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LAND TITLE REGISTRATION WITHOUT PREJUDICE: THE GHANA LAND TITLE REGISTRATION LAW, 1986
GORDON

R.

WOODMAN*

Professor Antony Allott's first studies of law in Africa were of Ghanaian land law.' From an early date he has discussed issues of land title registration in Africa.2 It is therefore fitting in this celebratory number to note that Ghana, after many years of debate and delays, recently enacted a statute providing for the registration of interests in land throughout the country. It is planned that the Land Title Registration Law, 1986 (P.N.D.C.L. 152) (hereafter "the Law") will be brought into operation in stages as areas are successively designated "registration districts". It is expected to begin with Accra "and designated agricultural areas", according to the Memorandum to the Law. When an area is so designated, the Chief Registrar of Lands will be obliged forthwith to call upon all persons claiming interests in land therein to present their claims. Those proven, after adjudication if necessary, will be registered, and the register will be conclusive. All subsequent changes in the holding of interests are to be effectuated through changes in the register. The Land Title Registration Regulations, 1986 (L.I. 1341) have been made to provide in more detail for the procedures to be already 3 followed. This contribution aftempts to provide a brief, critical summary of the central features of the Law. It considers these in the context of the historical development of Ghanaian land law, and contrasts them with features of certain other schemes which have been implemented or proposed.
THE SCHEME OF INTERESTS IN LAND

The Law provides for the registration of nearly all existing types of interests in land. The scheme of interests may be seen as having emerged within the legal system which was first established by the colonial power in the 1870s.4 The Supreme Court Ordinance, 1876 (No. 4 of 1876) provided as a basic principle of the legal system that the customary laws of Ghanaian ethnic groups were to be observed and enforced. By the end of the century a second
* Faculty of Law, University of Birmingham. This paper was conceived when, on study leave in Spring 1984, and working in Ghana with the assistance of a grant from the University of Birmingham West African Travel Fund, I was asked to comment on a draft of the Law. In the

short time available I made a number of suggestions for minor changes. The paper was completed during a further term's study leave spent in Autumn 1987 at the University of Wisconsin-Madison. I acknowledge the encouragement and toleration I received from many officials in Ghana, and particularly Mr. C. B. Aryce, the Chief Registrar of Lands; and the benefit received from discussion with the highly experienced members of the Land Tenure Center at the University of Wisconsin. 'A. N. Allott, "Akan Law of Property", Ph.D. thesis, University of London (1954). See especially the writings referred to below, note 27. 'The Land Title Registration (Amendment) Regulations, 1987 (L.I. 1345) merely provide that the date of commencement of the main Regulations is to be 29 December 1986. The following account is as brief as possible. Details may be found in the textbooks, primarily: K. Bentsi-Enchill, Ghana Land Law (1964); S. K. B. Asante, Propery Law and Social
Goals in Ghana 1844-1966 (1974); Ollennu's Principles of Customay Land Law in Ghana (2nd ed.,

1985). See also G. R. Woodman, Customay Land Law in the GhanaianCourts (forthcoming, 1988).

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basic principle germane to the land law had become established. This stated that there was and had for long been no unowned land in Ghana.5 On these two bases the organs of the state constructed a body of officially recognised customary land law. As it was developed, this law took into account developments in customary practices which accompanied economic change, particularly the increased production of cash crops and the emergence of other elements of a market economy. The law was developed on the assumption that the customary laws of different ethnic communities differed in detail but not in general principles. Consequently for the present purpose a unified account of customary law will suffice. Essentially three categories of customary law interests in land were developed. It followed from the basic principles just mentioned that the root of title to all land was a customary-law title, known today as the allodial title. This was held by a customary-law community. The most common of these communities are the stool, the skin and the family (a unilineal descent group, in some instances called also a "clan"). In most parts of the country these communities were, as they still are, organised in hierarchies, such that the rights which constitute the allodial title are vested not in one, undifferentiated community, but in two or more at different levels. Thus the allodial title to a large area may be vested in a head stool, but sub-stools, each composed of a part of the head stool community and led by a chief subordinate to the leader of the head stool, may each share the title to a portion of the total area. The sub-area of a sub-stool may be further divided, with different families, parts of the sub-stool community, sharing in the exercise of rights over various portions of that sub-area. Superimposed upon the allodial title there may be a second customary-law interest, a customary law freehold (also called usufruct and determinable title). This interest is acquired as of right by an individual who or a community which is part of a community holding the allodial title, by occupying and developing land. The customary law freehold may also be expressly granted by the allodial titleholders to a non-member individual or community, in which case payment may be required. The rights constituting the customary law freehold have been extended, as a result of the increasingly intensive and exclusive uses of land, and today the creation of this interest may extinguish the allodial title in the land for practical purposes, although it is disputed whether this occurs in strict legal principle. The holder of either title may grant a licence or tenancy in the land, these being the third type of customary-law interest. The terms of such interests are set by contract, rules of customary law, or a combination of both. By the 1960s all these interests, except the most minor licences and tenancies, had become transferable by either a customary grant involving a publicly witnessed dealing, or the holder's acquiescence in acts adverse to his or her title. Most of the interests could be customarily pledged to secure loans until the statutory abolition of this transaction.. The Supreme Court Ordinance, 1876, also introduced the common law as an element of the legal system.7 In land law the effect was to enable any holder of a customary-law interest to exercise his or her rights of transfer by engaging in a common-law transaction whereby they transferred either their entire interest or an interest of lesser scope consisting of rights defined by
Cf A. K. P. Kludze, "The ownerless lands of Ghana" (1974) 11 U.G.LJ. 123.
6Ollennu, op. cit., pp. 101-102.

' On the constituent elements of the common law for this purpose, see A. Allott, New Essays in African Law (1970), Chap. 2.

