Definition of Land and Interests in Land in Ghana: Legal and Customary Perspectives

Seth Doe 

Assisted by 

Sarah Asante , Philipa Hagan , Ewurama Mongson

DEFINITION OF LAND AND INTERESTS IN LAND IN GHANA

1. Introduction

Land law concerns itself with immovable property and the legal framework governing ownership, use, transfer, and administration of land. In Ghana, land law is regulated by a pluralistic legal system comprising constitutional provisions, statutory enactments, subsidiary legislation, and existing law, which includes common law, equity, and customary law principles.

The subject of land and interests in land, therefore, occupies a central position in Ghana’s legal and socio-economic development because land remains the primary source of livelihood, investment, and cultural identity.

This article examines the legal meaning of land, the constitutional and statutory foundations of land law, the concept of interests in land, the rights that attach to land ownership, and the scope and limitations of ownership under the Cuius est solum principle.

2. Sources of Land Law in Ghana

Article 11 of the 1992 Constitution establishes the hierarchy of laws applicable in Ghana. Land law draws its authority from the following sources:

• The Constitution of the Republic of Ghana, 1992
• Statutes such as the Lands Act, 2020 (Act 1036) and the Rent Act
• Subsidiary legislation, including Legislative Instruments and Executive Instruments
• The existing law
• Common law, equity, and customary law principles

These sources collectively regulate land ownership, tenure, transfer, compulsory acquisition, and land administration.

3. Constitutional Concept of Land and Territory

1. Territorial Scope of Ghana

Article 4(1) of the 1992 Constitution defines the territorial extent of Ghana as follows:

The sovereign State of Ghana is a unitary republic consisting of those territories comprised in the regions which existed immediately before the coming into force of the Constitution, including the territorial sea and the airspace.

This provision establishes that the land territory of Ghana is not limited to dry land alone. It extends to the territorial sea, inland water bodies, as well as the airspace above Ghana.

Consequently, land in Ghana is legally understood to include water surfaces and aerial space.

2. Constitutional Ownership of Minerals and Subsoil

Article 257(6) of the 1992 Constitution further expands the meaning of land by vesting mineral resources in the State. It provides that every mineral in its natural state, in, under, or upon any land in Ghana, rivers, streams, and 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 is vested in the President in trust for the people of Ghana.

This provision confirms three important legal principles:

Land includes the subsoil as well as rivers, streams, and watercourses. Mineral resources beneath land are constitutionally vested in the State regardless of private land ownership.

Thus, while individuals may own surface rights, the ownership of minerals remains vested in the Republic.

4. Statutory Definition of Land

The Lands Act, 2020 (Act 1036) provides a comprehensive statutory definition of land. Section 281 defines land to include:

• The solid surface of the earth
• Trees, plants, crops, and other vegetation
• Any part of the earth surface covered by water
• Any house, building, or structure whatsoever
• Any interest or right in, to, or over immovable property

This statutory definition reflects a broad conception of land which incorporates both physical components and legal interests attached to immovable property.

5. Scholarly Interpretation of Land

Justice Nii Amaa Ollennu, in Principles of Customary Land Law in Ghana, explains land as comprising the physical surface of the earth, natural attachments such as rivers, streams, and naturally growing trees, artificial attachments such as buildings and permanent structures, and everything enjoyed as part of the land by nature or by permanent fixation.

This interpretation complements the statutory definition and reinforces the idea that land extends beyond bare soil to include permanent attachments and inherent natural features.

6. Meaning of Interests in Land

An interest in land refers to a legally recognized right to possess, occupy, use, or control land. Interests in land in Ghana derive authority from:

• The Constitution
• Statutory enactments
• Judicial decisions

6.1 Constitutional Protection of Property Rights

Article 18 of the 1992 Constitution guarantees the right to own property either alone or in association with others. Article 18(2) further protects the privacy of the home and immovable property from unlawful interference.

Article 20 provides constitutional protection against compulsory acquisition of property by the State unless prescribed conditions are satisfied. The reference to property in Article 20 includes immovable property, which primarily refers to land.

These provisions establish land ownership as a constitutionally protected right.

6.2 Statutory Nature of Interests

Interests in land are created and regulated by statute. Rights, on the other hand, arise from inherent human entitlements and constitutional guarantees. Interests, therefore, determine the nature and extent of control that a person may exercise over land.

