The Conveyancing Transaction: Post-Completion Stage (Title Registration)

Introduction:

In a previous note, we discussed the registration of a conveyance instrument under Chapter Six of the Land Act, 2020 (Act 1036). In this note, we will discuss title registration under Chapter Five of the Act.

For the purpose of highlighting the difference between registration of an instrument and title registration, the note begins by giving a brief overview of registration of instruments under the Land Registry Act, 1962 (Act 122) and registration of title under the Land Title Registration Law, 1986 (PNDCL 152).

The note then discusses specific provisions under Act 1036 relating to title registration, such as qualification for title registration, the process for title registration, and the effect of title registration.

Registration of Instruments Under the Land Registry Act, 1962 (Act 122) Versus Registration of Titles Under Land Title Registration Law, 1986 (PNDCL 152):

A. Land Registry Act, 1962 (Act 122):

In Section 3 of Act 122, it was provided that

Any instrument may be registered under this Act subject to the conditions herein contained.

These instruments included agreements for the sale of land and conveyances.

Upon registration of an instrument under Act 122, Sections 24, 25, and 26 of the Act made provisions for various effects of registration. Essentially, none of these effects related to the validity of the grantee’s title. Consequently, a person who registered an instrument under Act 122 can have his title successfully challenged. This position was explained in the case of Kwofie v. Kakraba [1966] GLR 229-232 as follows:

Indeed the Lands Registry does not undertake investigation of title for parties.  The registry merely registers a document registrable on delivery of particulars and on payment of the assessed fees.  Registration does not import state-guaranteed title.  It is only where parties have taken their respective grants from the same grantor or his privy that registration confers priority on the party who has registered his document.  Where the parties derive their titles from different grantors, registration is of no consequence and the court will not neglect its duty to ascertain who has valid title.  In other words, registration will not confer any legal right or title on any party who took his grant from a person who had no title at all to convey.

A similar position was arrived at in the case of Botchway v. Okine [1987-88] 2 G.L.R. 1, C.A, where the court said:

It ought to be emphasised that registration does not prevent the court from ascertaining who has a valid title to a piece of land; and it must also be borne in mind that registration will not confer a legal right or title on any party who took his grant from a person who had no title to convey.

Summarily, registration under Act 122 was merely registration of the conveyance instrument itself and not the title. It may, however, be said that the conveyance instrument, upon registration, became admissible to prove a person’s title in an action for declaration of title.

B. Land Title Registration Law, 1986 (PNDCL 152):

Unlike Act 122, registration under PNDCL 152 gave rise to state recognition of the validity of title. In Section 18 of PNDCL 152, it was provided that

The land register is conclusive evidence of the title of the proprietor of the land or interest in land appearing on the register.

In Section 43(1) of PNDCL 152, it was also provided that

Subject to subsections (2), (3) and (4) of this section and to section 48, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, are indefeasible and shall be held by the proprietor together with the privileges and appurtenances attaching to the land free from any other interests and claims.

C. B. Aryee, the first Chief Registrar of Lands under PNDCL 152, in a lecture delivered to the Ghana Bar Association 7^th Workshop on Continuing Legal Education held on 21^st July 1994 and published in Lectures in Continuing Legal Education 1993-1994 page 213, spoke to the effect of Sections 18 and 43 of PNDCL 152 as follows:

An important feature in the system of land title registration is the ‘conclusiveness of the register’ and ‘indefeasibility of title.’ Sections 18(1) and 43 of the Land Title Registration Law, 1986 contain elaborate provisions relating to the conclusiveness of the land register and indefeasibility of title........It will be observed from the above statutory provisions that the register operates not merely by declaring good a title found to be so, but confers the title stated, notwithstanding that, but for registration, the registered owner would have no title at all

This was cited with approval by the Supreme Court in Suberu v. Davidson & 13 Ors [2023] GHASC 35 (10 May 2023). The effect of this position is that even if the registered owner would not have had title, once he was registered under PNDCL 152 and an entry was made in the land registry, an indefeasible title was conferred on him.

C. Limitation of Title Registration to Registration Districts:

Despite the obvious benefits of registration of title under PNDCL 152, only persons who had lands in registration districts could register their land under PNDCL 152. Section 135(1) of that Act provided that

(1) This Act is applicable in an area declared a registration district under section 5.

