Under Ghanaian customary law, property may be divided into four classifications: land, that is to say, the soil or earth; things savoring of land such as houses, huts and farms; movables; and intangible property such as medical or magical formulae.
Traditional thinking drew a sharp distinction between the soil or earth and the tangible fruits of man‘s endeavour thereon. Farms, houses and other buildings were not considered land and were not subject to the doctrinal restraints on alienation which characterized land law. Nor did the customary conception of ‘land’ encompass incorporeal interests or usufructuary rights. But this traditional view has been rejected in recent legislation and commentary.
The Interpretation Act 2009, (Act 792) defines land in accordance with the English definition: ‘Land’ includes land covered by water, any house, building or structure whatsoever, and any estate, interest or right in, to or over land or water. It is not clear whether the above definition disposes of the customary conception of land. DADZIE v KOKOFU.
Ollennu in his book, PCLLG defined land as, ‘The term land as understood in customary law has a wider application. It includes the land itself, i.e. the surface soil, things on the soil, which are enjoyed with it as being part of it by nature, i.e. rivers, streams, lakes, lagoon, creeks, growing trees like palm and dawadawa trees or things artificially tied to it like buildings and any structure whatsoever. It also includes any estate, interest or right in, to or over the land or over any of the other things which land denotes, i.e. right to collect herbs or snails or to hunt on the land’.
In a nut shell, land does not denote only the physical ground. Two main categories make up land, corporeal heriditaments and incorporeal heriditaments. Hereditament signifies rights that are heritable, i.e. capable of passing by way of descent to successors in title.
Corporeal hereditaments include the physical and tangible characteristics of land. These are the physical features of land and consist of the physical surface and everything attached to the land. For example minerals, buildings attached to the surface and plants and trees growing on the land.
Incorporeal hereditaments refer to certain intangible rights which may be enjoyed over or in respect of land. These are intangible rights existing in the land as a physical entity. Thus proprietary rights in the land are classified as land. For example lease, easement and mortgage may all be regarded as land.
⦁ Relationship Between Ownership of the Surface of Land and Rights Above and Below the Surface
The general rule is that ownership of the surface of land carries with it rights to what is below the surface and to control of the airspace above. This is expressed in Latin as: ― cuius est solum, eius est usque ad coelom et ad inferos (meaning whoever owns the soil owns everything up to the heavens and down to the depths of the earth). This rule has seen light in a number of cases.
KELSEN v IMPERIAL TOBACCO CO.
The plaintiff, Mr. Joel Kelsen, was the lessee of a one-storey tobacconist’s shop. He brought an action against Imperial Tobacco Company (of Great Britain and Ireland) seeking an injunction requiring the defendant to remove from the wall above his one-storey shop, a large advertising sign which projected into the air space above the plaintiff’s shop by a distance of some eight inches. The plaintiff claimed that the defendant, by fixing that sign in that position, had trespassed on his air space and that they threaten to continue to trespass unless restrained by the court. HELD: The court held that the air space above the shop was part of the premises demised to the plaintiff, since on the true construction of the lease of December, 1948, there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop. It was further held that the invasion of the plaintiff’s air space by the sign amounted to a trespass on the part of the defendant. Hence, he was entitled to a mandatory injunction requiring the defendant to remove the sign
POUTNEY v CLAYTON (In this case, the rule was not strictly applied)
LORD BERNSTEIN OF LEIGH v SKYVIEWS & GENERAL LTD
STAR ENERGY WEALD BASIN LIMITED v BOCARDO SA
The defendant drilled three wells under the land owned by Bocardo SA in order to extract the oil that lies beneath it. Bocardo SA then instituted an action for trespass against them. The plaintiff‘s argument was that, since it owns the land, it therefore mean it owned everything attached to the land. The defense on her part was of the opinion that because the minimum depth of the well is about 800 feet, it cannot be reasonable to say that they are trespassing on the plaintiff‘s property, and that their activity cannot negatively affect the plaintiff‘s use and enjoyment of their property.
HELD: Since the defendants’ aircraft had flown several hundred feet above the ground and had not caused any interference with any use to which the plaintiff put or might wish to put his land, the defendants had not infringed such rights as the plaintiff had in the air space and had not therefore committed a trespass.
REASON: The rights of an owner of land in the air space above the land extended only to such height above the land as was necessary for the ordinary use and enjoyment of the land and the structures on it, and above that height the owner had no greater rights in the air space than any other member of the public.
The definition of land however includes fixtures attached to the land. This is in tune with the CL principle of quicquid plantatur solo, solo cedit (meaning whatever is attached to the ground becomes part of it). The law thus distinguishes between fixtures and chattels.
Fixtures comprise that category of material objects which, when physically attached to the land, are regarded as becoming annexed to the realty.
Irrespective of their previous ownership, title to such objects, thenceforth vests automatically and exclusively in the owner of the realty or land. By contrast the category of ‘chattels’ consists of objects which never lose their character as mere personalty, but which retain their ‘chattel’ status even though placed in some close relationship with realty.