There are two systems of registration operating in Ghana. Registration of deeds or instruments affecting land under Act 122, Lands Registry Act 1962 and registration of title or interest in land under the Land Title Registration Law , PNDCL 152.
The system provided for under Act 122 provides for the registration of the written evidence of the transactions affecting land and does not actually provide for the registration of interest. The system does not deal with the registration of oral transactions. Because of this Act 122 did not adequately deal with the uncertainties and insecurities affecting land.
This led to PNDCL 152 in 1986 which provides for the registration of interest in land; providing for the adjudication of conflicting claims; registration of both common and customary law interest in land and provides that upon first registration, subsequent dealings in the land can only be done through amendments to the register.
Under PNDCL 152, persons whose interests have been registered is guaranteed by the state and it is indefeasible which is not same under Act 122 which just afford registers for potential buyers to look at and draw their own conclusions. The state does not guarantee title under Act 122.
REGISTRATION UNDER THE LAND REGISTRY ACT 1962, ACT 122
What may be registered?
Any instrument may be registered under the act and not title or interest. What is an instrument is defined in section 36-the interpretation section:
Instrument means any writing affecting land situate in Ghana, including a judge’s certificate and a memorandum of deposit of title deeds
Fianko v. Aggrey
THE ROLE OF REGISTRATION-SECTION 12
Registration involves the presentation of four copies of the instrument: the original plus three copies to the land registry. The instrument must be sworn to by the oath of the grantor except in the case of a will or a judge’s certificate and the proof of instrument is in section 5 and section 6.
The document or instrument must be attached with a site plan or map and that too must be sworn to-section 16
When all these have been satisfied, the registrar is required to endorse the duplicate and the original with a certificate stating the date of the registration. A copy is then field at the registry and the original and the other copies returned to the person who presented it-section 12
CONSEQUENCES OF REGISTRATION
A. THE EFFECT OF NON REGISTRATION
1. Section 24- an instrument other than a will or a judge’s certificate shall be of no effect (to pass an interest in land) until it is registered.-Asare v. Brobbey, Odoi v. Hammond, Odamptey v. Clocud: the hold that an instrument affecting land which has not been registered shall be ineffective. The cases say that the instrument is not null and void but ineffective to convey an interest in land until it is registered.
Ussher v darko
Facts: a barrister bought land and had the land conveyance in the second plf’s name. the second plf sold the land to the first plf although there were tenants on the land who were paying rent to the barrister.
The legal consequences which flow from the registration of a deed under that Ordinance and the present Land Registry Act, 1962 (Act 122), are materially different. In particular, section 24 of the Land Registry Ordinance, Cap. 133, under which Matilda’s title deed was registered enacts that: “Registration shall not cure any defect in any instrument registered, or confer upon it any effect or validity which it would not otherwise have had. That being so, the plaintiff’s conveyance offended against section 24 (1) of the Land Registry Act, 1962 (Act 122), and was, on that account, invalid. It did not operate to confer on the plaintiff the legal title it purported to convey. This point was neatly decided by this court in Asare v. Brobbey and was followed in the more recent judgment of this court in Amefinu v. Odametey
djan v owoo
The definition of “instrument” under section 36 of Act 122 is “any writing affecting land situate in Ghana, including a judge’s certificate and a memorandum of deposit of title deeds.” There can be no dispute that the two receipts are instruments under the Land Registry Act, 1962 (Act 122), and they have not been registered as required by section 24 (1) of Act 122. It follows therefore that the plaintiff cannot claim any rights under them.
2. Because it can lead to undesirable consequences, the courts have held that an unregistered instrument may form the basis of an equitable interest.-Amuzu v. Oklikah, Western Hardwood Enterprises LTD V. Western Enterprises Ltd , Fianko v. Aggrey that an unregistered instrument can form the bases of an equitable instrument
3. Oral Grant under Customary Law: since Act 122 provides for the registrations of instruments, writing affecting land, the validity of oral grant under customary law is not affected by non-registration. Brown v. Quarshigah.
B. THE EFFECT OF REGISTRATION-SECTION 25
Registration constitutes actual notice in all purposes and for all purposes as of the date of registration.
But in Amuzu v. oklikah, Western Hardwood Enterprises Ltd v. Western Enterprises LTD, Brown v. QAURSHIGAH, they are to the effect that where in spite of registration there has been fraud by the person who has registered or the registration the result of fraud, the registration is may be ineffective.
C. PRIORITY OF INSTRUMENTS-SECTION 26
The instrument shall, upon registration, take such effect from the date of its execution. In any other case, the instrument shall, except as otherwise expressly provided in this Part of this Act, take such effect from the date of its registration
D. ORAL GRANTS AT COMMON LAW
1. Amuzu v. Oklikah is to the effect that where there is an oral grant, not at customary law but at common law, supported by an act of part performance, an equitable interest will be created In spite of the fact that there is no registration.
2. Oral grants of leases for a period not exceeding three years and taken effect in possession, because by virtue of section 3 of NRCD 175, a legal lease for a period not exceeding three years and taking effect in possession need not be in writing, when this has happened, that legal interest, will still be effective In spite of the absence of registration.
Oral grants at customary law need not be in writing. If subsequent to that the grantor purport to give the same land in writing and the person, register, the fact of the registration of the subsequent transaction will not defeat the purpose of the oral transaction.
