A: Introduction
I
am excited to announce the release of my latest book called “Land Law:
Principles, Conveyancing & Litigation.
When
this piece was ready for publication, it had everything in place except a
title. I just could not think of any appropriate words to introduce the book
other than its title. So, I asked our office manager: “Ma’am, what do you think
should be the title for this article?” Without pausing for a second, she
replied: “Another banger!” We both fell into fits of giggles. I asked her how
my “baby boomer” readers were going to understand the phrase and it became clear
to me that, that conundrum was for me and my so-called “baby boomer” friends to
figure out. So, here we go:
Another
banger! Land Law: Principles, Conveyancing & Litigation – The latest book
on land law in Ghana
This book is unlike any book on
land law in Ghana. It is the first book that deals with all the three salient
areas of land law. The three areas covered in the book are the general
principles of land law, the rules of conveyancing and land litigation.
The
single most unique feature of this book is its tripartite advantage. Unlike
most books on the subject of land law, it deals with all three major aspects of
the subject. These are the general principles of land law, the art and craft of
conveyancing and the rules and procedure for conducting land litigation. There
is no gainsaying that the mettle of an astute practitioner of land law is not
measured by their prowess in any one of the three aspects of land law. It is
measured by their consummate knowledge of all those aspects of land law. This
is what this book seeks to achieve.
B: Background to the Book
Land
issues and laws have enjoyed the attention of text writers, and even more
attention in the courts, since colonial times. The Bond of 1844, signed between
the British Government and some chiefs of the Gold Coast had the issue of land
ownership at its core. The Gold Coast Aborigines Rights Protection Society
(ARPS) was formed mainly to protect the traditional land tenure and rights
of indigenous people from British colonial usurpation.
John
Mensah Sarbah, arguably the foremost legal scholar in customary law, dedicated
his enduring treatise, FANTI CUSTOMARY
LAWS (1896), to land matters and decided cases on property and succession.
At the beginning of the 20th Century, the momentum picked up with J.
E. Casely Hayford’s GOLD COAST NATIVE
INSTITUTIONS (1903), J. B. Danquah, AKAN
LAWS AND CUSTOMS (1928) and R. S. Rattray’s ASHANTI LAW & CONSTITUTION (1929).
The
courts have played a huge role in shaping the land laws of Ghana. In Sarbah’s FANTI LAW REPORT, we encounter the likes
of Marshall, J. and Hutchinson, CJ, among several other colonial judges who sat
on land cases involving the application of local customs and rules from about
1878. One cannot forget the role the Privy Council of England played as the
final court of appeal in pre-independence times. Many stalwarts of British
justice played their part, including Lord Reid and Lord Denning. Among the
enduring decisions of the Privy Council are
Kwamin v Kufuor [1914] '74-'28, 28, PC and Adjeibi-Kojo v Bonsie [1957] 3 WALR 257, PC.
The
moment for writing picked up steam in the post-independence era with celebrated
writers such as Ollennu, Bentsi-Enchill, Asante, Woodman, Kludze and others
contributing to the literature on land law in Ghana. Afterwards, other books on
the subject have been written by Da Rocha & Lodoh, Josiah-Aryeh, Adjei,
Mbowura & Waana-ang, Yaw Oppong, Osei-Tutu and Anokye Gyimah.
With
the emergence of the new nation of Ghana, thoroughly-bred Ghanaian Justices
assumed the helm of affairs. Talk of the Honourable Justices Sir K. A. Korsah,
Adumua-Bossman, van Lare, Ollennu, Crabbe, R. S. Blay and Akufo-Addo, among
others. From the 1960s to date, a veritable number of distinguished Justices of
the Supreme Court have worked hard to straighten the rough edges of land law.
The roll is too long to call here but a few of the Justices may be mentioned:
The Honourable Justices Apaloo, Taylor, Archer, Amua-Sekyi, Francois, Abban,
Wiredu, Joyce Bamford-Addo, Acquah and Georgina Wood. The list is simply
inexhaustible.
