Immovable Property I

Sale of Land Under Customary Law

The issue of saleability of land
Conflicting views as to whether land was saleable
under customary law. Whilst some authorities have
asserted that land has always been saleable under
customary law (Bentsi-Enchill, S. K. B. Asante,
Allott, Awortchie v. Eshon, 1872-Sar.F.C.R 170,
Yawoga v Yawoga-1958, 8 WALR,809 amongst
others), others are of the opinion that the issue of
the saleability of land is a recent phenomenon
(Danquah, Rattray, Kludze, Sasraku v. David. (1959)
GLR 7 CA
)
The issue of saleability of land
Per Kludze at pp. 248 and 252 and 257
 “It is submitted that in this sense outright alienation
by sale or gift of the paramount interest in land was
formerly unknown to Ewe law, but that such
alienation is now recognized in most Ewe chiefdoms.”
 “Among the Ewe people of Ghana, although changes
have now occurred, the general rule was that, absolute
title to land was inalienable, whether by gift or sale.
Land could be pledged for however long a time, but it
was not saleable.”
The issue of saleability of land
“Whatever was the past position, the present
position, as already indicated, is that the
paramount title to land is now alienable by way
of sale or gift among the Ewe, with perhaps, the
exception of [Taviefe, Matse, Aveme, Wusuta
…]”.
Intention of Purchaser to be bound
Per Kludze, under Ewe Customary law, the
contract of sale is not binding under customary
law until the prospective purchaser signifies his
intention to be bound by sealing the
transaction with drinks or aha as earnest
money.
Similar to tramma under Akan customs. See
Akwei v. Agyapong
The Contract of Sale
A holder of an interest or right in land may,
by an instrument, transfer that interest or
right to any person with or without
consideration(see section 32 of Act 1036).
Also, section 20 of Act 1036 provides that, a
disposal of land governed by customary law
for valuable consideration by
(a) a stool, or
(b) a person who is in possession of land
by reason of being entitled to the free use of
the land under customary law, is subject to
article 267 of the 1992 Constitution.
 Contract of sale
 The contract of sale must be negotiated. Land identified or
identifiable and size determined or determinable before
purchase price is agreed.
• In Ntim v. Boateng, the plaintiff must be able to show the
boundaries of the land in question, the payment of the
purchase price and finally, the cutting of "guaha“, but failed to
prove.
 Customary law knows no writing. As a result customary
conveyances are oral in nature.
 In Brown v Quarshigah (2003- 2004) SCGLR 930, the
Supreme Court held, inter alia, that the transaction was under
customary law and writing was not required.
See: Bruce v Quanor & Dovie & Dovie v. Adabanu
 However the recent development of the law is that, section 37(1) of Act
1036, provides an oral grant of an interest in land under customary
law maybe recorded in the specified Schedule, or as near to that
Schedule as the circumstances permit.
Contract of sale and its effect
The contract of sale or lease must have all the important or
the essential terms of the contract or lease. As provided in
sections 38 & 39of the Land Act, 2020 (Act 1036)
respectively, a contract of sale must have the names of the
parties, the property which is the subject matter of the
contract, the nature of the transaction, consideration, the
commencement date and the duration where it is for a
number of years. In the ancient case of Rossiter v Miller,
[1878] 3 App Cas 1124. it was held that a contract of sale or
memorandum should have the names of the parties
provided they could be identified by the names used, the
property to be sold that is the subject matter, consideration
and any other relevant matters succinctly and clearly stated.
A contract of sale could be in the form of a correspondence,
receipt or memorandum. It is the substance that is material
and not the form
Contract of sale and its effect……
A contract of sale made with the phrase “subject
to contract” in the case of Chillingworth v
Esche (1924) 1 Ch 97, was taken as not
constituting a binding contract. However,
where it is stated that the contract of sale was a
provisional agreement until a fully legalised one
was drawn by their solicitors to embody all the
conditions in the contract of sale, was held to
be binding in Branca v Cobarro (1947) KB 2 All
ER 101 as the word “provisional” was construed
as immediately binding on the parties. See Pp
66 of DD Adjei,2017
Capacity to alienate
 The persons expressed to be parties to a
conveyance shall, until the contrary is
proved, be presumed to be of full age and
capacity at the date of the conveyance per
section 38(2) of act 1036.
 In the case of an infant, the parents or a
member of the family may accept and take
possession on behalf of the grantee. Who
may alienate a particular parcel of land
involves far more complex questions,
depending on the nature of the alienor.
Capacity to alienate
According to Ollennu in his book on
Principles of Customary Land Law @Pp94:
“by customary law, a person of full age and
who is not suffering from any mental
incapacity has full dominion and unfettered
control and management of his person and
over his property, and can therefore make
inter vivos or testamentary disposition of his
individual property.’’
Capacity (Continue…)

