In this write up, I seek to examine some prominent cases of land law, the principles of land law expounded in these cases as well as the constitutional provisions in the 1992 Constitution which guarantee the rights and interests in land. Reference will also be made, where necessary, to the Lands Act, 2019. I begin by looking at the 1992 constitution, specifically the provisions which guarantee the rights and interests in land. Afterwards, I would also examine the Lands Act, 2020 (Act 1036) which also provides for the rights and interests in land.
The 1992 constitution of Ghana is deemed to be the highest law of the land by virtue of Article 1(2), which stipulates that, “This constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of its inconsistency be void.”
The Constitution provides for rights and interests in land in Chapter twenty-one (21). Article 257 (1) of the 1992 Constitution vests in the President, all public lands on behalf of and in trust of the people of Ghana. Clause 2 of this same article goes on to describe what “public lands” are. This provision states that, “public lands refer to any land which immediately before the coming into force of this constitution was vested in the government of Ghana on behalf of and in trust for, the people of Ghana for the public service of Ghana, and any other land acquired in the public interest for the purposes of the Government of Ghana before or on that date.” This definition is self-explanatory. This definition of public lands excludes all lands in the Northern, Upper East and Upper West regions of Ghana. This is made evident in Article 257(3) which stipulates that, “….for the avoidance of doubt, it is hereby declared that all lands in the Northern, Upper East and Upper West Regions of Ghana which immediately before the coming into force of this constitution were vested in the Government of Ghana are not public lands within the meaning of clauses (1) and (2)….”
However, this exclusion of lands in the regions, does not in any way bar the government from vesting in itself any land which is required in the public interests for public purposes. (See article 257(5)). This means that, where a parcel of land is to be used for the public interest, the state can cease ownership over that land in order to execute its duty.
Article 266(1) of the 1992 Constitution also prevents non-citizens of the country from attaining a freehold interest in land. Foreigners are however entitled to a leasehold interest under article 266(3) which lasts for a period of fifty (50) years. The 1992 Constitution of Ghana also vests stool lands in the appropriate stool on behalf of and in trust for the subjects of the stool in accordance with customary law and usage (emphasis is mine). This, in my opinion, is so because, customary law differs from one community to the other and so as to be able to easily solve disputes that may arise over ownership or interests in land, it is prudent that it is done in accordance with the customs applicable between the parties in dispute. Customary law is recognized as a source of Ghanaian law under the article 11(3) of the 1992 constitution as,
‘……. the rules of law which by custom are applicable to particular communities in Ghana.’
Ernest Kyere in his article Drawing the Dichotomy Between Customary Freehold and Usufructuary Interest Under the New Land Act, 2020 (Act 1036) posited that, conventionally, Ghana’s customary law had birthed four interests in land. These are the allodial title, freehold interest (further divided into customary law freehold and common law freehold), leasehold interest and lesser interests. He further went on to say that the perception, as was projected by the traditional cases was that, the customary law freehold interest was also known as the usufructuary interest and was used interchangeably by the local courts.
The current enactment which guides ownership of land, and its usage is the Lands Act, 2020 (Act 1036). This Act provides for six interests in land. Section 1 of the Act 1036 talks about the various interests one can possess in land. These are; allodial title, Customary law freehold, Common law freehold, Usufructuary interest , Leasehold interest and Customary tenancy.
But for the purposes of this discourse, we would be looking at the Allodial title, the Usufructuary interest and the customary law freehold in land.
Section 2 of Act 1036 defines the Allodial title as
a. highest or ultimate interest in land; and
b. held by the State, a stool, skin, clan, family or an individual; and may have been
acquired through compulsory acquisition, conquest, pioneer discovery and settlement, gift or agreement.
(The modes of acquisition of the allodial title would be further discussed subsequently)
This definition seems to be self-explanatory therefore there would be no further explanation given to it. Rather, its application in the various prominent land law cases will be made manifest subsequently.
As stated earlier, previously the customary law freehold and the usufructuary interest were used interchangeably. The new Land Act 2020, (Act 1036) appears to ramify the usufructuary interest and the customary freehold by the introduction of the two other interests in land.
Section 3(1) of Act 1036 describes the customary freehold as,
(1) The customary law freehold is an interest which arises from a transaction under customary law, and it is an absolute interest in land which is not subject to any proprietary obligations but is subject to the jurisdictional and cultural rights of the stool, skin, clan, or family which holds the allodial title; a) acquired when a person or group of persons, where the law permits, purchase land outright from the stool, skin, clan or family which holds the allodial title or acquired by reason of gift or inheritance; and b) of perpetual duration and is inheritable and alienable without the consent of or payment to the stool, skin, clan or family
Therefore, customary freehold interest is acquired when one engages in a customary sale of land, customary gift or a customary will. This interest can be acquired by a stranger or a member of the same stool (see Awuah v Adututu).
