PENTECOST UNIVERSITY
FACULTY OF LAW
COURSE: LAW OF IMMOVABLE PROPERTY
ASSIGNMEN : PROBLEM QUESTIONS 3&4
NAME: NICHOLAS ADU MFOAFO
INDEX NUMBER: PULB/22120020
Question 3
Using AIRAC:
Area of Law: Allodia tittle, the Constitution,the Land Act 2020
Act 1036.
Issues: 1. Whether or not Evans Owusu has legal right to build
and farm on the family land?
2. Whether or not Evans Owusu has the right to lease a portion
of the land to Rockteller Darlison the Lebanese trader for 55
years without the knowledge of the other members of the
family.
3 . Whether or not Abusua Panyin has the right to grant part of
the land to Yeboah who is also a member of the family.
RULES: Land Act 2020 Act 1036
Land includes the solid surface of other vegetation,a part of the
earth surface covered by water, any house, building or
structure whatsoever and any interest or right in to or over
immovable property (281, Land Act 2020 Act 1036).section
According to Black Law Definition land is an immovable
and indestructible, three dimensional area consisting of a
portion of the earth surface ,the space above and below
the surface and everything growing on or permanently
fixed to it.
Indestructive means in law, land may lose it value through
human activities such as mining and burning or bombing
but it cannot be destroyed.
Land is immovable,as distinct from Chattlels which are
movable:it is also in it legal significance, indestructible;
The contents of the space may be physically severed,
itself,and so the land remains immovable Petter
Butt,Land Law (9 2DED1988) .
In English law “Land “means the soil as well as anything
attached or fixed to the soil. This was rendered in Latin
as “quiquid plantatur, Solo Cedit”which means what is
attached to the land becomes part of the land.
Interpretation Act 1960(C.A.4) endorse this definition.
It provide that “land” includes land covered by water
and any house building or structure. In the case of Asseh
Vs Antoh(1961),GLR 103. It was held that the maxim
quicquid Plantatur Solo ,Solo Cedit. did not apply in the
customary law.
INTEREST IN LAND:Land 2020 Act 1036
Allodia tittle
Common law freehold
Customary law freehold
Usufactory interest
Leasehold interest
Customary lenaney
Ownership of land under Customary Law.
Amoadu Vs Secretary of Southen Nigeria the judicial
Committee of the privicy Council said;
The next fact which it is important to bear in mind in
order to understand the native law is that the notion of
individual ownership is foreign to native Ideas. Land
belong to community, the village or the family, never to
individual. This was accepted as correct under Ghana
Law, in that by the nature of acquisition of land in
ancient times,it was unlikely for individual .to acquire
land. The tittle acquired by the groups are call are been
attached to the nearest stool.
In Ofori V Atta Fua (1913) D and FC 11: 16:65 was
similarly observed. These lands been unhibited lands
started between two paramount stools would, according
to native law and customary creat.
Article 266(1) 1992 Constitution state that “ No interest
in, or right over any landing Ghana shall be created
which rest in the person who is not a citizen of Ghana
freehold in any land in Ghana.
Section( 4 ) of Article 266” No interest in,or right over
any land in Ghana shall be created which rest in a
person who is not a citizen of Ghana leasehold a term
morethan fifty years at one time “.
ANALYSIS
Allodial title is the highest or
Allodial title was acquired mainly by selltent or
conquest; hence it could be hardly acquired by an
individual.
Common law freeholds. A common law free arises from
transaction to which rules of law , generally known as
common law, are applicable and is called perpetual
duration or for any other uncertain duration.
b. Subject to the interest of the state, the Usufruct :
Usufract is crated by the family , where a member of
members of the family cultivate a portion of stop land
together with intention of making farm or development,
make family property, or where they do so with the
resources from the family or provided by the family.
Usufract also described as determinable tittle is
normally acquired by individuals in vacant stool forest
land or urban land.
To acquire the usufract, the occupation by the subject
should be of continues or permanent nature . The
principles was stated in Agyemang vs Yamoah
ISSUE 1: Whether or not Evans Owusu has the right to
build and farm on family land without the concent or
other family members?
Though, Evans Owusu is a member of the Aduana family,
he alone cannot cultivate on the land and at the same
time build on it without the consent of the entire family
or the head of the family.
The project and the building he has undertaken is going
to benefit him alone or the entire family?
ISSUE 2: whether or not Evans has the right to lease a
portion of family land to Rockefeller Eric the Lebanese
trader for fifty-five (55) years, without the knowledge of
the other members of the family?
Sarbars wrote:
" The customary Law says they who are born or they
who are still in the womnb require means of support,
wherefore the family land possessions must not be
wasted or squandered" Chief of Ijebu- Ode was reported
in West African Lands Commission's Report in Apri 1917.
He conceive that land belongs to a vast family of which
many are dead, few are living and countless of members
are yet unborn.
The constitution 1992 also makes it clear that a foreigner
cannot own a lease freehold for more than fifty (50)
years. Article 266(4)
Again, non Ghanaian citizens cannot hold freehold
interest in land in Ghana Article 266(4), constitution
1992.
ISSUE 3: Whether or not Evans Owusu has the right to
grant freehold interest to Portia Godsland from Sunyani?
Evans Owusu can not also alineate the portion of the
family land to Portia if he, Evans does not hold allodial
tittle to the land. The freehold is an interest which
prevails against the whole world including the allodial
tittle which gave birth to it. The position of the law has
always been that the allodial land from which the
customary law freehold is acquired should be original
vacant , virgin communal land . PNDCL152 the dominant
law on the subject prior to enactment of Act 1036, did
not provide for usufractuary interest in land in Ghana at
all. It only provided inter alia the allodial tittle customary
freehold and common law freehold.
