© MyGSL
Introduction to Conveyancing and Drafting
Introduction:
This note will discuss common terms and concepts used in conveyancing and drafting. The terms to be discussed are conveyancing, instrument, land, interests in land, title, good title, possession, ownership, and property.
Meaning of Conveyancing:
In Black’s Law Dictionary, 9th ed., conveyancing is defined as
The act or business of drafting and preparing legal instruments, esp. those (such as deeds or leases) that transfer an interest in real property
In the Land Act, 2020 (Act 1036), the word “conveyancing” is not defined. However, the word “conveyance” is defined in Section 281 as follows:
"conveyance" includes a document in writing by which an interest in land is transferred, an oral grant under customary law that is duly recorded in accordance with this Act, a lease, disclaimer, release and any other assurance of property or of an interest in property by an instrument, except a will;
In light of this, conveyancing may be defined as the process by which an interest in land is transferred via a written document or orally. In this course, our focus will be on conveyancing as it pertains to written documents.
Meaning of Instrument:
In Black’s Law Dictionary, 9th ed., an instrument is defined as:
A written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate.
In A.E. Randal 3rd ed., an instrument is defined as follows:
An 'instrument' seems to embrace contracts, deeds, statutes, wills, Orders in Council, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print, or partly in both; in fact, any written or printed document that may have to be interpreted by the Courts.
In Section 281 of Act 1036, instrument is defined as follows:
"instrument" means any writing which affects land situate in this country including a Judge's Certificate and a memorandum of deposit of title deeds;
An example of an instrument is a conveyance, as it is a document in writing by which interest in land is transferred.
Meaning of Land:
In Section 281 of the Land Act, 2020 (Act 1036), land is defined as follows:
“Land" includes the solid surface of the earth, trees, plant, crops and other vegetation, a part of the earth surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property;
This description of land as being beyond the earth’s surface is reflected in several other conceptions of land. For instance, per Black’s Law Dictionary, 9th ed., land is defined as
An immovable and indestructible three-dimensional area consisting of a portion of the earth's surface, the space above and below the surface, and everything growing on or permanently affixed to it.
Ollennu, in Principles of Customary Land Law in Ghana, 1962, defined land as follows:
The term land as understood in customary law has a wide application. It includes the land itself, i.e., the surface soil; it includes things on the soil which are enjoyed with it as being part of the land by nature, e.g., rivers, streams, lakes, lagoons, creeks, growing trees like palm trees and dawadawa trees, or as being artificially fixed to it like houses, buildings and structures whatsoever; it also includes any estate, interest or right in, to or over the land or over any of the other things which land denotes, e.g., the right to collect snails, herbs, or to hunt on land.
Similarly, Peter Butt, Land Law 2nd ed., characterised land as follows:
In its legal significance, 'land' is not restricted to the earth's surface but extends below and above the surface. Nor is it confined to solids, but may encompass within its bounds such things as gases and liquids. A definition of 'land' along the lines of 'a mass of physical matter occupying space' also is not sufficient, for an owner of land may remove part or all of that physical matter, as by digging up and carrying away the soil, but would nevertheless retain as part of his 'land' the space that remains. Ultimately, as a juristic concept, 'land' is simply an area of three-dimensional space, its position being identified by natural or imaginary points located by reference to the earth's surface. 'Land' is not the fixed contents of that space, although, as we shall see, the owner of that space may well own those fixed contents. Land is immoveable, as distinct from chattels, which are moveable; it is also, in its legal significance, indestructible. The contents of the space may be physically severed, destroyed, or consumed, but the space itself, and so the 'land', remains immutable.
Summarily, statutory and scholarly conceptions of land extend beyond the solid surface of the earth. It may be said that land = earth’s surface + things on the earth’s surface that are affixed to it + the space below the earth’s surface + the space above the earth’s surface.
Meaning of Interests in Land:
Per Section 281 of Act 1036, interest in land “means any right or interest in or over land which is registerable under this Act.”
Under Act 1036, the interests in land are:
(a) allodial title;
(b) common law freehold;
(c) customary law freehold;
(d) usufructuary interest;
(e) leasehold interest; and
(f) customary tenancy.
Each of these interests gives the holder some rights over the land. For instance, an allodial title gives the holder a right to receive compensation if the land is compulsorily acquired (see Article 20(2)(a) of the Constitution, 1992 and In re Public Lands (Leasehold) Ordinance, Osu Mantse & Ors (Claimants) [1959] GLR 163). Also, a usufructuary interest gives the holder a right to alienate the land to fellow subjects of a stool without the consent and concurrence of the stool (see Awuah v. Adututu [1987-88] 2 GLR 191. [1988] GHLL 1).
