CONCEPT OF OWNERSHIP, POSSESSION OF PROPERTY

OWNERSHIP
Pollock in his book first book of Jurisprudence. The entirety of the powers used and disposal
allowed by law the owner of the thing has aggregate of rights of a thing, right of enjoyment, right
of disposition subject to the right of others.
EXAMPLE: A may enjoy and use his land, A may sell his land, A may give his land away or gift
it, but his right of use of his land is subject to the right of others as allowed by law.
Today, a land owners right is circumscribed by legislation aim at social control more over
government department and local authorities may compulsorily acquire privately used land and
use it for public purpose as it has been stipulated in Article 20 of the 1992 Constitution.
A person may owe land not withstanding that another person has an easement. The ownership of
land grew out of possession. An early land owners right was possession and in medieval law, his
title to the land was based on the concept of seisin and the seisin is a possession right.
Seisin refers to the possession or ownership of land, specifically the right to hold and enjoy the
benefits of the land. It encompasses both physical possession and legal ownership. Seisin is a
term from medieval English law, particularly in the context of land ownership and property
rights.
Prior to 1583, the word ownership was not in used in England, the word property was uncommon
before the 19th century, people speak of possession and estate. In the course of time the idea of
possession grew with advancing industrialization and capitalization economy. The right of
possession changed to the right of ownership which we know today.
POSSESSION

Possession (Walsh v Londale), in this case, A factory was rented from a landlord under an
executory lease agreement where rent is paid for a year in advance. A deed was never
executed but the tenant was given possession and paid quarterly rent. Landlord
(Lonsdale) sought payment of one year rent in advance. Tenant (Walsh) sought injunction
on the basis that he had an implied tenancy at law and was not bound by the agreement.
IT WAS HELD THAT the landlord was entitled to claim the rent in advance because the
lease is subject to the terms of the executory lease agreement
The Court through Sir George Jessel MR explained that since the judicature act there
is no longer a periodic tenancy at law and a lease under the agreement in equity.
According to the equitable maxim ‘Equity looks on as done that which ought to be done’
the parties were treated as having a lease enforceable in equity from the date of the
agreement to grant the lease.
Possession in law is based on possession in fact, it can be physical or immediate possession, it
involves two concepts, namely 1. Corpus possession 2. Animus possidendi
CORPUS
The control over the thing itself which may be exercise by the person himself, his servant or
agent and the animus is the intention to exercise exclusive control over the thing itself and thus
prevent others from using it. Possession is therefore largely a question of fact, for example if A
lend his big pen to B for his examinations, B is in temporal possession of A’s pen or if A send his
shoes to the cobra to be repaired, B possess them until it is repaired. The ownership of the pen or
shoe are with A in both cases, whiles possession resides with B who exercises temporary over
them. Possession may be obtained lawfully or unlawfully. As to unlawful possession, we may
note that if X (a thief) steals Y’s watch, X acquires possession but not ownership, clearly, X
acquires possession to the watch as against the lawful owner Y. However, if Y sells the watch to
Z, the right of owner in Y is not destroyed.

#ADVERSE POSSESSION
Nevertheless, the thief has possession and endeavor to exercise exclusive control over the thing
stollen until such time that he decides to sell, discard or throw it away. In law, even unlawful
possession if continued for a long time may ripen into a claim which is indistinguishable from
ownership, until the promulgation of NLC 54, the Ghana law or Limitation was based on the
case of Kuma v Kuma [1938] WACA. That where a squatter occupies the relic land or land in
which the true owner is unknown or untraceable and continues in an uninterrupted possession for
12 years, the owner title to the land is destroyed. The squatter then acquires lawful title to
ownership with right against the whole world. A squatter wrongfully takes possession of a land
belonging to the O the owner, O immediate acquires a right of action against X (the squatter) for
recovery of land. But if O takes no action against X the squatter in 12 years, his right of action
becomes Statute barred and his title extinguished by limitation, X can no longer be disturbed by
O and as against the rest of the world. X is protected by the fact of his possession. NRCD 54
section 10 and 11. Possession by itself gives it title against the world except, someone having a
better legal right to possession.

In the case if ASHER V WITLOCK [1865] LR 1 QB 1, in this case Mr W was a squatter on

