the commencement date is not certain but has been clearly
defined, it still satisfies the commencement requirement
4. Swift v Macbean (a lease, which the parties agreed was to commence
upon declaration of war, was valid since in the view of the court given the
prevailing circumstances in Europe at that time, the declaration was generally
regarded as only a matter of time)
5. Brilliant v Michaels
The agreement must also have a certain or ascertainable date of
termination
6. Lace v Chantler (here, a lease to subsist for the duration of the 2nd world
war was held to be void as being of uncertain maximum duration)
NB: A purported lease may be held void if its duration is
uncertain or if it purports to grant a lease in perpetuity.
7. Lace v Chantler
8. Sevenoaks, Maidstone and Turnbridge Rail co. v
London Chatham & Dover Rly co.

b. EXCLUSIVE POSSESSION
For there to be a valid lease, the lessee must be in exclusive
possession of the subject matter of the lease.
1. Street v Mountford
2. Antonaides v Villiers
3. Somma v Hazlehurst
There can be no lease if the landlord retains any concurrent right
to possession or control of the land with the lessee.
The lessee must have the right to the exclusion of everyone
including the landlord from exercising any right over the land to
constitute exclusive possession.
A person on the land but not entitled to exclusive possession is a
licensee but never a lessee
4. London & NW Railway v Buckmaster
NB: The existence of exclusive possession is a matter for the
construction of the agreement between the parties in the light of
their conduct in relation to the property.
Thus, if the occupier has been granted the exclusive right to use
the property, even to the exclusion of the landlord, there is a
strong presumption that the agreement amounts to a lease.
NB: There can be no lease without exclusive possession but there
can be exclusive possession which doesn’t amount to a lease.
In that light, an important aspect of the exclusive possession is the
intention (the intention to create legal relations) for the grant of
the exclusive possession such that if a person is in exclusive
possession of a property due to an act of generosity, friendship or
charity with regard to rent, it must not be seen as indicative of the
legal status of the individual in occupation.
5. Marcroft Wagons ltd v Smith
6. Errington v Errington & Woods
7. Booker v Palmer
8. Heslop v Burns
Thus, though a person in exclusive possession is prima facie a
lessee, he will however not be held so if the intention to create
legal relations is negatived.
9. Cobb v Lane
10. Facchini v Bryson
A duty post accommodation, though granting exclusive
possession, does not create a lease. It may create a license but
never a lease
11. Ampomah v Volta River Authority
12. Facchini v Bryson
13. Mayhew v Suttle

c. RENT
It must be noted that the receipt of rent is usually the main reason
why the landlord grants the tenancy in the first place. Rent can be
in goods, services or payable in kind
It need not be restricted to monetary payment. The only clear
requirement is that the amount of rent must be capable of being
rendered certain
NB: Rent has been held in English law as not being a requirement
to create a lease
1. Ashburn Anstalt v Arnold
This is because, there may be a situation where exclusive
possession over the land for a fixed period with the intention to
create a tenancy may be operational without the landlord taking
rent for same and that would not invalidate same as a lease.
NB: Thus, rent is not an essential element in leases.

AGREEMENT FOR A LEASE

Sometimes before a formal lease is drawn up, the parties may
upon certain terms agreed by them enter into an agreement or
contract whereby the intending lessor agrees to create a lease but
does not actually create the lease and the intending lessee agrees
to take the lease but does not actually take the lease.
Such an agreement is distinguished from the lease itself.
NB: The agreement for a lease is not effective to vest any legal
interest in the lessee.
However, if it contains all the essential provisions and the
attributes of an enforceable contract, then a court will in a proper
case, order specific performance of it especially when there is
evidence of part performance by a party.
For the agreement to be enforceable, it must in addition to the
common law requirements of a contract, the requirements under
Section 34 of Act 1036 (i.e. a contract for transfer of interest in
land is not enforceable if the contract is not evidenced in writing
and signed by person against whom the contract is to be proved or
his duly authorised agent or exempt under Section 36) of a
contract also satisfy the requirements of Section 35 of the Land
Act 2020 (Act 1036)
NB: Thus, the agreement must be in writing and signed by the
person making the transfer or by his duly authorized agent in
writing and the person to whom the transfer is made or his duly
authorized agent in writing.
1. Section 35(1) of Act 1036
However, it is not every writing which would satisfy the statutory
requirement of Section 35.
NB: In order to satisfy the requirement, the writing must contain
all the material terms of the agreement for the lease
2. Sackey v Ashong
3. Hawkins v Price
The material terms the agreement must contain include;
i. There must be a clear offer and acceptance containing an
adequate description of the property and the term granted
ii. The agreement must name the parties
iii. The agreement must state the rent payable
iv. The agreement must contain (any) special terms and
covenants.
v. The agreement must be signed by the party against whom
it is to be enforced
NB: When the agreement for a lease contains all the material
terms, then it could be specifically enforced under the equitable
maxim that “equity considers as done that which ought to be
done” when one party decide to resile from the contract.
This is because equity treats a specifically enforceable agreement
for a lease as if it were the lease itself.
The parties are thus held bound by the terms of the agreement and
the landlord and tenant would both have rights to sue for remedies
that would be due them had a lease been concluded.
NB: Where there is no fraud, misrepresentation or illegality on the
part of either parties, the court will enforce the agreement even
though a lease had not been concluded
NB: the agreement for lease is however enforceable only in equity
4. Walsh v Lonsdale
 CREATION OF A LEASE/
MODE OF TRANSFER

A lease is different from an agreement for a lease in that a lease

creates a legal interest in the land of the lessor in favor of the
lessee when completed.
By Section 35(1) of Act 1036, a transfer of an interest in land
shall be by a writing signed by the person making the transfer or
by the agent of that person duly authorised in writing and the
person to whom the transfer is made or by his duly authorized
agent in writing unless relieved against the need for a writing by
Section 36.
1. Section 35 and 36 of Act 1036
According to Section 32, a holder of an interest in land may by an
instrument transfer that interest to any person with or without
consideration.
2. Section 32 of Act 1036
Since Section 1 and 6 provides that a lease is an interest in land,
its transfer is therefore subject to Section 35 in that it must be in
writing and signed by the transferor or his duly authorised agent
and the transferee or his duly authorised agent.
NB: However, for certain leases, the requirement of writing does
not apply.
NB: Thus for a transfer or contract for the transfer of an interest in
land which takes effect by a lease taking effect in possession for a
term not exceeding 3years, whether or not the lessee is given
power to extend the term, the requirement of writing does not
apply
3. Section 36(1)(f) of Act 1036
Thus, for a lease to fall under section 36(1)(f), the least must;
a. Take in effect in possession
b. Be for a term not exceeding 3years
If a lease is made in this form, then there may be a valid transfer
of title in form of a lease when it is made orally.
NB: An oral lease may also be given effect to it is it followed by
such of part performance as to be specifically enforceable in
equity
1. Section 36(1)(h) of Act 1036
2. Sackey v Ashong
3. Djan v Owoo
4. Sbaiti v Samarasinghe
NB: This means that where an agreement is not reduced into
writing in accordance with Sections 35, and is not exempted by
Section 36, the effect is that any interest purported to have been
acquired from the transaction, be it a lease or whatever form of
conveyance is not enforceable
 5. Section 35(2) of Act 1036
6. Asante-Appiah v Amponsa alias Mensah
NB: Sections 35 and 36 are subject to the rules of equity including
the rules relating to unconscionability, fraud, duress and part
performance.
7. Section 36(2) of Act 1036
NB: The writing requirement needs not take any particular form.
A lease may be created by the exchange of letters or by an
informal writing provided that it contains all the material
provisions and conditions which the parties intend to be binding
on them
8. Djan v Owoo

