IMMOVABLE PROPERTY

22:08:14 (Week 2)
Reading materials
Kludze Ewe law of property
Ollennu & Woodman Ollennus principles of customary land law in Ghana
Woodman Customary land law in the Ghanaian courts
Josiah Ayeh Property law of Ghana

29:08:14 (Week 3)
CONCEPT OF LAND
What is property?
First sense is an item capable of ownership. Second sense is ownership itself. Eg. to own a
property in a book or land. So you can have a property (thing) but may not have ownership in
the property (thing).

Corporeal things are tangible items and incorporeal things are intangible items. So every
property can be corporeal or incorporeal and both may be inheritable. An item is capable of
passing through inheritance. So corporeal hereditaments are things that can be inherited and
incorporeal hereditaments are things that cannot be inherited. Read Blackstones definition of
corporeal and incorporeal hereditaments.

Blackstones definition
An incorporeal hereditament is a right issuing out of a thing corporate (whether real or
personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing
corporate itself, which may consist in lands, houses, jewels, or the like; but something
collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those
jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which
may be always seen, always handled: incorporeal hereditaments are but a sort of accidents,
which inhere in and are supported by that substance; and may belong, or not belong to it,
without any visible alteration therein. Their existence is merely in idea and abstracted
contemplation; though their effects and profits may be frequently objects of our bodily
senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be
careful not to confound together the profits produced, and the thing, or hereditament, which
produces them. An annuity, for instance, is an incorporeal hereditament: for though the
money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the
annuity itself, which produces that money, is a thing invisible, has only a mental existence,
and cannot be delivered over from hand to hand. So tithes, if we consider the produce of
them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed
incorporeal hereditaments: for they, being merely a contingent right, collateral to and issuing
out of lands, can never be the object of sense: they are neither capable of being shewn to the
eye, nor of being delivered into bodily possession. Incorporeal hereditaments are principally
of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or
pensions, annuities, and rents.

Immovable Property
Immovable property land, interests, rights in land. Movable property is other types of
property.

What is land?

1
At customary law, land is described variously as;
i. The surface of the land
ii. Things naturally on or under the land as part of it
iii. Things which are brought on or fixed to it
iv. Rights or interests in, under or over the land.

Ollennus Definition
Ollennu defines land as follows: It includes the land itself, ie. the surface soil; it includes
things on the soil which are enjoyed with it as being part of the land by nature, eg. rivers,
streams, lakes

Kludzes Definition
In Ewe law, land includes the surface soil, sub soil and anything under the soil such as
minerals. It does not include things on or attached to the land such as trees.

Nana Sir Ofori Atta I: Land belongs to a vast family of whom many are dead, a few are living
and countless host are still unborn.

Ownership, possession and title

Ownership embraces both possession and title.
Possession has two components;
1. Corpus possidendi - physical control/occupation over the thing itself which may be
exercised by the owner of the thing, his servant or his agent.
2. Animus possidendi the intention to exercise exclusive possession See Brown v.
Quarshigah; Bruce v. Quarnor (Kludze defines possession); Twifo Oil Palm
Plangtation Project Ltd v. Ayisi & Others (1982-83) 2 GLR 881-896;

05:09:14
Tutorials
Q:
The first basic principle of our customary law is that there is no land without an owner. Every
inch of land is vested in a stool. How has this view been treated under our customary law?

A:
Begin with scholars attitude on that principle. Eg. Ollennus view that there are no
ownerless lands in Ghana. But Kludze disagrees with this assertion. J. B. Danquah
supports assertion by Kludze.
Look at case law that supports the view that there are ownerless lands in Ghana. In
Wiapa v. Solomon, plaintiff had argued that his predecessors found the land ownerless
but defendant argued that once the land was under the Akuapem Stool, the stool
owned the land. The issue was whether or not the Paramount Chief of Akuapem had
the authority to sell the land. Kludze argues that reference to ownerless land was an
orbiter, not the substance of it. So the issue of ownerless land was not addressed by
Wiapa v. Solomon; Ababio v. Kanga; Ashirifi v. Golightly; Ofori Atta v. Atta Fua

Q:
Ownership is a concept which embraces two ideas, namely, possession and title. With the aid
of decided cases, discuss the accuracy of this statement.

2
A:
Explain the meaning of possession Brown v. Quashigah; Bruce v. Quarnor; TOPP
v. Ayisi & Ors; Aidoo v. Adjei; s. 48 of Evidence Act, 1975 (NRCCD 323)

CUSTOMARY LAW INTEREST IN LAND

Nature of Allodial Title
Allodial title is the highest title one can have in Ghana, hence it is also known as the
Paramount or Absolute Title.

Origin of Allodial Title

Allod (Greek) means entire property. Allodium (Latin) means the absolute property or an
interest held of no one. The Allodial Title is the basis for all interest held in land in Ghana.

Forms of AT
Allodial title may be held by various individuals and entities;

1. States It can refer to stool or skin. This form of ownership is common in most Akan
states. Its been observed that the allodial title belongs to the state the whole
community represented by the stool.

2. Family ownership Ga Dangmes, Ewes, parts of Northern Ghana.

Can individuals hold Allodial Ttle?

Its been expressed by various sources that it is only customary corporate entities that can
hold allodial title and that individuals cannot hold allodial title. See Amudu Tijani v.
Secretary, Government of Southern Nigeria (1921) 2 Appeal Cases 399 at 404:

The next fact which it is important to bear in mind in order to understand the native land law
is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the
community, the village or the family; never to the individual.

This position is also expressed in Ollennus book p.7-8. The court did not say that individuals
did not hold ownership of land but that they have to do so through families.

See Dennis & Arthur v. Ababio (unreported judgment); Memorandum to Land Title
Registration Act, 1986 (PNDCL 152), p.4: The best of these interests is the allodial title
which is the full title to land beyond which there is no superior title. It is an interest which in
some traditional areas in Ghana, is acknowledged as being held or vested in its stool or skin.
In other traditional areas, this interest is acknowledged to be held by sub groups (stools, sub
stools, clans and families), as well as individuals. See Nyasemhwe v. Afibiyesan; Adjei v.
Grumah; Djamoa v. Amargyei

Incidents of AT
Incident refers to the bundle or the collection of rights and duties attached to the interest in
land. One of the right to the incidents of AT is that the holder or owner has absolute control
over the land. However, this right is subject to the rights of individuals, families, clans or
subjects of the stool/skin concerned. It means an AT holder cannot transfer land owned by a
freeholder without consent of family. It will be completely void. But the family can transfer
land without the consent of the stool or the AT. This will not be void but voidable.

3
Right of the AT owner

1. The stool/skin is also entitled to allegiance and the performance of customary services
by occupants of the land. See Baidoo v. Osei; Thompson v. Mensah; In the Matter
of the the Public Lands Ordinance, Osu Mantse & Others (p.167).

2. When the state acquires AT through acquisition, it is not liable to perform customary
services. This is explained in s. 1 of the State Lands Act, 1962 (Act125
).
3. The individual members of stool/skin have the right to take natural fruits and acquire
the customary freehold.

4. The community has the right to control its members in their enjoyment of the natural
fruit of land, make grants to strangers and litigate over its titles.

