Land Title Registration Without Prejudice -- The Ghana Land Title Registration Law, 1986, Woodman,...

8/3/2019 Land Title Registration Without Prejudice -- The Ghana Land Title Registration Law, 1986, Woodman, Gordon R.

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Citation: 31 J. Afr. L. 119 1987

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LAND TITLE REGISTRATION WITHOUTPREJUDICE: THE GHANA LAND TITLE

REGISTRATION LAW, 1986GORDON R. WOODMAN*

Professor Antony Allott's first studies of law in Africa were of Ghanaianland law.' From an early date he has discussed issues of land title registrationin Africa.2 It is therefore fitting in this celebratory number to note thatGhana, after many years of debate and delays, recently enacted a statuteproviding for the registration of interests in land throughout the country. Itis planned that the Land Title Registration Law, 1986 (P.N.D.C.L. 152)(hereafter "the Law") will be brought into operation in stages as areas aresuccessively designated "registration districts". It is expected to begin withAccra "and designated agricultural areas", according to the Memorandumto the Law. When an area is so designated, the Chief Registrar of Landswill be obliged forthwith to call upon all persons claiming interests in landtherein to present their claims. Those proven, after adjudication if necessary,will be registered, and the register will be conclusive. All subsequent changesin the holding of interests are to be effectuated through changes in theregister. The Land Title Registration Regulations, 1986 (L.I. 1341) havealready been made to provide in more detail for the procedures to befollowed.3This contribution aftempts to provide a brief, critical summary of thecentral features of the Law. It considers these in the context of the historicaldevelopment of Ghanaian land law, and contrasts them with features ofcertain other schemes which have been implemented or proposed.

THE SCHEME OF INTERESTS IN LAND

The Law provides for the registration ofnearly all existing types of interestsin land. The scheme of interests may be seen as having emerged within thelegal system which was first established by the colonial power in the 1870s.4The Supreme Court Ordinance, 1876 (No. 4 of 1876) provided as a basicprinciple of the legal system that the customary laws of Ghanaian ethnicgroups were to be observed and enforced. By the end of the century a second* Faculty of Law, University of Birmingham. This paper was conceived when, on study leave

in Spring 1984, and working in Ghana with the assistance of a grant from the University ofBirmingham West African Travel Fund, I was asked to comment on a draft of the Law. In theshort time available I made a number of suggestions for minor changes. The paper wascompleted during a further term's study leave spent in Autumn 1987 at the University ofWisconsin-Madison. I acknowledge the encouragement and toleration I received from manyofficials in Ghana, and particularly Mr. C. B. Aryce, the Chief Registrar of Lands; and thebenefit received from discussion with the highly experienced members of the Land TenureCenter at the University of Wisconsin.'A . N. Allott, "Akan Law of Property", Ph.D. thesis, University of London (1954).See especially the writings referred to below, note 27.'The Land Title Registration (Amendment) Regulations, 1987 (L.I. 1345) merely providethat the date of commencement of the main Regulations is to be 29 December 1986.The following account is as brief as possible. Details may be found in the textbooks,primarily: K. Bentsi-Enchill, Ghana Land Law (1964); S. K. B. Asante, Propery Law and Social

Goals in Ghana 1844-1966 (1974); Ollennu's Principles of Customay Land Law in Ghana (2nd ed.,1985). See also G. R. Woodman, Customay Land Law in the GhanaianCourts (forthcoming, 1988).


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Land Title Registrationwithout Prejudicebasic principle germane to the land law had become established. This statedthat there was and had fo r long been no unowned land in Ghana.5 On thesetw o bases the organs of the state constructed a body of officially recognisedcustomary land law. As it was developed, this law took into accountdevelopments in customary practices which accompanied economic change,particularly the increased production of cash crops and the emergence ofother elements of a market economy. The law was developed on theassumption that the customary laws of different ethnic communities differedin detail but not in general principles. Consequently fo r the present purposea unified account of customary law will suffice.Essentially three categories of customary law interests in land weredeveloped. It followed from the basic principles just mentioned that the rootof title to all land was a customary-law title, known today as the allodialtitle. This was held by a customary-law community. The most common ofthese communities are the stool, the skin and the family (a unilineal descentgroup, in some instances called also a "clan"). In most parts of the countrythese communities were, as they still are, organised in hierarchies, suchthat the rights which constitute the allodial title are vested not in one,undifferentiated community, but in two or more at different levels. Thus theallodial title to a large area may be vested in a head stool, but sub-stools,each composed of a part of the head stool community and led by a chiefsubordinate to the leader of the head stool, may each share the title to aportion of the total area. The sub-area of a sub-stool may be further divided,with different families, parts of the sub-stool community, sharing in theexercise of rights over various portions of that sub-area. Superimposed uponthe allodial title there may be a second customary-law interest, a customarylaw freehold (also called usufruct and determinable title). This interest isacquired as of right by an individual who or a community which is part of acommunity holding the allodial title, by occupying and developing land. Thecustomary law freehold may also be expressly granted by the allodial title-holders to a non-member individual or community, in which case paymentmay be required. The rights constituting the customary law freehold havebeen extended, as a result of the increasingly intensive and exclusive uses ofland, and today the creation of this interest may extinguish the allodial titlein the land for practical purposes, although it is disputed whether this occursin strict legal principle. The holder of either title may grant a licence ortenancy in the land, these being the third type of customary-law interest.The terms of such interests are set by contract, rules of customary law, or acombination of both. By the 1960s all these interests, except the most minorlicences and tenancies, had become transferable by either a customary grantinvolving a publicly witnessed dealing, or the holder's acquiescence in actsadverse to his or her title. Most of the interests could be customarily pledgedto secure loans until the statutory abolition of this transaction..The Supreme Court Ordinance, 1876, also introduced the common lawas an element of the legal system.7 In land law the effect was to enable anyholder of a customary-law interest to exercise his or her rights of transfer byengaging in a common-law transaction whereby they transferred either theirentire interest or an interest of lesser scope consisting of rights defined by

CfA. K. P. Kludze, "The ownerless lands of Ghana" (1974) 11 U.G.LJ. 123.6Ollennu, op. cit., pp. 101-102.' On the constituent elements of the common law for this purpose, see A. Allott, New Essaysin African Law (1970), Chap. 2.

