It has been called the Usufruct, Determinable Estate, Customary Freehold or Customary

Law Freehold.

In Roman law, usufruct was the right of using and enjoying property belonging to another
person provided the substance of the property remained unimpaired or unchanged. In Roman
law, a usufruct was not capable of being alienated. In addition, the Roman usufruct did not
survive the life of the usufructuary. On the other hand, the Ghanaian usufruct is inheritable,
alienable and potentially perpetual. The usufruct was described as a burden on the allodial title.
According to this view, the usufruct is not another species of ownership in itself but consisted of
perpetual rights of beneficial user or land, which now co-exist with the allodial title.
However, in Awuah v. Adututu, the Supreme Court described the usufruct as “a specie of
ownership co-existent and simultaneous with the stool’s absolute ownership”.

KOTEY v ASERE STOOL

The plaintiff appellant claimed ownership to a parcel of land called the Mukose. Members of the
Abbetsewe family purported to sell the land to another upon the consent of the ASERE
MANTSE. The plaintiff claims the said land as his ancestral property. At trial the trial judge
rejected the plaintiff claims because he was a subject of the ASERE stool and thus could not
claim the land as his is ancestral property. Held: the plaintiff family had a usufruct title subject to
the paramount title of the ASERE STOOL. The plaintiff had asserted their title by prove of land
litigation.

Moreover per lord Dening, that the customary land law of Ghana had developed so as a
limitation of the right of the usufruct would be inappropriate. A usufructuary right in possession
is now an estate or interest in the land which the subject can alienate, use and deal with as his
own, so long as he does not prejudice the rights of the paramount stool to its customary services.
He can alienate to a fellow-subject without obtaining the consent of the paramount stool: for the
fellow-subject will perform the customary services. He can alienate it to a stranger so long as
proper provision is made for commuting the customary services. On his death it will descend to
his family as family land except in so far as he has disposed of it by will, which in some
circumstances he lawfully may do.

ACQUISITION OF THE USUFRUCTUARY INTEREST

It can be acquired in four (4) ways.

1. Discovery of vacant land by pioneers of a stool.

As a general rule, when the subjects of a stool discover unoccupied land, and subsequently settle
thereon and reduce into occupation, [the stool acquires the allodial title and the subjects acquire
the usufruct. See Ngmati v. Adetsia

2. Implied grant from a stool.

Subjects of a stool have an inherent right to a usufruct in any unoccupied portion of stool land
and the fact of the occupation and cultivation by a subject was all that was required to establish a
usufruct. No formal grant was required. See the following cases:

Ohimen v. Adjei
The plaintiff sues as the head of the nana daquah family of the asona clan. The defendants is the
occupant of the agona stool and a member of the asona clan. The defendant purported to grant a
portion of the ananfo land in which the plaintiff had possession of. They sue the defendant for a
declaration of title. Held: the allodial title of the land is vested in the stool. A plaintiff held the
usufruct title. The court per Ollenu j held that a subject who able to gain possession of a portion
of the stool land through his own industry is a holder of the usufruct and the defendant could not
grant the land to other without the consent of the usufructuary holder. The subject usufruct could
maintain an action of title to the land against the stool.

Bruce v. Quarnor

Oblee v. Armah
The parties are subjects of the James town stool. The parcel of land in dispute is located in korle
gonno. The plaintiff claimed to have obtained a grant from the stool. The land was subsequently
vested in the government. The stool purported during the time of acquisition to grant the land to
the defendants. The plaintiff sues to title. Held: a native need not an express grant to occupy a
vacant stool land which he has a right to a portion. The only limitation to the extent of land
occupied by the subject of the stool is his industry that is his ability to cultivate the land.
However, to ensure that there is adequate land for all subjects the stool could make an express
grant of the land to the subject. The title of a usufruct held by the plaintiff extends beyond the
use of the land for farming but to the use of the land for building purposes. A land in possession
of a subject cannot be granted to another subject without the consent of the usufruct holder in
this instance the plaintiff. The grant by the stool during the period the land was vested in the
government was void. And since the plaintiff obtained no compensation from the government
during the period of acquisition is right to the reversion when the land is divested is still in force.

Budu II v. Ceasar (1959) GLR 410, at 426).

The plaintiff instituted the present action against the defendants for failing to honour an arbitral
award. The court found that the purported arbitration was merely a negotiation as such the
defendant was not bound by the decision unless he consented to it. The issue in dispute was over
a parcel of land which the plaintiff claimed to be part of his stool land. HELD: The court held
that the land in question was that of Caesar who obtained an absolute title through purchase in
custom described as Guaha. Moreover, ollenu j held that the defendant could alienate the land
without the consent of the Atimpoku stool. Of greater amplitude was that a subject of the stool is
entitled either by an express grant from the stool or an implied grant to occupy any vacant
portion of the land

3. Express grant from a stool.

Such grants were usual in the case of urban lands where some supervision of the allocation of
plots was necessary for the purpose of orderly development and equitable allocation of
communal lands.