Acquisition of AT
In Ohimen v. Adjei, Ollennu J state four modes of land acquisition:

a. Conquests
b. Discovery by hunters and pioneers of the stool
c. Gifts
d. Purchase

Its been noted that a head stool cannot acquire AT unless the land is vested in or is attached
to a sub stool/quarter under the head stool. This rule is stated in Golightly v. Ashirifi. See also
University College Acquisition Case

Laws of the AT

1. Abandonment Read Principles of Customary Land Law in Ghanaian Courts by

Godwin Woodman (p. 110 113).
a. Sabahs view is that in respect of farmlands, the non-exercise of a persons rights
for at least 10 years constituted abandonment. See Asenso v. Nkyidwuo; Atta v.
Lagos.
b. Other authorities say abandonment is effected by actions which indicate an
intention to surrender ones rights. See Kwaw II v. Ansah; Malm v. Lutterodt;
Manuh v. Asamoah
c. In respect of certain lands, statutes determine whether there has been an
abandonment of lands in certain areas. See s. 1 of the Farmlands Act, 1962 (Act
107). Here, if a person acquires land after the commencement of the actual
farming, his title to any part on which he fails to farm within eight years is
deemed to be extinguished. But the Act does not apply to some regions in the
north.
d. Its also been noted that the temporary failure or disuse of a building does not in
itself constitute abandonment. There is the need to indicate other factors to
establish abandonment. In Total Oil Product v. Obeng, it was held that:
Abandonment has a special meaning in customary law. Mere neglect or non-use
of land for a period however long does not itself constitute abandonment. Some

4
 acts or conducts must be exhibited by the owner, which show an intention not to
use the land any longer.

2. Legislation or operation of law There are two modes of law: Compulsory

Acquisition and Vesting.
a. Compulsory Acquisition It occurs under the State Lands Act, 1962. In
compulsory acquisition, the AT is extinguished. See Article 20 of 1992
Constitution.
b. Vesting Unlike compulsory acquisition, vesting does not have the effect of an
absolute extinguishing of the AT. The effect of vesting is to vest the land in the
state in trust for the owners. Vesting occurs under a different statute
Administration of Lands Act, 1962 (Act 123). See s. 7 of the Act its done by the
President through the publication of an EI. s. 10 of the Act also provides for the
payment of appropriate compensation from funds voted by Parliament. Eg.
Koforidua and Nkawkaw lands are vested in the state through EI 195 of
November 1961; all lands within one mile radius of Winneba Roundabout are
vested in the state through EI 83 of 1963.

3. Gift or Sale -

26:09:14
Interest in land (Contd.)
Customary Freehold
Customary freehold is also referred to as usufruct or determinable title/interest. The
customary freehold is the highest interest in which a person/individual can hold in land under
customary law. This is true only in respect to stool/family lands because that is where an
individual can hold allodial title.

Customary freehold is an interest which individuals have by virtue of their being members of
families or clans or being subjects of stools.

Customary freehold is an interest which is derived from or carved out of the allodial title. It is
also of a potentially perpetually duration. That is, it could, in principle, last forever.

Incidents of Customary Freehold

1. The proprietor of the CF has an unfettered right to the possession and use of the land
which is subject to the freehold. Its an exclusive right which is exercised free from
interference or invasions from all persons, including the allodial title holder. Read
Attah v. Esson (1976) 1 GLR 128

2. The proprietor or owner of CF has the right to alienate (transfer) the CF to any person.
In doing this, it has been held the CF does not need the concurrence or consent of the
stool or family, as the case may be. All that the CF has to ensure is that there is
provision made for the performance of the customary services which may have been
performed by the customary freeholder before the transfer.

3. Where there is a transfer of CF freehold without the provision of customary services,

it only makes the transaction voidable but not invalid. It can be rendered invalid by

5
 the stool only if the stool acts timeously to set the transaction aside. Read Mansu v.
Abboye (1982-83) GLR 1313. It involved the purported sale of family land. The stool
sued to set it aside. The court held that the stool did not act timeously to set it aside.

4. The stool has no power to alienate or transfer the CF without the consent of the
customary freeholder. If the stool does that it will be invalid. Read Ohimen v. Adjei
(1957) 2 WALR 275; Kotei v. Asere Stool (1961) 1 GLR 492.

5. The courts have held that a customary freeholder can maintained an interest in
trespass against the allodial title owner. See Oppong Kofi v. Attibrukusu (2011) 1
SCGLR 176. Ayittey JSC: Consequently, the subject of the stool or a stranger
guarantee of the stool could maintain an action against even the stool in defence of the
usufructurally title and might impeach any disposition of such interest effected
without his consent in favour of a third party.

Acquisition of the CF
The major modes for the acquisition of the CF are Implied Grants and Express Grants.
1. Implied Grant In this way, the CF is obtained by an individual in exercise of his
right by virtue of his being a member of a family or subject of a stool. At customary
law, every member of a family or subject of a stool has an inherent right to occupy
and/or cultivate any vacant land that is not occupied by another family member or
stool subject. Once the person successfully occupies and/or cultivates that vacant
land, he acquires the CF. In this case, there is no formal or express grant made to the
family member but the grant of the land is by virtue of his occupation or cultivation of
the land. See Bruce v. Quarnor (1959) GLR 292. Ollennu, J: Thus, even if the
plaintiffs possession and occupation of the land was not upon actual grant, his
possession and occupation as a subject of the stool is good title and it will take
precedence over any grant which the stool may purport subsequently to make of any
portion of that land. See Oblee v. Armah (1958) 3 WALR 484. At customary law, it
was recognised that a subject was not limited in terms of the size of land which he
could occupy and farm. So the extent of land which could be acquired through
farming was limited to two factors first, his own capacity to farm, and second, the
extent of appropriation by other stool members. Whether the subject has satisfied the
degree of occupation required to obtain the CF is a question of fact and is determined
on case-by-case basis. But there is a general rule that the presence of economic trees
is prima facie evidence that someone has effective possession of land. See Norquaye-
Tetteh v. Malm (1959) GLR 468; Wuta Ofei v. Danquah (1961) 1 GLR 847.

It has been stated that in modern times (modernity starts from 1963 when first case was
reported), due to certain factors such as the scarcity of land and the need to regulate the
acquisition of land, an express grant from the stool is always required. This was stated in the
case of Frimpong v. Poku (1963) 2 GLR 1. The court ruled in case that because land was no
longer plentiful, all farmland in the Sankore area in Brong Ahafo was subject to a local rule
that the members was to obtain an express grant before cultivation. Akufo-Addo JSC pg 4:
The principle of customary law which says that a subject is free to cultivate any extent of
stool land does not confer on a subject an unlimited licence for indiscriminate cultivation, and
a subject usually obtains the formal permission of the stool for the purpose. Permission is
never refused but it is necessary in order to enable the stool to keep a check in cultivated
areas. The second exception is that in the case of land in urban areas or land for the purpose

6
of building, the acquisition of the CF is only by an express or actual grant. See Oblee v.
Armah; Amatei v. Hammond (1981) GLRD 23.

A stranger cannot seek to obtain CF through an implied grant because he does not have the
inherent righ. See Oppong Kofi v. Attibrukusu III (2011) 1 SCGLR 176

2. Express Grant It can be made to both subjects and strangers. See Oppong Kofi v.
Attibrukusu. But in the case of strangers, the express grant is the only means by
which strangers can have CF. In terms of restrictions, in the case of urban areas and
land for building Oblee v. Armah.

3. Transfer CF can be transferred to a stranger provided that customary services were

performed. See Kotei v. Asere Stool.

Article 267 (5) of Constitution A freehold interest cannot be created in respect of stool
lands. If it is before the coming into force of the 1992 Constitution, there is no problem.

Q: Is it still the case that a subject of a stool is limited in acquiring the CF only by how far his
cutlass can carry him?

Q: To what extent has the right to acquire the CF been fettered?

03:10:14
Tutorials
Q1:

Approach:
Area of law customary interest in allodial and determinable rights or usufructory rights

Issue 1 Whether or not the elders can alienate or sell stool lands without the concurrent or
consent of the paramount chief. Ohemeng v Adjei lays principle that if elders sell land
without consent of paramount chief, it is void but if the paramount chief sells land without
consent of elders, it is voidable.

