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on the statutory defence under the Civil Aviation Act 1949, since it was
IMMOVABLE PROPERTY
‘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. The Interpretation Act 2009, (Act 792)
‘Land in customary law 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. 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’. – Raphael Nii Armaa Ollennu JSC in PCLLG
DADZIE v KOKOFU (Supreme Court)
The plaintiff, as successor to K. A., claimed K. A. had pledged his cocoa
farm to the defendant in return for a loan of £G7, which the defendant
contended was a sale.
HELD: The ownership of cocoa farms was to be strictly distinguished from
ownership of the land. The land owner had no automatic claim to such
farms, where these had been pledged to another by the deceased
"I conceive that land belongs to a vast family of whom many
are dead, a few are living, and countless hosts are still
unborn" - Nana Sir Ofori Atta I
Hereditament signifies rights that are heritable, i.e. capable
of passing by way of descent to successors in title.
Main categories of hereditaments
• Corporeal hereditaments: These are the physical and
tangible features of land and consist of the physical
surface and everything attached to the land. Eg.
Minerals, buildings
• Incorporeal hereditaments: Intangible rights which
may be enjoyed over or in respect of land. Thus
proprietary rights in the land are classified as land. For
example lease, easement and mortgage may all be
regarded as land.
Ownership and Rights Above and Below the Surface
The general rule is that ownership of the surface of land
carries with it rights to what is below the surface and the
airspace above.
This is expressed in Latin as: ― cuius est solum, eius est
usque ad coelom et ad inferos (whoever owns the soil owns
everything up to the heavens and down to the depths of the
earth).
KELSEN v IMPERIAL TOBACCO CO.
Lessee of a one-storey tobacconist's shop brought an action against ITC
seeking the defendant to remove from the wall above his one-storey shop, a
large advertising sign which projected into the air space above the plaintiff's
shop by a distance of some eight inches. The plaintiff claimed that the
defendant, by fixing that sign in that position, had trespassed on his air space
and that they threaten to continue to trespass unless restrained by the court.
HELD: The court held that the air space above the shop was part of the
premises. He was entitled to a mandatory injunction requiring the defendant
to remove the sign
POUTNEY v CLAYTON (The rule was not strictly applied)
The plaintiff bought the said piece of land from a railway company which
compulsorily acquired the land. However, the defendants had been mining
on the land before it was sold to the plaintiff. The plaintiff brought an action
to stop the defendant from mining on the parcel of land.
HELD: The defendant cannot be stopped from mining on the land since the
plaintiff bought the land subject to the activities of the defendant. Hence the
ownership of the surface of the land was distinguished from the ownership
of the soil below the surface.
LORD BERNSTEIN OF LEIGH v SKYVIEWS & GENERAL LTD
The plaintiff brought an action against the defendant for trespass who took a
single aerial photograph of the plaintiff's premises from a height of several
hundred feet. The plaintiff objected to the photograph being taken also
without his permission, contending that the defendant was not entitled to rely
Immovable Property Summary by Uncle ROLLO
limited to a bare right of passage over land.
HELD: The rights of an owner of land in the air space above the land
extended only to such height above the land as was necessary for the
ordinary use and enjoyment of the land and the structures on it, and above
that height the owner had no greater rights in the air space than any other
member of the public.
STAR ENERGY LIMITED v BOCARDO S.A
The defendant drilled three wells under the land owned by Bocardo SA in
order to extract the oil that lies beneath it. Bocardo SA then instituted an
action for trespass against them. The plaintiff‘s argument was that, since it
owns the land, it therefore mean it owned everything attached to the land.
The defendant was of the opinion that because the minimum depth of the
well is about 800 feet, it cannot be reasonable to say that they are trespassing
on the plaintiff‘s property, and that their activity cannot negatively affect the
plaintiff‘s use and enjoyment of their property.
HELD: The land owner owned all substrata which lie beneath his property
up to an undefined depth where the notion of ownership becomes absurd.
The definition of land includes fixtures attached to the land.
Qui quid plantatur solo, solo cedit (Whatever is attached to
the ground becomes part of it).
Fixtures physically attached to the land and 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.
‘Chattels’ never lose their character as mere personalty, but
which retain their ‘chattel’ status even though placed in some
close relationship with realty.
Land Tenure
Various laws, rules and obligations governing the holding
and/or ownership of rights and interests in land
THE ALLODIAL INTEREST
The allodial title is the highest quantum of interest or title
that can be held and it cannot be extinguished or terminated.
This interest to land normally resides in the group as a whole,
with the head (Chief), being the caretaker or trustee.
Incidents of the Allodial Title
Incidents refer to the bundle of rights which accrues to the
holder of the allodial interest or for that matter any interest in
land. It describes the rights of user and control that the holder
of an interest in land can enjoy.
• Exclusive Possession
• Use and Enjoyment
• Right of Alienation
• Right of Proprietorship in Perpetuity
• Right of Reversion (Residual Proprietary Interest)
ACQUISITION OF THE ALLODIAL TITLE
Ohimeng v Agyei (Ollennu J)
The plaintiff sued head of Asona Stool Family and occupant of the Asona
Stool of Agona Swedru for a declaration of title, an injunction and damages
for trespass. The Native Court held it to be established law and custom that
undisturbed possession of land for fifteen years would have vested
ownership of the land in the person in such possession. They dismissed the
plaintiff's claim.
HELD: 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. 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.
• Conquest and subsequent settlement and cultivation
by subjects of the stool
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• Discovery by hunters or pioneers of the stool and
subsequent settlement thereon and use thereof by the
subjects of the stool.
• Purchase
• Gift
• Contiguity Wiapa V Solomon || Attafuah V Ofori Atta
LOSS OF THE ALLODIAL
• Effect of Legislation
NII NORTEY OMABOE v A-G (Osu Mantse Layout Case)
Section 7(1) of the Administration of Land Act 1962 (Act 123).
Where it appears to the President that it is in the public interest so to do he
may, by executive instrument, declare any stool land to be vested in him in
trust and accordingly it shall be lawful for on the publication of the
instrument, to execute any deed or do any act as a trustee in respect of the
land specified in the instrument.
• Abandonment Nikoi Olai v Adams
• Conquest Owusu v Manche of Labadi
• Adverse Possession (Sec 10: Limitations Act, 1972 (NRCD 54))
• Sale Sasraku v. David || Golightly v. Ashirifi
• Compulsory acquisition
Nana Hyeaman v Osei || Osu Mantse Layout Case
CONSTITUTIONAL & 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.”
There are a number of interventions by the 1992 Constitution
and statutory law placed on the allodial title. For example:
Vesting of minerals in their natural state in the president
on behalf of and in trust for the people of Ghana
Article 257(6)
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.
Restrictions on grants to non-citizens of Ghana
Article 266(1)-(5)
(1) No vesting of freehold interest in any land in a person who is not a
citizen
(2) An agreement, deed or conveyance contrary to clause (1) is void.
(3) On 21st August 1969, if any foreigner had a freehold interest in any land
in Ghana, it shall become a leasehold interest for 50 years at a peppercorn
rent commencing from the 22nd August 1969, and the freehold reversionary
interest vest in the President
(4) No foreigner shall have a lease of more than 50 years at any one time.
(5) On 22nd August 1969 if a foreigner has a lease of more than 50 years it
shall be converted to a 50 year lease beginning from 22nd August 1969
Prohibition of certain grants by stools
Article 267(5) (Prohibits grants of freehold in stool lands)
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.
Immovable Property Summary by Uncle ROLLO
Subjecting grants of concessions or right for the
exploitation of any mineral or natural resource to
parliamentary ratification.
Article 268
(1) Transactions involving the grant of a right or concession to any other
person or body 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.
(2) Parliament may, by resolution supported by the votes of not less than
two-thirds of all the members of Parliament, exempt from the provisions of
clause (1) of this article any particular class of transactions, contracts or
undertakings.
Proviso (Exemptions to be made by Parliament)
Article 269(2)
Notwithstanding article 268 of this Constitution, Parliament may, upon the
recommendation of any of the Commissions established by virtue of clause
(1) of this article, and upon such conditions as Parliament may prescribe,
authorize any other agency of government to approve the grant of rights,
concessions or contract in respect of the exploitation of any mineral, water or
other natural resource of Ghana.
