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Published online by Cambridge University Press: 28 July 2009
This is an examination of the circumstances in which, according to legal authorities, land may become family land in the customary law of Ghana.3 There may occasionally be difficulty in discovering whether the acquisition was by a wider family or by a branch (or segment) of it, since each such smaller group constitutes a “family” for different purposes. Normally, however, the circumstances give a clear answer, and difficulties on this point rarely reach the courts. If, for example, the narrower family lived in a different part of the country, or acted in the transaction through its own head rather than the overall head, or was already regarded by members of the other branches as a separate entity conducting its own affairs, the acquisition will accrue to this smaller family. The only serious difficulties in this respect have occurred when the acquisition was by intestate succession, a means which will not be discussed in detail. Therefore the distinction drawn by Sarbah4 between “ancestral property” and “family property” will not be followed here.
3 Space does not allow a description of what constitutes a “family”, since such a description would need to be lengthy to be accurate. A valuable introduction to this legal concept and the case-law concerned may be found in N. A. Ollennu, Principles of customary land law in Ghana, especially at Chap. 11, and in The law of succession in Ghana by the same author, Part I.
4 J. M. Sarbah, Fanti customary laws, 2nd edn., p. 57.
5 See the Nigerian case, Balogun v. Balogun (1935), 2 W.A.C.A. 290.
page 137 note 1 Redwar, Comments on some Ordinances of the Gold Coast Colony, pp. 80–81; Akempon v. Enyan (1912), Ren. 629.
page 137 note 2 Sarbah, op cit., p. 59; Nelson v. Ocansey, unreported judgment of the West African Court of Appeal delivered on 11th March 1950; Nugent v. Narteh (1958), 3 W.A.L.R. 537, at pp. 539–40; Quartey v. Martey, [1959] G.L.R. 377, at p. 380.
page 137 note 3 Larbi v. Cato, [1959] G.L.R. 35.
page 137 note 4 Redwar, op. cit., p. 81; Larbi v. Cato, [1959] G.L.R. 35.
page 137 note 5 Barnes v. Mayan (1871), Sar. F.C.L. 180; Mensah v. Hamilton (1878), Ren. 43; Ansah v. Sackey (1958), 3 W.A.L.R. 325.
page 137 note 6 Codjoe v. Kwatchey (1935), 2 W.A.C.A. 37; Ansah v. Sackey (1958), 3 W.A.L.R. 325; Larbi v. Cato, [1959] G.L.R. 35, at p. 37.
page 137 note 7 Welbeck v. Brown, Sar. F.C.L. 185; Tsetsewa v. Acquah (1941), 7 W.A.C.A. 216; Larbi v. Cato in the Land Court, [1959] G.L.R. 35, at p. 37, and in the Court of Appeal, whose unreported judgment was delivered on 6th June i960.
page 137 note 8 Unreported judgment of Deane, C.J. in the Divisional Court delivered on 18th June 1935, cited in Codjoe v. Kwatchey (1935), 2 W.A.C.A. 371, at p. 375.
page 138 note 1 See, e.g., Sarbah, op. cit., p. 89; Amodu Tijani v. Secretary, Southern Nigeria, [1921] A.C. 399 at pp. 404–405, citing the Report on Land Tenure in West Africa by Rayner, C.J.
page 138 note 2 See, e.g., Nelson v. Ocansey, p. 137, n. 2 above. A similar approach appears briefly in Ahoklui v. Ahoklui (1959), N. A. Ollennu, Principles of customary land law in Ghana, p. 212 at pp. 213–4.
page 138 note 3 Cf. W. G. Ekow Daniels, “Some principles of the law of trusts in West Africa,” [1962] J. A. L. 164. Dr. Daniels contends that there exists a customary law of trusts which is distinct from, although similar to, the common law doctrine. This is consistent with the view proposed here, that authorities on the common law doctrine are not applicable to this sphere of the customary law.
page 138 note 4 Thus Nelson v. Ocansey was decided on the view that the property had been purchased with family funds; Ahoklui v. Ahoklui on the view that the purchase (if indeed it was a purchase) was intended to accrue to the family.
page 138 note 5 Discussed in my article, “The alienation of family land in Ghana”, in The Legon Law Journal, Autumn 1963.
page 139 note 1 The question is referred to by A. N. Allott, Essays in African law, 304. Sed quaere whether the trial court in Boodoo v. Bissa (1910), Ren. 585 and Earn. 35, intended to base its decision on the doctrine of bonafide purchaser for value without notice, rather than on that of laches.
page 139 note 2 Op. cit., p. 35.
page 139 note 3 (1940), 6 W.A.C.A. 52, at p. 55.
page 139 note 4 (1935), 2 W.A.C.A. 371.
page 139 note 5 (1945), 11 W.A.C.A. 81.
page 139 note 6 At p. 87.
page 140 note 1 [1959] G.L.R. 35 at p. 37, and again at p. 42, in the penultimate paragraph.
page 140 note 2 Unreported judgment delivered on 6th June 1960.
page 140 note 3 In Adjuah v. Schandorf, unreported judgment of the Land Court, Accra, delivered on 1st April 1948, Coussey, J., expressed an identical view. It is probable that law reports to be published in 1964 will include this and many other unreported cases referred to in the present article.
page 141 note 1 United Products Ltd. v. Afari (1929), Div. Ct. 1929–31, 11, at p. 12. Cf. Redwar, op. cit., p. 79. Despite the comment of Kingdon, C.J., in Codjoe v. Kwatchey (1935), 2 W.A.C.A. 371, at p. 378, that the presumption was “not nearly so strong” as it had been, the Court of Appeal accepted that it was still in existence in Larbi v. Cato, unreported judgment delivered on 6th June 1960.
