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Opinions of Tuesday, 27 December 2016

Columnist: Gyamerah, Michael

How Judges help cause financial loss to the state

By Professor Michael Gyamerah,

Cypress , TX

I read the judgment of Justice Anthony Oppong at a Land Court in Accra that ordered the government to resume the payment of compensation to claimants in the Volta Basin Flooded Areas reported by the Daily Guide of December 23, 2016 with trepidation to say the least. According to the Daily Guide reporter, the Judge said:

"... that the government White Paper covering the Sole-Commissioners report had no binding power on the court in its current state. He said all the findings leading to the recommendation of the suspension of the rest of the payments assumed the character of a High Court judgement after six months of the release of the report, and said the recommendation could not be binding on the court to decide whether the payment should be resumed."

I am not a lawyer but this does not make sense. If "the findings [of Justice Apau's Judgment Debt Commission] leading to the recommendation of the suspension of the rest of the payments assumed the character of a High Court judgement after six months of the release of the report", why could the recommendation "not be binding on the Court [Justice Oppong's ] to decide whether the payment should be resumed?" Why could the Land Court [High Court] be ruling on the decision of another High Court [Justice Apau's JDC]? Is this not a decision that has to be decided by an Appeal Court?

Justice Oppong reportedly asked “How ... a negotiated settlement between the government and a powerless claimant [could] be said to be inordinate to the extent that the Sole-Commissioner can recommend that it should be stopped?”, and added that the negotiated settlement represents a valid contract between the government and the claimants. Justice Oppong in his infinite wisdom therefore ordered that “the negotiated settlement concluded in 2008 between the government and the plaintiffs under E.I. 98 of 1974 as amended by E.I. 67 of 1975 in pursuance of certain tranches of compensation payment which were made by the government to them was still valid and legally binding.”

Well, any Ghanaian who has read Justice Yaw Apau's Judgment Debt Commission Report which assumed the character of a High Court judgment six months after its release will throw up on hearing Justice Oppong's judgment. As Justice Apau's JDC Report clearly showed, in addition to other unlawful actions (see excepts of the Report below), the claimants and their Surveyor, and public servant collaborators presented documents for claims that were all fraudulent. Is Justice Oppong claiming that a contract based on fraudulent documentation is binding on the GoG and cannot be investigated to determine lawful claims and claimants? Isn't this the beginning of saddling the GoG with judgement debt?

Hopefully, the AG Department will appeal this decision immediately, and leave the incoming AG appointed by the NPP to see it through. It will be the first test of Nana Addo Dankwa Akufo Addo's commitment to fighting corruption and the looting of the public purse. It will be a real challenge to the NPP since the amount involved is twice that of Woyome and as Justice Apau's JDC noted on page 230 of the report:

"What is intriguing is that the claimants did not submit or attach any plan or plans to the claim they submitted to the Presidency [in 2008] on the alleged submerged lands before the approval by the Presidency. It was after the approval that they called on all those whose lands were submerged to submit plans of the said lands to the Land Valuation Division of the Lands Commission for the approved sum to be apportioned to them. "

The following are excerpts from Justice Apau's JDC Report:

iv) The testimony of the Director of Survey and Mapping This Commission invited the Director of Survey and Mapping at the Lands Commission to examine the site plans submitted by the claimants which formed the basis of the payments approved for the alleged acreages of their lands. His testimony was that all the site plans were not authentic as they did not comply with the law.

He told the Commission that though his Department was part of the Lands Commission, the plans that were attached to the applications for compensation were not brought to his department’s attention. He was emphatic that the plans should not have been accepted by the Land Valuation Division of the Lands Commission for approval since they did not conform to the requirements of the law.

After examining some of the plans, which had no dates and even signatures of the surveyors who allegedly made them, the Commissioner posed some questions to the Acting Director of Survey and Mapping for his response. The questions and answers were as follows: -

COMMISSIONER: Now, if these maps had passed through your end; do you think they would have passed the test of authentication?

