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Opinions Mon, 20 Jan 2020

The silent troubles of land transfers in Ghana: When honest purchasers get ‘punched’

Introduction

It is without doubt that one of the most cherished properties a person can own in this modern-day Ghana is land. Land has for years been one of the most valuable assets that ordinarily neither depreciate nor decline in value and size. For this reason, people will invest in land without question when the opportunity presents itself. From newly wedded couples to business executives, parents to children as well as employers to employees, being an owner of land sometimes with a beautiful structure on it comes with joy, respect and peace.

Land ownership in cities and prime areas is the ultimate goal for many. In some places, if not all, buying land carries the message that one has begun life with a desired determination.

However, things may go sour irrespective of the good intentions with which a person buys land. Such situations have, on several occasions, ended in tears and short-lived happiness for individuals, families and even companies.

These issues as to land transfers are normally centered on:

1. Who owns the land?

2. From whom did the buyer buy the land?

3. To whom did the seller sell the land?

4. Whose consent was, and ought to have been, sought?

5. Has the land been registered?

6. What due diligence was exercised before the transaction took place?

7. Was a search conducted before the purchase and if so, how?

8. Was there a transfer of title?

The list may be endless.

This article takes a look at the core issues at the heart of land transfer and ownership in Ghana and the law surrounding these issues. It will delve further into how a purchaser of land may secure his interest and part with avoidable issues. The article will also make suggestions to the reader on how to handle land purchases and ownerships such that in situations where things do not go as wished, the court of law can easily come to their aid.

The Laws, the Dos and the Don’ts

It is a constitutional right for a person to own property, including land, in Ghana. This right has been enshrined in the 1992 Constitution of Ghana under chapter 5 which provides maximum protection in favour of such rights. Article 18(1) puts the law in crystal terms. The article states;

"18 (1) Every person has the right to own property either alone or in association with others."

As a fundamental right, every person has the right, heavily guided by law, to own property. So long as the property is legitimately acquired, a person cannot be denied his rights over the property and the law will at all times be to the defence of the true owner.

In spite of the protection provided by the law, a person who buys land without any proper care (technically referred to in law as “due diligence”) might end up spilling cash but buying nothing. This has been the position of the law and has been firmly and jealously guarded by all the courts of the land.

In the Ghanaian Supreme Court case of KUSI & KUSI v BONSU [2010] SCGLR 60, the law as clearly summed up in the judgment of the majority, through Her Ladyship the Chief Justice Georgina Wood at page 88 as follows:

“It is trite learning that any person desirous of acquiring property(Land) ought to properly investigate the root of title of his vendor... In our view the steps they took are not the adequate steps of a prudent purchaser of this particular property. Indeed, had they extended their search to the Lands Department, Kumasi, the statutory body that kept official records of lands in Kumasi, they would have known that the land was encumbered”.

This is a clear case of a purchaser expending money on a property only to find out that the said property was not without encumbrance for which reason he lost the proceeds of the expenditure made.

It is also the duty of a person seeking to purchase a piece of land to make reasonable inspections before entering into the transaction. A purchaser of land who fails to do this will be gambling at his own peril. He may intend purchasing a property in good faith but will end up buying trouble. The searches required are not only in respect of the documentary details at the various land registries. It also includes a physical inspection of the site to satisfy oneself that the property he seeks to purchase are not just in the name of his seller/vendor but are also not encumbered by any person who may later lay adverse claim or ownership over the property. If he fails to perform these searches, the purchaser will be deemed to have notice of all information he could have known had he conducted the searches. This is referred to in law as “constructive notice”. The Supreme Court of Ghana has thrown light on this requirement in the often cited case of ARYEE v SHELL GHANA LTD AND ANOTHER with suit number J4/3/2015, a case decided on 22 October 2015. In this case, the Supreme Court, speaking through Justice BENIN, stated that,

“Notice [to a purchaser] does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agent as the case may be. That is why an intending purchaser must make reasonable enquiries in respect of the property he seeks to acquire. This involves legal fees at the land registry, but more critically it involves a physical inspection of the land to ensure it is free from any encumbrances”[emphasis added].

Most often than not, the mistakes made by intending purchasers of land are centered on the fact that they easily get persuaded by the land title documents presented to them by their vendors without asking for more. Whereas land title documents are proper means of proving the title of a person over a land, it is never an end in itself. There have been, and continues to be, instances where purchasers lose their money as well as buildings constructed subsequently on lands because they believed the finality of the land title documents presented to them by the vendors or revealed by searches at the various land registries. The Supreme Court threw more light on the reasons why purchasers must restrain themselves from wholesale trusting of land documents in ARYEE v SHELL GHANA LTD AND ANOTHER[supra]. The Court, in the language of Justice BENIN whilst making reference to the earlier cases of AMUZU v. OKLIKAH [1998-99] SCGLR 141; WESTERN HARDWOOD ENTERPRISE LTD. AND ANOTHER v. WEST AFRICAN ENTERPRISE LTD. [1998-99] SCGLR 105., stated that,

“...registration under the law does not dispense with the requirements of the equitable doctrines of fraud and notice.”