Said Section 5 empowered the Minister for Lands to declare a district a registration district. Prior to such declaration, however, Section 135(2) of PNDCL 152 provided that “…the registration of instruments affecting land situated in the area shall continue to be done in accordance with the Land Registry Act, 1962 (Act 122).”

Summarily, there was a dual system of registration prior to the coming into force of Act 1036:

1. Land title registration for registration of title in registration districts, and
2. Registration of instruments for land in areas that where not declared registration districts.

Repeal of Act 122 and PNDCL 152 Under Act 1036 and Retention of Title and Deed Registration:

The Land Act, 2020 (Act 1036), has repealed both the Land Registry Act, 1962 (Act 122) and the Land Title Registration Law, 1986 (PNDCL 152).

However, it has retained the registration of title under Chapter 5 (title registration) and the registration of instruments under Chapter 6 (deed registration).

Act 1036 makes provisions on the following sub-topics:

1. Qualification for title registration.
2. First registration of land or an interest in land.
3. Subsequent transfer of registered land.
4. Effect of registration of title.
5. The power of the court to cancel registration on grounds of fraud, mistake, or other vitiating factors.

These are now discussed.

Qualification for Title Registration:

In Section 83 of Act 1036, it is provided that a person, skin or stool, clan or family qualifies to register land in the name of that person, skin or stool, clan or family if that person, skin or stool, clan or family holds

1. An allodial title.
2. A common law freehold;
3. A customary law freehold.
4. A usufructuary interest.
5. A leasehold interest, of which more than 3 years are unexpired.
6. A customary tenancy.

It is, however, essential to note that the land in question must be in a registration district before it can be registered. Presently, Greater Accra is the only region in Ghana fully operating title registration. In addition, however, there are registration districts in the Ashanti and Central Regions.

First Registration of Land or Interest in Land:

A. Meaning of First Registration:

In the recent case of Lartey & 2 Ors v. Djin & Anor [2022] GHASC 63 (29 June 2022), the Supreme Court characterised first registration under PNDCL 152 as follows:

First registrations refer to registrations where no title covers the property…

According to Da Rocha and Lodoh in “Ghana Land Law and Conveyancing,” at page 440,

First registration is the process by which unregistered land or registered instrument under the Land Registry Act, 1962

(Act 122) is brought on the land register.

Summarily, where there is land in respect of which no title has been registered, an application may be made to register that land for the first time. That application is known as an application for first registration.

B. Procedure for First Registration:

First registration becomes necessary when a new area has been declared as a registration district. Upon such declaration, lands in that area will have to be registered for the first time.

For purely analytical and structural purposes, the procedure for first registration is discussed under the following sub-headings:

1. Stage one—Declaration of registration district, requests for claims, and examination of title.
2. Stage two—Application for first registration.
3. Stage three—Determination of disputes and effecting first registration.
4. Stage four—Issuance of land certificate.

Stage One—Declaration of Registration District, Requests for Claims, and Examination of Title (Sections 89, 96, and 97):  

1. Declaration of Registration District: First, an area is declared as a registration district by the Minister responsible for Lands. This declaration is made by a legislative instrument—Section 89
2. Notice of Registration District and Requests for Claims to be Made: After the declaration, the Director of the Land Registration Division issues a notice is issued requiring persons who claim to be proprietors of land or to have an interest in land within the newly declared registration district to make a claim in respect of the land or the interest in the land within a specified period and in a particular manner—Section 96.
3. Making an Application to Set Forth Claims: Section 97 (1) provides that a person who claims to be the proprietor of land or to have an interest in land in the newly declared registration district shall make an application setting forth his claim within the period and in accordance with the manner specified in the notice under Section 96 (supra).
4. Examination of the Title of Persons Who Have Made a Claim: Section 97(2) provides that “The Land Registrar shall, after the expiration of the notice given under section 96, proceed to examine the title of any person who has made a claim to any land or interest in land or is deemed to have made a claim under subsection (1) and may, for that purpose examine any instrument relating to that land or interest.”

