UPSA LAW SCHOOL BLAW 413: IMMOVABLE PROPERTY LAW I

2ND TUTORIAL QUESTIONS

1. The statutory modification in the Land Act, 2020 (Act 1036) on the accountability of the
Head of Family have reversed all the gains made under the Head of Family
(Accountability), Act, 1985 (PNDCL 114). Discuss.
Solution
Definition of the Family
The family is considered the central institution under customary law. Professor Kludze
defines a family as one of blood relations who are descended from a common ancestor. A
family can either be patrilineal who trace their lineage from a male ancestor or matrilineal
who trace their lineage from a female ancestor. Families in accordance with customary
law have been given the statutory right to own land. Section 281 of the Land Act 2020
(Act 1036) defines family land to mean the allodial title of which is held by a family for
the benefit of the members of that family in accordance with customary law.

WHO IS A FAMILY HEAD

section 4 of head of family (Accountability) Act 1985 (PNDCL 114) HOF is a
person who is in possession of or in control of or has custody of a family property.
Banahene v adinkra has a vested right under customary law to administer, control and manage
family ancestral property by virtue of his position

APPOINTMENT
Hervie v Tamakloe and others, Ollenu J espoused that 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 members of the family when the post becomes
vacant by any means, or he must be acclaimed and acknowledge as such by the
principal members of the family.

The statutory modification in the Land Act, 2020 (Act 1036) on the accountability of
the Head of Family have not reversed all the gains made under the Head of Family
(Accountability), Act, 1985 (PNDCL 114)
 Customary position before PNDCL 114
The general rule under customary law is that the head of the family (HOF) is viewed
as the symbolic figure in the family and is not accountable to the members of the
family for his stewardship. In the case of Fynn v Gardiner, the west African court
of appeal said that it is a well settled principle of native law and custom that junior
members of a family cannot call upon a head of a family for an account. Their
remedy is to dispose him and appoint another. Mensah Sarbah stated in Fanti
Customary Laws at page 90 that where the family discovers that the HOF is
misappropriating family property, their only remedy is to remove him and appoint
another.
However, in the case of Hansen v Ankrah, the decision of the court was that the
principal elders or members of the family who appointed the HOF can call on him at
a family meeting to render accounts at a family meeting for that purpose.
This position led to the passage of the PNDCL 114

PNDCL 114
Section 1(1) - a head of family or a person who is in possession or control of, or has
custody of, a family property is accountable for that property to the family to which
the property belongs.
1(2) A head of family or a person who is in possession or control of, or has custody
of, a family property shall take and file an inventory of the family property.
Section 2(1) Where a head of family fails or refuses to render account or file an inventory of the
family property, a member of the family to which that property belongs who has or claims to
have a beneficial interest in the property, may apply by motion to a Court for an order
compelling the head of family to render account or file an inventory of the family property to the
family.
2(2) a motion to the court shall not be entertained by the Court unless the Court is
satisfied that the applicant had taken steps to settle the matter within the family and that the
attempts had failed.
Section 3 - a court may make an order compelling the head of family to render account or file an
inventory in respect of the family properties in the possession, control or custody of the head as
the Court may specify in the order.

Under Act 1038

The act has modified and improved some provisions in PNDCL 114 and codified some
customary law. {section13(5)}
The position of the law that the HOF is accountable is enshrined in Article 36(8) of the 1992
Constitution which states that the head of family hold a fiduciary responsibility in
relation to the family land or property.
Section 13(2) of Act 1038 – the chief, head of clan or family in charge of the management of
stool, skin or family is a fiduciary charged with the obligation to discharge the
management function for the benefit of the stool, skin or family concerned and is
accountable as a fiduciary.
Section 13(3) – the chief, head of clan or family in charge of the management of stool, skin or
family land shall be transparent, fair, open, and impartial making decisions affecting
the specified land.
S. (13(4)} introduced the penalty for breaching the fiduciary responsibility. The fiduciary is
liable to a summary conviction fine of not less than 5000 penalty or more than 1000
penalty or prison term of not more than 10 years or not less than 5 years or to both.
s. {13(6)} A person can only bring an action under section 2 of PNDCL 114 against an occupant
of the stool or skin or family head when that person has:
1. exhausted all the established customary procedure for making the family head or stool or skin
to render accounts or maintain records.
2. is qualified under the relevant customary law to bring an action against the occupant
3. is a subject of stool, skin or a member of the clan and has been granted leave by a court upon
proof that the person qualified to institute an action has failed to act within 30 days
after being informed of the need to act.