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Vol. 31, Nos. I & 2 Land Title Registrationwithout Prejudice 121common law. In the exercise of this power holders of the allodial title orcustomary law freehold have frequently made common-law grants purportingto convey estates of freehold. It has been debated whether the effect is toconvey the transferor's entire customary-law title, or to pass a customarylaw freehold (even where the transferor holds the allodial title), or to createa common-law estate of freehold. In practice there is little difference betweenthese outcomes. Many other common-law grants have been leases, and therehas been no doubt that these create common-law leasehold interests, subjectto any limitations on the lessor's title. Common-law mortgages also havebeen frequently created. Other common-law interests such as easements andlicences may be created, but rarely have been. Creations and transfers ofcommon-law interests have often been by document, but oral conveyancescan be effective, for example by the equitable doctrine of part performance.This legally pluralist scheme has always been subject to the overridingauthority of the legislature. Since the inception of the colony there have beencompulsory acquisition statutes, which have empowered the state to acquirean absolute title in land, extinguishing all other rights and so severing thetitle from its customary-law root. Subsequently to an acquisition the statehas sometimes transferred the land, but always this has been done by acommon-law conveyance for a common-law interest. The only other statutoryintervention needing mention here was that affecting land in the North (nowthe Upper West, Upper East and Northern Regions). The colonial regimeexercised detailed control over the granting of land in this area, principallythrough the Land and Native Rights Ordinance (Cap. 147, 1951 Rev.). Thatlegislation was repealed in 1960, but in 1963 all land in the area was vestedformally in the state.8 It was revested in the traditional holders by theConstitution, 1979, art. 183.'

CRITICISMS OF THE SCHEME; PREVIOUS MEASURES OF AMELIORATION

A system of registration is designed to provide a permanent and reliablerecord of facts about which there might otherwise be uncertainty. Thesummary just given shows that there were various possibilities of uncertaintyabout the facts of rights in land. All rights were derived from allodial titlesacquired in the distant past as a result of events not recorded in writing.The customary law freehold usually depended on the fact of occupation ofthe land, often long ago, by the person through whom the present holderclaimed. All customary-law and some common-law transfers were by oraltransactions which might be difficult to prove after a lapse of time. Thetransferors of interests were frequently communities, and an outsider mightnot be able to ascertain whether the participants in a transaction were legallyempowered to act on behalf of the group. Common-law titles, even whendocumentary, were subject to the same uncertainties as elsewhere in thecommon-law world where title was proved by a chain of documentarytransactions from a "good root" of title.'0

Before 1986 the land law had been amended in a number of respects toE.I. 87 and 103, 1963.On the pre-1979 governmental system of land control in the North, see L. K. Agbosu,"Land administration in northern Ghana", (1980) 12 R.G.L. 104." See e.g. S. Rowton Simpson, Land Law andRegistration (1976) (hereafter Simpson), Chap.


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Land Title Registrationwithout Prejudicereduce the effect of some of these sources of uncertainty." The establishmentof a system of courts of record, reinforced by the doctrines of estoppel byjudicial decision, itself enabled particular uncertainties to be definitivelyremoved, often at great expense. The introduction of the common-lawdoctrine of estoppel by acquiescence to modify customary-law rights some-times had the effect of vesting title on the basis of acts done publicly on theland, in place of a title claimed through more doubtful events. The line ofstatutes culminating in the present Stool Lands Boundaries SettlementDecree, 1973 (N.R.C.D. 172) has provided a process for the conclusive,judicial determination of the boundaries of communally held allodial titles."'A number of systems of registration have operated. The requirement ofstate consent to grants in the north resulted in a certain number of recordsof transactions. When land in the north was vested in the state, a systemof registration which approached title registration was administrativelydeveloped. 3 A similar system could have developed in the south also. Since1951 governmental consent and concurrence have been required for certaintransfers.' The scope of the categories affected by various provisions hasoften been unclear, but it seems that grants by allodial-title holdingcommunities to non-members have always been affected. The provisionsappear to have been ignored in many cases, and no methodical record wasdeveloped. The Registration Ordinance, 1883 (No. 12 of 1883), re-enactedin the Land Registry Ordinance, 1895 (Cap. 133, 1951 Rev.), was in forceuntil 1962) It provided for the registration of all "instruments affectingland". Registration gave an instrument priority over instruments registeredsubsequently, except that priority could not be obtained over an interest ofwhich there was notice. Grantees had little incentive to register theirdocuments if they went into possession, since possession gave constructivenotice to subsequent purchasers. The ordinance was replaced by the LandRegistry Act, 1962 (Act 122). This introduced some compulsion to registerby providing that instruments were to be "of no effect until ...egistered".' 6The Act furthermore empowered the registrar to refuse to register aninstrument which appeared on certain grounds to be legally defective, butthis provision was never brought fully into force. Finally, the ConveyancingDecree, 1973 (N.R.C.D. 175), ss. 4-11, provided for the institution ofcompulsory written records of all customary-law transfers, and for theirregistration in registers designated for the purpose. These were neverimplemented, and have been repealed by the Law, s. 138.'"

"The following discussion considers only the more important developments. For animportant, but relatively early discussion of such developments, see Bentsi-Enchill, op. cit.,pp. 310-343. For discussion of another two statutes, see (1969) 6 U.G.LJ. 146 (G.W.). Alsosignificant is the Limitation Decree, 1972 (N.eC.D. 54), discussed (1972) 4 R.G.L. 150 (S.K.D-B.), inwhich section 30(3) applies the statute to matters regulated by customary law.This legislation is noted at (1973) 5 R.G.L. 239 (G.W.). The Commissioner appointedunder the decree continues to function today." (1980) 12 R.G.L. 166 (L.K.A.).14 he principal statutes prior to 1969 are referred to in G. Woodman, "The allodial title toland" (1968) 5 U.G.LJ. 79, at pp. 93-94. Subsequent enactments have repeated those provisions

with various changes which are not important ror the present purpose." For a fuller account, see G. Woodman, "The registration of instruments affecting land"(1975) 7 R.G.L. 46. On the case-law interpriting and developing the Land Registry Act, 1962,see the next note."6ection 24. On the effect of this development, see: (1972) 4 R.G.L. 231 (G.W.); G.Woodman, "The Land Registry Act bites (somewhat)" (1979) 11 R.G.L. 31 ." They were discussed [1973] J.A.L. 300 (G.W.); further observations on them appear at(1980) 12 R.G.L. 166 (L.K.A.) at pp. 170-172 and editorial note at p. 175.

