UNIVERSITY OF GHANA

SCHOOL OF LAW
FLAW 211
10940655

1
Customary tenancy is an interest in the use of land and it has been stated in the Lands Act 2020,
Act 1036. It is one of the least, if not the least interest one can acquire in the use of land. The
section 7 of the Lands Act 2020, Act 1036 gives one a fair idea what customary tenancy is all
about. It says a customary tenancy s.7(a) is an interest in land which is created by contract; (b)
arises where a stool or skin, or clan or family which holds the allodial title or a person who holds
a custom law freehold or usufructuary interest enters into an agreement with another person to
grant that other person an interest in land upon agreed terms and conditions; and (c) may involve
the payment of rent, the sharing of the produce of a farm or the physical partition or severance of
the farm or land1. From this section, one can clearly see or view customary tenancy as a contract
that is created between two or more parties. It involves giving out land in exchange for
something agreed between the parties. For one to give out land, that person should have had an
interest in the land already. This echoes the principle nemo dat quod non-habet to wit one cannot
give what he does not own. An allodial holder or a person with usufructuary interest in land is
qualified to give to give out this interest in land. Customary tenancy may be classified under two
main branches or fields. These are share tenancy and cash tenancy. These classifications will be
expounded in the subsequent paragraphs as seen above.
Share tenancy refers to the type of customary tenancies whereby there is a contractual
relationship between tenant and landlord. There is a binding relationship between the landlord
and the tenant. The landlord gives out his land to the tenant to use according to the agreed terms
and the tenant in tend gives part of the produce or profit to the landlord. Share tenancy may be
divided into two; Abunu and Abusa.
Abunu simply refers to dividing it into equal parts or half. In Abunu, the landlord gives the right
of usage of his land to the tenant in exchange for half or equal part of the tenant’s yield. Mostly
in abunu, the landlord gives out a land he has worked on or a land he has developed to some
extent to the tenant to continue with what he was doing.
On the other hand, abusa refers to giving a third or two-thirds of the produce to the land owner
by the tenant. In abusa, the land owner gives usually gives a virgin or undeveloped land to the
tenant to develop and in tend he gives him a third of his profits. This is not always this case. A
tenant may decide to give the land owner two-thirds while he chooses to keep one third as was in
the case of Cudjoe v Kuma.
The parties are not always expected to go strictly by this method of sharing. They are at liberty to
come up with terms of their own agreement. In Kwarteng v Agyako[1989-90]2, the agreement
was that the tenant would retain the whole produce for the first four years after the cocoa had
started to yield and thereafter to render 2/3 of the produce as rent to the landlord. The person to
whom the interest in the land is given to own holds a possessory right on the produce which the
land will bear during or before the expiration the contract. This principle was well lucubrated in
1
Lands Act 2020, Act 1036

2
Kwarteng v Agyako[1989-90] 1 GLR 286

2
the case of Manu v. Ainoo [1976]3 and Quafio v. Asuku4. In Manu v Ainoo supra the Court of
Appeal declared that, “the tenant only has the right to cultivate the land and to partake of the
proceeds. He does not acquire the title or estate in or a share of the farm.” One can make a
logical deduction from this case that the tenant who is the one the allodial or usufructuary holder
of the land has given the right of usage of the land to only has rights on the things or produce on
the land and not the land itself. The tenant cannot fell any economic produce which may have
been on the land given to him by the owner of the land without his permission. To do so would
about to enough grounds for the termination of the contract between the two parties as it. The
land owner is entitled to enjoy the benefit of all the economic trees found on the land given to the
tenant. It should be noted that once the land lord enters into a contract with the defendant, he
cannot unilaterally change the terms of the contact or terminate the contract. In Manu v Ainoo,
Francois JA said, “Customary law does not permit a landlord unilaterally to annul a customary
tenancy, as has already been observed. The right to forfeiture is sparingly exercised under
customary law. There must be the clearest indication for its exercise, and the defaulter must have
every opportunity for explaining himself or mending his ways. Also, Akrofi v. Wiresi5, the court
upheld the order of the lower court restraining the defendant landlord from demanding a half
share of the farm proceeds. A tenant under customary tenancy cannot alienate the land as it was
found in Akrofi v Wiresi that they have no interest in the soil but rather a very real interest in the
usufruct of the land. That means they cannot give out any interest in the land. They can however
give out the possessory interest they hold over the produce with the prior notification and
approval of the owner of the land. Share tenacy can however be passed on to the next of kin in a
situation whereby the original tenant passes away. In such a situation, the original agreement will
continue to be in force until it comes to an end. It may be subjected to a renewal should the land
owner and the next of kin who inherited the produce of the original tenant. A tenant may lose the
right in the usage of land if he abandons it after a reasonable duration of time or where he
challenges the right of the land owner or breach the agreement by felling of economic trees on
the land.
Cash tenancy simply refers to the system of customary tenancy whereby a land owner would
exchange the right of usage of a land for a customary drink. The customary drink in this context
needs not be a drink per se but rather some amount of money or consideration in exchange for
the right of usage of the land. With this type of customary tenancy, the land owner or the person
with the interest in the land gets no share from the profit arising from the land unlike in the other
system of customary tenancy that is the share tenancy. The cash tenancy may be divided into two
main branches namely; seasonal tenancy and annual tenancy.
Seasonal tenancy refers to the type of cash tenancy whereby a tenant farmer is allowed given the
right of usage in a given land by someone who holds an interest in the land be it allodial or a
usufructuary interest. With this kind of cash tenancy, the tenant is given the land until the end of
3
Manu v. Ainoo [1976] 1GLR 457 C.A
4
Quafio v. Asuku (1944) (1944) D.C. (Land) 39-47
5
Akrofi v. Wiresi

