It has been called the Usufruct, Determinable Estate, Customary Freehold or Customary Law Freehold.
In Roman law, usufruct was the right of using and enjoying property belonging to another person provided the substance of the property remained unimpaired or unchanged. In Roman law, a usufruct was not capable of being alienated. In addition, the Roman usufruct did not survive the life of the usufructuary. On the other hand, the Ghanaian usufruct is inheritable, alienable and potentially perpetual. The usufruct was described as a burden on the allodial title. According to this view, the usufruct is not another species of ownership in itself but consisted of perpetual rights of beneficial user or land, which now co-exist with the allodial title.
However, in Awuah v. Adututu, the Supreme Court described the usufruct as “a specie of ownership co-existent and simultaneous with the stool’s absolute ownership”.
KOTEY v ASERE STOOL
The plaintiff appellant claimed ownership to a parcel of land called the Mukose. Members of the Abbetsewe family purported to sell the land to another upon the consent of the ASERE MANTSE. The plaintiff claims the said land as his ancestral property. At trial the trial judge rejected the plaintiff claims because he was a subject of the ASERE stool and thus could not claim the land as his is ancestral property. Held: the plaintiff family had a usufruct title subject to the paramount title of the ASERE STOOL. The plaintiff had asserted their title by prove of land litigation.
Moreover per lord Dening, that the customary land law of Ghana had developed so as a limitation of the right of the usufruct would be inappropriate. A usufructuary right in possession is now an estate or interest in the land which the subject can alienate, use and deal with as his own, so long as he does not prejudice the rights of the paramount stool to its customary services. He can alienate to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do.
ACQUISITION OF THE USUFRUCTUARY INTEREST
It can be acquired in four (4) ways.
1. Discovery of vacant land by pioneers of a stool.
As a general rule, when the subjects of a stool discover unoccupied land, and subsequently settle thereon and reduce into occupation, [the stool acquires the allodial title and the subjects acquire the usufruct. See Ngmati v. Adetsia
2. Implied grant from a stool.
Subjects of a stool have an inherent right to a usufruct in any unoccupied portion of stool land and the fact of the occupation and cultivation by a subject was all that was required to establish a usufruct. No formal grant was required. See the following cases:
Ohimen v. Adjei
The plaintiff sues as the head of the nana daquah family of the asona clan. The defendants is the occupant of the agona stool and a member of the asona clan. The defendant purported to grant a portion of the ananfo land in which the plaintiff had possession of. They sue the defendant for a declaration of title. Held: the allodial title of the land is vested in the stool. A plaintiff held the usufruct title. The court per Ollenu j held that a subject who able to gain possession of a portion of the stool land through his own industry is a holder of the usufruct and the defendant could not grant the land to other without the consent of the usufructuary holder. The subject usufruct could maintain an action of title to the land against the stool.
Bruce v. Quarnor
Oblee v. Armah
The parties are subjects of the James town stool. The parcel of land in dispute is located in korle gonno. The plaintiff claimed to have obtained a grant from the stool. The land was subsequently vested in the government. The stool purported during the time of acquisition to grant the land to the defendants. The plaintiff sues to title. Held: a native need not an express grant to occupy a vacant stool land which he has a right to a portion. The only limitation to the extent of land occupied by the subject of the stool is his industry that is his ability to cultivate the land. However, to ensure that there is adequate land for all subjects the stool could make an express grant of the land to the subject. The title of a usufruct held by the plaintiff extends beyond the use of the land for farming but to the use of the land for building purposes. A land in possession of a subject cannot be granted to another subject without the consent of the usufruct holder in this instance the plaintiff. The grant by the stool during the period the land was vested in the government was void. And since the plaintiff obtained no compensation from the government during the period of acquisition is right to the reversion when the land is divested is still in force.
Budu II v. Ceasar (1959) GLR 410, at 426).
The plaintiff instituted the present action against the defendants for failing to honour an arbitral award. The court found that the purported arbitration was merely a negotiation as such the defendant was not bound by the decision unless he consented to it. The issue in dispute was over a parcel of land which the plaintiff claimed to be part of his stool land. HELD: The court held that the land in question was that of Caesar who obtained an absolute title through purchase in custom described as Guaha. Moreover, ollenu j held that the defendant could alienate the land without the consent of the Atimpoku stool. Of greater amplitude was that a subject of the stool is entitled either by an express grant from the stool or an implied grant to occupy any vacant portion of the land
3. Express grant from a stool.
Such grants were usual in the case of urban lands where some supervision of the allocation of plots was necessary for the purpose of orderly development and equitable allocation of communal lands.