TYPES OF LEASES
There are 4 types of leases known to the Ghana common law.
These are;
a. A fixed term lease
b. Revisionary lease
c. Equitable lease
d. Concurrent lease

 FIXED TERM LEASE

A lease for a fixed term is that which the duration has been finally
completed by the parties. The lease may be as short as one year or
as long as 99 years.
Whatever the duration, the most important to note is that the term
of the lease is certain or ought to be capable of ascertainment
before it takes effect for there can be no lease unless it is for a
certain duration
1. Lace v Chantler
Or capable of ascertainment where contingent on an event
2. Swift v Macbean
This means that the lease must have a certain or ascertainable date
of commencement
3. Harvey v Pratt
As well as a certain or ascertainable date of termination
4. Lace v Chantler
A purported lease may be invalid if its duration is uncertain or if it
purports to grant a lease in perpetuity
5. Lace v Chantler
6. Sevenoaks, Maidstone and Turnbridge Rail Co v
London, Chatham and Dover Rly Co
7. Ashburn Anstalt v Arnold
NB: The maximum duration of a term of years must be
ascertainable at the outset
8. Prudential Assurance co ltd v London Residuary Body

 REVERSIONARY LEASE
A lease created to take effect at a future date or a lease granted to
commence after the expiration of a previous lease is known as a
reversionary lease.
A lease created to take effect in remainder whether as a vested or
a contingent remainder is also known as a reversionary lease.
The reversionary lease may be created to take effect in reversion
at any future date however remote that future date may be
1. Mann, Crossman and Paulin ltd v Registrar of the Land
Registry

 EQUITABLE LEASES
These are leases which take effect in equity only. These leases
lack the due form (i.e. in writing and signed) but are leases all the
same. They may be such that it fails to comply with the provisions
of the Sections 1 and 2 of NRCD 175 and therefore not
enforceable at law however, depending on the circumstances of a
case, a court of equity may treat it as a lease and therefore enforce
it as an agreement for a lease.
Thus, when a lease is invalid from the legal point of view however
it is enforceable in equity under the doctrine of part performance
or some other equitable principle then it is referred to as an
equitable lease.
NB: A contract or an agreement to lease which does not itself
satisfy the requirements of Section 2 may however by virtue of
Section 3(2) be an equitable lease by the invocation of the
doctrines of equity including those relating to unconscionability,
fraud, duress and part performance
1. Section 3(2) of NRCD 175
2. Sackey v Ashong
3. Djan v Owoo
4. Sbaiti v Samarasinghe
NB: An equitable lease is enforced by way of decree of specific
performance.
NB: The transactions permitted under Section 3(1) have the force
of law and cannot be treated as part of the equitable leases

 CONCURRENT LEASE
A concurrent lease is a lease granted to commence before the
expiration of a subsisting lease of the same property to a different
lessee.
The term of the new lease may be longer or shorter than the earlier
one.
While the 2nd lease is running concurrently with the 1st one, the 2nd
lessee becomes the lessor of the 1st lessee
1. Re Moore and Hulm’s contract
The 2nd lessee also becomes entitled to receive rents due from the
earlier lessee.
The 2nd lessee also entitled to the benefits of the covenants of the
earlier lease
Quite often, a concurrent lease is a security arrangement to enable
the 2nd lessee to intercept the income from the property to satisfy
the debt owed to him by the land owner (the lessor). It is for this
reason that the 1st lessee must pay the rent due under the earlier
lease to the concurrent lessee for so long as both leases subsist
concurrently.
NB: It is prudent that either the land owner (the lessor) or the
concurrent lessee notifies the 1st lessee of the creation of the
concurrent lease.
They may also arise by implication of law from the payment of
rent or inferred from the conduct of the parties.
Some circumstances under which periodic tenancies may arise
are:
a. Where a lease is void for not being by deed, or else has
not proceeded beyond the contract stage but the tenant has
entered into possession and paid rent.
b. Where the lease has terminated, but the tenant is allowed
to stay in possession, paying rent as before

TRANSFER OF LEASES

There are two main ways by which a lease or part of the lease can
be validly transferred by the lessee to a third party:
 Sublease; and
 Assignment.
A lease may be transferred inter vivos by the leasee to another
person by way of a sublease or an assignment.
NB: Where the lease is ASSIGNED, the lessee grants to the
assignee the whole of the unexpired term of the lease and ceases
to be a leasee under the original lease.
Thus, he literally steps into the shoes of the original lessee (i.e. the
assignor) and becomes the immediate lessee of the lessor and a
relationship of landlord and tenant develops between the lessor
and the assignee by virtue of privity of estate between them.
NB: There is however no privity of contract as between the lessor
and the assignee because the original lessee (the assignor) is still
liable on the privity of contract existing between himself and the
lessor despite the assignment of the lease.
NB: An assignment may be with regard to only part of the land
leased or the whole land so that where it is part of the land, the
assignor remains the lessee of the lessor in relation to the retained
part of the land he didn’t assign to the assignee.
NB: If a lessee disposes of the whole of the residue of the
unexpired term of his lease, the disposition operates as an
assignment notwithstanding whatever description the parties give
to it and whatever the parties may intend
1. Milmo v Carreras
On the other, a lessee instead of assigning his lease may rather
create a SUBLEASE. He does so by granting a term shorter than
his own even to another even if less than a day.
NB: As between the lessee and sublessee, there is both privity of
contract and estate because the sublessee is a tenant of the original
lessee and not of the headlessor.
As between the sublessee and headlessor, there is neither privity
of contract or estate.
NB; A grant described as a sublease which infact disposes of the
whole of the lessee’s interest operates as an assignment
2. Milmo v Carreras
NB: Just as the lessee may assign his lease, so may the lessor
assign his reversion. An assignment of reversion transfers the
lessor’s interest to the assignee subject to the subsisting lease so
that the assignee of the reversion becomes the new lessor of the
lesee
3. Section 27 and 28 of NRCD 175
An assignment of reversion may be with regard to a part of the
land or part of the interest or both

COVENANTS IN LEASES

Quite simply, a covenant is a solemn promise which is made by

one party to another with the intention of being bound by it.
In its broadest usage, a covenant refers to any agreement or
contract.
It is an agreement, convention, or promise of two or more parties,
by deed in writing, by which either of the parties pledges himself
to the other that something is either done, shall be done, or shall
not be done, or stipulates about the truth of certain facts.
NB: At common law, a covenant technically meant a written
agreement between the parties under seal. So that a promise or
undertaking which is not in writing and not under seal did not
have the status of a covenant.
NB: In Ghana, section 68(3) Act 1036 dispenses with the need for
a seal particularly where the transaction is between individuals as
distinct from corporations or certain companies, which sign
documents by means of their seals.
This means that in Ghana, covenants contained in such
instruments are, however, binding notwithstanding the absence of
a seal.
In recent times, the term is used in relation to promises in
conveyances or other instruments relating to real estate

TYPES OF COVENANTS IN GHANA

In Ghana, there a 4 types of covenants. These are;
a. Express Covenants
b. Implied Covenants
c. Usual Covenants
 d. Restrictive Covenants

EXPRESS COVENANTS
The parties to a lease may expressly enter into any covenant they
wish provided they are not illegal or contrary to public policy.
In addition, there are certain covenants, which are not implied by
the common law or statute, and which must be expressly stated in
the lease e.g. covenants to insure, to repair
Thus, as an example, the parties must expressly add a renewal
clause as an express covenant to make it possible for the lessee to
renew the lease after its effluxion so that if there was a failure to
expressly provide for a renewal clause, it can’t be enforced against
a party on the grounds of unconscionability.
1. Re Mireku & Tettey (decd); Mireku & ors v Tettey & ors
The express covenants are created by the express words of the
parties to the deed and is declaratory of their intentions.
NB: One advantage of express covenants is that they bind the
original parties to the lease throughout the existence of the lease
by virtue of privity of contract