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common law. In the exercise of this power holders of the allodial title or customary law freehold have frequently made common-law grants purporting to convey estates of freehold. It has been debated whether the effect is to convey the transferor's entire customary-law title, or to pass a customary law freehold (even where the transferor holds the allodial title), or to create a common-law estate of freehold. In practice there is little difference between these outcomes. Many other common-law grants have been leases, and there has been no doubt that these create common-law leasehold interests, subject to any limitations on the lessor's title. Common-law mortgages also have been frequently created. Other common-law interests such as easements and licences may be created, but rarely have been. Creations and transfers of common-law interests have often been by document, but oral conveyances can be effective, for example by the equitable doctrine of part performance. This legally pluralist scheme has always been subject to the overriding authority of the legislature. Since the inception of the colony there have been compulsory acquisition statutes, which have empowered the state to acquire an absolute title in land, extinguishing all other rights and so severing the title from its customary-law root. Subsequently to an acquisition the state has sometimes transferred the land, but always this has been done by a common-law conveyance for a common-law interest. The only other statutory intervention needing mention here was that affecting land in the North (now the Upper West, Upper East and Northern Regions). The colonial regime exercised detailed control over the granting of land in this area, principally through the Land and Native Rights Ordinance (Cap. 147, 1951 Rev.). That legislation was repealed in 1960, but in 1963 all land in the area was vested formally in the state.8 It was revested in the traditional holders by the Constitution, 1979, art. 183.'
CRITICISMS OF THE SCHEME; PREVIOUS MEASURES OF AMELIORATION

A system of registration is designed to provide a permanent and reliable record of facts about which there might otherwise be uncertainty. The summary just given shows that there were various possibilities of uncertainty about the facts of rights in land. All rights were derived from allodial titles acquired in the distant past as a result of events not recorded in writing. The customary law freehold usually depended on the fact of occupation of the land, often long ago, by the person through whom the present holder claimed. All customary-law and some common-law transfers were by oral transactions which might be difficult to prove after a lapse of time. The transferors of interests were frequently communities, and an outsider might not be able to ascertain whether the participants in a transaction were legally empowered to act on behalf of the group. Common-law titles, even when documentary, were subject to the same uncertainties as elsewhere in the common-law world where title was proved by a chain of documentary transactions from a "good root" of title.'0 Before 1986 the land law had been amended in a number of respects to
E.I. 87 and 103, 1963. On the pre-1979 governmental system of land control in the North, see L. K. Agbosu, "Land administration in northern Ghana", (1980) 12 R.G.L. 104. " See e.g. S. Rowton Simpson, Land Law and Registration (1976) (hereafter Simpson), Chap.

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reduce the effect of some of these sources of uncertainty." The establishment of a system of courts of record, reinforced by the doctrines of estoppel by judicial decision, itself enabled particular uncertainties to be definitively removed, often at great expense. The introduction of the common-law doctrine of estoppel by acquiescence to modify customary-law rights sometimes had the effect of vesting title on the basis of acts done publicly on the land, in place of a title claimed through more doubtful events. The line of statutes culminating in the present Stool Lands Boundaries Settlement Decree, 1973 (N.R.C.D. 172) has provided a process for the conclusive, judicial determination of the boundaries of communally held allodial titles."' A number of systems of registration have operated. The requirement of state consent to grants in the north resulted in a certain number of records of transactions. When land in the north was vested in the state, a system of registration which approached title registration was administratively developed. 3 A similar system could have developed in the south also. Since 1951 governmental consent and concurrence have been required for certain transfers.' The scope of the categories affected by various provisions has often been unclear, but it seems that grants by allodial-title holding communities to non-members have always been affected. The provisions appear to have been ignored in many cases, and no methodical record was developed. The Registration Ordinance, 1883 (No. 12 of 1883), re-enacted in the Land Registry Ordinance, 1895 (Cap. 133, 1951 Rev.), was in force until 1962) It provided for the registration of all "instruments affecting land". Registration gave an instrument priority over instruments registered subsequently, except that priority could not be obtained over an interest of which there was notice. Grantees had little incentive to register their documents if they went into possession, since possession gave constructive notice to subsequent purchasers. The ordinance was replaced by the Land Registry Act, 1962 (Act 122). This introduced some compulsion to register by providing that instruments were to be "of no effect until ...registered".' 6 The Act furthermore empowered the registrar to refuse to register an instrument which appeared on certain grounds to be legally defective, but this provision was never brought fully into force. Finally, the Conveyancing Decree, 1973 (N.R.C.D. 175), ss. 4-11, provided for the institution of compulsory written records of all customary-law transfers, and for their registration in registers designated for the purpose. These were never implemented, and have been repealed by the Law, s. 138.'"
"The following discussion considers only the more important developments. For an important, but relatively early discussion of such developments, see Bentsi-Enchill, op. cit.,

pp. 310-343. For discussion of another two statutes, see (1969) 6 U.G.LJ. 146 (G.W.). Also significant is the Limitation Decree, 1972 (N.eC.D. 54), discussed (1972) 4 R.G.L. 150 (S.K. D-B.), in which section 30(3) applies the statute to matters regulated by customary law. This legislation is noted at (1973) 5 R.G.L. 239 (G.W.). The Commissioner appointed under the decree continues to function today. " (1980) 12 R.G.L. 166 (L.K.A.). 14 The principal statutes prior to 1969 are referred to in G. Woodman, "The allodial title to land" (1968) 5 U.G.LJ. 79, at pp. 93-94. Subsequent enactments have repeated those provisions with various changes which are not important ror the present purpose. (1975) 7 R.G.L. 46. On the case-law interpriting and developing the Land Registry Act, 1962, see the next note. "6 Section 24. On the effect of this development, see: (1972) 4 R.G.L. 231 (G.W.); G. Woodman, "The Land Registry Act bites (somewhat)" (1979) 11 R.G.L. 31. " They were discussed [1973] J.A.L. 300 (G.W.); further observations on them appear at (1980) 12 R.G.L. 166 (L.K.A.) at pp. 170-172 and editorial note at p. 175.
" For a fuller account, see G. Woodman, "The registration of instruments affecting land"