Section 14 of Act 1036 - set up a customary land secretariat to perform the fans under section 15
of the Act
 Records and keep up to date records of land transaction.
 Provide a list of existing customary interest and right in the land
 Facilitate the settlement of land dispute through ADR
 Provide facilities for search to be conducted on the records on land.
Section 17 of Act 1036

QUESTION 2
“Section 47 of the Land Act, 2020 (Act 1036) is a typical example of a statutory
provision in search of a problem.” Discuss the above quotation in relation to distribution
of spousal properties upon dissolution of marriage under Ghanaian law.

Solution
what is marriage?
In the case of Hyde v Hyde, Lord Peuzance said marriage is a voluntary union for life of
one man and woman to the exclusion of all others.

During the subsistence of the marriage, some property may be acquired, and this is called
the Marital property.

Marital property was defined in the case of Arthur v Arthur as a property acquired by
the spouse during the marriage irrespective of whether the other spouse has contributed to
its acquisition.

Article 18(1) of the 1992 Constitution, every person has the right to own property either
alone or in association with others.

Section 47 of Act 1036 is not a statutory position in search of a problem but rather
supports the current position since the law has evolved over the years.
Customary law position
The fundamental principle of customary law makes a basic assumption that the husband
is the head of the family and the principal provider and that a wife is duty bound to assist
the husband in whatever he undertakes and whatever property he acquires with her
assistance belongs exclusively to the husband.
the case of quartey v martey established the principle that the proceeds of a joint effort of
a man and his wife and/or children and any other property which the man acquires with
such proceeds are by customary law the individual property of the man.
Also, in the case of Ayer v Kumordzie, the courts established that the use of chattels is
limited to the duration of the marriage unless expressly declared by the husband as a gift.
It was the case of Quaico v. Fosu (1965) that ameliorate the condition of widows by
finding that under Akan customary law, a widow have proprietary interest equivalent to
life tenancy in her deceased husband’s estate while she remain unmarried.

Substantial Contribution Principle

Due to the harshness and unfair nature of the customary law position, the substantial
principle was established to cater for situations where the wife’s contribution exceeds
mere assistance given by a wife under the customary law.
Under this principle if a spouse is able to provide proof of contribution or substantial
contribution, she was granted the right to enjoy an interest in the property acquired during
the subsistence of the marriage.

In the case of Abebrese v Kaah and Others, the court held that the contribution of the
wife was beyond mere assistance given by a wife under customary law to her husband.
The house was therefore declared a joint property of the wife and husband.

In the case of Clerk v Clerk, a wife did not have a job and after the dissolution of the
marriage, the wife claimed that she had beneficial interest in the matrimonial home
because she had given her husband moral and material support in the acquisition of the
home.
The court held that the contribution on which the wife relied did not entitle her to any
share of the property. She was not a woman who had a job or would have worked but left
the job to care for the house.
She had not made any substantial contribution towards the acquisition of the property and
was therefore not entitled to a share in the matrimonial home.

The substantial contribution principle seemed to inflict some amount of injustice to

spouses who assisted in diverse ways other than direct financial or material contribution
towards the acquisition of such properties.
Due to this seeming injustice that the framers of the Constitution 1992 sought to provide
a remedy in Article 22 of the 1992 Constitution of Ghana.

Before the 1992 Constitution, Section 20 of the Matrimonial Causes Act, 1971 (Act 367)
dealt with property settlement and award of financial provision upon a decree of divorce.
The section empowered the courts to order a spouse to convey to the other such house or
building as part of financial provision as the court thinks just and equitable. Equitable
means what is just, reasonable and accords with common sense and fair play. Under this
principle the court favours equal sharing of joint property regardless of contribution.

The Supreme Court initiated a move leveraging on the equality principle taking
inspiration from Article 22(3) of the 1992 Constitution. Under this principle the court
favours equal sharing of joint property regardless of contribution. Article 22(3) of the
Constitution deals with property rights of spouses by providing that spouses shall have
equal access to property jointly acquired during marriage. Also, assets jointly acquired
shall be distributed equitably upon distribution.

In the case of Mensah v Mensah, Supreme Court held that the court would apply the
principle that property jointly acquired during marriage would become joint property of
the parties and such property should be shared equally on divorce, because the ordinary
incidents of commerce had no application in marital relations between husband and wife
who had jointly acquired property during marriage.
The position in Mensah v Mensah was further clarified and expanded in the case of
Boafo v Boafo. The Supreme Court held that the equitable principle applies, unless one
spouse can prove separate proprietorship.

