Le 252 - Customary Land Law Power Point-1

CUSTOMARY LAND LAW
COURSE OUTLINE
1. Meaning and the Nature of land
2. Land Ownership in Ghana
•Private Lands
•Public Lands (State Lands & Vested Lands
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COURSE OUTLINE Con’td
3. Rights and interests in customary land
a). Allodial/absolute interest or title
b. The customary law freehold
Interests (Usufructuary interest)
c). The Common law Freehold
d). Life interests
e).The Leasehold interests
.
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f). Lesser interests
• Tenancies and sharecropping
arrangements
g). Licenses
4. Incidents of the Allodial and Usufructary
interests
Acquisition, Use, Transfer and Termination
of the Allodial and Usufructary interest
interest
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5. The Doctrine of Trusteeship
Meaning of a Trust
Equitable and Legal rights
Modern dynamics of trust in land
6. Challenges of Customary Land
Administration in Ghana
7. Statutory Limitations in Customary Land
Administration
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INTRODUCTION
 Ghanaian customary law comprises of law
governing relations between members of
various communities has since the advent of
British colonialism undergone intensive
moulding by both judicial and statutory
interventions. The unwritten principles of
Ghanaian customary land law have been
examined by several writers from a variety
of standpoints up to a point where several of
its most fundamental principles are quite
well settled.
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MEANING AND THE NATURE OF LAND
The Ghanaian customary land law is a

progression from oral transactions, witnessing
a transformation from tribe to state through
legislative interventions and the receipt of the
common law facilitated and complicated the
customary law of Ghana.
Land is seen as an asset with many diverse

attributes:
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Land includes; the land itself, that is, the
surface soil, things which are enjoyed with the
land such as rivers or streams or trees or
anything that has been artificially fixed on it
such as houses. It also includes any estates,
interests or rights in, to or over land or over
any of the things which land denotes such as
the rights to collect herbs or the right of way.
Land therefore is both a physical asset and a
legal asset.
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#Corporal Hereditament –the legal aspect of

land as an asset. The unseen aspects of the
land that gives you the right interests to enjoy
it. The bundle of rights and interests have
which defines the extent to which you can use
the land.
Rights to use: Entitles you to put the land to
whatever permissible use you want to.
Right to reversion: The right to take back the
land upon the expiration of the agreed lease
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Right to exclusive possession:

•The right to possess the land without any
competition.
Right to alienate
According to Ollenu:
“The term ‘land’ as understood in
customary law has a wide application. It
includes thing on the soil which are
enjoyed with it as being part of the land by
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MEANING AND THE NATURE OF LAND Con’td
• “e.g., rivers, streams, lakes, lagoons,
creeks, growing trees like palm trees and
dawadawa trees, or as being artificially
fixed to it like houses, buildings and any
structures whatsoever; it also includes
any estate, interest or right in, to, or over
the land or over any of the other things
which land denotes, e.g., the right to
collect snails or herbs, or hunt on land “
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• Section 32 of the Interpretation Act, 1960
(C.A) defines land to include; “land covered
by water, and any house, building or structure
whatsoever, and any estate, interest or right
in, to or over land or water.”
• From the above Ollenu and statutory definition
of land, four categories of property are
deductible:
• 1. Earth or soil;
• 2. houses and farms;
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3. movables; and
4. intangible property.
•Land therefore, from the foregoing, is not just

the physical entity; it includes all soils and
items embedded or fixed to it. It also includes
the interests and rights over land.
•Man is anchored to land and his social and
economic existence as well as all his activities
require a spatial dimension, including the use
and enjoyment of the
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• including the use and enjoyment of the
surface soil for residence.
• Bentsi-Enchill K, in his book, Ghana Land
Law, London 1964, expressed the
relationship between man and land thus:
• “Man is a land animal, and land matters
mightily to him. His talents and energy
can take him far; but his roots are no
less in the earth than those of any tree,
and his achievement is much affected by
what he makes of the land he lives on,
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• what it contains, the heat and light, rain and air

that fall to its lot. Whether he has any land for
his own use, how he holds it, what he gets out
of it - these condition to a great extent the
measure of a man’s material wealth and also
the character of his social relationship”
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LAND OWNING ENTITIES
• Customary Law recognises three land-owning
entities: the stool, family and individual. By
definition, land occupies fixed space within
economic activities take place, and through
accession (defined by Ollenu as, land gained
or reclaimed from sea or river by alluvium)
swamps may be reclaimed and land previously
covered by a water body may be reclaimed
through drought or a narrowing of the river
course as a result of the construction of dams
or natural courses.
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• Rights to land are now subject to a number of
interests of the state, especially those relating to
minerals.
• The Constitution (art. 257 (6)) provides that, -“
every mineral in its natural state in, under or upon
any land in Ghana, rivers, streams, watercourses
throughout Ghana, the exclusive economic zone
and any area covered by the territorial sea or
continental shelf is the property of the Republic of
Ghana.” This has been captured by both the
Minerals and Mining Law as well as the
Petroleum (Exploration and Production) Law.
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• Notions for group responsibility for land
manifest in mobilisations for collective
defence of the land and feelings of allegiance
to the group. Individual landholders attach
great sentimentality and pride to their landed
possessions, occupying and developing them
over a sustained period of time, to be
devolved to their heirs.
• Land includes attachments or annexures to
landed property. Jurisprudence has been
developed in English law regarding the degree
of annexation enabling a fixture to
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• enabling a fixture to constitute part of land.
Generally houses are regarded in customary
law as fixed to the land. Where a structure
can be easily dismantled and reassembled it
is not considered attached to the land. But
where the removal of the structure will involve
actual demolition with attended destruction of
the land, the customary law considers the
structure as part of land. Similarly, trees are
tied to the land and are considered as part of
the land.
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• In summary, land includes all things lying on
the surface of the earth or embedded in its
soil in their natural state, including minerals
and natural vegetation.
• Land also includes fixes, such as walls,
fences and buildings, which are added by
humans.
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PECULIARITIES OF LAND.
Land is a unique type of property with peculiar
qualities making it the safest form of both
possession and investment. These
characteristics include:
• Permanence
• Land is a permanent asset with social and
economic value. It serves as residence and
basis for economic and social activity. It is
also imperishable, holdings in land persist
from generation to generation.
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• Indeed land is indestructible. It can be
degraded, excavated, bombed out, but it can
always be reclaimed.
• Fixity
• Every piece of land occupies a specific
location on the face of the earth. It is a parcel
of soil fixed to the terrestrial globe and
occupies a particular location and address.
In customary law, the sale of land involves
demarcation of boundaries and notifications
to adjoining owners.
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• Imperishability
Holdings in land persist from generation to
generation. Houses and other attachments to
land also acquire a quality of imperishability
making them preferred forms of investment.
Land is virtually indestructible for it can
always be reclaimed after degradation etc.
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• Limited supply
Space on the surface of the earth is limited,
especially more so in preferred residential
and commercial locations. No two locations
are the same. A purchaser might choose a
property because of its location; i.e. it has a
view on a hill side with a spectacular view of
the city etc.
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PECULIARITIES OF LAND
• Necessity
• Land is the basis of all human activity
whether one requires a business,
accommodation or employment, he needs
land as a basis. Social and economic life are
inconceivable without land.
• Income and capital value
• Land yields rent, land can be given out by
way of tenancy or license and derive an
income value in the form of regular payments.
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PECULIARITIES OF LAND
• This is in addition to the capital value of the

house if sold.
LAND OWNERSHIP IN GHANA
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LAND OWNERSHIP IN GHANA
• No unowned Lands in Ghana

• Early legal theory on Ghanaian land law is of
the view that there are no unowne4d lands in
Ghana. Sarbah had argued that according to
native ideas there is no land without owners.
This was supported by Dr. Woodman quoting
Ababio v. Kanga (1932)1WACA which held
that, “Now in the Gold Coast, there is no
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No unowned Lands in Ghana
• , “Now in the Gold Coast, there is no land
without and owner, all vacant lands being
attached to the nearest stool in which they
may be saidto vest for the community
represented by that particular stool”. In
1962 Ollenu stated further that, “The first
basic principle of our customary land law is
that there is no land in Ghana without an
owner. Every inch of land in Ghana is vested
in somebody”.
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SUMMARY OF LAND OWNERSHIP IN GHANA
• Ollenu, N. A. Principles of Customary Land

Law in Ghana (1962),p.4
• Generally, land ownership in Ghana can be

classified into (A) Private and (B) Public
ownerships. Public ownership connotes
that land belongs to the generality of
Ghanaians. All Ghanaians have a stake and
no matter which region or tribal group one
belongs,
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• he or she has a share or ownership rights in
those lands. These category of lands are
therefore owned by the state to which all
Ghanaians are stakeholders and it is the
government as trustee, who holds and
manages such lands on behalf of all
Ghanaians.
• On the other hand, private lands are held and
owned by private “persons’ mostly in the
nature of communities of persons, and are
also held and managed by stools/skins”.
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A. PRIVATELY HELD LANDS
• These lands countrywide are estimated to
constitute about 80% of total land in
Ghana as covered by the ten regions.
These category of lands customarily come
in three categories and are owned by:
• Stool / Skin Lands
• Family Lands
• Individual Lands

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Stool / Skin Lands
• The first category of private lands are stool
and skin lands. They form the bulk of not
only private lands but all lands in Ghana.
They are mostly tribal lands and belong to
the various tribal communities across the
country. Most of these tribes or
communities have chiefs as community
leaders and their symbols of authority are
special “stools” and “skins”.
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Stool / Skin Lands
The lands therefore are said to be owned by
these “stools” or “skins” which are they
embodiment of the souls of the particular
tribe. The chiefs who occupy the stools are
therefore the custodians of the lands and hold
and manage such lands on behalf of their
subjects (See Article 267(1) of the 1992
Constitution). It reads:
“All stool lands in Ghana shall vest in the
appropriate stool on behalf of, and in trust for
the subjects of the stool in accordance with
customary law and usage”.
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Stool / Skin Lands
• Stools are the symbols of authority of a
chief in most parts of the southern
sector of Ghana while the skin is the
symbol of authority in the northern part.
Thus almost all the Akan areas of the
south (Ashanti Region, Brong-Ahafo,
Eastern, Central and Western Regions)
are stool lands while almost all lands in
the Northern Region are skin lands.
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FAMILY LANDS
• The second category of private lands in Ghana
are family lands. In certain parts of Ghana,
community lands are customarily further
divided and are held and owned by families
and not the stools or chiefs. The family heads
are the custodians of these lands and not the
chiefs. Thus in certain parts of Ga area and the
Volta Region, the lands belong to the families,
so are lands in the Upper East and West
Regions where the Tindaana is held to be the
trustee for these family lands.
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INDIVIDUAL LANDS
• Third category of private lands are
individually owned lands. But can
individuals own land in Ghana?
• Before the advent of colonial rule, land was
always vested in groups as allodial owners
and never in the individual. The celebrated
words of Rayner, C.J. which were quoted by
Lord Haldane in Amodu Tijani v. Secretary,
Southern Nigeria: The next fact which it is
important to bear in mind in order to
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CAN INDIVIDUALOWN LAND?
• understand the native land law is that the
notion of individual ownership is quite foreign
to native idea. Land belongs to the
community, the village or family, never to the
individual”.
• However, land reform brought about largely
as a result of the introduction of the common
law, individuals could own land.
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INDIVIDUAL LANDS
• Individuals in the past, especially during
colonial rule held lands which they acquired
the allodial titles from stools or chiefs and as
such are land owners in their own rights. It
must be noted however, that in modern times,
it is not possible for individuals to acquire the
allodial title anymore except the state or
government. Article 267 (5) places an
injunction on this, for it reads:
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INDIVIDUAL LANDS
• “Subject to the provisions of this
Constitution, no interest in, or right over,
any stool land in Ghana shall be created
which vests in any person or body of
persons a freehold interest howsoever
described”.
• From the above, since the allodial, ultimate
or absolute interest is a freehold title, it
means individuals can no longer acquire the
ultimate as land owners in the country.
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B. PUBLIC OR STATE LANDS
• . The second category of lands in Ghana are
owned by the state and are known as state or
public lands. The first of these are the
state/public owned lands. In principle and in
law, these lands are owned by all Ghanaians
collectively and are only held and managed
for them by the government of the day, hence
they are also referred to as “Government”
lands. These State, Public or Government
lands together with vested lands are also
estimated to constitute about 20% of total
lands in the country.
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• Government acquired these lands over the
years since the colonial era from stools and
families for developmental purpose such as
school lands, sport stadia, hospital lands,
Ministries, lands for research purposes, road
infrastructure, etc. State owned lands
constitute or form about 18% of all the 20%
state or public lands. They were and are still
being acquired through the following
mechanisms:
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• Gifts/Donations from stools/skins/families
• Compulsory Acquisitions
• The second category of public lands are the
vested lands. These lands are in law not
owned by the state but are vested for
management purposes.
• Vested Lands are not acquired but vested in
the state due mostly to some political reasons
in the past.
• They are therefore said to be in split
02/10/24
• ownership; government holding the legal
title and the stools from which the lands
are vested, holding the beneficial title.
This means the government simply holds
these lands to manage them for the
benefit of the stools and any revenue
accruing from such management must
be given to the respective stools from
which the lands are vested.
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• These lands can also be de-vested or given
back to the stools at any time if government
so desires to do so.
• Vested lands constitute or form about 2% of
all state lands in Ghana.
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3. TYPES OF INTERESTS IN LAND
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• The interests which can=exist in customary
land law and at common law in Ghana are of
five categories as classified by the Land
Title Registration Law, 1986 (PNDCL 152).
Section 19 of that law provides the types of
interests as follows:
• The allodial Interest;
• The customary freehold interest /the
common law freehold
• A leasehold interest; and
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• Lesser interests and rights created by
contractual arrangements, sharecropping
arrangements or other customary tenancy
arrangements.
• 1. THE ALLODIAL INTEREST
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• The allodial title is the highest form of
interest known to customary land law that
can exist in land. Every other right in land is
drawn from the allodial interest. It may be
described as the absolute, paramount,
uttermost or radical interest in land. In certain
parts of Ghana the allodial title is held by
stools and skins only; in other parts, the
allodial title may be held by stools, skins,
sub-stools, clans, families and even
02/10/24 47
• and even individuals (see Amodu Tijani
v. The Secretary, Southern Nigeria
(1921)).
• In general it is usually vested into a
cooperate entity such as a stool, a skin or
a family. They are such that, they will exist
into perpetuity thus making them capable
of perpetual succession.
• As was held in Quarm v. Yankah (1930)
1W.A.C.A. 80 “, Dean, C.J., said;
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1. THE ALLODIAL INTEREST
• As was held in Quarm v. Yankah (1930)
1W.A.C.A. 80 “, Dean, C.J., said;
• “ The conception of the stool that is and
has always been accepted in the Courts
in this Colony is that it is an entity that
never dies, a corporation soul like the
Crown, and that while the occupants
may come and go, the stool goes on
forever”.
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1. THE ALLODIAL INTEREST
•The community or the person in whom

