The Decline of Allodial Title in Ghana
Meaning of the term – Allodial
The word ‘Allodial’ means absolute interest or original heritage’.[1] In Ghana, it is described as “the highest or ultimate interest in land”.[2] Historically, allodial pertained to land owned by a person without any feudal obligations or held without acknowledgement of any superior.[3] Allodial title can therefore be said to be the mother of all interests in land. In the 1999 National Land Policy document by the Ministry of Lands and Forestry, it was captured thus: “Fundamentally, land ownership is based on absolute “allodial” or permanent title from which all other lesser titles to, interests in, or right over land derive. Normally, the “allodial” title is vested in a stool, skin, clan, family, and in some cases, individuals.”
Evolution of Allodial lands under the English Law
Allodial interest in land in England is vested in no other than the crown. This is of historical relevance tracing back to the eleventh century. William was the duke of Normandy. It is worth mentioning that Normandy[4] was a separate state from England which was under the King of France. In the year 1066, Duke William invaded England and prevailed against rival forces led by Harold. Victory was eventually secured on 14 October in the Battle of Hastings where William was nicknamed ‘the Conqueror’. Upon his coronation in London on Christmas Day of that year (25 December 1066), King William I continued to face stiff opposition in the ensuing years from local settlers, particularly from the English elites. It is reported that William saw no distinction between the conquest of a state and the acquisition of land of that country.[5]
From the year 1072, King William seized the lands occupied by the elite settlers. When some of the aborigine elites sensed danger, they fled England. To be able to control his new kingdom, William granted the land he had confiscated to his followers who supported his cause. Some of these subject beneficiaries also granted portions to their lands to their charges and tenants. The subjects held the usufructuary interest while the Crown was recognized as the ultimate owner (allodial owner). “William the conqueror took the view”, according to Agbosu[6] “that since English landowners had denied his right to the crown and he had to assert that right by force of arms, their landed possessions became vested in him and he could deal with them in any manner he pleased”.
The Crown is still the absolute owner of land in England. However, this is just notional or ceremonial as families and individuals continue to own lands in England. Ownership of unacquired landed properties such as forest, mountain areas, water ways, pasture land etc. is undoubtedly vested in the Crown in trust for the entire people of England. In other words, there is only one allodial owner of land in England and that is the Crown. BJ da Rocha and CHK Lodoh explained in their land law book thus: “The fundamental principle of the English law of real property is that all land in England is owned by the Crown. The Crown is therefore the only allodial owner of the land”.[7]
Differences between allodial title under English Law and Customary Law
Whereas, the allodial title in England has always been vested in the Crown, that of Ghana was not originally vested in the state but in communities such as stools, skins, clans and families. In present day Ghana however, the state is also able to hold allodial title mainly as a result of compulsory acquisition. Further, the highest interest which a group, family or individual can hold in land in England is the freehold interest, because the Crown holds the allodial title. The same however cannot be said of Ghana where families and even individuals can hold title to allodial lands and by that reason, they wield some fairly enormous powers. In the words of one writer, allodial title holders “execute judicial, governance and management functions over land”.[8]
It is pertinent to say that because the Crown holds the allodial title in England, the theory is that every proprietor of land in England is a tenant holding it directly or indirectly from the Crown. Hence, land holding in England is based on tenure and estates. Tenure indicates the basis upon which a person or group holds the land, while estate is in reference to the quantum and duration of the interest held in the land.[9]
According to BJ da Rocha and Lodoh, because allodial titles can be held by families and individuals in Ghana, our land system is designed around the terms: ‘titles and interests’ as opposed to ‘tenure and estates’ in England. In practice however, this assertion does not always appear to be the case.[10] For instance, in a paper by the Ministry of Lands and Forestry titled, ‘Emerging Land Tenure Issues, dated 22 August 2003, copious reference was made to land tenure system in Ghana.[11]
The courts in Ghana initially resisted the attempt to introduce some of the concept of English land law into our customary land system. Jackson J. held in the Kokomlemle Consolidated Cases[12] that the fee simple estate does not exist in Ghana. About thirteen years after Independence, the Ghana Court of Appeal in the case of Nana Issiw V and Others v. Nana Wiabu IV and Another[13] also held thus: “It is trite learning that Ghana customary land law knows of no estate in fee simple, as understood in English land law“.
