Customary and Common Law Freehold in Ghana: Legal Framework & Practical Insights

Seth Doe 

Assisted by 

Sarah Asante , Philipa Hagan , Ewurama Mongson

CUSTOMARY AND COMMON LAW FREEHOLD IN GHANA

1. Introduction

The concept of freehold ownership has historically represented the highest form of proprietary interest in land. In Ghana, however, the operation of freehold interests has undergone significant transformation following constitutional reforms and statutory interventions, particularly the 1992 Constitution and the Land Act, 2020 (Act 1036).

This article examines the nature, characteristics, restrictions, and contemporary legal position of customary law freeholdand common law freehold in Ghana, including their interaction with allodial ownership, constitutional limitations on foreigners, and judicial interpretation.

2. Meaning of Land and Interest in Land

2.1 Definition of Land

Section 281 of the Land Act, 2020 (Act 1036) defines land broadly to include:

“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.”

This statutory definition confirms that land includes not only physical soil but also improvements and proprietary rights attached to immovable property.

2.2 Meaning of Interest in Land

An interest in land refers to a legally enforceable claim, right, connection, or bond between a person and land. It is this legally recognized relationship that enables courts to protect proprietary claims.

3. Meaning and Nature of Freehold Interest

For an estate to qualify as a freehold, it must possess two essential qualities: 

• Immobility
• The property must be land or an interest issuing out of or annexed to land.

Indeterminate Duration
Ownership must be perpetual. Where the duration is fixed or determinable, the interest cannot be a freehold.

A freehold, therefore, denotes ownership that is held freely and permanently, without subjection to a superior proprietary interest.

In many jurisdictions, freehold ownership permits absolute ownership upon payment of the purchase price. Historically, Ghana also recognised this approach. However, following constitutional and statutory reforms, freehold acquisition is now heavily restricted.

4. Customary Law Freehold

4.1 Statutory Definition

Section 3 of Act 1036 defines customary law freehold as an interest arising from customary transactions and provides that it is:

(a) An absolute interest not subject to proprietary obligations but subject to jurisdictional and cultural rights of the stool, skin, clan, or family holding the allodial title;
(b) Acquired by outright purchase, gift, or inheritance from the allodial owner where permitted by law;
(c) Of perpetual duration and inheritable and alienable without further consent or payment.

Section 3(2) further prohibits the acquisition of customary freehold in stool and skin lands by non-citizens from 22 August 1969.

4.2 Judicial Explanation of Customary Law Freehold

In Akona Family of Kwahinkrom v Major (Rtd.) Korsah, the court explained that customary law freehold arises only where there is a derivative relationship between the claimant and the allodial owner.

Relying on Yaw Oppong’s Contemporary Trends in the Law of Immovable Property in Ghana, the court affirmed that a customary freehold is acquired when a member of a community exercises the inherent right to develop vacant communal land by farming or building.

The court further held that long occupation alone does not create usufruct or customary freehold unless the interest can be traced to the allodial title holder. There must be an acknowledgment of the superior customary authority.

5. Common Law Freehold

5.1 Statutory Definition

Section 4 of Act 1036 provides that a common law freehold:

(a) Is of perpetual or uncertain duration;
(b) Is subject to State interest and jurisdictional and cultural rights of the allodial owner;
(c) Is held free from obligations to others;
(d) Is inheritable and alienable.

Section 4(2) prohibits the acquisition of common law freehold in stool and skin lands by non-citizens from 22 August 1969.

6. Similarities Between Customary and Common Law Freehold

Both freehold types share six core characteristics:

• Perpetual duration
• Inheritable nature
• Alienability
• Freedom from obligations to others
• Subjection to jurisdictional and cultural rights of the allodial owner
• Prohibition of acquisition by foreigners in stool or skin lands since 1969

These shared attributes distinguish freehold from leasehold and tenancy interests.

7. Differences Between Customary and Common Law Freehold

Three main distinctions exist:

Source of Law
Customary freehold arises under customary law; common law freehold arises under common law principles.

Absoluteness
Customary freehold is absolute in character, while common law freehold is expressly qualified by State interest.

State Interest
The common law freehold is explicitly subject to State interest under Act 1036.

