“[Adverse possession] strikes at the heart of the concept of property. “Property” means – rights in a thing, that are enforced by the state. We support state enforcement of rights in things for reasons of both justice and efficiency. The fundamental idea of property is that it cannot be taken against the owner’s wishes … Yet that is what adverse possession does. The doctrine effects a transfer of state-sanctioned rights in land from owners to non-owners without the consent of the owner.”[1]
Abstract
Do law and justice always coincide? Is it really the case that equity does not go to the aid of the one whose hands are tainted? How would a lay person understand that the law serves the benefit of society when it operates to dispossess a land owner of his land and vests it in a squatter? This is the workings of an antiquated legal principle which has existed for over 4000 years and despite the harsh criticisms faced, it has stood the test of time. Understandably, the concept has always conjured up deep emotional and philosophical arguments whenever it is mentioned. Little wonder that it raises hackles and gets the adrenaline pumping. According to some commentators, misunderstandings have sometimes arisen from an unwarranted belief that title deeds are sacrosanct documents, whereas the truth is that neither a conveyance nor a land certificate retains its value if the landowner is so lax or so indifferent as to lose physical control of his land.”[2]
In an era characterized by rigorous registration system, it is not the expectation of the public that the principle would thrive, since a registered land is adorned with the plaque of indefeasibility by the law. However, for some inexplicable reasons, the concept of adverse possession has managed to sneak into the law and has established a close affinity with the land registration process, being in bed with the principle of indefeasibility of title, like Delilah and Samson, and stripping it of its enviable strength, but the Constitution of Ghana seems not to approve of this relationship. This paper unravels and exposes the seemingly collaborative roles played by the legislature and the judiciary in recognizing the concept of adverse possession under Ghanaian jurisprudence, when it has been decalred “wanted” by the international community (International Best Practices). A strong argument is made as to its incompatibility with the land registration system. A foundation is laid for the appreciation of the concept’s historical antecedents, before conceptualizing the discussion to the immovable property law of Ghana. The paper concludes with a call on policy makers to holistically take a second look at the concept of adverse possession and its perplexing impact on registered land.
Introduction
This paper provides a veritable window for appreciating the concept of “property right” from the socio-legal perspectives in the contemporary world. As far back as 1897, the Privy Council had decided in Belize Estate and Produce Co. v. Quilter[3] that a squatter could extinguish the title of a registered proprietor even where the statute of land registration provided that the registered proprietor should be entitled, “to the exclusion of all other persons and of all other estates, interests, powers and rights.”[4]
The status of an adverse possessor common to almost all limitation periods is one of inviolability or immunity from attack. When the bar of the limitation statute runs, a grant to the adverse possessor is presumed, and results in extinguishing the title of the true owner as effectively as if there had been a grant. The concept of adverse possession’s launching pad is seen as problematic because of its illegal entry into another’s land.[5] What is so much an issue is the tacit approval and protection offered by the law to the trespasser as against the registered title holder.
Attitudes towards the doctrine range across the entire spectrum, from laissez-faire notions of rewarding initiative and promoting efficient land use to more prevalent feelings of outrage and incredulity that the law is effectively sanctioning land theft[6] being a primitive way of acquiring property without paying for it.” [7] It is as stupefying to the layman as it is to the legal mind, that an activity that started out as an affront to the law, as a threat to the right of a land owner to peaceably enjoy his property, ends up clad in legality, with the full force of law behind it, and only because the illegality persisted long enough.[8] Unsavory labels have been assigned to the concept’s linchpin: possession of wrong,[9] unjust, draconian and illogical,[10] and a sanctioning of theft to land.[11] Trespassers have been viewed as squatters,[12]invaders, itinerants and antithesis of a stable community.[13]
The rumblings of discontent by the torch bearers of the law that the adverse possession doctrine is unfair as it rewards wrong-doers and assigns rights to usurpers have been excessively loud. According to a legal commentator, the doctrine is “an ailing concept.”[14] The decision of the English Court of Appeal in Hayward v. Chaloner,[15] where a landlord’s failure to collect rent resulted in the occupier acquiring the fee simple (freehold interest) sums up their frustrations about the concept. In an emotional outburst, Lord Denning disapprovingly remarked: “All I would say is that, if the law does penalize good nature in this way, the sooner it is changed the better.”
It is often said that “if the frog comes out of water to say that the crocodile is dead, we do not doubt it.” We might have no qualms with the statement if it had come from any ordinary person, but for it to emanate from the seat of Her Majesty’s Court of Appeal and more essentially from the lips of a very seasoned judge who perfectly understands the philosophical underpinnings of the English legal system warrants an immediate introspection.
The pressure mounted on policy makers in various jurisdictions has led to the revision of this prickly concept in contemporary times. Paradoxically, the Ghanaian legislature and the judiciary are unruffled and have responded negatively by rather advancing the cause of the “land-thief” through oblique and circuitous legislative provisions, often times complemented by controversial judicial fiats which have had dramatic adverse effects on our socio-economic development as a nation.