This Judicial position that fee simple does not exist in Ghana was challenged by Woodman in his article published in the University of Ghana Law Journal.[14] The learned land law expert and former lecturer contended that the argument of the Court of Appeal was expressed in wider terms, which may be open to question. The “general statement seems to overlook the fact that the law of Ghana does not consist exclusively of customary law. Admittedly, all land in Ghana was once held exclusively by customary-law interests, but for nearly a century now it has been possible for the parties to a transaction to agree to be bound by common law”, Woodman argued. He proceeded to submit that there are possibilities of the fee simple existing in Ghana.
The 1992 Constitution, Article 11 (1) and (2) as well as the Land Act, 2020 (Act 1036) appeared to have put clarified the point. The Constitutional provision recognizes the common law as part of our laws, while the land statute also acknowledges some of the common law tenures such as the freehold interest in Ghana (Although fee simple which is a type of freehold under the common law is not expressly mentioned under our present law).[15]
Attempts by the Colonial Government to dislodge Customary Land Tenure
It is a fact too entrenched in our legal minds that prior to colonialism, Ghana was a conglomeration of independent states with each having its self-contained schemes of landed properties.[16] The lands were vested in the communities as a unit for the benefit of that community and in instances when they formed a federation, as they did in Ashanti, the political association did not affect the total surrender of ownership of land to the federal authority.[17]
Colonial debates on West Africa particularly Ghana began when the European administrators needed land for public use and guarantee security of tenure to European firms interested in concessions for mining or commercial agriculture.[18] ‘One widely favoured solution’, writes Anne Phillips about British colonial policies, ‘was for the state to …. set itself up as landlord’, by vesting all ‘waste lands’, a very flexible concept which could embrace vast territories’ in the Governor or the Crown.[19]Underlying this project was the notion that uncultivated land in West Africa had no ‘owner’ and could therefore be appropriated by the colonial powers as a form of conquest.[20]
There was an attempt by Governor Maxwell to vest all unoccupied lands in the Gold Coast in the Crown when he caused the Public Land Act Bill to be drafted.[21] However, the fierce resistance mounted up against the measure by the intelligentsias and the chiefs of the Gold Coast led by John Mensah Sarbah resulted in the successful withdrawal of the Land Bill. The Bill was seen by the people of the Gold Coast as confiscatory, “on the theory that, by customary law, such unoccupied lands were already vested in the stools in whose jurisdictions they were already situated”.[22]
Although the Land Bill was withdrawn, the colonial government tried yet again to pass the Forest Bill of 1910 to place all unused forest land in the Gold Coast under the colonial administration for the purpose of managing them for posterity. Nevertheless, the indigenes suspected that it was an attempt to reintroduce the Land Bill through the back door so they opposed it. Again, the new Bill could not see the light of day.
In 1912, the colonial office set up the West African Lands Committee to investigate the land law in force in the British colonies and protectorates. The first World War between 1914 and 1918 disrupted the Committee’s work. Only a draft report was prepared in 1916 and the Committee had recommended among other things, the individualization of ownership of land comparable to the English freehold.[23]On this occasion too, the Committee’s proposals were not implemented. One could therefore notice a systematic attempt by the British colonial administrators to alter the customary system of land holding, but could not succeed.
By the time Ghana gained its independence, most of the land the colonial government had succeeded to use the state’s authority to control was in respect of forest and mining concessions. Ironically after independence, the state pass various legislations like the State Lands Act, 1962 (Act 125) and the Administration of Lands Act, 1962 (Act 123) that enabled the state to acquire lands by compulsory acquisition and also enabled the state to vest allodial stool lands in the President.