About the rights or capacity of a customary law wife in

property acquired during coverture, it was stated in
Quartey v. Martey (1959) G. L. R. 377 thus: “Again, by
customary law it is a domestic responsibility of a man’s
wife and children to assist him in the carrying out of the
duties of his station in life, e.g. farming or business. The
proceeds of this joint effort of a man and his wife and/or
children, and any property which the man acquires with
such proceeds, are by customary law the individual
property of the man. It is not the joint property of the
man and the wife and/or children. The right of the wife
and the children is a right to maintenance and support
from the husband and father.” However, sections 38 (3
&4) & 47 of the Land Act, 2020(Act, 1036) sharply
contrast to the above customary position. Reads….
Capacity (Continue…)
The case of alienation by the self-acquirer in whom
title is vested arose in Adjabeng v. Kwabla (1960) G.
L. R. 37. There, property was alienated without the
presence of the vendor’s family, but at his earliest
convenience he brought the fact of alienation to the
knowledge of the head and members of the vendor’s
family neither of whom objected. The court held
that:
“By customary law a person is entitled to alienate his
self-acquired property by way of sale or gift without
the necessity of members of his family concurring in
it. It is otherwise if the property be family property.
Capacity to alienate
 In the above case, the court further
emphasized that, For the protection of
purchasers, a purchaser or donee who acquires
property from an individual owner, himself
may require members of his said vendor’s or
donor’s family to witness the alienation by the
vendor or donor to him to ensure that he was
not acquiring something which is family
property, but he is not obliged to require such
attestation.
 It concluded, All the customary law requires
(to make an alienation of self-acquired
property valid) is publicity.”
 Inspection & Publicity
For the sake of proof, the essential requirements for the
valid sale of land under customary law requires that
there must be witnesses present at the transaction
preferably including relatives or family members.
As Generally applied in Norquaye-Tetteh v. Malm,
one of the requirements of customary law relating to
a grant of land is that the grant should be given:
 a wide publicity in the locality;
The neighbouring owners should be invited to be
present at the demarcation;
 there must also be a performance of the custom of
cutting of guaha(i.e in certain customary
communities)
Inspection & Publicity
The custom of guaha however differs from place to
place. In Sasraku v. David (supra) under Guaha
customary rites, When land is sold through strictly
customary processes it is common in certain parts of
the country to perform a guaha ceremony to seal the
sale. The cutting of guaha indicates the formal
passing of title from vendor to purchaser. The guaha
ceremony occurs in a small variety of closely-related
forms. In essence, a grass, a leaf or twig is plucked
from the land. A representative of both parties holds
either end of the grass or leaf; the object is then
broken in two whereupon a few solemn words are
said, reciting the valid passing of title.
Inspection & Publicity
 In Asiama v. Adjabeng per Anin J. A. at 179 “To prove any
legitimate purchase of land, the courts have constantly,
and rightly, sought to satisfy themselves as to whether this
custom [guaha] has been performed. It is in fact a sine
qua non in the system, and where it is not observed, the
sale is considered null and void.”
 The customary rites of Tramma and Guaha were
discussed by the Court of Appeal in the case of Tei
Angmor & Coy v. Yiadom III & Another [1959] GLR 157,
161. thus:
 In order to conclude a contract for the sale of land in
native customary law certain ceremonies have to be
performed before ownership in the land can be transferred
to a purchaser. That custom is known as the Guaha
custom.
Inspection & Publicity
Tei’s case Cont…..
 (For personal property the custom is Tramma.) After the
conclusion of negotiations, if the parties intend the
ownership to pass from vendor to purchaser, they agree on a
date when the customary ceremony will be performed.
 They then invite witnesses for the purpose, and proceed to
the land. There representatives of each party collect some
 twigs or branches of trees on the land, and come before the
witnesses. The parties face each other, the vendor holding
one end, and the purchaser the other end, of the twigs or
branches. They then declare the purpose of the ceremony,
i.e. that the contract of sale is now being finally concluded,
and they break the twigs into two. After this the witnesses
receive witness fees, and this concludes the ceremony.
 Inspection & Publicity
It has however been held that the performance of the guaha
custom is not a sine qua non for the transfer of the absolute title
to land in Ashanti. Therefore it must be noted that in Ashanti,
guaha is unknown but a similar ceremony called tramma is
performed.
See Adjowei v. Yiadom III at pages 95 – 96 per Sowah J. A.
“The very first observation which ought to be made is that all
the authorities relied on related to conveyance of land in Akan
states other than Ashanti. When Sarbah wrote on the essential
requisites for the sale of land he was primarily dealing with the
transfers of land in Fanti land. … [All the cases] referred to
above were not Ashanti cases and there is no authority for the
proposition that the only mode of conveyance of land under
customary law in Ashanti is the cutting of guaha.”
Inspection & Publicity
Later cases like Ankrah v Ofori and Others [1974] 1 GLR 185,
decided that customary rituals such as Guaha should not be
used to invalidate a valid sale. In these days of fast changing
socio-cultural conditions, the courts should not allow
outmoded local customs such as, Guaha or Tramma among
the Akans, and their equivalents of Sikpon yi baafoo among
the Gas, Ahatutu anyigba dzi among the Ewes and Zibayi
baa pom among the Adangbes to override general principles
and technological development which seek to promote the
well-being of the people and further avoid delay and waste in
customary transactions. See the case of Biei vAkomea
[1956]1 WALR 174, where in an action for the declaration of
title to stool land sold to a purchaser on the basis that the sale
was not done according to custom, the court held that it
“cannot allow local customs to override general principles and
practice in these days of changing conditions. ” also see Ss33,
73-75 of Act 1036
Inspection & Publicity -Gift
Publicity is required under customary gift even for
self acquired property. In Kwakuwah vs.
Nayenna, (1938)4 WACA 165 the plaintiff
claimed land with buildings thereon as property
granted to her by her late husband. The gift was
not made with the necessary publicity required by
customary law, that is to say, the presence of
witnesses. The plaintiff alleged that the gift was
made by her late husband in recognition of the
assistance given to him in the construction of the
house. The Native Tribunal held that the gift was
null and void.
Implied undertakings as to title
Under customary law, the grant of land implies an
undertaking by the grantor to ensure good title to the
grantee. Section 64 (1) of Act 1036 provides that a Good
Title is derived from:
(a) an enactment;
(b) a grant, vesting order or conveyance from the State;
(c) a final judgment of a court of competent jurisdiction; or
(d) a grant, acquisition under customary law, conveyance,
assignment or mortgage which is at least thirty years old
and establishes that a person is entitled to convey an
interest in the land.
Where grantee’s title is challenged or possession disturbed,
it is the duty of the grantor to litigate his title.
See Bruce v. Quarnor [1959] GLR 292
Effect of reduction into writing and subsequent written conveyance

