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THE recent Court of Appeal
decision in Boateng v. Dwinfuor1
raises two important questions:
(a) what is the relevance in our
deeds registration system of those
provisions of the Conveyancing
Decree, 1973 (N.R.C.D. 175),
dealing with the recording of oral
disposition of interests in land?
and (b) does the Land Registry
Act, 1962 (Act 122), allow for the
operation of the rules concerning
priority between competing or
conflicting instruments affecting
the same land?
It is one of the key objectives of
this note to subject these
questions to examination so as to
demonstrate, firstly that a
perspicacious analysis, of the
relevant laws would disclose that
the Conveyancing Decree. 1973,2
was designed to supplement the
provisions of the Land Registry
Act, 1962, and that its provisions
ought not to be ignored in the
determination of issues concerning
land registration. Secondly, it is
intended to show that priority
between competing instruments
cannot feature prominently under
the Land Registry Act, 1962. But
before examining these questions
in some detail, the facts of the
decision in Boateng v. Dwinfuor
should be stated.
In this case, the plaintiff
claimed to have bought a house
situate at Bekwai, from its owner
for her personal occupation and
later got the title deeds
registered. She sought an order of
possession and ejectment against
the defendant who according to the
plaintiff’s own evidence was
living in the house at the time of
the alleged purchase of the house.
The defendant’s case on the other
hand was that in 1970, that is,
four years before the plaintiff's
alleged purchase, he had concluded
an oral tenancy agreement with the
owner through his agent in Bekwai.
Under this verbal agreement, the
defendant was obliged to repair at
his own expense, the then
dilapidated house of the owner and
to convert it into a tenantable
house suitable for a clinic. The
monthly payable rent was fixed at
¢14 and the tenancy was of an
indefinite duration. The defendant
was to recover his initial
expenses on repairs from accruing
rent. The defendant claimed that
he had fulfilled his part of the
contract and had entered into
possession.
On these facts, the defendant
resisted the present action on
several grounds, one of which was
that the tenancy agreement orally
concluded between the original
owner of the house and himself was
binding on the former, his
assignees, alienees or successors
in title. Considering the question
whether or not the verbal tenancy
agreement fell within the scope of
the Land Registry Act, 1962, so as
to compete with the plaintiff’s
registered title deeds, the Court
of Appeal per Anin J.A., said3:
“. . . section 26 of Act 122,
which is in pari materia with the
above-quoted provision of the
repealed Land Registry Ordinance,
confers priority on a registered
instrument only as against other
instruments affecting the same
land; and ‘instrument’ is defined
in section 36 of the Act to mean
‘any writing affecting land
situate in Ghana . . .’ Hence, the
defendant’s parol agreement is
excluded from the ambit of section
26 of Act 122; and exhibit B
enjoys no priority over the
defendant's earlier parol
customary tenancy agreement.”
One would agree with the Court of
Appeal that within the meaning of
Act 122, oral agreements of the
kind in question fall outside its
scope. Indeed, the exclusion of
oral grants from its ambit is one
of the serious defects of the Land
Registry Act that Bentsi-Enchill
justifiably criticises. Thus the
learned author observes4:
“This machinery has, among other
weaknesses, the serious defect
that, in a country whose
indigenous law requires no writing
for valid transactions concerning
interests in land, it makes, and
perhaps can make, no provision for
the recording of parol dealings in
land carried out in accordance
with the requirements of the
indigenous law.”