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These measures were not considered to have remedied the problem of uncertainty. There was a series of calls for title registration beginning with the Havers Commission Report of 1945,8 and moves towards the enactment of a statute from the presentation of recommendations of the Law Reform Commission in 1973.19 Proposals spoke of the effects of uncertainty of land titles, particularly in making it difficult for intending farmers to gain access to land without undue risk, and of the desirability of simplifying land transactions. However, simultaneously other criticisms of the land law were advanced, often by the same critics. Thus the Law Reform Commission proposed not only title registration but also reform of the law of inheritance, and of land tenure.2" However, discussion of these other possible reforms was seen as distinct from the question of title registration. In noting the debates out of which the Law emerged, it is necessary to mention also the advice which was reiterated quite frequently by a succession of British advisers connected to the British Ministry of Overseas Development and its predecessor and successor departments. Although not fully or publicly documented, this advice seems to be accurately reflected in Simpson's Land Law and Registration (1976). That book was in effect commissioned by the ODM, and its composition guided by a group of specialists, most of whom had been members of the colonial service, and several of whom were at times advisers to the Ghana government and institutions such as the Land Tenure Research Centre at the University of Science and Technology, Kumasi. 2 It will be argued below that Simpson does not always distinguish between the arguments for title registration and for other reforms. It will be argued that the Law aims at the former and not at all at the latter. The Memorandum to the Law refers to a number of "problems" in the land tenure system which the Law is intended to solve. It states that there is uncertainty about interests in land, those who hold them, and the extent of the areas held, arising from the absence of documentary evidence of title, and of accurate maps and plans showing boundaries, and that the uncertainty gives rise to "wasteful and unprofitable litigation", and insecurity generally.
" Reports on Expenses Incurred by Litigants in the Courts of the Gold Coast and Indebtedness Caused Thereby. " Report of the Law Reform Commission on Proposalsfor the Reform of the Land Law. On the developments see generally: G. Benneh, "Keynote address", in: S. B. Amissah (ed.), Papers submitted at the Seminar on Land Resource Management and Land Use Policy (1980) (Kumasi: Land Administration Centre, University of Science and Technology), xviii; A. K. Mensah-Brown, "Appendix B. The proposals for implementing title registration in Ghana", ibid., p. 286. In the early 1970s an important role in the movement was played by Dr. S. K. B. Asante (Deputy Minister ofJustice, and author of the book referred to above n. 4), and by the staff of the Land Administration Research Centre. I Law Reform Commission, n. 19. The Commission's proposals on inheritance eventually produced the Intestate Succession Law, 1985 (P.N.D.C.L. 111), discussed G. R. Woodman, "Ghana reforms the law of intestate succession" [1985] J.A.L. 118, but not as yet reform of the other areas examined. 21Simpson, pp. xviii-xix. Simpson himself was Land Tenure Adviser to the Ministry of Overseas Development. He was succeeded in that post byJ. C. D. Lawrance, who put the case for land title registration in Ghana in terms closely similar to those in Simpson, in "Registration of title", in: S. B. Amissah (ed.), op. cit., p. 2, especially at pp. 4-10. (That paper displays the confidence of the author in his capacity to prescribe the appropriate system for Ghana, but is not in all respects well-informed about Ghana land law: see e.g. p. 16, where the author seems unaware that pledges had been abolished.) Another nember of the steering committee was H. W. West, quoted by both Simpson (at 9.7.1) and Lawrance (op. cit. at p. 8) in a passage referring to Ghana. Allott was a member of the steering committee, but there is evidence, some of which is mentioned below (notes 30 and 36) that he cannot be held to have approved of all the policies proposed in the book.

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Furthermore, there are no "prescribed forms" for transfers, which therefore cannot be made safely, simply, cheaply or free from the possibility of fraud.22 It is mentioned also that share-cropping tenancies "are often unfair and inequitable." 23 However, it seems to be asserted that this problem will be resolved by title registration "protect[ing] these tenants by giving them reasonable security . . ." Thus their problem is regarded as lack of security of tenure, not the onerous nature of sharecropping terms.
REGISTRATION OF INTERESTS WITHOUT REFORM OF THE SCHEME OF TENURE

The Law thus seeks to remove the uncertainty referred to above by providing for a register on which will appear every particular instance within the existing scheme of interests. The method of the statute is to use the conceptual categories hitherto employed to describe and comprehend the actual holding of land-use rights, to provide an ordering of the register. The core of the Law is a list of categories of "registrable interests" held by "proprietors of land". It is provided: "19. (1) A person shall be registered as proprietor of land if in relation to that land(a) he is the allodial owner, that is to say, he holds it under customary law in such manner that he is under no restrictions on his rights of user or obligations in consequence ofhis holding other than any such restrictions or obligations imposed by the law of Ghana generally; or (b) he holds a customary law freehold therein, that is to say, he holds rights of user subject only to such restrictions or obligations as may be imposed upon a subject of a stool or a member of a family who has taken possession of land of which the stool or family is the allodial owner either without consideration or on payment of a nominal consideration in the exercise of a right under customary law to the free use of that land; or (c) he holds the land for an estate of freehold vested in possession or an estate or interest less than freehold according to the rules of the common law; or (d) he holds a leasehold interest, that is to say, he holds an interest under a lease for a term of years of which more than two years are unexpired; (e) he holds a lesser interest in land, that is to say, he holds an interest in land by virtue of any right under contractual or share cropping or other customary tenancy arrangement..." Registration of encumbrances, such as mortgages and casements, is provided for elsewhere; that is not presently our concern. S. 19(1) provides for the registration of all the basic interests in land (i.e., all but encumbrances), except for those of short duration which are excluded by s. 19(4) which prevents the registration of "an interest [which] will according to its terms expire without notice of termination within less than two years". Equitable interests under trusts are also not generally registrable (s. 108). In section 19, as throughout the Law, the term "land" includes interests in land, 2 although the expression "land or interest in land" is frequently used ex

abundante cautelae.
It may be envisaged that on first registration a community such as a head
This is a summary of what appear to be the principal points advanced in passages at Section 139, adopting the definition in the Interpretation Act, 1960 (C.A.4).

pp.
V

i-ii, iv-vi.

2' pp. v-vi.

