Published online by Cambridge University Press: 28 July 2009
Professor Antony Allott's first studies of law in Africa were of Ghanaian land law. From an early date he has discussed issues of land title registration in Africa. It is therefore fitting in this celebratory number to note that Ghana, after many years of debate and delays, recently enacted a statute providing for the registration of interests in land throughout the country. It is planned that the Land Title Registration Law, 1986 (P.N.D.C.L. 152) (hereafter “the Law”) will be brought into operation in stages as areas are successively designated “registration districts”. It is expected to begin with Accra “and designated agricultural areas”, according to the Memorandum to the Law. When an area is so designated, the Chief Registrar of Lands will be obliged forthwith to call upon all persons claiming interests in land therein to present their claims. Those proven, after adjudication if necessary, will be registered, and the register will be conclusive. All subsequent changes in the holding of interests are to be effectuated through changes in the register. The Land Title Registration Regulations, 1986 (L.I. 1341) have already been made to provide in more detail for the procedures to be followed.
This contribution attempts to provide a brief, critical summary of the central features of the Law. It considers these in the context of the historical development of Ghanaian land law, and contrasts them with features of certain other schemes which have been implemented or proposed.
2 Sec especially the writings referred to below, note 27.
3 The Land Title Registration (Amendment) Regulations, 1987 (L.I. 1345) merely provide that the date of commencement of the main Regulations is to be 29 12 1986.Google Scholar
4 The following account is as brief as possible. Details may be found in the textbooks, primarily: Bcntsi-Enchill, K., Ghana land Law (1964)Google Scholar; Asante, S. K. B., Property Law and Social Goals in Ghana 1844–1966 (1974)Google Scholar; Ollennu's Principles of Customary land Law in Ghana (2nd ed., 1985)Google Scholar. See also Woodman, G. R., Customary Land Law In The Ghanaian Courts (Forthcoming, 1988).Google Scholar
7 On the constituent elements of the common law for this purpose, see Allott, A., New Essays in African Law (1970), Chap. 2.Google Scholar
9 On the pre-1979 governmental system of land control in the North, see Agbosu, L. K., “Land administration in northern Ghana”, (1980) 12 R.G.L. 104.Google Scholar
10 See e.g. Simpson, S. Rowton, Land Law and Registration (1976) (hereafter Simpson), Chap. 4.Google Scholar
11 The following discussion considers only the more important developments. For an important, but relatively early discussion of such developments, see Bentsi-Enchill, , op. cit., pp. 310–343Google Scholar. For discussion of another two statutes, see (1969) 6 U.G.L.J. 146 (G.W.). Also significant is the Limitation Decree, 1972 (N.R.C.D. 54), discussed (1972) 4 R.G.L. 150 (S.K. D-B.)Google Scholar, in which section 30(3) applies the statute to matters regulated by customary law.
12 This legislation is noted at (1973) 5 R.G.L. 239 (G.W.). The Commissioner appointed under the decree continues to function today.Google Scholar
13 (1980) 12 R.G.L. 166 (L.K.A.).
14 The principal statutes prior to 1969 are referred to in Woodman, G., “The allodial title to land” (1968) 5 U.G.L.J. 79, at pp. 93–94Google Scholar. Subsequent enactments have repeated those provisions with various changes which are not important for the present purpose.
18 Reports on Expenses Incurred by Litigants in the Courts of the Gold Coast and Indebtedness Caused Thereby.
19 Report of the Law Reform Commission on Proposals for the Reform of the Land Law. On the developments see generally: Benneh, G., “Keynote address”, in: Amissah, S. B. (ed.), Papers submitted at the Seminar on Land Resource Management and Land Use Policy (1980) (Kumasi: Land Administration Centre, University of Science and Technology), xviiiGoogle Scholar; A. K. Mensah-Brown, “Appendix B. The proposals for implementing title registration in Ghana”, ibid., p. 286. In the early 1970s an important role in the movement was played by Dr. S. K. B. Asante (Deputy Minister of Justice, and author of the book referred to above n. 4), and by the staff of the Land Administration Research Centre.