Section 5(1) of Act 1036 defines the Usufructuary interest as one which is, a) acquired in the exercise of an inherent right by a subject or a member of a stool, skin, family, clan or group which holds the allodial title through the development of an unappropriated portion of the land of the stool, skin, family, clan or group or by virtue of an express grant; or b) acquired through settlement for a period of not less than fifty years, with the permission of the holder of an allodial title by a non-indigene or group of non-indigenes or the descendants of the non-indigene or group of non-indigenes, except where the settlement is on agreed terms; and c) inheritable and alienable.
The usufruct per section 5(1) of Act 1036 seems to be acquired through the inherent right of member of a stool land.
Having looked at the rights and interests of individuals under the constitution and the new Land Act, 2020 (Act 1036), we can now look at the cases in land law which also reflect the principles of Allodial Title and the Usufructuary interest.
We would first begin by looking at the case of Ohimen v Adjei and the principles expatiated in that case and subsequently analyze other cases in the same respect.
In this case, the plaintiff sought a declaration of title, injunction, and trespass over a portion of land against the first and second defendants who were the heads of the Asona stool family and the occupant of the Agona Swedru stool of Asona. This case was an appeal against the decision of the Swedru Native Court B on the September 4, 1956, giving judgment to the defendant stool in an action by the plaintiff on behalf of his family against the stool to which the family belonged.
Ollenu J stipulated that “there are four principal means by which a stool acquires land which are:
a) Conquest and subsequent settlement thereon and the cultivation by subjects of the stool
b) Discovery by hunters or pioneers of the stool of unoccupied land and the subsequent
settlement thereon and the use thereof by the stool and its subjects.
c) Gift to the stool
d) Purchase by the stool”
According to him, each one of these methods required the sacrifice of lives of subjects or the expenditure of energy or contribution of money by subjects and use and occupation of the land by the subjects. In the case of Budu v Caesar which involved an action for a declaration of title to a certain land and claims for damages for trespass, Ollenu J (as he then was) stated inter alia that,
‘..As this proverb says, in the fight to secure the land and save the stool no person’s ancestor carried two swords, each carried one. In other words, the ancestors of all citizens including those of the occupant stool made equal sacrifices to win the land and preserve the land.’
This is quite a restatement of what was also said in the Ohimen v Adjei case. Thus, the pioneers of the stool in acquiring land expended some energy or made certain sacrifices to acquire the land.
Let’s begin by looking at the Allodial interest in land. The allodial interest or title in land is said to be the highest or absolute interest that one can have over a parcel of land. This interest can be held by a stool, individual or a family. However, in the native sect, land cannot exclusively belong to an individual. To affirm this, Chief Justice Rayner once stated that, ‘The notion of individual ownership is quite foreign to natives ‘ideas. Land belongs to the community, the village, or the family, never the individual.’
The allodial title holder also has a reversionary interest in land. That is, where one with usufructuary interest in land dies without successors, the possession of the land goes back to the allodial title holder, which is the stool. In the case of Ohimen v Adjei this principle was broadened in the sense that, ‘where an individual or family in possession abandons any portion of land in their possession for upwards of ten years, the stool can grant that particular portion to any other subject or to a stranger and such grantee will be bound to perform such services and pay such services as may be declared to be performed or paid annually in accordance with native custom.’
What this means is that if an individual who has acquired interest in land lawfully abandons the land for a period of up to ten years or even dies without having anyone to succeed the land, then ownership of the land reverts to the stool land which is the allodial title holder. For instance, in the case of Lokko v Konkofi, Lokko, the plaintiff gave a loan to Konklofi, the defendant who had pledged his portion of land as a security for the loan he acquired. Konklofi later defaulted in payment and Lokko obtained a writ of fi fa to claim the parcel of land, which was pledged to him, the defendant’s grandfather initially appropriated the land and later died, he had his sons to succeed him in the use of the land. Due to this, the stool could not claim ownership over that portion of land.
It was held that although there was no express alienation by the stool, there was, however a recognition by the stool of the occupant’s exclusive occupation of the land and that as soon as the court had ascertained that he and his family had had continuous occupation for forty years or over and that he had permanent cultivation upon the land, it would be decided that he and his family had appropriated that portion of the stool land to himself with the tacit consent of the stool and that it was no longer stool property but his own property.
This is, in a way, in contrast with the holding in Kuma v Kuma which was restated in the case of Awuah v Adututu. In the latter case, A obtained a grant for a parcel of land from K acting on behalf of the stool for an amount of 110 Euros. A appropriated the land left a small portion for K. K sold that portion of land to D and contended that the portion of land was not part of the land which was purchased by A. in the case the court restated the decision of Kuma v Kuma which said that the usufruct could no ripen to owner of land however long he has appropriated the land.
