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Opinions of Saturday, 19 June 2021

Columnist: Ernest K. Kyere

Drawing the dichotomy between customary freehold and usufructuary interest

The write up sought to draw a distinction between the customary freehold interest and usufructuary The write up sought to draw a distinction between the customary freehold interest and usufructuary

Introduction

It has always been the case that contestation over land in Ghana and in the West African region is particularly acute. The laws governing the interest, use, control and alienation of land has, over the years, proliferated, yet land remains repugnantly constant. The laws on land being primarily regulated by distinct customs and traditions of people lie helter skelter.

The coming into force of the Land Act, 2020 (Act 1036) sought a codification of these laws into one document while resolving existing discrepancies. This, however, is not to suggest that there were no written laws governing land but that these laws were passé and took no consideration of the strains of land in the new world.

The Act, in its attempt for codification unpremeditatedly birth a motif for discussion on the freehold interest.

Conventionally, Ghana’s customary law had conceived four interests that one could own in land. They were the allodial title, freehold interest (further divided into customary freehold and common law freehold), leasehold interest and, lesser interest.

Our understanding as projected by the traditional cases was that customary freehold interest was also known as the usufructuary interest and was used interchangeably by the Ghanaian courts.

Now, the Land Act, 2020 (Act 1036) sweeps in and provides for six types of interests in land namely: the allodial title, the common law freehold, the customary law freehold, the usufructuary interest, the leasehold interest and customary tenancies.

The additional interests are ascribed to the Land Act ramifying the customary freehold and usufructuary interest, which in time past was considered to be one and same.

The usufructuary interest otherwise known as customary freehold interest was described as an inherent right, exercised whenever a subject or member took possession and cultivated a virgin or unappropriated portion of the stool or family land.

It evolved directly from the allodial title and was described by the Supreme Court as “a specie of ownership co-existent and simultaneous with the stool’s absolute ownership”.

This article, therefore, seeks to bring out the incongruities between these two interests as seen in the Land Act through legal analysis and to comment on the import of the Land Act with respect to the creation of freehold interest in Ghana.

CUSTOMARY FREEHOLD INTEREST UNDER THE NEW LAND ACT

Section 3(1) of Act 1036 describes customary freehold as an interest arising from transactions conducted under customary law. It further describes it as an absolute interest, subject only to the distinct cultural rights of the stool or skin and family.

Essentially, it is acquired by outright sale, gift or inheritance. Such an interest exists in perpetuity and can be alienated without the requisite consent or payment to its allodial holders specifically the stool or skin, clan or family.

The laws in Ghana concerning land has always been accommodating of statute law and customary law. For instance, a will could either be administered by the Wills Act of 1972 or by customary law. Customary freehold interest, thus, is acquired whenever one engages in a customary sale transaction, customary gift or customary will (samansiw).

It is trite law that a grant to a subject or stranger being one under customary law is effective from the moment it is made and a deed subsequently executed by the grantor may add to, but cannot take away from the effect of the grant already made under customary law.

The lynchpin of this section is that this interest can be acquired either by members or strangers of the stool.

USUFRUCTUARY INTEREST UNDER THE NEW LAND ACT

Section 5(1) of Act 1036 proposes two ways by which the usufructuary interest can be acquired. It provides that it can either be acquired through the exercise of one’s inherent right from the allodial title holders to develop any unappropriated portion of land on the express grant of the stool or skin, family or clan.

Another way, would be through settlement for a period of not less than 50years by non-indigene(s) on the permission of the allodial title holder except if the settlement is on agreed terms.

The latter mode of acquisition is the most problematic as usufructuary as understood customarily was a right peculiar to subjects or members of a stool or community. The laws of Ghana have always strived to be equitable.

To my thinking, the enactment does not act as an affront to the old position of acquiring usufruct but to extend the wings of the law to cater for non-subjects and non-members of the stool or community who having acted conscionably and with due regards to the particular custom of the place may have acquired such an interest, flowing directly from the allodial title.

Here, the non- indigenes are presumed to have become members of the stool or community.

Traditionally, there were two requirements in order to acquire a usufructuary interest. Firstly, one had to take possession of a vacant portion of stool or family land.

At customary law, there is a presumption that one is deemed to have taken possession when one settles and cultivates accordingly.

