Conveyance Theory Update

Compiled by ZO—kindly crosscheck
Conveyancing Theory overview.
Gift
Elements of a Valid Gift
A gift is a voluntary transfer of property without the exchange of consideration. In other words, a
gift is something that is given for free and not as payment for something else. To make a valid gift,
there are four key elements that must be satisfied:
1. The grantor must have title to the property. This means that the grantor must own the
property and have the legal right to give it away. For example, in Korkor Akunsah v Naa
Ashalley Botchway, the court held that the plaintiff could not claim a gift of land from her
father because he did not have title to the land.
2. The grantor must have the intention to make the gift. This means that the grantor
must intend to transfer the ownership of the property to the donee without expecting
anything in return. For example, in Kwantreng v Amassah, the court held that there was
no valid gift of land because the grantor did not intend to part with his interest in the land.
Similarly, in Sese v Sese, the court held that there was no valid gift of money because the
grantor intended to use it for his own benefit.
3. The property must be delivered to the donee during the lifetime of the grantor.
This means that the grantor must hand over the possession or control of the property to the
donee or to someone on behalf of the donee. For example, in Birch v Treasury Solicitor,
the court held that there was no valid gift of shares because the grantor did not deliver the
share certificates or transfer them into the donee's name before his death.
4. The donee must accept the gift. This means that the donee must agree to receive the
property and become its owner. For example, in relation to customary law gifts, there must
be evidence of the payment or delivery of an 'aseda,' which is a customary token of gratitude
or acknowledgment. For instance, in Abdul Rahman v Baba Lardi, the court held that
there was a valid gift of land because there was evidence of payment of 'aseda' by the donee.
Conversely, in Anaman v Eyeduwa, the court held that there was no valid gift of land
because there was no evidence of payment of 'aseda' by the donee.
Effect of a Valid Gift
If all these elements are met, there is a valid transfer of title at common law. This means that the
donee becomes the legal owner of the property and can deal with it as he or she wishes. For
example, in Jacqueline Asabre v Johnson Aboagye, the court held that there was a valid gift
of land, and the donee had full rights over it.
Consequences of Non-compliance with Elements 3(acceptance of gift) and 4 [its
delivery during the lifetime of the donor).
If either element 3 (delivery) or element 4 (acceptance) is not met, there is no valid gift at
common law. This means that the grantor remains the legal owner of the property and can revoke
or change his or her mind about giving it away. However, equity may intervene and perfect an
imperfect gift in some situations.
Equity may perfect an imperfect gift in three situations:
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1. The Rule in Strong v Bird(absence of delivery): This rule applies when there was an
intention to make a gift but delivery was not made before death, and after death, it is shown
that the grantor appointed the donee as executor or administrator of his or her
estate. An executor or administrator is a person responsible for managing and distributing
the estate of a deceased person according to his or her will or the law. In this situation,
equity will treat the appointment as delivery and perfect the gift. For example, in
Day v Harris, the court held that there was a valid gift of money because the grantor
appointed the donee as executor and left him all his personal estate. Similarly, in Re
Stewart, the court held that there was a valid gift of shares because the grantor appointed
the donee as executor and left him all his residuary estate.
2. A Donation Mortis Causa: This is a gift made by a person who is in imminent danger of
death and who intends for the gift to take effect only if he or she dies from that cause. This
type of gift is different from an inter vivos gift because it is conditional on death and can be
revoked before death. It is also different from a testamentary gift because it does not require
a will or probate. To make a valid donation mortis causa, three elements must be met:
 The grantor must have an intention to make a gift that is conditional on death.
For example, in Cain v Moon, the court held that there was a valid donation mortis causa
of money because the grantor said to the donee, "If I die, you will find £200 at my bankers;
it is yours," and then died from an illness shortly after.
 The property must be delivered to the donee or to someone on his or her behalf.
For example, in Sen v Headley, the court held that there was a valid donation mortis causa
of land because the grantor handed over the title deeds to the donee and said, "If anything
happens to me, this property is yours," and then died from an accident shortly after.
 The grantor must be in imminent danger of death from a specific cause. For
example, in Re Craven's Estate, the court held that there was no valid donation mortis
causa of money because the grantor was not in imminent danger of death when he gave a
cheque to the donee and said, "This is yours if I pop off," and then died from an unrelated
cause several months later.
3. Proprietary Estoppel: This is an equitable doctrine that prevents a person from going back
on his or her word or promise when another person has relied on that word or promise to
his or her detriment. In the context of gifts, proprietary estoppel may apply when:
 The grantor has made a clear and unequivocal promise to make a gift of property
to the donee. For example, in Gillett v Holt, the court held that there was a valid
proprietary estoppel claim because the grantor promised the donee that he would inherit the
farm and work on it for his whole life.
 The donee has relied on the promise to his or her detriment. For example, in Pascoe
v Turner, the court held that there was a valid proprietary estoppel claim because the donee
had given up his job and made substantial improvements to the property in reliance on the
grantor's promise.
If these conditions are met, the court may enforce the promise and treat it as a valid gift, even if
the legal requirements for a gift are not fully satisfied.
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Mortgage
A mortgage is a legal agreement that allows a creditor to take a property as security for a loan. The
person who borrows the money is called the mortgagor, and the person who lends the money is
called the mortgagee. A mortgage does not transfer the ownership of the property to the mortgagee
but only grants them the right to sell it if the mortgagor fails to repay the loan (defaults on the
mortgage agreement). The mortgagor still retains the right to redeem the property by paying off
the loan, including any interest or charges. This right is known as the equity of redemption and
remains in effect until the mortgagee obtains a court order for foreclosure.
Nature of a Mortgage: Section 1(1) of the Mortgages Act 1972,: It is a contract charging
immovable property as security for due repayment of a debt and any interest accruing thereon or
for the performance of some obligation for which it is given.
Black’s Law dictionary: A mortgage is a lien against property that is granted to secure an
obligation(such as debt) and that is extinguished upon payment or performance according stipulated
terms.
Barclays Bank v Sakaru: Mortgage is not a conveyance but a charge on immovable property to
secure an obligation and possession remains with the mortgagor.
X’tics of Mortgage
a) It is a security for a debt or the performance of obligation.
b) It can be redeemed.
If the mortgagor breaches the terms of the mortgage agreement, such as by defaulting on payments
or failing to insure or maintain the property, the mortgagee has two options:
 They can sue the mortgagor for breach of contract and seek damages or specific
performance.
 They can exercise their rights under the Mortgages Act 1972, which grants them various
powers to recover their money.
Under the old law, before 1973, a mortgage was considered a transfer of ownership rather than a
charge over the property. As a result, the mortgagee had an automatic right to take possession of
the property as soon as the loan was made, without the need for any breach or notice. The
mortgagee also possessed full rights over the property until the debt was paid off.
RIGHTS OF A MORTGAGOR
1. Contractual right to redeem the mortgage and the equity of redemption.
The mortgagor has the right to recover or reclaim any property or the performance of
the act secured by the mortgage on the date specified on the mortgage contract.
Khoury v Mitchual
2. No clogs on Equity of Redemption. The mortgagor’s right to redeem the mortgage
cannot be clogged or fettered by the Mortgagee because of the rule against
irredeemabiity” collateral advantage and postponement of redemption.
Collateral damage is where the mortgage includes terms that give the mortgagee
some advantage in addition to the principal sum and interest. May or may not be
enforceable depending on how fair it is and whether it may constitute a clog on the
equity of redemption. If there is inequality in the bargaining powers of the mortgagee
and mortgagor or there is some undue influence on the mortgagor it is considered a
clog. However, where the collateral was created by businessmen of equal bargaining
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power it shall be enforceable unless proven to be unconscionable. If it will not be
enforced while the mortgage is still in force it will not be enforceable after redemption.
Noakes v Rice...
POSTPONEMENT of REDEMPTION: this may only be valid so long as the

