Immovable Property I

Pledgeof Land Under Customary Law

Pledge
The pledge transaction has been abolished by statute . See Mortgages Decree, 1972 (NRCD 96),s 2; Mortgages
(Amendment) Decree, 1979 (AFRCD 37)

A Pledge involves the delivery of possession and custody of property. The

creditor/pledgee holds the property until the obligation is discharged.
Essence Of A Pledge
It confers upon the Pledgee possession and the beneficial use of the
Pledgor’s interest in land until the debt is paid.
Secondly, the Pledgee does not account to the Pledgor the proceeds he
reaps from the land.
Thirdly, the Pledgor may redeem at any time provided he pays the loan
(DAPAA v POKU).
Any title or right in land is capable of being pledged. The only exception is
in the annual tenancy where one cannot pledge.
Pledgees and purchasers of land under the
customary law in Ghana.
 The pledge of land in customary law had much in
common with the sale or gift of land under the
customary law. Hence most of the essential
requirements of a valid sale or gift under the
customary law, apply equally to a pledge under the
customary law i.e there must be publicity, the land
must be properly demarcated for the pledgee, the
pledgee must be placed in possession, the pledgor
must be the owner of the land pledged and be
competent to pledge and intend to do so.
Main Differences between Pledgees and
purchasers of land
 (a) in the case of a sale, the payment of fees for the demarcation is the
responsibility of the purchaser; but in the case of a pledge, it is the
responsibility of the pledgor;
(b) in the case of a sale, drinks required during the various stages of the
transaction are provided by the purchaser; but in the case of pledge the
drinks are provided by the pledgor;
c) Guaha as in Fanti and Tramma as in Ashanti (or some such custom)
must be performed in the case of a sale; but in the case of a pledge, that
custom is not performed since a pledge is only a temporary delivery of
possession of land as security for a loan taken or an obligation undertaken
by the pledgor and could be terminated by redemption at any time, this
was instructive in the case of Paintsil v Aba [1964] GLR 34 .In Paintsil v Aba
[supra] the Supreme Court held that the absence of the guaha showed that

the transaction was a pledge and not a sale.

 A. Tenancies.
Customary tenancies is a temporary land transaction,
the grant of a tenancy under the customary law does
not require the performance of the guaha or any such
custom. The land subject to the tenancy must,
however, be demarcated for the tenant in the presence
of witnesses including boundary owners and the
tenant placed in possession. The tenant provides the
drinks and pays the fees for the demarcation of the
land.
B. Samansiw.
 Although disposition of property by samansiw (a nun- captive will) is
strictly speaking not a conveyance. However, under customary
conveyance there are similarities between the essential requirements for
its validity and the customary conveyances properly so-called. A
disposition of land by samansiw is more in the nature of a gift inter vivos
contingent upon the death of the donor than a testamentary disposition
known to the English law. The disposition so made may be revoked at
any time before the death of the donor See Sarbah; "Fanti Customary
Law", page 98.. It is against customary law for a person to appoint his
own successor or head of family in anticipation of his death. It is,
however, in order for a person, by his samansiw, to appoint a person to
be the caretaker of his self-acquired properties disposed of by him by his
samansiw. The person so appointed is a mere trustee of the properties
and not a successor or head of family by customary law, and unlike a
successor by customary law or a head of family, he is accountable to the
beneficiaries. See Nelson v Nelson (1932) I WACA 215
Samasiw (Cnnt…)
Gifts made by samansiw must be
made with as much publicity as
possible and there must be
acceptance by or on behalf of the
beneficiaries during the lifetime of
the testator (donor).
Differences between a Gift inter vivos and a
Gift by samansiw
There are three main differences between a gift inter
vivos and a gift by samansiw, namely
(a) in the case of samansiw, there is no inspection or
demarcation of the land;
(b) the beneficiary is not placed in possession of
the land; and
(c) Aseda items are not presented by the donee to the
donor apart from the drinks given by or on behalf of
the beneficiary at the time of the declaration.
Case Analysis of Gift inter vivos and Gift by
samansiw

The Court of Appeal in the case of In re Armah (Deed): Awotwi v Abadoo [1975]
1GLR 374 held that to constitute a valid oral customary will, the following evidentiary
requirements must be met -
(a) the declaration should have been made in contemplation of death
(b) there should be credible witnesses present who could testify that the dispositions
were made in their presence and to their hearing; and
(c) the dispositions should concern the self-acquired properties of the deceased.
The Court of Appeal went on to hold that failure to pay an aseda, or the absence of a
member of the family of the testator as a witness at the maxing of the samansiw would
not nullify nor render void a bequest. See also Hausa v Hausa [1972] 2 GLR 469