Similar stance was taken in the case of Ohimen v Adjei where the court was of the opinion that the undisturbed occupation of land for 15years could not ripen to ownership. The court, however emphasized on a stranger having occupied a parcel of land for such long a time. Could it be that subject could obtain this right as was seen in the case of Lokko v Konklofi? Or could it be upon the recognition of the stool and from the circumstances, that prolonged occupation of land can ripen to ownership of land without express alienation by the stool as was seen again in the case of Lokko v Konklofi?
Moving away from this, it should be noted that the stool cannot, while a portion of land is being occupied by a person or family lawfully, alienate that portion of land to another person without the express consent of the occupants of the land, (See Ohimen v Adjei , Awuah v Adututu and Golightly v Ashrifi.)
The next right a person can acquire over land is the Usufructuary interest. This right as was said in the case of Awuah v Adututu (supra) was defined as that right which was possessory or a determinable title and was a specie of ownership coexistent and simultaneous with the stool’s ownership. This right to land comes in various forms which would be explained in the subsequent paragraphs. One of the means of obtaining the usufructuary title is by the discovery of vacant land. This was stipulated in the case of Ngmati v Adetsia which concerned a dispute over land by the people of Yilo Krobo and Manya Krobo. In this case, it was held that one could obtain usufructuary interest upon discovery of a vacant land by subjects of the stool and when they subsequently settle thereon and reduce into occupation, the stool acquires the allodial title and the subjects acquire the usufructuary title.
Another means of acquiring usufructuary interest is by an implied grant from the stool. It is trite knowledge that a subject of a stool with evidence of appropriation on the land was enough to prove a usufructuary right and no grant was needed. This principle was established in the case of Bruce v Quarnor. In that case, P sought a declaration of title to land which was granted to N by then the occupant of the James Town stool. The court stipulated that, the plaintiff, by being a member of the royal family, was a subject of the stool and that by customary law, he had a right to occupy any vacant portion of land which he could do so either by express or implied grant. That even if he did not receive an actual grant over the land, such occupation or possession was a good title because he was a subject of the stool.
Finally, one can be given an express grant from the stool to attain the usufructuary interest over land as was seen in the case of Awuah v Adututu (supra).
The only issue is that where the grantee is a foreigner, thus, one who is not a subject of the stool which holds the allodial title over land, he or she is only limited to the parcel of land that is apportioned to him. This was also indicated in the case of Awuah v Adututu where the court held that the usufructuary title which A had acquired placed him in the same position as a subject of the stool except that in the case of farming or building on land, the title of a stranger-grantee was limited and well defined area demarcated and granted to him whereas a subject of the stool was not so limited to the area he could occupy. This view clearly contrasts the rights of strangers and subjects of a stool when it comes to the usufructuary interest of land.
This same case however gives both strangers and subjects the right to take action where a stool attempts to alienate a parcel of land which they have lawfully possessed to another person without the consent of the foreigner or the subject. Justice Abban, once stated that, ‘the subject of the stool or stranger-grantee (alien who has obtained grant over land) could maintain an action against even the stool in defense of the usufructuary title and might impeach any disposition of such interest effected against his consent…. ‘
It is also to be noted that this usufructuary right can be transferred by a subject who is in possession of such right to a fellow subject without the consent of the stool. In Awuah v Adututu, the court held that the usufructuary title holder was regarded as the owner of the area of land reduced in his possession and he could alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the consent of the stool.
Notice should also be taken of the fact that the usufruct cannot transfer allodial title to an individual without the consent of the stool. Absolute ownership of land cannot, without the consent of the stool, be given to another person by the usufruct. This was seen in the case of Ohimen v Adjei, where it was held that the usufructuary right holder, without the consent and concurrence of the stool, could not dispose the absolute ownership of land to strangers.
The usufructuary right to land even though it is perpetual (see Awuah v Adututu), can be lost. How is this possible? When one examines the case of Awuah v Adututu, it is evident that the successors failed to acknowledge the superior title of the stool.
In Ohimen v Adjei, the stool is said to hold the allodial title in land as trustee for and on behalf of its subjects and the subjects are entitled to the beneficiary or usufruct interest thereof and must serve the stool. Meaning that where the usufructuary right holder fails to serve the stool, he or she loses his or her possessory right over the land.
Conclusively, there has been a considerable examination of the allodial and the usufructuary interests in land by analysing the 1992 Constitution of Ghana, the new Land Act, 2020 (Act 1036) and some of the prominent land law cases.