NUNEKPEKU AND OTHERS v. AMETEPE

JUDGMENT OF MILLS-ODOI J.S.C.

Mills Odoi J.S.C. delivered the judgment of the court. This is an appeal from the judgment of the High Court, Ho, dated 6 June 1961 in exercise of its jurisdiction as an appellate court from the judgment of the South Anlo Local Court A. The High Court allowed the appeal, and set aside the judgment of the local court which had given judgment for the plaintiffs who are now the appellants before this court.

It is the case for the plaintiffs that by a judgment of the Anlo Native Court A delivered on 24 August 1959, in an action brought by them against one Kwashie Bohlibo Akpalu, the first plaintiff was declared head, and the second and third plaintiffs were also declared principal members of the Agbeve family of Anloga and Woe and that it was in pursuance of that judgment and in their respective capacities that this action was brought against the defendant in the South Anlo Local Court A claiming:

"(a) recovery of possession of a portion of Bawe land;

(b) an order upon the defendant, his agents, servants and labourers to vacate any other portion of Agbeve family land known and called Bawe land, Aborme land and Aveglo land wrongfully and unlawfully occupied and/or cultivated by the defendant; and

(c) one hundred pounds (£G100) damages for wrongful occupation and possession of the said Agbeve family land."

They contended that the defendant is not a member of the Agbeve family and therefore he is not entitled to occupy any portion of Agbeve lands which comprise Bawe land, Aborme land and Aveglo land.

The case for the defendant on the other hand is that the land in dispute was cultivated by his grandfather, Agbeliti, who occupied it for many years; that upon Agbeliti's death members of the deceased's immediate family, namely, Kpoha and Kofi Ahli Agbeliti, remained in possession of the land, and that he (the defendant) is now in possession of the said land in his capacity as a member of the immediate family of Agbeliti. The defendant further contended that he is also a member of the Agbeve family and therefore entitled to occupy and cultivate Agbeve family lands.

The local court accepted the case of the plaintiffs and entered judgment for them in terms of their claim and awarded them £G50 [p.251] damages. The defendant appealed from that judgment to the High Court at Ho. The High Court allowed the defendant's appeal on two main grounds: (1) that the plaintiffs were not competent to bring this action against the defendant beca