Development of the Concept of Adverse Possession in Ghana
The rule under customary law was that, possession however long does not mature into ownership.[16] Therefore, when the English Limitation Act of 1623 was applied in the Gold Coast as a Statute of General Application, it did not affect customary law transactions.[17] In 1972, the Limitation Act (N.R.C.D. 54) was enacted. Section 10 allowed a person who has been occupying land continuously for 12 years as an adverse possessor to rely on the said provision to resist a claim to the land by the true owner. Customary law transactions were to be affected by the Limitation Act for the first time.[18]
What the Limitation Act did not provide for was the vesting of title in the adverse possessor after the extinguishment of the true owner’s title, as was held by the Supreme Court in Awulae Attibrukusu III v. Oppong Kofi & Ors.[19] The Limitation Act was originally considered as an armour that was useful in the hands of a defendant, to be applied as a shield;[20] but was not designed as a sword to be used to attack. The law maker, in its bid to extend the frontiers of the adverse possessor, conferred additional right on him in affirmative terms in the Land Title Registration Act, 1986 (PNDCL 152), by subjecting registered titles, deemed conclusive evidence, to the guarded interest of the adverse possessor.
Section 18 of Act 152 provided thus:
“18. Conclusiveness of the register
- The land register is conclusive evidence of the title of the proprietor of the land or interest in the land appearing in the register.
- Subsection (1) does not affect a right of an interest in land acquired under the law relating to prescription or the Limitation Act, 1972 (NRCD 54), but where title to registered land has been acquired under the law relating to prescription or the Limitation Act, 1972 (NRCD 54), the registered proprietor shall hold the land in trust for the person who claims to have acquired the title.”
Per the above provisions, while registered title was deemed conclusive evidence of the proprietor’s title in the land, it was however subjected to the interest acquired by an adverse possessor, thereby making adverse possession an overriding interest. This is quite strange in our jurisprudence because under section 24 of the Evidence Act, 1975 (N.R.C.D. 323),where a presumption is described by law to be conclusive, no other facts contrary to it are entertained or considered by the court as decided by the Supreme Court in Windworth Holdings (PTY) Ltd. v. Dupaul Wood Treatment (Gh.) Ltd.[21]
While the legislature was eagerly rooting for the adverse possessor, the courts were revving up to give him the requisite seal of approval. Therefore, in 2005, when the opportunity knocked on the door of the Apex Court in GIHOC Refrigeration & Household Products Ltd. v. Hanna Assi,[22] their Lordships remolded the adverse possessor’s shield granted him under section 10 of the Limitation Act into a double-edged bladed weapon that could serve not only as a shield but also as a sword. The decision paved way for adverse possessors to rely on the section to maintain an action for possessory title.
As if the courtesy extended to the adverse possessor by the Supreme Court to mount an action for possessory title was not enough, the Court in Klu v. Konadu Apraku,[23] took the rights of an adverse possessor to another level. Relying on the combined effect of the Limitation Act and the Land Title Registration Act, their Lordships decided: “The adverse possession of the said land by the plaintiff for up to and even over twelve years conferred on him possessory title by reason of the provisions in section 10 of the Limitation Act, 1972 (NRCD 54). Such acquisition of title would prevail even against a registered proprietor of land under section 18 (1) and (2) of the Land Title Registration Act, 1986 (PNDCL 152).” (emphasis supplied).
Enactment of the Land Act, 2020 (Act 1036)
Since the land administration system was choked with the influx of the land guard menace across the country, many Ghanaians were worried about the development and expected the new Land Act to clamp down on illegal land occupiers and possessors. It was therefore gratifying to observe that activities of persons who have no interest in land they interfere with have been criminalized by the statute.[24]
The fear that adverse possession having earlier been recognized by the courts would be elevated to the status of “a good title” was allayed when the Act excluded it from the list of good root of title.
Section 64 (1) of the Act provides:
“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 assignment or mortgage 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.”
Upon a cursory look, since adverse possession is not included in the list, it could not be said to be a good title. However, the courts by allowing adverse possessors to rely on section 10 of the Limitation Act, 1972 (N.R.C.D. 54) to maintain an action for possessory title meant that their final judgments/orders in favour of the adverse possessor could be “harvested’ as “good title” under subsection (1) (c) of section 64 of the Act. The law maker, while not expressly recognizing adverse possession as a form of good title had used the “back door” to achieve that objective, where the person goes to court for a decree of title in respect of the land[25] as was recently done in the case of Emmanuella Naa Tsotso Tetteh v. Abdul Lamin a.k.a. Ataa Boye.[26]
Section 236 of the Land Act also criminalizes illegal occupation of land and for the first time, it was made impossible for an adverse possessor to acquire public lands through limitation. The said section provides as follows:
“Unlawful occupation or sale of public land
236. (1) Despite the provisions of the Limitation Act, 1972 (NRCD 54) and any other law, a person who unlawfully occupies public land does not acquire an interest in or right over the land by reason of the occupation.
(2) A person shall not acquire by prescription or adverse possession an estate or interest in public land.”
It may be recalled that prior to the enactment of the Land Act, the applicable statute which regulated public lands (the Public Lands (Protection) Act, 1974 (N.R.C.D. 240) made it an offence for anybody to trespass or encroach on public lands, but it did not prohibit the squatter from laying claim to the land by way of adverse possession. Therefore, when Act 1036 made it an offence for a trespasser or squatter to lay claim to public lands, it was thought that since the Constitution guarantees the right of every one to own property and also frowns on discrimination,[27] the same benevolence would have been extended to the members of the general public, but it turned out not to be the case.
It was further noted that the indefeasibility of registration of title, which was trumped by adverse possession under the old law (section 18 of the Land Title Registration Law) was reintroduced by the law maker.