the allodial title is vested has complete
and absolute freedom to dispose of it
subject only to the laws of the land.
The state also own the allodial title or
interest to state/public lands.
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• 2.THE CUSTOMARY
LAW FREEHOLD
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2.THE CUSTOMARY LAW FREEHOLD
• The customary freehold is an interest
in land held by individuals and sub-
groups in land which is owned
allodially by a larger community of
which they are members. It is an
interest held as of right by members of
such a community who acquired it by
first cultivation or by allotment from the
owning group of which they are
members.
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2.THE CUSTOMARY LAW FREEHOLD
• The person who holds such an interest has
the right of beneficial occupation of the land
concern, which may devolve upon his
successors ad infinitum, but which will
come to an end on the failure of his
successors. The customary freeholder may
dispose of his interest in the land inter
vivos or while alive as he pleases. The
interest is of an indefinite duration and
prevails against the whole world including
the allodial title which gave birth to it.
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• 3.THE COMMON
LAW FREEHOLD
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3.THE COMMON LAW FREEHOLD
• The common law freehold is an interest in
land which is also held for an indefinite
period but which is derived from the rules
of common law. It is created only by
express grant and is mostly acquired by
strangers, but it can also be acquired by
members of a stool or skin or family. Like
the customary freeholder, the person who
has this interest in any land, has the right
of beneficial
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3.THE COMMON LAW FREEHOLD
• occupation of the land which may
devolve
• upon his successors ad infinitum, but
which will come to an end on the
failure of his successors. As an
express grant, the grantor may impose
terms on the grantee, provided these
terms are not contrary to public policy
or are not unconscionable.
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• NON-GHANAIANS AND
• THE FREEHOLD INTEREST
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NON-GHANAIANS AND THE FREEHOLD INTEREST
• Non-Ghanaians are by law not permitted

to acquire or own the freehold interest in
land in Ghana. Under article 266 ((1) of
the 1992 Constitution, a non-citizen
cannot hold a freehold interest in any land
in Ghana. Clauses (2) and (3) provide
thus;
• (2) “An agreement, conveyance or
deed of whatever nature, which,
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• which seeks, contrary to clause (1) of
this article, to confer on a person who is
not a citizen of Ghana any freehold
interest in, or rights over, any land is
void”.
• (3). “Where on the twenty-second day of
August 1969, any person not being a
citizen of Ghana had a freehold interest
in or right over any land in Ghana, that
interest or right shall be deemed to be a
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NON-GHANAIANS AND THE FREEHOLD INTEREST
• be a leasehold interest for a period

of fifty years at a peppercorn rent
commencing on the twenty-second
day of August 1969, and the
freehold reversionary interest in
any such land shall vest in the
President on behalf of , and in
trust, for the people of Ghana”.
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• GHANAIANS AND THE
FREEHOLD INTEREST
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• The Constitution has further injuncted the
creation of the freehold interest even for
Ghanaians since 7th January 1993. Article
267(5) provides:
• “Subject to the provisions of this
Constitution, no interest in, or right
over, any stool land in Ghana shall be
created which vests in any person or
body of persons a freehold interest
howsoever described”.
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GHANAIANS AND THE FREEHOLD INTEREST
• However, unlike in the case of

foreigners, this provision does not take
retrospective effect and only prohibits
future creation of freehold interests as of 7th
January 1993 and does not proscribe
freehold interests already held by
Ghanaians. In addition it is argued that the
prohibition affects only the common law
freehold but not the usufructuary or
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GHANAIANS AND THE FREEHOLD INTEREST
• or customary law freehold since by its
nature, it is not expressly granted but
acquired as of right of being a member of
the land –owning group.
• 4. THE LEASEHOLD INTEREST
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4. THE LEASEHOLD INTEREST
• The leasehold. A leasehold interest is a
creature of common law. It is an estate or
interest in the land granted at common
law by the owner of land to a person to
occupy the land for a specified or fixed
term or some specific period of time. A
leasehold may be granted by either the
holder of the allodial title in respect of
land over which he has not already
02/10/24 65
• granted conflicting interest such as
customary freehold, or by a customary
freeholder or common law freeholder also
over land he has not already granted
conflicting interest. In Ghana, a lease can
be granted for a maximum period of only
99 years but may also be granted for as
short as one year. Where a lease is
granted, payment for the right to occupy
and use the land is made by way of annual
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• rent to the grantor or lessor and the
grantee or lessee must also observe
some covenants that are imposed on the
grant. The lessee can also, subject to
express permission from the grantor, also
sublease or assign his or her interest to
another person.
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5. The Customary tenancies
• These are lesser interests in land created by
owners of the allodial or customary
freeholders or common law freeholders. They
are usually share-cropping contractual
arrangements by which tenant farmers obtain
land for farming purposes. The tenant-farmer
normally gives a specific portion of the
produce to the landlord or grantor as rent.
The two most popular arrangements are the
abunu and abusa (in Akan) or their
02/10/24 68
5. The Customary tenancies
• equivalence in some other tribes. With the
monetization of the economy, the abunu
and abusa arrangements are gradually
being replaced with cash tenancies where
money and not the produce is now being
paid as farm rent.
• The customary law licence is also a right
over land granted to a person for farming
purposes most often on gratuitous basis.
02/10/24 69
6. Life Interests
• Common law has also introduced in addition
to leases, the concept of the life interest. It is
a freehold interest in land held for the life of
the holder, i.e. for as long as he lives, in
which case, the interest can neither be
transferred beyond the life of the holder inter
vivos nor upon death, but as long as the
holder is living, he is entitled to occupation
and use and can grant leases which must
terminate upon his or her death.
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6. Life Interests
• There are two categories of life interests:
land held for the life of the holder or for the
life of another person. Thus, it can be
created for the life of the tenant himself,
made by deed or by will. It can also be
created for the life of another person, in
which latter case it is called an interest pur
autre vie. Thus we have life interest for
the life of the tenant himself and life
interest pur autre vie (i.e. for the life of
another).
02/10/24 71
6. Life Interests
• The interest pur autre vie is said to be the
lowest estate of free hold known to the law
and is not so great as an interest for the
life of the tenant himself. It arises in two
ways:
• The first is where there is a grant with
express limitation to A for the life of B like
an ordinary lease for in return for a rent.
Secondly, if a person, B., who is entitled to
an estate for his own life, assigns his
interest to A., the effect is that A. becomes
the tenant pur auter vie.
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THE ALLODIAL INTEREST
02/10/24 73
• The allodial title is the basis of the
customary law scheme of interests in
land in Ghana, and all interests in land in
Ghana, both customarily and otherwise
existing today, are derived from the
allodial title as their root of title.
According to legal doctrine, the allodial
title was formerly vested in one of the
customary law communities, such as the
stool, skin, family, etc.
02/10/24 74
• The allodial title is the highest or final
title capable of being held in land in
Ghana, beyond which there is no
superior title. It confers on owners’
complete and absolute freedom to
deal with the land subject only to such
restrictions or limitations or
obligations as may be imposed by the
laws of the land.
02/10/24 75
CASES ON THE ALLODIAL INTEREST
• Quarm v. Yankah (1930) 1 WACA 80
• Amodu Tijani v. The Secretary,
Southern Nigeria (1921) AC 399
• Ohimen v. Adjei (1957) 2 W.A.L,R. 275
• Ngman v. Adetsia (1959) GLR 323
• Owusu v. The Manche of Labadi (1933)
14 WACA 278
• Mensah v. Ghana Commercial Bank
(1957) 3WALR 123
• Golightly v. Ashrifi (1955) WACA 676
02/10/24 76
CASES ON THE ALLODIAL INTEREST
• University College Acquisition (1954) 14 WACA
472
• Attah v. Esson (1976)1 GLR 128
• Banahene v. Hima (1963)1 GLR 323
• Atta Panyin v. Asani II (1977)1 GLR 83

• Majolagbe v. Larbi (1959) GLR 190
• Saaka v. Dahali (1984-86)2 GLR 774
• Djomoa v. Amargyei (1961) GLR 170.
• Bekoe v. Serebour (1977)
• Achiase Stool v. Appiah (1962) 2GLR
• Baidoo v. Osei (1957) 3WALR 289
• 02/10/24
Thompson v. Mensah (1957)3WALR 240 77
4.1 METHODS OF ACQUISITION OF THE
ALLODIAL TITLE IN TIMES PAST
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4.1 METHODS OF ACQUISITION
• Customarily, the mode of creation or
original acquisition of the allodial title has
been through four (4) ways as described in
Ohimen v. Adjei as;
• First settlement by discovery: Entering a
land unoccupied by anyone
• By conquest- by defeating people who held
allodial interest.
• Through gifts
• Through purchase
02/10/24 79
• Two judgements by Ollenu J. in Ohimen
v. Adjei and Ngman v. Adetsia are
important for understanding the nature and
mode of acquisition of the allodial title. In
Ohimen v. Adjei (1957) 2 W.A.L,R. 275,
on appeal from the Native Court, the
learned judge observed:
02/10/24 80
• “There are four principal methods by which a
stool acquires land. They are: by conquest
and subsequent settlement thereon and
cultivation by subjects of the stool:
discovery, by hunters or pioneers of the
stool, of unoccupied land and subsequent
settlement thereon and use thereof by the
stool and its subjects; gift to the stool;
purchase by the stool. Each of these
methods involves either the sacrifice of lives
of subjects, or the expenditure of energy or
contribution of money by subjects, and use
and occupation of the land by the subjects.
02/10/24 81
• The stool holds the absolute title in the land as
trustee for and on behalf of its subjects, and the
subjects are entitled to the beneficial interest or
usufruct thereof and have to serve the stool.
Each individual or family is regarded in the
broad sense as the owner of so much of the land
as it is able by its industry or by the industry of
its ancestors to reduce into possession and
control. The area of land so reduced into the
lawful possession of the individual or family, and
over which he or they exercise a usufructuary
right, is usually called his property. It cannot,
02/10/24 82
• It cannot, save with the express consent of
the family or individual be disposed of by the
stool. The individual or family may assign or
dispose of his interest in the land to another
subject of the stool and the land may be sold
in execution of a decree against the
individual, or the family, as the case may be,
without the consent of the stool. But he may
not dispose of the stool’s absolute
ownership in it to strangers without the
consent and concurrence of the stool.”
02/10/24 83
• In Ngmati v. Adetsia (1959) GLR 323, Ollenu J
again considered acquisition of the allodial title
and held that the stool can only acquire the
allodial title through its subjects and in that case
by the original cultivation of the land as
farmlands. See also Owusu v. The Manche of
Labadi (1933) which held that land could be
acquired by conquest and subsequent
settlement, occupation and use thereof.
02/10/24 84
Discovery.
The allodial interest therefore was first of
all acquired through discovery and
subsequent settlement and cultivation of
land by hunters or pioneers of the stool
of unoccupied land. The allodial title
accrues in such circumstances to the
community to which the individuals
belong, not to the individuals concerned.
02/10/24 85
Conquest/Purchase/Gift
• Ohimen v. Adjei also identified conquest,
purchase and gifts as modes of acquiring the
allodial interest. These modes are in reality
transfers of the title from the original acquirers
either voluntarily or involuntarily to the new
acquirers. Thus whiles, gifts and purchases are
voluntary transfers, conquest is an involuntary
mode of transfer of the allodial title from the
conquered or vanquished community to the
victor. With the coming into being of the state
(Gold Coast now Ghana),
02/10/24 86
• another involuntary mode of acquisition of the
interest is compulsory acquisition by the State. It
follows strictly therefore that there is only one
method of acquiring the allodial interest, being
the discovery by hunters or pioneers of the stool
and subsequent settlement and use thereof.
02/10/24 87
• ACQUISITION OF THE ALLODIAL
INTEREST IN MODERN TIMES
02/10/24 88
ACQUISITION IN MODERN TIMES
• Since it is only unoccupied and un-owned land