the unregistered land of a Lord, and built a house on it. Mr W dies and leaves his house to
Mrs W until she remarries or dies, then it will belong to his daughter. Mrs W remarries D,
they move into the house together with the daughter, who dies in April and Mrs W also
dies in May. D continues to occupy the land, and C (an heir of the daughter) seeks to
occupy the home. The Court held that Claimant is the true owner so gains possession.
The Lord could have claimed possession at any time within 20 years of the start of Mr
W’s squatting (i.e. adverse possession)
As Claimant’s title originated before that of the wife’s husband (on the death of Mr W as
opposed to the start of D’s occupation), Claimant’s title took priority. The Court
explained that Possession of land gives the possessor rights to the land good against
every person but the true owner (“But I take it as clearly established, that possession is
good against all the world except the person who can shew a good title”)
Also, in the case of Perry v Clissol, in this case, D moved onto land he doesn’t own. He
used it as his own and asserted control of the land by putting up fences. 10 years later, the
government wanted to explore the land – but D is dead and his estate demands that the
government pays compensation based on possessory interest if it decides to expropriate
land. Claimant (the government minister) argues that because D was a mere trespasser
without any estate or interest in the land and thus, he should not be paid. IT WAS HELD
THAT Following Asher v Whitlock (1865) LR 1 QB 1, D acquired good title by adverse
possession and is thus entitled to payment.
Lord Macnaghten “It cannot be disputed that a person in possession of land in the
assumed character of owner and exercising peaceably the ordinary rights of ownership
has a perfectly good title against all the world but the rightful owner. And if the rightful
owner does not come forward and assert his title by process of law with in the period
prescribed by the provisions of the Statute of Limitations applicable to the case, his right
is forever extinguished, and the possessory owner acquires an absolute title.”
RIGHT OF THE SQUITTER (POSSESSOR)
This possession is fundamental to our concept of title to land. If the occupies possession is
disturbed, for example for trespass or nuisance, he can sue on the strength of his possession and
does not have to prove his title. It follows that, the person disturbing the occupier’s possession
cannot attack his title if he admits his possession If the one in possession counter the claim, then
there would be an issue of title. In the language of pleading, D suing for trespass in such a case
cannot plead that, the property belongs to another person (jus tertii) that is the land belongs to a
third party and not the plaintiff. Read the case of Nicholls v Ely Beet Sugar Factory [1931] 2 C
4 84. It is well settled that in an action of trespass a defendant cannot set up a jus tertii, he may
set up a title in himself or show that he acted on the authority of the real owner. The defendants
however say that (a) they may set up a Crown title, and (b) the rule as to setting up a jus tertii is
confined to trespass actions and does not apply to nuisance actions. Now as to (a). If this were an
action of trespass in my judgment the defendants could not set up a jus tertii in the Crown, unless
they were claiming thereunder, e.g., as members of the public, in which case they would be
asserting their own title. Decision of the question in whom the title was, would not decide
possession. The defendants would not be entitled to set up the title.
Read the case of Lall V Lall, Lord Fitzhardin v Parcell. It was said that, if possession is shown
the defendant is not at liberty to the title of the third party unless he justifies of what he has done
under a license by the third party. As against a defendant having no title to the land. The
occupier’s possession is in itself a title but if the defendant himself lay’s claim to the land by a
title of his own, he may of course plead his own title and thereby put the plaintiff’s title in issue
for then he is challenging a title not in the third party but himself.
Alternatively, he may show title in the third party, if he himself claims through the third party.
Read the case of Wuta Offei v Danquah [1961]; D. acquired land in Ghana by gift made by
way of oral grant in 1939 according to native custom. The land was marked out, four pillars
bearing D’s initials being placed at the four corners of the land. The land was not built on or
used, and D. delegated to her mother the task of looking after the land. In 1940 certain lands,
including this land, were vested by ordinance in the chief secretary in trust for the Crown free
from all titles, but subject to provision for release when no longer required. In 1945 the gift to D.
was confirmed by indenture duly registered. This recited that D. had entered into and had been in
possession of the land ever since the gift. In 1948 the appellant started to build on the land. D.
protested by letter of her solicitors in March, 1948 and in April, 1948, brought this action for
trespass. In 1956 the land was released by the government and D’s titled revived.
IT WAS HELD THAT, although the evidence of possession or continuance of possession after
1940 by D. was exiguous, the proper inference was that D. had continued in possession;
accordingly, she was entitled to maintain the action for trespass.
MEANING OF PROPERTY
The word property has several meanings in law and it must be carefully be distinguished the two
of them.
(a) Property may mean the thing or things capable of ownership. In this sense the word
includes not only physical or corporeal thing such as pen, clock, or land but also non
physical incorporeal such as copyright, goodwill, debt etc.
(b) Property may mean ownership, for example he has property in the watch, meaning he
owes the watch, also, the shopkeeper passes property in the goods in the buyer.
DISTINGUISH BETWEEN REAL AND PERSONAL PROPERTY
Real property refers to interest in land apart from leasehold. Real property is often called reality
and personal property is often called personalty or chattels. Personal property falls into the main
classification of chattels. Real and Personal property, real is leasehold while the personal
property covers chattel.
REAL PROPERTY
Property is said to be real if the court of law would restore to the disposed owner the thing itself.
E.g. If A (the owner of a freehold land) was possessed on evicted by B from his land, A could
bring real action against B for the recovery of the land. A’s interest in the land except leasehold
are real property A leasehold arises where for example A the owner of the land grant B a lease for
three years; A is called the leasor and B the leasee, A dispose leasehold, has no right in law to
recover the land from anyone except the leasor who granted the lease.
PERSONAL PROPERTY
Property is said to be personal if the only remedy available is personal action at the civil for the
recovery of the specific property or its value. For example, If B took away a horse owned by A,
the remedy available to A was a personal action against B at civil law to recover the horse or its
value, in such a situation land is referred is realty and horse personality.
Property is divided into immovables and movables, land is immovable, which other things which
can be taken and carried away that is things which are not permanently fixed on the land are
movables.
Personal property sub-divided into chattel, real or chattel. PERSONAL- The word chattel us
derived from the latin word catala which means chattel and it means in general goods
CHATTEL REAL
It refers to leasehold only. A lease consists of both goods and land. And the expression chattel
real is used to distinguish it from real personal property.
CHATTEL PERSONAL
Is subdivided in choses in possession. The characteristics of a choses in possession is that it is a
physical thing, and it can be touched, e.g. pen, book, etc. are sometimes called corporeal chattels
to be distinguished it from real and personal property.
(c) Choses in action; the main characteristics is that, it can be owned but it cannot be
touched, which is a thing in law but has no tangible existence, it is not possible to take
possession of a debt but it is possible to take legal action for a debt, hence it is called
choses in action, others are patent right, copyright, trademarks, stock, shares, insurance,
money.
All right existed in the items listed can be protected or transferred at law by taking action, if need
be, at court. But we must be careful to distinguish the thing of itself from the right attached to it.
A cheque for example is only a piece of paper on which appears words are figures that is its
physical manifestation. However, in law it represents certain right the most important of which is
the right enforceable by action to the payment of a sum of money.
DISTINCTION BETWEEN REAL AND PERSONAL ACTIONS
The division of property into reality and personalty of immovable and movable is a historic
survival of feudalism and also reflect the evolution and development of the forms of action in
early Medieval English law. Thus, one of the main effects of the forms of action was the division
of property into distinctive branches of realty and personalty. In medieval times, property was
regarded as real if it was recoverable by what was called real action. In early times, most real
actions were brought to recover land from intruders. The process of recovery was begun by a
writ of right whereby the landlord of the manor of whose land the land in question form’s part.
The manor, was ordered to do right the plaintiff. If the manorial lord fails to do full right between
the rival claimant, the matter was finally disposed of in the king’s court. The action was called
rea because the court will restore to the dispossessed owner the thing itself thus the land. Real
actions were confined to certain estates and interests in land known as free hold. The land was
seized from the intruder pending the trial of the action in order to ensure that the intruder
appeared in court and complied to the judgement and doing full right to the real owner. The land
was given back to him and not only compensated as in the case of personalty. This process of
recovery led to a distinction between real property or realty which should be specifically
recovered and personalty which was not specifically recoverable. Hence realty is recoverable
and personalty can’t be recovered but it can be paid for in value. Real property itself is made
up of corporal that is (admitting of physical possession) and incorporeal not (admitting of
physical possession).
Corporal hereditaments include Land, buildings, minerals, economic trees which are part of or
are fixed to the land. Incorporeal hereditaments are rights such as easements, profits append, thus
the right to take something from another’s land. Rents, charges where there is no relationship
between the landlord and tenants.
LAND AND LAND SUITS
In law language, land is thought of in area only so that a land owners’ field is said to consist of so
many acres or hectors in extent. The law however does not take this simplistic view of land that
is B owning the extent of area this is because the lame man’s idea of what land means excludes
much of what actually constitutes land. Land has to be comprehensively defined. It has to be
defined to take account of not only the area but also the volume, height and depth in order to
meet the needs of agriculture and technology.
Agriculture requires a depth of soil and to state the obvious normal human movements requires
an air space above the surface of the land. Any definition of land must therefore take account of
whatever that is attached to the land. In the airspace, in the middle and underneath the surface.
Land is therefore defined very widely to include the land itself-that is the surface with the things
of the soil which are enjoyed with as being part of the land by nature. For example; Rivers,
streams, lakes, lagoons, creeks, natural fruits and plants trees etc. Houses and other immovable
properties, are inevitably part of the land on which they stand such structures and fixtures
become merged with the land.
A fixture simply anything that is not merely placed not the land but attached to it with the
purpose of making it part of the land.
Land also includes any estate or interest or right in, to or over the land or over any of the things
which land denotes or rise in or to e.g.; easement, profits, mines, minerals etc. It can be seen that
land coves a wide area. It said to extend upwards to infinity and downwards to the center of the
earth. By land then the law implies all immovable property and fixtures and the law relating to it
is what is called land law.
WHY LEASEHOLDS ARE CLASSIFIED AS PERSONALTY
Leaseholds fall outside the real property class because in early times, they were not considered as
estates but merely personal contracts. A leasehold as term of years came into existence when the
times of real property had been fixed. They never fitted into the feudal system so they were
classified with personal property and was never received into the real property group and has
remained so to date. In medieval times, leases were regarded as personal business arrangements
under which the lessor allowed the lessee the lease the use of his land in return for a
consideration known as rent. The interest of the lessee was therefore regarded as contractual. The
interest being contractual, leases become personal contracts operating in personal persona in
The feature that stands out was that the interest did not or transfer any right in realm. The
significant process of recovery therefore, hinged on a personal action which gives the person
dispossessed of the land the choice of either claiming it back or recovering on compensation for
its value.
WHY STUDY LAND LAW
The aim of studying land law is in two folds;
A. To acquire a knowledge to the rights and liabilities attached to interest in land
B. To lay a foundation for the study of conveyancing. Conveyancing overlaps with land law
making it slightly difficult to distinguish between the two but where real property is static and
deals with the right and liabilities attached to interests in land, conveyancing deals with the act of
creating and transferring such rights int he lands.
FEATURES OF LAND
Land possesses certain features;
1. Permanency; this is most obvious feature despite its calamities such as landslides and
earthquakes, Land endures because of its durability. It has served as an unlimited reservoir of
sustenance for the person who has the use and enjoyment of it.
2. Safety; another feature of land is its safety that is why it has not been necessary to extend the
law of theft
3. Income value; Land produces income. This is obvious where the land is used for sustenance
like farming. In that case the crops of the land substance. The crops can be sold and provided the
profit ploughed back. The land will continue to yield income if it is an office block or factory, the
rent will provide income provided some of the rents received are ploughed back for the
maintenance of such land. If the land is your own house, the income value lies in what is
technically called quasi rent since the owner occupier does not pay hotel bills to live elsewhere
4. Capital value; Land also has a capital value that is the amount it will fetch on its realization or
sale. Land also appreciates in its value to keep pace with inflation
5. Necessity; Another feature of land is its necessity. Land is necessary to all and sundry.
Everybody must have where to live and work with something to eat and something it wear. The
house we live in is land. Our food and clothes are produced, made, derived from stored and sold
to us on land
6. Investment; Land offers an attractive investment it is obvious that a man may find in land
something that is permanent, safe, limited in supply, income producing and appreciating in its
capital value.
7. Family endowment; The features discussed so far make land a family endowment
8 Source of power; He who has land has power. This explains the numerous land litigations in
the past and the present.
FUNCTIONS AND GOALS OF LAND LAW
Property involves issues and public policy thus prompting much in the interest in health and
public amenities. Hence a person cannot do whatever he likes with the land they own.
There are many carefully thought-out controls over the use of land. These controls exist not only
to provide, some assist us to land owners and users alike but also to protect the individual in the
enjoyment of his land by preventing others from interfering with the use of his land. If controls
did not exist, there would be uncertainty with regard to ownership and use of land the result will
be insistent of the land. “A wide area of law relating to land exists in response to the need for
assurance and security concerning interest in land and the enjoyment transferred from land and
transmission upon death”. Towards achieving this goal, land law provides machineries for
obtaining certainty and security concerning interest in land.
Another purpose of land law is to provide a workable legal frame work such as to help the
achievement of general contentment and a sustained maximum yield, the land law thus seeks to
ensure the maximization of efficient and productive use of the available land and also to protect
the reasonable expectations of the parties to land transactions.

