The Position Of A Family Member Who Builds On A Family Land

Introduction
In this article the author seeks to discuss the legal position of a family member who builds on a family land in which the member has not acquired the customary freehold interest.

The legal position of a family member who builds on family land is complex issue in Ghana, and has been the subject of several legal disputes. Case laws indicate that this issue is governed by various laws and regulations including customary law, statutory law, and equity, and other factors, such as the nature of the land, the relationship between the family members, and the prevailing laws.

Generally, family land in Ghana is considered to be communal property and is owned jointly by all members of the family. According to customary law, family land is held in trust by the head of the family for the benefit of all members of the family. As such, any member of the family has the right to use family land for any purpose as long as they obtain the necessary approval from the head of the family. Therefore, issues can arise when a family member decides to build on this land without obtaining the necessary permission from other family members or without following the legal procedures required by law.

Property built on a family land

The illustrious Ollenu J in his popular book stated that “a building erected by a member of a family is regarded as a private property in his life time, but upon his death the privacy of the ownership dies with him, and the property becomes part and parcel of family property[1]”.

The general rule is that property acquired with family resources, examples include income from existing family property or where family property is sold and proceeds used to acquire other property such property is family property.

In the earlier case of Owoo v Owoo[2] the court observed that such a member acquires a definite life interest which he may deal with during his lifetime as he pleases except to create an interest which can subsist beyond his life.

Also, in the case of Tetteh v Annang[3] the court dealing with the issue of a member of a family who builds on a family land noted that, the land is an ancestral property therefore the member of the family who builds on it with his own money will have only a life interest in it as it is a family property. He cannot dispose of any interest in it which will extend beyond his life and cannot devise it under his will.

In addition to the above, in Sackey V Ansah[4] this principle was reiterated authoritatively where the learned Ollenu said that, a building erected by a member of the family on bare family land, that is family land which has no building on it, is property in which the builder has a definite life interest. The builder may deal with it in any way he likes except to create an interest which subsist after his life. Any interest which he grants in it, unless created with the consent and concurrence of the head of the family and the principal members of the family, determines with his life. The property then becomes a family property not burdened with any incumbrances created by the builder during his life time.

It is also worth mentioning that, a member of a family does not acquire any special rights in or power over building which he erects on family land as an extension to an existing family house or building. Such an extension is from the date of its execution part of the family property under the control of the family. In essence, the member who builds such a building has no power of testamentary disposition over the building he so builds.

However, according to Professor Kludze, a house built by a member of a family on any family land never becomes family property. Such a house becomes solely the individual property of the member with which he can deal in any manner as he pleases[5].

Property built with family assistance or materials

As a general rule, the slightest contribution of labour or materials in building a house by members of the family of the builder gives his relatives a vested joint interest in the house as a family property. This rule received judicial blessings in the case of Mensah v S.C.O. A[6], in this case two brothers acquired a piece of land out of their own resources and title was conveyed to them by a deed of conveyance as joint tenant. In constructing the building on the land, they received assistance from some family members. It was held by Ollenu J (as he then was) that by virtue of the assistance given by some members the property had become a family property in which the two brothers had only a life interest. Therefore, it was held that the house could not be sold or attached in execution to satisfy a personal debt of one of the two brothers who acquired the land.

However, the courts have held in Cudjoe v. Kwatchey[7] that where a member acquires property with a small contribution from the family the property, he acquires does not assume the character of family property.

In addition, in Boafo v Staudt[8] it was held that by custom where one member of a family acquires land for himself with his own money or resources and other members of the family develop it with their money, resources or labour by building on or farming it the property acquires the character of family property. However, Ollenu in his view noted that the assistance in cash or labour which is given to the member of the family by the other family members must be substantial. A similar decision was also given in the case of Araba Tsetsewah v Acquah[9] where the West African Court of Appeal observed that, “it has never, so far as we aware, been suggested before this case that where two or more members of a family combine to acquire property, the property so acquired becomes the private joint property of the two or more and not the family. In our opinion the evidence adduced on behalf of the defendants is not sufficient to rebut the strong presumption in favour of family property which is the rule among Fanti-speaking people”.

