Court Judgments on the Ropes: Unintended Consequences of the Land Act
Introduction
The Land Act, 2020 (Act 1036) of Ghana was enacted on the 23rd day of December 2020 to streamline land tenure system, enhance land administration and promote efficient land management. At its inception, the Act was gladly received by most Ghanaians. Not many would question if it was classified as one of the well-thought-out and purposeful legislations in contemporary times.
It was of little wonder that the legal community, land administrators and land experts were instrumental in outdooring its timely arrival on various platforms and organized programmes. What was perceived as the Act’s magical wand was the numerous innovative ideas and practical mechanisms infused into land administration and tenure in Ghana by its 283 provisions (sections).
Despite its noble objectives, the application of some of the novel provisions introduced by the Act poses unintended challenges, particularly in the realm of court judgments. Rather than their expected role of terminating litigations, they seem to end in a cliffhanger opening a new chapter of frustration in the lives of victorious parties.
The Controversial Provisions on Court Judgments in Act 1036
The two provisions on court judgments identified in Act 1036 fraught with controversy in their applications are Section 64 (1) (c) & (2) and Section 179.
- Section 64 (1)(c) & (2)
By way of introduction, “title” is the means by which a person establishes his right to land.[1] A person’s title indicates by what means he claims to be the owner of land.[2]
Section 64 (1) of Act 1036 provides the source of a “good title” to land in Ghana thus:
“A good title is derived from:
(a) an enactment,
(b) a grant, vesting order or conveyance from the State,
(c) a final judgment of a court of competent jurisdiction; or
(d) a grant, an acquisition under customary law, conveyance, an assignment or mortgage which is at least thirty years old and establishes that a person is entitled to convey an interest in the land.”
For many years, confusion existed in the landscape of title registration due to the fact that most judgments of the courts that were submitted to the Land Registrar conflicted. To curb the situation, the law maker introduced into Act 1036, section 64 (2), to ensure that conflicting judgments of courts of coordinate jurisdiction covering the same subject matter are stripped of their status of “good title”.
Subsection (2) of Section 64 thus provides:
“Paragraph (c) of subsection (1) does not apply where there are conflicting judgments of courts of coordinate jurisdiction in respect of the same subject matter.”
In effect, while “good title” could originate from a final judgment of a court of competent jurisdiction, the same could not be said about conflicting judgments of courts of coordinate jurisdiction in respect of the same subject matter land.
A “final judgment” of a court in subsection (1) (c) of Section 64 literally is the last decision of a court that resolves all issues in controversy and settles the parties’ rights with respect to the said issues. Therefore, if a judgment of a District Court resolves all issues in controversy between the parties and no appeal is mounted against it, the judgment undoubtedly becomes a final judgment. In that respect, the rule of estoppel per rem judicatam would step in to bar the parties and their privies from relitigating the same subject matter either in the District Court or in any other court including the High Court even if the judgment could be shown to be wrong in law.[3]
It is worth stating the point that the traditional concept of estoppel per rem judicatam rule did not permit an issue to be relitigated. In Aniomega & Ors. v. Ahiabor & Ors,[4] the Court of Appeal held thus: “Where the mutual rights of two parties have been adjudicated upon by a court of law, it is not open to one of the parties to go to a court of coordinate jurisdiction and reopen the whole matter …”
It may seem that while the estoppel per rem judicatam principle operates to bind the parties and their privies, under subsection (2) of Section 64, the parties in the conflicting suits need not be the same or privies. In a way, the law maker reinvented the wheel of the estoppel per rem judicatam rule so far as the suits affected the same subject matter land.
The application of the law may produce absurd consequence where a judgment of a court cannot be relied upon as proof of title, simply because it is “conflicting”. For example, A issued a writ against B at the Dodowa District Court and during the pendency of the suit, C also sued D at the Adenta District Court over the same plot of land. Judgments were entered for A and C in their respective suits. If E who was not a party or privy to either of the parties to the two suits trespasses on the land and it comes to the attention of A, why should A not be able to rely on the title declared in his favour as proof of his ownership?
Admittedly, the provision of the law in its current state could make sense in situations where A and C, in whose favour title was declared in the two suits, are seeking to register the same land at the Lands Commission. Where, however, they are seeking to rely on the declaration of title for evidential purposes in a subsequent litigation against third parties, it is difficult to comprehend why the declaration of title in their favour would not be recognized as “good title”.
The fact that Section 64 (2) of Act 1036 affects only judgments from courts of coordinate jurisdiction adds to our confusion. It has been observed, quite profoundly, that while the phrase “courts of coordinate jurisdiction” is not new to Ghanaian jurisprudence, its real import has sometimes been lost on us.