3
the season. The agreement usually comes to an end at the end of the sowing seasoning. The
parties are at liberty to renegotiate or renew their agreement. This kind of cash tenancy does not
the cultivation of economic crops or trees and the tenant is not allowed to harvest the economic
trees he found on the land. Felling of such trees constitute enough grounds for the termination of
the agreement between the two parties.
Annual tenancy refers to the type of cash tenancy whereby the tenancy agreement is subjected to
automatic annual renewals at the end of each completed year. This happens annually until there
is an agreement between the two parties not to continue at the end of a certain period at which
the termination will then be done according to the customs of the society. The tenant usually
given out a consideration which need not be his annual produce but some valuable amount of
money and or a bottle of Schnapps. The money is usually given in relation to the land size. A
person who wants to be a tenant of a stool land or any other land must first make an introduction
through an elder by offering a customary drink to the person who owns the allodial or
usufructuary interest in that land. They then discuss the consideration that must be given before
the parcel of land or the right of usage of the land can be given to the would-be tenant. The
consideration mostly involves Schnapps and some amount of money. A day is then chosen for
which the land will be shown or given to the tenant. Thorough background research will be done
on the would-be tenant before the said date. Before the demarcation is land all neighboring
members of the land are summoned to indicate where their boundaries lie in order to avoid an
encroachment and also trespass.

Question 2
Customary tenancies are not without problems or challenges. There are several challenges that
customary tenancies are faced with. Some of these challenges are not limited to the following but
include what will be talked about in the subsequent paragraphs.
One major challenge that customary tenancy face is the lack of proper record keeping.
Custodians of lands are not known to be good record keepers. The mostly agree on issues or
contract by spoken words. These most often than not becomes unverifiable with the passage of
time as it was in the case of Nyaasemhwe v Afibiyesan. In the case of Nyaasemhwe v
Afibiyesan, “neither the plantiff nor Ejokosua spelled out the duration or type of licence given to
the Busumpra; for example, they did not disclose whether it was a sowing tenure a limited in
duration to one season and not heritable or whether it as annual tenure.” This leads to the lose of
what the parties originally intended.6
Another major challenge of customary tenancies is the lack of security they come with.
Customary tenancies do not provide a tenant with adequate tenure of security. The is always the
risk that a person who owns an interest in the land may come back and truncate the agreement or

