In my experience, many land purchasers are often uncertain about how to properly acquire land from Stools, Clans and Families. This uncertainty is understandable, as there have been numerous cases where such acquisitions have been challenged in court by these Stools, Clans and Families. In some instances, these challenges have resulted in entire transactions being declared void.
In this article, I will outline the legal requirements and proper procedure for acquiring land from Stools, Clans and Families in accordance with law.
Legal Requirements for Buying Stool, Clan and Family Land
The law provides that when buying land from a Stool, Clan or Family you must do the following:
- Conduct a search at the Lands Commission, Customary Land Secretariat and the National House of Chiefs to confirm that you are dealing with authorised persons;
- Ensure that the land is registered before it is sold;
- Obtain planning comments from the relevant Assembly;
- Obtain the prior consent of the Lands Commission to the grant; and
- Obtain the consent of the relevant Stool, Clan or Family.
Who Are the Authorised Persons?
A conveyance is deemed to have been properly executed by a Stool, Skin, Clan or Family if it is executed by all individuals whose consent is under customary law a necessary condition for the conveyance to bind that Stool, Clan or Family.
Specifically:
- Stool land – must be executed by the Chief and his elders;
- Clan land (consists of branches of Families) – must be executed by the heads of the requisite or accredited branches of the Families concerned and its principal members; and
- Family land – must be executed by the head of the family and the principal members.
It must be emphasized that the Chief or head of family is an indispensable party in the sale of Stool land and family land respectively. Failure to procure the signature of the relevant Chief or family head could render the land transaction void ab initio. This means that the document will confer no interest or title in the land on the purchaser.
A transaction purporting to have the consent and concurrence of the principal members of the family who do not have the authority to act is voidable at the instance of the family if they act within a reasonable time to set it aside. Voidable means that the transaction is legally valid and enforceable but can be declared invalid by a court.
My recommendation is that in order for a purchaser to safeguard his or her interest in Stool, Clan or Family land, they should procure as many signatures as possible from the relevant Stool, Clan or Family. These signatures should ideally be contained in a document such as a family resolution authorising the head of family and selected members of the family to enter into the transaction on behalf of the family.
The rationale for this is that the ultimate beneficiaries of Stool, Clan and Family land is the community, and a transaction which deprives the community of its use and enjoyment of the land should not appear to involve a few individuals. For instance the Chief and two elders of the stool and in the case of Clans and Families, the Family head and two Principal Family members.
Why Must the Land Be Registered Before It Is Sold?
The rule is that where land or an interest in land is vested in a stool, clan or family, the stool, clan or family who are the allodial title holders of the land must be registered as proprietor(s) of that land or interest and that an allodial title holder shall not dispose of an interest in a portion of land held by the allodial title holder, unless the whole land covered by the allodial title holder is registered.
Selling unregistered Stool, Clan or Family land is an offence punishable upon summary conviction by a fine of not less than than 5000 penalty units which is approximately GHS60000 or a term of imprisonment of not less than five (5) years and not more than ten (10) years or to both.
Furthermore, a disposition of Stool, Clan or Family land shall not be registered unless the Land Registrar is satisfied that :
- the relevant consent and concurrence has been duly given; and
- the requirements of article 267 of the Constitution have been complied with.
Article 267(3) of the Constitution provides that:
“there shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned”.
While Article 267 of the Constitution specifically applies to Stool land, section 182 (14) of the Land Act, 2020 (Act 1036) has extended the same principle to Clan and Family lands. Thus, no disposition or development of those lands is valid unless the Regional Lands Commissions consent to the disposition or the development is consistent with the development plan drawn up or approved by the planning authority for the particular District or Municipality.
Why Are Planning Comments from the Relevant Assembly Required?
Under the Local Governance Act, 2016 (Act 936) an allocation of land is null and void if the purpose or use of the alienation is contrary to an approved Development Plan.
This provision makes it mandatory for any landowner allocating land for use, development or occupation within a planned area to do so in consultation with the relevant District Assembly.
Any person who allocates, transfers, sells or develops land for use or a purpose that is contrary to an approved development plan commits an offence and is liable on summary conviction to a fine of not less than two hundred (200) penalty units and not more than four hundred (400) penalty units or to a term of imprisonment of not less than three (3) months and not more than six (6) months or to both the fine and term of imprisonment.
You can determine the applicable planning comments by conducting a zoning search to confirm whether the area is planned and for what purpose. If the area does not have a planning scheme or the grant is made contrary to the planning scheme of the area concerned, the Regional Lands Commission should not process your application for registration.
Why Are the Consents of the Lands Commission and the Relevant Stool, Clan or Family Required?
The consent of the Regional Lands Commission is a Constitutional requirement under Article 267(3) of the Constitution as discussed above.
The Stool, Clan and Family consent to the grant is mandated by the Land Act specifically section 142 which provides that a lessee cannot transfer, sublet, mortgage or assign a lease without the written consent of the lessor. Any such transaction executed without the lessor’s consent cannot be registered.
Where a lessor unreasonably withholds consent, the lessee may refer the matter to arbitration under the Alternative Dispute Resolution Act, 2010 (Act 798).If the consent is not granted within three (3) months, and the lessor provides no written reasons for refusal, the law deems consent to have been granted. Consequently, registration conducted under such circumstances cannot be voided.
Conclusion
In practice however, many sales of Stool, Clan and Family lands fail to comply with the express provisions of section 182 of the Land Act, 2020 (Act 10 36). The common areas of non-compliance include:
- Lands being sold without prior registration, meaning the owners’ names do not appear on the Land Register;
- Failure to obtain or request planning comments; and
- Registration being processed without the necessary consents from the relevant Stool, Clan or Family yet the Lands Commission registers these transactions.
The consequence of failing to comply with these legal requirements is that the entire transaction including the registration, may be set aside by the courts if subjected to scrutiny.
Author:
Emmanuel Sackitey Mate-Kole is the Head of the Real Estate and Infrastructure Practice Group at M&O Law Consult and a licensed Insolvency Practitioner with the Ghana Association of Restructuring and Insolvency Advisors.
Email: [email protected]
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Source: myjoyonline.com