Another function of land law is to provide certainty and security of title. The law seeks to ensure
that the title to the land one buys is a reliable one that will keep the purchaser free from land suits
or that his title will prevail when challenged or such that a bank can accept it with confidence as
security for a loan. This assurance is further guaranteed through land title registration hence the
need to impose restrictions on the rise in land. In the words of Cohen “to permit anyone to do
whatever he likes with his property, in creating noise, smells, or danger to life would be to make
property in general valueless. To be really effective therefore, the right to property must be
supported by restrictions or positive duties on the parts of the owners and enforced by the state as
much as the right to exclude others which is the essence of property. “In this regard there are
measures that deal with town and country planning, forest reserves, rent controls etc. These aims
are achieved by specific statutes which regulate the actual physical use of the land and the
abridgement of powers of disposition or other incidents of ownership. Some of the statutes are
the administration of Lands Acts 1972 Act 23 Concertinos Act 1962 Act 124 the land
development protection of purchases act 2, Farms Land Protection Act 1962 Act 107.
Act 107 in those days sought to guarantee satisfaction to the farming community by guaranteeing
effective and efficient agricultural production. It seeks to remove causes of agrarian discontent
thereby assuring egalitarian to the farming population.

…..
A land suit is a suit that deals with any matter concerning an interest, claim or rights to
something on land or the land itself. Land has been defined in the case of Mensah v Wiaboa and
us is a consolidated case, Lankai v Wiaboe DC land (1921) 2A 25 Pg 170.
DISTINGUISH BETWEEN LANDSUIT AND SUCCESSION
The test as to whether a suit is a land suit or succession suit was stated in Vandeouye v Bottey
1956 AC 501. I was again asserted by the Ollenu in Kofi Sarpong v Afua Yentumi and Another,
1956 GLR 250. The guiding rule is as follows; Where the contestants, A and B, each claim
ownership of land as successor to one and some ancestor, for e.g. ancestor X who is dead
(deceased) the suit is a succession suit, and the real issue is to determine which of them is, i.g A
and B is the real successor to the deceased X. Where the contestants claim ownership of the
land, as successor to 2 different ancestors, for e.g. A claims ownership of Land as the property of
his ancestor Y who is deceased, who he claims to have succeed while B claim it as property to
his own ancestor, whom he claims to have succeeded then the real issue to be determined is
whether the land belongs to Y. In his life time or X in his lifetime. This is a land suit.
In the course of the suit, A may dispute that B is successor to Y and B too may dispute that A is a
successor to X. This is considered as a subsidiary issue. The main issue is whether the land in
question belongs to X or Y claiming their lifetime. Most land dispute arise because the buyers of
land do now take the trouble to ensure that they buy the land from the right owners. People who
are not rightful owners of land may sell land to unsuspecting buyers. Sometimes too the right
person may also sell the same land to many people. All these lead to land dispute. Buyers are
also now careful. They do not check fully the proprietary interest in the land because land can be
complex but a diligent search will disclose proprietorship. Land being imperishable and
immovable passes through this process, prop. Interest of various description are created and
distinguished as interest in land pass through various hands for a long time.
It is therefore necessary when buying land, apart from checking on the title which is very
important, you would have to check prior interest at least 30 years, and see whether the claim of
title was not broken to the present owner or seller, i.e. check on past transactions concerning the
particular land. Find out whether it vest in the present seller or not. This process is known as
checking the root title. It is necessary to emphasizes that checking the root of title must be
followed so long as there is the institution of private property and so long as some individuals are
dishonest. One has to check on the title now and at least 30 years back. This is the only way you
can be sure that there will be no dispute affecting the land you want to acquire.
The law on communal ownership also makes it very difficult to recognize the sellers who are
entitled to sell land. If the land is owned by the person, it will be very necessary to see whether
the ownership is vested in that person or not. Sometimes family heads who sell property on
behalf of the community may turn out not to be the substantive head at times, chieftaincy
disputes are res…. In land disputes as rival claimant to the stool may try to accept their authority
over stool lands by selling portions of the stool land leaving the buyers to fight it out with other
claimant when the real chief or family head sells communal property. He may have done so
without the consent and concurrence of his elders or management committee.
This is a fertile ground for litigation over the land. The elders may turn round and say that the
sale was invalid BENTIL ENCHILL suggests th… to reduce this, all management committees
should be publicly registered so that prospective buyers can check that they are dealing with the
right people. This suggestion has remained on records for decades now. There have been several
law reforms to at least reduce the injustices referred to above, that is a person buys land and
interest in it and finds himself in Court to defend his investment with the real or other buyers. In
such a situation, the law may protect him to enjoy his investment if it is found that the real
owners slept on their rights for far too long. There are also statutes and laws which protects
farmers and builders in less cogowared cases. (Act 2 and 107) problems of boundary are Ginther
fertile source of land disputes. Customary law is based on oral traditions. Extensive prop. right
and limits to these rights are quiet often based on hazy recollection to memories of old people
most to whom are illiterate with no documentary records to and their memories.
The Conveyancing Act 1973 made C feeble start to solving these evidential problems by
requesting that all customary oral grounds must be registered so long as the interest is for 3
years.

