Land purchase for shopping mall turns into family dispute
Dear Mirror Lawyer, I bought a parcel of land from a family, with the intention of building a shopping mall. The purchase agreement was made three years ago between three members of the family and me.
Advertisement
Just a week ago, I was on the land when a group of people confronted me, with a man who introduced himself as the Head of Family and cautioned me that, though the land belonged to the family, it has not been sold by the Head of Family and the elders so I should stay away from the land.
I am confused because I bought the land from someone who said he was the Family Head. Now I do not even know what to do.
Enyonam Doe, Oyibi, Accra
Dear Enyonam, It is very unfortunate that you find yourself in such a situation. In Ghana, the law is that the Head of Family is the key person in every family who takes charge of all family affairs.
As such, matters that are likely to adversely affect the family or benefit the family must be approved by the Head of the Family with the concurrence of the principal members of the family.
The principal members are elders within the family who are appointed to work with the head of the family.
When it comes to family property, the position of the law is that every sale or transfer of family land must be made by the Head of the Family as a fiduciary, with the consent of the family elders.
Where family land is sold by anyone besides the Family Head acting with the concurrence of the principal members of the family, that transaction is considered invalid.
It is advisable for a potential purchaser to do his own due diligence in the family and at the Lands Commission to be sure that the person he is dealing with is the accredited Head of the Family that owns the land.
The question of who the proper person is to dispose of family land on behalf of the family has been decided by the courts. It is only the Head of the Family, with the consent of the principal members of the family, who can exercise that power.
This proposition of the law was concluded in the case of Dotwaah v Afriyie [1965] GLR 257 SC, where Ollennu JSC held as follows:
“The law regulating dealings with family property is well-settled, and is as follows: The Head of the Family or the successor is an indispensable person in the alienation of family land; and alienation of family property made by the head of the family or a successor purporting to be, with the consent and concurrence of the principal members of the family, is voidable at the instance of the family if they act timeously; but a conveyance made by any other member without the indispensable person, the Head of the Family or the successor, as the case may be, is void ab initio and confers no interest or title in the land on the purchaser or mortgagee”.
It follows that if the three people who first sold the land to you were not the accredited Head of Family and principal members, the sale to you will be void.
If, however, the second set of people who confronted you on the land are truly the Family Head and principal elders, they would not have participated in the sale transaction to you because you failed to do your due diligence to be directed to them.