In Bruce v. Quarnor it was said that:

“Conveyance of land made in accordance with
customary law is effective as from the moment it is
made. A deed subsequently executed by the grantor
for the grantee may add to, but it cannot take from,
the effect of the grant. Thus, a stool can by deed
convey to a person the absolute ownership in the land
which it originally granted to that person by
customary law, and thereby exempt the grantee from
the performance of customary services might
normally have been due from the grantee to the stool;
but such a deed cannot operate to revoke the grant
made by custom.”
Effect of Customary Conveyance
Customary conveyance is effective the day it is
made. It divests grantor of any further right, title or
interest in the land. See section 39(1& 2) of Act
1036
The vendor could not subsequently make another
valid grant of the same land.
A deed subsequently executed by the grantor for the
grantee may add to, but it cannot take from, the
effect of the grant already made under customary
law.
Effect of Customary Conveyance
Neither could a customary conveyance be
affected by the subsequent registration of any
subsequent conflicting documentary evidence.
 Brown v. Quarshigah
 Dovie & Dovie v. Adabanu
 Sarkodie v. FKA Co. Ltd.
 Hammond v. Odoi
Bruce v. Quarnor
Effect of Customary Conveyance
In Anyidoho v. Markham (1905) Ren. 318 it was held
that a customary law transfer of land is not affected by
registration of a subsequent and conflicting
documentary conveyance. This was confirmed in
Moubarak v. Japour (1944) 10 W. A. C. A. 102 where
the court held that registration of a deed does not confer
priority over an earlier grant under customary law.
The principle was illustrated once again in Brown v.
Quarshigah (2003- 2004) SCGLR 930
Effect of Customary Conveyance
In Brown v. Quarshigah (supra)
Plaintiff/appellant sued the
defendant/respondent, inter alia, for recovery
of possession of a parcel of land, relying on a
deed of lease from the Sempe Mantse who
owned the allodial title. The Supreme Court
held, inter alia, that the transaction was under
customary law and writing was not required.
Effect of Customary Conveyance
The emphasis is that if the oral customary transaction is
later reduced into writing the written document is merely
evidence of the customary transaction and does not
constitute the transfer of title. See Solomon v Ackon &
British Bata Shoe Co. Ltd v Roura & Forgas Ltd (Pp 24-
25 of Justice Ayisi Handout)
If after the performance of the customary transfer of title
the same land is conveyed to another person by English
form of conveyance, the purchaser under the English
conveyance gets no title.
Effect of Customary Conveyance
In Cofie vs. Otoo, (1959) GLR 300) The
court said that although extrinsic evidence of
transactions which have culminated in a deed
are not admissible to prove that the contents
of the deed do not represent the true
agreement between the parties, the oral and
documentary evidence tendered by the
plaintiff do not seek to vary the contents of
her deed.
Effect of customary Conveyance
In the case of Cofie, The vendor made a valid sale of land to the
defendant by customary law and later executed a deed of
conveyance in her (defendant’s) favour. Subsequently to the sale
by customary law to the defendant but before the execution of the
deed, the same vendor purported by deed of conveyance to
convey the same land to the plaintiff who then sued the defendant
for declaration of title and recovery of possession. It was held that
the defendant’s title dated from the date of the conveyance to her
by customary law, and that the deed of conveyance which was
subsequently executed in her favour was merely documentary
evidence of an alienation already validly effected. See also
Sasraku vs. David. (1959) GLR 7 CA
Alienation by the stool
The chief
Nobody has an automatic right to be chief. In
Europe rules of primo­geniture establish a clear
hierarchy of eligible persons. Eligibility for
chiefship is not so clear in Ghana. The chief is
selected from a pool of available individuals.
Chiefship is an office vested in a lineage. Male
members of the lineage are eligible to be chief,
but in a system of rotation, eligibility is at any
given time limited to male members
originating from a particular house or sub-
lineage. See section 44 of Act 759 (2008)
Alienation by the stool

