LAW OF IMMOVABLE PROPERTY - NOTES

THE LAW OF IMMOVABLE PROPERTY

SEM 1

INTRODUCTION AND PRELIMINARY MATTERS

A WHAT IS CUSTOM

Black’s Law Dictionary, Delux 9th Ninth

custom is a practice that by its common adoption and long, unvarying habit has come to have the
force of law

B WHAT IS CUSTOMARY LAW

Black’s Law Dictionary

Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct;
practices and beliefs that are so vital and intrinsic part of a social and economic system that are
treated as if they were laws.

Lon Fuller
In cont with the statute, customary law may be said to exemplify implicit law. Let us, therefore,
describe customary law in terms that will reveal to the maximum this quality of implicitness. A
custom is not declared or enacted, but grows or develops through time…
… it expresses itself not in a succession of words, but in a course of conduct.

Article 11(3) of the Constitution of Ghana, 1992

For the purposes of this article, "customary law" means the rules of law, which by custom are
applicable to particular communities in Ghana.

1|Page
LAW OF IMMOVABLE PROPERTY - NOTES

1. Nii Ago Sai v Nii Kpobi Tetteh Tsuru per Dotse JSC

Appellant (Anahor and Dzirasu families of Obgojo village) claimed allodial title to Obgojo
lands in Accra by reason of settlement. It was not in dispute that they were the first settlers.
Respondent (Labadi Stool) claimed allodial title by reason of conquest.

• The Appellant led satisfactory evidence that will convince any court that the La
Stool did not have any rights of ownership which will divest the appellants of title.
The Constitution, 1992 defines customary law to mean the rules of law, which by custom
are applicable to particular communities in Ghana. Reference Article 11(3). There cannot
be a general application of customary law to all communities in Ghana as they vary from
community to community.

C GHANAIAN CUSTOMARY LAND LAW

Kwame Gyan
Ghana operates a pluralist legal system…
…we are able to make broad generalisations after a distillation of rules and principles from the
available body of case law, customary practices and writings of scholars and practitioners in the
field. Particular propositions of law may not be applicable country-wide or even in the same
political region or ethnic group or subdivision. Yet that is what makes the subject challenging.
Be that as it may a caveat must be sounded regarding making broad generalisations about the
customary land law. You could go wrong!

Article 17 of the Constitution, 1992

(1) All persons shall be equal before the law.
(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin,
religion, creed or social or economic status.
(3) For the purposes of this article, "discriminate" means to give different treatment to different
persons attributable only or mainly to their respective descriptions by race, place of origin,
political opinions, colour, gender, occupation, religion or creed, whereby persons of one
description are subjected to disabilities or restrictions to which persons of another description are
not made subject or are granted privileges or advantages which are not granted to persons of
another description

2|Page
LAW OF IMMOVABLE PROPERTY - NOTES

Section 11 of the Land Act, 2020 (Act 1036)

A decision or practice in respect of land under customary tenure, whether the land is individually
or communally held shall be in accordance with the customs, traditions and practices of the
community concerned but a decision or practice which discriminates on grounds of
(a) place of origin, ethnic origin, political opinions, colour, gender, occupation, religion or
creed
(b) disability, or
(c) socio economic status

D THE CONCEPT OF LAND OR IMMOVABLE PROPERTY

Blackstone
Land is a word of a very extensive signification.

Section 281 of the Land Act, 2020 (Act 1036)

“land” includes 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 estate,
interest or right in, to or over land or water
Section 46 of the Interpretation Act, 2009 (Act 792)
"immovable property" means land;
"movable property" includes property of every description and growing crops, except immovable
property

Section 32 of Interpretation Act, 1960 (CA 4)

"land" includes land covered by water, any house, building or structure whatsoever, and any
estate, interest or right in, to or over land or water

Section 205 (1) of the Law of Property Act, 1925 and

Land includes land of any tenure, and mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings…(whether the division is horizontal, vertical or made in
any other way) and other corporeal hereditaments; and also, a manor, advowson, and a rent and

3|Page
LAW OF IMMOVABLE PROPERTY - NOTES

other incorporeal hereditament and an easement, right, privilege or benefit in, over or derived
from land

Kwame Gyan
The above definition distinguishes between two very important categories of rights, which make
up land, viz., corporeal and incorporeal hereditaments. Hereditament signifies rights that are
heritable, i.e. capable of passing by way of descent to successors in title.
CORPOREAL HEREDITAMENTS include the physical and tangible characteristics of land.
These are the physical features of land and consist of the physical surface and everything attached
to the land. For example, minerals, buildings attached to the surface and plants and trees growing
on the land…
…it is worth noting that the definition of land includes fixtures attached to the land. This is
consistent with the common law notion of quicquid plantatur solo, solo cedit (meaning whatever
is attached to the ground becomes part of it). In order to achieve this goal, the law has to
distinguish between fixtures and chattels.
Fixtures comprise that category of material objects which, when physically attached to the land,
are regarded as becoming annexed to the realty. Irrespective of their previous ownership, title to
such objects, thenceforth vests automatically and exclusively in the owner of the realty or land. As
fixtures, they are regarded as having merged with the land by reason of some curious legal
metamorphosis, and thus pass with all subsequent conveyances of the realty unless and until
lawfully severed from the land.
By contrast the category of chattels consists of objects which never lose their character as mere
personality, but which retain their chattel status even though placed in some close relationship
with realty. Not being included within the realty, chattels do not automatically pass with
conveyances of the land.
The distinction between fixtures and chattels is not entirely straightforward. The distinction seems
largely to turn on two separate but related tests as to the intention of the original owner of the
object in question. These two tests relate to the degree of annexation present in a given
circumstances and to the general purpose of the annexation.
INCORPOREAL HEREDITAMENTS refer to certain intangible rights which may be enjoyed
over or in respect of land. These are intangible rights existing in the land as a physical entity. Thus
proprietary rights in the land are classified as land. For example lease, easement and mortgage
may all be regarded as land.

Ollenu (influenced by English Education)

The term land as understood in customary law has a wider application. It includes the land itself,
i.e. the surface soil, things on the soil, which are enjoyed with it as being part of it by nature, i.e.

4|Page
LAW OF IMMOVABLE PROPERTY - NOTES

rivers, streams, lakes, lagoon, creeks, growing trees like palm and dawadawa trees or things
artificially tied to it like buildings and any structure whatsoever. It also includes any estate,
interest or right in, to or over the land or over any of the other things which land denotes, i.e. right
to collect herbs or snails or to hunt on the land.

Gyan
Traditional thinking drew a sharp distinction between the soil or earth and the tangible fruits of
man‘s endeavor thereon. Farms, houses and other buildings were not considered land and were
not subject to the doctrinal restraints on alienation which characterized land law (Rattray, 1929).
Nor did the customary conception of land encompass incorporeal interests or usufructuary rights.
But this traditional view has been rejected in recent legislation and commentary (Ollenu, 1962).
The Interpretation Act of 1960 followed the broad English definition of land [Law of Property Act
1925, s. 205 (1)]: ‘Land’ includes land covered by water, any house, building or structure
whatsoever, and any estate, interest or right in, to or over land or water.
… It did not prevent the Supreme Court from applying the traditional definition of land in the case
of Dadzie v. Kokofu (1961) G.L.R. 90 in which the court held that ownership of cocoa farms was
to be strictly distinguished from ownership of the land (and the owner of land) had no automatic
claim to such farms, where these had been made by another person under a license granted by the
deceased.

1. Dadzie v Kokofu per Korsah CJ

The plaintiff claimed from the defendant judicial relief for the defendant to show cause
why the defendant has refused to give to the 1st plaintiff, the successor of late Kwame
Adufo, a cocoa farm belonging to the late Kwame Adufo, which cocoa farm situate at
Mpokuampa, Bibiani.
Defendant’s case – Late Kwame Adufo sold his cocoa farm to the Defendant and Kwasi
Buampong because they were owners of the land.
Plaintiff’s case – Deceased took a loan of £G7 from the Defendant and pledged the farm
as security for the loan.

• Evidence from the deceased’s niece who witnessed the loan transaction showed
that the deceased could not have sold the farm to the Defendant but rather it was a
pledge.
• Kwasi Buampong also failed to testify on the Defendant’s behalf.
As regards the length of time, the learned judge again erroneously regarded sixteen years
as a long time for a native pledge and that it is not possible by mere inspection to hazard
a guess, after such a march of time, as to size and fruitfulness of the farm at the time of the
transaction, thus suggesting that the farm might have been improved during the sixteen

5|Page
LAW OF IMMOVABLE PROPERTY - NOTES

years. In fact, this is the very essence of a pledge of a farm under customary law. It becomes
the duty of the pledgee to maintain the farm in a good condition and even to improve it, for
that is how the pledgee reaps greater benefit, since he becomes entitled to retain all
proceeds of the farm until payment; even extensions to the farm are deemed accretions by
customary law.
NB: Even though they (the Defendants) owned the land, the cocoa farm was pledged to
them.

Gyan
A meaningful discussion of customary land law necessarily entails an excurses into the religious
aspect of land. Throughout Ghana, traditional philosophy ascribed as sacred significance to land
as seen amongst various ethnic groups.
According to the Northern ethnic groups, land was the property of the earth spirit who was the
giver of life and the wherewithal to live. Similarly, the Gas attributed ownership of land to sacred
lagoons, while the Ashantis regarded it as a supernatural female force –the inexhaustible source
of sustenance and the provider of man’s most basic needs. She was ―helpful if propitiated and
harmful if ignored. Land was the sanctuary for the souls of the departed ancestors, and a reference
to a place as the burial grove of the ancestors has a deep emotive significance.
Indeed, another important premise of the religious significance of land was the deep-seated idea
that land belonged to the ancestors. In the celebrated words of the late Nana Sir Ofori Atta I, a
distinguished traditional dignitary: ―Land belongs to a vast family of whom many are dead, a
few are living and countless host are still unborn. Concepts of land ownership were thus bound
up with the ancestral worship…
That eternal corporation of the past, present and future was the state, symbolized by the stool. It
only needed a well-integrated and centralized political system, as in Ashanti, to extend the
religious idea of ancestral ownership of land to the legal doctrine of the stool’s absolute
ownership of all land within its territorial boundaries…
Later, when people settled down to farming as the main economic activity, and stool subjects
reduced portions of land into their possession for the purposes of cultivation, there developed the
concept of the subject‘s usufructuary right to stool land, that is to say, the right to occupy, till, or
otherwise enjoy and unappropriated potion of stool land and to appropriate the fruits of such user.
This right of beneficial user in no way derogated from the allodial title of the stool

1. Amodu Tijani v. Secretary, Southern Nigeria per Lord Haldane

the usufructuary right was “a mere qualification of or burden on the radical or final title
of the Sovereign…”

6|Page
LAW OF IMMOVABLE PROPERTY - NOTES

2. Kuma v Kuma per West African Court of Appeal (See Gyan)

Traditional ideas drew a sharp distinction between the subjects’ right of beneficial user in
stool land, and the stool’s absolute ownership thereof. An Ashanti saying runs; ―The farm
(meaning the farm Produce) is mine, the soil is the Chief’s.
User, however long, could never ripen into ownership

E RELATIONSHIP BETWEEN OWNERSHIP OF THE SURFACE OF LAND AND

RIGHTS ABOVE AND BELOW THE SURFACE

General Rule

Gyan
The general rule is that ownership of the surface of land carries with it rights to what is below the
surface and to control of the airspace above. This 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 per McNair J

Plaintiff, a tobacconist, acquired the lease of a shop.

Defendants, wholesale tobacconists, displayed three advertising signs on the wall of the
adjoining building above the shop.
The signs protruded a distance of some four inches into the airspace above the flat of the
roof of the Plaintiff’s shop at a height of 8 feet.
Plaintiff brought an action in trespass.

• Defendant’s actions constituted trespass since the airspace above the Plaintiff shop
was part of his premises.
What rights, if any, in the air space were conveyed to the plaintiff? It is common ground
that, prima facie, the lease of the land includes the lease of the air space above, and it
seems to me also prima facie that the lease of a single storey ground floor premises would
include the lease of the air space above

Exceptions

7|Page
LAW OF IMMOVABLE PROPERTY - NOTES

Art 257(6) of the Constitution, 1992 and S 1 of the Minerals and Mining Act, 2006 (Act 703)
Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water
courses throughout Ghana, the exclusive economic zone and any area covered by the territorial
sea or continental shelf is the property of the Republic of Ghana and shall be vested in the
President on behalf of, and in trust for the people of Ghana.

Section 29(1) of the Ghana Civil Aviation Act, 2004 (Act 678)
An action does not lie in respect of trespass or in respect of nuisance by reason only of
(a) the flight of an aircraft over a property at a height above the ground, which, having regard to
wind, weather and the circumstances of the case is reasonable, or
(b) the ordinary incidents of those flights so long as the provisions of this Part and an order made
in pursuance of this Act are duly complied with.

Section 3 of the Petroleum Exploration and Production Act, 2016 (Act 919)
Petroleum existing in its natural state in, under or upon any land in Ghana, rivers, streams, water
courses throughout Ghana, the exclusive economic zone and any area covered by the territorial
sea or continental shelf, is the property of the Republic of Ghana and is vested in the President on
behalf of and in trust for the people of Ghana.

1. Pountney v Clayton per Bowen LJ

The combined effect of Sections 77, 78 and 79 of the Railways Clause Consolidation Act,
1845 gave a railway company title to land it compulsorily acquired without title to mines
beneath the surface.
The Railway Company sold the land to the Plaintiff who brought an action against the
Defendant for working the mines in such a way as to let down the surface belonging to the
Plaintiff and injuring buildings thereon.

• Since the Defendant could have worked the mines so as to let the surface down
when the surface was owned by the Railway Company, the Plaintiff whose title was
derived from the Railway Company, was in the same position and had no right to
support from the Defendant’s land in respect of the surface.
Prima facie, the owner has all from the sky down to the centre of the earth, and certain
rights of support exist where nothing is known of the origin of the rights. Where land is
divided so that the part above belongs to one person, and the part below to another, prima

8|Page
LAW OF IMMOVABLE PROPERTY - NOTES

facie the land above is entitled to support from the land below. That is where you do not
know the origin of the rights. Where the origin is known the rights depend on the deed or
Act of Parliament which severs the upper land from the lower.

2. Lord Bernstein of Leigh v Skyviews & General Ltd per Griffiths J

Plaintiff alleged that the Defendant had trespassed in the airspace (1000ft) above his
property, Coppings Farm, Leigh, Kent, and invaded his right to privacy when they took an
aerial photograph of the property based on the principle Cujus est solum ejus est usque ad
coelum et ad inferos (whose is the soil his is also that which is above and below it) as used
in Kelsen v Imperial Tobacco (8ft)

• Plaintiff’s rights to airspace were not infringed upon since trespass was limited to
the height at which it as contemplated that an owner might be expected to make use
of the airspace as a natural incident of the user of his land (Winfield on Tort).
• Defendant was also protected by Section 40(1) of the Civil Aviation Act, 1949 from
actions of trespass or nuisance to all flights which were at a reasonable height and
complied with statutory requirements
The problem in this case was to balance the rights of a landowner to enjoy the use of his
land against the rights of the general public to take advantage of all that science now
offered in the use of airspace. The best way to strike that balance in our present society
was to restrict the rights of an owner in the airspace above his land to such height as was
necessary for the ordinary use and enjoyment of his land and the structures upon it, and
to declare that above that height he had no greater rights in the airspace than any other
member of the public.

3. Star Energy Weald Basin Limited & Anor v Borcado SA per Lord Hope

Pursuant to Section 3 of the Petroleum Act, 1998, Respondent, an oil company, was
licensed to search, bore for and get petroleum. They dug 3 wells in order to do so.
Appellant company argued that since it had title to the surface Respondents were
trespassing.

• There was trespass since Appellants had title to the space above and below up to
reasonable point.
… the owner of the surface is the owner of the strata beneath it, including the minerals
that are to be found there, unless there has been an alienation of them by a conveyance,
at common law or by statute to someone else. That was the view which the Court of Appeal

9|Page
LAW OF IMMOVABLE PROPERTY - NOTES

took in Mitchell v Mosley [1914] 1 Ch 438. Much has happened since then, as the use of
technology has penetrated deeper and deeper into the earth’s surface. But I see no reason
why this view should not still be regarded as good law.
There must obviously be some stopping point, as one reaches the point at which physical
features such as pressure and temperature render the concept of the strata belonging to
anybody so absurd as to be not worth arguing about. But the wells that are at issue in this
case, extending from about 800 feet to 2,800 feet below the surface, are far from being
so deep as to reach the point of absurdity. Indeed, the fact that the strata can be worked
upon at those depths points to the opposite conclusion.

THE NATURE AND SCOPE OF IMMOVABLE PROPERTY LAW

What is Property?

C.R. Noyes, The Institution of Property, at p. 357

The interest, which can be acquired in external objects or things. The things themselves are not,
in a true 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.
In other words, property is not a thing but a relationship. Property is the relationship between the
owner and the thing, i.e. between a subject and an object.
Generally speaking, “Property” concerns the ownership of things.

Gyan

Distinction Between Tangible and Intangible Property

Tangible property consists of things, which are physical in nature, e.g. car. Intangible property
consists of things which are not physical in nature but which are regarded as property because
they are capable of ownership, e.g. shares in a company, intellectual property.

Distinction Between Proprietary and Personal Rights in Property

A proprietary right is a right, which exist in relation to a thing, whether tangible or intangible.
For example a house, which is ―owned‖ by one person may be leased to a tenant and mortgaged

10 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

to a bank. In this case the owner, tenant and bank will all enjoy proprietary rights in the house. In
other words a proprietary right is a right existing in the ―res‖ or thing to which it relates. Such
right is described as a right in rem – in the thing itself. For example a lease is capable of enduring
through changes in ownership and is enforceable against the new owner.
A personal right is an entitlement, which a person enjoys against another specific individual
person. Its central characteristic is that it can only be enforced against that specific person. It is
described as a right in personam.

What is the Law of Immovable Property?

The law of immovable property comprises of the range of legal rules and principles, which regulate
the proprietary issues concerning that, which is classified as land.

What does the Law of Immovable Property Cover?

The law thus covers the following: ownership of land, and formalities and procedures for transfer
of land;
Creation of subsidiary interests in land and the rights and obligations of holders of subsidiary
interests;

Section 1 of Act 1036

The following are interests in land:
(a) Allodial title
(b) Common law freehold
(c) Customary law freehold
(d) Usufructuary interest
(e) Leasehold interest
(f) Customary tenancy

Section 12 of Act 1036

(1) The following persons – 5- 10 years’ imprisonment
• Persons who unlawfully exercise control of land development,
• Persons who, having no interest in land, extort money or other benefits from
persons having interest or prevent developer from developing land
• Persons who use force or violence to prevent persons with interest from having
access to the land or driving them away from it

11 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(2) Persons who use force, violence or intimidation to obstruct lawful owner from developing land
– 10 -15 years
(3) Person with interest –apply to court for restraining order against person unlawfully exercising
control
(4) Person with interest – apply to court for interlocutory injunction against trespasser on the land.

THE ALLODIAL TITLE

A INTRO

Da Rocha and Lodoh

The concept of ownership of land embrace possession of land title of land. An owner of land is a
person who can prove that he and those through whom he claims title have possessed the land so
long that there can be no reasonable probability of the existence of a superior adverse claim

Ollennu
Ownership of land is vested in more than one person and the right, title or interest vested in one
may be different materially from the right, title or interest vested in the other(s). Thus, one person
may have the absolute ownership of land vested in him, another may have the right of immediate
enjoyment of the beneficial interest in the same land vested in him, while yet another may have
vested in him a right by license to use the land for a specific purpose example to build, fell palm
trees, to grow seasonal crops or to fish in creeks for a specific number of years.

B TYPES OF CUSTOMARY LAND TENURE

Gyan
Customary sector holds 80 to 90 percent of all the land in Ghana…
The types of ownership of land in customary law are:
● Allodial or paramount title (interest)
● Sub Paramount title (interest)

12 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

● Usufructuary/Customary freehold interest

● Tenancies
● Licenses
● Pledges

C THE ALLODIAL OR PARAMOUNT INTEREST

Section 2 of Act 1036

Allodial title is
(a) The highest or ultimate interest in land; and
(b) Held by the State or, a stool or skin, or clan or family or an individual;
And may have been acquired through compulsory acquisition, conquest, pioneer discovery and
settlement, gift, purchase or agreement.

Gyan
The allodial title is the highest quantum of interest or title that can be held and it cannot be
extinguished or terminated.

Kasanga
customary authorities hold allodial title, that is, the residual title to the community‘s land from
which all other rights derive.
It means that this interest to land resides in the group as a whole, with the stool‘s occupant who is
normally the chief, being the caretaker or trustee.

D NATURE AND LOCATION OF THE ALLODIAL TITLE

Bentsi-Enchill, Ghana Land Law

There are mainly two forms of the Allodial ownership:
● State Ownership
● Family Ownership

13 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

In most Akan states such as Ashanti and Akyem,the fundamental answer to the question who is
the owner of the land is that the land in effect belongs to the state or to the whole community
usually represented by the stool or its occupant. Thus ownership of the land is vested in the state.
The second form of allodial ownership of land is common among the Ewes, Ga-Adangbe and some
parts of Northern Ghana. To them families own allodial title to land separate from stool lands.
These lands are held in trust for the family members by the family head. Any transactions in such
lands demand the consent and concurrence of family member before it can be regarded as valid. It
is also possible for some Akan areas to also exhibit this form of allodial ownership. It is only when
an outright grant had been made by the whole community through its ―management committee
to an individual, a family, or other larger group, could individual, family, or other larger group
claim to be the allodial owner of the land so granted
NB – Other entities can also possess the allodial title as would be shown

STOOLS

Article 295(1)
"stool" includes a skin, and the person or body of persons having control over skin land;
"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

Section 281 of Act 1036

“stool” includes a skin as well as any person or body of persons having control over skin or
community land as a representative of the particular community
“stool land” includes a land or interest in, or right over, any land controlled by a stool or skin or
the head of a particular community, for the benefit of the subjects of that stool, skin or members
of that community.

1. Kotei v Asere per Lord Denning

Plaintiff (Nikoi Olai family) claimed that Mukose land was their ancestral property and
that by virtue of the fact that they were in possession of seven-eighths of the land, they
were the absolute owners.
Defendant (Asere Mantse) was granted compensation for only one-eighth of the land

14 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• Even though the Plaintiff possessed seven-eighths of land, their rights were subject
to the paramount title of the Defendant based on:
▪ The evidence given of payment of tolls to the Defendant
▪ The recognition of headmen in the village
• Plaintiff had a usufructury interest subject to Defendant’s paramount title because:
▪ They were the original founders of the village of Mukose, the land which
has been occupied by them with farms maintained by descendants of old
settlers
▪ They successfully asserted their estate in the land in other litigation and it
cannot be said that they have ever abandoned their rights.
In these circumstances it is open to their Lordships to consider the evidence adduced before
Jackson, J. in the present case; and they find there was sufficient evidence on which he was
entitled to find, as he did, that the Mukose lands were Asere stool lands, in this respect,
that the Asere stool had a paramount title. The payment of tolls to the Asere stool and the
recognition of headmen in the villages is sufficient proof of such a paramount title in the
stool.

SUB-STOOLS

1. Jamestown Stool v Sempe Stool per Wuaku JSC

Jamestown stool (Plaintiff) has under it three quarters or sections – Alata, Akumajay and
Sempe (Defendant).
Historically, Alata occupant is also Jamestown occupant.
Plaintiff claimed that they were allodial title owners to all Jamestown lands.

• Each quarter could claim ownership to an area which was in its exclusive
possession.
The history of James Town shows clearly that three quarters constitute James Town,
namely Akumajay, Alata and Sempe and that their “property” is vested in the James Town
Mantse: see Akue v. Ababio IV (supra). Each quarter can only claim ownership to an area
which is in its exclusive possession. It will be wrong for any of the three stools to claim for
itself the allodial title to all James Town lands

SKINS

Section 281 of Act 1036

15 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Stool land includes land controlled by skins

1. Azantilow v Nayeri

Sandemanab (Azantilow) sued on behalf of the Builsa people for a declaration of title to
certain lands occupied by the second, third and fourth defendant chiefs and their people.
The defendants opposed the claim on the ground that the land belonged to the Mamprusi
people, whose paramount chief was the first defendant.
The plaintiff had claimed that the boundary of his land was the White Volta and that the
2nd, 3rd and 4th defendants and their peoples who were denying it were in fact related to
the Builsa
The issue which confronted the court was whether the Sandemanab (Paramount Chief of
the Builsa) and the Nayeri (Paramount Chief of Mamprusi) were the proper persons to sue
or be sued in respect of their peoples’ land.

• the plaintiff is a person capable of suing in his capacity as tribal head and that the
defendants are the proper persons to be used
“The evidence of the plaintiff and the first defendant both showed that each could hold a
title to land in his capacity as tribal head. On the defendants’ side support from this came
from the first witness who said that as a sub chief he held land under the Head chief of the
Mamprusi people, the Nayeri, who is the first defendant. Further support came from the
defendants’ second and third witnesses who were Tindanena. Both made it clear in their
evidence-in-chief that their position is one of fetish priest and not one which carries title
to land with it, although elsewhere in the Northern Territories this may be the case
Atuguba JSC in Yakubu Awabego v Tindana Agongo Akubayela
All that this shows is that as regards the Mamprusi there was evidence by some tindemba,
in support of their chiefs, that they did not hold title to land on behalf of their communities
and that this was vested in their chiefs. This is consistent with our finding that among the
Mamprusi, who have a state system, it is the chief who holds the land on behalf of the
community

2. Saaka v Dahali per Taylor JSC

Plaintiff was the daughter and only surviving child of Saaka Dagomba who built House
No. G30 at Tamale on a “plot of land” given to him by the chief of Tamale.
He later allowed Napari Yemo to live in the said house.
Defendant was daughter of Nabia Dahali who was daughter of Napari Yemo.
Government of Ghana gave Nabia Dahali tenancy to No. G30 pursuant to EI 109 of 1963
which vested all skin lands within the Tamale Urban Council in the President.

16 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• Plaintiff was entitled to the land since it ceased to be land attached to the Skin when
he acquired it from the Skin
On the available evidence, it is clear that as far back as 1920, the chief of Tamale gave the
land in question to the deceased Saaka Dagomba and he built on it. Saaka Dagomba is of
the Dagomba tribe and is entitled under Dagomba customary law to be given part of the
land attached to the Dagomba skin for building purpose. Once he has exercised this right
and has built on it, he has a usufruct of that land which cannot without just cause be taken
away from him by the skin. The land, now a built on plot, ceased to be vacant land attached
to the skin; it now becomes land the property of Saaka Dagomba until on the failure of his
heirs the land reverts to the skin. In such circumstances EI 109 of 1963 cannot be said to
cover the usufructuary interest which Saaka Dagomba and his heirs or assigns have in plot
No G30.

FAMILIES

Section 281 of Act 1036

“family” means a group of persons who trace their ancestry from a common lineage and who, at
customary law, are recognised as a land owning group;
“family land” means land, the allodial title, to which is held by a family for the benefit of the
members of that family in accordance with customary law

1. Ameoda v Pordier per Apaloo JA

Appellant family (ancestor-Blebo Okerterchi Obunasem) claimed that it gave

Respondent’s predecessor license to use the subject land pursuant to the condition of taking
a cow.
Respondent set up just tertii as a defence namely that the title to the land was neither in
themselves or the Appellant family but in the stool of Ningo.

• Lands in Ningo were not stool lands but were owned by families and since the
Plaintiff’s family could trace the root of title and devolution of land for seven
generations, they were entitled to the land.
• Even the chief of Ningo sought to claim lands, “for sale or lend”
• Pogucki, then Assistant Commissioner of Lands found that in Adangbe areas, the
stool qua stool owns no land nor exercises jurisdiction over land within its
geographical area.

17 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

It seems to me to offend against reason for a chief to wish to buy or lend from others what
belongs to himself…
If the lands in dispute do not and cannot belong to the stool of Ningo to whom do they
belong? They cannot be without an owner since it is a principle of customary law that every
inch of land in this country is owned by a stool, tribe, family or individual. The appellant’s
family claim that it is the owner of these lands by original settlement. They gave evidence
not only of their root of title but the devolution of that land for seven generations. The plan
which was made pursuant to the order of the court shows that all the acts of ownership
performed on this land were made by the appellant’s family.
Amissah JA
…land subject to a stool for the purposes of the conduct of extra-territorial affairs must at
least be under the jurisdiction of that stool. But that is totally different from saying that the
lands in question are stool lands in the other and more limited sense, namely, that the stool
has proprietary rights in those lands. Jurisdictional interest of a stool in land may also
carry with it a proprietary interest in the same land. But this cannot be an invariable
consequence. This fact appears to have been partially recognised in that part of the
definition where the learned judge
2. Nii Ago Sai v Nii Kpobi Tetteh Tsuru per Baffoe-Bonnie JSC

Quite frankly with this overwhelming evidence, traditional and recent, as well as
documentary, the plaintiffs had a tall order convincing any court that, as against the
Anahor and Dzirase families, the La stool had allodial title over Ogbojo lands. The trial
High Court judge's conclusion that the allodial titled was vested in Ogbojo people to the
exclusion of the La Mantse is supported by evidence, is unassailable and I will not disturb
same.

3. Nii Ayaa Odonkor v Amatei per Hayfron Benjamin J

Nii Armah Sogblah family of Osu – Haatso lands

INDIVIDUALS

1. Togbe Lugu Awadali IV v Togbe Gbadawu IV per Appau JSC

Generally, an individual is incapable of acquiring the absolute estate or interest, which

always goes with the collective responsibility of the community or tribe to defend and
protect the land. Transfers or grants of this nature are expressly made and a party who
asserts the existence of such a grant or transfer must establish positively that; (i) such a

18 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

grant was made and (ii) that it was made by or with the consent of the owners of the
absolute or naked title.

2. Golightly v Ashrifi per Lord Denning

Okaikor Churu family who had been in possession of land (granted by Gbese stool) at
Kokomlemle since 1875 brought an action against the Atukpai family who started selling
the land in 1942.
The Korle family represented by the Korle Priest also joined as co-plaintiff in 1943.
The issue was whether the Korle priest as caretaker had any interest in the land.

• Korle priest was not merley one who looked after land but one who had an interest
in it
… the Korle priest as the caretaker of the lands may make grants of lands to members of
the stool for specific purposes, that is, to farm or to build for the purposes of residence or
trade: but this right can only be exercised over land which is deemed to be unappropriated;

3. Nyaasemhwe v Afibiyesan per Anin JA

Plaintiff who inherited the subject land from his deceased uncle allowed one Busumprah,
the predecessor of the defendants to farm on the land.
On the death of Busumprah, the defendants, his successors, continued to farm on the land.

• Plaintiff had allodial title and could enjoy reversionary rights.

• However, since he was not in exclusive possession, having permitted the defendnt’s
ancestor to farm, the usufructuary interest was now vested in possession of the
defendants.
In my evaluation of the evidence, I hold that the plaintiff is entitled to a declaration in his
favour in respect of his allodial title to the disputed land and his reversionary rights as
such allodial owner.
Archer JA
…the principle of law there enunciated is equally valid whether the allodial title is vested
in the stool or a community or, as in this case, in a family.
NB: Plaintiff could pass allodial title to his family upon his death so it stays in the family.

4. Ghassoub v Sasraku per Lord Morris

19 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Plaintiff, a family company, alleged that by customary law (guaha) a portion of stool land
in Ashanti was sold absolutely to them by the Chempaw stool (sub-stool) with the
knowledge and consent of the Kokofu stool (paramount stool) – Co-Defendants
Defendants traded in partnership as Naja David Sawmill Co in pursuance of a timber felling
agreement with the Co-Defendant.

• The land which was saleable in Ashanti was sold with the knowledge and consent
of the paramount stool since the plaintiff company were in undisturbed possession
for over twenty years, neither paying tribute, rent or tolls.
It was also known that the former Omanhene of Kokofu and the Odikro of
Chempaw (individual) had collaborated in selling lands.

TENDANA

Section 281 of Act 1036

“tendana” means a descendant of the first settler who is the custodian of land for a group of clans
tracing their ancestry to the first settler

1. Yakubu Awabego v Tindana Agongo Akubeyala per Atuguba JSC

The appellant contends that as Tindana thereof, the allodial title to lands in Kalbeo vests in
him in trust for the whole community over which he is the Tindana.
The Respondent’s case is that the appellant performs that role in respect of Kalbeo lands
by reason of some oral treaty between the respondent’s ancestors, as founders of Kalbeo
and the appellant’s ancestors purely because of the expertise of the latter with regard to the
spiritual exercise of sacrificing to shrines for spiritual blessings and protection.
The crux of this appeal is whether the allodial title to lands in Kalbeo in the Bolgatanga
Municipal area is vested in individual families or in the Defendant/Appellant/Appellant as
the Tindana thereof for and on behalf of the whole community of those lands.

• Defendant in his capacity as the Tindana of Tindonsobligo is the allodial owner of

all Tindonsobligo lands including the land declared vested in the state by E.I. 10
of 2004
since a Tindana holds the land of which he is the Tindana in trust for the community of
which he is the Tindana, the appellant is the Tindana of Kalbeo also and consequently the
allodial owner of Kalbeo land in trust for them. It follows also that the respondent family
can only have usufructuary title over such of Kalbeo lands as have been reduced into their
possession as customary free holders thereof, see Saaka v. Dahali (1984-86)2 GLR 774

20 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

C.A. If the Tindana witnesses the payment of compensation in respect of a usufructuary

interest, it does not prejudice his allodial title.
…the Report of the Committee to Investigate a Land Dispute between the Tindonsobligo
and the Kalbeo people. The Report appears at page 1459 of the record of Proceedings.
The following extract from the findings is instructive:
1. That the Tindana of Tindonsobligo is the allodial owner (original/founder) of the land
in dispute among other lands in the area..
2. That the people of Kalbeo are usufructs (settler/farmers) who were given land by the
Tindonsobligo Tindana hundreds of years ago.

E ACQUISITION OF THE ALLODIAL TITLE (LARGELY APPLIES

TO LOSS AS WELL – ONE’S GAIN IS ANOTHER’S LOSS)

Section 2 of Act 1036

Allodial title is
(a) The highest or ultimate interest in land; and
(b) Held by the State or, a stool or skin, or clan or family or an individual;
And may have been acquired through compulsory acquisition, conquest, pioneer discovery and
settlement, gift, purchase or agreement.

Dr. J.B. Danquah

Besides the 4 principal methods stated in Ohimen v Adjei, there are two further modes of
acquisition, namely foreclosure after a pledge or mortgage, and reacquisition of title by reversion
from a grantee.

1. Ohimen v Adjei per Ollennu J

Plaintiff (Danquah branch of the Asona family of Agona Swedru) sued Defendants (Asona
Stool Family) as subjects of the stool claiming usufructuary interest.
Native court held that undisturbed occupation of land for 15 years ripened into ownership.
Thus, Plaintiffs lost interest to Defendants.