Analysis Relating or linking issues raised to the facts of the case. Once the paramount chief
was not around when sale was made, then Davis acquired no title at all.

Issue 2 whether or not a land occupied by a subject of the stool can be alienated or given to
another subject (in this case, a foreigner). Allodial holder cannot dispose of a land already
occupied by another subject Bruce v. Quaynor; Baido v. Osei; Opong Kofi v. Atibrukusu.
Key point is once it is not a vacant land and the subject can prove hes in constant occupation,
the stool cannot give it out to another person.

Q2:
Abeka is a subject of the Oboshi Stool..

Approach:
Area of law customary interest in allodial and determinable rights

7
Issue 1 whether or not Ntim was in possession of the stool land at the time the land was
alienated or disposed to Abeka.

Legal principles or applicable law See TOPP v. Ayisi which lays the principle that
possession is effective physical control (the act of possession) which is always a question of
fact and animus possidendi.

Issue 2 whether or not the chief, together with the linguist, can make a valid alienation
without the concurrence of the elders. Apply the same principle in Q1 except that in this case
is voidable, not void.

Issue 3 whether or not Abeka can dispose of his interest in the land to the Nigerian
Legal principle is that a subject of the stool who is in occupation can give a valid alienation to
a foreigner without the consent of the paramount stool provided that that person recognises
the allodial title holder and is ready to perform the customary practices attached to it. See
Baido v. Atta.

Analysis Although that is the position of the law, Abekas alienation is not valid because he
does not the valid occupier of the land. You cannot give what you dont have.

Issue 4 whether or not Abeka can dispose of the timber trees on the land.
This follows the same legal principle applied in Issue 3.

Q3:
In March 1997

Approach:
Area of law

Issue 1 whether or not the alienation made by the chief linguist without the concurrence of
the chief and his elders is valid. Apply same principle raised in earlier questions.

Legal principle A valid alienation must be made by the stool head with concurrence from
the principal elders. So the alienation of the land by the linguist in this case is void ab initio

Issue 2 whether or not Ogyam has a legal right to lease his acquired land to the mining firm
for the purpose of prospecting of gold and other minerals under the soil.

Legal principle Article 257 (6) of the 1992 Constitution says every minerals in its natural
state in land, rivers, streams, etc are property of Ghana and is vested in the President.

Q4:
In 1959, Kofi Ansah obtained a land from the paramount stool of Assin Fosu.

Area of law Abandonment, Allodial interest, determinable interest

Issue 1

Allodial Title (Contd.)

Customary Freehold

8
The customary freehold can be lost by abandonment Failure to build on building land
constitutes abandonment. That entitles the allodial title holder to exercise his right of
forfeiture against the title holder. See Komey v. Korkor

Forfeiture
In order for there to be forfeiture, there must be a guarantor for the person exercising the
forfeiture. Forfeiture implies the denial of the title of an allodial owner by a customary
freeholder. This denial can take two forms;
1. It can occur by the customer freeholder recognising the stool or family as the allodial
of the land.
2. By the customary freeholder refusing to perform customary services which are due to
the allodial owner. See Total v. Obeng & Manu (1962) 1GLR.

It can also occur through the compulsory acquisition of land by the state and can be exercise
over any proprietor of land, including the customary freeholder. See Nii Kpobi Tettey Tsuru
III v. AG (2012) 39 MLRG 37

Atuguba, JSC:
The state has statutory power to acquire land compulsorily from any proprietor of land,
whether a community, an individual or a corporate body, and whether the title is allodial, a
freehold or whatever.

Vesting
Vesting under administration of land can also lead to loss.
Failure of successes See Mansu v. Abboye (1982 83) GLR 130

LESSER INTEREST IN LAND

Customary Tenancy

Customary tenancy can be obtained by both strangers as well as subjects. It confers upon a
tenant (guarantee) the right of occupation and use of the land for specific purpose.

The grant may be held for an indefinite or fix period. It is often held for consideration but in
some cases, it is given for free of charge (gratuitous tenancy). The consideration may be in
the form of cash or sharing of produce. Interest may be granted by the holder of the allodial
title in respect of an unoccupied land.

The holder of a customary freehold can also grant a customary tenancy in respect of land. An
existing customary tenant can also grant customary title to another tenant (subletting) but that
will be based on the consent of the landlord. The point to note is that the landlord retains
ownership of the land but he only gives away the possession and use of the land.

Customary tenant does not own the land by virtue of the tenancy. So a customary tenant
cannot alienate the land.

Types of Customary Tenancy

1. Tenancy given for consideration
a. Seasonal Tenancy
i. It is granted to grow only food crops for a sowing season.

9
 ii. Its also granted subject to the payment of valuable consideration in the form
of levy (cash).
iii. The levy doesnt depend on the yield but the size of the farm.
iv. The landlord may be given a small proportion of the produce for his personal
use but he is not entitled as of right to obtain that.
v. The landlord doesnt share the produce with the tenant because his payment of
the grant is levy.
vi. The death of either party doesnt terminate the relationship or arrangement.
vii. Where the tenant dies and the landlord is unable to trace the personal
representative of the tenant, the landlord has a duty to keep the proceeds of
sale due the tenant and provide the proceed to the personal representative of
the tenant when available.
viii. The seasonal tenancy is terminated at the end of the sowing season.

b. Annual Tenancy
i. Its a form of periodic tenancy tenancy.
ii. It runs for a whole year.
iii. It is renewed automatically at the end of the year unless it is terminated by the
parties
iv. Consideration is in the form of cash (levy) depending on the size.
v. Other principles of seasonal tenancy apply

10:10:14
Tutorials
Q:
In 1959, Kofi Ansah obtained a

Approach:
Issue 1:
Whether or not Kofi Ansah leaving the land for 30 years amounts to abandonment.
Legal principles:
State all authorities on abandonment (Sarbah says 10 years), Kokomlemle Consolidated
Cases; Atta v. Lagos; Brown v. Quarshiga (note Kludzes ruling); See s. 1 of the Farmland
Protection Act which gives 8years as abandonment. Then relate them to the facts of the case;
analyse the issues and make your own understanding of it. Make sure your analysis and
conclusion are in consonance. At the time the land was sold to the Nigerian, there was no
abandonment because only seven years had elapsed.

Issue 2:
Whether or not the sub paramount stool has the right to grant the land which was given to the
allodial title holder.

Legal issues:
Whatever position taken, whether the land has been abandoned or not, argue in relation to
whether or not the sub paramount stool has the right to alienate or grant the land to Kofi
Ansah. Because the question doesnt state whether Kofi Ansah is a native or not, try to argue
for both sides.

10
Issue 3:
Whether or not a foreigner can claim possession of land beyond the express grant given to
him. See Oblie v. Armah; Frimpong v. Poku; Adjei v. Grumah.

Constitutional provisions on land

Article 257 (6) vests mineral resources in the state; s. 1 of Minerals and Mining Act.
Constitution prohibits freehold interest in state lands Article 267 (5). Foreigners are
prohited under Article 266 (1) to have freehold land of any nature. They are also not allowed
to have an interest exceeding 50 years at any one time under 266 (4).
Customary tenancy and customary pledge constitute the lesser interest in customary law,
while allodial tile constitutes the higher interest.

Recap
Tenancy relating to cash consideration has to do with food crops, while tenancy relating to
sharing of produce has to do with cash crops. Both tenancies are not personal to the parties,
meaning if any of them dies, whether intestate or not, the arrangement continues

Share Cropping/Tenancy
This principle relates to the practice whereby rather than the tenant paying cash to the
landlord, they share the produce in a certain proportion.

