Full transcript of “SPECIAL GHANA LAND LAW REVISION WITH HIS LORDSHIP SIR DENNIS ADJEI , JUSTICE OF COURT OF APPEAL”. Click a timestamp to open the video at that moment. Need another video? Use the YouTube transcript generator.
0:02 you know uh so i'm not bringing the students in so that that's
1:07 very cool my lord okay now so students a very good afternoon to you i have to repeat myself because the problem with the uh the the initial uh commencement so as i told you this afternoon we are very privileged to have seasoned well-respected tourists and horrific
1:53 writer on pertinent topics of ghanaian law whose works have been cited by supreme court and by other superior courts of educator in some other position and bureaus academics researchers and students now he is a fellow ghana academy of arts and sciences the very respected intellectual uh in switching and recently he gave his recently he gave us again
2:38 [Music] as far as trends in ghana are concerned hey recently until recently he was a professor at the ghana gimpa school of law in a dean of ghana impasse school of law is a prophet a visiting professor to so many universities including calm and common racial science and technology now he is the director of the judicial training institute and he is also served as a facilitator of beerus
3:24 uh training session for judges academics and practitioners he has been knighted the highest honor which can be given to [Music] uh a lay person within the catholic church by uh his holiness uh the pope the vicar of christ the roman pontiff so that is why he has said attached to his name and for that matter i am very privileged to have had his lawship justice said denis dominic aj to have accepted the accepted the invitation to [Music]
4:10 and speak to us at this moment when you are preparing to write an examination so i'm very happy to welcome joseph sir professor dennis domnick aj to our virtual class my lord you're very much welcome my lord are very much welcome a lot please my life your mute yourself good yes thank you doctor anderson dr invited me to come and assist in his tutorials and i couldn't say no so the only answer was
4:56 yes that is why i'm with you this evening i'm going to say you are welcome most grateful my lord and my lord there before you came you've actually be using your material uh yes for the revision so i'm happy that you are here you are safe once my lord is here uh my lord i will hand over to you and then uh you take over and tell us all that you want us to hear especially last we go and write the exams on tuesday thank you very much thank you my brother dr nesul my my respected brother said that i'll continue to be the the director for the judiciary training institute i hand it over to my brother that is mafusang who unfortunately passed on last week oh man so rest in peace sorry my lord sorry
5:44 servants it was a brother and friend yes yes yes very sorry yes so we are discussing land law in ghana when we talk about land the definition of land is notoriously new we are talking about the earth things on it including rivers river bodies and waters and when we talk about land in ghana we are talking about several laws that will create land in ghana when we talk about um the status of general application common law
6:31 and common law which is made up of for the purposes of landlord when i talk about customer landlord i'm talking about principles of um common law customer law and our traditional um cosmetic law so when we talk about laws on land it is important that we go back to the supreme court ordinance of 1876 when the supreme court ordinance of 1876 was passed in ghana for the british to take care of her colony the condition was that all the english statistics including common law and equity which were enforced in britain
7:18 as far back as 1874 were to become part of our laws so as that now we continue to have principles of equity common law as part of our law quite often people ask why do you continue to talk about some laws which were made in 1539 such as a such as the the trustees act the the english crisis act of 1859 1840 why do you continue to use them we continue to use them because they are part of english status of general application and if you read section 117119 of the course act it tells you that 10 of the english status on land continue to form part of our laws
8:05 including the the english property act of 1925. there are some provisions not all of them so if you pick them the course act go to sections one one seven one one nine you will find the laws which are enforced they are english status but they continue to form part of our law and india only 10. the first cubic acts the trustees out of it of of 1539 drastic of 1540. please we are not talking about the whole section for example if you talk about the the trashies act of 1539 it was one section one to 120 but now we are left only sections one and two i just want you to understand the
8:50 background why in land matters we refer to cases um which are increased loss because we continue to have some of them as part of statues of general application then apart from that one we all know that the constitution is the supreme law on the land it outlines article 18 will tell you that you have a right to acquire property you have a right to acquire property then article 20 will tell you that government can acquire property if government is a current property government may buy a land government may receive land as a gift but if government requires land in a prime area for setting up
9:36 industries buildings for public use nobody will be ready to to request our interest in that plan to the state that is why if you look at article 20 he talks about compulsory acquisition when we talk about compulsory acquisition we are talking about the eminent domain the eminent domain of the state to acquire any land that the state requires in the public interest for public use or for morality for time and country planning once it is within article 20 then the state can acquire it by paying reasonable fair and prompt compensation
10:22 so and if you move on to article 266 267 of the constitution article 266 of the constitution talks about normal citizens of ghana so what i want you to understand is that whenever we talk about landlord in ghana the constitution draws a distinction between a citizen of ghana and non-citizen of ghana and when we talk about citizen of ghana you all know variety of the constitution as well as the citizenship act you know a citizen of ghana and the law is that if you are not a citizen of ghana you cannot acquire interest in land exceeding 50 years at any one time and article 266
11:09 cross one specifically says that where a non-citizen of ghana acquires an interest in in land which is freehold which is freehold it has void abner issue which is freehold it is void up in issue so having mentioned this freehold let me now start and introduce you to what we mean by interest in land interest in land when we talk about land we have two things in land you may have an interest in land or right in or right over land so it is interest against rights you have a writing or right over a land or you may have an interesting land when we talk about an interest in
11:55 land we are talking about we are talking about an interest interest which is capable of being owned that is it can be described as ownership that you own that land that you own that land if it is not capable of being owned it will not come under under the definition of interest it may come under the definition of a right so let's look at the interest that we have in ghana the interest that we have in ghana they are only um there are only six the first one is a logia title and the person who rules is the elodia