Accordingly, the fact that a land has been registered in the name of a person purporting to sell the land is not, and has never been, conclusive that the said person has ownership or title over the property.

It is instructive to point out at this point that some true owners of land do not have land title documents as much as some land title holders do not have ownership/title over the lands they claim to own. The fact that a land was purchased from a person who held a land title will not confer any title if the person with the land title document has no title or the title he purports to hold is defective. This is evidenced by the fact that there are some customary grants that are not registered. Customary grants, like any other form of grants, are valid irrespective of the fact of its non-registration. As a matter of fact and law, no documents are required to perfect a customary grant of interest in land. This was the clear pronouncement of the Supreme Court in the cases of HAMMOND v. ODOI [1982-83] 2 GLR 1215, UNIVERSITY OF CCAPE COAST v. ANTHONY [1977] 2 GLR 21 and DOVIE & DOVIE v. ADABUNU [2005-2006] SCGLR 905. The effect of the decisions in the above cases is that an oral customary grant of title to land nullifies subsequent grants of the same land even if the subsequent grants are registered. No document is required to perfect or effectuate a customary grant or purchase. Once it is proved, it is superior to and nullifies all subsequent conveyances registered. It is therefore not enough that a vendor has land title documents over a land. As shown, a search at the land registry will not reveal a customary grant even though that grant will stand superior to all subsequent grants.

Again, it is not enough that the vendors are the owners of a large piece of land which includes that which the purchaser intends to buy.

For example, it is not enough for a party to be satisfied that a large tract of land at Prampram (a suburb of Accra in the Greater Accra Region of Ghana) belongs to a family in Prampram for which reason the purchaser should readily enter into a sale and purchase agreement with the said family. If it is proven that the family has divested itself of a portion of the land they own, they will be bereft of the power to subsequently transfer interest in that piece to any other purchaser. Families and stools after sale of lands cannot have any interest left in the property to transfer. Simply put; a person who has no interest in a land cannot transfer any interest in the same land. That interest is simply non-existent.

The latin term for this principle is Nemo dat quod non habet. The principle was succinctly put by the Supreme Court in the case of Seidu Mohammed v. Saanbaye Kangberee [2012] 1 SCGLR 1182. In this case, the court opined that…

“[t]he Latin maxim operates ruthlessly and by it, a stool, a family or individual owner of land could convey the title it has or an inferior title which had not been granted at the material time of the conveyance to another but any purported grant of title it has not got or which is already vested in a person by virtue of an earlier grant would render the subsequent grants null and void”[emphasis added].

It should be clear by now that a purchaser can only purchase land or landed property from persons with proper ownership and title over the property. In the absence of this, a purchaser will only be gambling with his resources and will be putting himself in jeopardy should the true owner emerge.

Protecting yourself as a purchaser?

As a person desirous of purchasing land, it becomes your utmost duty to ensure that either your money or the interest you seek to acquire or both are protected. To do this, you are to ensure that the stool, family or person from whom you acquire the interest has title to transfer. You are also to ensure that you go through the necessary statutory procedure to register your interest to put the public on notice. It is crucial to take a legal advice on such transactions.

Who to purchase land from?

Buying Lands from a Stool: It is necessary that the said land will be acquired from the occupant of the stool with the knowledge and consent of the principal elders of the stool. The Ghanaian Supreme Court has established the principles that a grant of a stool land by the occupant of the stool alone without the consent, knowledge and approval of the principal members of the stool is voidable and can be set aside. Alienation of a stool land by a caretaker thereof without the knowledge, consent and concurrence of the principal elders of the stool is void for lack of capacity. The Supreme Court of Ghan, through cases such as AWUKU v. TETTEH [2011] 1 SCGLR 366, AKWEI v. AWULETEY [1960] GLR 2313 and AKUNSA v. BOTCHWAY & JEI RIVER FARM LTD. [2011] 1 SCGLR 288, has confirmed the above proposition as the legitimate procedure for the transfer of interest in stool lands.

For this reason, a person who purchases a stool land from any person outside the category of the persons described above does so at his or her own peril.

Buying Family Lands: A family land can be purchased only from the head of family with the knowledge, consent and concurrence of the principal members/elders of the said family. A family head, without the consent of the principal elders of the family, cannot transfer any interest in land to a prospective purchaser. A person who purchases such land does so at his or her own peril. Equally, an ordinary member of the family is bereft of the authority to transfer any interest in a family land. However, where the family land is divided and shared among the members of the family, any of the members can validly transfer ownership of their portions of the land. What this means is that after the said distribution, the communal and family nature of the family land is lost.

