INTRODUCTION
Imagine the hypothetical case of Nuumo Adotey, a man well into his seventies, never married, never had kids, who died intestate and left behind not only fond memories of wisdom and integrity but also a five-acre parcel of land at Labone, leased decades ago to a developer. Years later, when the lease expired, his nephew and customary successor, Nii Lante, saw an opportunity.
Acting swiftly, he approached the lessor, renewed the lease in his own name, and began developing the property. When the family discovered this, tensions ran high. How could property, now the collective legacy of the family, suddenly become one man’s private estate?
The dispute eventually landed before the courts, raising an enduring question in Ghanaian customary and land law: Can a customary successor renew a family lease in his own name, or does such renewal automatically belong to the family under customary and equitable principles? The author explores the legal principles governing the duties of a customary successor and answers this critical question with reference to established case law and statutes.
The Nature of Family Property and the Role of a Customary Successor
Before the enactment of the Intestate Succession Law (PNDC Law 111) in 1985, the inheritance of property for a Ghanaian who died without a will was guided by their personal customary law.
A fundamental principle of this customary law is that while individuals have full control over the property they acquire during their lifetime, that property ultimately belongs to their family. Upon their death without a will, this individual’s control ended, and the property automatically became family property.
This means the family as a whole inherited the estate. To manage it, the family would appoint a customary successor who acted as a trustee or caretaker on their behalf. The successor did not inherit the property for personal ownership but held it for the benefit of the entire family.
It is a common misconception that a customary successor personally inherits the property of the deceased. This is not so. The law makes it clear that ownership of such property resides in the family as a collective entity. The successor merely serves as a caretaker or trustee, appointed to manage the property on behalf of and for the benefit of the family. As affirmed in Dotwaah v. Afriyie [1965] GLR 257, the self-acquired property of a deceased person vests in the customary successor for and on behalf of the family, i.e., the whole family, the abusua; but the right to immediate enjoyment of the beneficial interest in it is limited to the members of the immediate family.
For the appointment of a successor to a deceased member of the abusua, persons nearest in relationship to the deceased, i.e. members of his immediate family come in for first consideration and take priority over members of the more remote group or family; but where there are no persons in the family circles closest or nearest in blood relationship to the deceased, any suitable person from the outer or wider circle, the extended family, has a right to be considered. Accordingly, the successor does not hold personal title to the property but occupies a purely representative and fiduciary role.
The Legal Principle: Fiduciary Obligation
Under Ghanaian customary law, family property is owned collectively. It is held by the family head or successor, not as personal property but in a fiduciary or trust capacity for all members of the lineage. A fiduciary relationship is one of utmost trust and confidence, where one person is legally and ethically bound to act in the best interests of another. Under Customary Law, the customary successor steps into the shoes of the deceased, inheriting not ownership but the duty to manage, preserve, and protect the family’s interests.
This fiduciary relationship prevents the successor from using the property for personal gain or dealing with it as private property. The law, therefore, draws a clear distinction between possession as trustee and ownership as an individual.
This principle is so fundamental that it has been codified in modern legislation. Section 13 of the Land Act, 2020 (Act 1036) explicitly states that a person in charge of the management of family land is a fiduciary. The Act further requires them to be "transparent, open, fair and impartial" in their decisions.
This fiduciary duty has several important implications:
- Duty of Good Faith: The successor must always act honestly and in the best interest of the family.
- Duty to Preserve Family Property: The successor has a responsibility to protect, maintain, and, where possible, enhance the value of the family’s assets
- No Conflict of Interest: A fiduciary is held liable if it is proven that he gained or profited from the relationship in one or all of the following;
- If there is a conflict between the fiduciary duty and his personal interests
- If there is a conflict of the fiduciary duty owed to two persons
- Abusing the relationship/taking advantage of it
Based on these three provisions, the fiduciary is obligated to avoid situations of conflicts between his fiduciary duties and personal interests. Also, he is obligated not to be in a situation where two fiduciary duties conflict and not to profit from his position as a fiduciary unfairly.
This principle ensures that family property cannot be unilaterally converted into private property. The successor, as a fiduciary, owes the family the same duty that a trustee owes a beneficiary: loyalty, transparency, and accountability.
The Role of Equity: Constructive Trusts and Unjust Enrichment
Equity plays a vital role as a "court of conscience" that steps in when the strict application of common law or customary law rules would lead to an unjust result. In the context of a customary successor trying to renew a family lease in their own name, equity provides the solution through the powerful remedies of the constructive trust and the underlying principle of preventing unjust enrichment.