It is generally agreed that the alienation of stool land may be

effected by the stool occupant provided he obtains the
necessary consents concurrences. Sarbah’s 1897, p.
57.view that land could be effectively alienated by the chief
and linguist alone, was followed in Quarm v. Yankah (1930)
W.A.C.A. 80. As we have seen, Mensah v. Ghana Commercial
Bank (supra) is authority for the view that a deed of
conveyance executed by the chief and linguist alone is not
binding if other principal members have not consented. Again,
in U.A.C. v. Apaw (1936) 3 W.A.C.A. 114 it was held that a lease
signed by a chief without the concurrence of his principal
elders neither conferred any rights upon or bound the stool.
See section 45 and 46 of Act 759. also read on Recovery and
preservation of stool property under sections 47 & 48 of same
respectively.
Recovery and Protection of stool property
As the principal representative of the stool, the chief
discharges the legal aspects of stool ownership of land. He
may delegate to a caretaker, especially rights over outskirt and
rural land, but in all matters critical to the rights of the
community he acts in his official capacity as stool occupant.
For instance, in litigation the chief sues and he sued on behalf
of the stool. The chief does not have to appear in court
personally, but may be represented in court with linguist’s
staff. He must consult his councillors before embarking on
transactions regarding land.
Recovery and Protection of stool property
In Bediaku v. Krakue (1924) D. C. ‘21-’25, 92 it was
held that the stool would not be bound by a decision
if the councillors did not know of the litigation. This
was confirmed in Ofori Attah v. Mensah (1957) 3 W.
A. L. R. 32.
The above principle was modified in Quansah v.
Yankum (1949) 12 W. A. C. A. 435 where the majority
of the councillors refused to authorise a chief to sue
them for the recovery of stool property. The chief
brought an action, nonetheless and the dissenting
elders objected on the ground that their consents
had not been obtained. The court held that if the
position of the dissenting elders constituted the
customary law, it would be repugnant to “natural
justice, equity and good conscience.”
Alienation of family land
A rule enunciated in Amarfio v. Ayorkor (1954) 14 W. A. C. A. 554. In Re
Antubam (Deed) (1965)G L. R. 138, Biney v. Biney (1965) G. L. R. 619
and Vanderpuye v. Botchway (1951) 13 W. A. C. A. 164 suggests that family
land cannot be so divided that it becomes the individual properties of
family members. Notwithstanding, there is now a general recognition that
family land may be partitioned once the relevant consents and
concurrences have been obtained: see Biney v. Biney (supra).
An agreement to partition must be clear and unequivocal. The question of
partition of family property was considered generally in Arthur v. Yieh
(1951) D. C. (Land) ‘48-’51, 297 Fynn v. Kum (1957) 2 W. A. L. R. 289 and
Keelson v. Mensah (1957) 2 W. A. L. R. 271. Dissatisfied members are
under obligation to seek redress within the family before suing for partition:
Hey-Tekpor v. Kasah (1951) D. C. (Land) ‘48-’51, 365 and Tawiah v.Addoh
(1947) D. C. (Land) ‘38-’47, 317. The holding in Adabla v. Kisseh (1972) 1
G. L. R. 43 suggests that the property must be capable of being partitioned.
Dicta in Awortchie v. Eshon (1872) Sar. F. L. R. 170 and the Kokomlemle
Consolidated Cases (supra) suggest that family land can be alienated only
to raise money to Payoff a pressing family debt.
Requirement of Consent/ Concurrence
The phrase, ‘consent and concurrence’,
denotes the necessity of a mark of
authorisation and ratification by the
landowning group to validate transactions
that would otherwise involve execution by
various individual members.Where such
consents and concurrences are lacking an
alienation of land is rendered void or
voidable,depending on the circumstances.
See sections 43 & 68(9) of Act 1036 (Note and
read whole of s68 on Execution of conveyance)
Requirement of Consent/ Concurrence (Cont…..)