Equity Principle
The Supreme Court began to set the pace in the case of Gladys Mensah v Stephen
wherein Dotse JSC adopted the equity principle and decreed that properties acquired
during the subsistence of the marriage were jointly owned, whether there was
contribution or not.
The principle in Gladys Mensah v Stephen Mensah was applied in Quartson v
Quartson. Date-Bah JSC held that marital property is thus to be understood as property
acquired by spouses during the marriage,irrespective of whether the other spouse has
made a contribution to its acquisition. He however stated an exception went on to say that
property acquired by gift during the marriage should be excluded from the concept of
marital property.

In the case of Fynn v. Fynn and Christiana Osei, the court held that when it comes to
the distribution of properties acquired during the subsistence of marriage it will apply the
equality is equity principle.

The enactment of the Land Act, 2020, (Act 1036) which came into force on 23rd
December, 2020, has revolutionalised and codified the equity principle. In pursuance of
article 22 of the Constitution, the Act provides that property acquired for valuable
consideration by spouses during marriage is presumed to be owned by the spouses as
tenants in common, unless a contrary intention is expressed.

Section 38(3) and (4)-Parties to a Conveyance

Unless a contrary intention is stated, a conveyance to a spouse in marriage is presumed to
be for both spouses whether or not the names of the spouses are in the document.
Section 47
for transactions where joint ownership is presumed, no spouse shall transfer an interest in
the land without the written consent of the other spouse. The legal implication of this
provision is that when even a husband solely finances the acquisition of a property, for
example a building, the husband cannot legally sell, exchange, transfer, mortgage or enter
a long lease without consent of the wife.
Another legal implication of this provision is that if a spouse attempts to acquire landed
property solely for himself or herself (which is a constitutional right), during the marriage
but fails to indicate that intention in the transfer document (the conveyance), both spouses
shall be deemed to be parties to the transfer. The property so acquired shall form part of
the joint properties of the spouses.

EXCEPTIONS TO THE RULE

Acquired for valuable consideration means that;
(a) Landed property acquired by a person before marriage
remains the independent property of that person after the
marriage.
(b) Landed property received by a spouse as a gift shall be an
independent property of that spouse and such property shall
not form part of the joint property of the spouses
QUESTION 3

Area of law
Alienation of stool land to a non-citizen
Alienation of stool land by way of usufructuary Grant

Legal issues
Whether or not Osabarima Ampem Darko IV could validly grant a leasehold interest of
99 years to Nkule, a South African national?
Whether or not not Osabarima Ampem Darko IV can validly make a grant by way of
usufructuary interest to Abugre?

Applicable rules of law

Rule one
Stool lands
Article 295 stool lands includes any land or interest in, or right over, any land controlled
by a stool or skin, the head of a particular community or captain of a company for the
benefit of the subjects of that stool, community or company.
Section 281 stool lands includes any land or interest in, or right over, any land controlled
by a stool or skin, the head of a particular community for the benefit of the subjects of
that stool, or community.

Leasehold
Section 6 (a) an interest in land for a duration which is certain or capable of being
ascertained. (b) it arises when a person who holds an allodial title, customary law
freehold or usufructuary interest conveys to another person an interest in land for a
specified term subject terms and conditions.

Non-citizen
Article 266(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 more than 50 years at any one time.

Section 10(6)
No person shall create interest in, or right over any land in Ghana which vests in a person
who is not a citizen of Ghana a leasehold for a term that exceeds 50 years at any one
time.

Rule 2
Article 267(1) all stool lands in Ghana are vested in the appropriate stool on behalf of and
in trust for the subjects of the stool in accordance with customary law and usage.

Section 5(1)(a) usufructuary interest in land is acquired in the exercise of inherent right
by the subject or a member of the stool, skin or family which holds the allodial title
through the development of unappropriated portion of the land of the stool, skin or family
or by virtue of express grant.
5(1)(b) the usufructuary interest in land can also be acquired through settlement for a
period of not less than 50 years by a non-indigene, a group of non-indigenes or
descendants of non-indigene with the permission of the allodial owner.
Section 50(19) a conveyance of a usufructuary interest shall not specify any duration of
interest but the holder of the interest is subject to the customs and traditions of the area
where the land is situated.
Kwami v Quanor
Ohimen v Adjei - The court per Ollennu J held that a subject who is able to gain
possession of a portion of the stool land through his own industry is a holder of the
usufruct and the defendant could not grant the land to other without the consent of the
usufructuary holder.