The Supreme Court of Ghana in the 2018 unreported case of KORKOR MENSAH v. ROBERT TETTEH MENSAH AND ANOTHER with suit number (J4/38/2018) decided on 12th December 2018, through Justice Akoto Bamfo (Mrs) stated the position in clear terms when she opined that,

“Upon sharing [a family land], it is obvious that there is a change in the nature of the ownership; that is from communal [or family] ownership to individual control or ownership...

Therefore... upon the sharing, the land lost its communal character with its incidence of communal ownership and control to that of individual control and management.”.

Buying Lands From Individuals: This form of purchase does not pose much challenges. The purchaser is only required to satisfy himself that the vendor is indeed the true owner of the land in question. Proper search must be conducted at the lands registry where the land is already registered. The root of title of the vendor must be traced and the purchaser has to be satisfied that the root of title is correct to the point where his or her vendor acquires his or her title.

Registration of title over land

It is prudent that a person who purchases land goes through the proper procedure to register his or her interest in the land. This makes it easier to put the world on notice of such interest. In such situations, anybody who purchases the land without conducting a search in order to advise himself will have himself to blame. The process of registering documents evidencing the interest in land with the Lands Commission has been simplified by Justice Dotse in the Supreme Court case of GEN. EMMANUEL ERSKINE AND ANOTHER VRS v. VICTORIA OKPOTI AND ANOTHER with suit number (J4/23/2016) decided on the 6th day of June 2018. The process is as follows:

Process of registration of a valid land document at the lands commission

1. Confirmation of the signature of the parties to the document.

2. Proper administration and swearing of the oaths.

3. If the above are confirmed, then the document is given a number.

4. Fixing of the Lands Commission Received Stamp.

5. Presentation of document for assessment and payment of processing fees, this is where the document is stamped and this is a revenue generating event.

6. Placing of Movement Form on the document.

7. Verification of document by the Control Record Office for a report.

8. Further verification by relevant Regional Records office (in this case, Greater Accra Regional office) as to whether the land had not been granted previously to another person before.

9. Ascertainment as to which stool, family, state, individual etc. owns that land.

10. Ascertainment by the Legal Department of the citation on the document and the records in the office.

11. Legal Department directs whether the Land in the document is to be plotted or not, and the type of interest therein.

12. Land in the document is then plotted by the Regional office or is rejected.

This completes the work of the Lands Commission.

13. Thereafter document is sent to the Deeds Registry for registration.

It must be noted that failure to comply with the above process may produce an unwelcome consequence on the person seeking to register and own the land in question. Justice Dotse in the GEN. EMMANUEL ERSKINE AND ANOTHER VRS v. VICTORIA OKPOTI AND ANOTHER [supra] added that,

“…non-compliance with the …elaborate processes [of land title registration] would result into chaos and confusion in our land administration regime… What must be clearly noted is that, the various stages in the registration process of land documents have been well structured such as to give information to the public about prior compliance with the process. [Failure] in complying with the duly established procedural steps in the registration of the document …must be deemed for all purposes not to have met the litmus test in the registration process” [emphasis is mine]

It must also be noted that any document/instrument affecting land cannot be registered unless it is duly stamped. In the words of Justice Dotse,

“…section 17 of the Stamp Act 1965 (Act 311) now amended by Stamp Duty Act, 2005 (Act 689) which revised Act 311 to incorporate amendments relating to stamp duties etc. provided then as follows:-

“no instrument shall be registered if it affected land unless it has been stamped”

The learned trial Judge and the learned Justices of the Court of Appeal were of the view that the court had the power to receive an unstamped document in evidence. That pronouncement was most unfortunate, since this instrument is one that affected land and by the clear provisions of the law as stated supra, an instrument affecting land cannot be registered if it is not stamped.”[emphasis added].

Conclusion

To purchase and secure an interest in land, one has to ensure that the necessary requirements are met in order to avoid any unwanted consequences. It is impossible for one to avoid issues affecting the purchase of land. However, those issues can be reduced to a minimal degree if the right level of due diligence is exercised before, during and after the purchase of lands.

DISCLAIMER: This article is by no means an exhaustive discussion of the legal and factual requirements towards the purchase of land (other areas/defences such as bona fide purchaser for value without notice, the effects of the Limitations Act among others have not been discussed). It only provides a general view of the requirements of land transfers in Ghana. It does not discuss issues affecting certain peculiar places in Ghana (an example is the issues of landguards within the major cities in the country). It is proper for a purchaser of land to seek legal advice in order to obtain the proper advice pertaining to the peculiar circumstances of the purchaser. Again, this article is the opinion of the writer and does not in any way constitute legal advice or opinion of Kulendi@law.
Columnist: Godfred Adjabeng-Mensah