GHANA INSTITUTE OF MANAGEMENT AND PUBLIC

ADMINISTRATION (GIMPA)

FACULTY OF LAW

STUDENT NUMBERS:

214005364
214005224
214005372
21400

COURSE NAME:

DATE:

LAW OF IMMOVABLE PROPERTY I

26TH NOVEMBER, 2014

TUTORIAL QUESTIONS NUMBERS 12 AND 13

QUESTION 12

In Mansu v. Abboye, the court held, inter alia, that a subjects

usufructuary interest in land is potentially perpetual. What do
you understand by this statement?
A usufruct is the next highest customary land law interest after the allodial interest
which is the paramount or absolute interest in land under customary law. The
usufructuary interest which is also referred to as the customary freehold or the
determinable interest is carved out of the allodial interest.
A usufructuary interest can be acquired either by implied or express grant.
Implied grant is the inherent right of any member of the community or subject of
the stool to occupy any vacant virgin communal land. Such a member acquires the
usufructuary interest in the land occupied. In Adjei v Grumah [1982-83] 2 GLR
985, the Court of Appeal stated that, it is the principle of customary law that a
subject of the stool acquires a determinable or usufructuary title in the stool land
he occupies
Express grant is where the allodial interest holder makes an express grant of a
clearly demarcated portion of its land to a member of the community, a subject of
the stool or a stranger. Where an express grant is made to a stranger he is bound to
the demarcated boundaries of the land granted him. But a stool subject who has
been granted land may extend the boundaries of the granted land so far as the land
is not cultivated or occupied by any other person. In Awuah v Adututu [1987-88] 2
GLR 191, the Court of Appeal held that the usufructuary title which a strangergrantee acquired placed him in the same position as a subject of the stool except
that in the case of farming as well as building land, the title of a stranger-grantee
was limited to a well-defined area demarcated and granted to him, whereas the
subject of the stool was not so limited to the area he could occupy.
In Mansu v. Abboye, the court highlighted the cardinal incidents of the
usufructuary interest being exclusive possession and enjoyment of his portion of
land and the stools inability to capriciously divest his interest. Another cardinal
incident is that the stool cannot alienate that portion of the land to any other person
without the prior consent and concurrence of the usufructuary. The court rule along
the same principle in Bruce v Quarnor [1959] GLR 292 where the plaintiff had
effective possession of the land and the grantor was acting unlawfully by granting
the original land to another person without the consent of the original grantee.

Woodman asserts that the customary freehold in a land effectively extinguishes the
allodial interest in the land. This suggests that once acquired, no other person has
the right to take over the land from the usufructuary holder. It is in the light of the
above, that the Court in Mansu v Abboye, held among other things that a subjects
usufructuary interest is potentially perpetual. Potentially perpetual suggests that on
the face of it, the subjects usufructuary interest cannot be taken over by the stool.
That the interest has the potential of remaining with the subject forever. Thus, the
subject is in full control over the land and uses the land in a manner that is not
subject to the control of the stool.
Kludze also considers this perpetuity principle differently with regards to Ewe law
by indicating that once an individual of a family occupies a particular portion of
the family land, he can remain in such occupation for life because the interest is
indeterminable and cannot be determined even by the family.
However, it should be noted that though the usufructuary may seem to enjoy a lot
of rights, this is subject to certain conditions. Thus, potentially perpetual also
means that the interest can be lost upon the occurrence of certain conditions. The
usufructuary holder, under customary law is required to acknowledge the title of
the allodial owner and/or perform certain customary duties to the allodial owner. In
the absence of this a usufructuary may lose his interest.
Additionally, usufructuary interest can be lost upon compulsory acquisition of the
land which is done in accordance with the State Lands Act, 1962 (Act 125). This
was highlighted in the cases of Omaboe III and Others v Attorney-General &
Lands Commission [2005-2006] SCGLR 579 and Memuna Moudy and Others v
Antwi [2003-2004] SCGLR 967.
The courts also spelt out other instances through which a usufructuarys interest
may be lost apart from the states compulsory acquisition of the land which a
person has usufructuary interest. These include the subjects prior consent and
concurrence to the stool to alienate the land, abandonment by the subject and
failure of the subjects successors to occupy the land.
In conclusion, the rights acquired by the subject as a usufructuary in the stool land
have the potential of subsisting forever with the subject as the stool itself cannot do
anything with the land without the consent of the subject. This perpetual rights
therefore, are dependent on certain factors which have been discussed above.

