Is this Law likely to give rise to any social problems? The one I can readily see is on the line that the Law has taken on individual ownership of land as against communal ownership. PNDCL 152 has followed the Law Reform Commission and given more ample statutory recognition to the view that the development of our law on land will be along the line of encouraging individual ownership.
We are all aware that while perhaps the majority of writers30 on land in Ghana favour individual ownership, there is a strong minority31 who favours communal ownership. The reason why more investigation is called for before we can safely brush this latter group aside is that what they say, namely, that radical changes that lead to individualisation are, in fact, contrary to our traditional laws and practice, is being said by a larger number of ordinary persons, including influential politicians. It is also important that the majority of sociologists seem to agree with them.
32 But it would appear that the real obstacles are likely to come from the economics of the system. If it will work well as contemplated, then the government must be prepared to commit large sums of money to it; to the preparations for the registry and its offices, to the surveys of lands and the making of the scientifically accurate plans for the registry, for the printing of the many forms required and punctually too. For the engagement of the desired competent professional and technical staff all without demanding fees that are too high from applicants for registration. Someone has opined that commerce, industry and farming as such will derive some "imponderable benefits from the assurance of title and... "one thing which title registration does is that it takes the whole activity from bureaucratic red-tapism to commerce where the concept of profit dominates." He even implied that perhaps we might consider calling upon investors to contribute to the cost of the exercise.
33 Even if one may be reading more into his comments than he intended, he is certainly more optimistic than one can be. Of course it should be realised that the government need not do everything in the beginning - the introduction may take five or fifty years or more. It took about 125 years to establish compulsory registration of title to land throughout England and Wales. But the success in Ghana will depend very much on how much the government here can put in the early stages. That is when staff are being trained; and it will help not to get them irritated, not to say frustrated, by lack of small needed things like receipt books, folios, and simple machines or cabinets.
Reference has already been made to indemnity, and the fund set up for the purpose. It may be appropriate to give some consideration to the following relevant provisions. Section 123 entitles any person who has suffered damage because of rectification or because of an omission or mistake that cannot be rectified to be indemnified out of funds provided for that purpose unless he has been fraudulent or negligent. The provisions for the determination of the amount of indemnity payable in respect of the loss of any interest in land resulting from rectification are in section 124. And section 125 deals with the procedure for claiming an indemnity. On reading these sections one has an uncomfortable feeling that the Chief Registrar is here being made a judge in his own cause. But, if we overlook that - (can we?) then it may be said that section 126 makes a fair (if not the best) provision:
"126. Where any moneys are paid by way of indemnity under this Part, the Secretary shall be entitled to recover by suit or otherwise the amount so paid from any person who had caused or substantially contributed to the loss by his fraud or negligence, and to enforce any express or implied agreement or other right which the person who is indemnified would have been entitled to enforce in relation to the matter in respect of which the indemnity has been paid." The procedure here is to be preferred. To sum up, I think the system being introduced is satisfactory in the sense of being a workable one. It has all the characteristics of a good title registration system. It is likely to simplify, cheapen and expedite the transfer of land. The keynote is visible in the machinery provided: for the purchase and sale of land is being assimilated to that of stock and shares. And it has the following essentials:
- The abolition of the inconclusive, expensive and constantly repeated examination of title by private individuals and its replacement by one final and authoritative examination by the Land Registry.
- As a result of the examination, the formation at the registry of a register of proprietors of land with a title good against the world, subject to such mortgages and other burdens (if any) as are set out on the register or declared by the Law to be overriding interests.
- The provision of a plan of scientific accuracy (in all cases revised up to date) identifying the land.
- The issue to the registered proprietor of a land certificate which contains a facsimile of the register and of the plan identifying the land and which takes the place of the old-fashioned title deeds.
- The provision of what we hope to be simple forms for the sale and mortgaging of the land which a layman can readily understand.
- The provision of what we expect to be an inexpensive official search service which enables a prospective purchaser, mortgagee or leasee to obtain exact knowledge of the state of the register without visiting the registry and also priority for his transactions over all others.34 "The register forms the only title to registered land recognised by law and the abstract showing the past title is no longer necessary. A purchaser has only to satisfy himself that his vendor is in fact the person entered on the register and then, subject only to any charges or other burdens entered on the register and to minor liabilities such as local land charges or short occupation leases, he can complete the purchase forthwith without further objection or question as to the past title."35 What must be done now is to embark on a real education of the public from top to the lowest level.
People should not be led into hopes that are not justified by this Law. Quite recently an editorial in the popular press drew attention to the announcement of the introduction of this Law by the PNDC Secretary for Lands and Natural Resources. The editorial went on to discuss the case of some stranger farmers in a particular area of Ghana. And it clearly assumed that if the provisions of this Law are applied in that area the said food farmers would obtain justice as it saw it.36 To the extent that we all must eat, it is difficult not to feel sympathy for those farmers. But, with respect, I do not think that the provisions of PNDC Law 152 will solve their problems - or any like them. It is a question of how and to what extent certain forms of land tenure should be reformed. The Law Reform Commission said this years ago:
"Arrangements for working land under abunu and abusa and other customary tenancies are often unfair and inequitable to the tenants. The Commission recommends that tenants should be protected by the express statutory enactment of provisions specifying their rights and entitlements and empowering intervention by tribunals authorised to settle disputes and ensure equitable arrangements." This statute does not put this recommendations into effect. My caution is that proclamations on it should be careful - otherwise we will add this to the many statutes on our books about which many persons know but which very few understand.