AREA OF LAW PRINCIPLE & AUTHORITY

INTRO There has been said to be 3 basic categories of property;

a. Immovable property e.g. real property, real estate and realty
b. Intangible property
c. Tangible property

IMMOVABLE PROPERTY
Section 46 of the Interpretation Act 2009 (Act 792) defines immovable
property as land.
Section 45 of the Conveyancing Act 1973 (NRCD 175) also defines
land as land covered by water, a house, building or structure, and an
interest or a right in, to, or over land or water.
These statutory definitions seem to be very myopic and thus the need for
a more encompassing definition of land.
Land can thus be understood in 3 ways;
a. It refers to things which are by nature permanently/perpetually
affixed/attached to the land, which cannot be easily removed or
transported
b. Things which are attached to the land by man (artificiality
improvements e.g. buildings) and these also form part of
immovable property provided said structures are attached
permanently
c. Things which are beneath the land (in the womb of the earth)
and appreciable height of the lands airspace, and the land itself
Thus, in a comprehensive manner, land can be explained as the entire
planet and the things which are permanently by nature affixed thereon
(minus the oceans and seas) and therein or thereunder as well as things
which are artificially but permanently constructed/affixed thereon by
man.
What then is immovable property law?
This refers to those legal or equitable rights, interests, benefits or
privileges associated with immovable property which is defined or
governed by law. i.e. the right that deals with ownership, leasements,
privileges, interest and benefits and how they are regulated and
circumscribed.
Features of Immovable property
1. Permanence
2. Fixability
3. Provides man with livelihood
Forms of Immovable Property
In economic or political economies, there are 3 broad forms of
immovable property;
a. Personal/Private property
b. Public property/ Public lands
c. Communal/ Collective property

Types of Interests in Immovable property

Interests in land refer to ownership. Thus, what kind of ownership
legally and equitably exist.
a. Tenancy in Severalty
Here, ownership is exclusively and solely vested and defined in an
individual or legal or corporate entity. It is an interest which any person
(legal or otherwise) can have in land solely and exclusively.
b. Tenancy in Common
Here, ownership is vested equally or unequally in 2 or more persons at
the same time and this property is inheritable i.e. one or more properties
are vested in 2 or more people either equally or unequally. The share one
has in the property can be inherited by his beneficiaries if the person so
wills it.
c. Joint Tenancy
This exists on 4 basic principles;
i. All the owners of the property have a common legal interest
which is not divisible amongst or between them. The
interest is single and they all own that single interest
ii. They all have equal possessory rights which is also not
divisible. They all have common access to the property
iii. Time; All the owners receive the interest at the same time
from the same transferor
iv. All the owners have their interest from a common indenture
i.e. one document transfers the interest to them by a
common transferor or guarantor.
NB: in the case of Join tenancy, they all own the property as if an
individual does and subject to survivorship. i.e. when any of the owners
die, the property is bequeathed to the remaining survivors and the
beneficiaries of the dead join owner cannot inherit the property. This
goes on till all the joint owners die save one of them who can then upon
his death transfer the property to his beneficiaries because upon his
surviving, he then becomes the sole owner of the property. However, the
death must naturally occur and none of the owners should have a hand in
the death of any of the joint owners since such a person who has a hand
in the death of a join owner would loose ownership and the dead person
would be presumed alive thus his beneficiaries would inherit the
property even if the murderous joint owner is alive. Also, where the
Joint owners die simultaneously, the formula would be that the older
would be presumed to have died first before the younger and thus the
younger would be deemed to have the last survivorship and the
beneficiaries of the younger may then inherit the property.
d. Ownership of Cessation
Here, the interest is possessed where one can use his interest to destroy
the property i.e. the right to destroy one’s property.

TYPES OF LANDS IN GHANA

a. State/Public Lands: Article 257(1) of the 1992 consitution
b. Private lands
c. Stool/ Skin/Communal lands
d. Family/ Clan lands
e. Individual Lands

TYPES OF INTERESTS IN LAND IN GHANA

a. Allodial interest
b. Customary freehold (the determinable/ usufructuary
 interest
c. Common law freehold
d. Leasehold
e. Lesser interest eg tenancies (abunu and abusa categories)

WHO ARE THE OWNERS OF ALL IMMOVABLE PROPERTY

IN GHANA?
There are 2 schools of thought championing this question. On one side is
argued that all lands in the country are owned. Proponents and adherers
include Ollenu, Bentil Enchill, Woodman, Mensah Sarbah, Justice Smith
and Bruce Hendil.
On the other hand, is Prof. Kludze who is of the opinion that the first
school of thought is not based on research or judicially based. He claims
that in the Volta region, there are lands who did not and probably still do
not have owners.
If all lands are owned, who then are the owners of these lands in Ghana?
a. The state/ The government of Ghana
b. Stools/ Skins
c. Families/ Clans
d. Private entities
e. Individuals