Armatei v. Hammond
Frimpong v. Poku
The plaintiff sues the defendant for trespass on a parcel of land he purchased from the sakori stool of goase. The defendant was granted a parcel of land for two farming seasons. At the time of the grant he was not a subject. He cultivated into the land which was granted to the plaintiff despite being told to stop by the elders of the stool. He later became a subject of the stool through customary naturalization. At trial the trial judge gave a judgment in favor of the plaintiff. On appeal HELD: per Akuffo Addo CJ, that the principle of customary law which says that a subject is free to cultivate any extent of stool land does not confer on a subject an unlimited license for indiscriminate cultivation, and a subject usually obtains the formal permission of the stool for the purpose. In modern times, it has become necessary to ensure a more equitable distribution of available land for cultivation and the practice has been for limited areas to be demarcated for subjects of the stool.
⦁ It must be noted, however, that though the subject may now be required to seek an express grant from the stool, the subject’s access to land still remains an entitlement.
4. Transfer.
Could be from a subject to a subject or from a subject to stranger.
Kotey v. Asere Stool
⦁ Such grant to a subject or stranger being one under customary law is effective from the moment it is made and a deed subsequently executed by the grantor may add to, but cannot take away from the effect of the grant already made under customary law.
Bruce v. Quarnor
⦁ Whether a subject has satisfied the degree of occupation required to confer the usufructuary title is a matter to be determined on a case by case basis. The general rule is that the presence of economic trees on the land is a prima facie indication that someone is in occupation.
Norquaye-Tetteh v. Malm
The defendant claimed to have acquired the disputed land from the previous occupant of the Akumadjaye stool, & the plaintiff claimed title through the current occupant. Counsel for the plaintiff argued that the onus was upon the defendants to prove by positive evidence of occupation that the land in dispute was the identical land which the stool had previously transferred. HOLDING: The defendant was in lawful possession of the land at the date the plaintiff entered & attempted to exercise acts of ownership. REASON: The existence of trees like mango or cashew on land overgrown with weeds is prima facie evidence that the area where they are found is a farmstead, once under cultivation by the person who now harvests their fruits.
Wuta Ofei v. Danquah
The plaintiff brought this suit claiming ownership of a given portion of land at osu, christainsborg. She obtain an oral grant by custom from the osu stool and erected pillars with her initials on them. She later obtained an indenture confirming the deed of gift of 1939. The appellant built on the land in 1948 and was sued for trespass and damages. HELD: It was held by the privy council that possession need not necessarily be cultivating on the land or developing the land but placing blocks at the four corners of the land was sufficient possession though exiguous against one who never had a title to the land.
⦁ Note that this principle amounts to a presumption, which can be rebutted by contrary evidence.
⦁ The subject can alienate so long as the obligation to recognise the allodial ownership of the stool is preserved.
Total Oil Products v. Obeng
Thompson v. Mensah
The plaintiff claimed a declaration of title to a piece of land around Ring Road, Accra, asserting that he acquired it as a grant from the Korle Webii (priest). The defendant argued that he acquired the land as a grant from the Atukpai (Kotey???) family and was in negotiation with the Korle Webii to perfect his ownership. The Kotei family was in possession at that timeThe main issue is whether the deeds of the plaintiff conferred on him a valid title.
Held: A usufructuary title can be transferred without the consent of the real owner (allodial title holder) provided the transfer carries with it an obligation upon the transferee to recognize the title of real owner and all the incidents of the subject’s right of occupation including the performance of customary services to the real owner.
Awuah v. Adututu
⦁ However, when alienation is without the consent of the stool, it is only voidable, not void and can be set aside only when the stool acts timeously.
Buour v. Bekoe
The plaintiff’s predecessor pledged the disputed land to the first defendant, who refused to accept it & the 2nd defendant who like it, advanced the money & took the farm. In the plaintiff’s predecessor attempt to redeem the land, the first defendant initially agreed that it was given as a pledge for a loan but later alleged that it had been sold, & not pledged. The plaintiff’s witness who was the linguist at the date of transaction deposed that he witnessed a transaction of loan & pledge, & not sale. Therefore the consent of the odikro was not needed & not obtained. No portion of the purchase price was paid to the odikro, as would be the case in sale of land to a non-subject. HOLDING: On the evidence, the transaction was one of loan and pledge and not one of sale and conveyance of the land. REASON: *Sale of possessory rights in land by a subject to a non-subject without knowledge & consent of the stool is voidable, not void. Therefore if it is shown that the Odikro and the principal elders knew of it, but sat by and allowed the purchaser, in the belief that he has acquired good title, to incur expenses to improve it, the stool will be held to be estopped.
