DANIEL ELIAS WILLAIM JOSEPH vs. OKOMFO ANOKYE AMOAMPONG STOOL [2011]DLCA3116

Date	2011-07-29
Suit No.	CIVIL APPEAL NO.HI/54/2011
Citation No.	[2011]DLCA3116

JUSTICE MARIAMA OWUSU JA [PRESIDING]

JUSTICE FRANCIS G KORBIEH JA

JUSTICE IRENE C DANQUAH JA

KWASI AFRIFA ESQR. FOR PLAINTIFF/APPELLANT.

ASNTE KROABEA WITH MISS JUDY KANKAM FOR 1ST DEFT/RESP.

[2011]DLCA3116
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL ELIAS WILLAIM JOSEPH<o:p></o:p>vs.<o:p></o:p>OKOMFO ANOKYE AMOAMPONG STOOL<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

CIVIL
APPEAL NO.HI/54/2011&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;DATE:
29TH JULY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWASI AFRIFA ESQR. FOR PLAINTIFF/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>JUSTICE MARIAMA OWUSU JA&nbsp; [PRESIDING], JUSTICE FRANCIS G KORBIEH JA, JUSTICE
IRENE C DANQUAH JA<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="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p>This is an interlocutory
appeal against the ruling of the High Court, Kumasi dated 28th April
2010.&nbsp; In the said ruling, the High Court
refused the application filed by the Plaintiff/Appellant for an order of
interlocutory injunction to restrain the 1st Defendant whether by
himself, servants’ workmen and/or agent and all those claiming through him from
collecting the rent in respect of Hse/N OTB 105, Adum, Kumasi.&nbsp; The application further sought for an order
appointing the Registrar of the High Court, Kumasi as Receiver/Manager of the
property in dispute or permitting him to continue to act in that capacity until
the final determination of the suit.&nbsp; <o:p></o:p>For a better appreciation
of this appeal, we find it pertinent to give a brief history of the land in
dispute.&nbsp; <o:p></o:p>In 1902, the Colonial
Government promulgated a law known as the Administration (Ashanti) Ordinance of 1902
(Cap.110) 1951 Rev. By this law all lands, premises and buildings
occupied as government property became vested in the crown.&nbsp; Apart from the Government property so
occupied, the colonial Government appropriated an area of land lying within the
limits of Kumasi Township as defined under the Kumasi Town Boundaries Ordinance.&nbsp; This area became known as the Kumasi Town Land (KTL) or commonly
referred to as Part 1 Lands.&nbsp; In 1943,
the Colonial Government again promulgated the Kumasi Lands Ordinance (cap 145) by which the Kumasi Town Land was
re-vested in the Asantehene and his successors in office in trust for the
Golden Stool and the Kumasi Division.<o:p></o:p>In 1958, the Ashanti Stool Lands Act of 1958 was promulgated.&nbsp; This Act vested in the Asantehene all
property, rights and interest with respect to lands vested in the Asantehene by
the Kumasi lands Ordinance and other lands in Ashanti belonging to the Golden
Stool or other Stools for the purpose of safe-guarding those lands and revenues
from them.&nbsp; It included leases tenancy
agreements, annual tenancies mortgages, assignments and other dispositions of
lands and to have the effect as if the Governor-General were substituted
therein for the Asantehene.&nbsp; The property,
which is the subject matter in dispute (Hse. No. OTB 105) forms part of the
said Part 1 Lands or Kumasi Town Land (KTL).&nbsp;
On 25th November 1927, the Chief Commissioner of Ashanti on
behalf of the Government of Ashanti granted a lease to Chief Kojo Ampaw,
Omanhene of Agona for a term of 50 years from 1st January 1928 to 31st
December 1977.&nbsp; At the time the lease was
granted to Chief Kojo Apaw, the Kumasi Town Land was vested in the Colonial
Authority ie. The Crown.<o:p></o:p>Thereafter, there were
several transactions in respect of the land which are not relevant to the issue
in this matter.&nbsp; But when CAP 145 was
promulgated which re-vested the Kumasi Town Land in the Asantehene, he granted
a Lease dated 2nd February 1946 to George Bechir Monkarzel for a
term of 31 years 3 months from 1st January 1946 under the Title
No.230 and Serial No. 1570.&nbsp; <o:p></o:p>This transaction was
followed by a sub-lease dated 27th October 1950 from William Joseph
Aouad and Henry Assad for a term of 8 years 5 months 12 days from 1st
July 1950 to 12th December 1958.&nbsp;
This was followed by a Deed of Purchase dated 29th July 1974
from William Joseph to Francis Kwasi Gyambibi.&nbsp;
In 1977 however the interest of any person in the property became
extinguished/expired by effluxion of time.<o:p></o:p>On 18th October
2008 the Government of the Republic of Ghana in trust for the Golden Stool and
the Kumasi State leased property No.OTB 105, Kumasi to the Golden Stool
represented by Otumfuor Osei Tutu II, the Asantehene.<o:p></o:p>On 13th January
2009 the Golden Stool represented by Otumfuor Osei Tutu II granted a Sub-lease
to the 1st Defendant.&nbsp;&nbsp; It is
this lease from the Golden Stool represented by Otumfuor Osei Tutu II to the 1st
Defendant that the Plaintiff is calling the trial Court to cancel as having
been obtained by fraud.<o:p></o:p>As gathered from the
Statement of Claim, the Plaintiff a businessman resident in Lebanon issued a
Writ of Summons per his Attorney for the following reliefs:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that the Plaintiff is entitled to the ownership and possession of
House No.OTB 105, Kumasi.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A
declaration that the new lease in respect of the aforesaid property in favour
of the 1st Defendant and registered by the 2nd Defendant
was obtained by fraud.<o</main>