ACTING DIRECTOR: No my Lord. In the first place, no licensed surveyor signed the thing so there is no way we would have even looked at it let alone the Director of Survey signing it.

COMMISSIONER: These were the original maps they presented to the Lands Commission and it is not that the original maps are somewhere and these are photocopies. Also, these maps were made several years after the floods, so if you are making a map after a whole land is flooded; how do you make it and what do you take into consideration because nobody has been here to tell us that he was on the field to check anything? What they are saying is that the maps were made based upon the land as described in the affidavit of the claimants. So somebody files an affidavit that his land is so and so then based upon that you draw a map without any physical inspection.

ACTING DIRECTOR: My Lord, I think we don't do maps that way

COMMISSIONER: So looking at the maps, can you determine the acreage because there is no legend?

ACTING DIRECTOR: The authenticity of the plans is doubtful; so I cannot even use it to determine whether what they have put on it is the correct thing or not.

COMMISSIONER: When we tried to find out how the maps were made, we were told the surveyors made the maps from a topographical sheet of the Volta area from the Land Valuation Office. So can you use a topographical sheet just like that to determine the size of somebodys farm land that has been submerged without doing physical inspection and other things? Does a topographical sheet show individual farm lands and other things?

ACTING DIRECTOR: My Lord, for the work that we do, a map can only be prepared when we have gone to the ground to do a physical survey so anything short of that for proprietary purposes cannot be said to be a map or a plan. You must visit the ground and do the real physical survey. Other maps can be prepared or derived from other maps but in respect of maps for proprietary purposes, you must visit the site.

COMMISSIONER: I want you to look at this plan for the Makango land. That is the plan they attached to their application for compensation and this is the valuation report on compulsory acquisition by the Volta River Authority of the Makango flooded area requested by Kullibuwura Kunumoto. They drew the map attached to the report out of this map and this map is in respect of Peki land but they used it to support land claims from the North that is Makango. How do you call that map; is it a topographical map? ACTING DIRECTOR: My Lord, this is a topographical map.

COMMISSIONER: From this topographical map, they reproduced this map but this topographical map shows Peki in the Volta Region area and not Makango in the North.

ACTING DIRECTOR: My Lord there is no way these plans can even pass for a purpose like this as I have already indicated. So many things are lacking and the simple fact that the land is in the North but it is being evidenced by a map of land in the Volta Region area leaves much to be desired so I will rest my case here.

v) Fraudulent Computation of the claims The fraudulent collaboration between Kodwo Abban and some senior officers at the Lands Commission and the Land Valuation Board in the claims in which Kodwo Abban & Co was described as the Surveyor and Valuer was exposed when some traditional rulers challenged in court the rationale behind the deduction of 10% from monies due them for payment to Kodwo Abban & Co.

Their contention was that they never engaged that company for any services so they did not understand why ten per centum (10%) of their compensation sums had been deducted and paid to Kodwo Abban & Co.

The fraudulent computation of the valuation of the said lands by Kodwo Abban & Co. seriously contravened existing legislations on the methods to be used in such exercise. While the defunct company used a flat rate of GHc200.00 per acre (which was said to be the value of an acre of land in the Volta Region around 2003-2005), Section 28 of the Volta River Development Act, 1961 [Act 46] provides that compensation for lands submerged under the Volta Lake Basin were to be assessed at the market value of land in the area as on March 6, 1957. That law has not been amended.

Even if the compensation is to be calculated under the provisions of the State Lands Act, 1962 [Act 125], which was the acquisition Instrument, what it says is that compensation is to be assessed at the market value of the land as on the date of acquisition. Though the lands in question were inundated by 1965, the instrument that legally acquired them; i.e. State Lands (Volta River Flooded Area) Instrument *E.I.98+” was passed in 1974. It was later amended by the State Lands (Volta River Flooded Area) (Amendment) Instrument, 1975 E.I. 67+. This means that at worst, the compensation assessment should have been based on the market value of those lands as at 1974/75 but not 2005.

vi) Non-Compliance with Article 267 of the 1992 Constitution Another important point that this Commission would like to stress is that, while some of the lands in question belonged to families, a lot of them too belonged to Stools and Skins.

