FAMILY, PROPERTY, AND THE STATE IN GHANA Changing customary law in an urban setting by Nii Armah Josiah-Aryeh of School of Oriental and African Studies A thesis presented for the degree of Doctor of Philosophy (Law) University of London Avij4*199iT ProQuest Number: 11010548 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010548 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 Dedicated to the memory of my aunt, Mary Larteley Lawson and to my mother ABSTRACT OF THE THESIS Judicial customary law, based initially on the works of indigenous scholars, has developed extensively in Ghana to provide the premise on which the country bases its laws of family, property and succession. Social enquiry, however, discloses a growing dichotomy between judicial customary law and the customary law that is actually practised by the people. This is due largely to the flexible nature of customary law and the continual development of new rules to meet changing conditions. Guided by the English doctrines of precedent and stare decisis the state courts have generally not recognised the new rules which regulate the day to day activities of ordinary people. As a result, a considerable gap exists between judicial customary law and social reality. In recent years, the state has sought to ameliorate the social injustices caused by the untrammelled operation of the rules of judicial customary law through the enactment of legislation. The present thesis argues that the mere enactment of legislation is no guarantee of the reform of customary law. It is contended that the key to successful reform of customary law lies in the implementation of programmes aimed at ensuring that norm-addressees actually benefit from legislative enactments. 1 While the main aim of the present work is to assess the impact of recent Ghanaian legislation upon customary law in an urban environment, it also analyses the extent to which the modern law has been able to strengthen the claims of the nuclear family. The thesis concludes by making suggestions for further law reform. 2 ACKNOWLEDGEMENTS This thesis has been five and a half years in the making. This is due to a number of factors, one of the most significant being the fact that this research project has been wholly financed from my personal resources. This had the effect of limiting, earlier on in the project, the extent of official data and expertise that might have been available to me if I had been sponsored by a large organisation. Many influences and individuals, both in London and Accra, have shaped this thesis. The main influence on the thesis has been the desire to state, as accurately as possible, the traditional norms, as applied today, that have directed and dominated the lives of numerous persons in Accra including those who contributed to my field material. I am particularly grateful to Nii Kojo Danso I, Nii Kwei Kuma II, John Cleland, Sheikh Mohamed Marquaye and Mrs Marian Cathline for helping me in various ways during my fieldwork. In London, I must record my debt of gratitude to a number of individuals. To Dr Werner Menski, Senior Lecturer in Law, School of Oriental and African Studies, I acknowledge myself as a disciple to a master. He plucked me like a brand out of the burning at a time when I was in danger of abandoning this thesis. With his keen sense of structure, sharp criticism and wise advice, he took me past the portals of mere studentship into the realm of scholarship. It is entirely to his credit that this work was submitted for examination almost within a year of his supervision. His phenomenal work rate, attention to detail and emphasis on precision imposed order on my ramblings. I would also like to thank Appiah Sackey, formerly of the English Department, University of Ghana, for reading through earlier drafts of this thesis and making many useful comments. I also gratefully acknowledge the help and advice of Professor James Read and Dr Simon Coldham, both of the School of Oriental and African Studies, at various stages of the work. I must record my debt to Dr Gordon Woodman of the Faculty of Law, University of Birmingham and Professor Simon Roberts of the Law Department, London School of Economics and Political Science. The help, encouragement and patience of my wife, Fredericka, during the crucial stages of writing the thesis, particularly when all hopes of its completion seemed to have been lost, have been invaluable. I gratefully acknowledge my brother, Charles Josiah-Aryeh who with my mother supported me through secondary school and university in Ghana and encouraged me to embark on this project. 