12:40 owner a lawyer title is held by an allodia owner then we have number two a customary law freehold customary law freehold i will explain them then we have number three a common law freehold then we have number four it's a factual interest you subfractuary interest then we have a leasehold interest then the sixth one customary tenancy customary tendency let's look at the first one a lawyer interest
13:27 it is the highest or ultimate interest in land that a person may acquire it is the highest or the ultimate interest in land that a person may acquire and if you read or remain very essential and the ancient cases we were told that a larger interest could be acquired by a stool or skin a stool or scan crime or family or an individual you have to understand what you mean by a stool or a skin a stool or skin and it's legal effect when we talk about as we talk about
14:13 a stool or a skin our brothers and sisters in the northern sector they use skin and those from up to the coast they used to and we say that when we talk about s2 a store is a corpora it's a corporate soul a stool is a corporate soul with capacity to seal and be sealed and capacity to own and acquire interest in land and divest its interest in land if you read a manga because it's a manchester it defines what a stool means and the capacity of s2 so s2 is a corporate soul with capacity to seal and be sealed and capacity to acquire land and alienate
14:59 land and as we all know when we talk about s2 s2 must be occupied by somebody always we need a chief to occupy a stool the definition of definition of achieve if you read article 2 7 7 of the constitution a chief includes a queen mother a chief includes a grey mother so when we talk about s2 we talk about both male and female stools both males and females tools and they can own interest in land and traditionally when we talk about these tools we talk about the scans how did they acquire land their pride land number one true conquest and settlement
15:44 conquest and settlement they will conquer you then they settle they conquer you then they settle number two they acquired through pioneer discovery and settlements pioneer discovery pioneer discovery some test writers who mentioned contests hunters are part of pioneer are part of pioneers so pioneer discovery includes hunters they will go and discover they will come and inform their store we found a virgin land it is uncultivated then they still may go and settle its people on that land so when you settle somebody in a virgin land and the land have not been acquired that means you acquired the highest
16:30 interest the ultimate interest in that land and that is what we call the elodia interest then the stools may also acquire through gifts or purchase or agreement so traditionally traditionally a load their interests were acquired by the states through conquest pioneer discovery and settlement gifts purchase or agreement then stools and crimes also acquired land when we talk about families we know families it is then um the the new classmate of people so you may have paterna or maternal patient or material name system but if you have
17:15 three or more two or more families coming together that's where we have something we call a crime so it is aggregation of two or more families then we call it a crime so a crime here quite a land is a family may apply land or even individuals also acquired land but the individuals there wasn't any conquest they did not fight so they would go and discover and they settled or some of them are quite true gifts and some of them true purchase or agreement so traditionally when we talk about bodies capable of acquiring a lawyer interest we refer to the stool or skin crime family or an individual but now
18:01 because of compulsory acquisition the land act says that when we talk about alodia interest the state also has a lodia interest and the states acquires its allow their interest through compulsory acquisition gifts and purchase but how many students would agree to to sell their highest interest in their land to the state they will not that is why the state has the power to compulsory acquire land that is what we call the eminent domain of the state to compose acquisition once a land is compulsorily acquired then the state has the highest interest in land so if you have a land let's
18:48 reuse a dose of abuses too then the government requires part of a business tool for either railways trump we or any other thing that will benefit the whole country the government is required to comply with article 20 of the constitution and compulsory acquire the land please there is a distinction between exploration and compulsory acquisition export pressure means the government has used its eminent domain to acquire land without pre-compensation but in ghana the constitution requires that expropriation should not be used but rather compulsory acquisition that fair and prompt payment shall be paid and if it is not paid any person who is
19:35 dissatisfied may seek redress in the high court please in terms of composite acquisition if compensation is not paid or the adequate compensation is not paid or reasonable amount is not paid as compensation a person whose land has been acquired may secretly dress in the high court it is the high court which has exclusive original jurisdiction so that is the composite acquisition so now when we talk about allodia interest in ghana the state owns about 20 percent of the lands in ghana through compulsory acquisition so whenever government applies land now you lose any interest that you have so i zoom in i use absolutely
20:21 so if government applies a password of land activism government will pay for that a lot here or a logia interest you pay for all those with lesser interest and at the end of the day government holds the highest interest in the land what is there hello so now if you look at the the land act section two and we are talking about a larger interest composite acquisition has become one one of the moves by which the state can use to occupy a larger interest now i mentioned as preparation at times there is this question which people find it difficult to appreciate why is it that the 1992 constitution article 266 refers to
21:08 1969 22nd of august 1969 and says that all those non-citizens of ghana who acquired land who who acquired land in ghana in excess of 50 years had their interests converted from whatever interest to a term of 15 years at any one time and you continue to even pay a rent but that rent is peppercorn peppercorn means peppers corn how much how much does it cost useless you just pay just um just the smaller screen as we be quoted by the state for you to be just to to to to recognize that the state has become your your lasso
21:55 what i'm saying here is the 1969 constitution came into force on 22nd of august 1969 and when the law came into force what the law did was that all non-citizens of ghana who had freehold interest their interests were converted by law from freehold to leases of maximum of 50 years so assuming somebody had a lawyer interest and the person was not a citizen of ghana on the coming into force of the 90's in my constitution that interest converted to a lease of 169 a list of 15 years and the government of ghana will become your lessor and you'll be there let's see less so let's see the person who who is
22:41 creating a lesser interest in his freehold to a person is known as lasso and the person who is benefiting from their interests with limited interest is known as the lessee so here i'm talking about lesson and let's see so that the 1992 constitution only re-emphasized re-emphasized the position outlined in the 1965 constitution that all non-citizens of ghana could not acquire any interest exceeding 50 years at any one time and all those who had automatically conversion from the freehold to 50 years if it were at least it converted from if it were 80 yes 17 years on despite