Section 111 of Act 1036 provides thus:
“Conclusiveness of register
111. (1) Any entry in the land register shall be conclusive evidence of title of the holder of the interest specified in the land register.
(2) Subsection (1) does not affect any right or interest in land acquired under the law relating to prescription or the Limitation Act, 1972 (NRCD 54) except that where title to registered land has been acquired under the law relating to prescription or the Limitation Act, 1972 (NRCD 54), the registered holder of the right or interest shall hold the land in trust for the person entitled.
(3) A person who claims to have acquired land or interest in land under subsection (2) shall apply to the Regional Lands Commission through the Regional Lands Officer for an appropriate amendment to be made to the land register upon the payment of a prescribed fee…”
While section 119 reaffirms the principle of indefeasibility of registration of title, under section 121 a land or interest in land registered under the Act may be overridden by a right acquired under the Limitation Act among other interests thus:
“121. (1) Unless the contrary is recorded in the land register, a land or interest in land registered under this Act is subject to …(g) a right acquired or in the course of acquisition by prescription or under the Limitation Act, 1972 (N.R.C.D. 54).”
It may be seen from the above provisions that the practice of subjecting registered titles to the overriding interest by an adverse possessor has been given a fresh impetus by the new Land Act, thereby defeating the whole concept of indefeasibility of land title registration. The bizarre part is that, it does appear that a right that has not yet accrued, but is in the process of acquisition by an adverse possessor is even made to override a registered interest.
Understanding the Concept of Indefeasibility of Title
Indefeasibility, literally means a title which is impregnable, invincible, unassailable and not vulnerable. “Indefeasible” as defined by the Concise Oxford English Dictionary Tenth Edition at page 719 is: “not able to be lost, annulled or overturned.” According to the Memorandum of P.N.D.C.L. 152, Section 43 (now reproduced in section 119 of Act 1036), “indefeasibility of title” is defined as: “A complete answer to all adverse claims on production of the lands register, and a person acquiring title from a registered proprietor has, on being himself registered, a conclusive title against the whole world.”
As an excursus into the historical antecedents, the concept of indefeasibility of title traces its roots to Sir Robert Torrens, the Premier of South Australia in 1858, who conceptualized a new system whereby a centralized registry would record all land transfers or interests in property and the names of the said owners in order to address the defectiveness of deed registration. He envisaged that registration of title in land would render the title indefeasible. When he succeeded, Europe, Canada and other parts of the world adopted it.
In Ghana, the system was first adopted by the Land Title Registry Act, 1962 (Act 122), but it proved unsuccessful, necessitating the need for the enactment of the Land Title Registration Act, 1986 (PNDCL 152), to provide a machinery for the registration of land and interest in land.[28] It was anticipated that certainty would be given to title in land to facilitate economic land transactions.
Justice Nene Amegatcher[29] in shedding light on the subject said: “An important feature in the system of land title registration is the “conclusiveness of the register” and “indefeasibility of title … The law makes it clear that the conclusiveness of the land register is a key feature of the indefeasibility of title.” According to the learned judge, the concept of indefeasibility allows for full reliance to be placed on the certainty of title registration. The Supreme Court in Brown v. Quarshigah[30] through Kludze JSC accentuated thus: “An indefeasible title meant a complete answer on mere production of the certificate.”
The Case for the Incompatibility of Adverse Possession and Indefeasibility of Title to Land in Ghana
- The doctrine of adverse possession thrives in a system where title is unregistered.
The doctrine of adverse possession was birthed in an era of possession-evidence ownership of land and the arguments usually led to justify adverse possession are coloured to suit an unregistered system of land, with the main mischief to be addressed being the uncertainty of land ownership. Prior to the adoption of the registration of title regime, an extensive tracing system of the history of title was demanded, sometimes as far back as the Crown granted it.[31] Therefore, the move by many jurisdictions in recent times towards registration of title is intended to ensure certainty and transparency in land ownership, both for the land owner and the society.[32]
- Indefeasibility inconsistent with overriding interest
The indefeasibility of title principle and the overriding interest of an adverse possessor are irreconcilable, as the latter defeats the very essence of registration of a proprietor’s title.[33]
- Overriding Interest of Adverse Possession Inconsistent with International Best Practices
The concept of overriding interest by the adverse possessor under Ghanaian law is inconsistent with International Best Practices guaranteeing indefeasibility of title. After the registration of the title, thereby becoming indefeasible, it was not expected that another interest would spring up to supplant it. The term “indefeasible” has also been defined by the Black’s Law Dictionary (Ninth edition) as: “a claim or a right not vulnerable to being defeated, revoked or lost.”
Lord Bingham in the European Court of Justice in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. The United Kingdom[34] ruled that the concept of adverse possession could apply only to unregistered titles, but has no place in a system where land titles are registered.
Similarly, in the Kenyan case of Gabriel Mbui v. Mukindia Maranya,[35] His Lordship Kuloba described the doctrine of adverse possession as an affront to the indefeasibility of title to land principle.
Article 1 of Protocol 1 of the Convention for the Protection of the European Commission of Human Rights provides that: “Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in public interest and subject to the conditions provided for by law and by the general principles of international law.”
Article 14 of the African Charter on Human and People’s Rights also states: “The right to property shall be guaranteed. It may only be encroached upon in the interest of the public need or in the general interest of the community and in accordance with the provision of appropriate laws.”