Receipt and allocation of revenue from stool lands.
Article 267
(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) 25% to the stool through the traditional authority for the maintenance of
the stool in keeping with its status;
(b) 20% to the traditional authority; and
(c) 55% to the District Assembly, within the area of authority of which the
stool lands are situated.
Legislation relating to timber, minerals and petroleum
• Concessions Act, 1962 (Act 124), as amended by the
Timber Resources Management Act, 1997 (Act 547),
S.1.
• Minerals and Mining Law 1986, (PNDCL 153), s.1.
• Petroleum Exploration & Production Law, 1983
(PNDCL 68), s.1.
• Legislation relating to Planning and Zoning, e.g. Local
Government Act, 1993 (Act 462) S. 49, 52, 53, 54 and
55.
THE USUFRUCT INTEREST
(The Usufruct, Determinable Estate, Customary Law Freehold)
The usufruct consisted of perpetual rights of beneficial use of
land, which co-exist with the allodial title.
In Awuah v. Adututu, the Supreme Court described the
usufruct as “a specie of ownership co-existent and
simultaneous with the stool’s absolute ownership”.
The Ghanaian usufruct is inheritable, alienable and
potentially perpetual.
Awuah v. Adututu (Contains most principles on Usufruct)
The plaintiff obtained a grant of forest land from the 1st defendant acting on
behalf of the Akwaboa stool. He cultivated the land, leaving a small portion
which he gave to a man to cultivate on abunu tenancy. After that man had
cleared the forest, the first defendant entered the land & appropriated a
considerable portion, subsequently giving some to the 2nd defendant who
started cultivation. The plaintiff sued for a declaration of title to land,
damages for trespass & a perpetual injunction. The trial judge held for the
plaintiff & his decision was reversed on appeal in the court of appeal.
Held(SC): The plaintiff acquired the usufructuary interest in the land which
is coexistent with the allodial title. The usufructuary was regarded as owner
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of the area of land reduced into his possession and he could alienate
voluntarily to a fellow subject or involuntarily to a judgment creditor without
the consent of the stool. There was practically no limitation over the right to
alienate that usufructuary title and so long as he recognised the absolute title
of the stool, it could only be determined on an express abandonment or
failure of his heirs. Neither could the stool divest the usufructuary of his title
by alienating it to another without his consent and concurrence. The subject
of the stool or a stranger-grantee of the stool could maintain an action
against even the stool in defence of the usufructuary title and might impeach
any disposition of such interest made without his consent in favour of a third
party.
ACQUISITION OF THE USUFRUCTUARY INTEREST
1. Discovery of vacant land by pioneers of a stool.
Ngmati v. Adetsia
2. Implied grant from a stool. Ohimen v. Adjei
3. Express grant from a stool Armatei v Hammond
4. Transfer
Bruce v Quanor [Grant of land takes effect the moment it is executed]
Total Oil Products v Obeng [Usufruct can be alienated to a non-subject]
**Norquaye Tetteh v Malm [Presence of economic tree shows occupation]
EXTENT OF BENEFICIAL USE OF THE USUFRUCT
• The usufruct has exclusive right of possession and use of
the land with no restrictions.
• The usufruct can maintain an action in trespass against
the stool and can impeach a grant made by the stool
without his consent. Awuah v. Adututu
• The subject is required to render customary services to
the stool. A non-subject usufruct will still owes
customary services to the stool Total Oil Products v Obeng
INCIDENTS OF THE USUFRUCT
• Right of Possession
• Use and Enjoyment
• Right of Alienation
• Right to an Action in Trespass
• Heritability of the Usufructuary Title
• Right to Compensation [e.g. During Compulsory acquisition]
• Duty to Customary Service
LOSS OF THE USUFRUCT (Mansu v Abboye)
• Abandonment.
• Denial of the title of his grantors. Total Oil Products v. Obeng
• Failure of successors.
• By consent of the usufructuary.
CUSTOMARY TENANCIES AND LICENSE
These are interests that can be created by the holders of the
allodial title or usufructuary interests.
Characteristics Of Customary Tenancy/ License
Mensah v Blow
The appellant’s ancestors granted a licence to the respondent’s ancestors to
occupy & use the land on which the respondent’s family lived without
paying any tribute or tolls. The appellant claimed to have cleared the virgin
forest with the intention of cultivating it without the help of the respondent,
who subsequently ploughed the land. The appellant thus brought an action
for damages & trespass.
HOLDING: The respondent’s claim that she is entitled to dispossess the
appellant of the disputed farmstead because of the long uninterrupted
occupation enjoyed by herself and her ancestors over the land is a false one.
(1) The owner/lessor of the land must be willing to allow
occupation and use of land by the lessee provided the
licensee does not set up an adverse claim to his title or right
to possession..
(2) There is normally some form of tribute, tolls or
customary services by the lessee as an act of
acknowledgment of the lessor‘s paramount or superior title to
Immovable Property Summary by Uncle ROLLO
the land. It is determined by agreement before the licensee
goes on to the land.
(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.
FORMS OF TENANCY
A. SHARE TENANCY
It is founded on contract between the land owner and the
tenant. It is extensively used in agriculture (commercial
farming) and inland fishing (Lower Volta). Jackson J in
KOFI v SESU defined the various types as follows:
• Abusa: The custom of Abusa is that in exchange for the
permission to cultivate the land, the tenant will pay to his
landlord 1/3 of the profit made by him.
• Abunu: The cost of making the farm is borne by the
landlord. The farmer tenant is then placed in charge to
maintain and improve it. As the landowner contributes to
the cost of making the farm, he then gets half (1/2) of the
farm or its proceeds.
Legal Position of Share Tenancy
The share tenancy does not create and pass any legal interest
in the property to the tenant.
The tenant only has right to cultivate the land and to partake
of the proceeds. He does not acquire title or estate in or a
share of the farm. He cannot also use it as a collateral
security. Munu v. Ainoo || Quafio v. Asuku
Incidents of Share Tenancy
• Security/Quiet Enjoyment
This simply means the right to keep possession of the
property and use it without claims from the grantor.
• Right of Alienation
The tenant has no right to alienate the land. However, he
has the right to dispose of the tenancy inter vivos (i.e. in his
life time) but with approval of the landlord who shall/may
exercise the right of pre-emption (first choice).
• Heritability
At customary law, share tenancy may be passed on to the
next of kin of the tenant if fulfilment of the necessary
procedure prescribed by custom have to be adhered to unless
the parties agree that it shall not be passed on.
Loss of Share Tenancy
Share tenancy is of potentially perpetual duration since it is
heritable unless circumstances result in the determination of
the tenancy. It can be terminated:
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• Where there is abandonment;
• Where there is adverse claim by the tenants against the
landlord;
• Where there is a breach of a terms and conditions;
• Failure of a successor.
• When the farm falls into ruin, either by natural causes
(e.g. bushfire or disease) or through tenant’s neglect.
CUSTOMARY LICENCES
They confer a right to occupy and use land subject to agreed
terms. It may be granted by a subject to another subject or to
a stranger for valuable consideration or in gratis.
Customary licences can be created through a contractual
arrangement between parties or through legislation.
Forms of Licences
A. Short Term Licence
It is a permit for cultivation of annual crops (crops grown
over a season).
It gives the licensee no right to put up a structure on the
land. Where he desires to do this, he needs a fresh licence
from the licensor.
The licence cannot be revoked unilaterally until the end of
the season. In addition, where the crops are still on the land,
the permit (licence) cannot be revoked.
It is for a farming season only and then the permit is expires.
B. Long Term Licence
It is granted for agricultural or building purposes. Where
it is granted for building purpose, it is simply referred to as a
building licence.
The licensee here does not need separate licence for a
building permit.
The long term licence devolves on the next of kin of the
licensee and is therefore heritable; however, the necessary
procedure must be fulfilled.
Custom prescribes that the successor be introduced to the
licensor so that the latter gets notice of him. The licensee has
no power to dispose of the land without the authority of the
owner (licensor).
Determination or Extinction of the Licence
A licence is determinable under the following conditions.