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Vol. 31, Nos. 1 & 2 Land Title Registration without Prejudice 123These measures were not considered to have remedied the problem ofuncertainty. There was a series of calls for title registration beginning withthe Havers Commission Report of 1945,8 and moves towards the enactmentof a statute from the presentation of recommendations of the Law ReformCommission in 1973.19 Proposals spoke of the effects of uncertainty of landtitles, particularly in making it difficult for intending farmers to gain accessto land without undue risk, and of the desirability of simplifying landtransactions. However, simultaneously other criticisms of the land law wereadvanced, often by the same critics. Thus the Law Reform Commissionproposed not only title registration but also reform of the law of inheritance,and of land tenure.2" However, discussion of these other possible reformswas seen as distinct from the question of title registration.In noting the debates out of which the Law emerged, it is necessary tomention also the advice which was reiterated quite frequently by a succession

of British advisers connected to the British Ministry ofOverseas Developmentand its predecessor and successor departments. Although not fully or publiclydocumented, this advice seems to be accurately reflected in Simpson's LandLaw and Registration (1976). That book was in effect commissioned by theODM, and its composition guided by a group of specialists, most of whomhad been members of the colonial service, and several of whom were at timesadvisers to the Ghana government and institutions such as the Land TenureResearch Centre at the University of Science and Technology, Kumasi.2 Itwill be argued below that Simpson does not always distinguish between thearguments for title registration and for other reforms. It will be argued thatthe Law aims at the former and not at all at the latter.The Memorandum to the Law refers to a number of "problems" in theland tenure system which the Law is intended to solve. It states that thereis uncertainty about interests in land, those who hold them, and the extentof the areas held, arising from the absence of documentary evidence of title,and ofaccurate maps and plans showing boundaries, and that the uncertaintygives rise to "wasteful and unprofitable litigation", and insecurity generally." Reports on Expenses Incurred by Litigants in the Courts of the Gold Coast and Indebtedness CausedThereby." Report of the Law Reform Commission on Proposalsfor the Reform of the Land Law. On thedevelopments see generally: G. Benneh, "Keynote address", in : S. B. Amissah (ed.), Papers

submitted at the Seminar on Land Resource Management and Land Use Policy (1980) (Kumasi: LandAdministration Centre, University of Science and Technology), xviii; A. K. Mensah-Brown,"Appendix B. The proposals for implementing title registration in Ghana", ibid., p. 286. Inthe early 1970s an important role in the movement was played by Dr. S. K. B. Asante (DeputyMinister ofJustice, and author of the book referred to above n. 4), and by the staff of the LandAdministration Research Centre.I Law Reform Commission, n. 19. The Commission's proposals on inheritance eventuallyproduced the Intestate Succession Law, 1985 (P.N.D.C.L. 111), discussed G. R. Woodman,"Ghana reforms the law of intestate succession" [1985] J.A.L. 118, but not as yet reform ofthe other areas examined.21Simpson, pp. xviii-xix. Simpson himself was Land Tenure Adviser to the Ministry ofOverseas Development. He was succeeded in that post byJ. C. D. Lawrance, who put the casefor land title registration in Ghana in terms closely similar to those in Simpson, in "Registration

of title", in: S. B. Amissah (ed.), op. cit., p. 2, especially at pp. 4-10. (That paper displays theconfidence of the author in his capacity to prescribe the appropriate system for Ghana, but isnot in all respects well-informed about Ghana land law: see e.g. p. 16, where the author seemsunaware that pledges had been abolished.) Another nember of the steering committee wasH. W. West, quoted by both Simpson (at 9.7.1) and Lawrance (op. cit. at p. 8) in a passagereferring to Ghana. Allott was a member of the steering committee, but there is evidence, someof which is mentioned below (notes 30 and 36) that he cannot be held to have approved of allthe policies proposed in the book.


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124 Land Title Registrationwithout Prejudice [1988] J.A.L.Furthermore, there are no "prescribed forms" for transfers, which thereforecannot be made safely, simply, cheaply or free from the possibility of fraud.22It is mentioned also that share-cropping tenancies "are often unfair andinequitable." 23 However, it seems to be asserted that this problem will beresolved by title registration "protect[ing] these tenants by giving themreasonable security . . ." Thus their problem is regarded as lack of securityof tenure, not the onerous nature of sharecropping terms.

REGISTRATION OF INTERESTS WITHOUT REFORM OF THE SCHEME OF TENUREThe Law thus seeks to remove the uncertainty referred to above byproviding for a register on which will appear every particular instance within

the existing scheme of interests. The method of the statute is to use theconceptual categories hitherto employed to describe and comprehend theactual holding of land-use rights, to provide an ordering of the register. Thecore of the Law is a list of categories of "registrable interests" held by"proprietors of land". It is provided:

"19. (1) A person shall be registered as proprietor of land if in relation tothat land-(a ) he is the allodial owner, that is to say, he holds it under customary lawin such manner that he is under no restrictions on his rights of user orobligations in consequence ofhis holding other than any such restrictionsor obligations imposed by the law of Ghana generally; or(b) he holds a customary law freehold therein, that is to say, he holds rightsof user subject only to such restrictions or obligations as may be imposedupon a subject of a stool or a member of a family who has takenpossession of land of which the stool or family is the allodial ownereither without consideration or on payment of a nominal considerationin the exercise of a right under customary law to the free use of thatland; or(c) he holds the land fo r an estate of freehold vested in possession or anestate or interest less than freehold according to the rules of the commonlaw; or(d ) he holds a leasehold interest, that is to say, he holds an interest undera lease for a term of years of which more than tw o years are unexpired;(e) he holds a lesser interest in land, that is to say, he holds an interest inland by virtue of any right under contractual or share cropping or othercustomary tenancy arrangement..."

Registration of encumbrances, such as mortgages and casements, is providedfor elsewhere; that is not presently our concern. S. 19(1) provides for theregistration of all the basic interests in land (i.e., all but encumbrances),except for those of short duration which are excluded by s. 19(4) whichprevents the registration of "an interest [which] will according to its termsexpire without notice of termination within less than two years". Equitableinterests under trusts are also not generally registrable (s. 108). In section19, as throughout the Law, the term "land" includes interests in land,2although the expression "land or interest in land" is frequently used exabundante cautelae.It may be envisaged that on first registration a community such as a head

This is a summary of what appear to be the principal points advanced in passages atpp. i-ii,v-vi.2' pp.v-vi.V Section 139, adopting the definition in the Interpretation Act, 1960 (C.A.4).