CONCLUSION
The government’s instruments affecting land, does not affect the priority and effectiveness of oral grants at customary law. The courts have held that the effects of registration and non-registration are subject to the equitable doctrines of notice and fraud.
REGISTRATION OF TITLE TO LAND, LAND TITLE REGISTRATION LAW PNDCL 152
What may be registered :
According to Act 122 an instrument is any document affecting land ..
According to Act 152 one registers the inherent in land
One can register an allodial, usufruct/customary law freehold-section 19 of Act 152
INTERESTS WHICH CANNOT BE REGISTERED
These are known as overriding interests-Rights or interest which would be binding on the proprietor whether registered or not : easements, profits, customary rights like the rights to go and collect snails etc; leases taken effect on possession not exceeding three years; right of permanent domain
WHO MAY APPLY TO REGISTER
Any person who owes any of the interest above.-section 19 ‘a person may apply to be a proprietor of land if he owes…’
This includes not only human persons but also artificial persons both at customary law and under statute
The law says where the interest is held by a customary law corporate person-stool, family, skin, a customary law company, the interest should be registered in the name of the corporate person and not in the name of the occupants of the management thus the chiefs , or elders or head of family etc but rather in the name of the stool or family.
PROCESS OF REGISTRATION
Registration begins with a declaration of an area by the minister responsible for lands as a registration district. This declaration is made by a legislative instrument. So the minister pursuant to section 5 by legislative instrument declares an area as a legislative instrument
Unlike Act 122 which applies to the whole country, registry under law 152 is only possible after the minster has declared an area as a registration district.
Once the area has been declared as a registration district the Director of Survey is to order that the whole area is surveyed. This then becomes the base-map for the registration exercise. Again it differs from the system under Act 122-there is no requirement for a base -map for the whole area.
After the conclusion of the area map, then individual title holders may apply for their title and interest to be registered.
The law actually had made provision for systematic registration ‘after an a rea is declared as a registration district and that the basemap has been done, that every holder of an interest will be forced to register and all the title of the area will be register and any transaction will take place by an amendment to the register. It was actually envisaged that the allodial titles , the interests of the stools will be registered first and that way, we will then know which stool or which family holds a particular interest unfortunately this vision was not realized and so what we have had is sporadic registration therefore the improvements that was envisaged under law 152hasnt been quite realized’.
When you apply, you go to the land title registry and you are given a form. The form depends on the interests that you have so the form for a leasehold is different from that of the freehold. The form is filled attached to what documentation you have in support of the interest that you have. Where you have no documentation , as for instance where you are relying on a customary law interest, then you will not have a transaction and therefore a document evidence transaction and so you will be required to swear to a statutory declaration attached to the form , attaching a siteplan and submitted the application and pay the register.
A form is also given to you to take to the director of survey to survey the land. The Director of Survey is ten to take the applicant to the land where the applicant shows the boundaries of the land and the officers of eth survey department will then prepare a siteplan fixing into the basemap. After all these have been done , the Chief Register is supposed to publish in the newspaper which circulates in the area that the land is. The law requires them to publish the application ; name of the applicant , description of the land, the area where it is etc.
After the publication , the Chief Lands Register is supposed to wait and see if any caveat will be entered-whether somebody will come out claiming to have an interest in land.
Where there are competing claims , the law provides for the setting up of a land title adjudicating committee composed of three persons chaired by a lawyer to know the rightful owner. this has collapsed so where there are conflicting claims , the practice now is that the chief lands registrar tries to mediate and if not successful, court action follows.
So once the process is concluded , the person is registered as holding interest in land with title certificate issued to the person.
THE EFFECT OF REGISTRATION
Sections 18 and 43 of Law 152.
Registration in the land register shall be conclusive evidence of the title of the proprietor-once an interest has been registered, no claims inconsistent with the interest shall be enforced. There are some exceptions however. Registration vests in the proprietor an indefeasible title guaranteed by the state unlike under Act 151-thus it is a complete answer in any adverse claim.
What then are these exceptions and limitations?
• Encumbrances and conditions if any showed in the register.-43(2)
• The rights of the Republic of Ghana to all minerals in Ghana –the registration of the interest is subject to the constitutional provisions and provisions in the minerals and mining act
• Subject to overriding interests-section 46-(g) is very important;
note also that under section 50, registration constitutes actual notice to all persons for all purposes.
Once an interest has been registered, subsequent dealings in the land are only possible by the use of prescribed forms and subsequent amendments as to the register.
It should be noted also that in Brown v. Quarshigah, Registration under Law 152, is subject to the equitable doctrine act of notice.
RECTIFICATION
Because of this requirement that it is conclusive and indefeasible, there are circumstances in which the register must be rectified-sections 121 and 122. So the registrar in some instances and the courts in other instances have the power to rectify the register.:
• Where there are clerical errors or omission or some other matters that do not affect the interest of the proprietor
• Where at any time all interested parties consent to the rectification of the register
Rectification by a court-122: where a court is satisfied that registration has been obtained, made by fraud or mistake , the court may order rectification of the register provided however that a court may not order rectification of the register where there has been a bona fide purchaser.
Indemnity upon rectification-123: a person who suffers damage as a result of rectification or mistake or omission which cannot be rectified is prevented from acquiring an interest in land is entitled to be indemnified by the government
126-any person who has caused or substantially contributed to the loss shall indemnify the Republic of Ghana.