20 Law Reform Commission, n. 19. The Commission's proposals on inheritance eventually produced the Intestate Succession Law, 1985 (P.N.D.C.L. 111)Google Scholar, discussed Woodman, G. R., “Ghana reforms the law of intestate succession”  J.A.L. 118, but not as yet reform of the other areas examined.Google Scholar
21 Simpson, , pp. xviii–xixGoogle Scholar. Simpson himself was Land Tenure Adviser to the Ministry of Overseas Development. He was succeeded in that post by J. C. D. Lawrance, who put the case for land title registration in Ghana in terms closely similar to those in Simpson, in “Registration of title”, in: Amissah, S. B. (ed.), op. cit., p. 2, especially at pp. 4–10Google Scholar. (That paper displays the confidence of the author in his capacity to prescribe the appropriate system for Ghana, but is not in all respects well-informed about Ghana land law: see e.g. p. 16, where the author seems unaware that pledges had been abolished.) Another member of the steering committee was H. W. West, quoted by both Simpson (at 9.7.1) and Lawrance, (op. cit. at p. 8)Google Scholar in a passage referring to Ghana. Allott was a member of the steering committee, but there is evidence, some of which is mentioned below (notes 30 and 36) that he cannot be held to have approved of all the policies proposed in the book.
22 This is a summary of what appear to be the principal points advanced in passages at pp. i-ii, iv-vi.
23 Pp. v-vi.
25 The Law, Part VI, “Dispositions”; Regulations, Part III, “Dealings with Registered Land”, and First Schedule, Forms 30–43.
26 This is clearly implied throughout, and seems to be thought so unquestionable as not to need express explanation. Sec e.g.: 1.4.4; 11.1.2; 17.2.6. The term “multiple ownership” is used to refer to what lawyers usually call co-ownership: 13.2.7.
29 The phrases used were recommended by the Law Reform Commission in its 1973 report: above note 19. They had been originally devised and proposed by K. Bentsi-Enchill: see his “The traditional legal systems of Africa”, in: International Encyclopaedia of Comparative Law, Vol. VI, Chap. 2, p. 68 (1975, but written some years previously), at pp. 74 and 90–91.Google Scholar
30 This was the recommendation made by S. Asante-Ansong, “Title registration in Ghana” (1981–1983) 13 & 14 R.G.L.51, pp. 52–53Google Scholar; see also p. 68. On this issue see also Allott, A., The Limits of Law (1980), pp. 163, 183–184Google Scholar, arguing that land title registration laws are sometimes claimed to have the contradictory merits of confirming existing titles undisturbed, and effecting land reform.
31 They are examined: G. R. Woodman, “Customary law, state courts and the notion of institutionalization of norms in Ghana and Nigeria”, in: Allott, A. and Woodman, G. R. (eds), People's Law and Stale Law: the Bellagio Papers (1984)Google Scholar; G. R. Woodman, “How state courts create customary law in Ghana and Nigeria”, in: Morse, B. W. and Woodman, G. R. (eds), Indigenous Law and the State (1988).Google Scholar
32 A quite different possibility is that the introduction of title registration may change the extent and nature of state intervention in social interaction. Just as the functioning of state courts has produced changes in social norms, so it is possible that the functioning of the land title registry will be an element in further state penetration of social institutions. This is an issue in need of research. It is not raised by Simpson.