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Vol. 31, Nos. 1 & 2 Land Title Registrationwithout Prejudice 125stool will be registered as proprietor of an allodial title for a large area; thatits various sub-stools or other sub-communities will be registered concurrentlyas proprietors of allodial titles for smaller areas usually comprised withinthe larger area, and so on with yet further inferior communities in caseswhere there are more than tw o tiers to the hierarchy; and that individualsholding customary law freeholds or estates of freehold in yet smaller parcels(such as individual farms and houses) will be concurrently registered asproprietors of those interests. There may at the same time be proprietorsholding yet other interests in categories (d ) or (e) to be registered. Transfersby registered proprietors of their interests, and the creation by them of lesserinterests, is to be by the forms prescribed under the Law, followed byregistration of the new holding of rights.25The Law is designed to achieve the objective of certainty throughregistration without any changes in substantive rights. This character of theLaw may be revealed more clearly if it is compared with features of thesystem of land title registration which has been advocated by some specialists,particularly as exemplified in the pages of Simpson. The advocacy, it issuggested, contains an equivocation as to whether land title registration asrecommended entails land tenure reform. The issue is especially markedwhere the discussion concerns land held by customary tenures.Thus Simpson on the one hand asserts that land registration does notendanger any existing rights, nor require a commitment to changing them.He endorses the views that registration of title should accord with the "mirrorprinciple" according to which the register simply reflects the facts (2.6.12),and that "registration of title is a system of record and not a new substantiveland law" (9.4.3). He asserts that "it is a cardinal principle of adjudication[as a preliminary to registration] that it does not, by itself, alter existingrights or create new ones" (11.6.3: and see also 12.5.4). Similarly he castigates"the widespread misconception that registration of title inevitably connotesthe individualization of ownership" (12.6.4).However, on the other hand he states that "the straightforward recognitionof existing rights may not by itself be enough, if registration of title is tohave the beneficial effect which is claimed for it and which alone can justifythe cost of introduction" (11.1.5). Of pluralist land tenure systems he assertsthat "title registration is ... a process which is particularly needed in thosecountries where it is necessary to unify the law applying to titles granted byGovernment in the days ofcolonial rule and those titles which have developedunder customary law (or in spite of it)", a statement which may be revealinglyjuxtaposed to the statement that title registration in England under the LandRegistration Act 1925 required a "vast simplification in land law" (3.1.7-and see also 5.6.1), despite the fact that the English system was not pluralist.For customary systems of land tenure he repeatedly associates registrationwith reform. Although adjudication does not alter existing rights, "it will, ofcourse, be necessary to replace customary rights by what is considered to betheir equivalent [sic] under written law" (11.6.3). "Where adjudicationmerely recognises individualisation which appears to be virtually complete,registration finally extinguishes the customary character of all rights in landand to that extent 'converts' customary to statutory tenure, even though thechange in the incidents of the tenure itself has already occurred" (12.5.4).While he accepts that it may sometimes be .necessary to register an area as

' The Law, Part VI, "Dispositions"; Regulations, Part III, "Dealings with RegisteredLand", and First Schedule, Forms 30-43.


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Land Title Registration without Prejudice"customary land", he considers that this will be exceptional, and impliesthat, in so far as custom continues to control the use of such land, thearrangement will be unsatisfactory and temporary (12.6.9-11). Registration"must hasten" the demise of the principle of community members' automaticaccess to communal land (although it "might... be argued that this effectof registration should be classified as an advantage rather than a disadvantageor danger") (12.7.4), and of community influence or control of dispositions(which however again is "not always a disadvantage") (12.7.5).Within the scope of the general issue as to whether land title registrationentails land reform, there are several separate questions. As the quotationsmay show, Simpson in presenting his proposed scheme of registration,expresses or implies a number of distinct arguments as to the necessary ordesirable features of a land title registration statute. It may help to revealthe distinctive character of the Ghana Law if we consider how far itsprovisions incorporate these features. The following discussion will considersix principles which seem to be inherent in Simpson's scheme. They concernthe statutory specification of registrable interests (principles 1-3), thestatutory provision for transfers of registrable interests (4 and 5), and thedesirability of "modernising" land tenure (6).(1) In the type of scheme proposed by Simpson, for each parcel one andonly one "ownership", which may be held by one individual, one corporategroup, or more than one co-owner, is to be registered.26 Allott pointed outlong ago in the pages of thisJournal the difficulty of locating such ownershipin a land tenure system of the type existing in Ghana, in which a hierarchyof interests existed, for all of which a claim to constitute "ownership" couldbe advanced. He argued for a statutory definition of "absolute ownership",while Simpson replied that the meaning was already known to everyone,and that when there were several claimants an arbitrary choice might beessential.27 They seem to have agreed that one "owner" must always beidentified, all other interests then being fated to be registered as encumbrancesthereon. Had that been done in Ghana, the Law would have specified thatthe registered "owner" was to be one of the several communities which hadhitherto shared the allodial title rights, or was to be the holder of thecustomary law freehold (whenever such existed for the parcel in question),or was to be the holder of the estate of freehold (when that existed). Allother interest-holders would have been registered as having subordinate orderivative rights. This upheaval in land rights is avoided by the provision ofsection 19(l). The conceptual scheme of the Law is not based upon thenotion of an "owner" of each parcel, but rather contemplates an unlimitednumber of instances of ownership (or proprietorship) in interests in eachparcel.(2) In the type of scheme proposed, there would be detailed definitions ofall registrable interests other than "ownership"." This seems to be considerednecessary to avoid uncertainty as to the nature and extent of each holder'srights. While it is thought that the legislator may sometimes be able toavoid producing change in substantive rights by describing correctly and

I This is clearly implied throughout, and seems to be thought so unquestionable as not toneed express explanation. See e.g.: 1.4.4; 11.1.2; 17.2.6. The term "multiple ownership" is usedto refer to what lawyers usually call co-ownership: 13.2.7.27A. N. Allott, "Towards a definition of 'absolute ownership"' [1961] J.A.L. 99; S. R.Simpson, "Towards a definition of 'absolute ownership': II [19611 J.A.L. 145; "Dr. Allottreplies ... " [19611 J.A.L. 148.2S Simpson, n. 27, at p. 148; Lawranee, n. 21 at p. 15.

