NAMIH vs. GHASSOUB AND KUMASI MUNICIPAL COUNCIL (THIRD PARTY) [1962]DLHC1600

Date	1962-02-05
Suit No.
Citation No.	[1962]DLHC1600

APALOO J.

E. K. AMOAH FOR N. Y. B. ADADE FOR THE PLAINTIFF.

S. K. K. SOTOMEY FOR THE DEFENDANT.

F. K. MENSAH-BONSU FOR THE THIRD PARTY.

[1962]DLHC1600
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NAMIH <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">GHASSOUB AND KUMASI MUNICIPAL COUNCIL (THIRD PARTY) <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 1 GLR 54<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 5TH FEBRUARY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

E.
K. AMOAH FOR N. Y. B. ADADE FOR THE PLAINTIFF.<o:p></o:p>

S.
K. K. SOTOMEY FOR THE DEFENDANT.<o:p></o:p>

F.
K. MENSAH-BONSU FOR THE THIRD PARTY.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 6.0pt 0in">

APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 of Lands acting on behalf of the
government of the Gold Coast granted the plaintiff in conjunction with two
others exclusive right of way over the said lane. The said deed also granted
Philip Bardawil, who is said to be the predecessor in title of the aforesaid A.
Chedid, licence to erect gates at Guggisberg Road and Lebanon Street ends of
the said lane subject to certain conditions. The licence was said to be
revocable by the government at anytime without notice. Mr. A.W. Vanderpuye, who
gave evidence on behalf of the Commissioner of Lands testified that that
licence is still in force and has not been revoked. That licence was admitted
in evidence without objection and marked exhibit A. Mr. Obuobisa, the town
planning officer, tendered in evidence a sketch plan of the area showing the
lane in dispute. This was admitted in evidence without objection as exhibit 1.
With the consent of counsel, I viewed the area and was shown the lane in the
presence of the parties and counsel on the 26th of January, 1962.<o:p></o:p><o:p>&nbsp;</o:p>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 and also disabled him from opening two windows of
his store which open on to the lane. He said he was deprived of right of light.
At the request of the town clerk, Mr. J.I. Adubofuor, the health superintendent
of the Kumasi Municipal Council, conducted an inspection of the area and
submitted a report which was tendered and admitted in evidence as exhibit 3.
That report, which substantially confirms the plaintiff’s complaint, said inter
alia “This building has cut off air entering into one store at No. O.T.B. 130”.
That report also stated that that lane provided an access road to Lebanon
Street but that it has now been permanently closed by the said building. I
found this to be so at my own inspection of the spot.<o:p></o:p><o:p>&nbsp;</o:p>The defendant by her defence substantially admits the plaintiff’s
claim save that she contends that the windows opening on to the lane have been
sealed off for many years. In addition, the defendant says the lane was
declared a sanitary lane and thus became vested in the Kumasi Municipal Council
by whose authority and consent she constructed the said building. Accordingly,
she sought and was on the 7th December, 1960, granted leave to issue third
party notice against the Kumasi Municipal Council. Against the council, the
defendant claims to be indemnified for any liability that may be found
established against her in this action. On being served with the third party
notice, the Kumasi Municipal Council entered an appearance and filed a defence
in which among other things, it disputed the plaintiff’s claim that he has
acquired an easement of light either by immemorial user or by virtue of the
Prescription Act, 1832.1(1) With regard to the right of way over the lane in
dispute, the third party claims that the control of the lane became vested in
itself on behalf of the Crown and that it revoked the plaintiff’s licence to
pass and repass over the lane without notice.<o:p></o:p>