Section 5(1)(c) the usufruct is inheritable and alienable and potentially perpetual.
 APPLICATION/DISCUSSION

QUESTION 4
Area of law
Alienation of stool land to a non-citizen
State ownership of natural resources in land
Vesting of minerals in natural state/grant of concession
Ownership of economic trees

Legal issues
Whether or not the Manso stool of bogosu could validly convey 5 plots of land absolutely and
forever to Abiola, a Nigerian banker?
Whether or not Golden Ridge Inco. can lawfully commence mining activities on the land granted
by Abiola?
Whether or not Golden Ridge Inc. can lawfully harvest the naturally grown timber on the granted
by Abiola?

Applicable rules of law

Rule one
Definition of customary freehold
Section 3 of Act 1036 it is an interest which arises from a transaction under customary law, and
it is an absolute interest in land which is not subject to any proprietary obligation, but it is subject
to the cultural and jurisdictional rights of the stool, family or skin which holds the allodial title.

Non-citizen
Article 266(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.

Section 10(1) of act 1036 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.
Article 266(3) 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 more than 50 years at any one time.
The leasehold interest shall be at a peppercorn rent.

Martin Verdose v Patricia Verdose-Kuranchie

Rule 2
Common law position kelsen v Imperial tobacco
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 depth of the earth.

Section 21 of Act 1036 (Restrictions regarding disposal of natural resources)

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

Article 257(6)
Every mineral in its natural state in, under or upon the land in Ghana shall be vested in the
president on behalf of the people of Ghana.
Article 269(2) parliament may upon recommendation authorise any other gov’t agency to
approve the grant rights, concessions or contracts n respect of the exploitation of ny mineral or
other ntural resources

Rule 3
Common law position
Quid quid plantatur solo, solo cedit (whatever is attached to the ground becomes a part of it)
Atta v Esson (the Ghanaian position is that any economic trees which are naturally grown on the
land landlord is not entitled to the fruits of economic trees planted by the tenant
QUESTION 5
Area of Law
Appointment and removal of the head of the family
Alienation of family land

Legal issues
Whether or not Kofi Asante was validly elected as head of the Oduma family of Adukrom?
Whether or not the alienation or disposition of land by Kofi Asante and Kwame Appiah were
lawful?
Whether or not the removal of Kofi Asante as head of the Oduma family by some principal
members was valid?

APPLICATION/DISCUSSION
Rule 1
Hervi v. Tamakloe

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.

LARTEY v MENSAH.

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.

Banahene v. Adinkra
The meeting for the appointment of the head of the family may be convened by the most senior
member of the family, male or female, by two or more elders or principal members of the family or
even by any respectable member of the community, an elder or chief of the quarter, or town, upon the
request of members of the family.”

AFFRAM AND OTHERS V. DIDIYE III; TWUM II V. DIDIYE III (CONSOLIDATED)

the appointment of a head of family need not be done at a formal family meeting.

Rule 2

Banahene v. Adinkra

It is the HOF who has a vested right under customary law to administer, control and manage
family properties.

AWORTCHOE v ESHUN

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.

Kwan v. Nyien

The Head of family acting with the consent and concurrence of principal members of family can
validly alienate title to family property.

Allotey v Abraham

According to native law and custom it is only the occupant of the stool or the head of family who
is entitled, with the consent and concurrence of the principal elders of the stool or family, to
alienate stool or family land.
Beyaidee v. Mensah

Although concurrence of family members ought to be given for there to be a valid sale of family
land, the sale is not itself when done by the head of family alone void but voidable. The family can
therefore assert their rights timeously, restoring the purchaser to the position he was in before the
sale.

Manko v Bonso

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.

Atta v Aidoo

A sale by the head of family without the assent and 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 it 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

• Dotwaah v. Afriyie

Alienation by other members of family without the consent of HOF is void ab initio and passes
no title.

Agbloe v. Sappor

Where the head does not participate in the transaction such alienation is void ab initio. OR
Where the elders alone without the consent of the HOF purport to alienate family property, that
alienation is void ab initio.
Adjei v Appiagyei

A family seeking to avoid a transaction must satisfy the following conditions.

 The person seeking to set aside the transaction was the proper person to represent the family
in a suit relating to family land;
⦁ That the members of the family were wholly ignorant of the transaction;
⦁ That the family had not by any conduct subsequent to the date mentioned acquiesced in the
transaction;
⦁ That the family had acted timeously and with due diligence, and
⦁ The defendant could on a declaration by the court avoiding the transaction be put in the
same situation that he stood before the transaction.

Rule 3

Abaka v. Ambradu

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

Banahene v. Adinkra

The HOF can also be deposed by the principal members of the family at a family meeting. All
principal members must be invited to such a meeting but the decision of the majority is binding
on the family.

Abaka v. Ambradu

The head of family must be served with the notice to attend the meeting (but purpose of the
meeting should not be stated in the notice), and where the head fails to attend without good
reason, the meeting may proceed and he could be removed absentia.
The HOF must be given notice and the opportunity to be heard.

