LAND ACQUISITION UNDER THE LAWS OF GHANA

LAND ACT 2020

(Act 1036)

Ekua Eguakun

WHAT IS LAND?…

Land has been described by Nii Amaa Ollennu and Gordon R. Woodman in their

book Ollennu’s Principles of Customary Land Law in Ghana 2 ed Cal Press 1985:

The term land as understood in customary law has a wide application. It includes the land itself i.e. the surface soil, it includes things on the soil which are enjoyed with it as being part of the land by nature e.g. rivers, streams, lakes, lagoons, creeks, growing trees like palm trees and dawadawa trees or being artificially fixed to it like houses, buildings and any other structures whatsoever; and also includes any estate, interest or right in to, or over the land or over any of the other things which land denotes e.g. the right to collect snails or herbs or hunt on land.

A person who acquires and owns land is entitled to enjoy all the natural products on the land except for minerals on or in it. Minerals on or in land are pursuant to the Minerals and Mining Law 1986(PNDC L 153) vested in the State.

USE OF LAND

The basic needs of man being food, clothing and shelter are provided by or done on land . Some of such uses are :

Farming and
Construction and infrastructural

Land is indispensable to man because of its use.

Some Laws on Land in Ghana.

There are several laws regulating land in Ghana, some of them are:

The 1992 Constitution
Land Registry Act 1962(Act 122)(repealed)
Administration of Lands Act 1962(Act 123) (repealed)
The State Lands Act 1962(Act 125) (repealed)
Survey Act 1962(Act 127) (section 11 repealed)
Lands (Miscellaneous Provisions) Act 1963(Act 161) Act(repealed)
Rent Act 1963(Act 220)
Stamp Act 1965 (Act 311)
Rent Stabilisation Decree 1966 (NLCD 49)(repealed)
Rent Stabilisation (Amendment) Act 1966(NLCD 103) (repealed)
State Lands Act (Amendment) Decree 1968 (NCLD 234) (repealed)
Mortgages Decree 1972(NCRD 96)
The Conveyancing Act 1973(NCRD 175)
Public Lands (Protection) Act 1974 (NRCD 240) (repealed)
The Land Title Registration Act 1986(PNDC L 152)(repealed)
Minerals and Mining Law 1986 (PNDC L153)
Land Act 2020(Act1036).

Some of the above laws have been repealed by section 282 of the Land Act 2020(Act 1036). We will delve into some of the provisions in Act 1036.

THE LAND ACT 2020 (ACT 1036)

The most recent enactment on land is the Land Act 2020 (Act 1036). It was assented to by the President on the 23rd December 2020 .

It is an Act to revise, harmonise and consolidate laws on land to ensure sustainable land administration and management, effective and efficient land tenure and to provide for related matters.

TYPES OF INTERESTS IN LAND

What title or interest may a person hold in land in Ghana?

Under S.1 of the Land Act 2020 there are six types of interests that a person may hold in land , they are:

Allodial Title
Customary law freehold
Common law freehold
Usufructuary interest
Leasehold interest
Customary tenancy

Allodial

S. 2

The highest or ultimate interest in
Held by the State, Stool or Skin, Clan, Family or an
May have been acquired through conquest, pioneer discovery and settlement, gift, purchase or agreement or compulsory acquisition.

2. Customary Law Freehold S.3

An interest which arises from a transaction under customary
Acquired when a person purchases land outright from the Stool or Skin, Clan or Family which holds the allodial title or acquired by gift or inheritance.
Perpetual duration, inheritable and

3. Common law freehold S.4

An interest which arises from a transaction to which rules of law known as the common law are applicable.
Subject to the interest of the state, the jurisdictional and cultural rights of the Stool, Skin, Clan or Family.
Perpetual duration, inheritable and

4. Usufructuary Interest S.5

Acquired in the exercise of an inherent right by the subject or a member of a Stool or Skin, Clan or Family which holds the allodial title though the development of an unappropriated portion of the land or by express grant.
Acquired through settlement for a period of not less than fifty (50) years with the permission of the holder of the allodial title by a non-indigene.