CUSTOMARY LAND LAW

TYPES OF OWNERSHIP
Prior to the promulgation to the land title registration Law 1986 PNDC Law 152 and the recently
promulgated land Act. Various Ghanaian legal text book writers described the interest in land
owner as the customary law differently. Most to the terms used in the classification of the interest
in land were either confusing or simply unhelpful. The law reform Commission also sqw an
“inconsistency in the terms used for the various interest held in land” and draw attention to the
fact that words like “estate” “terminal” and “interest” term to be indiscriminately used in
relations to the rights held in land. The La JJS. Ollenu grouped the various types of ownership
known to the Customary Law under six headings;
1. Paramount title/Allodial Title
2. Sub paramount title
3. Determinable Estate/ Possessory/ Usufructuary
4. Tenancies
5. Pledges
6. Licenses
This grouping already complicated does not claim to be comprehensive for it leases out the
estates derived from the Common Law of England, an English Conveyancing precedent, e.g. the
lease. Dr. in his book “Ewe Law on Property” chapter five (5) Kludze also added a few more
interest in land e.g. individual freehold in non-Akan speaking areas. The Law Reform
Commission recommended the adoption to the following uniform terminology in the description
in all the types of ownership of land known to the Customary Law (section 1 of the Land Act,
2020 (Act 1037))
1. ALLODIAL TITLE
The allodial title originally attached to all pieces of land in Ghana. Such a title is held by
identifiable stools or Communities. It follows that Communal Ownership expressed through the
allodial title is basic to all land ownerships in Ghana. The allodial title is however has supper
imposed on it other leasor title, e.g. us the Usufruct. Sir Ofori Atta once said to this title “I
conceived that land belongs to a vast family to whom many are dead, few are living and
countless are still unborn” what he was saying is that, the allodial title is vested in the
Community as a whole and goes on and on. This title never vested in one person. It remains in a
continual flow of people and remains in them from generations to generations (Read Amodu
Eijand v Secretary Government of South Nigeria 1981 2AC 399 at pg. 404 – 405).
ACQUISITION OF ALLODIAL TITLE
In Ohimen v Adjei 1957 2W.A.L.R 275 pg. 279, the Court laid down four (4) principal ways in
which the allodial title can be acquired by a stool or skin, Community or tribe.
1. Conquest and Subsequent settlement thereof and Cultivation by the subject of the stool
2. Discovery by hunter or pioneers of the stool od an unoccupied land and subsequent
settlement and use thereon.
3. Gifts to the stool
4. A stool can also buy the allodia title
Each of the methods involve either a sacrifice of lips of subjects, where stools go to war or
expenditure of energy or contribution of money by subjects and use and occupation of the land
by subjects. If these factors to use and occupation have been made occupation of the allodial
title, then we’ll have a problem with virgin lands. The principle of no ownerless lands in Ghana
however solves a problem.
TRANSFERS OR EXTINGUISHMENT OF THE ALLODIAL TITLE
The ways in which the allodial title can be extinguished are
1. Compulsory acquisition by the state, such an acquisition extinguishes the allodial title
and all other soft items in the land and confers the title or tiles on the state.
2. It can also be fearistically extinguished by the use of usufruct, this is the only possible if
the person using the usufruct has all the …of the land, however, in actual sense the
usufruct must co-exist with the allodial title. The usufruct only undercut the allodial title
as an expression of the communities’ dominion.
3. By gift or purchase to or by a community for e.g. the Osu lands were originally owns by
the Labadies, Akuapem lands owns by the Akim.
The allodial title is the most complete proprietary title or interest in lands and covers all other
possible interests in lands. It is absolute interest in land. Subordinate interest can however be
granted in land to individuals. E.g. when a subject acquires a usufruct either by actual allocation
or suomoto (taking it the land on your own because you are member). Allodial title diminished to
the extent of the usufruct. The same applies to clans, strangers, and concessionist. Consequently,
allodial title waddle
THE ISSUES OF “OWNERLESS” LANDS IN GHANA
The first basic principle of our customary land law is that there is no ownerless land. Every land
in Ghana is vested in somebody. The principle derives from the mode of acquisition of stools or
skins and communal lands. People in Asian times compel in social circumstances such war or
molestation by neighbors frequently up to migrant to a new area. They may conquer those they
meet or finding the land on occupied to control until their advance was ousted by a superior
adverse occupant or by natural obstacle such a river. It is therefore inconceivable that a
community in these circumstances would voluntarily leave either a no man’s land between them
and the Costal neighbor or an unclaimed area which will encourage new migrants to occupy it
and molest them. What they naturally did was to waved continually boardy skirmishes or even
walls to maintain their boundary or to gain more land from adjourned neighbors in order to do
justice and to maintain peace and order among neighbors. The government accepts the principle
that each piece of land has an owner and formed boundary with the land nearest to it. FANTE
LAW REPORT (PG 78), LAND ACT, PNDC LAW 152 SECTION 19 (2) (c), Woodman
(Allodial Title Report (page 79), S.K. B Asante Property Law in Ghana.
THE USUFRUCT OR DETERMINABLE ESTATE
This is the highest estate or title which a subject or an individual, member of family can own in a
skin or stool. This title can be transferred inter-vivos (when you make a will, it can take effect
after the death of the giver; interstate succession) by the individuals or by testamentary
dispossession, or the member to succeed upon your death.
Inter-vivos is a legal term that means "between the living" and refers to a gift or transfer made
while someone is still alive. It's the opposite of a testamentary transfer, which takes effect after
the giver's death.
ACQUISITION OF THE USUFRUCT BY THE SUBJECT
There are two schools of thought, THE FIRST one is that if you are citizen or a native of that
area, you don’t need a permission of the stool or skin, e.g. when the people migrated to another
land (Agyei’s family) and you are a member of that family, you don’t need a permission from the
skin or stool to use the land for your farm or build on (you just enter then you take. That is
inherent right) but if you are stranger, you must have the permission of the skin or stool to use
the land. Thompson v Mensah, 3 WALR 240.
OBLEE v. ARMAH & AFFIPONG: In this action for a declaration of title to land, the parties
were subject-members of the same stool. The land in dispute which was Accra outskirt land, was
part of an area which had at one time been compulsorily acquired under the Accra Town (lands)
Ordinance of1951 and had subsequently been released. The grant to the plaintiff had been made
by the stool authorities some 40 years before the action and he had since exercised acts of
possession-farming and building – for many years. The grant to the defy had been subsequent in
time to the grant of the plaintiff. It had also been made after the compulsory acquisition but prior
to its release. The defy further alleged that it was a customary incident of a grant of land made
by a stool to a subject that the land so granted may be used for farming only and that by building
on the land, the plaintiff had suffered forfeiture, the land reverting to the stool-grantor.
HELD: 1. A stool subject in need of land does not generally speaking, require express
permission from his stool to occupy vacant stool land. HOWEVER, on occasion, demarcation
by the stool of an area of land required by a stool-subject may be necessary, where other land in
the vicinity is already inoccupation, in order that the boundaries of the respective occupiers shall
be satisfactorily defined.
2. Where a stool subject is granted land for farming, he is not thereafter restricted to farming in
his use of the land.
3. The general rule that a stool-subject does not require the consent of his stool, when seeking to
occupy vacant stool land gives way when the land in questions outskirt land of an urban area
which is ready for development. To ensure that such land is properly administered in the interest
of all stool-subjects, a subject of the stool may only take possession of such land upon express
grant by the stool. In spite of this, the incidents attached to land so granted do not differ from
those in respect of land taken into possession where consent of the stool is not required.
4. A grant by a stool of stool land in the possession of a stool-subject without the consent and
concurrence of such subject is a nullity.
5. Although the land concerned had been compulsorily acquired by statutory authority, at the
time of the commencement of the suit, the had not yet divested itself of the land and the plaintiff,
who was in possession and who had never claimed compensation for the land, was entitle to
maintain his action against all else save the government. Therefore, the deed of conveyance
which transferred the usufructuary title of the 2nd def to the 1stdef, which was later transferred
to the plaintiffs was valid.
SECOND, permission of the stool is always requiring, whether rural/ family land or
urban/building land, Frimpong v Poku (1963) 2GLR 1 the Supreme Court in this case state the
principle of customary law which says that the subject can cultivate any extend of stool land does
not confer on the subject an unlimited license for discriminate cultivation and the subject usually
obtains the formal permission of the stool for the purpose. Permission is never refused but it is
necessary in order to enable the stool to keep a proper check on uncultivated area in days gone
by when land was plentiful and persons seeking to cultivate it were few. Subject who would be
shun the site or to choose his own site with the approval of the stool and he will extend his
cultivation to “wherever his cutlass will carry him” as they saying goes. In modern times,
however, it has become necessary to ensure a more equitable distribution of available lands and
the principle has been for a limited areas to be demarcated for subjects of stool.” This view is a
whole interpretation of the law, the court must however ascertain and apply the customary law as
it applies to the community rather than as the judges says it is.
ACQUISITION BY STRANGERS
There is no ambiguity on the mode of acquisition by strangers, it is agreed that it can only be by
express grants by the community owing the allodial title. This applies to urban/rural lands, a
grant to a stranger is made by the stool or skin or usufructs holder. The terms of the grants
determine or specified the nature and the extent of the title transfer to the stranger.
EXTENSION OF THE USUFRUCTS
Ollenu calls the usufruct a determinable title but theoretically, it is a perpetual, that is once
acquire it subsist forever but it can be terminated in a number of ways. Also, a usufruct acquired
by strangers states the duration of the title, normally definite event is necessary to ends the
usufruct.
The followings are some recognized modes of termination of the usufructs.
The first one is abandons, is a matter of intent and its existence depends on the circumstances of
each case. The most element is the intention of not coming back then it means you have
abandoned it; therefore, the owner can take it back. The owner must prove the intention of the
person of not coming back to the land. Page 35 of Ollenu and Sabbah 10 years of abandoness
(Ohene v Agyei)..Total Oil Product Ltd v Obeng (1962) GRL. Abandonment was defined as
near neglect or unused of land for a period however long, does not by itself constitute
abandonment. Some acts or conducts must be exhibited by the owner which shows intention not
to use the land any longer:” Also, in the Shail acquisition’s case at page 67 of Ollenu states that
“land, particularly land on a place where farming is chiefly by shifting cultivation is not
necessarily abandoned by a reason only of the fact that it was not been used at any particular
point of…either for farming or residence. Abandonment consists not so much in allowing the
land to lay waste but to rather in the non-existence of rise to immediate control” (Mensa v
Asamoah, 1975 1 GRL 225). This occurs when the older of the subordinate title denies the
superior title of the owner. This is a case of tenancy, where a tenant denies the title of the land. B
the tenant is immediately subject to ejection, thus, when a usufruct title owner denies the
existence of the allodial title holder he is subject to for forfeiture hence in the Total Oil case the
subject was said to subject to forfeiture, it was also held the subject forfeit only where he claims
that the land he occupies belongs to another stool. That is, he is a grantee of another stool. It was
also held that a fee simple estate is unknown to the customary Land Law but a conveyance which
purport to convey a fee simple in land is not void. It has the effect of transferring the highest
estate or interest which the transferor of the land to the transferee.
RIGHTS OF THE USUFRUCTULY (THE STRANGER TITLE HOLDER)
1. Use of the land for any purpose, the title holder chooses and this includes the use of all
things natural attached to the land, e.g. palm three. However, under the Minerals Act, all
minerals on the land are vested in the state
2. With regards to the physical limits, refers to (Frimpong v Poku) in particular to the
