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Land Registration in Ghana: Past, Present and the Future

Published online by Cambridge University Press:  28 July 2009

L. K. Agbosu
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Extract

The establishment in the Gold Coast of commercial agriculture based on a permanent cultivation of the soil, the development of the mining and timber industries in the last two decades of the nineteenth century and the concession boom that these events carried in their train, created favourable conditions for capitalist development for which the private ownership of the means of production is a prerequisite. However, at that time the basic means of production in the Gold Coast, i.e. the land, was generally held in common and was not privately owned.

Colonialism, however, had the effect of establishing two systems of production in the country. The capitalist sector which became dominant was created at commercial and urban centres. The traditional communal system based on what, for want of a better term, one could call subsistence agriculture, remained at the periphery in the countryside. The dominant capitalist sector produced in its own image a class of property owners consisting of European, national and rural capitalists. Attempts by the latter to acquire lands to be privately owned gave rise to problems of insecurity of title. A machinery for land registration was thought to be the most adequate means of solving the problem.

Type
Articles
Information
Journal of African Law , Volume 34 , Issue 2 , Autumn 1990 , pp. 104 - 127
Copyright
Copyright © School of Oriental and African Studies 1990

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References

1 Ernest Dowson and V.I.O. Sheppard, Registration of Titles With Special Reference to its Introduction in the Gold Coast, London, 1946, Part I, 2Google Scholar.

2 Simpson, S. R., Land Law and Registration, Cambridge, 1976, 15Google Scholar.

3 The courts may however take the view that a later instrument can, by registration, acquire priority over an earlier one if it is obtained without fraud and without notice of an earlier unregistered instrument. See Souhail Grayem v. Consolidated African Selection Trust (1946) 12 W.A.C.A. 443Google Scholar; and Anyidoho v. Markham (1905) 1 Renner, 592Google Scholar.

4 Sir Robert Torrens, for example, defined the object of his pioneering South Australian Act to be the creation of “independent titles by cutting off the necessity for retrospective investigation of titles.” Quoted by Dowson and Sheppard, op. cit., 3. No reference was however made to its operative effects. See also Lord Watson in Gibbs v. Messer [1891] A.C. 248 at 254Google Scholar.

5 See Dowson and Sheppard, op. cit., 3.

6 By 1865 railways alone required over 13,000 tons of lubricants annually for truck grease in England, see McPhee, A., The Economic Resolution in West Africa, London, 1926, 31Google Scholar.

7 Ibid.

8 The response to growing demand for fats and oil in West Africa at the close of the eighteenth century is reflected in the increased export of the commodity. Three years after the formal abolition of the slave trade in 1807, export of palm oil in West Africa increased by 1,000 tons in 1810, by 2,000 tons in 1815, 5,000 tons in 1821, 10,000 tons in 18 30 and by 30,000 tons in 1842. See McPhee, op. cit., 32. The figures for palm oil export from the Gold Coast to the U.K. during the period are as follows:

Year Tonnage Year Tonnage Year Tonnage

1857 1,870 1860 843 1863 2,213

1858 763 1861 1,352 1864 4,144

1859 810 1862 1,974

See Kimble, David, A Political History of Ghana 1850–1928, Oxford, 1963, 2. 1Google Scholar.

9 Ibid., 22. Thus Robert Hutchinson, for example, claimed to be worth £60,000 in 1855. Ibid., 2. As early as 1837, James Swanzy was managing a coffee plantation on the basis of “pawned” labour. The estate was later purchased by Reverend J.B. Bannerman who developed it into a self-supporting Christian community and an agricultural training centre. See Kimble, D., loc. cit., 8Google Scholar. Similarly a group of Cape Coast traders brought in an American expert to advise them on planting 25,000 “cotton bushes”, and in 1864 the Basel Mission arranged the shipment of cotton grown in the Volta area. See McPhee, A., op. cit., 7.Google Scholar

10 In the last two decades of the nineteenth century, a large number of farmers migrated from Akwapim, Krobo and some Ga Communities to South Eastern Akim Abuakwa, where they obtained large tracts of land for the cultivation of cocoa. See generally, Hill, Polly, The Migrant Cocoa Farmers of Southern Ghana, Cambridge, 1963Google Scholar.

