KOFI APPIAGYEI vs. ABENA ANOKYEWAA AND OTHER. [2010]DLHC8515

Date	2010-07-16
Suit No.	SUIT NO.LS223/02
Citation No.	[2010]DLHC8515

HIS LORDSHIP JUSTICE JACOB B. BOON

SIR DENNIS ADJEI FOR THE PLAINTIFF

ADUMOA-BOSMAN FOR THE FIRST DEFENDANT

[2010]DLHC8515
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													<main id="main" class="content" style="min-height: 60rem" >KOFI APPIAGYEI<o:p></o:p>vs.<o:p></o:p>ABENA
ANOKYEWAA AND OTHER.<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO.LS223/02&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
16TH JULY, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SIR
DENNIS ADJEI FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

ADUMOA-BOSMAN
FOR THE FIRST DEFENDANT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>On 9th July, 2002, the plaintiff, then ordinarily
resident in Canada, instituted an action against the defendants jointly and
severally for a declaration that ownership of two building plots, Numbers 29
Block P and 18 Block P both situated at North Kwadaso – Kumasi is vested in
him, (b) recovery of possession of the plots, (c) damages for trespass and (d)
an order of perpetual injunction to restrain the defendants, their agents,
servants, and persons claiming through them from interfering with the disputed
properties.<o:p></o:p><o:p>&nbsp;</o:p>During the pendency of the suit, the plaintiff and the second
defendant reached an amicable out of court settlement in respect of plot No.
29, Block P. Terms of settlement were filed in the Registry of this court on 19th
April, 2004, and on the same day a consent judgment was duly entered by the
court. This judgment, therefore, is in respect of plot No. 18 Block P, North
Kwadaso Kumasi and the first defendant only.<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff’s case is that he acquired the plots from the
Asaman Kanin family, the caretaker family of the lands in 1982. He asserted that
the then head of family, Obaapanyin Yaa Tiwaah, with the consent of the family
allocated the plots to him. He also asserted that allocation notes issued to him
by the Asaman Kanin Family were thumbprinted by the head of family already
referred to, and one Adwoa Adowaa, a member of the family, and the notes were later
endorsed by the then Asantehene Otumfuo Opoku Ware II. Plaintiff averred that
the allocation notes so endorsed were submitted to the Lands Department to be
processed in his favour. Plaintiff then applied for a building permit, and
whilst waiting for it to be issued, the defendants trespassed unto the plots,
feverishly developing them despite several verbal warnings and letters to them.
According to the plaintiff, the defendants claimed title to the plots through
Adwoa Adowaa, who together with the then head of Asaman Kanin Family signed the
allocation notes as regards the plots and in his favour. Plaintiff asserts that
Adwoa Adowaa is an ordinary member of the family but has described and
presented herself as the head inspite of a Kumasi High Court decision that
ruled that she is not the head of the Asaman Kanin Family.<o:p></o:p><o:p>&nbsp;</o:p>In the defence filed on 26th June, 2008 for
both defendants, it was asserted that Adwoa Adowaa through whom the defendants
acquired the disputed properties, is much more than an ordinary member of the
family as alleged by the plaintiff, and in view of this, had appealed against
the judgment that ruled that she was not the head of family. However, there is
no evidence that the judgment already referred to has been set aside on appeal.
It therefore remains binding on the parties to it including the said Adwoa
Adowaa. It is further the case of the defendants that the plaintiff had
breached a fundamental condition contained in the allocation notes that
required him to develop the disputed properties within two years from the date
of allocation.<o:p></o:p><o:p>&nbsp;</o:p>Having thus breached this condition, according to the defendants’
statement of defence, the plaintiff had no title to the properties as it has
become void, and he possessed neither the locus standi nor the right of action
to institute the suit against the defendants.<o:p></o:p><o:p>&nbsp;</o:p>A long list of issues was set down for trial. These are:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0cm;margin-right:0cm;
margin-bottom:0cm;margin-left:1.0cm;margin-bottom:.0001pt;mso-add-space:auto;
text-align:justify;text-indent:0cm;mso-list:l0 level1 lfo1">(1)