GH - Agbosu and Others v. Kotey and Others

Wood JSC delivered the first judgment at the invitation of Kpegah JSC. In 1976 the first respondent-family purportedly, by means of a statutory declaration, registered in the name of the family a vast tract of land commonly known as Ashalley Botwe lands. Sixteen years later, attempts by the first to fifth appellants on the one hand, and the sixth appellant on the other hand (hereinafter referred to as the plaintiffs), by means of the same process, to register portions of those lands as belonging to their respective families, ie Agbosu Freeman and Nmai Dzorn, proved futile in view of the protests raised by the first respondent (hereinafter referred to as the first defendant).

Clearly dissatisfied with this turn of events, the plaintiffs instituted proceedings in the High Court in their

respective capacities as the head and principal elders of their families, inter alia, for the following reliefs: “(a) that the first, second, third, fourth and.fifth 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;

(b) an order of declaration of title in the sixth plaintiff family of all that piece or parcel of land containing an approximate area of 1.793.231 acres situate at Nmai Dzorn...;

(c) in the alternative, cancellation or expunging from the records of the Lands Commission Secretariat, a statutory declaration of 4 May 1976, stamped as AC 435/76...; and

(d) injunction restraining the defendants themselves, and persons deriving title from any one of them from interfering with the plaintiffs’ right of ownership and enjoyment of the land.”

Aside from granting the principal relief sought, the trial judge

[p.695] of [2003-2005] 1 GLR 685

additionally ordered the second respondent (hereinafter referred to as the second defendant), 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 first and second defendants, however, successfully appealed to the Court of Appeal against this decision. 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.

Issues of lack of capacity of the plaintiffs to bring action

Ground (c) of the plaintiffs’ grounds of appeal reads:

“In holding that the plaintiffs have no