“Coordinate jurisdiction” is often conflated with concurrent jurisdiction[5] and refers to a jurisdiction that might be exercised simultaneously by more than one court over the same subject matter. His Lordship Marful-Sau (of blessed memory) in his Civil Procedure book[6] used dissolution of marriage as an example, that it is a jurisdiction which the High Court, the Circuit Court and the District Court can all hear. By way of illustration, if a District Court is vested with jurisdiction over a certain matter and the High Court or Circuit Court is empowered to exercise that same jurisdiction, the matter becomes one which the two different courts could be said to have concurrent or coordinate jurisdiction.
Concurrent jurisdiction specifically is a recognized concept under Ghanaian jurisprudence and it derives its statutory strength from Section 101 of the Courts Act, 1993 (Act 459) as amended.
While concurrent jurisdiction has often been interchanged with coordinate jurisdiction, it is important to note that coordinate jurisdiction has sometimes been used by the courts to refer to courts of the same rank or order, such as a High Court and another High Court or a District Court and another District Court.[7]
If the provision of the Land Act under consideration is construed in the light of the former meaning where coordinate jurisdiction is used in respect of different tier of courts exercising jurisdiction over the same subject matter relative to Section 101 of Act 459 supra, it will mean that where there are conflicting judgments of a District Court and the High Court over the same subject matter, none could be considered as “good title”.
If we apply the latter interpretation of coordinate jurisdiction (such as High Court and High Court) to the provision, Section 64 (2) of Act 1036 will not apply where the conflicting judgments over the same subject matter were delivered by different hierarchies of courts, such as one by a High Court and the other by a Circuit Court.
In considering the two notions of coordinate jurisdiction applicable in this case, the latter interpretation in respect of courts at the same rank appears lucid, by virtue of the phrase “conflicting judgments of courts of coordinate jurisdiction” used under Section 64 (2) of Act 1036 such as a District Court and another District Court. Perhaps, if the law maker had used the phrase, “conflicting judgments of courts with coordinate jurisdiction”, we could justifiably situate it within the context of Section 101 of Act 459 supra, such as a High Court sharing jurisdiction with a District Court on a subject matter.
If the interpretation being put on the provision in this instance accords with the intendment of the lawmaker, then it is fair to argue that the new law has, to a greater extent, failed to address the issue of conflicting judgments of different courts over the same subject matter land, because as it is, the provision does not affect conflicting judgments of courts at different ranks, which means that the old problem of conflicting judgments of the courts continues unabated.
Can we imagine that by the application of the law as we have it, while conflicting judgments of two High Courts over the same subject matter render both titles “bad”; a conflicting judgment of a District Court with that of a High Court will still give good title? How ludicrous!
Since the law is that a prior purchaser of land is not estopped or affected by a judgment adverse to his vendor,[8] he may sue in a court of coordinate jurisdiction and if he succeeds, use his judgment to “neutralize” the prior judgment rendered against his vendor.
The possibility of persons contriving to litigate over land in a court of coordinate jurisdiction at the blind side of a prior judgment creditor for the purpose of obtaining a conflicting judgment to “cancel” the prior judgment cannot be ruled out.
- Section 179
It is provided under section 179 as follows:
“Judge’s Certificate and decision of a court
179. (1) A judgment from a court of competent jurisdiction relating to land shall be accompanied with a site plan which delineates the boundaries.
(2) A judgment from a court of competent jurisdiction declaring title to land shall state the specific interest in land granted by the court.
(3)The site plan under subsection (1) shall be approved and signed by the Director of Survey and Mapping Division or a representative of the Director and further signed and thumb printed at the back by the parties and authenticated by the judge or Registrar of the court.
(4) The Judge’s Certificate or a decision of a court which satisfies subsections (1) and (2) may, on production to the Land Registrar, be registered.
(5) A judge’s Certificate or a decision of a court which does not satisfy the requirement for registration under this section shall be noted by the Land Registrar.”
Per subsection (1) supra, a judgment of a court sought to be registered by the Land Registrar must be accompanied by a site plan. It has been suggested by one writer that the civil procedure rules for the High Court and the District Courts should be amended to make site plans mandatory in the hearing of land cases.[9]
A cursory reading of the above subsection could create the impression that the provision affects all judgments relating to land,[10] which could be misleading, because it is not all land disputes that have to do with declaration of title. Land disputes could as well ensue over recovery of possession or damages for trespass, a claim for rescission among others which might not require the registration of the land with the Lands Commission.
