Mastering How to Handle Land Cases in Court: A primer

A: Introduction

The issue of land litigation clogging our courts is an age-old canker.

According to the Judicial Service’s “Analysis of Civil Cases & Criminal Offences for 2022/2023 Legal Year” Report, land cases continued to have a significant caseload with 3,744 new cases filed. However, the resolution rate was approximately 16.23%, indicating that a substantial number of cases were still pending at the end of the year. This backlog was attributed to complex land tenure system and inefficient land administration regulators.

 

B: The Jahori land case

The recent High Court case titled Bolewura Sarfo Kutuge Feso I (Suing for himself and on behalf of the descendants of Ndewura Jakpa within the Bole Traditional Area) v Fuseina Nungbaso & Others Suit No. NR/TL/HC/W1/12/24[1] in which judgment was given on 23rd July, 2025 by Mr. Justice Richard Mac Mogyapwah, (Justice of the Court of Appeal sitting as an Additional High Court Judge) has further brought to light the canker of fruitless land cases filed in court. These cases waste the courts’ precious time and resources.

 

In the Bolewura Sarfo Kutuge Feso I case, the Bolewura (plaintiff) sued Fuseina Nungbaso and two other persons (defendants) for on order to declare about 9,200 square kilometres of land in the Bole Traditional Area as belonging to the descendants of Ndewura Jakpa, the founder of Gonja Kingdom. The defendants also counterclaimed that the land in dispute, known as ‘Jahori’ land, is ‘clan land’ that belongs to the Jahori Clan of the Gonja Kingdom. Therefore, it is not ‘skin land’ belonging to the Bole skin.

 

The issue the High Court had to decide was whether Jahori land was for the Bole Skin or the Jahori Clan.

 

The learned Judge opened his judgment with a beautiful introductory piece as follows:

“In the intricate tapestry of land ownership in Ghana, title is not always written on parchment or evidenced by a deed, but often preserved in the collective memory of a people, passed down through generations by word of mouth, custom, and ritual. Where formal documentation is absent, it is traditional evidence that breathes life into a claim for title - a form of proof that, though unwritten, is deeply rooted in the conscience of the community. This case presents a very interesting analyses that attempts to venture into the history and foundation of the Gonja Kingdom. This judgment shall explore the legal principles governing the declaration of title to land, with particular emphasis on the probative value and evidentiary weight of traditional evidence in establishing ownership.”

 

True to the outline set out in the introduction, the High Court gave a masterful and comprehensive judgment that traced the traditional history of Gonja lands and the respective skin and family or clan lands in the area. The Court also discussed in detail the principles by which a party seeking an order of declaration of title to land must prove title. It emerged that in an earlier 2021 case, the defendants had been adjudged as the owners of Jahori clan lands. In the end, the Court held that the Bolewura failed to prove his case (on the balance of probabilities) that Jahori lands were Bole skin land. The Bolewura lost the case and Jahori lands were adjudged as clan land.

 

In my latest book, LAND LAW: Principles, Conveyancing & Litigation (Vol. 1) (2025), I discuss ‘Stool/Skin and Clan land’ in Chapter 3. Topics discussed include the following:

Stool/Skin Land     

      Stool/skin land defined      

      Origin/derivation of stool/skin land          

      Competence to grant stool/skin lands.    

      Persons who can grant/sell stool/skin lands     

      The birth of the Head of Family (Accountability) Law

      The need for accountability by stool/skin occupants and customary land caretakers

      Stool/skin occupants accountability provisions in the Land Act, 2020: A new dawn        

      Who is a “chief”?     

      The concept of ‘stool/skin property’ under the Chieftaincy Act          

      Governmental oversight of sale of stool/skin lands      

a)    Office of the Administrator of Stool Lands   

      The Legal Effect of the Land Act in the Context of Articles 257, 258 & 267 (1) of the Constitution, 1992

      Vesting & De-vesting of Stool Lands

a)         Background: Vested lands

b)         Vesting of stool or skin, or clan or family land   

c)         Management of vested lands       

d)         De-vesting of vested lands

Clan Land    

      What is a “clan”?     

      Clan land defined   

      Clan lands in Ewe-speaking areas

      Clan land among the Akan

      Vesting of clan land           

 

Chapter 18 discusses actions for declaration of title to land and touches on topics such as the following:

      Plaintiff to rely on the strength of his/her own case

      Burden of persuasion

 

Chapter 20 talks about pleadings and proof in land litigation. It covers the following topics in detail:

PLEADINGS

      Statement of claim  

a)            Drafting the statement of claim    

      Judgment in default of appearance        

b)            Default judgment in a claim for possession of immovable property only     

c)            Setting aside judgment in default of appearance         

d)            Default of appearance in moneylenders and mortgage actions        

      Statement of defence         

a)            Judgment in default of defence

b)            Setting aside judgment in default of defence

c)            Default of defence in moneylenders and mortgage actions

      Need for defendant to counterclaim in certain cases  

      Reply and defence to counterclaim        

a)          Default of defence to counterclaim         

      Preparation for trial

a)         Application for directions   

b)         Filing of witness statement and pre-trial checklist        

c)         Case management conference   

PROOF

      Burden of proof                   

a)            Burden of persuasion        

b)            Burden of producing evidence    

      Standard of Proof – Balance of Probabilities

      Evidence required to meet standard of proof in land cases    

      No witness? No problem   

      Undenied averments         

      Corroboration

      Proof in acquisition cases

      Identity of the land and its boundaries   

a)    A court cannot demarcate the boundaries for the parties       

b)    Site plans     

c)    Composite plan       

d)    Filing of survey instructions         

      Reliance on traditional or family history as evidence

      Proof of fraud in land cases         

a)    Standard of proof          

      Reliance on written documents as evidence    

a)    Written document vs oral evidence         

b)    Old/ancient documents     

c)    Plea of non est factum       

      Stamping of documents intended to be tendered in evidence           

a)    Practice regime for tendering documents chargeable with stamp duty  

      Competent witness & admissibility of evidence

a)            Competent witness

b)            Credibility of witnesses

      Expert evidence

a)    Who qualifies as a court expert

b)    Report of court expert

c)    Court not bound by expert opinion

d)    Cross-examination of court expert

e)    Fees of court expert

f)     Calling of expert to give evidence

g)    Admissibility of evidence

      Claim against a dead person’s estate     

      Death or bankruptcy of party while case is pending    

a)    Death of sole plaintiff or defendant

b)    Bankruptcy of sole plaintiff or defendant

c)    Application for order of substitution after death or bankruptcy           

d)    Discharge or variation of the order for substitution

e)    Effect of the order of substitution

f)     Failure to proceed after death      

 

C: Conclusion

The moral of the story is that, persons who intend to sue or are sued in land cases; and the lawyers who represent persons in land litigation – as well as the judges who sit on such cases - must always be abreast with the law. This will help reduce the number of land cases waiting impatiently on Cause Lists for years.

 











[1] Credit for copy of the judgment goes to The Law Platform. The full case is available at https://www.thelawplatform.online/post/bolewura-loses-land-case-of-9000km-of-jahori-lands-jahori-clan-declared-rightful-owners. The trial judge is highly commended for his comprehensive, well-researched and well-balanced judgment.

 

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