Armatei v. Hammond

Frimpong v. Poku
The plaintiff sues the defendant for trespass on a parcel of land he purchased from the sakori
stool of goase. The defendant was granted a parcel of land for two farming seasons. At the time
of the grant he was not a subject. He cultivated into the land which was granted to the plaintiff
despite being told to stop by the elders of the stool. He later became a subject of the stool
through customary naturalization. At trial the trial judge gave a judgment in favor of the plaintiff.
On appeal HELD: per Akuffo Addo CJ, that the principle of customary law which says that a
subject is free to cultivate any extent of stool land does not confer on a subject an unlimited
license for indiscriminate cultivation, and a subject usually obtains the formal permission of the
stool for the purpose. In modern times, it has become necessary to ensure a more equitable
distribution of available land for cultivation and the practice has been for limited areas to be
demarcated for subjects of the stool.

⦁ It must be noted, however, that though the subject may now be required to seek an express
grant from the stool, the subject’s access to land still remains an entitlement.

4. Transfer.
Could be from a subject to a subject or from a subject to stranger.

Kotey v. Asere Stool

⦁ Such grant to a subject or stranger being one under customary law is effective from the
moment it is made and a deed subsequently executed by the grantor may add to, but cannot take
away from the effect of the grant already made under customary law.
Bruce v. Quarnor

⦁ Whether a subject has satisfied the degree of occupation required to confer the usufructuary
title is a matter to be determined on a case by case basis. The general rule is that the presence of
economic trees on the land is a prima facie indication that someone is in occupation.

Norquaye-Tetteh v. Malm
The defendant claimed to have acquired the disputed land from the previous occupant of the
Akumadjaye stool, & the plaintiff claimed title through the current occupant. Counsel for the
plaintiff argued that the onus was upon the defendants to prove by positive evidence of
occupation that the land in dispute was the identical land which the stool had previously
transferred. HOLDING: The defendant was in lawful possession of the land at the date the
plaintiff entered & attempted to exercise acts of ownership. REASON: The existence of trees
like mango or cashew on land overgrown with weeds is prima facie evidence that the area where
they are found is a farmstead, once under cultivation by the person who now harvests their fruits.

Wuta Ofei v. Danquah

The plaintiff brought this suit claiming ownership of a given portion of land at osu,
christainsborg. She obtain an oral grant by custom from the osu stool and erected pillars with her
initials on them. She later obtained an indenture confirming the deed of gift of 1939. The
appellant built on the land in 1948 and was sued for trespass and damages. HELD: It was held by
the privy council that possession need not necessarily be cultivating on the land or developing
the land but placing blocks at the four corners of the land was sufficient possession though
exiguous against one who never had a title to the land.

⦁ Note that this principle amounts to a presumption, which can be rebutted by contrary
evidence.

⦁ The subject can alienate so long as the obligation to recognise the allodial ownership of
the stool is preserved.
Total Oil Products v. Obeng

Thompson v. Mensah
The plaintiff claimed a declaration of title to a piece of land around Ring Road, Accra, asserting
that he acquired it as a grant from the Korle Webii (priest). The defendant argued that he
acquired the land as a grant from the Atukpai (Kotey???) family and was in negotiation with the
Korle Webii to perfect his ownership. The Kotei family was in possession at that timeThe main
issue is whether the deeds of the plaintiff conferred on him a valid title.
Held: A usufructuary title can be transferred without the consent of the real owner (allodial title
holder) provided the transfer carries with it an obligation upon the transferee to recognize the
title of real owner and all the incidents of the subject’s right of occupation including the
performance of customary services to the real owner.

Awuah v. Adututu

⦁ However, when alienation is without the consent of the stool, it is only voidable, not void
and can be set aside only when the stool acts timeously.

Buour v. Bekoe
The plaintiff’s predecessor pledged the disputed land to the first defendant, who refused to
accept it & the 2nd defendant who like it, advanced the money & took the farm. In the plaintiff’s
predecessor attempt to redeem the land, the first defendant initially agreed that it was given as a
pledge for a loan but later alleged that it had been sold, & not pledged. The plaintiff’s witness
who was the linguist at the date of transaction deposed that he witnessed a transaction of loan &
pledge, & not sale. Therefore the consent of the odikro was not needed & not obtained. No
portion of the purchase price was paid to the odikro, as would be the case in sale of land to a
non-subject. HOLDING: On the evidence, the transaction was one of loan and pledge and not
one of sale and conveyance of the land. REASON: *Sale of possessory rights in land by a subject
to a non-subject without knowledge & consent of the stool is voidable, not void. Therefore if it is
shown that the Odikro and the principal elders knew of it, but sat by and allowed the purchaser,
in the belief that he has acquired good title, to incur expenses to improve it, the stool will be held
to be estopped.

⦁ On the other hand the stool cannot make a valid grant of land in which a subject holds the
usufruct without the consent of the subject.

