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Usufructuary Interest
July 1, 2022 by solicit_legal

It has been called the Usufruct, Determinable Estate, Customary Freehold or

Customary Law Freehold.

In Roman law, usufruct was the right of using and enjoying property belonging to
another person provided the substance of the property remained unimpaired or
unchanged. In Roman law, a usufruct was not capable of being alienated. In addition,
the Roman usufruct did not survive the life of the usufructuary. On the other hand, the
Ghanaian usufruct is inheritable, alienable and potentially perpetual. The usufruct was
described as a burden on the allodial title. According to this view, the usufruct is not
another species of ownership in itself but consisted of perpetual rights of beneficial user
or land, which now co-exist with the allodial title.
However, in Awuah v. Adututu, the Supreme Court described the usufruct as “a specie of
ownership co-existent and simultaneous with the stool’s absolute ownership”.

KOTEY v ASERE STOOL

The plaintiff appellant claimed ownership to a parcel of land called the Mukose. Members
of the Abbetsewe family purported to sell the land to another upon the consent of the
ASERE MANTSE. The plaintiff claims the said land as his ancestral property. At trial the
trial judge rejected the plaintiff claims because he was a subject of the ASERE stool and
thus could not claim the land as his is ancestral property. Held: the plaintiff family had a
usufruct title subject to the paramount title of the ASERE STOOL. The plaintiff had
asserted their title by prove of land litigation.

Moreover per lord Dening, that the customary land law of Ghana had developed so as a
limitation of the right of the usufruct would be inappropriate. A usufructuary right in
possession is now an estate or interest in the land which the subject can alienate, use
and deal with as his own, so long as he does not prejudice the rights of the paramount
stool to its customary services. He can alienate to a fellow-subject without obtaining the
consent of the paramount stool: for the fellow-subject will perform the customary
services. He can alienate it to a stranger so long as proper provision is made for
commuting the customary services. On his death it will descend to his family as family
land except in so far as he has disposed of it by will, which in some circumstances he
lawfully may do.

ACQUISITION OF THE USUFRUCTUARY INTEREST

It can be acquired in four (4) ways.

1. Discovery of vacant land by pioneers of a stool.

As a general rule, when the subjects of a stool discover unoccupied land, and
subsequently settle thereon and reduce into occupation, [the stool acquires the allodial
title and the subjects acquire the usufruct. See Ngmati v. Adetsia

2. Implied grant from a stool.

Subjects of a stool have an inherent right to a usufruct in any unoccupied portion of
stool land and the fact of the occupation and cultivation by a subject was all that was
required to establish a usufruct. No formal grant was required. See the following cases:

Ohimen v. Adjei
The plaintiff sues as the head of the nana daquah family of the asona clan. The
defendants is the occupant of the agona stool and a member of the asona clan. The
defendant purported to grant a portion of the ananfo land in which the plaintiff had
possession of. They sue the defendant for a declaration of title. Held: the allodial title of
the land is vested in the stool. A plaintiff held the usufruct title. The court per Ollenu j
held that a subject who able to gain possession of a portion of the stool land through his
own industry is a holder of the usufruct and the defendant could not grant the land to
other without the consent of the usufructuary holder. The subject usufruct could
maintain an action of title to the land against the stool.

Bruce v. Quarnor

Oblee v. Armah
The parties are subjects of the James town stool. The parcel of land in dispute is located
in korle gonno. The plaintiff claimed to have obtained a grant from the stool. The land
was subsequently vested in the government. The stool purported during the time of
acquisition to grant the land to the defendants. The plaintiff sues to title. Held: a native
need not an express grant to occupy a vacant stool land which he has a right to a
portion. The only limitation to the extent of land occupied by the subject of the stool is
his industry that is his ability to cultivate the land. However, to ensure that there is
adequate land for all subjects the stool could make an express grant of the land to the
subject. The title of a usufruct held by the plaintiff extends beyond the use of the land for
farming but to the use of the land for building purposes. A land in possession of a
subject cannot be granted to another subject without the consent of the usufruct holder
in this instance the plaintiff. The grant by the stool during the period the land was vested
in the government was void. And since the plaintiff obtained no compensation from the
government during the period of acquisition is right to the reversion when the land is
divested is still in force.