It should be pointed out, however,
that whatever adverse effects this
omission to include oral
transactions concerning interests
in land might have had on the
registration of instruments under
the Act, have been minimised by
certain provisions of the
Administration of Lands Act, 1962
(Act 123), and completely
eliminated by Part I of the
Conveyancing Decree, 1973. Hence,
as will be shown in due course,
had these provisions been brought
to the attention of the Court of
Appeal, it would most probably,
have come to a different
conclusion, not only as to the
validity of the oral tenancy
agreement in question, but also
the way in which it is arguably
covered by the provisions of Act
123 and N.R.C.D. 175. Section 8(1)
of the Administration of Lands
Act, 1962 provides5:
“8. (1) Any disposal of any land
which involves the payment of any
valuable consideration or which
would, by reason of its being to a
person not entitled by customary
law to the free use of land,
involve the payment of any such
consideration, and which is made,
(a) by a Stool;
(b) by any person who, by reason
of his being so entitled under
customary law, has acquired
possession of such land either
without payment of any
consideration or in exchange for a
nominal consideration,
shall be subject to the
concurrence of the Minister and
shall be of no effect unless such
concurrence is granted.”
The effect of these provisions is
that a large proportion of parol
dealings in land in communities
where lands are held by stools
should have to be reduced into
writing in order to fulfil the
requirements of the Act. It will
be impossible to inform the
minister orally that a land
transaction has been concluded
under the indigenous law and that
he should give his concurrence
without producing any evidence of
the transaction in writing. The
normal practice which has
developed in compliance with these
provisions is that a grantee of an
interest in land from a stool
attaches a site plan of the land
in question to the documents of
transfer prepared in English
conveyancing forms before
presenting them to the Lands
Department for the minister’s
approval. In this way, although
the transaction may be oral from
the beginning, it ends up by
satisfying the conditions of
writing required for registration
under the Land Registry Act, 1962.
In a similar way, all lands under
state control and administration
cannot be acquired without any
evidence of the transaction in
writing, since the Lands
Commission's concurrence is
required for the validity of the
acquisition in all cases6. This
means that land transactions in
the whole of the Northern and
Upper Regions of Ghana,
transactions affecting lands
acquired by the State under the
Administration of Lands Act, 19627
and the State Lands Act, 1962 (Act
124), can all be subject to
registration under the Land
Registry Act, 1962, and no
problems of the lack of writing
should in principle be experienced
in these areas.
Thus apart from some patrilineal
communities such as the Ewe or the
Ga-Adangbe where the paramount
title in land is held by families,
parol dealings in land under the
customary law are invariably
evidenced in writing in most parts
of the country. Even in such
communities where the law does not
compel one to reduce his parol
transactions in land under the
customary law into writing, the
tendency nowadays is to prefer
some evidence of the transaction
to be in writing. Thus any
limitation which the definition of
“instrument” under the Land
Registry Act, 1962, may place on
the range of land transactions
which can be registered pales into
insignificance. But any such
limitations as may still exist on
the registration of land
transactions because of the
omission to include oral grants
amongst registrable instruments
under the Land Registry Act, has
been eliminated by the
Conveyancing Decree, 1973. Thus
the Court of Appeal in Boateng v.
Dwinfuor ought to have adverted
its mind to the relevant
provisions of the Conveyancing
Decree, 1973.
The Conveyancing Decree, 1973 (N.R.C.D.
175)
The Conveyancing Decree, 1973,
does not deal with land titles
registration as such. But it
contains certain provisions which
can fill in some of the gaps left
in the Land Registry Act, 1962.
The objectives of the Decree are
clearly set out in its memorandum.
The first paragraph of the
memorandum states:
“For transactions relating to land
such as buying, selling and
leasing, a need exists to develop
methods and machinery which are
reliable, simple, cheap, speedy
and suited to the present-day
needs of our country . . .”
It can be discerned from the above
statement that the Decree which
follows the recommendations of the
Law Reform Commission seeks as its
main goals, the bringing
up-to-date of the law relating to
conveyancing and the
simplification of conveyancing
forms. The Decree, includes
provisions which may have the
effect of making up for some of
the defects in the current system
of land registration. Part I of
the Decree thus deals with the
recording of land transactions
concluded orally under the
traditional law. It would be
recalled that the omission to
include the recording of customary
transactions in the Land Registry
Act was justifiably criticised by
Bentsi-Enchill.8
In the memorandum to the Decree,
it is observed that such parol
dealings in land do not at
present, have to be in writing
although the practice of customary
transfers being reduced into
writing is now very widespread. In
order to supplement the provisions
of the Land Registry Act,
provisions are made for the
recording of customary grants
under a scheme to be administered
by court registrars. The reasons
and objectives of the provisions
are set out in the memorandum as9:
“In response to the national need
for methods of transfer that are
reliable, simple, cheap, speedy
and suited to the circumstances of
our country, provision is made for
an imaginative development of the
registries of our court system to
handle the recording of customary
transfers of interests in land.
