THE ARTICLE 267(5) DEBATE: PROHIBITION OR NO PROHIBITION? By Godslove Bogobley

Land-related legal issues have plagued our courts for over a century. The development of our land law has indicated attempts to protect, limit or regulate transactions involving land to ensure that citizens enjoy the incidents of land ownership as much as possible.

The 1992 Constitution upon its coming into force has gone a step further. As my learned friend Donkor Selikem notes, the Constitution through substantive and procedural limitiations, has reclaimed land over which foreigners had a freehold interest. In fact, as at 22nd August, 2019, no foreigner can hold a freehold interest over any land in Ghana. This is by virtue of Article 266 of the !992 Constitution.However, in attempting to regulate land transactions, the 1992 Constitution has brought controversies of its own. One of these controversies is the debate regarding the true interpretation of article 267(1) and (5).

The learned jurist, Mr Kwame Gyan has put forward a position on this debate. This position has however been criticized by my learned friend Selikem Donkor. The aim of this essay therefore is to examine both views and arrive at a conclusion regarding the debate. Are either of the positions correct, or there is a different construction that can be put on article 267(5)?

What does Article 267(1) and (5) say?
Before beginning my examination of the two positions, it is prudent to reproduce the relevant provisions of the 1992 Constitution.

Article 267(1) provides that “All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage.”
Clause 5 of the same article provides that “Subject to the provisions of this Constitution, no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest howsoever described.”

The Opposing Views
Mr. Kwame Gyan recognizes that transactions in stool lands are still regulated in accordance with customary law. The learned jurist then goes on to argue that article 267(5) neither imposes a blanket prohibition on the grant of customary freeholds in stool lands, nor invalidates existing customary freeholds, where the holder of such an interest is a subject of the stool. He gives three reasons for this position:
i. The aim of article 267(5) is to ensure inter-generational equity by prohibiting alienation of land which is detrimental to future generations of stool subjects. Grant of customary freeholds to subjects of the stool ensures that later generations will not lose access to this proprietary interest in the land since they will acquire the interest by inheritance.

ii. The key term in article 267(5) is “shall be created”. This does not apply to freeholds of stool subjects because the right of the subjects to freehold interests is inherent and not created. Thus, the prohibition cannot cover such interests.

iii. Article 267(5) should be read and interpreted in the light of Article 267(1) of the Constitution and subject to customary law and usage , which recognizes that the subjects of a stool and for that matter a member of a family is entitled as of right to a portion of vacant stool or family land and upon such occupation the subject or member acquires the customary freehold.

My learned friend Selikem entirely disagrees with the views put forward by Mr Kwame Gyan. According to him, when interpreted correctly, article 267(5) has the effect of nullifying all rights to a freehold interest, including the ones inherent in stool subjects. This is because, even the “inherent” rights are in fact created by customary law and therefore do not escape the net of article 267(5).

What Do the Provisions Really Say?
Upon the assessment of the two opposing views, it is clear that the bone of contention is the interpretation of article 267(5), especially the words “shall be created” and this is therefore the issue I would seek to address.

I find myself in a bit of an intellectual dilemma. This is because while I find Selikem’s analysis regarding the relationship between the implied grant and the creation of the freehold interest to be persuasive, I disagree with his conclusion regarding the effect of the prohibition found in article 267(5).

Article 267(5) reads “…no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest howsoever described.” To paraphrase, this provision prohibits the creation of any title whatsoever that confers on the holder the power to create a freehold interest.

To determine whether the rights of stool subjects to a freehold interest falls under the above stated provision, a question needs to be answered: what exactly is the nature of this right of stool subjects? There is an abundance of authorities to the effect that the right of subjects to a freehold interest is inherent.

What then does the word “inherent” mean? “Inherent” is defined in the Cambridge English Dictionary as “existing as a natural or basic part of something”. The Oxford English Dictionary defines it as “existing in something as a permanent, essential or characteristic attribute” [emphasis mine]

Applying these definitions, one could describe the inherent right to a freehold interest as a permanent, essential and natural attribute of being a subject to a stool. Thus, this right cannot be “created” and hence is outside the purview of article 267(5).