Leasehold

S.6

Arises when a person who holds an allodial title, customary law freehold, common law freehold, or usufructuary interest conveys interest in land for a specified term subject to terms and conditions.
Duration is certain and capable of being
In the case of a sublease or assignment arises when the holder of a leasehold interest grants a sublease or assignment out of his interest.
Does not exhaust the interest of the

6. Customary Tenancy S.7

Arises where a Stool or Skin, or Clan, or Family which holds the allodial title or a person who holds customary law freehold or usufructuary interest enters into an agreement to grant that person an interest in the land upon agreed terms and
May involve the payment of rent, the sharing of farm produce or the physical partitioning or severance of farm or land.

Persons, stools, skins clans or families with any of the six types of interests mentioned above are qualified to have their interests registered by the Land Registrar.

Restriction on Land Ownership by Non-citizens

Article 266 of 1992 Constitution which has been underscored by Section 10 of Act 1036 restricts land acquisition and ownership by non-citizens for only up fifty (50) years at one time.

Article 266 of the 1992 Constitution provides that:

No interest in or right over any land in Ghana shall be created which vests in a person who is not a citizen of Ghana a freehold interest in any land in Ghana.
An agreement deed or conveyance of whatever nature which seeks contrary to clause (1) of this article, to confer on a person who is not a citizen of Ghana any freehold interest in, or right over any land is void.
Where, on the 22nd day of August 1969 any person not being a citizen of Ghana had a freehold interest in or right over land in Ghana , that right shall be deemed to be a leasehold interest for a period of fifty years at a peppercorn rent commencing from the 22nd day of August 1969 and the freehold reversionary in any such land shall vest in the President on behalf of , and in trust for the people of Ghana.
No interest in or right over, any land shall create which vests in a person who is not a citizen of Ghana a leasehold term of more than fifty years at any one
Where on the 22nd day of August 1969 any person not being a citizen of Ghana had a leasehold interest in, or right over any land in Ghana , for an unexpired period of more than fifty years that interest in, or right over, any such land shall be deemed to be an interest or right over subsisting for a period of fifty years commencing from the 22nd day of August 1969.

Restrictions on Freehold Interest on Land. Article 267(5) of the 1992 Constitution.

Subject to provisions of this Constitution, no interest in, or right over any stool land in Ghana shall be created which vests in any person or body or persons a freehold interest whatsoever.

S..9(2) of Act 1036

No person shall create any interest in or right over any stool or skin, or clan or family which vests in that person, another person or a body of persons a freehold interest in that land howsoever described.

Whereas in the 1992 constitution the restriction is only on stool land, in the Land Act, it has been extended to include clan and family.

S. 10 of Act 1036

No freehold interest to be granted in favour of a Non-
Any such transaction is
A freehold interest over land in Ghana held on the 22nd day of August 1969 by a non-citizen is deemed to be a leasehold interest for a period of fifty (50) years.
Freehold reversionary interest in any land converted to leasehold shall vest in the President and in trust for the people of Ghana.
The reversionary interest in a fifty (50) years lease shall vest in the

Some Challenges with Land Acquisition and Administration In Ghana.

Land acquisition in Ghana is fraught with several challenges due to our peculiar land tenure and administrative systems. A few of the challenges of are:

Multiple sale of
Difficulty in getting reliable land information by prospective
Issuance of unreliable land documents to innocent 4.Fraudulent land transactions.

5.Long processing times for concluding land acquisition, among others.

Provisions in The Land Act 2020(ACT 1036) to Address Some of the Challenges with Land Acquisition and Administration.

Laws are made for the good of society, that is, to regulate the conduct of society.

Society is however not static but changes over time, and as society changes, its laws are reformed to reflect the current needs and values of the society.

Laws are also reformed to ensure that some harmful behaviors become regulated and are made unlawful to attraction sanctions.

In respect of the above, one of the reformations in the Land Act 2020(Act 1036 ) is the introduction of criminal offences and sanctions alongside civil law.