A voidable grant remains effective until those

members whose consent was not obtained take
steps to set it aside. A voidable grant has an
effect on possession; for although voidable, the
existence of such a grant prevents the family
from claiming to be in possession. As a result,
specific performance of a lease in favour of a
third party will not be granted: Busby v.
Acquah (1954) 14 W.A.C.A. 574. However, the
family’s interest can be sold in execution during
the subsistence of the voidable conveyance: see
Manko v. Bonso (1936) 3 W. A. C. A. 62.
Requirement of Consent/ Concurrence (Cont…..)
In Nelson v. Nelson (1951) 13 W. A. C. A. 248 a
conveyance by the head of family without the
necessary consents and concurrences of the principal
members of the family was held to be void. This was
followed shortly by Owiredu v. Moshie (1952) 14 W.
A. C. A. 11 with a similar holding.
Agbloe v. Sappor (1947) 12 W. A. C. A. 187 involved
the attempted alienation of family land by four out of
six principal members without the participation of the
head of family. The court considered whether the
majority of the principal members could alienate
family property without the consent of the head of
family and held that such an alienation was void ab
initio.
Requirement of Consent/ Concurrence
(Cont…..)
Where a conveyance fails for lack of consent or
concurrence, the innocent party may bring an
action for breach of contract, the tort of deceit
or even on the basis of quasi contract. In
addition, the acts of the alienor may also
constitute a crime. The family may make
restitution in such circumstances, but cannot
be held responsible for the debts of individual
members.
Requirement of Consent/ Concurrence (Cont…..)