Lessee’s Express Covenant

Lessee’s express covenants are usually as follows:
Covenant
a. to pay rent;
b. against assignment, subletting or parting with possession;
c. to repair;
d. to insure usually against fire;
e. to use for residential purposes only (this can also be a
restrictive covenant)

Lessor’s Express Covenants

Lessor’s express covenants are usually as follows:
Covenant
a. for quiet enjoyment;
b. to repair;
c. to insure;
d. to pay rates and taxes;
e. to renew the tenancy.
1. Mireku v Tetteh
NB: Where a Ghanaian grants a lease for a fixed term to a non-
Ghanaian, that lease is not subject to renewal unless expressly
provided for in the lease.
2. Section 50(17) of Act 1036

IMPLIED COVENANTS
Covenants may be implied by statute or implied at common law
and we would have our discussion of same from the aspect of the
lessor and the lessee.
Lessee’s covenants implied at common law
The common law implies certain covenants into leases where the
parties are silent on them.
An implied covenant is one, which may reasonably be inferred
from the whole agreement and circumstances leading to the
execution of the agreement.
Lessee’s implied covenants at common law are usually as follows:
Covenant;
a. to pay rent;
b. not to commit waste;
c. to pay rates and taxes;
d. to permit the lessor to view the premises;
e. to use for residential purposes only;
f. to insure against fire;
g. to repair

Lessee’s covenants implied by Statute

Where the lease is by way of a conveyance for valuable
consideration, Section 51 of Act 1036 implies certain covenants
into lease to be observed by the lessee.
These include; if by way of lease, for valuable consideration, there
is implied the covenants relating to;
a. to pay rent;
b. to permit entry for repair to adjoining premises;
c. against alterations and additions to the premises;
d. not to injure walls;
e. against assignment and subletting;
f. against illegal or immoral user;
g. against nuisance and annoyance;
h. to yield up the premises leased including additions in
tenantable repair at the determination of the lease.
1. Section 51(1) of Act 1036

Sub-Lessee’s Covenants Implied by Statute

In a conveyance by way of a sub-lease for valuable consideration
there is implied further covenants relating to;
a. The future observance of the head lease and
b. Covenant to permit entry for repairs under the head lease
1. Section 51(2) of Act 1036

Assignee’s Covenants Implied by Statute

In a conveyance by way of assignment for valuable consideration
there is implied further covenants relating to;
a. to pay rent;
b. for the future observance of the head lease and
c. indemnity in favour of the assignor (original lessee)

Lessor’s covenants implied at common law

Lessor’s implied covenants at common law are usually as follows:
a. Covenant for quiet enjoyment;
 b. Obligation not to derogate from grant;
c. Implied condition of safety or fitness for purpose

Lessor’s covenants implied by Statute

In a conveyance for valuable consideration there are implied
covenants relating to;
a. Right to convey;
b. Quiet enjoyment;
c. Freedom from encumbrances;
d. Further assurance; and
1. Section 50(1) of Act 1036
e. Automatic renewal in respect of some particular types of
leases.
NB: Lease of bare land by an allodial or usufructuary owner to an
indigene is subject to automatic renewal for the same duration as
the original lease where the lessee has developed:
a. The land for residential purposes;
b. A farm of perennial crops on the land;
c. A commercial or industrial property on the land.
2. Section 50(9) of Act 1036
The lessee is under an obligation to discharge the established
customary duties to the lessor
3. Section 50(10) of Act 1036
NB: Lease of bare land to a citizen who is not an indigene is
subject to automatic renewal unless otherwise expressly stated in
the lease.
4. Section 50(12) of Act 1036
NB: Lease of bare public land granted by the Republic to a citizen
of Ghana is subject to automatic renewal on terms agreed upon by
the parties
5. Section 50(11) of Act 1036
However, this doesn’t apply where;
a. The lease is in respect of a commercial property; or
b. The leased property is required for re-development.
6. Section 50(13) of Act 1036
NB: Every renewal is subject to the original terms of the lease and
any new terms agreed taking into consideration improvements of
the land by the lesee
7. Section 50(14) of Act 1036

Sub-Lessor’s covenants implied by Statute

In a conveyance by way of a sub-lease of a leasehold for valuable
consideration there is implied further covenants relating to;
a. Validity of the head lease;
b. Past observance of the head lease;
c. Future observance of the head lease; and
d. Production of title documents and delivery of copies
thereof
1. Section 50(2) and (3) of Act 1036

Assignor’s covenants implied by Statute

In a conveyance by way of an assignment of a leasehold for
valuable consideration there is implied further covenants relating
to;
a. validity of the head lease;
b. past performance of the head lease
1. Section 50(2) of Act 1036

Principles to note
NB: if the lease is not by conveyance for valuable consideration,
then section 50 and 51 would not come in!!!
NB: The parties can vary or extend the covenants in sections 50
and 51 but would still have the same consequences as if the
variation was implied under the said provisions.
1. Section 50(7) and 51(6) of Act 1036
NB: Any variation or extension which wholly removes the
personal liability of the person who bears responsibility under the
covenant is Void!
2. Section 50(8) of Act 1036
NB: The covenants implied on both the lessor and the lessee are
attached to the interest of the covenantee and are enforceable by a
person in whom that interest or part of that interest is vested
3. Section 52 of Act 1036

THE USUAL COVENANTS

Where the lease is preceded by a contract for a lease or is oral, the
‘usual covenants’ are implied into it.
The usual covenants are outlined in Ashong v Sackey.

The Lessee’s Usual Covenants

The rule as laid down in the case is that, in the absence of express
provisions, the ‘usual covenants’ and condition binding on a
tenant (lessee) are the covenant to
i. Covenant to Pay rent
Rent is a basic feature of a tenancy.
It constitutes an acknowledgement of the existence of a lease.
Rent can be paid in advance or in arrears
NB: The maximum rent advance that can be demanded is 6
months for tenancies that exceed 6 months and 1 month for
tenancies below 6 months.
1. Section 25(5) of the Rent Act 1963 (Act 220)
Where rent is due and unpaid, the landlord can institute an action
for his rent or bring proceedings for forfeiture for non-payment of
rent.
Payment of rent to third party without Landlord’s consent
amounts to denial of title of the landlord.
Rent is a covenant that runs with the reversion
2. Section 55 of Act 1036
NB: Provision for review of rent must be expressly stated in the
agreement.
 3. Dacosta v Ofori Transport Ltd
Tenant’s duty to pay is rent unaffected by fire to premises unless
expressly excepted.
4. Iddrisu v Attorney-General
Usually rent is in the form of money but it has been held that rent
can be in the form of transfer of shares.
5. Adomako v Enterprise Insurance Co. Ltd

ii. Covenant to pay rates, taxes and utilities

Usually the duty to pay rates and taxes are that of the landlord but
tenant may take up this duty under certain circumstances.
NB: Utility consumed on the premises are usually the duty of the
lessee

iii. Covenant against assignment and subletting

A tenant cannot sublet or assign without the express consent of the
landlord.
1. Section 22 of Act 220
2. Section 51(1) of Act 1036
NB: Consent is not to be unduly withheld.
NB: No payment would be required to be exacted for consent but
a fee shall be paid for administrative expenses.
3. Section 62 of Act 1036
NB: It may lead to forfeiture when covenant is broken and if
proviso for re-entry is provided in lease, it may be triggered
4. Schandorf v Zeini

iv. Covenant to keep and deliver up the premises in a tenant-

like manner, fair wear and tear expected to make good
any damage done to the premises through any act or
default of himself or his licensees
v. Covenant to allow the lessor to enter and view the state of
repairs; and
vi. A proviso for re-entry by the lessor for a breach of a
covenant to pay rent