In Kazeem Aminus v. Nigeria,[36] the African Commission ruled that the right: “]n]ecessarily include a right to have access to one’s own property and the right not to have one’s own property invaded or encroached upon.”
In a report by the British Institute of International and Comparative Law 2006 commissioned by the Queen to conduct comparative research on adverse possession across 11 countries spanning 3 continents, the Institute concluded that the rationale for the retention of adverse possession loses its vitality and relevance, where a system of land registration is in place.[37]
It was no wonder that the British, originators of the doctrine in the common law world who passed it on to us, though innately conservatives, have since 2002 reformed their laws on adverse possession. By the new legislation,[38] a trespasser who has been in adverse possession of land for 10 years may apply to be registered as the proprietor of the land. Upon receipt of the application, the Land Registrar will write to the proprietor of the land and other persons such as mortgagees who are having an interest in the land, to inform them of the application by the squatter to register his title to the land. The law gives those notified by the Land Registrar sixty-five (65) working days to object to the application. If an objection is received by the Registrar, the proprietor of the land has two years to eject the squatter; otherwise, he can make a further application to be registered as the owner.
The reforms in England have made acquisition of title by an adverse possessor difficult in respect of registered lands,[39]because the registrar’s notification to the land owner and interested persons has often awoken sleeping owners from their long slumber to object to the registration.
Unresolved Issues
It may seem that the overriding interest of limitation undermining the principle of indefeasibility of title and its allied concept of adverse possession are fraught with myriads of issues that have not been addressed.
- The Interest or title an adverse possessor can register under section 111 (3) of the Land Act
Under section 111 of the Land Act, after land has been registered, a person who claims to have acquired it or has an interest in the land acquired under the Limitation Act shall apply to be the Land Registrar for the land register to be amended accordingly. The provision of section 111 (3) seems vague. It does not indicate the procedure the land registrar should adopt to satisfy himself that the person applying for the registration has actually acquired rights under the limitation statute. The provision does not state that the adverse possessor can apply for registration of a land he acquired through limitation after obtaining a court order. It simply allows the adverse possessor to apply for registration. This could result in the registrar proceeding to amend the register on frivolous applications that could occasion injustice to the title owner. Since limitation is a matter of law, it would have been appropriate, if the law had allowed the courts to determine the issue of whether the person meets the legal criterion first before the adverse possessor could apply to the registrar.
- The title or interest an adverse possessor is entitled to.
When the Supreme Court in Ghana first equipped the adverse possessor with a sword to maintain an action in court under the Limitation Act in GIHOC Refrigeration & Household Products Ltd. v. Hanna Assi,[40] they confined the relief that could be granted by the court to “possessory title”. While the courts continue to espouse the law on the adverse possessor’s right to maintain an action in court for possessory title,[41] they seemed to have contradicted themselves in the process.
In the case of Togbe Lugu Awadali IV v. Togbe Gbadawu IV,[42] Appau JSC held that the possessory rights of the stranger (adverse possessor) in the land could not mature into a full title. However, in Binga Dugbartey Sarpor v. Ekow Bosomprah,[43] the Supreme Court held that if land is lost through adverse possession, the adverse possessor acquires an interest or title equivalent to the title previously held by the ousted owner.[44] This means that if the extinguished title was leasehold, the adverse possessor does not only get possessory title, but a right more than that. If the previous owner held a leasehold interest, the adverse possessor would enjoy the land for the entire duration of the lease, by the operation of law. If the previous owner was a freeholder, the adverse possessor would acquire the freehold interest, which may technically be higher or superior to the mere possessory title the courts confer on the adverse possessor upon the ratio in GIHOC Refrigeration & Household Products Ltd. v. Hanna Assi.[45]
The contradiction in the “possessory title” principle and the “equivalent title” rule is appreciated in the context of their legal effects. It is trite that a person granted possession has the backing of the law against the whole world, except the true or legal owner.[46] This therefore presupposes that the possessory interest may be good in appropriate cases, but is limited as pointed out by Appau JSC in the Togbe Lugu Awadali case supra. However, with the “equivalent title” rule, the interest the adverse possessor acquires could be equated to a lease, freehold or any other interest, which by itself is a legal title, and by implication, the status of the adverse possessor’s title would have been “elevated” to that of the legal owner (save the reversionary where necessary).
The equivalent title rule connotes that nobody with a legal interest can emerge to challenge the adverse possessor’s occupation on the land during the subsistence of the title or interest since that would be the equivalent title the adverse possessor would be enjoying after the extinguishment of the previous owner’s title. On the other hand, a person with a possessory interest or title lives at the vagaries of luck hoping that nobody with a legal title would appear to interfere with his possessory title or interest.
I venture to say, with diffidence, that the “possessory title” principle formulated by the Supreme Court has outlived its relevance under Ghanaian land law jurisprudence. It may seem that the Land Act has implicitly adopted the “equivalent title” rule as against the “possessory title” rule. The reason being that, if a person who has registered his right or interest in land loses the land through adverse possession, the law provides under section 111 (2) of the Land Act that the registered holder of the right or interest shall hold the land in trust for the adverse possessor. What interest then would the registered holder hold in trust for the adverse possessor? Obviously, it is the very interest he held prior to the extinguishment of his title which he lost to the adverse possessor, the new beneficiary. This is absurd!