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stool will be registered as proprietor of an allodial title for a large area; that its various sub-stools or other sub-communities will be registered concurrently as proprietors of allodial titles for smaller areas usually comprised within the larger area, and so on with yet further inferior communities in cases where there are more than two tiers to the hierarchy; and that individuals holding customary law freeholds or estates of freehold in yet smaller parcels (such as individual farms and houses) will be concurrently registered as proprietors of those interests. There may at the same time be proprietors holding yet other interests in categories (d) or (e) to be registered. Transfers by registered proprietors of their interests, and the creation by them of lesser interests, is to be by the forms prescribed under the Law, followed by registration of the new holding of rights.25 The Law is designed to achieve the objective of certainty through registration without any changes in substantive rights. This character of the Law may be revealed more clearly if it is compared with features of the system of land title registration which has been advocated by some specialists, particularly as exemplified in the pages of Simpson. The advocacy, it is suggested, contains an equivocation as to whether land title registration as recommended entails land tenure reform. The issue is especially marked where the discussion concerns land held by customary tenures. Thus Simpson on the one hand asserts that land registration does not endanger any existing rights, nor require a commitment to changing them. He endorses the views that registration of title should accord with the "mirror principle" according to which the register simply reflects the facts (2.6.12), and that "registration of title is a system of record and not a new substantive land law" (9.4.3). He asserts that "it is a cardinal principle of adjudication [as a preliminary to registration] that it does not, by itself, alter existing rights or create new ones" (11.6.3: and see also 12.5.4). Similarly he castigates "the widespread misconception that registration of title inevitably connotes the individualization of ownership" (12.6.4). However, on the other hand he states that "the straightforward recognition of existing rights may not by itself be enough, if registration of title is to have the beneficial effect which is claimed for it and which alone can justify the cost of introduction" (11.1.5). Of pluralist land tenure systems he asserts
that "title registration is ... a process which is particularly needed in those

countries where it is necessary to unify the law applying to titles granted by Government in the days ofcolonial rule and those titles which have developed under customary law (or in spite of it)", a statement which may be revealingly juxtaposed to the statement that title registration in England under the Land Registration Act 1925 required a "vast simplification in land law" (3.1.7and see also 5.6.1), despite the fact that the English system was not pluralist. For customary systems of land tenure he repeatedly associates registration with reform. Although adjudication does not alter existing rights, "it will, of course, be necessary to replace customary rights by what is considered to be their equivalent [sic] under written law" (11.6.3). "Where adjudication merely recognises individualisation which appears to be virtually complete, registration finally extinguishes the customary character of all rights in land and to that extent 'converts' customary to statutory tenure, even though the change in the incidents of the tenure itself has already occurred" (12.5.4). While he accepts that it may sometimes be .necessary to register an area as
' The Law, Part VI, "Dispositions"; Regulations, Part III, "Dealings with Registered Land", and First Schedule, Forms 30-43.

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"customary land", he considers that this will be exceptional, and implies that, in so far as custom continues to control the use of such land, the arrangement will be unsatisfactory and temporary (12.6.9-11). Registration "must hasten" the demise of the principle of community members' automatic access to communal land (although it "might... be argued that this effect of registration should be classified as an advantage rather than a disadvantage or danger") (12.7.4), and of community influence or control of dispositions (which however again is "not always a disadvantage") (12.7.5). Within the scope of the general issue as to whether land title registration entails land reform, there are several separate questions. As the quotations may show, Simpson in presenting his proposed scheme of registration, expresses or implies a number of distinct arguments as to the necessary or desirable features of a land title registration statute. It may help to reveal the distinctive character of the Ghana Law if we consider how far its provisions incorporate these features. The following discussion will consider six principles which seem to be inherent in Simpson's scheme. They concern the statutory specification of registrable interests (principles 1-3), the statutory provision for transfers of registrable interests (4 and 5), and the desirability of "modernising" land tenure (6). (1) In the type of scheme proposed by Simpson, for each parcel one and only one "ownership", which may be held by one individual, one corporate group, or more than one co-owner, is to be registered.26 Allott pointed out long ago in the pages of this Journal the difficulty of locating such ownership in a land tenure system of the type existing in Ghana, in which a hierarchy of interests existed, for all of which a claim to constitute "ownership" could be advanced. He argued for a statutory definition of "absolute ownership", while Simpson replied that the meaning was already known to everyone, and that when there were several claimants an arbitrary choice might be essential.27 They seem to have agreed that one "owner" must always be identified, all other interests then being fated to be registered as encumbrances thereon. Had that been done in Ghana, the Law would have specified that the registered "owner" was to be one of the several communities which had hitherto shared the allodial title rights, or was to be the holder of the customary law freehold (whenever such existed for the parcel in question), or was to be the holder of the estate of freehold (when that existed). All other interest-holders would have been registered as having subordinate or derivative rights. This upheaval in land rights is avoided by the provision of section 19(l). The conceptual scheme of the Law is not based upon the notion of an "owner" of each parcel, but rather contemplates an unlimited number of instances of ownership (or proprietorship) in interests in each parcel. (2) In the type of scheme proposed, there would be detailed definitions of all registrable interests other than "ownership"." This seems to be considered necessary to avoid uncertainty as to the nature and extent of each holder's rights. While it is thought that the legislator may sometimes be able to avoid producing change in substantive rights by describing correctly and I This is clearly implied throughout, and seems to be thought so unquestionable as not to need express explanation. See e.g.: 1.4.4; 11.1.2; 17.2.6. The term "multiple ownership" is used to refer to what lawyers usually call co-ownership: 13.2.7. 27A. N. Allott, "Towards a definition of 'absolute ownership"' [1961] J.A.L. 99; S. R. Simpson, "Towards a definition of 'absolute ownership': II [19611 J.A.L. 145; "Dr. Allott
replies ... " [19611 J.A.L. 148.
2S

Simpson, n. 27, at p. 148; Lawranee, n. 21 at p. 15.