A person has the option of taking a civil action as well as filing a complaint with the police for criminal prosecution of offenders on matters relating to land.

One of the innovations under the Act 1036 is to address our perennial issue of “landguards” which is captured in section 12.

Protection of interest in land. S.12

A person who:

Unlawfully exercises or purports to exercise supervision of land development in a location and has no interest in the land.
Extorts money or other benefits from a person who has interest in the
Prevents a developer or through another person unlawfully uses force or violence to prevent access to land or drives away that person commits an offence.
Is liable on summary conviction to a term of imprisonment of not less than five (5) years and not more than fifteen (15) years.
A person who uses force, violence or intimidation to prevent a lawful owner from developing the land commits an offence and is liable on summary conviction to a term of imprisonment of not less than ten (10) years and not more than fifteen (15) years.

Creation of Fiduciary Obligations

S.13

A Chief, Tendana, Clan Head, Family Head or any authority in charge of the management of Stool, Skin, Clan or Family land is a Fiduciary charged with obligations for the proper management function for the benefit of the Stool, Skin, Clan or Family.
In the discharge of their duties they shall be transparent, open, fair and impartial in making decisions affecting a specified land.
A fiduciary who contravenes commits an offence and is liable on summary conviction to a fine of not less than 5,000 penalty units and not more than 10,000 units or imprisonment between five (5) and ten (10) years.

The Oxford law dictionary defines a fiduciary as a person who holds a position of trust or confidence with respect to someone else and is obliged to solely act for that person’s benefit.

Creation of Customary Land Secretariat

S.14

A Stool, Skin, Clan or Family that owns land shall establish a customary land secretariat for the management of the land.
The Lands Commission and the Office of the Administrator of Stool lands shall collaborate in the establishment and performance of the functions of the Secretariat.

Functions of the Customary Land Secretariat.

Record interests and rights in land, keep and maintain accurate and up to date records of land transactions.
Provide list of existing customary interests and rights including indication of persons with capacity to make grants of the interests and rights in that
Facilitate the settlement of land disputes through Alternative Dispute Resolution (ADR).
Preparation of local
Undertake community education, sensitisation and awareness on land
Prepare periodic accounts of all revenue received at the
Provide facilities for SEARCH to be conducted on the records of

OTHER OFFENCES AND SANCTIONS. S.27

A person who willfully or unlawfully destroys, moves or alters a boundary or survey mark commits an offence and is liable on summary conviction to a fine between 1,000 and 10,000 penalty units or to imprisonment for a term not less than one (1) year and not more than ten (10) years or both.

S.28

Penalty for willfully obstructing or resisting an official or licensed surveyor in the execution of his duty or a person acting under his direction is liable on summary conviction to a fine between 1,000 and 10,000 penalty units or imprisonment between one (1) year and ten (10) years.

Damages for fraudulent concealment. S.72

Where a person disposing off property or an interest in property for valuable consideration with an intention to defraud.

Conceals from the purchaser an instrument or encumbrance material to property or interest.
Falsifies a plan of the land in relations to that property or is liable to an action for damages by the purchaser.

Commits an offence and is liable on summary conviction to a fine between 5,000 and 10,000 penalty units or a term of imprisonment between five (5) and ten (10) years or both.

S.277

Falsification of land
Fraudulently issues any document or procures the registration of any
Erasure or alteration of documents issued by the lands
Fraudulently defaces, obliterates or mutilates any land register or
Grants of land by person without title or
Refuses to comply with an Order contained in a notice duly served on that person or assist a surveyor with the demarcation of land when required to do so.
Willfully neglects or refuses to indicate land in which they claim an interest
Obstructs an authorized Officer in the performance of their functions under this

Sanctions

Minimum one (1) year to five (5) years imprisonment.

Minimum seven (7) years and maximum fifteen (15) years and/or a fine between 7,500 and 15,000 cedis.

S.277(6)

Conviction for offences under this Act (criminal action) an aggrieved person’s right to claim damages/remedy under civil action.