The Lessor’s Usual Covenants

i. Covenant for Quiet Enjoyment
On the part of the landlord, there usual covenants implied was the
covenant for quiet enjoyment
1. Sackey v Ashong
The Lessee has a right to be placed in possession of the property.
It guarantees protection against all lawful forms of entry from the
landlord or any person claiming through the landlord.
It does not cover unlawful acts of entry as tenant has a right to
enforce his rights in tort.
NB: At common law, this covenant comes to an end with the
interest of the lessor but if it is an express covenant or is implied
by statute, it goes with the reversion.
NB: Quiet enjoyment includes physical interference with the
enjoyment of the land.
It has also been held that regular excessive noise can lead to a
breach of the covenant for quiet enjoyment.
2. Petronia City Development v. KHI Ghana 01 Ltd

ii. Covenant for Freedom from Encumbrances

The Landlord assures the tenant that the property is not
encumbered in any way either by an easement, license, profit,
mortgage etc.
Thus if there is any encumbrance, the landlord must make it
known to the tenant for the tenant to decide whether he wants to
take the property with the encumbrance or not.

iii. Covenant for Further Assurance

The landlord covenants to execute and do all lawful acts to further
or more perfectly assure the leased premises to the lessee.
All at the expense of the lessee.
Examples of such acts are properly signing a defective document
or stamping or registering any document

NB: There is also the condition entitling the landlord to re-enter

the premises for non-payment of rent but not for the breach of any
other covenant or condition

ENFORCEMENT OF COVENANTS
A covenant is first and foremost contractual and as such is
enforceable according to its terms as between the original parties
i.e. the covenantee and the covenantor.
Where there is a breach of the contract, the aggrieved party may
obtain the usual remedies for breach of contract.
NB: The covenant also creates a connection or bond between the
parties to the lease.
These connections include; Privity of contract; Privity of estate;
and Privity of interest all of which a breach causes a liability to
arise.

Privity of contract
The lessor and the lessee are bound by their contract and all
covenants can be enforced against each other as long as the lease
subsists.
A privity of contract exists because of the direct contractual
relationship between the original covenantor and covenantee and
thus lessor can enforce against the lessee all the covenants
contained in the lease not only while the lessee holds the lease but
also even after the lessee has assigned it so that the lessee may
therefore be found responsible for breaches committed by his
successor to the title.
1. Tophams v Earl of Sefton
It is for this reason the assignor indemnifies himself of breaches of
covenants by the assignee.
The same considerations apply to the lessor. He too is liable on his
covenants for the entire period of the lease even though he may
assign his reversion.
NB: Thus, as between the lessor and the lessee, there is a privity
of contract (express covenants only)
NB: As between the Lessor and the sublessee there is no privity of
contract.
NB: As between the Lessor and the assignee the is no privity of
contract

Privity of Estate
Privity of estate is created by the special relationship which arises
between the landlord (lessor) and the tenant (lessee)
1. Manchester Brewery company v Coombs
2. Milmo v Carreras
3. Purchase v Lichfield Brewery co ltd.
Privity of estate means the existence of tenure between the parties
thus where one person stands in the relationship of landlord to
another person who becomes the tenant, there is privity of estate.
NB: If the lessee assigns the residue of the unexpired term of his
lease, the assignee becomes the new lessee and there
automatically arises a privity of estate between the assignee and
the lessor because there is tenure between them.
NB: In the case of a restrictive covenant, the successors in title of
the covenant with a notice of the restrictive covenant affecting it
would also be restrained from using the land in a way inconsistent
with that covenant
4. Tulk v Moxhay
Successors in title include the owners and occupiers for the time
being of the land affected by the covenant
5. Section 53(2) and 54(3) of Act 1036
Thus, in sum, liability between the original parties is based upon
both the privity of contract and of estate.
Consequently, the assignment of the tenancy though destroying
the privity of estate between the parties does not affect the
contractual obligations of the tenant.
A similar result ensues if the landlord assigns the reversion
Thus, as between the Lessor and the Lessee, there’s privity of
estate (express, implied and usual covenants)
As between the Lessor and the Sub-lessee, there is privity of estate
As between the Lessor and the assignee, there is privity of estate

All the covenants implied under Act 1036 affect successors in

interest of the lessor and lessee.
Section 53 and 54 for the Lessee and Section 55 and 56 for the
Lessor
NB: In so enforcing the covenants, the Tenant may sue for the
following
a. Damages for breach of contract
b. Damages and Injunction
c. Specific performance
 d. Carrying out repairs and retaining rent to set off the cost
of repairs
The Landlord may also sue for the following;
a. Damages for breach of contract
b. Damages and Injunction
c. Forfeiture
d. Re-entry

TERMINATION OF LEASES

Leases may be terminated by;

a. Expiry or effluxion of time
b. Notice
c. Forfeiture
d. Surrender
e. Merger
f. Frustration

EFFLUXION OF TIME
Under common law, the lessor is entitled to automatic possession
when a lease comes to an end by reason of time or by reason of a
condition.
The Rent Act however puts some restrictions on the right of the
lessor to retake possession on the expiration of a lease.

NOTICE
Where a lease makes an express provision for termination by
notice, either of the parties can exercise that right by giving the
requisite notice.
1. Savage v GIHOC
For notices on periodic tenancies see the Court of Appeal decision
in;
2. Alameddine Brothers v Paterson Zochonis & co Ltd

FORFEITURE AND RE-ENTRY

The right of a landlord to forfeit a lease arises in 2 ways;
a. Where the lease itself provides for a forfeiture and re-
entry upon the breach of the terms of the lease subject to
statutory restrictions under Section 57 of Act 1036
b. By operation of law
Thus, where the tenant has breached a covenant in a lease which
has been fortified by a forfeiture clause the lease may be
terminated by same
 1. Sackey v Ashong
2. Bassil v Said Raad
3. Western Hardwood Enterprises Ltd. v West African
Enterprises Ltd
4. Asante v K. Compu Services Ltd
NB: Where the lessee denies the title of the landlord, this gives the
landlord an automatic right to forfeit the lease without any
statutory restrictions.
5. Antie & Adjuwah v Ogbo
6. Safo v Badu
7. Adu-Sarkodie v Karam & Sons Ltd
8. Eric Asem & anor. v Kwasi Tarko jnr. & anor.
NB: Upon breach, the lease isn’t automatically forfeited but rather
becomes liable to be forfeited so that where the right of forfeiture
has accrued as a result of the breach, the landlord has the right of
exercising his right of forfeiture and re-entry or to waive same.
i.e. the effect of the breach is that it renders the lease voidable at
the instance of the landlord, the lease does not automatically
become void
9. Western Hardwood Enterprise ltd v West African
Enterprise ltd
NB: The waiver may be express or implied.
A waiver will be implied where the lessor is aware of an act or
omission of the lessee entitling the lessor to forfeit the lease, but
he nonetheless does some unequivocal act which shows that he
recognizes the continued existence of the lease
Thus, where the lessor with full knowledge of the breach demands
or sues for rent. Acceptance of money as rent is treated in law as
conclusive evidence of waiver against a lessor and a lessor who
accepts money as rent will not be allowed to deny that he has
waived the right of forfeiture
10. Segal Securities ltd v Thoseby
11. Charles Lawrence Quist v Ahmed Danawi
12. Central Estates (Belgravia) ltd v Woolgar
Similarly, if the lessor agrees to grant a new lease to the lessee, his
right of forfeiture is waived
13. Ward v Day