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exhaustively all the existing interests, it is considered that this will not always be possible, especially for customary-law interests. If the law is uncertain (for example, as to the extent ofresidual communal rights when "individualization ... appears to be virtually complete"), the registration statute introduces a certain rule. This differs from the rule which would otherwise have emerged, at least by appearing at an earlier date, and possibly in having a different content. Moreover, the enactment precludes subsequent developments in new directions which might have occurred. In considering this principle, and the argument supporting it, it will help to distinguish two types of uncertainty. In the absence of title registration a system of land tenure may contain uncertainties as to various particular facts, primarily the identities of interest-holders, the types of interests they hold, and the boundaries of parcels. Apart from those uncertainties, a system of land law, and particularly, it is alleged, a system of customary land law, may contain uncertainties as to various general laws, such as those which stipulate the rights exercisable by the holder of a certain interest in land whenever it exists. (The distinction between fact and law drawn here, while not helpful for other purposes, may serve the purpose of designating an approximate and fairly obvious distinction between different categories of uncertainty.) Uncertainties as to facts are sought to be removed by title registration;uncertainties in the laws by codification. Codification of customary law is quite likely to change its substance. While a larger or smaller amount of codification may be included in a statute of which the primary object is title registration, the Ghana legislature has apparently rejected that course. The "definitions" of registrable interests in section 19(l) are designed merely to indicate the categories into which particular existing interests fall.2" The detailed substance of any such interest will continue to be governed by the general law outside the statute. That substance will therefore not be changed by the event of registration of the interest, nor will the law be prevented from developing thereafter, except in so far as entirely new interests, outside the scope of any of those listed and loosely defined, will be precluded from arising. It is likely that some claims to be registered will appear to raise issues on which the law is uncertain. For example, a community may claim to be registered as proprietor of the allodial title to land, while an individual claims to be registered as proprietor of a customary law freehold in the same land. This is a Ghanaian instance similar to Simpson's "virtually complete individualisation". It may be uncertain whether under the applicable customary law the community's allodial title confers any exercisable rights whatever in this land. Nevertheless, it will be possible for both claimants to be registered as proprietors of their respective interests without prejudice to the question of what rights they may exercise. In any dispute which subsequently arises, their rights will then be adjudicated upon by the same mechanisms as hitherto." (3) The scheme advocated is said to "replace customary rights by what
z' The phrases used were recommended by the Law Reform Commission in its 1973 report: above note 19. They had been originally devised and proposed by K. Bentsi-Enchill: see his "The traditional legal systems of Africa", in: InternationalEnq'clopaedia of Comparative Law, Vol. VI, Chap. 2, p. 68 (1975, but written some years previously), at pp. 74 and 90-91. "This was the recommendation made by S. Asante-Ansong, "'Title registration in Ghana" (1981-83) 13 & 14 R.G.L.51, pp. 52-53; see also p. 68. On this issue see also A. Allott, The Limits of Law (1980), pp. 163, 183-184, arguing that land title registration laws are sometimes claimed to have the contradictory merits of confirming existing titles undisturbed, and effecting land reform.

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is considered to be their equivalent under written law". This suggests that there is a principle of the scheme that the rights constituting any registrable interest are changed by the statutory definition of that interest. Even if the definition is an accurate reflection of the previous law, there is a change in the authoritative source of land rights, and, according to this view, this is a "replacement". This argument might be met by repeating the point just made, that such a statute need not, as the Ghana Law shows, include definitions of interests. Thus, when section 19 of the Ghana Law designates the interests, it incorporates the existing law by reference in such phrases as "under customary law" and "according to the rules generally known as the rules of common law". However, it is possible to go further, and to contend that a change in the source of authority for such a rule of state law need not have any significant effect. In the history of'the law of Ghana, changes in the authoritative sources of what is called "customary law", and the effects of these changes on substantive rights, have been complex developments." Here it is sufficient to note that in the arena of state activity "customary law" has become that which the state courts hold to be such. A legislative endorsement of the continuance of existing practice may in a purely formal sense replace its authoritative base, but need effect no other change whatever.2 (4) The type of scheme proposed is said to effect changes in substantive law by instituting a new system of conveyancing. Thus customary-law oral grants, as well as common-law deeds of conveyance, must be replaced by the procedure for entering a new name on the register. This view may be assessed by noting the various possibilities open to the designer of a title registration statute. To institute a procedure for the registration of interests held at a certain date, and to make no provision for alteration of the register when interests subsequently pass to other persons, would be possible but absurd. Normally the only practicable procedures to ensure that subsequent transfers and creations of interests are entered, are those whereby the parties to such transactions themselves initiate the process. Since such action by a private person carries a cost, some incentive or compulsion is necessary. Ghanaian legislation before 1986 provided two useful examples of procedures designed to ensure that registration of some event occurred. The Customary Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112) made it a criminal offence to fail to register the designated event, which nevertheless retained its full legal effect even if unregistered. The provisions of the Conveyancing Decree, 1973, mentioned above, used the sanction of nullity, by adding to the existing requirements of a valid customary-law conveyance the further requirement of recording in writing and registration. These show that the replacement of existing modes of transfer by an entirely new mode is not always thought necessary to ensure that the register is kept up to date. The Law seems to replace some prior types of conveyances, but not others.
They are examined: G. R. Woodman, "Customary law, state courts and the notion of 31

People's Law andState Law: the Bellagio Papers (1984); G. R. Woodman, "How state courts create

institutionalization of norms in Ghana and Nigeria", in: A. Allott and G. R. Woodman (eds), customary law in Ghana and Nigeria", in: B. W. Morse and G. R. Woodman (eds), Indigenous Law and the State (1988). extent and nature of state intervention in social interaction. Just as the functioning of state
courts has produced changes in social norms, so it is possible that the functioning of the land title registry will be an element in further state penetration of social institutions. This is an 32A quite different possibility is that the introduction of title registration may change the

issue in need of research. It is not raised by Simpson.