• Where there is a failure of succession
• Termination in accordance with the terms of the licence
• Forfeiture
• Abandonment
• Extinction by operation of legislation
• Breach of terms
• Adverse claims on the part of the tenant (licensee)
CUSTOMARY PLEDGES
This is a delivery of possession and custody of a property by
a person to his creditor to hold and use till redemption by
payment of debt or discharge of obligation. In the past,
customary law allowed the pledging of both landed property
and chattels as loans. Pledging of chattels is now abolished.
Essential Requirements and Features of a Pledge
• The pledgee is placed in possession of pledged land
Immovable Property Summary by Uncle ROLLO
• The pledgee has the right to the use and enjoyment of the
land without accounting to the pledgor.
• The pledgor has no access to anything on the land (the
pledgee is entitled to the rights belonging to the pledgor
formerly)
• The pledgee may cultivate economic trees on the land at
his own cost. In the event that the pledgor is ready to
redeem the pledge, he will have to settle the cost
involved
• A pledge is redeemable at any time. Length of time does
not change the position of any of the parties.
Alienation of Pledges
The true position of law is that customary pledges are not
alienable.
A pledgee of land is not entitled to sell the pledged land
except upon an order of a court of competent jurisdiction.
A pledge is one form of alienation of land or interest in land.
In pledges, the legal implication is that the pledgee may use
it, not answerable to any deterioration which is the natural
consequence of such use.
Any right, title or interest in land capable of ownership,
except annual tenancy, may be pledged.
STOOL PROPERTY
Article 295(1): “Stool” includes a skin and the person or
body having control over skin land”.
Stool land includes land controlled by any person for the
benefit of the subjects or members of a stool, clan, company
or community, as the case may be and all land in the Upper
and Northern Regions vested in the President and
accordingly stool means the person exercising such control
Section 31, Administrative of Lands Act, 1962 (ACT 123)
Stool land to include “…land or interest in, or rights over,
any land controlled by a stool or skin or the captain of a
company, for the benefit of the subjects of that Stool or the
members of that community or company” - Article 295(1)
MANAGEMENT OF STOOL PROPERTY
“The management of Stool lands shall be vested in the
Minister”. - Section 1 of the Admin of Lands Act (Act 123)
Article 267(1) vests all stool lands in Ghana in the
appropriate stools on behalf of and in trust for the subjects of
the stool in accordance with customary law and usage.
From Article 267(1) of the Constitution of 1992, stool lands
are vested in stools as trustees for the subjects and in
accordance with custom and usage. Under the custom and
usage the stools’ allodial titles were the highest interest in
land with its incidents. However, as already noted, this is
subject to various restrictions and limitations.
Also, under the State Lands Act (Act 125 of 1962) as
amended stool land could be vested in the President in trust
for the people. The courts previously held in Nana
Hyeaman Ii V Osei that “vested in
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the President” does not take away the powers of the stool to
manage and control stool lands or even to litigate in respect
of same.
NANA HYEAMAN II v OSEI
The plaintiff brought an action for the setting aside of a timber lease of a
parcel of land attached to his stool. Defendants raised a preliminary
objection to the capacity of the plaintiff on grounds that by virtue of the
Concessions Act only the president could institute proceedings on behalf of
the stools concerned. S16 of Act 124 vested lands to be constituted as
foreign reserves in the president & also vested all rights with respect to
timber.
HELD: The vesting of stool lands that are subject to concessions in the
president does not remove the stool’s inherent rights to own property. The
statutory powers of the President ought to be construed as running side
by side with the powers of the stools as the allodial owners of stool lands.
This position has however been change by the SC in the Osu
Mantse Layout case
NII NORTEY OMABOE V LANDS COMMISSION & A-G
EI 108 (Accra-Tema City Council Stool Lands (Vesting) Instrument, (1964))
vested three of the four parcels of land known as the Osu Manste layout in
the president. It consisted of all stool lands in Accra and Tema which
hitherto were vested in the stools.
The High court judge referred the matter to the Supreme Court for
interpretation as to “whether or not by virtue of article 267(1) of the 1992
constitution, the vesting power of E I 108 must be deemed to have lapsed.
HELD: Upon the publication of the instrument (E I 108), the lands in
dispute ceased to be stool lands as defined in s 31 of ACT 123.Upon a clear
look at Act 123, s 7 and 10 ensured that the holder of the allodial title after
the vesting (i.e. the president), maintained the management and control
activities generally incidental to such title. Allodial title cannot be held
simultaneously in two distinct entities unless a joint ownership was intended.
Litigation in Relation to Stool Land
The Chief is the proper person to sue or to be sued in respect
of stool land. Litigation in respect of stool property is
covered by Order 4 Rule 9 of CI 47
GYAMFI v OWUSU (Refused to apply rule I Kwan v Nyeni)
The appellants who were chiefs of Kumawu Traditional Area colluded &
fraudulently claimed for themselves compensation paid by the government
in respect of an acquisition of Digya-Kogyae lands which was stool land for
a game reserve. The respondents who were Kumawu stool subjects
successfully sued for the recovery of the compensation. On appeal, counsel
for appellants contended that since the lands in question were stool lands, the
respondents had no locus to bring an action since it was a settled customary
law principle that the stool occupant was the right person to bring an action
in respect of stool property.
HELD: The respondents had no capacity under customary law to sue in
respect of stool property; only the occupant of the stool could sue in respect
of stool property.
In the absence of the Chief another person may be appointed
to represent the stool if by customary law that person is
competent to represent the stool.
OFUMAN STOOL v NCHIRAA (Van Lare J)
There was a dispute between three stools on who holds title to a certain land.
Each stool was represented by a person chosen by the respective stool.
HELD: The plaintiffs and 1st defendant representatives were not competent
to represent the stools. Where a stool appoints a person to represent it during
litigation, it must be done constitutionally and not arbitrary and the wishes of
the people must be taken into consideration. A stool may be properly
represented by a linguist or elder or office holder of the stool as they are
the natural reps of the stool.
Private Citizens have no standing to commence or defend
proceedings in respect of stool lands.
Indeed in Gyamfi v. Owusu, the Court of Appeal rejected an
invitation by counsel to extend the exemptions in Kwan v.
Nyieni, (relating to family property) to stool property.
Immovable Property Summary by Uncle ROLLO
ALIENATION OF STOOL LAND
A valid alienation is one which is made by the occupant of
the stool with the consent and concurrence of the principal
councillors.
ALLOTEY v ABRAHAMS
The plaintiff sued the defendants for trespass to land & claimed a declaration
of title to land, through a deed of conveyance by the Mantse of Sempe with
the consent & concurrence of his elders.
HELD: 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
Where the occupant does not participate in the transaction, it
is void ab initio.
AGBLOE v SAPPOR
The respondents redeemed a family debt. In rewarding him for that, the
principal members of the family gifted him with a land. The gift was made
without the consent of the head of family. The plaintiff sued for a declaration
of title after a dispute with defendant.
HELD: A conveyance without the head of family is void ab initio. The
family had tacitly consented to the occupation by the defendant thus; they
were entitled to use the land despite the absence of title.
A document purported to be executed by the occupant of the
stool and at least the linguist would be deemed to be binding
on the stool. ALLOTEY v ABRAHAMS
AMANKWANOR v ASARE
The plaintiff’s predecessor acquired land from Nketia, & they agreed that
1/3 would go to Nketia after the farm started bearing fruits. After the
division the plaintiff’s predecessor sold his portion to the defendant’s
ancestor. The defendant subsequently trespassed on the plaintiff’s portion &
the plaintiff sued in trespass for damages. At the trial, the defendant tendered
a document purporting to be evidence of the sale of the farm to his ancestor
HELD: The purported document given as evidence of sale 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.
MANAGEMENT OF FAMILY PROPERTY
In the context of customary land law, a family generally
refers to groups of persons or individuals whose precise
kinship relationship to each other are known, in the sense that
they can identify the persons through whom they trace their
relationships.
INCIDENTS OF MEMBERSHIP OF THE FAMILY
• Generally 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
• Member acquires the customary freehold upon his
occupation and use.
• The member may exercise the rights of possession even
against the head of family and other members of the
family.
