A recent dispute over the rightful owner of a plot of land in Ghana has led the country's highest court to ask why people who sell the same land to several buyers in fradulent deals, are not prosecuted. The judges also expressed their shock at the state of Ghana's records from which it is often impossible to tell the rightful owners of plots of land. They said such chaos, combined with uncertainty about whether property deals are valid, would deter also foreign investors.
The case of Dora Boateng v Mackeown Investments illustrates the incredible complexity of buying land in Ghana. It also shows the difficulties faced by the courts in sorting out claims and counterclaims about land ownership.
In this case, heard by five judges of Ghana's supreme court, Boateng bought a 20 acre plot from Kwame KissieduKwaasi who described himself as the head of family and lawful representative of the KissieduKwaasi family, a section of the Anonkore clan. The deed of sale was executed in 2000 and registered in 2014.
When Boateng, who lives in Switzerland, returned to Ghana some time later, she found other people encroaching on her land.
It turned out that the encroachers were developers who said they had bought 50 acres of land from the same seller – including the very same 20 acres already registered as owned by Boateng.
Unable to resolve the problem any other way, Boateng went to the high court which ruled in her favour. After rival ‘owner’, Mackeown Investments, successfully appealed, Boateng took the matter to the supreme court.
The judgment of the supreme court deals with several significant procedural issues as well as with the problem of who was the rightful owner of the disputed land. The judges eventually found in favour of Boateng, but in reaching that decision they described some of the enormous problems involving in adjudicating land ownership disputes in Ghana. These problems included hopelessly confusing and inaccurate records of ownership, and a failure by the courts to prosecute people who ‘sold’ land to more than one buyer.
Some paragraphs from their judgment make it clear just how impossible the situation has become and how urgent it is that the country’s land records are put into proper order. What makes the matter even more complicated is that buyers are supposed to buy land only from or with the sanction of the senior member of a family. But even that question is often under dispute, with someone selling land while claiming to be the family’s proper representative, only for the buyer to be told later that the seller was not the right person, and that the ‘real’ family head repudiated the sale.
In this case, two official searches were made to establish the true owners of the disputed 50 acres of land. Between 1984 and 2014, the sellers of these 50 acres were listed as: ‘Beatrice AfuaObuo&CardinaApparama, Emmanuel Kwabena Larbi, Opanyin Emmanuel AmponsahAtiemo, Benjamin Tetteh, Stephen Alfred Tagoe, Evelyn Doku, Madam Gladys Yirenkyiwah, Madam Elizabeth Darkoa, Emmanuel Kwasi Awuah, Emmanuel OwireduYirenkyi, Nana Yaw OsiakwanII, Kwame KissieduKwaasi and Daniel Addo Danquah.’
All of them had been registered in the records of the Land Commission as sellers of this land.
After seeing the results of this search, the judges asked: ‘In circumstances like this, how will a prospective purchaser know the actual family which owns the property except to rely on the good faith of the prospective grantors?’
They added, ‘The challenges the courts continue to face with accurate maps, reports and data in resolving land disputes bring to the fore the unsatisfactory nature of land administration in this country.’
‘Twenty-five years after the passage of the Land Title Registration Act, 1995, PNDCL 152, only the Greater Accra Region and Kumasi metropolis have been declared registrable districts for the purposes of title registration to land.
‘The remaining fifteen out of the sixteen regions in the country continue to grapple under the weaknesses of registration of instruments affecting land under the Land Registry Act, 1962 (Act 122). Chief among these are wasteful and unprofitable litigation arising from uncertainties regarding interests in land by those who hold them and the extent of their interest.’
New legislation had been ‘intended to give certainty and allow proof of title, to make dealings in land safe, simple and cheap, and to prevent frauds on buyers and mortgagees’. But these aims still eluded buyers almost everywhere in Ghana. Typically, ‘innocent purchasers … no matter how diligent their inquiries, are always susceptible to falling victim to unscrupulous members of families … who indulge in multiple sales of land.’
Further, a key section of the law made it a second-degree felony for someone to purport to make ‘a grant of land to which he has no title’ or who makes conflicting grants of land to more than one person. However, this law had hardly ever been used to prosecute offenders in double land transactions, so the deterrent effect of the law was lost and offenders continued ‘with their criminal activities’.
The court said that land represented the wealth of a nation and played a significant role in its economic development. ‘Where a country’s land administration is weak, it could have a negative impact (on) attracting foreign investment.'
‘Investors prefer certainty and safe dealings in land. It is about time our policy makers came out with a comprehensive policy regarding land ownership, title and administration.’ Research was also needed into why land transactions in some regions seemed safe, and in others not.
Ruling that the sale to Boateng was valid and that the purported sale to the second buyer was invalid, the five judges said they were not prepared to allow Kwame KissieduKwaasi or his family to benefit from a double sale as had happened here.