LEGAL & EQUITABLE

RIGHTS IN LAND LAW

GODWIN DJOKOTO ESQ
UGSOL MAY, 2021
 Outline
• Legal and equitable rights in land
• Formalities for the creation of legal interest
• Creation of equitable interests in land
• Estate contracts-rule in Walsh v Lonsdale
• Proprietary estoppel
• Doctrine of notice
 Legal and equitable rights in land
• Creation of legal interest is normally attendant with form and based on statute or
the common law. Law looks to form but equity delights in substance. To be legal,
the interest must be capable of existing as legal interest eg. Allodial, legal leaseholds,
legal assignments, easements, profits etc
• Formalities relating to land include writing, execution, stamping and registration
• See Land Act, 2020(Act 1036)SS.32-52;
• See also SS. 73 -79(electronic conveyancing)
• Stamping Act, 2015
• Registration SS.83-139
 Formalities for the creation of legal interest

• Section 34 –A contract for the transfer of an interest in land is not

enforceable if the contract is not in writing, and signed by the person
against whom the contract is to be proved; or a person who is authorised to
sign on behalf of that person; or exempt under Section 36
 Mode of transfer -S.35
• 1. A transfer of an interest in land other than a transfer specified in section
36 shall be in writing and signed by
• a. the person making the transfer or by the agent of that person duly
authorised in writing; and the person to whom the transfer is made or the
agent of that person duly authorised in writing
• 2. A transfer of an interest in land made in a manner other as provided in
this section does not confer an interest on the person to whom the transfer is
made
 Transactions Permitted Without Writing.
S.36
• (1) Sections 34 and 35 do not apply to any transfer or contract for the transfer of an interest in land which takes effect—
• (a) by operation of law;
• (b) by operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trusts;
• (c) by order of the court;
• (d) by will (under Act 360 )or upon intestacy(under PNDC L111)
• (e) by prescription;(longer user)
• (f) by a lease taking effect in possession for a term not exceeding three years, whether or not the lessee is given power to
extend the term;
• (g) by a licence or profit other than a concession required to be in writing by an enactment
• (h) by oral grant under customary law.
 Legal right subject to equitable doctrines
• (2) Sections 36(2) shall be subject to the rules of equity including the rules
relating to unconscionability, fraud, duress and part-performance.
• Djan v Owoo(Order of specific performance)
• Sbaiti v Samaransinghe
• Tahiru v Mireku
• Whether money will constitute a sufficient act of part performance
• Steadman v Steadman
 Creation of equitable interests in land
• Equity delights in substance. Equity considers as done that which ought to be done.
• Created where there is failure /insufficiency of form eg. Failure to sign a lease
Estate contracts-rule in Walsh v Lonsdale
• Created where the Interest is INHERENTLY suitable must be capable of existing
as an equitable interest
• Djan v Owoo (equitable leases)
• Gwira v State Insurance Corporation [1991] 1 GLR 398(equitable mortgages)
 Equitable interest created by Express trust
• Express Trusts are trust intentionally created by a person called the Settlor
over a property for the benefit of another with legal interest vested in
another person who may /may not himself be a beneficiary of the trust
created. The person holding the legal title is called the Trustee and the
beneficiary is called the ces tui que trust(beneficiary)
• Legal title is vested in the trustee while equitable interest is vested in the
beneficiary.
Estate contracts –Rule in Walsh v Lonsdale