which can effectively be discovered and no such
land exists in modern Ghana, the only way of
acquiring the allodial title these days is by
transfer from the person who now owns such
interest to the transferee voluntarily for valuable
consideration or for no consideration at all or
involuntarily by compulsory acquisition. Thus,
transfer of the interest is limited to gift, purchase
or compulsory acquisition by the State in the
public interest.
02/10/24 89
• Transfer of the interest by conquest is an
impossibility in modern times since communities
can no longer wage war against one another for
purposes of annexing land.
02/10/24 90
• 4.2. INCIDENTS OF THE
ALLODIAL TITLE
• Amodu Tijani v The Secretary,
Government of Southern Nigeria [1921] 2
AC 399
• (This case held that Land belongs to the
community, the village or the family, never
to the individual).
02/10/24 91
Owusu v Manche of Labadi – (1933) 1 WACA 278
In this case, certain lands were compulsorily acquired

in Labadi under the Public Lands Ordinance, the
Labadi Stool claimed compensation in respect of the
lands on the grounds that the lands so acquired were
stool property.
Certain subjects of the stool made a counterclaim
challenging the right of the stool to receive such
compensation on the grounds that the lands in
question had become their private property as a result
of their undisturbed and uninterrupted occupation for
4 generations.
02/10/24 92
Owusu v Manche of Labadi – (1933) 1 WACA 278
• It was held that as the absolute title was

vested in the stool and not the subject,
compensation for the acquisition, which
had the effect of extinguishing such
absolute title, ought to be received by
the stool.
• See also Amatei v Hammond [1981]
GLR 300
02/10/24 93
4.2. INCIDENTS OF THE ALLODIAL TITLE
• There are about three possible

positions of allodial lands;
• vacant virgin communal land;
• land in which members hold the
customary freehold and
• land held by strangers.
Vacant virgin community land.
02/10/24 94
a) Vacant virgin community land.
• Vacant communal lands are those lands in
which no member of the owning community has
reduced into his possession as customary
freehold and in which no interests or rights have
been granted to strangers. Members of the land
owning community have a right and are entitled
to use such land, both by taking the natural fruits
and by developing it with farms or buildings. A
member who develops such land acquires the
customary freehold and no other member can
interfere with the land so taken possession of.
02/10/24 95
 Vacant virgin community land
• The community too, through its chief can grant
to strangers interests or rights in such land on
any terms or even transfer the allodial title in any
portion of it to strangers as was decided in
Djomoa v. Amargyei (1961) GLR 170. This is
however subject to prevailing regulatory laws.
Right to acquire the customary

freehold and enjoy its fruits and crops
02/10/24 96
A member and the customary freehold
A member who develops a plot of vacant
virgin community land by establishing a
farm acquires the customary freehold
entitling him to reap his crops and live in the
houses built thereon to the exclusion of
other members. However, the community
was entitled to the natural fruits of the land
such as trees which were not planted by the
member as was implied by the Supreme
Court in the case of Banahene v. Hima
(1963) where it was held that the stool
could
02/10/24 97
it was held that the stool could sell trees in an area
where members had farms. However, in Attah
v. Esson (1976), the Court of Appeal held that
the customary freeholder is entitled to
economic trees, including those planted by
others. It was also held in Bekoe v.
Serebour (1977) that the customary
freeholder held rights in all palm trees
without distinction.
02/10/24 98
 Allegiance and customary services
According to Ollenu, another important
incident of the allodial interest was
allegiance and customary services due
from the subject to the stool or skin or to
the family (See Ollenu’s Principles of
Customary Land Law in Ghana, 2nd ed.
P53). The customary obligation to
contribute to pay stool debts was upheld by
Apaloo J in the case of Achiase Stool v.
Appiah (1962) 2GLR 159 where he said,
02/10/24 99
Allegiance and customary services
• “I shall be prepared to hold as a matter of
customary law that subject farmers are
bound to pay their quota of a debt incurred
by the stool in litigation over land on which
they farm”. Customary services is the
equivalent of customary tribute which was
normally payable by stranger farmers. But
it should be noted that the performance of
customary services is not necessarily an
incident of land tenure. A subject member
is therefore likely to perform customary
02/10/24 100
• services whether or not he occupies stool land as
was held in Baidoo v. Osei (1957) 3WALR 289
and Thompson v. Mensah (1957) 3 WALR 240.
In modern times, these customary services are
not rendered by occupies of stool or family lands
and particularly in urban areas.
02/10/24 101
• If 2. Land held
a community bythe
conveys Strangers
allodial title to a
stranger, then all the rights of the allodial title
holder are extinguished. However, where the
community grants an interest less than the
allodial title, for example, a freehold to the
stranger, the stranger is under obligation to
perform customary services to the community
whenever demanded and those services take
the form of tribute or rent (see Atta Panyin v.
Asani II (1977). If the community has sold the
allodial title or customary freehold to a stranger,
it may retain the power to sue a third party for a
02/10/24 102
• sue2.aLand held
third party by Strangers
for a declaration of title to the
land as held in Majolagbe v. Larbi (1959),
Akwei v Awuletey [1960] GLR 231.
• This could be when the stranger has no
successors, then the stool has the right to sue
for the reversion.
02/10/24 103
• TERMINATION
• The allodial title cannot be extinguished. It
can only be transferred, since there is no title
higher than the allodial title.
• Transfer of the allodial title
• (i) Compulsory acquisition by the State
• (ii) Gifts by one community to the other,
• (iii) Sale or purchase
02/10/24 104
4.3 TRANSFER OF THE ALLODIAL TITLE
• The allodial interest being the highest title in land
in Ghana cannot be extinguished or terminated
since this will presume the existence of a
superior title into which it will merge. The allodial
title can only therefore be transferred from one
owner to another through;
 Compulsory acquisition by the state for
public purposes
 Purchase by another community or individual
or
 Gift to another community or individual
02/10/24 105
COMPULSORY ACQUISITION - ALLODIAL TITLE
• The state can compulsorily acquire the allodial
title in the public interest. Article 20 of the
Constitution constitutes the basis and the main
enactment on compulsory acquisition is the State
Lands Act, 1962 (Act 125) as amended by the
State Lands Act (Amendment) Decree, 1968
(NLCD 234). With compulsory acquisition, the
allodial title transfers absolutely to the State as
the new owner and divests the community of its
allodial title together with all other subordinate
titles in the land (S.1 of Act 125).
02/10/24 106
VESTING/ PURCHASE/GIFT OF ALLODIAL TITLE
• Land can also be vested in the State using the

Administration of Lands Act, 1962 (Act 123. How
ever, acquisition under Act 123 unlike under Act
125 is not absolute as it is held by the state only in
trust for the members of the community which
owned the allodial title (Saaka v. Dahali (1984-86).
• The transfer of the allodial title by purchase or by
gift to another community or person or even by
conquest was also possible in the olden days when
ever the defeated party was forced to surrender its
title (See Owusu v. Manche of Labadi (1933)).
02/10/24 107
4.3 TRANSFER OF THE ALLODIAL TITLE
• Therefore, though the allodial interest exists into

perpetuity, it could be terminated through the
state’s power to acquire land (compulsory
acquisition), sale/purchase, gift and conquest.
02/10/24 108
5. THE FREEHOLD
INTEREST OR TITLE
02/10/24 109
5. THE FREEHOLD INTEREST OR TITLE
• Cases on the freehold interests

• Adjei v. Grumah (1982-83)GLR 985
• Frimpong v. Poku (1963) 2GLR 1
• Thompson v. Mensah (1957)3WALR 240
• Rep. v. Lands Commission; ex parte Akainya
(1975)2 GLR487
• Thompson v. Mensah;
• Oblee v. Armah (1958) 3WALR 484
• Mensah v. Ghana Commercial Bank
(1957)3WALR123
• Aboagye v, Opoku (1960) GLR 67
02/10/24 110
• Aboagye v, Opoku (1960) GLR 67
• Norquaye Tetteh v. Malm (1959)GLR368
• Ohimen v. Adjei (1957) 2WALR 275
• Amoabimaa v. Okyir (1965) GLR 59
• Tawiah v Gyampo (1957) 3 WALR 293
• Total Oil products Ltd v. Obeng & Manu (1962)
1GLR228
• Attah v. Esson (1976)1GLR128.
• Asem v. Bosuo (1951) DC Land
• 02/10/24
Adjoah Essah v Noah Boadu [2006] 4 MLRG 223111
• Banahene v Gyimah [1963] 1GLR 323
• Atta v Esson [1976] 1 GLR 128
• Bekoe v Serebour [1977] 1 GLR 118
• Sas George v Johnson Hilodjie & anor. [2006] 3
MLRG 121
• Adjoah Essah v Noah Boadu [2006] 4 MLRG 223
• Achiase Stool v Appiah [1962] 2 GLR 159
• Akwei v Awuletey [1960] GLR 231
• Amatei v Hammond [1981] GLR 300
02/10/24 112
• Norquaye-Tetteh v Malm [1959] GLR 368
• Ameoda v Pordier [1962] 1 GLR 200
• Bressah v Asante [1965] GLR 117
• Quarm v Yankah II (1930) 1 WACA 80
02/10/24 113
• A freehold title or interest is one which is held for
an indefinite period by the proprietor. It is carved
out of the allodial interest and is therefore
theoretically, a lesser interest than the allodial
title. In reality, a holder of the freehold and his
successors in title held the title for an indefinite
period until there is a failure succession, which
could be by devolution upon death or disposition
inter vivos. So long as there are successors in
title, the freehold will continue, but it will come to
an end in the unlikely event of there being no
successor. Da Rocha however argues that it
02/10/24 114
• however argues that it is difficult to conceive of a
situation where title has not passed by a
disposition inter vivos or under a Will or devolved
upon intestacy given the extended nature of the
Ghanaian family or clan. In the event of a
freehold interest coming to an end for lack of
successors, the title is merged with the allodial
title from which it was originally carved.
• There are two categories of freehold titles in
Ghanaian land; the customary freehold and the
common law freehold.
02/10/24 115
5.1 THE CUSTOMARY FREEHOLD INTEREST
NATURE OF THE CUSTOMARY

FREEHOLD INTEREST
02/10/24 116
NATURE OF THE CUSTOMARY FREEHOLD
The Customary freehold is an interest in land

which a member of a community which
holds the allodial title to land, acquires in a
vacant virgin communal land by exercising
his inherent right to develop such vacant
virgin land through farming. Whoever has this
form of interest, obtains a perpetual
ownership which prevails against the whole
world including the allodial title which gave
birth to it. It is important that the land should
02/10/24
be vacant virgin land 117
If the land is already in the possession

of any other person, whether a usufruct
or a stranger (a non-member of the land
owning group) grantee of the
community, a customary freehold
cannot be acquired in such a land.
02/10/24 118
Que. Can a stranger