The intention is to require a
recording in the Register of a
District Court of transfers of
interests in land, and to make
such a recording a condition for
validity in the same way as the
traditional ‘guaha’ was
essential.”
An examination of the provisions
of the Decree would disclose that
they have the effect of rendering
invalid, parol dealings in land
unless they are evidenced in
writing and recorded in the manner
prescribed by the relevant
provisions of the Decree. Under
Part I of the Decree, it is
provided that a transfer of an
interest in land shall be by
writing signed by the person
making the transfer or by his
agent duly authorised in writing,
unless the transaction falls
within the class of exceptions
specified under section 3 of the
Decree10. It is also provided that
a transfer of an interest in land
made in a manner other than as
provided under the Part I of the
Decree shall not confer any title
on the transferee11. This in
effect, means that the requirement
of writing is now a condition
without which no land transaction
can be valid in the country.12
Section 2 of the Decree contains
similar provisions in respect of a
contract for the transfer of any
interest in land and renders it
unenforceable unless it is
evidenced in writing by the person
against whom the contract is to be
proved or by a person who was
authorised to sign on behalf of
such a person or relieved against
the need for such a writing by the
provisions of section 3. The
memorandum to the Decree,
paragraph 5 states that the evil
to which the requirement of
writing is directed is the making
of fraudulent conveyances. Section
3 (1) (h) of the Decree purports
to exclude parol dealings in land
under the traditional law from the
requirements of writing. But as
will be shown presently, construed
in conjunction with the operative
effect of sections 4, 5 and 7, it
becomes patently obvious that such
transactions under the indigenous
law cannot be said to fall within
the class of exceptions mentioned
under this provision.
Registration of Oral Grants Under
the Decree
Sections 4 and 5 make provisions
for the recording of land
transactions conducted under the
customary law. This will be “a
significant step in developing
permanent records of transfers of
interests in land while preserving
the customary mode of transfer.”13
Under section 4(1), such customary
transfers are to be recorded in
the form contained in the First
Schedule designed for the purposes
of this particular section. The
First Schedule specifies matters
to be included under “record of
customary transfer”; the nature of
the transaction; whether it be a
pledge, sale, gift, lease, an
assignment, “abusa,” “abunu,”
sowing tenure or any other; the
names and addresses of the
transferors and transferees; the
names of persons whose consent is
required and who have given their
consent; the consideration given
for the transfer, whether it be
monetary or in kind such as
drinks; the extent of the land to
which the transfer relates and
duration of the interest given to
the transferee. In conclusion, the
parties to the transaction must
append their signatures and if a
party is illiterate, must affix
his mark, after the document has
been explained to him in such a
way that he can understand the
substance and effect of what he
has done.
It should be pointed out that the
requirement as to records of
customary transfers as
particularised in the First
Schedule to the Decree are the
sort of particulars that one
usually finds in instruments
subject to registration under the
Land Registry Act, 1962 (Act 122).
This position is made clear by
section 4 of the Decree under
which the requirements of writing
is mandatory and not permissive.
The key phrase in the provision
is, "shall be recorded in the form
contained in the First Schedule.”
To remove any doubts as to the
peremptory nature of these
procedural requirements and to
ensure the recording of customary
transfers under N.R.C.D. 175, it
is provided under section 7(1)
that,14 “An oral grant made under
customary law shall be of no
effect until it is recorded under
section 4.”