When a successor, such as our hypothetical Nuumo Adotey, renews a family lease in his own name, he breaches these fundamental principles. By doing so, he exploits his fiduciary position and the information he gained from this position to enrich himself unjustly at the family’s expense.
At this point, equity intervenes to prevent injustice.
A constructive trust is not one that arises from an express intention or a formal trust instrument. Rather, it is a remedy imposed by a court of equity to prevent injustice, irrespective of the parties’ intentions.
In essence, when a person acquires property in circumstances where it would be morally or legally improper for them to retain it for their own gain, equity intervenes and treats that person as a trustee holding the property on behalf of the rightful beneficiaries.
In the case of a customary successor renewing a family lease in his own name, the court would impose a constructive trust over that renewed lease. In practical terms, this means the following:
- Legal Title vs. Beneficial Ownership: Although the renewed lease may bear the successor’s name, giving him legal title, the court will hold that the beneficial ownership, the right to enjoy, profit from, and use the property, belongs to the family as a whole.
- The Successor as Trustee: The successor thereby becomes a constructive trustee, bound by law to manage the property not for personal gain but for the benefit of the family. Any income or profit derived from the lease must be accounted for and handed over to the family. He cannot lawfully sell, mortgage, or otherwise treat the lease as his private property.
- An Irrebuttable Presumption: This equitable rule is strict. The court will not entertain claims from the successor that the landlord would not have renewed the lease for the family. The very opportunity to renew stems from the family’s original leasehold interest, which itself is a family asset. This principle was firmly established in Keech v. Sandford (1726), a foundational case that remains central to modern equity.
Essentially, a constructive trust operates as the legal instrument by which equity retrieves an improperly obtained benefit from the successor’s hands and restores it to its rightful owner: the family.
If the constructive trust serves as the remedy, then the principle of unjust enrichment justifies that remedy; it is both the moral and legal foundation for the court’s intervention. The doctrine of unjust enrichment rests on a simple but powerful idea: it is inequitable for one person to be enriched at another’s expense in circumstances the law regards as unjust. To establish unjust enrichment, three elements are typically required:
- Enrichment:The defendant (in this case, the successor) has obtained a benefit. Here, Nii Lante gained a valuable leasehold interest in prime land.
- At the Expense of Another:That benefit was obtained at the expense of the plaintiff, the family, who lost the opportunity to renew the lease and enjoy its advantages.
- Unjust Circumstances:The enrichment is considered unjust because it arose from the successor’s blatant breach of fiduciary duty and abuse of his position of trust.
The court imposes a constructive trust precisely to reverse the unjust enrichment. Equity does not allow a fiduciary to profit from his own wrongdoing. By declaring the successor a constructive trustee, the court removes the ill-gotten benefit from his hands and restores it to its rightful owner, the family, whose rights and interests were unjustly displaced
The Position Under the Intestate Succession Law, 1985 (PNDCL 111),
The Intestate Succession Law, 1985 (PNDCL 111), which came into force on 14th June 1985, marked a major shift in Ghana’s inheritance system. It replaced the dominance of the extended family under customary law with recognition of the conjugal (nuclear) family as central to succession.
The law was enacted to correct the injustices and inconsistencies in customary and statutory intestate succession, ensuring a uniform system applicable to all Ghanaians regardless of ethnicity, religion, or type of marriage.
Before its passage, surviving spouses and children, especially under matrilineal systems, had little or no legal protection. The law sought to change this by prioritizing fairness and moral justice: recognizing the spouse’s contribution to the family, the spouse’s primary role in caring for children, and the expectation that property acquired during marriage should benefit the immediate family.
In summary, PNDCL 111 unified Ghana’s intestacy laws and ensured that the bulk of a deceased person’s estate goes to the surviving spouse and children, rather than to the extended family.
The Duty Extends to all Family Property
The fiduciary responsibility of a customary successor extends beyond property that becomes family property upon the intestate death of its owner. It applies equally, and perhaps even more strongly, to property that has long been part of the family estate, such as ancestral lands and buildings handed down through generations.
When the family head who manages such property dies, the customary successor assumes that same position of trust. The successor does not inherit the property as personal ownership but holds and manages it as a trustee for the collective benefit of the entire family. This position was clearly articulated in Fynn v. Kum (1957) 2 WALR 289, where Ollennu J. (as he then was) emphasized that under customary law, the head of family holds family property as a trustee and not as an absolute owner. The court further held that any dealing with family property requires the consent and concurrence of the principal elders, and any transaction undertaken without such consent may be set aside by the family.