Total Oil Products v. Obeng Awuah v. Adututu Baidoo v. Osei & Wusu

Mansu v. Abboye
The plaintiff, a subject of the Yarbiw stool, sought a declaration of title to the disputed land
claiming that his ancestors had cultivated the land & it into possession. An attempt had
previously been made by the State Farms Corporation to appropriate land for cultivation. Upon
complaints by the co-defendant as chief & the town inhabitants, land which had not already been
cultivated was released. The plaintiff’s land was part. The defendant, on the authority of the co–
defendant then entered the plaintiff’s said land, uprooted 215 wild palm trees and tapped them
into palm wine for the co–defendant. The defendant asserted that the plaintiff had lost any rights
he might have had over land when it was acquired compulsorily for the State Farms Corporation,
& upon its release was vested in the Chief of Yarbiw. Trial judge held for defendants & plaintiff
appealed. HELD: The allodial owner, without the permission of the usufructuary owner has no
right to the economic trees on any land which is in the possession and control of the usufructuary
owner, whether those economic trees were cultivated or grew on the said land without the
intervention of human labour. On the other hand the only title in land which a subject can claim
against a stool is the usufructuary title to the portion of the stool land in his actual possession.
Stool subjects in possession can only be dispossessed of their usufruct in land with their consent
or on proven and uncertified breaches of customary tenure, or upon abandonment.

But compare opinion in Armatei v. Hammond

EXTENT OF BENEFICIAL USER AND ENJOYMENT OF THE USUFRUCT

⦁ Holder of the usufruct has exclusive right of possession and use of the land. There were no
restrictions on his use of the land—could be for farming or building purposes. Oblee v. Armah,
Mansu v. Abboye
⦁ The holder of the usufruct can maintain an action in trespass against the stool and can impeach
a grant made by the stool without his consent. Awuah v. Adututu
⦁ The subject was required to render customary services to the stool; it has been said that this
duty was not a consequence of the proprietary relationship between the stool and a subject but
rather by virtue of the political and kinship ties between them. In other words, a subject who
does not have a usufruct in community land still owes allegiance to the stool.

INCIDENTS OF THE USUFRUCT

⦁ Right of Possession
It is a right in rem and exclusive and is a potential perpetual term allowing the bearer to possess
it for an indefinite period of time. It is potential because it is possible for the term to end. This
right of possession cannot be divested by the stool/family to another party or for public purpose
without the consent of the subject or stranger holding the land. ROBERTSON v NII
AKRAMAH, MANSAH v ASAMOAH, OHIMEN v ADJEI, OBLEE v ARMAH

⦁ Use and Enjoyment

The owner is entitled to all economic tree he plants. However, the allodial owners are entitled to
all, trees growing naturally on the land. As regard natural growing trees, the usufructuary can
also use them for his personal purposes only. MANSU v ABBOYE

⦁ Right of Alienation
The title holder can grant. However, he cannot grant anything higher than what he holds as this
will result in adverse claim. The holder in his own accord can decide to grant a lesser right or all
of his right to another person. No consent is needed provided due recognition is given to the
allodial title in the transaction. THOMPSON v MENSAH, TOTAL OIL V OBENG.

It is important to note that when alienation is without the consent of the stool, it is only
voidable, not void and can be set aside only when the stool acts timeously. BUOR v BEKOE

⦁ Right to an Action in Trespass

The holder of the usufruct can maintain an action in trespass against the stool and can impeach a
grant made by the stool without his consent. AWUAH v ADUTUTU

NUNEKPEKU v AMETEPE
The plaintiffs brought an action against the defendant for the recovery of possession of land & an
order for the defendant to vacate the land. They claimed defendant was not a member of the
family thus was not entitled to occupy family land. The defendant contended that he was a
member of the family & therefore was entitled to occupy & cultivate the disputed lands. HELD:
An action for recovery of possession was a wrong against possession, and therefore the main fact
which a plaintiff must prove in order to succeed was possession. But where, as in the instant
case, the defendant pleaded possession then it was incumbent upon the plaintiff to prove that he
was in possession at the time the defendant entered upon the land and wrongfully dispossessed
him of it.

⦁ Heritability of the Usufructuary Title

It is well settled in customary law that the usufructuary interest is heritable. This means that in
the event of the death of the usufructuary holder, his interest will devolve on his next- of-
kin. MANSAH v ASAMOAH

⦁ Right To Compensation
In Owusu v. Manche of Labadi, it was held among other things that the subject of a stool
acquires usufructuary rights which did not derogate from the stool‘s dominion, and while as such
usufructuaries the subjects were entitled to a share of the compensation upon its distribution in
accordance with native custom. The stool was the proper authority to receive the compensation.

⦁ Rights to Customary Service

The duty of the usufruct is to render customary service to the stool. These services were eligible,
not in consequence of proprietary arrangement between stool and subject, but by virtue of the
political and kinship ties binding them

LOSS OF THE USUFRUCT

1. Abandonment. Mansu v. Abboye
2. When the usufructuary denies the title of his grantors. Total Oil Products v. Obeng
3. Failure of successors. Mansu v. Abboye
4. By consent of the usufructuary. Mansu v. Abboye

THE NEW USUFRUCT

Woodman has argued that the rights enjoyed by the subject usufructuary have reached a point
where one can safely say that when a subject acquires the usufruct, it essentially extinguishes the
allodial title. Look above at the decision of Denning LJ in KOTEY v ASERE STOOL. Look at
the reasoning in AWUAH v ADUTUTU.