If that is not convincing enough, subsection (3) of the Section (111) of Act 1036 expounds the point. The provision gives the adverse possessor the right to apply to the Regional Lands Commission for the appropriate amendment to be effected in the land register upon the payment of a prescribed fee. Where the register is being altered to reflect the new circumstances of the land, by implication, the adverse possessor would be stepping into the shoes of the registered owner to enjoy all the rights and benefits he would otherwise have enjoyed on the land.
It is thus submitted that the statutory arrangement under section 111 (2) and (3) of the Land Act reasonably accords with the “equivalent title” rule more than the “possessory title” principle, which tends to suggest that the adverse possessor’s title is good against the whole world, except the true owner who could emerge to dispossess him when in actual fact the true owner’s title had extinguished by limitation.
- Extinguishment of Allodial Title
The law on whether adverse possession can oust the title of an allodial owner is yet to be stated with certainty. It was originally considered doubtful by some land law authorities in the country that adverse possession could be maintained against an allodial land owner.[47] However, if the “equivalent title” rule is applied, it would seem that the adverse possessor can acquire the allodial title, if it was the allodial holder who was “kicked out” by the Limitation Act.
Atuguba JSC in Ago Sai and Ors. v. Kpobi Tettey Tsuru III,[48] poignantly held thus: “Even if Ogbojo land were La Stool land and La Stool having acquiesced in the acts of ownership by the appellant and his predecessors would not only be estopped at common law by the facts of this case from claiming allodial title to the land but would, as pleaded by the co-defendants-respondents-appellants lose that title to the appellant by reason of section 10 (1) and the incidental 10 (6) of the Limitation Act 1972 (N.R.C.D. 54) … It must be stressed here that it is the allodial title that is in issue and therefore on the facts of this case, clearly the position is either the appellant or the respondent has that title.”
Earlier in GIHOC Refrigeration & Household Products Ltd v. Hanna Assi[49] and Klu v. Konadu Apraku,[50] the Apex Court had espoused the law on the possibility of the allodial title becoming extinguished through adverse possession. While their Lordships in the Apex Court seemed to have put the issue to rest by their decisions enabling an adverse possessor to acquire an allodial title, it is respectfully submitted that their Lordships take a second look at their position. It was evident that their Lordships were persuaded by English authorities and the provisions of the Limitation Act (section 10) to arrive at their conclusion, but a careful consideration of the two, in all humility, does not support their Lordships’ position.
A reminder of the differences in the land tenure system in Ghana and England would make an appreciation of the issue easier. We know that in England, the allodial title is vested in the Crown who holds the land in trust for the people[51] and the highest interest an individual may acquire in land is the fee simple which is equivalent to freehold.[52] Therefore, if an adverse possessor dispossesses the “owner” from his land, he would have ousted the title held by that person only, as the allodial would continue to be in the Crown. We realized that in the English cases the Apex Court relied upon to come to the conclusion that the allodial title can be lost, the “owners” of the land, were in stricto sensu holding a lesser interest and not the allodial title itself which is vested in the Crown.
In Ghana, the allodial title is held mainly by the communities – the stool, skin, family and clan. If the Crown cannot lose the allodial title, what is the justification for the proposition that the allodial title can be lost in Ghana to the adverse possessor? According to BJ Da Rocha and CHK Lodoh,[53] the allodial title being the highest title in land cannot be extinguished or terminated, because extinguishment or termination implies a superior title or interest into which the title or interest extinguished shall merge. “There is no title or interest beyond the allodial title into which the allodial title could merge when it is extinguished or terminated”, they emphasized.
Apart from the English law not supporting the view that the allodial title can be lost, the Limitation Act, on which their Lordships anchored their decision in the case under consideration, does not equally support the proposition. There is no provision in the law which confers title on an adverse possessor. The applicable provision, section 10, does nothing more than extinguishing the title of the previous owner, but does not affirmatively confer a title on the adverse possessor. The combined effect of the English law and section 10 of the Limitation Act would be that, if the previous owner on the land loses his interests or title in the land, which could be a freehold or leasehold or any other title or interest, it is only that title or interest which is lost; it does not affect the allodial title largely held by the stool, skin, clan or family in Ghana or the Crown as pertains in England.
- The Constitutionality or otherwise of the Extinguishment of the Allodial Title through Adverse Possession
It appears to be an unconstitutional act to put on the Constitution an interpretation which allows an adverse possessor to acquire allodial title of a stool through limitation. The drafters of the Constitution, being mindful of the need to keep the sanctity of the character of stool lands and its subjects as beneficiaries at all times, clearly and unambiguously expressed their intentions in Article 267 (1) of the 1992 Constitution (the Constitution) thus: “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.”
Stool land has been defined under Article 295 (1) of the Constitution to include: “[a]ny land or interest in, or right over, any land controlled by a stool or skin, the head of a particular community or the captain of a company, for the benefit of the subjects of that Stool or the members of that community or company.” In my estimation, the definition has some space to take on board other customary entities such as families and clans. Further, it could be seen that Article 267 (1) of the Constitution applies to “all stool lands” with no exception, and there is also no qualification in the provision for stool lands to cease to belong to the stool or for the benefit of the subjects of the stool collectively.
In Republic v. Regional Lands Officer, Ho[54] an attempt to interpret the constitution to diminish the right of the members of the family to enjoy their family land was fiercely resisted. His Lordship Acquah J.A. (as he then was) emphasized that such an exercise is “[n]ot only palpably misconceived … but subversive of the constitutional right of the individual to his family lands.”