(Quartey v Quartey) Give notice to the head of family and opportunity to be heard.

QUESTION 6

Area of law

Acquisition of the usufructuary Interest

Alienation of land to a non-citizen

Nature and incidents of the usufructuary interest

Legal issues

Whether or not the sub-paramount stool of Barekese could grant the land of Pastor Chris to
Oyibo lawfully?

Whether or not Oyibo could lawfully encroach on the abandoned lands outlying to the area he
was granted?

Whether or not there is any legislative intervention which influences the nature and incidents of
the usufruct?
Applicable rules

RULE 1

Usufruct is the right to use and benefit from a property while the ownership belongs to another.

Section 5(1)(a)(b) the usufruct is an interest in land which is acquired in the exercise of an
inherent right by a subject or a member of the allodial holder through the development of an
unappropriated portion of the land stool, skin or family by virtue of an express grant . It can also
be acquired by a non-indigen or a group of non-indigen who has settled on the land of not less
than 50 years with the approval of the allodial holder.

Section 5(1)(c) usufructuary interest is alienable and inheritable and potentially perpetual.

Section 50(19) Conveyance of a usufructuary interest shall not specify any duration but the
holder is subject to the customs and traditions of the area where the land is located.

Awuah v Adututu

The usufructuary title is a specie of ownership co-existent and simultaneous with the stool’s
absolute ownership.

Usufructuary title could only be determined on an express abandonment or failure of his heirs.

The allodial holder cannot divest the usufructuary of his title by alienating it to another without
the consent and concurrence of the usufructuary.

Oblee v Armah

A land in possession of a subject cannot be granted to another subject without the consent of the
usufruct holder in this instance the plaintiff.

Adjei v Grumah

Subject of the stool acquires a determinable or usufructuary title in the stool land he occupies and
has reduced into possession. This creates an encumbrance or burden on the absolute title of the
stool and vests the subject in occupation with a possessory title that prevails even against the
stool itself.

Brown v Quarshigah - Possession proves title

Wuta-Ofei v Danquah [1961] GLR 487

Possession by itself gives a good title to land against the wholeworld except someone having a
better legal right to possession.

RULE 2

A non-indigen/stranger can acquire the usufruct by means of an express grant.

Awuah v Adututu

Frimpong v Poku

Only the allodial owner can alienate an abandoned land.

RULE 3

Section 10(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.

Article 266(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.

Article 267(5) which states that “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” does not affect the usufructuary interest. (does not
affect usufructuary interest

Section 9(2) (3)

Article 266(3) 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 more than 50 years at any one time.
The leasehold interest shall be at a peppercorn rent

Section 5(1(b)
Third Tutorial Questions

Question 1: Discuss the utility of the decision in Kwan v. Nyeini [1959] GLR 67 in relation
to the capacity of a person to bring an action in court to recover family property under
Ghanaian customary land law.
Solution
The general principle is that it is the head of family (HOF) who is the proper person to institute a
legal action in respect of family land. He is also the proper person to be sued in respect of family
litigation. Also seen in Order 4 Rule 9 of the Rules of Civil Procedure - It is only the family head
or in his absence, the regent/caretaker, who has the right to institute actions on behalf of the
family for recovery of family land.

Brief
The family members purported to remove Osei Kojo as family head on grounds that he was
squandering family property. It was held at an arbitration that his removal was not in order, but
the family went ahead to appoint the plaintiff as a head. Osei Kojo subsequently mortgaged
cocoa farms which were family property to the defendant. The plaintiff purporting to act as family
head brought an action to the effect that the farms were family property & the mortgage was
without the knowledge & consent of the family.
Holding
The courts held that the award of the arbitrators was binding on the family & Osei Kojo was still
family head. They also held that the farms were family property mortgaged without the consent
of the family. They however gave judgment for the defendant for the recovery of the sum for
which the farms were mortgaged to him, payable by the family’s caretaker. The defendant, in
default of payment, sold the farms & the plaintiff sued for a declaration that the farms were still
family property & an order to set aside the sale. His action was dismissed mainly on grounds
that he was not the family head nor authorised by the family to sue. The plaintiff appealed.

Exceptions

a. Where family property is in danger of being lost to the family, and it is shown that the
head, either out of personal interest or otherwise, will not make a move to save or
preserve it.
b. Where, owing to a division in the family, the head and some of the principal members
will not take any steps.
c. Where the head and the principal members are deliberately disposing of the family
property in their personal interest, to the detriment of the family as a whole.