acquire the customary
freehold out of vacant
virgin community
allodial land?
02/10/24 119
Can a stranger acquire the
customary freehold
The customary land law is well settled that
the customary freehold interest or title is one
that can be acquired as of right only by a
person by reason of his being a member of
the community which owns the allodial title
(Da Rocha p14). According to Da Rocha it is
not an interest which lies in grant, and
therefore, a stranger to a community cannot,
under any circumstance occupy a community
land as of right.
02/10/24 120
Can a stranger acquire the
customary freehold
A stranger may, of course acquire the status of a
member of the community and thus qualify to acquire
the customary freehold, but then he ceases to be a
stranger; as was held in Adjei v. Grumah (1982-
83)GLR 985. A stranger in principle, acquires the
common law freehold interest only by grant from the
community owning the allodial title. A member of the
land owning community may also choose to acquire
the common law freehold interest in land through
express grant for valuable consideration instead of the
customary freehold interest by occupying a vacant
virgin land as of right Frimpong v. Poku (1963).
02/10/24 121
How Subjects acquire the
customary freehold
• There are two schools of thought as to how the
customary freehold can be created. One is that
the member of the community owning the
allodial title may acquire the interest without
seeking the permission of the community which
holds the allodial title since it is an inherent right
of the member to appropriate to himself any
vacant virgin communal land (See Thompson
v. Mensah (1957).
02/10/24 122
How Subjects acquire the
customary freehold
• The second school of thought is that permission
of the allodial title owning community is always
required especially in modern times, in order to
control the use of the community land. This was
the decision of Frimpong v. Poku (supra).
• a). A member’s inherent right to
acquire land.
• The member has a right to occupy and use free
of charge any vacant and virgin community
land.
02/10/24 123
Subjects and customary freehold
• The member who develops the land by
farming or building on it acquires the
customary freehold. Ollenu J held in Ohimen
v. Adjei (1957) that the right was derived from
the fact that the community acquired the land
through the exertions of its members. The right
developed from or dates back to the time of
discovery, conquest or purchase of the land
when it was in abundance. Time has not
destroyed this basic rule except to bring it
under control due to dwindling land.
02/10/24 124
• b). control of the exercise of the
member’s right.
With respect to rural land, it has been held
(Thompson v. Mensah; Oblee v. Armah (1958)
no express grant is required from the community
holding the allodial title. The member occupy
and use the land by implied grant, but because
in modern times, documents are of essence to
prove title or for loan purposes, it is always
necessary to have documentary grant (Rep v.
Lands Commission; ex parte Akainya (1975
02/10/24 125
• In certain cases also, express grants are
necessary in respect of some farmlands. In
Frimpong v. Poku the Supreme Court held
that because land was no longer plentiful, all
farmland in the Sankori (Brong-Ahafo) area was
subject to a local rule that the member was to
obtain an express grant before cultivation. In
that case, Akuffo-Addo JSC said:
• “The principle of customary law which says
that a subject is free to cultivate any extent-
02/10/24 126
• of stool land does not confer on a subject
an unlimited licence for indiscriminate
cultivation, and a subject usually obtains
the formal permission of the stool for the
purpose. Permission is never refused but it
is necessary in order to enable the stool to
keep a check on cultivated areas. In days
gone by when land was plentiful and
persons seeking to cultivate it were few, a
subject would choose his own site with the -
02/10/24 127
• approval of the stool and he could then
extend his cultivation to wherever “his
cutlass could carry”. In modern times,
however, it has become necessary to
ensure a more equitable distribution of
available land for cultivation and the
practice has been limited areas to be
demarcated for subjects of the stool”
• It must be noted however, that even where the
acquisition is by express grant, the stool
member still acquires the customary freehold
02/10/24 128
• notwithstanding all the incidents attaching
thereon, for as Ollenu J. said in Thompson v.
Mensah;
• “The subject’s occupation of stool land with
prior express permission of the stool does not
create a contractual relationship between the
stool and the subject analogous to abusa or
abunu tenancy”.
URBAN LAND
02/10/24 129
• As far as urban lands or residential building
lands are concern, express grants are always
needed since the demand for land is higher and
there is need for orderly development (See
Mensah v. Ghana Commercial Bank (1957).It
was also observed in Oblee v. Armah (supra):
• “It is different in the case of lands adjoining the
town which are ready for
development, ..express permission of the stool
is always required, and limits are set to the
extent of land
02/10/24 130
• which one subject may occupy: in order to
maintain proper administration of the land,
and ensure that each subject who
requires land to build gets his fair share. It
is in the case of such grants that the area
granted to the subject is demarcated”.
• c) Degree of occupation required.
• While the cultivation need not always be
intense it must be fairly prolonged.
02/10/24 131
Cultivation of land must be prolonged
To amount to a customary freehold, a member
must cultivate the land or build on it, though the
cultivation need not be intense but it must be
prolonged.
In the Kokomlemle Consolidated Cases (1951)
DC Land ’48 –’51 p. 312 at 331 it was held that
farming on the plot of land for a single season
gave no title and that the farming must be
“regular and sustained”.
02/10/24 132
c) Degree of occupation required.
In the Kokomlemle Consolidated Cases
(1951) DC Land, it was held in respect of the
Accra Plains that, farming on a plot for a
single season gave no title and that the
farming must be regular and sustained. In
respect of forest area, it has been held
insufficient to clear the forest and do nothing
more for 13 years as was held in Aboagye v,
Opoku (1960) GLR 67.
02/10/24 133
INCIDENTS OF THE
CUSTOMARY FREEHOLD
INTEREST
02/10/24 134
INCIDENTS OF THE CUSTOMARY FREEHOLD I
The customary freehold interest is an estate that
prevails against the whole world including the
allodial owner. It has the following rights attached:
•a) Security of tenure. Whenever the customary
freehold comes into existence, the community
has no power to grant any conflicting right to
anyone in that land unless with the consent of the
customary freeholder (See Thompson v.
Mensah (1957), Norquaye Tetteh v. Malm
(1959), Ohimen v. Adjei etc.).
02/10/24 135
a) Security of tenure I
• When a customary freehold has come into
existence, the community has no power to
grant conflicting right to anyone else unless the
interest-holder consents.
• Ameoda v Pordier [1962] 1 GLR 200
• Bressah v Asante [1965] GLR 117
• Quarm v Yankah II (1930) 1 WACA 80
02/10/24 136
Any attempt by the allodial owner to enter the
land held by the customary freeholder amounts
to trespass and any purported alienation or
disposition by the allodial owner without the
consent of the customary freeholder, is of no
effect and does not bind him. The customary
freeholder can sue the community for a
declaration of title, damages for trespass and
recovery of possession (See Ohimen v. Adjei,
Amoabimaa v. Okyir (1965) and Tawiah v
Gyampo (1957).
02/10/24 137
In Ohimen v. Adjei (1957), the stool, without
reference to a subject family who had acquired
possessory title to an area of the stool land,
purported to lease a portion of that land to a
stranger for the erection of a cinema. The family
thereupon sued the stool for declaration of their
title and for an injunction, and they succeeded
against the stool.
02/10/24 138
• Held:
• The stool holds the absolute title in the land as
trustee for and on behalf of its subjects, and
• the subjects are entitled to the beneficial
interest or usufruct thereof and have to serve
the stool.
• Each individual or family is regarded in the
broad sense as the owner of so much of the
land as it is able by its industry or by the
industry of its ancestors to reduce into
possession and control.
02/10/24 139
• Held:
The area of land so reduced into the lawful
possession of the individual or family, and over
which he or they exercise a usufructuary right,
is usually called his property.
• It cannot, save with the express consent of the
family or individual, be disposed of by the
stool.
• The individual or family may assign or dispose
of his interest in the land to another subject of
the stool and
02/10/24 140
• Held:
• the land may be sold in execution of a decree

against the individual, or the family, as the
case may be, without the consent of the stool.
• But he may not dispose of the stool's absolute
ownership in it to strangers without the
consent and concurrence of the stool.
02/10/24 141
• Held:
• It would be repugnant to natural justice
and good conscience if, while the Stool
can insist upon the services and
customary rights due to it from the subject,
it could arbitrarily deprive its subjects of
the enjoyment of the portions of the stool
land in their possession.
02/10/24 142
• Held:
• On the other hand the only title in land
which a subject can claim against a stool
is the usufructuary title to the portion of the
stool land in his actual possession.
• If he proves that, he is entitled to a
declaration of this title to that land
02/10/24 143
The freeholder can use the land for whatever
purpose and can be occupied possibly into
perpetuity, and he cannot be forcefully asked to
leave the land because this interest is such that
the freeholder can use it from generation to
generation. There is no term to this interest thus
making it potentially up to perpetuity.
02/10/24 144
• b) Obligation to contribute to Stool Debts
The customary freeholder is under obligation
to contribute to stool debts.
• Achiase Stool v Appiah [1962] 2 GLR 159
• The member is also under obligation to
perform customary services but in modern
times, such customary services are not
rendered by occupiers of stool/family lands
and particularly in urban areas, they are not
even demanded.
02/10/24 145
C) Power of alienation.
• The customary freehold is alienable either in
part or whole and either inter vivos or by
testamentary disposition devolving as part of
the customary holder’s estate if he dies
intestate. It is alienable either to a member of
the community or to a stranger without the
consent and concurrence of the community
which holds the allodial title.
02/10/24 146
The alienee however has the obligation to
recognise the title of the allodial title holder and
to perform all the customary services due from
the member to the community allodial title holder
whenever demanded.
In Kotei v. Asere Stool (1961)1GLR 492, Lord
Lord Denning said:
•“Native law or custom in Ghana has
progressed so far as to transform the
usufructuary right once it has been
02/10/24 147
reduced into possession, into an estate or
interest in the land which the subject can use
and deal with as his own, so long as he does
not prejudice the right of the paramount
stool to its customary services. He can
alienate it to a fellow subject without
obtaining the consent of the paramount
stool: for the fellow subject will perform the
customary services.
02/10/24 148
He can alienate it to a stranger so long as
proper provision is made for commuting the
customary services. On his death, it will
descend to his family as family land except
in so far as he has disposed of it by will,
which in some circumstances he lawfully
may do”. See also Total Oil products Ltd v.
Obeng & Manu (1962) 1GLR228 and
Thompson v Mensah.
02/10/24 149
• d) Right to Economic Trees
• The customary freeholder has an unfettered
right to all economic trees, natural or cultivated
by him, on the land. The allodial title holder
cannot go upon the land to harvest or fell any
economic trees without the consent of the
customary freeholder as was held in Attah v.
Esson (1976)1GLR128.
02/10/24 150
Atta v. Esson [1976] I GLR 128
In Atta v Esson, it was Held:

• (1) Customary law today would not permit a
landlord to enter onto agricultural land
granted to his tenant to gather the fruits of
economic trees planted on it by the tenant;
the customary law as stated by Sarbah to the
effect that the landlord was entitled to the
fruits of economic trees planted by the tenant
had become outdated and ceased to be law
as soon as conditions in society changed as
to make it unreasonable for persons to
conduct themselves by it.
02/10/24 151
• Atta v. Esson [1976] I GLR 128
• Held
• (1) Since the old customary rule was no
longer reasonable, the defendants were not
entitled to act in accordance with it until a
court declared it so. Having regard to the
unreasonableness of the principle under
which the defendants acted, the general
damages for trespass awarded against them
was proper:
02/10/24 152
• Held
• (1)Per curiam. “No proposition would be
more out of accord with the hopes and
aspirations of Ghanaians today than that a
landlord who has spent no effort whatsoever
towards that end should enter and collect at
will the fruits of the labour of his tenant”.
02/10/24 153
• Held
(2) The customary law rule that except by
special arrangement, the landlord was
entitled to enjoy the fruits of economic trees
such as palm or kola trees which already
existed on the land, had not today been
shown to be unreasonable and must
therefore be accepted as still governing the
relationship of customary landlord and
tenant.
02/10/24 154
• Held
• (3) The plaintiff's family in their capacity as

tenants in perpetuity might justifiably be
described as the owners of the
determinable or usufructuary title in the
land and thereby entitled to enjoy the fruits
of economic trees already on the land.
02/10/24 155
• e) Unlimited User
• Except for restrictions and limitations placed
on land users by statute, there is no limitation
imposed by customary law on the customary
user of the land. He may farm on it, build on it
and is entitled to the enjoyment of all the
natural products of the land except minerals in
their natural state which are vested in the
state.
02/10/24 156
TERMINATION OF THE
CUSTOMARY FREEHOLD
02/10/24 157
TERMINATION OF THE CUSTOMARY FREEHOLD
• Though the customary freehold is potentially