Also, note that several interests can be held with respect to the same land. For instance, a stool may hold the allodial title to all lands within its territory, its subject may hold the usufructuary interest in specific lands and may lease the land to other persons who then get the leasehold interest.
Further, an interest may be
Absolute Interest: An interest is said to be absolute if it is not subject to any condition. The allodial title gives its holder an absolute interest. Also, upon the compulsory acquisition of land, the state also gets an absolute interest. In the case of Memuna Amoudy v. Antwi [2003-2004] 2 SCGLR 967, the Supreme Court cited with approval the ratio of Twumasi JA in the Court of Appeal that upon the state’s compulsory acquisition of land, the acquisition confers upon the title holder "an absolute and indefeasible right to the lands free from all adverse or conflicting rights, titles, interests, trusts, claims, and demands whatsoever."
Beneficial Interest: This is a right or expectancy in something (such as a trust or an estate), as opposed to legal title to that thing. For instance, in a trust, the beneficiary does not have legal title to the trust property; he only has a beneficial interest which enables him to enjoy the benefits accruing from the trust property despite not holding a legal interest.
Legal Interest: This is an interest that is acquired after the fulfilment of all legal requirements for the acquisition of the interest. Consequently, it is said to be an interest recognised by law.
Equitable Interest: This is an interest held by virtue of an equitable title or claimed on equitable grounds. It is an interest that can exist even if all legal requirements for the acquisition of the interest have not been fulfilled. For instance, if a person pays for land but a conveyance has not yet been executed in his favour, the court may hold that he has an equitable interest in the land. In the case of Bou-Chedid v. Yalley [1976], 2 GLR 258, Yalley agreed to buy land from one Miss Williams (deceased). Payment was made for the land, but Miss Williams died before executing the deed of conveyance. A question arose on the interest of Yalley in the land and the court, speaking through Acher J.A., said:
In my view an oral contract for sale of land coupled with an admission by the vendor in writing that the full purchase price had been paid and a promise from the vendor; also in writing, to execute a conveyance in favour of the purchaser, creates a constructive trust and equity considers the vendor until the conveyance is executed, as holding the legal title for the purchaser. Consequently the vendor cannot deal with the legal title in a way detrimental to the interests of the purchaser.
The interest of the purchaser in that case was an equitable interest. Also, in the case of Amuzu v. Oklikah [1997-98] GLR 89-143, the defendant’s documents had not been registered as required by Act 122, but that of the plaintiff had been registered. In Section 24 of Act 122, it was provided that an unregistered instrument shall be of no effect. However, the Supreme Court held that the defendant had acquired an equitable interest in the land, which took precedence over the legal interest acquired by the plaintiff after he registered his title deed.
Meaning of Title:
In Black’s Law Dictionary, 9th ed., title is defined as
The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself <no one has title to that land>. Cf. OWNERSHIP; possession.
In “Ghana Land Law and Conveyancing”, Da Rocha and Lodoh defined “title” on page 99 as follows:
Title is the means by which a person establishes his right to land. A person's title indicates by what means he claims to be the owner of land. Title to land may take the form of possession, or it may take the form of a document or a series of documents.
It is therefore possible for multiple persons to claim title to the same piece of land. One person may claim title to the land on grounds of undisturbed possession while another may claim title on grounds of a conveyance.
Meaning of Good Title:
In Black’s Law Dictionary, 9th ed., good title is defined as
A title that is legally valid or effective.
In Section 64 of Act 1036, good title is said to derive 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, an 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.
In this course, our main purpose will be on how good title can be transferred via a conveyance.
Meaning of Possession:
In Black’s Law Dictionary, 9th ed., possession is defined as follows:
Possession in law has two elements:
According to Da Rocha and Lodoh in “Ghana Land Law and Conveyancing”, at page 97, the corpus possesionis is “the physical control over the thing itself, which may be exercised by the owner of the thing, his servant or his agent.” With respect to land, physical control may manifest in acts like building on the land, cultivating it, and collecting rents, among others.
On the other hand, animus possidendi was defined by the learned authors as “the intention to exercise exclusive possession of the thing itself and thus to prevent others from owning it.” This intention to exercise exclusive possession will be reflected in overt acts like building a wall around the land and building on the land, among others.