Budu II v. Ceasar (1959) GLR 410, at 426).

The plaintiff instituted the present action against the defendants for failing to honour an
arbitral award. The court found that the purported arbitration was merely a negotiation
as such the defendant was not bound by the decision unless he consented to it. The
issue in dispute was over a parcel of land which the plaintiff claimed to be part of his
stool land. HELD: The court held that the land in question was that of Caesar who
obtained an absolute title through purchase in custom described as Guaha. Moreover,
ollenu j held that the defendant could alienate the land without the consent of the
Atimpoku stool. Of greater amplitude was that a subject of the stool is entitled either by
an express grant from the stool or an implied grant to occupy any vacant portion of the
land

3. Express grant from a stool.

Such grants were usual in the case of urban lands where some supervision of the
allocation of plots was necessary for the purpose of orderly development and equitable
allocation of communal lands.

Armatei v. Hammond

Frimpong v. Poku
The plaintiff sues the defendant for trespass on a parcel of land he purchased from the
sakori stool of goase. The defendant was granted a parcel of land for two farming
seasons. At the time of the grant he was not a subject. He cultivated into the land which
was granted to the plaintiff despite being told to stop by the elders of the stool. He later
became a subject of the stool through customary naturalization. At trial the trial judge
gave a judgment in favor of the plaintiff. On appeal HELD: per Akuffo Addo CJ, that the
principle of customary law which says that a subject is free to cultivate any extent of stool
land does not confer on a subject an unlimited license for indiscriminate cultivation, and
a subject usually obtains the formal permission of the stool for the purpose. In modern
times, it has become necessary to ensure a more equitable distribution of available land
for cultivation and the practice has been for limited areas to be demarcated for subjects
of the stool.

⦁ It must be noted, however, that though the subject may now be required to seek an
express grant from the stool, the subject’s access to land still remains an entitlement.

4. Transfer.
Could be from a subject to a subject or from a subject to stranger.

Kotey v. Asere Stool

⦁ Such grant to a subject or stranger being one under customary law is effective from the
moment it is made and a deed subsequently executed by the grantor may add to, but
cannot take away from the effect of the grant already made under customary law.
Bruce v. Quarnor

⦁ Whether a subject has satisfied the degree of occupation required to confer the
usufructuary title is a matter to be determined on a case by case basis. The general rule
is that the presence of economic trees on the land is a prima facie indication that
someone is in occupation.

Norquaye-Tetteh v. Malm
The defendant claimed to have acquired the disputed land from the previous occupant
of the Akumadjaye stool, & the plaintiff claimed title through the current occupant.
Counsel for the plaintiff argued that the onus was upon the defendants to prove by
positive evidence of occupation that the land in dispute was the identical land which the
stool had previously transferred. HOLDING: The defendant was in lawful possession of
the land at the date the plaintiff entered & attempted to exercise acts of ownership.
REASON: The existence of trees like mango or cashew on land overgrown with weeds is
prima facie evidence that the area where they are found is a farmstead, once under
cultivation by the person who now harvests their fruits.
Wuta Ofei v. Danquah
The plaintiff brought this suit claiming ownership of a given portion of land at osu,
christainsborg. She obtain an oral grant by custom from the osu stool and erected pillars
with her initials on them. She later obtained an indenture confirming the deed of gift of
1939. The appellant built on the land in 1948 and was sued for trespass and damages.
HELD: It was held by the privy council that possession need not necessarily be cultivating
on the land or developing the land but placing blocks at the four corners of the land was
sufficient possession though exiguous against one who never had a title to the land.

⦁ Note that this principle amounts to a presumption, which can be rebutted by

contrary evidence.