My learned friend Selikem however contends that this is a rather simplistic view of the issue. According to him, this view is based on the mistaken presumption that the “creation” referred to in article 267(5) is creation by the stool or stool actors. He goes on to argue that this creation can also be done by statutory law, common law, or customary law. Since the inherent right is created by customary law, it is inconsistent with article 267(5) and therefore void.

It is with this conclusion that I respectfully disagree. Selikem is in effect arguing that article 267(5) acts retrospectively to nullify the inherent right to a freehold interest that was “created” by customary law before the coming into force of the 1992 Constitution. This interpretation is, in my view, quite problematic. Assuming this interpretation were accepted, a necessary implication would be that all freehold interests created as a result of the exercise of these rights would be extinguished. This is because the existence of a freehold interest is predicated on the grant of such a right, whether actual or inherent. If there is no right, then the freehold cannot exist.

A further implication would be that all the leases given by the holders of the freehold interest would also be void. Alienation is one of the incidents of the freehold interest. If such a right has been extinguished and by extension the freehold itself, then it stands to reason that no valid alienation can be granted under a right that does not exist. This follows the maxim nemo dat quod non habet.

I do not believe that it was the intention of the framers of the 1992 Constitution to bring about such a drastic change that would have catastrophic consequences on our landholding regime. It is therefore my humble submission that the “creation” of the right in article 267(5) refers to the creation of such rights after the coming into force of the 1992 Constitution, and does not affect the rights that predate the Constitution. The words “shall be created” connotes a futuristic sense and should be interpreted as such.

Following this interpretation, the obvious conclusion is that the inherent rights of stool subjects to a freehold interest are not affected by the prohibition in article 267(5). This is because even if they were “created” by customary law, this creation occurred before the 1992 Constitution came into force.

Even in the light of this argument, Selikem still argues, rather brilliantly, that regardless of the existence of these inherent rights, exercising them would result in the creation of a freehold, which is inconsistent with the provision in question. He states that “From this, we have reached a conclusive decision that even with respect to implied grants [emphasis mine], there is still a creation of a freehold interest. And once there is a creation, it goes antithetical to the legal implications of Art. 267(5), thus is void.”

Once again, I respectfully disagree. The wording of Article 267(5) cannot, prima facie, be said to prohibit the creation of freehold interests. As Selikem himself admits, the right or power to create a freehold interest can exist independently of the freehold interest itself. According to him, it is the exercise of the right by occupancy of the land that brings the freehold into existence.

In my view, the language of Article 267(5) does not prohibit the creation of the freehold interest itself, but rather the creation of the right to create a freehold interest. In other words, it is the conferring of a title vesting the power to create a freehold interest which is forbidden, not the existence of a freehold interest per se. This is obvious from the words used. The provision reads “…no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest howsoever described”.

This distinction may appear irrelevant, but is paramount to the current discussion. If the creation of the freehold interest is prohibited, then the existence of the right to create a freehold does not matter. However, if it is the right that is prohibited, the situation changes. This is because, if a particular kind of right to create a freehold falls outside the prohibition, then the right-holder can go ahead to create the freehold interest without falling foul of the prohibition.
It is exactly this kind of situation that the stool subjects find themselves in. As I have already demonstrated, the inherent right of stool subjects to create freehold interests falls outside the purview of Article 267(5). Since it is rights that are prohibited, and not the freehold interest itself, the stool subjects can therefore “bring their freehold interest into reality” without falling foul of article 267(5).

In conclusion, I put forward three main points in this essay:
i. The rights of the subjects of a stool to a freehold interest are inherent and cannot be created. Thus, they do not fall within the prohibition imposed by article 267(5).

ii. Even if these rights are created by customary law as Selikem Donkor suggests, this creation predates the 1992 Constitution. Since article 267(5) cannot be said to have a retrospective effect, then the rights of the subject of the stool are unaffected by this provision.

iii. Contrary to Selikem’s claim, the existence of freehold interests cannot be said to be prohibited by article 267(5). A prima facie examination would suggest that the provision just prohibits the creation of the right or power to create a freehold interest, and not the creation or existence of the freehold interest itself.