“This court deems it very important to stop the phenomenon of an immovable property or land growing and changing in size, dimensions and boundaries as found in this trial. It must cease.”
– Justice Nicholas M. Cudjoe Abodakpi
On the 2nd day of November 2023, an Accra High Court Human Rights Court 2 nullified the two statutory declarations made by the Nii Odai Ntow family of Kwabenya in the case with suit No. LD/0998/2018 titled Winfred Kumah Apawu (plaintiff) versus Solomon Tettey, Nii Odai Ntow Family, and Prince Nana Ankomah (defendants).
In this case, the plaintiff alleged, among other things, that the 2nd defendant, the Nii Odai Ntow Family, presented site plans described as modified versions of their root/judgment/site plan from the 1904 case. Over the years, the 2nd defendant consistently based its claim to family land on a 1904 judgment and its plan in Suit No. SCT2/37 titled KWASI BOSOMPIM & ORS versus MARTEI & ORS. Interestingly, these modified versions of the 1904 judgment plan appear significantly larger than the judgment plan in the Kwasi Bosompim & vs. Martei & Ors judgment, which they always rely on. This led the plaintiff to request the court’s intervention to prevent the defendants from unlawfully expanding their boundaries and depriving him of his land by disregarding the judgment and plan they had been relying on.
A significant finding of the court is that the 1st defendant showed that, without a court order, they decided to produce two additional site plans or judgment plans based on the 1904 judgment plan. The reason given was that the 1904 plan lacked gridlines. However, under cross-examination, the defendants admitted to generating two site plans, Exhibit ‘3’ and Exhibit ‘3A’, with different land sizes—12690 for Exhibit ‘3’ and 12587 for Exhibit ‘3A’. This is what transpired during the cross-examination of the 1st defendant, Solomon Tettey.
Q: When you say the plan was modified, what do you mean?
A: In the 1904 judgment, the judgment plan did not have gridlines. So, when the declaration was being made by Odenkey Abbey and others, the Surveyor by then was able to insert gridlines into the judgment plan of 1904, and that was what we used for the declarations.
Q: How many site plans did your surveyor draw based on these so-called Modernizations?
A: It was two (2) site plans. The first one was used in the declaration of 1975, and the second one was ordered by Peter Mensah Anteh, the plaintiff in the 1980 lawsuit.
Q: The two site plans you are referring to are Exhibit ‘3’ and ‘3A’, not so?
A: Yes.
Q: According to you, the features of the 1904 judgment plan were what was used to produce Exhibit ‘3’ and ‘3A’
A: YES.
Q: But the surveyor ended up getting two (2) different land sizes from the judgment plan.
A: No, because the surveyors in the declaration plan, the date and time they went to the site were not the same as the date and time they went for the second plan, which was requested by Peter Mensah Anteh, the plaintiff in the 1980 judgment.
Q: Because the dates on which the surveyors went to the land were different, the land sizes shifted in size and position?
A: YES, and NO. Yes, because it was two different people who took the surveyor to the site, and the two (2) different people showed the surveyors landmarks that they wanted the surveyor to consider. So, definitely, the two (2) site plans may not be, as Counsel is saying, the SAME in size. But, as I mentioned earlier, the two (2) site plans, though they have different sizes, are almost the same, as indicated in the 1980 suit.
It is clear from the above that the Nii Odai Ntow family, on their own and without a court order or an institution with the requisite expertise, decided to draw their own site plans out of their 1904 judgment plan, which had no gridlines. This self-serving act led to inconsistent land sizes and positions, resulting in numerous litigations. From our independent checks, it came to light that this self-serving act of the family has led to numerous challenges and litigations in that enclave.
The trial judge noted that the current legislation on the production of site plans or judgment plans, as outlined in Section 182 of the Land Act 2020, Act 1036 (and the repealed legislation, which I doubt very much), does not authorize such self-serving production of judgment plans. The trial judge emphasized, “As I have observed earlier in this judgment, it is untenable for an individual on his own to insert gridlines in a judgment plan and present the same as the work of a court of law.”
In light of the changes in land sizes and positions, under the guise that the 1904 judgment plan had no grid lines, the plaintiff applied to the court to have the Survey and Mapping Division of the Lands Commission geo-reference or use modern scientific means to insert grid lines into the 1904 judgment plan. Curiously, the defendants (Nii Odai Ntow) objected to this application. On page 61 of the judgment, the trial judge noted that “the solution to this conundrum aimed at arresting the phenomenon of an immovable property (land) growing and changing in size (acreage) with time is the order for geo-reference, that was made and a composite plan drawn out of all site-plans made or filed by the parties in the action.”