• Estate contracts are preliminary written agreements whereby a transferor agrees to

transfer and to take an interest in land or a right in law before the actual
transfer(typically in leases and mortgages) of the said interest. -
• Where the agreement contains all the provisions and attributes of an enforceable
contract then a court of equity in appropriate cases will enforce the agreement as
though it was the actual transfer of the intended right by way of specific
performance. Djan v Owoo-Agreement for a lease is as good as a lease
• Maxim-equity considers as done that which ought to be done
 Limits of Rule –agreement for lease as goods
as lease
• Agreement does not vest the beneficiary with a legal interest, it only vests
him with an equity(which may be protected by a decree of specific
performance)
• The rule is subject to the discretion of the court and the frailties of equity
• The rule is subject to 3rd party rights-such as bona fide purchaser for value
without notice
 Equitable interest
• Estates or Interest Void at Common Law for want of Correct Formalities
• Grant of an Interest by a person who has an Equitable Interest
• Grant of an Interest which can only Exist at Equity
• By Constructive Trust or Proprietary Estoppel
 By Constructive Trust
• A constructive trust arises by operation of law as distinguished from the act
of the parties. It is a trust imposed by equity, irrespective of the intention of
the legal owner. It is imposed when equity considers it to be an abuse of
confidence for the owner to hold the property for his own benefit.
• Dzidzienyo v Dzidzienyo
• Keech v Sanford
 ESTOPPEL
• Statutorily, Section 26 of N.R.C.D. 323 which is a conclusive presumption
provides that
• Except as otherwise provided by law, including a rule of equity, when a party has, by his
own statement, act or omission, intentionally and deliberately caused or permitted another
person to believe a thing to be true and to act upon such belief, the truth of that thing shall
be conclusively presumed against that party or his successors in interest in any proceedings
between that party or his successors in interest and such relying person or his successors in
interest.
 Estoppel explained

• Lord Denning in Moorgate Mercantile Co. Ltd. v. Twitchings [1975] 3 All ER 314.
• "Estoppel ... is a principle of justice and equity. It comes to this. When a man, by his words or conduct, has led
another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or
inequitable for him to do so.”
• at pages 323-324 he explained as follows:
• "... the principle . . . [a]t any rate ... applies to an assumption of ownership or absence of ownership. This gives
rise to what may be called proprietary estoppel. There are many cases where the true owner of goods or of land
has led another to believe that he is not the owner, or, at any rate, is not claiming an interest therein, or that there
is no objection to what the other is doing. In such cases it has been held repeatedly that the owner is not to be
allowed to go back on what he has led the other to believe. So much so that his own title to the property, be it land
or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And
this operates by reason of his conduct—what he has led the other to believe—even though he never intended it ...
 Proprietary Estoppel
• The classic exposition of the principle found in the dissenting speech of
Lord Kingdon in Ramsden v. Dyson (1866) LR I HL 129@170.
• ‘’If a man, under a verbal agreement with a landlord for a certain interest in
the land, or, what amounts to the same thing, under an expectation, created
or encouraged by the landlord, that he shall have a certain interest, takes
possession of such land, with the consent of the landlord, and upon the
faith of such promise or expectation, with the knowledge of the landlord
and with or by ... upon the land, the court of equity will compel the landlord
to give effect to such promise or expectation
 Proprietary Estoppel
• Lord Wensleydale in Ramsden v Dyson (1866) LR 1 HL 129 at 168 are apt
in this case. He said: If a stranger “builds on my land, supposing it to be his own, and
I, knowing it to be mine, do not interfere, but leave him to go on, equity considers it to be
dishonest in me to remain passive and afterwards to interfere and take the profit?
 Nartey v Mechanical Lloyd Plant [1987-88]
2 GLR 314-369, SC
• the La Mantse is the true owner of Frafraha lands, then he has intentionally for many years and
certainly since 28 September 1967 led the general public by his deliberate omission or failure to
assert his ownership, to believe that the Agbawe family of Frafraha are the owners of Frafraha
lands. At any rate the stool has by its inaction permitted the general public including the appellant
and even the government to believe that it has no objection to conveyances made by the Agbawe
family. In the circumstances the stool cannot now assert any title against an innocent purchaser who
has dealt with the Agbawe family following the stool's inaction and acquiescence. As against the
appellant the stool and those deriving title from the stool are estopped from impugning his title
which had already been perfected by registration and his possessory acts.
 Further reading
• Sbaiti v. Samarasinghe [1976] 2 GLR 361.
• 5: Usher v. Darku [1977] 1 GLR 476.
• 6. Djan v. Owoo [1976] 2 GLR 104.
• 7. Owusu v. Akomah [2007-2008] 1 SCGLR 525.
• 8. Gyimah & Brown v. Ntiri [2005-2006] SCGLR 247
• 9. Kotey v. Kolete [2005-2006] SCGLR 368
• 10. Koglex Ltd. (No.2) v. Field [2000] SCGLR 175.