Unfortunately, compensation received was not disbursed in accordance with the 1992 Constitutional Provisions which require that such payments should be routed through the Office of the Administrator of Stool Lands to be shared as provided under the Constitution and the Act establishing the Office of the Administrator of Stool Lands.

Instead of abiding by the Constitutional Provisions as provided under Article 267 of the 1992 Constitution, 10% of the claims were paid to Messrs Kodwo Abban & Co. Since the company was defunct at the time, the monies were paid to Mr. Kodwo Abban personally. Mr. Kodwo Abban too was very old and visually impaired so according to his Principal Technical Officer Mr. Samuel Apoh Kuma who virtually did everything in the name of the company in concert with the Land Valuation Division of the Lands Commission; all the monies were received by Mr. Kodwo Abban’s wife Mrs. Abban.

vii) The Volta River Re-imbursement Fund Another 15% of the total claims paid were fraudulently allocated to a fictitious fund by name “Volta River Re-imbursement Fund”. This Fund was established with the objective; “…to facilitate and procure an early, expeditious and timely release and payment by Government of Ghana of the agreed tranches of compensation

Investigations revealed that it was the Omanhene of Krachi Traditional area, Krachiwura Nana Mprah Besemuna III who led a group of claimants to form the Fund. Nana Mprah Besemuna III (also known as Joe Como Mprah) who is a retired Commissioner of Police (CoP) assumed the Chairmanship of the Fund as well as the principal signatory to the Bank Accounts of the Fund. Incidentally, Nana Mprah told the Commission that he was not a direct beneficiary of the compensation payments since he was not one of the claimants as such. Evidence before the Commission, however, showed that he has benefitted from the compensation payments more than any of the claimants from the Volta enclave has. He deducted 15% from the monies received by all the claimants from his Traditional area as their Omanhene, aside of the 15% deducted and paid into the Volta River Re-imbursement Fund, which is under his direct tutelage.

Available records also show that the Fund has not been duly registered at the Registrar Generals Department. When this Commission requested him to submit a statement of account of the Fund showing how the monies lodged in the fund were disbursed, he failed to do so. He told the Commission that he was only accountable to the Fund members. Meanwhile, this Chief has recently been appointed as a member of the Board of Directors of the Volta River Authority (VRA) by Government.

viii) Non-Payment of Tax The fact is that the Audit Department of the Ministry of Finance and Economic Planning acted negligently and carelessly by failing to undertake proper due diligence to ascertain the authenticity of the claim of GHc198 million submitted for payment even though data presented by the Lands Department showed patent discrepancies.

Quite apart from that, the Ministry of Finance and the Land Valuation Division of the Lands Commission again failed to deduct withholding tax from monies paid to Messrs. Kodwo Abban & Co. Out of the total sum of Seventy-one million Ghana cedis (GHc71 million) paid so far to the claimants, Kojo Abban and his wife, using the name of a defunct company, have been paid over Five million Ghana cedis (GHc5 million) without paying any tax on same.

At present the amount left to be paid by Government as arranged between Government and the leadership of the claimants in 2008 is Sixty-seven million Ghana cedis (GHc67 million). While this Commission was inquiring into the payments, the Ministry of Finance attempted to pay portions of this amount to the claimants. The Commission quickly wrote to the Ministry of Finance to place an embargo on further payments pending Government’s reaction to the Commissions report.


