In this regard, it bears emphasized that the usufructuary’s obligation to render customary services to the stool passes in its entirety to his or her grantee. Thus, the grantee of the usufruct steps fully into the shoes of the customary freeholder and is bound to render to the stool the services which the original usufructuary holder would have been required to perform.
English conveyancing forms and customary interests in land
The courts’ recognition of the English conveyancing forms has never been extended to the customary estates or interests, i.e. the usufructuary estate of interest of individuals or groups, and the communal absolute ownership of family, tribal, village, town, division and state groups. On the contrary, the courts have frequently made pronouncements that the English conveyancing forms are manifestly inappropriate for the transfer of the said customary estates or interests in land, and expressed disapproval of the employment or use of the said English conveyancing forms for the transfer of the said customary estates and interests.
The customary freehold is not a mere right of occupation and farming, but an interest in land. It is an interest which prevails against the whole world including the allodial owner. The proprietor of a customary freehold can dispose of it either inter vivos or by testamentary disposition and it devolves as part of his estate if he dies intestate. He does not require the consent and concurrence of the allodial owner to alienate it. He is however under obligation to recognize the title of the allodial owner and to perform customary services due from the subject or member to the Stool or family or clan.”
A species of ownership co-existent and simultaneous with the stool’s absolute ownership. … The stool, in effect, no longer has dominium of the stool land but an interest conceptually superior to that of the subject. A concept of split ownership is emerging, allowing the existence of separate but simultaneous estates in respect of the same land. The usufructuary is regarded as the owner of the area of land reduced into his possession; he can alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the prior consent of the stool. There is practically no limitation over his right to alienate that usufructuary title. So long as he recognizes the absolute title of the stool, that usufructuary title could only be determined on express abandonment or failure of his heirs.”
The owner of the usufruct title can alienate his said title without the prior consent and concurrence of the absolute owner, so long as the alienation carries with it an obligation upon the transferee to recognise the title of the absolute owner. That principle of law still holds good.”
These in short, are possessory or usufructuary rights, and they prevail against the whole world, even against the stool, community or tribe. Their existence is concurrent with the existence of the absolute ownership, and they are generally dependent upon the occupation or possession by the subject: see Ollennu, Customary Land Law in Ghana, p. 55.