The usufruct has undergone some form of development. At the initial stage of settlement, the
stool was the absolute owner of all lands without any encumbrances on its title. Every member of
the tribe had equal rights to wander over and hunt upon the land which belonged to the group.
With the advent of settled agriculture, the members‘ right of user of the stool land i.e. right to
occupy, till enjoy an unappropriated part of the stool land. The customary usufruct was perpetual
and heritable. It substituted as long as the subject continued to use the land and will only revert
to the stool upon abandonment.

The customary usufruct underwent a second change with the advent of the tree crop farming.
Commercialization of agriculture led to commercialization of land and the subsequent birth of an
agricultural land market. The usufruct in stool land has matured into a ―freehold‖ owing to the
impact of modern economic and social phenomena. The security of corporate or family holding
as corporate entities has also followed the same line of development. The usufruct, then as
heritable and persists in perpetuity is seen to assure security of tenure.

CONSTITUTIONAL AND STATUTORY INTERVENTIONS

Article 267(5) of the 1992 Constitution prohibits the grant of freehold in stool land. The question
that lingers is whether this article takes away the inherent rights of the subject.

In addition, Article 267(5) of the Constitution has implications for the customary freehold. There
has been some debate as to the full import of this constitutional provision, especially with regard
to the extent to which it affects the land rights of subjects of the landowning communities and
other customary freeholders. Taken at face value, this clause could be taken to mean that all
holders of the customary freehold of stool lands and ‘strangers‘ are being turned into tenants of
the chiefs. However, this interpretation would impute to chiefs ownership rights that do not exist
in customary law.

An interpretation of Article 267(5) as prohibiting the grant of customary freehold interests in

stool lands could empower chiefs to feel justified in issuing only leases even to their own
subjects, thus further eroding the rights of customary landholders and their ability to resist re-
appropriation of customary lands for ‘development‘ purposes by stools which wish to cash in on
the rising value of peri-urban lands. It has been strongly argued that Article 267(5) should not be
interpreted as an outright prohibition on the grant of ‘customary freehold in stool lands, and
neither should the provision invalidate such freehold where already declared, nor prohibit the
registration of a land transaction described as a ‘customary freehold‘, where the grantee or the
transferee is a subject of the landowning stool.

Kwame Gyan in his article, ARTICLE 267(5) OF THE 1992 CONSTITUTION AND THE
DEATH OF THE
FREEHOLD INTEREST IN STOOL LAND IN GHANA, provides the following as reasons
for his assertions:

⦁ First of all, it appears that the rationale behind Article 267(5) was to ensure some inter-
generational equity through the prohibition of permanent alienation and resultant loss of stool
lands in a manner detrimental to future generations of stool subjects. The grant of or the
existence of the ‘customary freehold‘ to stool subjects, is however, perfectly consistent with the
above-mentioned policy objective, as it ensures that perpetual proprietary interests in land would
vest in and inure to the benefit of the present and future members of the landowning
communities through inheritance.

⦁ Secondly, the operative part (the prohibited conduct or action) in Article 267(5) is shall be
created. Thus the prohibition does not apply to the subject of the landowning stool because,
among other reasons, the stool subject‘s entitlement to the ‘customary freehold‘ is inherent and
not conferred by an act amounting to a creation. The inherent character of the subject‘s
‘customary freehold‘ in vacant stool land is an inextricable component of the structure of the
customary legal system. Indeed, there is ample legal authority for the proposition that the
necessity for an express grant from the stool is a recent practice dictated by the exigencies of
modern society, particularly, the need to ensure orderly development of stool lands and to ensure
their equitable allocation. Further, the authorities agree that a request from a subject cannot be
refused so long as there is vacant stool land to be allocated.

⦁ Finally, Article 267(5) should be read and interpreted in the light of Article 267(1) of the
Constitution and subject to customary law and usage , which recognizes that the subjects of a
stool and for that matter a member of a family is entitled as of right to a portion of vacant stool
or family land and upon such occupation the subject or member acquires the ‘customary
freehold‘

The lease arises where a person with a larger interest in land or a freehold interest
customarily or at common law or a leasehold, cuts out of his or her larger interest and
create an interest which does not exhaust all the interest of the transferor, if all the
interest of the transferor, is given away, then it is not a landlord and tenant relationship
which is being created but rather a sale and purchase.

So the idea is that the transferor creates something smaller and retains an interest (the
reversion). For there to be this relationship there should be some interest in the
transferor and a reversion in the transferor.

The essential requirement for a lease in a landlord and tenant relationship are:
Duration permitted for a lease: Two types of lease:

Fixed term: for a certain duration. From the inception of the lease it is clear how long
it would last. Where the duration of a lease is not certain. Lace v chandler

Periodic leases tenancies: it moves form period to period. That you will be let in
possession, payment of rent is agreed upon and the payment of rent is by reference to
periods. Allamedine Bros v. P.Z

Exclusive possession: if exclusive possession is not granted then it is a license. To

determine this is, whether or not the transferor retains her right to enter the subject
matter at his or her convenience, will make this a license. The mere fact that the
transferor retains keys to the premises does not mean that it is not a landlord and
tenant relationship. That is why it is said that certain types of occupancies are not
landlord and tenant relationship. Eg. Occupancy of a hotel, or hostel or hall of
residence.