• Quist v. George [1974 ] GLR 1,

 Doctrine of notice -Bona fide purchaser rule

• A bona fide purchaser of a legal interest for value without notice of a prior
equitable interest of another person enjoys an immunity against a prior interest
• Elements
• Bona fide- good faith –interest must be honestly acquired without notice of prior
right
• Purchaser-rule works in favour of a person who has provided consideration as
opposed to someone who has not (who in equity is considered a volunteer)
 Bona fide purchaser
• Without notice (actual, imputed and constructive)
• Actual- information that comes to you directly from your senses eg seeing, hearing, reading
etc
• Imputed –the notice of your agent is ascribed to the principal. Kingsnorth Finance v Tizard
• Constructive notice –the purchaser is saddled with information he would have discovered if
he had actually carried out his due diligence –Ussher v Darko
• A purchaser is deemed to have constructive notice of any fact which reasonable enquiry
would have disclosed concerning the possession and contents of documents of title and
the rights of any occupants of the property.
 Constructive –Notice s. 36(4), NRCD 175
• (4) A purchaser shall not be deemed to be or ever to have been affected with
notice of any matter or thing of which he might have had notice if he had
investigated the title or made inquiries in regard to matters prior to the
period of commencement of title ascertained in accordance with subsection
(1), (2) or (3), unless he actually makes such investigation or inquiries.
• Osumanu Vrs. Osumanu (1995-96) 1 GLR 672 at 680 CA, Benin J.A.
held that:
• “Any intending purchaser of property is put on his inquiry to make
such investigations as to title as would enable him rely on the plea of
bona fide purchaser for value without notice. If he failed to make
such inquiries, he acted at his own peril if subsequent events disclosed
that there was a valid challenge to the title he acquired.”
• Kusi & Kusi Vrs. Bonsu (2010) SCGLR 60, page 68 holdings 8 and 9,
the Supreme Court outlined what a party seeking to rely on the doctrine of
bona fide purchaser for value without notice must establish, which is that, he
had no notice at all of his opponent’s interest and also the need for a person
desirous of acquiring property to properly investigate his vendors root of
title, including searches at the appropriate statutory institutions in order to
ascertain whether the property was in any way encumbered
•
 Constructive Notice
• _ _Boateng v Dwinfuor (1979) GLR 360,_ _t_h_e_ _C_o_u_r_t_ _o_f_ _A_p_p_e_a_l_
_s_t_a_t_e_d_ _t_h_a_t_ _“…a_ _p_u_r_c_h_a_s_e_r_ _w_a_s_ _d_e_e_m_e_d_ _t_o_
_h_a_v_e_ _n_o_t_i_c_e_ _o_f_ _a_l_l_ _t_h_a_t_ _a_ _r_e_a_s_o_n_a_b_l_e_
_p_r_u_d_e_n_t_ _p_u_r_c_h_a_s_e_r_ _w_o_u_l_d_ _h_a_v_e_
_d_i_s_c_o_v_e_r_e_d_._ _T_h_u_s_ _w_h_e_r_e_ _t_h_e_ _p_u_r_c_h_a_s_e_r_
_h_a_d_ _a_c_t_u_a_l_ _n_o_t_i_c_e_ _t_h_a_t_ _t_h_e_ _p_r_o_p_e_r_t_y_ _w_a_s_
_i_n_ _s_o_m_e_ _w_a_y_ _e_n_c_u_m_b_e_r_e_d_,_ _s_h_e_ _w_o_u_l_d_ _b_e_
_h_e_l_d_ _t_o_ _h_a_v_e_ _h_a_d_ _c_o_n_s_t_r_u_c_t_i_v_e_ _n_o_t_i_c_e_ _o_f_
_a_l_l_ _t_h_a_t_ _s_h_e_ _w_o_u_l_d_ _h_a_v_e_ _d_i_s_c_o_v_e_r_e_d_ _i_f_
_s_h_e_ _h_a_d_ _i_n_v_e_s_t_i_g_a_t_e_d_ _t_h_e_ _e_n_c_u_m_b_r_a_n_c_e_._” _
•
•
 Doctrine of Notice abolished ?
No. Amuzu v Oklika,
• In October 1987, the appellant, on behalf of his principal, agreed to purchase from
the vendor a piece of land with an uncompleted building on it for ¢9 million. The
