ASONA BRETUO CO. LTD. vs. H.S. HANNY (ABUA STORES) AND OTHER [2011]DLHC8165

Date	2011-06-08
Suit No.	SUIT NO.LS185/2000
Citation No.	[2011]DLHC8165

HIS LORDSHIP JUSTICE JACOB B. BOON

STEPHEN OPPONG FOR PLAINTIFF

KWAME BOAFO FOR DEFENDANT

[2011]DLHC8165
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													<main id="main" class="content" style="min-height: 60rem" >ASONA BRETUO
CO. LTD.<o:p></o:p>vs.<o:p></o:p>H.S. HANNY (ABUA STORES) 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.LS185/2000&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 8TH JUNE, 2011<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>STEPHEN
OPPONG FOR 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">

KWAME
BOAFO FOR 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;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>On 17/08/2000, the
plaintiff, describing itself as a limited liability company with its main
office in H/No. BH 64 near Rivoli Cinema, Bantama, Kumasi, issued the instant
writ against one H. S. Hanny, a sole proprietor, trading in the name of ABUA
STORES. He will be referred to as the defendant. He later amended his statement
of defence and counterclaim and that paved the way for one John Addae to join
the action as a defendant. He is hereafter referred to as co-defendant. Per the
writ, the plaintiff claimed the following reliefs:<o:p></o:p><o:p>&nbsp;</o:p>“(a) Declaration of title and ownership and possession of
a parcel of land measuring 90 feet bordering Guggisberg Road and 50 feet
bordering 24 February Road and having boundary with Takoradi Flour Depot
containing an area of zero decimal zero four (0.04) acre leased to the
plaintiff by the Ghana Railway Corporation as indicated on the Chief Engineer’s
Plan No. CE 2257/L.<o:p></o:p><o:p>&nbsp;</o:p>(b) Perpetual injunction restraining the Defendant, his
agents, workmen and servants from interfering and trespassing on the land
leased to the plaintiffs by the Ghana Railway Corporation<o:p></o:p><o:p>&nbsp;</o:p>(c) Damages for trespassing on the land.”<o:p></o:p><o:p>&nbsp;</o:p>From the statement of
claim and the evidence of one Martin Kwaku Asamoah, who claimed he is the
Managing Director of plaintiff-company, and the proprietor of Asona Bretuo
Enterprise, the latter, in 1996, acquired a parcel of land from the then Ghana
Railway Corporation at a place close to the Guggisberg and 24th
February Roads in Kumasi.&nbsp; According to
him, Asona Bretuo Enterprise was converted into a limited liability company in
the year 2000. Its new name became Asona Bretuo Company Limited, the plaintiff
herein, and in that capacity, it acquired the assets and liabilities of Asona
Bretuo Enterprise. At the trial, three documents regarding both entities were
tendered in evidence. Exhibits ‘A’ and ‘B’ are the certificate of incorporation,
and the certificate to commence business respectively in respect of &nbsp;plaintiff company, whilst exhibit ‘C’ is the
certificate of registration of Asona Bretuo Enterprise under the provisions of
The Registration of Business Names Act, 1962 (No.151). A week after exhibit ‘B’
was issued authorizing plaintiff company to commence business, it mounted this
action on the basis that Asona Bretuo Enterprise had been converted into a
limited liability company which had taken over the assets and liabilities of
the former. That was the testimony of its Managing Director though no further
evidence was led to establish the assertion. Counsel for the defendants,
strenuously argued this point in his written address, and relied on it as a
ground to challenge the capacity of plaintiff to institute the writ against the
defendants. The issue of the capacity of the plaintiff will be discussed in due
course in this judgment.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff company
asserted that 1st defendant owns a separate parcel of land at the same location
and, in the process of developing it he trespassed into its land. According to
plaintiff’s Managing Director, he reported the conduct of defendant to their
grantor where upon the defendant was advised to put on hold all developmental
activities on the disputed property pending the resolution of the disagreement
by the Managing Director of the Corporation; that despite the advice and
several verbal warnings, the defendant persisted in his resolve to erect a
s</main>