It needs stressing the point that both the common law and the Limitation Act relied upon by the Supreme Court to hold that the allodial stool or skin, family or clan can lose its land to the adverse possessor are in the hierarchy of laws, subordinate to the Constitution[55] and cannot undermine it.[56] In His Lordship Acquah’s view, such an unconstitutional action is void and unlawful.
Adherents of the adverse possession doctrine cannot also seek refuge under the Land Act to validate the acquisition of the stool, skin, family or clan land by limitation. Section 2 of the Land Act stipulates clearly the various methods of acquiring the allodial title thus: “compulsory acquisition, conquest, pioneer discovery and settlement, gift, purchase or agreement.”
Adverse possession was not included, so it may be argued that if the law maker intended an adverse possession to be a mode of acquiring allodial title, it would have said so expressly.
- Adverse Possession and Human Rights
It may also appear that the concept of adverse possession is an affront to human rights. In the 2011 case of the State ofHaryana v. Mukesh Kumar & Ors.,[57] the Indian Supreme Court decided: “The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi-faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim for adverse possession has to be read in that context.”
The Fifth Amendment of the U.S. Constitution denounces the loss of individual’s private property without compensation. It states: “[n]or shall private property be taken without just compensation.”
Alston Mueller[58] gives the various facets of property rights thus:
“[A] full set of private rights in property consists of the following:
- The right to use the asset in any manner that the user wishes, generally with the caveat that such use does not interfere with someone else’s property rights;
- The right to exclude others from the use of the same asset;
- The right to derive income from the asset;
- The right to sell the asset; and
- The right to bequeath to someone of your choice.”
In Ghana, the right to own property is guaranteed by the Constitution under Articles 18, 36 (7) and 13 (2) (a).
Article 18 of the Constitution provides:
“18. (1) Every person has the right to own property either alone or in association with others.”
Clause 2 of the Article reaffirms the individual’s general right to enjoy his property without any interference.
Article 36 (7) of the Constitution also reads:
“The State shall guarantee the ownership of property and the right of inheritance.”
As a right under the Constitution, Article 13 (2) (a) encourages everyone to use reasonable force in the defence of his property, to the extent of killing. This is how far the Constitution goes to guarantee the property rights of citizens.
It is possible however that proponent of the concept of adverse possession may argue on the basis of Article 20 (4) (d) of the Constitution that limitation of actions is constitutional.
The said Article states: “Nothing in this article shall be construed as affecting the operation of any general law so far as it provides for the taking of possession or acquisition of property…. (d) in consequence of any law with respect to the limitation of actions …”
If we examine the provision carefully, the argument crumbles ab initio, because the limitation exception stated in the provision is situated only in the context of Article (20) of the Constitution which deals with compulsory acquisition by the state.
If the provision which appears to allow individuals to exercise adverse possession over state lands has been “annulled” by Parliament upon the enactment of the Land Act to make it unlawful for a claim of adverse possession through the Limitation Act to be made over state lands, what prevents the law maker from doing same for communal lands which the Constitution jealously upholds for the people of that community? It is often said that ‘what is sauce for the goose is sauce for the gander’ and since the Constitution frowns on discrimination, there seems to be no justification for the prohibition of the concept of adverse possession in respect of one category of land and the promotion of the same concept the law seeks to discourage in another category of land.
We may recall that the concept of adverse possession came to Ghanaian soil through the vehicle of the common law which comprises both the common law itself and the rules of equity. Because equity does not aid claimants whose hands are tainted, if we examine the equitable maxim “he who comes to equity must come with clean hands’ in the light of Article 41 (d) of the Constitution, not many people supporting the concept of adverse possession would continue to pledge their loyalty to it.
The said provision is one of the Directive Principles of State Policy and it provides as follows:
“41. The exercise and enjoyment of the rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen … (d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of others:’
From the above article, a citizen who desires the protection of the law to be able to exercise his rights and freedoms has a duty to respect the rights and legitimate interest of others and to refrain from doing anything that affects those legitimate interests. Clearly, trespassing or squatting on another person’s land without his consent amounts to the trespasser or squatter acting to the detriment of the land owner’s legitimate interest, and equity would rarely aid such a wrongdoer.
In 2009, the Indian Supreme Court in Hemaji Waghaji v. Bhikabhai[59] held that the concept of adverse possession was awfully tough on the actual owner and offered a windfall for dishonest persons. Their Lordships ruled that a “rank-trespasser” must not be supported by the law and it is inexplicable that the law safeguards persons who obtained property in violation of the law.[60]
Therefore, if adverse possession is primarily an offshoot of the common law which includes equity that does not approve of the conduct of an adverse possessor, it is most unlikely that the Constitution that seeks to protect the rights and legitimate interest of lawful citizens of the state would lend its blessings to the concept.
It is mind-blowing that the adverse possessor receives the sympathy of judges whenever he sets his foot in court, even when they realize that his hands are soiled. In Adjetey Adjei & Ors. v. Nmai Boi & Ors.[61] the adverse possessors had failed to obtain a building permit before putting up his building contrary to law.[62] Our elders say, stealing a drum is easy but finding a place to beat it is the real difficult, yet on this occasion, the adverse possessors were allowed to “beat their stolen drums” openly without any difficult. When the Supreme Court’s attention was drawn to the defendants’ non-compliance with the law, Her Ladyship Sophia Adinyira JSC who delivered the judgment of the Court at holding (3) stressed that the failure of the defendants to obtain a building permit before putting up their building did not prevent them from benefitting under the Limitation Act.