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Vol. 31, Nos. 1 & 2 Land Title Registration without Prejudice 127exhaustively all the existing interests, it is considered that this will not alwaysbe possible, especially for customary-law interests. If the law is uncertain(for example, as to the extent ofresidual communal rights when "individualiz-ation ... appears to be virtually complete"), the registration statuteintroduces a certain rule. This differs from the rule which would otherwisehave emerged, at least by appearing at an earlier date, and possibly inhaving a different content. Moreover, the enactment precludes subsequentdevelopments in new directions which might have occurred.In considering this principle, and the argument supporting it, it will helpto distinguish two types of uncertainty. In the absence of title registration asystem of land tenure may contain uncertainties as to various particularfacts, primarily the identities of interest-holders, the types of interests theyhold, and the boundaries of parcels. Apart from those uncertainties, a systemof land law, and particularly, it is alleged, a system of customary land law,may contain uncertainties as to various general laws, such as those whichstipulate the rights exercisable by the holder of a certain interest in landwhenever it exists. (The distinction between fact and law drawn here, whilenot helpful for other purposes, may serve the purpose of designating anapproximate and fairly obvious distinction between different categories ofuncertainty.) Uncertainties as to facts are sought to be removed by titleregistration;uncertainties in the laws by codification. Codification of customarylaw is quite likely to change its substance. While a larger or smaller amountof codification may be included in a statute of which the primary object istitle registration, the Ghana legislature has apparently rejected that course.The "definitions" of registrable interests in section 19(l) are designed merelyto indicate the categories into which particular existing interests fall.2" Thedetailed substance of any such interest will continue to be governed by thegeneral law outside the statute. That substance will therefore not be changedby the event of registration of the interest, nor will the law be preventedfrom developing thereafter, except in so far as entirely new interests, outsidethe scope of any of those listed and loosely defined, will be precluded fromarising. It is likely that some claims to be registered will appear to raiseissues on which the law is uncertain. For example, a community may claimto be registered as proprietor of the allodial title to land, while an individualclaims to be registered as proprietor of a customary law freehold in the sameland. This is a Ghanaian instance similar to Simpson's "virtually completeindividualisation". It may be uncertain whether under the applicablecustomary law the community's allodial title confers any exercisable rightswhatever in this land. Nevertheless, it will be possible for both claimants tobe registered as proprietors of their respective interests without prejudice tothe question of what rights they may exercise. In any dispute whichsubsequently arises, their rights will then be adjudicated upon by the samemechanisms as hitherto."(3) The scheme advocated is said to "replace customary rights by what

z' The phrases used were recommended by the Law Reform Commission in its 1973 report:above note 19. They had been originally devised and proposed by K. Bentsi-Enchill: see his"The traditional legal systems of Africa", in: InternationalEnq'clopaedia of ComparativeLaw, Vol.VI, Chap. 2, p. 68 (1975, but written some years previously), at pp. 74 and 90-91."This was the recommendation made by S. Asante-Ansong, "'Title registration in Ghana"(1981-83) 13 & 14 R.G.L.51, pp. 52-53; see also p. 68. On this issue see also A. Allott, TheLimits of La w (1980), pp. 163, 183-184, arguing that land title registration laws are sometimesclaimed to have the contradictory merits of confirming existing titles undisturbed, and effectingland reform.


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Land Title Registration without Prejudiceis considered to be their equivalent under written law". This suggests thatthere is a principle of the scheme that the rights constituting any registrableinterest are changed by the statutory definition of that interest. Even if thedefinition is an accurate reflection of the previous law, there is a change inthe authoritative source of land rights, and, according to this view, this is a"replacement". This argument might be met by repeating the point justmade, that such a statute need not, as the Ghana Law shows, includedefinitions of interests. Thus, when section 19 of the Ghana Law designatesthe interests, it incorporates the existing law by reference in such phrases as"under customary law" and "according to the rules generally known as therules of common law". However, it is possible to go further, and to contendthat a change in the source of authority for such a rule of state law need nothave any significant effect. In the history of'the law of Ghana, changes inthe authoritative sources of what is called "customary law", and the effectsof these changes on substantive rights, have been complex developments."Here it is sufficient to note that in the arena of state activity "customarylaw" has become that which the state courts hold to be such. A legislativeendorsement of the continuance of existing practice may in a purely formalsense replace its authoritative base, but need effect no other changewhatever.2(4) The type of scheme proposed is said to effect changes in substantivelaw by instituting a new system of conveyancing. Thus customary-law oralgrants, as well as common-law deeds of conveyance, must be replaced bythe procedure for entering a new name on the register. This view may beassessed by noting the various possibilities open to the designer of a titleregistration statute. To institute a procedure for the registration of interestsheld at a certain date, and to make no provision for alteration of the registerwhen interests subsequently pass to other persons, would be possible butabsurd. Normally the only practicable procedures to ensure that subsequenttransfers and creations of interests are entered, are those whereby the partiesto such transactions themselves initiate the process. Since such action by aprivate person carries a cost, some incentive or compulsion is necessary.Ghanaian legislation before 1986 provided two useful examples of proceduresdesigned to ensure that registration of some event occurred. The CustomaryMarriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112) made ita criminal offence to fail to register the designated event, which neverthelessretained its full legal effect even if unregistered. The provisions of theConveyancing Decree, 1973, mentioned above, used the sanction of nullity,by adding to the existing requirements of a valid customary-law conveyancethe further requirement of recording in writing and registration. These showthat the replacement of existing modes of transfer by an entirely new modeis not always thought necessary to ensure that the register is kept up to date.The Law seems to replace some prior types of conveyances, but not others.31 hey are examined: G. R. Woodman, "Customary law, state courts and the notion ofinstitutionalization of norms in Ghana and Nigeria", in: A. Allott and G. R. Woodman (eds),

People's Law andState Law: the Bellagio Papers (1984); G. R. Woodman, "How state courts createcustomary law in Ghana and Nigeria", in: B. W. Morse and G. R. Woodman (eds), IndigenousLaw and the State (1988).32A quite different possibility is that the introduction of title registration may change theextent and nature of state intervention in social interaction. Just as the functioning of statecourts has produced changes in social norms, so it is possible that the functioning of the landtitle registry will be an element in further state penetration of social institutions. This is anissue in need of research. It is not raised by Simpson.