Asserting the Right

In electing to assert his right, he does so by a court action or any
other means. But before he can do so, there are some statutory
requirements before the landlord can exercise the right to forfeit or
re-enter.
NB: For the re-entry to be valid, the procedure for re-entry
provided for by Section 57 of Act 1036 must be strictly complied
with before the lessor can bring an action or otherwise for re-
entry.
NB: Thus, the re-entry or forfeiture is not valid until;
a. The lessor serves on the lessee a notice,
i. specifying the particular breach complained of
ii. requiring the lessee to remedy the breach, if the
 breach is capable of remedy
iii. requiring the lessee to make reasonable compensation
in money for the breach, except where the breach
consists of a non-payment of rent
b. The lessee has knowledge of the fact that the notice has
been served
c. And the Lessee fails to remedy the breach within a
reasonable time
1. Section 57(1) of Act 1036
Thus, where the re-entry or forfeiture is contrary to Section 57 of
Act 1036, said re-entry or forfeiture is invalid
2. West African Enterprises ltd & anor v Western
Hardwood Enterprises ltd
3. Boyefio v NTHC properties ltd
4. Horsey Estate ltd v Steiger
5. Fletcher v Noakes (to entitle the lessor to enforce by action a right of re-
entry for the breach, must be given in such detail as will enable the lessee to
understand what is complained of, so that he may have an opportunity of
remedying the breach before action brought. A mere general notice of a breach
of a specified covenant is not sufficient)
NB: Where the notice is sent by registered mail to the person at
the last known address of the person or by email where that is the
normal mode of communication between the parties and posted on
the lad which the subject matter of re-entry, then the person shall
be deemed unless the contrary proved to have had knowledge of
the fact that the notice had been served
6. Section 57(2) of Act 1036
NB: The above restriction applies to all leases and cannot be
avoided by any provision in the lease to the contrary.
7. Section 57(3) of Act 1036
NB: Where the lessee has made some improvements on the land,
an action for recovery of possession must be resorted to so as to
enable the courts reappraise the whole matter and settle the
interest of the lessor and the lessee should it become necessary to
grant the lessor’s request for possession.
8. West African Enterprises ltd & anor v Western
Hardwood Enterprises ltd
Where the lessee denies the title of the lessor, the lessee himself is
liable to forfeit the lease. However, in such a case, the lease
merely becomes liable for forfeiture until the landlord actually
elects to enforce his right or waive it. If the landlord wishes to
exercise the right, he must do so by some positive and
unequivocal step to re-enter (i.e. adhering to Section 57)
9. Charles Lawrence Quist v Ahmed Danawi

Waiver of right to forfeiture

The lessor may waive his right to forfeit.
NB: The waiver must be related to a particular breach and not
operate as a general waiver unless a contrary intention appears
1. Section 60 of Act 1036
The waiver may be express or implied
Relief
The right for forfeiture is not an automatic remedy in that where
on an application by the lessor for forfeiture and re-entry, the
lessee may also apply to the court for relief against the application
of the lessor and in so doing, the court may grant or refuse the
relief having regard to the proceedings and conduct of the parties
and to other circumstances
1. Section 58 of Act 1036
NB: Since in the eyes of equity, the object of a right of re-entry is
to give the landlord security for his rent, it will relieve the tenant
against forfeiture if he pays all the arrears and costs, even though
such payment does not take place until after the date of forfeiture
has passed
2. Interplast ltd v Bonsu
3. Howard v Fanshwe
NB: The court has an inherent jurisdiction to relieve against
forfeiture in all cases where the damage is capable of assessment
especially where it would be plainly unjust to grant a relief of
forfeiture
4. Boston v Khemland
5. Interplast ltd v Bonsu
NB: The action for relief against forfeiture which the lessee may
apply to the court for is actionable if the lessor has actually
enforced his right of re-entry or forfeiture or is enforcing said
right but not before.
6. Section 30 of NRCD 175
7. Continental terminals ltd v Ghana Ports and Harbors
Authority
Thus, it is not open to a tenant to claim relief from forfeiture
before the lessor has either commenced proceedings for
possession or taken possession. Relief against forfeiture is an
equitable protection against the enforcement by the lessor of his
legal rights. It is appropriate when the lessor has commenced
proceedings for possession. It is also available within certain
limits after the lessor has taken possession but it does not appear
appropriate in advance of proceedings for possession or actual
possession.
8. Barton, Thompson & co ltd v Stapling Machines co
9. Asante v K Compu Services ltd per Apau J
NB: While the right of re-entry is prospective, the relief against
forfeiture is retrospective.
NB; the reliefs under section 58 are only applicable to re-entry
and forfeiture of leases and thus, where the agreement is not a
lease, section 58 is not applicable
10. Nana Bediako Atwere v Osei Owusu (@ Yaw Owusu
Achiaw

SURRENDER
Yielding up by the lessee of the residue of the leasehold interest to
 the lessor.
1. Beke Investment Ltd. v John Kodie & 2 Ors
The leasehold interest and the reversion thereby merges in the
landlord and the lease is extinguished

MERGER
Union of the lease and the reversion in the lessee.
The lease is thereby extinguished

FRUSTRATION
The general principle is that the doctrine of frustration is
applicable to leases in exceptional circumstances.
In order not to be caught by the non-exceptional circumstance
threshold, there is the need for the parties to insure their interests
to cater for any ‘frustrating’ events.
The parties may also put in the agreement clauses that may lead to
the suspension of obligations in case certain unforeseen events
happen.
1. Iddrisu v Attorney-General [2001-2002]
2. National Carriers Ltd. v Panalpina (Northern) Ltd

This is where two or more persons hold an interest in the same

CO-OWNERSHIP piece of property.
It arises by:
a. Jointly contributing to acquire property;
b. Grant either by sale or gift (inter vivos or by will) to two
or more persons;
c. Operation of law e.g. Section 4 of PNDCL 111

TYPES
a. Joint Tenancy
b. Tenancy in common

JOINT TENANCY

Conveyance of land to two or more persons without any words to

show that they are to take distinct shares.
Each Joint Tenant wholly entitled to the whole property.
No Joint Tenant holds any distinct share in the estate

CREATION
There is the presumption of joint tenancy under common law
Thus if land is conveyed to two or more persons without words of
severance, a joint tenancy is created.
1. Fynn v. Gardiner
 2. Fenuku v. John-Teye
NB: By Section 40(3) of Act 1036 however, unless expressly
stated, any conveyance to two or more persons creates a tenancy
in common and not a joint tenancy.
Words of severance such as ‘in equal shares’, ‘to be divided
between’, ‘equally’, ‘absolutely’ excludes a joint tenancy.
NB: There are 2 essential characteristics of a Joint Tenancy
a. Right of survivorship (ius accrescendi)
b. Four unities

RIGHT OF SURVIVORSHIP
If one tenant dies, his interest in the land passes to the surviving
joint tenant(s).
1. Otoo (No. 1) v. Otoo (No. 1)
A joint tenant can therefore not dispose of his interest by will;
neither can his interest be inherited on intestacy.

THE FOUR UNITIES

a. Unity of Possession
b. Unity of Interest
c. Unity of Title
d. Unity of Time

UNITY OF POSSESSION
Each co-owner is entitled to as much to possession of every part
of the land as the other co-owner(s).
None can appropriate any part of the land exclusively to himself.
As a general rule, no co-owner can maintain an action of trespass
against the other co-owner(s).
Rent received by one co-owner should be shared with the other
co-owners

UNITY OF INTEREST
All joint tenants have the same interest as to extent, nature and
duration.
No joint tenancy can therefore exist between allodial and usufruct
holders in a piece of land.
1. Chokar v. Chokar
Any act regarding the property must be done by all the joint
tenants to be effective unless they have expressly authorised one
of them to act on their behalf.