QUESTION 13

Can a stool subject claim the usufructuary interest in virgin

forest land he had expended no labour on?
Usufructuary interest in land can be acquired either by implied or express grant.
On the basis of an implied grant any member of the community or subject of the
stool has an inherent right to occupy any vacant virgin communal land. Such
occupation is presumed to be upon the grant of the allodial owner. A member who
does this acquires the usufructuary interest in the land occupied. A stool subject is
free to occupy any vacant stool land so far as it has not been occupied by another
or no labour has been expended on it by another stool subject.
By custom, a subject who requires land for farming need not obtain express
permission of the stool to occupy vacant stool land this was highlighted in the case
of Oblee v Armah [1958] 3 WALR 484. The case also states that by custom,
subjects are not rationed in the amount of land they can occupy and farm. The only
limiting factors include the extent of land which the other subjects have
appropriated to their use by their labour.
Additionally, in Thompson v Mensah [1957] 3 WALR 240, the court highlighted
that, every subject of a stool is entitled to occupy a portion of the stool land
without actual permission. Such occupation and enjoyment of the usufruct imports
a recognition of the title of the stool as owner. Whether the subject obtained the
usufruct in stool land by original occupation, or by gift, sale, or other form of
transfer from another subject or grantee of the stool, his title will be good even
though his original entry or transfer to him was without previous consent and
concurrence of the stool. This case shows that original occupation by a stool
subject can be a means of acquisition of the usufruct and is acknowledged as good
title even though his original entry was not with previous consent and concurrence
of the stool.

The court in Bruce v Quarnor [1959] GLR 410 said that a subject of the stool is
entitled to occupy any vacant portion of the land of the stool. This he can do either
on actual or implied grant. Even if the possession of the land was not upon actual
grant, the possession and occupation as a subject of the stool is good title and will
take precedence over any grant which the stool may purport subsequently to make

of any portion of that land. The court went further in this case to say that by
customary law, a stool has no right to grant land which is in the occupation of a
subject to anyone subject or stranger, without the consent and concurrence of the
person in possession. This is similar to one of the cardinal incidents or the rights of
a usufructuary highlighted in Mansu v Abboye [1982-83] GLR 1313; that the stool
cannot alienate the portion of land which the stool subject has usufructuary interest
in to any other person without the prior consent and concurrence of the
usufructuary.
Therefore, per Bruce v Quarnor, a stool subjects occupation of any vacant portion
of stool land whether upon implied or express grant means the subject now has
usufructuary interest in that land.
Furthermore, an express grant is where the allodial interest holder can make an
express grant of a clearly demarcated portion of its land to a member of the
community, a subject of the stool or a stranger. The case of Oppong Kofi v
Attibrukusu [2011] 1 SCGLR 176, spoke on this principle that where members of
a totally different family migrate from a different land and are given land on which
to settle, the settlers are confined to live within the boundaries of areas given to
them to settle on. If such a settler takes land outside the settlement area, he
becomes a trespasser of the area he has taken without authority.
Inasmuch as a stool subject can expressly or impliedly have usufructuary interest
in stool land, he/she cannot claim the usufructuray interest in virgin forest land he
had expended no labour. This is because such lands are considered not to be in
actual possession by the usufruct. To expend labour on the virgin land means that
the grantee has taken steps to reduce the virgin land into his actual possession
through occupation or development. Therefore, a subject who fails to actually
possess the virgin land, would not be considered to have gained the usufruct right
over the land. In the case of Adjei v Grumah [1982-83] 2 GLR 985, both the High
Court and the Court of Appeal unanimously ruled that the stool had the right to reenter the stool land because the plaintiff failed to develop it within a reasonable
time after the land had been granted to him. By not developing the land, the
plaintiff was effectively never in actual possession of the virgin forest land. He
could not claim his usufruct in the land.
In the light of the above, it is therefore important to stress that a stool subject
cannot claim usufructuary interest in virgin forest land which he had expended no
labour on because he has no physical control over such a land.