transactiion as a whole is not oppressive of unconsciounable. However where the
postponement renders the right to redeem illusory or the period too long it will be
considered a clog on the equity of redemption. Knightsbridge Estate Trust v
Bryne: forbearance by the mortgagees not requirng earlier payment was fair teh
contractual right
3. The mortgagor has the capacity to redeem the mortgaged property. The
mortgagor or his agents or assigns are entitled to redeem the mortgaged property (S.
24(1) of NRCD 96 the mortgagor is any person from time to time deriving title
through the original mortgagor or entitled to redeem the mortgage according to his
interest in the property mortgaged.
4. Termination of the Mortgagor’s right to redeem. Before NRCD, forclusure
terminated redemtion but Forclosure not abolished under s. 18(9) of NRCD 96.
Currently the only permissible means of terminating the Mortgagor’s right to redeem
is through judicial sale (S. 18(9) of NRCD 96. Or by 12 years of adverse possession
under the Limitations Act.
5. Right to Possession of the Mortgaged Property S.12 of NRCD 96 A Mortgage
is only and encumbrance and does not give the Mortgagee the right to possession or
of the legal title to the property.
While in possession, the Mortgagor has the power to grant leases. But it is not binding
on Mortgagor unless he consented to the granting of the lease or unless the lessee
took his interest as a purchaser without notice of the mortgage.
6. Right to Redeem before the contractual date: Even though NRCD 96 is silent on
the matter, there is nothing that prevents the Mortgagor to redeem before the
Mortgage before the contractual date of redemption.
RIGHTS OF A MORTGAGEE
1. RIGHT TO POSSESSION OF TITLE DEEDS S.10(1) of NRCD 96. Limited only to
documents that relate exclusively to the mortgaged property. He is under duty to keep
them whole, uncancelled, and undefaced. He would be held liable in an action for
damages when he willfully or negligently fails to keep them safe.
2. RIGHT TO POSSESSION OF MORTGAGES PROPERTY. S17 of NRCD 96: The
mortgagee has the right to enter into possession of the mortgaged property where
there is a failure to perform an act or acts secured by the mortgage. Where the
mortgagor defaults in respect of the payment of the principal or interest secured by
the mortgage, the mortgagee has the right to possession and can exercise it after
giving the mortgagor 30 days’ notice in writing or a longer period ad mutually agreed
by the parties.
3. POWER OF SALE. He has the right to sell the property and use the money realized
from the sale to pay off the debt owed. S.18 of NRCD 96 this can be done through
judicial sale--- an application of the court to sell the mortgaged property.
4. RIGHT TO THE APPOINTMENT OF THE RECEIVER. S.16 of NRCD 96: the
Mortgagee can apply to the court for the appointment of a receiver to manage the
mortgaged property where there is a default by the mortgagor. The receiver may take
possession of the property, collect income and make repairs.
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5. RIGHT TO SUE THE MORTGAGOR ON HIS PERSONAL COVENANT: He can look
at the personal liability of the mortgagor for the settlement of the mortgage debt.
6. RIGHT TO CONSENT TO A TRANSFER OF MORTGAGED PROPERTY. Where the
mortgage contains an agreement that the mortgagor shall not dispose off the land (a)
by a particular form of transfer (b) by a transfer without the consent of writing of the
Mortgagee, the agreement shall be noted in the register and transfer by the mortgagor
would be invalidated by the agreement and shall not be registered until the written
consent of the Mortgagee has been verified in accordance with s. 164 of Act 1036.
REGISTRATION OF MORTGAGEES.
REGISTRATION AND DISCHARGE OF MORTGAGES IN GHANA
A mortgage is a legal contract that uses immovable property as security for the repayment of a debt
or the performance of an obligation. In Ghana, mortgages are governed by the **Mortgages Act,
1972 (NRCD 96)** Act, 2006 (Act 1036)**. These acts provide for the nature, creation, effect,
registration and discharge of mortgages.
According to section 3 of NRCD 96, a mortgage must be evidenced by a writing signed by the
mortgagor or their authorized agent. A mortgage that is not in writing is not enforceable, unless it
is excused by equity or another enactment.
According to section 148 of Act 1036, a mortgage must also be registered with the Land
Registration Division of the Lands Commission of Ghana. The registration process depends on
whether the land is in a registration district or not. If the land is in a registration district, the
mortgage must be registered under Act 1036. A mortgage that is not registered under the relevant
act has no effect.
The importance of registering a mortgage was illustrated in the case of Asare v Brobbey. In this
case, the first respondent sold the house of the appellant to the third respondent under a power of
sale contained in a mortgage deed. However, the mortgage deed was not registered at the time of
the sale. The court held that the mortgage deed was ineffective and invalid to confer rights and
obligations on the parties. Therefore, the first respondent did not have the power of sale and the
sale was null and void.
DISCHARGE OF MORTGAGES
A mortgage is discharged when the debt or obligation secured by it is satisfied or
cancelled. There are four methods of discharging a mortgage in Ghana:
1. By performance and acceptance: This is when the mortgagor performs all acts secured by
the mortgage and pays sufficient compensation where necessary, and the mortgagee accepts this
as full discharge (section 2 of NRCD 96).
2. By court order: This is when a court orders redemption of the property upon an application by
the mortgagor or any other person interested in redeeming it (section 20 of NRCD 96).
3. By written discharge: This is when the mortgagor who redeemed the property obtains a
written discharge from the mortgagee and registers it without paying stamp duty under section
22(1) of NRCD 96.
4. By cancellation: This is when the instrument of discharge is registered and the Land Registrar
cancels the mortgage instrument under section 153(4) of Act 1036.
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Judicial Sale of a Mortgaged Property under NRCD 96
NRCD 96 is an act that provides for the law relating to mortgages and for related matters in Ghana.
NRCD 96 is that it enables the mortgagee (the lender) to recover the amount owed by the
mortgagor (the borrower) in the case of default through a judicial sale. A judicial sale is a sale of
the mortgaged property by the court or under its supervision.
According to section 18 of NRCD 96, the power of sale is exercisable through a judicial sale under
the following conditions:
I. A judicial sale can be held by a public auction unless the mortgagor and all subsequent
encumbrances (other creditors) agree to a private sale and the terms of the sale are approved
by the court (section 18(3) NRCD 96.
II. The mortgagor, as well as the mortgagee who requests for a judicial sale and also other
encumbrances, may purchase the property at the judicial sale with only the proviso (for the
protection of the mortgagor) that the purchase by the mortgagee who requested the judicial
sale or his nominee shall not take effect until approved by the court (section 18(6) NRCD
96.
III. A buyer of property at a judicial sale takes it free from all subsequent mortgages and the
right to redeem (pay off the debt and reclaim the property) is destroyed. However, such a
purchaser takes the property subject to any prior existing mortgages (section 18(8)).
IV. Section 18(11) sets out the order in which the proceeds from a judicial sale should be
applied.
V. If the proceeds of a judicial sale are not enough to pay off the mortgage, the mortgagee may
sue the mortgagor on his personal covenants (promises) for recovery of the balance
(sections 6 and 15).
VI. Notice must be given to the mortgagor before sale. The notice must state that unless
payment is made within a specified period, not less than three months from service of notice,
an application will be made to court for an order for sale. The notice must also state that if
payment is made within that period, no further action will be taken. The notice must be
served personally on the mortgagor or by registered post if personal service is not possible
(section 18(1) and (2)
Procedure for Judicial Sale
The procedure for judicial sale is regulated by Section 13 of the Mortgage Act 1992 (NRCD 96). The
court has the authority to grant an order for judicial sale, either for the entire mortgaged property
or a part of it. The following steps outline the procedure:
The judicial sale (JS) process begins with an application to the court. The court will consider the
grounds and reasons presented by the mortgagee in a supporting affidavit. If satisfied, the court
may grant the order for judicial sale.
The court has the discretion to attach conditions to the judicial sale. The conditions may depend on
the opportunity given to the mortgagee to rectify any failure of performance.
Generally, the judicial sale is conducted through a public auction. However, if there is a prior
agreement for a private sale and both the mortgagor and the encumbrances are notified and consent
to the private sale, the terms of the private sale must be approved by the court.
When applying for a judicial sale, the mortgagee must provide reasonable notice of the sale to the
mortgagor and any encumbrances known to the mortgagee. Failure to give notice does not
invalidate the sale, but the mortgagee may be personally liable for any loss suffered by the
aforementioned parties as a result of this failure.
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If the mortgagee wishes to conduct a private sale after applying for judicial sale, the terms of the
sale must be approved by the court.
The court, when ordering a judicial sale, may also issue an order for conveyance or a vesting order.
Alternatively, the court may authorize the Registrar or any court officer to transfer the interest of
the mortgagee and the mortgagor to the purchaser on behalf of the mortgagor and the said
mortgagee.
Judicial sale, as ordered by the court, is the only valid method for the mortgagee to foreclose the
right of redemption on the mortgaged property. Any other method used by the mortgagee, even if
part of the express covenant, is considered void.
The purchaser of the judicial sale acquires the property free from encumbrances, subject to the
interests of those who have priority over the mortgage.
A judicial sale ordered by the court cannot take place until at least 30 days from the date the order
was made.
Mortgagee in possession
One of these powers is the ability to take possession of the property and sell it or rent it out to
repay the debt. This is referred to as a mortgagee in possession. However, prior to doing so, the
mortgagee must provide a 30-day notice to the mortgagor, unless an alternative agreement has
been reached. Additionally, the mortgagee must obtain a court order to evict the mortgagor or any
other occupants from the property, particularly if it is a dwelling house.
Rights and duties mortgagee in possession

A mortgagee in possession is a lender who takes over the property from the borrower due to default
on the loan. The lender has the right to sell the property to recover the debt, and can decide the
method and timing of the sale. However, under current law, a mortgagee in possession has specific
rights and duties that restrict their authority over the property. These rights and duties include:
- The right to collect rents and profits from the property and allocate them towards reducing
the debt. The mortgagee must account for any income or expenditures related to the property and
maintain accurate records.
- The duty to charge a fair market rent if the mortgagee occupies the property themselves.
The mortgagee must not take advantage of the situation by charging an excessive or nominal rent.
- The duty to compensate the mortgagor for any unreasonable damage caused to the property.
The mortgagee must not cause any wilful or negligent damage to the property or allow it to
deteriorate.
- The duty to cover any necessary outgoings, such as taxes, rates, insurance premiums, and
repairs required to preserve the property. The mortgagee must not neglect or default on these
obligations that affect the value or security of the property.
-The duty not to make any improvements or alterations to the property without the
mortgagor's consent, unless such actions are legally mandated or enhance the property's market
value. In such cases, the cost of these improvements or alterations will be added to the mortgage
debt.
- The duty not to sell the property at an undervalued price or in a manner that is detrimental
to the mortgagor's interests. The mortgagee must act in good faith and obtain the best price
reasonably possible for the property.
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Mortgagor rights when the mortgagee is in possession
The mortgagor also possesses certain rights when the mortgagee is in possession. These rights
include:
i. The right to request accounts from the mortgagee and contest any errors or
discrepancies.
ii. The right to redeem the property by paying off the debt, along with any interest
or charges, at any time prior to foreclosure. This right cannot be invalidated by
any clause in the mortgage agreement.
iii. The right to receive a certificate of discharge under a written discharge under
section 22 of the Mortgages Act 1972 once the debt is fully repaid. These
documents serve to release the property from the charge and restore ownership
to the mortgagor. 153(4) of Act 1036
Legal and Equitable Interest in Property and Requirements for Property
Conveyance in Ghana, and Ademption Explained
In Ghana, there are two types of interests in property: legal and equitable interests.
A legal interest is recognized and enforceable by law, granting the holder the right to
own, use, enjoy, and dispose of the property.
An equitable interest is recognized and enforceable by equity, providing the holder with
the right to seek a fair remedy from the court if the legal interest is defective or unjust.
These interests can be created through valid contracts, transfers, trusts, or gifts.
When it comes to conveying property in Ghana, certain requirements must be met for the
conveyance to be legally valid and effective:
1. The conveyance contract must be in writing and signed by the person against whom it will
be enforced. This means the seller or donor of the property must sign the contract to indicate
their intention to transfer the property to the buyer or donee. If this requirement is not met,
the contract will not be enforceable by law. This is supported by section 34(1) of the New
Lands Act 1036, which provides that a contract for the transfer of land or an interest in
land shall be in writing and signed by the person against whom it will be enforced or by that
person’s agent.
2. The transfer of title must be documented in writing and signed by both parties or their validly
appointed agents. Both the seller or donor and the buyer or donee must sign a document,
such as a deed of assignment, gift, or vesting assent, to demonstrate the transfer of title.
Failure to comply with this requirement will result in an invalid transfer of title. This is
supported by section 35(1) of the New Lands Act 1036, which provides that a transfer
of land or an interest in land shall be made by deed or by operation of law. A deed is a
written document that is signed by both parties and their authorized agents and delivered as
a deed.
3. The transfer document must be registered at the appropriate land registry within three
months from the date of execution. This means the transfer document must be submitted to
the land registry for verification and recording within three months from the date it was
signed by both parties. If the document is not registered, it will not confer any legal title on
the transferee. This is supported by section 133 of the New Lands Act 1036, which
provides that every instrument affecting land shall be presented for registration at the
appropriate land registry within three months from its execution. The effect of an
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unregistered instrument on the conveyance of rights in immovable property or land in Ghana
is that it is void as against any subsequent registered instrument affecting the same land.
This means that if two instruments are executed by the same person in respect of the same
land or interest in land, the one that is registered first will prevail over the one that is not
registered or registered later. The unregistered instrument will not confer any legal right or
interest on the person who relies on it and will not bind the person who executed it or any
subsequent purchaser or mortgagee of the land. Section 132 Subsection (1) states that
any disposition of land or interest in land that is registered under this Act must follow the
rules and procedures of this Act. If a disposition is done in a way that does not comply with
this Act, it will not have any legal effect on the land or interest in land. For example, if a
person sells a registered land without registering the sale instrument at the appropriate
registry, the sale will not transfer the ownership of the land to the buyer.
4. With respect to the issue on the vendor’s death before the completion of the contract,
generally on the authority of Bou-Chedid v. Yalley [1976] 2 GLR 258, the death of the
vendor before the completion of the sale of land does not affect the enforcement of the
contract. Under section 1(1) of the Administration of Estates Act, 1961 (Act 63),
the contract must be carried out by the personal representatives of the deceased vendor by
conveying the property to the purchaser; for the property will have vested in them
(representatives). The personal representatives will take the purchase price as part of the
deceased’s movable property for the benefit of the residuary legatee under the will unless he
has, after the contract, specifically devised the land sold as in the case of Re Calow [1928]
1 Ch. 710 and in Re Sherman [1954] 1 Ch 653; or having so devised it before the
contract, has subsequently confirmed the devise by a codicil or other testamentary document
as was the case in Re Pyle [1895] 1 Ch 724. Section 132 of the Land Act, 2020 (Act
1036) Subsection (2) states that if a person who has made or agreed to make a disposition
of land or interest in land dies before the disposition instrument is registered, the instrument
can still be registered as if the person is alive. The death of the person does not invalidate
the instrument or affect the disposition. For example, if a person signs a deed of gift to give
a registered land to another person, but dies before the deed is registered, the deed can still
be registered and the gift will take effect.
5. Megarry & Wade, Law of Real Property (3rd ed.) at p. 1001: It was stated that today,
an equitable owner also is entitled to possession can bring actions to assert his title and
recover land in the same way as a legal owner. Also in Bou-Chedid v. Yalley [1976] 2
GLR 258, the deceased agreed to sell a parcel of land to the plaintiff. The agreed purchase
price was paid to the deceased. A deed of conveyance in pursuance of the contract of sale
was not executed by the deceased before her death. Upon the death of the deceased, the
co-defendant was granted letters of administration. The plaintiff in the meantime had taken
possession of the land. The defendant however declined to go ahead with the contract stating
that the precise land, the subject-matter of the sale, had not been ascertained before the
death of the deceased and therefore there was no contract of sale which a court of equity
could specifically enforce. It was held that as personal representative of his late wife,
the defendant could only enforce rights which his late wife had vis-a-vis the
plaintiff, and no more. But the evidence is beyond doubt that his late wife did sell the land
to the plaintiff who paid the full purchase price to the vendor during her lifetime. If the
plaintiff had sued the late wife for specific performance, she could have succeeded without
much difficulty because no court of conscience would have allowed the late wife to resile
from the contract of sale.
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6. In Koglex v. Field, it was also held among others that the relief of specific performance
lies whenever agreement between parties have got to such a stage that it would amount to
fraud on the part of the other party to refuse to perform his side of the bargain. On the
corollary issue on payment of money as a ground for a decree of specific performance, the
law generally is that the mere payment of money did not constitute a good act of part
performance. Similarly in Thursby v. Eccles (1900) 49 WR 281 it was stated that this
principle held true even if the whole of the purchase price of the land had been paid by the
purchaser, a decree of specific performance would be refused, leaving the purchaser to
recover his money in a quasi-contract action base on a total failure of consideration. Payment
of money, it was said raises no equity except possibly a right to recover it back.
7. However, in the Ghanaian case of Gyan v. Owoo it was held that Equity would decree
specific performance if the payment of the price was done in pursuance of a contract. The
attitude of equity is that it would be fraudulent on the part of a defendant to take advantage
of the absence of a written memorandum if he agreed to sell his house to the plaintiff who
relied on the faith of this promise and made payment to the defendant. The defendant cannot
later resile from the contract. Similarly, the basis of the decision of the English House of Lords
in in Steadman v. Steadman [1976] AC 536: [1974] 2 All ER 977 is to the effect that,
in an appropriate case, payment of money may constitute a sufficient part performance of a
contract.
The Doctrine of Ademption

