Customary Law Interests in Land

Customary Law Interests in Land

• Recognized customary law interests include allodial title, customary law, freehold or usufruct, customary tenancies, and customary licenses

Allodial Title

• Equated to "absolute title" or "ultimate title"
• It represents the sole customary law interest not traditionally held by a tenant from a lord, making the owner the lord
• It is the highest possible interest an owner can have in land under customary law
• Customary communities(stools and skins), families, and individuals can hold the allodial title

Allodial Title: Stools

• Authorities assert that in certain regions, customary communities known as Stools hold the allodial title
• Akwei v. Awuletey (1960) GLR 231 supports this assertion
• Kotei v. Asere Stool (1962) 1 GLR 312 reinforces the idea that Stools can hold allodial title
• Jamestown Stool v. Sempe Stool (1989-90) 2 GLR 393 clarifies that allodial title can be vested in sub-stools, with each sub-stool possessing allodial title to a designated quarter(Sempe, Alata, Akumajay)

Allodial Title: Skins

• In some regions, customary communities known as Skins hold allodial title
• Saaka v. Dahali (1984-86) GLR 149 and Azantilow v. Nayeri (1952) DC (Land) (1952-1955) support this assertion

Allodial Title: Families and Individuals

• Authorities suggest allodial title can vest in Families, as supported by Ameoda v. Pordier (1967) GLR 479
• The possibility exists for allodial title to vest in individuals
• See Dennis & Arthur v Ababio
• This statement contrasts with Amodu Tijani v. Secretary of Southern Nigeria (1921) 1 AC, 399, Golightly v. Ashirifi (1961) 1 GLR 28 (PC), and Sasraku v. David (1959) GLR 7

Allodial Title: Incidents

• Incidents refer to the bundle of rights accruing to the holder of the allodial interest, defining user and control rights
• There is a distinction in the enjoyment of rights between subjects of the stool and strangers, or citizens and aliens respectively

Incidents of the Allodial Title

• Communities can control members' land use and grant land to subjects or strangers
• Communities can defend interests in the litigation
• Communities can receive allegiance and customary services from subjects or strangers residing on the land
• Community members have the right to harvest natural resources, farm, and build, gaining customary law freehold or usufruct
• Communities retain reversionary interest when customary law freehold holders abandon interests or die heirless which allows allodial holders to take possession when usufruct holders abandon the land or die

Acquisition of the Allodial Title

• The ways to acquire allodial title are listed in Ohimen v. Adjei (1957) 2 WALR 275
• A stool can acquire land though conquest, settlement, cultivation by its subjects, discovery of unoccupied land by hunters or pioneers, and subsequent settlement by stool subjects, gift, or purchase.

Acquisition of the Allodial Title: Conquest

• Allodial title can be acquired through conquest, subsequent settlement, and cultivation by stool subjects
• Related cases include Nyamekye v. Ansah (1989-90) 2 GLR 152 and Owusu v. Manche of Labadi (1933) 1 WACA 278

Acquisition of the Allodial Title: Discovery

• A stool can acquire allodial title via discovery of land by hunters/pioneers, subsequent settlement, and use by the stool's subjects
• Related case: Ngmati v. Adetsia (1959) GLR 323

Acquisition of the Allodial Title: Gift and Purchase

• Gift and purchase serve as routes to allodial title acquisition
• For cases involving unoccupied land between paramount stools(contiguity), see Wiapa v. Solomon (1905) Ren. 405, Ababio v. Kanga (1932) 1 WACA 253, Ofori-Ata v. Atta Fua (1913) D & FCt. (1911-16) 65-66, and THE OWNERLESS LANDS OF GHANA [1974] VOL. XI NO. 2 UGLJ 123—142 KLUDZE A. K. P

Loss of the Allodial Title

• Allodial title can be lost through abandonment (Ohimen v. Adjei), conquest (Owusu v. Manche of Labadi (1933) 1 WACA 278)
• Adverse possession under the Limitations Decree 1972 (NRCD 54), and extinction by constitutional provisions
• Article 266(3) of the 1992 Constitution converts existing freeholds held by non-citizens into 50-year leases, effective August 22, 1969, with a statutory pronouncement on August 21, 2019