Secondly, there must be a recognition of the allodial title. This being the requisite requirements, it would be unconscionable and unfair to denial strangers this right having fulfilled the requisite requirements.

Here, the law presumes the non-indigenes to have become members of the stool, having stayed there for a long period of time and cultivated subsequently on a piece of land while recognizing the allodial title of the stool itself.

THE DIFFERENCES BETWEEN CUSTOMARY FREEHOLD INTEREST AND THE USUFRUCTUARY INTEREST IN THE LIGHT OF THE NEW LAND ACT

1) Mode of acquisition: The customary freehold interest arises from customary transactions namely customary purchase, gift and inheritance whereas the usufructuary interest arises by virtue of membership to a particular stool or skin or community either arising habitually or by settlement of not less than 50years.

2) Persons who can acquire : Customary freehold interest can be acquired by anyone provided the person is Ghanaian. The usufructuary interest, on the other hand, is primarily acquired by subjects or members of the stool or family land, subject to the exception in Section 5(1)(b) of Act 1036. Even with this exception, there is some form of presumption of membership for the non- indigenes.

3) Duration: By the express words of section 3(1) of Act 1036, the customary freehold interest exists in perpetuity. The law, however, was silent on the lifetime of the usufructuary interest. This could probably be because the drafters of the Act intend for it to exist as long as recognition is given to the holders of the allodial title.

4) Alienability: The transfer of the customary freehold interest is without the consent of the stool whereas the usufructuary interest being derivative of the allodial title requires the consent of the stool.

5) Transfer of interest: By the express wording of section 9(2), the customary freehold interest cannot be created by the stool or skin, family or clan. On the other hand, the usufructuary interest can be created by the stool or skin, family or clan to members of the stool or community and in some cases foreigners as the act may prescribe.

THE FREEHOLD INTEREST

Section 9 of Act 1036 is a restatement of Article 267(5) of the 1992 Constitution of Ghana that one cannot create an interest in any stool or skin, clan or family land which vests in any person a freehold interest. The section further contends that the prohibition does not take away the inherent right of the subject or member to occupy any vacant portion of the stool or family land.

The question that lingers therefore is, if it does not take away the inherent right of subjects and members by virtue of subsection 3, then which freehold interest does it prohibit its creation, having clearly proscribe the common law freehold interest.

The keywords of the provision avert to the fact that one cannot create a freehold interest in a “any stool or skin, or clan or family land”. For purposes of emphasis, I wish to reproduce the stated section.

9(2) A person shall not create an interest in, or right over, any stool or skin, or clan or family land which vests in that person, another person or a body of persons a freehold interest in that land, howsoever described.

9(3) Subsection (2) does not take away the inherent right of a subject of a stool or a skin, or a member of a clan or family to the usufructuary interest in a vacant portion of the tool or skin, or clan or family land.

This provision does not make mention of land owned by individuals. Calling into play the Latin maxim expressio unius, exclusion alterius, which means the express mention of one thing excludes others, the provision would suggest that, whereas one cannot create a freehold interest in a stool or family land, it can be created in an individual owned land.

This reasoning appears to be most legally sound because if the drafters of the Act sought to prohibit the entire creation of freehold interest, then it had no business making mention of it as one of the interests recognized in land, pursuant to section 1 of Act 1036?

It is also my contention that the recognition of the customary freehold interest is primarily attributed to the fact that the law recognizes an interest in land which may not have been obtained through statutory ways but through customary practice.

It has, thus, be defined as the interest which one acquires having engaged in a customary transaction Such an interest cannot be “created”, as understood in its generic meaning, for a person but is merely conferrable by virtue of one having engaged in a customary transaction.

Conclusion

The question on freehold interest has always been debatable. Though the Land Act elaborate and codifies the various laws concerning land, it does not adequately address the controversy of freehold interest.

This would mean that it falls on the courts, textbooks or legal academic writers to address this topic and help bring clarity to the law.

This write up sought to draw a distinction between the customary freehold interest and usufructuary interest with regards to its mode of acquisition, persons capable of acquiring it, duration, mode of alienation and capacity to transfer.

I further, contended in this article that the prohibition of freehold interest as envisaged in Section 9(2) of Act 1036 is restrictive to stool and family land only and not individually owned land.