UNITY OF TITLE
Each joint tenant’s title must be acquired through the same act,
instrument or document.
1. Ward v. Ward

UNITY OF TIME
Each joint tenant’s interest must vest at the same time or should
have been acquired at the same time
 DETERMINATION
A joint tenancy is usually determined by severance which may
arise in the following ways:
A. ALIENATION
Where a joint tenant alienates his potential share in the property
inter vivos to a third party, then the joint tenancy is determined gg
since the assignee’s title would be acquired at a different time
from that of the other tenant and by a different title as well.
Thus, the alienee becomes a tenant in common with the other joint
tenant(s) whilst the other joint tenant(s) remain joint tenant(s)
amongst themselves.
1. Owusu-Asiedu v. Adomako
Alienation destroys the unity of title
2. Cedar Holdings Ltd. v. Green

B. PARTITION
Either by the voluntary act of one of the tenants or by an order of
a court on application by one of the tenants.
Partition disunites the unity of possession. Each person will now
hold a divided share in the property.
1. Keelson v. Mensah
2. Adabla v. Kisseh
NB. Partition effectively destroys the co-ownership relationship

c. ACQUISITION OF A DIFFERENT INTEREST

A joint tenancy can also be severed when one tenant acquires a
different interest in the property.
This destroys the unity of interest.

d. SALE
If all the joint tenants agree to sell their interest to a third party,
the joint tenancy is determined and the buyer acquires full title in
the property.
1. Thames & Guaranty Ltd. v Campbell

e. HOMICIDE
If one joint tenant unlawfully kills the other, the joint tenancy is
severed and there will be no right of survivorship for the killer.
1. Re K

f. MUTUAL AGREEMENT
The joint tenants may mutually agree to share the property or in
other words agree to terminate the joint tenancy for some other
type of interest.
1. Burgess v. Rawnsley

g. COURSE OF CONDUCT
Any conduct on the part of one joint tenant that he no longer
intends to hold a property as a joint tenant; or which indicates an
 intention to terminate the tenancy; and which is conveyed to the
other joint tenant will sever the joint tenancy
1. Burgess v. Rawnsley (the court stated that it is sufficient if there is a
course of dealing in which one party makes it clear to the other that he desires
that their shares should no longer be held jointly but held in common. I
emphasise that it must be clear to the other party)

TENANCY IN COMMON

Tenants holding the property in undivided but distinct shares.

They may have separate interests in the property.
There is no right of survivorship.
Each tenant’s interest is inheritable.
The only unity essential in tenancy in common is the Unity of
possession though the other unities may be present.
1. Dr. Edward Asante & anor vs. Kwaku Preko
If the other unities are not present, then it is invariably a tenancy
in common.
It is alienable inter vivos.
The purchaser steps into the shoes of the vendor in the tenancy.

CREATION
It can be created expressly by sale or gift (inter vivos or by will) in
which words of severance are clearly used.
1. Agyentoa v. Owusu
By operation of law through;
a. Severance of joint tenancy
1. Section 40(3) of ACT 1036
Except with respect to trustees.

DETERMINATION
 Partition
 Sale
 Acquisition by one tenant of the shares vested in the other
tenant(s) – union of sole tenant

Adverse possession arises when a person (usually referred to as a

ADVERSE squatter or a trespasser) takes possession of another person’s land
POSSESSION and exercises rights that are inconsistent with the title of the
rightful or paper owner for a continuous period of 12 years.
1. GIHOC v Assi (No. 1)
2. Djin v Musah Baako
It has its origins in the common law and has been given statutory
recognition by Section 10 of the Limitation Act, 1972 (NRCD
54)
NB: Per the authorities, for possession to be adverse, it must be
open, visible and not clandestine.
3. Adjetey Adjei v Nmai Boi
4. Abbey v Antwi
NB: Time starts running immediately a trespasser or squatter
starts exercising rights with are inconsistent with the rights of the
rightful owner.
So far as such actions are open and visible to the whole world, it
does not matter if the paper or rightful owner is not aware of the
presence of the adverse possessor.
5. Abbey v Antwi
6. Anthony Atta Poku v Kojo Dorbor & 2 orss
NB: Time will only stop running under any of these three
conditions:
a. When the squatter or trespasser vacates the land;
b. When the squatter or trespasser acknowledges the title of
the paper owner in writing; or
c. When the paper owner institutes an action in court before
the twelve years.
7. Djin v Musah Baako
NB: Protests in the form of letters either from the owner or his
lawyers does not stop time from running and neither do threats
including threats of legal action stop time from running.
8. Djin v Musah Baako

EFFECT OF ADVERSE POSSESSION

Title of the original owner is extinguished.
1. Section 10 (6) of NRCD 54
The adverse possessor acquires a title which is equivalent to the
title of the person he has dispossessed.
2. GIHOC v. Assi (No. 1)
3. Adjetey Adjei v. Nmai Boi
Court usually grants declaratory title in respect of the land the
adverse possessor has clearly or specifically reduced into his
possession
4. Adjetey Adjei v. Nmai Boi
With respect to state or public lands, the law used to be that same
could be affected by adverse possession.
However, this has been made impossible by the Lands Act to the
extent that the act provides that despite the provisions of the
Limitation Act, 1972 (NRCD 54) and any other law, a person who
unlawfully occupies public land does not acquire an interest in or
right over that land by reason of the occupation and also a person
shall not acquire by prescription or adverse possession an estate or
interest in public land.”
5. Section 236 of Act 1036
FORMALITIES FOR THE
TRANSFER OF INTERESTS
IN LAND UNDER CUSTOMARY LAW SALE
CUSTOMARY LAW
OF INTEREST IN LAND

The outright sale of land was not a common incident in many

communities and as a result a sale of land must comply with
certain laid down formalities to be valid.
The essential requirement for the sale of land under customary law
are as follows:
a. Contract of sale
b. Cutting of Guaha or Tramma
c. Demarcation or inspection of boundaries
d. Publicity
e. Putting the purchaser in possession
f. Implied undertaking as to title

a. THE CONTRACT OF SALE

The formal conveyance of land is preceded by a contract of sale.
Contract for the sale of land by customary law is concluded by the
offer of drink made by the prospective purchaser and acceptance
of it by the prospective vendor. No negotiations in connection
with the transfer of land or grant of an interest in land under
customary law can be concluded without drink given and received
to seal it.
1. Akwei v Agyapong
Customary law knows no writing. As a result customary
conveyances are oral in nature.
2. Brown v Quarshigah
3. Dovie & Dovie v. Adabanu

b. CUTTING OF THE GUAHA

In each system of customary law there is a ceremony for
conveying title to land. The name of the ceremony varies from
society to society. The ceremony symbolizes the severing of the
land from the grantor to the purchaser.
Among the Gas the ceremony was known as sikpon yi baa foo; as
Ziba yi baa pom among the Adangbes, as guaha or tramma among
the Akans, and as Ahatutu anyigba dzi among, the Ewes
1. Sasraku v David
The ceremony may be described as follows: After the conclusion
of negotiations, if the parties intend the ownership to pass from
vendor to purchaser, they agree on a date when the customary
ceremony will be performed. They then invite witnesses for the
purpose, and proceed to the land. There representatives of each
party collect some twigs or branches of trees on the land, and
come before the witnesses. The parties face each other, the vendor
holding one end, and the purchaser the other end, of the twigs or
branches. They then declare the purpose of the ceremony, i.e. that
the contract of sale is now begin finally concluded, and they break
the twigs into two. After this the witnesses receive witness fees,
and this concludes the ceremony.
2. Tei Angmor v Yiadom III
Literally that custom means severing the leaf or branch from the
tree, and signifies that the vendor has completely divested himself
of the whole of his right, title, and interest in the particular piece
of land, and vested the same completely in the purchaser
3. Donkor v Asare
4. Ntrama v Attia
NB: In Tei Angmor and Ababio v Darkwa Korsah CJ explained
that in order to conclude a contract for the sale of land in native
customary law the ceremony of Guaha must be performed before
ownership can be transferred without which no land can be
deemed to be vested in the purchaser however, in Ankrah v Ofori,
Azu Crabbe CJ held that the cutting of the Guaha was only of
evidentiary value for where the sale is disputed and satisfactory
evidence is led that the custom was performed this would be
conclusive that the transaction between the parties was nothing
other than a sale and that in the present case, the sale was not
disputed and thus the absence of the evidence of the custom of
sikpon yi baa fo did not affect the validity of the sale. Also, in
Adjowei v Yiadom III Sowah JA was of the opinion that it seems
highly unjust to hold when there was evidence of agreement for
the sale, demarcation of the land, payment of part of the purchase
price and possession by the members of the syndicate, that the sale
was incomplete only by reason of the absence of witnesses at the
guaha ceremony.

