UNIVERSITY OF GHANA

IMMOVABLE PROPERTY
TUTORIAL QUESTION 3

AMANDA DOREEN JAMES-OCLOO,10466604

This case seeks to ascertain the validity of the grant given to Ayisi by the chief of the Banko stool. The
issues arising out of the case include;

1. Whether the transfer of the land by the chief together with his linguist was a valid transfer.
2. Whether the document executed by Nana Mensah as evidence of the indefeasible title was vital.
3. Whether the evidence of mango, orange and odum trees on the land will give any indication of
ownership of the land to Ayisi.
4. Whether Ayisi can sell the odum trees to the Logs and Lumber Limited.
5. Whether Ayisi can validly transfer the interest of the land to Olufemi, a non-Ghanaian.

Analysis

1. For the first issue, the principle is that for a valid transfer of a stool land, the transfer must be
done by the occupant of the stool (the chief) and his linguist together with the consent and
concurrence of other principal elders of the stool. The case in point is Allotey v Abrahams
where it was held that a conveyance executed by a stool occupant or the head of a family and
the linguist and some Other principal elders of the stool or family is effective if it purports to be
executed with the concurrence and consent of those members of the stool or family whose
consent is, by custom, required. Such a conveyance may be avoided, however, if the purported
consents and concurrences had not been obtained, although in this case the burden of proving
lack of essential consents falls upon the persons-aggrieved and they must act timeously or they
may be estopped from denying the validity of the deed. Applying the principle to the facts of the
case, the transfer of the land by the chief with his linguist in the absence of some other principal
elders was voidable and can only be set aside at the instance of the stool if the principal elders
of the stool act timeously.
2. For the second issue, the principle is that documents are not of the essence in customary
matters. The case in point is Awuah v AduTutu where it was held that documents which were
prepared after a grant according to custom served merely as documentary evidence of the grant
and did not alter the customary nature of the transaction. Applying the principle, the document
executed by Nana Mensah is not a source of strength Ayisi can use; it is just mere evidence.
3. For the third issue, the principle is that the presence of economic trees on a land is prima facie
evidence that the land is not unoccupied and is that of which someone has acquired a usufruct
on. The case in point is Norquaye-Tetteh v Malm where it was held that by customary law, the
existence of economic trees (such as the mango) on stool land is prima facie evidence of
possession of the land by a subject or a grantee, and the stool cannot make a valid grant of land
on which such trees exist. Applying the principle, the presence of the mango, orange and odum
trees was evidence that a subject was in possession of the land and once a subject has already
acquired a usufruct, the occupant of the stool cannot transfer the land in question to another
subject. Awuah v AduTutu
4. For the fourth issue, the principle is that the right to grant timber trees to a Timber company is
by the government. Section 1 of the Concessions Act, 1939, CAP 136 states that “An agreement
 by which a right, an interest or a property in, to or over land, in or to minerals, metals, precious
stones, timber, rubber or any other products of the soil in or growing on a land, or the option of
acquiring that right, interest or property, purports to be granted by a citizen to a person who is
not a citizen is void unless it is in writing.” Applying the principle, the sale of the odum trees by
Ayisi to the Logs and Lumber Limited was void.
5. For the fifth issue, the principle is that a foreigner cannot acquire an assignment of a
usufruct/freehold interest. Article 266(1) of the 1992 Constitution of Ghana states that “(1) No
interest in, or right over, any land in Ghana shall be created which vests in a person who is not a
citizen of Ghana a freehold interest in any land in Ghana. Also, Clause 2 of the Article states that
“(2) An agreement, deed or conveyance of whatever nature, which seeks, contrary to clause (1)
of this article, to confer on a person who is not a citizen of Ghana any freehold interest in, or
rights over, any land is void. Applying the principle, Ayisi cannot under the laws of Ghana sell his
usufruct to Olufemi, a Nigerian.

Ayisi cannot validly keep the interest to the land because the land was not a vacant communal land
therefore according to the “Nemo dat quod non habet rule”; there was no title to the land the chief
gave out to him. Also, Olufemi can go and see the rightful owner of the land, Amoako to acquire
leasehold of not more than fifty years according to Article 266(4).