6
Nyaasemhwe v Afibiyesan (1977) JELR 67572 (CA)

4
contract between the two parties sometimes without even given adequate notice. This leads to
uncertainty and insecurity as one is in constant fear that his right to the usage may be take from
him and so they are unable to vary out long term projects such as planting of economic trees on
the land. The lack of possessory nature of the land is the main underpinnings of this challenge.
The lack of possessory interest in the land was illustrated in the case of Akrofi v Wiresi in which
it was held that, they had no interest in the soil but rather a very real interest in the usufruct of the
land. This simply meant that they did not own the land.7
There is also the problem of the owners of the land or people who have an allodial interest or
usufructuary interest in land in granting a piece of land to two or more parties. Lack of
accountability and transparency have led to the increase in the challenges of the customary
tenancy. Tenants may resort to various means to protect the right to the usage of land they have
acquired and this may lead to confrontations between two parties to whom a same parcel of land
has been sold to. This can easily escalate to family friction and cause serious tension in the
society.
Another problem of the customary tenancy is the lack of flexibility it sometimes comes with.
Some landowners usually determine the type of crops to be cultivated against the desires of the
tenant or even often times against sound scientific advice. Tenants are not given the exact
freedom to use the land for what they want. They are met with all sort of things to do and what
not to do. The restrictions can be so much that it frustrates the tenant to the extent of truncating
or terminating the contract. This does not help the tenant to use the land to his satisfaction. The
lack of restriction can sometimes lead to the bad farming practices which will in the long run
after the land and its yield.
In a situation whereby all the lands are given away to people from different society, the youth or
the people or indigenes may forcibly or arbitrarily want to reclaim the possession of the land.
They may end up causing all sort of problems to the tenants in a bid to frustrate the tenants to
abandon the land they are presenting working on. Also, the tenants may subcontract the right to
usage they have been given by the landowner to another third party. They may not use the land
for the intended purpose and may subcontract it for a consideration from the third party. This
often than not leads to the friction between the two original contracting parties. In the case of
Nana Bediako Atwere v Osei Owusu, the respondent had subcontracted or sold some lands that
were given to him without the prior knowledge of the appellant. This led to a friction between
the appellant and the respondent and later led to the issue being tried in court. Subcontracting the
land without the knowledge of the landowner is a denial of the title of the landowner and
therefore constitute enough grounds for the termination of the agreement between the two
parties.
These are some but not all of the challenges that do not help promote customary tenancies or
discourage tenants from going in for customary tenancy agreement.
7
Fiadzigbey, Matilda (2006) Customary Land Administrator in Ghana – Challenges and Prospects, Ghana

5
Question 3
One major way that the issues that arise from customary tenancies can be solved is to shift away
from the oral system or way of doing things and adopt a proper and better ways and means of
keeping records. In this era of digitization, it is very surprising that we haven’t made much
improvement in terms of our customary land tenure. This has led to several issues as they were
described in the preceding question. Digitization and proper records keeping can save us the pain
of suffering uncertainty and confusion whenever the need be for facts checking. Good recording
keeping will later prevent confusion that may arise as a result of subsequent generations coming
out to claim possession of lands that do not belong to them.
Security of tenure in the customary tenancy is one thing that must be critically looked at to
improve upon the challenges faced by our customary tenancy. Tenants must be well protected
whenever they enter into a tenancy agreement. Lack of tenure security discourages a lot of
people from wanting to acquire an interest in the right of usage of the land. They would rather
want to buy or purchase a long-term interest in the land as compared to the short-term
customary interest in the land. Tenants will want to be assured that they cannot be overthrown
from a piece of land they are working or be made to abandon a project they have started by the
landowners.
Landowners should not be so strict and rigid when it comes to the usage of their land. Tenants
should be allowed some room to use the land for its intended purpose or for the purpose that was
agreed before the demarcation of the land. The interference in the usage of the land does not
help the customary tenancy to develop or grow. When tenants are not very restricted and the
land owners do no go about poking their nose in their business because of the usage of their
lands most people will be attracted to this prospect.
Customaries authorities or should become more accountable and transparent in their operations.
This specially has to do with the chiefs in our country.8 Most chiefs are not transparent when it
comes to the sale and giving out interest in land. They sometimes involve themselves in some
deals which may not benefit the people of the society. They should be more transparent in what
they do, not excluding the transactions that relates to the land or stool or skin they hold. The
people should be also be made to hold them accountable for their actions.
Customary tenancy has been stagnant for a very long time and it is about time some changes are
effected to make it more compatible with the current trends and demand in this modern era. The
old and archaic method of handling customary tenancies not only tend to frustrate the tenants but
the also frustrate the entire society as a whole. The above points raised are some of the ways

8
The definition of a chief in this context is subjected to article 277 of the 1992 constitution.

6
customary tenancy can be made to adjust with the current trend of globalization which will also
solve the challenges of customary tenancies.