In subsection (2), the lawmaker, however, comes out clearly by indicating that the judgment contemplated under the provision must not only declare title to the land, but must specifically state the interest granted by the court. The provision is a step in the right direction as it seeks to curtail the common practice where parties who obtain judgment over a piece or parcel of land take advantage of the judgment to prepare judgment plans covering the whole area or land far bigger than what was declared in their favour by the court.
According to Bentsi-Enchill, Letsa & Ankomah, the provision “… aims at resolving land boundary issues and reducing the likelihood of manipulating the size of lands after court judgments … This will aid the Lands Commission to make accurate entries in the land register and reduce duplication and mistakes.”[11]
Notwithstanding the legislature’s good intention and ingenuity in ensuring that persons in whose favour title was declared register only lands granted them by the courts, the lawmaker seems to have wished for the moon with the demands in subsection (3) requiring the “parties” to sign or thumbprint the back of the site plan of the one in whose favour the title was declared. To demand that the parties (including the judgment debtor) sign or thumbprint the back of the site plan of the judgment creditor so as to enable him to register the land does not seem feasible due to the acrimonious nature of land litigation. In the wisdom of our elders, nobody chews with another person’s teeth, but on this occasion, the law is expecting that to happen.
As an excursus, the provision of Section 179 (3) may be compared to Section 7 of the Customary Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112) as amended, where upon the dissolution of a customary marriage, the Registrar of the District in which the marriage was registered was empowered to register the dissolution if the parties filed statutory declaration of notification. However, with registration of the customary marriage, either party or both parties[12] could apply in writing to the registrar.
It may seem that getting both parties to notify the Registrar that the two had contracted a customary marriage so as to be registered has been made relatively easier (because one person could apply) than getting them to register their divorce, which requires both parties. One may ask, as between the registration of the marriage contracted when the love is fresh and its collapse when the parties might be at loggerheads; which one requires “either party” to apply to the Registrar?
While it cannot be generalized that all marriages end on a bitter note, land litigations have for centuries been contested with intense passion. The Old Testament account of Naboth’s Vineyard is there for our guidance and it demonstrates how rancorous and dirty land litigation can be. Just because of land, Ahab and his wife Jezebel did everything they could to eliminate Naboth and took away his land. According to Justice Dotse, “… because the uses to which lands are normally put are very extensive,people tend to go all out …”[13]
In such situations, the question is, would such land litigants, determined to have the lands at all cost, be ready to cooperate with their adversaries by signing or thumbprinting their site plans for them to enable them to register the land? Your guess is as good as mine! With respect, the provision of Section 179 (3) seems practically a million miles away from reality, especially so, when there are no sanctions in the Act against a party who decides not to sign or thumbprint the site plan of his opponent. Due to the adversarial nature of our jurisprudence, it is even doubtful whether a party can be compelled by the law to sign (and technically validate) his opponent’s documents for him.
The current state of the law is silent on the person responsible for the costs related to transportation and time needed to have the site plan signed or thumbprinted by the parties.
What is more, under subsection (4) of Section 179, the Land Registrar is mandated to register the land only when the site plan accompanying the judgment has fully satisfied the dictates of the law which include the signature and thumbprint of the parties. In the absence of the judgment creditor satisfying the condition, the law provides that the judgment should only be noted by the registrar in his records and nothing more.[14] What an awful end!
If the signature or thumbprint of the parties is a big challenge, the authentication by the judge or registrar is no less perplexing. The judge might have declared the title of four acres of land in favour of the Plaintiff and the site plan might rightly contain a dimension of four acres, but at a different location on the ground. In such instance, we are not sure how the judge or registrar who might not be a technical person in land survey and not directly involved in the preparation of the site plan will be able to detect the error so as not to authenticate the site plan.
Where a judge or registrar of a court authenticates a site plan which turns out to fall within another person’s land, it would be difficult for the judgment creditor to agree to anything contrary or understand that the said land is not his – the likely consequence will be another bout of litigation.
Why the two provisions on court judgments are worth reforming by the Law maker
With all the expectations of Ghanaians from the numerous innovations introduced into the Land Act, one fact is clear – that the buck stops with the courts. What is the motivation for parties to comply with the provisions of the new Land Act when after litigation and title is declared in their favour, they are unable to register their lands simply because their adversaries refused to sign their site plans for them? As a Chinese proverb goes; “It is not economical to go to bed early to burn the candles if the result is twins”.
