Introduction
On the Republic Day last year, 2024, the topic, ‘The Clash of Two Legal Cultures” was deliberately chosen to emphasize how the common law sought to systematically “extinguish” customary law, but our indigenous law prevailed. As we celebrate another Republic Day on Tuesday, we have no option but to pause and reflect on our customary law systems and how they have fared over time.
Sankofa, an Akan word meaning “going back to retake”, is a powerful symbol of Ghana’s cultural heritage. The full version is expressed, “se wo were fi na wosan kofa a yenkyi” which translates into English to wit: “It is not a taboo to go back and fetch what you forgot.” Ellen G. White, as far back as 1902 counseled that: “We have nothing to fear for the future, except as we shall forget the way the Lord has led us, and His teaching in our past history.”[1]
Acquisitions under customary land tenure in Ghana have been a complex web of uncertainties and disputes under past statutory regimes. Since the nation recently embarked on a journey of land governance with the Land Act, 2020 (Act 1036), it is fitting to examine customary law acquisitions and grants in the light of land administration and management. One significant aspect of this reflection is the recognition of acquisitions under customary law as a source of good title in Act 1036. By embracing its rich cultural traditions, Ghana’s land sector can leverage on its stability to build a more inclusive and sustainable future.
This article explores the resurgence of customary law acquisitions/grants under the Land Act and its implications for land tenure in Ghana.
Historical Background
Customary law acquisitions and grants have had their fair share of “peaks and valleys.” Until the middle of the 1980’s, they were recognized as title to land and by their oral nature, were often proved by either traditional evidence or acts of possession. Of these titles relative to possession, Da Rocha and Lodoh,[2] relying on the cases of Ntim v. Boateng,[3]Yoguo v. Agyekum[4] and Asare v. Antwi[5] surmised: “In the peculiar situation in this country, a customary grant is a good title if it can be shown that the grantor has been in effective possession of the land for a statutory period of thirty years …”
In 1972, the Conveyancing Act, 1973 (NRCD 175) was enacted and Sections 1 & 2 provided that transfers of interests in land should be in writing before they would be enforced by the Courts. Exceptions were made for oral grants acquired under customary law,[6] among others.
Under Section 36 (1) of NRCD 175, the period required for the commencement of title to land, whether documentary or otherwise, was thirty years. By the use of the word “otherwise” in the provision, the lawmaker was in a way acknowledging titles to lands that were not documented.
Nevertheless, Section 4 made provision for the recording of oral grants of an interest in land under customary law in order to have legal effect.[7] Experience suggests that legislative attempts to compel customary law grants to yield to a mandatory system of recording and registration have always hit a brick wall. In Hammond v. Odoi,[8] the Supreme Court speaking through Adade JSC said: “… where a prior oral customary grant can be established, no amount of subsequent conveyance, registered or not, can defeat the customary title.”
The authority cited supra reaffirms the robustness of customary law grants against conveyances backed by “legislative precepts.” According to a Kenyan proverb, a fully grown up tree cannot be turned into a walking stick. Hence, the Supreme Court later revealed in In Re Bonney (Dec’d); Bonney v. Bonney[9] that the compulsory recording system of oral grants under customary law instituted by NRCD 175 was impliedly revoked in 1986 upon the enactment of the Land Title Registration Act (PNDCL 152).[10]
PNDCL 152 introduced a new era of land title registration in land administration in Ghana. Like the new Pharaoh, to whom Joseph meant nothing,[11] PNDCL 152 seemed not to have duly acknowledged acquisitions under customary law as a good title.
Under Section 23 (5), the Land Title Registration Law laid down the sources of good title thus:
“In this section “good title” means, in a case in which a title is founded on documentary evidence, a title which consists of or commences with
- an enactment,
- a grant or conveyance from the Republic,
- a grant, conveyance, assignment or mortgage which is more than thirty years and establishes that a person is entitled to deal with the land, or
- a final judgment of a Court of competent jurisdiction.”
Per the provision supra, one could clearly perceive that acquisitions under customary law were conspicuously missing from the list of “good title” under the new legal framework. Lacking specificity, the provision sparked a range of interpretations, resulting in inconsistencies in judicial decisions.
In Nsowaa & 2 Ors. v. Bamba & Anor.,[12] the Court of Appeal held thus: “In law title to land may take the form of possession or it may take the form of documents or series of documents. It is however stipulated in section 23 (5) of the Land Title Registration Law, 1986 (PNDCL 152) that a good title is always documentary.” (Emphasis supplied). Similar decisions were churned out by their Lordships in cases such as F.K.A. Ltd. v. Adjei Boadi[13] and Deliman Co. Ltd. v. HFC Bank Ghana Ltd.[14]
In a sense, possession simpliciter was treated as a form of title, yet, in their Lordships’ view, only documentary evidence could give rise to a good title. In that respect, oral acquisitions and grants under customary law were being overlooked as good title. Since customary lands constitute about 80% of the entire land in Ghana,[15] PNDCL 152 which did not expressly recognize the exigencies of customary law grant was bound to fail in the course of time. Despite conferring indefeasibility status on persons who registered their land, acquisitions under customary law stood resolute whenever the two clashed.