Admittedly, some European jurists would be confounded about the developments in post independent Ghana – that the same natives who considered it a taboo for the stools to lose their lands to the state or individuals had succumbed to laws that made it possible for the state to take over their lands. In an article published in the Yale Law Journal (1965) titled, ‘Interests in Land in the Customary Law of Ghana – A New Appraisal’, the learned S.K.B. Asante wrote: “Since Independence, there has been a marked increase in the land capacity of the central government. A rapid succession of statutes has armed the Republic with far reaching powers to expropriate land, to control user and actually to administer a considerable sector of landed property. This development would probably strike the Western jurist as staggering unless he had an appreciation of the historical background”.[24]
The Shift from Communal Land Ownership to Individual Land Ownership
Despite the failure of the British colonial office to use laws and policies to convert land ownership from communal ownership into individual ownership, prevailing circumstances in the country gradually forced the change. It needs reiterating the point here that in the past, allodial lands were owned only by stools, skins, families and clans and not of the government or individual.[25] According to R.T. Abdulai and K. Antwi, the African society places a great deal of emphasis on communalism.[26] They cited some African maxims in the work of Gyekye in support of their argument. The maxims include:
- One finger cannot lift up a thing (emphasizing the need for collective action).
- If one person alone scrapes the bark of a tree for use as medicine, the pieces fall to the ground (emphasizing the need for mutual aid and co-operation)
- The left arm washes the right arm and the right arm washes the left arm (It is when two arms wash each other that both become clean; thus the need for interdependence).[27]
Beyond the above, there were many of such maxims that promoted communalism and the following readily come to mind:
- One person does not tie a mad person.
- The hand of one person cannot cover the face of God.
- If one person alone decides to eat, he should be ready to be the only person to have a running stomach.
However, mass migration, urbanization, education among other factors combined in the middle of the 20th century to make the holding of an allodial title by an individual a possibility.[28] The above maxims then gave way to others that focussed more on the creation of wealth by an individual other than that of the community.
- The clan is like a cluster of trees, which when seen from afar appear huddled together, but would be seen to stand individually when closely approached (meaning the individual is real and his or her individuality cannot be diminished by membership in a human community)
- The one crying cries for his own head (meaning one has to think about his own welfare).
- It is by individual efforts that we can struggle for our heads (which means that individual efforts are necessary for our goals)
- Life is as you make it (this reminds an individual to focus on his own goals)
- Nobody cracks palm wine with his teeth for another (this points to the value of initiative and responsibility).
- Nobody drinks medicine for a sick person (that the individual must find antidotes to his problem).
Loss of Allodial lands through adverse possession
It is a basic principle of law that in order to succeed in the defence of limitation, adverse possession must be established. Originally, it was considered doubtful by some legal authorities of land law in the country whether adverse possession could be maintained against an allodial land owner.[29] However, the Supreme Court has in recent times held that limitations of actions can extinguish the title of an allodial land owner.[30]
It must be borne in mind that some communal lands of which a stool or family may hold an allodial interest are considered as ‘no go area’ for trespassers. Writing on the topic, ‘Limitation of Action to recover Land’[31], E.D. Kom noted that not all lands in Ghana can be claimed by adverse possession. He identified burial place of chiefs, sacred groves, and homes of fetish and large tracts of land surrounding these places as being out of bounds to members of the community and strangers for any purpose whatsoever. He explained that it is not because they are res nullius (no man’s land), but because they are res extra commercium (no go area).[32]
E.D. Kom further emphasized that the Forest Act even recognizes the special nature of these lands and the state even warns its officers to stay away from them. The learned lawyer referred to Section 18 (4) of the Forest Act which provides as follows: “Where any recognized fetish grove or fetish tree is included in a Forest Reserve, the Forest Officer concerned shall not wilfully interfere therewith, and shall do the utmost to ensure that the fetish character thereof is respected”.
Apart from making reference to the case of Okai II v. Ayika II (which had to do with a land known as ‘Opete Kpakpo’ meaning ‘Vultures’ Pool, a fetish place of the plaintiff whose royal emblem is a vulture)[33], the learned Civil Procedure luminary’s argument was in short supply of judicial authorities.
Likewise, Sarbah had expressed doubts over the right of anybody to appropriate communal land absolutely. He posited that: “Analogous to such clan property are burial groves or places set apart for burial of the members of each clan”.[34] Poguski, on his part, identified sacred groves, etc. as allodial lands that are res extra commercium.[35]
Judicial decisions on this area of the law are scanty. The consideration of the effect of communal lands adversely possessed is necessary at this stage of our discussion because Section 19 of the Land Act, 2020 (Act 1036) enjoins communities to set apart communal lands such as funeral grounds, football parks, recreational and community centres for the benefit of the people in the area. A breach of the use and interference with such communal lands attracts prescribed sanctions.[36]
It is not known whether an allodial community such as the stool that gave out a piece of land for the common use of the community can lose its allodial title by way of adverse possession, especially when such lands are not ‘sacred lands’ under customary law. Perhaps, we can treat them as res extra commercium due to their communal character and benefit. It remains to be seen how the courts are going to treat lands generally deemed sacred under customary law, in the light of recent decisions that allow adverse possession to be maintained against allodial lands. Again, would the principle of res extra commercium be extended to cover lands contemplated under Section 19 of Act 1036?
