Conversion
of allocation papers into leases is very important because in a recent Supreme
Court of Ghana judgment in Boateng (No. 2) v Manu (No. 2) SCGLR [2008] it was
held that allocation papers represent the initial process to evidence that land
has been acquired by an individual or corporate body. However, an allocation paper
by itself cannot represent the fact of land acquisition. Justice William Annam
Atuguba has said that he knows of no law which mandatorily requires an
allocation paper in the sale of land.
The position
of the Supreme Court on allocation paper is premised on three main reasons. Firstly,
an allocation paper does not state the nature of the acquisition, i.e. whether
it is a lease, a sale, a pledge, mortgage, a gift, etc. Secondly, the duration
of the acquisition is not specified on the face of the allocation paper, and
lastly, allocation papers do not give details of the extent of the land
acquired. For these, the Court has held that allocation papers can only show
that some transaction had taken place to in which the owners had purported to
give some land to an individual or corporate body but allocation papers per se
cannot pass title. The landowner will thereafter proceed to have it converted
in a lease which will have to be registered at the Lands Commission.
For
these reasons, allocation papers are often not accepted by banks and financial
houses as security for loans. The value of the building on the land though may
be substantial but it remains unacceptable as security if title to that
property is derived from an allocation paper. Lease documents are desired.
However, to procure a lease on a piece of land, landowners must first submit
their land allocation paper to the Asantehene’s Lands Secretariat for
endorsement by the Asantehene. Thereafter a lease is prepared, executed and
registered at the Lands Commission.
I do
not advocate this line of thinking. I think allocation papers are valid land
documents properly procured under customary law provides by article 11 of the
1992 Constitution of Ghana. Since I am here not arguing about these points, I
will not dwell much on this issue. However, it is the failure of public land
administrators to recognize land allocation papers as valid land documents that
why it has become important that every landowner convert his or her allocation
paper procured under customary into a lease.
Due to
the cost involved, the time it takes and the complex and cumbersome nature of
the land registration process, most land owners are not motivated to register
their land. Several efforts by government such the Land Administration Project
(LAP) over the years to reduce the cost, time and complexity of land
registration in Ghana have to date achieved little success. Today, it is common
to find corruption at the lowest and the highest echelons of the land agencies.
From desk to desk, one must pay the way to get a piece of land registered. What
is even shocking is that, after such bribes, the process of land registration
still moves like an injured-tortoise.
In
September 2012 the Asantehene’s Lands Secretariat (ALS) went on Radio and TV
inviting landowners to come and register their land. One these media platforms,
land owners were assured that that the cost of registering would be cut by 70%.
The period it took to register a piece of land would be reduced to three months.
And the physical presence of landowners in the entire process would also be a thing
of the past.
The landowning
public greeted the news with a great sigh of relief. One by one, day by day, they
thronged to the Forecourt of the Manhyia Palace to convert their allocation
papers into leases. What happened during the last three weeks to the end of the
project was unprecedented. Thousands of landowners besieged the project. They
were more eager to register their title to land before the project expired. But
it was expected. Ghanaians are last-minute people. They literally begged to
submit land documents for registration. As
a result, the project period was extended for another three months. Despite
this, the ALS became choked with several landowners craving to process their
land documents for lease. At the end of the day, over 15,000 applications had
been received. Pressure mounted on land officials working there. And this
slowed the process further. People tried to bribe their way through the
process. And it worked.
From
September 2012 to March 2013, the ALS reduced drink money charges by at least
70%. Land owners were not required to go through the normal complex, cumbersome
process of land registration. Over one hundred young university graduates were
employed to do that. Over 15,000 applications for lease were received.
The
promise to produce leases in three months could not be fulfilled. Most people
then began to complain of the same old problems about delays in land
registration process. What the public did not know was that behind the media
dressing was a considerable number challenges the Lease Documentation Project
faced. On 2 April 2013 I met a young land economy graduate at the Manhyia
Palace. I had first met him when he was doing his National Service at Lands
Commission. He had been recruited to assist in the project. I asked him about
some of the difficulties that the project was facing and he did not hide the
truth from me.
There
was too much media window dressing. The public was deceived. They were made to
believe that leases could be acquired in three months. Yes it could be done.
But the number of applications that was received and the problems the project
faced, six months is even too short a time to complete all the lease
applications. As we talk now, the three months has expired. The three months
extension that was given is now left with two weeks to expire. Yet not a single
lease document prepared under the project has come out of the registration tunnel.
Over fifteen thousand people have submitted their allocation notes and site
plans for processing. Out of this, less than twenty is receiving positive
attention.
There
are planning, technical and human resources problems facing the project. Let us
start with planning problems. There are certain areas in Kumasi where there no
existing planning layouts. Article 267 (3) of the 1992 Constitution, provides
that no stool land is to be sold, developed or registered unless the Lands
Commission has certified that the sale or
development conforms to layout drawn up and approved by the planning
authority for the area. Thus, the ALS, by law, requires the LC give such
certification on individual plots to begin preparation of lease. Once Lands
Commission does not grant such approval, any effort to acquire lease will hit a
dead end. Unfortunately, the LC cannot certify any plot which lies in area
which does not have an approved layout. This has caused the processing of many
applications under the project. My investigations shows more than thirty per
cent of lease applications made under the project are beset with layout
problems. Leases for such plots cannot be processed.
Secondly,
some land allocation papers presented by landowners were found not to be genuine.
Such allocation papers had been issued by illegitimate persons. One would think
that since this matter involves chiefs the chief for the areas must be made to
issue a fresh and genuine one for the landowner. But the question arises at to
whether the landowner is to pay the price of the land to the chief since it was
not the chief who took the initial purchase price.
Thirdly,
there were some landowners whose title to their land could not be traced
sequentially in relation to the documents they possessed. That is there were
gaps in their root of title. In such cases, the land might have changed hangs
several times but there were no documents to back such transactions. This made
it difficult to process such applications. Last but not the least, there were
instances where there were existing transactions affecting some of the land.
This meant that the land had already been sold and registered in favour of a
person other than the one who sought to register land anew. These problems
continue to face the project.
To be continued....