perpetual, it is determinable - can come to an
end - there are some instances where the
freehold interest may be terminated. These are
by abandonment, failure of a successor such as
death without legitimate succession, forfeiture,
compulsory acquisition by the state and by Sale
or gift.
• A). ABANDONMENT: Where the customary
freeholder abandons the land with the
intention ..
02/10/24 158
ABANDONMENT
• not to use it any longer. Demonstrating enough
intensions/evidence that the freeholder is no
long interested in the land immediately or in
future. Abandonment is therefore a question of
fact. Mensah Sarbah non-use of land for ten
years constitute abandonment, but in Asem v.
Bosuo (1951) DC Land, it was held that the
land was not abandoned after a failure to farm it
for 20 years. Statute has now intervened by
providing that failure to farm for eight (8)
years ..
02/10/24 159
• constitute abandonment, per S1 of the Farm
Lands (Protection) Act (Act 107). The intention
appears to prevent land speculation.
• How about Building Land?
• Where land is acquired for building,
abandonment consists of acts indicating an
intention to surrender the interest.
• In Malm v Lutterodt [1963] 1 GLR 1 – no
abandonment where illness of tenant caused
delay in rebuilding.
02/10/24 160
Failure of successors / Forfeiture
• b). Failure of successors such as death
without legitimate succession. The right
terminates and there is reversion to the allodial
title
• c). Forfeiture:
Positioning yourself in a way that seeks to
contest the ownership title of the allodial holder.
When you fail to recognise that your rights
come from a higher corner, you forfeit your right
to remain a freeholder.
02/10/24 161
Forfeiture / acquisition /Sale or gift
The recognitions include;
Paying homage
Giving some contributions.
•Amoabimaa v Okyir [1965] GLR 59
•If a stranger denies his allodial titleholder it could
result in forfeiture
•Atta Panyin v Asani II [1977] 1 GLR 83
•d). Compulsory acquisition by the state and
•e). Sale or gift
02/10/24 162
LEASES
02/10/24 163
Leases
A lease is an interest in land that is created to
last for a specific time. It may be created by either
the allodial title holder or the freeholder. The
creator of the lease is the lease and the leasor.
The start date and the expiration date of a lease
are very important and so they must never be in
doubt. It is a contract. For a “lease’’ to be a lease;
•1. The terms must not be in doubt.
•2. The parties involved in the lease must be well
identified.
02/10/24 164
Leases
The successors in title can step into any lease
arrangement when the need arises thus making
the parties involved in the contract extend to
others and not only the legitimate lease.
3. One other key feature of a lease is the parcel.
The identity of a parcel should not be in doubt.
Consensus ad idem a meeting of minds on the
subject matter. When there is a mistake in the
identity of the parcel AND the parcel is not well
known by any of the parties and a lease is
signed, it is deemed that there is no CONTRACT.
02/10/24 165
Leases
4. The parcel is identified with key features in the
area where it is found. Furthermore, a cadastre
survey must be carried out. Location and size
•5.Whenever a lease is created, some form of
consideration must be paid=How much the lease
is paying for the land must be stated.
•6. Lease must be witnessed by people from both
parties.
02/10/24 166
THE CREATION OF A LEASE
02/10/24 167
• For a lease to be recognised or be valid, it
needs to be stated in writing unless/except
otherwise exempted according to Section 1
and 2 of NRCD, 175, Conveyancing Decree,
1973.
• Section 3 provides some exceptions to this
requirement. For example; for a lease of 3
years and below, refusing to document/write
it does not negate the existence of such a
creation of a lease apart from, the basic …
02/10/24 168
• requirements that need to be started; held by
the court in DJAN v OWOO (1976).
• As part of creating a lease it is important the
purpose is stated and agreed upon by both
parties. If the purpose for which a lease was
granted is significantly changed, it becomes a
ground to terminate the existing lease,
agreement. Whenever the need arises to
change the use, it is important that the lease is
renegotiated.
02/10/24 169
• *The use clause is there to protect the
immediate and reversionary interest of the
land owner. It is also reversionary interest of
the owner. It also protects the lessor from
being misused by the lessee. There could be
mixed used but the primary purpose for which
the lease was granted must be evident or
more dominant.
• NB: Find out the additional exceptions.
02/10/24 170
TERMINATION OF A LEASE
• Forfeiture-Breach of a major covenant: Where
there is a violation of an implied covenant.
• Compulsory acquisition.
• Expiration of the tern granted.
• Surrender: Giving up your unexpired term
• Merger into a larger lease
02/10/24 171
• CUSTOMARY TENANCIES
• CASES ON CUSTOMARY TENANCIES
• Akofi v. Wiresi (1957)WALR 257
• Fori v. Ayirebi (1966) GLR 627
• Manu v. Ainoo (1976)1GLR 457
• Sasu v. Asomani (1949) DC Land
• Kwarteng v. Agyako (1968) GLR292
• Lamptey alias Nkpa v. Fanyie (1989-90)1GLR 286
• Cudjoe v. Kuma(1929) DC
• Kuma v Kuma (1938) 5WACA 4
02/10/24 172
CASES ON CUSTOMARY TENANCIES
Bodoa 51v Ofoli (1910) Earn
Djokoto IV v Saba III (1950) DC Land
Anomabu Stool v. Acquah (1957) WALR 265
Alifo v. Amedza (1961) GLR 157
02/10/24 173
CUSTOMARY TENANCIES
• A tenancy is an interest which a stranger may
acquire in land and which a member too may
acquire from another member usufruct or from
the community holding the allodial title. It
confers on the tenant a right to occupy and
use the land for a specified purpose for an
indefinite period or for a fixed period, so long
as the tenant continues to observe and
perform the terms and conditions attached.
02/10/24 174
CUSTOMARY TENANCIES
It involves the creation of a limited interest in
land usually for a consideration. The grantor or
landlord, retains his ownership rights in the land
but grants possessory rights and use to the
tenant for a period of time which may sometimes
be indefinite.
A customary tenancy may be granted by either
the holder of the allodial title of vacant land, or
the customary freeholder from his own interest.
Most customary tenancies are in respect of
farmlands
02/10/24 175
CUSTOMARY TENANCIES
in the olden days, a landowner would let a
stranger into possession of farmland to be
cultivated by him at his own expense and to
share the produce with the landowner either
equally (abunu) or in the proportion of one-third
to the landlord and two-thirds to the tenant
(abusa). The landlord did not have to take part in
the cultivation and management of the farm. The
tenant had to invest his money, time and energy
in cultivating and managing the farmland and bth
parties benifited from the arrangement.
02/10/24 176
CUSTOMARY TENANCIES
this practice has survived till date but with the
introduction of a money economy, however,
customary tenancies could also be created for a
money consideration.
TYPES OF CUSTOMARY TENANCIES
There are two main types of customary
tenancies in Ghana:
1.Tenancies for consideration and
2. Gratuitous tenancies
02/10/24 177
TYPES OF CUSTOMARY TENANCIES
1. Tenancies for consideration
The consideration may be either in cash as in
(1) seasonal or (2) annual (yearly)
tenancies or (3) crop-sharing as in abusa
and abunu tenancies. These tenancies
are usually granted for agricultural
purposes, such as for the cultivation of
cocoa, rubber, oil palm, maize, cassava etc.
2. Gratuitous tenancies
The customary licence is the only known
gratuitous tenancy.
02/10/24 178
Tenancies for consideration
a) The Seasonal Tenancy
Land is granted to a tenant-farmer to grow only food
crops for a sowing season subject to the payment
of a valuable consideration. The amount of
consideration (used to be in kind but now more
often in cash) is pre-determined and depends on
the size of the farm and not dependent on the yield
of the farm. The landlord does not share the
produce of the farm with the tenant farmer and the
tenant-farmer has no rights to economic trees
growing on the land. The arrangement involves the
growing of food-crops only. Usual crops grown are
plantain, cassava, cocoyam and maize.
02/10/24 179
(Note: Discuss the decision in in Atta v. Esson (1976)

which is applicable to customary freeholders and
not to tenants)
02/10/24 180
The death of a tenant does not automatically
terminate the seasonal tenancy. The tenancy
subsists until the end of the sowing season. Upon
death the family is entitled to harvest the crops on
the farm and pay the landlord’sconsideration if this
has not been paid, and generally manage the farm
until the end of the tenancy. The landlord has no
right to appropriate the produce of the farm to
himself. Where the relatives of a deceased tenant-
farmer is not immediately known, the landlord is to
harvest the crops, sell, and account for it anytime
he has to.
02/10/24 181
The seasonal tenancy comes to an end at the end
of the sowing season, but in practice, it is regularly
renewed unless the landowner needs the land for
his own use or the tenant-farmer does not need it
any longer.
b) Annual (yearly) tenancy
02/10/24 182
Like the seasonal tenancy, it is a tenancy for
growing only food-crops and the consideration
payable is dependent only on the size of the
farmland and not upon the yield, whether good or
bad. It is similar to the common law yearly tenancy
except that the subject matter of the customary
annual tenancy is always farmland. The tenancy
automatically renews itself at the end of each
completed year for another year unless it is
terminated according to customary law. Like the
seasonal tenancy, it is a strict commercial.
02/10/24 183
arrangement and the consideration becomes
payable as soon as the landowner lets the tenant
into possession. The landlord has no share in the
produce of the farm except what he is due by way
of his “rent” if payment of the consideration is in
kind which is usually pre-determined by the tenant
takes possession of the land. The tenancy runs
for a whole year while the seasonal tenancy runs
for a cropping season, which may or may not be a
whole year.
02/10/24 184
c) Abusa and Abunu tenancies
Abusa Tenancy:The traditional view.
Traditionally the abusa tenancy arises
when the owner of an uncultivated virgin
land grants it to another (usually a
stranger) to cultivate and to share the
produce of the farm with the landowner in
the ratio of 2/3 to the tenant-farmer and
1/3 to the landowner.
02/10/24 185
c) The Abusa tenancy
The tenant at his own expenses clears,
cultivates and manages the farm till harvest
when a third of the harvest is given to the
landowner as consideration. It is particularly
suitable for the cultivation of cash crops such
as maize, cocoa, etc.
The landowner contributes nothing but his land.
The tenant-farmer meets all the costs of
bringing the land under cultivation.
02/10/24 186
In Akofi v. Wiresi (1957)2WALR 257,
Coussey P described the Abusa tenancy as;
“It is a common form of tenure throughout the
country for a landowner who has unoccupied
virgin forest land, which he or his people are
unable to cultivate, to grant the same to a
stranger to work on in return for a fixed share
of the crops realized from the land. In such a
case, the tenant-farmer although he has no
02/10/24 187
ownership in the soil, has a very real interest in
the usufruct of the land. The arrangement may
be carried on indefinitely, even by the original
grantee’s successor… as long as the original
terms of the holding are observed ...”
The tenant is entitled to all foodstuffs grown
during the cultivation of the main crops which is
the subject-matter of the tenancy. (See Fori v.
Ayirebi, 1966).
02/10/24 188
When the main crop bears fruit, the landowner
is entitled to one-third of each harvest. Each
party is entitled to an account to secure his
share (Manu v Ainoo). The landowner is not
entitled to personally reap his share nor to
resume possession of a third of the farm. The
tenant-farmer is entitled to two=thirds of the
produce because the landowner contributes
nothing to the making of the farm except
providing the land. The tenant=farmer provided
labour and all other inputs to the farm.
02/10/24 189
c) The Abunu tenancy
The abunu tenancy on the other hand is a tenancy
by which either;
a)A person who has already cultivated his farm,
hands it over to other, whether a stranger or not,
to plant and maintain it, and to share the produce
in equal shares, or
b)Where the owner of land gives financial
assistance to the tenant to make the farm on the
landowner’s land and to share the produce of the
farm in equal shares.
02/10/24 190
The abunu tenancy is thus an arrangement under
which a landowner either cultivates a farm on his
own land and thereafter hands it over to another to
maintain or provides that other person with money
or labour to cultivate the farm
THE MODERN VIEW OF ABUSA

AND ABUNU TENANCIES.
02/10/24 191
• THE MODERN VIEW OF ABUSA
AND ABUNU TENANCIES
02/10/24 192
Though parties can contract out of the abunu and
abusa tenancies, it prevails if there is no intention,
express or implied, to the contrary. E,g, in Cudjoe v
Kuma (1929), the agreement was for the landlord to
receive two-thirds of cocoa and the tenant-farmer
one-third. And in Kwarteng v. Agyako (1968) the
agreement was that the tenant would retain the
whole produce for the first four years after the cocoa
had started to yield and thereafter to render two-
thirds of the produce as rent to the landlord.
The distinction between the traditional view and the
modern view of the abusa and abunu tenancies were
discussed in Lamptey alias Nkpa v. Fanyie (1989-
90). 1 GLR 286
02/10/24 193
The SC by a majority decision held that the question
whether or not an abusa or abunu tenancy was
created depends on the agreement between the
landlord and the tenant. The appellant had bought a
large tract of virgin forest land from a stool on behalf
of a syndicate. He gave out portions of the land to
tenants for farming. Three of the tenant-farmers
brought an action against the appellant, their landlord
for a declaration that they were abusa and not abunu
farmers.
The appellant admitted in the High Court that the land
he granted the respondents was virgin forest and that
the respondents had expended their own energy and
resources
02/10/24
in cultivating the land. 194
He however contended that the respon-
dents had agreed to hold the land as abusa
tenants and where therefore bound by that
agreement. There was evidence that other
tenants of the appellant, granted other
portions of the same virgin forest land,
were also holding the land as abunu
tenants. The High Court gave judgment to
the appellant (the defendant) and the
respondents (then plaintiffs) appealed to
the Court of Appeal which reversed the
decision. Pg 86 da Rocha
02/10/24 195
The decision of the High Ct was reversed on the ground
that the admissions of the appellant “constituted incidents
of an abusa tenancy” and not the abunu tenancy”. On
appeal to the Supreme Court by the appellant, the SC held
that;
“the terms of the tenancy were a fact to be
determined from the evidence. There was no inflexible
customary law or practice in agricultural tenancies so
binding in its incidence that no one could contract out of
it. Since in the instant case, the evidence abundantly
established that the plaintiffs took abunu tenancies and
would seem to wish to change the tenancy, the court
should not lend its support to that attitude”.
02/10/24 196
CUSTOMARY LICENCES
02/10/24 197
CUSTOMARY LICENCES
In customary law, a licence is a gratuitous
tenancy whereby the tenant is permitted to use
the landlord’s land free of charge. A customary
licence may be either for farming or building.
•Farming Licences
•Given to the licensee to gratuitously “eat” from the
land. The licensee gives “drink” called aseda, to
the licensor for permitting him to use the land free
of charge.
02/10/24 198
Farming Licences
• It is a temporary arrangement, which if made by a
customary freeholder, does not require the
consent of the community before the licence is
granted, especially where the land is required for
growing of food crops only.
• It seems however that where the customary
freeholder grants a licence for the growing of
cash crops, the community holding the allodial
title from which the customary freeholder
interests have been carved, should be informed.
02/10/24 199
Farming Licences
• The reason for this is because the community
has the reversionary interest in the land
concerned in the unlikely event of the customary
freeholder dying without any successors.
• A licensee is not entitled to economic trees and
crops on the land before his grant. They remain
the property of the licensor. It appears however
that he may harvest crops from economic trees
planted by him after the grant of the licence if he
got prior authorization of the licensor and the
allodial title holder before planting such economic
trees.
• 02/10/24
Attah v Esson [1976] 1 GLR 128 200
Farming Licences
• A farming licence is terminated when the licence is

revoked. It may be revoked at the expiration of a
specified duration or in cases where the licensee
tries to set up a claim of adverse possession.
• Kuma v Kuma (1938) 5 WACA 4
02/10/24 201
Building Licences
• A building licence is a licence to erect and
occupy a building on the licensor’s land. The
licence terminates only when the building falls
into ruins or somehow ceases to stand on the
land concerned.
• Dao v Klu (Djaba-Claimant) [1961] GLR 555
• Asseh v Anto [1961] GLR 103
• So long as the building stands on the land, the

licensor cannot revoke the licence.
• Kano v Atakpla [1959] GLR 387
02/10/24 202
CREATION OF TENANCIES
02/10/24 203
• BY CONTRACT – The parties must negotiate
and agree on the terms of the contract. The
consideration for the contract may be in the form
of the payment of rent or crop-sharing. If the
agreement is for the cultivation of economic
crops e.g. cocoa, coffee etc the tenant is
normally not required to make any payment
before the crop yields fruit.
• Mensah v Blow [1967] GLR 424