(a) Statutory Provisions to be complied with

Officials of the Lands Commission have shown by their attitude that they do not appreciate the Constitutional and other statutory mandates required of them in carrying out in-depth investigations into claims but endorse whatever claims are placed before them for reasons best known to them. It is surprising that the Survey and Mapping Division of the Lands Commission was not brought into the picture to vet the various site plans claimants submitted in support of their applications to verify their authenticity. There was indubitable evidence before this Commission that most of the site plans with the acreages stated thereon that were submitted to the Lands Valuation Division of the Lands Commission as representing the alleged submerged lands were imagined and conflicting.

At the time the late Nana Asetena Mensah aka Mr. B. K. Mensah (a former Member of Parliament of the Kete-Krachi area) and a few opinion leaders championed the compensation claims at the Presidency in 2004, majority of, if not all the claimants, did not have any site plans of their alleged flooded lands. It was after the Government had been convinced to give approval to the claims that the various families and stools said to be the owners of the flooded lands were invited to bring site plans for the disbursement of the monies. Most of the site plans were therefore made in 2005 as expressly stated by the claimants themselves. This brought about disputes among the claimants, which they had to resolve by doing some additions and subtractions of the acreages some of them had submitted, to make room for others who came late and had not been catered for. It is important to note that any evaluation on compensation claims must take into account all the relevant statutory laws that had been enacted to establish the parameters within which the land acquisition took place.

(c) Ghana Institute of Surveyors The Ghana Institute of Surveyors and Valuers must be impressed upon to ensure that the names of members in good standing are published occasionally for public consumption. The Lands Valuation Division of the Lands Commission, which also greatly relies on such surveyors and valuers, must seek clearance from the Institute on Private Valuers before accepting valuation reports from them to avoid a situation like what happened in the Kodwo Abban case.

(d) Involvement of Public Officers in Illegal Acts Very senior officials from the Lands Commission have been identified to have collaborated with Mr. Kodwo Abban and his Technical Officer Samuel Apoh Kuma and some chiefs to falsify facts and figures to prepare illegal claims totalling GHc138 million out of which GHc71 million has been paid by Government.

A clear example of this is that Nana Otieku Amoani Asare who is the Chief or Omanhene of Apaaso, personally collected compensation claim in respect of an area called AHAMANDI. Witnesses from Apaaso who came to testify before the Commission told the Commission that there was no place in the area called Ahamandi. When Nana Otieku Amoani Asare was confronted over this, he told the Commission that it was his predecessor who submitted the application and that he was not the one who inserted the name Ahamandi. Meanwhile, it was he who collected the amount meant for the non-existent Ahamandi.

(e) Suspension of Further Payments of the Balance of GHc67 million The Commission’s investigations have elaborately shown that Kodwo Abban & Co did not follow legal process to arrive at the unit Market Replacement Value of an acre of land acquired by the State as a result of the flooding of the Volta Basin Area. Consequently, it is recommended that the Government would need to suspend any further payment out of the balance of GHc67 million till an in-depth investigation is carried out to establish the actual land size and the unit Market Replacement Value of an acre of land in the basin area as at 6th March 1957 as the law; (i.e. Act 46) has provided, or at best as at the time of the passage of E.I. 98 in 1974.

6.3 RECOMMENDATIONS SPECIFIC TO PAYMENTS MADE TO CLAIMANTS IN RESPECT OF (V.R.A.) AKOSOMBO FLOODED OR SUBMERGED LANDS i) Evidence received by the Commission on the above payments disclosed that the Krachiwura Nana Mprah Besemuna III, who told the Commission that he himself was not a direct beneficiary of the compensation payments since Krachi lands are not stool lands but family or clan lands, led some few chiefs and opinion leaders in the Volta Lake enclave, to establish a fund called The Volta River Re-imbursement Fund [Members of the Fund are Nana Mprah Besemuna III, C. Owusu Kontor, Nana Diawuo Bediako II, Nana Kwabena Akuamoah II, Nana Otieku Amoani Asare III, Osman Abdulai, G.S.K Sasu, Col. Alex Antwi, DSP Nicholas addo, Prof. Ofori Danson, Nana Gyamfi John].The principal objective in creating the Fund was to raise monies to be used; “to facilitate and procure an early, expeditious and timely release and payment by Government of Ghana of the agreed tranches of compensation”. What this meant, Nana Krachiwura and his cohorts could not tell the Commission.