My
effort in writing this book has been inspired by the great work done by our
forebears. Mine has been an effort to simplify the principles, rules, processes
and procedure. I am grateful for the fact that I was introduced to land law by
Prof. A. K. P. Kludze. His class on “Law of Immovable Property” at the then
Faculty of Law of University of Ghana was simply superb. He knew his stuff and
was a master at the game of teaching. He broke the principles down enough to be
understood, nay enjoyed, by our young minds. His unforgettable baritone voice
boomed with ex tempore recitation of
names of cases such as Lokko v Konklofi,
Golightly v Ashirifi and many others.
At the Ghana School of Law, I encountered C. H. K. Lodoh. He taught our class
“Land Law & Conveyancing.” Since the first edition of his co-authored book
with B. J. da Rocha was available, it made the learning experience less burdensome.
When I
joined lawyers L. S. N. Akuetteh, Esq and David Kudoadzi, Esq in private
practice, it was a great opportunity for me to polish my skill in the art and
nuances of land litigation. I am grateful for the opportunity to learn from and
under the best. I am also in the eternal debt of judges of the various courts
before whom I have practiced since 1998. It is what I have learned on the
subject of land law that I have put together to share with others who might
find it useful.
C: Structure of the book
In
order to cover the entire subject of land law across the three aspects of
general principles, conveyancing and litigation, the book is divided into three
(3) main sections, covering 1157 pages. The first section – Section A – titled
“GENERAL OVERVIEW OF LAND LAW” deals with the general principles of land law as
known under the laws of Ghana. The principles are drawn from the sources of
law, namely; the Constitution, 1992, the laws passed by Parliament and their
enabling regulations (including the Land Act, 2020 (Act 1036)), the rules of
common law, the doctrines of equity, the principles of customary law and the
decisions of the Superior Courts of Judicature (that is, the Supreme Court,
Court of Appeal and High Court).
Chapter
1 serves as the gateway to Section A, and the entire book. It gives a general
introductory overview of land law and some of the principles underpinning this
area of law. The chapter opens with a discussion of the concept of property and
how property is classified under both English law and Ghanaian law. Next, the
reader is introduced to the sources of land law. These include the
Constitution, 1992, statutory laws such as the Land Act of 2020, customary law
and the received English laws on property. The ‘received English law’ refers to
the rules of law generally known as the ‘common law’ and the rules generally
known as the ‘doctrines of equity.’
The
received English law also refers to English statutes of general application
that are applicable in Ghana such as the Partitions Act of 1539 & 1540,
Cestui que vie Act of 1540, Prescription Act of 1832, Real Property Act of
1845, Trustee Act of 1860 and so forth. Who would have thought that in its 4th
Republic and almost 70 years after independence from British colonialists,
Ghana would still labour under the weight of these obsolescent laws that, most
likely, have been revoked in their land of birth? Well, section 119 of the
Courts Act of 1993 (Act 459) made it so and these laws still rule us from their
graves in Westminster Abbey. Chapter 1 closes with a look at some general
principles of land law in Ghana’s peculiar
context. These include the notion that there are no ownerless land in Ghana;
the principle of quicquid plantatur solo
solo cedit (Latin, meaning “whatever is affixed to the soil belongs to the
soil”) is unknown to customary land law; and the principle that women have a
right to own land.
Chapter
2 is dedicated to the various interests in land that are recognised under
Ghana’s land laws. These are discussed under the distinct types of interests in
land, namely; Allodial title, customary law freehold, common law freehold, usufructuary
interest, leasehold interest and customary tenancy. The modes of acquisition,
incidents and other features of the various interests in land are also
discussed.
Chapter
3 focuses on land ownership by stools/skins and clans. Stool land is defined as
land or interest in or right over land controlled by a stool, skin or the head
of the particular community, for the benefit of the subjects of that stool,
skin or members of that community. After the introductory aspects of the topic,
the discussion shifts to the origin of stool land. It then touches on the vexed
issue of accountability: Can a chief or tendana be sued to account for stool
lands?