c. DEMARCATION OR INSPECTION OF
BOUNDARIES
It is a general rule that the boundaries of the land sold must be
indicated to the purchaser (the land must be identified) and
demarcated. The demarcation can be done with ntome trees.
NB: There is no formal transfer of title can take place when there
is no public demarcation of the boundaries
1. Ntrama v Attia
An undetermined and indefinite area cannot be the subject of a
completed and perfected customary sale and purchase of land
2. Ntim v Boateng
Measurements are often by ropes, the size of which may vary
according to the locality.
If the adjoining land is occupied, the occupiers should be warned
of the proceedings so that they can be present. This is an obvious
precaution to avoid subsequent boundary disputes. There may
however be no neighboring occupants if for example the grant is
of virgin forest.
If the vendor is a family or stool, it will often appoint an agent to
indicate the boundaries. The agent's authority continues until his
duty is carried out satisfactorily.

d. PUBLICITY
It is necessary that some other persons other than the vendor and
purchase be present at the ceremony.
Where the vendor is a family or stool, publicity is desirable to
ensure that any member whose consent is necessary and has not
been consulted is able to protest. If he fails to protest then he is
bound by his acquiescence.
1. Ankrah v Ofori (In the circumstances of this case, the act of taking possession constituted sufficient
publicity to the plaintiff who owned a house nearby and to the whole world that the land had been sold to the defendants)

The main object of publicity seems to be to avoid subsequent

disputes as to the existence or effects of the transaction by
creating a record of it in the memory of witnesses.
The witnesses receive customary fees. There appear to be no rules
as to how many witnesses are necessary.

e. PUTTING THE PURCHASER IN POSSESSION

The purchaser must be put in possession of the land

f. IMPLIED UNDERTAKING AS TO TITLE

A grant by sale implies an undertaking to give a good title. If the
title is found to be bad, the vendor can be sued for the return of the
purchase price, and perhaps for the purchaser's expenses as well.
Thus, the vendor gives an absolute guarantee of the validity of the
title conveyed and the principle caveat emptor does not apply.

NB: A conveyance of land made in accordance with customary

law is effective as from the date it was made; a deed subsequently
executed by the grantor for the grantee could add to, but could not
take from, the effect of the grant
1. Ankrah v Ofori
2. Odoi v Hammond
3. Bruce v Quarnor

CUSTOMARY LAW GIFTS

OF INTEREST IN LAND

A gift is a voluntary donation of a property owned by the donor

(who is not with disability i.e. not a person of unsound mind or an
infant) to the donee which he accepts (since if it is not accepted it
is prevented from becoming a gift).
NB: This is done in the presence of witnesses who may include
family members of the donor and the donee must accept the gift
by providing the thanksgiving (aseda) which could be a token or
substantial in the presence of witnesses and the thanksgiving must
be accepted by the donor after which interest of the donor in the
property the he intends to pass to the donee would vest in the
donee.
NB: As in all alienations, it is essential that the donor have valid
ownership in property. So that where the property is a stool
property or a family property, gifting of the property by the
occupant of the stool or where the stool is vacant, the regent or
caretaker of the stool or the head of family in the case of a family
property, without the consent and concurrence of the principal
members of the stool or the family would render such gifting void

Types of Gifts
There are 2 types of gifts namely; personal gifts from an
individual owner of land to a beneficiary and a gift of stool land
from an occupant of a stool which is called a grant
1. Akunsah v Botchway

Personal gifts
This is a gift from an individual land owner to a donee. Here, the
donor doesn’t need the consent of anyone to make the gift valid.
He may gift it even if it is against the wishes of his/her spouse or
children provided they do not have a legal or equitable interest in
the property. The only condition is that it should not be done in
secret.
1. Akunsah v Botchway
Grants
This is a gift from a stool or family to a donee. The grant must be
made by the occupant of the stool or the regent or caretaker of the
stool where the stool is vacant of the head of family with the
consent and concurrence of the principal members of the stool or
family without which the grant may be rendered void.
1. Akunsah v Botchway
2. France v Golightly; France v Addy (Consolidated)
3. Odametey v Clocuh & anor
Where the occupant of the stool makes the grant validly i.e. with
the consent and concurrence of the principal members of the stool,
and his nomination, election or installation is subsequently
nullified, the grant would still remain valid and bind the stool and
its successors.
4. Republic v High Court; Exparte Lands Commission
(interested party; Vanderpuye Orgle Estate ltd)

NB: There are two ways of making such gifts:

a. By a conveyance where a deed of gift is executed
b. orally where it is governed by customary law.
1. Asare v. Kumoji
Note also that customary gifts, if reduced to writing, will still be
recognized as customary gifts and will be subject to the incidents
of a gift under customary law.
2. Sese v. Sese
  ELEMENTS OF A VALID GIFT
The essential element of a valid gift as listed in Asare v Teing and
also Kwakuwah v Nayenna and In Re Suhyen include;
i. A clear intention to make a gift
ii. Capacity
iii. Publicity
iv. Acceptance by the donee
v. Taking of possession by the donee

A. I NTENTION
The donor must evince a clear intention of making a gift to the
donee.
It must not be an intention to temporarily part with possession.
It must be an intention of permanently parting with ownership of
the property.
It must not be an intention to help one out of a difficult situation
whilst maintaining ownership rights over the property.
1. Anaman v. Eyeduwa
2. In re Suhyen stool
3. Sese v. Sese (father had no intention of making a gift under customary
law).
Because intention to an extent also deals with the mental state of
the person, the person who is deemed to have made the gift must
be mentally competent

b. Publicity
A gift is not valid unless it made publicly.
A valid gift transfers the interest the donor seeks to give, to the
donee and thus as a result, witnesses must be there to witness it.
The family of the donor will normally be present and the donee's
family will normally take part in the aseda ceremony.
The immediate family of the donor who are likely to benefit/
succeed the property if the donor had died intestate and, also, in
the presence of members of the family of the donee who also
would succeed to the property upon the death of the donee on
intestacy should be present.
1. Yoguo v Agyekum
However, the absence of immediate members of the donor to
witness the gift cannot invalidate it
2. Bonney v Bonney
It is also desirable to include an impartial witnesses or prominent
persons who do not belong to either family

c. Acceptance by the Donee

It is an essential element of a valid gift of land that the donee
accepts it since a proffered gift which the donee does not accept is
prevented from becoming a gift
The acceptance is done by presentation to the donor of some token
of acknowledgment and gratitude (aseda) in the presence of
witnesses.
 1. Asare v Kumoji
2. Mahama Hausa v Baako Hausa
The gift is acknowledged by the donee by the presentation of
drink or articles, to the donor. The presentation is handed
preferably by one of the witnesses attending preferably a member
of the donee’s family who in turn delivers it to one of the
witnesses attending on behalf of the donor
3. Yoguo v Agyekum
Custom lays it down that the donee does not join such a
delegation, members of his family and his friends are the proper
persons who must go on his behalf, though he himself should
supply the articles to be presented. And where the donee is a child,
and the donor happens to be one of his parents, the other parent
provides the articles and leads the delegation to make the
presentation to the donor parent assembled with members of his or
her family
4. Addy v Armah
The transfer is sealed off by the pouring of libation and a share of
the articles or a portion of the drink among the witnesses.
5. Yoguo v Agyekum
However, in recent time because of Christianity and other faiths,
pouring of libation is not adhered to and thus, parties rather share
soft drinks or bring the pastors to do the aseda.
NB: Another form of publicity is the exclusive possession and the
exercise of overt acts of ownership by the donee after the aseda
ceremony
6. Yoguo v Agyekum

CAPACITY
The donor of the gift must have the capacity to make the gift.
If it is stool land, it must be made by the chief with the principal
elders.
If it is family land, it must be made by the head of family with the
principal members of the family.
An individual can however make a gift of his property without the
consent of any person.
1. Akunsah v. Botchway & Jei Farm Ltd.
Mental capacity as discussed under intention.