Another feature which may determine exclusive possession is whether the transferor
continues to be responsible for something like cleaning and has access to the room at
his or her pleasure to do such things. Street v manford

Another situation is what you have not being a lease is for instance having a family
relative to stay with you or allowing a maid to live with you. All these are permissive
occupancies. As well as service occupancies like lecturer bungalows etc. It is also
possible for an employer who has property and an employee living in as a lease. That
can create a landlord and tenant relationship. Lastly we have occupancies by virtue of
office. An example is a chief in a chief’s palace a vice chancellor in a vice chancellor’s
porch etc. all these will not be leases but licensees for as long as they hold the
particular offices.

Reasons for the distinction between a license and a lease is important

⦁ Lease is a proprietary right and so it is alienable. A license is a personal right and so it
cannot be transferred
⦁ A lease is an interest in land and so it is binding on purchasers of landlord reversion. A
license is not binding except for proprietary estoppel
⦁ Security of tenure legislation and rent control legislation apply to leases but not
licenses.

The creation of legal leases

For a legal lease for a period exceeding three years to be created, it must be done in
writing. Section 1 of NRCD 175.
A legal lease for a period not exceeding three years need not be in writing and may
therefore be evidenced in writing or oral. SECTION 3(1)(f) OF NRCD 175.
It should be noted that periodic tenancies are classified as leases for periods not
exceeding three years.

THE CREATION OF EQUITABLE LEASES

In the absence of a written lease and therefore non-compliance in section 1, therefore

no legal lease, there can be equitable lease where:

• There is written evidence or memorandum of the contract. Such writing must however
contain the essentials of the contract or the agreement for lease. These essentials will
include the parties to the transaction; the duration of the lease; the commencement of
the lease; and the rent. If any of this is lacking from the written evidence, no equitable
lease would have been created. However this is subject to section 3. Sackey v.
Ashong, Djan v. Owoo, Sbaiti v. Sharamasighe

• In the absence of written evidence an equitable lease will also arise where there is an
oral agreement supported by an act of part performance. Section 3(3). Kotey v.
koletey
Part performance includes, any act done by the transferee on the basis of the oral
agreement. This will include going into possession, paying money, and building on to
the detriment of the transferee.

• Finally, when on the same facts , with two conclusions , viz legal and equitable
interest, where law and equity conflicts in that instance, then equity will prevail over
law and the transferee would be deemed to hold the more beneficial equitable
interest. Walsh v. Lonsdale. Amuzu v oklikah

THE RIGHTS AND OBLIGATIONS OF LANDLORDS AND TENANTS

EXPRESS AND IMPLIED TERMS

The rights and obligations of landlords and tenants may be expressly provided in a
lease agreement or may be implied.

IMPLIED TERMS

Rights and obligations may be implied by statute, principally in our case conveyancing
decree NRCD 175, and also the rent acts, or may be implied at common law, or thirdly
by the courts from the circumstances of the relation. Section 22 and 23, 25, 26, 27, 28
of NRCD 175 have a lot of implied terms.

EXPRESS

These are referred to as covenants between the landlord and tenants. Thus the rights
and obligations in the lease as agreed upon. A covenant usually would confer rights and
impose obligations. The person who assumes obligations or burden, is called a
covenantor and the one who derives the benefits is called the covenantee. This can be
found repeatedly in sections 22, 23 etc. So for each and every covenant the covenantor
and covenantee must be determined.

ENFORCEABILITY OF COVENANTS

In most contractual relationships, it is those who enter into the contract who are bound
by the contract. And they would be bound on the basis of Privity of Contract. In the
landlord and tenant situation, the only people who are bound under privity of contract
will be the original parties to the transaction. However because both have an interest in
land which are alienable either by inter vivos or inheritance, there could be a landlord
and tenant relationship between people who have not entered into a contract. That
being the case, these people may also have rights and obligations under the lease by
virtue of privity of interest (estate).

In landlord and tenant relation enforceability of covenant therefore is not only based on
privity of contracts but also under privity of interest. The privity of interest and the
enforceability of covenant will only arise if the covenant relates to the interest in land or
touches and affects land. Purely personal covenant however will only bind the original
parties.

Under sections 24 and 25 of the Conveyancing Decree you will find covenants relating
to an interest in land; the benefits of covenants. You will find statutory authorities in
sections 25-benefit of covenant relating to a land run with the land, 26-burdens of
covenants relating to the land run with the land,27- the benefit of covenant relating to
the land run with the reversion,28-burden of covenant relating to the land run with the
reversion
The rights and obligation of landlords and tenants maybe express or implied may also
be either covenant or a condition. A right of obligation is said to be a condition where it
is agreed as and framed as an obligation or right that is something which must be done
for the continued existence of the lease. At law, the only condition which is implied in a
lease is the condition of pay rent. This means that breach of a covenant, does not
automatically give the covenantee the right to terminate lease. Breach of a covenant
gives the covenantee a right to sue for damages .Breach of a condition gives the
covenantee the right to sue to terminate the lease

If there is a breach of any of the covenant they do not automatically enable the
covenantee terminate the lease because they do not have a forfeiture clause (Proviso
fore-entry). Sackey v ashong, thome v barclays bank
For a condition even without a forfeiture clause the covenantee can sue to terminate
the lease.