Then another person can sue.

Who is another person?

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. •

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 capacity to sue in a re

Sarbah v. Worbi
Hausa v. Hausa
Otema v. Asante

Re Ashaley Botwe Lands [2003 – 2004] SCGLR 420

“The general rule recognized in Kwan v. Nyieni, namely, that the head of family was the proper
person to sue and be sued in respect of family property was not inflexible. There are situations
or special circumstances or exceptions in which ordinary members of the family could in their
own right sue to protect the family property, without having to prove that there was a head of
family who was refusing to take action to preserve family property. The special or exceptional
circumstances include situations where:
(a) a member of the family had been authorized by members of the family to sue; or
(b) upon proof of necessity to sue.”

2. With the aid of decided cases, discuss three (3) modes of acquisition of family
property in addition to the mode of acquisition stated by Ollennu in Ohemin v. Adjei.

Ollennu described a family as consisting of an entire lineage of a common ancestor both for
the purpose of property ownership and for social life or social nurturing. A family may have
allodial, usufructuary or leasehold interest in a land depending on the mode of acquisition.
According Ohimen v Adjei

Discovery Gift Purchase Conquest

1. The general rule is that property acquired with family resources, e.g. income from
existing family property (or where family property is sold and proceeds used to acquire
other property) such property is family property.
2. Self-acquired property of member dying intestate becomes family property.

In re Atta (Decd)
Hausa v. Hausa

3. Improvements on family land become family property. The family member only has a life
interest in such properties.

Owoo v. Owoo (1945) 11 WACA 81

Ansah v. Sackey (1958) 3 WALR 325
Amissah-Abadoo v. Abadoo
Biney v. Biney
Contra – Santeng v. Darkwa

4. Where two or more members of a family put their resources together to acquire property,
that property becomes family property.

Mensah v. SCOA
Tsetsewah v. Acquah (1941) 7 WACA 216
 5. Property acquired with family assistance becomes family property. The assistance of the
family must however be substantial.

Larbi v. Cato [1959] GLR 35

The deceased built the disputed house on a self-acquired land. After his death, the
plaintiff, a brother of the deceased, 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.

3. Agyeman is a subject of the Madina Stool. In January 20, the Chief of Madina, Nii
Ankama together with his linguist granted a plot of land located near the UPSA forest to
Agyeman. A document was subsequently executed by the Chief as evidence of the
indefeasible title to the land in favour of Agyeman. Agyeman moved onto the land and
discovered that there were mango, orange and odum trees already on the land. It turned
out to be that the land was previously farmed upon by Afriyie, another subject of the
Madina Stool (now deceased), and indeed Afriyie planted the mango and orange trees.
Following the grant to Agyeman, he sold the odum tress to Kobby Timber Limited, a
Tema based Timber Company. Nii Ankama has heard of what Agyeman has done, and he
is enraged. He has therefore come to your law office to consult you. With the aid of
relevant case law, statutes, and constitutional provisions, advise the parties.

Area of Law: Usufructuary Interest (Express grant)

Issues:

1. Whether or not the grant to Agyemang was valid?

2. Whether or not Agyemang has the right to sell the economic trees existing on the land?
3. Whether or not Nii can maintain an action against Agyemang? (remedies)

Relevant Rules
First Issue:

A subject or a member of the stool which holds the allodial title can also acquire a usufructuary
interest in the land by an express grant.

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

Section 5(1)(a)

Section 5(1)(c) usufructuary interest is alienable and inheritable.

Awuah v Adututu
The usufructuary title is a specie of ownership co-existent and simultaneous with the stool’s
absolute ownership.

Usufructuary title could only be determined on an express abandonment or failure of his heirs.

The allodial holder cannot divest the usufructuary of his title by alienating it to another without
the consent and concurrence of the usufructuary.

Oblee v Armah

A land in possession of a subject cannot be granted to another subject without the consent of the
usufruct holder in this instance the plaintiff.

Ohimen v Adjei

The court per Ollenu j held that a subject who able to gain possession of a portion of the stool
land through his own industry is a holder of the usufruct and the defendant could not grant the
land to other without the consent of the usufructuary holder. The subject usufruct could maintain
an action of title to the land against the stool.

Kotey v. Asere Stool

Per Lord Denning, on the death the subject, the usufructuary interest 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 so.

Amartei v Hammond, that despite the general principle that land in possession of a subject
cannot be alienated without his consent, an alienation of a land for developmental projects may
be done without the consent of the subject.