23:27 the interest automatically it became 50 years interest so article 266 of the constitution only re re-affirmed the position outlined in the 1969 constitution and the dick people normally asked why 22nd of august because the 1969 constitution came into force on 22nd of august 1969 and all those who they're not citizens of ghana who had interest in land at that time their their 15-year lease which was it it was as preparation because they were not they were not giving any any any compensation if i have a land a free home then you pass a law to change it to 15 years and and i become lse and
24:14 you become my lasso you have taken advantage of me it it was an ex operation and the 1992 constitution only it just restates what was in the 1969 constitution so that is title let's move on to the second interest second interest in land please the second and the third you can use they can be used interchangeably depending on how you may present your case so in in some textbooks they will talk about customary law freehold customary law freehold and others may be used there too as common law freehold any of the two it doesn't take away
24:59 anything because all of them we call them derivative interest why do you call them derivative interest they are derivative interest because they derive their source from alodia title they drive their source from a ludia title and it is therefore a derivative interest it is a derivative interest now let's look at customer law freehold my my dear students please that there was a confusion between customer law freehold and insufficient interest they were used interchangeably by some test writers but some some test writers also insisted
25:45 that there was a distinction so the land act at 10 36 has drawn a distinction between customer law freehold and it's a factual interest so assuming you are asked they are two different things now they are not the same so disregard any textbook that said that the two the two were one and the same there are no more one and the same section three of the land asked talks about cash my law free rule squad section four sorry section five talks about who subfactory interest so let's look at the second one all the time that's the case may be customary law freehold customary law freehold it is derived from a lawyer interest and
26:32 it must be acquired in accordance with customary law it must be acquired in accordance with customary law please landlord you must understand your constitutional law very well when we talk about when we talk about customary law customer law is not the same as custom there is a difference between a custom and a customer law when we say a custom a custom is the practice or practices of a particular community but when we say it is a customary law we are saying that it is a custom of a particular particular community which has become law that means it has been enacted into law that is one mood one method where
27:19 there is a custom and the customer is enacted into law it becomes a customer in law no more a custom or the second one where there is a custom and there is a judicial pronouncement on that custom a judicial pronouncement on that custom by a superior court such as the original tribunal the high court the court of rp and the supreme court whenever whenever one of them pronounces upon a custom it ceases to be a custom and becomes a customary law that is why we say that a customer law is a question of law and not the person of fire why do we say that it's a question of law if it's a custom and it is enacted into law and there is a law it is a question of
28:06 law or where it is pronounced upon by a superior court it is a court of record you can just refer to it that is why in 1960 in in 1960 that was before 1960 the position was that cosmic law um was was a question of fact but now a customer law is a question of law because you will find it in a decision rendered by a superior court please a decision rendered by a lower court remains remains the question a custom and not a customer law because they are not cause of record so if you read article 11 sources of law you will find it when it mentions the common law of ghana and it says the common law of
28:52 ghana increase the rules generally known as common law rules generally known as equity and customer law including those determined by the superior court that is the rationale so if you are talking about a customer law then we are talking about a question of law you may find it in the decision or an enactment a decision rendered by a superior court or an enactment so here we talk about customary law freehold what we are saying now is that a person who is not a subject who is who may not be a subject may acquire a land outright from the store or skin or a clan or family which holds the alleluia title
29:38 you go you negotiate you acquire then you take it that was the position and and that transaction was made in accordance with custom once the transaction was made in accordance with custom and you are quite absolutely interested in the land then the position was that you have acquired customary law freehold and one thing we must know is that customer law freehold is perpetual it's perpetual and it is inheritable the features it is perpetual it is alienable it is inheritable you can give it out without informing the elodia owner but it is your interest which is being given out but you cannot
30:24 alienate that of that ludia owner you alienate your interest in the land they coexist and as as i said before the constitution which came into force on 22 august 1969 i'm talking about the 1969 constitution prostrite i'm saying prescribed p r o s c c-r-i-b-e-d aborigines prescribed freehold interest that is customer law freehold impressed by a non-citizen of ghana they mentioned high constitution prescribed it and converted it to a list of 15 years let's look at the third interest which
31:09 we call common law freehold you may call it second or third because the two of them they derive their root from the allodia title when we talk about common law freehold what we are seeing is that a person acquires an interest in land which is perpetual free from every obligation and it is acquired in accordance with common law the the acquisition was made in accordance with common law and you acquired it absolutely that is why the name common law free rule when it was customary law and it was absolute it was casual law freehold so when we talk about where people acquired land absolutely and the
31:54 alienation was made in accordance with common law it became known as common law freehold and it is of perpetual duration it is upon setting but because it is common law freedom we must know that when you talk about common law freedom it exists in three forms common law freehold exists in three forms the first one is what we call fee simple fee simple meaning you have acquired it there is no limitation there is no restriction you you apply it absolutely then there is a second one which we call fetal fetal means it is absolute but subject to air
32:41 condition so where a land is given to somebody and his nephews and that person dies and the person did not leave behind the nephew that means it will go back to the alodia owner so here here that interest is subject to having that you surviving you so it becomes affiliated then the third one is what we call life interest somebody may alienate a land to you that take it so far as you live so if you live up to 170 years you'll take it but immediately you you die your interest becomes extinct so when we talk about how we talk about common law free who it exists in three forms feel simple