1. Abusa Tenancy
Under this kind of share tenancy, the owner of virgin land or vacant land grants the land to
the tenant, usually a stranger, for purposes of cultivation. The tenant bears the expenses of
cultivation and the produce is shared between the tenant and the landlord in the ration of 2:1.
The tenant doesnt have any interest in the land itself; his interest is only to occupy it, do the
cropping and have his share. Read Akofi v. Wiresi (1957) 2 WALR 257

2. Abunu Tenancy
The owner of an already cultivated farm gives it to the tenant to plant and maintain the farm.
It could also be that the owner may give financial and labour support to the tenant to cultivate
virgin or vacant land. In either situation, the produce is shared equally between the parties.
The justification is that the landlord does more than just offering vacant land and he may also
do some work on it before granting it to tenant. It goes far beyond what is done in the case of
the abusa tenancy. This systems developed in times when tenant did not have money to
cultivate land and so landlords gave them such incentives. Read Woodman. But now,
situation has changed.

Incidents of the Shared Cropping Tenancies

1. The tenant is entitled to all the foodstuffs grown during the cultivation of the main
crop. See Fori v. Ayeribe (1966) GLR 627.
2. The shared tenancy are not terminable at will. That is, the landlord cannot just revoke
the grant; they are irrevocable as long as the tenant continues to meet the conditions
of the grant. See Donkor v. Asare (1960) GLR 187; Kwarteng v. Agyarko (1968)
GLR 292.
3. The tenancy does not confer on the tenant any interest in the land itself; the only
interest is in reference to the produce obtained from the land. See Sasu v. Asomani
(1949) DC Land 1948 51, 133.

11
 4. The tenants rights of alienation is limited. However, he may transfer his own share to
a third person with notice to the landlord. If he transfers interest in the land itself, it
will constitute forfeiture.
5. The parties agree on the type of crops to be cultivated. See Fori v. Ayiribe.

The Modern Rules

1. The question is whether or not abuna or abusa tenancy has been created.
2. The parties are also free to contract out of the normal incidents. The traditional view
will, however, prevail if there is no contrary intention either expressed or implied by
the parties.

The courts accordingly have enforced agreements where the terms differ from the traditional
structure of the shared tenancies. See Kudjo v. Kuma (1929) DC Land 29-31, p5.The court
enforced an agreement for the landlord to receive two-third of the produce (cocoa), while the
tenant got one-third. See Kwarteng v. Agyarko. The court enforced an agreement in terms
that the tenant will retain the whole produce for the first four years after the cocoa has started
to yield; thereafter, two-thirds were given to the landlord. See Lamptey v. alias FAnyiie v.
Nkpa (1989-90) 1 GLR 286. The case began at the High Court and travelled to the SC. A
virgin land was given by the landlord to a group of farmers and the landlord himself admitted
the farmers used their own resources, labour and funds to cultivate and maintained the land.
But landlord had said they had agreed to share produce in the form of abunu. At High court,
the court enforced landlords case. But Appeal Court held even if they agreed to share on
abunu format, the incident departed so much from the traditional format so it could not be
enforced. But the Supreme Court said because they had agreed, they could not come to court
to vary it. It was stated in p.288 of SCR:

The terms of the tenancy were a question of fact to be determined on the evidence. There
was no inflexible customary law or practice in agricultural tenancies in its incidence that no
one could contract out of it. Since in the instant case, the evidence abundantly that the
plaintiff took abunu tenancies and would seem to wish to change the tenancy, the court
should lend its support to such attitude.

Customary Licence / Gratuitous Tenancy

It is gratuitous tenancy under which a tenant is permitted to use the landlords land free of
charge. Based on this purpose, there are two kinds of customary licence Farming Licence
and Building Licence.

1. Farming Licence
This is a temporary licence given by a grantor to a licensee for farming purposes. The
licensee is not entitled to economic trees/crops on the land before its grant. The licensee has
no right of crops before license is given. The farming license is terminated when the license is
revoked.

2. Building License
It is given to a licensee to build and occupy a building on the licensors land. Its duration is
for the life of the building. Therefore, it is automatically terminated when the building is
ruined. See Aseh v. Anto (1961) GLR 103.

Once the building remain standing on the land, the licensor cannot revise the license at will.
However, the parties may, through express agreement, make the building license revocable at

12
the will of the licensor. But in that situation, the court will not enforce such a term unless the
licensor can sufficiently compensate the licensee for the investment and development of the
land. See Dao v. Klu (1955) DC Land 52-55 p301.

Creation of Customary Tenancy

1. By Contract The parties negotiate the terms and consideration is either by cash or
crop sharing.
2. Implication of law Implication in this situation is drawn from a set of facts and
conduct of the parties.
a. Failure of a higher interest In this case, the creation of customary tenancy is
done where a stranger obtains a customary freehold from an existing customary
freeholder but is unable to perform the required customary services because such
performance will constitute a sacrilege to the land-owning community or allodial
title holder. Rather than perform customary services, we pay tax (commuted to
cash)
b. Mistaken cultivation or occupation of land This occurs where members of a
community appropriate land in a mistaken belief that the land belongs to their
community. After a rival community is determined to be rightful owners of the
land, the usual position of customary law is to convert the occupants of the lands
into customary tenants of the land with the the rival community being their
landlord.

There are two bases;

a. The occupants should not lose the benefit of their improvement of the land since they
acted in good faith.
b. Customary law abhors ill-gotten gain. See Ababio v. Nsemfo (19..) WACA 14.

Incident of inheritability Cannot terminate with death (Alienability). See Kuma v. Kuma
(1958) 5 WACA.

Irrevocability Cannot be revoked

The parties agree on the crops to be grown. See Fori v. Ayiribe.
Compulsory acquisition

Exams tit bits

State the relevant rule of law and supporting authority in a hierarchical manner
statute, case law, scholarship.
Analyse issues in the case by drawing parallel from case law with facts of the
question.
Give brief description of facts in a sentence or two
Note how the court applied the principles and relate them to the facts of the question.
Draw conclusion

A
Issue 1 Validity of the extension; whether or not Manu can validly extend his farm. That is a
stranger trying to obtain implied grant in farmland Opon Kofi v. ; Oblie v. Armah. But if

13
you hold Saltpond lands to be express lands, then the restrictions in Oblie v. Armah will not
hold. Because Saltpond is deemed to be an urban area, Manu had to obtain express grant.

Q
Distinguish between vesting of interest in land in the President and compulsory acquisition of
land by the state

Q
The first basic 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. Do you agree with this statement?

Q
A subject does not require express permission of the stool to occupy stool land. He is entitled
to the land by virtue of his inherent right as a subject o fthe stool and the only limitation is
how far his cutlass scan carry him, With the aid of decided cases, critically assess the
accuracy of the above statement.

17:10:14
Tutorials
Q:
The first basic principle of our customary law is that there is no land without an owner.
Every inch of land is vested in someone. How has this view been treated in Ghanas
customary land law?

A:
This principle was stated by Bruce Hindle who was then the AG of the Gold Coast who stated
that there is no ownerless land because every portion is owned by one stool or another. J. M
Sarbah agrees with Hindle and asserts that there is no ownerless land, according to native
law. Ollennu is also part of this school of thought.

However, Kludze disagrees with the assertions made by the above scholars. According to him
these assertions are not based on judicial decisions and do not carry the weight of such
authority (no judicial authority). Secondly, they are not based on adequate research, let alone
field work. In the view of Kludze, these are opinion of colonial judges who did not
understand the land tenure system and relied on solely on conflicting opinions of so-called
local experts. Kludze submits that the assertions by the above scholars are based on the
wrong premise, and if the premise on which they are based is wrong, then the doctrine is also
wrong.