maxim “where your cutlass can carry”. The title held by stranger is delimited by the
terms of the grants.
 3. The usufruct is perpetual, this applies to the holding of the subject in respect of strangers
limited by the grants.
4. Transferability, the holder of a usufruct may transfer either the whole or parts of the title
to another person wither a stranger or a member with the consent of the allodial title
holder. NB; a stool cannot transfer land use by a citizen with the citizen’s consent (Coffie
v Oto, Total Oil Products Ltd v Opoku, Thompson v Mensa). However, when a transfer is
made by a citizen to a stranger the stool is entitled to exact payment from the stranger be
sides what the stranger gave to the subject. This payment is lidue in customarily services
which the stranger cannot render to the stool as requires…this commutation of customary
service is done by the stool itself, (Amartei v Harmond 1981 GLR).
SUBORDINATE TITLE (CUSTOMARY LAW TENANCY)
Usufructs are titles like tenancy, licenses, concession, the focus however is on the tenancy and
License because the concession.
TENANCY
A tenancy involves the creation of limited interest in land for the payment of rent to the holder of
the superior title. The grantor be the landlord retains his or her right of ownership in the land but
grants the rights of occupancy and use to the tenant for a giving period of time. A tenancy may be
granted by the holder of the allodial title in respect of land not occupied by any usufructuary title
holder or it cannot be granted by such usufructuary holder out his or her title by a tenant himself
may grant a tenancy to another tenant that is subletting his title to a third party.
LICENSE
This can be regarded the same as tenancy be a right of leaser granted by a land owner, who in
this case is called licensor to a licensee but with few proprietary rights than obtain under a
tenancy and usually for a shorter duration. Termination of licensee unlike termination of tenancy
is under the total discretions of the licensor
Ababio v Nsenfoo 1947 12 W.C.A “A person presumably a stranger who desires to procure land
from a local ruler should make special inquiry and informed himself of whom the members of
the council of elders are and get that council or the linguist to that council to join the chief in
making the grant whatever lawful grant or license permission is given by the chief and his elders
to and hold and valid. The grantee by taking possession of the land and working thereon becomes
a tenant or licensee of the stool.”
SHARE CROPPING TENANCIES (Page 93 of OLLENU BOOK)
Sowing Tenurey
This comprise of sowing tenure that is a grant of a land for one farming or sowing season on
terms agreed upon by both parties.
ANNUAL TENURE
Runs from year to year until it is terminated. It is a form of customary law lease.
LEASES/LICENSES
A customary law lease is normally for building purposes only, it is perpetual. There is no need
for the tenant to pay any consideration like rent. It is a form of license that is a gratitus tenancy
(free tenancy).
ABUSA OR ABUNO TENANCIES
Abusa and Abuno is discussed in Akofi Wriasi 2WLR 257. In this case abusa tenancy is
discussed as follows “it is a common form of tenure throughout the country for a land owner
who has an unoccupied virgin forest land it creates same to a stranger to work in return for a
fixed share of crop realized from the land” this arrangement may be carried on indefinitely
(Section 7 of the Lands Act (Act 1036)) even by the original grantee’s successors. So long as the
original terms of the holding once observed. The abuno on the other hand involves not merely
the grant of farm land owner but also the cultivation of the farm at his expense or financial
assistance given by him to the tenant. Alternatively, the landlord may himself clear the land and
after hand over to the tenant who will then lend the farm until harvest time. In any of these cases,
the proceeds are share equally where land is held on the basis of permission without any transfer
of title and this gives on for generations especially in situations in the rural areas. Time may
come when the occupant of the land may claim that they are the real owners of the land.
This is what happened in the case of Kuma v Kuma 5 WACA 4. The Court stated “it appears that
a…the natives, occupation of the land is frequently allowed for the purpose of cultivation
without the owner’s approval of the land being parted with. The owner of the land being willing
to allow such occupation so long as no adverse claim is made by the occupant and the occupier
knowing that he can use the land for as long as he likes provided that he recognizes the title of
the owner.” The Court went on to rule that such long occupation alone even without permits is
not conducive evidence of ownership and that the original owners who permitted such
occupation and their successors in title remains the owners of the land and this has been cechplid
in unitation Act section 10 (30) (3).
CAPACITY TO GRANT ABUSA AND ABUNO TENANCIES
These tenancies may be granted by an individual subject o…his self-acquired land or by a family
of an occupied land within the territorial boundary of lands attached to a substool or stin or
quarter. A paramount stool or skin is however entitled to line cases as Abunu and Abusa to one
third share of the proceeds of the … share of the stool or skin, i.e. one ninth of entire or total
proceeds but an individual or family grantor us entitled exclusively to the whole of the one third
share of the proceeds he gets from Abusa farm.
DETERMINATION OF TENANCIES AND LICENCES
Tenancies and license can be determined in the following ways
a. The tenant abounding the farm
b. When the tenant denies the title of his landlord and cossets his own title or the title of a
third party
c. When the farm falls in the ruin either by forces e.g. devastated by swollen diseases.
d. When the tenant dies without leasing a successor
e. In the case of building licenses, buildings, where buildings are erected on a land (page 95
to 100, securing of tenancy and for future tenancy)
ALLIANATION OF TENANCY
The abusa tenancy is the most common in Ghana, one reason for it populating is that it gives
securing to both the stranger tenant and the land owner. The stranger tenant gains a for…land
without having to lay and a large capital in….ie purchase the desirable without the level… and
the landlord by giving a large “given his land p…cultivation being regarded as abandoned to
became free for the subjects to occupy. It is an incident of abusa tenancy that it is inalienable by
the family of the tenant and his successor must or shall be introduced to the landlord or
successor. Abusa or Abuno Tenant has no rights to alienate his right of the farm he holds without
the knowledge and consent of his landlord.
The agreement is personal to him. He cannot therefore assign his right of the farm to a third party
by way of a gift, sale or pledge without the knowledge or consent of his landlord. The tenant my
however dispose of his right in the farm by way of testamentary disposition (Samansew). His
right in the farm may also be sold in the execution of a decree obtained against him in a Court of
competent jurisdiction, but all that the purchaser gets as such a sale is the right title and interest
of the execution debtor inn the subject mal… of the sale. 10 may be a liability, an assert or a
mistune of both.
The liability corises because the purchaser takes upon himself the burden of laying out capital to
develop and maink…the farm and to have the right to two third or one third of the proceeds of
the farm as the case may be.
STOOL PROPERTY (SECTION 9 OF LAND ACT, 1960 (ACT 1036)
The various modes by which a skin, stool, community or tribe acquires the absolute ownership in
land are set out in section 9 and also in the case of Obeng v Adjei “there are 4 principal methods
by which a stool acquires land (Section (2) (b)). They are; conquest and subsequent settlement
thereon and (cultivation by subject of the stool). Another way is pioneers of the stool or
discovery by hunters of an unoccupied lands and subsequent settlement thereon and use thereon
by the stool and its subjects.
Another way is gifts to the stool. Each of these methods involves either the sacrifice of lives of
subjects or the expenditure of energy and the contribution of money by the subjects and the usefu
and occupation of the land by the subjects that excluding sale or purchase in which the physical
boundaries of the land sold and purchased are generally demarcated. The most important factors
in the acquisition of land by the stool are occupation first by subject then by groups of subjects if
the sections or guentess of the town under the stool and then by the stools subordinate to the head
stool in which the paramount or absolute ownership eventually becomes vested.
All the cases are unanimous that a head stool or skin cannot acquire an absolute title to land
unless that land belongs to or is vested in a substool under the head stool. therefore, if any land is
proved to be vested in a head stool, for an absolute estate, that land must of necessity belong to
or vested in a soft stool or quarter for a subparamount estate. CASES: Wiapa v Solomon 1905
REW page 410 it can also be found at page 28 of Ollenu Book, Adusei v Onano V Mensah and
Ankamafio 1948 – 57 DC land page 97.
The stool is considered as a legal entity capable holding an interest in land and other properties.
It is a legal person under the Customary Law. It is the personificature of the community it
represents with power to sue and be used on behalf of that community. A useful def. of corporeal
character of the stool. It may be seen in a settlement by Dean CJ in the case of Quarm v Lankah
II 1931 WACA 80 “the concept of the stool, that is and has always been accepted by the Court is
an entity which never dies. A cooperation sole like the given that while the occupants of the stool
may come and go the stool goes on forever.” The stool’s interest in land is usually the allodial
title but theoretical, a stool or the stool family holds other titles as interest in the land.
The stool title embodies all other titles but such a title may be only a theoretical possibility if we
are to go by the view that a stool title always derives from the occupation and use of the land by
the stool’s subject who would thereby acquire the usufructuary title. There can be therefore no
allodial title in virgin land unoccupied by no other subordinate title. In the case of Nyemati v
Adeosia 1959 GLR 323 and for a distinction between stool and skin land BOATEN V ADJEI
1963 GLR and Okyere v Adjei 1961 GLR 34. The ordinary rules and renume of land rules apply
to tenancy use apply to stool properties as well. However, particular difficulties concerning stool
properties have been identified as follows:
1. The rule of the chief and the extent of his powers regarding stool lands. This includes the
question, as to whether a chief can be held account for stool property or not?
2. The limitation of stool land, in many instances, there are problems in identifying who the
chief is. There are chieftaincy disputes with each chiefs claiming power over the stool
and its properties. Alternatively, you may have several chiefs or chuisianal chiefs,
ascerting power over the same area or overlapping areas. We are not concerned with the
policies of enstoolment.
We are not concerned with the policies of enstooling or distooling of chiefs but concerned with
how chieftaincy affects stool properties. As a general rule, it is the chiefs who exercise the right
of a stool and act on behalf of the community in the alienation of land. The chiefs act affects the
alienation, although such act has to be done in consultation in council of elders are ultra vires.
Generally, it is also the chiefs who acts to protect the community property such as by instituting
or defending cases affecting such property. It is not opened to individual members of the
community to act in this capacity unless they have been expressly vested with that power by the
chief and his elder (Kwan v Nyeini 1959 GLR 67). We know that a subject has a life interest in
a subject of a stool except yourself acquired property without any interest of family members.
ACCOUNTABILITY OF A CHIEF (SECTION 13)
Since the chief exercises the proprietary power of the community, it will see to follow that he
would be accountable to the community for the exercise of such powers but there is this technical
rule that a chief cannot be held accountable to individual members or even sections of the
community or even by a minority of his council of elders as happened in the case of Atude v
Onano 1946 12 WACA 102. Note the manner in which the rule is formulated. There is the
popular view that, a chief cannot be held to account to anybody under any circumstances. This is
not the law. The rule is that, a chief cannot be held by individual or sections of the community to
account for properties, hence in the mentioned case it found this immunity of the chief and did
not find it contrary to equity, natural justice and good conscience. The judgement found the
immunity not absolute that far from precluding account, altogether, the rule regulate the manner
the accountability is to be enforce and stated thus, in the judgement; “there is evidence on
records that whenever a member of the council is of the opinion that either the chief and or some
of his elders had misappropriated funds, the proper cause is to bring the matter before the local
council or the GA state council which alone has power to inquire into such matters. If as a result
of the enquiry, the chief and or some his elders charged are found to have misappropriated public
funds, they are as a rule disposed.” We also know for instance that; the rule does nor preclude