In view of the mandatory
requirements of recording
customary grants in the manner
provided by the Decree as a
condition for their validity, it
is difficult to see how they can
really be proved to be excluded
from the requirements of writing
by section 3(1)(h) of the Decree.
It will be impossible to comply
with the provisions of the Decree
without having to reduce the
transaction into writing which may
fall within the definition of
section 36 of the Land Registry
Act, 1962, as “an instrument
affecting land." Thus like section
8(1) of the Administration of
Lands Act, 1962, the requirements
of writing has been imposed on
land transactions or grants
conducted under the traditional
customary law through the back
door. The provisions of the
Conveyancing Decree discussed
above, therefore, have the
important effect of filling in the
gap left by the Land Registry Act,
1962, namely, that it does not
provide for the registration of
oral dealings in land.
Since the Decree says that oral
transactions shall not be
ineffective until recorded in the
manner outlined above, the Court
of Appeal should have considered
the validity of the verbal tenancy
agreement between the original
landlord and the defendant in
Boateng v. Dwinfuor. Perhaps, as
the agreement was concluded in
1970, four years before the coming
into force of the Decree, the
transaction could be said to fall
outside the ambit of the Decree.15
But this is not a good reason why
the Court of Appeal should ignore
and fail to consider the effect of
the relevant provisions of the
Decree so as to clarify an issue
which is a relevant question of
law relating to the disposition
and registration of interests in
land under the customary law.
The way in which the Court of
Appeal interpreted and applied
section 36 of the Land Registry
Act, 1962, in Boateng v. Dwinfuor
creates the impression that under
our land law, a valid parol
dealing in land can be made
without it being reduced into
writing in spite of the coming
into force of the Conveyancing
Decree, 1973. It is respectfully
submitted that in the light of the
law so far discussed, such an
impression would be a travesty of
the current true position. It is
not being suggested that the
consideration of the issue would
have made the decision in the case
under consideration otherwise. The
discussion of the issue is meant
to draw attention to the relevant
provisions of the Decree, the
application of which might become
necessary and material in the
future.
As indicated earlier, the
memorandum to the Decree states
that, “the evil to which the
requirement of writing is directed
is the making of fraudulent
conveyances.” But the law makers
have created the inconvenient
situation of rendering oral grants
made under the indigenous law
invalid unless the requirements of
writing are met in largely
illiterate communities while
failing to provide any
accompanying programme of public
education on the effects of the
new provisions. The difficulties
of prospective acquirers of
interest in land under the
customary law, are made even
greater by the failure of the
administrators to provide the
machineries prescribed by the
Decree without which individuals
cannot comply with the law.16
Priority of Instruments
The second issue raised by the
decision in Boateng v. Dwinfuor
concerns priority between
competing instruments. However, in
a land registration system like
the one under the Land Registry
Act, 1962, priority between
conflicting instruments should not
feature prominently as it is a
condition for accepting
instruments for registration that
they should be accompanied by
accurate plans of the land areas
to which they relate. Provided
there is an efficient method of
checking the accuracy of such
plans against base maps drawn to
nationally accepted scales,
barring human errors, there should
be no question of registering
conflicting instruments. Moreover,
as we shall try to demonstrate,
the Act does not appear to
contemplate that priority between
competing instruments should
become an essential feature of the
registration system as the courts
and some text writers would seem
to make it appear at present17.
For upon a critical examination of
the provisions relating to
priorities, it can be seen that
the Court of Appeal’s proposition
in Boateng v. Dwinfuor that18
“section 26 of Act 122, which is
in pari materia with the
above-quoted provision of the
repealed Land Registry Ordinance,
confers priority on a registered
instrument only as against other
instruments affecting the same
land . . .”cannot be very
accurate.
Under the Land Registry Act, 1962
(Act 122), it is provided that a
registered instrument is to take
effect as against other
instruments affecting the same
land from the date of its
execution if it is presented for
registration within whichever of
the following periods is
applicable19:
(a) if executed at the place where
it is registered, the period of
fifteen days from its date;
(b) if executed elsewhere in
Ghana, the period of sixty days
from its date;
(c) if executed abroad, the period
of three months from its date.”