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It provides that: all dispositions33 are to be by instruments in prescribed forms (s. 92(1)), and any not in accordance with the Law are to be "ineffectual to create, extinguish, transfer, vary or affect any right or interest in land" (s. 58(1)); "a proprietor may, by an instrument in the prescribed form, transfer his land or interest in land to any person.. ." (s. 79(1)); and leases and mortgages are to be created by instruments in the prescribed forms (ss. 65(l) and 72(1)). The Regulations have set out the forms for instruments of transfer (First Schedule). A person may be ordered by the Land Registrar to register an instrument which he has "wilfully failed" to register, under criminal sanction (s. 61). There is some difficulty in determining the total effect on the land law of these provisions. However, it would seem that, for the transfer of registered interests in the categories specified in section 19, all existing procedures have been replaced by the statutory forms. On the other hand, for the creation of customary-law interests such as the customary-law freehold and customary tenancies, the customary-law requisites do not seem to have been abolished, although such an interest will not become generally enforceable until the holder either registers it or makes it an overriding interest by taking "actual occupation"." Thus the Ghana Law has not entirely replaced the customary law of conveyancing. One further clarification is required here. The law determining the substantive rights of holders of interests is distinct from and independent of the law providing the procedures to be followed for transferring such rights. Therefore, total abolition of the existing law of conveyancing, even if it occurred, would not of itself change any rights within the customary land tenure system. It would not be "land reform" in any significant sense. (5) It is implied that the proposed scheme entails the institution or completion of a land market, by making every registrable interest freely transferable. This would not change the essential nature of existing commonlaw interests, because that legal system has long contained a basic principle of free alienability of property rights. However, in African systems of
" "Disposition" is defined as "any act inter vivos by a proprietor of land or of an interest in " land whereby his rights in or over the land, are affected ... " These conclusions are drawn from the following argument. The "ineffectualness" provision does not appear to apply to the creation of new interests other than leases and mortgages: a "transfer" is defined as "the passing of land or an interest in land .. ." (s. 139), whicl implies that it includes only dispositions of existing interests, not the creation of new interests, and the form provided in the Regulations for the "transfer of land" (Form 30) seems to be designed on that basis. Moreover, section 83(1) provides that "a grant or reservation of an easement shall implying that that particular right, at least, is to be be ineffectual unless it is registered .. .", created by a mode not provided in or under the Law. Admittedly the definition of "disposition" (previous note) is wide, but it will need to be applied in the light of the fact that as yet no statutory forms have been provided for dispositions which are not transfers. Hence, for those dispositions the previous law remains in force (except that the Land Registry Law, 1962, will no longer apply). Nevertheless, it is also provided that the rights of a registered proprietor of land shall be free of all other interests and claims other than those shown in the register, or which are overriding (ss. 43, 46). The only type of overriding interest likely to arise in the cases now under consideration are those designated in section 46(l), para. (f) (see text below). It should be mentioned that there are further difficulties in reconciling aspects of the Regulations with the land law. For example, they seem to assume that: ordinary interests in land carrying rights to minerals may be held by private persons (Regulations 58 and 78, and Forms 31-34), whereas all minerals in Ghana were vested in the state by the Minerals Act, 1962 (Act 126); a mortgagee may have a power of sale (Form 30), whereas this is precluded by the Mortgages Decree, 1972 (N.R.C.D. 96); and that a deposit of a certificate of title to secure a loan may affect the despositor's interest in the land (Regulations 81 and 82, and Form 50), whereas the Mortgages Decree, 1972, sections I and 2, excludes this also. (On the Mortgages Decree, 1972, see A. K. P. Kludze, "The modern Ghanaian law of mortgages" (1974) 11 U.G.LJ. 1).

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customary law it is not uncommon for there to be limits on the transferability of interests. Thus interests held by families may be inalienable, or certain interests may be transferable only to a member of the community which originates from the locality where the land is situated. In such circumstances the introduction of unlimited alienability would effect a significant change in substantive rights, and so in the character of the land tenure system. However, it seems clear that this feature is not a necessary element of title registration, even if statutory procedures for conveying registered interests replace any procedures which existed previously. It is possible to provide merely that such powers of transfer as interest-holders have under the existing rules of law are to be exercisable only by following the new procedures. In the Ghanaian case this issue did not arise for any wide class of cases, because by the date of the enactment customary-law interests generally had become alienable without restriction. There was still some debate as to whether the allodial title could be transferred to an individual person, and it was possible that some tenancies were not alienable. These possibilities are unaffected by the Law, which provides that nothing therein is to permit "any land transaction which is forbidden by express provisions of any other law" (s. 136(2)). (6) The proposed type ofscheme is associated with a policy of"modernisation" of land law, especially in developing countries. Some aspects of this policy are sufficiently evidenced in quotations from Simpson given above. Simpson also asserts that title registration is relevant and required only in "a free-enterprise economy", which, he claims, "is the sort of economy that goes back to the dawn of civilization when man first began to grow his own food and wanted 'security of tenure' in the land he had cleared" (1.5.6). More specifically, "if good development is to be assured it must be possible for rights in land to be adjusted or transferred cheaply, quickly and with certainty, and, according to the economists, freedom and ease of transfer are absolutely vital to promoting the best use of land" (1.6.1). And "English history supports the economic theory ... In some developing countries a sense of tribal exclusiveness in land ownership not only restricts freedom of transfer but tends to confine tribes to their particular tribal areas. With greater freedom of transfer, pressure on the land could be relieved in some areas, uncultivated land in other areas could be brought into production by those best capable of farming it, and national integration would be promoted" (1.6.2). In a chapter on "customary land tenure and control of dealing" he contrasts the "sensible English approach" towards custom (which has been, he has stated, to suppress all customs which could not be shown to have existed since 1189) with "the attitude of some developing countries where, unhappily, there seems to be no fear" of the variability and flexibility of customary law evidenced in the writing of Allott (12.1.5). However, it is "inevitable", and "the normal process of evolution" that customary law will be replaced by case law or statute (12.1.6, 12.2.1), and "the whole tendency in modern times is towards codification" (12.2.5), which will provide "the uniform national law we advocate" (12.2.6). The "constant process of evolution" in customary tenure also is towards individualisation of land rights (12.4.1), but it is questionable whether customary land tenure can evolve swiftly enough, so that "it may prove necessary to replace" it (12.5.1). Land policy cannot be discussed in detail here, although it may be remarked that the views quoted would be regarded by some as manifesting an ethnocentric approach supposing a universal process ofunilineal evolution, buttressed by a simplistic faith in the "free-enterprise economy", and

