AWURA AMA vs. MADAM YAA ANKRAH [2011]DLCA3074

Date	2011-10-28
Suit No.	SUIT NO. H1/51/2011
Citation No.	[2011]DLCA3074

MARIAMA OWUSU J.A. (PRESIDING)

FRANCIS KORBIEH J.A.

IRENE CHARITY DANQUAH J.A.

[2011]DLCA3074
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													<main id="main" class="content" style="min-height: 60rem" >AWURA AMA<o:p></o:p>vs.<o:p></o:p>MADAM YAA ANKRAH<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p>SUIT
NO. H1/51/2011&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;28TH OCTOBER, 2011<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL:<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA OWUSU J.A. (PRESIDING), FRANCIS
KORBIEH J.A., IRENE CHARITY DANQUAH J.A. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
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</div>MARIAMA
OWUSU J.A.<o:p></o:p>The
plaintiff/respondent in this case issued this writ of summons claiming the
following reliefs;<o:p></o:p>[a]
declaration of title to the property known as Plot No. 34 Blk A situate and being
at Adesina near Antoa/Ashanti is vested in the plaintiff and her family.<o:p></o:p>[b]
Declaration that the purported sale of the said property by 1st
defendant to 2nd defendant is null and void.<o:p></o:p>[c]
Damages for Trespass.<o:p></o:p>[d]
An order of perpetual injunction restraining the 2nd defendant, her
servants, agents, personal representatives and assigns from entering, carrying
on or continuing any building, structure, edifice on the said plot or in any
way laying claim to or interfering with the plaintiff’s quiet enjoyment of the
said property.<o:p></o:p>[e]
Cost.<o:p></o:p>In
her 15 paragraph statement of claim, the plaintiff avers amongst other things
that, she is the customary successor of the late Obaapanin Akua Donkor and
brings the action for herself and on behalf of her said family. The plaintiff
continues that her mother, who died in October 1987, acquired a piece of land
from the Adesina stool about 40 years ago. She avers further that the family
gave 1st defendant money from the proceeds of the family’s cocoa
farm to start developing the land. That 1st defendant, accordingly,
built on the property to foundation level. He also bought sand, stones and red
soil for the project and deposited same on the land. The plaintiff avers that
the 1st defendant told the family he could no longer continue the
project for the family and that any family member, who gets money, could
continue the project for the family. 1st defendant further told the
family that nobody could take the land from the family because he had perfected
the family’s title to the land. It is the plaintiff’s case that without the
knowledge and consent and authorization of the family, the 1st
defendant has sold the property to the 2nd defendant. All efforts of
the plaintiff, to get the 2nd defendant to come for a refund of her
money, had proved futile. Instead, the latter has gone ahead to develop the
plot. Plaintiff concluded that, the purported sale of the land by the 1st
defendant to the 2nd defendant is null and void, as the former has no
capacity to sell the plot hence this action.<o:p></o:p>On
receipt of the plaintiff’s writ of summons and statement of claim the defendants
reacted by filing their respective defence. <o:p></o:p>The
1st defendant made a general admission of the plaintiff’s claim. <o:p></o:p>The
2nd defendant on her part denied plaintiff’s claim. In particular,
the 2nd defendant avers that, sometime in 1997, she had information
that the1st defendant who was a building contractor was selling the
disputed plot. The 2nd defendant avers further that she made
enquiries from the 1st defendant’s family members who confirmed that
1st defendant was selling the plot in issue. In addition, she made
enquiries from the Adesina Town Development Committee members who confirmed
from their records that the plot in dispute belonged to the 1st
defendant. Consequently, she bought the plot together with the sand and stones
from the 1st defendant without any hindrance from the plaintiff and
her family who were aware of the transaction. 2nd defendant
continues that the 1st defendant prepared a receipt evidencing the sale
and also gave her the site plan of the plot. Thereafter, she registered the
said plot with the Kwabre District Assembly on 23-12-1997 and was issued with a
receipt to that effect. The 2nd defendant concluded that, she is a
bona fide purchaser for value without notice of any person or persons’ title or
interest to the said plot. She therefore prays that the plaintiff’s action
should be dismissed.<o:p></o:p>See
paragraphs 1-14 of the 2nd defendant’s statement of defence filed on
the 4-3-05.<o:p></o:p>At
the close of pleadings the following issues were set down for the trial of the
suit.<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether the 1st defendant has
capacity to sell the land in dispute to the 2nd defendant.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;