OBLIGATIONS OF MANAGERS OF LANDS IN GHANA

Since we know who the managers of lands in Ghana are, it is impetus to
know what their obligations are. We would thus take each of the
managers in seriatim;
 PUBLIC LANDS
State and vested lands fall under the category of lands generally referred
to as public lands.
Public land have been explained as “any land which, immediately before
the coming into force of this Constitution, was vested in the Government
of Ghana on behalf of, and in trust for, the people of Ghana for the
public service of Ghana, and any other land acquired in the public
interest, for the purposes of the Government of Ghana before, on or
after that date”
1. Article 257(2) of the 1992 constitution
Public interest has been defined as “any right or advantage which inures
or is intended to inure to the benefit generally of the whole of the people
of Ghana”
2. Article 295(1) of the 1992 constitution
Thus, from the definitions, public lands are lands which have been
compulsorily acquired or taken possession of by the government for
public purpose, interest or for the benefit of the people of Ghana and
such lands are vested in the government as trustees for the benefit of the
people of Ghana. Not only lands compulsorily taken or acquired under
the 1992 consitution but lands previously acquired or taken and vested in
the government before the coming into force of the 1992 constitution all
form part of public lands.
Anytime a land is compulsorily acquired, it is done by the lands
commission and the AG prepares the relevant EI which vests the land in
the government as the trustee and the people as the beneficiaries.
The power of the state to compulsorily acquire land is limitless.
However, for the compulsory acquisition to be valid, it must have
conformed to some constitutional and statutory validity requirements
laws which are spelt out in Article 20 of the 1992 constitution and in the
State lands Act 1962 (Act 125) as amended in (Act 586).

COMPULSORY ACQUISITION
Property ownership is a fundamental right strictly protected by law
under Article 18 of the 1992 constitution, but there may arise at times,
legitimate public concerns which may override private ownership of
property. The underlying principle therefore is the State’s control over
people and their private property which may be needed for providing
land for public and social amenities thereby correcting agricultural,
economic, social inefficiencies and infrastructural disequilibria in private
market operations with the primary view to providing greater equity and
social justice in the distribution of land and land resources generally. But
for compulsory acquisition to be valid, it must be in conformity with the
provisions of Article 20 of the consitution

How has the powers being limited by the constitution?

The government cannot acquire any land without adhering to Article 20.
The government in acquiring any land must adhere to Article 20 lest
rendering the acquisition invalid.
Article 20(1) provides that no property of any description or interest in
or right over any property shall be compulsorily taken possession of or
acquired by the State unless the following conditions are satisfied; i.e.
the requirements for a valid compulsory acquisition include;
a. the taking of possession or acquisition is necessary in the
interest of defence, public safety, public order, public morality,
public health, town and country planning or the development or
utilization of property in such a manner as to promote the public
benefit.
1. Article 20(1)(a) of the 1992 constitution
Thus, the government ought to spell out what particular public interest
for what the compulsory acquisition was effected.
2. Section 1 of the State lands Act 1962 (Act 125)

b. the necessity for the acquisition is clearly stated and is such as to

provide reasonable justification for causing any hardship that
may result to any person who has an interest in or right over the
property
1. Article 20(1)(b) of the 1992 constitution
There must be a necessity clause so as to justify the acquisition.

c. The compulsory acquisition of property by the State shall only

be made under a law which makes provision for the prompt
payment of fair and adequate compensation and a right of access
to the High Court by any person who has an interest in or right
over the property whether direct or on appeal from other
authority, for the determination of his interest or right and the
 amount of compensation to which he is entitled
1. Article 20(2)(a) and (b) of the 1992 constitution
2. Section 3 of the State Lands Act 1962 (Act 125)
It is the lands commission that is responsible for the payment of said
compensation
3. Section 4 of the State lands Act 1962 (Act 125)

d. Where the person is displaced as a result of the compensation,

the state shall resettle the displaced inhabitants on suitable
alternative land with due regard for their economic well being
and social and cultural values
1. Article 20(3) of the 1992 constitution

e. The property compulsorily acquired in public interest or for

public purpose is to be used only in public interest or for the
public purpose for which it was compulsorily acquired
1. Article 20(5) of the 1992 constitution
2. Armah v Lands Commission
When the government acquires any piece of land for any purpose stated,
there are some consequential effect that can reasonably be seen as
supporting the reason for the acquisition though not falling squarely in
the reason for acquisition. Thus, it is prudent to look at it in the context
of the services provided whether they make the enjoyment of said public
purpose complete
3. Nii Niikoi Olai Amontia v MD GH Telecom

f. Where the property is not used in the public interest or for the
purpose for which it was acquired, the owner of the property
immediately before the compulsory acquisition, shall be given
the first option for acquiring the property and shall, on such
reacquisition refund the whole or part of the compensation paid
to him as provided for by law or such other amount as is
commensurate with the value of the property at the time of the
reacquisition
1. Article 20(6) of the 1992 constitution
2. Armah v Lands commission