Second Issue:

1. Section 20(b) of Act 1036

2. Section 5 of Act 1036
3. Section 8
4. Section 9(1)
 5. Incidence of Usufructuary right -, Ohimen v Adjei, Adjei v Grumah the holder of allodial
title may not grant an interest in the same land to another. The holder of the usufructuary
interest may sue for declaration of title or trespass.

Attah v Esson

landlord is not entitled to the fruits of economic trees planted by the tenant but the customary
law giving the landlord the right to economic trees already on the land still applies.

Mansu v Abboye

The allodial owner, without the permission of the usufructuary owner, has no right to the
economic trees on any land which is in the possession and control of the usufructuary owner,
whether those economic trees were cultivated or grew on the said land without “the intervention
of human labour.

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
1st Tutorial Questions

Question 1

1. “Ownership is a concept which embraces two ideas namely; Possession and Title”. With
the aid of decided cases discuss the accuracy of this statement.

Ownership is a concept that embraces possession and title.

An owner is someone who can show that there is no other adverse claim to his title

Possession - possession could mean physical occupation of land or the right to possess.

Corpus possessionis - physical occupation

Animus possidendi - intention to exercise exclusive possession of the land, preventing others
from owning it.

Brown v Quashigah,

Twifo Oil Plantation v Ayisi

A person in possession has 9/10th of the law in his favour whilst the outstanding 1/10 is for
anyone who seeks to claim that he has a better title.
Akyea-Djamson v Duagbor

Types of possession
Actual possession - also known as possession in fact. It is where a person physically exercises
control over something. In land law, it refers to a situation of a person physically being on the
land and exercising control.

Constructive possession - aka Possession in law. The person does not have physical control
over the land, but is deemed to be exercising control. The person exerts control of the land
without actually occupying it.

In Akoto v Gyamfi-Addo & Anor it was held that in land law, “possession” was used not in the
popular sense of physical occupation of the land, but it included receipts of rents and profits or
the right to receive the same.

Section 48 of Evidence Act, 1975 (Act 323)

 a. The things which a person possesses are presumed to be owned by him
b. A person who exercises acts of ownership over a property is presumed to be the owner
of that property.

Aidoo v Adjei -

Wutah - Ofei v Danquah - That any evidence of possession, however exiguous, can be
considered as proof of ownership.

Squatter - Possession must be based on an interest that is known in law. If it isn’t known in law,
then the person would be in unlawful possession (squatter).

Awuku v Tetteh

Title
It is the means by which a person establishes his right to land. It may be established through
one document or a series of documents.
1. Documentation - Section 64
(1) Good title is derived from
(a) an enactment;
(b) a grant, vesting order or conveyance from the State;
(c) a final judgment of a court of competent jurisdiction; or
(d) a grant, an acquisition under customary law, conveyance, assignment or mortgage
which is at least thirty years old and establishes that a person is entitled to convey an
interest in the land.

Kwofie v Kakraba - Building permits and plans but necessarily confer title on their
owners but they are strong acts of ownership
2. Undisturbed Possession

Majolagbe v Larbi - That proof of mere possession of land is sufficient to maintain

trespass against anyone who cannot show a better title.

3. A combination of documentation and possession

4. Oral grant - The person may rely on oral tradition to show that the land belongs to him.
Usually applies to stool and family lands
Adjeibi-Kojo v Bonsie

5. The doctrine of no ownerless lands in Ghana was pronounced by Ollennu as follows:

“the first principle of our customary law is that there is no land in Ghana without an
owner. Every inch of land in Ghana is vested in somebody”. Explain why Justice
Kludze’s critique of the concept of ownerless land is justified in modern times.
 According to Ollennu in his book principles of Customary land law in Ghana, the first
basic principles of custmary law is that there is no land in Ghana without an owner.
Every inch of land in Ghana is vested in somebody.
This doctrine has been very pervasive in the writings of jurists like John Mensah Sarbah
(Fante Customary laws), Bentsi-Enchill (Ghana Land Law), Woodman’s Article on The
Allodial title to land.
Judicial allusion to the doctrine
Wiapa v Solomon

Ababio v Kanga

Ofori Atta v Ata Fua

Ohimen v Adjei

Implication of the doctrine

It serves practical purpose of preventing lawlessness in the acquisition of land and

ensures order in land document. (According to J. Aryeh)

Arguments of kludze in his article the ownerless lands in Ghana

Kludze contends that the doctrine appeared to have been originated as political rguments
against colonial governments without adequate legal research. Refernce can be made to
public land bills 1894 and 1897

He further states that the supposed judicial pronouncement on the doctrine were obiter
dictum.
He criticises all the early jurists on the doctrine for making sweeping statements about its
existence without any convincing research.