11 Prince Owusu Ansa, for example, devoted himself to the business of buying and selling concessions on speculative basis. In one transaction, for instance, he managed to obtain a lease of 200 square miles from a Chief of Axim, Kwaku Atta at £100 for a term of 99 years. This was in June 1894. Two years later, in October 1896, he disposed of his interest to a firm, William Frederick Reagan of London, for £800. See Sheehy, R. J. to Colonial Office, 26 10 1896Google Scholar, CO 96/269. Similarly, Dr J.B. Africanus Horton, who may be regarded as the pioneer of the business in land speculation by people of African descent in the Gold Coast, obtained 23 different concessions between 1878 and 1880 totalling over 200 square miles. In May 1882, he floated a Company, the Wassaw and Ahanta Gold Mining Syndicate Ltd. to which he sold his assets. He had an initial capital of £10,000 divided into 200 shares of £50 each. See Sir Griffith, H. B. to Lord Knutsford, received 24 07 1889Google Scholar, CO 879/46.

12 Naturally, the 1882 edition of the paper hailed this development as “wholesome to the core”. E.C. Grant, a proprietor of the paper, was the Chairman of the Company. J.M. Sarbah was a member of the Legislative Council and later became president of the Aborigines Rights Protection Society. Other Executives of the Company included G.E. Emisang, J.E. Sey, all prominent members of the African middle class. Apart from this Company in which Prince Owusu Ansa had interests, he established a base in London from where he sold his concessions.

13 Op. cit., 21–22. A classic example of this was the negotiation of the Adansi and Bekwai concessions. This famous concession which became known as the Ashanti Gold Fields Corporation was obtained from the Chiefs at £12 and a bottle of rum. The 100 square miles was acquired by J.E. Elis, J.B. Brown and J.E. Biney and sold to Mr Cade in 1895. The latter proceeded to London, invited shares and made a paper profit of £2 million even before any productive activity could start on the land.

14 By 1883 the basic wage in the Gold Coast was 9d. per day, and remained so until it was reduced to 8d. per day in 1930 during the great recession. Wages were raised by 3% in 1931. That is 1s. per day. This means within a period of 55 years wages rose by 3% only. See Woody, Jack, Africa, Berlin, 1963, 181Google Scholar. Referred to by Asamoa, Ansa, Classes and Tribalism in Ghana, Accra, 1985.Google Scholar.

15 For some discussions of religious aspects of land, see Busia, K. A., The position of the Chief in the Modem Political System of Ashanti, London, 1951, 40–42Google Scholar; Allott, A. N., The Ashanti Law of Property, Stuttgart, 1966, 139–143Google Scholar; Kludze, A. K. P., Ewe Law of Property, London, 1973, 105–107Google Scholar.

16 This was the problem described by McPhee as “the clash of an advanced civilization on comparatively unsophisticated peoples who, as in India, were in danger of losing their lands on the introduction of a commercial and monetary economy by the manoeuvres of concessionaires and money lenders, and accordingly needed protection as much against their own simplicity as against the cunning of others.” See McPhee, A., op. cit., 140Google Scholar.

17 In 1894, for instance, Sir William Brandford Griffith (Junior), suggested that lands in the Gold Coast, as in all other places under civilised governments, should bear the burden of taxation. As such it was better that the “wretched” system of traditional tenure be got rid of as quickly as possible before the mixed application of English law and native custom got things into an “inextricable tangle.” He considered the traditional system to be “inconvenient and debars any part owner of the land in respect of which there were indefinite claims from making most of the land.” He thus advocated the creation of freehold estates in the Colony. See Enclosure, No. 2, 29 08 1894Google Scholar, CO 879/46.