Stage Two—Application for First Registration:

1. Form of Application for First Registration: Per Section 103(1), a person may apply for first registration of land or an interest in land in a registration district in the terms set out in Form 2 of the Third Schedule.
2. Documents to Accompany the Application for First Registration: Per Section 103(2), the application for first registration shall be accompanied with
   1. the original deeds or other documents relating to the land or in the case of stool or skin, or clan or family land where a document is not available, a statutory declaration indicating the interest of the applicant;
   2. a list in triplicate of all deeds and other documents referred to in paragraph (a);
   3. a statutory declaration, where the applicant, other than a stool or skin, or clan or family, can establish to the satisfaction of the Land Registrar that the original deeds or other documents relating to the land cannot be found, have not been issued or are not available; and
   4. a plan in triplicate approved by the Director of the Survey and Mapping Division to enable the land to be fully Identified on the registry map.
3. Publication of Application: Per Section 103(5), “The Land Registrar shall publish the application in the manner prescribed in Regulations made under this Act.” This is to allow anyone who claims to be the owner of the land to raise disputes as to the title of the applicant.
4. Rejection of Application: The application for registration may or may not be rejected. Per Section 106, the application for first registration will be rejected if the applicant bases his claim of being the proprietor of land on an instrument, and
   1. the instrument deals with the land or part of the land in a manner inconsistent with an instrument previously executed whether by the same grantor or a predecessor-in-title or by any other person;
   2. on the face of the records or from common knowledge, the grantor named in the instrument does not appear to a Land Registrar to have been entitled to deal with the land as the instrument purports to have done;
   3. the instrument was made in contravention of, or is void by virtue of, an enactment;
   4. the instrument contains an interlineation, a blank, an erasure or an alteration not verified by the signature or initials of the persons executing the instrument;
   5. the Land Registrar is not satisfied with the statutory declaration submitted in support of the application; or
   6. the instrument was made in contravention of a prior registration.
5. Notice of Rejection and Invitation of Further Representations: Where an application is rejected, Section 107 requires notice of the rejection to be given to the applicant in writing, giving the applicant 30 days to make further representations.

Stage Three—Determination of Disputes and Effecting First Registration:

Per Section 104(1) of Act 1036,

(1) First registration of a parcel shall be effected by a Land Registrar

(a) on the expiration of the period specified in the notice issued under section 96 in respect of the district in which the parcel of land is situate;

(b) on the expiration of any notice which may be issued under subsection (2) of section 99 in respect of the parcel of land; (c) on the determination of any dispute by

1. the Lands Commission,
2. (ii) resolution under the Alternative Dispute Resolution Act, 2010 (Act 798), or concerning the claim of any person to be registered as proprietor of the land or interest in the land; or
3. a court of competent jurisdiction; or

(d) within ninety days after receipt of an application by the Lands Commission under section 103 or after the applicant has ,made further representations under subsection (1) of section 107, whichever occurs last.

This provision gives various times for first registration to be effected.

Essentially, where there is a dispute relating to the land, first registration can only be effected after the determination of the dispute in favour of the person making the application.

If the Land Registrar is satisfied of the title or interest of the applicant, Section 104(3) provides that first registration shall be effected by entering the following in the Land Register:

1. the name of a person who has been shown to be entitled to be registered as the proprietor of the parcel and the particulars of that person, the particulars of the grantor, if any, and the proprietorship as are prescribed to be entered,
2. the plan to enable the parcel to be fully identified on the registry map, and
3. the interests which have been shown to exist in the land.

Stage Four—Issuance of Land Certificate:

In Section 125(1), it is provided that

The Land Registrar shall, on registration of a person as proprietor of land or holder of an interest in land, issue a land certificate to the person.

At this stage, the process for first registration has effectively ended. We now examine the effect of registration under chapter 5 of Act 1036.

Effect of Registration:

Under Chapter 5 of Act 1036, registration has the following effect:

1. Conclusive evidence of the title of the holder of the interest specified in the land register.
2. Rights of proprietor are indefeasible, subject to overriding interests.
3. Actual notice of entries in the register.
4. Order of presenting instruments for registration determines priority of registered interests.

These are now discussed.

1. An Entry into the Lands Register During Registration is Conclusive Evidence of the Title of the Holder of the Interest:

In Section 111(1), it is provided that

An entry in the land register shall be conclusive evidence of title of the holder of the interest specified in the land register.