Fifteen per cent (15%) of all compensation payments made by Government to claimants was deducted and lodged into this Fund. Krachiwura assumed the Chairmanship of the Fund though as indicated supra, he himself was neither a claimant nor a beneficiary of the compensation payments. The operators of this Fund and signatories to the account were: Krachiwura Nana Mprah Besemuna III, Nana Diawuo Bediako II and G.S.K. Sasu. Evidence however shows that it is the Krachiwura Nana Mprah Besemuna and Nana Diawuo Bediako who have been the only signatories of all cheques issued for withdrawals from this fund.

Petitions received by the Commission from some of the people who should have benefitted from the payments but did not, indicate that the second signatory Nana Diawuo Bediako had been destooled and was no more a chief, though he continued to partner the Krachiwura to operate the Fund. It was the Krachiwura who wrote to the Lands Commission to make this 15% deduction from the cash to be received from the Ministry of Finance for the compensation payments. All these deductions were lodged into this Fund controlled by the Krachiwura and Nana Diawuo Bediako.

Interestingly, all the claimants from the Krachi Traditional Area who appeared before the Commission told the Commission that aside of these deductions, Nana Krachiwura again deducted 15% of the remaining amounts received by all the claimant/beneficiaries from his traditional area for himself as the Paramount Chief of the Traditional Area.

A total of GHc8, 465,681.26 out of the sum of GHc71 million already paid by the State to all claimants in the Volta Lakebed enclave has been paid into the Volta River Re-imbursement Fund under the control of Nana Krachiwura. When this Commission requested Nana Krachiwura to brief it on how monies in the Fund had been disbursed, he told the Commission that he could not submit a statement on the disbursement to the Commission as he was only accountable to the owners of the Fund. This was contained in a memo written on his behalf by his lawyer Mr. Kwame Yankyerah.

Meanwhile, majority of the contributors to the Fund told the Commission that they did not know how monies in the Fund were being disbursed. Nana Krachiwura explained in the memo or letter that the amount left in the fund was about GHc400, 000.00, meaning, he and his small group had disbursed over GHc8 million of the fund within a period of less than two years. He claimed the monies were used to facilitate the payments made so far including legal fees paid to their lawyers, etc.

Incidentally, evidence before the Commission shows that no lawyers were involved in facilitating the payment of the claims. The one who facilitated the payment of the claims was one Kojo Abban who had a defunct company by name “KOJO ABBAN & Co” as at the time he was fronting the claimants for the said payments. This Kojo Abban entered into an agreement with the Krachiwura and a few others to deduct 10% out of all the compensation payments to be made as his professional fees. That 10% deduction was different from the 15% deduction made into the Fund. So the big question is; who were the people who benefitted from the disbursement of the over GHc8 million?

This Commission managed to secure the Statement of Account of the Fund from Ecobank (Gh) Limited, Accra through the Bank of Ghana. The Statement shows that after the appearance of Nana Krachiwura and Nana Diawuo Bediako before the Commission in September 2014, the about Four hundred thousand Ghana cedis (GHc400, 000.00) which they claimed was the amount left in the accounts had been drained leaving just Eighty-one thousand, five hundred and forty-three Ghana cedis, thirty-three pesewas (GHc81, 543.33) in the said account as at 2nd January 2015. These monies were withdrawn between 23rd September 2014 and 2nd January 2015. What was the moneys withdrawn used for?

Also, evidence of cashed cheques produced by the Bank of Ghana has so far shown that Nana Mprah Besemuna, Nana Diawuo Bediako II, Nana Otieku Amoani Asare III and Mr. Samuel Kumah have been the main recipients and beneficiaries of moneys disbursed out of the Fund. The major beneficiaries were Nana Mprah Besemuna (Krachiwura) and Nana Diawuo Bediako II.

