OCTOBER 2013
Legal Focus
clear and predictable rules on the acquisition of State land, this is not necessarily the case with stool and family lands. Valid alienation of the stool and family lands often requires concurrence of principal elders of the stool/skin and family heads to confer legal validity on the purchaser. The absence of such concurrence may result in the voiding of land transactions. Again, in situations where there are several stools or families claiming ownership over
the same
parcel of land (and this is a common occurrence) it becomes difficult for the purchaser to secure the necessary concurrence. Often the contested ownership leads to multiple sales of parcels of lands to different purchasers triggering long-drawn out land litigation that can last for years. A company that purchases such lands risks being joined in legal suits with its attendant legal costs and time wasting.
Furthermore, Ghana lacks a formal and well-regulated land market. In the result, land prices hardly follow any predictable trends leading to vast distortions in the prices of land. Prices of land keep varying particularly in the urban areas; sometime without any sound or rational basis.
Another obstacle to the acquisition of land in Ghana relates to uncertainty about the title of vendors. With most lands in Ghana being unregistered lands and with land title registration as opposed to deed registration being now confined largely to urban settings, there can be lack of clarity as to who owns what. Even with land title registration which by law confers indefeasible title good against the whole world, the Ghanaian courts have in some cases cancelled or annulled land title registration certificates that have been secure fraudulently. In effect, what this means is that a land title certificate without more in some cases cannot provide the requisite comfort for a purchaser.
In addition, land litigation is rife in Ghana and may take decades for eventual resolution. A lawful purchaser may have to spend time and other resources to defend its interests, sometimes against nuisance suits by members of the land-owning family who after completion
of sale seek to obtain or extort additional consideration from purchasers.
Last but not least, it is worth-noting that there are statutory controls on the acquisition of stool/skin lands. In dealing with these controls, purchasers have to engage public and civil servants. For example, Section 8 of Administration of Lands Act,1962,Act 123 provides that “any disposal of any land which involves the payment of any valuable consideration or which would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, and which is made, (a) by a Stool; (b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration,
shall be
subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted.”
The law is very clear that where there is alienation without
the Minister’s
concurrence it is void although a person aggrieved by the refusal of
the
Minister without good reason to grant concurrence can seek judicial review. However, the process for securing the ministerial consent can be fraught with red-tape and sometimes plain corruption.
What strategies exist to overcome some of these challenges?
In the first place, it is absolutely important for a company interested in purchasing land in Ghana to secure the services of local counsel to conduct proper factual and legal due diligence. A potential purchaser must carry out
some
preliminary enquiries to find out whether or not the vendor is the actual owner of the land and whether the vendor is a representative of a family or stool with the requisite permission of the elders of the stool or family to carry out the sale. Prior to the purchaser executing the deed of transfer or conveyance, it is advisable for the parties to enter into a formal agreement for the sale and purchase of land. This agreement must provide for
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