page 141 note 2 Smith v. Hughes (1871), L.R. 6 Q..B. 597.
page 141 note 3 (1941), 7 W.A.C.A. 216.
page 141 note 4 Ollennu, op. cit., p. 35.
page 142 note 1 In Tsetsewa v. Acquah at p. 220, and in Mensah v. S.C.O.A. (1958), 3 W.A.L.R. 336, at p. 338.
page 142 note 2 Cap. 4, now no longer in force.
page 142 note 3 (1958), Ollennu, op. cit., p. 183.
page 142 note 4 (1958), 3 W.A.L.R. 336.
page 142 note 5 Ollennu, op. cit., pp. 35–7.
page 143 note 1 Mensah v. S.C.O.A. at p. 338.
page 143 note 2 The view of Ollennu, J., is contrary to Sraha v. Abanko, unreported judgment of Benson, J., in the Land Court, Kumasi, delivered on 7th November 1955. There it was held that in such a case the property accrued to the family immediately, not on the death of one of the principals.
page 143 note 3 There is as yet no authority on the customary law in this respect.
page 143 note 4 There has been very little suggestion that if one member alone plays a predominant part he acquires a life interest. The only authorities which imply this are the unsatisfactory case of Welbeck v. Brown, Sar. F.C.L. 185, and an obiter dictum in Larbi v. Cato, [1959] G.L.R. 35, at pp. 36–7.
page 144 note 1 Op. cit., pp. 60 and 89.
page 144 note 2 (1925), Div. Ct. 1921–25, 192.
page 144 note 3 Op. cit., p. 89.
page 144 note 4 (1951), 13 W.A.C.A. 331.
page 145 note 1 (1953), 14 W.A.C.A. 250.
page 145 note 2 The court referred to Sarbah; Bruce v. Adjah; Jones v. Ward (1895), Sar. F.C.L. 163; and Hammond v. Randolph (1939), 5 W.A.C.A. With respect, the last two cases do not seem relevant.
page 145 note 3 Unreported judgment of Windsor-Aubrey, J., in the Land Court, Accra, delivered on 17th February 1953.
page 145 note 4 (1958) Ollennu, op. cit., p. 183.
page 146 note 1 Ababio II v. Nsemfoo (1947), 12 W.A.C.A. 127.
page 146 note 2 This argument is derived from Ollennu, op. cit., p. 143.
page 146 note 3 Sarbah, op. cit., p. 73; R. S. Rattray, Ashanti, pp. 236–7. The facts in Ahadji Swaniker (1958), 3 W.A.L.R. 540, indicate the same sentiment.
page 147 note 1 This explanation of the doctrine in respect of pledges of family land is stated in Ollennu, op. cit. pp. 106–7.
page 147 note 2 See Ollennu, op. cit., passim, where it is called a “determinable title”.
page 147 note 3 (1940), 6 W.A.C.A. 52. Sarbah, op. cit., pp. 70–3, discusses building licences in general, and the special case of grants by a family to the husband of a member; despite the views expressed in Santeng v. Darkwa (below) it is submitted that he gives no guidance useful to the present inquiry.
page 147 note 4 (1945), 11 W.A.C.A. 81.
page 147 note 5 See p. 83.
page 148 note 1 Tetteh v. Annang, unreported judgment delivered in. the Land Court, Accra, on 11 th December 1957; Ansah v. Sackey (1958), 3 W.A.L.R. 325; Coblah v. Bannerman, unreported judgment delivered in the Land Court, Accra, on 29th November 1958.
page 148 note 2 Ollennu, op. cit., pp. 41–2.
page 148 note 3 Ibid., p. 40.
page 148 note 4 Ibid., p. 42.
page 149 note 1 (1958), 3 W.A.L.R. 325.
page 149 note 2 An Australian statute, the Local Government Act, 1928 (Vict.) contains the phrase: “extension of any building”. In R. v. Shire of Femtree Gulley, ex parte Hamley, [1946] A.L.R. 558, it was held that this phrase could include an addition in the form of a detached building.
page 149 note 3 Legislation and other factors have reduced the scope of his functions. It is not necessary to examine this here.
page 149 note 4 Serwah v. Kesse (1959–60) Ollennu, op. cit., pp. 201 and 208.
page 149 note 5 (1945), 11 W.A.G.A. 81.
page 149 note 6 From the unreported judgment of Coussey, J., in the Land Court, Accra, delivered on 30th November 1944.
page 150 note 1 Unreported judgment delivered in the High Court, Accra, on 19th June 1960. See also Boafo v. Staudt (1958), Ollennu, op. cit., p. 183. Also Ollennu, op. cit., p. 43.
page 150 note 2 R. S. Rattray, Ashanti law and constitution, p. 402.
page 150 note 3 Sarbah, op. cit., pp. 34–5.
page 150 note 4 Keelson v. Mensah (1957), 2 W.A.L.R. 271; Fynn v. Kum (1957), 2 W.A.L.R. 289.
page 150 note 5 (1916), Div. & F. Ct. 1911–16, 88.
page 150 note 6 (1956), I W.A.L.R. 275.
page 151 note 1 Unreported judgment of Coussey, J., in the Land Court, Accra, delivered on 4th September 1947.
page 151 note 2 Unreported judgment of Lingley, Ag. J., in the Land Court, Accra, delivered on 29th August 1951.
page 151 note 3 (1956), I W.A.L.R. 227. This decision of the West African Court of Appeal was upheld on appeal by the Privy Council, [1962] J.A.L. 38.