33:26 absolute fear subject to other conditions then life is interest it is up to you if you die it ends there so if you eat yourself somebody may buy but immediately you die it will go back to the allodia owner then the acquisition of common law freehold interest in respect of stew and skylands were also prescribed by the 1969 constitution they were prescribed so all non-citizens of ghana who held common law field lost them to a lease of 50 years at any one time subject to payment of peppercorn rent to the president of the republic of ghana acting for and on behalf of the republic of ghana
34:18 we've been talking about a citizen of ghana a citizen of ghana but if you read the constitution you read the citizen act it talks about human beings human beings but if you are talking about every prince of those things we know that they are regretted by by international law what about companies in ghana they were not provided for they want they were not provided for so the position was that before the coming divorce of the land act on 23rd of december 2020 the position was that companies which had foreign interests could not acquire any interest exceeding 50 years but this position has changed section
35:05 10 section 10 sub section 10 section 10 10 16 10 10 of the land acts at 10 36 has now defined a company or corporate body who is not a citizen of ghana so if a company or corporate body in ghana has less than 40 40 percent of equity shareholding 40 percent of equity shareholding or ownership itself by non-citizens so where non-citizens hold 40 percent it is permissible but but when non-citizenship less than 40 percent
35:52 then it is it is it is not it is again any company so the test is when we are talking about a company or a corporate for the purposes of land acquisition that it is again in that it is again in then we are talking about where the word the company or the body corporate it's not a citizen if more than 40 percent of the equities or ownership is sell by non-citizens the 40 percent so any company with foreign interest of 40 or more is not a ghanaian company and cannot acquire interest exceeding 50 years at any one time
36:38 and cannot acquire interest exceeding that one at any one time now let's move on to the the other interest whose factual interest was to fracture interest whose factory interest under the old law under our old law whose refractory interest was acquired by a citizen as a subject of a stool a subject of a skin a member of a clan a member of s2 which sorry a member of a family which owes a load their interest in that land then by virtue of being a subject of the stool you cultivate that is what uh um farming and before then career case
37:25 that was where where it was held at where your catholics would take you so the lazy persons they are quite only small portions but if you are quite a larger person you will they could cultivate but any person that you cultivated became their their land and the recent case of active upon verse is at ibrukusu upon upon versus artillery it was a virgin land then uh a subject of the two said that yes it is a virgin land but it takes for us we are subject of those two and it is for us and when he traveled to the supreme court the supreme court heard that yes if you are if you are a subject of stu you are a member of a family and that family orders to post a load their
38:11 interest you cannot hold interest in their land until until you enter you cultivate so if you do not cultivate it will still remain the property of the allodia holder so if you if you were a subject of that school you should be owned by the stool if it were acquired by the family it will be owned by that family so it is very very important so when we talk about now under the land act when we talk about section five there are two moves by which institutional interest may be applied the first one is what we knew that if you you exercise your inherent rights as a subject of a stool or skin or a member of a family or crime who chose
38:58 the alleluia title and you cultivate if you contribute you acquired that land and under the old regime the law was that you could go and cultivate without express grant but on the coming into force of this land act you need express permission the old law was that you did not require permission but the act is that now if you are going to acquire it now you need permission of the family or whoever or whoever now the second mode of acquiring the second mood of acquiring who's the factory interest is where a person
39:44 acquired land through settlement a person who goes an apply land through settlement for a period of not less than 50 years for a period of not less than 50 years with the permission of the holder of analogia title when they are non-indigent when they are not when they are non-indigent where they are non-indigent or group of not indigent they come into your land they ask your permission you permit them do you cultivate the land for 50 years they settle on the land in that essence they also acquire used to fluctuate interest in the land so now there are two moves by which the subfracture interest may be applied the first one is where a subject
40:29 offers to a skin or a member of a family or crime exercise is inherent right to cultivate part of the land then you acquire an interesting land and that interest that you acquire is what is known as the usual fractured interest and inspiratory interest is inheritable and alienable it is inheritable and and alienable the only exception that has been introduced by the land act is that if non-indigent acquired institutory interest and that person is alienating the land then he requires the written consent of the stool or the skin or the kind of family which gave him or heard the land if non-indigenous or group of non-indigenous acquired land
41:17 they acquired with actual interest by verity of the of settlement for a period of not less than 50 years if they want to alienate the land they require their written consent of the stool or the skin or the clan or family or group which owned the alleluia interest in the land then the next one is what we call the leasehold so please before i talk about lisu in ghana when we talk about freehold interest freehold interest means interest which are not constrained by time interest not constrained by time and the interest not constrained by time they are alodia title customer law freehold common law freehold and inspiratory interest these
42:05 four are the freehold interests that we have in ghana apart from this one then we move on to an interest in land and interest in land which is limited or constrained by time and interest in land which is constrained by time and that is what we call a leasehold a leasehold peace whenever we talk about elisha we are saying that somebody has an interest in land and that interest is one of the three goals interest you could be a lawyer it could be customer law it could be common law freehold you could use practical interest and that person is going to create a lesser interest for example 16 years 17 years 40 years 15 years it is constrained by
42:52 thai to another person so if i have a land if i have a spiritual interest it it is indeterminate so i can create a lesser interest country by time in that sense if i am observatory in dress holder or common law freeholder or customer law free holder and i want to give somebody 50 year interest in my land the new agreement because i am a freeholder i will be the lasso and i'm going to create a number of interests in your favor and you become the lessee so that is why we have at least oh that is why we create a lesson and let's see so whenever we have the lesson and the lesson the lasso will has