⦁ On the other hand the stool cannot make a valid grant of land in which a subject holds the usufruct without the consent of the subject.
Total Oil Products v. Obeng Awuah v. Adututu Baidoo v. Osei & Wusu
Mansu v. Abboye
The plaintiff, a subject of the Yarbiw stool, sought a declaration of title to the disputed land claiming that his ancestors had cultivated the land & it into possession. An attempt had previously been made by the State Farms Corporation to appropriate land for cultivation. Upon complaints by the co-defendant as chief & the town inhabitants, land which had not already been cultivated was released. The plaintiff’s land was part. The defendant, on the authority of the co–defendant then entered the plaintiff’s said land, uprooted 215 wild palm trees and tapped them into palm wine for the co–defendant. The defendant asserted that the plaintiff had lost any rights he might have had over land when it was acquired compulsorily for the State Farms Corporation, & upon its release was vested in the Chief of Yarbiw. Trial judge held for defendants & plaintiff appealed. HELD: The allodial owner, without the permission of the usufructuary owner has no right to the economic trees on any land which is in the possession and control of the usufructuary owner, whether those economic trees were cultivated or grew on the said land without the intervention of human labour. On the other hand the only title in land which a subject can claim against a stool is the usufructuary title to the portion of the stool land in his actual possession. Stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and uncertified breaches of customary tenure, or upon abandonment.
But compare opinion in Armatei v. Hammond
EXTENT OF BENEFICIAL USER AND ENJOYMENT OF THE USUFRUCT
⦁ Holder of the usufruct has exclusive right of possession and use of the land. There were no restrictions on his use of the land—could be for farming or building purposes. Oblee v. Armah, Mansu v. Abboye
⦁ The holder of the usufruct can maintain an action in trespass against the stool and can impeach a grant made by the stool without his consent. Awuah v. Adututu
⦁ The subject was required to render customary services to the stool; it has been said that this duty was not a consequence of the proprietary relationship between the stool and a subject but rather by virtue of the political and kinship ties between them. In other words, a subject who does not have a usufruct in community land still owes allegiance to the stool.
INCIDENTS OF THE USUFRUCT
⦁ Right of Possession
It is a right in rem and exclusive and is a potential perpetual term allowing the bearer to possess it for an indefinite period of time. It is potential because it is possible for the term to end. This right of possession cannot be divested by the stool/family to another party or for public purpose without the consent of the subject or stranger holding the land. ROBERTSON v NII AKRAMAH, MANSAH v ASAMOAH, OHIMEN v ADJEI, OBLEE v ARMAH
⦁ Use and Enjoyment
The owner is entitled to all economic tree he plants. However, the allodial owners are entitled to all, trees growing naturally on the land. As regard natural growing trees, the usufructuary can also use them for his personal purposes only. MANSU v ABBOYE
⦁ Right of Alienation
The title holder can grant. However, he cannot grant anything higher than what he holds as this will result in adverse claim. The holder in his own accord can decide to grant a lesser right or all of his right to another person. No consent is needed provided due recognition is given to the allodial title in the transaction. THOMPSON v MENSAH, TOTAL OIL V OBENG.
It is important to note that when alienation is without the consent of the stool, it is only voidable, not void and can be set aside only when the stool acts timeously. BUOR v BEKOE
⦁ Right to an Action in Trespass
The holder of the usufruct can maintain an action in trespass against the stool and can impeach a grant made by the stool without his consent. AWUAH v ADUTUTU
NUNEKPEKU v AMETEPE
The plaintiffs brought an action against the defendant for the recovery of possession of land & an order for the defendant to vacate the land. They claimed defendant was not a member of the family thus was not entitled to occupy family land. The defendant contended that he was a member of the family & therefore was entitled to occupy & cultivate the disputed lands. HELD: An action for recovery of possession was a wrong against possession, and therefore the main fact which a plaintiff must prove in order to succeed was possession. But where, as in the instant case, the defendant pleaded possession then it was incumbent upon the plaintiff to prove that he was in possession at the time the defendant entered upon the land and wrongfully dispossessed him of it.
⦁ Heritability of the Usufructuary Title
It is well settled in customary law that the usufructuary interest is heritable. This means that in the event of the death of the usufructuary holder, his interest will devolve on his next- of- kin. MANSAH v ASAMOAH
⦁ Right To Compensation
In Owusu v. Manche of Labadi, it was held among other things that the subject of a stool acquires usufructuary rights which did not derogate from the stool‘s dominion, and while as such usufructuaries the subjects were entitled to a share of the compensation upon its distribution in accordance with native custom. The stool was the proper authority to receive the compensation.