Authorities
Kludze says not all lands are stool lands. His basis is that: According to Casely-Hayford,
apart from other lands among the Fante, there are the general lands of the state over which the
king exercises paramountcy, that is, a sort of sovereign oversight which does not carry with it
the ownership of any particular land. He also relied on the view of J. B. Danquah. According
to Danquah, in Fante proper (Bore Bore Fante), there are very few paramount stools which
can claim absolute rights or ultimate ownership in all the lands in their state divisions.

Case law

14
Wiapa v. Solomon; The plaintiff claimed title to certain lands in Akuapem as against the
defendant, a purchaser who took from the Omanhene of Akuapem. According to the plaintiff,
his predecessor had found the land ownerless and had been in occupation of it for a long time.
The trial court, however, made a finding of fact that the plaintiff had not been in effective
occupation. Sarbah, counsel for the defendant, submitted that if the land was no ones land
and was within Akuapem, it must have been attached to the Akuapem Stool. Sarbahs
argument was upheld.

According to Kludze, the main issue in the case was the capacity of the Omanhene to sell the
land in dispute to the defendant, Solomon. It is settled by authority that a citizen who has
acquired usufruct in unoccupied stool land cannot be dispossessed even by the stool.
Therefore, the purported sale by the omanhene to the defendant was ineffective. Kludze says,
perhaps, the weight of Sarbah might have influenced the judge in ruling.

Ababio v Kanga: This was a case between two divisional chiefs in Eastern Nzema Asenta
and Kikam. Scholars have relied on this case to support view that there is no ownerless land
in Ghana. Judge stated that No land was is ownerless.

According to Kludze, this was done (no ownerless land) to determine whether certain
individuals who had before litigated over the land now in dispute were citizens of Asenta and
Kikam and, therefore, had bound their stools on the principle of res judicata.

Ofori Atta v Attafuah:

Read Kludzes Article There is no ownerless land in Ghana

Lecture (027 743 6913) ericksforyou@yahoo.com

Customary Law Pledge
Customary pledge is one of the lesser interest in customary law. It is one of the creations of
the scholars. A few of the old writings call it customary mortgage.

A pledge involves giving to a creditor some right over property as a condition or security for
a debt. The pledgor loses his rights to the use or possession of the property but he retains
ownership. The pledgee obtains the right to the use or possession of the property but not the
ownership. Actual transfer of ownership and re-conveyance of property upon redemption is
not required.

Ollennus Definition: (Principles of Customary Law in Ghana: p.101)

A pledge in customary law is the delivery of possession and custody of property, real or
personal, by a person to his creditor to hold and to use until a debt is paid and article
borrowed is returned or replaced or an obligation is discharged.

Real or personal differs from English law concept which only deals with movable property.

Essence of a pledge
1. It confers on a pledgee the right of possession and beneficial use of the pledgors
interest in the land until the debt is repaid. Beneficial use is different from legal title.
The legal title stays with the pledgor but the right of enjoyment is passed on to the
pledgee.

15
 2. The pledgee gets possession and enjoys the profits of the land without accounting for
the, while the pledgor may at anytime redeem the pledge provided he pays back the
loan and all expenses which the pledgee has been put to.

No one can fault the pledgee for over-using the land

Ollennu explains: Therefore, for any transaction to be a pledge, the pledgee must be placed
in possession, occupation and control of a pledged land, otherwise the transaction will not be
a legal pledge whatever else it may be p10
3
Ollennu continues: Its purpose, essentially, is not so much to hold the pledged prop0erty as
security as to have it used as interest on the amount borrowed.

Incidence of a pledge
1. The pledgee is absolutely entitled to enjoy all profits accruing on the pledged land and
is not accountable to the pledgor Dapaah v. Poku (19) p105-6 of Ollennus book
2. It is in the interest of the pledgee that he should improve the land in order to derive
the maximum benefit from it.
3. The cost of such improvement is not chargeable to the pledgor unless it is made with
the prior consent of the pledgor or at his request Dzanku v. Kwadjo (1960) GLR 31.
4. The pledgee must not commit deliberate waste so as to render the land useless by the
time it is redeemed for the purpose for which it was being used at the time of the
pledge Dabla v. Ativor (1941) DC Land, para 48-51 103.

The rights of the pledgee

1. To possess, occupy and control of the land and to sue the pledgor for trespass Atta
Kwaku v Kra (1967) GRL 50; Agyeman VII v. Inkoom (1982-83)..

Redemption of pledge
Redemption involves the repayment of the loan or the performance of the obligation for
which the land was pledged. It gives the pledgor the right to recover the item pledged.

At customary law, a pledge can be redeemed at any time, no matter how remote. Its only a
matter of performing the obligation for which the pledge is given Agbo Kofi v. Addo Kofi
(1933) 1 WACA 284. In that case, lands pledged in 1869 were successfully redeemed in 1926.
That means during the period, the pledgee could not sell the property.

Ebiasa v. Ababio (1946) 12 WACA. It was noted as soon as the debt is paid, the pledgee
must vacate the landor be ejected and as a rule, the pledgor gives notice to the pledgee before
he tenders the repayment.

Kuma v. Kofi (1956). In this case, land was succefully redeemed by the successors of the
pledgor after several generations. The pledgor never loses the right to redeem

A pledgee is not entitled to sell a pledged land except upon the order of a court Atta Kwaku
v. Kra

Adobea v. Lassey (1956) 1 WALR 181 If a pledgor sues for a redemption and an order is
made in his favour directing redemption within a specified period, upon the failure of the
pledgor to redeem within the specified time, the pledgor will lose the customary right to

16
redeem at any time and the pledgee may then sell the property. This was the customary law
position until 1979 when the Mortgages (Amendment) Decree, 1979 was passed. It narrowed
the scope of operation of the customary law pledge.

The customary law pledges has been modified by the Mortgages (Amendment) Decree, 1979
(AFRCD 37). The law has narrowed the scope of customary law pledges by transforming
customary law pledges involving farmlands into statutory mortgages.

s. 1 (1) of the Decree says Every customary loan transaction in respect of which any
farmland is given as security for a loan shall be made in accordance with the Mortgages
Decree, 1972 (NRCD 96)

That law established the law of mortgages. But there were some doubts on the decree and that
was clarified by AFRCD 37.

The traditional customary pledge can be made only in respect of land other than farmland.
Q1
Trace how the customary law pledges have been restricted.

A
Trace the historical status of customary pledge. It did not affect farmlands until AFRCD 37
came to sort out farmland under the Mortgages Decree.

Read article by EVO Dankwas The end of pledges in Ghana in Journal of African Law
1989 vol 33 p185 191.

A significant effect of the conversion is that the pledgee no longer has a right to possession.
This is by virtue of s. 1 of the Mortgages Decree, 1972 (NRCD 96) A mortgage shall be an
incumberance on the property charged and shall not, except as provided by this decree,
operate so as to change the ownership, right to possession or other interests in the property
charged.

Q2
In august 1980, Manu, a native of Konongo in the Ashanti Region of Ghana, acquired.

A
Raise the issues one after the other and analyse them. Its not required to state the area of law.
After raising issue, state the relevant rule of law
Issue 1: Whether Manu has any valid right in respet of the extended lands
Case: Oppong Kofi v. Atibrukusu a stranger does not have right to farm land in exercise of
inalienable right.
Frimpong v. Poku
Apply above rules to facts of the question
Saltpond land being an urban land is relevant to the case as noted in Oblie v. Armah. Urban
lands are granted through express means.

Issue 2: Relevance of minerals in land in respect of ownership

Law: Article 257 (6) of Constitution and s. 1 (1) of Mining and Minerals Act, 2003, (Act 703)
minerals in natural state are vested in the President
Note processes of granting land for mineral purposes and who grants that right.

17
Q3
A
Look at the effect of both and tell the differences between them. Look at the enabling
legislation for both.

Q4
A subject does not require express permission.