Evans Owusu cannot grant freehold to Portia from
Sunyani
ISSUE 4: Whether or not the Abusuapayin has the right
to grant portion of land to Yeboah who is also a member
of the family.
The Abusuapayin has the right to grant portion of the
land to Yeboah because Yeboah is a member of the
Aduana family he has every right to enjoy the fruit of
the land.
CONCLUSION
Evans Owusu though a member of the Aduana family
has every right to enjoy the land. But cannot grant
interest to any other person who is not a member of the
family without the concent of the head of the family.
Evans Owusu can also not take possession of the entire
land put up building on it and develop the rest without
the knowledge of other family members. Evans does not
hold allodial tittle. The allodial tittle is hold by the entire
Aduana family.
QUESTION 4
Using AIRAC
Area of Law: Allodial title, Usufruct, The Land Act 2020
Act 1036., The constitution, 1992.
ISSDUE 1: Whether or not Kwaku Frimpong has the right
to lease portion of the land to foreign investors (Ukraine
investors)?
ISSUE: 2: whether or not the family head has the right to
resell the land to Haruna Quansah?
RULE
Allodial title:
Land Act 2020 Act 1036 defined Allodial title in Section
2, as the highest or ultimate interest in land, and could
be held by the State or a Stool or Skin or Clan or Family
or Individual: and may have been acquired through
compulsory acquisition, conquest, pioneer discovery
and settlement, gift, purchase or agreement.
The term Allodial title is referred to as ''highest'"
''ultimate'' ''Paramount'' ''absolute'' "radical'' or final
title. The owner of the Allodial title is deemed to be the
person who holds the title.
Danquah concentrated on the mode of acquisition of
the Allodial title by stools as follows; Conquest,
Settlement, Purchase and Gift. These mode of
acquisition of Allodial title have received judicial
affirmation in the well known cases like Ohimen v Adjei;
thus " There are four principal Methods of which a stool
acquire [Link] are: Conquest and subsequent
settlement thereon and cultivation by subjects of the
stool; discovery, by.... and subsequent settlement
thereon and use thereof by stool and its subject; gift to
the stool, purchase by the stool.
Conquest: This was an act of war by a group of persons
against others. For instance in Ago Sai and Others V
Kpobi Tettey Tsuru III.
Atuguba, J S C, quoted from the earlier Case of Owusu v
Manche of Labadi and noted."It is notorious that the LA
Stool has acquired certain land by Conquest"
In his opinion, Justice Ollennu in Ohimen V Adjei the
case, Conquest persey did not automatically absolute
ownership of land and victorious party after the party
has successfully defeated.
Discovery: Like Conquest, discovery without more does
not vest a person or a stool with the absolute title to
the land. As expressly emphasized in the Ohimen V Adjei
Case ( Supra). Discovery must be followed by settlement
and development/ cultivation or general exhibition of
acts of ownership by the hunter and or the pioneer and
their successors. Under this rubric; It is not worthy that
the land to be developed must be virgin, vacant
unoccupied land.
Section 5 of the Land Act 2020, Act 1036 explained
Usufruct as an interest in land which is acquired in the
exercise of an inherent right by a subject or a member of
Stool or Skin or family or clan which holds Allodial title
through the development of an unappropriated portion
of the land of the the Stool or Skin, or family or clan or
virtue of an expressed grant.
Section 5(2) where alienation of the Usufruct is to a
person who :
(a.) Is not a member of the Stool or Skin, or clan or
family which holds the Allodial title, or
(b) Is not a non indigenes who holds the Usufructory
interest as provided in paragraph (b) of subsection (1) in
the land in respect of which the Usufruct is to be
alienated, the alienation is subject to the written
consent of the Stool or Skin, or clan or family or group
and performance of established customary obligation.
states that interest in should be transferred to non
Ghanaian citizen for more than fifty years at one time.
ANALYSIS
ISSUE 1::whether or not Kwaku Frimpong has that right
to lease portion of the land to foreign investors?
The decision by Kwaku Frimpong for releasing portion of
the family land to foreign investors (Ukraine) is
completely [Link] Frimpong through, a member of
the Anokye family, he can not alone part family land to
foreign investors without the consent of the entire
family or the head of the family. It is that the family that
holds the Allodial title but not Kwaku Frimpong as an
individual.
Again, Kwaku Frimpong cannot grant freehold in the
family land to foreign investors for fifty five years, which
is against the law of the land. The 1992 Constitution has
made it clear in Article 266 (4).
ISSUE 2
Whether or not the family head has the right vti resell to
Haruna Quansah?
Yes, the family head has every right to protect the
interest of the family. He has the right to resell the
portion of the land Kwaku Frimpong sold to the
Ukrainian investor and use the proceeds to keep the
family running. Kwaku Frimpong failed to inform the
family or the head of the family about transaction he
had with the foreign investor and after sales too he
failed to give the family anything.
conclusion's
The Allodial title of the land is in the interest of the
Anokye Family not in the interest of Kwaku Frimpong as
an individual. If anything at all it is the head of the family
who has the right to transact the deal with the foreign
investors. Kwaku Frimpong alone can not claim the land
to be his bonafide property. He alone cultivated and
built houses and granted freehold to foreign investor.
His action is completely not acceptable.