While the site plan contemplated by the provision could be the one tendered during the trial, it can also mean a post judgment site plan, if what was tendered at the trial was inconsistent with the Court’s final declaration. The preparation of a post judgment site plan, while generally desirable, may undoubtedly become burdensome for the judgment creditor and increase the costs of land litigation in Ghana.
It may further be observed that the lawmaker’s approach in resolving the issue of conflicting judgments, in reality, does not adequately address the problem to the extent that the provision affects only conflicting judgments from courts of coordinate jurisdiction and not all conflicting judgments of courts of competent jurisdiction.
One of the most critical issues from court judgments under Act 1036 is the uncertainty they create regarding land ownership rights, which may end up deterring investors, hinder development, create further litigation and undermine the stability the Act seeks to establish.
Conclusion
The ambitious attempt by the lawmaker to deal with the enormous challenges faced by land litigants in Act 1036 seems to have come with unintended consequences, especially pertaining to court judgments. It is imperative that the lawmaker takes a serious look at Section 64 (1) & (2) and Section 179 of Act 1036 by offering some clarity on the law in respect of the issues raised in this paper.
Until that is done, there is the urgent need for specialized judicial training of judges across the country on the new Land Act to ensure some level of consistency and informed judgments.
The provision of Section 115 on the need for parties to resort to ADR where there are conflicting claims to land situated in a registration district is a preferable alternative to parties who may want to avoid the unfortunate consequences of not getting their title registered after a Court’s declaration. Due to the voluntary nature of ADR, there is some assurance of relative minimal hostility between the parties as compared to court litigation.
Finally, it is suggested that the Lands Commission takes advantage of Section 203 which allows them to state a case before the High Court when they are in doubt as to a matter of law concerning registration of an instrument lodged with them in resolving the issues related to court judgments. For instance, if registration of a title arising from a court judgment is frustrated due to the adversary’s stubborn refusal to sign the site plan, the Lands Commission may state a case to the High Court for determination. It is expected that when that happens, the Court would seize the moment to interpret the law purposively to give effect to parliamentary intention by construing the word “parties” in Section 179 (3) of Act 1036 to mean “judgment creditors”; after all, the barking of the dog should not disturb the clouds.
[1] BJ Da Rocha and CHK Lodoh, “Ghana Land Law and Conveyancing”, (2nd Edn). at p. 99.
[2] Ibid.
[3] See Lartey v. Otoo (2001-2002) SCGLR 80, per Adjabeng JSC; Larinde v. Afiko (1940) 6 WACA 108 and Joshua Botwe Yemoh v. A.G. & 2 Ors. [2016] 97 G.M.J. 98 at p. 119.
[4] [1971] 1 GLR 1.
[5] See Black’s Law Dictionary, Ninth Edition at p. 928.
[6] See Samuel Marful-Sau, “A Practical Guide to Civil Procedure in Ghana”, p.4.
[7] See Nii Ahinquaasro Baddoo & Ors.v. Nii Tettey Okpe II & Ors., Civil App. No. J4/59/2021, dated 12th July, 2023, S.C., Unreported; SIC Insurance Co. Ltd. v. Ivory Finance Co. Ltd., Doris Awo Nkani & Ors., Civil App. No. J4/48/2017, dated 21st February 2017, SC, Unreported and Stanbic Bank Ghana Ltd. v. Osei Yaw Anning, Civil App. No. H1/84/2016, dated 24th May 2017, C.A., Unreported.
[8] Mercantile Investment & General Trust Co. v. River Plate Trust, Loan & Agency Co. [1894] 1 Ch. 578, 595; Attram v. Aryee [1965] GLR 341, SC; Abbey v. Ollenu [1954] 14 WACA 567 and Anim v. Dzandi (2015) 83 GMJ 44 at 75.
[9] See Keynote Address by Justice Dennis Adjei in a Symposium under the Auspices of the Ministry of Lands and Natural Resources on the Theme: “Land Act, 2020 (Act 1036): The Way Forward Towards Effective Land Administration in Ghana” (Available online).
[10] Such as the 2018 Practice Direction requiring composite plans to be drawn in all land cases, when in reality not all land litigations have to do with title.
[11] Bentsi-Enchill, Letsa & Ankomah, “Key Highlights of Ghana’s Land Act 2020” 4th May 2022.
[12] See Section 2 of PNDCL 112.
[13] In the Consolidated Suits of Nene Narh Matti & 2 Ors. v. Osei Godwin Teye and Samuel Lamm Oyortey and 2 Ors. v. Osei Godwin Teye, Civil App. No. J4/13/2017, dated 22nd November, 2017, S.C. (Unreported).
[14] See subsection (5) of Section 179.