criminal proceedings against chiefs for misappropriation of funds and certainly does not preclude
other actions. At Customary Law level, accountability must be before the appropriate traditional
authority and the sanction attached is destoolment. Gyato v Pimpim and Teiku v Ocansey.
THE CHIEF AS A TRUSTEE
This trustee concept does not mean that title is vested in the chief as under the common law but it
means that the chiefs power or jurisdiction over the stool land is not for his personal benefits but
the community; for according to the famous saying attributed to Sir Ofori Atta “land belongs to
the vast family of which many are dead, a few are living and countless more are yet to be born”
(property law and social goal in Ghana by S.K Asante).
THE PRIVATE PROPERTY OF A STOOL OCCUPANT (BOATENG V ADJEI 1963
1GLR)
It is necessary to distinguish stool property from the personal property of the occupant of the
stool. the problem arises in relation to property held or acquired before the person ascents to the
stool as well as the property acquired while on the stool.
There was old customary law presumption or so it was believed that such property became stool
property on the stool assertion to the stool unless the property was set aside as a private personal
property. But in the case of Boateng v Adjei, it was emphasized the distinction between the
property one had. The personal self-acquired property of stool occupants on one hand other than
the communal or stool or family property of which he is in charge with the other land.
Akuffo Addo JFC in a bold act of judicial statesmanship undertook a review of all the old cases
on this issue and put the supposed Customary Law presumption to rest calling it “a rule of
evidence rather than a substantive law.” The problem of the property acquired. Her again the old
rule was that the property became stool property on expressly provided with the consent of his
elders that he was carrying out private business and that any properties acquired from it was his
personal property. Here again BOATEN V ADJEI reviewed and interpretated the law and
concluded that the actual law is that such properties are personal properties.” It has never been a
principle of customary law that the self -acquired property whether acquired before or whether
after assertion to the stool become merged into stool property by mere reason that either of the
owner of such property occupying a stool or the absence of a pre-enstoolment declaration or
making of such property.
ALLIENATION OF STOOL PROPERTY (27TH November, 2024)
The chief acts in consultation with the elders who together is called the management committee.
The main problem is to identify the members of this committee since their consent is necessary
for the validity of any alienation of the stool lands by the chief, Sabbah noted at page 67 of the
Fante Customary Law as follows; “a person who desires to procure a grants of land or any
concession from a local ruler should make special enquiry and inform himself who the members
of the council are and get them or the linguist to join the head chief in making such grants
whatever lawful grant or permission in so giving by a person defecto chief with the concurrence
of men or women defecto members of the village council or stool is good and valid under
customary law”, this is in respect to stool lands, that is the chief alone cannot give a land or
validity of the land to any person without the consent of the members of elders or the committee
or members of the village. The first thing you must do is to find out the members of the stool in
order to purchase the land (Stool, community) from the right persons.
There is this preminary questions (Golightly v Ashirifie, 1955 14WACA 676, Sasraku v David
1959 7GLR, Adjowei v Yiadom III 1973 2GLR 90, Mensah v GC Bank 1957 3WALR 123,
Otchere v Adjei 1961 GLR)
Where the necessary consent has been obtained, it is not requiring that all of them should be
executed the documents or sign them. In the case of the stool the document or the conveyance
may be validly executed by the chief and his linguist, provided that all the consents have already
been obtained on the collective consent of the council of elders the case of Abudei v Onanu that a
majority view may prevail on the issue of consent that is no unanimous require ever. One must
ensure that if a stool purport to convey the allodial title (especially the Ga Adangbe Areas such a
stool must in fact own the allodial title. It has appeared at the in some communities the allodial
tittle may in fact be held by families rather than the stool in such cases a stool cannot transfer the
allodial title (Amoe Da v Podier 1967 GLR 479). But the general principle to note is that the
jurisdiction of a stool over its territorial lands is not necessarily conterminous with proprietary
interest or titles in those lands. The question as who is entitled to alliant arises in different
contents when you have a hierarchy of stools with concurrent interest over the same territorial
area which stool in that area is entitled to alienate. This is a matter of custom revealing in that
area.
Saiku v Amanama 1967 GLR 506 (North Land is not the same as of the Ashanti)
Kwami v Quaynor 1959 GLR 269 the issue was who had authority to grant Osu lands. Was it the
Osu mantse or Osu Alata Cutter, the court held that the right to alienate as between the two
functions depended on whether the land in question was attached to the particular or that
particular quarter. In that case the land was in developed area adjoining the Osu Alaca Quarter
and forming part of it. Such a quarter land including outcast lands was held to be within the
power of that particular quarter to alienate. Quaye v Awoletei 1960, where the land was neither a
quarter nor outcast land. Fikalu v Adjani 1962 2GLR 209 the Goli priest was held to be
incompetent by himself to alienate Kokomlemle lands without the consent of the Gbesi Ga stool.
Robertson v Nii Akama 1973 1GLR 445, there were competing claims between the Nii Quaye v
Alie as against the Asere Stool. The Nii said it were for their family and other said were for their
stool. The held that although the Nii Quaye was subject to or under the Asere stool it was a
proper authority to alienate. Since the later (Asere stool) could not alienate lands held by the
subject without their consent this fall in line with Total Oil Products v Obeng and Thomson v
Mensah and Ohemi v Adjei, Quotei v Odoi 1962 GLR 347.
FAMILY PROPERY
The family consist of the entire lineal descendants of a common ancestor for the purpose of the
owners of a property and for purposes of a social lives. The family may be patrilineal or
matrilineal or mix.
MATRILINEAL FAMILY
This consist of all persons both male and female, lineally descendant from a common female an
ancestor. Such a family is passed on by each female member of the family to all children both
male and female born of her but it dies with each male member. Mills v Addy 1958 the case set
out the description of the matrilineal family. Example for matrilineal are all Akans, section part
of the Gas, Vagals, Birifors, and Tampulesi.
PATRILINEAL FAMILY
This consist of all persons both male and female lineally descendant from a common male
ancestor. It runs through all descendant of a common male ancestor in the direct male life and it
is passed on by each man to each child both male and female procreated by him. It dies with each
female member of the family. Example, Guans, Ga Adangbe, all tribes in the northern and upper
regions except the valgal, the Birifor, and Tampulesi, and the Ewe.
LEGAL IMPLICATIONS OF MEMBERSHIP OF FAMILY
For the purposes for the property membership of the family carries with it the following legal
rights and duties;
a. Common ownership of property by all members of a family
b. Common liability of all members to contribute towards to the payment of family debt.
c. Common right to set in or to be represented in the family council.
COMMON OWNERHSIP OF PROPERTY
Every member of a family has an inherent right to be granted a portion of vacant family land for
farming or building. In the case of farming or agricultural land, he may occur any portion of such
land upon a presume grant without application to the head and elders of the family but in case of
a building land, he may only occupy it upon a formal grant (Thomson v Mensah). A family
member pass only a live interest in family property. Therefore, in matrilineal areas, children of
male members of the family do not upon their father’s death instate acquire any right or interest
in the family farm, house, or land occupied by their father during his lifetime (Mills v Addy).
This was the position before the promulgation of PNDC LAW 111 (Instate Law).
LIABILITY TO PAY A FAMILY DEBT
Every member of a family is liable to pay or contribute to the payment of the family debt.
Therefore, a family member who redeems family property from a pledge or mortgage, does so on
behalf of the family unless he has obtained a prior consent of the head of family and principal
members of the family that upon the said redemption or purchase, he should hold the property so
redeemed or purchased as himself acquired property. This also applies to family property,
purchase through sale, if he obtains such a consent, he could alienate the property intervolvos or
by testamentary disposition. Pledge property cannot be sold except under condition-obtain
judgement to sell (Kyerifie v Breman Stool, Konamah v Aseidu)
RIGHT TO SET OR BE REPRESENTED UNDER FAMILY COUNCIL
The administration of the family and right and control of family property is vested in the family
council. This council consist of the head and principal members of the family called the elders.
All members of the family have equal right to set on the family council which is a democratic
institution but that right of each individual member is by customary law exercise through
representatives of groups often called houses, lines, or branches of the family.
HEAD OF FAMILY
He is the senior member of the family and legal representative of the family. In the matrilineal
system, the woman forms the family is the head of the family as long as she lives. She is the
proper successor of the family head (Quashie v Ayetey). In the patrilineal family the man is the
proper successor when the found is deceased and the next senior man or woman in the descent is
the successor (Tsetsawa v Acquah) 1941. Even though a woman can be the head, usually a man
is preferring if they are both of the same rank (e.g. same age, financial status, etc.). he is the
natural guardian, he alone can sue and be sued with regards to all claims in family property,
debts, etc. He may be chosen or conferred by all the family members or a majority of the family.
In a large family, only the principal members may meet in council to appoint the head of family.
No one has an inherent right to be appointed head of his family. The appointment is made by the
family at a family meeting. A choice of a head of the family is the responsibility of the living
members of the family.
NELSON V. NELSON (1932) 1WACA 215 is a significant case in Ghanaian customary law,
particularly concerning the accountability of family heads. Family property can be created where
a deceased land owner, while still aliave, expressed an intention to designate the property as
family property for the benefit and enjoyment of members of the family only. The defendant’s
father on his death bed had asked him to look after the interest of his brothers and sisters in the
property left by the father. HELD: It was held that the defendant was in a fiduciary position as a
caretaker. Michelin, J held that (inter alia) that If the family therefore find the head of the family
misappropriating the family possession and squandering them, the only remedy is to remove him
and appoint another instead; and although no junior member can claim an account from the head
of the family or call for an appropriation to himself of any special portion of the family estate or
income therefrom arising, yet the customary law says they who are born or they who are still in
the womb require means of support, wherefore the family property and possessions must not be
wasted or squandered
HERVIE V. TAMAKLOE (1958) WALR 342: The case clarified that the appointment of a
family head is not automatic. It requires either formal appointment by the family elders or
implied appointment through the individual's actions and recognition by the family members. It
highlighted that succession rights are not necessarily tied to bloodline. A family can appoint a
head from within or outside the direct bloodline, as long as they are recognized and supported by
the family members. The case emphasized the importance of family unity and consensus in the
appointment of a family head. The appointed head must be accepted and recognized by the
majority of the family members.
The principal members have a right to pass over a person recommended by a deceased as the
head of family. If the natural head is incapacitated or unfit in other respect he can be bypassed. A
family head can be removed by majority vote of the family and a new one elected instead. In the
absence of the duly elected head of family, the eldest member of family acts as head of family
(Tsibu v Kyei 1992).
REMOVAL AND APPOINTMENT OF HEAD OF FAMILY
1. A family meeting to appoint a head of family must specially convinced for that purpose
and all principal elders invited to that meeting (Lartey v Mensah 1958, 3WALR). As a
corollary, a meeting to discuss other business at which a head of family is appointed. That
appointment of a head of family is null and void. The meeting should be announced that
the business of the meeting is the appointment of the head of family and all the principal
elders shall be served. In all the main agenda of the meeting should be communicated.