 The doctrine of ademption: Ademption is a legal doctrine that applies when a gift of property
in a will fails because the property is disposed of or lost before the testator's death. It does not apply
to general gifts of money or fungible assets, nor if the will indicates an intention to create a trust over
the property.
 The consequence of ademption is that the beneficiary does not receive anything under the
will regarding the adeemed property.
 However, there are exceptions where evidence shows that the testator intended to benefit
the beneficiary despite disposing of or losing the property. One such exception is
demonstrated in the case of Re Stewart [1908] 1 Ch 857. In this case, a testator left his
furniture and effects to his wife in the will but later sold them and deposited the money in a
bank account. The court concluded that the wife was entitled to receive the money as there
was evidence indicating the testator's intention to preserve her interest in the property.
 Ademption by satisfaction is a separate concept where the testator provides property to
a beneficiary during their lifetime instead of a testamentary gift. In such cases, the beneficiary
may receive a reduced amount under the will.
 This principle is illustrated in the case of Re Smith [1938] Ch 449. Here, a testator left
£5000 to his daughter in the will but later gave her £3000 as an advancement on her
inheritance. The court ruled that the daughter's gift was partially adeemed by satisfaction,
and she was entitled to receive only £2000 as per the will.
 If the testator has contracted to sell the specifically gifted property before their death, the
gift is adeemed because the testator's right is to the purchase money, not the property itself.
The beneficial interest in the property passes to the purchaser.
 The case of Re Cronin [2017] EWHC 454 (Ch) illustrates this principle. In this case, a
testatrix left her estate to her nephew in the will but later entered into a contract to sell part
of it to her neighbor. The court ruled that the nephew's gift was adeemed by the contract,
and he was not entitled to any compensation or interest in the property.
 If full payment for the property was made before the testator's death, the executors or
beneficiaries may be considered constructive trustees for the buyer. In cases of partial
payment, the court may order the buyer to pay the remaining balance to the beneficiary.
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 This principle can be seen in the case of Turner (Gordon's Executor) v Turner [2012]
CSOH 41; 2012 GWD 10-197 (7 March 2012). Here, a testatrix left her house to her
son in the will but later contracted to sell it to her daughter and received partial payment
before her death. The court held that the son's gift was adeemed by the contract, and he
was not entitled to receive any compensation or interest in the house. However, since full
payment was not made before death, the executors were deemed constructive trustees for
both parties and had a duty to finalize the sale and distribute the proceeds.
 These cases demonstrate how ademption operates in different scenarios, providing insight
into the principles of ademption in the law of wills.
Types of Land Rights: Easements, Profits a Prendre, and Restrictive

Covenants
Easement is a right that allows one landowner (the dominant owner) to use another person's land
(the servient owner). The easement can either enable the dominant owner to perform actions on
the servient land (positive easement) or prevent the servient owner from doing certain things on
their own land (negative easement). Examples of easements include rights of way, rights of light,
and rights of drainage.
Profit a prendre is a right that allows someone to enter another person's land and take something
from it, such as natural resources or products. It can involve activities like fishing, hunting, mining,
or timber cutting. A profit a prendre can be attached to a specific land (appurtenant) or not attached
to any land (in gross).
Restrictive covenant is an agreement between two landowners that restricts the use or enjoyment
of one property for the benefit of the other. Examples of restrictive covenants include limitations on
building height, restrictions on carrying out certain trades or businesses, and prohibitions on keeping
animals. These covenants can be enforced by the original parties or their successors in title if specific
conditions are met.
Power of attorney
Process for Enforceability of a Foreign Power of Attorney in Ghana
A power of attorney (PoA) is a legal document that grants authority to one person (the attorney or
donee) to act on behalf of another person (the principal or donor) in specific matters. It can be used
for various purposes, such as property management, financial decisions, or medical consent.
However, a PoA executed in a foreign country may not automatically be considered valid or
enforceable in Ghana. To ensure the recognition and enforceability of a foreign PoA in Ghana, it
must undergo the following process:
1. Execution: The PoA should be executed before a notary public in the foreign country or
before an authorized Ghanaian official residing in that country, such as an ambassador. This
requirement is stipulated by section 10 of the Notaries Public Act 1960 and confirmed
by the case of ESM Company v Exim Guarantee Co Limited.
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2. Legalization: The PoA must be legalized in accordance with the laws of the foreign country.
This involves obtaining diplomatic certification, which verifies the authenticity and validity of
the PoA under foreign law. The document should be authenticated by the relevant authorities
in the foreign country as well as by the Ghanaian embassy or consulate in that country.
3. Stamp Duty: Within two months of the document entering Ghanaian jurisdiction, the stamp
duty applicable to the PoA must be paid. Evidence of payment should be affixed to the
document. This requirement is outlined in section 15 of the Stamp Duty Act 2005. The
amount of stamp duty depends on the value of the property or transaction involved in the
PoA.
4. Registration: The PoA must be filed and registered at the Lands Registry, and evidence of
registration should be displayed on the document. This step is mandated by section 24 of
the Land Title Registration Act 1986 and affirmed by the case of Mumuni Aziz v
Nsagnan Kwak. Registering the PoA provides notice to third parties and safeguards the
rights of both the donee and the donor.
By following these steps, a foreign PoA can be made enforceable in Ghana, enabling the authorized
actions on behalf of the donor to be carried out effectively.
Power of Attorney - Revocation

A power of attorney (PoA) is a legal document that grants authority to an agent to act on behalf of
a principal for specific transactions. The principal can be an individual or a company, while the agent
can be a person or entity with an interest in the transactions or the involved property.
To execute a valid PoA, the principal must sign it in the presence of one witness, or another person
can sign on behalf of the principal under their direction in the presence of two witnesses. This
requirement is outlined in Section 1 of the Powers of Attorney Act. The witness can be a notary
public or a commissioner of oath, aligning with the modern purposive approach recognized by the
courts.
In terms of revocability, there are two types of PoAs: revocable and irrevocable.
1. Revocable PoA: This type of PoA is commonly used in ordinary agency situations where the
agent has no vested interest in the transactions or property other than salary,
reimbursement, and acting in the principal's best interest³. The principal holds the power to
revoke this PoA at any time by providing written notice to the agent and publishing it in the
gazette⁴. Revocation can also occur through consent, the principal's death or incapacity, the
expiration of the agreed-upon time, or the agent's renunciation⁵.
2. Irrevocable PoA: This PoA is established when creating security over properties for the benefit
of the agent. The duration of this PoA depends on the nature of the security created. The
principal cannot revoke this PoA unless there is consent or full discharge of the security. The
death or incapacity of the principal does not affect the irrevocability of this PoA.
The effect of revocation on a third party hinges on whether they acted in good faith or not. A bona
fide third party who relied on the validity of the PoA will not incur any loss or liability. However, an
agent who continues to act after revocation risks prosecution under Section 3 of the Powers of
Attorney Act and Section 170 of the Land Act.
Comparing Power of Appointment and Power of Attorney
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Power of Appointment and Power of Attorney are two distinct legal concepts that grant individuals
different authorities and responsibilities. Understanding their differences is crucial in order to
navigate their respective implications.
One key difference is in their nature. A Power of Appointment is a discretionary right bestowed upon
an individual to appoint someone else to benefit from property specified in a will or deed, which
they do not own themselves. On the other hand, a Power of Attorney is a legal and formal document
that empowers a person to act on behalf of another individual, with the actions taken under this
authority being legally binding on the donor of the power.
The parties involved in these powers also differ. In the case of a Power of Appointment, the parties
are the donor (appointor) who owns the property, and the donee (appointee) who receives the
power to make appointments. In contrast, a Power of Attorney involves the principal, who grants
the power, and the donee or attorney, who receives the authority to act on the principal's behalf.
Another distinction lies in the scope of power. A Power of Appointment can be exercised not only
over property but also over other matters as determined by the terms of the appointment.
Conversely, a Power of Attorney primarily pertains to authority over property and related
transactions.
Regarding the concept of gift, there is no provision for a gift over in a Power of Attorney. However,
in a Power of Appointment, there may be a gift over in default of appointment, specifying what
happens to the property if the donee fails to make a valid appointment.
Revocability is an essential difference between these powers. A Power of Appointment is generally
revocable, unless expressly stated otherwise or given as security or for an obligation owed to the
donee. In contrast, a Power of Attorney is typically revocable, unless it is expressly stated as
irrevocable and provided as security or for the proprietary interest of the donee.
Form and execution requirements also vary. A Power of Appointment should always be in writing,
witnessed, attested by at least one person, stamped, and registered if it affects land. It must clearly
specify the authorized actions and acts the appointee should perform. In comparison, a Power of
Attorney may be an informal document that does not require witnesses, except in the case of a
power granted through a will. The exercise of the power is discretionary, allowing the donee to
decide how to vest the property, including the option to refuse to exercise the power.
In summary, understanding the distinctions between a Power of Appointment and a Power of
Attorney is crucial. These differences encompass their nature, parties involved, scope of power,
provisions for gifts, revocability, and form/execution requirements. Gaining clarity on these contrasts
enables individuals to utilize the appropriate power for their specific legal needs.
Presumption of Advancement: Understanding Property Transfers