At the blind side of the lawmaker, the Supreme Court accorded oral customary law grants due recognition, sometimes even at the expense of registered titles deemed indefeasible, as gleaned from cases such as Brown v. Quashigah,[16]Dovie & Dovie v. Adabunu,[17] Majorie Atsoi Codjoe v. Samuel Okpoti Sowah[18] and Sarkodie v. FKA Co. Ltd.[19]
A wise man has said, even the best dancer may leave the stage one day. Therefore, upon the enactment of the Land Act, 2020 (Act 1036), PNDCL 152 was eventually retired to the archives of repealed legislations. The lawmaker, however, reproduced some of its relevant provisions in Act 1036.
Section 23 (5) of PNDCL 152 dealing with “good title” was one of the preserved provisions, but it was slightly modified under Section 64 (1) of Act 1036 thus:
“Good Title
64. (1) Good title is derived from
a. an enactment;
b. a grant, vesting order or conveyance from the State;
(c) a final judgment of a court of competent jurisdiction; or
(d) a grant, an acquisition under customary law, conveyance, assignment, or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land.”
It can be inferred from the above provision that acquisitions under customary law are included in the list of “good title.” It can also be observed that in order to clear any doubt about the efficacy of customary law grants as “good title”, the lawmaker expunged the part of the provision of Section 23 (5) under the old law which had been construed to mean that a “good title” must be founded on documentary evidence. In the wisdom of our elders, too much description turns a tiger into a deer. Further, Act 1036 continued to acknowledge oral grant under customary law as an exception to the requirement that transfers of an interest in land must be in writing.[20]
Implications
The validation of customary law acquisitions/grants as good title has serious implications for land litigation and management in Ghana. By its oral nature as earlier pointed out, title derived from customary acquisition may be proved by acts of possession without any documentary evidence.
Even where a document is executed in support of a customary law grant, the law is that the validity of the title commences from the date the land was acquired under customary law and not the date the document was prepared or executed.
In Dovie & Dovie v. Adabunu,[21] it was held: “No document is necessary to effectuate the customary purchase, given that customary law knows no writing. And the conveyance made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from the effect of the grant already made at customary law.”[22]
Since customary law grants revolve around possession, it is important that the underlying principles on possession in land law are examined critically. On hindsight two principles on possession seem to have been jumbled upon the recognition of customary law grants/acquisitions:
- The ratio by the Courts that a good title must always be documentary.
- A person in possession may bring an action against the whole world, except the one with a better title.
- The Ratio by the Courts that a Good Title can only be Documentary.
We may recall that Section 64 (1) of Act 1036 did not replicate Section 23 (5) of PNDCL 152 verbatim. It excluded the part of the section that required that a good title must be founded on documentary evidence. To that extent, the decisions by the Court of Appeal to the effect that a good title can only be documentary cannot be a good law, especially under the current land dispensation. Indeed, it would have been inconceivable if the lawmaker had maintained in Act 1036 the provision that a good title must be documentary when it had added acquisitions or grants under customary law, which is characteristically oral, to the list of good titles. It is therefore important that the legal community takes cognizance of the new law and its impact on the Court of Appeal rendition of the law that a good title must always be documentary.
- Possession is Nine-tenth of the law/A Person in Possession can bring an Action Against the Whole World, except the One with a Better Title
The above are common law principles[23] adopted by Ghanaian courts.[24] The earliest written version of the oft-cited English legal aphorism, possession is nine tenth of the law, dates back to 1616 when Thomas Draxe used it in his Bibliotheca Scholastica.[25] It is believed to have originated from an old Scottish proverb “possession is eleven points in the law, and they say they are but twelve.”
On the nature of title that possession gives, Da Rocha and Lodoh note at page 97 of their book thus: “The rule of the English common law, which has been assimilated into the common law of Ghana, is that possession by itself gives a good title to land against the whole world, except someone having a better legal right to possession.”[26]
It is common knowledge that in Ghana, possession has received statutory backing under Section 48 of the Evidence Act, 1975 (Act 323), but only as a presumption that can be rebutted in appropriate cases.[27] To a larger extent, possession under the common law and the Evidence Act are not unimpeachable, because space has been left in the formulation of the principles for their possible rebuttal.
However, in land law, it may appear that with the recognition of acquisition under customary law as a source that guarantees a good title, possession based on the acquisition or grant under customary law gives rise to a good title. It is needless to say that customary law acquisition/grants have now been statutorily elevated to the same level as titles that were documentary and deemed to be superior under PNDCL 152.