The
old school of thought – as propounded in Abude
v Onano [1946] 12 WACA 102 - was that a chief was not accountable to his
subjects for how he dealt with stool property. That position appeared to have
shifted in the light of the Head of Family (Accountability) Act, 1985 (PNDCL
114) and, especially, after the Supreme Court’s decision in Owusu & Others v Adjei & Others
[1991] 2 GLR 493, SC. But not much changed in practice. The current position is
that section 13 (5) of the Land Act, 2020 (Act 1036) makes the Head of Family
(Accountability) law (PNDCL 114) applicable to stool/skin occupants and clan
heads as it applies to family heads.
The
chapter also discusses the ‘persons’ who are competent to grant stool/skin
lands. Furthermore, it delves into the concept of stool property under the
Chieftaincy Act of 2008 (Act 759) and
the Government’s oversight role regarding sale of stool lands through the Office
of the Administrator of Stool Lands. Stool lands are vested in stools. Thus, no
discussions on stool lands will be complete without touching on the legal effect
of the Land Act in the context of articles 257, 258 and 267 (1) of the Constitution,
1992 and the Supreme Court’s decisions in Kan
II & Others v Attorney-General & Others [2014-2015] 1 SCGLR 691, Omaboe III & Others v Attorney-General
& Lands Commission [2005-2006] SCGLR 579 and Kpobi Tettey Tsuru III v Attorney-General [2010] SCGLR 904, among
others.
Chapter
4 is on family land. It defines the family and discusses the forms of family
known under Ghanaian customary law; matrilineal, patrilineal and mixed-system
families. The thrust of the chapter is the system of succession and inheritance
under the different family systems. We take a look at succession under the Wills
Act, intestate succession law and customary law. There are certain persons who
may be deemed to be members of a family, though not by blood. Such persons
include slaves, adoption children and persons of unknown paternity. Succession
and inheritance regarding such persons are matters of importance and have been
accordingly discussed at length.
The
qualification and role of the head of family is given pride of place in the
chapter. So is the authority to sue or be sued on behalf of a family. The
decisions in Kwan v Nyieni [1959]
GLR 67, CA and In re
Ashalley Botwe Lands; Adjetey Agbosu & Others v Kotey & Others [2003-2004]
1 SCGLR 420 are discussed in the light of Order 4 rule 9 of the High Court
(Civil Procedure) Rules, 2004 (C.I. 47) and Ofoe, JA’s opinion in
Nkoom v Sowatey [2013-2015] 2 GLR 887, CA, as well as
Asiedu, JSC’s dissenting opinion in Michael Odai Lomotey & Another v
Kwow Richardson & Others Civil Motion No. J7/21/2022
ruling dated 17th January 2024, SC.
Chapter
5 is on customary land management. It focuses on how Stool/Skin and Family lands
are managed by the respective customary land secretariats. Conditions
for suing a fiduciary (such as a paramount chief, sub-chief, tendana or head of family) to account is
also discussed. A lot of emphasis is placed on the Customary Land Secretariats
and their functions, the functions of District Lands Officers and District
Stool Lands Officers, the structure and staffing as well as the powers the
secretariat exercise, among other things.
Chapter
6 is on public and vested lands. These are lands that are under the control of the State.
The
Land Act gives authority to the State to acquire land for the public interest.
The “State” in this context refers to the Government of the Republic of Ghana.
The State can compulsorily acquire property for the public interest. But
where land is compulsorily acquired, the Government must pay adequate
compensation to the owner. The State can also buy land or receive land as gifts
from other persons. These matters form the gist of the chapter’s discussion.
There
are many different ways by which land may be given by one person to another.
The modes of alienating land include sale, gift, trusts, wills and other forms such
as advancement and presumption of joint ownership by spouses. Chapter 7 deals
with the principles that guide the selling of land and how to give one’s land
or interest in land to another by way of a gift.
Chapter
8 continues with the modes of alienating land. The chapter focuses on trusts,
wills, advancement and joint property of spouses. Chapter 9 is dedicated to
secured transactions. These are transactions by which the owner of property
uses his or her interest in the property or the physical property itself as
security for a loan or other benefit or service. These transactions are
mortgages, pledges and liens. They may arise under common law or customary law
and their incidents are discussed at length in the chapter.
