REPUBLIC v REGIONAL LANDS OFFICER, HO; EX PARTE KLUDZE

Acquah JA. This is an application seeking the protection of this court under article 33(1) of the Constitution, 1992 to compel the respondent to register the title deeds of the applicant.

The applicant is a member of the Amega Edze family of Gbi-Kpeme, Hohoe. The said family gifted a portion of its Klakame family’s land to the applicant and executed the relevant deed to evidence the transaction. He presented the documents as required by law, to the respondent for registration, but the latter refused, stating that - in line with the executive secretary’s circular letter No 720/V Vol dated 17 June 1995 your document cannot be processed as a freehold but rather as a leasehold. Your document is hereby returned, please.”

Naturally aggrieved by the above response, the applicant filed the instant application for mandamus to have his document registered as freehold. Moving his application personally, Prof Kludze reiterated the gravamen of his complaint as sworn to in paragraphs (9) and (12) of his affidavit as follows:

(9) That I am advised and verily believe same to be true that article 267(5) of the Constitution, 1992 which prohibits the creation of freehold interests in stool lands, does not apply to family lands, since family lands are not stool lands

(12) That I believe that in any event, the said circular letter is ineffectual to the extent of its repugnancy to articles 18 and 20 of the Constitution, 1992 because the effect of the circular letter would be the curtailment of private property rights.”

The applicant contended that violation of articles 18 and 20 of the Constitution, 1992 are justiciable at the High Courts. Hence his resort to this court for the relief he seeks. He argues that as a member of this family, he has an inherent right to the use and enjoyment of his family’s property and to be granted any interest in a portion thereof by the head and principal members of his family. This right has not been taken away by the Constitution, 1992 nor any other enactment. He argues therefore that the circular seeking to curtail this property right, is not only devoid of any legal foundation but repugnant to The property rights of the [pg1032] individual as guaranteed in articles 18 and 36(7) of the Constitution,1992.

The respondent, represented by the principal state attorney, filed no affidavit in opposition to the application. Indeed, at the hearing, the learned principal state attorney honourably conceded that mandamus