LAW OF IMMOVABLE PROPERTY-AN INTODUCTION

WHAT IS LAND?
According to Black’s Law Dictionary (9th edition) land refers to;
“an immovable and indestructible three-dimensional area
consisting of a portion of earth’s surface, the space above
and below the surface and everything growing on or
permanently affixed to it”.

Section 281 of the Land Act, 2020 (Act 1036) also defines land as
including;

“the solid surface of the earth, trees, plants, 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”.

Per the two definitions above, the following are classified as

forming part of land;

1. The earth’s surface (including trees, buildings, water bodies

be it natural or artificial, plants, vegetation)

2. The space beneath the earth’s surface (including minerals,

liquids, gases)

3. The space above the earth’s surface (including atmospheric

gases and liquids)

4. Land is indestructible (even though human activities like

galamsey and mining may deplete the land, it does not
destroy the land).
5. Land is immovable (land cannot be shifted from one place to
another for example, from Kumasi to Accra)

NOTE: The space above the earth’s surface is an issue of fact

and has to be proven. That is the measure of trespass
on land relative to the space above the earth’s surface
refers to the space within the ordinary use of the
person or reasonable height and not an abnormal
space. See KELSEN v IMPERIAL TOBACCO CO.
[1957] 2 QB 334.

FACTS

Plaintiff, a tobacconist, acquired the lease of a chop. Defendants,

a wholesale tobacconist, displayed three advertising signs on the
wall of the adjoining building above the shop. The signs
protruded a distance of some eight (8) inches into the airspace
above the flat of the roof of the plaintiff’s shop at a height of
eight (8) feet. Thus, plaintiff brough an action of trespass.

HELD

Defendant’s actions constituted trespass since the airspace

above the plaintiff shop was part of his premises and the
advertising board was within a reasonable space above the
plaintiff’s property though it was only eight (8) inches.

Also see the case of LORD BERNSTEIN OF LEIGH v SKYVIEWS

& GENERAL LTD [1978] 1 QB 479.

FACTS
Plaintiff alleged that the defendant had trespassed in the
airspace (1000 ft) above his property and invaded his right to
privacy when they (defendant) an aerial photograph.

HELD

The height that the defendant got to in order to take the aerial
shot did not infringe upon the plaintiff’s airspace since it was
within the ordinary use or reasonable height of the plaintiff and
complied with statutory requirements and thus not amounting to
a trespass.

NOTE: Infringement to the airspace or space above the earth’s

surface would not constitute trespass except where the
claimant could prove that the act complained of
interferes with his ordinary use of his land.

In Ghana, in the case of interference with the ground

below or the space beneath the earth’s surface, there
should be evidence that the defendant has mining
rights and therefore is protected by section 1 & 9 of the
Minerals and Mining Act, 2006 (Act 703) else the
defendant would be liable for trespass to the subsoil.

Also, even though the space beneath the earth’s

surface is part of land (including any mineral found in
them), the mineral does not belong to the owner of the
land but for the government and the owner of the said
land cannot assert any interest, ownership or right in
the mineral because the laws of Ghana per Article 257
 (6) of the Constitution, 1992 vest minerals in the
president for and on behalf of the citizens.

ARTICLE 257(6)

“Every mineral in its natural state in, under or upon any

land in Ghana, rivers, streams, water courses throughout
Ghana, the exclusive economic zone and any area
covered by the territorial sea or continental shelf is the
property of the Republic of Ghana and shall be vested in
the President on behalf of, and in trust for the people of
Ghana”.

Also in OKOFO SOBIN KAN II & 5 ORS v ATTORNEY

GENERAL & 2 ORS [2014] WRIT NO J1/2/2012, it was held
that “minerals in stool land are not part of the land”.

FACTS

The plaintiffs sued the defendants contending that royalties from

mining operations on their land should be paid to them
(plaintiffs) who hold the stool lands in trust for their subjects and
that the 3rd defendant (Ghana Revenue Authority (GRA)) is
unlawfully and unconstitutionally exercising the powers and
functions reserved by the Constitution to the 2 nd defendant (the
office of the Administrator of stool land).

HELD

The lack of stool proprietary title over minerals in their natural

state makes all stool pretences to control or management over
the same idle. It should be noted that this trust over minerals in
their natural state is a “trust for the people of Ghana” generally
therefore any attempt to have the revenue, royalties accruing
from such minerals vested in a stool and administered for the
benefit of a stool, traditional authority or District Assembly within
the area of authority of which stool land is situate under Article
267 (1) (2) and (6) will be contrary to Article 257(6) and
accordingly null and void.

Thus from the above ratio of the judgment, the owner of the stool
land may exercise unfettered/unrestricted rights over the surface
above it and the top soil but not the minerals and the owner.