⦁ Rights to Customary Service
The duty of the usufruct is to render customary service to the stool. These services were eligible, not in consequence of proprietary arrangement between stool and subject, but by virtue of the political and kinship ties binding them
LOSS OF THE USUFRUCT
1. Abandonment. Mansu v. Abboye
2. When the usufructuary denies the title of his grantors. Total Oil Products v. Obeng
3. Failure of successors. Mansu v. Abboye
4. By consent of the usufructuary. Mansu v. Abboye
THE NEW USUFRUCT
Woodman has argued that the rights enjoyed by the subject usufructuary have reached a point where one can safely say that when a subject acquires the usufruct, it essentially extinguishes the allodial title. Look above at the decision of Denning LJ in KOTEY v ASERE STOOL. Look at the reasoning in AWUAH v ADUTUTU.
The usufruct has undergone some form of development. At the initial stage of settlement, the stool was the absolute owner of all lands without any encumbrances on its title. Every member of the tribe had equal rights to wander over and hunt upon the land which belonged to the group. With the advent of settled agriculture, the members‘ right of user of the stool land i.e. right to occupy, till enjoy an unappropriated part of the stool land. The customary usufruct was perpetual and heritable. It substituted as long as the subject continued to use the land and will only revert to the stool upon abandonment.
The customary usufruct underwent a second change with the advent of the tree crop farming. Commercialization of agriculture led to commercialization of land and the subsequent birth of an agricultural land market. The usufruct in stool land has matured into a ―freehold‖ owing to the impact of modern economic and social phenomena. The security of corporate or family holding as corporate entities has also followed the same line of development. The usufruct, then as heritable and persists in perpetuity is seen to assure security of tenure.
CONSTITUTIONAL AND STATUTORY INTERVENTIONS
Article 267(5) of the 1992 Constitution prohibits the grant of freehold in stool land. The question that lingers is whether this article takes away the inherent rights of the subject.
In addition, Article 267(5) of the Constitution has implications for the customary freehold. There has been some debate as to the full import of this constitutional provision, especially with regard to the extent to which it affects the land rights of subjects of the landowning communities and other customary freeholders. Taken at face value, this clause could be taken to mean that all holders of the customary freehold of stool lands and ‘strangers‘ are being turned into tenants of the chiefs. However, this interpretation would impute to chiefs ownership rights that do not exist in customary law.
An interpretation of Article 267(5) as prohibiting the grant of customary freehold interests in stool lands could empower chiefs to feel justified in issuing only leases even to their own subjects, thus further eroding the rights of customary landholders and their ability to resist re-appropriation of customary lands for ‘development‘ purposes by stools which wish to cash in on the rising value of peri-urban lands. It has been strongly argued that Article 267(5) should not be interpreted as an outright prohibition on the grant of ‘customary freehold in stool lands, and neither should the provision invalidate such freehold where already declared, nor prohibit the registration of a land transaction described as a ‘customary freehold‘, where the grantee or the transferee is a subject of the landowning stool.
Kwame Gyan in his article, ARTICLE 267(5) OF THE 1992 CONSTITUTION AND THE DEATH OF THE
FREEHOLD INTEREST IN STOOL LAND IN GHANA, provides the following as reasons for his assertions:
⦁ First of all, it appears that the rationale behind Article 267(5) was to ensure some inter-generational equity through the prohibition of permanent alienation and resultant loss of stool lands in a manner detrimental to future generations of stool subjects. The grant of or the existence of the ‘customary freehold‘ to stool subjects, is however, perfectly consistent with the above-mentioned policy objective, as it ensures that perpetual proprietary interests in land would vest in and inure to the benefit of the present and future members of the landowning communities through inheritance.
⦁ Secondly, the operative part (the prohibited conduct or action) in Article 267(5) is shall be created. Thus the prohibition does not apply to the subject of the landowning stool because, among other reasons, the stool subject‘s entitlement to the ‘customary freehold‘ is inherent and not conferred by an act amounting to a creation. The inherent character of the subject‘s ‘customary freehold‘ in vacant stool land is an inextricable component of the structure of the customary legal system. Indeed, there is ample legal authority for the proposition that the necessity for an express grant from the stool is a recent practice dictated by the exigencies of modern society, particularly, the need to ensure orderly development of stool lands and to ensure their equitable allocation. Further, the authorities agree that a request from a subject cannot be refused so long as there is vacant stool land to be allocated.
⦁ Finally, Article 267(5) should be read and interpreted in the light of Article 267(1) of the Constitution and subject to customary law and usage , which recognizes that the subjects of a stool and for that matter a member of a family is entitled as of right to a portion of vacant stool or family land and upon such occupation the subject or member acquires the ‘customary freehold‘