Nii Abetia II v. Yao Tornu and 2 Ors

In this suit, which the Plaintiff in his capacity as the Mantse of Asofan, has initiated onhis own behalf and on behalf of the Nii Abetia Family of Asofan, the 2nd and 3rdDefendants have challenged the capacity of the Plaintiff to institute this action on thebasis that the land for which they have been sued is a government land but not familyland.

In paragraphs 5, 6, 7 and 8 of the 2nd and 3rd Defendants defence, it was pleaded asfollows: 5. In answer to paragraph 5 of the statement of claim, the 2nd and 3rd Defendants statethat a search conducted at Lands Commission in respect of the 3rd Defendant site Planreveals that the piece or parcel of land situate at Asofa is State Land acquired under anExecutive Instrument dated 12/5/1978 and the said Executive Instrument has not beenrevoked.

6. In further answer to paragraph 5 of the statement of claim, the 2nd and 3rd Defendantsstate that in view of the search results, from Lands Commission, the Plaintiff cannotclaim that his family owns the land described in the 3rd Defendants indenture.

7. The 2nd and 3rd Defendants avers that in view of the Executive Instrument thePlaintiffs family could not have given and or leased the land which they did not have orowned to the 1st Defendant.

8. The 2nd and 3rd Defendants state that as a result of the pleading in the precedingparagraphs the plaintiff does not have capacity to institute the instant action To these pleading, the Plaintiff admitted in paragraphs 5 and 6 of his reply that the landwas indeed compulsorily acquired but because they were not compensated his familywent into occupation and effective possession when the State failed to use the land for thepurpose for which it was compulsorily acquired.

That apart from the state under theacquisition instrument, no one else including 1st Defendant has a better Title to the land indispute than his family.

At the direction stage, the parties were asked to file submissions on the issue of capacity.

The Plaintiff did not file, but the 2nd and 3rd Defendant filed their submissions on theissue of capacity.

In the Plaintiffs pleading it was admitted that the land was compulsorily acquired by theGovernment.

The Instrument with which the Land was compulsorily acquired was (E. 1 82) The StateLands (Accra-Ofankor site for Residential Area) Instrument 1978. Section 1 (i) of thestate lands Act, 1962 Act 125 as amended says that ‘Where it appears to the President inthe Public interest so to do, the president may by execut