By Alhassan Tairou MANAF
The notion of ownerless land in Ghana has long been dispelled. Therefore in present day Ghana, every land has an owner. The laws of Ghana give recognition to stool or skin, family or clan, the state, individuals or juristic persons as entities that can own land in Ghana. The manner of dealing with any land regarding sale or purchase of same is defined by the type of person that owns the land.
This means that the issues for consideration when dealing with a stool or skin land will differ from family or clan land. The objective of this article is to discuss the character of family land. This will entail an attempt to explain the rights and obligations of various family stakeholders in the alienation of family land and what a purchaser should look out for in transactions involving family land.
Key Definitions
In Ghana, when land is mentioned, it connotes the following: solid surface of the earth, trees, plant, crops and other vegetation, a part of the earth surface covered by water, any house, building or structure and any interest in respect of an immovable property. By this definition, the list of what constitute land is expansive. Therefore, it should come not as a surprise when a person claims ownership of a river as his or her land or the skyline above his or her building.
Although I have earlier referred to “family or clan” as one of the entities that can own land in Ghana, the two words are not accorded the same meaning under the laws of Ghana. In Ghana, family can be described to include a social group whose members trace their blood lineally from a common ancestress or ancestor or persons recognized as part of such social group because of their prolong period of settlement among the group whereas clan refers to persons who trace their root from a common ancestor and do not share any biological relationship between them. Simply put, a family is a subset of a clan.
Means of ownership
The Land Act of Ghana defines family land as “land, the allodial title, to which is held by a family for the benefit of the members of that family in accordance with customary law.”
This means, when a family land is mentioned the paramount or absolute interest in that land is held by a family as a unit for the benefit of family members in line with customs. It is argued, that this definition is limiting, however, family land may also include lands in which a family holds a leasehold or freehold interest. Families come by ownership of land through various means.
They are: conquest and subsequent settlement and cultivation on the land by members, discovery by pioneers of the family of unoccupied land and settlement and use of the land, gift to the family or by purchase. Usually, family ownership of land is first exercised through the industry and labour of individual members of the family.
This occurs where family members have put up buildings or cultivated lands belonging to the family; family members willing lands to members of their family; purchase of land with resources belonging to the family – for instance, purchase of land from proceeds of a cocoa farm belonging to the family; where land is purchased by a group of people belonging to the same family and either all or one of them dies, the land in question assumes a family character although in the event where there are surviving members of the group, interest in the land will devolve and vest in them, a life interest; Where a member of a family dies intestate without surviving wife and children, land(s) belonging to the deceased family member will assume a family character, and in the event of there being a surviving wife and or children, the law requires a specific portion of the person’s estate (in this case land) to be given to the person’s family. This is not an exhaustive instances of how lands assume a family character. Every situation will have to be construed based on the peculiar circumstance and context.
Appointment of family head
The key protagonist in every conversation regarding family land is the head of family. The authority to appoint head of family is vested in the principal members of the family. The appointment is done where principal members either formally or expressly decide to appoint a member or non-member as head of family, or by necessary implication, such as where the family accepts and supports acts of headship performed by a member who is not expressly elected as head of family.
It is required by law that the meeting to appoint head of family must be properly called for that purpose and all persons entitled to participate in the meeting must be given notice of the meeting and be informed about the purpose of same. Instructively, the way and manner a family goes about appointing its head of family is generally dependent on the customs and usages of the family. Although some families may choose to appoint head of families based on patrilineal or matrilineal consideration, it is not cast in iron that same must pertain in all circumstances. A family is at liberty to decide to appoint their head of family in a manner they so desire.
Vesting of family land
The head of family performs various roles. Key among the roles is the fiduciary obligation regarding family lands. All family lands are vested in the head of family, who holds same in trust for and on behalf of members of the family. This means that the lands are only vested in the head of family for the benefit of members and he is accountable to them as a fiduciary. Because of this benefit conferred in members of the family, at custom, they generally have an inherent right to occupy any unoccupied land belonging to the family without necessarily obtaining the consent of the family head. When members of the family occupy family lands in this manner, the members are said to have a possessory interest in the land which entitles them to use the land in the course of the member’s life time. Upon the death of the member, interest in the land will devolve onto his or her immediate family. Later in this article, we will be learning about the nature and character of this right conferred on a member.