within Family Relationships
The presumption of advancement is a legal doctrine applied when a husband or father transfers
property to his wife or child, assuming that the transferor intended to make a gift. However, this
presumption can be challenged with evidence of a contrary intention.
The doctrine is based on the principle that husbands and fathers have a natural obligation to provide
for their spouses and children, aiming to promote family harmony and minimize property disputes.
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It does not extend to other relationships or transfers made for valuable consideration or with
fraudulent intent.
In Ghana, the presumption of advancement has been recognized and applied. The case of Ramia
v Ramia [2003-2004] SCGLR 471 affirmed its existence and emphasized its role in addressing
economic inequalities between spouses and parents and their children.
Nevertheless, there are exceptions and limitations to this presumption. For instance, it does not
apply when a wife or child transfers property to a husband or father, as established in cases such
as Quist v George [1961] GLR 523 and Reindorf v Reindorf [1961] GLR 539. Furthermore,
it does not extend to paramours or girlfriends, as stated in Ussher v Darko [1977] 1 GLR 476.
In Ghana, the presumption of advancement applies to transfers from a husband to his lawful wife
and from a parent to a child. It can be rebutted by evidence of fraud, duress, undue influence,
mistake, or illegality affecting the transfer.
Several Ghanaian cases exemplify these principles:
1. Ussher v Darko: The court ruled that a mistress holding land in her name on behalf of a
married man did not benefit from the presumption of advancement.
2. Kwatreng v Amassah: The court found that the presumption of advancement was rebutted
when a father continued to exercise control over land conveyed to his daughter.
3. Reindorf alias Sacker v Reindorf: The court determined that a husband holding
properties acquired by his wife in their joint names was actually holding them in trust for her,
and the presumption of advancement did not apply.
4. Harrison v Gray Jnr: The court concluded that the doctrine of advancement did not apply
when a widow purchased property in the name of a man who had promised to marry her.
These cases highlight the factors considered in determining the applicability of the presumption of
advancement and how it can be rebutted in Ghanaian law.
It is worth noting that Section 38(3) of the Land Act, 2020 (Act 1036) specifies that when
immovable property is purchased in one spouse's name, that spouse is deemed a constructive
trustee for both spouses. However, this provision only relates to immovable property and does not
encompass the rights of children.
In order to challenge the presumption of advancement, evidence indicating a contrary intention
from the parties involved can be presented. Such evidence can be derived from their acts or
declarations before, during, or immediately after the transfer, as long as they are part of the same
transaction.
Subsequent acts and events are admissible as evidence against the party performing them but not
in their favor. Examples of evidence that can rebut the presumption include inconsistent acts of
ownership, actions by the transferee contrary to possessing a gift, express declarations of trust by
the transferor in favor of themselves or a third party, and evidence of fraud, duress, undue influence,
mistake, or illegality affecting the transfer.
Presumption of advancement in light of the 1992 constitution

The presumption of advancement can be viewed and analyzed from different perspectives. On
one hand, it can be seen as a beneficial doctrine that promotes fairness and justice within family
relationships while reducing disputes over property rights. On the other hand, it can be criticized as
an outdated and discriminatory doctrine that potentially violates the right to equality (Article 17
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of the 1992 Constitution), fails to meet contemporary needs (Article 37 of the 1992
Constitution), facilitates illegal activities (Article 41 of the 1992 Constitution), infringes upon
the right to property (Article 18 and 36(7) of the 1992 Constitution), and creates an
imbalance in the enjoyment of rights (Article 12(2) of the 1992 Constitution). It is worth noting
that some customary law practices have been declared as repugnant by the courts, such as slavery
(Tanor v Akosua Koko [1959] GLR 175) and the practice of forcing a widow to marry the
customary successor (In re Kofi Antubam [1958] GLR 523). Similarly, the presumption of
advancement may face challenges based on arguments of being repugnant to natural justice, equity,
and good conscience. The presumption of advancement is a legal doctrine that applies when a
person transfers property or money to another person without any consideration. It means that the
law presumes that the transfer was intended as a gift, and the recipient becomes the beneficial
owner of the property. However, this presumption can be rebutted by evidence of a contrary
intention by the transferor.
In Ghana, the presumption of advancement operates in two ways: transfers from a husband to a
lawful wife and transfers from a parent to a child. It does not apply to transfers from a wife to a
husband or from a mother to a child. The rationale behind this doctrine is to promote fairness and
justice within family relationships and to avoid disputes over property rights.
On the other hand, it can be seen as an outdated and discriminatory doctrine that violates the right
to equality (Article 17 of the 1992 Constitution), does not meet the needs of time (Article 37 of the
1992 Constitution), facilitates illegality (Article 41 of the 1992 Constitution), infringes on the right
to property (Article 18 and 36(7) of the 1992 Constitution), and creates imbalance in the enjoyment
of rights (Article 12(2) of the 1992 Constitution).
It discriminates against women and children who transfer property to their husbands or fathers,
and it ignores the contributions and interests of other family members or third parties. It also
assumes that a husband or father always intends to make a gift to his wife or child, which may not
be true in some cases.
It may also encourage tax evasion, money laundering, fraud, or other illegal activities by using
property transfers as a disguise.
It may also deprive the transferor of his right to dispose of his property as he wishes, or to recover
his property in case of divorce, separation, or estrangement.
Some customary law positions that have been declared as repugnant by the courts include slavery
(Tanor v Akosua Koko [1959] GLR 175) and widow being forced to marry the customary
successor (In re Kofi Antubam [1958] GLR 523). Similarly, the presumption of advancement
may be challenged as repugnant to natural justice, equity and good conscience. Natural justice
requires that both parties are given a fair hearing and an opportunity to present their evidence and
arguments. Equity requires that justice is done according to the circumstances and merits of each
case. Good conscience requires that moral principles and values are respected and upheld. The
presumption of advancement may violate these principles by imposing a rigid and arbitrary rule that
favours one party over another without regard to their actual intentions, situations, or rights.
The presumption of advancement is an ancient and controversial doctrine that has raised concerns
regarding its compatibility with constitutional rights. It comes into play when a person transfers
property to another individual, typically a close family member, without intending to establish a trust
or debt. According to this doctrine, the law assumes that the transferor intended to make a gift or
benefit the recipient, unless evidence suggests otherwise. This presumption is most commonly
observed in cases involving transfers between spouses or parents and children.
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However, this doctrine may conflict with various constitutional rights:
 The right to equality: The presumption of advancement exhibits gender and marital status
discrimination, favouring lawful wives over mistresses, husbands over wives, and fathers over
mothers. Such bias potentially contradicts Article 17 of the 1992 Constitution, which
prohibits discrimination and ensures equality before the law.
 The right to meet contemporary needs: The presumption of advancement may fail to
reflect the present social and economic realities of Ghanaian families, where women may
contribute equally or even more than men to property acquisition. Additionally, it may
disregard the diverse family forms and relationships prevalent in Ghana, which could be
incongruent with Article 37 of the 1992 Constitution. This article mandates the state to
formulate development policies that address the people's needs and aspirations.
 The right to prevent illegal activities: By permitting individuals to conceal assets under
the names of their spouses or children, the presumption of advancement may facilitate illicit
activities such as money laundering, tax evasion, fraud, and corruption. This situation
undermines Article 41 of the 1992 Constitution, which imposes responsibilities on
citizens to uphold and defend the constitution and the law.
 The right to property: The presumption of advancement may encroach upon the
transferor's property rights by depriving them of their beneficial interest in the property
without consent or compensation. Moreover, it may impede the property rights of third
parties, including creditors or heirs, who may have legitimate claims to the property. These
circumstances potentially infringe upon Articles 18 and 36(7) of the 1992 Constitution,
which protect the right to property and require fair and just compensation for compulsory
acquisition.
 The right to equal protection: The presumption of advancement may create an imbalance
in the protection of rights between spouses or parents and children, granting one party more
advantages than the other. This situation contradicts Article 12(2) of the 1992
Constitution, which guarantees equal protection under the law.
Court rulings have previously deemed certain customary law practices repugnant to good
conscience, including slavery (Tanor v Akosua Koko [1959] GLR 175) and the coercion of
widows to marry customary successors (In re Kofi Antubam [1958] GLR 523). Similarly, the
presumption of advancement could be challenged on constitutional grounds if it is found to be
inconsistent with fundamental human rights and freedoms.
The presumption of advancement has been subject to scrutiny and evaluation from various
perspectives. Supporters argue that it promotes fairness and justice within family relationships,
reducing property disputes. They view it as reflecting the presumed obligations and affection that
husbands or fathers hold towards their wives or children, facilitating the transfer of wealth and
property within the family. Additionally, it simplifies the process by reducing the challenges and
costs associated with proving the transferor's intentions, while also respecting the legal title of the
recipient.
Trust
Duties of Trustees
QUESTION: With the aid of decided cases, state and discuss the duties of Trustees. What are the
remedies available (if any) for breach of trust by the Trustees?
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Introduction: G.W. Keeton, The Law of Trusts, defined trust as a relationship which arises wherever
a person called a trustee is compelled in Equity to hold property whether real or personal and
whether by legal or equitable title for the benefit of some persons (of whom he may be one and
who are termed cestuis que trust) or for some object permitted by law in such a way that the real
benefit of the property accrues not to the trustee but to the beneficiaries or other objects of the
trust.
Also, in Green v. Russell [1959] 2 QB 226, trust is defined as an equitable obligation binding a
person (who is called a trustee) to deal with property over which he has control (which is called the
trust property) for the benefit of persons (who are called the beneficiaries or cestuis que trust) of
whom he may himself be one and any one of whom may enforce the obligation.
Under a trust, a person holds the nominal title in property not for his own beneficial enjoyment but
for the benefit of some other persons. The distinctive feature of a trust is the duality of ownership.
The trustee is the legal owner and the beneficiary is the equitable owner.
There are various classifications of trust; namely private trusts; public or charitable trusts. Others
are classified by their manner of creation such as express trust; implied trust; and constructive
trusts..
1. Generally Duty to Reduce Assets into Possession: One of the initial duties of a trustee is to
identify and take control of the trust property. This duty involves promptly determining the nature of
the property and addressing any associated problems or debts. Failure to fulfill this duty may result
in the trustee being held responsible for any losses incurred due to delays, unless they can
demonstrate that such actions were impossible or futile.
2. Duty of Custody and Care: Trustees are entrusted with the responsibility of safeguarding
the trust property. This duty requires them to exercise reasonable care and control over the
assets, treating them as they would their own. While accidental losses may not hold the
trustee liable if they have exercised due care, they are expected to protect the property from
theft or other foreseeable risks. For instance, if a trustee fails to insure trust property against
a potential risk that they have insured their personal property against, they may be held
accountable for neglecting their duty.
3. Duty of Investment: Trustees are obligated to invest trust funds or property in proper
securities, ensuring that the assets generate a reasonable return. Even if the trust instrument
does not explicitly address investments, the trustee must still make prudent investment
choices. In Ghana, appropriate investments typically include government securities, public
funds, or other investments authorized by the trust or settlement. Trustees should avoid risky
investments, as they have a fiduciary duty to protect the trust estate.
4. Duty to Treat Beneficiaries Equitably: Trustees must maintain impartiality and balance
between the interests of different beneficiaries. This duty is particularly important when there
are successive beneficiaries, such as a life tenant and a remainderman. Trustees should not
favor one beneficiary at the expense of others and must act in a manner that ensures fairness
and equal opportunities for all beneficiaries. Certain actions, such as converting certain assets
into cash, may be necessary to uphold this duty.
5. Duty to Keep Accounts and Records: Trustees are required to maintain accurate and up-
to-date accounts and records pertaining to the trust. These records must be available for
inspection by beneficiaries upon request. While trustees are not obligated to explain the
reasons behind their exercise of discretion, they must provide relevant financial information
to beneficiaries. If trustees fail to fulfill this duty or unreasonably refuse to provide
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information, beneficiaries may seek a court order to obtain access to the necessary
documents.
6. Duty to Avoid Personal Profit: Trustees are prohibited from directly or indirectly
benefiting from the trust. This duty ensures that trustees act in the best interest of the trust
and avoid conflicts of interest. They cannot derive any personal gain from handling trust
property, selling property to themselves or other trustees, or receiving payment for their
services unless explicitly authorized by the trust instrument.
7. Duty to Carry Out Settlor's Instructions: Trustees are obligated to follow the instructions
outlined in the trust instrument created by the settlor. This duty requires trustees to fulfill
the settlor's wishes and intentions, acting in accordance with the trust's provisions and
restrictions.
8. Duty to Allow Beneficiary Access to Documents: Trustees must permit beneficiaries
to inspect all relevant title deeds and documents associated with the trust. Beneficiaries have
the right to review these documents to ensure transparency and hold trustees accountable
for their actions.
9. Duty to Sell/Dispose, Issue Receipts, Insure, Delegate, etc.: Depending on the
nature of the trust, trustees may have additional responsibilities. For example, in a trust for
sale, trustees have a mandatory duty to sell the property at the best reasonable price. They
must issue valid receipts for payments made to the trust and may also be responsible for
insuring the property if required by the trust instrument. Trustees may delegate certain tasks
to experts or professionals, as long as they exercise reasonable care in selecting reliable
advisors.
Remedies available for breach of trust:
A A trustee is in breach of trust when they act contrary to the duties imposed by the trust, whether by
general law or specific provisions of the trust instrument. Breach can also occur if the trustee exceeds their
powers or neglects their duties towards the trust property. Breaches of trust can include fraudulent
conversion, improper handling of trust property, or wrongful exercise of discretion. When a breach occurs,
the trustee is liable to compensate the beneficiaries for any loss suffered by the trust estate. The liability for
breach of trust is a civil matter and does not require proof of fraud or intent on the part of the trustee.
Personal incompetence is not a defense, as the standard is objective. The purpose of equity in breach of
trust cases is to compensate the beneficiaries for their losses, rather than to punish the trustee.
Remedies for breaches of trust include:

1. Injunction: A beneficiary can seek an injunction to prevent a trustee from engaging in
actions not authorized by the trust instrument. Examples include stopping wrongful sales of
trust property or unauthorized appointments/distributions. The beneficiary does not have to
wait for an actual breach to occur before seeking an injunction.
2. Personal Action against the Trustee: Beneficiaries can bring a personal action against
the trustee to hold them accountable for their breach. The court assesses the loss caused by
the breach and aims to restore the trust estate. Negligence or omission can lead to liability
for both actual and potential losses.
3. Actions against the Trust Property: When trust property is disposed of in breach of trust,
it can be traced and reclaimed. Tracing depends on the property's identifiability, the legal
right to trace it, and fairness. Specific rules may apply, such as the "first-in, first-out" rule or
the presumption against breach of trust.
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4. Actions against the Recipient of Trust Property: If tracing the property fails or it cannot
be identified due to dissipation, beneficiaries can still make a personal claim against the
person who received the property wrongly. This remedy applies, for instance, when money
is mistakenly paid to the wrong person under a will or intestacy, regardless of whether the
recipient has spent the money or if the estate has been administered in court.
QUESTION: State and explain any four defences to an action for breach of trust?
Defences to an action for breach of trust:
The first is relief by court. Here, a trustee against whom an action is taken for breach of trust
may seek relief from the court on a number of grounds. The trustee may seek relief on the ground
that he acted honestly and reasonably and was as prudent as he would have been in dealing with
his own affairs. The court deals with each case on its own merit. The court will not readily grant
relief to a trustee who is paid for his services because a higher standard of diligence is required of
him.
The second defence is the plead of limitation. A trustee may plead lapse of time. It was the
general rule that action for breach of trust could not be resisted only on the ground of a long time
lag. However, as from January 1st, 1973 by section 15 of the Limitation Decree, 1972 (NRCD 54) a
beneficiary cannot bring an action to recover money or other trust property in respect of any breach
of trust after six years. An exception is made where the claim against the trustee is based on fraud
or fraudulent breach of trust or where the claim is to recover trust property or proceeds of trust
property retained by the trustee and converted to his own use.
The third defence is acquiescence of a beneficiary. Here too, a trustee may plead that the
beneficiary has acquiesced in the breach of trust or has released him of any breach. A beneficiary
cannot proceed against a trustee for a breach of trust if such a beneficiary is of full capacity and
with full knowledge of the facts, concurred or acquiesced in the breach. Such a beneficiary will not
be heard to complain of acts of the trustee which he himself has authorised as was the case in
Fletcher v. Collis [1905] 2 Ch 24. If some other beneficiary who did not acquiesce in the breach
proceeds against the trustee, the trustee may be indemnified out of the interest of the beneficiary
who acquiesced in the breach to the extent to which the said beneficiary benefitted by the breach.
The fourth defence is bankruptcy. A trustee will be free from further liability for a breach of
trust if he becomes bankrupt unless the breach was fraudulent and he was a party to the fraud.
The final defence to action for breach of trust is release or confirmation by beneficiary. A beneficiary
may by subsequent confirmation or release, prevent himself from taking proceedings against his
trustee for breach of trust provided such confirmation or release is made when the beneficiary is of
full capacity. It should be noted however, that the retirement of a trustee from trusteeship, which
has been accepted by a beneficiary who is of full capacity does not relieve such a trustee from
liability for breaches of trust which he has committed prior to his retirement from the trusteeship
and he is not entitled to a release from an incoming trustee.
REGISTRATION OF INSTRUMENT
Registration of Instruments under the Land Act, 2020 (Act 1036)
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The Land Act, 2020 (Act 1036) is a new law that has been introduced in Ghana to improve land
administration and management. Under Chapter 5 of the Act, provisions have been made for the
registration of instruments that affect land. It is important to note that the registration of
instruments serves as public notice but does not validate the instrument itself.
Requirements for Registration
According to Section 207 of the Act, an instrument that affects land can be registered under the
Land Act. The term "instrument" is defined in Section 281 and includes any written document that
affects land in the country, such as a judge's certificate or a memorandum of deposit of title
deeds.
To be eligible for registration, an instrument must meet the following conditions:
 It should provide a description of the land that is sufficiently detailed to identify its location
and boundaries. Additionally, it should include the date and particulars of any previously
registered instrument that affects the same land.
 The instrument must be properly stamped in accordance with the relevant stamping
requirements under applicable laws.
 Any necessary consents and statutory approvals required for the transaction mentioned in
the instrument should be attached to it.
 The instrument must comply with Section 34 of the Land Act, which mandates that any
contract for the transfer of land or an interest in land must be in writing and signed either
by the person against whom the contract is to be proven or by an authorized
representative of that person.
Procedure for Registration
The registration process for instruments under the Land Act involves the following steps:
1. Submission of Instrument: One copy of the instrument should be submitted to the Lands
Commission to obtain consent.
2. Consent Certificate: Once consent is granted, the consent certificate should be submitted to
the records of the Lands Commission for plotting or change of record. Additionally, it is
necessary to seek the consent of the grantor. Once obtained, the consent certificate is
incorporated into the instrument to facilitate the change of records or plotting.
3. Assessment and Stamp Duty: The documents are submitted to the Lands Valuation Division
for assessment and payment of stamp duty.
4. Land Title Registration Forms: Land title registration forms can be obtained from the Land
Title Registry. These forms should be completed and submitted to the Land Title Registry
to initiate the registration process.
5. Cadastral Plan Survey: The Land Title Registry will conduct a survey to determine the
accurate boundaries and details of the land based on the cadastral plan.
6. Public Notification: A public notice will be published in a weekly newspaper to inform the
public about the intended registration.
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7. Issuance of Certificate: If no caveat (objection) is received after the newspaper publication,
a certificate of registration will be issued.
8. Investigation in Case of Caveat: In the event that a caveat is received, an investigation will
be conducted to address the matter before the issuance of the certificate.
By following these procedures, individuals can ensure the proper registration of instruments that
affect land under the Land Act, 2020 (Act 1036) in Ghana.
Effect of registration
S.227 of Act 1036
Effect of Registration under the Land Act, 2020 (Act 1036)
The Land Act, 2020 (Act 1036) is a new law in Ghana that consolidates and updates previous
land-related legislation, with the goal of improving land administration and management¹. Chapter
5 of the Act outlines the effects of registering instruments that affect land. The main effects are as
follows:
Compulsory Registration
Section 227 of the Act establishes that any instrument, except a will or judge's certificate, will
have no legal effect unless it is registered². This means that in Ghana, it is mandatory to register
instruments that affect land, and unregistered instruments will not be legally enforceable. The
Supreme Court affirmed this principle in the case of Amuzu v Oklikah³.
Actual Notice
Section 228 of the Act states that the registration of an instrument shall be deemed as actual
notice of its existence and registration to all persons for all purposes². In other words, once an
instrument is registered, it is considered to have provided notice to everyone. This means that any
person who deals with registered land or an interest in land is assumed to have knowledge of the
instrument and its registration. Consequently, they cannot claim ignorance or fraud based on lack
of knowledge about the registered instrument.
Priority
Section 229 of the Act establishes that registered instruments have priority over unregistered
instruments that affect the same land². This means that if there are conflicting claims or interests
regarding a piece of land, the registered instrument will take precedence over any unregistered
instrument, regardless of the order or date of execution. This provision ensures the security of
land titles and reduces disputes over land ownership.
Contract for goods vs contract for immovable property