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evidencing little familiarity with the immensely complex and varied socioeconomic contexts of land tenure in developing states.3 - For the present purpose it is enough to observe that some of the principles discussed above may be based on this policy, and that as it has been argued that they are not necessary concomitants of land title registration so it may be contended that the introduction of title registration does not imply a commitment to the policy. One particular aspect of the policy, that of "individualization" of land titles, may be mentioned. Simpson expressly notes that this is not essential to title registration, in words quoted earlier, and citing the example of the Lagos Registered Land Act, 1965, enacted on Simpson's recommendation (12.6.6-7).6 The Ghana Law here again excludes the business of reform from the institution of a title register. It provides that stools, skins and families are to be registered as the proprietors of interests vested in them, and that the rules on participation of group members in decision-making are to be unaffected (ss. 93(2) and 110).
THE PROCEDURES OF THE LAW

It is not possible to give a detailed commentary on the entire Law, but an attempt will be made to sketch its remaining provisions in bare outline. After declaration of a registration district (under s. 5) the Chief Registrar may require boundaries therein to be demarcated, surveyed or both (s. 6). It is possible that this will be done for all parcels in which rights are eventually registered (s. 26). First registration of interests is initiated in two ways. First, the Land Registrar for the district receives and examines applications for first registration of proprietorships of interests listed in section 19, presented in response to the Chief Registrar's public call for claims, and may himself enter claims on behalf of persons who have not applied (s. 23). After examination of a claim, he registers the claimant as proprietor with absolute title if he is satisfied that the claimant has a good title, or with provisional title, if he is satisfied only that the claimant has a right to possession or occupation (s. 23). Secondly, the Land Registrar is required of his own motion to examine the register compiled under the Land Registry Act, 1962, and to register instances of proprietorship of interests which are supported by that register (s. 13). The state is to be registered as
Cf the history of Simpson's Report on Land Problems in Papua New Guinea (1969). Draft legislation based on the proposals in that report was withdrawn in 1971 as a result of criticism of their underlying policy: the criticism is set out in A. D. Ward, "Agrarian revolution: handle with care" (1972) 6 New Guinea 25. Subsequently the Report of the Commission of Inquiry into Land Matters (1973), based on an intensive inquiry by a Commission composed entirely of Papua New Guineans, emphatically rejected the proposals. For the episode prior to the completion of that inquiry, see '. Bredmeyer, "The registration of customary land in Papua New Guinea" (1975) 3 Melanesian LawJournal267. Cf. Simpson, 11.8.17. ' Simpson, 12.5.7, n, criticises Allott for failing to discuss the Act in New Essays in African Law (1970), whereas he discusses "fee simples in West Africa", which "have always been... otiose". Presumably the Act was not discussed because it had not been brought into effect, and fees simple were discussed because the rights of many parties had turned on judicial decisions as to the fee simple. Simpson, ibid., refers also to the omission by Allott to mention the Kenya and Sudan statutes. The Kenya scheme was discussed subsequently by Allott in The Limits of Law (1980), 209-214 (and see also pp. 37, 164, 197-198), where he referred to evidence that there was "massive disobedience of or non-compliance with" the scheme. Evidence on the operation in practice of the Sudan statute is scarce, but some shows that much land user occurs outside the ambit and in disregard of the statute: A. EI-M. Abbashar, "The State and Traditional Holders of Land in the Sudan", Ph.D. thesis, University of Birmingham, 1982.

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proprietor of any land not held by another proprietor (s. 19(2)), and as proprietor on trust for the eventual proprietor if there appears to be another, unidentified proprietor (s. 23(4)). Disputes arising under either mode are to be referred to an Adjudication Committee, a three-member body appointed by the Secretary (Minister) (ss. 21, 22)." The Committee determines such cases following rules of evidence and procedure specified in the Law (ss. 22, 27-32), its decision being final and binding (s. 33). Claims to registrable interests other than those listed in section 19 are similarly to be examined and the interests registered if proven (s. 19(3)). First registration of a parcel is to be effected after the deadlines for notices and adjudications have passed (s. 14(1)). The Land Registrar is to open a folio for each parcel, entering in it particulars of proprietorships and other interests, and a means of identifying the parcel on the registry map (ss. 14(2) and 16; the Regulations, First Schedule, Form 29, provides the form of a folio). Every person registered as proprietor of an interest is to be issued with a land certificate (s. 51). Subsequently the register is maintained by adding or substituting entries, and land certificates are amended, replaced or newly issued, primarily in the following circumstances: when a person subsequently shows that they are a proprietor of an interest, although not registered (s. 14(3)); when the Land Registrar exercises his power to cancel an obsolete entry (s. 17); when a person acquires rights by prescription or under the Limitation Decree, 1972 (s. 18); when a person registered as proprietor with a provisional title becomes entitled to be registered with absolute title (s. 45); and when a registered right is transferred, extinguished or inherited, or a new right created (discussed above, except for transmission on death which is governed by ss. 102-104). and the rights registered are indefeasible (ss. 18(1) and 43). This general principle is subject to certain exceptions. Registration with provisional title does not prevent the enforcement of adverse rights held by others before the date of registration or referred to in the register (s. 44).There is a more general exception for overriding interests, which whether registered or not prevail over registered interests. Those likely to prove significant are: "leases for terms of less than two years and not capable of extension to terms of two years or more by the exercise of enforceable options for renewal" (a category which protects those lessees whose interests cannot be registered under section 19(1), para. (d) because of the shortness of their duration); "rights, whether acquired by customary law or otherwise, of every person in actual occupation of the land save wheic enquiry is made of such person and the rights are not disclosed"; and "rights acquired or in the course of acquisition
by prescription or under the Limitation Decree, 1972
. .

." (s. 46(1)). There

is provision for the rectification of errors in the register caused by mistake or fraud (ss. 121, 122), and for a right of indemnification of persons affected by rectification or by omissions or mistakes which cannot be rectified (ss. 123125). The methods of surveying and demarcation, and the details of it administration of the registry cannot be discussed here, but 38 may be mentioned that the register is planned to consist of a card index.

" Matters within the jurisdiction of the Stool Lands Boundaries Settlement Commission are to be referred to the Commission (s. 23(6)): and see above, n. 11 and accompanying text. ' C. B. Aryee, "Standing instructions for Land Title Registration Officers" (1984). I am obliged to Mr. Aryee for enabling me to consult a copy.