Loss of the Allodial Title: Sale and Compulsory Acquisition

• Allodial title can be lost through sale (Golightly v. Ashirifi (1961) 1 GLR 28 (PC); Sasraku v. David (1959) GLR 7), and compulsory acquisition(Article 20, clauses 1,2,3,5 & 6, of the 1992 Constitution
• Compulsory acquisition is distinguished from vesting or vested lands
• See Nana Hyeaman II v. Osei(1982-83) GLR 495

Loss of the Allodial Title: Acts

• The Administration of Lands Act, 1962 (Act 123) and the State Lands Act, 1962 (Act 125) as amended, also influence the loss of allodial title

Usufruct: Definition

• Under Roman law, usufruct is the right to use and enjoy property belonging to another, as long as its substance remains unchanged
• It is also know as determinable estate, customary freehold, or customary law freehold

Usufruct Holders

• Usufructuary title usually vests in clans, families, or subjects of the allodial stool or skin
• See Ohimen v. Adjei (1957) 2 WALR 275
• Families can hold usufruct when their clans hold the allodial title

Usufruct: Individuals

• Usufructuary title can be held by individuals whose families are the allodial owners
• See Dennis D. Adjei, Land Law, Practice and Conveyancing in Ghana,(1st Edition) page 8

Incidents of the Usufruct

• A usufruct owner asserts title through someone with the allodial title

Incidents of Usufruct: Land Use

• The usufruct owner cultivates or uses unoccupied land and must maintain its possession
• Economic trees are evidence of occupation
• See Norquaye-Tetteh v. Malm (1959) GLR 468, Owusu v. Manche of Labadi (1933) 1 WACA 278, and Wuta Ofei v. Danquah

Incidents of Usufruct: Rights and Consent

• A usufruct owners interest is perpetual
• Allodial owner's cannot be take the land back without their consent

Incidents of Usufruct: Legal

• The holder of a usufruct possesses the exclusive right to possess and use the land
• See Mansu v. Abboye (1982-83) GLR 1313
• The usufruct holder can bring action against trespass
• The usufruct holders can challenge a grant made by the stool without their consent
• See Awuah v. Adututu (1987-88) GLR 191, Total Oil Products v. Obeng (1962) 1 GLR 228, Baidoo v. Osei & Wusu (1958) 3 WALR 289, and Mansu v. Abboye (1982-83) GLR 1313

Incidents of Usufruct: Obligations

• The usufruct holder can defend interests in litigation and is required to render customary service to the stool of allodial owner
• The usufruct owner owns the palm trees and economic crops on the land, and the allodial owner cannot sell them without consent

Incidents of Usufruct : Alienation

• The usufructuary owner can alienate their interest if the allodial ownership of the stool is still recognized
• Alienation without the stools consent is voidable
• See BUOR v. BEEDE AND OTHERS 3 WALR (1957)
• See ADDAI v. BONSU II [1961] GLR 273-277 Norquaye-Tetteh v. Malm (1959) GLR 468, Total Oil Products v. Obeng (1962) 1 GLR 228, Thompson v. Mensah (1958) 3 WALR 240, at 249-250, and Awuah v. Adututu (1987-88) GLR 191

Usufruct Acquisition: Discovery

• One way to acquire usufruct is through the discovery of vacant land by stool pioneers
• When stool subjects discover unoccupied land, settle, and occupy it and the stool gains allodial title, the subjects gain usufruct
• See Ohimen v Adjei Ngmati v. Adetsia (1959) GLR 323

Usufruct Acquisition: Express Grant

• Express grants from a stool is another method of usufruct acquistion
• In developed or urban communities, it is acquired through express government, to promote supervised allocation of plots and orderly communal development
• Expressing the grant does not require a subject to seek permission to take natural fruits on the land
• See Frimpong v. Poku (1963) 2 GLR 1

Usufruct Acquisition: Implied Grant

• Subjects of a stool possess an inherent right to usufruct on unoccupied stool land
• No formal grant is neccessary, and occupation/cultivation establishes usufruct
• See Bruce v. Quarnor (1959) GLR 292 and Ohimen v. Adjei (1957) 2 WALR 275

Usufruct Acquisition: Transfer

• Transfer of a usufruct can occur from subject to subject or from subject to stranger
• Transfer is effective when it is made, deeds can add to a grant
• Customary law already made can not be taken away from it
• Nii Amon Kotei v. Asere Stool (1961) GLR 492 (PC) and Bruce v. Quarnor (1959) GLR 292