33 Disposition” is defined as “any act inter vivos by a proprietor of land or of an interest in land whereby his rights in or over the land, are affected …”
34 These conclusions arc drawn from the following argument. The “ineffectualness” provision does not appear to apply to the creation of new interests other than leases and mortgages: a “transfer” is defined as “the passing of land or an interest in land …” (s. 139), which implies that it includes only dispositions of existing interests, not the creation of new interests, and the form provided in the Regulations for the “transfer of land” (Form 30) seems to be designed on that basis. Moreover, section 83(1) provides that “a grant or reservation of an casement shall be ineffectual unless it is registered …”, implying that that particular right, at least, is to be created by a mode not provided in or under the Law. Admittedly the definition of “disposition” (previous note) is wide, but it will need to be applied in the light of the fact that as yet no statutory forms have been provided for dispositions which arc not transfers. Hence, for those dispositions the previous law remains in force (except that the Land Registry Law, 1962, will no longer apply). Nevertheless, it is also provided that the rights of a registered proprietor of land shall be free of all other interests and claims other than those shown in the register, or which arc overriding (ss. 43, 46). The only type of overriding interest likely to arise in the cases now under consideration are those designated in section 46(1), para. (f) (see text below).
It should be mentioned that there arc further difficulties in reconciling aspects of the Regulations with the land law. For example, they seem to assume that: ordinary interests in land carrying rights to minerals may be held by private persons (Regulations 58 and 78, and Forms 31–34), whereas all minerals in Ghana were vested in the state by the Minerals Act, 1962 (Act 126); a mortgagee may have a power of sale (Form 30), whereas this is precluded by the Mortgages Decree, 1972 (N.R.C.D. 96); and that a deposit of a certificate of title to secure a loan may affect the despositor's interest in the land (Regulations 81 and 82, and Form 50), whereas the Mortgages Decree, 1972, sections 1 and 2, excludes this also. (On the Mortgages Decree, 1972, see Kludzc, A. K. P., “The modern Ghanaian law of mortgages” (1974) 11 U.G.LJ. 1).1Google Scholar
35 Cf the history of Simpson's Report on Land Problems in Papua New Guinea (1969)Google Scholar. Draft legislation based on the proposals in that report was withdrawn in 1971 as a result of criticism of their underlying policy: the criticism is set out in Ward, A. D., “Agrarian revolution: handle with care” (1972) 6 New Guinea 25Google Scholar. Subsequently the Report of the Commission of Inquiry into Land Matters (1973)Google Scholar, based on an intensive inquiry by a Commission composed entirely of Papua New Guineans, emphatically rejected the proposals. For the episode prior to the completion of that inquiry, see Bredmeyer, T., “The registration of customary land in Papua New Guinea” (1975) 3 Melanesian Law Journal 267.Google Scholar Cf. Simpson, 11.8.17.
36 Simpson, 12.5.7, n, criticises Allott for failing to discuss the Act in New Essays in African Law (1970)Google Scholar, whereas he discusses “fee simples in West Africa”, which “have always been … otiose". Presumably the Act was not discussed because it had not been brought into effect, and fees simple were discussed because the rights of many parties had turned on judicial decisions as to the fee simple. Simpson, ibid., refers also to the omission by Allott to mention the Kenya and Sudan statutes. The Kenya scheme was discussed subsequently by Allott, in The Limits of Law (1980), 209–214Google Scholar (and see also pp. 37, 164, 197–198), where he referred to evidence that there was “massive disobedience of or non-compliance with” the scheme. Evidence on the operation in practice of the Sudan statute is scarce, but some shows that much land user occurs outside the ambit and in disregard of the statute: Abbashar, A. El-M., “The State and Traditional Holders of Land in the Sudan”, Ph.D. thesis, University of Birmingham, 1982.Google Scholar
37 Matters within the jurisdiction of the Stool Lands Boundaries Settlement Commission are to be referred to the Commission (s. 23(6)): and see above, n. 11 and accompanying text.
38 Aryee, C. B., “Standing instructions for Land Title Registration Officers” (1984)Google Scholar. I am obliged to Mr. Aryee for enabling me to consult a copy.
39 Important work has been done on the effects of other title registration systems in Africa. See especially Coldham, S. F. R., “The effect of registration of title upon customary land rights in Kenya”  J.A.L. 91Google Scholar. But other instances studied are too dissimilar to the Ghana scheme for conclusions to be drawn from comparisons.