SAMUEL OBLIE & ORS v. TETTEH LANCASTER
2016
SUPREME COURT
GHANA
CORAM
- YAW APPAU
- ANIN YEBOAH
- P. BAFFOE- BONNIE
- J. B. AKAMBA
- G. PWAMANG
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Evidence Law
2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In a dispute over land ownership between the Asua We Family and the Abentia We Family, the trial High Court awarded judgment to the defendant based on historical and consistent evidence of land possession via customary grant from the Kpobi We Family. The plaintiffs lost subsequent appeals in the Court of Appeal and Supreme Court. Key legal principles were reaffirmed, including the Head of Familys unique capacity to sue regarding family property, exceptions allowing family members to sue in special circumstances, and the critical role of continuous possession in establishing property claims.
JUDGMENT
YAW APPAU, JSC:
Under customary law, which is part of the common law of Ghana, it is axiomatic that it is the Head of Family who has capacity to sue and be sued in matters concerning family property. The only exceptions to this rule have been well-established in the cases of KWAN v NYIENI [1959] GLR 67 @ 68; AMPONSAH v KWATIA [1976] 2 GLR 189; YORMENU v AWUTE [1987] 1 GLR 9; IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & Others v KOTEY & Others [2003-2004] 1 SCGLR 420 @ 423; MANU v NSIAH [2005-2006] SCGLR 25 and IN RE NEEQUAYE (DECD); ADEE KOTEY v KOOTSO NEEQUAYE [2010] SCGLR 348.
This Court in the IN RE ASHALLEY BOTWE LANDS case cited (supra) explained the principle as follows: “the general rule recognised in Kwan v Nyieni, namely, that the head of family was the proper person to sue and be sued in respect of family property was not inflexible. There are situations or special circumstances or exceptions in which ordinary members of the family could in their own right sue to protect the family property, without having to prove that there was a head of family who was refusing to take action to preserve the family property. The special or exceptional circumstances include situations where: (a) a member of the family had been authorised by members of the family to sue; or (b) upon proof of necessity to sue”.
This case presents a disturbing picture of three brothers who decided to resort to the courts to protect a so-called family land but were not ad idem as to who out of the three was to represent them in the family suit. They therefore decided to initiate a joint action in their names; viz. Samuel Oblie (1st Plaintiff), Christopher Oblie (2nd Plaintiff) and Mensah Oblie (3rd Plaintiff).
Paragraphs 1, 2 and 3 of their Statement of Claim filed on 8/8/2001 read as follows:
“1. 1st Plaintiff is the Head of the Asua We Family of Oyarifa and La.
2. 2nd and 3rd Plaintiffs are principal members of the Asua We Family.
3. The Plaintiffs bring this action for themselves and on behalf of the Asua We Family.”
Though the 2nd and 3rd Plaintiffs admit that the 1st Plaintiff is the Head of their family, they all decided to join in the action as plaintiffs instead of allowing him alone to represent the family in the action. However, as time went by, one of them; i.e. Mensah Oblie who is the 3rd Plaintiff, dismantled the trinity and engaged the services of a separate lawyer to represent him alone in the same suit but based on the same pleadings f