Chapter
10 is on co-ownership of property. Co-ownership
arises in situations where two or more persons own property together. The
two main types of co-ownership are joint tenancy and tenancy in common and
these are discussed in the chapter. The customary law principles on co-owned
property are also discussed.
Chapter
11 is focused on a totally different set of rights and interests in land. Here,
we discuss rights that may be enjoyed over other people’s land or interest in
land, but that do not vest any proprietary rights in the person enjoying such
rights. Such rights discussed in the chapter are easements, restrictive
covenants and profits á prendre.
Chapter
12 continues with the discussion on rights that may be enjoyed over other
people’s land or interest in land, without conferring ownership of the land on
the one enjoying the right. The rights discussed in this chapter are overriding
interests, licences and statutory wayleaves – including a discussion of the
Supreme Court’s recent decision in Republic
(No. 2) v High Court (Land Division), Accra; ex parte Lands Commission (Nungua
Stool & Others Interested Parties) [2017-2020] 1 SCGLR 891.
An
interest in the land may exist in possession,
in remainder or in reversion. Possession gives an immediate right to
control and enjoyment of the land. So far, the interests in land discussed –
whether in the land itself or as a right over another person’s land – have been
concerned mainly with interests in possession. An interest in land which is held in reversion or remainder is known as ‘future
interest.’ In Chapter 13, we discuss future interests. The discussion
will delve into the intricate concepts embodied in the rule against perpetuities
(“rap”), who to determine a “life in being,” what is meant by the “vesting
period” and the rules regarding class gifts. Of course, the famous case of Mensah & Others v Anim-Addo & Others
[1994-95] 1 GBR 350, SC will be discussed in all its glory. Chapter 13
brings us to the end of the first section of the book on the principles of land
law – Section A. Section B beckons.
The
second section of the book– Section B – is under the broad rubric of “BUYING PROPERTY IN GHANA: THE PROSPECTS,
POTENTIAL PROBLEMS & PROCESSES TO FOLLOW.” This section is the
conveyancer’s sanctuary. It covers chapters 14, 15 and 16. Chapter 14 deals
with the procedure for buying land. This is one of the most important chapters
in the book. Looking at the sheer number of land cases in the courts since case
reporting took a formal turn in Sarbah’s days with his Fanti Law Reports from
1896, it is clear that caution alone is not enough. It appears most people who
engage in land transactions do so on the same basis as they undertake business
regarding any other subject matter. It is trite knowledge that the land market
in Ghana is a well-laid minefield and only a foolhardy investor would buy
property with the alacrity of a yam seller at Agbogbloshie market.
Yet, many remain ignorant of the intricacies of land
transactions. The chapter opens with an overview of Ghana’s property market. It
gives a list of some potential problems people face when buying property and
proffers some insights into how to avoid such problems. The main thrust of the
chapter is the discussion of the steps in the conveyancing process; the
pre-contract stage, the contract stage and the conveyancing stage depending on
whether the subject land is registered or unregistered.
The chapter also discusses the various modes of land
sale such as auction sales. In the event of any breach of a contract for sale
of land, the affected party may have remedies both at law and in equity. Thus,
a party’s remedies in the event of breach of contract are mentioned. Still on
contracts of sale, the chapter touches on the principles of interpretation of
contracts and deeds.
The concept of ‘possession’ under land law is a key
ingredient of ownership. Possession is said to constitute nine-tenths of the
law and a person in possession has a good title against the whole world except
one with a better title. It is for this
reason that it is important for a person who buys land to go into possession.
The concept of possession and the acts that show that a person is in possession
of property are discussed in this chapter. The chapter closes with information
on taxes chargeable on land transactions.