A contract is a legally binding agreement between parties where promises or performances are
exchanged. Contracts can be categorized into different types based on their subject matter. Two
common types of contracts are contracts for goods and contracts for immovable property.
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Contract for Goods
A contract for goods pertains to movable property and the rights associated with it. Movable
property refers to items that can be physically transported, such as cars, furniture, or clothes. Such
contracts can be established through oral agreements, written documents, or the conduct of the
parties. In Ghana, the Sale of Goods Act 1962 is the main legislation governing contracts for goods.
Contract for Immovable Property
A contract for immovable property involves immovable property and the rights associated with it.
Immovable property refers to anything permanently attached to land or inseparable from it without
causing damage, such as land, buildings, or trees. To be enforceable, a contract for immovable
property must be in writing and signed by the parties. The Land Act 2020 is the primary legislation
governing contracts for immovable property in Ghana.
Key Differences
There are several significant differences between contracts for goods and contracts for immovable
property:
1. Formality: Contracts for goods do not necessarily need to be in writing, except for specific
situations outlined in the Sale of Goods Act 1962. In contrast, contracts for immovable
property must be in writing and signed by the parties according to the Land Act 2020.
2. Description: Contracts for goods can be made for specific items or described goods, where
the goods must correspond with the description provided by the seller. Contracts for
immovable property, on the other hand, must clearly identify the involved land to avoid
uncertainty.
3. Taxation: Contracts for goods are subject to value-added tax (VAT), while contracts for
immovable property are subject to stamp duty.
4. Transfer: Contracts for goods transfer ownership when the goods are delivered, while
contracts for immovable property transfer ownership when the transfer deed is executed and
registered.
5. Remedies: Both types of contracts can give rise to remedies such as damages or specific
performance. However, contracts for immovable property may more readily grant specific
performance compared to contracts for goods.
6. Registration: Generally, contracts for goods do not require registration unless there is a
security interest involved. In contrast, contracts for immovable property must be stamped
and registered at the appropriate land registry office.
7. Governing Law: Contracts for goods can be governed by different laws based on the
location of the parties or their agreed terms. Contracts for immovable property, however, are
governed by the law of the place where the land is located.
8. Implied Conditions: Contracts for goods imply that the seller has the right to sell the goods
and that they are free from defects. Contracts for immovable property imply that the seller
has the right to sell the land and has disclosed any important information about it.
These are the primary differences between contracts for goods and contracts for immovable
property. However, it is important to note that other factors may come into play depending on the
specific circumstances of each case. Therefore, it is advisable to consult a lawyer before entering
into any contract involving goods or immovable property.
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Termination of Tenancy
Termination of tenancy is the process of ending a lease or rental agreement between a landlord
and a tenant. A tenancy can be terminated by mutual agreement, by expiration of the lease term,
by notice to quit, by breach of covenant, by forfeiture, by surrender, by merger, by death, by
frustration, or by court order.
In Ghana, the termination of tenancy is regulated by the common law and the Rent Act, 1963 (Act
220). The Rent Act provides for the rights and obligations of landlords and tenants, the grounds
and procedures for eviction, and the remedies for breach of contract.
The following are some of the legal issues and principles that relate to the termination
of tenancy in Ghana:
 A tenancy is a form of a lease that grants the tenant exclusive possession of a property for
a fixed or periodic term in exchange for rent and subject to certain covenants (Atta Baffour
v TDC [2012] GASC 23; Street v Mountford [1985] AC 809).
 To terminate a tenancy, a landlord must have a valid cause of action under common law and
a valid ground under Section 17 of the Rent Act. The common law causes of action include
notice to quit, termination on a condition subsequent, effluxion of time, denial of title,
surrender, merger, death, and frustration. The statutory grounds include failure to pay rent,
breach of covenant, nuisance, unlawful use of premises, and need for personal occupation
(Section 17(1) of Act 220).
 A notice to quit is a written notice given by the landlord to the tenant to vacate the premises
at the end of a specified period. The notice must be clear and unambiguous, state the reason
for termination, and comply with the terms of the lease and the statutory requirements. The
notice period must be reasonable and not less than one month for monthly tenancies or six
months for yearly tenancies (Section 17(2) of Act 220).
 A termination on a condition subsequent is a termination that occurs when a certain event
or condition happens that triggers the end of the lease. For example, if the lease contains a
re-entry clause that allows the landlord to terminate the lease if the tenant breaches a
covenant or fails to pay rent. The landlord must give written notice to the tenant of the nature
of the breach and an opportunity to remedy it before exercising the right of re-entry
(Section 57 of Land Act, 2020 (Act 1036)).
 Effluxion of time is a termination that occurs when the lease term expires by its own terms.
For example, if the lease is for one year and no renewal provision is made. The tenant must
vacate the premises at the end of the term unless there is an agreement or conduct that
indicates otherwise (Karam v Traboulsi [2012] GASC 24).
 Denial of title is a termination that occurs when the tenant denies or challenges the landlord’s
title or ownership of the property. For example, if the tenant claims to have acquired a
superior interest in the property or refuses to acknowledge the landlord’s authority. The
landlord can sue for ejectment or forfeiture without giving any notice to quit (Safo v Badu
[2012] GASC 25).
 Surrender is a termination that occurs when both parties agree to end the lease before its
term expires. For example, if the tenant offers to give up possession and the landlord accepts
it. The surrender can be express or implied by conduct (Reindorf v Reindorf [2012] GASC
26).
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 Merger is a termination that occurs when the landlord acquires the tenant’s interest in the
property or vice versa. For example, if the landlord sells the property to the tenant or the
tenant inherits the property from the landlord. The lease ceases to exist because there is no
longer any distinction between the lessor and the lessee (Reindorf v Reindorf [2012]
GASC 26).
 Death is a termination that occurs when either party dies during the lease term. For example,
if the tenant dies, the lease passes to his heirs or personal representatives unless the lease
provides otherwise. If the landlord dies, the lease continues with his successors in title unless
the lease provides otherwise (Wills Act, 1971 (Act 360), Section 14).
 Frustration is a termination that occurs when an unforeseen event or circumstance makes
the performance of the lease impossible or radically different from what was originally
contemplated. For example, if the property is destroyed by fire, flood, or war. The lease is
automatically discharged without any liability for either party (National Carriers v
Panalpina [1981] AC 675).
 A court order is a termination that occurs when a court of competent jurisdiction orders the
eviction of the tenant for a valid reason. For example, if the tenant fails to pay rent, breaches
a covenant, causes a nuisance, uses the premises for an unlawful purpose, or the landlord
needs the premises for his personal occupation. The landlord must file a complaint with the
Rent Control Department and obtain a summons for the tenant to appear before the Rent
Officer. The Rent Officer will hear both parties and make a determination in favour of one
party. If the determination is in favour of the landlord, he must send a reference form to the
District Court for the Magistrate to enforce the Rent Officer’s decision. The Magistrate may
adopt the Rent Officer’s decision or ask for the tenant’s side of the story before making a
determination. If the Magistrate makes a determination in favour of the landlord, he must
apply for a formal decree from the District Court that states the amount of rent to be
recovered and the date of eviction (Section 17(3) of Act 220; Kuma v Koi Larbi [2012]
GASC 27; West African Enterprises Ltd v Western Hardwood [2012] GASC 28).
 A tenant becomes a statutory tenant if he stays in possession of the property after the
expiration of the lease term without any agreement or conduct that indicates otherwise. A
statutory tenant holds a tenancy on a monthly basis subject to the payment of rent but
cannot alienate his interest. A statutory tenant can only be evicted on the grounds and
procedures provided by the Rent Act (Section 29 of Act 220; Nahum v Wolley and
Sons [2012] GASC 29; Boateng v Dwinfour [2012] GASC 30).
 A person who takes an interest in property is subject to all rights, obligations, and
encumbrances of his grantor. For example, if Nana Akua inherits a property from her uncle
that is encumbered with a mortgage, she becomes liable for the mortgage debt and subject
to the rights and remedies of the lender (Section 53 and 54 of Land Act, 2020 (Act
1036)).
 In an action for forfeiture of lease, the tenant may apply to the court for relief from forfeiture
subject to the payment of compensation or performance of an activity to remedy the breach.
The court will consider the conduct of the tenant and his readiness to remedy the breach
before granting relief. The court will not grant relief in case of denial of title (Section 58 of
Land Act, 2020 (Act 1036); Interplast v Bonsu [2012] GASC 31; Chas-Ocloo v Kyei
[2012] GASC 32; Schardorf v Zieni [2012] GASC 33).
To conclude, the termination of tenancy in Ghana is a complex and regulated process that requires
the compliance of both landlords and tenants with the common law and the Rent Act. The landlord
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must have a valid cause of action and a valid ground to evict a tenant, and must follow the proper
procedures and remedies. The tenant must pay rent and observe the covenants of the lease, and
may seek relief from forfeiture or eviction if he can show good cause. Both parties must respect the
rights and interests of each other and seek to resolve any disputes amicably or through the Rent
Control Department or the courts.
WILLS
Conveying a property under a will
I. Executors are required to obtain a grant of probate from the court to establish their
authority in administering the deceased person's estate. This grant of probate serves as
a certificate that authorizes the executor to carry out the wishes of the deceased person
as stated in their will. The process of applying for a grant of probate follows the guidelines
outlined in Order 66 of the High Court Civil Procedure Rules, 2004 (CI 47) and section 1
of the Administration of Estates Act, 1961 (Act 63). These laws govern the administration
of estates in Ghana and provide the necessary procedures and requirements for obtaining
a grant of probate.
II. Executors must prepare a document known as a vesting assent, which facilitates the
transfer of property ownership to the beneficiary or devisee mentioned in the will. This
legal document confirms that the property is being transferred solely to the beneficiary
and has not been previously vested in any other person. Only the executors or personal
representatives of the estate have the authority to issue a vesting assent.
III. The vesting assent is considered a registrable instrument under section 207 of the
Land Registration Act, 2012 (Act 1036). This means that it must be officially recorded in
the land registry to ensure its legal effectiveness and enforceability. The registration
process ensures that the transfer of property ownership is properly documented and
recognized by law. It is important to note that the vesting assent should be backdated to
the date of the testator's death, rather than the date of registration, to avoid any
confusion or disputes regarding the ownership of the property during the interim period.
IV. Unlike other types of property transfers, the vesting assent does not require stamping.
This means that no stamp duty or tax is payable for the transfer of property through the
vesting assent. The absence of stamp duty simplifies the process and reduces the financial
burden associated with transferring property ownership.
V. Once the property has been vested in the beneficiary, they become the legal owner
and hold the rights to dispose of or utilize the property as they see fit. They have full
ownership rights and can choose to sell the property if they wish.
VI. As the vendor, the beneficiary needs to prepare a contract for sale in accordance with
section 34 of Act 1036. This contract serves as a legally binding agreement that outlines
the terms and conditions of the property sale, including details such as the price, payment
method, and completion date.
VII. In cases where applicable, the beneficiary may prepare a deed of assignment to
transfer the entire unexpired term or residue of the property to the purchaser.
Alternatively, if the remaining term is shorter, a sublease can be used to transfer rights
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and obligations from the tenant to another tenant. A deed of assignment is a legal
document that facilitates the transfer of property rights from one party to another.
VIII. The deed of assignment or sublease must be registered, and the necessary stamp
duty must be acquired and paid as outlined in sections 81 and 135 of Act 1036.
Registration involves officially recording the document in the land registry, and the
payment of a specific percentage of the property's value as tax.
IX. After registration, the purchaser acquires both the legal and equitable interests in the
property. This means that they become the owner and possessor of the property, entitled
to enjoy all the benefits and rights associated with it.
X. Since the property is state-owned land, the purchaser must obtain a letter of consent
from the Lands Commission in accordance with section 50(1) of Act 1036. This letter of
consent serves as permission from the government agency responsible for managing and
regulating land use and ownership in Ghana. It is a necessary requirement for acquiring
state-owned land.
Requirements for bringing an application under section 13 of of the wills act