Other rights include
• Right to residence in family houses, but without power
to determine which room you would occupy;
• Funeral and other expenses to be payable by other
members upon your death;
• Support for school or to start a business or trade;
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Obligations of members include:
• Contribute towards the payment of family debts and
debts of individual members;
• Payment of funeral and burial expenses of deceased
members; and
• Assistance to needy members.
ACQUISITION OF FAMILY PROPERTY
Property acquired with family resources is family property.
Property is acquired by the joint efforts of members of the
family, raises a rebuttable presumption in favour of family
property. Generally speaking upon the death of one of the
acquiring members, the surviving contributors only retain a
life interest and the property becomes a full-fledged family
property upon the death of the other contributor(s).
TSETSEWA v ACQUAH (Contains all the principles)
The plaintiff alleged that the land had been transferred to him thorough a
will made by his father. The second defendant also claimed that since the
land was worked on by family members, it was family property thus could
not be transferred by testamentary disposition.
HELD: Individual property becomes family property by omission of its
owner to make a will.
Where a member acquires property with a small
contribution from the family the property does not assume
the character of family property.
CUDJOE v KWATCHEY
The deceased out of his own efforts built on his family land. His mother
supervised the construction of the house and his sister rendered him other
services such as cooking. He devised the said property to his wife and the
children. His customary successor sued on behalf of the family for title to the
house on contention that the property for the family. HELD: The nature of
the contributions offered by the deceased mother and sister did not constitute
substantial contribution as to even taint the house with family character.
However, the deceased only had a life interest with no inalienable interest
which he could dispose off by will because the building was on family
property.
Where a member builds a house on family land the land
remains family land and the house becomes family property
with the member only retaining a life interest. Indeed upon
his death the widows and children of the man have only a
right of occupation subject, of course to good behaviour.
AMISSAH-ABADOO v ABADOO
The deceased built a house with the consent of his family on land which was
in the possession of the family which had a building already on it.
Held: Since the family was in effective occupation of the land on which the
deceased had built the house, he had only a life interest in the house with no
alienable interest which he could dispose of by will.
If a family member benefits from financial support of the
family towards their education, it does not make property
subsequently acquired by them in the future family property.
LARBI v CATO
The deceased built the disputed house on a self-acquired land. His brother
claimed that the property was family property because it was built with the
financial assistance of various members of the family. They also contended
that the deceased was educated with the assistance of family funds and as
such, all his earnings were all family property.
HELD: the court held that the customary law of Ghana does not impose
members of the family who have received a professional education with the
support of the family an obligation of repayment. The family members who
make contributions to the building are entitled to share in the enjoyment of
the building but this must be on a basis that the builder by accepting support
from the family recognizes that he is building the house for the family.
Immovable Property Summary by Uncle ROLLO
Where one member acquires land with his own resources and
other members provides the funds to build on the land the
house becomes family property. BOAFO v STAUDT
Where a member makes an extension to existing family farm
or improves it, it remains family property.
NKONNUA v ANAAFI
The original forest was cultivated by family members and the deceased
developed it into a cocoa farm and treated it as his private property. On his
abdication, the farm was not added to the inventory of stool property. The
defendant, son to the deceased & present occupant of the stool claimed the
farm as stool property.
HELD: Where an occupant of a stool develops property of his family or
improves an existing family property, that property is still deemed as family
property and not stool property
Where a member extends or improves existing family
building it still remains family property. KUMAH v ASANTE
Where family property is lost through sale or other
attachment and a member repurchase or redeem the property,
it becomes family property unless he expressly informs
members of the family at the time of the redemption, that the
property would not resume its former position as family
property. NWONAMA v ASIEDU
Where social obligations require some individuals to assist
another person, any property acquired is individual property
of the assisted. where a child assisted his father or guardian
to acquire property, he did not become a joint owner.
YOGUO v AGYEKUM
By customary law where a child or ward worked with his father or guardian,
he did not become joint owner with the father or guardian of the income of
their joint labour; whatever came out of that joint effort belonged exclusively
to the father or the guardian.
ALIENATION OF FAMILY PROPERTY
As a general rule or at least best practice, a family meeting
should be convened to secure the necessary consents required
for a valid alienation of family land.
AWORTCHOE v ESHUN
The issue was whether a family head has to obtain concurrence of family
members before selling family land in case of debt arising
HELD: All members must meet in the presence of strangers as witnesses to
concur for the payment of the debt.
The general rule was stated by Ollennu J, as he then was in
the case of Allotey v. Abrahams. The head of the family
joined by all the principal members can alienate family land.
There have been situations where the alienation was by the
head of family acting alone. The rule was stated in
Beyaidee v. Mensah
The plaintiff claimed to have acquired the land from the defendant’s family
head and had remained in possession until some years before the action was
brought. The defendant alleged that the family head had made the purported
grant without the concurrence of family members.
HELD:. Although the concurrence of family members ought to be given for
there to be a valid sale of family land, the sale is not itself void but
voidable. The family can therefore assert their rights timeously, restoring
the purchaser to the position he was in before the sale. This is obviously
not the case, since here the purchaser has possessed an undisputed ownership
for a series of years, has cultivated and improved the land, and has
established a home upon it.
Manko v. Bonso.
The plaintiff sued defendant for ejectment and ownership of a piece of
family land with a two-storey building. A member sold it to the defendant
without the concurrence of the family.
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HELD: Where a sale of family land is effected without the concurrence of
the members of the family, the sale is not void but voidable and is capable of
being opened up at the instance of the family, provided they act timeously
and also, the purchaser can be restored to the position in which he stood
before the sale.
The Court of Appeal clarified the rule stated in Beyaidee v.
Mensah in the case of Adjei v. Appiagyei. The Court of
Appeal outlined the conditions to be satisfied by the family
seeking to avoid a transaction thus:
• The person seeking to set aside the transaction was the
proper person to represent the family in a suit relating to
family land;
• The members of the family were wholly ignorant of the
transaction;
• The family had not by any conduct subsequent to the
date mentioned acquiesced in the transaction;
• The family had acted timeously and with due diligence,
• The defendant could be put in the same situation that he
stood before the transaction.
The burden of establishing the above facts is on the person
seeking to set aside the sale.
Where the family head does not participate in the transaction
such alienation is void ab initio. Agbloe v. Sappor
LITIGATION IN RESPECT OF FAMILY PROPERTY
The general rule is that it is the head of family who may sue
or be sued in respect of family land.
THE RULE IN KWAN v NYIENI
KWAN V. NYIENI
FACTS: The family members purported to remove Osei Kojo as family
head and appoint Kwan. Removal was held at an arbitration to be void. Osei
Kojo subsequently mortgaged family cocoa farms to the defendant, who sold
it on default of repayment. The plaintiff purporting to act as family head
brought an action to recover the farms. His action was dismissed mainly on
grounds that he was not the family head nor authorised by the family to sue.
The plaintiff appealed.
HOLDING: as a general rule the family head is the proper person to sue for
recovery of family land- to this general rule there are exceptions in certain
special circumstances.
For a person who is not a family head to sue in terms of
family property must prove the following circumstances:
(i) That family property is in danger of being lost to the
family, and the head, either out of personal interest or
otherwise, will not make a move to save or preserve it.
(ii) That owing to a division in the family, the head and some
of the principal members will not take any steps or act.
(iii) That 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, upon proof that
• He has been authorised by other members of the family
to sue, or
• The action is as of necessity, provided that the Court is
satisfied that the action is instituted in order to preserve
the family character of the property.
Immovable Property Summary by Uncle ROLLO
Where the head of family sues on behalf of the family, the
face of the Writ must show that he is suing in representative
capacity.
Where the capacity of the person suing in representative
capacity on behalf of the family is challenged, the burden of
proof lies on the person suing to show that indeed he has the
power to sue as representing the family. NYAMEKYE v ANSAH
Where head of family sues in representative capacity, he is
held personally liable for the payment of costs awarded
against him.
HEAD OF FAMILY
APPOINTMENT/ELECTION
LARTEY v MENSAH (Contains all the principles)
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.