4 Contents Page Abstract 1 Acknowledgements 3 Contents 5 Map of Accra 10 Map of field-area 11 List of tables 12 Abbreviations 14 List of statutes 16 List of cases 20 Glossary of vernacular terms 30 1. AIMS AND THEORETICAL FRAMEWORK OF THE THESIS 34 1.1 The objects of the research 34 1.2 The theoretical and conceptual framework 42 1.3 Literature review 62 1.4 Scope of the thesis 80 5 THE FIELDWORK 85 The urban setting of Accra 85 The field study 92 Research methods 97 Sampling 106 THE SOCIO-ECONOMIC AND POLITICAL BACKGROUND OF GHANAIAN CUSTOMARY LAW 112 The socio-economic framework 113 Family and property in Ghana 115 The impact of economic change on chiefly authority 122 The constitutional position under colonial rule 134 Constitutional changes since independence 137 The legal system and the structure of the courts 139 Customary law and the legal process 145 Conclusion 157 THE FAMILY 160 The family in customary law 162 The conceptual confusion over the Ghanaian family 162 The family in Ga customary law 187 Nuclear families and their approach to family solidarity: a case study 200 The head of the extended family and the Head of Family (Accountability) Law. 1985 206 6 Marriage and divorce in urban Ghana 219 Types of marriage 220 Legal changes in Ghanaian divorce law 235 Customary marriage and divorce registration 249 Registration of customary marriage 249 Registration of customary divorce 258 Conclusion 259 TYPES OF LAND-HOLDING AND THE EMERGENCE 263 OF INDIVIDUALISM IN GHANAIAN LAND LAW Interests in land 264 The paramount and sub-paramount titles 269 Social change and the paramount title 270 The position regarding title to outskirt land 286 The determinable or usufructuary title 298 Tenancies 310 Pledge or hypothecation 319 Conclusion 333 LAND AND THE STATE 336 Public control of land in traditional society 337 Alienation of interests in land 342 State control of ownership 361 7 The State Lands Act. 1962 and The Administration of Lands Act. 1962 361 The state and the security of the individual owner 371 History of land registration in Ghana 372 The Land Registry Act. 1962 376 Conveyancing and private ownership 388 The Conveyancing Decree. 1973 394 The Land Development (Protection of Purchasers) Act. 1960 399 The Lands Commission 402 Conclusion 407 LAND TITLES REGISTRATION 408 Th*. L cu\ ct 'T iirO u ’ P-itQj i£ t y l j 412 Pv obl &Mr in tL i pvoUfPof 421 The effects of registration 438 Procedures 448 Caveats and adjudication of title 448 Searches 451 Trusts, transmissions and dealings with registered land 452 457 Conclusion 461 8 8. SUCCESSION TO PROPERTY 468 8.1 Types of property 471 8.2 Intestate succession 484 8.2.1 Intestate succession under customary law 484 8.2.2 Intestate succession under the Marriage 493 Ordinance, 1884 8.2.3 The Intestate Succession Law. 1985 497 8.3 Testate succession 528 8.3.1 Testacy under customary law 528 8.3.2 Testacy under the Wills Act. 1971 545 8.4 Conclusion 552 9. CONCLUDING ANALYSIS 555 APPENDIX 576 9 «'/V < m 0 0' Ll_ < U) III I- <1 1 : c n Ml O 0 (0 1 i J _1 CL O X (/) U I > UJ I Q W i i j l I- Q P ^ M m x <f O I- (/) CL) <1. a 6 x in < 0 1 LlJ o < 1. o: (3 r ;> x C) n_ -i. I> MAP OF THE WESTERN PART OF THE GREATER ACCRA REGION SHOWING DOMIABRA AND OTHER VILLAGES ON THE ACCRA PLAINS. List of tables Page Table 1: Educational background of respondents. 110 Table 2: Incomes of respondents. 110 Table 3: Other (elite) informants. 110 Table 4: Party type in land disputes. 150 Table 5: Composition of a sample of Accra families. 175 Table 6: Relationship between form of marriage and years married (Jamestown). 233 Table 7: Relationship between form of marriage and years married (Mamprobi/Old Dansoman). 233 Table 8: Relationship between form of marriage and years 234 married (Domiabra). Table 9: Grounds of divorce under customary law. 236 Table 10: Agricultural tenancies at Domiabra. 311 Table 11: Annual sale of land at Old Dansoman between 347 1958-69. Table 12: Methods of finance in the acquisition of land at 349 Old Dansoman. Table 13: Registration of deeds under Act 122. 386 Table 14: Relationship between the activities of chiefs, 392 heads of families and professionals.