18 Hayford, J. E. Casely, Gold Coast Land Tenure and the Forest Bill: A Review of the Situation, London, 1911, 42Google Scholar. Emphasis supplied.

19 In his criticism of the abortive Lands Bill of 1897 Sarbah argued that the Bill sought to alter this “customary law of tenure under which the land owner is an absolute owner” See the Legislative Council debates, enclosed in Dispatch from Maxwell to Chamberlain, 19 08 1897Google Scholar, CO 96/295.

20 The series of disputes between the chiefs of Hieman and Mokwa which began in 1872 over the right to ferry over the river Prah and a piece of land provides a good example. At the time of its settlement by Sir John Yates in 1931, it was discovered that the chief of Hieman and his people spent over £20,000, having paid £12,000 to one legal practitioner and £8,000 to another. Yet at the time of the C.R. Havers Commission in 1945, the dispute still raged on. As the Report disclosed, the disputes between the various stools to whom the Ahafolands, a total area of 720 square miles, were presented by the Asantehene Nana Opokuware after the Abimburo war were never settled until 1939. See Havers, C. R., KC, Report of Commission of Inquiry into Expenses Incurred by Litigants in the Courts of the Gold Coast and the Indebtedness caused thereby, 1945, 31Google Scholar. The case of Nana Sir Ofori Atta v. Nana Kwaku Amon (1931) W.A.C.A. 15Google Scholar provides what may be regarded as the most frivolous and the longest legal dispute in the history of land litigation in Ghana. According to the Havers Report, Ofori Atta representing the Akim Abuakwa Stool, spent over £100,000 apart from other expenses which were not on record. Peter Greenhalgh, commenting on this case writes: “It was the development of the Akwatia Diamond Concessions and the Royalties paid that enabled litigation to be pursued with such vigour as far as the House of Lords, and involved the employment of the best lawyers in the country, who were the main beneficiaries of the estimated £200,000 spent on the case.” See “European and African Enterprise in the Ghanaian Diamond Mining Industry”, paper presented at African History Seminar, University of London, 1972/73 (SOAS) for further comments on this case. For land litigation in Ghana, see Luckham, Robin, “Imperialism, Law and Structural Dependence: The Ghana Legal Profession”, 1983 JLP 200Google Scholar; see his Tables at 220–221 showing land litigation as the main source of lawyers' income in Ghana.

21 For further information on other anomalies in the system, see the following: The Belfield Report of 1912, cmd 6278; Professor Shepphard's Session Paper No. 1 of 1936 on the Economics of Peasant Agriculture in the Gold Coast; Havers', C. R. Report of 1944, op. citGoogle Scholar.; The Report of the Committee of Agricultural Indebtedness, 1957; Proposed Reforms in Respect of Land Litigation in the Gold Coast Primarily in Order to Promote Security of Title, Vol. I & II 1927, Accra; and Rowe, R. H., “Cadastral Surveys Framework of Gold Coast Colony and Registration of Title to Land”, Memorandum of 15 12 1922Google Scholar.

22 See Hodgson to Chamberlain, enclosures, 16 05 1896Google Scholar, CO 96/273. Emphasis supplied. These problems were succinctly described by E.J. Bell in 1893 as follows: “The would-be concessionaire, who is usually a native with a certain amount of education, goes to the chief of the locality where mahogany or gold is to be found and, in exchange for a few pounds, induces him to affix his mark to a formidable-looking document which conveys to the concessionaire complete rights over a stretch of country, varying in extent from a few hundred yards square … to 30–40 miles in dimensions.” Quoted, by Ilegbune, Charles Udenze, British Concession Polity in Southern Ghana, unpublished Ph.D. thesis, London, 1974, 31Google Scholar.