7. Recognized Interests in Land in Ghana

Under Ghanaian land law, the principal interests in land include:

• Allodial title
• Usufruct
• Customary law freehold
• Common law freehold
• Leasehold interest
• Customary tenancy

These interests reflect Ghana’s dual legal system, where customary law and common law principles coexist.

8. Rights Associated with Interests in Land

A person who holds an interest in land is entitled to exercise several proprietary rights. These include:

• The right to possess or occupy land
• The right to alienate land
• The right to enjoy the fruits and profits from the land
• The right to privacy and quiet enjoyment
• The right to mortgage the land
• The right to transfer or assign the land
• The right of access to the land

These rights are not absolute and are subject to statutory, constitutional, and customary limitations.

9. The Cuius Est Solum Principle

The classical common law maxim states “Cuius est solum, eius est usque ad coelum et ad inferos,” which means whoever owns the soil owns everything above it up to the sky and below it down to the depths of the earth. This principle establishes that ownership of land traditionally extends to the airspace above the land, the surface soil, and the subsoil beneath the land.

However, modern land law recognizes significant limitations to this doctrine.

10. Exceptions to the Cuius Est Solum Rule

There are five major exceptions to the principle of absolute ownership.

10.1 Reasonable Use Limitation

Ownership of airspace and subsoil is restricted to what is reasonably necessary for the ordinary use and enjoyment of the land.

10.2 Public Interest Exception

Article 295 of the 1992 Constitution defines public interest as anything that enures to the benefit of the public collectively. Under compulsory acquisition laws, land may be taken by the State for public purposes subject to constitutional safeguards.

10.3 Constitutional and Statutory Restrictions

Certain categories of persons, including foreigners, face statutory restrictions on land ownership under Ghanaian law.

10.4 Statutory and Equitable Limitations

Doctrines such as estoppel, acquiescence, and adverse possession may limit the exercise of land ownership rights.

10.5 Fiduciary Restrictions

Family heads, clan heads, and chiefs hold land in a fiduciary capacity. They are custodians rather than absolute owners and are accountable to beneficiaries. They cannot exercise unrestricted authority over communal land.

11. Judicial Interpretation of Airspace Rights

11.1 Kelsen v Imperial Tobacco Company 

In this case, the defendant erected an advertising sign that projected approximately eight inches into the plaintiff’s airspace. The court held that the intrusion constituted trespass. A mandatory injunction was granted for the removal of the sign.

The court further clarified that ownership of airspace is limited to what is necessary for the reasonable enjoyment of land.

11.2 Lord Bernstein of Leigh v Skyviews

The defendant used aerial devices to take photographs over the plaintiff’s land. The court held that land ownership only extends to the height necessary for ordinary use and enjoyment. Since the aircraft operated at a height far above this limit, no trespass occurred.

12. Judicial Interpretation of Subsoil Rights

Pountney v Clayton

The plaintiff purchased land for railway construction and sought to restrain the defendant from mining beneath it. The court held that the plaintiff acquired surface rights only. The defendant retained valid mining rights over the subsoil under an earlier agreement.

This case demonstrates that ownership of surface land does not automatically include mineral rights.

13. Possession and Trespass to Land

13.1 Pickering v Rudd

The defendant cut branches of plants that extended into his land from the plaintiff’s garden. The court held that trespass requires direct physical entry onto another’s land. Since the defendant did not physically enter the plaintiff’s land, no actionable trespass occurred.

13.2 Owiredi and Another v Mim Timber Company Ltd

The court held that a person in possession of land, even if a trespasser, may maintain an action in trespass against any person except the true owner or someone claiming under the true owner.

The plaintiff succeeded because he was in prior possession, and the defendant failed to establish a superior title.

13.3 Nunekpeku v Ametepe

The plaintiff sued for trespass but failed to prove possession. The court held that possession is a fundamental requirement in an action for trespass to land. Without proof of possession, the claim must fail.

14. Conclusion

The concept of land in Ghana extends beyond physical soil to include water bodies, airspace, vegetation, permanent structures, and legally recognized interests. Constitutional provisions, statutory enactments, and judicial interpretations collectively define the scope of land ownership and regulate interests in land.

While traditional doctrines such as Cuius est solum recognize extensive ownership rights, modern Ghanaian land law imposes important limitations based on public interest, statutory regulation, and fiduciary accountability. Understanding these principles is essential for effective land administration, dispute resolution, and sustainable land management in Ghana.