ADJETEY AGBOSU & 5 ORS. vs. EBENEZER NIKOI KOTEY & 2 ORS. [2004]DLSC6129

Date	2004-05-05
Suit No.	CIVIL APPEAL NO. 24/2002
Citation No.	[2004]DLSC6129

KPEGAH J.S.C. (PRESIDING)

MRS. WOOD J.S.C.

BROBBEY J.S.C.

DR. TWUM J.S.C.

DR. DATE-BAH J.S.C.

MR. IVAN QUANSAH FOR 1ST 2ND 3RD 4TH AND 5TH APPELLANTS

MR. D.O. LAMPTEY FOR THE 6TH APPELLANT

MR. G.O. LINDSAY FOR RESPONDENT

[2004]DLSC6129
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													<main id="main" class="content" style="min-height: 60rem" >ADJETEY AGBOSU &amp; 5 ORS.<o:p></o:p>{PLAINTIFFS/RESPONDENTS/
APPELLANTS}<o:p></o:p>vs.<o:p></o:p>EBENEZER NIKOI KOTEY &amp; 2 ORS.<o:p></o:p>{DEFENDANTS/APPELLANTS/
APPELLANTS}<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL
APPEAL NO. 24/2002&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH MAY, 2004<o:p></o:p>

MR.
G.O. LINDSAY FOR RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MRS.
WOOD J.S.C. <o:p></o:p>In 1976, the 1st
respondent family purportedly, by means of a statutory declaration, registered
in themselves, a vast tract of land commonly known as Ashalley Botwe lands.
Sixteen years later, attempts by the 1st -5th appellants on the one hand, and
the 6th appellant on the other, by means of the same process, to register
portions of those lands as belonging to their respective families i.e. Agbosu
Freeman and Nmai Dzoru proved futile in view of protests raised by the 1st
respondent. <o:p></o:p>Clearly dissatisfied with
this turn of events, the appellants instituted proceedings in the High Court in
their respective capacities as the heads and principal elders of their families
inter alia for the following reliefs: <o:p></o:p>"(a) that the 1st, 2nd, 3rd, 4th
and 5th plaintiffs are the owners in possession of all that piece and parcel of
land described in their statement of claim and in the attached schedule marked
"A". <o:p></o:p>(b)&nbsp;
an order of declaration of title in the 6th plaintiff family of all that
piece or parcel of land containing an approximate area of 1.793.231 acres
situate at Nmai Dzorn... <o:p></o:p>(c) In the alternative, cancellation
or expunging from the records of the Land Commission Secretariat, a Statutory
Declaration of 4th May 1976, stamped as AC 435/76... <o:p></o:p>(d) Injunction". <o:p></o:p>Injunction restraining the
1st defendant themselves, persons deriving title from any one of them from
interfering with the plaintiffs right of ownership and enjoyment of the
land." <o:p></o:p>Aside from granting the
principal relief sought, the trial judge additionally ordered the 2nd
respondent, who is the head of the Ashalley Botwe stool family "to take
steps to annul all documents which derive their title from the registered
document 671/77" and for the holders to surrender their documents for
cancellation." The 1st and 2nd respondents however successfully appealed
against this decision and obtained a judgment in their favour. It is against
this decision that this appeal has been lodged, on a number of grounds which I
propose to deal with in the same order that they were argued. <o:p></o:p>THE
CASE OF THE 1ST - 5TH APPELLANTS <o:p></o:p>CAPACITY
<o:p></o:p>Ground C reads: <o:p></o:p>"In holding that the plaintiffs
have no capacity to bring the action for and on behalf of the Adjetey Agbosu
and Freeman family, the Court of Appeal failed to take into account the recent
development in the suits initiated on behalf of the family." <o:p></o:p>It was submitted in
respect of this ground that since the evidence of the family was that the suit
was initiated by the five appellants who are elders of the family, to protect
and preserve the family property, and to save it from being lost, the courts
conclusion that they lacked capacity to sue was clearly erroneous. It was urged
that in all actions brought by non-heads or elders of family for the sole
purpose of protecting or preserving family property, it was sufficient if the
plaintiff(s)/claimant(s) proved that: <o:p></o:p>(a)
he belongs to the family, <o:p></o:p>(b)
the action is brought in protection and preservation of the said family
property. <o:p></o:p>The contention therefore
was that since in each respective case, the appellants succeeded in proving
these essential matters, they succeded in proving the capacities in which they
instituted their claims. The principal reason why the appellate court found
against them was that, although "They claimed to be principal elders of
the family, yet none of them entered the witness box to give evidence to that
effect. They failed to adduce evidence that they were principal elders of the
Adjetey Agbosu family of Sraha. The plaintiffs did not testify that there is a
head of family who for good cause has refused to act and if they did not act
the property was in jeopardy of being lost to the family". <o:p></o:p>The court advanced yet
another reason, but it seems to me that it did not inform the courts decisio</main>