LSAGH Publications

Wednesday, 7th June, 2017Author: LISAGH

Change Introduced By The New Law

By way of comments on the other provisions of the new law itself, we should examine the specific changes that it has introduced. More particularly, which of the systems of registration that law has chosen for Ghana. In the process it would be considered whether its provisions are adequate for ensuring that the system will operate successfully in the country. We are fortunate in having with this law a reasonably full Memorandum which gives not only the intention of the Legislature but also in many parts explanations of what have actually been drafted. Wherever convenient, therefore, reliance will be placed on that.

The first important change is the new uniform terminology adopted. Many have at one time or another found the terms used in the classification of interests in land either confusion or simply unhelpful. For example, the Law Reform Commission saw an "inconsistency in the terms used for various interests held in land," and it drew attention to the fact that words like "estate," "tenure" and "interest" tend to be indiscriminately used in relation to the rights held in land."13 Before the commission's Report, the late Mr Justice Ollennu had grouped the various types of land ownership known to customary law under the following six heads14:

  1. Paramount title, sometimes called absolute, final, radical or allodial title;

  2. Sub-paramount title;

  3. Determinable estate otherwise called possessory or usufructuary title;

  4. Tenancies or interest in land which can be owned by a person who is not the owner of the paramount, sub-paramount or the determinable estate, these include abusa, the abunu, the annual crop tenant;

  5. Licences, eg, the right to occupy and enjoy land for an indefinite duration of time;

  6. Pledge.

This grouping, already complicated, does not claim to be comprehensive; for it leaves out several so-called estates derived from the common law of England and English conveyancing precedents, eg the lease. Dr Kludze would add others like the individual freehold in the non-Akan areas.15 In finding a solution to this problem, the Law Reform Commission commented as follows: "As an aid to clear thinking and avoidance of doubt the Commission found it essential to select appropriate names and to provide accurate definitions for these various interests. The Commission recommends that these names be used consistently throughout all our legislative enactments . . . Standardisation is clearly desirable here and the Commission would recommend that the word "interest" should be used in legislation generally to represent the cluster of rights held in land. Attention is drawn to the fact that this word is consistently used throughout the Conveyancing Decree, 1973 (NRCD 175), and it is recommended that this precedent be followed." In summary, therefore, the commission recommended "the adoption of the following uniform terminology":

  1. "interest" to represent rights in land;

  2. "allodial title" to represent the maximal interest in land recognised by law;

  3. "customary freehold" to represent the near maximal interest in land held by members of communities where the allodial title is acknowledged to be vested in the wider community. The community in question varies in extent from the traditional state to lesser groups like clans, sub-clans and families;

  4. "lesser interest in land" arising out of contractual arrangements of Which the abunu and abusa agreements are typical customary law examples and the leasehold is a typical common law example. This recommendation was, happily, accepted by the authorities and has been largely implemented in the Land Title Registration Law, 1986. Section 19 makes sure that those who practise law in this area as well as those who are otherwise concerned with such proprietary rights will adopt that classification to aid clear thinking.

16 The next change in the law is the most important, namely, the introduction of "a system of compulsory land title registration throughout Ghana (which, according to the Memorandum), will be implemented in stages beginning with the Greater Accra Region and in designated agricultural areas." Section 1(1) states with clarity that: " “1. (1) There shall be established a Land Title Registry (in this Law referred to as ‘the Registry’) with offices at such place or places as the Provisional National Defence Council Secretary responsible for Lands (in this Law referred to as ‘the Secretary’) may from time to time by legislative instrument determine on the advice of the Title Registration Advisory Board established under section 10 of this Law (referred to in this Law as ‘the Board’)."

Once the Secretary has, under section 5, declared any area specified in the instrument to be a registration district every owner of an interest in land in that area must register that interest, unless the Law has specified it as non-registrable. The Chief Registrar of Lands has very wide powers to compel registration.17 There are provisions aimed at ensuring that registered lands and interests can only be dealt with in accordance with this Law.18 There are more to encourage prompt registration and to empower the Land Registrar to order by notice the registration of any instrument which is registrable under this Law (specifying appropriate sanctions) "in the event of a failure by any person to comply with such order."19

It will be recalled that when discussions were going on in England and Wales on the possible introduction of compulsory registration of title, the Royal Commission's famous Report of 1857 posed the problem to be solved in the following terms: "By what means, consistently with the preservation of existing rights, can we now obtain such a system of registration as will enable owners to deal with land in as simple and easy a manner, as far as the title is concerned, and the difference in nature and the subject-matter may allow, as they now can deal with movable chattels or stock? No one doubts that it would be a great benefit to the proprietors of land if they were able to convey it with the same facility as the owners of ships or of stock or of railway shares can now assign their property in any of them. The question is, can this be accomplished - and if so how?"

Various schemes which had been put forward were examined and it was concluded that a system of registration of title where the sole evidence of ownership of property is the entry made on a register was the only complete answer to the problem they had posed. What was required to improve upon the transferring processes of interests in land was simplicity and quickness. As G C Cheshire recognised and underlined it in his book years later20: "....it will be as well to state at the outset the main idea which lay at the back of the legislation that resulted. It was nothing more than a desire to render the sale of land as rapid and simple a matter as in the sale of goods or shares. A layman knows that if he desires to transfer to another the ownership of a chattel such as a motor-car or a picture, the only requirements is the making of a contract which names the parties, records their intention, describes the article to be sold and states the price to be paid. The moment that such a contract is concluded, the ownership of the article, in the absence of a contrary intention, passes to the buyer."