• Undisturbed possession of land by a stranger for however long a time cannot ripen
into ownership.
Thus, Plaintiff maintained usufructuary interest in the land.

21 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

There are four principal methods by which a stool acquires land. They are: conquest and
subsequent settlement thereon and cultivation by subjects of the stool; discovery, by
hunters or pioneers of the stool, of unoccupied land and subsequent settlement thereon and
use thereof by the stool and its subjects; gift to the stool; purchase by the stool.
Each of these methods involves either the sacrifice of lives of subjects or the expenditure
of energy or contribution of money by subjects, and use and occupation of the land by the
subjects.

DISCOVERY AND OCCUPATION

1. Nii Ago Sai v Nii Kpobi Tetteh Tsuru per Atuguba JSC

The appellant claims allodial title to the land by reason of settlement whilst the respondent
claims the same by conquest. It is trite law that both modes are legitimate customary means
of acquiring such allodial title.

2. Ngmati v Adetsia per Ollennu J

About 400 years ago, the two Krobo peoples-Yilo Krobo and Manya Krobo- were
immigrants who settled on the top of the Krobo Hill, which, with the surrounding land, was
then unoccupied.
The plaintiff as head of the Nuer family of Sra, Yilo Krobo pleaded that some 200 years
earlier the ancestors of his family had occupied and farmed some of the land still vacant.
In accordance with customary law this land became their property, and in due course
descended to the Nuer family as ancestral property.

• a Stool can acquire title only through its subjects, and as no Manya Krobo subject
had claimed the land as his ancestral property, the Manya Krobo Stool could not
resist the evidence of a Yilo Krobo subject whose ancestors’ original cultivation
of that land had been established
In view of the method by which the Manya Krobos and the Yilo Krobos acquired land in
the area, the only way in which the Manya Krobo Stool can defeat the plaintiff’s evidence
of possession and occupation of a portion of the land is to produce Manya Krobo subjects
whose ancestors farmed the area in ancient times. No Manya Krobo family has come
forward to claim the land in dispute as his ancestral family property. That being so, the
Stool, which can acquire title only through its subjects, cannot resist the evidence of a Yilo
Krobo subject whose ancestor’s original cultivation of that portion of the land has been
established.

22 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

3. Mechanical Lloyd v Nartey per Taylor JSC

4. Yakubu Awabego v Tindana Agongo Akubayela per Atuguba JSC

We can again cite the work of R.J.H. Pogucki, Gold Coast Land Tenure, vol. 1, A Survey
of Land Tenure in Customary Law of the Protectorate of the Northern Territories,
published in 1955. The relevant extract appears at pages 555 to 558 of the Record of
Proceedings.
In paragraph 22, Pogucki’s work (page 556 of the Record of Proceedings), he succinctly
states as follows:-
22) “All over the Northern Territories groups, which own allodial rights on land are
usually represented in their execution by a special official, the Tindana. This official is
always a descendant of the first settler.”
The position stated by Pogucki and Rattary is affirmed by the works of renowned scholars,
Professors George Benneh and Raymond Benning, titled, Technology Should Seek
tradition-studies on traditional Land tenure and Small Holder Farming System in Ghana.

CONQUEST

1. Owusu v Manche of Labadi per Kingdon CJ

The appellants, who are subjects of the Labadi Stool, proved that they and their ancestors
had been in possession of the land acquired by Government (two small plots of land situate
near a village named Nkwantanang some ten or eleven miles from Accra on the Dodowah
road) for at least four generations, and that their ancestor who first took possession of the
land found it unoccupied.
The respondent, on the other hand, proved that the Labadi people had originally acquired
a large area of land, including the land in question, by conquest.

• long and uninterrupted user of land by subjects of Stool is not, in itself, sufficient
to oust the title of the Stool.
I concur with all the findings of fact of the Court below upon the point. The most
fundamental is the acceptance of the respondent's story of the acquisition of the lands in
question by conquest so that they became Labadi Stool lands. It was clearly proved that
Labadi lands extend well beyond Nkwantanang. For instance, Frafraha is further north
than Nkwantanang,

23 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

2. Nyamekye v Ansah per Ampiah JA

The royal family of Kajebil consisted of three branches.

The plaintiff and the second defendant, the chief of Kajebil, were members of the royal
family but belonged to different branches.
Following the granting of a piece of land by the chief to the first defendant, a stranger, the
plaintiff sued claiming that that land belonged to their branch, i.e. the Apia Branch.
The trial judge however held, inter alia, that the plaintiff had no capacity to bring the suit
because whether the land was stool land or was for the whole of the royal family or for the
Apia branch since she was neither the chief nor the head of the royal family and she led no
evidence on her appointment as successor or head of her branch she could not sue.

• the plaintiff as the head of the immediate family was the proper person to sue when
the defendants tried to interfere with the rights of her immediate family.
• where the authority of a person to sue in a representative capacity was challenged,
the onus was upon him to prove that he had been duly authorised.
It is instructive here to refer to Casely Hayford in his book Gold Coast Native Institutions
at pp. 45-46 where the principle is stated thus:
“In the early stages of the Native System, upon the acquisition of lands by conquest or
settlement by members of a given community, the lands so acquired or settled upon would
be apportioned among those worthy of them in the order of merit. Upon that basis, the
Chief Military Commander, who subsequently becomes the King, would have his requisite
share, and so would every member of the community down to the lowest ranks of the
fighting men. Thus each man’s land would be his own special property and that of his
family, though the King, as overlord of all, would undoubtedly exercise sovereignty over
the whole land, every inch of which however would have an individual family owning it.”

3. Ofori Atta v Atta Fua per Smiley CJ

Akwamus lost it to Ashanti in battle.

SALE

1. Sasraku v David per Granville-Sharpe JA

The trial-judge (Sarkodee-Addo J.) examined in the course of his judgment the opinions of
various writers on relevant topics, viz., Rattray on Ashanti, Professor Busia on The Position
of the Chief in the Modern Political System of Ashanti, a Despatch by Governor Sir

24 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Shenton Thomas to the Secretary of State on the Restoration of the Ashanti Confederacy,
Dr. Danquah on Akan Law and Customs, and a paper on Land Tenure in Ghana by Mr.
Pogucki, the present Commissioner of Lands.

The learned Judge made exhaustive research into the question whether land in Ashanti is
capable of alienation by sale, much of which research, it is true, entered channels which
could not be expected to lead very far in a Court of Law. He did, however, consider the
opinions of learned writers whose views are authoritative, and found there what is
supported by the evidence on the record, that over the past quarter of a century (and more)
the impact of western ideas of land-holding upon what was at one time a rigid system of
native customary law has led to a relaxation of these ancient laws. In consequence, it is
not uncommon, though it is not usual, to find land being sold in parts of the country,
including Ashanti, where in former days such a transaction would not have been
sanctioned by native customary law.

As I have already said, there was strong evidence that ‘Guaha’ was at the time of these
sales recognised in Ashanti, though generally it is referred to there as ‘Tramma’.

2. Ghassoub v Sasraku per Lord Morris

It was known that the former Omanhene had in fact assented to other sales of land. Indeed, it
was known that he and the Odikro of Chempaw had collaborated in selling lands.

3. Golightly v Ashrifi per Lord Denning

…an outright alienation or sale of the lands can only be effected with the prior consent of
the three stools, the Ga, Gbese and Korle stools and that publicity is necessary in such
transactions, the publicity being a safeguard provided by native customary usage against
the clandestine disposal of land without the knowledge of the necessary parties

GIFT

1. Heyman v Attipoe per Ollennu J

The plaintiff and the defendant are both direct descendants of a common ancestress, one
Adanshigbo.
The defendant is the grandson of Nyanya, one of Adanshigbo’s five children by her first
husband, Chief Sokpui I;
The plaintiff is a grandson of Hudzengor, one of Adanshigbo’s two children by her second
husband Kumorshie.

25 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

It is common ground between the parties that the land in dispute belonged originally to
Cheif Sokpui I, and that he made a gift of it to his wife Adanshigbo.
But while the plaintiff claims that Adanshigbo died intestate possessed of the said land,
and that it has, by native custom, now become family property to be enjoyed in common
by all the direct descendants of Adanshigbo, the defendant contends that Adanshigbo
disposed of the land during her lifetime to her daughter Nyanya alone.

• The property is family property for all direct descendants of Adanshigbo, including
the plaintiff and defendant.
NB: It was acquired by way of gift.

CONTIGUITY

Ollennu, N. A. Principles of Customary Land Law in Ghana

The first basic principle of our customary land law is that there is no land in Ghana without an
owner. Every inch of land in Ghana is vested in somebody

4. Wiapa v Solomon per Branford-Griffiths

The plaintiffs Wiapa and Obuobi are members of the Nyago family, at Tutu, Akropong.
The defendant Akuffo is the Omanhene of Akwapim, and the other defendant, Solomon,
claims by purchase from Akuffo as Omanhene.
According to the plaintiff Wiapa, Nto, a predecessor of the Nyago family, of Tutu, went to
the land in question many years ago. At that time the land belonged to no one.
Mr. Sarbah, for the defendants-appellants, argued that if this land was no one’s land and
was within the Akwapim country, it must have been attached to the Akwapim stool, and
he enunciated the general principle that all unoccupied land within territory under a
paramount stool belongs to such stool.

• the land was clearly stool land, and the plaintiffs have never so occupied it as to
enable the Court to say that it has been taken out of that category
…this doctrine has served as a safeguard to the natives against possible Government
claims…
Though the principle obtains that all the unowned land under the authority of a paramount
stool belongs to such stool, in practice this is much modified, at any rate in the Eastern
parts of the colony. In these parts each subordinate stool has attached to it large portions
of land, apparently carved out of the territory originally belonging to the paramount stool;
similarly, families have large tracts of land carved out of the subordinate stool lands, and

26 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

finally, we get down to individuals with private worship of particular parts of the family
land; or private individuals may have part of the stool land not being family land. Any
unoccupied land within the recognized boundaries of the subordinate stool land or the
family land or private land would, of course, belong to the subordinate stool, or the
family, or the private individual as the case may be; but any unoccupied land not being
a part of the land of a subordinate stool or family, or a private person would be attached
to the paramount stool.
It is clear from the plaintiff’s evidence that the land upon which Nto went was unowned,
and therefore stool land; whether at the time it was Akim or Akwapim stool land it is not
necessary to enquire.

5. Ofori Atta v Atta Fua per Smiley CJ

This was a dispute between Nana Ofori Atta as Omanhene of Akim Abuakwa and Nana
Atta Fua as Omanhene of Akim Kotoku, as to the boundary between the two paramount
Stools.
It was established that the lands concerned had previously been occupied by the Akwamu
before they were driven away by the Ashanti.
The predecessors of both the plaintiff and the defendant, who appear to have originally
assisted the Ashanti in driving away the Akwamu, were in turn driven away by the Ashanti.

• the lands should be shared between the two stools.

"These lands being uninhabited lands situated between two paramount stools would
according to Native Law and custom accrete to the paramount stools and the question of
boundary between the two paramount stools would be one in respect of adjoining land

6. Ababio v Kanga per West African Court of Appeal

It was admitted that the land in question was stool land of the Omanhene of Eastern Nzima.
Both the plaintiff (Ohene Appoh Ababio of Assenta) and the defendant (Ohene Doku
Kanga of Kickam) were divisional chiefs of Eastern Nzima.
It was a question of the divisional boundary between Assenta and Kickam, the real question
at issue being whether the line of the boundary runs from the bridge south of the Bobloma
creek or whether it follows the stream westward and then southward to the sea.

Obiter dictum
Now in the Gold Coast there is no land without an owner, all vacant lands being attached
to the nearest stool in which they may be said to vest for the community represented by that
particular stool.

27 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Criticisms of the Principle of Contiguity

Kludze, A.K.P, The Ownerless Lands of Ghana

1. False assumption that all lands are stool lands. Thus they can’t attach if there are no stools
to attach to

Even as early as 1903 Mr. Casely Hayford had pointed out that, apart from other lands,
among the Fanti "there are the general lands of the state over which the King exercises
paramountcy," He goes on to explain that "It is a sort of sovereign oversight which does
not carry with it the ownership of any particular land. It is not even ownership in a general
way."

Later it was written by Dr. Danquah that "In Fanti proper (Borebori Fanti) there are but
very few Paramount stools which can claim absolute right of ultimate ownership in all the
lands in their state divisions."
Mr. Pogucki has also made the observation that the Akan-type stool land does not exist
among the Ewe, the Adangbe and the communities of the Northern and Upper Regions…

Ollennu also makes the concession in a brief remark that "the absolute ownership in some
lands, e.g. in some of the Adangme areas, the Anlo and Adjumaku areas, is vested in
families or tribes not in a stool or skin."

After a discussion of stool lands in Ghana generally, Dr. Bentsi-Enchill also states that:
"In most other areas of Ghana, there is no such basic notion of what has been called state
ownership above. The principal owners of land—absolute or allodial owners thereof—are
clans or extended families or village communities."

The present writer has also found from field research that the concept of stool land is
unknown in the Ewe system of land tenure. Dr. Nukunya also says that stool lands do not
exist among the Anlo Ewe
In view of this analysis, it is submitted that the doctrine that there is no land without an
owner cannot be applied throughout the whole country, inasmuch as its basis is the
assumption that what appears to be ownerless must be attached to a stool. For what
appears to be ownerless in many parts of the country cannot be owned by the stool which
as a matter of principle has no proprietary interest in land.

2. Public Lands Bill of 1897 targeted land that had been vacant (not used for 3 years) and not
ownerless lands

28 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…the point made by the chiefs and people of the then Gold Coast that no land was
ownerless has been regarded as a basic principle in our land law. One would ask whether
this statement by the chiefs and people, under the leadership of the Aborigines Rights
Protection Society, was rightly elevated to a legal principle. It is submitted that the
contention was a political argument which was not based on legal research.

3. All 3 cases cited are not strong authority for the proposition since they were all irrelevant
to the issues in those cases. Thus the cited statements were obiter

The basic criticism of the decision in Wiapa v. Solomon, for present purposes, is that the
exposition on the doctrine that there could be no ownerless lands was irrelevant to the
issue before the court. It is not unlikely that the court was misled by the personality and
stature of Mr. Sarbah who appeared for the defence. It is submitted that the true issue
before the court in Wiapa v. Solomon was the capacity of the Omanhene to sell the land
in dispute to the defendant Solomon. On this issue, the basic point is the if stool lands
exist in Akwapim and all Akwapim lands are stool lands,21 the plaintiff Wiapa could not
acquire any interest in the disputed land except by occupation of land belonging to his
stool. Consequently, it was not possible for Wiapa to claim title against the stool but only
through the stool. In that case the plaintiff Wiapa's claim to be owner of what was by
definition a stool land could only be properly understood as an assertion of the so-called
usufruct. It is regrettable that this point was not suggested to the court by the plaintiff who
was apparently unrepresented by counsel, and the court itself failed to appreciate it…

Nowhere in the judgment is it suggested that there could be invoked any principle or
doctrine that there could not be an ownerless land. If the background to the dictum is
properly appreciated, it is submitted that the effect of the judgment in Ofori Atta v. Atta
Fua was that, the land lying between the parties having become ownerless, it was to be
shared between the two adjoining stools which were laying competing claims to the land.
This was a practical approach because a third party was not claiminginterest therein. It is
clear from the judgment that if effective re-occupation had been established by one party,
that party would have been declared the owner of all the disputed land. For if the
"ownerless" land had become vested in the adjoining stools automatically on its becoming
"ownerless," then it would have been irrelevant to consider whether there had been
effective re-occupation by either side. For effective occupation could not have changed the
automatic boundary which would have existed by operation of law from the moment that
the owners were driven away. That both the parties and the court looked to evidence of
re-occupation means that it was a question of fact and title did not vest merely by
contiguity to ownerless land.

29 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

In Ababio v Kanga, the issue between the parties was not the ownership of vacant land. It
was admitted that the land in question was stool land of the Omanhene of Eastern Nzima.
As both the plaintiff (Ohene Appoh Ababio of Assenta) and the defendant (Ohene Doku
Kanga of Kickam) were divisional chiefs of Eastern Nzima, the paramount title of the
Eastern Nzima Stool was not even remotely in issue. As the West African Court of Appeal
itself emphasized "it was a question of the divisional boundary between Assenta and
Kickam, the real question at issue being whether the line of the boundary runs from the
bridge south of the Bobloma creek or whether it follows the stream westward and then
southward to the sea.

4. A stool may not be interested in the land that accretes to it

The operation of the doctrine to vest title automatically in adjoining landowners could lead
to absurd results. Would the doctrine automatically vest title in an adjoining stool or
landowner by operation of law even if the said stool or landowner is not interested in
acquiring title to the land? What happens if one of the adjoining stools expressly disclaims
ownership56 and has, therefore, taken no steps to settle on the land or assert title to it?
Would it be held that by operation of law the disclaimer is ineffective and that the
disclaiming stool is an owner willy-nilly?

5. The process of carving out entitlements by family members means some portions remain
ownerless

In other communities, notably among the Ewe, the Adangbe and the communities of the
Northern and Upper Regions, such stool ownership of land is unknown. The lands belong
to the families allodial. In these communities, although in every case the territorial area of
a chief is identifiable, the stool is not the owner of all the lands. The respective families
carve out their entitlements by a gradual process of acquisition through occupation by
their members. As it is a slow process, portions remain ownerless until appropriated by a
family. While so ownerless the land would not accrete to the stool because stool ownership
is not known. Such lands, some of which exist in parts of the country even today, are clearly
ownerless.

6. The case of the Keta Lagoon

Recently Dr. Nukunya came out with the result of an independent investigation which has
a bearing on the issue. (Land Tenure and Inheritance in Anloga, Technical Publication)
Dr. Nukunya has also come to the same conclusion as the present writer that among the

30 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Ewe the stool as a rule does not have the proprietary interest in the lands over which it
exercises jurisdiction. Thus he concludes from his specific study of the Anlo Ewe that the
Awoamefia or Paramount Chief of Anlo is not the owner of all Anlo lands but the respective
families. He, therefore, came across the case of the Keta Lagoon which, because it does
not belong to any family or individual, is ownerless. The Lagoon is not stool land or stool
property. Thus among the Anlo Ewe also we have the example of the Keta Lagoon which
is ownerless land.

F LOSS / TRANSFER OF THE ALLODIAL TITLE

Besides conquest, sale and gift which have been dealt with above there is also compulsory
acquisition (power of eminent domain) and vesting which is dealt with below (2nd Sem).

G INCIDENTS OF THE ALLODIAL TITLE

Check Kwame Gyan

Section 8 of Act 1036

Subject to sections 2, 3, 4, 5, 6 and 7, the bundle of rights and obligations that attach to any form
of interest in land shall be determined by the applicable source of law which is the basis of that
interest.

Section 50 of Act 1036

(21) A holder of an allodial title may
(a) In furtherance of the expansion of a town or settlement; and
(b) For the purpose of serving the communal interest of the beneficiaries of the allodial
interest,
Take over bare land or farm land which is the subject of a usufructuary interest within the area
covered by the allodial title.
(22) The holder of an allodial title shall not take over land under subsection (21) without
(a) prompt payment of fair and adequate compensation which in any case shall not be less that
forty percent of the plots of land or the market value of the plots of land being taken over, or

31 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(b) providing suitable land, where possible, to the holder of the usufructuary interest in respect of
the land

H CONSTITUTIONAL AND STATUTORY INTERVENTIONS IN THE

INCIDENTS OF THE ALLODIAL TITLE

Man cannot always be allowed by society to be complete master of what he calls his own, and that
he must submit to the restrictions placed by the law upon the exercise of his proprietary rights

Prohibition of grant of freeholds by stool.

Article 267(5) and Section 7 of the Office of the Administrator of Stool Lands Act, 1994 (Act 481)
Subject to the provisions of this Constitution, no interest in, or right over, any stool land in Ghana
shall be created which vests in any person or body of persons a freehold interest howsoever
described.
Section 9(2) of Act 1036
A person shall not create an interest in, or right over, any stool or skin, or clan, or family land
which vests in any person or body of persons a freehold interest howsoever described.
Section 9(3) of Act 1036
Subsection (2) does not take away the inherent right of a subject of a stool or a skin, or a member
of a clan or family to the usufructuary interest in a vacant portion of the stool or skin, or clan or
family land

Restrictions on grants to persons who are not citizens of Ghana.

Article 266(1) – (5)

(1) No interest in, or right over, any land in Ghana shall be created which vests in a person who
is not a citizen of Ghana a freehold interest in any land in Ghana.
(2) An agreement, deed or conveyance of whatever nature, which seeks, contrary to clause (1) of
this article, to confer on a person who is not a citizen of Ghana any freehold interest in, or rights
over, any land is void.

32 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(3) Where, on the twenty-second day of August 1969, any person not being a citizen of Ghana had
a freehold interest in or right over any land in Ghana, that interest or right shall be deemed to be
a leasehold interest for a period of fifty years at a peppercorn rent commencing from the twenty-
second day of August 1969, and the freehold reversionary interest in any such land shall vest in
the President on behalf of, and in trust for, the people of Ghana.
(4) No interest in, or right over, any land in Ghana shall be created which vests in a person who
is not a citizen of Ghana a leasehold for a term of more than fifty years at any one time.
(5) Where on the twenty-second day of August 1969 any person not being a citizen of Ghana had
a leasehold interest in, or right over, any land in Ghana for an unexpired period of more than fifty
years, that interest in, or right over, any such land shall be deemed to be an interest or right
subsisting for a period of fifty years commencing from the twenty-second day of August 1969.

NB: Article 266 is substantially reproduced in Section 10 (1) - (7) of Act 1036

Section 10 (8) – (10)

(8) The reversionary interest in leasehold under subsection (7) shall vest in the lessor
(9) The restrictions imposed in subsections (1), (2), (3) and (7) on the interest that a person who
is not a citizen of Ghana may acquire in land shall not be affected by the marriage of that person
to a citizen of Ghana or by entry of that person into a partnership with a citizen of Ghana
(10) For the purpose of this section, a company or corporate body is not a citizen if more than
forty percent of the equity shareholding or ownership is held by non-citizens

Limitations on grants of land with natural resources

Section 21 of the Land Act, 2020 (Act 1036)

An instrument that disposes of stool or skin, or clan or family land, or land owned by a group of
persons, a corporate body or an individual does not have the effect of granting a right or title to
or an interest in natural resources in, under or on the land.

Section 119 (4) of Act 1036

The registration of a person as the proprietor of land or a holder of an interest in land does not
confer on that person a right to minerals in the natural state in, under or upon, the land.

33 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Article 257(6) of the Constitution and Section 1 of the Minerals and Mining Act, 2006 (Act 703).
Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water
courses throughout Ghana, the exclusive economic zone and any area covered by the territorial
sea or continental shelf is the property of the Republic of Ghana and shall be vested in the
President on behalf of, and in trust for the people of Ghana.

Article 268(1)
Any transaction, contract or undertaking involving the grant of a right or concession by or on
behalf of any person including the Government of Ghana, to any other person or body of persons
howsoever described, for the exploitation of any mineral, water or other
natural resource of Ghana made or entered into after the coming into force of this Constitution
shall be subject to ratification by Parliament.

Section 1(1) of the Petroleum Exploration & Production Act, 1984 (PNDCL 84)
Without prejudice to any right granted, conferred, acquired, recognised or saved in this Law to
explore for or produce petroleum, all petroleum existing in its natural state within the jurisdiction
of Ghana is the property of the Republic of Ghana (hereafter referred to as "the Republic") and
shall be vested in the Provisional National Defence Council (hereafter referred to as "the
Council") on behalf of the people.

Concessions Act, 1962 (Act 124), as amended by the Timber Resources Management Act, 1997
(Act 547), S.1.
Legislation relating to Planning and Zoning, e.g. Local Government Act, 1993 (Act 462) S. 49,
52, 53, 54 and 55.

Restrictions governing the receipt and disbursement of revenue from stool lands
Article 267(1) and 267(6).
(1) All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the
subjects of the stool in accordance with customary law and usage.
(6) Ten percent of the revenue accruing from stool lands shall be paid to the office of the
Administrator of Stool Lands to cover administrative expenses; and the remaining revenue shall
be disbursed in the following proportions-
(a) twenty-five percent to the stool through the traditional authority for the maintenance of the
stool in keeping with its status;

34 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(b) twenty percent to the traditional authority; and

(c) fifty-five percent to the District Assembly, within the area of authority of which the stool lands
are situated.

Section 9(1) of Act 1036

A stool or skin, or clan or family land shall vest in the appropriate stool or skin, or clan or family
on behalf of, and in trust for, the subjects of the stool or skin, or members of a clan or family in
accordance with customary law and usage

Section 2 of the Office of the Administrator of Stool Lands Act, 1994 (Act 481)
Functions
The Office of the Administrator of Stool Lands shall be responsible for—
(a) the establishment of a stool land account for each stool into which shall be paid rents, dues,
royalties, revenue or other payments whether in the nature of income or capital from the stool
lands;
(b) the collection of all such rents, dues, royalties, revenues or other payments whether in the
nature of income or capital and to account for them to the beneficiaries specified in section 9 of
this Act; and
(c) the disbursement of such revenues as may be determined in accordance with section 9 of this
Act.

I SOCIAL, ECONOMIC AND POLITICAL INFLUENCES ON THE

ALLODIAL TITLE

Economic and technological developments leading to the new and intensive uses of land.
The emergence of the customary law freehold.
The extension of the governmental authority in land administration.
Changes in the nature, structure and organization of customary communities and particularly
traditional notions and structure of the family.

35 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

THE USUFRUCTUARY INTEREST

Gyan
In Roman law, a usufruct was not capable of being alienated. In addition, the Roman usufruct did
not survive the life of the usufructuary. On the other hand, the Ghanaian usufruct is inheritable,
alienable and potentially perpetual. The usufruct was described as a burden on the allodial title.
According to this view, the usufruct is not another species of ownership in itself but consisted of
perpetual rights of beneficial user or land, which now co-exist with the allodial title.
This land interest is variously called the ―usufruct‖, ―customary law freehold‖, ―customary
freehold‖, ―determinable interest‖ and ―subordinate interest…
Customary freehold is an interest in land which a member of a community, which holds the allodial
title to the land, acquires in a piece of vacant, virgin, communal land by exercising his or her
inherent right to develop such land by either farming or building on it. It has been noted that this
interest prevails against the whole world including the allodial title which gave birth to it…
The usufructuary interest is, therefore, a recognized estate which can be properly transferred
under customary law and the interest is of indefinite duration and therefore, potentially perpetual.

NB: Act 1036 makes a clear distinction between customary law freehold (Section 3), common
law freehold (Section 4) and usufructuary interest (Section 5)

Similarities between customary law freehold and common law freehold

Sections 3(1) and 4(1) of Act 1036
1. Both are interest which arise out of transactions unlike usufructuary interests
2. Both are of perpetual duration
3. Both are inheritable and inalienable
4. Both are subject to the jurisdictional and cultural rights of the stool or skin, or clan or family
which holds the allodial titles
Differences between customary law freehold and common law freehold
1. While customary law freehold arises from a transaction under customary law, common law
freehold arises from a transaction to which the rules of law generally known as the common
law are applicable (Sections 3(1) and 4(1) of Act 1036)
2. While the acquisition of customary law freehold by a non-citizen in respect of stool and
skin lands has since 22nd August, 1969 been proscribed, the acquisition of common law

36 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

freehold by citizens and non-citizens alike in respect of stool and skins lands has, since
22nd August, 1969 been proscribed. (Section 3(2) and 4(2) of Act 1036)

Section 5(1) of Act 1036

(1) Usufruct is an interest in land, which is
(a) Acquired in the exercise of an inherent right by a subject or a member of a stool or skin,
or family or clan which hold the allodial title through the development of an
unappropriated portion of land of the stool or skin, or family or clan by virtue of an express
grant; or
(b) Acquired through settlement for a period of not less than fifty years, with the permission of
the holder of an allodial title by a non-indigene or group of non-indigenes or descendants
of the non-indigene or group of non-indigenes except where the settlement is on agreed
terms.
(c) Inheritable and alienable

Asante
When people settled down to farming as the main economic activity, and stool subjects reduced
portions of land into their possession for the purposes of cultivation, there developed the concept
of the subject’s usufructuary right to stool land, that is to say, the right to occupy, till, or otherwise
enjoy an unappropriated portion of stool land and to appropriate the fruits of such user.

I NATURE

Section 5(1) of Act 1036

1. Yiboe v Duedu per Ollennu J

The defendant’s stool caused by–laws to be published directing citizens of Akloba who
sold, pledged or let out portions of the land in dispute to report the transaction.
The plaintiff wrote to the defendant re-fusing to comply with the by-laws, claiming the
land to be his property.

• To succeed in his present claim to the ownership of the land by his clan to the
exclusion of the other three clans in Akloba, the plaintiff must discharge the onus
which lies upon any plaintiff in an action for a declaration [299] of title, and must
prove his case to the satisfaction of the court. This he failed to do.

37 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…a declaration of ownership in favor of the individual against the stool or the family may
amount to nothing more than a declaration that the individual is entitled to the
usufructuary or the possessory right in the land and that declaration may not affect the
absolute title of the stool or family.

2. Kotei v Asere per Lord Denning

Native law or custom in Ghana has progressed so far as to transform the usufructuary
right, once it has been reduced into possession, into an estate or interest in the land which
the subject can use and deal with as his own, so long as he does not prejudice the right of
the paramount stool to its customary services.

3. Awuah v Adututu per Abban JSC

The plaintiff (A.) obtained grant of forest land from the first defendant (K.) acting on behalf
of the Akwaboa stool.
The plaintiff entered into possession and cultivated a large portion of the land leaving a
small area which he later gave to a certain man to cultivate on abunu tenancy.
After that person had cleared the forest, K entered onto the land and appropriated a
considerable portion which he gave to the second defendant (M) who started farming
activities thereon.

• Plaintiff could alienate land since he had acquired the usufructuary title from the
stool
…the plaintiff had an estate in that portion of the stool land and of which he took effective
possession, occupied and cultivated. That estate could variously be described as
usufructuary, possessory or determinable title. The usufructuary title is a specie of
ownership co-existent and simultaneous with the stool’s absolute ownership.

4. Pastor Yaw Boateng v Kwadwo Manu per Brobbey JSC

According to the appellant, he acquired, from the Ejisu stool, fifty building plots for church
and school purposes and that acquisition, he was issued with an allocation paper which was
tendered as Exhibit B.
The Respondent, a subject of the stool, contended that his family owed the said land.

• Stool could not sell subject’s land since subject had acquired the usufruct

38 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

To my mind, one of the most serious questions raised in this case is whether in this day and
age of constitutional rule with all the talk of fundamental human rights to own property,
the Oman could just get up and grab any land that belongs to a family because the town
has to be developed, as was alleged by the appellant in his evidence at the trial court.
My view is that the Oman could do that if the land was stool land which had not been
reduced into the possession or ownership of any citizen or family within that Oman. In the
instant case, the land seemed to belong to the family of the 1st respondent who had had
judgments in his favour at the customary arbitration and a previous circuit court litigation.
The Oman could not just get up and allocate fifty building plots to an individual where the
evidence suggested that the plots formed part of land which was not stool land.

5. Togbe Lugu Awadali IV v Togbe Gbadawu IV

From the evidence on record, both parties were ad idem that:

(i) the appellants founded the disputed land as first settlers so they were the allodial
title holders to the disputed land and
(ii) the respondents were strangers who came to settle on the land.
Where they parted ways was when the respondents claimed they acquired ownership of the
disputed land by purchase against appellants’ contention that respondents were their
licensees.
These varied contentions raised two crucial questions for determination in this appeal.
They are: -
Did the respondent’s ancestress or ancestors ever purchase the disputed land from the
appellant’s ancestors as the Court of Appeal found? And;
Has the appellant’s family lost its allodial ownership to the disputed land as a result of the
alleged purchase?

• We agree with the trial court that the respondent family has possessory and user
rights over the disputed land subject to the recognition of appellant’s allodial
ownership to same.
• As allodial owners, it was wrong for the respondent to attempt in any way, to fetter
the fishing and farming rights of the appellant’s family members over the wet and
dry creeks on the disputed land.
The totality of the evidence on record shows that appellant’s family did not challenge the
presence of the respondents on the land after Gli had fled the area. Rather, they permitted
respondent’s family to also exercise the same rights Gli was exercising over the land before
he fled, so long as that occupation did not affect appellant’s allodial ownership of the land.
It is for this reason that the appellants had contended all along that the respondents were
their licensees.

39 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The law is certain that long possession by a stranger with the permission of the allodial
owner, would not confer ownership of the land upon the stranger. The authorities are clear
that laches of this nature do not extinguish the title of the true owner and do not vest the
stranger-occupier with title to the land. All it does is that it prevents the true owner from
recovering possession, and enables the stranger to retain the use of the land.
In the case of OHEMEN v AGYEI, 2 W.A.L.R. 275, the court held that; “The correct
position is that the true owner loses his right to assert his title to and to recover possession
of the land; not that the stranger acquires title to it, though in actual fact he does thereby
acquire title to it”. Though such a stranger can deal with the land as he wishes including
granting conveyances, these interests are limited to possessory and user rights and cannot
mature to absolute ownership rights.

II ACQUISITION

Section 5(1) of Act 1036

A Discovery of vacant land by pioneers of a stool.

1. Ngmati v Adetsia per Ollennu J

2. Ameoda v Pordier per Apaloo JA

B Implied grant from a stool, family or clan

1. Oblee v Armah per Ollennu J

The parties were subject-members of the same stool.
A grant of some land had been made to Plaintiff by the stool authorities forty years ago.
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 of 1951.
Plaintiff had exercised acts of possession over the land, by way of farming it and building
upon it, for many years.
The Defendants alleged, in effect, that it is 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 purposes only and that
by building on the land in dispute the plaintiff had suffered forfeiture, the land reverting to
the stool-grantor.

40 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• Plaintiff could maintain an action against all except the government since he was
not restricted to the purpose for which the land was acquired or demarcated.
By custom, subjects of a stool are not rationed in the amount of land they can occupy and
farm. The only limiting factors on the extent of stool land a subject can acquire by farming
are his own capacity to farm and the extent of land which other subjects have appropriated
to their use by their labour.
Again by custom a subject who requires land for farming need not obtain express
permission of the stool to occupy vacant stool land. That fact is admitted by both the
defendant and co-defendant in their pleadings. But if to avoid a clash with other subjects
already occupying land in the area it should become necessary for the stool to make an
express grant of stool land to a subject for farming, all that the elders would do is to take
this subject to the land and show him the boundary from which and the direction in which
he can farm.

