11 Oct An Analysis Of Section 9(3) Of The Land Act, 2020 (Act 1036): An Exception To The Rule?
The Land Act, 2020 (Act 1036) consolidates previous enactments on land into a single law and introduces some reforms within the land sector. One such reform is Section 9 of Act 1036.
Section 9 provides for Stool, Skin, Clan or Family Land and generally requires that such lands vest on behalf of, or in trust for the subjects or members under customary law. The provision also prohibits the creation of an interest which vests a freehold interest in any such land in any person.
The prohibition of the creation of freehold interest in stool lands is not new. This is because it is reflected in Article 267(5) of the 1992 Constitution of Ghana. Section 9(2) however, expands that prohibition to include clan or family lands.
Additionally, Section 9(3) of Act 1036; the focal point of this article, introduces a qualification of the general prohibition., which requires careful analysis in order to interpret the full import of Section 9(2).
Section 9(3) provides that the prohibition outlined in Section 9(2) does not take away the inherent right of a subject of a stool or skin land or a member of a clan or family land to the usufructuary interest in any vacant portion of the stool or family land.
For the sake of clarity, the relevant provisions are spelt out below:
“(2) A person shall not create an interest in, or right over, any stool or skin, or clan or family land which vests in that person, another person or a body of persons a freehold interest in that land, howsoever described.
(3) Subsection (2) does not take away the inherent right of a subject of a stool or a skin, or a member of a clan or family to the usufructuary interest in a vacant portion of the stool or skin, or clan or family land.”
In analysing Section 9(3), certain key points are worthy of note; firstly, the qualification provided in Section 9(3) applies to subjects and members only. In other words, those who are not subjects nor members will not enjoy the privilege this exception affords.
Secondly, Section 9(3) concerns usufructuary interest. Whilst section 9(2) prohibits the creation of an interest that vests a freehold interest in a stool or family land, section 9(3) makes it clear that despite this prohibition, the usufructuary interest; an inherent right enjoyed by subjects or members will not be affected.
Does a nexus therefore exist between freehold interest and usufructuary interest? Why did the lawmaker see it prudent to emphasise that the prohibition of the creation of freehold interest in a stool or family land does not affect the usufructuary interest in vacant portions of stool and family land to be enjoyed by subjects and members?
Act 1036 divides the freehold interest into two; customary law freehold and common law freehold. The law also provides that the acquisition of common law freehold interest in respect of stool and skin lands has been proscribed since the 22nd day of August 1969. It can therefore be implied that the freehold interest referred to in Section 9(2) is the customary law freehold.
In earlier land law textbooks and case law, the term ‘usufructuary interest’ was used interchangeably with ‘customary freehold interest.’ Historically, a customary freehold could be defined as an interest in land which a member of a community (the allodial title holder of the land), acquires in a vacant, virgin communal land by exercising his inherent right to develop such land by either farming it or building on it. 
Act 1036 however distinguishes between the two interests. It defines a usufructuary interest as an interest that can be acquired through:
- the exercise of one’s inherent right from the allodial title holders to develop any unappropriated portion of land on the express grant of the stool or skin, family or clan or by express grant, OR
- by settlement for not less than 50 years by non-indigene(s) on the permission of the allodial title holder except if the settlement is on agreed terms.
A customary law freehold, on the other hand, is defined as an interest which arises from a transaction under customary law, and is:
- an absolute interest in land which is not subject to any proprietary obligations but is subject to the jurisdictional and cultural rights of the stool or skin, or clan or family which holds the allodial title;
- acquired when a person or group of persons, where the law permits, purchase the land outright from the stool or skin, or clan or family which holds the allodial title or acquired by gift or inheritance; and
- of perpetual duration and is inheritable and alienable without the consent of, or payment to the stool or skin, clan or family.
It is worth noting that according to Section 3 of Act 1036, a customary law freehold is of perpetual duration. Per Section 39(4)(b) of Act 1036, a conveyance of a usufructuary interest shall not have a limited term or duration. In other words, a usufructuary interest can also be described as an interest in perpetuity.
This is further iterated in Section 50(19) which provides that a conveyance of a usufructuary interest shall not specify any duration of the interest.
Section 9(2) which is referenced above specifies that a freehold interest may not be created in a stool, skin, clan or family land howsoever described (my emphasis).
From the foregoing, it can be inferred that Section 9(3) seeks to highlight the possibility of a usufructuary interest presenting itself in the same manner as a freehold interest. In that vein, it seeks to preserve the inherent right of a subject of a stool or skin, or member of a family or clan to the usufructuary interest in the vacant portions of the lands referred to in Section 9(2).
In other words, subjects or members are exempted from the prohibition spelt out in Section 9(2) and may exercise their inherent right of usufructuary interest, even though it may lead to an interest in perpetuity, as with freehold interests.
The caveat however, is that the enjoyment of this exception is only for vacant portions of stool or family land and applies to usufructuary interests that are vested as an inherent right. This distinction is necessary because, as referred to in Section 5, there are two ways by which a usufructuary interest may be acquired, one of which is through settlement. This mode of acquisition is the preserve of non-indigenes: – a group which cannot be said to qualify as subjects of a stool or skin. Thus, it is fair to say on this basis that Section 9(3) would not apply to usufructuary interest obtained through settlement.
In summary, the creation of freehold interest in stool, skin, clan or family land is generally prohibited. However, this prohibition does not extend to the inherent right of a subject of a stool or skin, or member of a clan or family to the usufructuary interest of the vacant portions of land owned by the stool, skin, clan or family. Further, a subject or member can create an interest that vests an interest in perpetuity in the vacant portions of a stool or family land.
 Land Act, 2020 (Act 1036), Section 9(2)
 Ibid at Section 4(2)
 BJ da Rocha and CHK Lodoh, Ghana Land Law and Conveyancing, p.13 (2nd Ed., DR&L Printing)
 Land Act, 2020 (Act 1036), Section 5
 Ibid at Section 3