• Fori v Ayirebi [1966] GLR 627
02/10/24 204
• BY IMPLICATION OF LAW
• If two traditional authorities contest the allodial
ownership of certain tracts of land, and that tract
of land has been settled upon by members of one
of the two contesting stools, if when the dispute is
settled, that side loses, then they may have to
attorn tenancy to the winning side.
•
• Ababio II v Nsemfoo (1944) 12 WACA 127
• Mensah v Blow [1967] GLR 424
• Foli v Agya-Atta [1976] 1 GLR 194
02/10/24 205
INCIDENTS OF CUSTOMARY TENANCIES
• Inheritability
• Akofi v Wiresi (1957) 2 WALR 257
• Alienability
• Kuma v Kuma (1938) 5 WACA 4
• Irrevocability
• Addo v Wusu (1940) 6 WACA 24
• Manu v Ainoo [1976] 1 GLR 457 CA
• Crops grown subject to contract

• Fori v Ayirebi [1966] GLR 627
02/10/24 206
TERMINATION OF CUSTOMARY TENANCIES
• By express provision in the agreement

• By compulsory acquisition
• By forfeiture
• Alifo v Amedza [1961] GLR 157
• By failure of successors
• By abandonment
• By the subject matter falling into ruins
02/10/24 207
CUSTOMARY CONVEYANCES OF
LAND OR INTEREST IN LAND
02/10/24 208
CUSTOMARY CONVEYANCES
A conveyancing is the process by which land or

interest vested in one person or group of
persons is passed on to another person or
group of persons. The conveyance may be for
any interest such as the allodial, the freehold or
other lesser interest. It may also be permanent,
as in the case of a sale or gift or it may be
temporary as in the case of a tenancy or a
pledge.
02/10/24 209
CUSTOMARY CONVEYANCES
 Customary Conveyance at Customary Law
A conveyance is employed at customary law
in respect of the following:
o A sale
o A gift inter vivos
o A tenancy
o A pledge
02/10/24 210
Customary Conveyance at Customary Law
• At customary law, a conveyance of land

or interest therein is usually preceded by
a contract between the transferor and the
transferee in the presence of witnesses.
The principle of caveat emptor (let the buyer
beware) applies to conveyance of land or
interest therein at customary law.
02/10/24 211
Customary Conveyance of Land
• There were restrictions on the capacity to
transfer title. Stools and families were not
entitled to alienate their lands absolutely,
unless special circumstances were present.
However, even in those times the possibility
of outright alienation was not entirely absent;
a family might alienate to another family or a
stool to another stool, in the special
circumstances where alienations were
allowed.
02/10/24 212
• Thus sales were rare, but they could occur.
 Total Oil Products Ltd. v Obeng & Manu
[1962] 1 GLR 228
02/10/24 213
1. SALE AT CUSTOMARY LAW
A sale of land involves parting with one’s
parcel of land for some consideration.
The formal conveyance may be preceded by a
contract of sale. According to Sarbah, this
contract is binding only when the intending
purchaser pays “drink money” known in Akan
as “tramma” or earnest money to the vendor.
Without the payment of the tramma, there is no

binding contract.
02/10/24 214
The Contract of Sale and Tramma
Thereafter if the purchaser fails to complete the transaction,
he loses the tramma, and may even be liable for damages
in addition.
PUBLICITY
The most important requirement for any conveyance of land
at customary law is publicity. Without publicity the
conveyance will be invalid. After the tramma, the sale is
concluded by the vendor taking the purchaser to the land
and in the presence of witnesses, publicly delivers
possession of the land to the purchaser.
02/10/24 215
• In delivering the land to the purchaser,
neighboring land owners are invited to be
present.
• The purchase price is then paid and a sheep
or goat is slaughtered to perform the custom
signifying change of ownership of the land.
The Akans call this custom “cutting the
guaha“. The ceremony of “cutting the guaha“
symbolizes the permanent transfer of the land
from the grantor to the grantee.
02/10/24 216
• The “guaha” is therefore not performed in the
case of temporary land transactions such as
tenancies or pledges.
• Angmor v Yiadom III [1959] GLR 157

• Ntim v. Boateng (1963)2 GLR 97
• Adjowei v, Yiadom III (1973) 2GLR 90
In Angmor v Yiadom III [1959] GLR 157 it was
held that tramma must be paid publicly to be
effective.
02/10/24 217
Publicity
• Purpose of Publicity
• It may be stated that the need for publicity with
respect to this transaction is to avoid subsequent
disputes as to the existence or effects of the
transaction by creating a record of it in the memory
of witnesses. The witnesses are paid customary
fees.
02/10/24 218
• There appear to be no rules as to how many
witnesses may be considered as necessary. There
also appear to be no rules as to who the witnesses
should be.
 However, the absence of independent witnesses,
when there is abundant evidence that the ceremony
did take place, will not negate it.
 Adjowei v Yiadom III [1973] 2 GLR 90
02/10/24 219
3. The Cutting of Guaha
 A sale cannot pass without ceremony.
Ababio v Darkwa (1956) 1 W.A.L.R. 124
 Where the demarcation or the cutting of the Guaha or both
had not been performed, the sale is not completed and title
does not pass.
Donkor v Asare [1960] GLR 1872.
 Once the Guaha ceremony takes place, the non-payment of
the price does not prevent title from passing.
In Angmor v Ter (1943) 9 W.A.C.A. 148, it was held that
guaha would not normally be cut until the price had been
paid, because the ceremony had the effect of passing
ownership.
02/10/24 220
3. The Cutting of Guaha
 Since the ceremony is not used for gifts, its performance is
conclusive evidence of a sale in any case where there is
doubt whether a transaction was a sale or gift. This is
equally applicable to determine whether a transaction was a
sale or a pledge.
 Fori v Ayirebi [1966] 1 GLR 627
• In Sarkodie v FKA Co. Ltd. [2009] SCGLR 65
• It was held that an effective customary conveyance of land
would divest the grantor of any further right, title or interest in
the land; the same land could therefore not be conveyed or
granted to a subsequent grantee.
02/10/24 221
• SUMMARY-LAND ACQUISITION
PROCESS IN THE OLDEN DAYS
02/10/24 222
SUMMARY-LAND ACQUISITION
• Back then, as it is now, if anyone wanted to

acquire land, you need to ask around if there
is any land available and if there is, you
needed to identify the person who has the
capacity to transfer the land to you.
• You then approach the traditional authority
in charge of the land with drinks, cola or a
fowl and express your interest to acquire the
land in question.
02/10/24 223
• If there is a consent to your request for land,
a delegation is sent with you to that
particular land, so you check if that is the
land you requested for (ie inspection of the
land)
• Once there is agreement after the
inspection, a date is now set to conclude the
transaction, through a customary known as
‘’Tramma’’
02/10/24 224
THE TRAMMA
• Witnesses from both parties are brought to the
subject land. The parties and the witnesses will
walk abund the boundaries of the land to ensure
the amount to be conveyed/conferred and may
plant boundary markers to indicate the boundary
that is to be transferred.
• The next thing they do is to cut the Guaha: The
Guaha is an object that can be broken into two,
with one part given to one of the parties involved
and the other party keeps the other half.
02/10/24 225
• THE TRAMMA
• The object differs from area to area, it may be; a
thread with cowries tied on it, a branch/ leaf or a
piece of cloth. Before the Guaha is broken, the
parties pour libation and pledge to abide by the
terms of the agreement (on express declaration of
rights and responsibilities by the parties before
witness). The witness then help the grantor and
the grantee to cut the Guaha. The reason for the
Guaha was to serve as a means of keeping
records or evidence so that in case an issue arises
the Guaha will be brought.
02/10/24 226
CUSTOMARY LAW GIFTS
CUSTOMARY LAW GIFTS
WHAT IS A GIFT?
02/10/24 227
CUSTOMARY LAW GIFTS
A gift is like a sale, but in a gift, the vendor (called the
donor) expects no price/consideration to be paid by
the purchaser (called the done) and therefore asks for
none. It is a voluntary transfer of title by the owner of
the property to another person for no valuable
consideration. Like a sale, the donor must be the
owner of the property donated, have the competence
to transfer it and fully intend and purport to do so. If
these conditions are satisfied, but the intended donee
refuses to accept the proffered gift, then there is no
gift.
02/10/24 228
CUSTOMARY LAW GIFTS
For a donee willing to accept the gift is needed for the
making of the gift, and an acceptance of some sort is
necessary to complete the gift. In order to constitute a
valid gift therefore, there must be-
(a)a particular interest in land which is to pass from the
donor to the done;
(b)an intention of the donor to make a gift to the done;
(c)an acceptance of the gift by the donee in the life
time of the donor
(d)delivery of the land to the done; and
(e)publicity of the gift.
02/10/24 229
CUSTOMARY LAW GIFTS
A donor has the right to gift assets he has, including
movable and immovable property to any beneficiary
he may elect. However, in situations where a person
comes up (as has occurred on a number of
occasions) after the death of the “donor”, to claim that
a gift was made in his or her favour, It is important to
refer to the dicta of Brett M.R. in In re Garnett v.
Gandy McCauley (1885) 31 Ch.D and of Plowman J.
in Thomas v. Times Book Co., Ltd. [1966] 2 All E.R.
“Both at common law and customary law, a claim of a
gift from a deceased person must always be
approached with caution, if not suspicion.”
02/10/24 230
CUSTOMARY LAW GIFTS
In any such situation, it is essential that the claimant
prove the actual gift. The burden placed upon the
claimant in this case is to remove the shawl of
suspicion that is associated with gifts from a deceased
person.
Since the alleged gift is not proved by any written
document, the court has to consider what evidence is
by custom essential to support such an allegation.
This it is submitted requires a high degree of proof to
discharge.
02/10/24 231
CUSTOMARY LAW GIFTS
Judicial outline of essentials of a valid gift
In Asare v. Tein (1960)GLR 155, the Court
described the essentials of a valid gift thus:
“The essentials of a valid gift in accordance with custo-
mary law are; publicity, acceptance and placing the done
in possession. The wayb to ngive publicity is to make the
gift in the presence of witnesses, particularly members of
the family of the donor who would succeed to the property
upon the donor,s death intestate: and the acceptance must
be evidenced by the presentation of drink or some small
amount of money to the donor, part of which is served to
or shared among the witnesses to the transaction.”
02/10/24 232
CUSTOMARY LAW GIFTS
The Supreme Court in the case of YOGUE v
AGYEKUM (1966)GLR 482 summed up the
essentials of a valid gift under customary law as
follows:
“A valid gift under customary law is, an unequivocal
transfer of ownership by the donor to the done, made
with the widest publicity which the circumstances of
the case may permit. For the purposes of the required
publicity, the gift is made in the presence of
independent witnesses, some of whom should be
members of the family of the donor who would have
02/10/24 233
CUSTOMARY LAW GIFTS
succeeded to the property if the donor had died
intestate, and also, in the presence of members of the
done who also would succeed to the property upon
the death of the done on intestacy. The drink is
acknowledged by the done by the presentation of
drink or other articles to the donor…libation is then
poured declaring the transfer and the witnesses share
a portion of the drink or other articles. Another form of
publicity is exclusive possession and the exercise of
overt acts of ownership by the done after the
ceremony”.
02/10/24 234
CUSTOMARY LAW GIFTS
In case of a gift to a donee, one must consider the all
important requirement of acceptance for it plays a
very important role in the validity of customary gifts.
In re Suhyen Stool; Wiredu & Obenwaa v Adjei [2005-