On the plaintiff's own evidence, the co-defendant, who had been the head of
the family, resigned, whereupon the elders present elected the plaintiff as
family head. Also from the evidence, 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. HELD: The appointment of head of a family should be made by all
the principal elders of the family at a family meeting convene for that
purpose. When it is intended to make an appointment, a notice convening a
family meeting and stating the intention to appoint at such meeting should be
given to all those entitled to attend and participate in the appointment.
Failure to give such notice renders invalid any appointment made at a
meeting from which any elders entitled to participate in the appointment are
absent, unless such absent elders subsequently ratify the appointment thus
made.
WELBECK v CAPTAN
Following a dispute between two factions of the family, a meeting was held
to appoint the family head & the plaintiff’s supporters did not attend. The 2 nd
defendant was appointed family head & it was argued for the plaintiff 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 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.
HELD: the court held that, only the principal members of a family can
validly appoint someone as head of family and that for such an appointment
to be valid, all the principal members of the family must be given notice of
the meeting where the appointment will be made.
• The head of family is appointed by all the principal
members of the family.
• The meeting at which the appointment is done must be
convened specifically and solely for the purpose of
appointing the head and notice to that effect should be
sent to all the principal members.
• Where some principal members absent themselves after
having been duly notified, those present can duly appoint
the head of family and such appointment shall be
binding on the absentees.
• Where some of the principal members are not duly
notified, upon proof of such failure of notification, they
may move to set aside the decision taken at the meeting.
• Where there is a division in the family, one faction
cannot appoint a head for the whole family.
Strangers (non-members) could be invited to the meeting as
observers and possibly participate in the deliberations,
however, they cannot take part in the decision to appoint the
head of family.
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BANAHENE V. ADINKRAH
Gyasehene presided over a meeting where the plaintiff was elected family
head. The defendants disputed the validity of the plaintiff’s appointment. An
issue arising for determination was whether the Gyasehene invited by the
family to preside over the meeting at which the plaintiff was elected as
successor was a meddlesome interloper.
HELD: Strangers or non-members could be invited to a family meeting
where the head is to be appointed, but such a stranger will not vote in the
meeting; he may only facilitate the meeting.
The appointment of a person as the head of family is neither
automatic nor does it devolve on any person as a matter of
right or entitlement. Hervi v. Tamakloe
REMOVAL OF THE HEAD OF FAMILY
ABAKA V. AMBRADU (Contains all the principles)
The defendant family head was charged with mismanagement of property. A
first meeting was convened & the defendant attended but left, alleging that it
was not properly constituted. A 2 nd meeting was convened but the defendant
was absent, attending a family member’s funeral. The meeting still
continued & he was removed from office & replaced by the plaintiff, who
brought an action for the recovery of all family documents in his possession.
HELD: The right of removing the head of family from office is vested in the
principal members of the family and the act of the majority would be binding
upon the rest, but where a head is removed, as in this case, without notice of
the meeting being given to all sectional heads, the act of the sectional heads
who were present cannot be binding upon the rest, and unless it is
acquiesced in, it is ineffective. In certain circumstances a head of family may
be removed in his absence where his absence is without justification. Where
a head of family is absent because he is bound by custom to be present at the
funeral of a member of the family, his absence is justified.
• Decision to remove the head of family must be taken at a
family meeting. All the principal members must be
invited to attend the meeting.
• The head could be removed by a decision of a majority
of the principal members.
• The head of family must be served with the notice to
attend the meeting (but purpose of the meeting could be
omitted from the notice), and where the head fails to
attend without good reason, the meeting may proceed
and he could be removed in absentia.
• The courts will not interfere with the merits of the
family’s decision to remove a head unless it is proved
that there was substantial departure from the tenets of
natural justice. Allotey v. Quarcoo
• The burden of proving specific grounds of invalidity of
either the appointment or removal of the head of family
lies with the particular member seeking to avoid the
decision of the family. Walbeck v. Captan
ACCOUNTABILITY OF HEAD OF FAMILY
The general rule was stated in Fynn V Gardiner that,
Members of the family cannot call upon the head of family
for an account. Their remedy is to depose him and appoint
another person in his stead. This position was reaffirmed in
ABUDE v ONANO and
HANSEN v ANKRAH.
The appellants brought an action against the respondents for account of
money received as compensation for the compulsory acquisition of their
family land. The respondents raised a preliminary objection on grounds that
they were not accountable to the appellants at customary law.
HELD: The customary rule that a head of family, who symbolised the hopes
and aspirations of the family which constituted the core of Ghanaian society,
was not accountable in court to the writ of a member of the family, whether
Immovable Property Summary by Uncle ROLLO
a principal or otherwise, while he still held the status of a head was
reasonable and justifiable because the head should have the capacity to
handle the routine orders and disorders of the family. The head of family
was however accountable to the family at a family meeting for his
stewardship. Consequently a member of family who considered that an
incumbent head of family was incompetent, irresponsible or frivolous in the
handling of family matters or was dissipating family funds could ventilate
his grievance against the head at a family meeting
This decision led to the enactment of the Head of Family
(Accountability) Law, 1985, (PNDCL 114). It has 3 sections
Section 1: Makes the head of family accountable to the
family for family property.
Section 2: Requires the head to prepare an inventory of
family property in his custody.
Section 3: Empowers members with beneficial interest in
property to bring an action after certain preliminary
procedural requirements have been satisfied.
FORMALITIES FOR TRANSFER OF INTEREST IN LAND
Basic rule was stated in the case of: Bruce v. Quarnor,
“A conveyance of land made in accordance with customary
law is effective 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.”
Yoguo v. Agyekum, (Ollennu JSC) stated that there must be:
• Ceremony of transfer of the property;
• Publication to the living and the dead that ownership has
passed from the donor to the donee;
• Pouring of libation; and
• Aseda (thanksgiving) indicating acceptance of the gift of land.
COMMON LAW PROPERTY RIGHTS IN LAND
There are two types of property rights in common law. One
that give right to immediate use and enjoyment whiles the
other gives rights against land owned by other people.
Rights giving immediate use to the holder include fee simple
and leasehold.
Rights Against Land Owned By Other People
Restrictive covenants: The land owners in the area come
together an impose restrictions to the land for the benefit of
the people. For example commercial activities can be
restricted in an area in a bid to preserve the value of the land
in that area.
They are agreements restricting the use of freehold land
which are enforceable not only between the original
contracting parties but between assignees of the respective
lands.
Essential features of restrictive covenants
• The covenant must be negative/preventive in substance
• A restrictive covenant must be made for the benefit of
the land retained by the covenantee
• The burden of the covenant must have been intended to
run with the covenantor’s land.
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• The burden of a restrictive covenant runs in equity only-
they are generally enforced by an injunction to prevent
the breach of the covenant.
• A bona fide purchaser of value with no notice is not
bound by the covenant
Easements
A right attached to land and allowing the proprietor of the
land or of an interest therein either to use another land in a
particular manner or to restrict its use to a particular extent
but does not include any right capable of existing as a profit
or a restrictive agreement.
An easement does not confer upon its owner any proprietary
interest in the servient land. A legal easement binds the
servient tenement and benefits the dominant land. The owner
of the dominant land can enforce this against anyone who
occupies the servient land whether or not an interest was
passed on by purchase, lease or gift regardless there was or
no notice of the easement.
Essential Features of Easement (RE ELLENBOROUGH PARK)
• There must be dominant and servient tenements. The
right must accommodate the dominant tenement.
• The dominant and servient tenement must not both be
owned and possessed by the same person.
• The right must be capable of forming the subject matter
of a grant.
• It must not impose on the servient owner any positive
obligation or involve the expenditure of money.
PROFITS A PRENDRE
Section 139, Land Title Registration Law 1986(PNDCL152)
The right 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 that soil.
A right to carry water from someone's land is not a profit but
an easement as the water is not part of the soil or its produce
and unless store in a receptacle it is not capable of ownership.
LEGAL AND EQUITABLE INTEREST IN LAND
Creation and transfer of legal interest in land
Section 1: Conveyancing decree, 1973 (NRCD 175)
At common law the transfer of land should be in writing and
signed by the offeror or his agent. This means that if the
transaction is not in writing a legal interest would not have
been created.