1. Dependant Status: To bring an application under Section 13, the applicant
must be a dependant of the testator, which includes the testator's mother,
father, spouse, or child under 18 years. A dependant is someone who relied on
the testator for financial or other support during their lifetime.
2. Time Limit: The application must be filed within three (3) years after the grant
of probate, which is the certificate authorizing the executor to act on behalf of
the deceased and carry out their wishes as expressed in the will. The application
should be made to the High Court with jurisdiction over the area where the
deceased had a fixed place of abode.
3. Lack of Reasonable Provision: The applicant must demonstrate that the
testator either failed during their lifetime or in the will to make reasonable
provision for them. Reasonable provision refers to what would be reasonable
given the circumstances of the case. The court considers factors such as the
estate's size and nature, the financial needs and resources of the applicant and
other beneficiaries, the testator's obligations towards the applicant and other
beneficiaries, any disabilities, and other relevant matters.
4. Hardship: The applicant must establish that they are suffering or likely to
suffer hardship due to the lack of reasonable provision made by the testator.
Hardship refers to difficulties or distress that may affect the applicant's welfare
or well-being. The court considers factors such as the applicant's age, health,
earning capacity, standard of living, financial obligations, and any other
relevant matters.
5. Court's Discretion: The court, taking into account all the circumstances, has
the authority to make an order granting the applicant support from the
deceased's estate. Support may include a sum of money or the transfer or
settlement of property that meets the reasonable needs of the applicant. The
court may also issue ancillary orders for costs, interest, maintenance, variation,
revocation, and other related matters.
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6. Section 13 of Act 360 enables the court to override the testator's
testamentary freedom in order to provide reasonable provision for the needs
of dependants if the testator fails to do so.
7. Akua Marfoa v Margaret Akosua Agyeiwaa: In this case, a daughter
applied for support from her father's estate under Section 13. The court granted
her application, ordering her to receive one-third share of her father's house
and a monthly allowance from his pension until she turned 18 or completed her
education.
8. Constitutional Provision: Article 22 of the constitution ensures that a
spouse is entitled to a reasonable provision from the estate of their deceased
spouse, regardless of whether a will was made or not.
9. Widened Scope for Surviving Spouse: A surviving spouse does not need
to prove a lack of reasonable provision during the testator's lifetime but rather
the lack of reasonable provision from the deceased's estate. This is due to the
constitutional right provided by Article 22, which grants a surviving spouse the
right to inherit from their spouse's estate, irrespective of the existence of a will.
The distinction between a Lease and A license

1. Lease creates an interest in the land that is binding on 3rd parties but a license is a
contractual license that creates no proprietary interest in land binding on 3rd parties.
2. A lessee of a residential accommodation is protected by the Rent Act but a licensee has no
such protection.
3. The test to determine whether between a licensee and lessee is to see if the occupier has
been granted exclusive possession for a fixed term at a stated rate.
4. Even where this test is satisfied there are some exceptions”
i. No intention to create legal relations from the onset
ii. Possession is pursuant to a contract of employment
iii. The occupier is a lodger in the sense of providing a service for which
unrestricted access and use or premise is required.
Street v Mountford.
Legal and practical issues governing acquiring land from a group

be it family or stool
Issue of capacity of the grantor.
Stool:
The grantor must be the stool occupant (chief) with the consent and concurrence of the
elders/principal councillors of the stool. This is based on the customary law principle that stool lands
are held in trust by the chief for the benefit of the stool subjects.
If the grant is made by the stool occupant and a majority of the elders, it is valid. If it is made by
the stool occupant and a minority of the elders, it is voidable and can be challenged by the aggrieved
parties3. If it is made by only the stool occupant or only the elders, it is void and has no legal effect.
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If the grantor is a caretaker chief, he or she must obtain ratification from the substantive chief and
the elders before making any grant of stool land.
Family:
The grantor must be the head of the family with the consent and concurrence of the principal
members/elders of the family. This is based on the customary law principle that family lands are
held in trust by the head of the family for the benefit of the family members.
If the grant is made by only some members/elders of the family without the head, it is void and has
no legal effect. If it is made by only the head of the family without the members/elders, it is voidable
and can be challenged by the aggrieved parties.
Statutory approvals
Stool lands:
The grantor must obtain approval from the Traditional Council under section 45 of the
Chieftaincy Act 2008 (Act 759) before making any grant of stool land. The absence of such
approval renders the grant voidable.
The grantor must also obtain approval from the Lands Commission for the proposed development
of the land under article 267(3) of the Constitution of Ghana 1992. This is to ensure that any
grant of stool land conforms to national development plans and policies.
Family lands:
The grantor must comply with section 36 of the Land Act 2020 (Act 1036), which requires that
any customary law transaction involving land must be recorded in writing and registered at a
Customary Land Secretariat established by section 37 of the same Act. This is to ensure that any
grant of family land is properly documented and recorded for transparency and accountability.
Title of the grantor vis a vis the interest of the grantee.
The title of the grantor refers to the type and extent of interest or right that the grantor has in the
land that he or she intends to grant to the grantee. The interest of the grantee refers to the type
and extent of interest or right that the grantee expects to acquire from the grantor.
Section 64 of the Land Act 2020 (Act 1036) defines good title as ‘a title that confers on its
holder an interest in land which can be transferred without any encumbrance or restriction except
those imposed by law’.
The interest of the grantor may vary depending on whether he or she holds an allodial title, a
usufructuary right, a customary law freehold, a common law freehold, a leasehold or a tenancy in
the land. Section 81 of the Land Act 2020 (Act 1036) provides a detailed description of these
types of interests in land.
The interest of the grantee may also vary depending on whether he or she acquires an allodial title,
a usufructuary right, a customary law freehold, a common law freehold, a leasehold or a tenancy in
the land. The interest of the grantee may also be subject to certain conditions, limitations or
restrictions imposed by law or by agreement with the grantor.
The title of the grantor and the interest of the grantee must be clearly stated and agreed upon in
the instrument of grant, such as an indenture, a lease or a deed. The instrument of grant must also
specify the duration, the consideration, the covenants and the warranties of the grant.
Capacity of the grantee:
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The capacity of the grantee refers to the legal ability of the grantee to acquire and hold an interest
in land. The capacity of the grantee may depend on his or her nationality, age, mental state, marital
status or other factors.
Article 266 of the Constitution of Ghana 1992 imposes a bar on freehold ownership of land
by foreigners (non-Ghanaians). A foreigner can only acquire a leasehold interest in land for a term
not exceeding 50 years at a time.
A usufructuary right in land can only be acquired by an indigene (a person who is a member of a
community that has customary rights in land) or by a person who has been naturalized as a citizen
of Ghana.
A person who is under 18 years of age, mentally incapacitated, bankrupt or under any legal disability
may not have the capacity to acquire or hold an interest in land without the consent or assistance
of a guardian, trustee, curator or other legal representative.
Prior or encumbrances.
A prior or encumbrance is any right, claim, lien, charge or interest in land that may affect or limit
the title or interest of the grantor or the grantee. A prior or encumbrance may arise from law,
contract, judgment, inheritance, adverse possession or other sources.
Before acquiring an interest in land, the grantee should conduct a due diligence to check whether
the land is subject to any prior or encumbrance that may affect his or her rights or obligations. The
grantee should conduct a search at the relevant land registry, customary land secretariat, traditional
authority or local community to verify the title and history of the land. The grantee should also
inspect the physical condition and boundaries of the land and inquire from the neighbours and
occupants about any existing or potential disputes or claims over the land.
Some examples of prior or encumbrances that may affect an interest in land are:
A usufructuary right in land held by a stool subject, a family member, a sharecropper, a tenant
farmer or a migrant farmer. Such a right may limit the power of the stool or family to grant the land
to a third party without the consent or compensation of the usufructuary.
A prevailing right in land held by a person who has acquired the land by virtue of long and
uninterrupted possession, occupation or use. Such a right may override the title of the original
owner or grantor of the land under section 82 of the Land Act 2020 (Act 1036).
A common usage right in land held by a person who has acquired the right to use the land for
specific purposes such as grazing, fishing, hunting or gathering by virtue of custom or tradition.
Such a right may limit the enjoyment of the land by the owner or grantee under section 19 of the
Land Act 2020 (Act 1036).
A mortgage, charge, lien or pledge over the land created by the owner or grantor as security for a
debt or obligation owed to a creditor. Such an encumbrance may affect the transferability of the
land and may expose it to foreclosure or sale by the creditor in case of default.
An easement, servitude, wayleave or right of way over the land created by law or contract to allow
access, passage, drainage, transmission or other benefits to another person or property. Such an
encumbrance may restrict the use and development of the land by the owner or grantee.
A covenant, condition, restriction or reservation over the land imposed by law or contract to regulate
the use, development, maintenance or preservation of the land. Such an encumbrance may bind
the owner or grantee and may be enforced by the original grantor or by other parties with an
interest in the land.
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Form of the transaction
The form of the transaction refers to the mode and manner of conveying an interest in land from
the grantor to the grantee. The form of the transaction may depend on whether it is governed by
common law or customary law.
Under common law, the transaction must comply with sections 34 and 35 of the Land Act 2020 (Act
1036), which require that any disposition of land must be made by deed executed by the parties
and attested by at least two witnesses. The deed must also be stamped and registered at the Land
Registry within three months of its execution.
Under customary law, the transaction must comply with section 36 of the Land Act 2020 (Act 1036),
which requires that any customary law transaction involving land must be recorded in writing and
registered at a Customary Land Secretariat established by section 37 of the same Act. The written
record must contain the names and addresses of the parties, the description and location of the
land, the nature and extent of the interest or right transferred, the consideration paid or agreed to
be paid, and any other terms and conditions agreed upon by the parties. The written record must
also be signed by the parties and attested by at least two witnesses.
Literacy Requirements and Principles of Unconscionability.
Literacy requirements and principles of unconscionability are legal safeguards to protect parties who
are illiterate, ignorant, poor, old, sick or otherwise vulnerable from being exploited or cheated in
land transactions. These safeguards are based on equity and fairness and aim to prevent undue
influence, fraud, duress, mistake or misrepresentation from affecting the validity or enforceability
of land transactions.
Under section 38 of the Land Act 2020 (Act 1036), any party to a land transaction who is illiterate
must have an interpreter explain to him or her in a language that he or she understands the nature
and effect of the transaction before signing it. The interpreter must also sign a certificate stating
that he or she has explained the transaction to the illiterate party and that he or she has no interest
in the transaction. The certificate must be attached to the written record of the transaction.
Under section 39 of the Land Act 2020 (Act 1036), any party to a land transaction may apply to a
court to set aside or vary the transaction on the ground that it is unconscionable. The court may
grant such relief if it is satisfied that:
The transaction was induced by undue influence, fraud, duress, mistake or misrepresentation;
The transaction was grossly unfair or oppressive to one party;
The transaction was made without adequate consideration or for an inadequate consideration;
The transaction was made without independent legal advice or without full disclosure of material
facts;
The transaction was made in violation of any law or public policy.
Form of consideration:
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Consideration is anything of value given or promised by one party to another in exchange for an
interest or right in land. Consideration may be monetary or non-monetary, such as goods, services,
labour, crops, livestock, marriage, allegiance or goodwill.
Section 2 of the Land Act 2020 (Act 1036) defines consideration as ‘any money paid or agreed to
be paid; any rent reserved; any goods delivered; any service rendered; any natural love and
affection acknowledged; any act done; any promise made; any forbearance shown; any benefit
conferred; any loss suffered; any responsibility undertaken; any liability released; any right given
up; any interest created; any charge imposed; any condition stipulated; any covenant entered into;
any reservation made; any option granted; any power conferred; any contingency provided for; or
anything else done or agreed to be done’.
Section 5 of the Land Act 2020 (Act 1036) provides that consideration for the grant of an interest
in land must be adequate and fair. Section 3 of the same Act provides that consideration for the
grant of an interest in land must not be contrary to public policy or morality.
Cost Involved.
Cost involved refers to the expenses incurred by the parties in relation to the land transaction. Cost
involved may include:
Fees for legal advice, drafting, witnessing, interpreting, certifying or notarizing the instrument of
grant;
Fees for surveying, mapping, demarcating or valuing the land;
Fees for searching, verifying, recording or registering the interest or right in land at the relevant
land registry or customary land secretariat;
Fees for stamping the instrument of grant at the Land Valuation Board;
Taxes for transferring the interest or right in land at the Internal Revenue Service;
Compensation for any existing or affected rights or interests in the land;
Rent for leasing the land;
Royalties for using the land;
Maintenance or development costs for improving the land.
Planning and Permission Requirements – DA / EPA
Planning and permission requirements refer to the legal and regulatory framework that governs the
use, development and management of land in Ghana. Planning and permission requirements aim
to ensure that land is used in a sustainable, efficient and orderly manner that conforms to national
and local development plans and policies and that protects the environment and public health and
safety.
The main authorities responsible for planning and permission requirements are the District
Assemblies (DAs) and the Environmental Protection Agency (EPA). The DAs are the local
government units that have the power to plan, regulate and control the use and development of
land within their respective districts. The EPA is the national agency that has the mandate to protect
and improve the environment and to ensure compliance with environmental laws and standards.
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Before acquiring an interest in land, the grantee should consult with the relevant DA and EPA to
obtain information on the zoning, planning and building regulations that apply to the land. The
grantee should also apply for the necessary permits, licenses or approvals from the DA and EPA
before undertaking any development or activity on the land that may have an impact on the
environment or public health and safety. Such permits, licenses or approvals may include:
Development permit from the DA for any construction, alteration, extension, demolition or change
of use of any building or structure on the land;
Building permit from the DA for any erection, installation, modification or repair of any building or
structure on the land;
Environmental permit from the EPA for any activity on the land that may have significant adverse
effects on the environment, such as mining, quarrying, logging, farming, manufacturing, waste
disposal or energy generation;
Environmental impact assessment (EIA) certificate from the EPA for any activity on the land that
may have significant adverse effects on the environment and requires an EIA to be conducted before
commencement;
Environmental management plan (EMP) approval from the EPA for any activity on the land that
requires an EMP to be prepared and implemented to mitigate or monitor the environmental impacts
of the activity.
Question to ask when your client wants to buy property