23 The Registration Ordinance, No. 8 of 1883.

24 Lagos was then the administrative headquarters for Sierra Leone and the Gold Coast.

25 S. 5(1), (2) and (3).

26 See Dispatch from the Marquess of Ripon to Sir Griffith, W. B., 10 10 1894Google Scholar, CO 879/46.

27 Ordinance No. 1 of 1895.

28 See ss. 7–11 inclusive.

29 Op. cit. The definition of such land unit is that which has been referred to as cadastral survey, a survey relating to boundaries and sub-division of land. It involves a survey of land depicting boundaries with accuracy and showing the exact measurements by which boundaries may be demarcated. In the Gold Coast, the law required that plans or maps made on the basis of such surveys should be carried out by an official surveyor and should be approved by the Director of Surveys or by a competent person appointed by him. See the Survey Ordinance, 1922 (cap. 132) 1951 Rev. s.2; see also the Survey Act, 1962, Act 127.

30 Higgins Report of 6 06 1882Google Scholar, CO 96/144.

31 Minutes of 6 01 1909, CO 879/109Google Scholar. The only information the Registrar was able to give was that between 1889 and 1909 over 4,500 instruments affecting lands were registered in the Colony. The extent of land area affected was not indicated.

32 This Committee was appointed in 1912 to investigate Land Tenure Systems of British West Africa. It sat until 1914 and its Draft Report was ready in 1916 but was never published.

33 Draft Report of the West African Lands Committee, 1916, para. 157.

34 See Secret Dispatch from Maxwell to Chamberlain, 19 08 1897, CO 96/295Google Scholar. See also Maxwell, to Ripon, Dispatch of 19 06 1895, CO 879/46.Google Scholar

35 The Land Development (Protection of Purchasers) Act, 1960 (Act 2) and the Farm Lands (Protection) Act, 1962 (Act 107).

36 Memorandum on the clearing of Clouded and Unmarketable Titles in Land in the Gold Coast and for the Institution of a System of Land Registration, 11 1954Google Scholar. Quoted, by Bentsi-Enchill, Kwamena in his article, “Do African Systems of Land Tenure Require a Special Terminology?” [1965 J.A.L. Vol. 9, No. 2, 114, at 135–6Google Scholar.

37 Conveyance is denned as including a transfer of land by customary law, showing that oral grants are also covered by the Act.

38 S 1(1)(a).The Act takes retrospective effect from 31 12 1944Google Scholar.

39 S 1 (1) (b)

40 S 1 (1) (c)

41 Quoted by Kwamena Bentsi-Enchill, see his Ghana Land Law, London, 1964, 272Google Scholar.

42 The Act now applies in the whole of Ashanti, Brong Ahafo, Southern Ghana comprising the Western, Central, Eastern and Volta Regions. But the city and urban areas of Accra, Kumasi, Cape Coast, Sekondi-Takoradi, including local council areas of Ada, Anlo North, Anlo South and Tongu have been excluded. See L.I. 23 03 1962Google Scholar.

43 Emphasis supplied.

44 A land transaction is ineffective until it is registered in the manner prescribed by the Act. See section 24(1). The inference to be made from the decisions of Odoi v. Hammond [1971] 1 G.L.R. 375Google Scholar; Asare v. Brobbey [1971] 2 G.L.R. 331Google Scholar and Ameftnu v. Odametey [1977] 2 G.L.R. 135Google Scholar is that the courts understand section 24(1) to mean that an unregistered instrument is invalid and of no effect which implies that no legal consequences can flow from it. But a contrary view was taken by the Court of Appeal in Ussher v. Darko [1977] 1 G.L.R. 476Google Scholar and Ntem v. Ankwanda [1977] 2 G.L.R. 452Google Scholar where the court seemed to suggest that an unregistered instrument is not necessarily void. In this view exceptions can be made in respect of some unregistered instruments so that rights could be acquired through them under certain circumstances. Even though Ntem v. Ankwanda was doubted and was not followed in Aryitey v. Mantey, Court of Appeal, 18 12 1984; digested in [1984–86] G.L.R.D. 65Google Scholar, it was subsequently followed in Mechanical Lloyd Assembly Plant Ltd v. Nortey, Court of Appeal, 31 07 1985; digested in [1984–86] G.L.R.D. 49Google Scholar. For the discussion of the cases see Agbosu, L. K., “Registrable Transactions”, (1980) 12 R.G.L. 166 at 172–175Google Scholar. However, , Hammond v. Odoi [1982–1983] G.L.R.D. 127Google Scholar, S.C. would seem to have resolved the conflict in favour of the Odoi v. Hammond and Asare v. Brobbey line of cases.