 TAKING OF POSSESSION BY THE DONEE

A donee must take possession. After the aseda ceremony, the
donee is put in possession of the property. Occasionally, the
donor, the donee and the witnesses would visit the land for the
boundaries to be demarcated in the presence of the boundary
owners of the gifted land and the words of transfer spoken to
signify the gift. In respect of a house, the donor introduces the
donee to the occupants of the house if any as the new landlord
NB: acceptance and publicity can be present without the taking of
possession.
NB: The supreme court has held that quite apart from the
customary formalities discussed, to claim land as a customary gift
inter vivos it must be established that;
a. the gift was voluntary and gratuitous
b. it was made in the life-time of the donor
c. the donor had a full intention that the land should remain
the property of the donee and not revert to the donor
d. that the donee accepted the gift and went into possession,
either physically or constructively during the life-time of
the donor
1. Summey v Yohuno

REVOCABILITY
Every gift under customary law when completed is irrevocable.
1. Ahmad v. Afriyie
The exception however is in gifts between parent and child or
gifts between a person who stands in loco parentis and the child,
which could be recalled or exchanged at any time by the parent in
his or her lifetime, or by his will or dying declaration.
2. Sese v. Sese
3. Okai v. Okoe

Effects of Gift
The general rule is that, a gift once validly made is irrevocable
1. Ollenu & Woodman 1985 p 121
NB: An exception is where the gift is made in contemplation of a
marriage. Where the marriage does not come off, any gift made in
contemplation of said marriage can be reclaimed or revoked
NB: Except where the gift is from a parent to a child then in such
a situation, the parent may revoke, recall or exchange the gift at
any time during his or her life time or by will or dying declaration.
The gift even if valid, could still be revoked by the parent and did
not need any special deed of revocation, specially prepared and
couched in any strong language before the gift could be revoked.
So long as the intention to revoke was clearly and unequivocally
expressed by the parent, be it orally or in writing or in a will, the
revocation would be effective and would be in accord with
customary law.
2. Sese v Sese
3. Owiah v Biyaa
The position is however different where a parent donates a bare
land to a child and the child develops it at his own cost. In such a
case, it would constitute unjust enrichment and the parent would
be estopped from revoking it on the grounds that a gift to a child is
perpetually revocable. i.e. equity has stepped in.
4. Kofi Tabury alias Nana Sarbeng Diawuo v Madam
Adwoa Yeeboaba alias Helena Arthur
NB: The general rule that gifts once validly made is irrevocable
relates to unconditional gifts.
 Where the gift is made conditionally, it can be revoked by the
donor where anything that was given for consideration was not
performed
5. Kyeiwaa v Ntorowa

Written documents as evidence of customary law transactions

It is not unusual for a transaction valid in customary law to be
followed by the execution of a document which will provide
permanent evidence of the transaction. The document is often a
common law conveyance appearing on the face of it to be itself a
transfer of title. Since, however, at the time of execution the
grantor has already passed title, it will take effect only as evidence
of what has already been done

REVOCABILITY
Every gift under customary law when completed is irrevocable.
4. Ahmad v. Afriyie
The exception however is in gifts between parent and child or
gifts between a person who stands in loco parentis and the child,
which could be recalled or exchanged at any time by the parent in
his or her lifetime, or by his will or dying declaration.
5. Sese v. Sese
6. Okai v. Okoe

It is not every property that is considered a spousal property for

SPOUSAL the purpose of sharing. Thus there is the need to establish marital
properties in general

PROPERTIES TYPES OF MARITAL PROPERTIES

a. Household Chattels
b. Property acquired before marriage
c. Property acquired before marriage but renovated by one
of the spouse during the marriage
d. Properties commenced before the marriage but completed
during the marriage
e. Properties acquired during the subsistence of the marriage

FOR PURPOSES OF SHARING UPON DISSOLUTION OF

MARRIAGE
For the purpose of sharing properties upon dissolution of the
marriage, unless a party proves that a household chattel was
acquired by a spouse solely for a particular purpose, household
chattel may not be shared. It will generally go to the spouse who
will take care of the household and children after the dissolution.
1. United Simpsons & Aryitey co ltd v Jefferey & anor
Properties acquired before the marriage are generally not spousal
properties and are thus not liable to be shared on the dissolution of
the marriage.
The remaining marital properties are all liable to be shared upon
dissolution of the marriage.

The old position of the law in Quartey v Martei was that if the
wife and children jointly labour to acquire property, it would be
the self-acquired property of the husband.
As for the wife and children, their right would be to be able to use
the property subject to good behavior
This customary law position was however harsh.
As the law developed, the position of the law became that where
the wife can prove that the property was acquired by herself, the
property would be deemed as her self-acquired property rather
than a marital properties. Thus the position of the law was that
self-acquired properties was a possibility by either spouses in the
marriage
2. Bentsi Enchill v Bentsi Enchill
3. Reindorf v Reindorf
The Law further developed in that if the spouse can prove
substantial contribution in the acquisition of the property, it will
be deemed a jointly acquired property of the couple.
Substantial contribution can be in the form of purchase of land,
roofing sheets, cement, cooking for laborers etc. may suffice as
proof.
1. Abebrese v Kaah
2. Yeboah v Yeboah
3. Annan v Tagoe
4. Domfe v Adu

THE CONSTITUTION
Article 22 of the Constitution provides for spousal rights
By Section 38(4) of Act 1036, where a conveyance is made to one
spouse only, it shall be presumed that that spouse holds the
property in trust for the other spouse unless a contrary intention is
expressed in the conveyance
Also by Section 47 of the Act 1036 a spouse cannot alienate or
enter into a contract to alienate an interest in land without the
written consent of the other spouse and that consent shall not be
unreasonably withheld.

In the absence of a statute for dispensation, the courts have been

guided by Article 22(3)(b) to enforce spousal property rights
NB: In establishing that the property amounts to a jointly acquired
property, the court in Steven Mensah v Gladys Mensah held that
the wife’s contribution need not be substantial. In the absence of
contribution, the wife’s contribution is her roles as a house wife
which permitted the husband to conveniently acquire the property.
NB: On the front of sharing, Steven Mensah v Gladys Mensah
again held that when it has been established that the property is
jointly acquired by the parties, then it shall be shared equally and
since equality is equity, then it should be shared 50/50.
NB: In Quartson v Quartson, the court held that the rule should
not be taken as a blanket rule but the sharing should be based on
as the equity of the case demands. Also refer to Arthur v Arthur
and Kwarteng v Kwarteng.
NB: However, Fynn v Fynn and Adjei v Adjei has held that there
are other means by which properties can be acquired solely by the
spouse such as through a gift, inherited by them through will or
intestacy, acquired through insurance claims or judgement debt or
money from a loan