2. Ohimen v Adjei per Ollennu J

The stool holds the absolute title in the land as trustee for and on behalf of its subjects,
and the subjects are entitled to the beneficial interest or usufruct thereof and have to
serve the stool. Each individual or family is regarded in the broad sense as the owner of
so much of the land as it is able by its industry or by the industry of its ancestors to reduce
into possession and control…

Where an individual or family in possession abandons any portion of the land in their
possession for upwards of ten years, the stool can grant that particular portion to any other
subject or to a stranger and such grantee will be bound to perform such services and pay
such sums as may be declared to be performed or paid annually in accordance with native
custom…

It would be repugnant to natural justice and good conscience if, while the Stool can insist
upon the services and customary rights due to it from the subject, it could arbitrarily
deprive its subjects of the enjoyment of the portions of the stool land in their possession.
On the other hand, the only title in land which a subject can claim against a stool is the
usufructuary title to the portion of the stool land in his actual possession.

3. Budu v Caesar per Van Lare J

In 1946 Gotfried Tetteh Caesar, (head of the Caesar family) commenced an action in
trespass against Nana Budu, in respect of three pieces of land.

41 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

By customary law, a subject of a stool is entitled, either by express or implied grant from
the stool, to occupy any vacant portion of the stool land; the occupant of such portion of
the land becomes the owner of the possessory title in it; the land descends (upon his death
intestate) to his family

C Express grant from allodial title owner

1. Oblee v Armah per Ollennu J

2. Amatei v Hammond per Edward Wiredu J

A dispute arose between A, a subject of the mankralo stool and H as to the ownership of a
building plot on mankralo stool land at Osu.
A therefore brought an action for a declaration of title or right of occupation of the plot.
In support of his claim A testified, inter alia, that he used to farm on a piece of land part of
which was the plot in dispute and that when the area was later carved out into building
plots as a result of a lay-out carried out in the area, he obtained a grant of the disputed land
as a gift from Y, who at that time was the acting mankralo of the Ashanti Blohum Quarter
and some stool elders, and a deed of gift, exhibit A, was executed in his favour.
After the grant, he went into possession and erected four pillars at the corners of the plot.
H argued that since Y was not the substantive mankralo, A’s grant was void and that the
court should accept H’s grant from NA, who though declared destooled was the substantive
Mankralo.

• As between the plaintiff and the defendant none of them had a valid grant of the
disputed land and they both lacked title. But the plaintiff on the facts of the case
was in actual physical occupation of the land as against the intruding defendant.
The plaintiff’s possession should therefore be protected.
He acted in good faith in his dealing with the disputed land and deserved protection
under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) and the
Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument,
1961 (L.I. 118).
There remains the last issue raised. That is the scope and extent of the right enjoyed by a
stool-subject in respect of vacant stool land. There is a common area of agreement among
textwriters and the case law that there exists an inherent right of a stool-subject to occupy
any vacant stool land and that such occupation is deemed to be an implied grant by the
stool and that whilst in such occupation the subject is entitled to alienate such interest as
he acquires in that land and is also entitled to its protection even against the stool…

42 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Whilst I accept as sound the customary law principle as enunciated above that although
the absolute title in land is vested in the stool any conveyance made by the stool of any
such land in the occupation of a subject is void, I am of the view some exceptions should
be created in this area of our customary law practice to reflect present socio-economic
and political changes in this area of our customary law.
Where a subject of a stool requires land for farming whether arable or for animal
husbandry, and engages himself in a commercial mechanized farming he should be
required to obtain an actual grant in the form of a lease. If such a person with the
necessary resources and equipment is permitted to rely on this inherent right to clear miles
and miles of stool land, it would not be long when other subjects of the same stool would
be deprived of any share of the land….
Where an outskirt land in possession of a subject is required for general development or
the community such as for building a school, lavatory, etc. or where as in this case, the
area already in the occupation of the plaintiff had been carved into building plots for the
use of the general community and the complete lay-out of the area has changed, I am of
the view that the subject’s prior occupation should give way subject, of course, to
preference being given to him in the allocation of such plots if he requires one to build or
in the alternative another suitable area given him in place of the one lost and his consent
should not be a prerequisite to the stool taking over control of such an outskirt land.
Otherwise it would mean that his prior occupation could hamper all future developments
of the area occupied by him.

3. Awulae Attibrukusu v Oppong Kofi per Aryeetey JSC

Defendants (by their late head of family) caused to be published a Statutory Declaration
over the disputed lands purporting to be Ewuku Nvaviley lands and alienated portions
thereafter.
Plaintiff (Omanhene of the Lower Axim Traditional Area) sued for himself and on behalf
of the Royal Nvaviley Stool family on the basis that the Plaintiff’s ancestors only granted
the ancestors of the Defendants permission to farm.

• By paying tribute to the Plaintiff, the Defendants acknowledge that the Plaintiff
possessed the allodial title and only had usufructuary interest as permitted by the
Plaintiff.
Certainly payment of tribute in any form by the defendants’ family to the plaintiff’s stool
could only signify its acknowledgement of the plaintiff’s stool’s allodial ownership of the
land in dispute. It is therefore an indication that the defendants’ family’s presence on the
land in dispute could not have been without the permission and authorization of the
plaintiff’s stool…

43 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Our understanding of the customary law position is that it is only after the stranger with
the permission of his grantor stool or family has reduced a virgin forest land into
cultivation that he would be entitled to give portions or all of it to others without reference
to the grantor stool or family. It is only the allodial title owner who could make a grant of
virgin forest land to strangers for cultivation…
Unlike a stool subject or a member of a family, in the case of a stranger-grantee the area
of his formal grant is specifically marked out and therefore clearly identifiable.
Therefore, it is expected that there should be a clear demarcation and identification of the
area of land granted to the defendants’ family.
Since the evidence is indisputable that the defendants’ ancestress formally settled at Ewuku
it would be expected that land granted to her to cultivate would be located in that area in
the absence of evidence of any other formal grant or grants from the plaintiff’s stool.
It means therefore that any cultivated land that falls outside the area of the grant to the
defendants’ family area could not be regarded as the defendants’ family’s land. The
evidence from the defendants seems to suggest that the successors of their ancestress
continued to cultivate forest lands beyond the outskirts of Ewuku which implies that these
were done without formal grant from the plaintiff’s stool, as they would have the court to
believe.

4. Norquaye-Tetteh v Malm per Ollennu J

Nii Abose Okai, the caretaker of the Abose Okai lands (which are the property of the
Akumadjaye Stool), on behalf of the stool granted a portion of those lands to the late
Henerike Cornelius Malm. (Defendant’s father)
Nii Ayikai II, Mantse of Akumadjaye, acting on behalf of the Akumadjaye Stool granted
to each of two brothers (Emmanuel Norquaye-Tetteh and David Quao Norquaye-Tetteh –
the Plaintiffs) a portion of the Abose Okai lands; the two portions granted to the brothers
adjoined each other.

• each of the plaintiffs having failed to prove that the portion of land which he
claimed was vacant land at the time of its purported conveyance to him, the claim
of each must fail.
This is because the presence of economic trees i.e. mango is prima facie evidence
that the land is not in vacant possession
Although mango seeds may germinate by the act of nature, the trees cannot survive on the
Accra plains, and develop to become fruit-bearing, without the industry of man. They
would perish at a very early age if they were not so preserved. The truth is that such trees
generally sprout up in cultivated areas, and are looked after by the owners of the farms in
which they germinate. Therefore, the existence of trees like mango or cashew on land

44 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

overgrown with weeds is prima facie evidence that the area where they are found is a
farmstead, once under cultivation by the person who now harvests their fruits.
It follows that mango trees would be grown on land only by the man in possession of that
land; and if a mango tree happens to grow on land it would be no one but the possessor of
the land who would display the industry necessary to keep it alive. For an owner of land
would not normally permit a stranger, with no interest in his land, to come upon it year in
year out, to cultivate a mango tree which had sprouted up on the land by the act of nature;
nor, when the tree is grown up, would the owner of the land permit the stranger to harvest
the fruits of that tree of economic importance.
In my opinion, therefore, harvesting the fruits of mango trees is very cogent evidence of
the interest which the man who so harvests the fruits has in the land on which they grow.

By customary law a stool cannot make a valid grant of any portion of its land on which
there exist economic trees like mango and cashew. This is a well-established custom which
is based upon another very sound customary law, namely, that any subject of a stool is
entitled to occupy a vacant portion of the stool land, and to become the owner of the
usufruct thereof. His occupation and possession may be by cultivating it in one form or
another, by building on it, or using it in any other way in which an owner would use his
land.

D Transfer (Sale / Gift)

Section 5(1) of Act 1036

Section 5(2)
Where the alienation of the usufruct is to a person who
(a) is not a member of the stool or skin, or clan or family which holds the allodial title, or
(b) is not a non-indigene from the group of non-indigenes who hold the usufructuary interest
as provided in paragraph (b) of subsection (1) in the land in respect of which usufruct is
to be alienated,
the alienation is subject to the written consent of the stool or skin or clan or family or group and
the performance of established customary obligations

Section 50
(19) A conveyance of a usufructuary interest shall not specify any duration of the interest, but the
holder of the usufructuary interest is subject to the customs and traditions of the area where the
land is situated

45 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(20) A holder of a usufructuary interest under subsection (19) shall not alienate any interest in the
land, which is the subject of that interest, to a person who is not entitled to that interest without
the written consent of and adequate payment to the allodial owner, which consent shall not be
unreasonably withheld.

1. Buor v Bekoe per Ollennu J

The first key issue was whether a sale by a subject of this possessory rights in land to a
non–subject of a stool without the knowledge and consent of the stool is void or voidable.
The second key issue was whether the evidence on record showed that the elders of the
stool were aware that there had been an alienation of the subject’s possessory or
usufructuary title to the land.

• It is voidable not void

• Neither the Odikro or principal elders were aware of the sale.
I hold, therefore, that the sale, if any, is only avoidable and not void. Therefore, if it is
shown that the Odidro and the principal elders knew of it, but sat by and allowed the
purchaser, in the belief that he has acquired good title, to incur expenses to improve it, the
stool will be held to be estopped.

2. Kotei v Asere per Lord Denning

He can alienate it to a fellow-subject without obtaining the consent of the paramount stool:
for the fellow-subject will perform the customary services.
He can alienate it to a stranger so long as proper provision is made for commuting the
customary services.
On this death it will descend to his family as family land except in so far as he has disposed
of it by will, which in some circumstances he lawfully may do.
The law on the subject is developing so rapidly that their Lordships think it wrong to limit
the right of the plaintiffs in the way that Jackson, J. did

3. Awuah v Adututu per Abban JSC

The usufructuary is regarded as the owner of the area of land reduced into his possession;
he can alienate voluntarily to a fellow subject or involuntarily to a judgment creditor
without the prior consent of the stool. There is practically no limitation over his right to
alienate that usufructuary title.

46 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Neither can the stool divest the usufructuary of his title by alienating it to another without
the consent and concurrence of the usufructuary

It appears the plaintiff was not a subject of the stool of Akwaboa, the allodial owner of the
land in dispute. In other words, the plaintiff was a stranger grantee of that stool in respect
of a defined portion of the stool’s forest land which he had cleared and cultivated. But it
should be remembered that the usufructuary title which a stranger-grantee like the plaintiff
acquires, places the stranger-grantee in the same position as the subject of the stool, except
that in the case of farming land, as well as in building land, the title of the stranger-grantee
is limited to a well- defined area demarcated and granted to him; whereas the subject of
the stool is not so rationed in the amount of the forest land he may occupy.

4. Total Oil Products Ltd v Obeng per Ollennu J

The subject-matter land situate at Old Tafo is a portion of the Tafo stool lands under the
Akim Abuakwa paramount stool.
The first defendant demised the said land to the plaintiff-company for a term of years and
placed them in possession.
The first defendant is an Ashanti man, and not a subject of the Akim Abuakwa stool.
He had purchased the land from the second defendant, a subject of the stool.
The plaintiff-company alleged that they were ejected from the land by the Tafo stool, and
upon the first defendant’s failure to take steps to put them back into possession, they had
to take a lease of the same land from the Tafo stool.
Plaintiff also argued that by attempting to convey the fee simple in land the second
defendant had denied the title of the stool and thereby forfeited his usufructuary title to the
land as a subject.

• As a stranger-transferee is in the same position as his subject-transferor, the grant

by the first defendant to the plaintiff-company did not require the consent of the
stool. It is valid in spite of the absence of such consent;
• On the other hand, the grant by the Tafo stool to the plaintiffs, is null and void,
because the stool purported to grant the land without the consent of the possessor
• There was no denial of the stool’s title since no claim of title to a different stool
was made
I agree that a stranger-transferee is in no better position than the subject-transferor. Now
the law as to the right of the subject to grant a lease of the land in his occupation is well
settled. Lease of land by a subject is not alienation of his usufructuary title or any interest
is the land; it does not therefore require the prior consent of the stool…
The evidence given by P.W.1, the linguist to the Okyihene, P.W.2 the Okyi State Secretary,
and P.W.3 linguist to the Tafohene, as to the custom conforms to the well-established

47 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

principle of the customary law, namely that a stool cannot alienate land in the possession
of a subject without the consent of the subject

5. Mansu v Abboye per Abban JA

The plaintiff, sought a declaration of title to his family’s land at Yarbiw in the Western
Region.
He pleaded that his ancestors had reduced the virgin forest into cultivation and had been in
uninterrupted occupation of it until the trespass complained of.
The co-defendant’s case was, however, that as the Odikro of Yarbiw, he was the allodial
owner of Yarbiw lands.
He, however, made no claim against the plaintiff for breaches of customary tenure which
would justify forfeiture, nor was he attempting re-possession following abandonment.
Indeed, his was the novel proposition that a stool could estreat a subject’s land and
extinguish his possessory title, if land compulsorily acquired were later released, or if the
town committee decreed it.

• some of the cardinal incidents of the usufructuary interest were that the
usufructuary had exclusive possession and enjoyment of his portion of land, and he
could not capriciously be divested of that interest by the stool;
• neither could the stool alienate that portion of land to any other person without the
prior consent and concurrence of the usufructuary. Thus the usufructuary interest
was potentially perpetual.
• So that apart from the statutory powers for expropriation or acquisition as provided
in the State Lands Act, 1962 (Act 125), as amended by the State Lands Act, 1962
(Amendment) Decree, 1968 (NLCD 234), the interest of the usufructuary could be
determined only by his consent, his abandonment or upon failure of his successors.

In my view, there was no legal justification for the trial judge’s holding that the plaintiff’s
land reverted,on its release, to the co-defendant as the allodial owner. The plaintiff, as a
usufructuary owner, cannot be ousted from the land by the co-defendant in an arbitrary
manner. Some of the cardinal incidents of the usufructuary interest are that the
usufructuary has exclusive possession and enjoyment of his portion of land, and he cannot
capriciously be divested of this interest by the stool; neither can the stool alienate that
portion of land to any other person without the prior consent and concurrence of the
usufructuary.

III INCIDENTS

48 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

A Right of Possession

1. Mansu v Abboye per Abban JA

2. Robertson v Nii Akramah II per Apaloo JA

The plaintiff’s family, a subject of Asere stool, instituted four separate suits against the
Asere stool and three other persons for a declaration that it was the rightful entity to make
alienations of the Mukose lands and asked that the defendants be enjoined from making
similar alienations in the future, damages for trespass, recovery of such portions of lands
that had been alienated by the defendants and an injunction against such future acts.
The other three persons who were independently sued relied on the title of the Asere stool
and as a result all the four suits were consolidated and heard together.
The plaintiff’s family based its claim on the decision of the Privy Council in Kotei v. Asere
The Privy Council held that although the Asere stool had paramount title to the Mukose
lands, the plaintiff had a determinable or usufructuary estate in the land and that it was the
proper entity to alienate the land or portions of it.

• Any grant which the stool purported to make either to a subject or to a stranger
could not affect the title of the subject in possession.
The purchaser upon such alienation could not obtain possession and he and
his grantors committed trespass, if they entered upon the land in pursuance of the
alleged grant.
It is necessary to pose the question what is the resultant position if an alienation is made
not by the owner of the determinable title but by the holder of paramount title. On this,
Ollennu provides a self-evident answer. He says at p. 56 of his book, Customary Land
Law in Ghana:
“Having regard to the very superior nature of the determinable title, customary law
prohibits the absolute owner from alienating that land, or dealing with it in any way
without the prior consent of the subject-owner. Any grant which the stool (or the head of
family) purports to make, either to a subject or to a stranger, cannot affect the title of a
subject in possession. The purchaser upon such alienation cannot obtain possession, and
he and his grantors commit trespass if they enter upon the land for the purpose, or in
pursuance, of the alleged grant.”

B Use and Enjoyment

Woodman

49 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Another important incident of the determinable title is the right to palm and cola nut and other
economic trees of the land. In all parts of Ghana where the oil palm tree and other species of palm
grow, it is the owner of the determinable title in land, and he alone who is vested with the right to
harvest the fruits, to fell the palm trees or to tap wine from them. Neither the owner of the absolute
title nor the owner of the sub-absolute title can go upon land to harvest cola nuts, palm wine or
fell palm trees for palm wine. They may request the owner of the determinable title to supply so
many pots of palm wine or a quantity of palm nuts or cola nuts as customary services, but they are
not permitted by custom to go upon land in possession of a subject to take any of these things.

Asante
It need hardly be stressed that the usufructury is entitled to income of the land. This may take the
form of prescribed proportion of agricultural produce under an abunu or abusa tenancy, or rent
accruing form a lease, or the consideration for the grant of license or the ―brute product‖ of the
land arising without the intervention of human labour such as palm-nuts, cola nuts and timber.

1. Mansu v Abboye per Abban JA

C Right of Alienation subject to existing law

1. Amodu Tijani v Secretary, Southern Nigeria per Lord Haldane

A very usual form of native title is that of a usufructurary right, which is mere qualification
of or burden on the radical or final title of the sovereign (stool) is a pure legal estate, to
which beneficial rights may or may not be attached. But this is qualified by a right of
beneficial user, which may not assume definite forms analogous estate…

2. Thompson v Mensah per Ollennu J

Plaintiff sought possession and declaration of title to land at Kokomlemle.

His grant was derived from the Korle We alone contrary to the decision in Golightly v
Ashirifi where the court held that the Ga, Gbese stools as well as the family in possession
must consent to the grant as well.
Defendant of the Atupai family had the usufructury interest in the disputed land after
obtaining a grant from the Kotei family

• Plaintiff did not have title since the requirement in the Kokomlemle Consolidated
Cases based on customary law was not met.
• The usufructuary interest holder does not need the allodial title holder’s consent to
alienate his land provided due recognition is given to the allodial title.

50 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

It may be argued that when a subject obtains the express consent of the stool to occupy
stool land, the stool can attach conditions to such occupation, and one of such conditions
may be a prohibition against alienation of the usufructuary title without the previous
consent and concurrence of the stool.
In my opinion such a condition will be void and enforceable since it will be violation of
the subject's inherent right to occupy stool land without any burden except the recognition
of the title of the stool which carries with its certain customary services.

3. Mansu v Abboye per Abban JA

I have to emphasize that it is only where the acquisition is made in strict compliance with
the provisions of the said Act that the acquisition can determine the rights of the
usufructuary owner in the land. That is, the acquisition properly made will deprive him of
his beneficial enjoyment as well as his possessory rights in that particular land.

D Right to an Action in Trespass

1. Awuah v Adututu per Abban JSC

Plaintiff successfully sued the Akwaboa stool.

2. Nunekpeku v Ametepe per Prempeh J

The defendant occupied a portion of Bawe land, belonging to the Agbeve family of which
he was a member.
In collaboration with one Akpalu, a junior member of the Agbeve family, the defendant
alienated a portion of the said land to a stranger.
Whereupon the plaintiffs, being the head and principal members of the Agbeve family,
brought this action against the defendant to claim from him the portion he held, and to eject
him altogether from the Bawe land, on the grounds that (a) he was not a member of the
Agbeve family, and therefore he was a mere licensee, and (b) by dealing with a portion of
the land without reference to the family, he had rendered his holding liable to forfeiture

• as a member of the family the defendant is entitled to occupy any vacant portion of
the family land. Once he occupied it, he acquired a limited right to it and cannot be
ejected therefrom at the will of individual members of the family.
• Therefore, he had a right to an action in trespass against the family.
Gyan

51 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Nunekpeku v. Ametepe (1961) 1 GLR 30 is the authority for the proposition that such rights
are exercisable even against other members of family.

E Heritability

Bentsi-Enchill
It is well settled in customary law that the usufructuary interest is heritable. This means that in the
event of the death of the usufructuary holder, his interest will devolve on his next- of- kin.

1. Makata v Ahorli per Coussey (subject)

The plaintiff worked for his uncle, Havim, until the death of the latter, which occurred
more than fifty years before the date of the action.
Thereupon the plaintiff, at the request of Havim's family, paid part of the customary funeral
expenses of the deceased and assumed possession of the family land which had been in the
occupation of the deceased. Some thirty years later the plaintiff left the vicinity leaving
the land in the charge of a caretaker.
On his return, after five years, he found that the fourth defendant, Amekufe Siameh, who
was a son of a brother of Havim, had dispossessed the caretaker and put his,
Siameh's, three maternal nephews (the Defendants) into possession of the land.

• There is no rigid law of inheritance in Native custom.

If the family decided, as the evidence indicates they did, in justice to the plaintiff
who had helped the deceased and probably worked the farms with him, that a more
distant relative was more deserving and should inherit from him, there is nothing
strange or improper about that-it was within the decision of the family council, of
which, on the evidence, the deceased's brother, Siameh Boshua, was a member.
I would qualify the declaration of title claimed by the plaintiff by the limitation that he is
entitled to possession of the farms described, during his lifetime only, as the plaintiff's first
witness, Kuwornu Ametepey, states. Upon his death the plaintiff's sons or family will have
no inherent right to inherit. It will be for the council of the family of Boshua to decide who
next inherits the properties.
Editorial note
A distinction is drawn between family property and personally acquired property in native
custom, but a presumption in favour of the former exists until it is rebutted. Family property
vests in the head of the family (extended) automatically upon the death of the possessor
and remains there until a new appointment of a possessor is made by the elders of the
family…

52 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…personally acquired property which is not disposed of by testamentary disposition

becomes family property on the death of its owner, but the family group for this purpose
may be a smaller unit (nuclear – therefore it passes on to his children) than the family
group which has power of disposal over property that always has been family property.

2. Mansah v Asamoah per Archer JA (stranger)

Land only becomes abandoned if either the stranger died intestate without successor to
take or if the land was effectively and voluntarily abandoned without an intention on the
part of the grantee returning to it. The mere absence or death simpliciter of the stranger
was not enough to constitute abandonment; there must be an intention to abandon and the
fact of abandonment must co-exist with such intention

F Right to Compensation

1. Owusu v Manche of Labadi per Kingdon CJ

It is denied that they are entitled to receive the compensation paid, but admitted that they
are entitled to receive a share of it upon its distribution in accordance with native law and
custom by the Manche who, it is contended, is the proper authority to receive it on behalf
of the Labadi people.

IV LOSS

A Abandonment

1. Mansah v Asamoah per Archer JA

2. Mansu v Abboye per Abban JA

It can therefore be seen that the usufructuary interest is potentially perpetual. So that apart
from the statutory powers for expropriation or acquisition as provided in Act 125, as
amended by NLCD 234, the interest of the usufructuary can be determined only by his
consent, his abandonment or upon failure of his successors.

53 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

B Failure of Successors

1. Mansu v Abboye per Abban JA

C Operation of Law

1. Mansu v Abboye per Abban JA

D Consent of usufructury owner

1. Mansu v Abboye per Abban JA

E Denial of Grantor / Forfeiture

1. Total Oil Products Ltd v Obeng per Ollennu J

The only way in which a subject can be said to have denied the title of his stool to stool
land in his occupation is where he claims that the land he occupies belongs to a stool other
than the stool to which he is a subject, and that he holds the land as grantee of that other
stool. The second defendant has never made any such allegation.

CUSTOMARY TENANCIES AND LICENSES

Customary Tenancy

Section 7 of Act 1036

A customary tenancy

54 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(a) Is 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 a person
who holds a customary law freehold or usufructuary interest enters into an agreement with
another person to grant that other person an interest in land upon agreed terms and
conditions; and
(c) May involve the payment of rent, the sharing of the produce of a farm or the physical
partition or severance of the farm or land

Gyan
These are interests that can be created by the holders of the allodial title or usufructuary interests.
Customary tenancies vary widely from seasonal hiring and renting of land to the sharing of farm
produce and even farmland itself. Systems for delegating use rights in land (derived rights for
short) have been defined as “all temporary rights obtained by delegation from holders of rights of
first occupancy and which include both traditional forms of open-ended loans and more
monetarized arrangements like rental or share cropping”. They are used to describe “procedures
whereby someone who controls rights of access and use over a plot of farmland, in his own name
or that of his close family group, grants such rights of use to a third party, on a non-permanent
basis and in accordance with specific rules”. Institutional arrangements of derived rights include
leasing, tenancy, share contracts and loans and a whole host of similar arrangements.

Woodman
The terms are not necessarily set by a process of prior bargaining between legal equals. There may
be some social standards determining the appropriate terms.

Mensah v. Blow per Lassey J.A

This kind of tenure of holding….is the result of a contract or an implied agreement. It has certain
important characteristic features about it. These are:
(1) The owner (or lessor as he is sometime called) of the land must be willing to allow occupation
and user of land…, provided the licensee does not set up an adverse claim to his title or right to
possession.
(2) Sometimes the nature of the grant of occupational tenancy carries with it the obligation on the
part of the licensee to pay tribute or tolls or provide some customary services as an act of
acknowledgment of the lessor‘s paramount or superior title to the land. In some cases where the
products of the land on which tribute is levied are what may be called natural or food products,
the question for the tribute is determined by agreement before the licensee goes on to the land; on
the other hand, if it is production of cash crops like cocoa or timber, it is the usual practice to

55 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

determine the quantum of the tribute by agreement after permission to occupy the land has been
granted…
(3) The circumstances of the long occupation by the licensee are such that it is [often] difficult to
determine whether the customary tribute has been provided or demanded….
(4)… The licensee only has a right to use the land equally with the grantors, and it is understood
according to customary practice, that throughout the period of occupation the licensee at custom
has a present right of possession and user over any portion of the grantor‘s land where the right
of the grantor is not ousted. In other words, title and right to enjoy the land of the latter remains
unimpaired, and the granting of the license or permission to occupy the grantor‘s land without
paying tribute or tolls is not to be regarded as surrender by the owner or lessor of all claims or
right in the land…

Woodman
The terms “license” and “tenancy” are used here without drawing a strict distinction between them.
Generally, the sources use the term “tenancy” of the interest held on terms set predominantly by
standard categories, while the term “license” is used of the interest held on expressly negotiated
terms. However, given the negotiability of all terms today, the categories merge

See Gyan for further info

MANAGEMENT OF STOOL OR SKIN PROPERTY

Brobbey
A large proportion of litigation on chiefs and chieftaincy revolves around stool or skin property

I RELEVANT STATUTORY AND CONSTITUTIONAL (1992) PROVISIONS

Article 295(1)
"stool" includes a skin, and the person or body of persons having control over skin land;

56 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

"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

Section 281 of Act 1036

“stool” includes a skin as well as any person or body of persons having control over skin or
community land as a representative of the particular community
“stool land” includes a land or interest in, or right over, any land controlled by a stool or skin or
the head of a particular community, for the benefit of the subjects of that stool, skin or members
of that community.

Article 36(8)
The State shall recognised that ownership and possession of land carry a social obligation to serve
the larger community and, in particular, the State shall recognised that the managers of public,
stool, skin and family lands are fiduciaries charged with the obligation to discharge their functions
for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned and are
accountable as fiduciaries in this regard.

Section 13 of Act 1036

(1) Pursuant to clause (8) of article 36 of the Constitution, stool or skin, or family land shall be
managed in accordance with this Part.
(2) A chief, tendana, clan head, family head or any other authority in charge of the management
of stool or skin, or clan or family land, is a fiduciary charged with the obligation to discharge the
management function for the benefit of the stool or skin, or clan or family concerned and is
accountable as a fiduciary. NB per 13(4) a contravention of this clause – between fine of 5000-
10000 penalty units and imprisonment term of 5-10years
(3) A chief, tendana, clan head, family head or any other authority in charge of the management
of stool or skin, or clan or family or group land shall be transparent, open, fair and impartial in
making decisions affecting the specified land.
(6)…a person shall not bring an action under section 2 of the Head of Family Accountability Act,
1985 (PNDCL 114) against the occupant of a stool or a skin, or against a tendana unless that
person
(a) has first exhausted the established customary procedure for making the occupant of the
stool or the skin or the tendana render account or maintain records of the stool , skin or
clan lands, where a procedure exists

57 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(b) is qualified under the relevant customary law to bring an action against the occupant;
or
(c) is a subject of the stool or skin or member of a clan of which the chief or tendana or
clan head is the administrator of the stool or skin land and has been granted leave by a
court upon proof that the person qualified to institute an action failed to take action within
30 days after being informed of the need to take action

Article 266(1)(2)
(1) No interest in, or right over, any land in Ghana shall be created which vests in a person who
is not a citizen of Ghana a freehold interest in any land in Ghana.
(2) An agreement, deed or conveyance of whatever nature, which seeks, contrary to clause (1) of
this article, to confer on a person who is not a citizen of Ghana any freehold interest in, or rights
over, any land is void

Article 267(1)(3)(5)
(1) All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the
subjects of the stool in accordance with customary law and usage.
(3) There shall be no disposition or development of any stool land unless the Regional Lands
Commission of the region in which the land is situated has certified that the disposition or
development is consistent with the development plan drawn up or approved by the planning
authority for the area concerned.
(5) Subject to the provisions of this Constitution, no interest in, or right over, any stool land in
Ghana shall be created which vests in any person or body of persons a freehold interest howsoever
described.

1. The Republic v Regional Lands Officer, Ho; Ex Parte Kludze per Acquah JA

Applicant was a member of the Amega Edze Family of Gbi-Kpeme, Hohoe.

He was not allowed to register his document as freehold but rather leasehold based on
Article 267(5) since Article 36(8) seemed to treat stool and family land as identical

• The definition of stool land in Article 295(1) doesn’t include family land therefore
you can’t apply Article 267(5)
• Article 36(8) points to role as fiduciary but doesn’t curtail interests of beneficiaries
in their respective lands.

58 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

All what article 36(8) of the Constitution, 1992 does is to acknowledge and point out that
all those who are in charge of public, stool, skin and family lands are trustees for the
beneficiaries of such lands, and that such managers are accountable to the beneficiaries.
Nowhere in the said clause is the State given any role of certification, revenue collection
and monitoring. Neither does the clause curtail the interest of the beneficiaries of these
lands in their respective lands
Whenever the framers of the Constitution, 1992 desire to impose restrictions on the
disposition, development or interest in any type of land, this is done in clear and
unambiguous words. Thus article 267 of the Constitution, 1992 dealing with stool and skin
lands, provide, inter alia:
“267. (3) …
… (5) …
There are no similar provisions in the Constitution, 1992 affecting family lands. Neither
does the definition of stool land in article 295(1) of the Constitution, 1992 cover family
lands to warrant the extension of the restrictions in article 267 to family lands. What
process of reasoning therefore led the executive secretary to direct the processing of family
lands for concurrence, beats my imagination.

Article 277
In this Chapter unless the context otherwise requires, "chief" means a person, who, hailing from
the appropriate family and lineage, has been validly nominated, elected or selected and enstooled,
enskinned or installed as a chief or queen mother in accordance with the relevant customary law
and usage.

1. Korblah II v Odartei II per Anin JA

The Plaintiff was enstooled as sub-chief of Nsakina under the James Town Alata Stool
Defendant was enstooled as senior sub-chief of Nsakina under the Sempe stool.
Subsequently, the Regional Administrative Officer for Greater Accra wrote a letter to the
Plaintiff prohibiting him from interfering in the affairs of Nsakina, i.e. the selling of land
and the performance of any duties as a chief of the area.
The Plaintiff argued that he was entitled to exercise the functions of a chief including
management of land since he had received government recognition pursuant to construe
Section 48 (1) of the Chieftaincy Act, 1971 (Act 370).

• The management of land was under the customary duties of a chief and not a
statutory one.
Thus, lack of recognition of chiefs does not preclude chiefs from managing land.

59 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The correct legal position is that this function falls within the customary duties of a chief.
The chief is, virtue official the trustee and custodian of all stool properties, including realty,
attaching to the stool and entrusted to him upon installation. As Mr. Justice Ollennu
shrewdly states in his invaluable Essay on “Chieftaincy under the law” at page 44 of the
Essays in Ghanaian Law —” Management of stool lands has been one of the aboriginal
functions of a Stool…
The plaintiff-respondent’s competence to exercise that customary function depends
primarily on whether he has as a matter of fact been nominated, elected and installed a
chief in accordance with customary law.

II ALIENATION OR ALLOCATION

Ollennu
land is vested in a community which like to brook, goes on forever, while men come and men
go…title… remains in a continual flow of people….

Dr. Danquah
Tradition has it that absolute alienation of land was until recent times not generally practiced by
the Akan people. Alienation of transfer of land as between family and family, tribe and tribe, or
even between state and state, was certainly common, but sale of land for private or non-communal
purposes was foreign to people…
An absolute sale of land by an Akan was therefore not simply a question of alienating realty;
notoriously, it was a case to sell a spiritual heritage for a mess of pottage, a veritable betrayal of
ancestral trust, an undoing of the hope of posterity.

1. Agbloe v Sappor per Harragin CJ

The issue was whether a grant of land could be made without the consent of the Head of
the Tetteh-Ga family.

• Such a grant was void ab initio

In the judgment of the Privy Council in Kuma v. Kuma (2) at page 8, their Lordships quote
with approval a portion of the judgment of Rayner, C.J., which reads as follows:—

60 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

“All the members of the community, village or family have an equal right to the land, but
in every case the Chief or Headman of the community or village, or head of the family, has
charge of the land, and in the loose mode of speech is sometimes called the owner. He is
to some extend in the position of a trustee, and as such holds the land for the use of the
community or family. He had control of it, and any member who wants a piece of it to
cultivate or build a house upon, goes to him for it. But the land so give still remains the
property of the community or family. He cannot make any important disposition of the land
without consulting the elders of the community or family, and their consent must in all
cases be given before a grant can be made to a stranger.”
We, with greatest respect, entirely agree with the statement in the above quotation that the
head of the family may be considered to be in an analogous position to a trustee from
which it follows that it is quite impossible for land to be legally transferred and legal title
given without his consent. The alleged deed Exhibit “B” was therefore void ab initio,
and the respondents derive no right of absolute ownership by virtue thereof.

2. Allotey v Abrahams per Ollennu J

The case dealt with the role of the Mantse of Sempe and the principal headmen
(Asafoatsemei)

According to native custom it is only the occupant of the stool or the head of the family
who is entitled, with the consent and concurrence of the principal elders of the stool or
family, to alienate stool or family land. There can be no valid disposal of stool or family
land without the participation of the occupant of the stool or the head of the family; but
there can be a valid alienation of stool or family land if the alienation was made by the
occupant of the stool or the head of the family with the consent and concurrence of some,
but not necessarily all, of the principal elders of the stool or family. The occupant of the
stool or the head of the family is an indispensable figure in dealing with stool or family
land.