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This paper has attempted to show the general character of the scheme which the Law institutes. An attempt to predict its effects in practice would be a different, and at present largely speculative exercise.39 The paper closes with a few general observations based upon the provisions of the Law. The operation of the scheme will depend upon the manner in which two categories of players perform their roles: the officials of the Land Title Registry, and the holders of registrable interests. The former act within the environment of the institutions of the state. The experience of the Land Registry Act, 1962 (which was never brought fully into effect by the conferment on the Registrar of all the powers provided for), and the registration provisions of the Conveyancing Decree, 1973 (for the operation of which no facilities were ever provided, with the result that the entire scheme was stultified), shows that the enactment of the statute is not a guarantee that government will provide the administrative impetus and logistical support needed. Subject to that, the official role-performance will depend largely on the management of the registry. The records to be compiled will be very large. In a task of this magnitude it is inevitable that some errors will occur. If they exceed a small number, the effects of the scheme will be very different from those envisaged by the legislature. The holders ofregistrable interests, the potential applicants for registration, will for the most part act within the environment of civil society outside government. It is always uncertain whether members of that society will fulfil the roles set for them by state legislation. The land title registration system is said to be "compulsory" (Memorandum, p. i), but it is possible that, at least in the initial period of implementation, many interest-holders will lack the knowledge or motivation to apply for the registration of their interests. Whether this abstention occurs, whether it continues beyond the initial period, and whether it does substantial and lasting damage to the completeness of the scheme, may depend in part on its legal consequences for the holders' rights. When an interest-holder fails to apply for registration, the Land Registrar may learn of the interest, examine it on his own initiative, and register it. It is unlikely that this will occur in most cases. In others the interest will remain unregistered, and either some other person will successfully claim to be registered as proprietor of some other interest in the land, or the state will be registered as proprietor of the land as land "not held by any other proprietor" (s. 19(2)). It will remain possible for the unregistered interestholder to apply to be registered later. So long as his or her rights remain off the register, they will be unenforceable against those whose rights have been registered, unless they fall into one of the categories of overriding interests under section 46. Apart from leases too brief to be eligible for registration, the only category likely to exist frequently is that of the rights of a person in actual occupation. The inclusion of this category in section 46 has the result that a person who is in actual occupation of land has no immediate incentive

" Important work has been done on the effects of other title registration systems in Africa. See especially S. F. R. Coldham, "The effect of registration of title upon customary land rights in Kenya" [1978] J.A.L. 91. But other instances studied are too dissimilar to the Ghana scheme for conclusions to be drawn from comparisons.

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to apply for first registration. The result could be a significant gap in the completeness of the register. The register, once begun, is expected to be maintained by the initiative primarily of those who acquire interests through subsequent disposals. If a disposal is not registered, then, whether the disposer's title was registered or unregistered, it will be "ineffectual". However, it would seem that normally the disposer will be bound by contract, estoppel or both, as against the grantee, to treat it as effective. If a third party challenges the grantee's rights, the latter will be entitled to call upon the disposer to make good his title if possible. If the grantee is in actual occupation, then, even though he cannot claim that the unregistered grant has been effectual to confer an interest on him, he may be able to claim to be the disposer's agent in the exercise of an overriding interest. Speculation should perhaps not be taken further, but what has been said suggests that there is a real possibility that certain substantial categories of registrable interest-holders will not be seriously disadvantaged if they fail to register. It should not be concluded that they will in practice all omit to register, but it may become necessary to consider how they may be induced to do so. Arguments presented above suggest that the Law is not designed to effect land tenure reform. It may nevertheless be arguable that the Law will in practice affect the substantive land tenure, even if it has not changed the legal norms. While the Law was making its slow way towards the statute book, it was regarded unfavourably by some who hoped for the development of a more socialistic ordering of agricultural activity. Their analysis of the history of land law and tenure led them to fear that the Law was likely to strengthen a trend towards a capitalistic pattern of land use through the facilitation of an unrestricted land market. (This very general expression of the controversy comprehends a number of distinct and more refined arguments. I do not develop these here because I have not heard or seen them expressed in this particular context, and I believe that they can be sufficiently answered here in general terms.) This view of the Law's probable effect may have been in part a reaction to the past association of the case for title registration with a favourable view of the policy of development through "free enterprise", illustrated above. It has been suggested already that that was not a necessary association. It may be suggested further that it is doubtful whether socialism would have been promoted by refraining from steps to remove uncertainties as to land titles, which were believed to be causing litigation and creating risks in productive land use. Title registration may, on the contrary, result in the collection of information and the establishment of administrative institutions which will be useful in the planning and implementation of reforms designed to control land use and land transactions, and to prevent private accumulation, landlessness and exploitative contracts. Thus, in enacting the Law the Ghanaian legislators have not opted for conservatism in the development of land law. It appears that they did not regard the Law as a suitable vehicle for substantive reform in any direction, and have thus enacted a measure which is without prejudice to policy decisions on such reform. Another possible effect of the Law, also expressed in an objection to its enactment, is that its administration may absorb human and material resources which might have been put to other uses. In the past an oftrepeated argument has sought to anticipate this objection by contending that ultimately the expenditure necessary to institute and maintain a land title register would be less than the cost of the repeated proofs of title and

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disputing which would continue in its absence.' This defence of title registration fails to address the principal question of priorities. In Ghana, as in other developing countries, there is at any time a large number of schemes carrying a fair assurance of ultimate positive economic returns, such as projects in health care, transport and education. It is never possible to implement more than a painfully limited number. However, it is impossible to say what other developments would have occurred had the Law not been enacted. It can only be noted that it is evidence of a decision to give priority to this particular project. As we have observed, this is likely to have the further effects of the collection of information, a reduction in uncertainty about particular facts of land tenure, and the development of an institution of specialists skilled in summarising and recording those facts. These in turn will facilitate future land tenure development, whatever value-choices are made, and whatever direction that development takes. But the Law in providing these opportunities contains no bias for development in any particular development, nor does it increase the eligibility of any one route. It has been designed to function without prejudice.

tO

E.g. Lawrance, n. 21, pp. 5-6.