Conclusion
The concept of adverse possession is extremely harsh to the rightful owner of land and a windfall for a dishonest person who had illegally taken possession of the true owner’s property. It is really confounding that even when the true owner had gone the full extent to register his land, it is subjected to the overriding interest of the adverse possessor.
I am delighted to conclude this paper with the enlightening remarks by the Indian Supreme Court in State of Haryana v. Mukesh Kumar & Ors.,[63] where His Lordship Justice Dalveer Bhandari said: “Law and Justice, more often than not, happily coincide, only rarely do we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. Adverse possession allows a trespasser – a person guilty of tort, or even a crime, in the eyes of the law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outdated law essentially asks the judiciary to place its stamp of approval upon a conduct that the ordinary Indian citizen would find reprehensible.” I am not sure the ordinary Ghanaian finds it otherwise.
His Lordship further observed thus: “The doctrine of adverse possession has troubled many legal minds. Time has come for change. If the protectors of law becomes the grabbers (I would add, the abettors) of the property (land and building), then people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous trend. It (the concept) must be arrested without further loss of time in the public interest.”
We live in a revisionist society, so the law must be progressive and forward looking. If the Indian Supreme Court and other great minds including Lord Denning have at various times called for the concept to be exterminated, then we have no alternative. Obviously, the marriage between the principle of indefeasibility of title and adverse possession is not a genuine one. It is just a marriage of convenience and must be put asunder. It is hoped that the scrapping of the concept of adverse possession will effective help to curb land-grabbing and land guard issues in the country, thereby reducing the overload of land litigations in the courts.
If, in the wisdom of both Parliament and the Courts, the concept should be retained, it is submitted that some reforms are required to ensure either that the adverse possessor compensates the ousted owner or the limitation period extended to about 30 to 50 years or more, rather than a mere 12. Such an extension would help to ensure that successful claimants would have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forbears might). A longer statutory period would not only be in tune with legislative intent gleaned from section 5 of the Land Act, but ensure that only claimants genuinely and intimately connected to the land can acquire it, while the most passive owners lose their title. This, I believe would serve some justice. [64]
Why do we have to maintain a law which the British who brought it to us have deeply regretted and reformed? We live in a democratic state and it is expected that the government, while protecting its citizens will protect their properties as well. It should not provide the environment or aid “criminals” to steal the properties of its law abiding citizens and investors who acquired their properties bona fide through their sweat and hardwork. Urgent reforms in the law are imperative!
[1] J E Stake, “Property Rules, Liability Rules, and Adverse Possession” (1984) 79 Northwestern University L. Rev 1122, at 1128.
[2] Curtis and Ruoff, “Registered Conveyancing” (2nd ed., 1965), p. 121.
[3] [1897] A.C. 367.
[4] See Goodman J.M., “Adverse Possession of Land – Morality and Motive”. Modern Law Review Vol. 33, p. 281.
[5] Conway H and Stannard J, “The Emotional Paradoxes of Adverse Possession” 64 (1), Northern Ireland Law Quarterly, 2013, 75-89.
[6] Supra.
[7] H.W. Ballantine, “Title by Adverse Possession” (1918-19) 32 Harv. L. Rev. 135, and see also S.L. Martin, “Adverse Possession: Practical Realities and an Unjust Enrichment Standard’ (2008) 37 Real Estate Law Journal 133.
[8] Conway H and Stannard J, “The Emotional Paradoxes of Adverse Possession” 64 (1), Northern Ireland Law Quarterly, 2013, 75-89.
[9] Buckinghamshire County Council v. Moran (1990), England and Wales Court of Appeal.
[10] J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. United Kingdom [2005] ECHR 921 Judgment of 15 November 2005.
[11] Land Commission, Land Registration for the Twenty First Century: A Consultative Document, 1998, 202-236.
[12] McPhail v. Persons Unknown (1975), England and Wales Court of Appeal.
[13] Lamb v. Camden Borough Council (1981) England and Wales Court of Appeal.
[14] J.C.W. Wylie, “Adverse Possession: An Ailing Concept?” (1965) 16 N.I.L.Q. 467.
[15] [1968] 1 Q.B. 107. See (1968) 31 M.L.R. 82.
[16] See Sagoe v. SSNT (2011) 30 GMJ 13; Brown v. Quarshigah (2003-2004) SCGLR 92; Lartey v. Hausa (1961) GLR 773; Davies v. Randall & Anor. (1964) GLR 281; Ehuran v. Atta (1960) GLR 224; Nkyi XI v. Kumah (Bedu substituted) (1959) G.L.R. 281; Panyi II v. Anquandaoh (1947) 12 WACA 284 at p. 286 and Kuma v. Kuma (1936) 5 WACA. 4 at p. 8.
[17] See Manu v. Kuma {1963) GLR 464 and Ennin v. Pra (1959) GLR 44.
[18] See Section 30 (3) of NRCD.54.
[19] [2011] 34 GMJ 126, SC.