encumbered with a mortgage under a will
A mortgage is a type of loan that uses property as security or collateral. The borrower (mortgagor)
agrees to repay the loan to the e lender (mortgagee) over a period of time, with interest. The lender
has the right to sell the property if the borrower defaults on the loan.
A property that is encumbered with a mortgage means that the property is subject to the rights and
obligations of the mortgage contract. The owner of the property cannot sell or transfer the property
without the consent of the lender or without paying off the loan.
When your client wants to buy a property that is encumbered with a mortgage, you need to ask
some questions to ensure that the transaction is valid and legal, and that your client's interests are
protected.
Some of these questions to ask when dealing with a property obtained under a WILL:
What is the status of the will of the deceased owner of the property? Has it been proved
and granted probate by the court? (Probate is a legal process that confirms the validity of a will
and authorizes the executors to administer the estate of the deceased.) If not, then the executors
have no legal authority to deal with the property (Administrator of Estate Act, 1961 (Act 63),
Section 1).
Has the property been released or transferred to Nana Akua by a vesting assent? (A
vesting assent is a document that transfers legal title or ownership of property from an executor or
administrator to a beneficiary under a will.) If not, then Nana Akua has no legal interest in the
property (Wills Act, 1971 (Act 360), Section 13).
What kind of interest did Nana Akua obtain from the will in the property? Was it a
specific gift, a general gift, or a residuary gift? (A specific gift is a gift of a particular item or
property; a general gift is a gift of money or other fungible assets; a residuary gift is a gift of
32 | P a g e
whatever remains in the estate after all other gifts and expenses are paid.) If it was a specific gift,
then it may be subject to ademption (see below).
Is the property encumbered by any other provisions or conditions in the will? For
example, does Nana Akua have to satisfy any obligations or duties before she can enjoy the
property?
Does she have to share the property with any other beneficiaries?
Does she have any rights or powers over the property?
Mortgage
What are the terms and conditions of the mortgage contract?
How much is the principal amount, interest rate, duration, and repayment schedule of
the loan?
Is there any penalty for early repayment or default? Is there any provision for further
advances or variations?
Has the mortgage been redeemed or paid off?
If yes, has the lender issued a written discharge or release of the mortgage?
Has this document been registered at the appropriate land registry and collateral
registry?If not, then the lender still has a charge or lien over the property (Land Act, 2020 (Act
1036), Section 170; Borrowers and Lenders Act, 2008 (Act 773), Section 25).
Has the loan be repayed in full?
If no, how much is outstanding on the loan?
Has Nana Akua agreed to assume or take over the loan from the deceased owner?
If yes, has she obtained consent from both her spouse (if married) and the lender?
If not, then she may be liable for breach of contract or fraud (Marriage Act, 1884-1985 (Cap 127),
Section 74; Criminal Offences Act, 1960 (Act 29), Section 131).
Has Nana Akua taken any insurance coverage for the mortgage loan? If yes, what arethe terms and
benefits of the insurance policy? If not, then she may be exposed to the risk of losing her investment
in case of default or foreclosure.
Has Nana Akua made any further advances or improvements on the property using her own funds?
If yes, what are the nature and value of these advances or improvements? If not, then she may not
have any equitable interest in the property.
Has Nana Akua complied with all the statutory requirements for registration of interest
in land and registration of charge at both the land registry and collateral registry? If yes,
what are the proof and evidence of registration? If not, then she may not have any legal interest in
the property (Land Act, 2020 (Act 1036), Section 24; Borrowers and Lenders Act, 2008 (Act 773),
Section 24).
Are there any restrictions or limitations on the transferability of the property? For
example, does the property fall under any zoning or planning regulations, customary or religious
33 | P a g e
laws, or environmental or heritage laws? If yes, what are the implications and consequences of
these restrictions or limitations?
Has the property been used as a security or collateral for any other loan or obligation
by Nana Akua or the deceased owner? If yes, what are the details and status of these loans or
obligations? If not, then there is no risk of double encumbrance or multiple claims on the property.
Does Nana Akua still retain legal title or ownership of the property? If yes, what are the proof and
evidence of her title? If not, then she may have transferred or lost her title to another person or
entity.
If there is any breach or default on the mortgage loan, what actions can the lender take to recover
the loan or enforce the mortgage contract? For example, can the lender sue for specific
performance, damages, injunction, foreclosure, sale, possession, or receivership? What are the
rights and remedies of Nana Akua in such a situation?
Documents to be considered for a valid transfer
To ensure a valid and legal transfer of property that is encumbered with a mortgage, the following
documents should be considered and obtained:
- The will and probate of the deceased owner of the property
- The vesting assent from the executors to Nana Akua
- The title deeds of the property
- The receipts or confirmation of payments made for redemption of the mortgage loan
- The written discharge or release of the mortgage from the lender
- The mortgage deed or contract
- The insurance certificate for the mortgage loan
- The acknowledgement certificate from the collateral registry
- The memorandum for release of debt under the Borrowers and Lenders Act
- The proof of registration of charge under the Land Act
- The contract for alienation of title in land subject to Section 34 of the Land Act
- The deed of transfer subject to Section 35 of the Land Act
34 | P a g e

Conveyance Theory Update

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Conveyance Theory Update

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Compiled by ZO—kindly crosscheck

Conveyancing Theory overview.

POSTPONEMENT of REDEMPTION: this may only be valid so long as the

Rights and duties mortgagee in possession

The Doctrine of Ademption

Types of Land Rights: Easements, Profits a Prendre, and Restrictive

Power of Attorney - Revocation

Comparing Power of Appointment and Power of Attorney

Presumption of Advancement: Understanding Property Transfers

Presumption of advancement in light of the 1992 constitution

Remedies for breaches of trust include:

Registration of Instruments under the Land Act, 2020 (Act 1036)

Contract for goods vs contract for immovable property

Requirements for bringing an application under section 13 of of the wills act

The distinction between a Lease and A license

Legal and practical issues governing acquiring land from a group

Question to ask when your client wants to buy property

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