2. If a notice of a family meeting to appoint a head of family is given to all principal

members who are entitled to be invited to it and an appointment of a head of family is
made at that meeting it will be valid notwithstanding the absence of some of the principal
members from the meeting so long as the meeting is representatives of all the branches.
WELBECK V CAPTAN 1956 2 WALR 47; It was proved that the principal elders of a
family were invited to a meeting for the appointment of A Head of family. Some of those
members deliberately kept away, and the ointment was made in their absence. It was
contended that the appointment was null and void. Although the absence of principal
members from a family meeting may render nugatory decisions taken at those decisions
taken at such a meeting. Yet this will not be so if the members concerned have been
invited to the meeting but for reasons of their own have not attended.

TAMAKLOE & ORS V ATTIPOE & ORS. WACA 1953: Where a member of a
family seeks to avoid a decision taken at family meeting on the grounds that the meeting
was not representative or that indispensable principals were not in attendance, the burden
of proof is upon him to establish the non-representative character of the meeting or that
the attendance of absent members was essential not the validity of
the proceedings. Tamakole v Atogo 1951, D.C.

3. A head of family can only be appointed or removed by a united family hence where one
branch of the family is having dispute with the other branches of the same family, the
dispute must be settled prior to the appointment or removal of the head of family
(Botchway v Solomon 1935 or Vandpour v Botchway 1951 13WACA 164) IN THAT
CASE a family meeting was convinced four times for the appointment of a head of
family. Solomon who had been the head at that time but had been disposed refused to
attend. The family then appealed to the James Town Mantse and at their request, the
Mantse summoned Solomon to a meeting of the family presided over by him the James
Town Mantse for the appointment of the family head and again Solomon refused to
attend. The meeting nevertheless was held and Botchway (plaintiff) was appointed
 caretaker and head of family wherefore, Bokwei sued Solomon to recover family
property. It was contended on behalf of Solomon that the appointment of Bokwei as head
of family was null and void on the ground that it was made in the absence of Solomon
prominent member of the family. The Court held “the family was convinced four times
and the defendant Solomon refused to attend in fact the defendant had denied the family.
I therefore hold that the plaintiff Bokwei was properly installed as caretaker and elected
head of family” this was affirmed by Waka in Vandepour v Botchway. READ ALSO
OKOE V ANKRAH, it was held inter alia that family meetings may be convened by the
most senior member, by an eminent member, chief or head of quarter. An outsider may
only preside where there are divisions in the family. He will not have any vote.
VANDER PUYE AND OTHERS vs. BOTCHWAY, is a landmark decision in Ghanaian law
that clarified the jurisdiction of Native Courts in matters of succession and land disputes. The
case involved a dispute over the inheritance of property from a deceased Ga man. The children of
the deceased, born from "six-cloth" marriages, sought a share in the estate. The initial dispute
was heard in a Native Court, which ruled in favor of the children. The case was then appealed to
the Land Court and subsequently to the Court of Appeal. Issue: whether the dispute was a matter
of land or succession, as this would determine the appropriate court's jurisdiction. The Court of
Appeal held that the real issue was one of succession, not land. The nature of the property
involved was incidental to the main dispute, which concerned the rights of the children to inherit.
OKOE vs. ANKRAH [1961]: The case involved a dispute over the inheritance of property from
a deceased Ga man, Emmanuel Ankrah. The plaintiff, Okoe, claimed to be the successor and
head of the family of the deceased, and sought an account of rents collected from the deceased's
property. LEGAL ISSUE; whether the plaintiff had the legal capacity to sue as the successor
and head of the family of the deceased. The defendant, Ankrah, argued that the plaintiff's
appointment was invalid and that he was not a member of the family. HELD; The court held that
the plaintiff's appointment as successor and head of the family was valid, and that he had the
legal capacity to sue. The court ordered the defendant to account for the rents collected from the
deceased's property.
REMOVAL OF HEAD OF FAMILY
PAGE 170 of Ollenu. Sabbah summed up the grounds of removal of the head of family as
follows;
“Where the panin, the head of family suffers from incapacity or enters a course of conduct which
unchecked may end in the ruin of the family or persistently disregards the interest of the family.
He can be removed without notice by a majority of the other members of the family and a new
person substituted (Abaka v Ambradu 1963 1 GLR 456)”
ABAKAH AND OTHERS v. AMBRADU: The defendant had held office as the recognized
head of the Ewan Kweku Anona family at Sekondi since1939. Some elders of the family being
dissatisfied with the manner in which the defendant was managing family property authorized
Kwao Aidu, the second plaintiff, to write to the defendant requesting him to attend a family
meeting to be held on the 9th July, 1961, and there to render account of all rents collected by him
in respect of certain family property. The defendant replied to this letter, and, inter alia,
challenged the authority of Kwao Aidu to call upon him to account, whereupon Kwao Aidu on
behalf of the family wrote a second letter to the defendant attaching a copy of charges preferred
against the defendant for irregularities allegedly committed by him in his management of the
family property.