[20] See Ebenezer Kwaku & 2 Ors. v. Mankralo Tetteh Otibu IV [2021] 173 GMJ 55, S.C., unreported, per Appau JSC; Nana Kow Kyeredeh v. Ebusuapanin Kobina Tawiah, Civil App. No. H1/50/2016, dated 24th January 2018, C.A., unreported and Jean Hanna Assi v. Attorney General, Civil App. No. J4/17/2016, dated 9th November 2016, S.C., unreported.
[21] [2017-2018] SCGLR 809. See also Bennard Mensah Dzadey & Ors. v. Jones William Kwaku Gbevoadi, Civil App. No. H1/23/2014, dated 27 April 2016, C.A., unreported and Opanyin Kwabena Agyei & Ors. v. Opanin Kwadwo Wiredu & Anor., Chieftaincy App. No. J2/2/2005, dated 15th February 2006, S.C., unreported.
[22] (2005-2006) SCGLR 458.
[23] [2009] SCGLR 741.
[24] See section 12 (1) and (2) of the Land Act, 2020 (Act 1036).
[25] See cases such as Klu v. Konadu (2009) SCGLR 741, Binga Dugbartey Sarpor v. Ekow Bosomprah (2020) 170 GMJ 644, GIHOC v. Hannah Assi (2005-2006) SCGLR 458 and Leach v. Jay (1878) 9 Ch. D 42.
[26] Civil App. No. J4/57/2023, dated 20th March 2024, S.C., unreported.
[27] See Article 17.
[28] See Nene Amegatcher JSC infra.
[29] See Suleman Suberu v. Mrs. Esi Davidson & 13 Ors., Civil App. No. J4/28/2021, dated 10th May 2023, S.C., unreported.
[30] (2003-2004) SCGLR 930.
[31] Butt P, “Land Law” 5 Ed. Pyrmont, Thompson Reuters, 2006.
[32] Sussie Mutahi, “Indefeasibility of Title and Adverse Possession in Kenya: An Uneasy Relationship”, Strathmore Law Journal, Vol 7, Issue 1, 2023, pp. 73-88.
[33] Sussie Mutahi, “Indefeasibility of Title and Adverse Possession in Kenya: An Uneasy Relationship”, Strathmore Law Journal, Vol 7, Issue 1, 2023, pp. 73-88.
[34] [2005] ECHR 921, Judgment of 15th November 2005.
[35] (1993) Eklr.
[36] Cited in “The Law of the African Charter on Human and People’s Rights” 2007 by Hassan B. Jallow at page 297.
[37] British Institute of International and Comparative Law, Adverse Possession, 2006, 27.
[38] The Land Registration Act, 2002.
[39] It must however be noted that, while the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 144 has made it an offence to squat in a residential building, it does not preclude the squatter from claiming adverse possession. See Best v. Chief Land Registrar [2015] EWCA Civ. 17, [2016] QB 23.
[40] (2005-2006) SCGLR 458.
[41] See Klu v. Konadu supra; Djin v. Musa Baako (2007-2008) S.C.G.L.R. 686; Jean Hanna Assi v. A.G. Civil App. No. J4/17/2016, dated 9th November 2016, S.C., unreported; Binga Dugbartey Sarpor v. Ekow Bosomprah (2020) 170 G.M.J. 644, S.C. & Adjetey Adjei v. Nmai Boi & Ors. (2013-2014) 2 S.C.G.L.R. 1473.
[42] Civil App. No. J4/50/2016, dated 24th January 2018, S.C., unreported.
[43] (2020) 170 G.M.J. 644, S.C.
[44] See GIHOC v. Hanna Assi, infra.
[45] (2005-2006) SCGLR 458.
[46] Seraphim v. Amua-Sekyi (1962) G.L.R. 328 at holding 1; Bucknor v. Essien (1963) 1 G.L.R. 426 per Crabbe JSC & Mensah v. Ahodjo (1961) G.L.R. 296.
[47] Ohimen v. Agyei (1957) 2 WALR 275 & Awulae Attibrukusu III v. Oppong Kofi & Ors. [2011] 34 GMJ 126, SC..
[48] [2010] SCGLR 762; (2010-2012) 1 GLR 231.
[49] (2005-2006) SCGLR 458.
[50] (2009) SCGLR 741.
[51] See BJ da Rocha and CHK Lodoh, “Ghana Land Law and Conveyancing”, Second Edition at p.3. & Agbosu L.K., “Land Law in Ghana: Contradiction between Anglo American and Customary Conceptions of Tenure and Practices. Land Tenure Centre” – University of Wisconsin-Madison (March 2000).
[52] See Dennis Adjei, “Land Law Practice & Conveyancing in Ghana”, Third Edition at p. 11.
[53] See Da Rocha and Lodoh, “Ghana Land Law and Conveyancing, Second Edition at p. 11.
[54] (1997-98) 1 GLR 1028.
[55] See Article 11 (1).
[56] See Article 1 (2).
[57] 2011 INSC 721.
[58] L.J. Alston and B. Mueller, “Property Rights and the State”, in Handbook of New Institutional Economics. C. Shorley (eds), 2005 Springer Boston MA.
[59] (2009) 16 SCC 517.
[60] Aaysha Khatri, “Adverse Possession: a Boon or a Curse?”
[61] (2013-2014) 2 SCGLR 1473.
[62] Regulation 1 of the National Building Regulations, 1995 (L.I. 1630).
[63] [2011] INSC 721.
[64] Pradeep Kumar Mani, “Adverse Possession: A Critique”.