Derogation & Constraints on Allodial Title in Ghana
The allodial title now has several limitations including the following:
- The power of the state to compulsorily acquire the allodial title (Subject however to prompt, fair and adequate compensation).[37]
- An allodial stool cannot make any disposition of land without the consent of the Lands Commission.[38]
- An allodial stool, skin, family or clan cannot create a freehold interest in respect of its lands.[39]
- An allodial owner is restricted in the creation or granting of certain interest in lands to non-Ghanaians.[40]
- Public utility service providers like Electricity Company of Ghana, Ghana Water Company, Highway Authority etc. can enter any land (including that of allodial lands) for the purpose of performing their functions.[41]
- The Lands Commission has the power to enter on the land of an allodial owner to demarcate or survey the land.[42]
- Allodial land owners cannot alienate their lands in the absence of a demarcation, survey and plan of the land.[43]
- Non-indigenes who have settled on the land of an allodial owner upon its consent for 50 years is now recognized by law as a usufruct, having the power to alienate and dispose of the land by way of inheritance.[44]
- Ownership of minerals in all lands in Ghana has been taken away from the allodial holders and vested in the President to be held in trust for the people of Ghana.[45]
- The power of the Town and Country Planning to declare planning areas of communal lands.[46]
- The power of a stool to collect and disburse rent has been taken over by the Administrator of Stool Lands.[47]
- Allodial owners can no longer indulge in any discriminatory practice in respect of their lands.[48]
- Consent of traditional council (which is administrative) is required before a stool can alienate its land.[49]
- There is a restriction on allodial owners in respect of land that can be granted for farming purposes.[50] For instance, a land for poultry farming or the cultivation of cereals should not exceed twenty-five years.[51]
- The President has the power to pass an Executive Instrument to authorize the temporary use and occupation of any land (including allodial lands)[52] as well as to declare the temporary use of access to any such land.[53]
Conclusion
Although the allodial title is deemed to be superior to any other interest in land, its invincibility appears to have been broken in Ghana now. Consequently, the description by da Rocha and Lodoh that “In this day and age, it is not quite true to say that the holder of an allodial title is the absolute owner of his land”[54] sums up the point.
Photo by Ronan Furuta on Unsplash
[1] See Ollenu and Woodman, Principles of Customary Law, pp. 7-15.
[2] Section 2 of the Land Act, 2020 (Act 1036).
[3] G.A. Sarpong, ‘Improving Tenure Security for the Rural Poor – Ghana Country Case Study – Towards the Improvement of Tenure Security for the Poor in Ghana – Some Thoughts and Observation’ (FAO, 2006), p.2.
[4] Original inhabitants were Celtic who were conquered by Julius Caesar in 56 BCE and the region became a Roman province. During the latter part of the 5th century, it became part of the French Kingdom, until the French king Charles III the Simple ceded the territory to Rollo, the chief of the Vikings in the year 911. Rollo’s Scandinavian countrymen migrated in large numbers and settled there. They adopted the French culture, religion and language. The Vikings became known as Normans and they named the region they occupied as Normandy.
[5] Raymond Abdulai & Adarkwah Antwi, ‘Traditional Landholding Institutions and Individual Ownership of Land Rights in Sub-Saharan Africa’. – page 311.
[6] Agbosu Lennox Kwame ‘Land Law in Ghana: Contradiction between Anglo-American and Customary Conceptions of Tenure and Practices. Land Tenure Centre’ – University of Wisconsin-Madison (March 2000.
[7] BJ da Rocha and CHK Lodoh ‘Ghana Land Law and Conveyancing’, Second Edition at page 3.
[8] Joseph Blocher ‘Building on Custom: Land Tenure Policy and Economic Development in Ghana’. Yale Human Rights and Development Law Journal (2006) Vol. 9
[9] Op cit.