We have followed the reasoning in that country and observed their practices. This has led now to the adoption of the English system of registration of title, compulsory, simple and swift, with very little modification dictated by our local circumstances. Of course, we have, with regard to those modifications, also borrowed from other countries whose circumstances are similar to ours, countries like Kenya and Zambia. Paragraph 5 of the Memorandum to our PNDCL 152 states correctly that: "5. The purpose of a system of land title registration is twofold: first, to give certainty and facilitate the proof of title; secondly, to render dealings in land safe, simple and cheap and prevent frauds on purchasers and mortgagees.

The effective characteristics of land title registration is that land is placed on the folio of the land register as a unit property and transactions are recorded by reference to the land itself and not merely through instruments executed by the parties as is the case with deeds registration. Registration constitutes a warranty of title in the person registered as proprietor and as a bar to adverse claims." There is an echo here of something that the Law Reform Commission stated in the Report already referred to. The commission saw the primary need of this country to be: "for certainty as to the identity of those who hold and, certainty as to the precise character of the interests held by them in land, and certainty as to the boundaries of the land in which they hold these interest. It is basically a problem of definition and of machinery."

The Land Title Registration Law with which we are concerned here deals satisfactorily as I have opined, with the aspect of definition. With the more complex aspect of machinery, we can, for the present only say that it grapples valiantly—we have to see more evidence of commitment on the part of the government, the legal practitioners, the surveyors and the large section of the public which is interested in land before we can pass a favourable judgment. In several countries land reforms or rather reforms in the substantive law on land have been undertaken as a prelude to the simplification (and may be extension) of the system of title registration.21 For as I have mentioned or implied several times, registration essentially concerns the conveyancing of land and its simplification. It is provided that each registration district will have a Land Title Registry Office. Each such office will be headed by a Land Registrar or an Assistant Land Registrar assigned thereto by the Chief Registrar.22 In each of those offices a register will be compiled on which will be put each registered piece of land.23 The named officials are given ample powers to do these things.24

The Title Registration Advisory Board to be set up under section 10 will advise on all matters relating to the administration of the Law. The English system of placing the Registry under the head of the judiciary has not been followed. But this may not be regarded as a serious disadvantage. An attempt is made by section 12 to discourage expensive litigation over land by compelling the parties to make use of the Land Title Adjudication Committee set up under sub-part II of the Law, "which will operate as domestic tribunals and free from technicalities." That section deserves careful watching. Section 13 provides for the registration of land or interests in land in respect of which instruments have been registered under the Land Registry Act, 1962 (Act 122). But the really important section is 14 which deals with the time and manner of first registration: "14.

  1. First registration of a parcel [of land] shall be effected by the Land Registrar - (a) on the expiry of the period specified in the notice issued under section 11 of this Law in respect of the district in which the parcel is situate; or (b) on the expiry of any notice which may be issued under paragraph (b) of subsection (1) subsection 13 of this Law in respect of the parcel; or (c) on the determination by the Adjudicating Committee of any dispute referred to it concerning the claim of any person to be registered as proprietor of the land or interest therein, Whichever last occurs.

  2. First registration shall consist of the opening by the Land Registrar of a folio in respect of the parcel to be registered and the entry therein of — (a) the name of any person who has been shown to be entitled to be registered as proprietor of the parcel and such particulars of that person and his proprietorship as are prescribed to be entered: (b) the particulars of the plan to enable the parcel to be fully identified on the registry map; and (c) the particulars are prescribed of all interests which have been shown to exist in the land. (3) Whenever after first registration any person who has not been registered as a proprietor of the land or of an interest therein, shows that he is also a proprietor of the land or of an interest therein, the Land Registrar shall effect registration of that person by making additions in the prescribed manner to the folio."

This is followed by provisions to the effect that where land or an interest in land being registered is evidenced by an instrument, such land or interest should not be registered unless a plan of the land approved by the Director of Surveys or an officer of the Survey Department authorised by him is attached to the instrument. However, if the affected land is described by a plan in a previous instrument filed in the Registry, it will be sufficient if the land (as is the case now) is described by reference to the plan and instrument already filed in the Registry. The next important section is 18 which provides that "The land register shall be conclusive evidence of title of the proprietor of any land or interest in land appearing on the register." We have already noted the all-important section 19 which also deals with the persons who may be registered as proprietors. There is in sub-sections (2) to (5) a summary of the cases in which the Land Registrar is required to register the State as proprietor and other classes of interest. As indicated in the Memorandum, "an interest which according to its terms will expire without notice of termination within less than two years cannot be registered. However, concessions granted under the Concessions Ordinance (Cap 136) or the Concessions Act, 1962 (Act 126), are to be registered under this Law."

Under section 20 the Land Registrar may reject an application for first registration of any land or an interest in land on certain specified grounds. For example, he may reject an application based on an instrument which is inconsistent with a prior instrument or if the instrument contains interlineations, blank, erasure or alteration not verified by the signature or initials of the person executing the instrument. There is, however, an obligation on the Land Registrar under section 21 to notify each applicant of his grounds for rejecting an application and either to give the applicant an opportunity to make further representations or refer the matter to the Adjudicating Committee.

The setting up of the Land Title Adjudicating Committee in each registration district and the work it will do as well as the processes it may adopt and the immediate consequences of its decisions are all set down in sub-part II of Part II.25 It is worthy of note that by section 31 the committee's proceedings are deemed to be judicial proceedings; and that under the next section any person aggrieved by an order or decision of the committee before the adjudication record becomes final has a right of appeal to the High Court.