A third view canvassed by Woodman was that

“alienation may take effect as a valid alienation
for the life of the grantor.” He relied on Appiah
v. Dansoa (1954) D. C. (Land) ‘52-’55, 246 and
Boham v. Marshall (1892) Sar. F. C. L. 193. In
the former case, a traditional successor, acting
alone, had attempted to alienate family land
absolutely. In Boham v. Marshall the court said
that by native law the traditional successor could
not dispose of property beyond his lifetime
without the consent of the family.
Requirement of Consent/ Concurrence (Cont…)
In Awortchie v. Eshon (1872) Sar. F. L. R. 170 suggests that a
family meeting ought to be called to discuss the alienation of
land. It is usually at the meeting that the necessary consents
and consultations occur. The meeting may further agree on the
actual persons to participate in the alienation. When there is no
head of family, it is essential that the majority of the principal
members participate in the conveyance. If there are two or more
heads of family, it is important that each participates. Subject to
the rule in Kwan v. Nyieni (supra), a valid alienation occurs
where the head of family and all the principal members
consent. On the basis of the rule in Kwan v. Nyieni an ordinary
member may challenge an alienation by the head of the family if
a number of conditions are present. Again, where family
property was acquired with substantial contributions by
particular members, those members enjoy greater rights
regarding alienation than ordinary members.
Receipt in conveyance and customary obligations
Section 69 of Land Act, 2020 (Act 1036)
 (1) A receipt for money, securities or any other
consideration in the body of a conveyance is a sufficient
discharge from the consideration, money or securities to
the person paying or delivering them, without a further
receipt for them being endorsed on the conveyance.
 (2) A receipt for money, securities or any other
consideration in the body of a conveyance or endorsed on
the conveyance is sufficient evidence in favour of a
subsequent purchaser, who does not have notice that the
money or other consideration acknowledged to have been
received was not in fact paid or given, wholly or in part.
 (3) In a conveyance of stool, skin, clan or family land,
payment made for customary obligations shall be stated
and the statement is sufficient evidence of the performance
of customary obligation.
Record of customary transfer
Sections 37.(1) An oral grant of an interest in land under
customary law maybe recorded as specified in the First
Schedule, or as near to that Schedule as the circumstances
permit.
(2) The record shall
(a) incorporate the essential features of the transaction sought
to be effected;
(b) be signed by the person making the transfer or by the
lawfully authorised agent of that person for that purpose; and
(c) be certified by a Registrar of a Court or a Land Registrar
having jurisdiction within any part of the area to which the
transaction relates.
(3) Where there is a Customary Land Secretariat that
Secretariat shall record and maintain a register of oral grants.
(4) An adequate plan of the land to which the transfer relates,
if available, or if such a plan is subsequently prepared and
attested to by the parties, shall be incorporated.
Record of customary transfer
S 37 of 1036 cont…..
(5) The Customary Land Secretariat shall without
delay and upon payment of a fee prepare seven
copies of the record referred to in subsection (2) and
copies sent to the Lands Commission, allodial
owners and stool lands.
(6)The Customary Land Secretariat shall deliver to
the person making the transfer and the person to
whom the transfer is made copies of the record
certified by the Customary Land Secretariat and the
other copies shall be dealt with as may be provided
in Regulations made under this Act.
(7)Customary transactions recorded under this
section are exempt from payment of stamp duty.
Contract of Sale of Land Under Statute
Sale of land at law used to be regulated by the Conveyancing Act, 1973
(Act 175), now repealed by Land Act, 2020 (Act 1036)
By the General provisions on transfers of Land, sections 32-34 of the Act
provides that:
 32. A holder of an interest or right in land may, by an instrument,
transfer that interest or right to any person with or without
consideration.
Person qualified to prepare conveyance
 33. A conveyance shall only be prepared by a legal practitioner in terms
of the Legal Profession Act, 1960 (Act 32).
Contract for transfer
 34. A contract for the transfer of an interest in land is not enforceable if
it is not
(a) evidenced in writing, and
(b) signed by
(i) the person against whom the contract is to be proved; or
(ii) a person who was authorised to sign on behalf of that person; or
c) exempt under section 36.
 Unconcionability
The court would intervene in a sale transaction where there is evidence to establish
that the sale was unconscionable. The factors which the court would look at in
intervening to set aside or modify an agreement to convey or a conveyance of an
interest in land on the basis of unconscionability, per sections 44 of Act 1036 where
the court is satisfied after considering all the circumstances, including
(a) the bargaining conduct of the parties,
(b) their relative bargaining positions,
(c) the value to each party of the agreement reached, and
(d) evidence as to the commercial setting, purpose and effect of their agreement,
that the transaction is unconscionable.
Other grounds for varying or setting aside conveyance
Section 45 of the Act 1036 says the court may set aside or modify an agreement to
convey or aconveyance of an interest in land on grounds which include
(a) mistake;
(b) fraud;
(c) illegality;
(d) duress;
(e) misrepresentation; and
(f) undue influence.
Mode of transfer
A contract of sale usually precedes a deed of sale and the
terms and conditions of the sale are spelt out in the contract.
After the contract of sale, payment or part payment of the
purchase price may be paid to the vendor.
Sections 35 of Act 1036 provides:
(1) A transfer of an interest in land other than a transfer
specified in section 36, shall be in writing and signed by
(a) the person making the transfer or by the agent of that
person duly authorised in writing; and
(b) the person to whom the transfer is made or the agent of
that person duly authorised in writing.
(2) A transfer of an interest in land made in a manner other
than that provided in this section does not confer an interest
on the person to whom the transfer was made.
Mode of Transfer …
 At pp 64 of Prof. Sir D.D Adjei in his book “Land Law,
Practice and conveyancing in Ghana” explained that a mere
written authorisation to an estate agent to dispose of real
estate does not clothe him with power to make a binding
contract for the principal but where the agent is given
specific instructions to sell a house at a particular price he
could make a binding contract and sign an agreement to that
effect.
 Instructively, the case of Keen v Mear, (1920) 2 Ch 574, the
High Court per Romer J explained the agent's authority to
sign a conveyance or contract on behalf of his Principal
Mode of Transfer
 In the case of Laythoarp v Bryant,(1836) 2 Bing NC 735,it was
held that it was the person to be charged or whom the contract
is to be proved against or his agent who must sign for the
contract to be enforceable against him.
 A lawful authorised agent who could sign a contract on behalf
of his principal was held in the case of Davies v Sweet™ to
include any person who has either been appointed in writing
or orally by the principal or where it could be reasonable
inferred from the circumstances that he had the authority of
his principal to sign on his behalf.
 Finally in Fianko v Aggrey [2007-2008] SCGLR 1135, a receipt
issued and signed by the vendor alone was found to be valid
and binding on the contracting parties.
NB: Read on execution of Conveyance ,Rules of
conveyance of and Damages & Penalty of sections
68-70 and sections 72 of Act 1036
Types of Approaches to Land Purchase
There are two types of approaches to the purchase of land in
the country. They are informal approach and formal
approach.
 Under the informal approach, the parties agree to prepare a
conveyance without first going through contract of sale. The
parties agree on the purchase price of the property, the date
full payment would be made, the nature of interest of the
transferee, the nature of interest the transferor is
transferring to the transferee and the date that vacant
possession would be given to the transferee by the
transferor. In Franks v Aggrey supra, the court enforced a
receipt issued by the vendor which described the land and
the parties to the sale even though there was no contract of
sale or conveyance
Types of Approaches to Land Purchase
 contract of sale may either be open or formal. A
contract of sale is said to be open where it has only
few information about the transaction such as the
names of the parties, the subject matter and
occasionally a description of same and the purchase
price.
 A contract for sale which is formal has all the salient
things the parties agreed upon and to become part
of the express covenant. Conveyance is finally
prepared and executed to take the place of contract
of sale. Contract of sale must not necessarily be
signed by the parties but it is important if it is
signed by both parties. See section 34 of Act 1036
 Transactions exempt from sections 34 and 35
 Sections 36(1)provides that, A transfer or contract for the
transfer of an interest in land which takes effect, by operation
of law; by operation of the rules of equity relating to the
creation or operation of resulting, implied or constructive
trusts; by order of the court; by will or upon intestacy; by
prescription; by a lease for a term not exceeding three years,
whether or not the lessee is given power to extend the term;
by a licence or profit other than a concession required by an
enactment to be in writing; or by oral grant under customary
law
 Section 36(2) provides that Sections 34 and 35 are subject to
the rules of equity including the rules relating to
unconscionability, fraud, duress and part performance.
Mode of Sale
 Land may be sold through barter, outright payment,
instalmental payment or sale by auction.
 An auction sale may be made in accordance with the
Auction Sales Act, 1989 (P.N.D.C.L. 230);
 sections 11 and 15 gives Auctioneer's power to sell
property on behalf of the owner of the property
 whiles section 21 requires auctioneer to give at least
twenty-one (21) days public notice of the sale. It
must be stated whether the auction is with or
without a reserve price.
 Sections 15 and 16 of the Auction Sales Act deals
with sale of land whether the sale is or without a
reserve price.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE
 A vendor after sale becomes a trustee (principles of
Constructive trust), Remain to hold legal title, and
in Fiduciary to be accountable to the purchaser.
What can be done:
 A vendor may be sued by the purchaser for
compensation whenever the vendor causes
damages or waste to the property. In the case of
Philips v Sylvester, (1872) LR8 ch App 1978, it was
held that after a valid contract of sale, the vendor
becomes a trustee of the demised property for the
purchaser, but the vendor is not under any
obligation to repair the property.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE

Vendor’s Duties then are:

 The vendor must ensure that the property is
not deteriorated in his/her hands.
 The vendor is to act within reasonable
promptitude to inform the purchaser about
any damage or injury caused to the property
as well as any act which may deteriorate the
trust property in his custody.
 THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE
The law is settled that upon payment of the
contract price, the purchaser becomes the
equitable owner of the property and before a
conveyance is executed in favour of the purchaser,
a constructive trust is created and equity considers
the vendor as a trustee until conveyance is
executed in favour of the purchaser. This position
was restated by the Court of Appeal in the case of
Bou-Chedidv Yalley, [1976] 2 GLR 258.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE

The purchaser is required to pay the purchase price

within the time agreed upon between the parties.
The vendor acquires a lien over the demised
property immediately after a valid contract of sale
and the lien is limited to the unpaid purchase price.
Where the purchaser fails to pay for the entire
purchase price.
 THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE
Remedies to Vendor:
 vendor is to sue for the enforcement of his/her lien over
the property.
 Vendor to sue for the property to be restored but may
refund part of the payment made or whole depending
on the order made by the Court.
 Vendor to sue for the property to be resold. Where the
property is resold and an amount which is less than the
contract price is realised, the Court may award damages
to compensate the vendor. Where surplus income is
earned from the sale of the property, the entire surplus
may be given to the purchaser depending on what the
Court may deem fit taking into consideration the
circumstance of the case.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE

What Vendor Cannot do:

 The vendor cannot sue for his lien where the parties
excluded the power to exercise right of lien in the
contract of sale.
 Usually, the death of a vendor after a valid contract
of sale shall not affect the sale as the administrators
or executors of the deceased may step in as if they
were the real vendor.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE
Remedies to the Purchaser:
The purchaser of a property under a valid contract of
sale can maintain an action against the vendor while
waiting for the conveyance to be executed in his/her
name.
 The purchaser would be eligible to insure the property
against risk.
The purchaser acquires a lien over any payment made
towards the acquisition of the property.
Any part payment of the purchase price made by the
purchaser to the vendor is treated as if the vendor had
executed a mortgage to the purchaser to the extent of
the money paid.
THE REMEDIES AVAILABLE TO PARTIES AFTER A CONTRACT OF SALE
A purchaser may sue for the payments made and
damages for breach of contract where the vendor's
title is found to be defective, or was tainted with
fraud to the knowledge of the vendor.
The purchaser may also sue for specific
performance after the purchaser has made a part-
payment or full payment and the vendor refuses to
execute title deeds in the purchaser's name.
The purchaser may also sue for recovery of
possession of the property where the vendor
refuses to give vacant possession of the property to
the purchaser.
 Equitable Remedies
 An equitable owner may commence
proceedings alone, and may obtain
interlocutory injunction against all including
the legal owner.
 The equitable owner may demand a person
holding the legal title of the property to be
made a party to the action in due course to
avoid multiplicity of suits. The case of
Performing Right Society Ltd. v London
Theatre of Varieties Ltd. [1924] AC 1. is
instructive on this principle.
 Recission to the contract of sale/Death

