DAVID TORKORNOO vs. THE CHIEF EXECUTIVE& GEORGE YAO BOTCHWAY [2008]DLCA6717

Date	2008-03-20
Suit No.	H1/119/06
Citation No.	[2008]DLCA6717

MRS. ABBAN JA [PRESIDING]

KANYOKE JA

BAFFOE-BONNIE JA

MR. D.K. AMELEY FOR THE PLAINTIFF/RESPONDENT.

MR. KWABENA NYANOR FOR 1ST DEFENDANT/RESPONDENT.

MR. OSAFO BUABENG FOR DEFENDANT/APPELLANT.

[2008]DLCA6717
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													<main id="main" class="content" style="min-height: 60rem" >DAVID TORKORNOO<o:p></o:p>vs.<o:p></o:p>THE CHIEF EXECUTIVE&amp;
GEORGE YAO BOTCHWAY<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

H1/119/06&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 20TH MARCH, 2008<o:p></o:p>

MR.
OSAFO BUABENG FOR DEFENDANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>KANYOKE, JA <o:p></o:p>This
is an appeal by the 2nd defendant/appellant [hereinafter referred to as the
appellant] against the judgment of the High Court, Tema dated the 31st day of
July 2002, in which it was adjudged inter alia that one Madam Teresia Tamakloe
is the owner of Plot No F. 50 Tema.&nbsp; The
appellant being aggrieved by that judgment filed an appeal against the said
judgment on the 1st day of October 2002 on seven grounds of appeal.&nbsp; However on the 15th January 2007, in
pursuance of leave granted by this court the appellant filed three additional
grounds of appeal.&nbsp; But in his written
address filed on the 20th February 2007 learned counsel for the appellant
argued only the additional grounds of appeal and abandoned the original grounds
of appeal.&nbsp; The additional grounds of
appeal read as follows: <o:p></o:p>“(1)&nbsp;
The learned trial judge erred in failing to consider the lack of
capacity on the part of the plaintiff to commence the action. <o:p></o:p>(2)&nbsp;
The learned trial judge erred in relying on the report tendered in
evidence as Exhibit C1 in arriving at her conclusion of the matter. <o:p></o:p>(3)&nbsp;&nbsp;
The judgment is against the weight of evidence.”<o:p></o:p>I
shall return to these grounds of appeal later on in the judgment but for the
mean time the facts of the case culminating in the commencement of the action
and this appeal:&nbsp; <o:p></o:p>On
the 16th day of December 1974 one Madam Teresia Tamakloe was allocated Plot No.E.
150 now known as Plot No. F. 50 by the Tema Development Corporation (TDC).&nbsp; Before then the Ashiaman Mantse had in
December 1974 executed a document&nbsp;
[Exhibit B] in respect of the disputed plot in favour of Madam Teresia
Tamakloe.&nbsp; Exhibit B was endorsed by the
Paramount Chief of Tema.&nbsp; <o:p></o:p>On
the basis of Exhibit B the T.D.C. on 25th September 1975 by a letter [Exhibit
C] dated 29th September 1975 offered to grant a lease of the said Plot to Madam
Tamakloe on conditions for a term of sixty years renewalable for another thirty
[30] years.&nbsp; On 12th November 1975 Madam
Tamakloe wrote a letter [Exhibit G] accepting the offer for the Lease on the
prescribed conditions and terms.&nbsp; It is
averred that after meeting all the conditions in the offer letter Madam Teresia
Tamakloe took physical possession of the disputed plot by not only obtaining a
building permit [Exhibit H] but also causing to be deposited on the said plot
two trips of sand, four trips of stones and 800 4” blocks.&nbsp; She also cleared the plot and excavated and
erected a cement platform for the construction works. <o:p></o:p>Madam
Tamakloe seems not to have proceeded to commence the building immediately:&nbsp; However some where in 1991 she discovered
that the appellant had trespassed onto the plot, destroyed the excavations, and
the platform and started to build and continued to build to completion a
chamber and a hall which he rented out to a tenant.&nbsp; The appellant also erected a kiosk on Madam
Tamakloe’s platform and also rented it out to a tenant.&nbsp; When Madam Tamakloe reported the matter to
the Police and the T.D.C. the latter appeared to have leaned in favour of the
appellant.&nbsp; She therefore decided to
resort to the law court for redress.&nbsp; She
accordingly prepared and executed a Power of Attorney [Exhibit A] dated 15th
January 1992 because of old age and infirmity of body, authorizing and
appointing one David Torkornoo, to among other things” institute any action for
her and in her name and for her benefit in respect of any issue or matter which
affects my interest in the said land” [i.e Plot F. 50, Tema]. <o:p></o:p>Consequently
on the 5th day of May 1993, Mr. David Torkonno issued a writ of summons in his
own name instead of in the name of Madam Teresia Tamakloe as instructed and
directed in exhibit A, seeking the following reliefs against the 1st defendant
[hereinafter referred to as the defendant] and the appellant: <o:p></o:p>“(1)&nbsp;
A declaration that the Plot No. F. 50 is the bona fide property of the
plaintiff by reason of the allocation by Tema Traditional Authority as
confirmed by a lease from Tema Development Corporation which lease was
concurred by the Tema Metropolitan Assembly. <o:p></o:p>(2)&nbsp;&nbsp;
An order of ejectment of 2nd defendant and his privies from the said
Plot No. F. 50. <o:p></o:p>(3)&nbsp;
Recovery of possession. <o:p></o:p>(4)&nbsp;
An order directing the 1st defendant to do all acts and execute all
necessary documents in favour of plaintiff to ensure her quiet enjoyment of her
property. <o:p></o:p>(5)&nbsp;
Perpetual injunction. <o:p></o:p>