And section 26 (5) provides, "In
any other case, the instrument
shall ... take such effect from
the date of its registration."
This means that if an instrument
is not presented for registration
within the times specified, it
loses the advantage of being
registered with retroactive effect
from the date of its execution.
After the expiration of the times
specified it remains to be of no
effect until registered20 The
question which readily comes to
mind is whether one can
meaningfully talk of priority
between competing instruments in
the light of the way in which the
system of registration is designed
to work in practice? Considering
section 25 of the Act under which
it is provided that registration
constitutes notice to the whole
world, and its effect on the
application of the nemo dat quod
non habet rule, it would seem that
priority between competing
instruments is not expected to
play an important role in the
registration system under the Act.
Section 24 of the Act says that an
instrument shall remain to be of
no effect until it is registered.
The case of Ussher v. Darko21. and
to some extent, the case of Ntem
v. Ankwandah,22 have created some
doubts as to the meaning of
section 24. The two cases create
doubts as to whether an
unregistered instrument is or is
not void. If it is void, then
there will be nothing by way of an
instrument to consider. If on the
other hand it is not void, then
although it is ineffective, the
document can operate to confer
rights under certain
circumstances. This is what the
two cases seem to be saying.
But one fact is clear from the
reading of section 24 of Act 122:
It is this, that an unregistered
instrument is ineffective until
registered, which means that no
legal consequences can flow from
it. It follows that one can only
consider priority between two or
more conflicting instruments which
have been registered. Such a
situation may arise where for
example, one registered instrument
takes effect from the date of its
registration while the other takes
effect retroactively from the date
of execution as a result of the
grantee having presented his
instrument for registration within
the specified period.
But is this sort of situation
possible within the meaning of the
Act? It would appear that it is
not. Section 25 of the Act says
that the registration of any
instrument shall be deemed to
constitute actual notice of the
instrument and of the fact of
registration to all persons and
for all purposes as from the date
of registration. The language of
this provision is clear. It means
that as from the date of
registration, no subsequent
purchaser of the same interest
relating to the same land can
claim that he is a bona fide
purchaser of the interest for
valuable consideration without
notice of the prior registration.
Moreover, by section 24 of the
Act, as soon as the instrument is
registered, it becomes effective
to divest the grantor of his
interest.
If these arguments are valid, then
it would appear that there can be
no case in which the courts will
be called upon to determine
priority between two valid
conflicting instruments. For the
registration of the first
instrument will have the effect of
serving notice to the subsequent
grantee and at the same time
divest the grantor of his
interest. It is agreed, as was
seen in Amefinu v. Odametey,23
that an otherwise perfectly
binding transaction might be
concluded in respect of a piece of
land, but until it is registered,
it would not have the effect of
divesting the grantor of his
interest. This means that the
grantor can conclude other
transactions in respect of the
same land with subsequent
transferees. This shows that there
can be one or more competing
instruments. But for the purposes
of the Act, none of these is valid
until registered. It follows that
the question of determining
priority between them cannot
arise.
One of the transferees in such a
case may proceed to register his
instrument. But as soon as he does
so the interest in the land vests
in him. The others could be deemed
to have actual notice of the
registered instrument. The grantor
could be divested of his interest
and the others would be holding no
valid instrument within the
meaning of the Act so as to
compete with the registered
instrument. Moreover, as pointed
out earlier, provided plans
annexed to registrable instruments
are accurate and provided that
there is an efficient system of
checking such plans against base
maps drawn to acceptable scales,
barring human errors, the
possibility of registering two
conflicting instruments should be
very rare indeed. Even in these
cases where conflicting
instruments are registered in
error, in principle, only the
first one can be valid for the
purposes of the Act, since as it
has been pointed out earlier, the
first registration would have
divested the grantor of his
interest rendering the later
unregistered instrument worthless.