Land acquired during subsistence of marriage S 38(3) and (4)

In a conveyance for valuable consideration of an interest in land that is jointly acquired during marriage, the spouses shall be deemed to be parties to the conveyance unless a contrary intention is expressed in the conveyance.
Where contrary to subsection (3) a conveyance is made to one spouse, that spouse shall be presumed to be holding the land or interest in the land in trust for the spouses, unless a contrary intention is expressed.

Restrictions to Transfer of land by a Spouse. S 47.

A spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage-

Sell, transfer, mortgage, exchange or lease;
Enter into a contract for sale;
Give away land, right or interest in the land inter vivos;
Enter into any transaction in relation to the land, right or interest in the land without the written consent of the other spouse.

Electronic Conveyancing S.73

S.73 provides for the introduction of electronic conveyancing to address undue and unnecessary delays in obtaining information on land by prospective purchasers and in the registration of titles, rights and instruments .

REGISTRABLE INTERESTS S.81

Other than the registration of titles provided in section 1 of the Act section also 81 provides for the registration other interests on land:

Registrable Rights.

S.82.

Mortgage
Easement
Restrictive covenant
Profit
Power of Attorney
Contractual licence
A user right under a certificate of

STEPS TO TAKE WHEN ACQUIRING LAND IN GHANA

Identify the land of interest and the owner or person with authority to convey
Obtain a cadastral/site plan
Use plan to conduct searches and enquiries.

Investigate titleship to Take note of all legal and equitable interests in the land. A good title can derive from any of the following under S.64:
An enactment
A grant or vesting order or conveyance from the state
A final judgment of a court of competent jurisdiction
A grant, an acquisition under customary law, conveyance assignment, or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land.

Town & country

Whether area is zoned for the anticipated usage
Accessibility of road to the nearest highway

If satisfied with searches and enquiries, negotiate through a lawyer on the terms of conveyance and proceed further to reduce the agreed terms into writing, Is the conveyance a lease, sublease, or an assignment?.

Purchase price of the property and terms of
Nature and interest of the
When vacant possession will be

In some instance the parties may go ahead to execute the Conveyance without first executing a Contract for Sale.

S.33

The Conveyance shall only be prepared by a Legal Practitioner in terms of the Legal Profession Act 1960(Act 32).

Legal Practitioners are to ensure the respective rights and obligations of the Vendor and Purchaser under law are captured in the agreement.

S 35.

Transfer to be Signed by Parties or their Agents.

A transfer of an interest in land shall be in writing and signed by the person making the transfer or by the agent of that person duly authorized in writing and the person to whom the transfer is made or a duly authorised agent.

The Conveyance is to be Endorsed and attested by the Registrar of the Land
The Purchaser then proceeds with registration of the

S.103 Application for first registration

The application shall include the original deeds or the documents relating to the land or where the document is not available, a statutory declaration indicating interest in the land. The application must include the plan of the land.

S.154

A transfer of an interest shall be affected by the registration of the transferee as proprietor of the land or the interest in the land specified in the instrument and the instrument shall be filed

Obtain the relevant building/construction permits from appropriate statutory and regulatory bodies.

Resolution of Conflicting Claims

The Act provides for disputes to be settled through Alternative Dispute Resolution. This is to ease the number of cases at the court and facilitate quicker resolution of land dispute over land.

S.98

An action concerning any land or interest in land in a registration district shall not be commenced in any court unless the procedures for resolution under the Alternative Dispute Resolution Act 2010(Act 798) have been exhausted

S.115

Introduces Alternative Dispute Resolution (ADR) as the first channel of dispute resolution under the Alternative Dispute Resolution Act 2010(Act 798).
A court shall not entertain an action in respect of conflicting claims until the process for resolution by ADR has been exhausted.

Conclusion

It is important for anyone who wishes to acquire an interest in land to familiarize himself or herself with the provisions of the Land Act 2020(Act 1036) as precautionary measure to have quiet and peaceful enjoyment of the land, avert disputes and any potential protracted litigation

To God be the glory.!