Alienation of family land
Generally, the authority to alienate family land is vested in the head of family acting with the consent and concurrence of the principal members. This means that, the head of family cannot solely alienate a family land without the principal members.
Alienation by the head of family must not necessarily receive the consent of all principal members, however, alienation with the consent and concurrence of majority of principal members will suffice to constitute valid alienation. Also, in the event where a principal member who is entitled to participate in a meeting to alienate family land has been given notice of the meeting and the purpose but deliberately fails to attend, any alienation done in that member’s absence shall constitute valid alienation.
Any alienation done, contrary to the prescribed manner, will have the effect of rendering the transaction either void or voidable depending on the circumstances as we will be learn in this article. In all circumstances, it must be underscored, that the manner of alienating family land and the validity or propriety of same is dictated by the customs of the family and recourse must be had to the customs on any such determination.
Implications of wrongful alienation
Contrary to the prescribed means of alienating family land as already discussed , there are other means of alienation, although unlawful, will render the alienation valid and binding on the family if members of the family do not act timeously to set the transaction aside.
This may arise where the alienation is done by the head of family alone without the consent and concurrence of majority of principal members. There is also an unlawful alienation that makes the transaction completely void ab initio. This may arise where the alienation of family land is done by the principal members alone without the head of family.
The learning has already been espoused, that members of the family have an inherent right to occupy any unoccupied family land or the family can expressly grant land to a member for his or her use. In this sense, it is often asked whether the head of family can alienate land that a member is already in possession of without the consent of the member or whether a member can by himself alienate family land that he or she is possessed of without the consent of the family.
The principle of law is that, the head of family cannot alienate land that a member is possessed of without the consent of the member. However, the law recognises some exceptions where a member will be dispossessed of a family land by the family that he or she is already possessed of for purposes such as expansion of town or settlement or for purposes of serving the communal interest of the family.
Before a member is dispossessed of the land in this manner, the law requires the family to make prompt fair and adequate payment to the member which shall not be less than 40% of the plot of land the member is dispossessed of or the market value of the plot of land being taken over. Alternatively, the family is obliged to provide suitable land to the member. A member of the family on the other hand is generally not prohibited from alienating family land that the person is possessed of.
Where alienation is by a member to another member, there is no requirement to obtain consent of the family. However, it is required by law, that where alienation is from a member to a stranger, the written consent of the family is required to constitute a valid alienation and the stranger is required to make adequate payment to the family and perform the customs and traditions of the family.
Remedy available to members for unlawful alienation of family land
Generally, it is the head of family who is clothe with capacity to institute legal action to safeguard family land. However, because it is usually the head of family and principal members who play the active role in alienating family land, the question has often been asked to the effect that ‘who watches the watchman?’.
To wit, who ensures that head of family and principal members do not shirk their obligation to protect family lands from being lost? The law recognises that there are instances where for some reasons the head of family and the principal members might be negligent in protecting family land or be involved in reckless alienation of family lands. When this arises, the law enjoins an ordinary member to institute legal action to protect family land subject to some conditions.
The law envisages that there will be circumstances where a family property is in danger of being lost to the family and the head of family because of some personal interest or otherwise will not take steps to protect it; or where because of division in the family, the head and principal members will not take any step to protect family property; or where the head and principal members are deliberately disposing of family property in their personal interest, to the detriment of the family as whole. In these kinds of circumstances, any member of the family can institute an action on behalf of the family to protect family property.
In bringing an action to protect family land, a member must first, where internal customary procedures exist for resolving the issue, exhaust those procedures.
The member must also be qualified under the family customary law to bring an action against the head of family; or the member has demonstrated that he is a member of the family and for that matter qualified to bring an action because the head has failed to act, and based on that demonstration has obtained the permission of the court to institute legal action to protect family land.
It is further required by law, that when a member institutes an action in this manner, he must serve a copy of the action taken in court on the head of family to afford the head the opportunity to object to the action taken by the member or to substitute himself as the one bringing the action or to be included as one of the people bringing an action in court to protect family property.