[10] See World Bank Paper of 2019 titled, ‘Who owns the Land? Legal Pluralism and Conflicts over Land Rights in Ghana.
[11] Available online.
[12] Kokomlemle Consolidated Cases (1951) DD.C. (Land) ’48-51’, 301 at pp. 327-328 also called Golightly v. Ashrifi.
[13] Nana Issiw V. and Others v. Nana Wiabu IV and Another (1970), CA.
[14] Woodman Gordon, ‘Notes and Comments: Land Law Controversies: Does the fee simple exist? What is Tribute?’ (1971) No. 2. Vol. VIII. UGLJ 148-152.
[15] See Section 1 of Act 1036.
[16] See Samuel K.B. Asante, ‘Interests in land in the customary law of Ghana – A New Appraisal’ (1965) Yale Law Journal Vol. 74: 848.
[17] Op cit.
[18] Calora Lentz, ‘Is land alienable? Historical and current debates on land transfers in Northern Ghana’. (Johannes Gutenberg University, Mainz (Germany).
[19] Op cit.
[20] Supra. It is on that basis that the French colonial administration proceeded to declare Francophone West Africa as French domain.
[21] See discussion of Public Lands Bill 1897, in Meek, Land Law and Custom in the Colonies 170 (1946)
[22] Samuel S.K.B. Asante: “Interest in land in the customary law of Ghana” (1958).
[23] See Meek, supra.
[24] Samuel K.B. Asante, ‘Interests in Land in the Customary Law of Ghana – A New Appraisal’ (1965) Yale Law Journal Vol 74:848, 879.
[25] See Ollenu and Woodman, ‘Principles of Customary Law’, p. 7-15.
[26] Supra
[27] Gyekye K., African Cultural Values: An Introduction, Accra Sankofa Publishing Company, Ghana (1998(
[28] See Nyaasemhwe and Another v. Afibiyesan (1977) 1 G.L.R. 27 where the Court of Appeal upheld the plaintiff’s allodial title.
[29] See BJ da Rocha and Lodoh supra.
[30] Ago Sai and Others v. Kpobi Tettey Tsuru III (2010-2012) 1 G.L.R. 231, S.C. & GIHOC v. Hannah Assi (2005-2006) SCGLR 458.
[31] Kom Enoch D. “Limitation of action to recover land”. (1968) Vol. V. NO. 1 UGLJ 13-75.
[32] Things not subject to ownership, commerce or trade.
[33] Okai II v. Ayika II 12 W.A.C.A. 31
[34] Sarbah, ‘Fanti Customary Law’, at p. 64.
[35] Poguski, ‘Gold Coast Land Tenure’ at p. 27
[36] See Section 19 (7) & (8) of Act 1036.
[37] Article 20 of the 1992 Constitution and Section 233 of Act 1036.
[38] Article 267 (3) of the 1992 Constitution and Section 4 of the Lands Commission Act, 1994 (Act 483).
[39] See Article 267 (5) of the 1992 Constitution and Section 9 (2) of the Land Act, 2020 (Act 1036).
[40] Article 266 of the 1992 Constitution and Section 10 (6) of Act 1036.
[41] Examples: See Section 15 of the Electricity Company Act, 1967 (N.R.C.D 125; Section 12 of the Volta River Development Act, 1961 (Act 46); Section 310 of the Ghana Water and Sewerage Act, 1965 (Act 310).
[42] Section 24 of Act 1036.
[43] Section 182 (3) & (4) of Act 1036.
[44] Section 5 (1) (b) of Act 1036.
[45] Article 268 (1) of the 1992 Constitution; Section 1 of Minerals and Mining Act, 2006 (Act 703) & Section 21 of Act 1036.
[46] Sections 9 & 10 of the Town and Country Planning Ordinance, 1945 (Cap 84).
[47] Article 267 (6) of the 1992 Constitution.
[48] Section 11 of Act 1036.
[49] See Section 45 of the Chieftaincy Act, 2008 (Act 759).
[50] Section 22 of Act 1036.
[51][51] Section 22 (1) (a) of Act 1036.
[52] Section 271 of Act 1036.
[53] Section 275 of Act 1036.
[54] See page 1 of their Land Law Book
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.