43:38 one of the three host interests and he is creating an interest in land which is limited by time in favor of somebody who is referred to as the the lessee and if you read uh we have implied covenants between the lesson and the lessee that you know in pride covenants they are very very important but for the purposes of your examination i will talk about few of the implied covenants between soul and lacies then the implied covenants between the electoral and delicious will find them in section 51 section 51 of the land act 1651 of the land act 50 and 51
44:24 50 and 51. section 50 is the impressed covenant by transferor in pride covenant by transferral and 51 is implied covenants by person to whom transfer is made what we what we knew was that when a person applied land at common law or the previous under our previous laws when a person applied land we had implied covenant and express government in pride covenants where the covenants introduced into into that into
45:11 the transaction by law whether you like or not it has been introduced by law then express covenants are those which are not part of the implied covenant but you want to take advantage of them then you bring them as expressed governance under the old regime the position was that if and not if a person held a structural interest in land and the land fell into outskirts the land fell into outside the elodia owner could not early unit without your consent but that position has been changed as a result of the implied covenant section 50 subsections 20 and 21 11 22 1650 subsections 20 21 and 22 of the
45:58 land act 1036 they put you know uh the case of what team versus menu it is in 19 um it is in 2007 2008 supreme court ghana report where they do so decided to alienate a land occupied by another predatory interest order because the land had fallen into our state the supreme court heard that no it is the usufrack owner who must add in it but the position has been changed by section 50 substance in 2021 and 22. the position of the law now is that where the elodia title holder requires that law requires a land occupied by antusufra for expansion for
46:44 expansion of a town or settlement for expansion of a town or settlement or for the purpose of serving the community interest then the unami acquired the land and when that alleluia acquires the land the condition is that he must give the person 40 percent of the props or 40 percent of the market value of the land so now it is a modification to the old law it has modified the old law now the elodia owner will sell when the land falls into ascri and the land is required for expansion of a town or for settlement that is one of them now let me talk about customary tenancy
47:31 customary tenancy as i said cosmetic law is part of our law so when we talk about customary tenancy what we are seeing is that we are talking about tenancy regulated by custom and has been accepted as the true position of the law and has been accepted as the true position of the law at at custom their position was that the the position was that any person who had a land particularly a lawyer interest
48:16 may enter into an agreement with attendance for the tenant to cultivate the land for the tenant to cultivate the land and if the land is cultivated at the end of the day they must sell their produce they must say it is the sharing of the produce of of the farm the sharing of the produce of the farm or process from the farm please it was a custom and it it had 10 judicial pronouncements so it became a customer law so in most cases where the parties agreed that after maturity they were practicing the land the court held it was offensive to cosmonaut law because customer law knew of sharing of produce of a farm and
49:02 not physical partition of the farm priest this one has been changed the customary the customary tenancy who says that is limited to only the sharing of the produce of a farm has been changed so the law now is that by section seven section seven of the land act the law now is that they can agree on rent the law now is attitude contract it has become a contract and if it is a contract then they may agree they may agree on payment of rent or the sharing of the produce of a farm the the old one it is a contract so now they can still talk about it or they can physically petition
49:48 or severance of the farmland they can participate also via the farmland so it is no more the sharing of the produce of a farm but now it is physic but but they may agree on that one or they may agree on rent or they may also agree on physical partitions or severance of the farm this is section seven section seven before i talk about people with capacity to alienate let me draw your attention to this fact it is very very important in ghana as i as i said earlier in 1876 when the supreme court ordinance came
50:33 into force part of the law that we have we inherited included common law and common law at that time said that a person a person under 21 years was an infant and the english people changed yes in 1956 through the family law act but we haven't changed ours so in ghana when we talk about infants we continue to have infant as a person under 21. please there is a clear distinction between a child and infant a child is a person under 18. if you read the
51:19 constitution or the children's act but an infant has has not been defined because it was a common law which we which we inherited but now some laws are changing this some loss in ghana for example under the company's act now when you say an infant an infant is a person under 18 years it is no more under 21. then the land act has also changed who is an infant in landlord so so now in ghana infants a landlord infant in company law we are talking about persons under 18 years a number 21 but apart from company law apart from land law and apart from section 18 of the course at
52:05 when when we are appointing a guardian to maintain the affairs of of a person under 18. when we talk about infants we are referring to 21 but when it is land law when it is company law when it is an appointment to maintain a child then for the purpose of of these three laws when we talk about infants we are talking about person under 18 years so always understand and draw that distinction so now if you are not of 18 you cannot apply land in your name if you are not of 18 you cannot acquire land in your name if you are not of 18 and you want to acquire land you acquire land in the name of a proprietor and the proprietor will hold it in trust for you
52:52 the proprietor will hold it in trust for you now we have talked about the various interests in land let's look at who can i lead it and those who cannot alienate these are the the important aspect of law whether it's through land it could be it could be alodia you could be customer there's no law freehold common law freehold usa factual if it is a student or skinny land who can alienate who can alienate the law is settled that alienation of stu land by the occupant of the school alone is
53:38 void alienation of stool land by the occupant of the stool alone is void alienation of stone land by the eldest of these two alone is void alienation of students must be made by the occupant of these two with their consent and concurrence of the eldest of these two priests when we talk about school lands we talk about elders we talk about principal members when we talk about family lands so when we talk about alienation of students a valid alienation of students is made by occupant of the school with the consent and concurrence of the eldest of these
54:24 two if you read the case of now your time is almost up but but i'll mention and and and explain to you if you read the case of appear in t appear a p p i e hyphenated in g appear in g verses a series two reported in 2017-2020 supreme court gunner law report 2017-2020 supreme court gunner law