On the 9th July, 1961, the meeting was held as arranged before five arbitrators chosen by the
plaintiffs. The defendant attended but left without answering the charges because, as he alleged,
the meeting was not properly constituted. Another meeting was arranged for the 16th July, 1961,
but on that date the defendant was absent: he was attending the funeral of a member of the
family. The meeting nevertheless continued, the charges against the defendant were gone into
and found proved, and the defendant was removed from office and replaced by the first plaintiff.
The defendant was informed of these proceedings by a letter dated the 20th July, 1961, and
requested to hand over to the family all family documents. The defendant refused to comply with
the terms of the letter and the plaintiffs sued him in the High Court claiming an injunction
restraining him from further dealing with family property and delivery to the family of all family
documents in his possession. The High Court dismissed the plaintiffs’ claim holding, inter alia,
that the family meeting of the 16th July,1961, was not properly constituted in that some principal
members whose presence was indispensable were not present and were not notified of the
meeting, and further that on the authority of Lartey v.Mensah (1958) 3 W.A. L.R. 410 the letter
informing the defendant of the convening of a family meeting was defective in that it did not
inform him that the main purpose of the meeting was to depose him as head of the family. The
plaintiffs appealed to the Supreme Court.
Supreme Court held that: (1) 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 upon the rest,
but where a head is removed, as in this case, without notice of the meeting being given to all
sectional heads, the act of the sectional heads who were present cannot be binding upon the rest,
and unless it is acquiesced in, itis ineffective. (2) In certain circumstances a head of family may
be removed in his absence where his absence is without justification. Where a head of family is
absent because he is bound by custom to be present at the funeral of a member of the family, his
absence is not without justification. (3) A head of family cannot be removed without notice. A
complaint must be lodged against him and he must be summoned to answer it. (4) It is not
necessary to state in a notice summoning a family meeting that the meeting is being convened for
the purpose of deposing the family head because nobody knows whether the head would be
removed until the charges preferred against him are proved. It is otherwise when the meeting is
summoned to appoint a head of family for, as a matter of course, the headship must first become
vacant to the knowledge of the family. Lartey v. Mensah (1958) 3 W.A.L.R. 410 explained.
ACCOUNTABILITY OF HEAD OF FAMILY (NEXT MEETING)
Accountability of Family Head
Customary law does not require sons and daughters of a family, who have received education at
the family's expense, to repay this cost, nor does it automatically confer family property upon
acquisition. Additionally, when a family contributes to the construction by another family
member, they are entitled to enjoy the house, but only if the acceptance of the contribution was
based on the understanding that the builder was constructing for the family rather than for
personal gain. Thus, if the contribution was treated as a loan or if the builder sought to use family
funds for personal building, that property cannot be classified as family property. (Adatsi v
Amissah 1956 3WAR 480; Adjeben v Kwabla).

Duties of Family Members

Regarding individual members, there is a belief that they have a duty to assist in protecting
family property. The question arises whether this duty is enforceable. Contributions can be
claimed against the family for litigation or settling family debts, but it is uncertain whether this
right is legally enforceable. Can a family member's self-acquired property be seized and sold to
settle a family debt? The answer is no; however, social sanctions may be imposed on family
members who fail to meet their obligations to protect family property. These sanctions could
result in a family decision to restrict that member's access to family property.
The primary responsibility for safeguarding and maintaining family property lies with the head
of the family and principal members, although junior members may also take steps to protect
family property.
Acquisition of Family Property
Family property can take various forms, such as money or land. The challenge of distinguishing
family property from self-acquired property arises from the method of acquisition. It has been
noted that if property is acquired with significant contributions from family members, it will be
deemed family property, as established in the case of Larbi v... The nature and extent of the
assistance, along with the intent behind it, differentiate self-acquired property from family
property. In the case of Ansah v Sackey 1958 WAR 325, it was determined that if a family
member uses their own resources to build on family land, they only acquire a life interest in the
building and cannot sell any interest in it beyond their lifetime without the consent of the head
and principal family members (Santenge v Dakwa 1940 6WACA 52). This perspective has faced
criticism in other cases, such as Bany v Bany 1944, where it was concluded that completed self-
acquired property can only pass to the customary law family through succession upon the death
of the individual who acquired it, provided they die as the sole possessor of the property.
Alienation of such property can occur through a will, gift, or sale; thus, if such alienation takes
place, there is nothing left for the customary law family to inherit.
The issues that arise include:
1. When an individual family member acquires property with contributions from other family
members.
2. When two or more family members jointly acquire property. In either situation, does the
property automatically become family property, or does it remain the self-acquired property of
the individual, or does the individual only hold a limited interest in it?

In these circumstances, it has been held that the property automatically becomes family property
(Acquah 1941 7WACA 216). In this case, one of three brothers from Cape Coast sent money
from his job, which his two brothers used to construct a building, with additional family
members contributing labor. There is a customary law presumption that property acquired
through the joint efforts of family members automatically becomes family property, but this
presumption can be challenged, as seen in Larbi. This presumption was not rebutted in
KYEKYEWA v Acquah, where the property acquired was determined to be family property. It
appears that individual family members who significantly contributed to the acquisition of the
property do not gain rights superior to those of the family.
The second issue arises when property is acquired as joint property by two or more family
members. In this case, the presumption in favor of family property continues to apply. If the
property was not acquired on behalf of the family, the family members involved in the
acquisition only hold a life interest, meaning they cannot transfer the property during their
lifetime without the consent and knowledge of the head and principal family members (Boafo v
Staude; Mensah v C.O.A 1958), which addresses the role of children. The court ruled that when
children assist their father in acquiring property, they do not gain any interest (Quotey v Martey).
The third issue occurs when a family member builds or farms on family-owned land; the
property acquired in this manner is considered family property. However, the individual who
farms or builds retains only a life interest (Ammissah v Abedu; Owoo Owoo 1945 11 WACA
81).
To differentiate family property from individual property, particularly concerning family land or
property redeemed by a family member from a pledge or mortgage, there is also the issue of such
property being redeemed by a stranger. It is important to note that when a pledged or mortgaged
property is redeemed, the nature of the property remains unchanged. The charge or security on
the property is lifted through redemption, and ownership reverts to the original owners unless
there are additional requirements for transferring the property to another party, such as the
redeeming party. In the absence of such arrangements, the redeeming party effectively becomes a
new lender to the family by settling the family's debt, meaning the family now owes the
redeeming party rather than the original creditor, while still retaining ownership (all cases lead to
this conclusion: Akyirefie v Bremang Assian Stool 1951; Kwano v Ampong 1953; Nwonama v
Aseidu 1965).

Alienation of Family Property

The alienation of family property by the head of the family without the knowledge or consent of
the principal family members is null and void. However, the court also stated that evidence must
be provided (in a timely manner) to demonstrate the absence of such consent. This is why it is
said that equity favors the vigilant, not the indolent. If no evidence is presented by the family, the
alienation of family property may still be upheld, meaning it is voidable. This voidable conflict
pervades the entire issue of alienation of family property. For such alienation to be valid, it must
be conducted properly. Sabbah stated that the head of the family cannot alienate ancestral
property without the consent of the principal family members or a majority thereof. It is
generally accepted that no valid alienation of family land can occur without the head of the
family acting with the knowledge and consent of the principal members. There are also situations
where individual family members build on family land, and they cannot alienate that property
without the family's knowledge and consent. If any alienation of family property occurs outside
the standard legal procedures, it follows that such alienation will be invalid, meaning null and
void. The question then arises: who should bear the consequences of this rule? Should it be the
innocent purchaser or the family whose head or elders acted irresponsibly? Clearly, there is a
need to balance the competing interests of the family and the innocent purchaser. (Beyadee v
Mensah 1873: "the sale of 1885 was not void but voidable, and the plaintiff, having taken no
steps to set it aside, has no title to the disputed land"; Bassil v Ongar 1954 14WACA 569; Busby
v Acquah 1954 14WACA 574; Mako v Bonso; the alienation was deemed valid in the lower
court, and in any case, the family.)