⦁ The subject can alienate so long as the obligation to recognise the allodial
ownership of the stool is preserved.
Total Oil Products v. Obeng

Thompson v. Mensah
The plaintiff claimed a declaration of title to a piece of land around Ring Road, Accra,
asserting that he acquired it as a grant from the Korle Webii (priest). The defendant
argued that he acquired the land as a grant from the Atukpai (Kotey???) family and was
in negotiation with the Korle Webii to perfect his ownership. The Kotei family was in
possession at that timeThe main issue is whether the deeds of the plaintiff conferred on
him a valid title.
Held: A usufructuary title can be transferred without the consent of the real owner
(allodial title holder) provided the transfer carries with it an obligation upon the
transferee to recognize the title of real owner and all the incidents of the subject’s right
of occupation including the performance of customary services to the real owner.

Awuah v. Adututu

⦁ However, when alienation is without the consent of the stool, it is only voidable,
not void and can be set aside only when the stool acts timeously.

Buour v. Bekoe
The plaintiff’s predecessor pledged the disputed land to the first defendant, who refused
to accept it & the 2nd defendant who like it, advanced the money & took the farm. In
the plaintiff’s predecessor attempt to redeem the land, the first defendant initially agreed
that it was given as a pledge for a loan but later alleged that it had been sold, & not
pledged. The plaintiff’s witness who was the linguist at the date of transaction deposed
that he witnessed a transaction of loan & pledge, & not sale. Therefore the consent of
the odikro was not needed & not obtained. No portion of the purchase price was paid to
the odikro, as would be the case in sale of land to a non-subject. HOLDING: On the
evidence, the transaction was one of loan and pledge and not one of sale and
conveyance of the land. REASON: *Sale of possessory rights in land by a subject to a
non-subject without knowledge & consent of the stool is voidable, not void. Therefore if
it is shown that the Odikro and the principal elders knew of it, but sat by and allowed the
purchaser, in the belief that he has acquired good title, to incur expenses to improve it,
the stool will be held to be estopped.

⦁ On the other hand the stool cannot make a valid grant of land in which a subject holds
the usufruct without the consent of the subject.

Total Oil Products v. Obeng Awuah v. Adututu Baidoo v. Osei & Wusu

Mansu v. Abboye
The plaintiff, a subject of the Yarbiw stool, sought a declaration of title to the disputed
land claiming that his ancestors had cultivated the land & it into possession. An attempt
had previously been made by the State Farms Corporation to appropriate land for
cultivation. Upon complaints by the co-defendant as chief & the town inhabitants, land
which had not already been cultivated was released. The plaintiff’s land was part. The
defendant, on the authority of the co–defendant then entered the plaintiff’s said land,
uprooted 215 wild palm trees and tapped them into palm wine for the co–defendant.
The defendant asserted that the plaintiff had lost any rights he might have had over land
when it was acquired compulsorily for the State Farms Corporation, & upon its release
was vested in the Chief of Yarbiw. Trial judge held for defendants & plaintiff appealed.
HELD: The allodial owner, without the permission of the usufructuary owner has no right
to the economic trees on any land which is in the possession and control of the
usufructuary owner, whether those economic trees were cultivated or grew on the said
land without the intervention of human labour. On the other hand the only title in land
which a subject can claim against a stool is the usufructuary title to the portion of the
stool land in his actual possession. Stool subjects in possession can only be dispossessed
of their usufruct in land with their consent or on proven and uncertified breaches of
customary tenure, or upon abandonment.

But compare opinion in Armatei v. Hammond

EXTENT OF BENEFICIAL USER AND ENJOYMENT OF THE USUFRUCT
⦁ Holder of the usufruct has exclusive right of possession and use of the land. There were
no restrictions on his use of the land—could be for farming or building purposes. Oblee
v. Armah, Mansu v. Abboye
⦁ The holder of the usufruct can maintain an action in trespass against the stool and can
impeach a grant made by the stool without his consent. Awuah v. Adututu
⦁ The subject was required to render customary services to the stool; it has been said
that this duty was not a consequence of the proprietary relationship between the stool
and a subject but rather by virtue of the political and kinship ties between them. In other
words, a subject who does not have a usufruct in community land still owes allegiance to
the stool.