Sections 21 and part one of third schedule

IMPLIED COVENANTS

OBLIGATION TO PAY RENT

• A tenant as a condition of lease is under an implied obligation to pay rent. In the

absence of contrary agreement, rent is to be paid in arrears. Section 23(1) of NRCD
175 lists the obligation and the details are in part one of the 3rd schedule.

With long leases, one can have a rent renewal clause because of our country and
inflation. This provision for renewal may be strictly interpreted in accordance with the
terms of the lease. If there is no rent renewal clause, then it means that the rent
cannot be reviewed

• Assignment /subletting or parting with possession: because the lease is an interest in

land, in the absence of a covenant which prohibits an assignment the lease is
transferable. Hence the tenant has an alienable interest in the property.

ABSOLUTE PROHIBITION OF ASSIGNMENT /SUBLETTING OR PARTING

POSSESION

A lease may contain an express provision prohibiting any assignment. And an absolute
covenant in this regard is that the tenant shall not assign, sublet or part possession
with the property. What if there has been a breach of the absolute prohibition. At
common law, because the lease is by nature, transmissible, where the tenant assigns or
sublets, the assignment or subletting or parting in possession is not void or ineffective if
the landlord has suffered damage. If the landlord wants to have the right to terminate
then the express covenant should be fortified with a forfeiture clause.
A QUALIFIED COVENANT AGAINST ASSIGNMENT

Under the conveyancing decree section 23 there is a qualified covenant against

assignment. Part one of the third schedule. –this is implied that the tenant shall not
without the prior written consent of the landlord assign , sublet or part in possession of
the property provided however that such consent shall not be unreasonably withheld in
the case of a respectable person.

For the second qualification the consent of the landlord is not to be unreasonably
withheld in the case of a responsible or respectable. What the common law is saying is
for instance that if you lease your property to Mr. A, then it is a commercial transaction
which creates an interest in land that if madam B is also a respectable and reasonable
person can pay the rent, or fulfill all the obligation, it will not be right for the land lord
to prevent Mr. A from subletting to madam. The key criteria is there anything which
shows that the assignee or sub lessee cannot discharge the obligation?
The tenant is under obligation to ask. The consent must be in writing. Whether the
landlord is withholding his consent unreasonably is a question of fact for the count. The
consent must be in writing. Section 34-landlord shall not exact payment for giving his
consent. Section 33-the consent given shall apply only to transactions in which consent
was sought and received.

Before a landlord can go to court to bring an action for re-entry he must comply with
section 29 of the conveyancing decree. Under section 29 a right for re-entry would not
be enforced unless
⦁ Tenant is served with notice of breach
⦁ an opportunity to remedy breach
⦁ except when the breach is nonpayment of rent to pay compensation of the breach

Even when the covenant is fortified with a forfeiture clause the tenant can apply for
relief under section 30. The court may grant or refuse relief if it thinks fit having regard
to the proceedings and conduct of the parties. Relief may be granted upon certain
terms. The right to relief is available to the tenant until the very last moment when the
landlord takes actual possession of the property. Where the breach is denial of title the
right to relief is not available to the tenant.

In section 22 of the rent act, no person in the case of a monthly or short tenancy shall
sublet without written consent of landlord-osekere v Saah, Dhalomal v Puulampa.
Every person subletting his premises shall inform the landlord of such in writing within
fourteen days after he has sublet.

A statutory tenant cannot sublet, assign or part possession. This is because the tenant
has no proprietary interest in the property- George grant v tikobo sawmills. A
statutory tenant is one who remains in possession after the expiration of his contractual
tenancy and cannot be deprived of possession-section 36 of the rent act-UTC v Karam

However where the subject matter of the lease is premises, and the lease is therefore
regulated by the Rents Act, termination at common law will not by itself result in the
ejectment or eviction of the tenant if the tenant refuses to leave. In that case, the
tenant is referred to as a statutory tenant. For the landlord to eject this tenant, the
landlord will have to satisfy one of the provisions in section 17(1) of the Rents Act.
Thus the rents Act does not apply to all leases but leases on premises. Premises is
defined in section 36 of the Act- it must be a building, residential, commercial etc so
that Act 220 does not apply to leases of bare lands.

RE-ENTRY OF FORFEITURE

A landlord may have the right to re-enter or forfeit the lease in certain circumstances.
⦁ non-payment of rent
⦁ breach of a covenant supported by forfeiture clause or a proviso for re-entry upon
breach
⦁ denial of the landlord’s title by the tenant.

What acts will amount to the re-taking of possession is a question of facts for the courts
depending on the circumstances of the case. The courts have held that the re-taking
need not involve physical possession but rather legal possession.
Rent act only applies to premises

EXPRESS COVENANTS

⦁ Restrictive covenants-all these covenants are construed by the courts to discover

the intention of the parties involved.

