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Opinions of Friday, 9 March 2018

Columnist: Dr. Nii Otu Quaye

Isn’t it time to review the Land Development Protection of Purchasers’ Act of 1960?

Last week, a report featured in the media regarding a house being demolished in Nungua, presumably because there were issues with the ownership of the land on which the building was located. The news was very troubling and one that surely arouses emotions and sympathies for the building’s owner, given the immeasurable costs and efforts required building. But it equally warrants support and sympathies for many registered titleholders who often get brazenly divested of their ownerships by wealthier land grabbers who could buy their ways to do what they want. The outcome-owners eventually being divested of their rightful ownership of their lands, and buyers and builders facing demolition- raises serious issues about what the laws in Ghana state regarding land ownership, their goals and efficiency in meeting those goals, and their loopholes and shortcomings that our law makers should holistically consider addressing and fixing.

The subject of land law is too vast and complicated to cover here. Accordingly, this article addresses only a tiny aspect as it relates to owners’ and buyers’ rights, especially when contests erupt regarding how titled owners and people who buy and build on untitled property should be handled.

The surest way to become a protected owner of land is to register and secure it’s the title, the approach used in virtually every part of the world. Once title is registered, it is a notice- actual and constructive- to the whole world. Thus, the land cannot be validly transferred to anyone except by the proper titleholder. Normally, the Latin jargon, “nemo dat quod non habet” meaning, “you cannot give what you do not have” applies. Thus any land, whether privately- or publicly-owned can be validly transferred solely by its registered private owner or public official with authority to transfer it. Chain of title is a critical component of the process. Each transferor must, in registration records, be linked directly to the immediately preceding title owner. Any break in the chain deprives the buyer of title, making him or her vulnerable to challenge and divesture.

In Ghana land law, the celebrated lesson imparted by luminaries like Justice Nii Amaa Ollenu and Professor A.P. K. Klutze was that buying land should be all but buying litigation. They posit that every single buyer must do diligent title search to ensure that there are no encumbrances before buying land and that, if upon searching title, the prospective buyer finds a jolt on the land, he or she must seek a court order for quiet enjoyment to clear the encumbrance before proceeding with the purchase. Failure to search and clear title is the purchaser’s indelible risk.

Naturally, the goal of the law is to dispense justice. To do so optimally, there are few exceptions in equity, which allow builders to keep lands they have built on. These exceptions are expressed through maxims, such as equity eschews indolence, equity loathes ill-gotten gains, and equity abhors waste. What the maxims simply mean is that a landowner cannot lazily sit by; observe someone building on his or her property; and then, after the building is completed, turn around to kick out the builder and ill-gottenly acquire ownership; or compel wasteful demolition of the completed building. As a vehicle off conscience and fairness, the equity doctrine requires balancing of the equities of the owner and the builder before applying the exceptions. On the part of the buyer, the doctrine requires consideration of whether he or she diligently searched title; what he found; and. if he knew someone else had title or that there has been a break in the chain and yet went ahead and bought it, equity would not support him because another concept- the unclean hand doctrine- kicks in. This doctrine states that he who comes to equity must do equity, and requires buyers to have bought in good faith with no notice of any encumbrance or overriding interest. In the balancing analyses, judges normally put emphasis on the uniqueness of land and owners’ sentimental attachments to each piece that are irreplaceable, let alone remediable by money. Landowners’ pleas for injunction in the normal circumstances are highly likely to be heeded. They would lose their titles to buyers from title-less sellers only when they intensely recklessly sit by idly and watch non-titled buyers build to completion without any opposition.

The 1960 Land Development Protection of Purchasers Act, ostensibly tracks the requirements of equity, but woefully partially, ambiguously, and bereft of the conscientious, justice, and fairness undergirding equity, as noted above. Specifically, the Act states that one who purchases law in good faith and erects a building on it cannot be stripped of the building and land if that would visit hardship upon him or her. This law, both on its face and as applied, is bad, counter-productive, a recipe for chaos and needless violence, and must be abrogated or seriously modified.

First, and fundamentally, the Act practically mutes the registration system and makes nonsense of the registration requirement and of title search. A buyer, under the Act, can disregard registration, and build and keep the building and the land. Secondly, the Act overlooks the need for buyers to diligently search and ensure clear title before buying land, thereby potentially turning buying land into buying litigation nightmare. Third, the Act places enormous burdens on titled owners, often harshly, intensely costly, and unfairly necessitating that title owners constantly watch their lands or lose them when someone hurriedly builds on them. Indeed, and very depressingly, the Act has absolutely no regard to situations where owners acquire land for development but travel abroad or far away for extended periods including to work; and it disregards situations where owners ask builders to stop building, but the builders defiantly and brazenly bring land guards to intimidate them. Nor does the Act even consider plights of owners who might have lacked the financial, physical or psychological wherewithal to withstand encroachers or otherwise vindicate their rights in court.

Other unfortunate aspects of the Act are that the only remedy afforded divested bona fide titleholders is for the buyers to pay them double the price the buyers paid the seller without considering the owners’ emotional attachments to the land or why the owners acquired them in the first place. Further, the Act does not require consideration of whether the price paid was the fair market value; nor does it consider litigation and other expenses that the owner might have incurred in unsuccessfully stopping the builder. Finally, the law does not say anything to punish anyone who fraudulently sold land that does not belong to him or her. Because fraud is a crime against the state, the law should, in addition to civil remedies for the buyer, impose steep criminal penalties, including incarceration, on corrupt sellers for specific as well as general deterrence purposes of the criminal law.

It is hoped that the Legislature would consider some of the issues and points raised herein and decide whether to abrogate or progressively amend the Land Development Protection of Purchasers Act to protect owners and buyers optimally, and to steeply punish corrupt and fraudulent sellers of land.

Dr. Nii Otu Quaye