Creation of an equitable interest in land in contract
Section 2: Conveyancing decree, 1973 (NRCD 175)
A contract to transfer land must be evidenced in writing
signed by the person against whom the contract is to be
proved or by a person who was authorised to sign on behalf
of such person. Where this fails to happen but there is an oral
contract which is backed by part performance, an equitable
interest is created - WALSH V LONSDALE
Immovable Property Summary by Uncle ROLLO
Express trust-where the trust is created, the beneficiary of the
trust has an equitable interest while the legal interest vests in
the trustee
Section 3: Conveyancing decree, 1973 (NRCD 175)
Sections 1 and 2 shall not apply to any transfer or contract for
the transfer of an interest in land which takes effect—
• By operation of law;
• By operation of the rules of equity relating to the
creation or operation of resulting, implied or constructive
trusts;
• By order of the court;
• By will or upon intestacy;
• By prescription;
• By a lease taking effect in possession for a term not
exceeding three years, whether or not the lessee is given
power to extend the term;
• By a licence or profit other than a concession required to
be in writing by section 3 of the Concessions Ordinance
• By oral grant under customary law.
A transfer must be evidenced in writing. It can be a receipt,
letter and this must contain the essential parts-amount paid,
duration, the property, the date. This contract is specifically
enforceable as no two pieces of land are the same. It is an
estate contract as it creates an interest in land. It creates an
equitable interest. This is enforceable against everybody
except the bona fide purchaser for value with no notice. An
oral contract supported by part performance creates an
equitable interest. Sbaiti v Samarasinghe
A legal interest is a right in rem exercisable against the world
and an equitable interest is a right in personam enforced
against a limited number of persons who owing to the
circumstances in which they acquired the land ought in
conscience to be held responsible.
The Equitable Doctrine of Notice
Where a person is a bona fide purchase of a legal interest for
value without notice (equity’s darling), his title will prevail.
TYPES OF NOTICE
Actual Notice
It simply means knowledge of the prior interest. The person
could thus have been told about the interest or he might have
seen pillars on a piece of land or building materials indicating
that someone else is in possession.
Section 25(1) of the Land Registry Act, 1962 (Act 122):
The registration of any instrument shall be deemed or
constitute 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 any
enactment
Constructive Notice
Where there is a prior interest that would be revealed by an
appropriate search of the public records affecting land title, a
subsequent purchaser is charged with notice of such a prior
interest even if he never actually conducts a title search.
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Section 50: Land Title Registration Law, 1986 (PNDCL 152)
Any person who acquires land or interest in land shall be
deemed to have had notice of every entry in the land register
which he was entitled to inspect at the time of the acquisition
Imputed Notice
Where in acquiring the interest the purchaser acts through an
agent [lawyer, real estate agent, valuer] any notice, actual or
constructive, that the agent has is imputed to the principal
unless the agent fraudulently conceals it – Kingsnorth Trust v
Tizard.
CO-OWNERSHIP OF PROPERTY
There are two main types of co-ownership
• Tenancy In Common
• Joint Tenancy
In Ghana when parties are silent on how property should be
held the law will presume that they hold it as tenants in
common- Section 14: Conveyancing Decree, 1973 (NRCD 175).
Fenuku v John Teye
In 1954, a couple jointly purchased the disputed land evidenced by a deed of
purchase. Mrs. Fenuku died in 1958. Mr. Fenuku in 1974 sold the land to
John Teye. Children sued claiming the couple held it as tenants in common.
Held:. The common law rule, created a presumption of joint tenancy, in the
absence of any words of severance, where property had been purchased by 2
or more persons. With the provision in Section 14(3) of NRCD 175, it had
ceased to apply. However, 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, created a joint tenancy, which by operation
of law, vested the whole property in the husband. Since by the existing law
at the time of the death of the wife, namely, the English common law rule,
the whole of the disputed property vested in the husband, it would be unjust
to affect such right, 16 years later by NRCD.
JOINT TENANCY
It arises whenever land is conveyed to two or more people
without words to show that they are to take distinct and
separate shares.
Characteristics of Joint Tenancy
1. The right to survivorship (Jus Acrecendi)
If one joint tenant dies his interest in the land passes to the
surviving joint tenants. A corporation which never dies
cannot be a joint tenant. This right takes precedence over any
disposition made by a joint tenant in a will.
2. The four unities:
• Unity of possession- Each owner is as much entitled to
possession of every part of land as the others.
• Unity of interest-the interest of each joint owner is the
same to its extent, nature and duration. Each tenant owns
the whole property but when the land yields rents and
profits they are divided equally between the tenants.
• Unity of title- must acquire title through the same
act/document or grant under a conveyance
• Unity of time-every tenant must vest at the same time
Termination of joint tenancy
• Alienation: When a joint tenant alienates his potential
share intervivos the joint tenancy is severed and the
Immovable Property Summary by Uncle ROLLO
person taking from him becomes a tenant in common
with the other co-tenants who continue to hold their
potential share as joint tenants. Dacosta v Ofori Transport
• Partitioning-can be done voluntarily or compulsorily by
an order of court. A co-owner has a statutory right to
compel partition even without agreement of the other
parties.
• Acquisition-acquisition by one tenant of a greater share.
• Sale-if all the joint tenants agree to sell the land that
joint title is transferred
• Homicide-where one joint tenant kills the other tenant.
This prevents the killer from taking beneficial interest by
survivorship-RE CRIPPEN
• Course of conduct or dealing-any conduct which
indicates an intention to terminate and which is made to
the other tenants-notice to terminate and admits strangers
onto the land without prior notice
TENANCY IN COMMON
They hold the property in divided shares and may have
separate interests. The size of each tenant’s share is fixed
once and for all in proportion to his contribution to the
acquisition of the property or the share granted/gifted tot him.
No tenant can claim sole ownership of any part of the
property.
There is no right of survivorship. It can be passed on in a
will/intestacy. He may dispose of his share intervivos. The
new tenant becomes a tenant in common with the others.
Agyentoa v Owusu
A mother left in her will half of her property to her children, the other half
she sold. One of the children died and the surviving daughter perfected her
title to the entire property. The plaintiff bought the whole title from the
surviving child and purported to evict the children of the deceased child.
Plaintiff had judgment and the children appealed.
Held: The interest created in the will in favour of her children by the use of
the word ‘absolutely’ was that of tenancy in common and not joint tenancy
hence the surviving child was wrong to have perfected the whole title.
LANDLORD-TENANT RELATIONSHIP
The lease arises where a person with a larger interest in land
or a freehold interest customarily or at common law or
leasehold, cuts out of his or her larger interest and create an
interest which does not exhaust all the interest of the
transferor.
If all the interest of the transferor, is given away, then it is not
a landlord and tenant relationship which is being created but
rather a sale and purchase.
For there to be this relationship there should be some interest
in the transferor and a reversion in the transferor.
Essential Requirement for a Lease
ALLAMEDINE BROS V. P.Z
The appellant on an oral agreement took possession of the respondent’s
premises at a monthly rent. A month’s notice was later served on the
appellant to quit the premises as it was need for a business purpose. The
appellant failed to comply and so a further notice of six months was given.
Held: If the rent is stated in monthly terms then it is a monthly tenancy. The
lease must grant exclusive possession to the transferee.
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• Duration permitted for a lease:
It may be for a fixed term or periodic leases tenancies
• Exclusive possession:
If exclusive possession is not granted then it is a license.
Distinction between a license and a lease
• Lease is a proprietary right and so it is alienable. A
license is a personal right and so it cannot be transferred
• A lease is an interest in land and so it is binding on
purchasers of landlord reversion. A license is not binding
except for proprietary estoppel
• Security of tenure legislation and rent control legislation
apply to leases but not licenses.
THE CREATION OF LEGAL LEASES
For a legal lease for a period exceeding three years to be
created, it must be done in writing. Section 1 of NRCD 175.
A legal lease for a period not exceeding three years need
not be in writing and may therefore be evidenced in writing
or oral. SECTION 3(1)(f) OF NRCD 175.
Periodic tenancies are classified as leases for periods not
exceeding three years.
THE CREATION OF EQUITABLE LEASES
There can be equitable lease where:
• There is written evidence or memorandum of the
contract. It must contain the essentials of the contract or
the agreement for lease which include the parties to the
transaction; the duration of the lease; the
commencement of the lease; and the rent amount.