Therefore, the law is that a deed of conveyance of stool or family land executed by the
occupant of the stool or the head of the family and a linguist and/or other principal elders
of the stool or family, purporting to be with the necessary consent, is valid until it is proved
that such consent and concurrence were not in fact obtained. In other words, such a
conveyance is voidable, not void, and can only be set aside at the instance of a stool or
family if the principal members of the stool or family act timeously.

3. Amankwanor v Asare per Siriboe JSC

The defendant trespassed onto the plaintiff’s portion and the plaintiff sued him

61 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The defendant tendered exhibit A which he alleged was given him by the plaintiff ‘s first
witness, an illiterate Odikro of Krodua evidencing the sale of the farm to his deceased
father.
He called neither the letter writer who prepared the document nor the two witnesses whose
names appeared on the document.

• Exhibit A was not binding on the stool because at customary law a document
purporting to convey stool land is not binding on the stool unless the elders or at all
events the linguist is a party thereto
Another significant point the learned judge seemed to have overlooked when considering
the relevancy of exhibit A, is that not only was there no attestation clause to it, but it is also
quite clear on the face of the document that no elder or linguist of the Krodua stool joined
in executing it, even though exhibit A purported to convey part of that stool’s land to the
defendant’s late father. In such a case, it is difficult to see how the defendant could bind
the odikro who represents the stool with that document, because by native law and custom
such a document cannot bind the stool, unless the elders or at all events the linguist of that
stool had been a party thereto:

III LITIGATION

Order 4 Rule 9 of the High Court Civil Procedure Rules, 2004 (CI 47)
Representation of stool and families
(1) The occupant of a stool or skin or, where the stool or skin is vacant, the regent or caretaker of
that stool or skin may sue and be sued on behalf of or as representing the stool or skin.
(2) The head of a family in accordance with customary law may sue and be sued on behalf of or
as representing the family.
(3) If for any good reason the head of a family is unable to act or if the head of a family refuses or
fails to take action to protect the interest of the family any member of the family may subject to
this rule sue on behalf of the family.

1. Kwan v Nyieni per Van Lare Ag CJ

Kojo Kwan and Osei Kojo (head of family) were members of the same family.
There was an attempt to remove Osei Kojo as head of family, the reason being that he was
squandering the family property.
The arbitrators who were to decide on removal were not satisfied that he be removed.

62 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The family who were also not satisfied with the decision appointed Kojo Kwan as head.
There were, as it were, two heads of family.
Osei Kojo together with one female member of the family, mortgaged four of the six farms
to Kwesi Nyieni.
Kojo Kwan, acting as head of the family, instituted an action in the Kumasi West District
Court claiming inter alia:
(a) a declaration that the four farms were the property of his family.
(b) a declaration that the mortgage of the farms by Osei Kojo was without the knowledge
and consent of the family

• a deed of conveyance, mortgage or lease of family land which is on the face of it

executed by the head and another member, upon proof timeously made that its
execution was without the knowledge and consent of all the principal members of
the family, is null and void, and passes no title
“(1) as a general rule the head of a family, as representative of the family, is the proper
person to institute a suit for recovery of family land;
(2) to this general rule there are exceptions in certain special circumstances, such as:
(i) 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
(ii) where, owing to a division in the family, the head and some of the principal members
will not take any steps; or
(iii) 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.”

2. Gyamfi v Owusu per Crabbe JSC

The two appellants A and B were also the Omanhene and Osiakwahene (a sub-chief)
respectively of the Kumawu Traditional Area.
On the compulsory acquisition by the government of the Digya-Kogyae lands for use as a
national park and a game reserve, A in collusion with B and two other sub-chiefs and with
the aid of other persons, fraudulently claimed and received for themselves the
compensation paid out by the government in respect of the acquisition even though they
were not entitled to them, since the Digya-Kogyae lands belonged to the Kumawu stool.
Consequently, the respondents, all of whom were subjects of the Kumawu stool, for

63 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

themselves and on behalf of the Oman of Kumawu, instituted an action for the recovery of
the compensation received by the fraudulent claimants.
Counsel for each of the two appellants, inter alia, raised the issue of locus standi.

• Since under Section 17 of the Administration of Lands Act, 1962 (Act 123), the
Minister is the proper person to collect the revenue, it is he who must sue and the
exceptions in Kwan v Nyieni would not be extended to stool lands.
• The settled law was that an occupant of a stool, i.e. a chief could not be called upon
by his subjects to account during his reign as a chief.
In view of this, I do not accede to the request that this court extend the principle of Kwan
v. Nyieni to chiefs. I would hold therefore that under the statute law as it is now, the
minister is the proper person to maintain the action for the recovery of the moneys paid to
the co-defendant and his vassals. On that ground the appeal succeeds.
Archer JA
The settled law in this country is that an occupant of a stool, i.e. a chief, cannot be called
upon by his subjects to account during his reign as a chief. The advent of the Anglo-Saxon
system of jurisprudence into this country did not affect this principle of law. Since then no
court of law has entertained legal proceedings claiming an account from a reigning chief.
The reasons for this doctrine are founded on ancient customary concepts and principles
which cannot be down-trodden by ex-cathedra statements from the courts, however
obnoxious and obsolete these concepts may now appear in the light of modern trends in
thinking and changes in social strata. The courts have always respected the doctrine in its
pristine purity.
NB: This case went to the Supreme Court as Owusu v Agyei

3. Owusu v Agyei per Francois JSC

The appellants were competent to bring the action they did because:
• The principle in Kwan v Nyieni [1959] GLR 67, CA providing exceptions to the
general rule that the head of family was the proper person to institute suits for
recovery of family land was not confined to land.
Accordingly, the exceptions to the general rule in Kwan v Nyieni (supra) applied
to clothe them with capacity.
• Section 17 of Act 123 did not provide that the Minister responsible for Lands (or
the Lands Commission) was the sole vehicle for pursuing revenue claims in respect
of stool lands. It was obvious that since there were often contested claims between
various stools, it would be impossible for the minister or the Lands Commission to
dispassionately represent all the various stools.

64 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

In any case, section 17 sought to regulate and promote the orderly management of
stool revenue but did not encroach on the inalienable rights of stools to their title to
land.
• The fear of embarrassment to a chief should not be the ground for a chief not to
account when a genuine demand for an account is made by his subjects.
The principle is not confined to land. It is applied where the assets of a family are being
dissipated and the inactivity of the head of family has provoked an extreme exigency calling
for unusual measures to redress the wrong. Nor is it confined to monetary assets. A dignity
or status that is being sullied to the detriment of the family as a whole, because those
entrusted with authority to curb the wrong lack the enthusiasm to do so, may be
appropriately dealt with by those family members more conscious of the evil and
possessing the necessary will to abate it…
The cases seem to illustrate the commonsense view of the customary law. Where those
clothed with authority to protect family interests fail to do so, and as it were, form an
unholy alliance or conspiracy to damage the interests of the family, an urgent situation
must be deemed to have arisen allowing for a relaxation of rules and permitting more
responsible members of the family to protect the endangered family interests. I find in this
appeal that the three exceptions to the Kwan v Nyieni (supra) rule may fruitfully be pressed
into service to clothe the plaintiffs with capacity.
Wuaku JSC
My question is, which is better, to ask the occupant of a stool to account civilly and
honorably or to be reported to the police by the very people whom the chief had refused to
account to, and thereby face a criminal trial with its possible consequences. The fear of
embarrassment to a chief should not be the ground for a chief not to account when a
genuine demand for an account is made by his subjects.
It was Mensah Sarbah who enunciated the principle of immunity of head of family from
accountability which was later extended to cover occupants of stools. Now that by the Head
of Family (Accountability) Law, 1985 (PNDCL 114) a head of family is made accountable
to his family, I would recommend a similar law be made by the legislature to cover
occupants of stools or chiefs. It is for those several reasons given above that I concur in
allowing the appeal.

4. Ofuman Stool v. Nchiraa and Branam Stools per WACA

It was a case between three stools.

The occupant of the Ofuman stool instituted an action against the Nchiraa stool and the
Branam stool, and the occupant of each of those stools was served with the writ of
summons.

65 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

At the trial of the suit, each of the three stools was represented by a person, not a traditional
elder, appointed by the occupant of the stool under a power of attorney.

• For the purposes of litigation, only persons belonging to a limited class of

traditional elders of the stool including a linguist, who are natural representatives
of a stool, may be appointed by the stool to represent the stool in litigation, and that
the class of such office holders of the stool will not be extended save where
particular local custom permitting such extension is proved.
• Since the attorneys so appointed by the three stools were not members of that
permitted class, and as no local custom was proved to vary the rule, they were not
competent to represent the stools

5. Bukuruwa Stool v Kumawu Stool per Ollennu J

The case concerned title to a piece of land at Kwahu.

The defendant pleaded, inter alia, that the plaintiff is estopped per rem judicata by virtue
of a judgment of the Land Court, Kumasi, dated the 23rd February, 1959, in the case Nana
Otuo Achampong I, Kumawuhene, for and on behalf of the Kumawu stool v. Nana Yaa
Sakaa, Bukuruwahema for and on behalf of Bukuruwa stool, and two others.
The said suit was for a declaration of title to the same piece of land as in the present suit.
It was shown however that at the time the 1959 suit was instituted the Bukuruwa stool was
vacant; that although the queen-mother was served with all the process in that suit she was
destooled before the suit could be heard; the suit was in the circumstances undefended; and
that a new Bukuruwa chief was not enstooled until the 7th September, 1959.

• The mere fact that the person sued is an elder of the stool is not sufficient to prove
that he is authorised to represent the stool in a particular litigation;
• There being no evidence that Nana Yaa Sakaa was expressly authorised to represent
the Bukuruwa stool in the 1959 suit the judgment of the 23rd February, 1959, is not
binding upon the stool. The plea of res judicata therefore fails.
The ratio decidendi in those two cases Ofuman Stool v. Nchiraa and Branam Stools, and
Ofori Atta II and Ors. v. Boateng is, that where the occupant of the stool has sued on behalf
of the stool or has been sued on behalf of the stool and served with the writ of summons,
the stool, i.e. the council of the stool in any such case can appoint an elder to represent the
stool at the trial of the suit, but the person they so appoint must be a traditional elder
belonging to the limited class of traditional representatives…
It appears from the writ of summons, the pleadings, and the motion papers and the
judgment of the former suit, that the Kumawu stool never even alleged that Nana Yaa Sakaa
was a regent or caretaker of the Bukuruwa stool, and of course, they made no effort to
prove that she was such regent or caretaker, or that not being a regent, or caretaker, she
had been specially authorised to defend the suit on behalf of the Bukuruwa stool. The mere

66 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

fact that an elder of a stool belongs to the class of traditional elders who could be appointed
to represent the stool does not mean that such an elder has a general authority to sue or
be sued on behalf of the stool, and it does not justify a plaintiff to choose that elder and sue
him for and on behalf of the stool. It is the stool who should elect, appoint and authorise
a particular elder of the class of natural representatives to represent the stool when the
stool wants to sue or when the stool is properly sued and served with a writ of summons.
It is not for an outsider who wishes to litigate with the stool to decide who should represent
the stool.

MANAGEMENT OF FAMILY PROPERTY

Gyan
The meaning of the word family necessarily depends on the field of law in which the word is used;
the purpose intended to be accomplished by its use, and the facts and circumstances of each case.

Kludze
The word family is one which is difficult, if not impossible to define precisely. In one sense it means
all blood relations who are descended from a common ancestor; in another, it means all members
of a household, including husband and wife, children, servants and even lodgers. But for the
present purpose both these definitions are far too wide…

Section 13 of Act 1036

(1) Pursuant to clause (8) of article 36 of the Constitution, stool or skin, or family land shall be
managed in accordance with this Part.
(2) A chief, tendana, clan head, family head or any other authority in charge of the management
of stool or skin, or clan or family land, is a fiduciary charged with the obligation to discharge the
management function for the benefit of the stool or skin, or clan or family concerned and is
accountable as a fiduciary. NB per 13(4) a contravention of this clause – between fine of 5000-
10000 penalty units and imprisonment term of 5-10years

67 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(3) A chief, tendana, clan head, family head or any other authority in charge of the management
of stool or skin, or clan or family or group land shall be transparent, open, fair and impartial in
making decisions affecting the specified land.
(6)…a person shall not bring an action under section 2 of the Head of Family Accountability Act,
1985 (PNDCL 114) against the occupant of a stool or a skin, or against a tendana unless that
person
(a) has first exhausted the established customary procedure for making the occupant of the
stool or the skin or the tendana render account or maintain records of the stool , skin or
clan lands, where a procedure exists
(b) is qualified under the relevant customary law to bring an action against the occupant;
or
(c) is a subject of the stool or skin or member of a clan of which the chief or tendana or clan head
is the administrator of the stool or skin land and has been granted leave by a court upon proof
that the person qualified to institute an action failed to take action within 30 days after being
informed of the need to take action

I INCIDENTS OF FAMILY MEMBERSHIP

Where the family holds the allodial title, the members’ rights are similar to the interest of a
subject in stool lands. Refer back to the case of Oblee v. Armah, supra cited. Member
acquires the customary freehold upon his occupation and use.

1. Heyman v Attipoe per Ollennu J

Again, by native custom the head of the family is the proper person to have charge of and
control the family land for and on behalf of the family. A member of the family cannot
maintain an action against him for recovery of general family land in the possession of the
head. The only instance in which he can maintain an action for recovery of possession
against the head is when the head wrongfully takes possession of a portion of the family
land which the individual member or a branch of the family has reduced, by one of the
customary methods, into his possession, i.e., land over which the individual member or
branch of the family has established a usufructuary title.

A member of the family mayalso exercise the rights of possession against the head of family.

1. Heyman v Attipoe per Ollennu J

68 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Rights are exercisable even against other members of family.

1. Nunekpeku v Ametepe per Prempeh J

Self-acquired property does not become family property because of family support

1. Larbi v Cato per Granville-Sharp JA

A. O. Larbi (deceased) built House No. C276/1, Nsawam Road on self-acquired land.
By deed of gift, he conveyed the property to his son A. O. Cato-Larbi and confirmed the
deed in his will.
The brother of the deceased brought an action in which he claimed inter alia a declaration
that the said property was family property (and therefore property of which the deceased
was not entitled to dispose).
The defendants were the brother-in-law and the widow of the deceased.
The basis of the plaintiff’s claim was that the deceased had built the premises with the
financial assistance of various members of the family.

• the customary law of Ghana does not impose upon sons of the family who have
received a professional education with the support of family funds an obligation of
repayment, nor do the earnings of such sons take upon themselves the character of
profits earned by the use of family funds.
It is material to point out that the plaintiff himself said that sons of the family, assisted by
the family in the way in which the deceased was, were under no obligation to repay the
sums expended upon them. This statement is in full accord with our understanding of
custom in Ghana. Support so extended is by way of gift for the advancement of the younger
generation, and, while it places upon them certain recognised moral obligations towards
the family, it does not stamp with the mark of the family everything that they afterwards
acquire by their own efforts, whether as lawyers, doctors, or merchants, or by activity in
other fields.
If the contrary were the correct view, there is hardly a person of distinction in the country
who could claim to possess anything that he could call his own, and much of the body of
customary law on the disposal and inheritance of self-acquired property would be cast
away, which is the reductio ad absurdum of the whole argument.

69 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Where member acquires property with insignificant contribution from the family the
character of the property does not change.

1. Codjoe v Kwatchey per Kingdon CJ

The plaintiff as Head of the Family of the late Awo Afieye of Accra claims for a declaration
of his title to all " that piece or parcel of land' with buildings thereon situate " at Nsawam
in the Akwapim District
The trial Judge found as a fact that Kwatchey (deceased) did help himself to a gate and
some boards and corrugated iron sheets after the demolition of the house at Accra while
Lanchoe (his sister) erected two small swish rooms with corrugated iron roofs on the
Nsawam property.

• Non-substantial contributions by family members to self-acquired property by one

member did not make the property family property
" Surely there must be some limit to such a principle of " native law if this Court is to
enforce its observance-see " section 19 of the Supreme Court Ordinance-and I venture " to
suggest as such a limit, the proviso that the family's' "contribution, whether in money or
in kind, must be a " substantial contribution before this Court will hold that the " whole
of the land and buildings in question in any case " have been thereby impressed with the
character of family "property. What will amount to a substantial contribution " must, of
course, always be a question of fact depending on " the particular circumstances of every
case."
Webber CT
Will this Court hold that on these two findings above enumerated, namely, that the taking
of the gate, some boards and iron sheets and the fact of one member of the family being
allowed to erect two rooms upon vacant space situated in an established compound self-
acquired by the deceased Kwatchey, the whole of the property is stamped with the
character of family property? I cannot hold that this is the native law and custom of this
country. In "Redwar' s Comments" according to native law there is a presumption in favour
of all land being held jointly by a j family or other community but this presumption can be
rebutted by evidence that it has been acquired by an individual of the family by his own
personal exertion without any assistance from the family or community of whom he is a
member and if the holder of land receives any assistance in money or kind from the
members of his family toward the erection of a house or the development of the land, the
land becomes at once stamped with the character of family land. Now what evidence on
the findings of the Judge is there of any assistance in money or kind? Does the removal by
a member of a family of a portion of the debris of demolished house stamp a property self-
acquired by that member as family property? I say that this is not the native law.

70 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Where a member builds a house on family land, he only has a life interest in the property
(his children can only stay subject to good behavior)

1. Amissah–Abadoo v Abadoo per Edward Wiredu J

During his lifetime, A. erected by his own individual effort and means, and with the consent
of his family, a dwelling-house on land which was in effective occupation by his family
and which was a portion of land with a building thereon, earlier conveyed by a deed of gift
(exhibit A) by A.'s father to his wife, i.e. the mother of A., his children by her and their
"heirs and assigns" with a direction in the deed that the property was to be enjoyed by the
donees as family property in accordance with "native law and custom.
By his will, A. devised the house and the plot of land to his wife and children.
On the death of A., the plaintiff, the brother of A., in his capacity as the customary
successor and head of the immediate matrilineal family of A., sued the widow for a
declaration that the house and the plot of land were the property of his matrilineal family.

• Since the land was family land, A only had a life interest and could not devise the
property by a will.
• Where the deceased lived in a family house with his wife and children, the widow
and the children had no interest save a right of occupation "subject to good
behavior."
The facts before me in this case however show that the family was in effective occupation
of the site on which the late lawyer Abadoo built. The plaintiff's evidence which I accept
shows there was in existence a well, and ground prepared for outdoor games which was in
use by members of the family and that one of the primary reasons why lawyer Abadoo was
requested by his parents to put up the disputed house was to protect the land by checking
the threat of erosion. Under those circumstances where the structures had to give way for
the construction of the disputed house, lawyer Abadoo who put up the house on that site
could not dispose of the house beyond his life. He had only a life interest in the building he
put up. He did not therefore in the absence of established evidence that a gift of that site
was made to him, [p.126] have any alienable interest in the building which he could
dispose of by will.
... where the deceased lived in a family house with his wife and children) the widow and
her children on the authorities have no well-recognised interest save a right of occupation.
Thus in Swapim v. Ackuwa (supra) it was held by Smith J. at pp. 192-193 that the successor:
"could ask the children to go out on any occasion for any reasonable grounds, and where
the interest of the family is at stake, or their right is disputed, or even merely to secure and
promote the interests of the family.”
The right of the successor as stated above is the limitation on the right of the widow and
her children to reside in such family house after the death of the father. This limitation is

71 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

what is summed up under the phrase "subject to good behavior." This phrase it is submitted
can be tacked appropriately to only a house originally family property and not the self-
acquired house of the deceased

Where a member improves or makes extensions to a family building, it does not alter the
character of the property

1. Kumah v Asante per Foster JA

The defendants claimed that the property was acquired by Atiemo who made a valid
customary gift thereof to his children including Kwapong Atiemo, the father of the
defendants.
The plaintiff testified that the disputed house was built by Yirenkyi, his mother’s uncle,
and that when Atiemo succeeded Yirenkyi upon his death in 1911, he added one room to
the disputed house before his death intestate.
The house and other properties inherited by Atiemo, being family properties, passed on to
Sabu, then to Asante and finally to the plaintiff.

• The family history which was passed on to the plaintiff by members of the family
and the facts he himself got to know from at least the age of 40 years were
admissible to prove the claim that the disputed house was family property.
• The disputed house having been found to be the property of the plaintiff’s family,
any extensions made to that building by Kwapong Atiemo did not alter its character
as family property.
In the instant case, house No S90 having been found by the trial judge to be the property
of the plaintiff’s family, any extensions made to that building by Kwapong Atiemo did not
alter its character as family property.

Where a member redeems family property which otherwise will be sold in execution of a
debt, the character does not change

1. Nwonama v Asiedu

Gyan

where family property is lost through sale or other attachment and a member repurchase
or redeem the property, it becomes family property unless members of the family were

72 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

specifically informed at the time of the repurchase or redemption, that the property would
not resume its former position as family property.

Where a member makes an extension to an existing family farm the character does not
change

1. Nkonnwa v Annafi per Ollennu J

The plaintiff, the Queen-mother of the Odau Division of Akyem Abuakwa and head of the
Aduana royal family of Otwereso and Osenase instituted this action for declaration of title
to a farm, recovery of possession and mesne profits.
She alleged that the original forest was cultivated by members of her family into a
farmstead and that her deceased uncle, Nana Obeng Akese developed the farmstead into
a cocoa farm during his occupancy of the Osenase stool.
The defendant, son to Nana Akese, and the present occupant of the stool claimed the farm
as stool property.

• The land was the property of the Aduana royal family even before Nana Obeng
Akese took possession of it.
… if an occupant of a stool develops property of his family, i.e. develops a foodstuff farm
into a cocoa farm, or improves an existing family house as distinct from farms or
buildings belonging to the stool, the property as improved does not change its legal
character as family property to become stool property.
Therefore, having already found that the land was a family farm or farmstead when it was
developed into a farm, even if the evidence has shown that its development was made by
Nana Akese alone while he was on the stool, I would be bound to hold that the improvement
made to it did not change its character from family property to that of stool property. In
my opinion it would work great injustice to the family, contrary to natural justice and good
conscience, to deprive the family of their ownership in such circumstances.

Where as a result of a social or family relationship, an individual provides assistance to

another person out of which properties are acquired, those properties do not become joint
property

1. Yoguo v Agyekum per Ollennu JSC

73 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiffs pleaded that the house situate at Yonso near Jamasi in Ashanti was built by
their father as his self-acquired property and that their father, by a gift inter vivo made in
accordance with customary law, transferred the ownership of it to them.
The defendants on the other hand pleaded that it was built by the two brothers, Kwadjo
Agyekum and Kwaku Agyekum, and that the same is family property.
Was the house in dispute built solely by Kwaku Agyekum or was it the joint effort of
Kwadjo and Kwaku Agyekum?
Was a valid customary gift of this house made to the plaintiffs?

• since the two brothers kept a common purse, whatever is acquired from the
common purse has the character of family property, such that they could partition
it during their lifetime, but upon the death of any one of them, it becomes full family
property.
• There was no valid customary gift
Now by customary law, where a child or a ward works with his father or guardian, he does
not become owner with the father or guardian of the income of their joint labour; whatever
comes out of that joint effort belongs exclusively to the father or the guardian

II ALIENATION

1. Agbloe v Sappor per Harragin CJ

2. Allotey v Abrahams per Ollennu J

3. Bayaidee v Mensah per the Full Court

Plaintiff here seeks to recover from the defendant a piece of land called “Odoomassie,”
He avers that he purchased the land from Kofi Aigin, the occupant of the stool 14 years
before the action and had been in undisturbed possession, cultivating the land.
Defendant, however, contends that since the land was family land Kofi Aigin could not
make a valid sale of the land alone.
He adds that one of the members of the family, Eccua Assabill, protested against the sale
at the time it was being effected.

• Since Plaintiff as the purchaser has possessed for a series of years an undisputed
ownership—has cultivated and improved the land, and has established a home upon
it, he was entitled to recover possession.
Whatever right of impeaching the sale the family possessed is barred by their
acquiescence and the plaintiff’s continued course of undisturbed possession.

74 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Now, although it may be, and we believe it is the law, that the concurrence of the members
of the family ought to be given in order to constitute an unimpeachable sale of family land,
the sale is not in itself void, but is capable of being opened up at the instance of the family,
provided they avail themselves of their right timeously and under circumstances in which,
upon the rescinding of the bargain, the purchaser can be fully restored to the position in
which he stood before the sale.

4. Manko v Bonso per Petrides CJ

In the action against Bonso and others, the plaintiffs' claim was for "ejectment, or
ownership or possession" of a piece of land with a two-storey house which the plaintiff
alleged was the property of the late Kojo Botsio's family.
Although the land was family property, Botsio (described as Cudjoe Buatoe in the Deed)
purported to sell it with the house thereon to Cudjoe Buatoe Bentil without the family’s
prior consent.
However, they subsequently acquiesced in the sale by allowing Bentil and his successors
in title to occupy the house rent free from the year 1885 until the present time (1933)
without protest.

• Defendant (Bonsu) could not be ejected since the family acquiesced.

In the case of Quassie Bayaidie v. Kwamina Mensah (F.C.L. 150) the Full Court had to
consider what was the effect of a sale by family land by occupant of a stool. That Court in
the course of its judgment stated:-
“Now although it may be, and we believe…”
If this judgment is sound, and the contrary is not suggested by appellants' Counsel, then it
appears clear that the sale of 1885 was not void, but merely voidable and the plaintiffs
having taken no steps to set it aside have no title to the land in dispute.

5. Adjei v Appiagyei per Granville Sharp JA

The plaintiff, who purported to represent the family of one Kofi Attim deceased, sought
the cancellation of a deed by which lands belonging to the family had been mortgaged.
The plaintiff's complaint was that the mortgage had been procured by fraud and that the
consent and concurrence of the family had not been obtained to the transaction.
It was admitted by the plaintiff that, at the time of the mortgage, Kofi Kumah (1st
Defendant) was the duly appointed successor to Kofi Attim and thus was the proper person
to enter into a transaction affecting Kofi Attim's property.
He claimed, however, that Kofi Kumah had acted without the knowledge of the family.

• Third party (Fifth defendant) was entitled to protection as a bona fide purchaser

75 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

for value without notice.

A sale of land by the head of a family without the assent or concurrence of the rest of the
family is not void. It is voidable at the instance of the family, but the court will not avoid
the sale if not satisfied that the family has acted timeously and with due diligence and that
the party affected by the avoidance of the sale can be restored to the position in which he
stood before the sale took place: Manko v. Bonso (1). This applies as much in the case of
a mortgagee as in the case of a sale if cancellation is sought.

II LITIGATION

Order 4 Rule 9 of the High Court Civil Procedure Rules, 2004 (CI 47)

1. Nyamekye v Ansah per Ampiah JA

As a general rule the head of a family as representative of the family is the proper person
to institute suits for the recovery of family land: see Kwan v. Nyieni [1959] G.L.R. 67 at
72, C.A. And, where the authority of a person to sue in a representative capacity is
challenged, the onus is upon him to prove that he has been duly authorised. He cannot
succeed on the merits without first satisfying the court on that important preliminary issue.

2. Akrofi v Otenge per Adade JSC

The plaintiff, as the head of his family, sued for A declaration of title to a farm and an order
to set aside the sale thereof by public auction in execution of a judgment debt founded on
a loan transaction previously obtained against one G, a member of the family since the
farm was family property and could not be sold to satisfy the personal debts of G.
On whether the plaintiff was the head of family of the Okanta family of Larteh-Akwapim,
he testified that the first head of family of the Okanta family was Tete Opeko Okanta, his
grandfather, testimony which was not challenged under cross-examination.

• The Plaintiff had the capacity to sue since having giving credible evidence, the
Defendant failed to rebut.
the plaintiff, having led some credible evidence, the burden shifted on to the defence, since
they stood to lose on that issue if no further evidence were introduced. The defence did not
even take the first step to discharge their burden; they led no evidence. Accordingly, they
had to lose on that issue. I find, contrary to the pronouncement by the Court of Appeal,
that the plaintiff sufficiently succeeded in discharging the burden, and establishing his
capacity as head of the Okanta family of Larteh, Akwapim.

76 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

3. Lamptey v Neequaye per Campbell J

The Plaintiff claimed that the head of family (Tei Nortey) confirmed the Plaintiff’s self-
appointment as head.
• A head of family cannot unilaterally appoint his successor
• He cannot also confirm the self-appointment of his successor
• The plaintiffs not having on the pleadings or on the evidence established that the
suit was brought in the name of and on behalf of the head of Madam Amorkor’s
family or with his authority and consent have no locus standi in this court and on
this ground alone ought to be non-suited.
The rule of customary law does not provide for the unilateral appointment by the head
of family of a successor to an intestate’s estate, and this is so even where the head of
family is the deceased’s mother; a fortiori the head of family could not lawfully acquiesce
or confirm unilaterally the self-appointment by a person of himself as successor. The
second plaintiff has not shown that there was any family convocation at which he was
selected as successor. Tei Nortey who is alive has not been called as a witness to testify on
the second plaintiff’s averment that he Tei Nortey confirmed the appointment of the second
plaintiff even assuming that such unilateral confirmation could have validated the alleged
self-appointment.

IV HEAD OF FAMILY (APPOINTMENT/SELECTION)

1. Welbeck v Captan per Amith Ag CJ

The plaintiff, claiming as the appointed caretaker and administrator of the property of his
family, sought to recover the rents of certain family properties that were leased to the first
defendants.
The second defendant c1aimed to be the duly appointed head of the family and as such to
be the person properly entitled to administer the family property.
It appeared from the evidence that the second defendant at one time had been the head but
had been relieved of his office by the family who, at a family meeting, appointed the
plaintiff and one Thompson (since deceased) to administer the family property in his stead.
Subsequently, at another family meeting, the second defendant (jointly with another
person) was reappointed head of the family.
For the plaintiff Welbeck it was argued that a dispute existed between the two branches of
the family; that these branches had not been reconciled, as they should have been, before a

77 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

meeting to appoint a head could take place; and, that the absence of principal members of
the family from the meeting that appointed Hammond rendered that appointment nugatory.

• on the facts the family members who, at the final meeting, appointed the second
defendant as head of the family, were representatives of both branches of the
family. There was thus no question of one branch of a family, in dispute with
another branch, attempting to appoint It head of the family in the absence of the
second branch and similarly there was no question of reconciliation to be brought
about between the two branches before a head could be elected.
…it is open to principal members of a family, to appoint a head in the absence of a principal
who refuses to attend a meeting after invitation. The plaintiff and his son in this case
refused to attend the meeting although invited. According to the evidence before me " most
members of the female and male sides of the family attended .... The interest dealt with was
the Kreshie family." There was no dissension.

2. Ankrah v Allotey per Quarshie Idun (acting judge)

where two opposing sections of a family have subsequently become reconciled, a meeting
of one or other of such opposing sections cannot appoint or remove a head of family. Such
an act can only be done by the united family.

3. Banahene v Adinkra per Anin JA

A. died intestate, leaving behind three farms which he had inherited from his deceased
ancestors upon his appointment as successor and head of the Bretuo family.
On the death of A, the plaintiff was elected as his successor at a family meeting presided
over by the Gyasehene of the area and attended by all the principal members of the family.
The defendants, all junior members of the family, who had been appointed caretakers of
the three farms by the plaintiff’s predecessor during his lifetime, disputed the validity of
the plaintiff’s appointment as successor, and refused to hand over the farms to him.
They contended that the Gyasehene could not preside since he was a neutral.
• the learned judge’s conclusion that “the authority of the Gyasehene to meddle in
the family affairs of the parties was not well established,” was erroneous and
unwarranted in law and on the facts.
… it is not only 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. His wisdom, tact and experience may be in great demand at such a meeting; and in
the event of later litigation about what transpired at the meeting, his independent evidence
should prove invaluable.

78 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

4. Hervie v Tamakloe per Ollennu J

The parties to the action belonged to a patrilineal area of Ghana.

The plaintiff, suing as head of his family, sought an injunction to restrain the defendants
from entering upon certain creeks belonging to the family and damages for trespass.
The defendants denied that the plaintiff was head of the family or, indeed, that he even
belonged to the male line.

• The fact that the plaintiff was not a member of the male line of the family concerned
was not necessarily fatal to his claim.
• However, as his headship had been put in issue by the defendants and as he had
failed to establish his appointment, his claim must necessarily fail.
There is no evidence that a Mankralo of Bator is automatically the acknowledged head of
the Avu family. By native custom a person does not automatically become head of a family
as of right. He must either be appointed-elected-by the principal elders of the family when
the post becomes vacant by any means, or he must be acclaimed and acknowledged as such
by the said principal members of the family, for example, by the principal members
supporting acts he performs as head.
In the appointment of the head, the family is not tied down to choose any particular person;
they are entitled to appoint any eligible person in the family; thus in the non-Akan areas,
such as Bator, 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; the principle is the same as that
applicable to the appointment of a successor to a deceased person; see the case of Makata
v. Ahorli and Others (1), a case of appointment of a successor.

5. Lartey v Mensah per Ollennu J

The plaintiff, suing as head of his family, sought to recover possession of certain deeds.
His authority to sue as head was challenged by the defendants.
There had been dissension within the family and, at a meeting convened to settle the
outstanding differences, the codefendant, who had been the head of the family, resigned,
whereupon those elders present elected the plaintiff as head in his stead.
However, some of the members of the family who would have been entitled to participate
in making the appointment had not been notified of the intention to appoint and had not
attended the meeting.

• The Plaintiff’s appointment as head was invalid

79 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

According to native custom the head of a family is appointed at a meeting of all the
accredited elders of the family summoned for that purpose.
The meeting at which an appointment is to be' made should be convened for that purpose
and notice of it should be given to all members of the family entitled, by custom, to
participate in the appointment.
If then some elders stay away from the meeting, those who do attend can make an
appointment in the absence of the former.
Where notice given to the members of the family shows that some particular business is to
be transacted at a meeting, for example the settlement of disputes, and a head is appointed
at that particular meeting, that appointment of a head is null and void, prior notice of the
appointment not having been given to all concerned.
A member of the family may not be interested in the settlement of disputes between other
members of the family but he has by custom an inherent right to a say in the appointment
of the head; and it is unjust that some only of the members of the family should appoint the
head when others have not had an opportunity of being heard on the matter.

V REMOVAL OF THE HEAD

1. Welbeck v Captan per Amith Ag CJ

• Where a member of a family seeks to avoid a decision taken at a 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 to the validity of the proceedings.

2. Quagrine v Edu per Archer J

One Apprey died intestate leaving behind his mother and two uterine brothers including
the plaintiff who was appointed his customary successor.
The defendant, head of the wider family of the deceased, being dissatisfied with the
plaintiff’s management of the estate summoned a meeting for his removal.
Some branches of the wider family were not invited.
The plaintiff having declined invitations to attend the meeting was removed from office in
absentia.