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Vol. 31, Nos. 1 & 2 Land Title Registration without Prejudice 129It provides that: all dispositions33 are to be by instruments in prescribedforms (s. 92(1)), and any not in accordance with the Law are to be"ineffectual to create, extinguish, transfer, vary or affect any right or interestin land" (s. 58(1)); "a proprietor may, by an instrument in the prescribedform, transfer his land or interest in land to any person.. ." (s. 79(1)); andleases and mortgages are to be created by instruments in the prescribedforms (ss. 65(l) and 72(1)). The Regulations have set out the forms forinstruments of transfer (First Schedule). A person may be ordered by theLand Registrar to register an instrument which he has "wilfully failed" toregister, under criminal sanction (s. 61). There is some difficulty in determin-ing the total effect on the land law of these provisions. However, it wouldseem that, for the transfer of registered interests in the categories specifiedin section 19, all existing procedures have been replaced by the statutoryforms. On the other hand, for the creation of customary-law interests such asthe customary-law freehold and customary tenancies, the customary-lawrequisites do not seem to have been abolished, although such an interest willnot become generally enforceable until the holder either registers it or makesit an overriding interest by taking "actual occupation"." Thus the GhanaLaw has not entirely replaced the customary law of conveyancing.One further clarification is required here. The law determining thesubstantive rights of holders of interests is distinct from and independent ofthe law providing the procedures to be followed for transferring such rights.Therefore, total abolition of the existing law of conveyancing, even if itoccurred, would not of itself change any rights within the customary landtenure system. It would not be "land reform" in any significant sense.(5) It is implied that the proposed scheme entails the institution orcompletion of a land market, by making every registrable interest freelytransferable. This would not change the essential nature of existing common-law interests, because that legal system has long contained a basic principleof free alienability of property rights. However, in African systems of

" "Disposition" is defined as "any act inter vivos by a proprietor of land or of an interest inland whereby his rights in or over the land, are affected ..."" These conclusions are drawn from the following argument. The "ineffectualness" provisiondoes not appear to apply to the creation of new interests other than leases and mortgages: a"transfer" is defined as "the passing of land or an interest in land .. ." (s. 139), whicl implies

that it includes only dispositions of existing interests, not the creation of new interests, and theform provided in the Regulations for the "transfer of land" (Form 30) seems to be designed onthat basis. Moreover, section 83(1) provides that "a grant or reservation of an easement shallbe ineffectual unless it is registered .. .",mplying that that particular right, at least, is to becreated by a mode not provided in or under the Law. Admittedly the definition of "disposition"(previous note) is wide, but it will need to be applied in the light of the fact that as yet nostatutory forms have been provided for dispositions which are not transfers. Hence, for thosedispositions the previous law remains in force (except that the Land Registry Law, 1962, willno longer apply). Nevertheless, it is also provided that the rights of a registered proprietor ofland shall be free of all other interests and claims other than those shown in the register, orwhich are overriding (ss. 43 , 46). The only type of overriding interest likely to arise in the casesno w under consideration are those designated in section 46(l), para. (f) (see text below).It should be mentioned that there are further difficulties in reconciling aspects of theRegulations with the land law. For example, they seem to assume that: ordinary interests inland carrying rights to minerals may be held by private persons (Regulations 58 and 78, andForms 31-34), whereas all minerals in Ghana were vested in the state by the Minerals Act,1962 (Act 126); a mortgagee may have a power of sale (Form 30), whereas this is precluded bythe Mortgages Decree, 1972 (N.R.C.D. 96); and that a deposit of a certificate of title to securea loan may affect the despositor's interest in the land (Regulations 81 and 82, and Form 50),whereas the Mortgages Decree, 1972, sections I nd 2, excludes this also. (On the MortgagesDecree, 1972, see A. K. P. Kludze, "The modern Ghanaian law of mortgages" (1974) 11U.G.LJ. 1).


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Land Title Registration without Prejudicecustomary law it is not uncommon for there to be limits on the transferabilityof interests. Thus interests held by families may be inalienable, or certaininterests may be transferable only to a member of the community whichoriginates from the locality where the land is situated. In such circumstancesthe introduction of unlimited alienability would effect a significant changein substantive rights, and so in the character of the land tenure system.However, it seems clear that this feature is not a necessary element of titleregistration, even if statutory procedures for conveying registered interestsreplace any procedures which existed previously. It is possible to providemerely that such powers of transfer as interest-holders have under theexisting rules of law are to be exercisable only by following the newprocedures. In the Ghanaian case this issue did not arise for any wide classof cases, because by the date of the enactment customary-law interestsgenerally had become alienable without restriction. There was still somedebate as to whether the allodial title could be transferred to an individualperson, and it was possible that some tenancies were not alienable. Thesepossibilities are unaffected by the Law, which provides that nothing thereinis to permit "any land transaction which is forbidden by express provisionsof any other law" (s. 136(2)).(6) The proposed type ofscheme is associated with a policy of"modernisa-tion" of land law, especially in developing countries. Some aspects of thispolicy are sufficiently evidenced in quotations from Simpson given above.Simpson also asserts that title registration is relevant and required only in"a free-enterprise economy", which, he claims, "is the sort of economy thatgoes back to the dawn of civilization when man first began to grow his ownfood and wanted 'security of tenure' in the land he had cleared" (1.5.6).More specifically, "if good development is to be assured it must be possiblefor rights in land to be adjusted or transferred cheaply, quickly and withcertainty, and, according to the economists, freedom and ease of transfer areabsolutely vital to promoting the best use of land" (1.6.1). And "Englishhistory supports the economic theory ... In some developing countries asense of tribal exclusiveness in land ownership not only restricts freedom oftransfer but tends to confine tribes to their particular tribal areas. Withgreater freedom of transfer, pressure on the land could be relieved in someareas, uncultivated land in other areas could be brought into production bythose best capable of farming it, and national integration would be promoted"(1.6.2). In a chapter on "customary land tenure and control of dealing" hecontrasts the "sensible English approach" towards custom (which has been,he has stated, to suppress all customs which could not be shown to haveexisted since 1189) with "the attitude of some developing countries where,unhappily, there seems to be no fear" of the variability and flexibility ofcustomary law evidenced in the writing of Allott (12.1.5). However, it is"inevitable", and "the normal process of evolution" that customary law willbe replaced by case law or statute (12.1.6, 12.2.1), and "the whole tendencyin modern times is towards codification" (12.2.5), which will provide "theuniform national law we advocate" (12.2.6). The "constant process ofevolution" in customary tenure also is towards individualisation of landrights (12.4.1), but it is questionable whether customary land tenure canevolve swiftly enough, so that "it may prove necessary to replace" it (12.5.1).Land policy cannot be discussed in detail here, although it may beremarked that the views quoted would be regarded by some as manifestingan ethnocentric approach supposing a universal process ofunilineal evolution,buttressed by a simplistic faith in the "free-enterprise economy", and

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Vol. 31, Nos. I & 2 Land Title Registrationwithout Prejudice 131evidencing little familiarity with the immensely complex and varied socio-economic contexts of land tenure in developing states.3 - For the presentpurpose it is enough to observe that some of the principles discussed abovemay be based on this policy, and that as it has been argued that they arenot necessary concomitants of land title registration so it may be contendedthat the introduction of title registration does not imply a commitment tothe policy. One particular aspect of the policy, that of "individualization" ofland titles, may be mentioned. Simpson expressly notes that this is notessential to title registration, in words quoted earlier, and citing theexample of the Lagos Registered Land Act, 1965, enacted on Simpson'srecommendation (12.6.6-7).6 The Ghana Law here again excludes thebusiness of reform from the institution of a title register. It provides thatstools, skins and families are to be registered as the proprietors of interestsvested in them, and that the rules on participation of group members indecision-making are to be unaffected (ss. 93(2) and 110).