INCIDENTS OF THE USUFRUCT

⦁ Right of Possession
It is a right in rem and exclusive and is a potential perpetual term allowing the bearer to
possess it for an indefinite period of time. It is potential because it is possible for the
term to end. This right of possession cannot be divested by the stool/family to another
party or for public purpose without the consent of the subject or stranger holding the
land. ROBERTSON v NII AKRAMAH, MANSAH v ASAMOAH, OHIMEN v ADJEI, OBLEE
v ARMAH

⦁ Use and Enjoyment

The owner is entitled to all economic tree he plants. However, the allodial owners are
entitled to all, trees growing naturally on the land. As regard natural growing trees, the
usufructuary can also use them for his personal purposes only. MANSU v ABBOYE

⦁ Right of Alienation
The title holder can grant. However, he cannot grant anything higher than what he holds
as this will result in adverse claim. The holder in his own accord can decide to grant a
lesser right or all of his right to another person. No consent is needed provided due
recognition is given to the allodial title in the transaction. THOMPSON v MENSAH,
TOTAL OIL V OBENG.

It is important to note that when alienation is without the consent of the stool, it is
only voidable, not void and can be set aside only when the stool acts timeously.
BUOR v BEKOE
⦁ Right to an Action in Trespass
The holder of the usufruct can maintain an action in trespass against the stool and can
impeach a grant made by the stool without his consent. AWUAH v ADUTUTU

NUNEKPEKU v AMETEPE
The plaintiffs brought an action against the defendant for the recovery of possession of
land & an order for the defendant to vacate the land. They claimed defendant was not a
member of the family thus was not entitled to occupy family land. The defendant
contended that he was a member of the family & therefore was entitled to occupy &
cultivate the disputed lands. HELD: An action for recovery of possession was a wrong
against possession, and therefore the main fact which a plaintiff must prove in order to
succeed was possession. But where, as in the instant case, the defendant pleaded
possession then it was incumbent upon the plaintiff to prove that he was in possession at
the time the defendant entered upon the land and wrongfully dispossessed him of it.

⦁ Heritability of the Usufructuary Title

It is well settled in customary law that the usufructuary interest is heritable. This means
that in the event of the death of the usufructuary holder, his interest will devolve on his
next- of- kin. MANSAH v ASAMOAH

⦁ Right To Compensation
In Owusu v. Manche of Labadi, it was held among other things that the subject of a stool
acquires usufructuary rights which did not derogate from the stool‘s dominion, and while
as such usufructuaries the subjects were entitled to a share of the compensation upon its
distribution in accordance with native custom. The stool was the proper authority to
receive the compensation.

⦁ Rights to Customary Service

The duty of the usufruct is to render customary service to the stool. These services were
eligible, not in consequence of proprietary arrangement between stool and subject, but
by virtue of the political and kinship ties binding them

LOSS OF THE USUFRUCT

1. Abandonment. Mansu v. Abboye
2. When the usufructuary denies the title of his grantors. Total Oil Products v. Obeng
3. Failure of successors. Mansu v. Abboye
4. By consent of the usufructuary. Mansu v. Abboye
THE NEW USUFRUCT
Woodman has argued that the rights enjoyed by the subject usufructuary have reached
a point where one can safely say that when a subject acquires the usufruct, it essentially
extinguishes the allodial title. Look above at the decision of Denning LJ in KOTEY v
ASERE STOOL. Look at the reasoning in AWUAH v ADUTUTU.