It follows that the only way by
which two valid competing
instruments can exist under the
Act is where both are registered
at the same time. Since the
possibility of such a situation
arising is obviously unlikely,
there would seem to be no
justification for the emphasis
placed on priority between
competing instruments by the
courts and text writers. It seems
that it would be a good policy for
the courts to ignore unregistered
instruments and treat them as
invalid in accordance with the
provisions of the Act, and
therefore as if they do not exist
at all. The courts can then
proceed from that position to
consider only registered
instruments on their own merits.
The pursuit of such a policy might
cause occasional injustice to
persons in the Ussher v. Darko and
Ntem v. Ankwandah situations, but
not for long. Such occasional
injustice to individuals will be
the price to be paid for “giving
teeth” to the Land Registry Act
and making titles certain through
the application of its
provisions24. When the ultimate
goal of general security of title
has been achieved, such
unfortunate situations will be
eliminated altogether25.
FOOTNOTES
*
LL.M (Ghana),Ph.D (Lond.);
Lecturer in Law, University of
Nigeria, Nsukka; Barrister and
Solicitor of the Supreme Court of
Ghana.
1. [1979] G.L.R. 360 (coram,
Apaloo C.J., Anin and Francois
JJ.A.)
2. See Part I of the Decree.
3. [1979] G.L.R. 360 at p. 369.
Author's emphasis.
4. Bentsi-Enchill, K. Ghana Land
Law, London, 1964, 310.
5. Author’s emphasis.
6. See The Lands Commission Act.
1980 (Act 401), s. 3 (1).
7. See Act 123, ss. 7 and 10.
8. Op.cit., p. 310.
9. Author's emphasis.
10. Section 1 (1).
11. Section 1 (2).
12. Similar provisions in the
Statutes of Frauds, 1776. s. 4 (29
cha. 2, c. 3), now section 40 of
the English L.P.A., 1925 which is
applicable in Ghana by virtue of
section 111 (2) of the Courts Act,
1971 (Act 372). Section 40 of the
L.P.A. makes the transaction
unenforceable, the present Decree
makes it invalid.
13. See the memorandum to the
Decree.
14. Author’s emphasis.
15. Section 46 of the Decree
provides that the Decree shall
come into force on 1 January 1974.
16. Although power is conferred on
the Chief Justice under section 6
(2) of the Decree to appoint a
registrar of customary transfers,
and he has power to specify the
area within which such registrars
shall exercise their functions, as
at present no such registrars have
been appointed. Similarly, a
mandatory duty imposed on the
Chief Justice to appoint an
official surveyor for each
district court and such other
staff as the business of such
courts will require for the
administration of the scheme has
not been complied with. See
section 6 (3) of the Decree.
17. See Bentsi-Enchill, op.cit.,
Hannigan: The Question of Notice
under the Ghanaian System of
Registration of Deeds” (1965) 3
U.G.L.J. 27
18. [1979] G.L.R. 360 at p. 369
per Anin J. A.
19. See section 26 (1) and (2).
20. Section 24.
21. [1977] 1 G.L.R. 476, C.A.
22. [1977] 2 G.L.R. 452, C.A.
23. [1977] 2 G.L.R. 135, C.A.
24. See Woodman, G. “Giving Teeth
to the Land Registry Act” (1972) 4
R.G. L. 231.
25. Editorial Note. The argument
that the Court of Appeal in
Boateng v. Dwinfuor should have
considered the provisions of the
Conveyancing Decree, 1973, dealing
with the recording of oral grants
of an interest in land under
customary law, appears to be
misplaced for the simple reason
that (as admitted by the writer)
the administration of recording
scheme as envisaged under the
Decree has as yet not been brought
into force. No legislative
instrument making “regulations
providing generally for the
administration of the scheme for
recording customary transfers” has
been published as required by
section 6 (1) of the Decree. |