80 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• the purported removal of the plaintiff from office as customary successor was
invalid in view of the fact that the meeting was not fully representative of the wider
family.
The domestic household of Biney do not belong to the immediate family of Apprey because
Apprey did express such a wish. It would appear that this household of Biney formed the
majority of those who attended the meeting convened to remove the plaintiff as customary
successor. I find therefore that the meeting was not fully representative of all the branches
of the Deshina family. Moreover, there is no evidence that any member of the plaintiff’s
immediate family were invited to be present. The

3. Abakah v Ambradu per Mills-Odoi JSC

Defendant had held office as recognised head of the Ewan Kweku Anona family, Sekondi.
Some elders of the family being dissatisfied with the manner in which the defendant was
managing family property authorised 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.
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 defendant was removed from office and replaced by the first plaintiff.

• the family meeting which was held on the 9th July, 1961, was not properly
constituted according to custom i.e., that the meeting was not representative and
that some principal members, whose presence was indispensable, were absent.
• Since his gave a justification for his absence, the Defendant’s removal as head was
invalid.
I would refer to the principle of customary law enunciated by Sarbah in his Fanti National
Constitution (1906 ed.), p. 42:
“The right of removing a ruler belongs to the people immediately connected with the stool;
in the case of the head of a family the right is in the senior members, and the act of the
majority is binding on the rest.”
Applying this principle to the instant case, the right of removing the defendant from office
was vested in the principal heads of the family and the act of the majority would be binding
on the rest…
According to custom the head of a family is appointed by the principal members of the
family. They are also cloaked with authority to depose him, but the deposition will be
invalid unless a complaint is lodged against him and he is summoned to answer it. The
complaint must show what offences the head of family has committed against the family in

81 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

order to afford him an opportunity to meet them. If the complaint is proved, he may be
removed by a majority of the principal members of the family present at the meeting.
But where the head of family who is summoned by the principal members of the family to
attend a family meeting to answer the complaint against him fails to attend the hearing,
and does not give good reason for his absence, he may be removed.

4. Allotey v Quarcoo per Anin JSC

The respondent, who had been deposed as joint head of the Onamrokor Adain family of
Gbese in Accra by a family meeting held on 21 February 1976, filed a writ at the High
Court for a declaration that he was still the joint head of family and that he had not been
constitutionally and customarily deposed.
The Appellants contended that the court had no jurisdiction, original or appellate, to inquire
into the merits of the deposition charges duly brought against the respondent before the
only competent body, to wit, the Onamrokor Adain family.

• Both the common law and customary law had for centuries reposed jurisdiction to
pronounce on the merits of the decision of a family to depose its head at a fully
representative meeting and after due notice of the meeting and charges given
beforehand, in the families themselves.
• The courts had only a limited supervisory jurisdiction and would interfere with the
family’s decision only when there had been a complete or substantial denial of
justice; it was not the infringement of any fundamental principle or rule of natural
justice or the breach of every procedural step that would suffice to invoke the
court’s jurisdiction.

VI ACCOUNTABILITY OF THE HEAD

Head of Family (Accountability) Act, 1985 (PNDCL 114)

Section 1—Head of Family to be Accountable.

(1) Notwithstanding any law to the contrary any Head of family or any person 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.
(2) 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.

82 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Section 2—Application to Court for Order to Account, Etc.

Where a Head of family fails or refuses to render account or file an inventory of any family
property any member of the family to which such property belongs who has or claims to have any
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
concerned:
Provided that no such application shall be entertained by the Court unless the Court is satisfied
by the applicant that he had taken steps to settle the matter within the family and that all such
attempts had failed.

Section 3—Power of Court to Order Account, Etc.

Subject to section 2 of this Law, a Court shall have jurisdiction to make an order compelling the
Head of family to render account or file an inventory in respect of all such family properties in his
possession, control or custody as the Court may specify in the order.

Section 4—Interpretation.
In this Law:—
"family property" includes any property, whether movable or immovable, which belongs to the
members collectively of a particular family or is held for the benefit of such members and any
receipts or proceeds from such property.

The following cases are now bad law

1. Abude v Onano

The appellants as Elders of the Labadi Stool sued the first defendant-respondent as La
Mantse and the other defendants as trustees of the La Benevolent Society.
They alleged that the first defendant and custodian of moneys paid to the Labadi Stool had
deposited the said Stool money in Post Office Savings Bank in the name of a "La
Benevolent Society" of which first defendant is a member.
They also claimed that the defendants were using the said Stool money for their private
purposes and for other purposes prejudicial to the interest of the Stool.
On these grounds, the plaintiffs-appellants as Elders of Labadi Stool claimed

83 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(a) An injunction restraining the defendants from making any further withdrawals from the
said account except with the consent and approval of the Elders of the Stool.
(b) An account of all moneys that have come into the possession of the defendants or any
of them for the Labadi Stool.

It is an accepted principle of Native Customary Law that neither a chief nor the head of a
family can be sued for account either of state or family funds, Counsel for appellants
admitted before us that he could not quote one case which has been brought in the Supreme
Court against a chief and/or his elders and councillors to render account of Stool funds or
Divisional Council funds;

There is evidence on record which proves that whenever a member of the Council is of the
opinion that either the chief and/or some of his elders have misappropriated State funds,
the proper course is to bring the matter before the local Council or the Ga State Council
which alone has jurisdiction to enquire into such matters the enquiry the chief and/or some
of the elders so charged are found to have misappropriated public funds they are as a rule
deposed or removed from the positions they held in the State. No individual member or
even a section of the community is entitled to institute an action for account. This native
law is in our opinion reasonable and not contrary to natural justice or good conscience.

2. Fynn v Gardiner

The plaintiff representing a branch of the family claimed in the native court as against the
defendant, a head of family, for a declaration that they were joint-owners with the
defendant and for an account of the rents which the defendant had been collecting and
appropriating to her own use pursuant to her claim of exclusive ownership of the house

• Declaration as joint owners was granted

• Order for accounts was denied
Members of the family cannot call upon the head of family for and account their remedy is
to depose him and appoint another person in his stead.

3. Hansen v Ankrah

Principle in the 2 cases above was followed

MATRIMONIAL PROPERTY (RIGHTS OF SPOUSES AND CHILDREN)

84 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Hayfron Benjamin J in Re Ackom Mensah

It was an American judge, Chimera J., who said in Avnet v. Avnet…quoted by Joseph Goldstein
and Jay Katz in The Family and the Law…that:
“Ever since man came to abandon the nomadic life, settled in communities and divided the land
so that each had his own property, he began to select his women and from that day to this, marriage
in some form or other has become an honored institution bringing with its myriad questions, moral
and legal.”

Gyan
Two issues arise. First rights of spouses (and children) following a divorce. Second, rights of
spouses (and children) following death intestacy of one spouse.

I CONSTITUTIONAL AND STATUTORY PROVISIONS

Article 22 of the Constitution, 1992

(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether
or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact
legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this article-
(a) spouses shall have equal access to property jointly acquired during marriage;
(b) assets which are jointly acquired during marriage shall be distributed equitably between the
spouses upon dissolution of the marriage.

Section 38 of Act 1036 (receiving)

(3) In a conveyance for valuable consideration of an interest in land that is jointly acquired during
the marriage, the spouses shall be deemed to be parties to the conveyance, unless a contrary
intention is expressed in the conveyance
(4) Where contrary to subsection (3) a conveyance is made to only one spouse that spouse shall
be presumed to be holding the land or interest in land in trust for the spouses, unless a contrary
intention is expressed in the conveyance.

85 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Section 47 of Act 1036 (giving)

Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement
to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest
in land acquired for valuable consideration during the marriage,
(a) Sell, exchange, transfer, mortgage or lease the land, right or interest in the land
(b) Enter into a contract for the sale, exchange, transfer, mortgage or lease of the land, right
or interest in the land,
(c) Give away the land, right or interest in the land inter vivo, or
(d) Enter into any other transaction in relation to the land, rights or interest in the land
Without the written consent of the other spouse which consent shall not be unreasonably withheld

II CASE LAW BEFORE 1992

1. Quarte v Martey per Ollennu J (death) –original customary law position

Evelyn Martey’s husband HA died after 25 years of marriage.

She sought £91 for funeral expenses, one-third of her husband’s cattle and one third of the
man’s house at Official Town.

…by customary law it is a domestic responsibility of a man's wife and children to assist
him in the carrying out of the duties of his station in life, e.g. farming or business.
The proceeds of this joint effort of a man and his wife and/or children, and any property
which the man acquires with such proceeds, are by customary law the individual property
of the man. It is not the joint property of the man and the wife and/or the children.
The right of the wife and the children is a right to maintenance and support from the
husband and father
Kuenyehia Akua and Ofei-Abogye Esther, “Family Law in Ghana”
According to Bossman, a European researcher in 1700
On the death of either the man or the wife, the respective relations come and immediately
sweep away all, not leaving the widow or widower the least part thereof though they are
jointly obliged to help pay the funeral charges.
Kuenyehia, Akua, “Women and Family Law in Ghana: An Appraisal of Property Rights
of Married Women”
The woman’s entire life and labour became a part of the implements of wealth acquisition.

86 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

2. Clerk v Clerk per Campbell J (subsistence of the marriage) – restatement of Ollennu above

The marriage was still subsisting but the parties were living apart when H. wrote to W.
asking her to vacate the matrimonial home.
W. then applied to the High Court for an order of perpetual injunction restraining H. from
interfering with her occupation of the said house on the grounds that having contributed
financially and having assisted physically in the construction of the house she had acquired
a beneficial interest therein.
Both parties admitted that the land on which the house was built was acquired by H. from
his own funds and in his own name.

• In customary law property acquired by a husband with the assistance of cash and
labour of his children or wife remained the individual property of the husband.
I therefore find that though she in fact assisted the defendant financially from her bakery
business and also physically by supervising the workers the extent of her contribution is so
indeterminate that I cannot without speculation make any finding as to whether her
contribution was sufficiently substantial as to raise an equitable interest in the building in
her favour and I will make no such findings.
Further, I must confess considerable doubt as to whether even if her contribution could
have been particularized with certainty and was substantial this fact would necessarily
make the parties tenants in common of the building so constructed from their joint efforts

Section 20 of the Matrimonial Causes Act, 1971 (Act 367)

(1) The court may order either party to the marriage to pay to the other party such sum of money
or convey to the other party such movable or immovable property as settlement of property rights
or in lieu thereof or as part of financial provision as the court thinks just and equitable.
(2) Payments and conveyances under this section may be ordered to be made in gross or by
instalments.

3. Yeboah v Yeboah per Hayfron-Benjamin J (divorce) –first case after enactment of Act 367

The wife supervised the construction of as well as structural changes to the building.
Husband sought a quit order upon dissolution of the marriage.

If a wife by contributing to the acquisition of the matrimonial home or any other property
becomes a joint owner with her husband, then by the application of the doctrine of
survivorship she becomes the sole owner in the event of her husband predeceasing her…

87 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

What inference can be drawn from the fact that the plot on which the house stands was
originally allotted to the defendant and that she withdrew her application in favour of the
plaintiff? It was obviously to enable the plaintiff to take advantage of the bank's housing
scheme and secure a house for both the plaintiff and defendant and any future children
they may have. The plaintiff was not called upon to pay any deposit. It is clear to me that
if a deposit had been required the parties would have utilized the £G600 as the deposit to
secure the house. From the factors attending the acquisition of the house and the conduct
of the parties subsequent to the acquisition I think the inference is clear that they intended
to own jointly the matrimonial home. I therefore make the declaration that the defendant
is a joint owner of the house No. 131, North Labone Estate.
Henrietta J.A.N Mensa-Bonsu, Ensuring Equitable Access to Marital Property when the
Holy Estate becomes an Unholy ‘Ex-’ State –Will the Legislature Walk The Road paved
by the Courts
One of the earliest of such cases was Yeboah v Yeboah in which a court had to decide on
what amounted to substantial contribution in order to determine whether the contribution
could be recognised as having exceeded the Quartey v Martey threshold of a wife’s duty
under customary law to support her husband in his estate in life, thereby entitling her to a
definite portion of property acquired during the subsistence of marriage.

4. Abrebrese v Kaah per Sarkodee J (death)

Wife and Husband (deceased) were married for 36 years.

W (successful trader) made substantial contribution to H’s (Tally clerk and book keeper)
acquisition of land.
She also shared financial responsibilities of household to enable him use salary to build
house.
Customary successor of H sold house to 3rd party.

• W. was entitled to the declaration she sought and the sale of the house was void.
…it seems to me it will be right to say that the right of the widow and the children to reside
in the family house after the death of their father is "subject to good behavior." On the
other hand where the property was built solely by the deceased out of his own resources
and any assistance given him by his wife was that expected of a wife under the customary
law the house would become his self-acquired property. In this respect customary law
recognizes possessory life interest of the widow and children which right in my view is
prior to any enjoyed by the customary successor or the wider family. Any purported sale
over the heads of the widow and children cannot stand…
This will allay the fears of wives and children who live exclusively with their father; in
particular when the father dies suddenly and intestate. It will bring the customary law in
line with modern trend and the aspirations of progressive people all over the country.

88 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Prof. Mensa-Bonsu
If ever a court rose to the occasion and fought a rule that had been rendered inequitable
by the passage of time, this was it!

5. Anang v Tagoe per Brobbey J (divorce)

W sued H for a declaration that she was joint owner of a house at Mataheko.
She contended that she purchased building materials, supervised construction and provided
meals for the workers engaged in the construction.

• no court of equity and conscience would permit H to get away with all those
contributions.
Consequently, W was entitled to a declaration that she was the joint owner of the
property.

It has been established that where a wife makes contributions towards the requirements of
the matrimonial home in the belief that the contribution is to assist in the joint acquisition
of property, the court of equity should take steps to ensure that that belief materializes and
indeed if that were not so, husbands would unconscionably be made to unjustly enrich
themselves at the expense of innocent wives.

6. Achiampong v Achiampong per Abban JA (divorce)

In order to purchase the couple’s Estate House, the wife sold he car to take care of wedding
expenses.
She also took care of household expenses while the structures were added based on a
financial arrangement.
…a situation may arise whereby a wife's general personal right, which is derived from her
status, to live in the matrimonial home, may be transformed into a right in rem adhering
to the matrimonial home and its contents. These are cases:
where there has been agreement between the husband and wife in respect of the
matrimonial home, giving the wife some beneficial interest in it, notwithstanding that the
property is in the sole name of the husband as the legal owner;
or where the wife has directly or indirectly made substantial contribution in money or
money's worth towards the acquisition of the property. For example, making direct
financial improvements, renovation or extensions in respect thereof or applying her income
for the common benefit of both of them and the children so as to enable the husband
financially to acquire the property in dispute.

89 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

7. In Re Ackom-Mensah per Hayfron-Benjamin J (death)

On the death of A.M. intestate, his wife, the plaintiff herein, whom he had married under
the Marriage Ordinance, Cap. 127 (1951 Rev.), applied for and was granted letters of
administration to administer his estate.
In applying for the letters of administration, the plaintiff widow exhibited an inventory
from which she omitted the matrimonial home at Komenda.
No objection was raised to this omission by the customary family of the deceased, who
admitted that it was not family property in A.-M.’s lifetime.
Later on, however, when the plaintiff attempted to enter the matrimonial home, she was
prevented from doing so by some members of the deceased’s family home.
They demanded that unless she performed certain customary rites they would not allow her
even to enter the matrimonial home.
• Ceremonies were not a condition-precedent for beneficial interest in matrimonial
home to vest in widow.
Under customary law a wife is expected to perform certain ceremonies at the funeral of
her husband. Non-performance by a widow under customary law might be bar to re-
marriage, or carry other sanctions. No sanctions are available where the marriage is under
the Ordinance. The widow under the Ordinance may be expected to but is not compellable
to perform the customary ceremonies; apart from those such as funeral contribution which
can be recovered as a debt by action.
NB: This case marked the turning point which led to the passage of PNDC 111

Section 16A of Intestate Succession Act, 1985, PNDCL 111

(1) No person shall before the distribution of the estate of a deceased person whether testate or
intestate eject a surviving spouse or child from the matrimonial home—

(a) where the matrimonial home is the self-acquired property of the deceased;
(b) where the matrimonial home is rented property, unless the ejection is pursuant to a court order;
(c) where the matrimonial home is the family house of the deceased, unless a period of six months
has expired from the date of the death of the deceased; or
(d) where the matrimonial home is public property unless a period of three months has expired
from the date of the death of the deceased.
(2) For the purposes of this section "matrimonial house" means—
(a) the house or premises occupied by the deceased and the surviving spouse, or the deceased and
a surviving child or all as the case may be, at the time of the death of the deceased; or
90 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(b) any other self-acquired house of the deceased occupied by the surviving spouse or child or
both at the time of the death of the deceased. [As inserted by the Interstate Succession
(Amendment) Law, 1991 (PNDCL 264), s.1]

8. Ribeiro v Ribeiro per Amua-Sekyi JSC (divorce)

After 34 years of marriage, the wife, upon divorce, sought financial provision but was,
however, awarded the Haulage House (One of 10 houses the husband had acquired during
the subsistence of the marriage).
The husband appealed seeking to offer her a small apartment in a house at a run-down part
of Accra which the court didn’t think met her needs.

• Reasonable provision based on Section 20(1) of Act 367 was determined by:
▪ The needs of the parties
▪ The resources of the spouse
In Achiampong v Achiampong (supra) there was evidence that the wife had been persuaded
by her husband not to acquire a house of her own and that she had, in fact, financed
extensions to the matrimonial home. She claimed to be a joint owner of the home and
succeeded in an application under section 20 (1) for a settlement of the property rights of
the parties. But that is not all the power that section 20 (1) confers. There is also the power
to make orders for financial provision. On such an application, the court examines the
needs of the parties and makes reasonable provision for their satisfaction out of the money,
goods or immovable property of his or her spouse…
The question may be asked, "why choose the Haulage House?"
My answer is that having a discretion to exercise, it was for the trial judge to exercise it in
the best way he could. As a judge sitting in Accra where the properties are located, he must
be deemed to be familiar with the localities of the three houses and to have a fair idea of
their suitability as a residence for the wife who, with the husband, had lived what many of
our people would consider a life of affluence which included sojourns in London. Two
bedrooms and a hall at Adedainkpo could hardly have met the needs of a lady as refined
as the wife must be. This court is not better placed than the trial court to determine what
was suitable for the wife having regard to the circumstances of her case.

III CASE LAW AFTER 1992 (all divorce cases)

9. Mensah v Mensah (1998) per Bamford-Addo JSC

91 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Husband sought joint ownership regarding extensions which were solely funded by wife
since he contributed to the main house.
There was no evidence that the extensions were to belong solely to one person

• H was entitled to an equal interest in the extensions.

There was no evidence that the intention of the parties in acquiring the main house was
any different from that in respect of the extension to the house, nor was there any evidence
of a prior agreement between the parties that the extension was to belong solely to one
party alone. In such circumstances, the principle that property jointly acquired during
marriage becomes joint property of the parties applies and such property should be shared
equally on divorce, as the ordinary incidents of commerce have no application in marital
relations between husband and wife who jointly acquire property during marriage.
Furthermore, the holding that the extension was the sole effort of the wife was not only
contrary to the evidence, but also contrary to the intention of the parties themselves,
namely to provide more space in the house for the joint benefit of the parties and their
children, which intention was no different from that for which the main house was acquired
On the facts and the law, both parties become joint and equal beneficial owners of the main
house and extensions.

10. Boafo v Boafo per Date-Bah JSC

Husband appealed against award of one-half property.

• Wife was entitled to half of the property

…what is ‘equitable’, in essence, what is just, reasonable and accords with common sense
and fair play is a pure question of fact, dependent purely on the particular circumstances
of each case.
…where there is substantial contribution by both spouses, the respective shares of the
spouses will not be delineated proportionally like a shareholding in a company for the
marriage relationship is not a commercial relationship, where there is a substantial
contribution by both spouses, equality is equity will usually be an equitable solution to the
distribution issue.
Mensa-Bonsu
The case of Boafo v Boafo therefore completed the legal marathon race the courts have
had to run, in order to come to the conclusion that sharing jointly owned property in two
equal shares represents what is “just and equitable” The Supreme Court has thus given its
blessing to the sharing of such joint property on equality is equity.

92 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

11. Mensah (Gladys) v Mensah (Stephen) – (2012) per Dotse JSC

Upon the dissolution of the marriage, the woman petitioned for 50% of the marital
property.
The man resisted the claim on the basis that the woman had been a housewife throughout
the marriage and had contributed nothing to the business.

• Woman was entitled to 50% of the property.

Why did the framers of the Constitution envisage a situation where spouses shall have
equal access to property jointly acquired during marriage and also the principle of
equitable distribution of assets acquired during marriage upon the dissolution of the
marriage?
We believe that, common sense, and principles of general fundamental human rights
requires that a person who is married to another, and performs various household chores
for the other partner like keeping the home, washing and keeping the laundry generally
clean, cooking and taking care of the partner’s catering needs as well as those of visitors,
raising up of the children in a congenial atmosphere and generally supervising the home
such that the other partner, has a free hand to engage in economic activities must not be
discriminated against in the distribution of properties acquired during the marriage
when the marriage is dissolved.
This is so because, it can safely be argued that, the acquisition of the properties were
facilitated by the massive assistance that the other spouse derived from the other.
In such circumstances, it will not only be inequitable, but also unconstitutional as we have
just discussed to state that because of the principle of substantial contribution which had
been the principle used to determine the distribution of marital property upon dissolution
of marriage in the earlier cases decided by the law courts, then the spouse will be denied
any share in marital property, when it is ascertained that he or she did not make any
substantial contributions thereof.
It was because of the inequalities in the older judicial decisions that we believe informed
the Consultative Assembly to include article 22 in the Constitution of the 4th Republic.
Mensa-Bonsu
The death knell to the “substantial contribution” standard for granting equitable access
has been sounded by…Mensah (Gladys) v Mensah (Stephen)…
By this master stroke, the Supreme Court gave a death blow to the previous authorities
where the court had to painstakingly seek evidence of how the properties had been
acquired in order to be able to determine whether whatever the complaining party was
setting up as contribution to the acquisition was substantial. Not only has the Supreme
Court thereby put value on traditionally undervalued “women’s work” in the home by
equating it to whatever wage earning activity can be engaged in outside the home, but it

93 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

has also given value to the marital relationship as an equal partnership where each party
plays an equally important role in the corporate life of the couple.
The court recognised that by its decision, the death knell has been sung [sic] to the
substantial contribution principle, making way for the equitable distribution as provided
for under article 22(3) of the Constitution 1992

12. Quartson v Quartson per Ansah JSC

The appellant does not dispute that the house was constructed solely from the funds of the
respondents.
That notwithstanding, she invites this court to hold that her contributions in kind, namely
her diligent supervision of the construction of the matrimonial home entitle her at least, to
an equal share of the matrimonial home.
The respondent on his part claims sole ownership of the matrimonial home as his self-
acquired property.

• Although she was entitled to a share in the property, she was not entitled to half of
it.
The decision in Gladys Mensah v. Stephen Mensah, supra is not to be taken as a blanket
ruling that affords spouses unwarranted access to property when it is clear on the evidence
that they are not so entitled. Its application and effect will continue to be shaped and
defined to cater for the specifics of each case. The ruling, as we see it, should be applied
on a case by case basis, with the view to achieving equality in the sharing of marital
property. Consequently, the facts of each case would determine the extent to which the
judgment applies…
It is our opinion that on the strength of Gladys Mensah v. Stephen Mensah supra, the wife
would be entitled on a share of the value of the matrimonial home. The evidence is
abundantly clear that she performed her supervisory tasks over the building of the house
satisfactorily. Even though she was a housewife, she single-handedly took charge of the
household when her husband, the appellant, was incarcerated for years in Liverpool. We
would agree with the reasoning in Gladys Mensah v. Stephen Mensah supra, that the
inability to adequately quantify the appellant’s wifely assistance towards the construction
and upkeep of the matrimonial home does not in itself bar her from an equitable sharing
of the matrimonial property.
In view of our conclusion above, it is our view that the appellant’s property rights were not
adequately considered by the Court of Appeal. We would disagree with the Court of Appeal
in so far as it held that the appellant had no interest at all in the matrimonial property. It
must be noted that this court has taken into account the equality principle laid down in
Mensah v. Mensah and Boafo v. Boafo, supra. However, as Date-Bah JSC held in Boafo
v. Boafo supra, the equality principle may be waived if in the circumstances of a particular

94 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

case, the equities of the case would demand otherwise. We think that the equities of this
particular case do not call for a half and half sharing of the marital home

FORMALITIES FOR THE TRANSFER OF INTEREST IN LAND UNDER

CUSTOMARY LAW

I STATUTORY PROVISIONS – LAND ACT, 2020 (ACT 1036)

Section 32 of Act 1036

A holder of an interest or right in land may, by an instrument transfer that interest or right to any
person with or without consideration

Section 33 of Act 1036

A conveyance shall only be prepared by a legal practitioner in terms of the Legal Profession Act,
1960 (Act 32)

Section 34 -
A contract for the transfer of an interest in land is not enforceable if the contract is not
(a) evidenced in a writing, and
(b) signed by
(i) the person against whom the contract is to be proved or
(ii) a person who was authorised to sign on behalf of such person; or
(c) exempt under section 36.

Section 35 of Act 1036

(1) A transfer of an interest in land other than a transfer specified in Section 36 shall be in writing
and signed by
(a) the person making the transfer or by the agent of that person duly authorised in writing; and

95 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(b) the person to whom the transfer is made or the agent of that person duly authorised in writing.
(2) A transfer of an interest in land made in a manner other than provided in this section does not
confer an interest on the person to whom the transfer is made.

Section 36(1)(h) of Act 1036

(1) Sections 34 and 35 do not apply to a transfer or contract for the transfer of an interest in land
which takes effect
(a) by operation of law;
(b) by operation of the rules of equity relating to the creation or operation of resulting, implied or
constructive trusts;
(c) by order of the court;
(d) by will or upon intestacy;
(e) by prescription;
(f) by a lease for a term not exceeding three years, whether or not the lessee is given power to
extend the term;
(g) by a license or profit other than a concession required by an enactment to be in writing; or
(h) by oral grant under customary law.

II GENERAL PRINCIPLES
1. Bruce v Quaynor per Ollennu J

This case related to disputed lands at West Korle Gono, Chemunaa, Accra which, as all
parties agreed, were James Town Stool lands.
Plaintiff, Rev Ernest Bruce obtained an earlier grant from the James Town stool in
accordance with customary law.
Defendant, Quaynor also received a grant from the same stool by way of a deed of gift.

• Plaintiff succeeded because a conveyance of land made in accordance with

customary law is effective as from the moment it is made.
A deed subsequently executed by the grantor for the grantee may add to, but it
cannot take from, the effect of the grant already made by customary law.

96 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

By native custom, grant of land implies an undertaking by the grantor to ensure good title
to the grantee. It is therefore the responsibility of the grantor, where the title of the grantee
to the land is challenged, or where the grantee’s possession is disturbed, to litigate his (the
grantor’s) title to the land; in other words, to prove that the right, title or interest which he
purported to grant was valid…
Conveyance of land made in accordance with customary law is effective as from the
moment it is made. A deed subsequently executed by the grantor for the grantee may add
to, but it cannot take from, the effect of the grant. Thus, a stool can by deed convey to a
person the absolute ownership in the land which it originally granted to that person by
customary law, and thereby exempt the grantee from the performance of customary
services which might normally have been due from the grantee to the stool; but such a deed
cannot operate to revoke the grant made by custom.

2. Benyak v Paytell per Anin-Yeboah JSC

The head of the Nii Odai Ntow family made a grant of land at Kwabenya to the Defendant.
The same grantor made a subsequent grant to the Plaintiff.

• Plaintiff failed because of principle in Bruce v Quaynor

For a subsisting valid grant made by PW1 to the 3rd defendant created an encumbrance
on the land the subject-matter of the action even if was initially a customary grant. For
the law was settled long ago in BRUCE v QUAYNOR & ORS [1959] GLR 292 and later
in ANKRAH v OFORI & ORS [1974]1GLR 185 where it was held that:
“A conveyance of land made in accordance with customary law was 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 and where there was an omission to
execute the deed of conveyance that omission could not affect the grantee’s title”
In this case, the grantor (PW1) after the grant, formally conveyed the land with the consent
of the family to the 3rd defendant. As the land was factually and legally encumbered, the
same PW1 could not have title to convey the same land to the plaintiff.

III CUSTOMARY RITUALS

1. Sasraku v David per Granville-Sharpe JA

2. Tei Angmor v Yiadom per Korsah CJ

97 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Tei Angmor, representing a group of people described as a company, claimed as against

the Nkwatia Stool a declaration of title to 2 pieces of forest land at the Afram plains
allegedly sold by that Stool to them.
It appears that the Nkwatia Stool sold to the Plaintiffs (100) One hundred ropes of the forest
land over 15 years ago for (£1,000) one thousand pounds when the Stool was in hardship
at £10 per rope.
Exhibit “B”, a document headed “Memorandum of Pillars Agreement,” stated that the land
had been “entirely sold, and the necessary native customary rites performed” but there was
no evidence that ‘Guaha’ had been performed.
Exhibit “F”, a letter which showed the Paramount Chief referring to the plaintiffs having
“for some years now been negotiating for land from your Stool.”

• 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, and of
this there was no evidence
• exhibit “F” completely disproved the contention of the plaintiffs that the sale had
been concluded, and the land conveyed by native custom.
In order to conclude a contract for the sale of land in native customary law certain
ceremonies have to be performed before ownership in the land can be transferred to a
purchaser. That custom is known as the Guaha custom. (For personal property the custom
is Trama.)
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.
This is not a ceremony which can be performed without the knowledge of the vendor – in
this case the chief and his elders, who by native custom are the persons entitled to alienate
Stool lands. It is a custom which must be strictly proved if a party alleges it in a dispute
about land.

3. Adjowei v Yiadom per Sowah JA

98 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiff, representing a syndicate of Shai and Ningo farmers, negotiated with the
defendants, representing the Asankare stool in Ashanti, for the purchase of a portion of
Asankare stool land.
The syndicate performed the guaha custom as testimony that the stool had parted with its
title to the land, by providing sheep for slaughter on the land and drinks for the pouring of
libation.
They also paid part of the purchase price which was later fully settled and then went into
effective possession of a portion of the demarcated land.
The stool started allocating portions of the demarcated land to its subjects and tenants.
The trial judge held, inter alia, he was not satisfied that the guaha custom was performed
and that even if it was, the absence of independent witnesses vitiated the whole ceremony.

• the performance of the guaha custom was not necessary in the transfer of absolute
title to land in Ashanti and the performance of the tramma custom which on the
evidence had been performed by the plaintiff, was equally effective in achieving
the same result.
• In our ancient society, the presence of independent witnesses in all business
dealings was considered essential. It is on the testimony of the independent
witnesses that the elders can verify the truth of such matters as were in dispute.
It seems reasonable to suppose that if in spite of the absence of such witnesses,
sufficient evidence could be brought to establish the truth of the matters in dispute,
no reasonable group of elders would hold that the matter had not been proved
because no witness was present.
It is patent from the reasoning above, that the performance of guaha custom is not
necessary in the sale of Ashanti land; it would seem however as was evident in the Sasraku
case (supra) that the syndicate ex abundanti cautela had the custom of guaha performed;
for the plaintiff states “we call this custom in Adangbe ‘sugba yi ba’ meaning outright sale.
The Akans near where we were living at Suhum call it guaha custom.”
…Though this appeal could be disposed of on the only ground that the performance of the
guaha custom is not sine qua non in the transfer of absolute title to land and that the
performance of the tramma custom is equally effective in Ashanti in achieving the same
result and that the tramma custom was performed…

4. Donkor v Asare per Ollennu J

The defendants applied to the Akwapim stool for a grant of land for development into a
football field.
As the Oyoko family was in possession, the stool approached the family in accordance
with customary law and the family made a direct grant of a piece of the land to the
defendants, under an agreement whereby the defendants were to develop the land and share
the proceeds accruing from the land with the family.

99 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The defendants converted the land into a football field and paid annually to the family a
third share of the “gate money.”
A member of the Oyoko family without the consent and concurrence of the head and
principal members of the family purported to sell the land to the plaintiff.
The plaintiff in 1957 approached the family at Mamfe and bought, as he thought, the land.
The transaction and performance of Guaha custom took place at Mamfe.
The Oyoko family thereupon gave the defendants notice to quit.

• the essential requirements of a sale of land under customary law include

identification of the area sold, placing the purchaser in possession in the presence
of adjoining land owners and the performance on the land of the Guaha custom.
As the plaintiff had failed to prove these matters, the trial court should have
dismissed the case, without considering the defence.
The identification of the land is made by demarcating the boundaries of the land; if it were
agricultural land, boundary trees are planted or marks made on existing trees in the
presence of the owners of the adjoining land, and if it were building land in a town some
stones or sticks (in modern days pillars) are fixed at the corners.
At such identification and delivery the custom known in Akan as Guaha and in Ga Adangbe
as Yibaa Foo is performed.
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:

5. Norquaye-Tetteh v Malm per Ollennu J

… one of the requirements of customary law relating to a grant of land is that the grant
should be given wide publicity in the locality where the land to be granted is situate. The
owners of the adjoining land have to be invited to be present at the demarcation, for
agreement on the boundaries, so as to avert the possibility of “granting” land already
belonging to another person, or trespass upon adjoining lands in the ownership of another.

IV REQUIREMENTS FOR MAKING GIFTS OF LAND

1. Yoguo v Agyekum per Ollennu JSC

A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to
the donee, made with the widest publicity which the circumstances of the case may permit.

100 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

For purposes of the required publicity, the gift is made in the presence of independent
witnesses, some of whom should be members of the family of the donor who would have
succeeded to 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.

The gift is acknowledged by the donee by the presentation of drink or other articles to the
donor; the drink or articles are handed to one of the witnesses — preferably a member of
the donee's family, who in turn delivers it to one of the witnesses attending on behalf of the
donor; libation is then poured declaring the transfer and the witnesses share a portion of
the drink or other articles.

Another form of publicity is exclusive possession and the exercise of overt acts of
ownership by the donee after the ceremony

2. Ahmad v Afriyie per Apaloo J

The plaintiff, a royal of Keniago stool in Ashanti, alleged that after having worked for nine
years, from 1950-1959 as a clerk to the stool without any remuneration, the elders of the
stool met and gave him as a gift a stool cocoa farm which had almost become a farmstead
in recognition of his devoted services to the stool.
He entered into possession and plucked the cocoa for two seasons without interruption.
In 1961 the first defendant, who was installed as chief of Keniago, entered the farm in
question with a number of labourers and removed cocoa which was being dried.