THE PROCEDURES OF THE LA WIt is not possible to give a detailed commentary on the entire Law, but anattempt will be made to sketch its remaining provisions in bare outline.After declaration of a registration district (under s. 5) the Chief Registrarmay require boundaries therein to be demarcated, surveyed or both (s. 6).It is possible that this will be done for all parcels in which rights are

eventually registered (s. 26). First registration of interests is initiated in tw oways. First, the Land Registrar for the district receives and examinesapplications for first registration of proprietorships of interests listed insection 19, presented in response to the Chief Registrar's public call forclaims, and may himself enter claims on behalf of persons who have notapplied (s. 23). After examination of a claim, he registers the claimant asproprietor with absolute title if he is satisfied that the claimant has a goodtitle, or with provisional title, if he is satisfied only that the claimant has aright to possession or occupation (s. 23). Secondly, the Land Registrar isrequired of his own motion to examine the register compiled under the LandRegistry Act, 1962, and to register instances of proprietorship of interestswhich are supported by that register (s. 13). The state is to be registered as

Cf the history of Simpson's Report on Land Problems in PapuaNew Guinea (1969). Draftlegislation based on the proposals in that report was withdrawn in 1971 as a result of criticismof their underlying policy: the criticism is set out in A. D. Ward, "Agrarian revolution: handlewith care" (1972) 6 New Guinea 25. Subsequently the Report of the Commission of Inquiry into LandMatters (1973), based on an intensive inquiry by a Commission composed entirely of PapuaNew Guineans, emphatically rejected the proposals. For the episode prior to the completion ofthat inquiry, see '. Bredmeyer, "The registration of customary land in Papua New Guinea"(1975) 3 Melanesian LawJournal267. Cf. Simpson, 11.8.17.' Simpson, 12.5.7, n, criticises Allott for failing to discuss the Act in New Essays in AfricanLaw (1970), whereas he discusses "fee simples in West Africa", which "have always been...otiose". Presumably the Act was not discussed because it had not been brought into effect, andfees simple were discussed because the rights of many parties had turned on judicial decisionsas to the fee simple. Simpson, ibid., refers also to the omission by Allott to mention the Kenyaand Sudan statutes. The Kenya scheme was discussed subsequently by Allott in The Limits ofLaw (1980), 209-214 (and see also pp. 37, 164, 197-198), where he referred to evidence thatthere was "massive disobedience of or non-compliance with" the scheme. Evidence on theoperation in practice of the Sudan statute is scarce, but some shows that much land user occursoutside the ambit and in disregard of the statute: A. EI-M. Abbashar, "The State andTraditional Holders of Land in the Sudan", Ph.D. thesis, University of Birmingham, 1982.


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Land Title Registration without Prejudiceproprietor of any land not held by another proprietor (s. 19(2)), and asproprietor on trust for the eventual proprietor if there appears to be another,unidentified proprietor (s. 23(4)). Disputes arising under either mode are tobe referred to an Adjudication Committee, a three-member body appointedby the Secretary (Minister) (ss. 21, 22)." The Committee determines suchcases following rules of evidence and procedure specified in the Law (ss. 22,27-32), its decision being final and binding (s. 33). Claims to registrableinterests other than those listed in section 19 are similarly to be examinedand the interests registered if proven (s. 19(3)).First registration of a parcel is to be effected after the deadlines for noticesand adjudications have passed (s. 14(1)). The Land Registrar is to open afolio for each parcel, entering in it particulars of proprietorships and otherinterests, and a means of identifying the parcel on the registry map (ss. 14(2)and 16; the Regulations, First Schedule, Form 29, provides the form of afolio). Every person registered as proprietor of an interest is to be issuedwith a land certificate (s. 51).Subsequently the register is maintained by adding or substituting entries,and land certificates are amended, replaced or newly issued, primarily inthe following circumstances: when a person subsequently shows that theyare a proprietor of an interest, although not registered (s. 14(3)); when theLand Registrar exercises his power to cancel an obsolete entry (s. 17); whena person acquires rights by prescription or under the Limitation Decree,1972 (s. 18); when a person registered as proprietor with a provisional titlebecomes entitled to be registered with absolute title (s. 45); and when aregistered right is transferred, extinguished or inherited, or a new rightcreated (discussed above, except for transmission on death which is governedby ss. 102-104).and the rights registered are indefeasible (ss. 18(1) and 43). This generalprinciple is subject to certain exceptions. Registration with provisional titledoes not prevent the enforcement of adverse rights held by others before thedate of registration or referred to in the register (s. 44).There is a moregeneral exception for overriding interests, which whether registered or notprevail over registered interests. Those likely to prove significant are: "leasesfor terms of less than tw o years and not capable of extension to terms of tw oyears or more by the exercise of enforceable options for renewal" (a categorywhich protects those lessees whose interests cannot be registered undersection 19(1), para. (d) because of the shortness of their duration); "rights,whether acquired by customary law or otherwise, of every person in actualoccupation of the land save wheic enquiry is made of such person and therights are not disclosed"; and "rights acquired or in the course of acquisitionby prescription or under the Limitation Decree, 1972 . . ." (s. 46(1)). Thereis provision for the rectification of errors in the register caused by mistake orfraud (ss. 121, 122), and for a right of indemnification of persons affected byrectification or by omissions or mistakes which cannot be rectified (ss. 123-125). The methods of surveying and demarcation, and the details ofadministration of the registry cannot be discussed here, but it may bementioned that the register is planned to consist of a card index. 38

" Matters within the jurisdiction of the Stool Lands Boundaries Settlement Commission areto be referred to the Commission (s. 23(6)): and see above, n. 11 and accompanying text.' C. B. Aryee, "Standing instructions for Land Title Registration Officers" (1984). I amobliged to Mr. Aryee for enabling me to consult a copy.