If any of this is lacking from the written evidence, no
equitable lease would have been created. However this is
subject to section 3
• In the absence of written evidence an equitable lease
will also arise where there is an oral agreement
supported by an act of part performance. Section 3(3)
|| SBAITI V. SAMARASINGH E
RIGHTS AND OBLIGATIONS OF LANDLORDS AND
TENANTS
The rights and obligations of landlords and tenants may be
expressly provided in a lease agreement or may be implied.
IMPLIED TERMS
Rights and obligations may be implied by statute, principally
in the Conveyancing Decree NRCD 175, The Rent Acts, or
may be implied at common law, or thirdly by the courts from
the circumstances of the relation.
Section 22 and 23, 25, 26, 27, 28 of NRCD 175 provide
implied terms.
EXPRESS TERMS
These are referred to as covenants between the landlord and
tenants. A covenant usually would confer rights and impose
obligations.
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The person, who assumes obligations or burden, is called a
covenantor and the one who derives the benefits is called the
covenantee.
ENFORCEABILITY OF COVENANTS
In most contractual relationships, it is those who enter into
the contract who are bound by the contract on the basis of
Privity of Contract.
In landlord and tenant relation enforceability of covenant
therefore is not only based on privity of contracts but also
under privity of interest. Purely personal covenant however
will only bind the original parties.
The rights and obligation of landlords and tenants maybe
express or implied may also be either covenant or a
condition.
A right of obligation is said to be a condition where it is
agreed as and framed as an obligation or right that is
something which must be done for the continued existence of
the lease. At law, the only condition which is implied in a
lease is the condition of pay rent.
A breach of a covenant, does not automatically give the
covenantee the right to terminate lease, unless there is a
forfeiture clause. Breach of a covenant gives the covenantee
a right to sue for damages.
Breach of a condition gives the covenantee the right to sue to
terminate the lease even without a forfeiture clause.
RE-ENTRY OF FORFEITURE
A landlord may have the right to re-enter or forfeit the lease
in certain circumstances.
• Non-payment of rent
• Breach of a covenant supported by forfeiture clause or a
Proviso for re-entry upon breach
• Denial of the landlord’s title by the tenant.
The courts have held that the re-taking need not involve
physical possession but rather legal possession.
EXPRESS COVENANTS
• Restrictive covenants- a covenant imposing a restriction
on the use of land so that the value and enjoyment of
adjoining land will be preserved.
• Option to renew- With a lease for a fixed term, the
tenant has no option to renew unless the lease expressly
so provides.
• Maintenance and repair- First, the landlord is under no
obligation to repair unless this is expressly provided.
Second, the landlord does not warrant the habitability or
the fitness for purpose of the subject matter of the lease-
caveat emptor.
IMPLIED OBLIGATIONS OF THE LANDLORD
SECTION 22, CONVEYANCING DECREE
• RIGHT TO CONVEY
The landlord covenants that he has the right to give out the
property.
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• QUIET ENJOYMENT
During the duration of the lease the landlord or his successors
or assignees will not do anything that will interfere with the
tenant’s enjoyment and possession of the property
• FREEDOM FROM ENCUMBERANCES
The landlord impliedly covenants that the lease is free from
any encumbrances, licenses, mortgages except those that
have been expressly named in the covenant.
IMPLIED OBLIGATIONS OF TENANT
SECTION 22, CONVEYANCING DECREE
• Repair to adjoining premises
• Alterations and additions
The tenant shall not without the prior written consent of the
landlord make addition or alteration to premises.
• Not to injure walls
• Not to assign or sublet
• Illegal and immoral use-
The tenant shall not use or cause to use the subject matter of
the lease for any illegal or immoral terms.
• Avoid causing nuisance or annoyance
TERMINATION OF LEASES
There are six ways a lease can be terminated at common law:
• Expiration:
This mode of termination applies only to fixed tenancies.
Expiration is not enough for the landlord to re-enter. He must
satisfy one of the conditions under section 17(1)
• Surrender
This is where a tenant returns the unexpired portion of the
lease to his immediate landlord thereby terminating the
landlord and tenant relationship. It must comply with
sections 1, 2 and 3 of the Conveyancing Decree.
• Merger
This is where the tenant buys the reversionary interest from
the landlord and hence terminating the landlord tenant
relationship
• Notice to quit
Fixed term leases: a fixed term lease cannot be terminated
by notice unless this is expressly provided. This must also
comply with strict provisions of a lease.
Periodic leases: There is an implied right to give a notice to
terminate a periodic tenant. The period of notice to be give
depends on the type of periodic tenancy. If it is a periodic
monthly tenancy, then you need to give one month notice.
• Frustration
The common law position from P ANALPINA V NATIONAL
CARRIERS is that it is possible for a lease to be frustrated but
this is rare. This is because the lease is an interest in land. In
the case, the court held that although a lease can be frustrated
but on the facts of the case there was no frustration.
• Re –entry or forfeiture
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A lease may be terminated where a landlord exercises his
rights to forfeiture.
WAIVER (Section 32 of Conveyancing Decree)
If a tenant breaches a condition or a fortified covenant, the
landlord has a right to re-enter. However if this is not done it
is possible that the landlord has waived this breach.
He must be aware of the breach and must have done an
unequivocal act which indicates that he does not intend to
terminate the lease.. Waiver relates to acts that occur at the
time of the waiver-
Bassil v Said Raad (Ollennu)
The landlord had be receiving rent with full knowledge of the breach
Held: It was deemed in law that the breach had been waived.
THE EJECTION AND EVICTION OF TENANTS
Section 17(1): Rent Act, 1963 (Act 220)
A tenant may be ejected in any of the following situations:
a) Arrears of rent (non-payment one month after the rent is
due)
b) Where any obligation of the tenancy, consistent with the
provisions of this Act, has been broken or not performed.
c) Nuisance or behaviour of annoyance to adjoining
occupants of the premises.
Dennis v Agbeti
Pounding fufu on the top floor of a storey building was held to be nuisance
d) Immoral or illegal purpose by tenant or anybody living
with him
e) Deterioration of the premises as a result of the neglect or
acts of waste of the tenant
f) Promissory estoppel: Notice to quit by the tenant and
landlord has contracted to sell or let the premises.
g) Where the landlord reasonably requires it for his personal
occupation as a dwelling house by himself or a member of
his family.
Member of his family: father or mother, a wife, husband, child, brother or
sister, or such other person as may be prescribed
FURTHER CONDITIONS
• The property must have been constructed as residential property
• Reasonable requirement: The court will take into consideration the
existence or otherwise of alternative accommodation; the size of the
house; size of his family; location of the property. The onus of proving
reasonable requirement is on the landlord.
If it is required for an employee, it must be someone that the landlord should
normally and reasonably provide accommodation for.
• Balance of hardship. This is to determine whether greater hardship
will be caused to the tenant or landlord if the order of recovery of
possession is made and that the court should only make the order if on
balance greater hardship will otherwise be done to the landlord.
h) For a business premises (Constructed for that purpose)
where:
• The lease has expired and
• The landlord needs it for his own business
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• Gives six months notice of his intention to recover
possession
I) For both residential and business premises where
• The lease has expired and
• The landlord intends to pull down the premises and
construct a new one,
• intends to remodel which cannot be carried out with the
tenant in occupation
• The landlord give at least six months’ written notice to
the tenant to that effect.
j) Where the premises was let to the tenant by reason of his
employment in the service of the landlord and such
employment has ceased
k) Where landlord rents premises furnished to the tenant
because he was leaving Ghana or part of Ghana where the
premises in situated
Elements:
• The property must be furnished or substantially furnished.
• The lease must be in writing and sets out that the lease has
been granted for a term of absence of the landlord
• The lease must have been granted because the landlord is
leaving Ghana or that part of Ghana where the property is
situated and the writing states so.
• The landlord has returned to Ghana or that part of Ghana where
the property is situated
• The landlord requires the property for his own occupation
ESTOPPEL BY ACQUIESCENCE
The Doctrine of Acquiescence arises in situations of passive
and active encouragement.