55:11 report the supreme court has held that alienation of student alienation of students by the occupant of the stool alone is void by the eldest of the two alone is void by the occupant of these two with half of the prince half of the eldest of the two is valid so when you get the occupant of the stool where you get the occupant of the stool who alien is with the consent of majority of the eldest of those two it is valid so the position now is that if it is made by the occupant of this two alone it is void to appear in cbs is assuming stew has settled this matter soon
55:58 spelled e s s u o w i n e s s u o w i n then in some reported cases they use they use s appear in g versus acena a k y e n a depending if if it is mr adara's report he uses acena that is the name of the name of the occupant of essence too so now where an alienation is made by by an occupant of history and that occupant gets half of the eldest it is valid if the occupant of the stool does not get half of the eldest it is invalid
56:46 and another principle that has been enunciated in the association is that odukru a person responsible for a town cannot alienate a land without declare authorization from his overlord anu deku a person responsible for a town cannot alienate a land without an authorization from his overlord actually that was the position that was that was the customer law position but the course gave several meanings but now it has been settled in the assumed stew soo's case so we are talking about is two what about if the stew is vacant where the occupant of the store has died what do we do as we said among us is cherry 1960 report 1959
57:34 report s2 is a corporate soul with capacity to seal mbc as to exist forever these occupants may come and go but the soon will be dead or until maybe through another anonymization now now there is no war we are not going for war so stools will be there forever but the occupants will come and go the occupants will come and move so where the stool is vacant where the stool is vacant and the person decides to alienate what happens you need either their agent or a caretaker who is a regent a regent a regent is a person who has been authorized by a custom that in the absence of the chief you ask in the absence of the achieve you act
58:20 when we talk about aquatica a caretaker is appointed by the elders of the stool for example in kumasi where asante is not the man he is the automatic regent he will never become a santani but he is the regent whenever there is an assante name mam pongini ceases to be the regent but we're assuming there's no man pointing and there are no beaches they may meet and decide and get a category so whether it's a legend alienation can be made by the regent but you need a consent as we discuss in the student school now let's move on to family or clan lands when we talk about family land the position is that family land is for those living
59:10 those dead and those are born so always every family must have a head of family which will whom we normally refer to as every opening head or family now the the position that has been settled is that krampus versus fusu where there is no head or family that maybe the head of family has been removed he has died there is no head of family then the eldest man member of that family is presumed to be the the head of family the eldest male member of that family is presumed to be that is for supervisor the ratio enunciated in that case now who can alienate family land
1:00:01 who can eliminate family land family land shall be alienated by the head of family with their consent and concurrence or with the ascent of the principal members of the family so here when we talk about priests it is very very important look at the distinction so that assuming you get in any one of them in their objectives you would appreciate when we talk about head of family when we talk about head or family we are saying that if we are alienating family land we require the head of family to act with the consent and concurrence of all the principal members of that
1:00:49 particular family but here there is a proviso or there is a condition here where an alienation is made by the head of family alone where alienation is made by the head of family alone it is avoidable not void but if it is two and it is made by the occupant of this two alone it is void but where an alienation is made by it's made by the head of family alone it is voidable and not void it is voidable and not void there are several cases including andrews versus a4 andrews versus a4 nintendo 2
1:01:35 it it's a three ghana law report it is one of them usually one worker it is one of those it is one of those cases but juan and jenny juan and yani provided fun and yeah it provided the more to see and not the move to aliens quan and yenni provided the mood the mood by which the family may bring an accent to protect family property but when it comes to alienation when it comes to alienation or alienation or acquisition it is the
1:02:22 head of family together with their together with their principal members of the stool if it is and if alienation is made by the occupant of the sorry the head of family alone it is vulnerable and not void only like stools these are the decisions that that you must appreciate then having talked about these alienations let's talk about who can see who can steal and be sealed on behalf of students please there is a distinction between acquisition and maintaining an action here we have discussed acquisition we are moving on to maintaining an action
1:03:08 how do we maintain an accident in respect of zoolander as i said you know manchester city is a corporate soul with capacity to see you and be seen so as to may see you and deceived in respect of still land but the high concept will proceed their rules provide that under circumstance use the name of the occupant of the stool to initiate the action for example you will state that um maybe a giant chief for himself on behalf of sacramento school let everyone know that you are the occupant of these two and you are bringing the action for and on behalf of the school so that is how as to maintain an action but if it is a
1:03:55 family land the law january is that it is the head of family who can sue and deceive but please that was the common law position the head of americans will nbc but their decisions and one and yearly plan and hearing 1959 law report changed the position it did not change it except that it provided exceptions because where the head of family is willing to deceive and the family is losing its property should they sit down because of um because of anachronistic customary law practice and the answer is no so quant and yenni provided several
1:04:42 exceptions quant and yemi provided several exceptions in the exceptions we are talking about where the family property is in danger and being lost then a principal member may see where or where where there is division in the family and the head of family is responsible for just one of them then any member any principal member of that family may also see because we have five or six divisions you are the head but you belong to one division so if it happens to the land in relation to the other five other five divisions he may not show interest so in that sense any principal member of that family may see
1:05:28 that is one of them then it also talked about special circumstances special circumstances for example where they pray where the hell the family has personal interest maybe maybe you are litigating with them with the uh the sister or brother of of the wife of the head of family he will not be willing to see so in that sense the law permits any principle member to see but there has been an ambition that the high possible procedure rules has introduced another move the high possible procedure rules has introduced another move the high court civil procedure rules has