A
Begin by indicating the traditional rule on land acquisition. Indicate the scope of the question
and give your views and legal principles. Identify the focus of question, the scope and
preposition and state your views and as to whether you agree with it or not.
Preposition is that he doesnt need express permission. This means implied grant and
suggests he has no limitation to acquisition of implied grant. It suggests there are not
restrictions. So discuss the restrictions Frimpong v. Poku; Oblie v. Armah; Oppong Kofi v.
Atibrukusu III.
Look at the modern rule and the location of land,whether its urban or rural.

Q
The first basic principle of our customary law is that there is no land in Ghana without an
owner

A
Look at the position that supports the view and the judicial authorities that support this view.
Look at the opposition to the view and the bases given.
Look at the merits and demerits and state your position on two views.

30:10:14
STOOL PROPERTY
Nature
Article 295 (1) says in terms of the constitution, a stool is synonymous with skin. A stool
includes a skin.

A stool is an aggregation of families but the stool has separate personality from the family.
Symbols which portray the essence of the stool also gives definition of stool.

A stool may refer to a customary community that is a body corporate headed by a chief who
holds some traditional political authority. It may also connotes the symbol or office of a chief
or other customary office holder.

Woodman defines stool as a community which is recognised by customary law as having

legal personality and which is not a family or company. This means at customary law, the
stool, family and company constitute legal personality.

A stool as described above may be distinguished from the stool family. The stool family is the
family from which the chief of a stool is customarily chosen. Its land holding rights are the
same as those of other families in the same community. Its properties are separate from the

18
stools properties. The description above constitutes public chiefs. But there are also private
stools for chiefs occupy non-public stools.

Stool as described above may also be separated from family or private stools. A family stool
is used to symbolise the office of the head of a family. A stool comprises a community whose
membership consist of more than one lineage. Although the members of the stool may
understand themselves to be related, in practice, they are unable to trace their relationship
with each other. See Boateng v. Adjei (1963) 1 GLR 285.

Membership & incidents

The rules on membership of families indicate the membership of stools. A person is born into
the stool community to which his or her family belong. Therefore, stool membership usually
depends on family membership. Consequently, persons belonging to families which in turn
forms part of a stool community become members of the stool.

It is also possible for a person to obtain membership of a stool through a process of

naturalisation Frimpong v. Poku. However, in some cases, a large group of people are
received as members of a stool community. See Woodmans discussion in chapter 6 of his
books.

Right A stool subject has the right to occupation of land to become customary freeholder.
Duty A stool subject has a duty to render customary service to the stool

Acquisition of Stool Property

A stool may acquire an interest in land through any of the modes of the acquisition of interest
in land conquest, purchase, etc. It could obtain not only the allodial title but also through all
the interest in land. See Ohimeng v. Adjei

A stool may also acquire customary freehold by developing vacant communal land

The stools act of acquisition must involve acts done by individuals on behalf of the stool. It
is, however, possible for individuals to obtain interest in land in their own rights. Therefore,
there can be a problems in distinguishing between acquisition of interest in land which inure
to the benefit of individual persons and those which go to the account of the stool which they
belong.

Woodmans Resolution of the issue: Where property is acquired by use of the stools
resources and subjects contribution, the intention of the contribution parties will determine
the ultimate ownership of the property so acquired.

Substantive v. Evidence Rules

Previously, at the time of enstoolment, a chief had to do earmarking (substantiv0e rule) by
indicating his properties, otherwise they may lose them to the stool. This was the customary
law position untile Boateng v. Adjei (1963). Per Akufo-Addo, provided a chief can bring
evidence that the properties he held before enstoolment, they will not be merged with the
stool properties. So its merely a rule of evidence and not a rule of substantive law.

Earmarking is only one means by which a chief can provide evidence of properties acquired.
In the case of properties acquired during his enthronement, the question is whether there is

19
evidence that the chief acquired the properties individually. Under those circumstances, the
properties will not be merged with the stools properties.

Merger of the chiefs property with stool property

Q
Does property acquired by a chief becomes stool property?

A
It used to be the position that property held by a chief as individual property prior to
enstoolkment remained individual property provided that it was clearly earmarked before the
enstoolment. See Antu v. Buedu (1929) FC 474. In the absence of such earmarking, the
property was merged with stool property.

Property acquired by a chief during his occupancy of the stool was presumed to belong to the
stool. The duty or burden was on the chief to show the contrary by proving that the property
was derived from property owned by the chief before enstoolment and retained in his
individual ownership after the enstoolment. See Antu v. Buedu; Nsia v. Donkor (1962) 1
GLR 36. The modern rule was stated in Boateng v. Adjei. Per Akufo-Addo J:

It has never been a principle of the customary laws of Ghana that the self acquired properties
(whether acquired before or after his ascension to the stool) of a stool occupant become
merged into stool properties by the mere reason either of the owner of such properties
occupying a stool or of the absence of a pre-enstoolmemt declaration or earmarking of such
properties.

It is a mater of evidence at every stage in the history of a given property, whether that
property is self-acquired or family-owned
Read the case in full and look at all the circumstances
Also see Antwi v. Amponsah (1964) GLR. The court stated that the principle state in
Boateng v. Adjei also applies to properties acquired during a chiefs reign.

Management of Stool Property

Under Article 267 (1) of the Constitution, all stool lands are vested in the appropriate stool on
behalf of and in trust of the subjects of the stool in accordance with customary law and usage

Administration of Lands Acts, 1962 (Act 123) vests land in the President. But authorities say
the stools also have right to litigate in respect of the lands concerned.

The courts have held that vesting of stool lands in the President does not take away the
powers of the stool to litigate in respect of the lands. See Nana Hyeaaman II v Osei (1982-
83); Gyamfi v. Owusu (1981) GLR 612. Possible question from here.

Revenue accruing to stool lands is required to be collected and distributed by the Office of
the Administrator of Stool Lands. The funds are distributed to specified recipients according
to a prescribed ratio under the Constitution. See Article 267 (2) (3) (4); Office of the
Administrator of Stool Lands Act, 1994 (Act 481).

Alienation of Stool Property

The general rule is that a valid alienation is one made by the occupant of the stool acting with
the consent and concurrence of the councillors of the stool. See Allotey v Abrahams (1957) 3

20
WALR 308. A decision made by the majority of the councillors will suffice to validate an
alienation of stool property. Also see Abudey v. Onano (1946) 12 WACA 102.

Where the occupant of the stool does not participate in the transaction, it is void. See Mensah
v. GCB (1957) 3 WALR 123; Agbloe v. Sappor (1947) 12 WACA 187.

A document executed by occupant of the stool and at least the linguist will be deemed to be
binding on the stool. See Amanquanor v. Asare (1966 GLR).

The consent of the Lands Commission and the relevant traditional council are also required
for the alienation and disposition of stool property. Its the Land Commission of the Region
where the land is located. See s. 45 of the Chieftaincy Act, 2008 (Act 759). Article 267 (3) of
the Constitution requires a certificate from the Regional Lands Commission concerned for the
disposition or development of any stool land.

Involuntary Alienations
In the case of involuntary alienation, the approval of the National House of Chiefs is
required. s. 46 of the Chieftaincy Act:

Stool property whether movable or immovable shall not be seized in execution at the suit of
a person except with written consent of the National House.

Litigation in respect of stool property

The chief is the proper person to sue or be sued in respect of stool land Gyamfi v Owusu.
However, in the absence of the chief, any other person may be appointed to represent the
stool if at customary law that person is qualified or competent to represent the stool
Ofoeman Stool (1957) 2 WALR; Bukuruwa v. Kumawu Stool. Woodman says the stool
linguist is suitable to represent the stool but other elders or office holders may represent the
stool. Private citizens have no standing or capacity to commence or defend legal actions in
respect of stool lands. See Gyamfi v Owusu.