The usufruct has undergone some form of development. At the initial stage of
settlement, the stool was the absolute owner of all lands without any encumbrances on
its title. Every member of the tribe had equal rights to wander over and hunt upon the
land which belonged to the group. With the advent of settled agriculture, the members‘
right of user of the stool land i.e. right to occupy, till enjoy an unappropriated part of the
stool land. The customary usufruct was perpetual and heritable. It substituted as long as
the subject continued to use the land and will only revert to the stool upon
abandonment.

The customary usufruct underwent a second change with the advent of the tree crop
farming. Commercialization of agriculture led to commercialization of land and the
subsequent birth of an agricultural land market. The usufruct in stool land has matured
into a ―freehold‖ owing to the impact of modern economic and social phenomena. The
security of corporate or family holding as corporate entities has also followed the same
line of development. The usufruct, then as heritable and persists in perpetuity is seen to
assure security of tenure.

CONSTITUTIONAL AND STATUTORY INTERVENTIONS

Article 267(5) of the 1992 Constitution prohibits the grant of freehold in stool land. The
question that lingers is whether this article takes away the inherent rights of the subject.

In addition, Article 267(5) of the Constitution has implications for the customary freehold.
There has been some debate as to the full import of this constitutional provision,
especially with regard to the extent to which it affects the land rights of subjects of the
landowning communities and other customary freeholders. Taken at face value, this
clause could be taken to mean that all holders of the customary freehold of stool lands
and ‘strangers‘ are being turned into tenants of the chiefs. However, this interpretation
would impute to chiefs ownership rights that do not exist in customary law.

An interpretation of Article 267(5) as prohibiting the grant of customary freehold

interests in stool lands could empower chiefs to feel justified in issuing only leases even
to their own subjects, thus further eroding the rights of customary landholders and their
ability to resist re-appropriation of customary lands for ‘development‘ purposes by stools
which wish to cash in on the rising value of peri-urban lands. It has been strongly argued
that Article 267(5) should not be interpreted as an outright prohibition on the grant of
‘customary freehold in stool lands, and neither should the provision invalidate such
freehold where already declared, nor prohibit the registration of a land transaction
described as a ‘customary freehold‘, where the grantee or the transferee is a subject of
the landowning stool.

Kwame Gyan in his article, ARTICLE 267(5) OF THE 1992 CONSTITUTION AND THE
DEATH OF THE
FREEHOLD INTEREST IN STOOL LAND IN GHANA, provides the following as reasons for
his assertions:

⦁ First of all, it appears that the rationale behind Article 267(5) was to ensure some inter-
generational equity through the prohibition of permanent alienation and resultant loss
of stool lands in a manner detrimental to future generations of stool subjects. The grant
of or the existence of the ‘customary freehold‘ to stool subjects, is however, perfectly
consistent with the above-mentioned policy objective, as it ensures that perpetual
proprietary interests in land would vest in and inure to the benefit of the present and
future members of the landowning communities through inheritance.

⦁ Secondly, the operative part (the prohibited conduct or action) in Article 267(5) is shall
be created. Thus the prohibition does not apply to the subject of the landowning stool
because, among other reasons, the stool subject‘s entitlement to the ‘customary
freehold‘ is inherent and not conferred by an act amounting to a creation. The inherent
character of the subject‘s ‘customary freehold‘ in vacant stool land is an inextricable
component of the structure of the customary legal system. Indeed, there is ample legal
authority for the proposition that the necessity for an express grant from the stool is a
recent practice dictated by the exigencies of modern society, particularly, the need to
ensure orderly development of stool lands and to ensure their equitable allocation.
Further, the authorities agree that a request from a subject cannot be refused so long as
there is vacant stool land to be allocated.

⦁ Finally, Article 267(5) should be read and interpreted in the light of Article 267(1) of the
Constitution and subject to customary law and usage , which recognizes that the
subjects of a stool and for that matter a member of a family is entitled as of right to a
portion of vacant stool or family land and upon such occupation the subject or member
acquires the ‘customary freehold‘

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1 thought on “Usufructuary Interest”

BALQISU NGUAH
October 26, 2022 at 3:39 am

Very helpful

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