parties agreed that the appellant was to pay a deposit of ¢4.5 million which the
vendor was to use in completing the building and the balance to be paid on
completion of the building and transfer of the property to the appellant. The
parties reduced the transaction into writing, The appellant duly paid the deposit.
After a few months when the vendor failed to carry on with the work on the
building, the appellant took possession of the land and continued with the
construction of the building at his own expense.
 Amuzu v Oklika [1998-99] SCGLR 142
• However, on or about 11 May 1988 while the appellant was still in possession of the land, the vendor
surreptitiously granted the same piece of land to the respondent for ¢6.5 million and hurriedly prepared and
executed a conveyance, exhibit B, for the respondent who had it duly stamped and registered with the Land
Registry. The appellant, however, resisted an attempt by the respondent to enter the land. The respondent
therefore brought an action at the circuit court against the appellant for, inter alia, declaration of title to the
land. The appellant resisted that claim and also counterclaimed for a similar relief. At the trial the circuit
court found, inter alia, that: (i) not only did the respondent who was a friend of the plaintiff ’s principal know
of the sale of the disputed plot to the appellant but had sought the appellant’s assistance to be sold the plot
next to the disputed one; (ii) the respondent was aware that the appellant had taken possession of the
uncompleted building on the land and was carrying on with further construction to complete it. However,
the trial judge gave judgment for the respondent and dismissed the appellant’s counterclaim on the ground
that the title deed of the respondent, exhibit B, had fully described his root of title, had been stamped and
registered under the Lands Registry Act, 1962 (Act 122), while the appellant’s document, exhibit D, had
neither described his root of title nor had been registered under Act 122
 Amuzu v Oklika SC
• The Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud and
neither had it conferred on a registered instrument a state-guaranteed title. Besides, since equity would not
permit a statute to be used as an instrument of fraud or inequitable conduct, section 24(12) of Act 122
should not be interpreted in a way that would facilitate fraud in the acquisition and sale of lands.
Accordingly, a later executed instrument could only obtain priority over an earlier one by registration under
section 24(1) of Act 122 if the later instrument was obtained without fraud and without notice of the earlier
unregistered instrument. Thus registration did not create an absolute title. Accordingly, in the instant case,
the respondent’s later instrument, exhibit B, could not take priority over the appellant’s earlier instrument,
exhibit A, by its registration under section 24(1) of Act 122 because since the respondent had actual notice
of the appellant’s purchase of the disputed property, he would be held to have had constructive notice of
and to have been bound by the contract of sale between the appellant and the vendor, and the terms of the
contract including equities which under the contract the appellant had against the vendor.
 Amuzu v Oklikah [1998-99] SCGLR 141
Even in those cases where registration had been properly effected under Act
122, the Act does not abolish the equitable doctrines of notice and fraud:
neither did it confer on a registered instrument, a state-guaranteed title.