31:10:14
FAMILY LAND
Definition
Ollennu describes the family as consisting of the entire lineage descendants of a common
ancestor both for purposes of ownership of property and for purposes of social life.
Depending upon the tribe, the family may be patrilineal, matrilineal or a fusion of both.

Matrilineal Family
The matrilineal family is composed of all persons, male and female descended from a
common female ancestor. Membership in the family is passed on through children of female
members of the family but terminates with each male members. See Mills v. Addy (1958) 3
WALR 357; Amarfio v. Ayorkor (1954) 14 WACA 554.

Patrilineal Family
The patrilineal family is composed of all persons, male and female descended from a
common male ancestor. Membership in the family is transmitted through children of male
members of the family but terminates with each female member. See Okoh v. Ankrah (1961)
GLR 109; Wellington v. Papafio (1952) 14 WACA 49; Amarfio v. Ayorkor (1954).

21
Nature of Families
The family has a corporate personality in customary law. It is capable of holding any interest
in land. It may sue and be sued.

Incidents of Family Membership

1. Common ownership or family property
All property belonging to a family are held in common by members of the family. Due to
this feature, every member of the family has an inherent right to be granted a portion of
the vacant family land. Ollennu stated this principle at 149 of his book Principle in
Customary Law and he explains that as a result of this, in matrilineal areas, children of
a male member of a family upon their fathers death intestate do not acquire any right or
interest in any family property occupied by their father during his lifetime. But statute and
case law have addressed this issue Article 22 of the Constitution; PNDCL 111; Mensah
v. Mensah (very key to read).

2. Common liability to pay family debt

Every member of a family is liable and to contribute towards the payment of family
debt. Each member is liable not only for his proportionate share but for the whole
debt. Thus, where a family member redeems family property from a pledge or
mortgage, the redeemed property remains family property. Also, where family
property is being sold in execution of a judgment against a family and a family
member purchases it at a sale, he is presumed in law to have bought it for the family.
See Bruce v. Adjah (1925) DC Land 21 25 192.

In order to avoid the application of these rules, the family member intending to
redeem family property should obtain a prior consent of the head and principal
members of the family. That upon the said redemption or purchase, he should hold the
property as his individual self-acquired property.

3. Right of representation at family meeting

Every member has a right to be represented at a family meeting. Although not every
member of a family is entitled to attend personally, representatives of branches and
sub-branches attend on behalf of every member of the family

HEAD OF FAMILY
Appointment
At customary law, no person has an automatic right to be appointed head of family. A valid
appointment can only be made by the family at a family meeting expressly called for that
purpose. See Okoh v. Ankrah.

It was held that the family meeting may be conveyed by the most senior member, by an
eminent member, chief or head of a quarter. An outsider may only preside over the meeting
when there are divisions. He is simply an independent witness and has no votes. His presence
may facilitate the maintenance of order and ensure appropriate procedure. Also see Hervie v.
Tamakloe (1958)3 WACA 342.

If some elders do not attend the meeting, those who do can nevertheless make the
appointment. See Welbeck v. Captan (1956) 2 WALR 47. It was held that although the
absence of principal members from a family meeting may render nugatory decisions taken at

22
such meetings, yet this will not be so if the members concern have been invited to the
meeting but for reasons of their own have not attended.

Removal of the head of family

The 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 courts will not interfere with
the merit of the familys decision to remove a head of family unless it is proved that there was
substantial departure of the tenets of natural justice. See Allotey v. Quarcoo (1981) GLR 208.

The burden of proving specific grounds of the invalidity of the removal of the head of family
lies with the particular member seeking to avoid the decision of the family. See Welbeck v.
Captan.

Acquisition of family property

1. Inheritance
a. Testate (Will)
b. Intestate (No Will)

2. Acquisition with family resources

3. Redemption
4. Gift
5. Merger of the head family property and stool property (akin to stool merger)

Alienation of family property

Who must participate in and consent to an alienation of family land in order to validate the
transaction? See Allotey v Abraham; Adjei v. Appiagyei (1958) 3 WACA 401. It was held that
a sale by 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 is
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.

Litigation in respect of family property

The proper person to sue and be sued in respect of family property is the head of family. See
Kwan v. Nyieni (1959) GLR 67. The case provides three exceptions to the general rule in
which persons other than the head of family are allowed to sue in respect of family property:
1. Where family property is in danger of being lost because of self-interest, or some
other reason the head of family will not take steps to preserve it.
2. Where because of division in the family the head of family and some principal
members will not take any step.
3. Where the head of family himself and some principal members are deliberately
disposing of family property in their personal interest to the detriment of the family.

In any of the above exceptions, the court will entertain an action by any member of the family
either upon proof that he had been authorised by the 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. See Hausa v. Hausa (1972) 2 GLR 469;
Sarbah v. Worbi (1966) GLR 87; Otema v. Asante (1992) 2 GLR 10. But currently, you
cannot cite Kwan v Nyieni without reference to the Re Ashalley Botwe Land (2003 - 2004)
SCGLR. CJ made a clarification to previous case. Per Wood JSC, as she then was,

23
The exceptions in Kwan v. Nyieni are only exhaustive given that society and, indeed,
customary law is dynamic and not static. The Court of Appeal in Kwan v. Nyieni has left the
matter open for possible expansion of those special circumstances when the need aorse.
Therefore, the question whether any particular case falls within the stated exceptions rather
the rule or even an exception not identified in Kwan v. Nyieni is dependent on the particular
facts of the given case.

CI 47, Order 4, Rule 9

It says the rules to regulate the institution of legal actions in the High Court on behalf of
families.

Order 4 Rule 9 (2) states that the head of family in accordance with family law may sue or be
sued on behalf of or representing the family.

r. 9 (3) says if for any good reason, the head

a. is unable to act
b. refuses or fails to take action to protect family property, any member of the family
may sue on behalf of the family

r. 9 (4) says where any member of the family sues under r. 9 (3), a copy of the writ should be
served on the head of family.

r. 9 (5) says when the head had been served with the writ, he has three days to do one of three
things;
a. apply to the court to object to the issuance of the writ.
b. apply to the court to join the action as a plaintiff
c. apply to be substituted as plaintiff

r. 9 (6) says if the head of family is sued as representing the family but it appears that he is
not properly protecting the interest of the family, any member of the family may apply to
court to
a. be joined as a defendant
b. be substituted for the head of family

Accountability of the head of family

The law used to be that the head of family was not accountable to the family. The only
remedy available to the family was to depose him and appoint another person in his stead.
See Hansen v. Ankrah (1987-88) GLR 639. The judges in this case stated the need for
legislative reform to make heads of families accountable to their families. This reform came
to being through the Head of Family Accountability Act, 1985 (PNDCL 114).

s. 1 of the law provides that a head of family shall be accountable to the family in respect of
any family property in his possession, control or custody. The head of family or any person in
control or possession of or who has in his custody any family property is required to take and
file an inventory of family property.

s. 2 says if the head of family or person in control or possession of family property fails to
take and file the required inventory, any member of the family can apply to the court to
compel the head of family or person in control or possession of family property to comply

24
with the law. Before the member applies under s. 2, he must first exhaust local remedies, that
is, attempt to settle the issue within the family and show that all such attempts have failed.

06:11:14
CUSTOMARY LAW GIFT
A gift is a conveyance or alienation. A conveyance is a transfer of either a property or right to
a property.

A conveyance is a voluntary transfer of a rights or property. The result of a conveyance is that

a right or property such as land or interest in land that is vested in a person or group of
persons is transferred to another person or group of persons for the right or property to
become vested in that other person or group of persons.

A gift being a conveyance involves the transfer of an interest in land. However, in a gift, the
donor receives no payments or consideration from the donee. A gift is thus a voluntary
transfer of title by the owner of property to another person for no consideration.

