THE DOCTRINE OF NO OWNERLESS LANDS IN GHANA

The word “land” in law is used to refer to more than just the two-dimensional,
tangible surface soil on which people stand or walk. Nii Amaa Ollennu, in his book
Principles of Customary Land Law in Ghana, introduces the concept of land in the
law as follows: “The term “land” as understood in customary law has a wide
application. It includes the land itself, i.e., the surface soil; it includes things on the
soil which are enjoyed with it as being part of the land by nature, e.g., rivers,
streams, lakes, lagoons, creeks, growing trees like palm trees and dawadawa trees,
or as being artificially fixed to it like houses, buildings and any structures
whatsoever; it also includes any estate, interest or right in, to, or over the land or
over any of the other things which land denotes, e.g., the right to collect snails or
herbs, or to hunt on land.” 1

When people say they own land, they may only be referring to the particular
interests they have in a piece of land. The interest in land as enumerated in the
Land Act are allodial title, common law freehold, customary law freehold,
usufructuary interest, leasehold interest and customary tenancy2. Several people
could have different interests in the same piece of land at the same time. This is
peculiar feature of land which distinguishes it from other properties. Generally,
various categories of personalities or entities can acquire an interest in land. These
are individuals, groups of persons, legal entities such as companies, private
partnerships, social and religious organizations, families, stools and skins ,sub
stools, clans and state.

In Ohimen v Adjei3 the court laid down four principal ways in which the allodial
title can be acquired by a stool or a skin, community or a tribe. They are by
conquest and subsequent settlement thereon and cultivation by subjects of the
stool; discovery, by hunters or pioneers of the stool, of unoccupied land and
subsequent settlement thereon and use thereof by the stool and its subjects; gift to
the stool; purchase by the stool. Each of these methods involves either the sacrifice
of lives of subjects, or the expenditure of energy or contribution of money by
subjects, and use and occupation of the land by the subjects. If these factors of use
1
Nii Amaa Ollennu, in his book Principles of Customary Land Law in Ghana
2
Section 1 of the Land Act, 2020(Act 1036)
3
1957 2 W.A.L.R 275 Page 279
and occupation have been made components of the acquisition of the allodial title
then we would have a problem with virgin lands. The principle of no ownerless
lands however solves the problem.

The doctrine of no ownerless lands has been a thriving one predating even this 4th
Republican Ghana. The doctrine has even risen to the status of being called a
“basic principle of customary land law in Ghana”. The popularity of this doctrine
emanates from statements and reports of learned men and also some judicial
pronouncements that is orbiter dicta of court judgements.

It is not clear how and when the rule was first formulated that there is no land
without an owner. From Mr. J.M Sarbah however, we know that as early as 1891,
Mr. Justice Smith stated the doctrine in his report on the land tenure in the then
Gold Coast. After explaining that land may be categorized as stool land , family
land and private land the report goes on to say that “under these designations all
the land in the colony, save what the Government have from time to time taken for
public purposes , has according to native law an owner”4.
In another report, apparently in June 1891,Mr. Bruce Hindle, then Attorney
General of the gold coast(Ghana) also stated: “ It is considered by the natives that
all lands whether reclaimed or not, are attached to the stools of the different kings
and chiefs … There is no land which is not or has not been so attached”.
In his book, Mr. Mensah Sarbah also made a statement that “According to native
ideas, there is no land without owners”5
Another occasion which greatly influenced the subsistence of this doctrine was the
fight of the Gold Coasters led by the Aborigines Right Protection Society against
the Public Lands Bill of 1897. This bill proposed to vest all lands in the country in
the crown. The ARPS led by John Mensah Sarbah wrote to the crown to show
their disapproval. According to Nana Sir Ofori Atta, “land belongs to a vast family
of people, many of whom are dead, a few are living and a countless hosts are still
unborn”.

4
The Ownerless Lands of Ghana(1974) VOL XI NO.2 UGLJ 123-142-Kludze A.K.P

5
John Mensah Sarbah, Fante Customary Laws
Furthermore,the doctrine that there is no ownerless land in Ghana has also been
stated, perhaps re-stated and amplified, by Dr. Gordon Woodman. He observes that
"it is a firm principle in customary law that there is no unowned land in
Ghana".6The authorities on which he relied are Sarbah's brief statement, and dicta
in cases like Ofori Atta v. Atta Fua7, Ababio v. Kanga8 and Wiapa v. Solomon9.

On the contrary, the doctrine of no ownerless lands although widely accepted,

some writers say that its general application in the country is not justified. It is
also submitted that there is insufficient authority for the proposition. And it is
further submitted that the possible deductions from the doctrine would lead to such
absurdities that the doctrine itself must be rejected as unsound 10. According to
Kludze, the judicial pronouncements in the cases stated supra are not the holdings
of the courts but mere orbiter dicta which is not enough to formulate a principle in
law. Again, he strongly asserts that there are ownerless lands in Ghana. Per a
survey he conducted in the Volta Region, he found that places like Kpatoe lands,
Drato lands and Kodzofe lands were not owned by stools or families or
individuals. It may be necessary at this stage to distinguish jurisdictional authority
from the proprietary interest. When it is contended here that land is ownerless, it
only means that it is ownerless in the proprietary sense. Thus a stool may exercise
jurisdiction over a vast area of land, but within that area may be portions in which
no person or family claims any proprietary interest. As far as jurisdictional
authority is concerned, no land has been found by the present writer without a stool
exercising jurisdiction over it. It is probably true that there is no land over which
no chief exercises jurisdiction. This, however, may not be extended to ownership
of proprietary interests.

In Conclusion, the general rule is that there are no ownerless lands in Ghana.
Although this doctrine has not been a question for the courts to answer, it seems
however that it has been accepted by the Courts of Ghana as it have been
mentioned in their judgements as orbiter dictum. Also this doctrine has been stated
in books and reports written by people like John Mensah Sarbah, Woodman, and
Ollenu. However, Kludze in his article ,The Ownerless Lands of Ghana [1974] vol.
6
Woodman, G. R., "The Allodial Title to Land" (1968) 5 U.G.L.J. 79.
7
(1913) D. & F.Ct. 'Il-'16,65 at pp. 65-66.
8
Ababio v. Kanga (1932) 1 W.A.C.A. 253.
9
Wiapa v. Solomon (1905) Ren. 405, 410-11.
10
Kludze A.K.P. THE OWNERLESS LANDS OF GHANA [1974] VOL. XI NO. 2 UGLJ 123 - 142
Xi No. 2 UGLJ 123 – 142 has shown intense disapproval to this doctrine as he
asserts that the doctrine of no ownerless lands in Ghana is unfounded.

REFERENCES
1. Nii Amaa Ollennu, in his book Principles of Customary Land Law in Ghana

2. Section 1 of the Land Act, 2020(Act 1036)

3. Ohimen v Adjei 1957 2 W.A.L.R 275 Page 279

4. The Ownerless Lands of Ghana(1974) VOL XI NO.2 UGLJ 123-142-Kludze

A.K.P

5. John Mensah Sarbah, Fante Customary Laws

6.Woodman, G. R., "The Allodial Title to Land" (1968) 5 U.G.L.J. 79.

7. Ofori Atta v. Atta Fua (1913) D. & F.Ct. 'Il-'16,65 at pp. 65-66.

8. Ababio v. Kanga (1932) 1 W.A.C.A. 253.

9. Wiapa v. Solomon (1905) Ren. 405, 410-11.