3. Ollennu asserts that the individual can never acquire the allodial interest, following the
decision in Amodu Tijani v. Secretary, Government of Southern Nigeria (per
Rayner C. J.) which held that: “The next fact which is important to bear in mind in
order to understand the native land law is that the notion of individual ownership [of
land] is quite foreign to native ideas. Land belongs to the community, the village or the
family, never to the individual. …” Do you agree with Ollennu and the decision in
Amodu Tijani v. Secretary, Government of Southern Nigeria (per Rayner C. J)
 Allodial title - an interest held of no-one, an absolute or original heritage.
Ollenu - Individual cannot hold allodial title. Based on the premise that land belongs to the
community, the village or the family, never to the individual.
Amodu Tijani - The next fact which is important to bear in mind in order to understand the
native land law is that the notion of individual ownership [of land] is quite foreign to
native ideas. Land belongs to the community, the village or the family, never to the
individual

Modes of acquisition under Ohimen v Adjei

Discovery - Ngmati v. Adetsia
Conquest - Owusu v Mantse of Labadi
Purchase - Aidoo v Adjei and others, Golightly v Ashirifi
Gift -
Other modes of Contiguity - Wiapa v Solomon

Aidoo v Adjei - The individual acquired the allodial title that the then chief of the area
sold to UAC.
Nyasemhwe and others v Afibiyesa, Djama v Amargyei, Adjei v Grumah - individual holding
allodial title
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;

4. The decision in Ohimen v Adjei in regards to acquisition of the allodial title is now
constitutionally untenable. Do you agree with the above statement?
Allodial title - an interest held of no-one, an absolute or original heritage.
Modes of acquisition under Ohimen v Adjei
Discovery - Ngmati v. Adetsia
Conquest - Owusu v Mantse of Labadi
Article 20 - Compulsory acquisition
Section 233

Articles 257,

Article 267,
Memuna Moudy v Antwi

Omaboe III v AG and lands commission

Danquah suggested two further modes of acquisition, namely foreclosure after a pledge
or mortgage, and reacquisition of title by reversion from a grantee.
 Purchase - Aidoo v Adjei and others, Golightly v Ashirifi

5. Even though the Allodial Title is the most paramount interest in land in Ghana today, one
may lose it through abandonment, forfeiture or failure of succession. Illustrate with
decided cases.

1. Abandonment
a. If you abandon it for 10 years - Attah v Lagos
b. if it is abandoned for a considerable fallow period (it’s not time specific) - Kokomlemle
consolidated land case
c. Action indicative of intention to surrender rights - Modern thinking - Mensah v Asamoah

2. Acquiescence

Ago Sai and Others v. Kpobi Tettey Tsuru III[35], Atuguba JSC speaking for the apex Court
held: “Even if Ogbojo land were La Stool land the La stool having acquiesced in the acts of
ownership by the appellant and his predecessors would not only be estopped at common law by
the facts of this case from claiming allodial title to the land but would, as pleaded by the co-
defendants/respondents/appellants lose that title to the appellant by reason of section 10 (1)
and the incidental 10 (6) of the Limitation Decree 1972 (N.R.C.D. 54)

Nartey v Mechanical Lloyd

Frafraha is a village forming part of the rural lands of La acquired by the La stool. This village
was settled in by the Agbawe quarter. The plaintiff was alienated a piece of land by the Agbawe
quarter for farming for which they registered. The La Stool land also alienated a piece of land
which engulfed the plaintiff’s to the defendant company. The document on this one was not
registered. The defendant also went to the Frafraha and Agbawe quarter on realizing they are
the right persons to give out lands in that area for which they registered this deed. The plaintiff
later sued for recovery of possession of the land.
HELD: The court held that the Frafraha lands were stool lands and that it was the La Mantse
who is the proper authority to alienate or grant portions of La stool lands.

3. Compulsory acquisition
Omaboe II v AG

4. Sale or Gift
Golightly v Ashirifi

Awuah v Adututu
The plaintiff obtained a grant for a forest land in the Bono-Ahafo Region for a consideration of
£110. [12] However, there are exceptions to this form of acquisition pertaining to foreigners.
Thus, persons who are not subjects of the stool. It was held in Awuah v Adututu that, one who is
not a subject to the stool which holds the allodial title is limited to the parcel of land that is
apportioned to him and may not go beyond its borders as opposed to a native grantee.
Every land belongs to a stool. Various areas in the Ewe land that are ownerless because some
of the lands were between Ownership - The ultimate and exclusive right conferred by a lawful
claim or title, and subject to certain restrictions to enjoy, occupy, possess, rent, sell, use, give
away, or even destroy an item of property.