• the requirements of customary law for passing good title of the farm to the plaintiff
had been satisfied in that the gift was made in public before witnesses and accepted
by the plaintiff by the payment of aseda and the entry into possession.
A valid customary gift of the land had therefore, been made to the plaintiff by the
Keniago stool in 1959 and that gift was irrevocable.
The plaintiff said when the gift was made to him, he acknowledged it by paying aseda. Yaw
Kubi, a very elderly man who was a boy during the Yaa Asantewa War and who from looks
is much past seventy, said he was present when the gift was made and took part in the drink
which the plaintiff gave as aseda. When a man of this venerable age gives evidence as to
what he saw, I should have very good reason before I reject it. I certainly have none in this
case. I think his evidence, like that of the plaintiff, is the truth.
The plaintiff has of course not been able to substantiate his case by any written record of
the gift. That fact gives me no trouble. It is not reasonable to expect one where the donee
is the only literate person in town. The gift was made in public before witnesses and was
similarly accepted. That satisfies the requirement of customary law and I am satisfied that
good title to the farm passed to the plaintiff in 1959.

101 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

SEM 2

INTRODUCTION TO COMMON LAW PROPERTY RIGHTS IN GHANA

England’s Law of Property Act, 1925, S.205 (1)(x):

102 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Land includes land of any tenure, and mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any
other way) and other corporeal hereditaments; and also a manor, advowson, and a rent and other
incorporeal hereditaments and an easement, right, privilege or benefit in, over or derived from
land.

PROPERTY RIGHTS AGAINST LAND OWNED BY OTHER PEOPLE

Section 281 of Act 1036

“easement” means a right under the rules of common law attached to land and which allows the
proprietor of the land to which allows the proprietor of the land to which the right is attached to
use another land in a particular manner or to restrict the use of the land to a particular extent but
does not include any right capable of existing as a profit or a restrictive covenant.
“profit” means the right at common law to go on the land of another person to take a particular
type of object from that land, whether part of the soil or a product of the soil

Megarry and Wade

An easement confers the right to use the land of another in some way, or to prevent it from being
used for certain purposes. Thus rights of way, rights of water and rights of light may exist as
easements
A profit a prendre gives the right to take something from the land of another. e.g. peat, fish or
wood.
“Right or privilege” means only rights in property known to the law, such as profits or other
incorporeal hereditaments… Rights such as a franchise to wrecks or treasure trove can thus
apparently exist in law.

1. Dalton v Angus per Fry J

The claimants and defendants’ adjoined houses were built independently, but each
had lateral support from the soil on which the other rested. This continued for more
than 20 years.
Then the plaintiffs’ house was converted into a coach factory. The internal walls were
removed and girders were inserted into a stack of brickwork in a way that put much more
lateral pressure on the soil under the adjoining house.

103 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Twenty years after the conversion, the defendants employed a contractor to pull down their
house and excavate.
The contractor was bound to shore up the adjoining buildings and make good all damage.
The defendants’ house was pulled down and the soil underneath it excavated to a
depth of several feet.
As a consequence, the plaintiffs’ stack of brickwork sank and fell, bringing down with
it most of the factory.
The issue was whether the plaintiffs acquired a right of support for their factory by
virtue of their twenty-year enjoyment of the support.

• A right of lateral support from adjoining land can be acquired by twenty years’
uninterrupted enjoyment for a building for which it is proved that was newly built
or altered in a way that increased the lateral pressure, at the beginning of that time
if the enjoyment is peaceable, without deception or concealment and so open that
it is known that some support is being enjoyed by the building.
Therefore, the plaintiffs had acquired the right of support for their factory by virtue
of their twenty years’ enjoyment and can sue the defendants and the contractor for
the damage.
It becomes then of the highest importance to consider of what ingredients acquiescence
consists. In many cases, as, for instance, in the case of that acquiescence which creates a
right of way, it will be found to involve, 1st, the doing of some act by one man upon the
land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the
knowledge of the person affected by it that the act is done; 4thly, the power of the person
affected by the act to prevent such act either by act on his part or by action in the Courts;
and lastly, the abstinence by him from any such interference for such a length of time as
renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the
act being done.
In some other cases, as, for example, in the case of lights, some of these ingredients are
wanting; but I cannot imagine any case of acquiescence in which there is not shewn to
be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the
acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of
such power. That such is the nature of acquiescence and that such is the ground upon
which presumptions or inferences of grant or covenant may be made appears to me to
be plain, both from reason, from maxim, and from the cases.

THE CONCEPT OF TENURE AND ESTATE

104 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Land Law in Ghana: Contradiction between Anglo-American and Customary Conceptions of

Tenure and Practices by L.K. Agbosu
The evolution of the common law of England occurred during the transition from medieval to
modern times. Its development was guided and shaped by the emergence of the capitalist
economic structures that gradually replaced the feudal ones. The common law conceptions of
tenure were rooted in the twin, artificial doctrines of tenures and estates, fed by a web of
tissues woven around a mystical conception of ownership. These doctrines constitute the pivot
around which English land law revolves…
The basic characteristic feature of this historically constituted economic system in England was
the use of landownership by the crown as the basis for organizing political, social, and
economic life. Land in feudal society was the most important economic resource. It was the
basic means of production. Hence its ownership and control carried with it the exercise of
economic and political power over men. Thus the feudal oligarchy, which claimed ownership
over the bulk of the lands, regulated socially people’s relations to the land as the basic means
of production…

Cheshire’s Modern Law of Real Property

Feudal organization of production, distribution, and exchange therefore involved relations of
dependence, subordination, and domination. It was the negation of independence. It implies
subordination, it means that one man is deliberately made inferior to another. It was that feudal
system, which developed in the continent of Europe in the Middle Ages, that William the
Conqueror adopted for the administration of the realm in England after his conquest of 1066.

TENURES

L.K. Agbosu
William the Conqueror took the view that since English landowners had denied his right to the
crown and he had to assert that right by force of arms, their landed possessions became absolutely
vested in him and he could deal with them in any manner he pleased. Having declared allodial
ownership over the lands, William the Conqueror rewarded his Norman followers and those
Anglo-Saxon barons who submitted to his authority by granting them vast areas of land. However,
these land recipients did not thereby become owners of the lands over which they had control.
They held the land from William the Conqueror as the overlord upon condition that they not only
remain loyal to him but also render continuing services to him…
The services for which grantees were permitted use of the land became known as tenures
and were classified according to the nature of the feudal incidents or services. Those who held
the land under military tenure had to render military service— that was the means by which
armed forces were raised for the king and the nobility. The majority of the population,

105 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

however, held the land under socage tenure— that implied the supply of agricultural services.
The tenant by frankalmoign had to render religious services, that is, to pray for the welfare of
the giver of the land, the king.

Bentsi-Enchill, Ghana Land Law

They as tenants in-chief of the crown in turn made lesser grants out of their holdings to various
individuals under similar arrangements whereby various continuing services were to be rendered
in return for the grant. Thus was a pyramid established of land grants being progressively made
downwards and reciprocal services of various kinds flowing up from tenants in actual occupation
of land (tenants in demesne), through intermediate tenants (or mesne lords) to the tenants-in-
chief who were thereby able to render the requisite services to their lord the king

ESTATES
L.K. Agbosu

The estate represents the extent of the individual’s right to seizing. In it, the tenant holds a right
of exclusive user over a time of uncertain duration…

Although feudal production relations were changing in response to new economic circumstances,
the abstract feudal conceptions and theories concerning ownership, estates, and tenures persisted.
If the subject did not own but held an estate in the land, those estates or intangible interests ought
to be classified into various categories so as to fit into the commodity exchange economy. Land is
immovable. But it is possible for several people to exploit the same parcel of land in various
ways for various purposes. A person may have the right to fell the timber. Another may have the
right to cultivate the land for food crops, while yet another might have a right of future use.
These rights could be exercised in respect of the positively identified piece or parcel of land.

In order to transform the land into a marketable commodity, which must move and exchange
hands, corresponding intangible rights must be created as being estates of freehold existing as
categories apart, independent of the immovable property - the concrete, objective, physical entity
to which they relate. In order to become a commodity, therefore, the estate was to be classified
into periods of indefinite duration.

The basis of such classification was the theory of allodial ownership by the crown. Upon the basis
of such a theory, estates were classified corresponding to the hierarchical feudal order that was
being replaced by the capitalist system. The freehold estate thus fully evolved, with the fee simple
emerging as the highest estate that can be held by an individual under English law. Out of the
fee simple, lesser successive estates of fee tail and life estates could be carved.

Initially, only estates of freehold were recognized at common law as landed interests. The only
lawful right to possession of land was tenancy-at-will under which the tenant, having no estate
at all, could be ejected at any time. Leases or term of years later grew outside the system of
estates. They were regarded as personal contracts binding on the parties to it only.

106 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Megarry and Wade, The Law of Real Property

A common feature of all estates of freehold was that the duration of the estate though limited
was uncertain…But the duration was in no case certain to be perpetual, the estate was always
liable to determine if some event occurred…
The word ‘fee’ denoted (i) estate of inheritance (ii) estate might continue forever.
‘simple’ meant heirs general, including collaterals (brothers or cousins)
‘tail’ meant heirs special, i.e. lineal descendants only.
The life estate was not a fee because first, it was not an estate of inheritance and second, it
could not continue forever.

FEE SIMPLE

Megarry & Wade

…virtually eternal, subject only to escheat (reversion of property to the state if it has no verifiable
owner/anyone to inherit it) if the tenant for the time being died leaving no heir.

1. Walsingham’s Case

An owner of an estate in fee simple has a time in the land without end.
An estate in the land is a time in the land, or land for a time
The land itself is another thing, and the estate in the land is another thing, for an estate in
the land is a time in the land, or land for a time and there are diversities of estates, which
are no more than diversities of time.

Does the fee simple exist in Ghana?

1. Golightly v Ashirifi (Kokomlemle Consolidated Cases) per Lord Denning

Okaikor Churu family who had been in possession of land at Kokomlemle since 1875
brought an action against the Atukpai family who started selling land in 1942
The Korle family represented by the Korle priest also joined as co-plaintiff in 1943.
The issues were whether the Korle priest as caretaker had any interest in land and whether
the prior consent of the Ga, Korle and Gbese stools were needed for alienation of land.

• Korle priest was not merely one who looked after land but one who had interest in
it.
• The said stools’ consent was a necessary requirement for alienation of land at
Kokomlele.

107 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…the Korle priest as the caretaker of the lands may make grants of lands to members of
the stool for specific purposes, that is, to farm or to build for the purposes of residence or
trade: but this right can only be exercised over land which is deemed to be unappropriated;

…an outright alienation or sale of the lands can only be effected with the prior consent of
the three stools, the Ga, Gbese and Korle stools and that publicity is necessary in such
transactions, the publicity being a safeguard provided by native customary usage against
the clandestine disposal of land without the knowledge of the necessary parties;

Jackson J

"…by native custom the owner of the usufructuary title cannot transfer that title without
the previous consent and concurrence of the absolute owner"

Therefore, the fee simple does not exist in Ghana since the transfer of the fee simple
does not require prior consent from the Crown.

2. Thompson v Mensah per Ollennu J

Plaintiff sought possession and declaration of title to land at Kokomlele.

His grant was derived from the Korle We alone contrary to the decision in Golightly v
Ashirifi where the court held that the Ga, Gbese stools as well as the family in possession
must consent to the grant as well.

• Plaintiff did not have title since the requirement in the Kokomlemle Consolidated
Cases based on customary law was not met.

The submission of learned counsel based upon the passage quoted from the judgment of
Jackson J., approved of by the West African Court of Appeal in the Kokomlemle
Consolidated Cases, "that by native custom the owner of the usufructuary title cannot
transfer that title without the previous consent and concurrence of the absolute owner"
requires qualification. What the native custom guards against is alienation to the
prejudice of the absolute owner, that is to say, alienation which determines the
recognition of the title of the absolute owner and of the customary services due to him.

Therefore, the fee simple does not exist in Ghana because the usufructuary interest is
not absolute since the allodial title owner would still be recognised.

3. Issiw V Wiabu IV per Anin JA

Respondents (Nyanyano) sued for damages for trespass to land, a declaration of title and
an injunction based on a grant received over a century from the Gomoa Assin Stool.
Appellants claimed they were original owners and that Respondents were licensees.

108 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Trial judge awarded damages for trespass but refused declaration of title on the basis that
the Respondents did not establish that he was the owner in fee simple since he paid tribute
to the Omanhene of Gomoa Assin.

• The Respondents did not need to establish ownership in fee simple since according
to Sarbah and Jackson J, fee simple was non-existent in Ghana.
Thus, a declaration of title in the Respondent’s favour was appropriate.

It is trite learning that Ghana customary land law knows of no estate in fee simple, as
understood in English land law

Woodman Gordon

Admittedly all land in Ghana was once held exclusively by customary-law interests, but
for nearly a century now it has been possible for the parties to a transaction to agree to be
bound by common law. As a result, it is submitted, there are three possibilities of the fee
simple existing in Ghana, although two of them involve controversial points:

1. If government acquires land under the statutory provisions concerning compulsory

acquisition, all previous titles are normally extinguished. There seems no reason why the
government should not subsequently grant a fee simple in such land. This seems a clear
possibility, although it may have occurred very rarely.

2. A stool holding the allodial (or absolute) title in land which is not subject to any other
interest may alienate its title outright. (There is controversy as to whether it may be
alienated to an individual, but it is generally agreed that it may at least be alienated to
another stool.9) The allodial title in such land being the fullest possible interest, there
seems to be no reason why the stool should not agree to be bound by common law, and
grant a fee simple
.
3. A person holding a customary-law usufruct (or determinable estate, or proprietary
occupancy) may today alienate his interest freely. He may do this by a deed of
conveyance in fee simple, which has the effect of passing his entire interest.10 Some
authorities hold that the usufruct is a restricted interest, and is held subject to an
obligation to perform customary services for the holder of the allodial title, and subject to
the right of members of the community to natural fruits.11 However, it is arguable that
today the usufruct is the equivalent of a fee simple.12 If the latter view is correct, a
usufructuary may grant a fee simple.

A citizen who develops a plot of vacant land acquires a usufruct in it.

Today this usufruct gives extensive rights. However, the citizen who holds this interest is
liable to render customary services to the community. If this liability is a concomitant of
his usufruct, it is a restriction on that interest, which is then seen to be a mere subordinate
tenure. It would follow that any grantee, even a stranger, to whom he transfers this
usufruct, will take it subject to the liability. If, on the other hand, the liability is a

109 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

personal duty imposed on all citizens, whether or not they hold land, it cannot be used to
show that the usufruct is a subordinate interest. It may therefore be possible to argue
that the usufruct has become absolute. It would then follow that a stranger who received
a grant of the usufruct would not be subject to the liability.

WORDS OF LIMITATION FOR A FEE SIMPLE

Megarry and Wade

The rule at common law that a freehold estate of inheritance could be created in a conveyance
inter vivos (i.e. the transfer of land between living persons) only by a phrase which included the
word “heirs”. In no other way could a fee simple or fee tail be created. Any attempted grant of
freehold estate in other terms (as “to A” or “to A in fee simple”) gave A merely a life estate

1. British Bata Shoe Co v Roura & Fourgas per Adumua-Bossman JSC

Appellants refused to continue with an internal purchase of a plot of land after their
solicitors informed them that certain conveyances (Exhibits A, B & C) did not vest the
legal freehold or fee simple estate in the respondent since none of the exhibits contained
the words, “which expression shall include his heirs, executors, administrators and assigns
where the context so admits.

• Since the transactions which gave rise to the Exhibits were between non-residents
(Lebanese merchants) and those transactions were embodied in formal
conveyances in English form, English law and not customary law would apply.
• Respondents had no fee simple estate since pursuant to the laws of England in force
prior to 24/7/1874, the word “heirs” following immediately after the name of the
purchaser, grantee or transferee in the habendum of the deed was absolutely to
transfer the legal freehold or fee simple estate to the said purchaser.

…it is my considered opinion that the contents of the three controversial conveyances in
this appeal cannot but be construed or interpreted in accordance with the strict rules of
interpretation of the contents of an English conveyance which were in force in England on
the prescribed date 24 July 1874, the more so as the parties to the said controversial
instruments were all non-indigenous persons or non-natives.

That being undoubtedly the case, the true or correct rule applicable is scarcely in dispute.
That rule, settled long ago, and by a long line of authorities, is that the words "and his
heirs" following immediately after the name of the purchaser, grantee, or transferee, in
the habendum of the deed is absolutely indispensable to transfer the legal freehold or fee
simple estate to the said purchaser.

…in 1628 when Lord Coke published his first Institutes on Littleton's Tenures, and,
discussing the words of limitation necessary to create the fee simple estate, stressed that

110 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

the appropriate words were "and his heirs," he observed that: "they cannot be legally
expressed by any other word or by any periphrasis or circumlocution...

… That being the undoubted state of the law, and it being also clear that the crucial words
"and his heirs" are not in any of the three controversial conveyances, it seems to me to be
beyond argument that the legal freehold or fee simple estate, was not conveyed by each of
the said three documents, and that the appellants' contention to that effect is well-
founded…

… In all the circumstances of the instant case, therefore, it seems to me that the ends of
justice will best be served by allowing the appeal, setting aside the unconditional judgment
for specific performance entered against the appellants, and substituting therefore a
conditional judgment for specific performance for the payment by the appellants of the
agreed purchase price, upon the respondents taking steps to obtain the legal title in the
premises and executing conveyance of the same to the appellants within six months from
date, the payment of the purchase price to be made on the day of execution of the whole
estate, legal as well as equitable, in the land. In default of such conveyance of the legal
estate within six months from date, the respondents' claim for specific performance to stand
dismissed.

2. Biney v Biney per Anin JA

J.P.O. Biney (father of Plaintiff and grandfather of the Defendants) conveyed his freehold
land to his two uterine brothers and a cousin (customary successors) as life tenants;
thereafter to his four children as remaindermen, “their heirs, and assigns” forever
The Plaintiff, the sole survivor of the remaindermen and the donees with life interests,
claimed title to the said land.
The Defendants, children of the Plaintiff’s late brother contended that the remaindermen
were tenants in common.

• J.P.O Biney chose the English device of deed of settlement and disregarded the
matrilineal rules of succession when he gave the proper successors’ only a life
interest.
He intended on applying the English principle of joint tenancy making the Plaintiff
the sole survivor, the only owner of the property.

we find a deliberate intention on the donor’s part to vest his own property in his children
upon a contingency. If the customary right of the owner of self-acquired property to
dispose of it in any way he likes is recalled to mind, then it becomes apparent that the
donor intentionally chose this English device of a deed of settlement in order, on the one
hand, to reduce the quantum of estate of inheritance devolving on his proper successors,
and, on the other hand, to bestow a joint tenancy in his self-acquired estate upon his
children as remaindermen.

111 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

FEE TAIL

An estate in land which endures so long as the original grantee i.e. tenant in tail or any of his lineal
(biological) descendants remained alive

Megarry and Wade

‘Fee tail’ usually represents legal interest while ‘entailed interest’ refers to equitable interest

LIFE INTEREST

It is coextensive with the life of the grantee

Megarry and Wade

First, there is Estate for the life of a tenant … “to A for life”, or by operation of law as in the case
of curtesy and dower
Second there is Estate pur autre vie (for the life of another) … to A for so long as B lives (to A
for the life of X) or
by the owner of a life estate…assigning it to another. Nemo dat quod non habet…: the assignor
could create no interest which would last for longer than his own life.

1. Walsingham’s case

He who has an estate in land for life has no time in it longer than his own life

2. Biney v Biney per Anin JA

Although the life interest is fully alienable (e.g. it can be given as security for a loan) it is
not open to the life tenant, unless he acts with the consent and concurrence of the head and
principal members of the family, to alienate any greater interest or estate. On the death of
the life tenant the interest in the property vests in the family and any disposition by the
life tenant purporting to have any other effect is ineffective.

LEGAL AND EQUITABLE INTEREST

LEGAL INTEREST

Section 32 of Act 1036

112 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

A holder of an interest or right in land may, by an instrument transfer that interest or right to any
person with or without consideration

Section 33 of Act 1036

A conveyance shall only be prepared by a legal practitioner in terms of the Legal Profession Act,
1960 (Act 32)

Section 34 -
A contract for the transfer of an interest in land is not enforceable if the contract is not
(c) evidenced in a writing, and
(d) signed by
(iii) the person against whom the contract is to be proved or
(iv) a person who was authorised to sign on behalf of such person; or
(c) exempt under section 36.

Section 35 of Act 1036

(1) A transfer of an interest in land other than a transfer specified in Section 36 shall be in writing
and signed by
(a) the person making the transfer or by the agent of that person duly authorised in writing; and
(b) the person to whom the transfer is made or the agent of that person duly authorised in writing.
(2) A transfer of an interest in land made in a manner other than provided in this section does not
confer an interest on the person to whom the transfer is made.

Section 36(1)(h) of Act 1036

(1) Sections 34 and 35 do not apply to a transfer or contract for the transfer of an interest in land
which takes effect
(a) by operation of law;
(b) by operation of the rules of equity relating to the creation or operation of resulting, implied or
constructive trusts;
(c) by order of the court;
(d) by will or upon intestacy;

113 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(e) by prescription;
(f) by a lease for a term not exceeding three years, whether or not the lessee is given power to
extend the term;
(g) by a license or profit other than a concession required by an enactment to be in writing; or
(h) by oral grant under customary law.

Resulting Trust

1. Ussher v Darko per Apaloo JA

Sometime after contracting a marriage under the Marriage Ordinance, Cap. 127 (1951
Rev.), E, a barrister of great eminence and repute, took as his paramour M., with whom he
had six children.
In 1946, E. bought a piece of land and had the conveyance prepared in the name of M. who
retained the document of title in her possession.
In 1957, E. built a house on the land and let it to tenants and enjoyed the rents and profits
accruing therefrom and exercised over the property the rights of an owner in possession.
He treated the property as his own and gave such portion of the rents to M. as he thought
fit. In 1970, however, M., without the consent and knowledge of E., purported in reliance
on the 1946 conveyance, to sell the house to the plaintiff, assuring him legal title.
The sale was evidenced by a deed of conveyance which not only described the property
but also stated the price. Before the sale was effected, the plaintiff inspected the property
and met the defendants on the premises as rent-paying tenants.
M. told the plaintiff that the defendants were not known to her as tenants of the premises
and that she did not put them on the premises, neither were they trespassers.
The plaintiff failed to inquire from the defendants who put them on the premises as tenants
or to whom they had been paying rents.
But he was prepared to keep them on as tenants provided they attorned tenant to him and
paid him rents as the landlord.
The defendants refused to do so, contending that E. was still their landlord. The
plaintiff therefore sued, qua landlord, in the circuit court, for an order for possession and
mesne profits.
He sought to tender the 1970 deed of conveyance executed in his favour by M. but it was
rejected as inadmissible by the trial judge because it bore no revenue stamp and it was not
registered as required by section 24(1) of the Land Registry Act, 1962 (Act 122).
When E. learnt of the proceedings after the plaintiff had closed his case, he applied to join
the suit as a co-defendant, alleging that he was the equitable owner of the property sold to

114 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

the plaintiff and that M., the vendor, was a bare trustee of the house with no beneficial
interest.

• The plaintiff's vendor, M., in whose name the property was purchased by E.,
had legal title to the property, but she held that title as a bare trustee, i.e. on a
resulting trust for the purchaser, E, in whom resided the beneficial interest.
The equitable presumption of resulting trust was rebuttable by the equitable
presumption of advancement and such cases were strictly circumscribed: it
was applicable where the purchase was made in the name of a legitimate or
illegitimate child, a grandchild whose father was dead or in the name of a wife of
the purchaser. On the facts of the case there was no presumption of advancement
in favour of M.,
• Since E., the owner of the equitable title was sui juris, he was absolutely entitled to
compel M., his trustee in whom was vested the legal estate, to convey the legal
estate as he directed. If M. refused, E. might apply to the court to constrain her to
do so and M. would have to pay the costs of the application unless she could show
reasonable grounds for her refusal.
If E. were to sell his equitable interest in the property, the purchaser might also call
for a conveyance from M. on the same terms.
"The clear result of all the cases, without a single exception, is, that the trust of a legal
estate, whether freehold, copyhold, or leasehold; whether taken in the names of the
purchasers and others jointly, or in the name of others without that of the purchaser;
whether in one name or several; whether jointly or successive, results to the man who
advances the purchase-money."
The upshot of this is that unless this equitable presumption is displaced by yet another
equitable presumption - the doctrine of advancement, the correct position is that the legal
title to the property in dispute was vested in Matilda, while the beneficial or equitable title
remained in Sir Edward…
…The rule which raises a presumption that a purchase in the name of another was
intended as an advancement or provision for the latter, so as to preclude a resulting trust
from arising for the purchaser until that presumption has been rebutted, is applicable
where the purchase was made in the name of a legitimate or illegitimate child, or in the
name of a grandchild whose father is dead, or in the name of the wife of the purchaser.
In all these cases the rule is definite and clear, that the purchase is prima facie to be
taken as a provision or advancement for the person in whose name the purchase has
been made.

Constructive Trust

115 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

1. Dzidzienyo v Dzidzienyo per Charles J

Mr. E.A. Dzidzienyo was the lessee of plots 123 and 125, Prince of Wales Road, Takoradi,
on which he had erected a house.
In 1949 the Government of Ghana, as lessors, re-entered the plots for breach of covenant.
The plots were, however, shortly afterwards re-offered to E.A. Dzidzienyo.
He died, intestate, on the 19th July 1949, before he could accept the offer. The Plaintiff
was appointed his successor at customary law.
In July 1951, as a result of her application to the court, the first defendant was granted
letters to administer the estate of E. A. Dzidzienyo.
The government renewed the offer of the lease in respect of the two plots to her in her
capacity as administratrix.
She accepted the offer. The lease was, however, prepared in her personal, not
representative, capacity.
She granted a sub-lease of the plots to Edward Ramia, the second defendant here in on the
24th October 1957 (exhibit 1) Edward Ramia in his turn mortgaged his interest to the
Barclays Bank, Takoradi, the co-defendants herein (exhibit 2).
On Ramia failing to pay the mortgage debt the bank exercised their rights under the deed
of mortgage and sold the properties.
The plaintiff thereupon as successor sued Janet, Ramia and the bank for a cancellation of
the under-lease of the 24th October, 1957, and for setting aside the sale on the ground that
the properties are family properties, and Janet could not properly deal with them without
the knowledge and consent of the family.

• The first defendant got the lease of the plots because she was the administratrix,
she held the said lease as a constructive trustee for the persons entitled to the
beneficiary interest in the estate of E. A. Dzidzienyo.
As a trustee, she had the legal interest and she was competent to grant a valid under-
lease to the second defendant.
In the absence of evidence of fraud or collusion, the under-lease, exhibit 1, is, for
this other reason, valid;
• The under-lease can be set aside if among other things, the parties can be restored
to the position they occupied before the transaction. In the instant case this end is
impossible to achieve, as Ramia had mortgaged his interest, and the bank had sold
the property in exercise of their rights under the deed of mortgage.
As the leases were granted to the first defendant in her personal capacity solely because
she was the administratrix of the estate of the late E. A. Dzidzienyo, I hold that she holds
the leases as a constructive trustee for the beneficiaries of the late E. A. Dzidzienyo
because an administratrix is not allowed to use her position as such and derive any
benefit therefrom. As a trustee the legal estate in the leases vests in her and therefore it
is competent for her to grant an under-lease for value provided there is no collusion or
fraud between her and the under-lessee, second defendant…

116 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…In Adjei v. Appiagyei, it was held, inter alia, that a transaction by head of family
involving family property, but without the consent of concurrence of the family, is
avoidable at the instance of the family but the court will not declare the transaction void
unless it is satisfied that the family have not acquiesced in the transaction, that they have
acted timeously and with due diligence and that the innocent party affected by the
transaction can be restored to the position he occupied before the transaction took place…
…As the co-defendants have exercised their power of sale under the mortgage the parties
cannot be restored to their original position. I therefore declare the under-lease granted
to E. Ramia, the second defendant, in respect of the property in dispute valid.

EQUITABLE INTEREST

Section 36(2) of the Land Act, 2020 (Act 1036)

Sections 34 and 35 are subject to the rules of equity including the rules relating to
unconscionability, fraud, duress and part-performance.

1. Sbaiti v Samarasinghe per Lamptey AG J

The defendant entered into an oral agreement with the plaintiff to let to the plaintiff for a
term of five years premises, not then completed, at an annual rent of ¢5,000.00 for use as
a school.
The agreement was never reduced into writing, but a note (exhibit A) confirmatory of
the lease was prepared by the defendant for the plaintiff to show to the Ministry of
Education. To ensure early completion of the building, the plaintiff supplied building
materials worth ¢8,000.00.
As from December 1974 the plaintiff was let into possession of the defendant’s outhouse,
for which he paid no rent.
When the main premises were completed the defendant refused to give possession to the
plaintiff who therefore sued for specific performance.
The defendant counterclaimed for rent from December 1974 at ¢150 per month, damages
for waste and recovery of possession.

• The evidence clearly showed the essential terms of the tenancy and that the
defendant had taken the benefit under an oral contract partly performed by
the plaintiff.
It was therefore only fair, just and equitable that she should accept the burden of
performing her part of the oral agreement.

117 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

This was one of the cases of an equity created by estoppel where the defendant must
and ought to be compelled to perform her part of the contract the benefits of which
she had accepted.
Consequently, the plaintiff was entitled to an order of specific performance of the
agreement.

In my judgment the instant case is one in which the evidence clearly shows that the
defendant has taken the benefit under an oral contract partly performed by the plaintiff
and that it is only fair, just and equitable that she accepts the burden of performing her
part of that oral agreement. It seems to me, as indeed Dankwerts L.J. saw it, that this is
one of the cases of an equity created by estoppel.

In conclusion I resolve the issues set down for determination in the manner following:
(1) There was an oral agreement to lease the premises for use as a school.
(2) In pursuance of that agreement the plaintiff advanced building materials but not cash
to the
defendant for the completion of the building.
(3) The plaintiff is entitled to the specific performance of the said agreement.
(4) The defendant is not entitled to all the reliefs claimed in her counterclaim.
Accordingly I enter judgment for the plaintiff against the defendant on his claim and make
the following order:
Let the defendant put the plaintiff into occupation and possession of the new premises
adjacent to house number 45, Seventh Avenue Extension, Accra, forthwith

2. Djan v Owoo per Edusei J

The first defendant orally agreed to sell his house situate at No. 2 West Loop, Tosano,
Accra, for ¢25,000.00 to the plaintiff.
The plaintiff paid, inter alia, a deposit to ¢2,500.00 and obtained two receipts signed by
the first defendant in which the names of the parties appeared, and the house to be sold was
described.
The plaintiff subsequently asked his bankers to issue two cheques, one to the first defendant
in full payment of the balance of the purchase price, and the second cheque to the second
defendants to redeem the property which had been mortgaged to them by the first
defendant.
The first defendant refused to complete the sale and later returned the cheques to the
plaintiff's bankers.
The plaintiff thereupon instituted this action against the first defendant for specific
performance of the agreement to purchase the house.

118 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• Although the contract was in writing, included the names of parties and property to
be transferred, since there was no purchase price the contract in writing was
incomplete per Section 2(a) of N.R.C.D. 175
• s. 3 (2), however provided that sections 1 and 2 were subject to the rules of
equity including the rules relating to part-performance.
There had been sufficient part-performance by the plaintiff of the contract
and specific performance would be granted.
The doctrine of part-performance is the child of equity and it has now, like most rules of
equity, assumed the force of common law. Even though there is no memorandum in
writing to satisfy section 2 (a) of the Conveyancing Decree, 1973, yet if there is an oral
agreement followed by a sufficient act of part-performance the result in equity is in effect
to exclude the operation of the statute. But before this doctrine can be invoked there must
be evidence of part-performance by the party who wishes to sue.

3. Tahiru v Mireku per Ampiah JA

The defendant agreed to sell his house to the plaintiff for ¢250,000. It was agreed that
payment was to be by instalments.
In pursuance of the agreement, the plaintiff paid the sum of ¢125,000 which was recorded
in exhibit A (receipts and payments table) prepared in respect of the agreement.
Later, when the plaintiff paid the balance to the defendant, he refused to accept it on the
ground that the plaintiff had delayed payment and he had subsequently sold the house to
the co-defendant for ¢500,000.
The plaintiff sued claiming specific performance of the agreement and damages for breach.
The defendant denied the plaintiff ‘s claim and contended that time was of the essence of
the agreement and that he gave the plaintiff notice before the resale.
The co-defendant on his part contended, inter alia, that since the transaction between the
plaintiff and the defendant was for a disposition of an interest in land it should have been
in writing for it to be enforceable.
The court found that
(i) initially time was not of the essence of the agreement, but when it became of the
essence, the plaintiff paid the full balance which when rejected, was paid into court;
(ii) the defendant fraudulently agreed to sell the disputed house to the co-defendant at
a much higher price;
(iii) the co-defendant had notice of the prior interest of the plaintiff; and
(iv) the plaintiff had to sell his own house to enable him get money for payment of the
balance of the purchase price into court upon refusal by the defendant.
• Section 2(a) was satisfied in light of the required elements in Djan v Owoo
• there was overwhelming evidence showing that there was a parole agreement for
the house in dispute and no other title.

119 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiff made part-payment of the purchase price, and the defendant made use
of the money to the detriment of the plaintiff.
Accordingly, refusal to enforce the agreement would amount to fraud in the
defendant.
The nature of the agreement was such that it could be enforced by the grant of
decree of specific performance.
The doctrine of part-performance simply explained is an equitable remedy recognised by
law, that where a contract for the sale or other disposition of land or an interest in land
is not evidenced by writing it may nevertheless be enforced by a decree of specific
performance if it has been partly carried into effect. The attitude adopted by equity is
that it would be fraudulent for a defendant to take advantage of the absence of a signed
memorandum if he stood by and allowed the plaintiff to alter his position for the worse
by carrying out acts in performance of the contract.

4. Koglex Limited v Field per Acquah CJ

The managing director of Koglex Limited approached Mrs. Kate Field, the defendant
herein, for a lease of her property No. C16/5 Ring Road Central, Accra known as Meridian
Industries.
Annual rent of one hundred and twenty thousand cedis (¢120,000) together with the
payment of five years rent advance were agreed upon. The five years rent advance totalled
up to six hundred thousand cedis (¢600,000).
On 4th September 1985, Mr. Erawoo (MD) made part-payment of ¢100,000.
A receipt to this effect was duly made by the defendant and indeed tendered in evidence as
exhibit A. The following day, 5th September 1985, a further ¢100,000 was paid, leaving
the outstanding balance at ¢400,000.
The plaintiff’s solicitor wrote to the defendant's solicitor, protesting at the defendant's
resort to the police once "all the terms of the lease were agreed upon by all present" at the
14th September meeting.
The letter further requested the defendant's solicitor to expedite the completion of the lease
document.
In a letter dated 30th September 1985, tendered as exhibit E, the defendant's solicitor
reacted to the plaintiff’s letter of 27th September, by denying that all the terms were agreed
at the 14th September meeting, and further informed the plaintiff that the defendant was
"no longer interested in any further negotiations regarding plaintiff’s offer to take the lease
of the said premises".