JUSTIFICATIONS FOR COMPULSORY ACQUISITION

a. The need to provide social and economic amenities such as
hospitals, schools, police stations, markets, airports, harbors,
roads and other uses for the overall benefit of the society which
are unlikely to be privately and affordably provided
b. Balancing the economic, social and cultural benefits and
ensuring a good overall environmental balance such as between
recreational space, housing, public services and economic
activities. Compulsory acquisition may be used to achieve this
efficiency by guiding development, redistribution and
redevelopment of land to more desirable purposes thereby
limiting urban sprawl and unnecessary encroachments on
agricultural lands thereby achieving economies of scale and
least-cost of production of public services.
 c. The search for greater equity and social justice in the
distribution equilibrium of land and land resources generally in a
society e.g. where the land has been used for a non-profitable
purpose, the government may compulsorily acquire said land,
and redistribute it so as to be used in a way that benefits the state
as a whole e.g. compulsorily acquiring a private school and
converting it into a public school.
d. Article 20 provides some measure of legitimacy or justification
for compulsory acquisition e.g. public defence etc.

PROBLEMS OF COMPULSORY ACQUISITION

a. Non-payment of compensations and those that are paid are
really delayed: Some of the compensations years past have been
paid and even those that are paid, takes so much years and effort
before affected persons are paid. E.g. affected persons of the Bui
dam areas have still not been paid
b. The economic and social consequences that may be incidental to
the acquisition of the land are sometimes not well assessed by
the government before acquisition. Some negative and social
consequences like increased in armed robbery would be avoided
if the acquisition is properly assessed before effected and
unfortunately that is rarely the case
c. Some of the acquisitions are dormant. Government acquires the
land and leaves the land there unattended and abandoned leaving
people to encroach the land and leave it unhealthy to the
detriment of the original owner from whom the land was
compulsorily acquired who may have not even been adequately
compensated or even compensated at all. And this amounts to
injustice against the original owner of the land
d. The Lands commission who are constitutionally mandated to
take control and care of public lands are also dormant and not
making due on their mandate. If they had, lands acquired by the
government would not be left dormant and left to the occupation
of innocent others who due to lack of knowledge buy these lands
and have their buildings later levelled without any compensation
when the government eventually comes for the land.
e. Some lands are acquired in excess of government needs.
f. Sometimes the government does not complete the acquisition
process leaving the status of the land unknown.