Per Subsection 2, the provision in Subsection 1 (supra) does not affect any right or interest in land acquired under the Limitation Act, 1972 (N.R.C.D. 54), or under the law relating to prescription. That is, where a person acquires land through adverse possession under NRCD 54, the fact that there is an entry in the land register does not affect the right or interest of the person who acquired the land through adverse possession. In fact, per Subsection 2, the registered holder of the right or interest shall hold the land in trust for the person who acquires the land through adverse possession.

2. The Rights Acquired by a Registered Proprietor is Indefeasible, but are Subject to Overriding Interests:

In Section 119(1), it is provided that

(1) Subject to subsections (2), (3) and (4) and to section 118, the rights of a registered proprietor of a parcel of land whether acquired on first registration or subsequently or by an order of a Court are indefeasible and shall be held by the proprietor together with the rights and privileges a attaching to the parcel of land free from all other interests and claims.

Per said Subsection 2,

(2) The rights of a proprietor are subject to the interests or other encumbrances and conditions, shown in the land register.

Per Subsection 3, Section 119 does not relieve a proprietary from a duty or an obligation to which he is subject as a trustee.

Per Subsection 4, the registration of a person as proprietor or holder of an interest in land does not confer on that person a right to minerals in the natural state in, under or upon the land.

In Section 121, it is provided that the land or the interest in land that is registered is subject to various overriding interests, which include

1. A right of way, a right of water, or profit which was subsisting at the time of first registration.
2. A natural right of water and support.
3. A right of compulsory acquisition, resumption, entry, search, and user conferred by any other enactment.
4. A lease for a term of less than three years and not capable of extension to a term of three years or more by the exercise of an enforceable option for renew;
5. A right acquired by customary law.
6. Electricity supply line, a telephone pole, etc.

3. An Entry into the Lands Register During Registration is Actual Notice to All Persons who Acquire Land or Interest in Land:

In Section 123, it is provided that

A person who acquires land or an interest in land shall be deemed to have had notice of every entry in the land register which that person would have discovered had that person conducted a search of the land register or inspected the land register.

4. Order of Presenting Instruments for Registration Determines Priority of Registered Interests:

In Section 124, it is provided that

(1) Rights derived from instruments recorded in the land register shall have priority according to the order in which the instruments were presented to the Registry irrespective of the dates of the instruments and despite the fact that an entry in the land register may have been delayed.

(2) Subsection (1) does not apply where there is fraud, notice or mistake.

Subsequent Transfer of Registered Land:

After land has been registered in the name of a person, the land or the interest in it can be transferred to another person. This is provided for in Section 154 which reads:

(1) A proprietor may, by an instrument as specified in Form 19 of the Third Schedule, transfer with or without consideration the land or interest in land of the proprietor to a person.

(2) The transfer shall be effected by the registration of the transferee as proprietor of the land or the interest in the land specified in the instrument and the instrument shall be filed.

(3) A transfer of a part of a parcel of land shall not be made unless the parcel has first been subdivided as provided for in section 116 and the subdivision is in conformity with planning regulations.

Power To Cancel or Amend Registration on Grounds of Fraud, Mistake, Or Other Vitiating Factors:

In Section 195(1), it is provided that

Subject to subsection (2), the Court may order the rectification of the land register by directing that a registration be cancelled or amended where the Court is satisfied that the registration has been obtained or made by fraud, mistake or other vitiating factors.

Per Section 195(2),

A court shall not order a rectification of the land register, so as to affect the title of a proprietor who has acquired land or an interest in land for valuable consideration unless

1. the omission, mistake, fraud or other vitiating factor was caused by the Lands Commission;
2. the proprietor had knowledge of the omission, mistake, fraud or other vitiating factor in consequence of which the rectification is sought; or
3. the proprietor had caused the omission, mistake, fraud or vitiating factor or substantially contributed to the omission, fraud, mistake or vitiating factor.

Summarily, the fact that an entry has been made in the land register does not mean it can never be challenged and cancelled or amended. Where there is fraud, mistake, or other vitiating factors caused by the Lands Commission or the proprietor, the court can order a rectification of the land register by which an entry will be cancelled or amended.