Chapter 15 is on how to draft land documents. On its
face, the drafting of land documents seems like a regular enterprise. But it is
one of the tasks in a land transaction that requires utmost attention to detail
and reflection. As would be discovered, an omission to include a renewal clause
in a lease agreement can prove fatal; see: In
re Mireku & Tetteh (Dec’d); Mireku & Others v Tetteh & Others [2011]
1 SCGLR 520 (but which has graciously been reversed by statutory intervention
through section 50 (11) of the Land Act, 2020 (Act 1036)). Also, failure to
adhere to common law rules such as the rule against perpetuities (in spite of
their antiquity) can lead to unintended consequences of monstrous legal
proportions. The case of Mensah &
Others v Anim-Addo & Others [1994-95] 1 GBR 350, SC (popularly known as
the “Anim-Addo Case”) readily comes to mind.
The chapter opens with a discourse on the general
rules of drafting a land document or conveyance such as a lease, sublease and
assignment. Then it swings into explaining all the various parts of a
conveyance and how each is drafted. The parts of a conveyance that are
discussed and drafted include the commencement, the date, the parties’ names
and addresses and the recitals. After these come the ‘operative part’ of the
conveyance. It consists of the consideration and receipt clause, the
vendor’s covenants, the purchaser’s covenants, the words of conveyance, the
parcel, the habendum, the testimonium and the attestation clause. The chapter
closes with a discussion of the new electronic conveyancing regime introduced
by the Land Act of 2020.
Chapter 16 is dedicated to stamping and registration
of land documents after they have been prepared and executed by the parties. By law, a land document or conveyance or instrument must be
stamped within two (2) months after it is made and executed. Failure to stamp a
land document within 2 months attracts a penalty. Payment of stamp duty by stamping
is a pre-requisite for registration. A
land document that is required by law to be stamped will not be accepted for
registration if it is not stamped. The procedure for registering a deed or land
title is discussed at length in this chapter; from procuring the registration
forms to collection of the registered deed or land title certificate, and all
other processes in between.
The need to obtain consent and concurrence in
certain situations, such as where Stool or Government land is concerned, is
explained. The discussion also touches on the equitable doctrines of fraud and
notice regarding land transactions. There are situations where certain persons
convey property in transactions involving infants/children. The rules on
registration of such property are explained at length.
The third and final section of the book – Section C –
is on the broad topic: ACTION TO RECOVER LAND OR REAL ESTATE (COURT CASE). If
Section B is the conveyancer’s sanctuary, Section C is the litigator’s
fortress. The section opens with Chapter 17 on the pre-requisites a potential
plaintiff must consider before rushing to file a land case in court. Those
preliminary matters include capacity and authority to sue, the proper person to
sue or be sued on behalf of a family or stool/skin, proof of acquisition by
stool or family, the venue to file the case, conflict of laws issues, service
of notice of writ out of the jurisdiction, how to plead customary law, possession
as a key factor in title declaration cases and the nemo dat quod non habet principle.
Chapter
18 comes in handy when the potential plaintiff throws down the gauntlet and
jumps into the litigation ring.
This
chapter discusses the various reliefs that are available to the parties in land
litigation, both at common law and in equity. The common law remedies include
declaration of title, recovery of possession, damages for trespass and mesne
profit. The equitable reliefs available to a party include orders of specific performance,
injunction, rescission, rectification, accounts, appointment of receiver and
delivery of and cancellation of documents.
Chapter
19 focuses on the possible defences a defendant can put up against a
plaintiff’s claims. These include the defence of bona fide or innocent purchaser for value of a legal estate without
notice, estoppel, limitation of action/statute of limitation, compulsory
acquisition of land, third party rights, statutory wayleaves, the doctrine of
part performance and the lesser known defence of jus tertii. In case the defendant alleges any claims against the
plaintiff, the defendant can stake those claims by way of counterclaim in the
statement of defence. Counterclaims are also discussed in this chapter.
Chapter
20 is the penultimate chapter and it deals with all matters concerning the
filing of the case (pleadings) and the procedure for conducting trial (proof).
Section B closes with Chapter 21 on judgments and how they are enforced through
the courts’ execution processes.