1:06:13 introduced another mood and what it says is that any member of the family can now see any member of the family can announce you that is order that is any member can see but if you see you must you must state why you are seeing why you are not a principal member you are not head of family and you are serious and in that sense you you state on the rate that a copy shall be served on the head of family so this is the exception now so when we talk about who can sue and be sealed on family lands these are the people that we talk about these are the people that we are interested now let's look at other modes
1:06:59 of acquisition of land other modes of acquisition what are the other modes of acquisition number we've talked about composite acquisition in terms of government then you talk about we talked about um war but now there is no war so you cannot go and conquer somebody and take that person so that one is out now but traditionally it was one of them if you read a j versus or him or human it is one of them but now when we talk about most of acquisition most of acquisition number one expertise purchase or agreement purchase under the old law the conveyancing act it was regretted by the conveyancing act but now purchase of
1:07:44 land is regulated by the land act how do you acquire a land you must be of 18. if you're not of 18 then you need somebody to act on your behalf and in that sense the property will be acquired in the name of the of the proprietor and the person whose appearance but under 18 will be the beneficiary so the property so the the proprietor who hold the trust we hold the property in trust of that infant who is a person under 18 now a person under 18 now now under the old laws if you read some of these cases um
1:08:37 there was a strict position that whenever a person bought a land whenever a person bought a land their customary rights were to be performed then they demarcate the boundaries the demarcated boundaries they brought their boundary owners then their customary rights were paid for if if it were not performed it was invalid but the court used judicial decisions to override that position and come on versus odor hormone versus order categorically stated that once the once the purchase was valid there was no need growing by the strictest sensor customary practices you could ignore them
1:09:26 so that is one of them so see when we are talking about a sale we talk about the parties they must be at them the normal contract i said that it is contract but when it comes to land it is regulated by the land act because there are some things that will prevent normal contract but when it comes to land it will it it will not make sense for example where we are talking about consideration under normal contracts and you think that oh yes but in landlord where consideration is we are not interested in sufficiency we are not interested in in adequacy we are interested in market value so where that where the price did not go for the market value but anything lesser and the person says that the
1:10:12 property was was acquired unconscionably the court would would invoke the unconscionable principle or unconscionable background principle to set it aside then you talk about gifts another mode of acquisition we talk about gifts in terms of gifts we have to know and we have to need we have to know and we have the need they do not they do not is the person who has property and is giving it out to their the knee they do know is the person who has interest in land and he's giving
1:10:57 out his interest in land to the knee that is the law and duny now they don't know must own the land please bear in mind in land matters we always insist on nemo that could have non-habit if you don't if you don't have you cannot give so you must have land before you can align it so if a person has a land and the person decides to give out the land to somebody how is it done that is what we mean by gifts what we mean by gifts so here we need to know we must know the property and we must know that donate do not donate then the property we must have them once
1:11:43 we have the good law then we have the donate and we have the property then the next thing is that the property must be given to the but they don't know their property must be given to their donation but they don't know then there must be there must be thanksgiving please we are discussing immovable property we are discussing immovable property so where a customary law gives is made and you do not accept in the presence of witnesses it is deemed that you have rejected the offer you have rejected the offer so every customer law gift must be followed by aseda
1:12:30 they don't know they do know must provide customary drink to accept the gift must provide to accept the gifts to provide if you read the case of bonnie versus bonnie 1992 and the three ghana law reports bonnie versus bonnie 1992 and the trigonal report 779 it is clear on it that if it is not accepted it is deemed to have been rejected then the locus classicals yogo versus y-o-g-u-o yogurt versus egypt
1:13:17 1966 general report in this case too the supreme court discussed that you need independent witnesses then there must be assad thanksgiving the answer that can be anything the acid that can be anything but it must be giving and must be accepted if it is not accepted then that means it has been rejected there is no varied assad it must be given and must be accepted now let's look at some few uh cases and exceptions sesame see s-e-s-c basis scnc cc basis cc
1:14:05 1984 86 dana law reports 1984 it is ghana law report in this case the the courts restated their customary law position on gifts please listen this one is very important the law is that a gift from they don't know to the duny is irrevocable once a gift is made it is perpetually irrevocable a gift is made and thanksgiving is offered and it is accepted it is perpetually invokable but a gift from a parent to a child can be revoked at any time a gift from a parent to a child can be revoked
1:14:50 at any time even in that person's work so assuming i gave a house i gave a house to my child and three years time i sell the house my my child will tell me this one it has been it has been gifted to me so you cannot their customer law position is that a gift once made is irrevocable but a gift from a parent to a child is perpetually revocable now there is an exception it is perpetually revocable so what will happen what will happen where you have where the property has been has been gifted to a child and the child has spent so much to develop the property and the parent
1:15:35 the mother or the father revokes the property what will happen this happened in the case of kofi taboori kofi kofitaburi t-a-b-u-roi coffee taboo appeals my brother mathewson of blessed memory he delivered the lead opinion what he said i was on the panel what he said was that
1:16:20 yes their customary position is that a gift from a parent to a child is perpetually revocable but people should not be allowed to enrich from their wrongdoing so if you give a house to me and i develop the house and you are allowed to come and take it over for me that means it amounts to an unjust enrichment so where a property is given to a child and their child develops the property substantially then it becomes irrevocable even though it was from a parent to a child once the person has spent so much on the property it will amount to fraud if their parent is permitted to revoke it so that is what we are discussing here on what we are discussing here on
1:17:08 a gift please i will jump because i don't want to confuse you let me jump and discuss another aspect of gift this one is customary law gifts then when we talk about common law gifts we call it advancement common law gift is known as advancement so let's discuss common logic we have now discussed counseling law gift and we are saying that once it is made it is irrevocable but a gift from a parent to a child is perpetually revocable subject to their child spending so much money on the property then that's why it could be unconscionable energy to amount to unjust enrichment for the parent to revoke such a gift now the irony is that