⦁ Option to renew– With a lease for a fixed term, the tenant has no option to renew
unless the lease expressly so provides. Because the option to renew is a contractual
right, its proper exercise must conform with the terms of the provisions. Savage v
GIHOC, monta v peterson simons

⦁ Maintenance and repair– First, the landlord is under no obligation to repair unless
this is expressly provided. Second, the landlord does not warrant the habitability or the
fitness for purpose of the subject matter of the lease-caveat emptor. There is no
implied covenant that the landlord to maintain and repair premises. Thirdly, a tenant on
the other hand is under an obligation to use the property in a tenant-like manner. A
tenant like manner would generally be things like, if the washer in the tap is gone bad,
and the tap is leaking, you must fix. Same as the WC if it is choked. So you must carry
out such little maintenance. The tenant is also under an obligation not to commit waste.
Permissive waste-neglect which injures reversion, negligent or omission waste of the
tenant. Voluntary waste- actual act by tenant which causes damage. Thome v
Barclays bank

IMPLIED OBLIGATIONS OF THE LANDLORD

There are four implied obligations under section 22 and part one of the second
schedule of the landlord. These are:
The covenants of
• Quiet enjoyment
• Right to convey
• Freedom from encumbrances

RIGHT TO CONVEY

The landlord covenants that he has the right to give out the property. At the time the
transaction is entered into, and at the time it takes effect, the landlord impliedly
covenants that he has the capacity to give out or convey the property if not it will be a
breach of the covenant and the tenant can apply for damages.

QUIET ENJOYMENT

During the duration of the lease the landlord or his successors or assignees will not do
anything that will interfere with the tenant’s enjoyment and possession of the
property. Karam v ashkar

FREEDOM FROM ENCUMBERANCES

The landlord impliedly covenants that the lease is free from any encumbrances,
licenses, mortgages except those that have been expressly named in the covenant

IMPLIED OBLIGATIONS OF TENANT-SECTION 23

⦁ Repair to adjoining premises

⦁ Alterations and additions- The conveyancing decree stipulates that a tenant shall not
without the prior written consent of the landlord make addition or alteration to the
subject matter of the lease.-23(1) and part 1 of the third Schedule

⦁ Not to injure walls

⦁ Not to assign or sublet
⦁ Illegal and immoral user- Section 23(1) and part one of the third schedule-the tenant
shall not use or cause to use the subject matter of the lease for any illegal or immoral
terms.
⦁ Nuisance or annoyance

TERMINATION OF LEASES

There are six ways a lease can be terminated at common law:

• Expiration: This mode of termination applies only to fixed tenancies. Thus periodic
tenants cannot expire as they go on from period to period. Thus the lease travels its
course and expires. Expiration of a lease is not enough for the landlord to re-enter. He
must satisfy one of the conditions under section 17(1)-bassil v starijiani

• Surrender– This is where a tenant returns the unexpired portion of the lease to his
immediate landlord thereby terminating the landlord and tenant relationship. Since
surrender amounts to a conveyance of the property from the tenant to the landlord, for
it to be properly done it must comply with sections 1, 2 and 3 of the Conveyancing
Decree in the manner as seen already. Eg. If it is over a period of three years, it must
be in writing. Surrender may be express or by operation of law. Karam v ashkar

• Merger -This is the opposite of surrender. This is where the tenant buys the
reversionary interest from the landlord and hence terminating the landlord tenant
relationship

• Notice to quit-Fixed term leases: a fixed term lease cannot be terminated by notice
unless this is expressly provided. This must also comply with strict provisions of a lease
(in terms of the length….) eg. If you can terminate by giving six months’ notice you
can’t do that by three months’ notice. Period leases: There is an implied right to give a
notice to terminate a periodic tenant. The period of notice to be given depends on the
type of periodic tenancy. If it is a periodic monthly tenancy, then you need to give one
month notice. Allamedine BROS V. PZ. –a calendar months’ notice will suffice. For a
periodic yearly tenancy the notice requires six months’ notice. Gihoc v savage

• Frustration– Before panalpina, the common law position was that as a matter of law
in principle a lease cannot be frustrated. In Panalpina v national carriers, the
common law position changed that in principle it is possible for a lease to be frustrated
but this is rare. This is because the lease is an interest in land. In the case, the court
held that although a lease can be frustrated but on the facts of the case there was no
frustration.

• re –entry or forfeiture– a lease may be terminated in this case where a landlord

exercises his rights to forfeiture. Sackey v ashong

WAIVER

If a tenant breaches a condition or a fortified covenant, the landlord has a right to re-
enter. However if this is not done it is possible that the landlord has waived this breach.
He must be aware of the breach and must have done an unequivocal act which
indicates that he does not intend to terminate the lease. Section 32 of conveyancing
decree. Waiver relates to acts that occur at the time of the waiver-nukpa v Hunter .
bassil v said raad

THE EJECTION AND EVICTION OF TENANTS

Section 17(1)-…no order against a tenant for the recovery of the possession of or for
the ejectment …except in any of the following situations:
• a) Arrears of rent: where the tenant has failed to pay rent which is lawfully, one
month after the rent ….that is one of the grounds under which the courts will order the
ejectment of the tenant under section 17(1)
• b) where any obligation of the tenancy, other than that specified in paragraph (a), so
far as such obligation is consistent with the provisions of this Act, has been broken or
not performed
⦁ c) Nuisance or annoyance: The tenant is always making noise or playing music too
loud disturbing everybody on the premises. dennis v agbetei
• d) Immoral or illegal purpose
• e) Deterioration of the premises as a result of the neglect or acts of waste of the
tenant
• f) Notice to quit by the tenant and landlord has contracted to sell or let the premises.
That is promissory estoppel.
⦁ g) Where the landlord reasonably requires it for his personal occupation as a dwelling
house by himself or a member of his family. Member of his family.

