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The Ghana Conveyancing Decree, 1973, and the Customary Law
Published online by Cambridge University Press: 28 July 2009
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- Copyright © School of Oriental and African Studies 1973
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2 The English statute was not originally in force in Ghana, which received only English statutes of general application in force on July 24th, 1874. By the Courts Act, 1971 (Act 372), s. 111, various sections of the Law of Property Act, 1925, became part of the common law of Ghana: an instance of reception of foreign law in Africa which may be unique in its fashion and the stage of constitutional development at which it occurred. The sections of the English Act then received almost coincide with those enacted in the Conveyancing Decree.
3 On the restriction by date, see the Conveyancing Decree, ss. 11, 46.
4 Ibid., ss. 4, 6.
5 Ibid., s. 7(1).
6 Ibid., s. 4(1).
page 301 note 1 Ibid., s. 10.
page 301 note 2 Ibid., s. 4 (1) uses interchangeably the terms “grant”, “transfer” and “transaction”.
page 301 note 3 Ibid.
page 301 note 4 Ibid., 1st Sch.
page 301 note 5 Hausa v. Hausa, [1972] 2 G.L.R. 469.
page 301 note 6 Administration of Estates Act, 1961 (Act 63). Once letters of administration have been granted, title to land can be passed only by a written vesting assent: s. 96. However, if the entire estate devolves under customary law, it vests in the successor until a personal representative is appointed: s. 1 (2); and if the successor duly deals with the estate, the court may refuse an application for letters of administration not made by or concurred in by the successor: s. 79 (4). It is likely that many estates have vested in successors for long periods without any written records to show this.
page 301 note 7 Conveyancing Decree, 1st Sch.; on the inclusion of the plan, see ibid., s. 4 (2).
page 302 note 1 Ibid., s. 7 (1).
page 302 note 2 Land Registry Act, s. 24 (1).
page 302 note 3 Asare v. Brobbey, [1971] 2 G.L.R. 331, discussed (1972) 4 R.G.L. 227.
page 302 note 4 Land Registry Act, ss. 26, 25 (1) respectively. In the latter “or” ought probably to be “to”.
page 302 note 5 The doctrine is discussed in “Acquiescence in English law and the customary land law of Ghana and Nigeria”, [1971] J.A.L. 41.
page 302 note 6 Conveyancing Decree, s. 7 (2).
page 303 note 1 See also e.g.: Farm Lands (Protection) Act, 1962 (Act 107), s. 3; Land Registry Act 1962 (Act 122), s. 34; Administration of Lands Act, 1962 (Act 123), s. 27.
page 303 note 2 Conveyancing Decree, s. 7 (3).
page 303 note 3 See especially Criminal Code, 1960 (Act 29), ss. 131–33, 141, 251, creating misdemeanours, for which the maximum penalty is greater than that provided by the Conveyancing Decree.
page 303 note 4 The memorandum to the Decree, final paragraph, gives as reasons for setting the date of commencement eight months later than the date of publication: “This will give conveyancers some time to become acquainted with its provisions and also to enable [sic] any objections and criticisms of its provisions to be considered before it comes into operation.” The need for the general public to become acquainted with its provisions is not mentioned.
page 303 note 5 Land Registry Act, s. 36, defining the term “instrument”, used throughout the Act.
page 303 note 6 Conveyancing Decree, s. 6 (2).
page 303 note 7 Ibid., s. 6 (4).
page 304 note 1 Land Registry Act, ss. 1, 2, 10, 11. The Act even seems to permit the registration in one place of an instrument relating to land in another place. A full search may therefore require reference firstly to the national consolidated list of registered instruments, and then to a number of local registries to find duplicate copies of instruments affecting the land in question.
page 304 note 2 Conveyancing Decree, ss. 1–3; see especially s. 3 (1) (h).
page 304 note 3 Ibid., s. 45 (1).
page 304 note 4 Ibid., s. 40. So also ss. 41, 42.
page 304 note 5 Ibid., S. 22 (l).
page 304 note 6 Ibid., s. 22 (7).
page 304 note 7 Ibid., s. 24; also s. 25.
page 304 note 8 Ibid., ss. 12, 13, 14, 15, 17, 18 (including also agreements to convey), 19, 20 (referring only to an agreement to make a conveyance), other subss. in ss. 22 and 23 (discussed below), ss. 35, 39. S. 14 (3) could give difficulty, as it assumes that a conveyance to two or more persons must create either a joint tenancy or a tenancy in common. Customary-law forms of co-ownership do not necessarily fall into both or either of these categories.
page 305 note 1 The Decree refers to customary-law leases at s. 10 and 1st Sch.The term is defined in s. 45 generally only to the extent of providing: “ ‘lease’ includes a sublease or other tenancy”. “Assignment” is also listed as a possible customary-law transaction: 1st Sch.
page 305 note 2 Ibid., s. 22 (2).
page 305 note 3 Ibid., s. 22 (2), (3).
page 305 note 4 Ibid., s. 23 (1).
page 305 note 5 Ibid., s. 23 (2).
page 305 note 6 Ibid., s. 23 (3).
page 305 note 7 Ibid., s. 23 (1).
page 305 note 8 Ibid., ss. 22 (7), 23 (5).
page 305 note 9 Ibid., ss. 24–28. The burden of covenants runs with the land only if they “relate to an interest in land of the covenantor” or “have reference to the subject-matter of the lease”. The statutory covenants all come within this category.
page 305 note 10 Asante v. Gold Coast Drivers’ Union (1957), 3 W.A.L.R. 5.
page 305 note 11 Conveyancing Decree, ss. 29, 30. An additional provision in the interpretation section, s. 45 (2), applicable to these sections, does not appear to restrict their relevance to customary law.
page 306 note 1 Ibid., s. 30 (1) adds “or for non-payment of rent”, but it is unclear why.
page 306 note 2 Inasa v. Oshodi, [1934] A.C. 99 (P.C., from Nigeria, but probably good law for Ghana). Cf. Onisiwo v. Gbamgboye (1941), 7 W.A.C.A. 69 (also from Nigeria).
page 306 note 3 Conveyancing Decree, ss. 16,31–34, 37. See also s. 36, using the phrases “a term of years” and others related to leases.
page 306 note 4 Ibid., ss. 25, 26. These have been mentioned above in relation to leases, but are not restricted to covenants in leases.
page 306 note 5 Ibid., s. 36 (1), (4)
page 306 note 6 Ibid., s. 37.
page 306 note 7 Ibid., s. 44.