The big question is; were these latest withdrawals also made to facilitate the speedy payment of the compensations when the matter was being inquired into by this Commission? If not, then what was the purpose of the rapid withdrawals of the amounts involved within a period of less than four (4) months after their appearance before the Commission?

Since the deductions were made from compensation payments meant for landowners whose lands were allegedly submerged by the creation of the Akosombo Dam, the Commission recommends that Nana Krachiwura should be made to render accounts on how the Fund was disbursed in the wake of agitations and petitions received by the Commission from some of the claimants on how the whole compensation package was handled. This was because he failed to do so when this Commission requested him to furnish it with a breakdown of the disbursement while he continued to make withdrawals from the Fund without the knowledge of the beneficiaries of the Fund.

ii) The Commission recommends further that the Government must not pay the remaining GHc67 million out of the GHc138 million approved by the Government in 2008 for the said claimants until:

(a) proper investigations are conducted into the real value of the submerged lands as at the time of the flooding;

(b) the actual acreage of the submerged lands is determined with the assistance of the Volta River Authority, which was the body primarily charged with the payment of compensation before the Lands Department took over in the 1970s. The reason is that evidence before the Commission was indicative that the maps that the claimants presented and which the Lands Commission relied on as the basis for working out the payments were not genuine but imagined;

(c) the real or actual owners of the submerged lands who are entitled to compensation payments are properly identified.

iii) The Commission again recommends that Nana Otieku Amoani Asare who is the Chief of Apaaso, should be made to account to the State all monies he collected personally as compensation since he admitted before the Commission that the flooded lands in his traditional area are stool lands but not his personal lands. He should also be ordered to transfer monies he is holding in his personal account to the Administrator of Stool Lands for proper disbursement of the monies in compliance with Article 267 of the 1992 Constitution.

iv) The Commission recommends further that Mr. Kojo Abban and particularly his wife, who received all the payments made to the defunct company Kojo Abban & Co because of Mr. Abban’s advanced age and blindness, be made to pay tax and penalties on the monies she collected as the non-existent company’s professional fees for work allegedly done for and on behalf of the claimants. The total of monies in question is in the region of over GHc5 million for which not even a pesewa was paid as tax.

v) The several petitions that the Commission received during and even after its public sittings expressing disappointment over the way the whole exercise of the compensation payment was carried out suggested that everything was wrong with the said payments. The Lands Commission and its Valuation Division, must therefore be made to account for the shoddy work that it did by accepting faked and inadmissible maps that led to the payment of the total sum of GHc71 million mostly into wrong hands.

vi) The predecessor of the Economic and Organised Crime Office (EOCO); i.e. the Serious Fraud Office (SFO), is also partly to blame when it okayed the submitted claims without conducting any proper investigations into same. This misled Cabinet into believing that everything was in order when it gave approval for the payments to be made.

It is interesting to note that it was after the Cabinet approval that the so-called beneficiary claimants were made to submit site plans of their alleged submerged lands for the monies to be apportioned to them. Several of the plans or maps submitted overlapped since they were imagined, leading to deductions and additions of acreages and the eventual litigations that erupted as a result. Agitations continue to mount in the area because people have benefitted when they were not supposed to and others who should have benefitted got nothing.

In all about fourteen (14) petitions were received by the Commission after the close of the Commissions public sittings in November 2014 from groups, communities and other claimants from the Volta River Enclave protesting the way or manner in which the whole compensation package was handled.

The gravamen of the petitions was that some of the payments were made to wrong people while some of those entitled were not brought into the picture at all. There is therefore the strongest need for the Government to re-visit the issue involving compensation payments to all the claimants in the submerged area stretching from the Volta Region through Eastern, Ashanti, Brong-Ahafo to Makango in the Northern Region.

About the Author: The Authors interests are history of Ghana , economic history and political economy. He may be contacted at