1:17:53 when we talk about advancement please listen advancement is very important when it it is required common law gifts we have discussed customer logic so let's discuss common law gifts common law gifts when you talk about advancement what is an advancement advancement means where a man advancement we only mention a man we don't mention women where a man buys a property in the name of his child or buys property in the name of his spouse where a man buys property in the name of that man's
1:18:39 if a man buys property in the name of that man's uh child or that man's wife then we presume it is an advancement it is a common law gift from a man to his wife from a man to his children these are the only instances where where advancement is created unlike customer law gifts where a friend can can give a property you can even give the property to to an enemy it doesn't matter but when you talk about advancement so advancement it is an aspect of trust when we talk about trust we are saying that somebody has bought a property in the name of another person and he has asked that person
1:19:25 to take care of that property for him so whenever he needs it he will come for it so whenever in in law we talk about trust we are looking at two owners we are looking at a beneficiary owner who is also known as equitable owner what do you call the beneficial owner an unequitable owner equity sees a beneficial owner as the owner of the property equity since the beneficial owner as the owner of the property and the person whose name the property is bought is known as the legal owner so if a property is bought in the name of somebody that somebody is the legal owner because the property is in his name but the person who provides the purchase money but the person who provides the purchase money is the beneficial owner or the
1:20:11 owner the true owner of that property the true owner of that property and some of them can be expressed some of them can be can be resulting for example if dr usudapa has has some money with me well that is notice i use that one to to buy land to build on the land it isn't my name but who owns the money that was used to apply it it is doctor so in that sense it will go back to him so here here even though the property is in minded i bought it i did not use my money if we go into the person who provided the money the purchase money and we do tracing we will trace it to the doctor
1:20:58 and it's also the sudapa so i will be the legal owner and and and who be the the beneficial owner and the beneficiary owner or the equitable owner is the true owner of the property and not the person whose name the property has been applied now so when you you buy property in the name of anybody it is a trust but if you buy a property in the name of a child a man buys property in the name of a child or a man buys property in the name of a wife it creates advancement an advancement is common law gift and once it is made it is irrevocable once it is made it is irrevocable you can rebut it from two angles their batter is a bit technical but i'll take
1:21:44 time to explain for you to understand if a man buys property in the name of his children or a man buys property in the name of his wife what we are seeing is that it creates advancement but if a wife buys property in the name of the husband it is a trust if a child buys property in the name of the father it is a trust so where a man buys property in the name of the wife or in the name of his children or persons it stands in local parents that is where we talk about advancement that is where we talk about advancement now understand circumstance if the owner every person that man is saying that yes i bought it in your name
1:22:30 but it is not for you record presumption of advancement how do you rebut the presumption how do you rebut the presumption we rebut the presumption from two angles where there is evidence that before the man bought the property the man informed people that i am buying this property in the name of my child i'm buying this property in the name of of my wife but it is not for for them or she here there should be a publication before the acquisition of the property that i am buying it in your name and it is not for you and the second one is that at that time
1:23:16 the property was being bought contemporaneously contemporaneously when the property was being applied he notified or informed people that i am buying this property in the name of my wife i'm buying this property in the name of my child but it is not for him but how many people know of this law they don't know so they buy property in the name of their wife they bind the name of their child so once it is bought it becomes advancement you cannot rebut it you know the difference here is that outcome if it is by custom cosmetic law a gift from a parent to a child is perpetually revocable but in terms of in terms of advancement once it is brought in the name of their child you create presumption and the two grounds that you can rebut it that is before the purchase
1:24:02 i told you i told people or contemporaneously at the time of the purchase if you are unable to prove that the child takes it absolutely and this happened in the case of in the case of we have several cases but i will limit you to the recent uh if you read versus true versus tomb 1976 ghana law reports it was well discussed it was well discussed that if you read rhema rhemia versus lemia
1:24:50 1981 law report it was well discussed it was well discussed but the the recent decision is in chroma versus richards and chroma nk reum chroma versus richards r-i-c-h-e-l-d-s where a man brought property in the name of his three children one of them died then subsequently the man died then the wife of the man applied to the court for early that it was the property of the man because the man managed the property throughout throughout his lifetime but when it went to court the question was the man
1:25:36 brought the property in the name of the child and when the man was even going for long he invited the child to come and sign for the loan so in that sense we talked about the fact that it was brought in the name of the child and there was no intention for the man to rebut it so in that sense the child took the property absolutely now quite often people argue that it is it is discriminatory advancement is discriminatory why is it that if i buy property in the name of my wife that is advancement she takes it but my wife buys property in my life it is a gift it is a trust and it is for her so people argue that if you look at article 17 it is
1:26:22 discriminatory so as a result of that some countries particularly australia has passed a law to change their position so if it is a property is brought in the name if a man buys it in the name of their wife or a wife in the name of the husband please this one is it's austria i'm just using it as an example it creates advancement but ghana the law has not changed the law is that if a man buys property in the name of the wife if a man buys property in the name of a child or a person who stands in luco parentis then it is a it is an advancement and not and not a trust he takes it absolutely because it is very difficult to back
1:27:09 advancement so the the english position is the advancement and the customer law position is the gift very well so having talked about this i believe because of time constraints let me talk briefly about few things just to help you understand some aspect of the law you know when i started i said that we have
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