8. Essential Attributes of Freehold Interests

8.1 Perpetual Duration

Freehold interests are perpetual. Section 6 of Act 1036 defines leases as interests of fixed duration. Any interest with a defined term, such as 10, 50, or 99 years, cannot be a freehold.

8.2 Inheritability

Freehold interests pass by will or intestate succession. The successor acquires the full interest without obligations to previous owners.

8.3 Alienability

Freeholds may be sold, transferred, gifted, or leased, subject only to cultural and jurisdictional limitations.

8.4 Freedom from Obligations

Unlike leaseholders and tenants who owe rent and compliance obligations, freeholders owe no proprietary obligations.

Similarly, usufruct holders owe allegiance to the allodial owner. By contrast, the freeholder holds independently, subject only to customary jurisdiction.

9. Restrictions on Freehold Acquisition by Non-Citizens

9.1 Pre-1992 Position

From 22 August 1969:

• Foreigners could not acquire customary or common law freehold in stool or skin lands
• Citizens could acquire customary freehold in stool lands
• Both citizens and foreigners could hold freehold in family or individual lands

9.2 Constitutional Prohibition

Article 266(1) of the 1992 Constitution provides:

“No interest in land shall vest in a non-citizen a freehold interest in any land in Ghana.”

Article 266(2) declares any such transaction void.

This expanded the restriction to cover all categories of land, including family, clan, stool, skin, and individual lands.

9.3 Statutory Reinforcement

Section 10 of Act 1036 repeats the constitutional prohibition and voids any transaction granting freehold to foreigners.

10. Conversion of Pre-1992 Freeholds Held by Foreigners

Article 266(3) provides that any freehold held by a foreigner as at 22 August 1969 is deemed converted into:

• A 50-year lease
• At peppercorn rent

Commencing from 22 August 1969

With reversion vested in the President in trust for the people of Ghana, Sections 10(3) to (5) of Act 1036 replicate this position.

By 2020, all such converted leases had expired, meaning no foreigner currently holds any freehold interest in Ghana.

11. Reversionary Interest and State Control

Once a freehold is created, it does not revert to the original grantor. Under Articles 20(1) and 266(3) of the Constitution:

• Only the State may compulsorily acquire freehold
• Reversionary interest vests in the President on behalf of the people

12. Freehold and Stool, Skin, Clan, and Family Lands

Article 267(1) of the Constitution vests stool lands permanently in stools on behalf of subjects.

Section 9 of Act 1036 extends this to clan and family lands and provides that:

• No freehold may be created in stool, skin, clan, or family lands
• Only usufruct interests may arise for members

This provision fundamentally abolishes freehold creation in customary communal lands.

13. Case Law on Freehold Interests

13.1 Ex Parte Kludze

In Republic v Regional Lands Officer, Ho; Ex Parte Kludze, the court held that before Act 1036, family lands could validly be granted as freehold interests to citizens. Article 36(8) did not prohibit family freehold grants.

This position has since been overridden by Section 9 of Act 1036.

13.2 Akona Family v Korsah

The court reaffirmed that usufruct and customary freehold interests must trace their source to the allodial owner and cannot arise merely from long occupation.

13.3 Martin Verdose v Patricia Verdose

The Supreme Court held that although a foreigner cannot hold freehold under Article 266, court orders relating to property settlements must be interpreted to comply with constitutional limits.

The foreign spouse’s interest was limited to 50 years, consistent with constitutional restrictions.

14. Current Legal Position

Under Act 1036 and the 1992 Constitution:

• No freehold can be granted in stool, skin, clan, or family lands
• Foreigners cannot hold any freehold interest in Ghana
• Only citizens may hold freehold in individual lands
• Usufruct remains the only permissible perpetual interest in customary communal lands

15. Conclusion

Customary and common law freehold interests once formed the backbone of land ownership in Ghana. Today, their operation has been drastically narrowed by constitutional and statutory reform.

The modern Ghanaian land regime prioritises communal land protection, State oversight, and restriction of perpetual ownership by non-citizens. The freehold, once dominant, now survives primarily in individual land ownership by citizens and in historical transitional interests.

The law is now settled: freehold ownership in Ghana is no longer absolute but carefully regulated in the national interest.