Indeed to establish facts amounting to part-performance, what is required of a plaintiff

is to show that he had acted to his detriment and that the acts in question are such as to
indicate on a balance of probabilities that they were performed in reliance on a contract
with the defendant. As DW1 made it clear in his evidence at page 81: "A. The defendant

120 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

from the onset was prepared to give that place to PW1 and to him only." And on the basis
of this firm promise, she collected rent advance of ¢200,000, caused the plaintiff to incur
extra expenses in getting a draft lease, convened a meeting on 14th September, 1985 to
discuss and agree on the draft lease and her comments, and sealed the whole agreement
with the pouring of libation which was provided by the plaintiff in cash. If these facts do
not establish a concluded agreement, then I do not know what further facts are needed.
As said earlier specific performance would be granted where it would be fraudulent on
the part of the defendant to take advantage of the contract not being in
writing…Consequently our section 3(2) of the Conveyancing Decree 1973 (NRCD 175)
provides that sections 1 and 2 thereof requiring some writing to evidence transfer and
contracts to transfer an interest in land, shall be subject to the rules of equity.

How is Equitable Interest created?

1. Djan v Owoo per Edusei J

Proprietary Estoppel

1. Ramsden v Dyson per Lord Kingsdown

‘The rule of law applicable to the case appears to me to be this: If a man, under a verbal
agreement with a landlord for a certain interest in land, or, what amounts to the same
thing, under an expectation, created or encouraged by the landlord, that he shall have a
certain interest, takes possession of such land, with the consent of the landlord, and upon
the faith of such promise or expectation, with the knowledge of the landlord, and without
objection by him, lays out money upon the land, a Court of equity will compel the landlord
to give effect to such promise or expectation.’

2. Pascoe v Turner per Cumming-Bruce LJ

The plaintiff, a businessman with investments consisting of private and commercial

property, met and became friendly with the defendant, a widow with a small amount of
invested capital.
In 1968 the defendant moved into the plaintiff’s home as his housekeeper and also helped
him with his business.
They subsequently lived as man and wife, although the defendant declined the plaintiff’s
offer of marriage.

121 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiff began a relationship with another woman, with whom he later went to live.
The plaintiff then told the defendant that she had nothing to worry about and that the house
and its contents were hers, but no conveyance was ever drawn up.
The defendant continued to live in the house and, with the plaintiff’s full knowledge
and encouragement, spent a quarter of her modest capital on repairs, improvements
and redecorations to the house.
In 1976 the plaintiff and the defendant quarrelled. On 9 April, the plaintiff’s solicitors
wrote to the defendant giving her two months’ notice to ‘determine her licence to occupy’
the house and demanded possession on 10 June.
The defendant refused to leave the house.

• In the circumstances equity required the defendant to be granted a remedy assuring

her security of tenure, quiet enjoyment and freedom of action in respect of repairs
and improvements without interference from the plaintiff.
The plaintiff would therefore be required to give effect to his promise and the
defendant’s expectations, and to perfect the gift.

So the principle to be applied is that the court should consider all the circumstances and,
the counterclaimant having at law no perfected gift or licence other than a licence
revocable at will, the court must decide what is the minimum equity to do justice to her
having regard to the way in which she changed her position for the worse by reason of
the acquiescence and encouragement of the legal owner…
…This court appreciates that the moneys laid out by the defendant were much less than in
some of the cases in the books. But the court has to look at all the circumstances. When the
plaintiff left her she was, we were told, a widow in her middle fifties. During the period
that she lived with the plaintiff her capital was reduced from £4,500 to £1,000. Save for
her invalidity pension that was all that she had in the world. In reliance on the plaintiff’s
declaration of gift, encouragement and acquiescence she arranged her affairs on the basis
that the house and contents belonged to her. So relying, she devoted a quarter of her
remaining capital and her personal effort on the house and its fixtures. In addition she
bought carpets, curtains and furniture for it, with the result that by the date of the trial she
had only £300 left. Compared to her, on the evidence, the plaintiff is a rich man. He might
not regard an expenditure of a few hundred pounds as a very grave loss. But the court has
to regard her change of position over the years 1973 to 1976.

3. Re Basham per Edward Nugee QC

The deceased married the plaintiff’s mother when the plaintiff was 15.

122 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

From then until the deceased retired some 30 years later the plaintiff worked for the
deceased without payment, helping him to run various public houses and a service station.
The plaintiff, her husband and their children formed a very close-knit family with the
deceased and the plaintiff’s mother and always lived nearby.
The deceased owned a cottage and had on numerous occasions indicated to the
plaintiff that she would get the cottage when he died in return for what she had done
for the deceased. He reiterated that intention on his deathbed. His family also
understood that the cottage would go to the plaintiff on his death.
The deceased died intestate leaving an estate of some £43,000 comprising the cottage
valued at £21,000 and cash of £23,000, less funeral expenses and some small debts.
His next of kin who were entitled to the estate on the intestacy were two nieces who were
the administrators of the estate.
The plaintiff brought an action against the nieces seeking a declaration that she was entitled
to the deceased’s estate because the deceased had induced and encouraged in her the
expectation or belief that she would receive the estate on his death and she had acted to her
detriment in reliance on that expectation thereby raising a proprietary estoppel in her
favour.

• Since the plaintiff’s belief that she would inherit the deceased’s estate had been
encouraged by the deceased and since the plaintiff and her husband had acted
to their detriment in subordinating their own interests to the wishes of the
deceased in reliance of the plaintiff’s belief that she would inherit, the plaintiff
had established a proprietary estoppel and was entitled to the estate

Estate Contracts (Rule in Walsh v Lonsdale)

1. Walsh v Lonsdale per Jessel MR

The Defendant on the 29th of May, 1879, agreed to grant and the Plaintiff to accept a
lease of a mill for seven years at the rent of 30s. a year for each loom run, the Plaintiff not
to run less than 540 looms.
The lease to contain such stipulations as were inserted in a certain lease of the 1st of
May, which was a lease at a fixed rent made payable in advance, and contained a
stipulation that there should at all times be payable in advance on demand one whole
year's rent in addition to the proportion, if any, of the yearly rent duo and unpaid for
the period previous to such demand.
The Plaintiff was let into possession and paid rent quarterly, not in advance, down to the
1st of January, 1882, inclusive, having run in 1881 560 looms.
In March, 1882, the Defendant demanded payment of £1005 14& S. (£840 as one whole
year's rent for 560 looms at 30& S., and £165 14& S. as the proportionate part of the rent
from the 1st of January last), and put in a distress.

123 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The Plaintiff thereupon commenced his action for damages for illegal distress, for an
injunction, and for specific performance, and moved for an injunction

• Plaintiff holding under the agreement was subject to the same right of distress
as if a lease had been granted, and that if under the terms of the lease a year's
rent would have been payable in advance on demand a distress for that was
lawful.
There is an agreement for a lease under which possession has been given. Now since the
Judicature Act the possession is held under the agreement. There are not two estates as
there were formerly, one estate at common law by reason of the payment of the rent from
year to year, and an estate in equity under the agreement. There is only one Court, and the
equity rules prevail in it. The tenant holds under an agreement for a lease. He holds,
therefore, under the same terms in equity as if a lease had been granted, it being a case
in which both parties admit that relief is capable of being given by specific performance.
That being so, he cannot complain of the exercise by the landlord of the same rights as
the landlord would have had if a lease had been granted.
On the other hand, he is protected in the same way as if a lease had been granted; he
cannot be turned out by six months' notice as a tenant from year to year. He has a right to
say, "I have a lease in equity, and you can only re-enter if I have committed such a breach
of covenant as would if a lease had been granted have entitled you to re-enter according
to the terms of a proper proviso for re-entry." That being so, it appears to me that being a
lessee in equity he cannot complain of the exercise of the right of distress merely because
the actual parchment has not been signed and sealed.

Types of Notice (Constructive Notice)

Megarry & Wade

Estates contracts.
Equity would decree specific performance of certain contracts which were remediable only by
damages at Common Law. Of these the most important were contracts for the sale or lease of
land, now called estate contracts. A purchaser under contract to buy land had therefore at
common law only a right to damages if his vendor broke the contract. But in equity he had a right
to compel his vendor to convey the land itself. This right to specific performance created a right
in the land a species of equitable property right. Therefore, if A agreed to sell land to B, but
instead later sold and conveyed it to C, B could recover the land from C if C had notice of B’s
contract when he obtained the land. B was equitable owner from the time of the contract and
could enforce (his) equitable right to the land against anyone except a bona fide purchaser of a
legal estate without notice of the contract.”

124 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

1. Amuzu v Oklika per Atuguba JSC

In October 1987 the appellant, on behalf of his principal, agreed to purchase from the
vendor a piece of land with an uncompleted building on it for ¢9 million.
The parties agreed that the appellant was to pay a deposit of ¢4.5 million which the vendor
was to use in completing the building and the balance to be paid on completion of the
building and transfer of the property to the appellant.
The parties reduced the transaction into writing, exhibit D dated 30 November 19987.
The appellant duly paid the deposit.
After a few months when the vendor failed to carry on with the work on the building, the
appellant took possession of the land and continued with the construction of the
building at his own expense.
However, on or about 11 May 1988 while the appellant was still in possession of the land,
the vendor surreptitiously granted the same piece of land to the respondent for ¢6.5
million and hurriedly prepared and executed a conveyance, exhibit B, for the
respondent who had it duly stamped and registered with the Land Registry.
At the trial the circuit court found, inter alia, that:
(i) not only did the respondent who was a friend of the plaintiff’s principal
know of the sale of the disputed plot to the appellant but had sought the
appellant’s assistance to be sold the plot next to the disputed one;
(ii) the respondent was aware that the appellant had taken possession of the
uncompleted building on the land and was carrying on with further construction to
complete it.
However, the trial judge gave judgment for the respondent and dismissed the appellant’s
counterclaim on the ground that the title deed of the respondent, exhibit B, had fully
described his root of title, had been stamped and registered under the Lands Registry Act,
1962 (Act 122), while the appellant’s document, exhibit D, had neither described his root
of title nor had been registered under Act 122, and therefore, by the provision of
section 24(1) of Act 122, exhibit D was ineffective and invalid.

• The Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of
notice and fraud and neither had it conferred on a registered instrument a state-
guaranteed title.
Besides, since equity would not permit a statute to be used as an instrument of fraud
or inequitable conduct, section 24(1) of Act 122 should not be interpreted in a way
that would facilitate fraud in the acquisition and sale of lands.
The legal question arising in this case is whether section 24(1) of the Land Registry Act,
1962 (Act 122) is so rigid that no matter the compelling justice of a situation, it must, like
Shakespeare’s Merchant of Venice, exact its pound of flesh? In short, is there any
protection for a victim of fraud or unjust enrichment under that provision? It must be

125 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

conceded that on a strict adherence to the case law the answer to this question is plainly
in the negative…
…In this case, the fraudulent conduct of the appellant’s vendor and that of the
respondent per his agent in Ghana, on the evidence, stinks. It will be piteous that equity
which can relieve even against the plain words of a substantive statute can fail to do so
by the rules of form (which it avowedly says must yield to substance) contained in
subsidiary legislation. Rules which the courts have said are handmaids to the
administration of justice and not masters...
…the operation of sections 24(1) and 25 of Act 122 ought not to be hindered unless there
is compelling evidence, whether from constructive or actual notice of a prior
unregistered instrument, in such circumstances that a party ought not to benefit from
conduct arising from digniori detur.

CO-OWNERSHIP OF LAND

Section 40(3) of the Land Act, 2020 (Act 1036)

A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall
create an interest in common and not in joint tenancy, unless it is expressed in the conveyance that
(a) the persons to whom the conveyance is made take the interest jointly, or as joint tenants, or
(b) the conveyance is made to them and the survivor of them, or unless it manifestly appears from
the conveyance that it was intended to create an interest in joint tenancy.

JOINT TENANCY

1. Fenuku v John Teye per Ampiah JSC

In 1954, Mr and Mrs Fenuku jointly purchased the disputed land.

The transaction was evidenced by a deed of purchase, exhibit B. Mrs Fenuku died in 1958.
In 1969, Mr Fenuku remarried one Miss Victoria Teye, the sister of Mr John Teye, the
proprietor of Reverend John Teye Memorial Institute.
In the same year, ie in 1969, Mr John Teye moved his institute to the disputed land.
In 1974, Mr Fenuku sold the same land to Mr John Teye, reserving a small portion of the
land which was gifted to his son.
The sale transaction was evidenced by a deed of sale, exhibit F.

126 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiffs, the children of the late Mr Fenuku and the joint administrators of his estate
sued in the High Court, the first and second defendants, the widow and son respectively of
the late Mr John Teye and the administrators of his estate.
The plaintiffs claimed for a declaration of title to the disputed land and an order for
cancellation and nullification of the 1974 deed of sale, exhibit F.
They contended; first, that since the land had been jointly purchased by their parents, Mr
and Mrs Fenuku, the father alone, ie Mr Fenuku was not entitled to dispose of the whole
land to Mr John Teye.

• By the provision in section 14(3) of the Conveyancing Decree, 1973 (NRCD 175),
which came into force on 1 January '1974, the English common law rule, which
created a presumption of joint tenancy in the absence of any words of severance
where property had been purchased by two or more persons, ceased to apply.
In the instant case, at the time of the death of the wife in 1958, the existing law was
the same English common law. And since there had not been any partitioning of
the disputed property at the time of the death of the wife, the 1954 deed of purchase,
exhibit B, created a joint tenancy, which by operation of. law, vested the whole
property in the husband.
It is not disputed that in 1954, the English common law rule of interpretation was
applicable. Under that common law, a conveyance of an interest in land to two or more
persons simply without words of severance gave rise to a presumption in favour of joint
tenancy; in that event, the persons became joint tenants holding a single undivided title
or interest in the land. Accordingly, the incidence of jus accrescendi by which the
property vested wholly in the survivor or survivors upon the death of one or two of the
joint purchasers, became applicable.

2. Adomako & Adomako v Owusu Asiedu per Dr. Date-Bah JSC

The plaintiffs, a Ghanaian married couple resident in Canada, jointly bought a

commercial property in Korle Gonno, Accra.
Because they were non-resident in Ghana, they made the defendant's husband a
caretaker of the property.
As caretaker, he lived on the premises with his wife, the defendant in this case.
After the defendant's husband died, the second plaintiff decided to ask the defendant
to give up possession of the house, since in her view the defendant was not looking
after the property well, but the defendant refused to do so.
The defendant's defence was that the first plaintiff had given his half-share of the
property to her husband as a gift.
The court of appeal in upholding the trial court’s judgment in favour of the Plaintiffs, held
that where, as in this case, property is owned jointly (as opposed to tenancy in common)
either party may alienate his interest only with the knowledge and consent of, or with the

127 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

concurrence and approval by, or in concert and consultation with, the other joint owner for
obvious reasons.”

• The said deed of gift did not qualify as a deed in a legal sense and thus the appeal
failed again
• However, the statement of law on joint tenancy was wrong since an alienation
was not barred but only acted as severance.
This statement of the law is, with the greatest respect, incorrect because alienation by a
joint tenant of his or her interest without the knowledge or consent of the other joint
tenant will usually be an act of severance by which the joint tenancy is converted into a
tenancy in common. An act of severance determines the joint tenancy

3. Re K (Deceased) per Ackner LJ

In one of a man’s uncontrollable rages resulting in usual domestic violence upon his wife,
she picked up a loaded gun, took of its safety catch intending to threaten him but
accidentally shot and killed him.
He had bequeathed £1000 pounds to her and his will left nothing else.
The questions were whether she could benefit from the right of survivorship as well as
the will in light of the common law forfeiture rule and whether she was entitled to be
relieved from forfeiture.

• A threat of violence was serious enough for forfeiture and severance occurs if one
beneficiary unlawfully kills another
Thus she stood to lose her half share in their property
• Taking into account their conduct (the fact that she was abused and it was
unintentional) and the wife’s financial position it was just for the wife to be
relieved from forfeiture

4. Re Percher

• The law imposes a constructive trust of one undivided half share for the benefit of
the next of kin of the deceased other than the killer

TENANCY-IN-COMMON

128 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

1. Agyentoa v Owusu per Bamford Addo JSC

House No. O.T.77 Kumasi was built by one Madam Afua Mensah, who had two children
namely Elizabeth Victoria Mensah and Daniel Owusu.
During Madam Afua Mensah's lifetime she sold half of the house to one A.D. Agboloso.
After the sale the house was numbered as O.T. 77A and O.T.77B and Afua Mensah retained
that part numbered O.T. 77A.
Afua Mensah died in 1950 leaving a Will (Exhibit B) in which she bequeathed to her son
Daniel Owusu and her daughter, Elizabeth Victoria Mensah her portion of the said
house “absolutely” for their use.
When Daniel Owusu also died in 1959 intestate, he was succeeded by his uterine sister
Elizabeth Victoria Mansah PW1.
The latter obtained Letters of Administration in respect of the estate of her deceased brother
and also a lease in respect of the house.
When Daniel Owusu died his children i.e. the defendants were too young and so left to live
with relatives, but after 16 years they returned to live in their father's house and occupied
two rooms which their father had occupied in his lifetime rent free.
In 1984 the plaintiff Madam Akosua Agyentoa bought the whole house from Elizabeth
Victoria Mensah PW1, who had perfected her title document on the House.

• Since the Will contained the word “absolutely” her half share property was
devised to the Defendants as tenants in common.
Thus Victoria Mensah could not sell the whole of her property but only her
half share while the remaining half went to the children of Daniel Owusu.
That court thoroughly considered the law and came to the conclusion that the principal
issue in the whole case was, whether the devise in the Will of Afua Mensah to her children
Elizabeth Victoria Mensah and Daniel Owusu concerning house No. OT 77A granted an
interest of tenancy in common or joint tenancy to her children. It ruled correctly that
interest created by use of the word "absolutely" in the Will was that of tenancy in Common,
and relied on the principle in the case of Biney v. Biney (1974) 1 GLR 318. That case also
relied on the case of Bata Shoe Co Ltd v. Roura and Forgas (1964)…
…In this case the court found that the law applicable to the situation was English Law and
held that the interest of Daniel Owusu created by the Will was tenancy in Common. He
therefore held separate and distinct interest or share in the house which would descend on
his death intestate on his personal representatives, according to the applicable customary
law at the time of his death.

129 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

LEASES

Intro

Section 6(a) of Act 1036

A lease…is an interest in land for a duration which is certain or capable of being ascertained

Section 6(b)-(d)
Holders of the allodial title, customary law freehold, common law freehold or usufrutuary interest
can convey a leasehold interest subject to terms and conditions.
Holder of leasehold interest may grant a sublease out of his interest or assign his whole leasehold
interest (assignment) to another person
A lease does not exhaust the interest of the grantor in the land.

1. Nana Bediako Atwere v Osei-Owusu per Owusu JSC

“A Leasehold is an interest granted by the owner of land to a person to occupy his land
for a specified period. A leasehold interest is a creation of the common law and not
customary law.” See Ghana Land Law And Conveyancing (2nd edition) by BJ da Rocha
and CHK Lodoh p. 5

2. National Carriers v. Panalpina (Northern) Ltd - check Dowuna-Hammond

There was a lease of a warehouse for 10 years.

After 5 years of the term had run, the Local Authority closed the street giving the
only access to the warehouse because of the dangerous condition of a building
opposite.
It was likely that the closure would last about 18 months, leaving the lease 3 more years to
run.
This caused severe disruption of the plaintiff's business and the use of the warehouse.

• The court held that the lease was not frustrated.

In this case, the House of Lords stated conclusively that the doctrine of frustration must
be applicable to all kinds of contracts to ensure uniformity in the law of contracts, and
there was no special reason why the doctrine should not apply to leases

130 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

3. Street v Mountford per Lord Templeman

…there is no doubt the traditional distinction between a tenancy and a license of land lay
in the grant for a term at rent with exclusive possession

4. Asburn v Arnold

5. Lace v Chantler per Lord Greene MR

The plaintiff was tenant of a dwelling-house which she sub-let to the defendant at the rent
of 16s. 5d. a week.
The agreement for the sub-letting was partly oral and partly by conditions contained in the
rent-book, one of those conditions being expressed by the words "furnished for duration."
The plaintiff alleged that the defendant had removed certain articles which were her
property, contrary to the conditions of the agreement; and she gave him notice to quit.
As the defendant did not comply with the notice, the plaintiff brought an action for
possession in the county court.
Among the grounds of defence to the action in the county court was the following:
"The said dwelling-house was let to the defendant for the duration of the war."

• a tenancy "for the duration of the war" does not create a good leasehold interest,
the term, when the agreement takes effect, being uncertain, and, also, that it was
impossible to construe this tenancy as a lease for a long period, e.g., ninety-nine
years, determinable on the cessation of the war.
The question immediately arises whether a tenancy for the duration of the war creates a
good leasehold interest. In my opinion, it does not. A term created by a leasehold tenancy
agreement must be expressed either with certainty and specifically or by reference to
something which can, at the time when the lease takes effect, be looked to as a certain
ascertainment of what the term is meant to be. In the present case, when this tenancy
agreement took effect, the term was completely uncertain. It was impossible to say how
long the tenancy would last

Duties of the Lessor

Section 50 of Act 1036

Implied Covenants by Transferor.

131 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(1) In a conveyance for valuable consideration there are implied the covenants of right to convey,
quiet enjoyment, freedom from encumbrances and further assurance, in the terms set out in Part I
of the Second Schedule.
(2) In a conveyance by way of assignment or sublease of leasehold property for valuable
consideration, there shall be implied, the further covenants relating to validity and past
observance of the head lease, in the terms set out in Part II of the Second Schedule.
(3) In a conveyance by way of sublease of leasehold property for valuable consideration there
shall be implied the further covenants relating to future observance of the head lease and
production of title deeds and delivery of copies, in the terms set out in Part III of the Second
Schedule.

Duties of the Lessee

Section 51 of Act 1036

Implied Covenants by Transferee.
(1) In a conveyance by way of lease for valuable consideration there shall be implied the covenants
relating to payment of rent, repair to adjoining premises, alterations and additions, injury to walls,
assignment and subletting, illegal or immoral user, nuisance or annoyance, and yielding up the
premises, in the terms set out in Part I of the Third Schedule.
(2) In a conveyance by way of sublease for valuable consideration there shall be implied the further
covenants relating to future observance of the head lease and permitting repair under the head
lease, in the terms set out in Part II of the Third Schedule.
(3) In a conveyance by way of assignment for valuable consideration of all the land comprised in
a lease, there shall be implied the covenants relating to payment of rent, future observance of the
head lease, and indemnity, in the terms set out in Part III of the Third Schedule; and where a rent
has been apportioned in respect of any land, with the consent of the lessor, the covenants in this
subsection shall be implied in the conveyance of that land in the same manner as if the apportioned
rent were the original rent reserved, and the lease related solely to that land.

LANDLORD / TENANT RELATIONSHIP

INTRODUCTION

132 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

1. Bassil v Said Raad per Ollennu J

The plaintiff had entered into a tenancy agreement with the defendant for a period of five
years at a monthly rental of £55. The plaintiff had accepted rent at the rate of £45 a month.
He claimed that this was a temporary concession to the defendant who remained liable for
the balance:
The defendant claimed that the reduction had been a complete and permanent one and had
been prompted in the plaintiff by the fear that if he did not reduce the rent voluntarily the
Rent Assessment Committee would do so compulsorily.
The plaintiff sought, inter alia, recovery of possession under the Rent Control Ordinance,
s. 11 (1) (a) on the grounds of non-payment of· rent and breach of covenant.
The covenant alleged to have been broken was one that prohibited sub-letting without
consent: breach of this covenant did not, under the terms of the agreement, involve
forfeiture.

• receipts for rent paid by the defendant after January 1953 were couched in such
terms as to indicate that the full amount of rent then due was £45, and not that £45
was received on account of the larger sum.
• Since at common law there can be no forfeiture for breach of covenant under
a lease unless there is express provision in the lease for re-entry, there could
be no forfeiture in the present case since there was no such provision
The Rent Control Ordinance has not done away with the common law provisions relating
to landlord and tenant. All it does is to place certain limitations upon the exercise of the
landlord's rights at common law so as to give greater security to the tenant. Beyond that it
does not go.

2. Sarfo v Badu per Roger Korsah J

The plaintiff as landlord sued the defendants in the District Court Grade II, Kumasi for an
order of ejectment on the ground that the first defendant had refused to attorn tenant to him.
The plaintiff alleged that the house had been devised to him by a will of which on 22 May
1974, he was granted letters of administration with will annexed by the High Court.
At a later date, he asked the first defendant who had been residing in the house during the
lifetime of the testator without paying rent to attorn tenant to him, but she refused.
Counsel for the defendants submitted that for a landlord to succeed in ejecting a tenant he
should have established that the tenant paid rent, otherwise he was not a tenant, and also
that he was in arrears of such rent.

The Rent Act, 1963. (Act 220), sought to regulate the relationship of landlord and tenant
only where the consideration of rent is a feature of the lease or tenancy, but left untouched
tenancies existing under the common law where landlords did not exact rent as

133 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

consideration for the letting of premises. Thus, the rights of the landlord and tenant at
common law, in cases where the consideration of rent is not a feature of the letting of
premises, are unaffected by Act 220.

ORAL AGREEMENTS

1. Allamedine Bros v Paterson Zochonis per Sowah JA

By an oral agreement entered into in 1958, the appellants took possession of the
respondents' premises at a monthly rent of N¢80.00 which was reduced to N¢45.00 in
July 1959 on the application of the appellants to the rent assessment committee.
On 12 January 1967, the respondents served a month's notice on the appellant to quit the
premises as they required the premises for their own business.

• The issue whether or not the premises were reasonably required by the respondents
was a question of fact.
It was therefore not the decision of the High Court which was sitting as an appellate
court which had to be impugned, but that of the magistrate which was clear-cut and
had not been in any way faulted.
The learned magistrate reviewed the evidence before her and accepted the case of the
respondents that they were in need of the premises for the expansion of their business in
which they have invested the large sum of N¢300,000.00. Her finding of fact was
clearcut when she concluded that the premises were reasonably required for the purpose
of the respondents' business. Her reasoning has not been in any way faulted by argument
before this court; there has been on the other hand, some confusion in argument on this
issue. Reasonableness in the context of section 17 (1) (h) is in relation to the landlord's
requirement.
It was argued further that the court should have gone further to consider whether it was
reasonable to grant possession. The short answer is that there is no such provision in the
subsection. When, therefore, the learned magistrate arrived at the conclusion that the
respondents had complied with the provisions of section 17 (1) (h), she had no further
discretion in the matter but to grant the relief sought.
The paragraph is being confused with the paragraph before it, viz. 17 (1) (g) in which the
magistrate had to examine, first the reasonableness of the landlord's desire, secondly
whether it is reasonable to make the order.
It is in the second limb of section 17 (1) (g) that the balance of hardship and the problems
of alternative accommodation had to be considered. The application before the
magistrate was not under subsection (1) (g) and I need not go further into this matter.

134 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

2. Sbaiti v Samarasinghe per Lamptey AG J

APPLICATION of Rent Act, 1963 (Act 220)

Section 1(2) of Act 220

(2) This Act does not apply to
(a) premises of which a public officer is a tenant by reason of employment and of which premises
the Government is the landlord;
(b) a lease of premises where the lease, whether entered into or renewed before, on or after the
date of the commencement of this Act, was entered into or renewed as a lease of land on which
there were no premises at the time of the grant or renewal of the lease;
(c) a lease after the erection of the new premises, where the lease, whether entered into, before,
on or after the date of the commencement of this Act, was entered into as a lease of land on which
there were premises but the premises were demolished and new premises erected within five
years after the grant of the lease;
(d) a lease certified as being valid under the law relating to concessions;
(e) a lease under which the landlord is the Government and which relates to premises certified by
the Minister as being premises let at a rent which does not yield a financial gain to the
Government;
(f) a market stall owned by a District Assembly;
(g) a land subject to the Rents (Stabilisation) Act, 1962 (Act 109)2(2) or the Regulations made
under that Act; or
(h) prescribed premises

Section 1(3) of Act 220

This Act, except as otherwise provided, applies to the Republic.
1. Memuna Amoudy v Antwi per Date Bah JSC

KEY TERMS

135 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Section 36 of Act 220

“lease” includes an agreement for the letting of premises, whether oral or otherwise, and whether
the terms of the lease grant the right of exclusive occupation to the tenant or include the use of the
premises in common with the landlord or any other person or with the landlord and any other
person;

NB – Possibility of interpretation of more flexible definition than in common law.

Requirement that you could have a lease without exclusive possession.

“premises” includes a building, structure, stall or any other structure or part of that structure
movable or otherwise, which is the subject of a separate letting, other than a dwelling house or
part of a dwelling house bona fide let at a rent which includes a payment for board or attendance,
and land, outbuildings and appurtenances let together with the premises at a single rent when
adjoining the premises let;
NB – you cannot come under the Rent Act strict sense with respect to hotels but you can go under
common law

RECOVERY OF POSSESSION

Section 17 (1) of Act 220

Subject to subsection (2) of section 25 and to section 28, an order against a tenant for the recovery
of the possession of, or for the ejectment from, any premises shall not be made or given by the
Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with any
other enactment except
(a) where a rent lawfully due from the tenant has not been paid or tendered within one month
after the date on which it became lawfully due;
(b) where an obligation of the tenancy, other than that specified in paragraph (a), so far as that
obligation is consistent with this Act, has been broken or not performed;
(c) where the tenant or a person residing with the tenant has been guilty of conduct which is a
nuisance or an annoyance to adjoining occupiers;

136 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(d) where the tenant or a person residing with the tenant has been convicted of using the premises
or allowing the premises to be used for an immoral or illegal purpose;
(e) where the condition of the premises has in the opinion of the Rent Magistrate or judge
deteriorated owing to acts of waste by, or the neglect or default of, the tenant or a person residing
with the tenant;
(f) where the tenant has given notice of the intention to quit in writing and in consequence of
the notice the landlord has contracted to sell or let the premises or has taken any other steps as
a result of which the tenant would, in the opinion of the Rent Magistrate or judge, be seriously
prejudiced if the tenant could not obtain possession;
(g) where the premises are reasonably required by the landlord for personal occupation as a
dwelling house by the landlord, a member of the family of the landlord or a person in the whole-
time employment of the landlord, the premises being constructed to be used as a dwelling house,
but
(i) the circumstance that the premises are reasonably required by the landlord for personal
occupation by someone in the employment of the landlord shall not be a sufficient circumstance
if the Magistrate or judge is not satisfied that the landlord usually provides premises for
occupation by an employee of the class to which that employee belongs, and
(ii) an order shall not be made if the Rent Magistrate or judge is satisfied having regard to the
circumstances of the case, including an alternative accommodation available for the person for
whose occupation the premises are required or for the tenant, that greater hardship would be
caused by granting the order than by refusing it;
(h) where the lease has expired and the premises are reasonably required by the landlord to be
used by him for his own business purposes, such premises being constructed to be used as such,
if the landlord has given not less than six months’ written notice to the tenant of his intention to
apply for an order for the recovery of the possession of, or the ejectment from, the premises;
(i) where the lease has expired and the tenant is a statutory tenant and the landlord—
(i) intends to pull down the premises and construct new premises,
(ii) intends to remodel the premises and the remodeling cannot be carried out with the tenant in
occupation, or
(iii) requires possession of the premises to carry out a scheme of re-development, if the landlord
has given not less than six months’ written notice to the tenant of his intention to apply for an
order for the recovery of the possession of, or the ejectment from, the premises, so, however, that—
(aa) the Magistrate or Judge may, on making or giving an order under this paragraph, make it a
condition that if the landlord fails to carry out his intention within such period as may be allowed
by such Magistrate or Judge the landlord shall reinstate the former tenant as a statutory tenant at
the same rent as that formerly payable or pay to the tenant such compensation as the Magistrate
or Judge may consider reasonable,

137 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(ab) the Magistrate or Judge shall cause a copy of such order to be served on the appropriate Rent
Officer for the area where the premises are situated and such officer shall take such proceedings
as are necessary to ensure compliance with the terms of the order, and
(ac) the making or giving of an order under this paragraph in the circumstances specified in
paragraph (i)
(ii) of this subsection shall be subject to any option of the tenant to acquire under the provisions
of section 18, a new statutory tenancy of any premises remodeled to which such an order relates;
(j) where the premises were let to the tenant by reason of his employment in the service of the
landlord and such employment has ceased; and
(k) where the landlord was personally in occupation of the premises and has let the premises
substantially furnished for a term during his absence from Ghana or that area of Ghana in which
the premises are situated and has returned and requires the re-occupation of the premises for
himself, so, however, that no order granting the possession of, or the ejectment from, the premises
shall be granted on or after the commencement of this Act unless the lease is in writing and sets
out that the lease has been granted for a term during the absence of the landlord from Ghana or
such area.

1. Allamedine Bros v Paterson Zochonis per Sowah JA

TERMINATION

Megarry and Wade

“A lease or tenancy for a fixed period cannot be determined by notice unless this is expressly
agreed upon. Thus a lease for a substantial term such as 21 years often contains provisions
enabling the tenant to determine it, e.g. at the end of the seventh or fourteenth year, in which case
the length of the notice required, the time when it is to be given, and other matters of this kind,
depend on the terms of the lease. In the absence of any such provision the lease will continue for
the full period.”

Cheshire
“Since the notice is a unilateral act performed in the exercise of a contractual right, it must
conform strictly to the terms of the contract. The onus of proving its validity lies upon the person
by whom it is given.”

138 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

1. Savage v Ghana Industrial Holding Corporation per Edusei J

By a lease commencing 1 May 1969 certain premises were demised by the plaintiff to
the defendants for a term of fifteen years certain with an option to the defendants to
terminate the lease on the expiration of the first eight years after giving six months’
notice of intention to do so.
Rents for the first six months were paid by the defendants to the plaintiff and when the next
six months’ rent became due the defendants refused to pay.
When the defendants terminated the lease, the plaintiff claimed arrears of rent and general
damages for breach of the lease.

• Since there was a breach of contract with respect to when a notice for
termination could be sent, the plaintiff was entitled to arrears of rent for the
period 1 November 1969 to 30 April 1970 and the rents for the whole of the
unexpired term of fourteen years as damages.
In this case there were at least two ways in which the lease, exhibit A, could have been
terminated: either (a) by an effluxion of time or (b) by notice to quit in terms of clause 4
(a) of exhibit A, the lease. As a general rule there is no need for a notice to quit in the case
of a lease for a definite term, fifteen years as in this case, since the tenancy terminates
automatically upon the expiration of the agreed period. The other way to terminate the
lease is by notice to quit as stipulated in clause 4 (a) of exhibit A, i.e. the six months’ notice
required can only be operative if the defendants had stayed on the premises for eight
years…
Since the defendants terminated the lease before the first eight years had run out, it must
therefore continue for the whole period of the stipulated period of fifteen years from I
May 1969. The notice to terminate the lease, exhibit A, on 17 April 1970 was unlawful
and therefore the defendants were in clear breach of their contract with the plaintiff

Section 17 (5) of Act 220

An order or judgment against a tenant for the recovery of the possession of any premises or
ejectment therefrom made or given under the provisions of this section or of subsection (2) of
section 25 shall not affect the right of any sub-tenant to whom the premises or any part thereof
were lawfully sub-let before proceedings for recovery of possession or ejectment were
commenced, to retain possession under this section, and every such order or judgment shall
declare whether it shall be enforced against a sub-tenant or not.