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Vol. 31, Nos. I & 2 Land Title Registration without Prejudice 133EFFECTS OF THE LAW IN PRACTICE

This paper has attempted to show the general character of the schemewhich the Law institutes. An attempt to predict its effects in practice wouldbe a different, and at present largely speculative exercise.39 The paper closeswith a few general observations based upon the provisions of the Law.The operation of the scheme will depend upon the manner in which tw ocategories of players perform their roles: the officials of the Land TitleRegistry, and the holders of registrable interests. The former act within theenvironment of the institutions of the state. The experience of the LandRegistry Act, 1962 (which was never brought fully into effect by theconferment on the Registrar of all the powers provided for), and theregistration provisions of the Conveyancing Decree, 1973 (for the operationof which no facilities were ever provided, with the result that the entirescheme was stultified), shows that the enactment of the statute is not aguarantee that government will provide the administrative impetus andlogistical support needed. Subject to that, the official role-performance willdepend largely on the management of the registry. The records to be compiledwill be very large. In a task of this magnitude it is inevitable that someerrors will occur. If they exceed a small number, the effects of the schemewill be very different from those envisaged by the legislature.The holders ofregistrable interests, the potential applicants fo r registration,will for the most part act within the environment of civil society outsidegovernment. It is always uncertain whether members of that society willfulfil the roles set for them by state legislation. The land title registrationsystem is said to be "compulsory" (Memorandum, p. i), but it is possiblethat, at least in the initial period of implementation, many interest-holderswill lack the knowledge or motivation to apply for the registration of theirinterests. Whether this abstention occurs, whether it continues beyond theinitial period, and whether it does substantial and lasting damage to thecompleteness of the scheme, may depend in part on its legal consequencesfor the holders' rights.When an interest-holder fails to apply fo r registration, the Land Registrarmay learn of the interest, examine it on his own initiative, and register it. Itis unlikely that this will occur in most cases. In others the interest willremain unregistered, and either some other person will successfully claim tobe registered as proprietor of some other interest in the land, or the statewill be registered as proprietor of the land as land "not held by any otherproprietor" (s. 19(2)). It will remain possible fo r the unregistered interest-holder to apply to be registered later. So long as his or her rights remain offthe register, they will be unenforceable against those whose rights have beenregistered, unless they fall into one of the categories of overriding interestsunder section 46. Apart from leases too brief to be eligible fo r registration,the only category likely to exist frequently is that of the rights of a person inactual occupation. The inclusion of this category in section 46 has the resultthat a person who is in actual occupation of land has no immediate incentive

" Important work has been done on the effects of other title registration systems in Africa.See especially S. F. R. Coldham, "The effect of registration of title upon customary land rightsin Kenya" [1978] J.A.L. 91. But other instances studied are too dissimilar to the Ghana schemefor conclusions to be drawn from comparisons.


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Land Title Registrationwithout Prejudiceto apply fo r first registration. The result could be a significant gap in thecompleteness of the register.The register, once begun, is expected to be maintained by the initiativeprimarily of those who acquire interests through subsequent disposals. If adisposal is not registered, then, whether the disposer's title was registered orunregistered, it will be "ineffectual". However, it would seem that normallythe disposer will be bound by contract, estoppel or both, as against thegrantee, to treat it as effective. If a third party challenges the grantee's rights,the latter will be entitled to call upon the disposer to make good his title ifpossible. If the grantee is in actual occupation, then, even though he cannotclaim that the unregistered grant has been effectual to confer an interest onhim, he may be able to claim to be the disposer's agent in the exercise of anoverriding interest. Speculation should perhaps not be taken further, butwhat has been said suggests that there is a real possibility that certainsubstantial categories of registrable interest-holders will not be seriouslydisadvantaged if they fail to register. It should not be concluded that theywill in practice all omit to register, but it may become necessary to considerhow they may be induced to do so.Arguments presented above suggest that the Law is not designed to effectland tenure reform. It may nevertheless be arguable that the Law will inpractice affect the substantive land tenure, even if it has not changed thelegal norms. While the Law was making its slow way towards the statutebook, it was regarded unfavourably by some who hoped fo r the developmentof a more socialistic ordering of agricultural activity. Their analysis of thehistory of land law and tenure led them to fear that the Law was likely tostrengthen a trend towards a capitalistic pattern of land use through thefacilitation of an unrestricted land market. (This very general expression ofthe controversy comprehends a number of distinct and more refinedarguments. I do not develop these here because I have not heard or seenthem expressed in this particular context, and I believe that they can besufficiently answered here in general terms.)This view of the Law's probable effect may have been in part a reactionto the past association of the case for title registration with a favourable viewof the policy of development through "free enterprise", illustrated above. Ithas been suggested already that that was not a necessary association. It maybe suggested further that it is doubtful whether socialism would have beenpromoted by refraining from steps to remove uncertainties as to land titles,which were believed to be causing litigation and creating risks in productiveland use. Title registration may, on the contrary, result in the collection ofinformation and the establishment of administrative institutions which willbe useful in the planning and implementation of reforms designed to controlland use and land transactions, and to prevent private accumulation,landlessness and exploitative contracts. Thus, in enacting the Law theGhanaian legislators have not opted fo r conservatism in the development ofland law. It appears that they did not regard the Law as a suitable vehiclefor substantive reform in any direction, and have thus enacted a measurewhich is without prejudice to policy decisions on such reform.Another possible effect of the Law, also expressed in an objection to itsenactment, is that its administration may absorb human and materialresources which might have been put to other uses. In the past an oft-repeated argument has sought to anticipate this objection by contendingthat ultimately the expenditure necessary to institute and maintain a landtitle register would be less than the cost of the repeated proofs of title and

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Vol. 31, Nos. 1 & 2 Land Title Registrationwithout Prejudice 135disputing which would continue in its absence.' This defence of titleregistration fails to address the principal question of priorities. In Ghana, asin other developing countries, there is at any time a large number of schemescarrying a fair assurance of ultimate positive economic returns, such asprojects in health care, transport and education. It is never possible toimplement more than a painfully limited number. However, it is impossibleto say what other developments would have occurred had the Law not beenenacted. It can only be noted that it is evidence of a decision to give priorityto this particular project. As we have observed, this is likely to have thefurther effects of the collection of information, a reduction in uncertaintyabout particular facts of land tenure, and the development of an institutionof specialists skilled in summarising and recording those facts. These in turnwill facilitate future land tenure development, whatever value-choices aremade, and whatever direction that development takes. But the Law inproviding these opportunities contains no bias for development in anyparticular development, nor does it increase the eligibility of any one route.It has been designed to function without prejudice.

tOE.g. Lawrance, n. 21, pp . 5-6.

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