The reliance on a site plan without gridlines is a weakness that affects the defense’s case, and the implications for transparent land management and the adjudication of grievances demand that the order be made, resulting in Exhibit ‘CW1’ and ‘CWA’. It is Section 182 of the Land Act 2020 (Act 1036) that prescribes the method of inserting grid lines into site plans, and the Lands Commission Act 2008, Act 767, gave the Lands Commission the mandate to produce maps and site plans, etc. The trial judge again noted that “this imperative to have lands, which are the subject matter of litigation, accurately identified and information on them put in the database of the Lands Commission (Survey and Mapping Division), informed the order for a composite plan to be drawn, and as part of it, the geo-referencing of the 1904 judgment plan.”
The feuding Nii Odai Ntow family, having expanded the boundaries beyond what is in the 1904 judgment plan, made declarations for the same to be accepted. However, in the 1980 judgment, the misrepresentations established against the defendants therein constituted a violation of Section 5 of the Statutory Declaration Act, 1971 (Act 389), which provides: “Any person who makes a statutory declaration which he knows to be false in the material particular, or who makes a declaration false in a material particular, recklessly whether it be true or not shall be guilty of a misdemeanor.”
From the foregoing, the two (2) Statutory Declaration plans have no legal existence, separate from the facts deposed to which have been annulled. The trial judge concluded, “As I draw curtains down in this judgment, I am surprised that for more than a hundred years or since the 1904 judgment, the issue of scientific and independent identification of the Korley lands has not arisen for determination. If there is a decision in that regard, it has not been cited, and I have not come across one. In the order for geo-referencing and identifying the boundaries of the Korley land, on the Western side, this court deems it very important to stop the phenomenon of an immovable property or land growing and changing in size, dimensions, and boundaries as found in this trial. It must cease.”
As noted earlier, the defense, who admitted under cross-examination that the 1904 judgment they rely on has no gridlines, still opposed the same. But for greed and deceit, why would one oppose such an exercise which seeks to bring finality to an otherwise thorny issue? The fact is this family has succeeded in deceiving so many people, even the courts that it was impossible to geo-reference the judgment plan, yet they claim they carefully drew a declaration plan using features on the 1904 plan. In court, they will tender the Nii Odai Ntow family consistently presents the declaration as the 1904 plan whenever the court orders a composite plan, claiming 1904 as their root plan.
The decision in Suit No. H1/111/2019, titled NII NGLESHI ADDY versus JOHN ARMAH MENSAH & 2 ORS, which set aside the high court decision of Justice Ofori Atta that granted jurisdiction to the Nii Odai Ntow family regarding the 1904 judgment plan, has been significantly impacted in its forensic and legal efficacy by the Supreme Court in its decision in the NORTEY NO. 2 versus WEST AFRICA INSTITUTE OF JOURNALISM &………
“The import of the decision taken is that, it is the 1904 judgment plan with no grid lines that must be left that way and unlimited to what the actual size, boundaries or acreage is. It is a decision I will distinguish and I will place reliance on NORTEY (NO2) cited supra, especially holding 2.
The Nortey case dealt with how to prove title to land, the identity of the land in terms of boundaries of the land in an action where issues are joined on those primary facts i9n the pleadings.
In this trial before me the issues of title to the Korley land is uncontested rather issues have been joined on the limits/identity of the Korley land on the WESTERN portion.”
Holding 2 in parts reads:
‘Since the plaintiff sought … he must establish the identity and LIMITS of the land. The onus of proof required by law regarding the identity of the land would be discharged by meeting the following…
I the plaintiff (the party emphasis mine) must establish all his boundaries and where there was np properly oriented plan drawn to scale, which made compass hearing vague and uncertain, the court would hold that the plaintiff (the party) had not discharged the onus of proof….”
The reasoning of the Apex court was that where a court grants a declaration of title to land or MAKES AN ORDER FOR INJUNCTION regarding the land, the subject matter of that declaration should be clearly identified. This ensures that an order for possession can be executed without difficulty, and if an injunction is violated, the person in contempt can be punished. If the BOUNDARIES of such land are not clearly established, the judgment or order of the court will be in vain.
This decision is authoritative and comprehensive as it reviewed all notable cases on the proof of title and identity of land in Ghana.