STEPS THE GOV’T TAKES IN COMPULSORY ACQUISITION/

PROCEDURE FOR ACQUISITION UNDER ACT 125
The Section 1 of Act 125 empowers the president to acquire any land as
a public land when it appears to him that said acquisition would be in the
public interest. In so doing, there are steps that are to be taken to effect
this acquisition. The State Lands Regulations 1962 (LI 230) and its
subsequent amendments (1963 LI 285 and 1966 LI 520 and 1968 LI
591), lay down the procedure for acquisition of lands as follows;
a. At its beginning stages, a number of events transpire. The
particular government institution (hereafter referred to as the
institution) requiring the land liaises with the lands commission
 to ensure that the land has not already been encumbered for
other public purposes. The Department of Town and country
planning (DTCP) on the other hand ensures the acceptability of
the proposed use, whilst the institution contacts the Survey
Department (SD) in order to obtain an approved site plan of the
land
b. The institution then applies to the Regional minister, supported
by 16 copies of the approved plan covering the site
c. Upon receipt of the application, the Minister then constitutes the
appropriate Site Planning Committee (The Committee) under
Regulation 1(2)
d. Appropriate notices in the form set out in Form 1 in the 1st
Schedule of LI 230 and signed by the District Chief Executive
(DCE), is served on any occupant of the land and in appropriate
cases on the traditional authorities of the area
e. The Committee then inspects and surveys (by taking samples of
the soil) to determine its suitability or otherwise for the purpose
of the acquisition under Regulation 2(1)
f. Before entry unto the land however, every member of the
committee per Regulation 2(2)(a) must be in possession and
produce if so required a written authorization by the Minister to
enter the land for inspection and survey in the appropriate form
specified in the 1st schedule of LI 230
g. During the inspection, the Committee captures the details of the
current situation on the site, including such matters as any
developments on the land, the state of the neighboring properties
etc.
h. In considering the suitability of the land, the Committee is to
take into account the existence of any alternative land that could
be used for the purpose without any acquisition (i.e. already
acquired public lands) Regulation 3(2)
i. After the inspection and survey, if the Committee considers the
land suitable for acquisition, the Lands Commission makes a
preliminary estimate of the value of the land together with the
development thereon for submission, together with the approved
recommendation of the Regional Minister.
j. The regional lands officer then makes sure that a detailed report
on the deliberations and subsequent inspections if any of the
land is kept
k. The Institution, for which the acquisition is made is then to
make a deposit of an amount equivalent to the preliminary
estimate of the value of the land to the Lands commission or
alternatively show evidence of and a firm commitment that the
funds are available in its approved budget for the period in
which the acquisition was made to ensure prompt and adequate
compensation in compliance with Article 20(2)(a) of the
constitution and Regulation 3(1) of LI 230
l. The recommendation of the Committee is then be submitted to
the Regional Coordinating Council (RCC) for the approval of
the Regional Minister Regulation 4 of LI 230 and
m. When approved, the plans together with the report and other
 attachments, namely the interim valuation certificate or a written
undertaking by the owner of the land concerned that he/she will
not claim compensation, are forwarded to the Regional Lands
Commission (RLC) for onward transmission to the Head Office
of the Lands Commission for finalization Regulation 5 of LI
230
The completion of the acquisition process entails
n. Acquisition plans are drawn by the Records and Drawing Office
in liaison with the Director of Surveys
o. A draft gazette is drawn by the Legal department of the Lands
Commission in liaison with the AG’s department
p. A draft notice to show that the final user provision is for
government service rather than for a specific government
institution
q. A final draft cross-checked against the plans by the Records
Section and forwarded to the Executive Secretary (ES) for final
submission to the Hon. Minister of Lands and Forestry
r. A gazette notice for execution by the Minister of Lands &
Forestry.
s. After this, an Executive instrument is published in accordance
with Section 2 of Act 125 as amended by AFRCD 62 1979.
The Requirements of the EI as provided by Section 2 of Act 25 includes
a copy of the instrument;
t. be served personally on a person having an interest in the land,
or left with a person in occupation of the land, and
1. Rockson v Agadzi
u. be served on the traditional authority of the area in which the
land is situated and that authority shall request the chief to notify
the people of the area concerned, and
v. be affixed at a convenient place on the land, and
w. be published on 3 consecutive occasions in a newspaper
circulating in the district where the land is situated and in any
other manner directed by the Lands Commission.
1. Rockson v Agadzi

x. The EI is then gazetted

The final stages then involves
y. Indexing and plotting of the EI by the Records and drawing
section of the Lands Commission and
z. Allocation of the land to the appropriate government agency by
the Lands commission.

EFFECTS OF COMPULSORY ACQUISITION

Once the provisions of Act 125 and Article 20 are satisfied, the title to
and the interest in the land compulsorily acquired, automatically vests in
the president in trust for the people of Ghana without further assurances,
free from any and all encumbrances. Thus, the effect of a successful
compulsory acquisition is that, it extinguishes all previous ownership in
the land and consequently the government acquires an indefeasible title
to the land free from all encumbrances. Once acquired, formal control
and management are thereby transferred to the government or the
particular agency on whose behalf the land was compulsorily acquired.
NB: it is interesting to note that payment of compensation is a crucial
step in the acquisition process, a failure to pay the compensation does
not in anyway invalidate the acquisition since the Act 125 does not
stipulate the time for the payment of the compensation.
However, the land owner can within 6 months from the date of the
publication of the EI maintain a claim for compensation
1. Section 4 of Act 125
And where the person is dissatisfied with the compensation given by the
Lands Commission, can apply to the High Court for determination of his
rights and interests
2. Section 3 of Act 125
Also, where notice of acquisition of property is published in the gazette,
a subject with an interest in the property has no right whatsoever after
such publication to transfer title to the land, the subject matter of the
acquisition to anyone without the consent of the government.
Accordingly, any purported conveyance of the property by the former
vendor to anyone without the antecedent consent of the government shall
be void irrespective of the fact that the conveyance is registered with the
Deeds Registry.
3. Mensah-Moncar v Chainartey

NB: If the land being acquired is a stool land, then the appropriate law to
be used is not Act 125 but rather Act 123
1. Section 1(1) of Act 125
2. Section 1 of Act 123
3. Gyamfi v Owusu