The above understanding of the elements of possession has been reflected in several decisions. In the case of Brown v. Quarshigah [2003-2004] SCGLR 930, for instance, Prof Kludze JSC characterised possession as follows:
Possession after all means occupation and control in a manner commensurate with the nature of the property. It includes the right or power to exclude others from the property, and also includes enjoyment of the land…Possession is a matter of law but is established by physical acts. Possession is generally regarded as implying physical control; but physical control cannot mature into possession in law unless accompanied by other facts. As I have said, as a prerequisite, there must be an effective physical control which is commensurate with the nature of the property over which the right is asserted. For instance, in the case of land, as in this case, presence on the land may constitute enough physical control. The physical control is usually actual control and includes the right to exclude others from the property. It may, however, be potential control, such as when there is an unlawful but de facto impediment by a trespasser.
Secondly, there must be the animus possidendi or intention to possess which must be concurrent with the requisite physical control. In other words, where there is physical control that is fortuitous or unrelated to the intention to possess, it will not constitute possession in law. Finally, the intention to possession must be manifested by external or visible signs appropriate to the property being taken into possession. The external manifestation is necessary to serve as notice to the rest of the world of the right claimed, even if unknown to the whole world.
In the recent Supreme Court case of Owusu & Anor. v. Maputo & 3 Ors [2025] GHASC 1 (29 January 2025), possession was characterised as follows:
Possession in law essentially has to do with exercise of control over a property spanning actual physical possession [corpus possessionis], and physical acts that reflect the intention to control the land [animus possidendi], such as placing third parties on the land…That intention to possess must be manifested by external or visible signs appropriate to the property being taken into possession. The external manifestation is necessary to serve as a notice to the rest of the world that of the right claimed, even if unknown to the whole world.
The essence of this definition is that while intention is an element of possession, that intention must be reflected in some physical acts because the devil himself knows not the mind of man.
In the earlier case of Aryee v. Shell Ghana Ltd and Another [2015] GHASC 102 (22 October 2015), the Supreme Court noted that
Possession in law is one of the most difficult and complex areas of the law, hence the impossibility in placing it in a pigeon hole. It is normally determinable from the facts of a given case. We are concerned with possession of land in a city like Accra. We cannot lose sight of the numerous problems associated with land ownership in Accra. People who have gone through the process of acquiring land genuinely stand the risk of losing it if they fail to develop it immediately because of multiple sales or leases by the same vendor or lessor as the case may be… people have resorted to erecting temporary structures on the land to serve as visible sign to everybody who goes there to know that at least somebody is on the land. Needless to say squatters also take advantage to settle on unoccupied lands with kiosks and all sorts of temporary structures.
Beyond showing possession through buildings, the Supreme Court held in Akoto v Gyamfi-Addo [2005-2006] SCGLR 1018 that possession can be proved through receipt of rent or profits, or rights to receive same. These acts equally show control over land. This is known as constructive possession.
It is essential to note possession is one of the ways of obtaining good title. In the case of Osei (substituted by) Gillard v. Korang [2013–2014] 1 SCGLR, the Supreme Court noted that
Now in law, possession is nine-tenths of the law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right of ownership and it being good against the whole world except the true owner he cannot be ousted of it. See Summey v. Yohuno [1962] 1 GLR 160 SC and Barko v Mustapha [1964] GLR 78 SC
In the more recent case of Yamoah v. Yeboah [2023] GHASC 85 (5 July 2023)
It is to be noted that long possession of land does not ripen into ownership and he who is in possession has good title against the whole world other than the true owner.
Meaning of Ownership:
In Black’s Law Dictionary, 9th ed., ownership is defined as
The bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing, regardless of any actual or constructive control.
If X is said to be the owner of land, he has the right to possess the land, use it, manage it, and enjoy it.
In determining who owns land, the courts may consider payment of ground rents. See the case of Tonado Enterprise and Others v Chou Sen Lin [2007-2008] SCGLR 135 where the Supreme Court said that payment of ground rents creates a rebuttable presumption of ownership. Other acts of ownership include the making of grants.
Meaning of Property:
This is a thing that is capable of ownership. Property can be moveable, like phones and cars, or immovable, like land. Property can also be tangible, like land and phones, or intangible, like shares, easements, licences, or intellectual property.
Where a person owns property, he can use force in defence of that property, as held in the case of Banini (An Infant) v. Asare [1992] 1 GLR 353-360. In that case, the court said:
At law reasonable defence of one's self and one's property negatives liability in tort. Consequently, the test is reasonableness. What is reasonable is a question of fact dependent on the particular facts of the case.
…
The clear position of the law is that a person is entitled to use only such force as is reasonable in the circumstances in keeping out or expelling a trespasser. When one wants to protect one's property, you keep out or expel the thief, you do not teach him a lesson. The law does not permit the use of force, particularly bodily injury inflicted as a means of punishing the offender. Consequently, the test is reasonableness.
If a person becomes an owner of property via a conveyance, he can therefore use reasonable force in defence of that property.
Speed
1x