Buyer beware!
The learning espoused thus far indicates, that anyone seeking to purchase family land must undertake some legal due diligence to avoid getting involved in any land related litigation.
It is generally advised, that in every land transaction, a purchaser is required to conduct a search at the Lands Registration Division of the Lands Commission to verify the authority of the seller and also obtain information from the Courts on whether there is any ongoing litigation in respect of the land or there is any decision of the court that vests title or right in the land in someone else other than what has been captured by the Lands Registration Division. It is also advised, that a purchaser should visit the land to ascertain whether there is anything on it that indicates act of possession by someone else.
Further, a search at the Collateral Registry of Bank of Ghana may also reveal whether the property is a subject of any mortgage. Also, conversation with residents living around the land may provide some useful information regarding the land.
However, it is extremely useful to take some specific steps in addition, to verify if the head of family who is alienating the land qualifies to hold himself out as the head. When the person’s capacity as head of family is positively verified, you must also take further steps to ascertain if he has the consent of all or majority of the principal members to alienate the land.
In the event where it appears the alienation was done by the head alone, it is recommended that you take the initiative to get the consent of the principal members.
Most often, the influence of members is disregarded in alienating family lands. Some recent events provide graphical understanding of the importance of members in alienating family land. The importance of members is often felt where although a person has received a valid grant of family land, yet faces stiff opposition from members who are aggrieved by the alienation because the alienation has adversely impacted their interests.
The alleged conflict between the residence of Ada and Electrochem Ghana Limited comes handy in this regard. Although this relates to a stool land it provides same context for family lands.
The brief fact of this dispute as reported by myjoyonline.com on 9 July, 2024 is that, the government of Ghana with the consent of the Ada Traditional Council granted a mining lease of 41,000 acres of the Songhor Lagoon to a private company called Electrochem Ghana Limited to mine salt.
The residents of Ada have been resisting this sale on grounds that it has taken away their source of livelihood, displaced their residences, farms and desecrated their cemeteries. This has resulted in a protracted conflict between the residents and government security forces resulting in some deaths and injuries.
The Ada-Electrochem case study and similar instances in other mining communities like Obuasi in the Ashanti Region provide some lessons to purchasers that although they have a valid grant, enjoyment of the land will not be a walk in the park. Thus, it will serve the purchaser well if further endeavor is made to identify grievances among members regarding the alienation and for same to be resolved to guarantee quiet and peaceable enjoyment of the land. For corporate institutions or businesses that acquire lands for business purposes, it is strongly urged that due consideration and attention must be given to corporate social responsibility to ensure that members or inhabitants of the community are not made worse off by the disposal of their property by a select few. Rather, deliberate actions and programmes must be put in place to improve their quality of lives by the provision of jobs, safe drinking water, health and educational supports to mention just a few.
Liabilities and remedy
Persons who engage in unlawful sale of family land will be liable for a criminal offence which will entail imprisonment or fine upon conviction, or both. They will also be liable to compensate the purchaser who is the victim of the unlawful sale for a breach of contract. However, and as already indicated, it is important that anyone purchasing family land conducts the necessary due diligence because equity they say only aids the vigilant and the diligent. A purchaser who has received all the necessary signals about the unlawful nature of the transaction and yet bound himself by same cannot be head later to be complaining that he is entitled to a compensation because fraud was perpetuated on him or her. Simply put, to be entitled to any remedy at all, you must be the darling boy of equity – someone who has done all the necessary due diligence and satisfied himself that there is nothing untoward about the transaction and upon that satisfaction, advanced purchase price, whether cash or kind, for the land.
By way of general admonition, I will sign off by saying, that if the Buyer Must Beware then the Seller Must Beware, too: Caveat Emptor, Caveat Venditor!
Disclaimer: The information provided in this article does not and is not intended to, constitute legal advice. Rather it is for the purposes of general information only.
The Author is an Assistant Researcher at Paajoy Law Group and a Student at Ghana School of Law.
Email: [email protected] Mobile: +233556971139