1. Monta v Paterson Simons per Amua-Sekyi J

139 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Plaintiff granted a sub-lease to the defendants for a term of fifteen years from 1
December 1960 at a rent of £G5,100 per annum.
One of the terms of agreement was that upon giving six months’ notice, the defendants
could after the first ten years determine the sub-lease.
Other proviso were that the defendants were neither to sub-let nor make or permit to
be made any alterations or additions to the premises without the written consent of
the plaintiff.
Subsequently, the defendants, with the prior knowledge of the plaintiff, sub-let part of
the premises to other persons and establishments among which were J. K.
Agbemabiase and Brothers Ltd. (which business was later taken over by Agbe and Co.
Ltd.) and Kwaku Amoah.
On the expiration of the first ten years, the defendants determined the sub-lease with
the plaintiff after giving the necessary notice on 30 November 1970.
However, despite having been given notice to quit, one of the sub-tenants, Agbe and Co.
Ltd., refused to budge thus making the defendants unable to give up absolute
possession to the plaintiff.

• Since the Defendants sub-let the premises without the Plaintiff’s consent, they
were liable for the actions of the sub-tenants.
The general rule of law is that a tenant is required to deliver up possession to his landlord
at the end of the term. If he fails to do so he will be liable for the continued use and
occupation, and may also be required to pay damages if any has resulted from his failure
to give up possession. In this regard, it is immaterial that the failure arises, not from his
own act, but from the act of a third person whom he has put in a part or the whole of the
premises, and who wrongfully refuses to give up possession…
… An exception occurs where the sub-tenant has by statute a personal right not to have an
order for possession made against him unless certain specified conditions are fulfilled.
…The effect of these provisions is that where a tenant has, during the tenancy, lawfully
sub-let part of the premises, and he later gives the landlord and the sub-tenant proper
notices to determine the tenancy and the sub-tenancy, he is not liable to the landlord for
rent or for use and occupation or damages, if the sub-tenant remains in possession as a
statutory tenant, as he will have done everything legally possible to give the landlord
vacant possession.

Section 22 of Act 220

(1) A person, in the case of a monthly or shorter tenancy of premises, shall not sub-let the premises
without the written consent of the landlord.

140 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(2) A person in the case of a tenancy of premises, other than the tenancy specified in subsection
(1), shall not sub-let those premises, in the absence of express agreement in writing to the contrary,
for a period in excess of the period of the tenancy.
(3) A person sub-letting premises shall inform the landlord in writing within fourteen days after
that person has sub-let the premises of the fact of the sub-letting and its terms.

1. Schandorff v Zeini per Amissah JA

a sub-lease in contravention of the covenant always gives the head-lessor a right to
damages and he may determine the lease but the sub-lease is not void ab initio.

2. Dhalomal v. Pupulampu per Osei-Hwere JA

The head-lease acquired four rooms in business premises as a periodic monthly tenant.
In the course of his tenancy the head-lessee allowed 'S' occupation and use of one of the
rooms. The head-lessee subsequently died.
In an action for recovery of possession by the head-lessor, 'S' claimed that he was a sub-
tenant.

• 'S' was not a lawful sub-tenant but a trespasser as his grantor failed to comply with
section 22 (1) and (3) of Act 220.
• compliance with sections 22 (1) and (3) was mandatory and that non-compliance
rendered a grant void ab initio
• a sub-lessee could not obtain relief against re-entry under section 17 (5) of Act 220
unless his sub-lessor complied with section 22 (1) and (3).

I am of the view that the court should refrain from such interpretation of the Act as will
give a substantial beating to the already limited protection to the landlord…

On Section 22 (1) and 22 (3), the learned Justice of Appeal said:

I think that the policy reasons for these two sub-sections requiring written consent of the
landlord and notification to him in writing of the terms of the sub-letting are obvious. If by
operation of the law the sub-tenant is to hold of the landlord direct on the departure of the
mesne tenant then it stands to reason that the landlord can be so burdened only by an
unequivocal prior approval of the sub-letting and he must also know what are the terms".

141 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

REGISTRATION OF INSTRUMENTS AND LAND TITLES

Registration of Instruments/Deeds

Section 227 of the Land Act, 2020 (Act 1036)

1) Subject to subsection (2), an instrument other than a judge's certificate, or decision of a court
first executed after the coming into force of this Act is of no effect until the instrument is registered.
(2) This Act shall not operate to prevent an instrument which, by virtue of any enactment, takes
effect from a particular date from so taking effect.

Section 228 of Act 1036

(1) The registration of an instrument constitutes actual notice of the instrument and of the fact of
registration to all persons and for all purposes, as from the date of registration, unless otherwise
provided in an enactment.

Section 229(1) of Act 1036

An instrument, other than a Judge's Certificate or a decision of a court, whether executed before
or after the coming into force of this Act, shall, in respect of land affected by the instrument, take
effect in accordance with sections 227, 228, 231 and this section as against other instruments
affecting the same land

Effect of Registration

Da Rocha and Lodoh

The effect of Section 24 of Act 122 (Section 227 of Act 1036) is that registration of instruments,
other than a will (a decision of a Court) or judge’s certificate is compulsory in this country.

Agbosu L K
UNTIL the operation of the Land Title Registration Law, 1986, (PNDCL 152), is extended to cover
the whole country, the Land Registry Act, 19621 will remain the most important enactment
governing land registration in Ghana. One of the most important of its provisions deals with the
effect of registration or lack of it on land transactions. The relevant provision is section 24 (1)…

142 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

It is difficult to see how a distinction can be drawn between ineffective, invalid and void
instruments within the meaning of the Act and its purposes. Hamlyn’s Encyclopedic World
Dictionary defines the term invalid as “without legal force, or void, as a contract.” It is obvious
from this definition and the cases that whether or not one takes the view that an unregistered
instrument is void, ineffective or invalid, non- registration will have the same effect that no legal
rights can flow from a land transaction to which a non-registered instrument relates…
…it can be deduced from the dictum of Azu Crabbe JA in Odoi v Hammond and the decisions in
Amefinu v Odametey and Asare v. Brobbey that the courts take section 24 of the Act to mean that
an unregistered instrument is invalid and of no legal effect and that no legal consequences flow
from it. Whether or not it can be said to be void or ineffective has no practical effect on the outcome
of the cases.

1. Asare v Brobbey per Archer JA

The case concerned a mortgage deed in which the mortgagor obtained a loan from the
mortgagee on the security of a house with power vested in the latter to sell the house in the
event of the former defaulting on payment of the debt. The mortgagor defaulted.
The mortgagee exercised his power of sale under the mortgage deed and authorised an
auctioneer to sell the property.
It was at such auction sale that a third party bought the house in dispute.
The mortgagor sued to set aside the sale on several grounds without success.
But the issue of non-registration was belatedly raised on behalf of the mortgagor to the
effect that since the mortgagee failed to register the mortgage deed in accordance with
section 24 (1) of the Land Registry Act, 1962, the deed was ineffective to confer the
power of sale on the mortgagee.

• Since the statute provides that no legal rights can arise from an unregistered
document affecting land, the sale was a nullity
…when section 24 (1) of the Land Registry Act, 1962, provides that a document shall be of
no effect until it is registered, it means that the document and its contents cannot have any
legal effect until it is registered, it means the document and its contents cannot have any
effect until registration has been completed. This also means that the document is not valid
for all purposes because the formality of registration is necessary to complete its validity…
… since November 1962, all documents relating to land must be registered in order to
have any legal effect at all. That is an innovation and it has such serious consequences
that no conveyancer should fail to advise his client to comply with section 24 of Act 122.”

2. Sbaiti v Samarasinghe per Lamptey AG J

143 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The other leg of Mr. Adamafio’s argument dealt with the matter of the non-registration of
the note, exhibit A. Counsel argued that exhibit A is an instrument which purports to create
an interest in land. It is therefore an instrument that must be registered pursuant to the
provisions of the Land Registry Act, 1962 (Act 122). In the instant case, exhibit A has not
been duty registered and is therefore void and of no effect.

3. Djan v Owoo per Edusei J

• Since the two receipts in question were instruments under the land Registry Act,
1962 (Act 122), and they had not been registered as required [p.402] by section 24
of that same Act, the plaintiff could not claim any rights under them.
The definition of "instrument" under section 36 of Act 122 is "any writing affecting land
situate in Ghana, including a judge's certificate and a memorandum of deposit of title
deeds." There can be no dispute that the two receipts are instruments under the Land
Registry Act, 1962 (Act 122), and they have not been registered as required by section 24
(1) of Act 122. It follows therefore that the plaintiff cannot claim any rights under them.

4. Western Hardwod Enterprises Ltd v West African Enterprises Ltd per Aikins JSC

Takoradi Brewery Ltd (TBL) obtained a lease of a piece of land from the Apowa stool.
It went into possession and put up some buildings on the land.
However, in 1970 a creditor of TBL obtained judgment against it and had the property sold
by public auction.
The West African Enterprise Ltd—the plaintiff—bought the right, interest and title of TBL
in the lease and was issued with a certificate of purchase, exhibit A, to evidence the
purchase.
In 1986 the Western Hardwood Enterprise Ltd (WHEL), the first defendant, claiming that
it had obtained a 50-year lease of the property from the Apowa stool, the second defendant,
entered the property and took over possession.
Even though the Apowa stool admitted that TBL on taking possession of the land built
offices, bungalows and factories on it, the stool claimed that TBL failed to develop the land
in terms of the lease agreement, exhibit B, and therefore when TBL failed to comply with
an ultimatum from the stool to develop the land, they re-entered the land by a letter dated
18 April 1983 and took possession and thereafter leased it to WHEL.
The trial judge found that exhibit B had neither been stamped nor registered and therefore
held that under section 24 of the Land Registry Act, 1962 (Act 122) it was ineffective and
invalid to confer any right on TBL and consequently exhibit A did not also confer any valid
title on the plaintiff.

• A later instrument by the same vender could by registration obtain priority

over an earlier one only if it had been obtained without fraud and without

144 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

notice of the earlier unregistered instrument. The equitable doctrines of notice

and fraud had not been abolished by the Land Registry Act, 1962 (Act 122).
Furthermore, registration under Act 122 neither conferred on the registered
instrument a state-guaranteed title nor executed an absolute title. In the instant
case, since WHEL had clear notice of the plaintiff’s prior estate or interest in
possession, the registered deed between it and the Apowa stool had no priority over
the unregistered lease between the Apowa stool and TBL.
.
In the instant case, it is argued that since the lease between the Apowa stool and TBL was
not registered under section 24(1) of Act 122, the deed between the Apowa stool and WHEL
had priority. The law is that a later instrument can by registration obtain priority over an
earlier one only if it was obtained without fraud and without notice of the earlier
unregistered instrument…

… The sale therefore of the disputed property by the Apowa stool to WHEL who had clear
notice of the plaintiff’s prior estate or interest in possession cannot avail the latter. The
plaintiff company can take advantage of the nemo dat rule, especially when the equitable
doctrines of notice and fraud have not been abolished by Act 122. Furthermore, Act 122
does not contain any provision which confers on the registered instrument of WHEL a
state-guaranteed title. In other words, registration does not create absolute title.

5. Hammond v Odoi per Taylor JSC

The plaintiff initiated an action for a declaration of title relied, inter alia, on an unregistered
conveyance, exhibit B, executed by the same vendor who had also executed a deed in
favour of the defendant.
The defendant registered his conveyance.

• The conveyance to the plaintiff and that to the defendants were fresh grants. Since
the plaintiffs document (exhibit E) was executed in November 1964, i.e. after the
commencement of the Land Registry Act, 1962 (Act 122), on 14 June 1962, but it
was not registered, by the provisions of section 24 (1) of that Act, it did not take
effect and thus did not create legal rights or liabilities or have any legal validity
whatsoever.
Therefore, on the registration by the defendant of his document, exhibit I, on 26
November 1965, it constituted the only valid document on that land.
Clearly exhibit E while unregistered is ineffective to create legal rights or liabilities or to
have any legal validity whatsoever

6. Odamtey v Clocuh per Taylor JSC

145 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiff by a deed of conveyance, exhibit A, executed in 1970, bought the land in
dispute from the Akumajay stool and went into possession.
She presented exhibit A which was duly stamped to the Lands Department for registration
in accordance with section 24 (1) of the Land Registry Act, 1962 (Act 122).
Exhibit A was inadvertently unattended to, therefore the concurrence of the Lands
Commission was not obtained and it remained unregistered.
Subsequently, the Akumajay stool, by another deed of conveyance, exhibit E, executed in
1976, sold the same land to one B who in turn sold it to the second defendant. Exhibit E
was duly registered and received concurrence also in 1976.

• Plaintiff could not succeed since her instrument was not registered.
The words used in section 24 (1) of Act 122 are: “shall be of no effect until it is
registered.” Clearly until the instrument is registered it is statutorily declared to be “of no
effect.” This must mean that it is not void for on registration it will be valid from the date
of registration. This is because legally speaking, “void” in law is a nullity. It is something
which has no legal force and is incapable of having legal force.
The linguistic difficulty posed by the “void” and “ineffective” dichotomy can best be
resolved by recourse to commonsense and the logic of the common law. By this perspective
of looking at the problem it would appear that the difficulty arises because of lack of
appreciation of the fact that words like “void”, “invalid” and “ineffective” apart from
having ordinary dictionary meanings, do also have legal meanings, especially the word
“void.” An average dictionary for instance would give the meaning of “void” as:
“without force or effect” but a law dictionary would give the meaning as: “of no legal
effect” or “a nullity.”

Priority of Instruments

1. Ntem v Ankwandah per Apaloo CJ

Both parties purchased the same parcel of land from the Akumajay stool.
The Plaintiff’s conveyance, which was prior in time and had been presented for
registration, was erroneously refused by the Land Registry.
The Plaintiff found the defendant, whose conveyance was later in time, preparing to build
on the land.
He warned him and made other reconciliatory approaches, all of which were ignored.
The Defendant proceeded to build on the land so quickly that by the time the Plaintiff
issued a writ and the case was called, the house was almost completed.

146 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

• Plaintiff’s document was constructively registered because he had done everything

to merit registrations and that the absence of such registration was due to
administrative error or incompetence which was not the Plaintiff’s fault.
He was therefore legally entitled to compel registration
“The registrar of lands ... had no right to refuse to register the document . . . Registration
of a deed under Act 122 did not constitute a state guaranteed title. As the deed was stamped
it was admissible in evidence in proof of title which registration aside, was valid. The
respondent’s title, in the circumstances, was constructively registered. Consequently, her
title was enforceable at law as if it had been registered…
Registration of a deed under Act 122 does not constitute a State guarantee title. As the deed
was stamped, it was admissible in evidence in proof of title and that title was adjudged,
registration aside, to be good. I think the only way in which justice can be done as
between the parties, is to hold that the plaintiff's title was constructively registered.
Equity regards as done, that which ought to have been done. True, the records of the
registrar may speak a different language. But if the land registrar had carried out his
public duty, the record and what I hold to be deemed to have been done would have
harmonized

Da Rocha and Lodoh

An attempt was made in the Court of Appeal to mitigate the hardship such a situation could
cause by introducing the principle of constructive registration…
The concept of constructive registration has, however, been rejected by the Supreme Court
as sinning against the provision of Section 24(1) of Act 122…

Woodman (criticisms)
To hold that an unregistered instrument passes an interest in the land, even if only
equitable interest is to give it an effect…
If … followed in this respect, the grantee claiming an unregistered instrument who finds
that section 24 has locked the front door against him, will frequently be able to slip in
through the equitable back door…
A further objection might be that the doctrine could operate unfairly against a party who
took a grant in good faith after inspecting the registry, and was subsequently held bound
by a constructively registered instrument. Thus the doctrine may damage the system of
registration by introducing another category of enforceable but unregistered grants.

147 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

2. Odamtey v Clocuh per Taylor JSC

• The trial circuit court had erred in applying the Ntem v. Ankwandah ratio of the
discreditable doctrine of “constructive registration” to give legal title to the
plaintiff. The effect of that indulgence was the consequential priority given to the
plaintiff’s unregistered document executed in 1970 so as to defeat the second
defendant’s title founded on a document that had been stamped, had received
concurrence and had been registered in 1976. Even if that questionable constructive
registration could be justified, it was quite clear that the plaintiff did not obtain
concurrence and that circumstance would certainly nullify or at least invalidate the
grant.
For lack of registration under the Land Registry Act, 1962 (Act 122), s. 24 (1) and
concurrence under the Administration of Lands Act, 1962 (Act 123), s. 8 (1) and
(6) the plaintiff could not maintain an action on the strength of the conveyance
granted to her in 1970 by the Akumajay stool.
I think the clear path indicated by case law in the tradition of the stare decisis principle is
that the doctrine of constructive registration hinted at in Ussher v. Darko (supra) and
which flowered to fruition in Ntem v. Ankwandah is with respect a proposition of law which
conflicts with respectable case law and flies in the face of the unambiguous provision
contained in section 24 (1) of Act 122. It is in my respectful opinion an aberrant and
erroneous doctrine.
I would therefore without hesitation overrule the decision in Ntem v. Ankwandah (supra)
so that it will henceforth cease to impel the Court of Appeal and the other lower courts
to follow it as they have done in the past.

3. Amuzu v Oklika per Atuguba JSC

• the respondent’s later instrument, exhibit B, could not take priority over the
appellant’s earlier instrument, exhibit A, by its registration under section 24(1) of
Act 122 because since the respondent had actual notice of the appellant’s
purchase of the disputed property, he would be held to have had constructive
notice of and to have been bound by the contract of sale between the appellant
and the vendor, and the terms of the contract including equities which under
the contract the appellant had against the vendor.
Accordingly, the judgments of the High Court and the Court of Appeal would be
set aside.
…there is a considerable body of case law establishing the ineffectiveness of an instrument
ante registration. These range from Ashanti Construction Corporation v Bossman [1962]
1 GLR 435, SC decided under section 23(1) of the Kumasi Lands Ordinance, Cap 145 as
then amended, through Asare v Brobbey [1973] 1 GLR 333, CA, Amefinu v Odametey

148 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

[1977] 2 GLR 135, CA; Hammond v Odoi [1982-83] GLR 129 SC; Nartey v Mechanical
Lloyd Assembly Plant Ltd [1987-88] GLR 86, SC to Odametey v Clocuh [1989-90] GLR
14 SC.
As these decisions have stood for so long they ought to be adhered to by this court,
particularly in view of the stare decisis provisions of article 129(3) of the Constitution,
1992 in so far as at least the previous decisions of this court are concerned. I am however
of the view that, with the greatest respect, those decisions too stringently and literally
applied the provisions of section 24(1) of Act 122 and for the reasons that follow, ought
to be modified and that this is not a fit situation to apply the maxim communis error facit
jus (universal error amounts to law).

Site Plans

Section 207(2) of Act 1036

An instrument shall not be registered if that instrument
(a) does not have sufficient description of the land to enable the Land Registrar to identify the
location and boundaries of the land to which the instrument relate;
(b) does not have a sufficient reference to the date and particulars of registration of an
instrument affecting the same land and already registered;
(c) does not have attached to the instrument an approved plan unless the instrument makes
reference to an approved plan attached to an instrument that is already registered at the
Registry
(d) has not been duly stamped in accordance in accordance with any enactment which requires
stamping of the instrument
(e) does not have attached to the instrument, consents and statutory approvals required for
the transaction evidenced in the instrument; and
(f) does not conform to the requirements of this Act

Section 3 (1) of L.I.1444, the Survey (Supervision and Approval of Plans) Regulations, 1989
No plan of any parcel of land attached to any instrument for the registration of such instrument
shall be accepted by the Chief Registrar of Lands or the Registrar appointed pursuant to the
provisions of the Land Registry Act, 1962 (Act 122) unless the plan has been approved by the
Director of Surveys or any official surveyor authorised in that behalf in accordance with
regulation 2 of these Regulations.

1. Nortey v African Institute of Journalism and Communications per Akamba JSC

149 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

The plaintiff tendered exhibit A, a site plan which bears the same endorsements as in the
writ of summons in apparent proof of his claim to the land, i.e. his root of title.
• Exhibit A had no probative value since it was neither dated or signed by the Director
of Surveys or his representative
Exhibit A is however not dated. It is also not signed by the Director of Survey or his
representative. This is contrary to section 3 (1) of L.I.1444, the Survey (Supervision and
Approval of Plans) Regulations, 1989 which makes it mandatory for plans of any parcel
of land attached to any instrument for the registration of such instruments to be approved
by the Director of Survey or any official surveyor authorized in that behalf.
This stark infringement of the statutory requirement renders the exhibit A of no probative
value as rightly determined by the Court of Appeal.

Registration of Land Titles

Memorandum to the Land Title Registration Act, 1986 (PNDCL 152)

Systematic land tenure research in Ghana has revealed radical weaknesses in the present system
of registration of instruments affecting land under the Land Registry Act, 1962 (Act 122)…
The effective characteristic of land title registration is that land is placed on the folio of the land
register as a unit of property and transactions are recorded by reference to land itself and not
merely through instruments executed by the parties as is the case with deeds registration.

Effect of Registration

Section 111(1) of the Land Act, 2020 (Act 1036)

An entry in the land register shall be conclusive evidence of title of the holder of the interest
specified in the land register.
NB – It therefore confers on the person, a state-guaranteed title

Section 119 of Act 1036

1) Subject to subsections (2), (3) and (4) of this section and section 118, the rights of a registered
proprietor of a parcel of land whether acquired on first registration or acquired subsequently or
by an order of a Court, are indefeasible and shall be held by the proprietor together with the
rights and privileges attaching to the parcel of land free from all other interests and claims.

150 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

(2) The rights of a proprietor are subject to the interests or other encumbrances and conditions
shown in the land register.
(3) This section does not relieve a proprietor from a duty or an obligation to which the proprietor
is otherwise subject as a trustee.
(4) The registration of a person as the proprietor of land or a holder of an interest in land does
not confer on that person a right to minerals in the natural state in, under or upon, the land.

Priority of Registered Interests

Section 124 of Act 1036

(1) Rights derived from instruments recorded in the land register shall have priority according
to the order in which the instruments were presented to the Registry irrespective of the dates of
the instruments and despite the fact that an entry in the land register may have been delayed.
(2) Subsection (1) does not apply where there is fraud, notice or mistake.
(3) An instruments that is sent by post and addressed to the Land Registrar in the registration
district where the land specified in the instrument is situate and that is received on any day during
the hours of business shall be deemed to have been presented at the time the instrument was
received.

1. Strand Securities Ltd v Caswell per Lord Denning MR

By a sub-lease dated 29 May 1952, the plaintiffs’ predecessor in title as lessor under a
registered lease dated in 1949, sub-let a small flat, forming part of the demised property,
which was in London, to the first defendant for a term exceeding twenty-one years.
No application was then made to register the sub-lease, or notice of it, at the land registry.
Subsequently, the first defendant applied for registration of the sublease and his application
was received at the land registry on 5 April 1962.
On 24 April 1962, the land registry received an application by the plaintiffs for
registration of themselves as proprietors of the registered lease, accompanied by the land
certificate. The registry treated the production of the land certificate as serving also the
purposes of the first defendant’s application and both applications as taking effect on the
same day (Apr24); the registry accorded precedence to the plaintiffs’ application.

• the registration of the sub-lease should have been as at 5 April 1962 (pursuant
to r 83 of the Land Registration Rules, 1925), and thus should have taken
priority to the plaintiffs’ transfer, and, accordingly, the register should be

151 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

rectified and an entry should be made on title No LN 72776 (the plaintiffs’ title) as
of that date to show that the sub-lease was an encumbrance binding on the plaintiffs.
Applying the law as I have stated it, it is apparent that the application made by the first
defendant to register his sub-lease was complete on 5 April 1962. There was no need for
him to produce his lessor’s land certificate. It should have been registered as of that date,
5 April 1962, and thus have gained priority over the transfer to the plaintiffs which was
not registered until later, namely, as of 24 April 1962.

COMPULSORY ACQUISITION

Relevant constitutional and statutory provisions

Article 20 of the Constitution, 1992

(1) 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.
(a) the taking of possession or acquisition if 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; and
(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.
(2) Compulsory acquisition of property by the State shall only be made under a law which makes
provision for.
(a) the prompt payment of fair and adequate compensation; and
(b) 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.
(3) Where a compulsory acquisition or possession of land effected by the State in accordance with
clause (1) of this article involves displacement of any inhabitants, the State shall resettle the
displaced inhabitants on suitable alternative land with due regard for their economic well-being
and social and cultural values.

152 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Section 233 of Act 1036

(1) The State may compulsorily acquire any land where the acquisition of that land is necessary
(a) for a public purpose and in the interest of defence, public safety, public order, public
morality, public health, town and country planning, resettlement purposes or for the
running of essential services;
(b) for a road, a highway, a railway, a bridge, a pipeline, a canal, a dam, a sewerage system
or any public utility service; or
(c) in order to secure the development or utilization of that land or other and in a manner that
promotes the public benefit
(2) Akin to Article 20(1)(b)
(3) Akin to Article 20(2)(a)
(4) Acquisition of land by the State shall be by the publication of an Executive Instrument in the
Gazette which shall specify the nature extent and location of the land acquired and the purpose of
the acquisition.

Section 10 of the Limitation Act, 1972 (NRCD 54)

1) No action shall be brought to recover any land after the expiration of twelve years from the
date on which the right of action accrued to the person bringing it or, if it first accrued to some
person through whom he claims, to that person.
(2) No right of action to recover land shall be deemed to accrue unless the land is in the possession
of some person in whose favour the period of limitation can run (in this section referred to as
"adverse possession").

1. Adjetey-Adjei & Ors v. Nmai Boi & Ors per Sophia Adinyira JSC

Plaintiffs allege the Defendants have wrongfully entered portions of the land and have put
up unauthorized structures and have refused to quit.
Defendants state that they have been in undisturbed possession for periods over 12 years
as a result the Plaintiff action was not maintainable by reason of laches and acquiescence
and the Limitation Decree, NRCD 54

• From the period 1985 until 2007 when the Plaintiffs commenced their action the
evidence shows the Defendants were in effective uninterrupted possession of a
portion of the land in dispute.

153 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

In the circumstances assuming the Defendants’ title is bad, their adverse possession
of the land for a period of twelve years and over confers on them possessory rights
by virtue of section 10 of the Limitation Act.
Adverse possession must be open, visible and unchallenged so that it gives notice to the
legal/paper owner that someone is asserting a claim adverse to his…
In Treloar v. Nute [1977] 1 All ER 230 at 234 (cited by Atuguba JSC in Djin v. Musah
Baako [2007-2008] 1SCGLR 686 at 699) Sir John Pennycuick stated thus:
“It is in no doubt that under the 1939 Act as under the present law, the person claiming
by possession must show either (1) discontinuance by the paper owner followed by
possession or (2) dispossession or, or as it is sometimes called ‘ouster’ of paper owner.
Clearly possession concurrent with paper owner is insufficient”…
On the facts of this case, we think the rights conferred by section 10 of the Limitation Act
can be enjoyed by a person who remains in adverse possession of land over a period of 12
years irrespective of the fact that they entered the land and developed same without a
building permit. The title conferred by the Limitation Act is prescriptive and is usually
conferred on squatters who obviously cannot and would not apply for a building permit as
their initial entry on the land is by way of trespass.

Public/State/Vested Lands

Article 257 of the Constitution, 1992

(1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the
people of Ghana.
(2) For the purposes of this article, and subject to clause (3) of this article, "public lands" includes
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

1. Nii Omaboe III v Attorney General per Prof Modibo Ocran JSC

When we put together Articles 267, 257, and 258, the following appears to be the scheme
of landholding policy established under the Constitution:
First of all, Stool lands that had not been vested in the President or Government prior to
January 7th 1993, that is, those stool lands properly envisaged under Article 267(1),
continue to be duly vested in their respective stools in trust for the subjects of the stool in

154 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

accordance with customary law and usage…

The second landholding policy arrangement concerns those lands that were once stool
lands, but which had been vested at some point in the President or Government, without
any subsequent de-vesting in favour of the original stools by a statutory or constitutional
provision. Our position is that they continue to be vested in the President or Government
until the state takes measures by an express statutory language to de-vest itself and re-
vest it in the original stool owners. As long as they remain vested, they come under the
administration and management of the Lands Commission created under Article 258 of
the Constitution.

Finally, there are lands which might have had no stool origins or connections, such as
family or individual lands, but which could also become public lands by virtue of
compulsory acquisition or negotiated transactions. These would also fall under the Lands
Commission's management umbrella.

2. Nii Kpobi Tetteh Tsuru III v Attorney-General per Dotse JSC

The Plaintiff, the La Mantse and President of the La Traditional Council, on the 3rd of
November, 2006, issued a writ against the defendants in respect of a piece of land known
as the "La Wireless Land", which had been acquired by the Government of the Gold Coast,
now Ghana, by way of a leasehold under the Public Lands (Leasehold) Ordinance (CAP
138) of 1950 and under a certificate of title dated 9th August, 1957.
The land formed part of 92.490 acres of land originally owned by the La Stool. By virtue
of the Certificate of Title that was issued under the Ordinance the said land was acquired
for the purposes of a "Wireless Station".

• the net effect of the Omaboe decision is that in reading articles 257, 258 and 267 of
the Constitution […] once stool lands such as the La Wireless Lands, had become
vested in the President or government of the Gold Coast as far back as 1957, they
remain so vested, irrespective of the express provision of the constitution, 1992 per
articles 257, 258 and 267, unless there is a specific statutory regime to de-vest and
re-vest them in the original owners

Are the rights of the owner extinguished?

155 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

Article 20 of the Constitution, 1992

(5) Any property compulsorily taken possession of or acquired in the public interest or for a public
purpose shall be used only in the public interest or for the public purpose for which it was
acquired.
(6) 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. Madam Linda Sagoe & Ors v. SSNIT per Gbadagbe JSC

The defendant corporation was in or about the year 1996 allocated portions of land that had
been previously acquired by the government under EI 5 of 1993.
The said acquisition was made primarily for the benefit of members of Ghana Real Estate
Development Association (GREDA) but when they were unable to meet the requirements
of the grant to them the government allocated 507.75 acres out of the 586.25 acres of the
land compulsorily acquired to the defendant.
Defendant noticed several acts of encroachment in the form of building works on the land.
The defendant caused notices to be served on the developers and when the matter could
not be peaceably resolved, it caused the buildings on the land to be demolished.
The plaintiffs claiming to be the owners of the properties demolished took out the action
herein claiming general and special damages and a declaration that the defendant in
utilising the area allocated to it had exceeded same by 43.30 acres as well as an order of
perpetual injunction.

• Plaintiffs had lost their rights in the land after the acquisition.
Thus, their action failed
Authority aside, the observation to which reference has been made is in accord with
principle and common sense as the title to compulsorily acquired lands cannot be
impeached or called in question in any action. Therefore, since the plaintiffs through their
grantors were aware of the acquisition they were required to show positively that the plots,
which they had acquired individually fell outside the area of the acquisition. Since an
acquisition by the state operates to extinguish any title and or interests that a person
might have had at the date of the publication of the instrument of acquisition, it does not
matter whether the acquisition was previous to the interest held in the land by an
individual or subsequent thereto.

2. Norga Grumah v. Madam Nafisa Iddrisu per Wood CJ

156 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

About 1994, the Government of Ghana (GoG), in exercise of its eminent domain powers,
compulsorily acquired property No G 20 Sabonjida (G20) from the appellant, for the
Tamale roads construction works.
He received full compensation for the acquisition. At the conclusion of the road works, the
appellant, who happened to be still in occupation of the unutilized portion of the land,
believing that he was the owner in possession of that unused portion of the G20, sold it to
the respondent for ¢4,000,000.00 or GH¢400.00 in today’s economy and duly executed a
deed of assignment in her favour.
The Lands Commission however, challenged the validity of the transaction and declined
to perfect the respondent’s title on the basis that since on compulsory acquisition, the
appellant received full compensation from the State, the unused portion remained the
property of the State, for which reason, the appellant on the principle of nemo dat quod non
habet, lacked the legal capacity to convey it to a third party.
Following the Commission’s refusal to vest title in the respondent, and upon their advice,
she applied formally to the Commission for a lease of the said property.

• The Lands Commission erred in failing to recognise the appellant’s constitutional

right of having the first option of acquiring the land
• Neither party had full or absolute ownership in the circumstances
A crucial question arises for determination. Until full ownership in the unused property
is restored to the original owner, what is the nature of the interest or right of the owner
as well as the State in the unused property? Their respective interest is limited to a
contingent or conditional ownership in the unused property.
In other words, until the owner utilises or declines to utilise the constitutional right of
re-acquisition, none of them has absolute title or absolute ownership, namely, the bundle
of full ownership rights and entitlements, including the right to convey it to others, in
the unused property. Contingent or conditional ownership is ownership in which title is
imperfect, namely that the potential owner does not have full right to the property but
would only acquire full ownership if specific conditions are met or fulfilled.
Stated differently, the ownership is contingent upon those specific conditions being met in
order to perfect the title. The person thus becomes entitled to full ownership only if those
specific conditions are fulfilled or occur. Thus, in compulsory acquisitions under the 1992
constitution, absolute ownership of the property would vest in or revert to the original
owner who in exercise of the right to re-acquire unused property fulfills the conditions
circumscribed by the constitution; otherwise full title to the property would vest in the
State.

157 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

NB: My opinion – The Difference is that although in both cases the compulsorily acquired land in
question was not used for the intended purpose, in Madam Linda it was used for something else
while in Madam Nafisa it was left unused

The human rights aspects of compulsory acquisition of land in Ghana

Yaw Oppong

General
…the right to own property is an inalienable one…guaranteed by the State and can therefore only
be interfered with in accordance with law…
…the right of ownership of property is accorded a formidable guarantee by the Constitution under
articles 18, 20 and 36(7) in particular

Defence of Preservation of Property

No person is to be deprived of his/her property without due process…Indeed the constitutional
guarantee for the protection of rights of property owners is so significant that the constitution has
granted immunity to such persons that in protecting or exercising their right to preservation of
their property if it occasions death, it will be a complete defence for the person seeking to preserve
that right to property… (Article 13(2)(a))

Restrictions on foreigners
…generally, the law does not discriminate in terms of ownership by citizens and non-citizens
(aliens)…
…there are a few instances where the Constitution has provided different rules albeit minimally
in relation to the quantum of interest in land that a non-citizen may be entitled to acquire as
provided for under article 266 and 17(4)(c)…

Rights with respect to compulsory acquisition (see Article 20)

158 | P a g e
LAW OF IMMOVABLE PROPERTY - NOTES

…necessity…for the acquisition ought to be “…clearly stated”

There is a right of access to the High Court by anyone with an interest in the property for the
determination of his interest in the property and the amount of compensation

159 | P a g e