C: Introduction for the
Student Reader – Undergraduate
Truth be told, Law of
Immovable Property is far from been described as a fancy subject. The reasons
may be not be far-fetched. The principles involved are mostly old common law
rules, some of which have been abandoned even in their land of birth. Some of
the rules and principles smack of antiquity and unbending conservatism. Talk of
donatio mortis causa. Talk of the
rule against perpetuities! For instance, one need not be a sophist to say that
making the English Prescription Act of 1832 applicable in Ghana is not the fanciest thing to do
to excite a young undergraduate law student. The rules of customary land law
also present their own set of challenges. Customary law principles change with
the times.
The land cases that are
decided by the courts do not always present one view of the law. Uncertainty
does occur sometimes. Indeed, one judge may come to different conclusions in
two cases with similar facts. That was the situation that led the much revered
Akufo-Addo, JSC (as he then was) to lament (the stance Ollennu, JSC, the
equally respected legal luminary had taken) in his masterful dissenting opinion
in Krabah v Krakue [1963] 2 GLR 122 at 143, SC as follows:
“It does seem to me somewhat ironical
that the merits of a judgment should be defended against a sustained onslaught
on it by its own author, but I suppose in the various fields of human endeavour,
including presumably the field of judicial administration, the category of
ironies is never closed.”
It is not all bad news, by the
way. The Law of Immovable Property is one of the most indispensable subjects in
the study of law. It is the one subject (and criminal law) that the law student
must start learning from the undergraduate level to the professional law course
level. The
first section of this book (Section A) covers all the important aspects of the
Law of Immovable Property course that is studied at the undergraduate level of
the LL.B Degree programme at the various universities. This book is intended to
be used as a reference guide and study material for the Law of Immovable
Property course. It will also come in handy as a background study material for
the undergraduate course in Equity & Succession. The book is written in simple, easy-to-understand
language. Complex legal principles are broken down into simplified form. Where
necessary, tables and diagrams are included for ease of understanding and
assimilation.
On some of the subjects
discussed, comments have been added to stimulate discussion of the rules and
decided cases. This book is intended to be your companion for life. It will be
useful for your studies as a student and as your go-to guide for legal principles
and case law when you enter the legal profession.
D: Introduction for the
Student Reader – Professional Law Course
The
subject known as Land Law & Conveyancing is one of the compulsory subjects
all students must pass at the professional law course level leading to the call
to the Bar. The course combines instruction in the general principles of land
law as well as conveyancing and drafting of land documents. Therefore, both
Sections A and B of this book must be every professional law student’s guide.
Section C will also prove useful for the Civil Procedure course as it gives
practical demonstration of the High Court Rules and how they come into play in
the courtroom. The book will be useful for studies in other subjects such as
Family Law and Law of Taxation.
There
cannot be a better way to announce one’s entry into the legal profession than
being a master in land litigation right out of law school. According to the
Judicial Service’s “Analysis of Civil Cases & Criminal Offences for
2022/2023 Legal Year” report, land cases continued to have a significant
caseload with 3,744 new cases filed. However, the resolution rate was
approximately 16.23%, indicating that a substantial number of cases were still
pending at the end of the year. This backlog was a result of complex land
tenure system and inefficient land administration regulators. Furthermore,
though land cases constituted the highest caseload in the High Court, it had
the lowest completion rate, according to the report. Fresh lawyers coming out
after being called to the Bar do not need to be part of this worrying trend.
This book should be the panacea.
E: Introduction for Other
Professionals
LAND LAW
will be a valuable asset for professionals who work with land and have to
handle land issues as part of their professional work. Such professionals
include architects, surveyors, planners, real estate practitioners and
auctioneers, among others. Teachers and students of tertiary courses such as
Architecture, Land Economy, Planning, Building Technology, Sociology and Geography
and Resource Development will find the book a prized possession. This book will
also be useful for land administrators and regulators.
It has been a labour of love but
worth every second of it.
I hope you will enjoy reading this
book as much as I did writing it.
Official release is on Monday, 15th September, 2025.
Available at all law bookshops from that date.
GRAB YOUR COPY!!!