HOW LAND IS ACQUIRED

Land in acquired through either of the following ways (see

OHIMEN v ADJEI & ANOR [1957] 2 WALR 275 and section 2
of Act 1036;

1. Compulsory acquisition

2. Conquest

3. Discovery

4. Gift

5. Purchase

Thus, the owner of land is deemed to be the owner of the things

and chattels on it unless he has divested himself of ownership
either by gift, a sale or abandonment. The owner is prima facie
the owner of all the crops found on the land (see AHIABLE
@VIVOR & OTHERS v DOSU & OTHERS [1971] 2 GLR 127)

FACTS

Plaintiffs sued defendants claiming that defendants have

unlawfully upon their farm and uprooted cassava which
defendants carried and sold for their benefit but the defendant
also contended that the farm was theirs. So both parties were
laying claim to the cassava fam as their property. The Local court
ruled in favour of the defendants but on appeal to the High Court,
the judgment was overturned in favour of the plaintiffs and the
defendant thus appealed to the Court of Appeal

HELD

The Court dismissed the appeal because according to Azu Crabbe

(JA), “the local court magistrate having found that the 1 st
plaintiff was the true owner of the land, he must be held
to be the owner of the land, unless there is evidence that
he had divested himself of the ownership by one of the
recognized methods: abandonment, gift or sale. There
was no such evidence in this case and there is the
presumption of law that the owner of land is prima facie
the owner of chattels and things found on the land. Thus,
where, as in this case, cassava crops are found growing
on a piece of land, and there in no clear evidence as to
the person who planted them, there arises the
presumption that the owner of the land owns the crops.
This presumption is rebuttable only by evidence that the
owner of the land has divested himself of his ownership,
or that he had given permission to the person, who
claims that he planted the crops, to go on the land”.

But where under native tenure, when the owner of the land
gives permission to someone to build or farm on his land, the
farm or the house shall remain the property of the licensee who
built or farmed on the land until the farm is destroyed or the
house is demolished when the land would revert to its owner
(see TOURE v BAAKO [1993-94] 1 GLR 342).

FACTS

Plaintiff sued defendant for declaration of title, perpetual

injunction and damages for trespass on his land which he
acquired in 1925 and that in 1956, he permitted defendant who
was then married to plaintiff’s sister to build on the land on
condition that defendant would pay ground rent to the plaintiff
but defendant failed and refused to pay claiming that the land
was not granted to him by plaintiff but by a different person. The
defendant lost the case at the High Court and on subsequent
appeal to the Court of Appeal and again filed an appeal at the
Supreme Court.

HELD

The defendant having been permitted to build on a portion of the

plaintiff’s land, he should not be allowed to turn round and say
that he went onto the land reasonably believing that he had a
good title from someone else and that he built on the land in
good faith. The person invoking the provisions of Act 2 must
show that he erected the building on the disputed land in good
faith and reasonable belief that he had good title to the land.
There is no way the defendant can succeed in convincing this
court that he obtained the land in dispute from the Mills sisters
and built on it in good faith, knowing full well that the land
belonged to the plaintiff. Thus, unless covered by an English-style
lease agreement, a person who is permitted to build on land
belonging to another retains ownership of the building so long as
it stands. The defendant is bound to pay rent for his occupation
of the plaintiff’s land or face ejectment.

Permission to build or farm on land does not give title to the

licensee under native tenure and customary law (see ASSEH v
ANTO [1961] GLR 103).

FACTS

The defendant appealed against the decision of the Land Court

which confirmed the decision of the Ajumako Native Court “B” of
Odoben contending that the two cocoa farms Op. Yena was
granted permission by the Barfo family to cultivate and parted to
plaintiff’s predecessor (Kweku Apreku) was only limited to the life
time of Kweku Apreku and that after the death of Kweku Apreku,
the land reverts backs to defendants and not for the plaintiff to
continue the usage of the land.

HELD

The permission which was granted Opanyin Yena to cultivate

cocoa farms must be presumed to exclude title to the land as it is
the practice and in accordance with native tenure and customary
law. The plaintiff/respondent has a possessory title to the two
farms in dispute and so long as he or his descendants do not
abandon the farms, they are entitled to as much security as if
they are owners provided, they recognize the title of the real
owners of the land. Once permission of the owner has been
obtained to build a house or to farm on family land, the house or
farm remains the property of the licensee and his heirs and
successors until the house or farm is destroyed or demolished
when the land will revert to the owners.

REFERENCE

1. Black’s Law Dictionary (2009) 9th edition.

2. Sir Dennis Dominic Adjei (2021); Land Law, Practice and

Conveyancing in Ghana 3rd edition.

3. Land Act, 2020 (Act 1036).