Who constitutes members of the landlord’s family? Section 36(definition section) –a

father, or mother, wife, brother, sister, husband or wife, child… Owusu v. Asante-a
nephew or niece is not a member of the landlord’s family for the purposes of section
17(1) (g).

Saka v. LokumAl-child means any offspring of the landlord and not a minor (it
includes adult children of the landlord). Owusu v asante. Residential property. The
property must have been constructed as residential property (or as a dwelling house).
So if the property was not constructed as a dwelling house, eg. Commercial property, a
landlord cannot rely on section 17(1).

Reasonable requirement. Owusu v ansah Nimako v Archibald. The courts have

held that, the landlord must show not that he prefers or delights, and not even that he
requires but that he reasonably requires. The court will take into consideration the
existence or otherwise of alternative accommodation; the size of the house; size of his
family; location of the property. The courts have also held that the onus of proving
reasonable requirement is on the landlord.

Balance of hardship. The section also requires the court to weigh the equities. To
determine whether greater hardship will be caused to the tenant or landlord if the order
of recovery of possession is made and that the court should only make the order if on
balance greater hardship will be done to the landlord if the order is not made. The court
is required to take into account all the circumstances of the case. The courts have held
that the onus of proving greater hardship is on the tenant. Gbedemah v ofori

⦁ h) where the lease has expired and the premises is needed by the landlord for his
business purpose, he is to give six months’ notice of his intention to recover possession
and that he intends to use premises for purpose for which the premise was constructed.
Elements:
1. The lease has expired:
2. Business premises: the property in question must have been constructed as
business premises. Thus (g) deals with residential property whilst (h) deals with
business or commercial property. This means that if the property was constructed as
residential property but is being used as commercial or business purposes, the landlord
cannot apply under this section.

On the other hand, if the property was constructed as residential property and has been
given out for commercial property, you can go under 17(1) (g) if it is wanted for
occupation or residential purpose.

3. The landlord must reasonably require the premises: not that he wants to or
prefers but must reasonably require.

4. Six months’ notice: after the expiration, the landlord must give the tenant six
months written notice that he or she must leave. This requirement should be noted is
not in 17(1) (g). –this is the statutory notice (this is different from the contractual
notice which deals with the termination of leases where the tenant gives the landlord
written notice of his intention to terminate the lease)

⦁ I) where the lease has expired and the landlord intends to pull down the premises and
construct a new one, intends to remodel and it could not be carried out with the tenant
in occupation, requires the premises to carry out a scheme of re-development and the
landlord has given at least six months’ written notice to the tenant of his intention to
apply for order of recovery of possession.

Elements:
1. The lease must have expired and the tenant is a statutory tenant
2. The landlord intends to pull down the premises and construct a new one
3. The landlord intends to remodel the premises. And this cannot be done with the
tenant in occupation-seraphin v pacific stores. So if it is the kind of remodeling which
can be done with the tenant in occupation the landlord will fail to satisfy this. Note that
section 17(i) unlike g and h has no such restriction and hence applies to both
residential and commercial.

4. To carry out a scheme of redevelopment and the landlord has given not less than six
months written notice to the tenant of his intention to redevelop. It should be noted
that the statutory notice requirement applies only where the landlord is coming under
section 17(1) (i) (3) and not 1 or 2. Thus only where the landlord is applying to embark
upon a scheme of redevelopment. And not pulling down the property or
remodeling. Osei v. Anokye

5. An order of ejectment under this section may be subject to certain conditions: the
court may say that the landlord should reinstate the tenant after the completion of the
new building or remodeling.
⦁ j) where the premises was let to the tenant by reason of his employment in the
service of the landlord and such employment has ceased

⦁ k)situations where landlord rents premises furnished to the tenant because he was
leaving Ghana or part of Ghana where the premises in situated

Elements:
1. The property must be furnished or substantially furnished. What constitutes
substantially furnished is a question of fact.
2. The lease must be in writing and sets out that the lease has been granted for a term
during the absence of the landlord from Ghana or such area.
3. The lease must have been granted because the landlord is leaving Ghana or that part
of Ghana where the property is situated and the writing states so.
4. The landlord has returned to Ghana or that part of Ghana where the property is
situated
5. Requires the property for his own occupation.Note that under 17(1)(k) there is no
reasonable there as in 17(1)(g). Again it should be noted that members of his family
are not included and the lease must also be in writing and must also state that it is for
the duration for where the landlord is absent from Ghana or that part of Ghana where
the property is situated.