Similarly, in Allotey v. Abrahams (1957) 3 WALR 280, the court described the head of the family as an indispensable figure in the alienation of family land but clarified that the head acting alone is incapable of making a valid alienation. Authority over family property, the court stressed, is shared, not absolute. These decisions underscore the long-standing rule that any major transaction involving family property must be undertaken with the knowledge and approval of the family’s principal members.
This customary rule, now reinforced by Section 46 of the Land Act, 2020 (Act 1036), has been codified to require that such consent be in writing. Together, the decisions in these cases and Section 46 of the Land Act establish a clear legal position that a family head or successor acts as a trustee and must obtain the collective, written agreement of the family before dealing with family land.
Renewing a lease over family property is, therefore, a significant transaction with long-term implications for the family’s interest in the land. When a successor attempts to renew such a lease in his own name, the act becomes even more serious, amounting to an attempt to divert or alienate the property from the family’s collective ownership.
Accordingly, and consistent with these judicial authorities, a customary successor managing ancestral family property must obtain the consent and concurrence of the principal elders before undertaking any renewal of a family lease. A renewal carried out without such consent, particularly one made in the successor’s personal name, constitutes a breach of fiduciary duty and is voidable at the instance of the family. In such cases, the family may petition the court to declare that the renewed lease is held on constructive trust for their benefit.
In effect, whether the property has been newly inherited or has remained in the family for generations, the governing principle remains constant: the successor functions as a trustee and cannot take unilateral decisions regarding family property.
Conclusion: Stewardship, Not Ownership
In conclusion, the law is unequivocal: a customary successor cannot renew a family lease in their own name for personal gain. Returning to the story of Nii Lante, the law would reject any claim of sole ownership over the renewed lease, since the opportunity to renew arose solely from his position as the family’s representative. The benefit, therefore, belongs to the family as a whole.
The successor’s role is one of stewardship, a sacred trust to manage property for the collective good of both present and future generations. Whether viewed through the lens of customary law or equity, any renewal of a lease on family property, even if executed in the successor’s name, is deemed to be held in trust for the family, unless there is explicit and documented consent granting personal ownership.
This enduring rule serves as a safeguard against individual appropriation of family assets and reaffirms a profound truth in Ghanaian jurisprudence: that family leadership is not a license for possession but a mandate for preservation, a call to serve, not to seize.
THE LEGAL EFFECTS OF CONTRACT FOR SALE OF LAND IN GHANA
Introduction
To properly appreciate the legal effects of a contract for the sale of land, we must first understand the nature and form of a contract for sale of land in Ghana. BJ da Rocha and CHK Lodoh, in the second edition of their book, Practical Draftsman, state that there are two approaches to land purchase in Ghana: the informal and the formal approaches. Under the informal approach, there is no prior written contract between the prospective vendor and the prospective purchaser. A conveyance is typically prepared, transferring the vendor’s interest in the land to the purchaser. Here, the transaction between the parties is founded on an oral agreement where the subject matter, the purchase price, and the mode of payment are agreed on. In such instances where there is failure to convey title or interest in land, the courts find it difficult to enforce such an oral contract, unless it can be proven that the oral contract is substantiated by part performance of the purchaser’s obligations, then the courts may resort to the application of the rules of equity.
On the other hand, the formal approach, which is usually the safest method for land acquisition, is where the purchaser first enters into a written contract for the sale of the land with the Vendor, after which the deed of transfer/conveyance is executed in favour of the purchaser. A contract for the sale of the land is typically a contract and, for that matter, must include the necessary elements for an enforceable contract: i.e., offer, acceptance, consideration, and an intention to create legal relations. Such a contract for the sale of land mainly contains the terms and conditions under which the subject matter land will be sold and does not necessarily transfer any interest in the land whatsoever. Also, in some instances, the contract for the sale of land may form the basis for the enforcement of a purchaser's right to specific performance.
By way of distinguishing a contract for the sale of land from a conveyance, it must be noted that there is absolutely no transfer of any interest in or right over land in respect of such a contract. The said interest in or right over land is only transferred from the transferor to the transferee upon the execution of a deed of transfer of title, which could be in the form of a conveyance, lease, or assignment.