The main elements as in W ILMOT V. B ARBER (Fry J)
o Plaintiff must have made a mistake as to his legal rights;
o Plaintiff must have spent money or done some act or
suffered some detriment due to the mistaken belief;
o Defendant the owner of the legal title, must know that
his rights are inconsistent with the right claimed by P.
o Defendant must know of P mistaken belief.
o Defendant must have encouraged P in his expenditure or
other acts, either directly or by not asserting his legal
right.
Consequences of estoppel
• It operates as a conveyance of the interest of the rightful
owner to the wrongful claimant
• It operates between original parties as well as their
successors. Even if the rightful owner has passed on his
interest before litigation began
Amonoo v dee (Sowah J)
The plaintiff’s granduncle purchased land and planted foodstuffs. The grand
uncle had died some thirty years ago and the plf was the successor to the
property. The def started breaking and entering to pluck cocoa and after
several protest the plf brought an action in court. The def contended that the
whole area was the property of his ancestor.
Held: Where a person had occupied a piece of land under a mistaken belief
that that was the land he had purchased and he invested in it what appeared
to be the most valuable investment, alienated a portion thereof, all to the
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knowledge of the defendant, the possessor of the legal rights, who took no
steps to vindicate his title or at least to inform the plaintiff occupier of his
mistaken belief that the property he had purchased was not the land he was
occupying, the defendant's conduct would amount to fraud, and the court
would be entitled to restrain the defendant from setting up his legal rights
and exercise its discretion in favour of the plaintiff
LIMITATION OF ACTIONS
The Limitations Decree, 1972 (NRCD 54)
Section 10-where the cause of action has accrued in relation
to a land matter, the cause of action must be commenced
within twelve years of the accrual of the cause of action. If
this is not done, the cause of action becomes statute barred.
When does the cause of action accrue?
The cause of action arises when somebody goes into adverse
possession of your land- Section 10(2).
For the adverse possession to be deemed to have arisen, the
adverse claimer must do something of which the rightful
owner must know. It is from this that time begins to run.
Memuna Amoudy v Kofi Antwi (Date Bah JSC)
Plaintiff claimed adverse possession against the state for land that had been
compulsorily acquired from his father
Held: here people unlawfully enter unto state land, thus a land which has
been compulsorily acquired by the republic of Ghana; they are not to be
deemed to be in adverse possession. The state just gives them some implied
license to remain on the land until the state needs the land back.
CIRCUMSTANCES IN WHICH A PERIOD OF
ADVERSE POSSESSION MAY BE EXTENDED
DISABILITY –section 16
In 16(5) disability is where the person is an infant or where
the person is of unsound mind. Therefore where adverse
possession is made against such persons, you don’t count the
time from when the adverse possession starts but from when
the disability ceases.
ACKNOWLEDGEMENT OF THE INTEREST OF THE
RIGHTFUL OWNER-section 17
Where after the accrual of the cause of action, the adverse
claimant acknowledges the interest of the rightful owner in
writing, time shall cease to run.
Sections 17(1)(e) and 17(2).-every acknowledgement must
be in writing and signed by its maker..
FRAUD, FRAUDULENT CONCEALMENT OR MISTAKE
Section 22-where the adverse possession is based on fraud,
fraudulent concealment or mistake, or the adverse possession
is a result of fraud, fraudulent concealment or mistake, time
does not begin to run from when the person went into adverse
possession but from when the fraud, fraudulent concealment
or mistake was discovered or should have been discovered by
the rightful owner.
THE EFFECT OF LIMITATION
When the rightful owner is statute barred it extinguishes his
title as the rightful owner-section 10(6)
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REGISTRATION
There are two systems of registration operating in Ghana.
• Registration of deeds or instruments affecting land under
Lands Registry Act 1962 (Act 122) and
• Registration of title or interest in land under the Land
Title Registration Law, 1986 (PNDCL 152).
Act 122 provides for the registration of the written evidence
of the transactions affecting land and does not actually
provide for the registration of interest.
The system does not deal with the registration of oral
transactions.
Because of this Act 122 did not adequately deal with the
uncertainties and insecurities affecting land.
PNDCL 152 provides for the registration of interest in land;
providing for the adjudication of conflicting claims;
registration of both common and customary law interest in
land and provides that upon first registration, subsequent
dealings in the land can only be done through amendments to
the register.
Under PNDCL 152, persons whose interests have been
registered is guaranteed by the state and it is indefeasible
which is not same under Act 122 which just afford registers
for potential buyers to look at and draw their own
conclusions. The state does not guarantee title under Act 122.
CONSEQUENCES OF REGISTRATION
A. Section 24-THE EFFECT OF NON REGISTRATION
1. An instrument other than a will or a judge’s certificate
shall be of no effect (to pass an interest in land) until it is
registered. The instrument is not null and void but ineffective
to convey an interest in land until it is registered. Djan v Owoo
2. Because it can lead to undesirable consequences, the courts
have held that an unregistered instrument may form the basis
of an equitable interest. Amuzu v Oklikah
3. Oral Grant under Customary Law: Since Act 122
provides for the registrations of instruments, writing affecting
land, the validity of oral grant under customary law is not
affected by non-registration. B ROWN V. QUARSHIGAH.
B. THE EFFECT OF REGISTRATION-SECTION 25
Registration constitutes actual notice in all purposes and for
all purposes as of the date of registration. But where in spite
of registration there has been fraud by the person who has
registered or the registration the result of fraud, the
registration is or may be ineffective.
C. PRIORITY OF INSTRUMENTS-SECTION 26
The instrument shall, upon registration, take such effect from
the date of its execution. In any other case, the instrument
shall, except as otherwise expressly provided in this Part of
this Act, take such effect from the date of its registration
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D. ORAL GRANTS AT COMMON LAW
1. AMUZU V. OKLIKAH is to the effect that where there is an
oral grant, not at customary law but at common law,
supported by an act of part performance, an equitable interest
will be created in spite of the fact that there is no registration.
2. Oral grants of leases for a period not exceeding three years
and taken effect in possession, will still be effective In spite
of the absence of registration by virtue of section 3 of NRCD
175 (a legal lease for a period not exceeding three years and
taking effect in possession need not be in writing).
E. ORAL GRANTS AT CUSTOMARY LAW
Oral grants at customary law need not be in writing. If
subsequent to that the grantor purports to give the same land
in writing and the person registers, the fact of the registration
of the subsequent transaction will not defeat the purpose of
the oral transaction.
THE EFFECT OF REGISTRATION
Sections 18 and 43 of PNDCL 152
Registration in the land register shall be conclusive evidence
of the title of the proprietor. Thus it is a complete answer in
any adverse claim.
COMPULSORY ACQUISITION
Article 18(1): The right of individuals to own property
Article 20: No property or interest can be compulsorily
acquired by the state unless
• It is necessary in the interest of defence or public
purpose in such a manner as to promote public benefit
• The necessity for the acquisition is clearly stated such as
to provide reasonable justification for causing hardship
• Made under a law which makes provision for prompt,
fair and adequate payment of compensation
• The right of access to the high court to anyone with an
interest in the property for the determination of his
interest and the amount of compensation
State Lands Act 1962 Act 125 as amended by (Act 586)
2000 governs the compulsory acquisition of lands
Section 1: Where it appears to the president to be in the
public interest, the president may by executive instrument
compulsorily acquire any piece of land.
Section 2: PUBLICATION BY EXECUTIVE INSTRUMENT
For there to be effective publication, there must be:
• Personal service of the executive instrument on all
persons who have an interest in the land in question
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• Service on the traditional authority of the area in

which the land is situated and the chief tonotify the
people of the area concerned
• Fixing a copy of the executive instrument at a
convenient place on the land
• The executive instrument must be published on three
consecutive occasions in a newspaper circulating in the
area where the land that is being acquired is situate and
in any other manner directed by the land commission

Section 1(5): Once the executive instrument has been

published the compulsory acquisition is complete and the
effect is that all persons who had an interest in the land , will
have their interest extinguished by virtue of the compulsory
acquisition.

Section 4: COMPENSATION- A person who claims a right

or has an interest in land subject to an instrument made under
section 1may submit claims for compensation within six
months on the day the instrument is acquired.

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