The effect is that a grantee under customary law, who is in possession of land without documentary evidence, cannot be dislodged from the land by a person with another or equivalent good title. As Sir Dennis Adjei submits, “Customary law does not know of writing so a person who acquired a land by an oral customary grant should not be defeated by a later grant registered in accordance with the law.”[28]
Prior to the enactment of Act 1036, possession could be defeated by a superior title, but it is worth stating that under the current statutory framework, possession pursuant to an acquisition or grant under customary law is in the same class of superior titles and can no longer be bullied. The rule is that where a valid oral grant was prior in time to a common law grant, the latter could not prevail over the former even if it was registered or not.[29]
In the same vein, notwithstanding the fact that registration gives an indefeasible title under the Land Act[30], it is worthy of note that the indefeasibility of title guaranteed by the law upon registration has been subjected to an overriding interest of a right acquired by customary law which is being occupied.[31]
It is therefore necessary that the courts in stating the principle on possession abstain from generalizing it; that possession is nine tenth of the law or gives right against all, except a person with a superior title. As possession pursuant to an acquisition under customary law has been placed in the same compartment of good title, it is important that in stating the principles on possession, a clear distinction is drawn between mere possession, not based on any valid grant and possession pursuant to an acquisition under customary law.
In the case of the former, where a person enters land as a trespasser, he may be able to bring an action in trespass against a later trespasser who disturbs his possession in the absence of a claim of adverse possession, but he may not succeed against the true owner or a person with a superior title.[32] On the other hand, where a person takes possession of land based on a valid customary grant, he cannot be ousted from the land by a person who comes with another title, because the customary grant would have given him good title.
Conclusion
The inclusion of acquisitions under customary law in the list of “good title” under Act 1036 may help to secure many customary grants that hang in the balance. Under PNDCL 152, the role of possession as a means of proving title to land lacked clarity as evidenced from decisions that were to the effect that title to land could be proved by means of possession, yet possession in any form was not explicitly recognized as good title. It is heartwarming to observe that Act 1036 substantially does away with the confusion which sometimes confronted the courts and land administrators under PNDCL 152.
Customary law acquisitions and grants might have their own peculiar challenges, but from their historical antecedents, one thing is clear – that under Act 1036, they have staged a massive comeback in the land tenure and administration in Ghana. By this article, it is hoped that the courts and all stakeholders in land law who otherwise gave customary law no chance as good title will revise their notes.
Lastly, we congratulate all the stakeholders who ensured that our cherished traditional land system remained resilient.
[1] White E.G. (1902) “Like Sketches of Ellen G. White”. Mountain View, CA: Pacific Press.
[2] BJ Da Rocha and CHK Lodoh, “Ghana Land Law and Conveyancing,” Second Edition, p. 99.
[3] [1963] 2 GLR 97.
[4] [1966] GLR 482.
[5] [1975] 1 GLR 16, 24.
[6] Section 3 (1) (h) of NRCD 175.
[7] See Section 7 (1) of NRCD 175.
[8] [1982-83] 2 GLR 1215, 1304.
[9] [1993-94] 1 GLR 610, SC.
[10] See Sections 138 -139.
[11] Exodus 1:8 (NIV).
[12] [2015] 86 GMJ 21 at p. 24.
[13] [2012] 43 GMJ 47, C.A., per Abban J.A.
[14] [2016] 92 GMJ 1 at p. 25, per Barbara Ackah-Yensu J.A. (as she then was).
[15] Kumba Naa Yiri II, “Customary Lands Administration and Good Governance – The State ad the Traditional Rulers Interface”.
[16] (2003-2004) 2 SCGLR 930 at holding (2)..
[17] [2005] SCGLR 905.
[18] Civil App. No. J4/56/2022, 29th November, 2022, S.C. (Unreported).
[19] (2009) SCGLR 65.
[20] See Section 36 (1) (h) of Act 1036.
[21] [2005] SCGLR 905.
[22] Dacosta & Ors. v. Ofori Transport Ltd. [2007-2008] SCGLR 602.
[23] See Asher v. Whitlock [1865] LR 1 QB 1; Parry v. Clissold (1907) AC 73 and Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165.
[24] See Osei (Substituted by Gilard) v. Korang [2013-2014] 1 SCGLR 221 at p. 234; Richard Ofosu-Darko v. Stella Dede Mensah, Civil App. No. 24/2002, dated 16th May, 2003, CA (Unreported); Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer [2017] 113 GMJ 46 at p. 116.
[25] See Mark A. Broughton, “What Does Possession is 9/10 of the Law Mean?”.
[26] See Wuta-Ofei v. Danquah [1961] GLR 487.
[27] See Mireku v. Yeboah [1992] 1 GLR 242 & Nana Otuo Antwi Boasiako v. Nana Adjei Panin, No. J4/41/2021, 18th January, 2023, SC (Unreported).
[28] Dennis Dominic Adjei, “Land Law, Practice and Conveyancing” in Ghana, 3rd Edition at page 305.
[29] See Boateng v. Dwinfour [1979] GLR 360.
[30] See Section 119 of Act 1036.
[31] See Section 121 (1) (f) of Act 1036.
[32] See Okantey v. Kwaddey [1959] GLR 241, CA; Twifo Oil Plantation Project Limited v. Ayisi & Ors. [1982-83] GLR 881, CA & Summey v. Yohunu [1962] GLR 160, SC.