2006] SCGLR 424
1. Acceptance
 It is an essential element of a valid gift of land that
the donee accepts it. This is normally done by
giving a small token present to the donor as a
thank-offering or aseda.
02/10/24 235
CUSTOMARY LAW GIFTS
In Kwakuwah v. Nayenna (1938)WACA 4 165 it was held that
acceptance is necessary to validate a customary gift and one
must prove acceptance in order to establish a gift.
It appears from the authorities that giving of aseda is not the
only way of accepting a gift. A gift can also be accepted in the
following manner: They are:
i. By rendering thanks with a thank-offering or
presents, alone or coupled with an utterance of
appropriating the gift; or
ii. Using or enjoying the gift; or
iii. Exercising rights of ownership over the gift.
02/10/24 236
CUSTOMARY LAW GIFTS
1. Acceptance
When the land is demarcated for the donee and
he/she is placed in possession and the guaha (or
equivalent) custom is performed.
The donee signifies acceptance by the presentation
of certain items, as an expression of thanks (aseda) to
the donor.
The second stage of acceptance also consists of
presentations of further aseda items to the donor by
the donee through a delegation on behalf of the donee
in the presence of witnesses.
02/10/24 237
CUSTOMARY LAW GIFTS
In S. A ADDY VRS AMELEY ARMAH LAND COURT,
ACCRA, 23RD JUNE 1960 (UNREPORTED) -
summarized on pages 120-121 of Ollennu’s
Customary Land Law 2nd edition
“ custom lays down that the donee does not join such
a delegation to make the presentation to the donors;
members of his family and his friends, are the proper
persons to go on his behalf, though he himself should
supply the articles to be presented…”
The aseda should be given within a reasonable time
after the gift is received and in any event within the
lifetime of the donor.
02/10/24 238
CUSTOMARY LAW GIFTS
2. Publicity
 A gift is not valid unless made publicly. The
members of the donor’s family should be present
and members of the donee’s family will normally
take part in the aseda ceremony. It is also prudent
to include a number of impartial witnesses who do
not belong to either family.
 If there is a dispute over the transaction, it is not
essential to produce any of these witnesses in
court, but it will be regarded with suspicion if no
good reason is given for a failure to call them.
 Nartey v Nartey (1953) 14 WACA 295
02/10/24 239
CUSTOMARY LAW GIFTS
2. Publicity
In Nartey v. Nartey (1953) 14 WACA 295, a father
acquired land after he had executed a will and made a
gift of that land to his daughter in the presence of her
mother and other persons. He erected buildings on it
and in the presence of witnesses, pronounced a gift of
the land in his daughter’s favour. The gift of the land
with the buildings thereon, was held to be valid at
customary law, because due publicity of the gift was
made. See also Kwakuwah v. Nayena (1938)4
WACA 165
02/10/24 240
CUSTOMARY LAW GIFTS
2. Publicity
In Kwakuwah v. Nayena (1938)4 WACA 165, the
plaintiff claimed land, with buildings thereon, as
property granted to her by her late husband in
consideration of financial assistance which she gave
him in erecting the buildings and services she
rendered to him during the marriage. The alleged gift
was not made with the necessary publicity required by
customary law. The Native Court declared the gift null
and void and this judgment was restored later by the
WACA.
02/10/24 241
CUSTOMARY LAW GIFTS
3. EXERCISE OF RIGHTS OF OWNERSHIP AS EVIDENCE OF
PUBLICATION:
 Normally, in satisfying the previous two
requirements, a donee will in fact take possession.
However, it is also possible that even though a
donee may have accepted the gift amidst publicity,
he or she may not actually take possession of the
gift.
In ASARE V. TEING (supra) it was also held that in
the absence of publicity at the time of making the
gift, the open exercise of rights of ownership over
the property by the donee is sufficient evidence of
publication of a gift.
02/10/24 242
CUSTOMARY LAW GIFTS
3. EXERCISE OF RIGHTS OF OWNERSHIP AS EVIDENCE
OF PUBLICATION:
 In other words, in the absence, however, of
publicity of the gift at the moment of its making,
possession and occupation by the donee and the
open exercise by him/her of rights over the
property, which is incapable of any other
explanation except that the person in such
possession is the owner, will be sufficient
evidence and publication of a gift.
02/10/24 243
CUSTOMARY LAW GIFTS
If therefore, there were the complete absence of
evidence to demonstrate any exercise of rights of
ownership over the house by the donee, it would be
difficult to establish that a gift was made in his favour.
If the donor continued to exercise rights of ownership,

then the donee could not be heard to say that he had
exercised acts of ownership.
In MMEH V APPAWU (1952) DC LAND, ‘52-‘55,54;
BOAKYE V BRONI (1958) 3 WALR 475
02/10/24 244
CUSTOMARY LAW GIFTS
it was stated that the mere proof of use of the land by
an alleged donee is not sufficient to establish a gift.
Thus if a donee was permitted to use property by
virtue of his relationship to the donor, it is not sufficient
to establish a gift.
02/10/24 245
CUSTOMARY LAW GIFTS
4. Revocability of Gifts
 It has been held as a general principle that gifts
once made are irrevocable. In Boakye v. Broni
(1958) 34WALR it was held a gift of land validly
made cannot be revoked
 The only probable exception is gifts to a donor’s
child, which could be recalled or exchanged at any
time by the parent in his or her lifetime, or by his
will or dying declaration. See the case of-
 Sese v Sese [1984-86] 2 GLR 166
02/10/24 246
CUSTOMARY LAW GIFTS
This may occur sometimes, for example, where the
gift is made in anticipation of services, which the child
fails to perform. So long as the intention to revoke
was clearly and unequivocally expressed by the
parent, be it orally or in writing or in a will, the
revocation would be effective and would be in
accordance with customary law.
02/10/24 247
CUSTOMARY LAW GIFTS
5. Promise of a Gift
 There is authority for holding that if a gift is
promised and aseda given, the promise is binding.
The donee may apply for the remedy of specific
performance. If a promise were cancelled by
mutual agreement between the donor and the
donee, it would be signified by a return of the
aseda to the donee.
02/10/24 248
CUSTOMARY LAW GIFTS
Writing as Evidence
of Customary Law
Conveyances
02/10/24 249
CUSTOMARY LAW GIFTS
6. The Use of Writing in Customary Law
Conveyances
 Although normally, customary law conveyances
are oral, it has become a practice in modern times
that after the customary law conveyance has
taken place, a document is executed between the
parties as a way of providing permanent evidence
of the transaction.
The document is often couched as a common law
conveyance on the face of it but it should be
noted, however, that legally, at the time of the
execution, the grantor has already passed title.
02/10/24 250
CUSTOMARY LAW GIFTS
Any such document will take effect only as evidence of
what has already been done. Danquah v Wuta-Ofei
(1956) 2 WALR 185
 This is the legal position, even though the written
document may make no reference to the transaction of
which it is evidence.
Cofie v Otoo [1959] GLR 300
Adwubeng v Domfeh [1996-97] SCGLR 660
Dovie & Dovie v Adabunu [2005-2006] SCGLR905
Brown v Quarshigah [2003-2004] SCGLR 930
University of Cape Coast v Anthony [1977] 2 GLR
21
02/10/24 251
CUSTOMARY LAW GIFTS
According to sec. 1 of the Conveyancing Act, 1973
(N.R.C.D 175), a transfer of an interest in land shall
be by writing, assigned by the person making the
transfer or his agent dully authorized in writing.
Section 3 makes certain exemptions, which include
the transfer of interests in, land, which take effect by
oral grant under customary law.
02/10/24 252
CUSTOMARY LAW GIFTS
Sese v Sese [1984-86] 2 GLR 166
In Sese v Sese it was held that going by the plaintiff’s
own evidence, the purpose for executing the deed of
gift in his favour was not to give the disputed out-
house to the plaintiff as a gift inter vivos.
The purpose was to transfer the whole land into the
plaintiff’s name so that he could use the document of
transfer to secure a bank loan to enable him complete
his building project.
02/10/24 253
CUSTOMARY LAW GIFTS
Sese v Sese
The father’s conduct of continuing to be in full
occupation and control and collecting and enjoying the
rents from tenants occupying part of the out-house
was a clear manifestation that he never intended to
divest himself of his ownership of the house to the
plaintiff.
It was also held that the way and manner in which the
said deed of gift … came into existence was a clear
indication that the plaintiff’s father did not at any time
evince an intention of making any customary gift to
the plaintiff.
02/10/24 254
CUSTOMARY Conveyances
Can Writing be Used to validate
Customary Law Conveyances?
In Lawer v Kwame (1958) 3 W.A.L.R. 473 this
contention was expressly rejected by the court.
It appears that the authorities are very clear
that much as written document serves as
evidence of the customary law transaction,
which has taken place, it is not needed to
validate the transaction.
02/10/24 255
CUSTOMARY Conveyances
 Adjowei v Yiadom III [1973] 2 GLR 90
 Odoi v Hammond [1971] 1 GLR 375
 Hammond v Odoi [1982-83] 2 GLR 1215
In Awuah v Adututu [1987-88] 2 GLR 191 – It was
held that a receipt acknowledging payment of
money and giving reference to the size of the land
granted without more and without any particulars
from which that land could be clearly identified
could not change the character of that receipt into
a conveyance or an instrument transferring title or
an interest in land so as to make it registrable
under the Land Registry Act, 1962 (Act 122).
02/10/24 256
CONCLUSION
ESSENTIALS OF A VALID GIFT IN CUSTOMARY
LAW:
 ASARE V. TEING [1960] G.L.R. 155 at 160, to
 ADIYIA V. KYERE [1975] 2 G.L.R. 89, C.A.,
 ACKUN AND ANOTHER v. YANNEY [1962] 1
GLR 464 – 471
 YOGUO V AGYEKUM [1966] GLR 482 at 493 SC
02/10/24 257
CONCLUSION
 KYEI AND OTHERS v. AFRIYIE [1992] 1 GLR
257 - 266 H.C., it has been established that the
essentials of a valid gift in customary law were;
i. publicity,
ii. acceptance; and
iii. placing the donee in possession.
02/10/24 258
CONCLUSION
ESSENTIALS OF A VALID GIFT IN CUSTOMARY LAW:
 In the case of YOGUO V AGYEKUM (Supra) the
Supreme Court summed up the essentials of a
valid gift under customary law as follows;
 “A valid gift, under customary law, is an
unequivocal transfer of ownership by the donor to
the donee, made with the widest publicity which
the circumstances of the case may permit.
“For the purposes of the required publicity, the gift is
made in the presence of independent witnesses,
some of whom should be members of the family of
the donor
02/10/24 259
who would have succeeded to the property if the

donor had died intestate and also, in the presence of
members of the family of the donee who also would
succeed to the property upon the death of the donee
on intestacy”.
“The gift is acknowledged by the donee by the
presentation of drink or other articles to the donor; the
drink or articles are handed to one of the witnesses-
preferably a member of the donee’s family, who in
turn delivers it to one of the witnesses attending on
behalf of the donor;.”
02/10/24 260
“libation is then poured declaring the transfer and the

witnesses share a portion of the drink or other articles.
Another form of publicity is the exclusive possession
and exercise of overt acts of ownership by the donee
after the ceremony.”
In the case of KYEI AND OTHERS v. AFRIYIE (supra)

the court elaborated on the way to give publicity to a
gift of land. The way to do so according to his lordship
was to make the gift in the presence of witnesses.
02/10/24 261
More importantly, those present to witness the

transaction should include not only members of the
donor's family but also others who would be deemed
to be independent with no interest whatsoever in the
gift.
Clearly therefore the actual constitution or
composition of the witnesses is material in the
determination of whether there was publicity. In KYEI
AND OTHERS v. AFRIYIE (supra) the court held that
since all the alleged witnesses were members of the
donor’s family the publicity of the gift was not wide
enough.
02/10/24 262

LAW:
The object of the customary requirement of publicity is
to prevent allegations of secret alienations or claims,
which would invariably be made when the donor was
no more. In situations where a person claims that a
deceased person gifted property to him but without
adequate publicity, then if everything appears to have
been done in secrecy, it is a cause of concern and
suspicion as to whether the gift was actually made or
not.
02/10/24 263
Thus where a man makes a gift of property to one of

his children during his lifetime to the exclusion (and
without the knowledge) of the other children a
legitimate question which may be asked is, how would
he ensure that the intended beneficiary of his largesse
would be given the gift in the event of his death.
How was he going to ensure the carrying out of his
wishes in the event of death unless he involved his
relations or children in the ceremony or even just
informed them of it after the event?
02/10/24 264
CONCLUSION
LAW:
The burden of persuasion as stated in section 10(1) of

the Evidence Act, 1975 (N.R.C.D. 323 as “ the
obligation of a party to establish a requisite degree of
belief concerning a fact in the mind of … the court”.
02/10/24 265
CUSTOMARY PLEDGES
• WHAT IS A CUSTOMARY
PLEDGE OF LAND?
02/10/24 266
WHAT IS A CUSTOMARY PLEDGE?
Pledge in customary law is the delivery of
possession and custody of property, real or
personal, by a person to his creditor to hold
and use until the debt is paid, an article
borrowed is returned or replaced, or obligation
is discharged.
Before the abolishing of slavery, human beings
were also pledged and remained with the
pledgee and served him until he or she was
redeemed.
02/10/24 267
• The customary pledge of land is only a
temporary delivery of possession of land as
security for a loan taken or an obligation
undertaken by the pledgor with a promise to
repay the loan or honour the obligation so as
to redeem the land from the pledgee.
• However, should the pledgor fail to repay the
loan or honor the obligation, the land is
permanently transferred to the pledgee.
• The loan could be with or without interest .
02/10/24 268
• The customary pledge has been abolished
by the Mortgages Decree of 1972. It is
nevertheless important to understand how
land was transferred through pledges before
1972 and distinguish a pledge from land
sales.
• A pledge of land had much in common with
the sale or gift of land under customary law.
Hence most of the essential requirements of
a valid sale or gift apply equally to a pledge
under customary law;
02/10/24 269
CUSTOMARY PLEDGES AND SALES
• i.e, there must be publicity, the land must be
properly demarcated for the pledgee must be
placed in possession, the pledgor must be
the owner of the land pledged and be
competent to pledge it, and intend to do so.
• The main differences between a pledge and a
sale under the customary law are:
• (a) in the case of a sale, Guaha must be
performed but in the case of a pledge, that
custom is not performed since a pledge is
02/10/24 270
CUSTOMARY PLEDGES AND SALES Cont’d
• only a temporary delivery of possession of
land as security for a loan taken or an
obligation undertaken by the pledger and
could be terminated by redemption at ant
time.
See Paintsil v. Aba (1964) GLR 34
• In that case, the Supreme Court held that the
absence of the guaha showed that the
transaction was a pledge and not a sale.
02/10/24 271
• SAMANSIW
(NUNCAPTIVE WILL)
• WHAT IS SAMANSIW?
02/10/24 272
SAMANSIW (NUNCAPTIVE WILL)
• A samansiw or a “death bed will” is an oral
customary will.
• It is an oral disposition of land made by a gift
inter vivos contingent upon the death of the
donor, or in anticipation of one’s death. The
disposition so made may be revoked at any
time before the death of the donor, and is
automatically revoked when the donor
survives the illness or sickness.
02/10/24 273
• 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. It can be revoked at anytime
before the death of the donor.
• One could also by his samansiw appoint
another person to be the caretaker of his
self-acquired properties.
02/10/24 274
• 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).
• The court of Appeal in the case of In re
Armah (Decd): Awotwi v. Abadoo
(1975)1GLR374 held that to constitute a
valid oral customary will, the following
evidentiary requirements must be met:
02/10/24 275
• (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 decease
• The Court went on to hold that failure to pay
02/10/24 276
• aseda, or the absence of a member of the
family of the testator as a witness at the
making of the samansiw would not nullify nor
render void a bequest.
• See also Hausa v. Hausa (1972) 2GLR 469
02/10/24 277
• FAMILY PROPERTY
• What is family property?
02/10/24 278
FAMILY PROPERTY
• The family in its extended traditional forms
plays a pivotal role in the holding and dispo-
sal of land. In many parts of Ghana, the
family owns vast tracts of land in their own
right. Concerns with family property will
continue to be entrenched in land law as
self-acquired properties of intestates are
transformed into family property by operation
of the rules of intestacy, despite the provi-
sions of the Intestate Succession Law
(PNDCL 111).
02/10/24 279
FAMILY PROPERTY
• Types of Family
• We are principally concern with the extended
form of family, not the nuclear one, and
Ghanaian communities are broadly divided
into two types: the matrilineal and the
patrilineal.
02/10/24 280
FAMILY PROPERTY
• Ancestral family property is property which

