NANA ASARE ASSIEDU (KOTWI HENE) vs KWABENA MENSAH

Howsoever, one looks at this suit, the only basis for the institution of same before this Court has to do with, who has authority to alienate Kotwi Stool Lands as between the Plaintiff and the Defendant.

This is easy to glean from the second substantive relief of the Plaintiff. That relief is for a declaration that, it is he, the Plaintiff, as the occupant of Kotwi Stool, who is the only person, clothed with power and authority to demarcate and alienate Kotwi Stool Lands or portions thereof.

It is also gleaned from paragraph 11 of the Statement of Defence of the Defendant when he also says that, since the destoolment of the Plaintiff as Kotwihene, it is he as Abusuapanyin of the Kotwi Stool who has taken over the affairs of the Kotwi Stool.

Against this observation, the Issues filed and set down for determination, can now be seen, not to be germane to the resolution of this suit. They are:

1. Whether or not the Plaintiff is the caretaker chief of Kotwi Stool Land.

2. Whether or not the 1st Defendant has been deposed as the Head of Family of the Kotwi Stool.

3. Whether or not the agreement to demarcate Kotwi Stool Land and to have layout prepared was entered into by the Plaintiff and Mr. Anfo.

4. Whether or not allocation of Kotwi Stool land is done by the Kotwi Stool through the Stool Occupant.

5. Whether or not allocation of Kotwi Stool Land is done by the Asramponhene.

The Court therefore substitutes the above Issues set down but found in the

Judgment writing not to be relevant, for the issue of which of the parties before this Court can alienate Kotwi Stool Lands.

This step taken by this Court finds support in the case of Mohammed Wolley v Salami Fattal [2013 – 2014] 2 SCGLR, 1070 where the Supreme Court speaking through, Her Ladyship Georgina Woode (Mrs.) JSC (as she then was) held:

“…admittedly, it is indeed sound basic learning that, Courts are not tied down to only the issues identified and agreed upon by the parties at Pre-Trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the Court to receive evidence and adjudicate on it.

The converse is equally true. If a crucial issue is left out but emanates at the trial from either the pleading or the evidence, the Court cannot refuse to address it on the ground that, it is not included in the agreed issues.”

From the pleadings of the par