State courts and the regulation of land disputes in Ghana : the litigants’ perspective

The majority of land in Ghana is still held under a diversity of customary tenures, embedded in family,
community and chiefly institutions; but land disputes may be adjudicated in a variety of institutions:
informal arbitrations and family tribunals, chiefs’ courts, quasi-legal state agencies and the formal state
courts. Current debates on how to protect the land rights of the majority of customary land holders
revolve around the respective merits of customary and non-state regulation (said to be accessible, flexible
and socially embedded) versus state systems, which are said to offer more certainty, impartiality and nondiscriminatory
codes and procedures. In Ghana, however, customary and state legal codes have been
integrated for some time, and the state courts, which are frequently used as first instance adjudicators,
apply customary rules. Does this mean that in Ghana the merits of customary law can be combined with
the certainty and enforceability of state court dispute settlement?
Based primarily on survey and interview data, the research analyses how litigants in three selected
state courts perceived the experience of taking their land cases to court. It was found that, in spite of the
problems and delays associated with the state courts, there was a very strong demand for authoritative and
enforceable settlements which only the state could provide. It was also found that the justice offered by
the state courts was not as alien or inappropriate as commonly supposed. Particularly in the Magistrates
Court, judges were well respected and their procedures seen as sufficiently flexible and user-friendly.
Moreover, the extreme reluctance to entertain out-of-court settlements casts doubt on the notion that
proposals to move to more use of ADRs (Alternative Dispute Resolutions) will be successful if they fail to
offer equivalent authority, fairness and enforceability.
Keywords: Ghana, Land, Litigation, Courts, Disputes, Land Law, Access to Justice, Legal Pluralism