Section 34 of the Land Act, 2020 (Act 1036) provides to the effect that a contract for the transfer of an interest in land is not enforceable if the contract is not evidenced in writing and signed by the person against whom the contract is to be proved or an authorised person to sign on behalf of that person. In addition to these requirements, Edusei J in the landmark case of DJAN v. OWOO AND ANOTHER [1976] 2 GLR 401-407, held that a contract in writing for the transfer of an interest in land would not be complete unless the following particulars were given:
(i) The names of the parties;
(ii) The property to be transferred;
(iii) The purchase price of the property; and
(iv) The defendant must have signed the written contract.
In that case, the court held that even though the contract was incomplete and unenforceable because of the omission of the purchase price which was a material term in every contract of sale, where a plaintiff had wholly or partly executed his part of a parol agreement on the understanding that the defendant would do the same, the court would order specific performance of the contract on the ground that it would be fraud on the defendant's part not to carry out his side of the bargain. Accordingly, the court found that there had been sufficient part-performance by the plaintiff of the contract and specific performance was granted in his favour. Next to be discussed are the rights and obligations arising under a contract for the sale of land in respect of both the Purchaser and the vendor.
Rights and obligations of the Purchaser under a Contract for Sale of land
- Equitable ownership: Upon the execution of a contract for the sale of land, the purchaser gains beneficial ownership in equity, while the vendor retains legal title until the deed of transfer is complete. A contract for the sale of land in Ghana creates a legally binding relationship, transforming promises into enforceable commitments with specific legal effects. Once a valid contract is completed, the vendor becomes a constructive trustee holding the legal title for the purchaser, who gains beneficial ownership in equity. This trusteeship, however, only arises when the contract is specifically enforceable. In the case of Bou-Chedid v. Yalley [1976] 2 GLR 258-272, the Court of Appeal speaking through Her Ladyship Jiagge J.A. held that an oral contract for the 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. Also, it must be emphasized that
the death of the Vendor before the completion of the sale does not affect the enforcement of the contract. Alternatively, on the death of the purchaser before completion, his personal representatives can sue and be sued on the contract of sale.
· Right to remedies: In the event of default on the part of the vendor, the purchaser can seek legal remedies, such as specific performance or damages for breach of contract. Also, in some instances, an oral contract may be enforced by an order for specific performance if it is for valuable consideration and there is evidence of part performance.
· Obligation to pay the purchase price
Under the contract of sale, the parties would have agreed on the purchase price of the subject matter land, as well as the mode and schedule of payment of the said purchase price. Here, the Purchaser is under an obligation to make payment of the purchase price in the manner prescribed under the contract for sale of land. By this, the Purchaser is entitled to enforce his rights by virtue of the said transaction.
Rights and obligations of the Vendor under a Contract for Sale of land
Constructive trusteeship: The vendor becomes a constructive trustee for the purchaser, meaning they hold the legal title in trust for the purchaser's benefit. An oral contract for the 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. In the case of G. K. Afordi & 20 Others v. Tema Development Corporation
& Ghana Publishing Corporation (2002) JELR 63475, the Court of Appeal held that even though the 2nd Respondent had not finished payment by 1980, from the moment the contract for sale was concluded, the 2nd Defendant/Respondent at equity became the owner and the 1st Defendant its constructive trustee of the properties, the subject matter of the sale. This position is supported in Snell’s Principles of Equity (27thEd.) at page 188, which states as follows:
“As soon as a specifically enforceable contract for sale of land is made, the purchaser becomes the owner of the land in equity and the vendor becomes a constructive trustee of the land for the purchaser, subject in each case to their respective rights and duties under the contract.”
This being the case, TDC had no right to grant leaseholds to the appellants. Additionally, the Supreme Court in the case of Amuzu v. Oklikah [1998-99] SCGLR 141 per Aikins JSC at 152 stated that: “The law is also clear that upon entering into such clear valid contract for sale, the court will not allow the vendor to transfer afterwards the legal estate to a third person, though such person would be affected by his pendens. The property is in such a situation (in equity) transferred to the purchaser by the contract, and the vendor will not be permitted to deal with the property so as to inconvenience him.”
- Lien for unpaid purchase price: The vendor has a lien on the property for any unpaid purchase price and can enforce it through the courts. The vendor can enforce his lien by applying to the Court for a declaration of the lien or for an order restoring the property to him or
resale of the property. - Obligation to transfer: The vendor has a duty to transfer the legal title to the purchaser upon the completion of the contract, which involves signing the deed and cooperating with the registration process.
To conclude, it is clear that a contract for sale of land is essential for land acquisition in Ghana, as it provides the basis of enforceable rights and
obligations in respect of the parties.