It must however be noted that the fact that a family member benefited from financial support of the family towards their education does not make property subsequently acquired by them in the future family property, this was the position of the court in the case of Larbi V Cato^[10].

Where a family property is redeemed by a family member

The position of the law is that where a family property under pledge or mortgage is redeemed by one or more members of the family with money from his or their own pocket, the redeemed property does not become the self-acquired property of the member of members who redeemed it. The redeemed property retains its character of family property. In a similar fashion, where family property is being sold for a family debt and a member of the family purchases it, the property remains family property. This principle received judicial blessings in the case of Bruce v Adjah[11], in this case a family member redeemed a family property by paying the family debt, he contended thereafter that the property has become his private property. The court rejected his contention and held that the redemption was presumed to have been done on behalf of the family and therefore the house remained family house.

Furthermore, in Nwonama v. Asiedu[12] the court held that where family property is lost through sale or other attachment and a member repurchase or redeem the property, it becomes family property unless members of the family were specifically informed at the time of the repurchase or redemption, that the property would not resume its former position as family property.

However, Ollenu and Woodman had this to say “ It is submitted however, that the correct statement of custom is that if a member the family is granted a portion of the general family land i.e. a site which has not been previously granted to another individual member of the family, or a site which another individual member has not previously occupied, the house which he builds on such a site, by his independent effort and his own individual means, becomes his self- acquired property, which he may alienate inter vivos or by testamentary disposition. But the building which an individual member of a family is permitted to erect on family land in use by the family e.g., a site on which a family property of any sort exists, is property in which the individual member who builds has a life interest only; is to be used and treated in every respect as his property except that he cannot create an interest in it which may subsist after his death.” This principle was applied in the case of Amissah-Baidoo v Abaidoo[13] the court held that the nature of the contributions offered by deceased's mother and his sister (i.e., supervising the construction in his absence and rendering him other services such as cooking) did not constitute "substantial contribution" as to even taint the house with family character. However, since the family was in effective occupation of the land on which deceased had built the house, deceased had only a life interest in the house with no alienable interest which he could dispose of by will.

Conclusion
The legal position of a family member who builds on family land without the necessary approval from the head of the family is not clear. Case law indicates that if a family member builds on family land without proper authorization, they may be liable for trespass or breach of trust.

In the case of Nii Tackie Tawiah III v Boafo and Another[14], the Supreme Court of Ghana held that a family member who builds on family land without the necessary approval from the head of the family can be considered a trespasser. The court further held that the head of the family has the power to eject such a person from the land and seek damages for any harm caused to the family.

Also, in Akumah v Ashanti Goldfields Co. Ltd[15], the Supreme Court held that a family member who built on family land without proper authorization can be held liable for breach of trust. The court stated that such an act undermines the trust relationship between the head of the family and the other members of the family, and can result in legal consequences.

All in all, the legal position of a family member who builds on family land in Ghana is a complex issue that is governed by various laws and regulations. Case law indicates that family land is held in trust by the head of the family for the benefit of all members of the family. As such, any member who intends to build on family land should seek proper authorization from the head of the family to avoid legal disputes. Failure to do so can result in liability for trespass or breach of trust.

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[1] Ollenu, Principles of customary land law in Ghana
[2] (1945) 11 WACA 81
[3] (1957) unreported
[4] (1958) 3 WALR 325
[5] Ewe customary law
[6] (1958) WALR 336, Ollenu, Principles of customary land law
[7] (1935) 2 WACA 371, BJ Da Rocha & CHK Lodoh, Ghana Land law and conveyancing
[8] (1958) unreported, Accra
[9] (1941) 7 WACA 216, Sarbah, fanti customary law
[10] (1959 GLR 15
[11] (1921-25) D. Ct. 192
[12] (1965) CC 179
[13] [1974] GLR 110
[14] [2007-2008] SCGLR 220
[15] [2002-2003] SCGLR 593