Recission
Either of the parties may also bring an action for
rescission of the contract where it is expressly stated in
the contract.
Parties may further agree on the consequences arising
from the grant for an order for rescission.
Death
The law is that, the Death of the purchaser does not
abrogate a valid contract of sale made and the
executors or administrators may enforce the contract
against the vendor in every respect as if they were the
purchaser unless of until a vesting assent is made and
registered in the name of beneficiaries of the property.
 The Relevance of the Law in Land Transaction
 Sections 43-45 of the Land Act, 2020 (Act, 1036) are
very important provisions because it is aimed at
reducing or avoiding fraud, duress and
unconscionability in land transactions.
 Section 43(1) provides that a conveyance of land or an
interest in land which is made with intent to defraud
is voidable at the instance of a person who is
prejudiced by the conveyance.
 (3)A disposition for no consideration of an interest in
land made with intent to defraud a subsequent
purchaser is voidable at the instance of that
purchaser…..
Exemption under section 36 of Act 1036 and Analysis
 Section 36 of the Act provides for transfers
of interest in land which are exempted. Apart
from the transactions listed under section
36(1) of the Act, all other transactions
affecting an interest in land shall be
evidenced in writing and signed by the
transferor or his agent authorised in writing
and the transferee or his authorised agent.
 However, sections 34 and 35 of the Act are
subject to the equitable principles of
unconscionability, fraud, duress and part-
performance.
 Exemption under section 36 of Act 1036 and Analysis
 Section 36(2) of the Act seeks to ameliorate the
effect of sections 34 and 35 on people who may
have performed their part of the contract as well as
people who may by duress, fraud or an
unconscionable act of the other party suffer
unjustly.
 The Supreme Court discussed the circumstances
under which section 3(2) of the Conveyancing Act
(now repealed and inserted as section 36(2) of Act
1036) could be invoked to enforce part-
performance in the case of Kotey v Kolete [2005-
2006] SCGLR 368.
 Exemption under section 36 of Act 1036 and Analysis
The Court discussed the four grounds upon which
section 3(2) of the Act (now section 36(2) of Act 1036)
could be invoked. The grounds for invoking the Act are:
 (i) the contract is not in writing and therefore a
parole contract;
 (ii) there should be evidence of part performance and
referable to the contract in dispute and not any other
land or title;
 (iii) the fraud perpetrated by the vendor for not
reducing the contract into writing would be to his
advantage and to the detriment of the purchaser who
had partly performed his part of the contract and
 (iv) the contract as it is should be enforced by the
court.
Exemption under section 36 of Act 1036 and Analysis
Apart from fraud, other grounds such as
unconscionability or duress may also be valid
grounds for a grant of specific performance.
The Supreme Court in Asante-Appiah v Amponsa
alias Mansah [2009] SCGLR 90, has clearly stated
that an oral grant or sale is unenforceable except
where it would come under the exceptions in section
36 of the Land Act. The Court further held that a
reputable foreign company which purported to buy a
land which transaction was not in writing and which
could not come under any of the exceptions in
section 36 of the Land Act was not enforceable (as
was the Case in section 3 of the Conveyancing Act).
 Analysis & Enquiries by purchaser/other statutory Condition of Sale section 65 of
Act 1036 and Analysis
A purchaser who buys a property buys it subject to all
encumbrances that he or she could have discovered if
he were a prudent purchaser. See Boateng v
Dwinfour [1979] GLR 360 CA
A purchaser who buys a property must make
enquiries of the person in possession if the vendor is
not the one in possession. See Adu-Sarkordie v
Karam & Sons Ltd [1975] 1 GLR 411, Hunt & Luck
[1902] 1 ch 428@433b per Vaugham Williams LJ and
also see Union Trading Company Ltd v Karam &
Anor [1975] 1GLR 212.
Read also: section 65 and further on to 73-79
Further Readings of the Act (Chapter 3)
1. Supplemental instrument
2. Giving of notice
3. Execution of conveyance
4. Receipt in conveyance and customary obligations
5. Rules for conveyance
6. Model precedent
7. Damages and penalty for fraudulent concealment
Electronic Conveyancing
8. Transfer by electronic conveyancing
9. Structures for electronic conveyancing
10.Qualification for electronic conveyancing
11. Conditions for access to electronic conveyancing
12.Non-transferability of access
13. Mandatory contents of an electronic conveyance
14.Additional Requirements
Statutory references and First Schedule@s15-

Sections 32-79 and 154-156 of the Land Act, 2020 (Act 1036)

THANK YOU
BY Kaaka Dello-Ziem,JP
Continuation of various sections
 Section 38 -Parties to a conveyance in respect to also capacity to contract of
sale already treated above
 Section 39- Subject-matter of conveyance
 Section 40- Interest taken by person to whom transfer is made
 Section 41.-Person not party to a conveyance
 Section 42. -Effect of extinction of reversion
 Section 43. -Voidable conveyance
 Section 47. -Restrictions on transfer of land by spouse
 Section 48. Agreement with two or more persons
 Etc 72, 154-6