Usufruct Acquisition: Limits

• The customary rule of stool acquiring determinable or usufructuary title in the land in which the subject occupies is not valid when virgin forests are used
• No labour is used, or possession actually reduces
• See ADJEI v. GRUMAH [1982-83] GLR 985-989

Loss of Usufruct

• Methods of usufruct loss include abandonment (Mansu v. Abboye (1982-83) GLR 1313; Ohimen v Adjei; Malm v Lutterodt [1963] 1 GLR 1 S.C)
• Usufruct is lost when they the usufructuary denies grantors titles (Total Oil Products v. Obeng (1962) 1 GLR 228)
• Failure of successors also result in usufruct loss (Mansu v. Abboye (1982-83) GLR 1313)
• By consent of the usufructuary (Mansu v. Abboye (1982-83) GLR 1313. Sale through judgment of a court? See: Ohimen v Adjei)

Usufruct Statutory Intervention

• Article 267(5) protects grants of freehold in stool land as well as the right of the subject
• Article 266(1-5) references grants to foreigners
• MARTIN J. VERDOSE VRS PATRICIA ABENA VERDOSE-KURANCHIE CIVIL APPEAL NO. J4/45/2016 25TH JANUARY, 2017

Impact of Usufruct on and Allodial Title

• Denning LJ in Kotei v. Asere Stool (1962) 1 GLR 492 states that usufruct extinguishes the allodial title
• Prof. Woodman argues usufruct gives the subject rights that extinguishes allodial titles when acquired
• Check out Yiboe v. Duodu and Awua v. Adututu

Agricultural Tenancies: Overview

• Agricultural tenancies are contractual arrangements regulated by custom where a tenant cultivate land and shares produce with the landlord using formula which are either on abunu or abusa basis

Agricultural Tenancies: Conditions

• Akofi v Wires described agricultural tenancies throughout the country
• A landowner who is unable to cultivate the land can grant land to a stranger to work
• The landowner receives a shared amount of the crops realized from the land
• The tenant farmer will have no ownership on the land, but will have real interest in usufruct
• The agreement may be carried on indefinitely, as the original terms of the holding is observed

Abunu Tenancy

• Under abunu tenancy, the landowner provides land, tenants pay cost of cultivation until produce matures
• When maturity hits, tenant and landowner share produce 50/50
• This lasts until crops wither or become unfruitful

Abusa Tenancy

• Under the abusa tenancy, the landowner provides land and pays the cost of cultivation until maturity
• The tenant provide labour to grow crops
• Landowners take 2/3s of harvest, the tenant recieves 1/3
• Lamptey alias Nkpa v. Fanyie states, the landowner may or may not provide more, however, they typically contribute more because they get more in return

Abunu and Abusa Tenancies: Incidents

• The arrangement is typically to grow cash crops like cocoa, coffee, kola nuts, rubber, and oil palm
• Farmers have to plant seasonal crops such as cocoyam & plantain
• This enables tenant to survive until cash crops are matured
• The landowner cannot benefit from land until cash crops mature
• Agreements between parties show nature of tenancy( Fori v Ayirebi and Others [1966] GLR 627 SC)

Abunu and Abusa Tenancies: Conformity

• A private arragement that isnt what everyone else is doing is unenforceable and invalid
• See Akofi v Wiresi and Abagya (1957) 2 WALR 257, Contrast with LAMPTEY ALIAS NKPA v. FANYIE AND OTHERS [1989-90] 1 GLR 286-307; the Supreme Court modern view of agricultural tenancies- No inflexibility in what laws can bind

Agricultural Tenancies: Conditions for Farmers

• Farmers must discuss terms of entry with land owner, says LAMPTEY ALIAS NKPA v. FANYIE AND OTHERS
• abusa/abunu gives parties rights and obligations, the split is dependent on amount of parties, not subject matter
• Matter could be harvest, payment, form, or harvest, depending on what parties agreed upon and case

Reference to Land and Tree

• LAND AND TREE TENURE AND RURAL DEVELOPMENT FORESTRY IN NORTHERN GHANA [1993-95] VOL. XIX UGLJ 102—132, KOTEY E.N.A*