AFUA OWURAKU vs. AMA AFRA [2010]DLHC7426

Date	2010-11-22
Suit No.	SUIT NO. E1/20/09
Citation No.	[2010]DLHC7426

HIS LORDSHIP JUSTICE G.S. SUURBAAREH

YAW OWUSU YIANOMA FOR THE PLAINTIFF.

FRANK NARTEY FOR THE DEFENDANT

[2010]DLHC7426
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													<main id="main" class="content" style="min-height: 60rem" >AFUA OWURAKU<o:p></o:p>vs.<o:p></o:p>AMA AFRA<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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NO. E1/20/09&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: 22ND NOVEMBER,
2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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YAW OWUSU YIANOMA FOR THE PLAINTIFF. <o:p></o:p>

FRANK NARTEY FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:&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; <o:p></o:p>HIS
LORDSHIP JUSTICE G.S. SUURBAAREH<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>The
Plaintiff instituted the present action in a representative capacity for
herself and on behalf of her three siblings, all children of Adwoa Bedua alias
Adwoa Sika. The claim, which is against the Defendant, is for a declaration of
title, damages for trespass and an order of ejection in respect of house No.
M/W 25 Mampong Akwapem. <o:p></o:p>According
to her pleadings, the Plaintiff traces her root of title to the disputed house
through her mother Adwoa Bedua alias Adwoa Sika who was gifted the house by her
father Aboa Kwadwo alias Dagadu. The Plaintiff then averred that her
grandmother Yaa Amoa, who was married to one Aboa Kwaku with whom she had nine
children including Ason Kwadwo, on his death remarried Aboa Kwadwo alias Dugadu
with whom she had Adwoa Bedua who was so named because she was the tenth child
of Yaa Amoa. The Plaintiff further averred in her pleadings that on the death
of Aboa Kwadwo alias Dagadu, her grandmother Yaa Amoa lived in the disputed
house whilst her mother Adwoa Bedua lived with her husband and that following
the death of Yaa Amoa the disputed property vested in Adwoa Bedua alias Adwoa
Sika as the only child of Aboa Kwadwo alias Dagadu. <o:p></o:p>The
Plaintiff also went on to aver how the Defendant, who was granted a license by
Adwoa Bedua alias Adwoa Sika to stay in the house, started to erect a room on
the land in 1992 following the death of Adwoa Bedua and for which she was
summoned before a panel of arbitrators who told her that she should complete
the house but that she was to have only a life interest in the development. She
went further to aver that upon the death of Kwaku Dartey, who initiated the
1992 arbitration, the Defendant commenced another development on the disputed
land in 2006 culminating in the present action. <o:p></o:p>According
to the Plaintiff, whilst she is a grand daughter of Yaa Amoa and Aboa Kwadwo
alias Dagadu, the Defendant is a great grand daughter of Yaa Amoa and Aboa
Kwaku. <o:p></o:p>The
Defendants, in reaction to the averments in the Plaintiff's pleadings, apart
from denying the Plaintiff's capacity and the fact of the disputed house being
vested in the Plaintiff and her siblings through succession, also denied being
a licensee in the house. <o:p></o:p>Whilst
admitting that she undertook some development on the disputed land, she
contended that the house was built by their common grandfather Aboa Kwadwo. She
also denied any marriage by Yaa Amoa to any other person apart from Aboa Kwadwo
and that all the ten children of Yaa Amoah were with Aboa Kwadwo, with Adwoa
Bedua being the tenth child hence the name Bedua and further that she only came
to be in-charge house because she survived the other nine siblings. <o:p></o:p>The
Defendant also denied that she and her father never lived in the disputed house
contending that they lived there any time they visited Mampong. She then went
on to aver about how she came to live in the disputed house in the 1970's and
that eventhough on the death of Adwoa Bedua in 1992 her attempt at development
was resisted, she denied that the arbitration decided that she was to have only
a life interest in her development. <o:p></o:p>Following
an amendment of her defence pursuant to leave granted in the course of the
trial, she contended that during the 1992 arbitration, a plan in the name of
Ansah Lartey and her mother was declared fictitious and handed over to the
abusuapanin and further that the management of the property was handed over to
one Obeng Yaw as the eldest male descendant of Aboa Kwadwo with instructions to
allow any true descendant of Aboa Kwadwo to develop any part thereof. In
conclusion, she denied any dispute in respect of the house going before any
other forum. <o:p></o:p>At
the close of pleadings issues were joined and as many as eight issues were set
out as issues for determination and were all adopted by the court as issues for
trial. As I come to consider the evidence, I however find that issue (c) as to
whether or not the disputed house was built by Aboa Kwadwo alias Dagadu is not
an issue as it is not in contention that the disputed house was built by Aboa
Kwadwo with the only difference being that, whilst the Plaintiff adds Dagadu as
an alias to the name this is not mentioned by the Defendant. <o:p></o:p>The
issues for determination therefore left are:— <o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;