NAMIH vs. GHASSOUB AND KUMASI MUNICIPAL COUNCIL (THIRD PARTY)

The plaintiff, lessee of Plot No. O.T.B. 130, Old Town Section B, Kumasi, sued for a mandatory injunction to compel the defendant to remove a store erected on a lane between Plots O.T.B. 130 and 489, and for a perpetual injunction restraining interference with his right of way and light over that lane. By deed dated 1 October 1938 (exhibit A), the Commissioner of Lands had granted the plaintiff and two others an exclusive right of way over the lane, while granting Bardawil a revocable licence to erect gates at both ends. The defendant constructed a four-walled store on the lane in about February or March 1960, thereby blocking access from Guggisberg Road to Lebanon Street and obstructing air and light to the plaintiff’s premises. The defendant contended that the lane had become a sanitary lane vested in the Kumasi Municipal Council and that she built with its authority. The court found that the plaintiff’s licence of way under exhibit A still subsisted, that the defendant had no title or valid grant over the lane, and that her structure constituted a substantial nuisance and wrongful interference with the plaintiff’s subsisting rights. Portion of judgment relied on: “Sometime about February or March, 1960, the defendant constructed on this lane a four-walled store thus completely blocking the said lane... The plaintiff complains that that building deprived him of the right of way granted to him by the deed exhibit A...”

JUDGMENT OF APALOO J. By his writ issued out of this court on the 28th of May, 1960, the plaintiff claims against the defendant a mandatory injunction to pull down all that store constructed on the lane between Plots O.T.B.130 and 489 and a perpetual injunction to restrain the defendant and her agents from trespassing or in any manner interfering with the plaintiff’s right of way and light over the said lane. The main facts of this case are not in dispute. The plaintiff is the lessee of the premises situate and known as plot No. 130, Old Town Section B, Kumasi. That building is a shop and opens on to Lebanon Street. Adjacent to the plaintiff’s said building, is another building known as plot 489 O.T.B., the title of which is derivatively vested in Mr. A. Chedid. The latter sued jointly with the plaintiff but has since discontinued. Between these two buildings, is a lane which runs from Guggisberg Road to Lebanon Street. By a deed dated the 1st of October, 1938, the Commissioner...