45 In exercise of the powers conferred on the minister by Legislative Instrument to bring the Act into force on such a day as he may appoint, the Minister brought into force the whole Act by the Land Registry Act, 1962 (Commencement) Instrument (L.I. 124) except Part IV. The Lands (Miscellaneous Provisions) Act, 1963 (Act 161), s. 4 confirmed the authority of the Minister to bring only part of the Act into force. Thus when the Land Registry (Commencement) Instrument, 1965 (L.I. 45) brought into force Part IV of the Act on 1 May 1965, ss. 20(a) and 20(b) were excluded.

46 Bentsi-Enchill criticises this as being a serious defect in the system that in a country whose indigenous law requires no writing for valid transactions concerning interests in land, it makes no provision for recording parol dealings in land in accordance with the customary law. See Bentsi-Enchill, K., op. cit., 310Google Scholar. It should be pointed out, however, that this weakness has been overcome to a large extent by the effect of s. 8(1) of the Land Administration Act, 1962, Act 123 and Part I of the Conveyancing Decree, 1973, N.R.C.D. 175Google Scholar.

47 Emphasis supplied.

48 Dr Woodman has already, in an illuminating discussion of the Law, referred to its essential features, highlighting the way in which its provisions affect the customary land law. For a fuller discussion of the Law, see his “Ghana Land Registration Law, 1986” [1986] J.A.L. 119Google Scholar.

49 S. 6(2).

50 See s.43

51 This is evident from the way in which commodity production at the periphery is organized on the basis of cash crops, mainly cocoa, to satisfy cocoa processing industries in the metropolises to the detriment of the production of staple foods to feed the majority at home.

52 See n. 14.

53 This is evident from the recent proliferation of rural banks in the country. There are signs that attempts are being made to strengthen the position of the rural capitalists by encouraging individuals or groups of individuals to undertake farming on capitalist lines, and the rural banks are intended to boost this development.

54 S.K.B. Asante, for instance, believes that the evolution of the customary law interest into a freehold is not necessarily incompatible with the trusteeship idea, a belief which is essentially an ethical justification of property. See his Property Law and Social Goals in Ghana 1844–1966, Accra, 1975, 31Google Scholar.

55 See The Law Reform Commission's Report on proposals for the Reform of Land Law, 11 1973, 7 and 13–14Google Scholar. See also K. Bentsi-Enchill, op. cit., chapter 9.

56 The Administration (Northern Territories) Ordinance 1902, cap. 111 (1951) Rev., ss. 5 and 7; The Land and Native Rights Ordinance, No. 1 of 1927 and the Land and Native Rights Ordinance, 1931, cap. 147 (1951) Rev., all had the effect of vesting lands in the “Northern Territories” in the government. For a fuller discussion of this see Agbosu, L. K. “Land Administration in Northern Ghana”, (1980) 12 R.G.L. 104–155Google Scholar

57 By an Order-in-Council of 1901, Ashanti was formally annexed to the Gold Coast as a conquered territory and by the Administration (Ashanti) Ordinance, 1902, (cap. 110) 1951 Rev., s. 4(1) Kumasi Town Lands, about three miles radius from the centre of the town, was vested in the Crown.

58 It is believed that the Ivory Coast has overtaken Ghana in cocoa production in the last four or five years. It is however possible that this situation has been brought about by smuggling of the cocoa from Ghana across the borders into the Ivory Coast and Togo.