was once the individual self-acquired
property of a very remote ancestor, and
which has become vested in a very wide
family, consisting of a number of small
families or tribes.
02/10/24 281
Legal Implications of Family membership
Legal consequences arise from famiy
membership:
Common ownership of property;
Common liability to contribute to meet family
debts, and;
Common right of representation at family
meetings.
02/10/24 282
FAMILY PROPERTY
• Common ownership of property:
• All property belonging to the family are held
in common by the members. The head of the
family holds the property in the interest of the
members, both living and unborn.
• The family has landed interests in three
types of property; namely vacant family
lands, the properties of intestate members
(despite the existence of PNDC III) and the
ancestral home
02/10/24 283
FAMILY PROPERTY
• Common ownership of property continued:
• Every member has an inherent right to a
portion of family land for farming and for
building purposes. However the family
member only acquires a life interest in the
family property.
• Ollennu stated (See Ollennu and Woodman,
1985, p149) that:
• “The interest which a member of a family has
W.M. Adolwine; ESQ 284

FAMILY PROPERTY
• in the general family property is an interest
for his life. Therefore in matrilineal areas,
children of a male member of the family do
not upon their father’s death intestate,
acquire any right or interest in a family farm,
house or land occupied by their father during
his lifetime”.
• Therefore in Mills v Addy (1958) 3 WALR
357, It was said “Where in matrilineal areas
family property is enjoyed by members of
02/10/24 285
FAMILY PROPERTY
a family, the nature of the interests of each
member therein is that of a joint life interest for
the life of all of them, continuing as a life interest
for the survivor of them. The property concerned
cannot be disposed of by such life tenants or
tenant, either inter vivos or by testamentary
disposition or otherwise.”
The family member acquires rights to
possession and user if he occupies and
cultivates land not already in the occupation of
other members of the family.
02/10/24 286
FAMILY PROPERTY
• In that case his right ripens into the usufruct
with security of tenure and qualities of
alienability and heritability.
• A family member may not grant an interest in

family property for economic rent without the
consent of the family except property which
he has established the right to beneficial
use. Neither can a member occupying family
land or house dispose of it. He has a life
interest only with no rights of disposition.
02/10/24 287
FAMILY PROPERTY
• Alienation of family property can only be
effected by the head of the family acting with
the consents and concurrences of the
principal elders. Unauthorized alienation of
family property by a member is void.
• Every family member is responsible and has
common liability to pay family debts, whether
such debts arise from land administration or
lawsuits.
• .
02/10/24 288
FAMILY PROPERTY
• If therefore a member redeems family
property pledged for debt, the redeemed
property reverts to the family and not to the
individual.
• In Bruce v Adjah (1925)D.C., family
property was being sold in execution and a
member purchased it at the judicial sale. It
was held that he was presumed to have
bought it for the family.
02/10/24 289
FAMILY PROPERTY
• The family may hold any type of interest in
land, but most families hold the allodial or
usufructuary title. Title to such property can
only be transferred by the family acting
through the head of family and principal
members. The consent and concurrence is
vital to the validity of the transfer.
• The family head is normally the oldest male
member or the one elected or appointed
by the family at a family meeting (Lartey
v. Mensah (1958) 3WALR.
02/10/24 290
FAMILY PROPERTY
• That case held that “the head of family is
appointed at a meeting of all the
accredited elders of the family
summoned for that purpose”.
• See also Welbeck v. Captan (1956) 2WALR
• In general there is no such necessity to appoint or
elect a head. The oldest member of the most
senior generation is the head. See Mills v. Addy;
ibid
02/10/24 291
FAMILY PROPERTY
• DUTIES OF HEAD OF FAMILY
• The head of family towers above the rest of
the members in terms of prestige and
influence and normally resides in the
ancestral home or seat of the family. His
authority is exercised over both the living
and the dead.
1). In the case of the dead, authority is
expressed through the family’s control over
the body and funeral of a deceased member
(Okoe v. Neequaye, 1993-94) GLR 538.
02/10/24 292
FAMILY PROPERTY
• In Okoe v. Neequaye, the court held that, the
widow and children of the deceased have no
inherent right and are not entitled to decide the
place of burial and the venue for funeral of the
deceased, it is the family. It was further held that a
corpse by customary law was not part of the self-
acquired property of the deceased capable of
inheritance under customary law and the
provisions of the Intestate Succession Law,1985
(PNDCL111). The wishes of the deceased as to
what should be done to his body is not also binding
on the family.
02/10/24 293
FAMILY PROPERTY
• By custom, the head of family has charge of
the dead body and in case of irreconcilable
differences, the family may exclusively
determine the place of burial and the manner
of the funeral.
• Question: What is the position where the

deceased left in his Will that his body should
be donated to a Teaching Hospital
02/10/24 294
FAMILY PROPERTY
• 2). The head represents the family in negotiations
and disputes with non-members. He also exercises
quasi-judicial authority when he conciliates
disputing members of the family. He also settles
marital differences between members of the family
and their spouses. The head can sue and be sued
on behalf of the family.
• Order 4 rule 9 of the High Court Civil Procedure Rules,
2004 (C.I. 47 provides: “The head of a family in accordance
with customary law may sue and be sued on behalf of or as
representing the family.
02/10/24 295
FAMILY PROPERTY
• Accountability of Head of Family
• The head of family is accountable for family property under
his management and administration. He accounts to the
family and to the principal elders (See Hansen v. Ankrah
(1980) GLR 668.
• See also the Head of Family Accountability Law, 1985
(PNDC114).
• CREATION OF FAMILY PROPERTY.

• How is family property created or how does it arise?
02/10/24 296
CREATION OF FAMILY PROPERTY.
• Family property is created through the Acts of individual
family members, acting either in their own capacity or as
agents of the family.
• i. Property bought with money belonging 5to the family
Nugent v. Narteh, (1958) 3WALR 537
• ii. Where family members contribute to buy land, it is
presumed to be family land and becomes family property on
the death of the last of the acquiring members, unless there
was an intention to the contrary.
• iii. Where one or more members purchase land with theie
own money and other members contribute substantially to
its development, it becomes family property.
• Mensah v. SCOA (1958) 3WALR 336
• 02/10/24
Larbi v. Cato (1959) GLR 146 297
CREATION OF FAMILY PROPERTY
• iv. Where a member builds on family land in use by the
family, a site on which a family structure of any sort exists,
the house is family property and the member has only a life
interest only and he cannot create an interest in it which will
subsist after his life (See Ollennu and Woodman, p46) and
READ Amissah-Abadoo v. Abadoo (1974) 1GLR 110
• but see Ansah v. Sackey (1958) 3WALR 325
• FAILURE OF HEAD OF FAMILY TO ACT

• Where a family head fails to take steps to protect family
property that is being dissipated or destroyed by others or
by himself, the courts have held that other interested
members could step in to protect the property.
02/10/24 298
PROTECTING FAMILY PROPERTY- KWAN V. NYIENI
• In Kwan v. Nyieni (1959) GLR 67, Osei Kojo was removed
as family head for squandering family property and Kojo
Kwan appointed in his stead. Osei Kojo as head had
mortgaged several of the family’s cocoa farms to one Nyeini
who purported to sell the farms under a power of sale under
the mortgage. Kwan instituted action for a declaration that
the farms were family property and further that the
mortgage was effected without knowledge of the family. The
Court of Appeal held that as a general rule the head of
family is the proper person to institute a suit for recovery of
family property but that there are exceptions to this general
rule in special circumstances;
• (i) where the family property is in danger of being lost to the

family and it is shown that the head of family (either out of
02/10/24 299
PROTECTING FAMILY PROPERTY- KWAN V. NYIENI
• personal interest or otherwise) will not make a move to save
or preserve it; or
• (ii) where, owing to a division in the family, the head and
some of the principal members will not take any step; or
• (iii) where the head and principal members are deliberately
disposing of the family property in their personal interest, to
the detriment of the family as a whole.
• In any such special circumstances, the court will entertain
an action by any member of the family authorized by other
members or as of necessity.
• See also Sabbah v. Worbi (1966)GLR 87
• Hausa v. Hausa (1972)2 GLR 469
02/10/24 300
GROUNDS FOR DEPOSITION OF A HEAD OF FAMILY
• The head of family holds his office subject to

good behavior; he continues in office so long
as he enjoys the confidence of the majority of
the principal elders of the family. He may be
removed from office, for example, for;
• a) failure to perform his duties properly, e.g
refusing to litigate the family’s title to property
or to watch the interests of the family;
• b) mismanagement of the property; failing to
repair family house or rehabilitate family farm,
02/10/24 301
• pledging or disposing of family property
without the consent of pledging or disposing
of family property without the consent and
concurrence of members of the family;
• c) selfish practices; eg, using family moneys
on himself and on his children while oyher
members of the family suffer want;
• d) failing to account to the family for funds of
the family;
• e) incapacity, mental or physical; or
02/10/24 302
• f) showing disrespect to the family; eg,
refusing to summon a family meeting when
required by members to do so or refusing to
attend family meeting convened by two or
more of the principal elders or by a chief or
town elder at the request of members of the
family, or for failure to consult with the elders
on major matters.
02/10/24 303
RIGHTS TO PROPERTY WITHIN THE NUCLEAR FAMILY
• Even before the passage of PNDCL111, the Courts had
waged war against the customary rule of inheritance which
had not recognize a surviving widow and the children in
matrilineal societies.
• In Yeboah v. Yeboah (1974) 2GLR 114, the court held that
property acquired during the subsistence of the marriage
was joint property and the surviving spouse and the children
were owners of that property and not the family, upon the
death of the man.
• ii) Abebreseh v. Kaah (1976)2 GLR46
• iii) Anang v. Tagoe (1989-90) GLR 8
• Clerk v. Clerk (1968) GLR 353
02/10/24 304

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CUSTOMARY LAND LAW

The Ghanaian customary land law is a

Land is seen as an asset with many diverse

#Corporal Hereditament –the legal aspect of

Right to exclusive possession:

•Land therefore, from the foregoing, is not just

• what it contains, the heat and light, rain and air

• This is in addition to the capital value of the

LAND OWNERSHIP IN GHANA

• No unowned Lands in Ghana

• Ollenu, N. A. Principles of Customary Land

• Generally, land ownership in Ghana can be

• 1. THE ALLODIAL INTEREST

•The community or the person in whom

• Non-Ghanaians are by law not permitted

• be a leasehold interest for a period

• However, unlike in the case of

• 4. THE LEASEHOLD INTEREST

• Atta Panyin v. Asani II (1977)1 GLR 83

• Since it is only unoccupied and un-owned land

In this case, certain lands were compulsorily acquired

• It was held that as the absolute title was

• There are about three possible

Right to acquire the customary

• Land can also be vested in the State using the

• Therefore, though the allodial interest exists into

• Cases on the freehold interests

NATURE OF THE CUSTOMARY

The Customary freehold is an interest in land

If the land is already in the possession

Que. Can a stranger

• the land may be sold in execution of a decree

In Atta v Esson, it was Held:

• (3) The plaintiff's family in their capacity as

• Though the customary freehold is potentially

(Note: Discuss the decision in in Atta v. Esson (1976)

b) Annual (yearly) tenancy

THE MODERN VIEW OF ABUSA

• A farming licence is terminated when the licence is

• So long as the building stands on the land, the

• Mensah v Blow [1967] GLR 424

• Crops grown subject to contract

• By express provision in the agreement

A conveyancing is the process by which land or

• At customary law, a conveyance of land

Without the payment of the tramma, there is no

• Angmor v Yiadom III [1959] GLR 157

• Back then, as it is now, if anyone wanted to

CUSTOMARY LAW GIFTS

In re Suhyen Stool; Wiredu & Obenwaa v Adjei [2005-

If the donor continued to exercise rights of ownership,

who would have succeeded to the property if the

“libation is then poured declaring the transfer and the

In the case of KYEI AND OTHERS v. AFRIYIE (supra)

More importantly, those present to witness the

ESSENTIALS OF A VALID GIFT IN CUSTOMARY

Thus where a man makes a gift of property to one of

The burden of persuasion as stated in section 10(1) of

• What is family property?

• Ancestral family property is property which

W.M. Adolwine; ESQ 284

• A family member may not grant an interest in

• Question: What is the position where the