In his Ewe Law of Property at p.266, Kludze says: The only basic difference between sale
and a gift is that whereas a sale is contractual arrangement involving the payment of money
or other consideration, a gift is not contractual; it is gratuitous, and is essentially a unilateral
offer.

Sarbah also notes that in the case of a gift, you have a relinquishment of ones own rights and
the creation of the rights of another in various items.

Requirements for a valid customary law gifts

1. The gift must be made in public before witnesses Ahmad v. Afriyie (1963) 2 GLR
344. The witnessed need not be members of the donor family In re Ohene (1975) 2
GLR 89; Abebreseh v. Kaah (1976) 2 GLR 46. It has been established that in the
absence of publicity of the gift at the moment of its making, possession and
occupation by the donee and the open exercise by him of rights over the land which is
incapable of any other explanation except that the person in such possession is the
owner will provide sufficient publicity of the gift Asare v. Teing (1960) GLR 155.

Woodman p.366: Thus, a private informal delivery followed by public user of the
land constituted a valid gift satisfying the requirements of acceptance and publicity

2. The donee must accept the gift during the lifetime of the donor. The thanks offering to
indicate acceptance must be done within a reasonable time to be effective and in any
event, within the lifetime of the donor. See Amo v. Ntiwaah (1965) CC 172. The
acceptance is normally done through a small token presented to the donor as a thank
offering called aseda in Akan. However, the authorities maintain that the giving of
aseda is not the only way to indicate or effect an acceptance of the gift in order to
make the gift valid.

Sarbah p 81 of Fante Customary Law: Acceptance is made

i. by rendering thanks with a thank offering or presents alone or coupled with an
utterance of appropriating the gift,
ii. corporeal acceptance as by touching,

25
 iii. using or enjoying the gift, or
iv. exercising rights of ownership over the gift

See Hammond v. UAC (1935) 2 WACA; Yoguo v. Agyekum (1966) GLR 482;
Anaman v. Eyedua (1978) GLR 114; In re Ohene; Asare v. Teing; Osmond v.
Hughes (1967) GLR 405 look at judgment of Azu Crabbe.

3. Taking of possession by the donee. Possession of the subject matter (land) is effected
by taking the donee to the land the owners of the adjoining lands having been given
previous information to stand on their boundaries and the donee is taken round the
said boundaries. See Asare v. Teing.

It has been held that where there is a promise of a gift and aseda is given, the remedy
of specific performance is available to the donee against the donor. See Yao v. Kome
(1945) DC Land 37-47 @ 179; Manu v. Mensah (1953) DC Land 52- 53 @ 156.

Therefore, where there has been the promise of a gift and aseda but no taking of
possession, the donee will have a right in personam against the donor and an equitable
right in the property.

Revocability of gift
Generally, once a gift is validly made under customary law, it cannot be revoked. See Boakye
v. Broni (1958) 3 WALR 475; Mamavi v. WA Building Ltd (1965) GLR 216. However, it has
been established that revocability depend on the nature of the gift given. Gifts which hinvolve
the donor giving out his whole interest are irrevocable.

Some other gifts involve the giving out of licence which may be revoked in line with the
usual rule of liability to forfeiture for denial of the donors title. See Gyetua v. Boafo (1964)
GLR 443; Awisi v. Nyarko (1966) GLR 3.

Documents prepared after a valid conveyance of an interest in land at customary law only
operates as documentary evidence of the transactions; they do not alter the nature of the
transaction nor give better validity to the transaction than the prior valid customary law
transaction. See Bruce v. Quarnor (1959) GLR 292; Cofie v. Otoo (1959) GLR 300; Sese v.
Sese (1984-86) 2 GLR 966.

The retention of title documents to the land (the subject matter of a gift) by the donor does
not detract from the gift to the donee. See Aidoo v. Gyasi (1975) GLR 267.

Formalities for the transfer of interest in land under customary law

See Ollennus book; Principles of Customary Land Law in Ghana, Chapter 8; Woodmans
book; Customary Land Law in the Ghanaian Courts, Chapter 13.

Sale of an interest in land

1. Ceremony for conveying title
There is a ceremony done to convey title to the land. This is known as guaha/trama
by the Akans or yibaa foo/yibaa pon of Ga Dangme. See Tei Angmor v. Yiadom III
(1959) GLR 161; Donkor v. Asare (1960) GLR 187; Ntim v. Boateng (1963) 2 GLR
97.

26
 Its been held that a sale cannot pass title without the ceremony. See Tei Angmor v.
Yiadom III; Donkor v. Asare. The latter case establishes the the guaha custom must
be performed on the actual land which has been transferred. See Asiamah v.
Adjabeng (1971) 2 GLR 171. The ceremony alone is sufficient to pass title. Non-
payment of the purchase price does not prevent title from passing. See Angmor v. Ter
(1943) 9 WACA 148. The performance of the ceremony is not used for gifts and
pledges and therefore, its performance establishes conclusively that the sale was
intended where there is doubt as to whether a transaction was a sale or gift/pledge.

2. Demarcation or inspection of boundaries

The boundaries of the land sold must be indicated to the purchaser and demarcated by
establishing boundary marks. This is done by, for example, planting special trees that
are used for that purpose. See Angmor v. Ter (1943) 9 WACA 148; Tutu v.Gogo
(1969) CC 76.

3. Publicity
Some persons other than the vendor and the purchaser must witness the ceremony of
conveyance. Publicity will prevent subsequent disputes on the existence or effect of
the transaction. See Golightly v. Ashirifi (1955) 14 WACA 676; Ankrah v. Ofori
(1974) 1 GLR 185. Because the requirement is for publicity, one or two persons will
ordinarily not be sufficient. See Norquaye Tetteh v. Malm (1959) GLR 368. This case
stated that wide publicity is necessary. There is no requirement for the witnesses to be
any particular category of persons.

4. The purchaser must be put in possession of the land

This element has sometimes been noted as a requirement for a valid sale. See
Donkor v. Asare; Tutu v. Gogo.

Pledge
A pledge also requires publicity and the indication of boundaries. It does not require a
ceremony for conveyance and in any event, not the same ceremony as that for a sale. Its been
noted that because a ceremony or a conveyance of sale signifies a total severance of the land
from the transferor, such a ceremony is unsuitable for a pledge.

Customary Tenancy
No formalities are needed for a grant of customary formalities. Its been noted that an
informal grant of the tenancy is effective for purposes of granting customary tenancy. See
Agbloe v. Sappor. In this case, Ollennu stated that an interest in the nature of a customary
tenancy came into existence by tacit consent of the parties. See Borketey v. Larkai (1953)
DC Land 52-55, 142; Yartey v. Construction & Furniture Ltd (1962) 1 GLR 86.

07:11:14
Tutorials
Q1
Issue 1
Whether or not Alhaji Ola had the right to attend the meeting and cast a vote
Principle:
An outsider can facility family meeting in event of dispute Okoe v. Ankrah.

27
Members must be notified on the appointment of head of family Lartey v. Mensah (1958) 3
WALR

Issue 2:
Whether or not the vote cast was valid

Issues 3:
Whether or not the alienation of family property was valid Allotey v. Abrahams.

Issue 4:
Whether or not the alienation of farmlands without concurrence of family head was valid
Adjei v. Appiagyei; Beyeeden v. Mensah.

In terms of land sold by principal family members, they must account Read the Head of
Family (Accountability) Act.

Q2:
Issues
1. Chief did not disclose all his properties before his enstoolment.
2. Whether the secret sale of land by Nana and his elders is lawful

The chief cannot be made to account Gyamfi v Owusu.

Sale by Nana and chief linguist is voidable Amanquanor v. Asare.

28