YAW NKRUMAH vs. OPANIN KWAKYE [2012]DLCA3099

Date	2012-11-30
Suit No.	CIVIL APPEAL NO. H1/38/2012
Citation No.	[2012]DLCA3099

JUSTICE FRANCIS G KORBIEH JA [PRESIDING]

JUSTICE IRENE C DANQUAH JA

JUSTICE ALHAJI TANKO AMADU JA

JAMES MARSHALL BELIEB ESQ with IRENE ATOBRAH FOR PLAINTIFF/ APPELLANT

J. K. KODUAH ESQ. FOR DEFENDANTS/RESPONDENTS.

[2012]DLCA3099
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													<main id="main" class="content" style="min-height: 60rem" >YAW NKRUMAH<o:p></o:p>vs.<o:p></o:p>OPANIN KWAKYE<o:p></o:p>&nbsp;[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. H1/38/2012&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 30TH
NOVEMBER, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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>JAMES MARSHALL BELIEB ESQ
with IRENE ATOBRAH FOR PLAINTIFF/ APPELLANT<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">

J.
K. KODUAH ESQ. FOR DEFENDANTS/RESPONDENTS.<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;
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JUSTICE
FRANCIS G KORBIEH JA [PRESIDING] ,JUSTICE IRENE C DANQUAH JA, JUSTICE
ALHAJI&nbsp; TANKO AMADU JA<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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JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH JA<o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Arial Unicode MS&quot;;mso-bidi-font-family:&quot;Arial Unicode MS&quot;">The Plaintiff
brought an action before the Circuit Court, Kumawu for and on behalf of his
siblings claiming for the ejectment of the Defendants from Plot number A15
Bodomasi.&nbsp; Subsequently, the Plaintiff
amended the Writ of Summons claiming for declaration of title to Plot No. 15
Bodomasi, recovery of possession and damages for trespass.&nbsp; By the amended Statement of Claim filed on
6/05/08, it was the case of the Plaintiff that his father by name Kwabena Nsafoa
acquired the disputed land over 50 years ago when there was no plan covering
the area. In 1965, a site plan was prepared to cover the area and his father’s land
was numbered Plot 15, whilst Opanyin Yaw Duffour was allocated Plot 14.
Plaintiff’s father registered Plot 15 in the name of his son Kwasi Prempeh at
the Town Development Committee.&nbsp; His
father, subsequently, made a gift of the plot to his wife Afua Kuma and upon
her death, to all his children and ‘aseda’ was given in the presence of family
members. The father, therefore, executed a document to effect a change at the
Town Development Committee from the name of Kwasi Prempeh into the name of Afua
Kuma, which change was effected. &nbsp;&nbsp;Afua
Kuma also surrendered her interest in Plot 15 to all her children by way of
gift for which the children gave ‘aseda’ and their mother blessed them and
built on it.&nbsp; <o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Arial Unicode MS&quot;;mso-bidi-font-family:&quot;Arial Unicode MS&quot;">The Plaintiff
informed the Defendants who are occupying a portion of the plot originally
occupied under license by their grandmother their intention to build and
started building. When the Plaintiff started to roof the building which is
close to where the Defendant’s grandmother built her house, the Defendants
threatened them to stop work or face the consequences. When the matter was
brought before the Chief of Bodomasi and his elders, it was established that
the Defendants did not own the plot in the area and they agreed to leave the
plot as the Defendants admitted that they have no documents covering the plot
which they claim is No. 14.<o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Arial Unicode MS&quot;;mso-bidi-font-family:&quot;Arial Unicode MS&quot;">The Defendants denied
the claim of the Plaintiff. &nbsp;By their amended
Statement of defense filed on 15/05/08, the Defendant denied that the Plaintiff’s
father acquired the plot well over fifty years ago. The Defendant’s case was
that the Defendant’s grandmother Nana Afua Kwankye had long built her house on
the plot in dispute and was in possession before the Plaintiff’s father ever
came on it. According to the Defendants, the Plaintiff’s father was allocated
Plot No. A 15 Bodomasi whilst their grandmother Nana Afua Kwankye was allocated
Plot No. A 14 with another Plot numbered A14 allocated to one Opanyin Peter Yaw
Duffour.&nbsp; The Defendants claimed that the
plot in dispute had all along been part and parcel of the Plot No. A 14
Bodomasi which had been acquired by their grandmother long before the
Plaintiff’s father ever came to acquire the said plot No. 15 Bodomasi. When the
matter went before the Bodomasihene, he ruled after going into the matter that
each of the parties should remain where they are. It was the further case of
the Defendants that it was rather the Plaintiff who had fraudulently attempted
to have the name of the Defendants’ grandmother cancelled from the Register in
the Bodomasi Land Register and put the name of the Plaintiff on it. Defendants
contended that their late grandmother at all times paid the relevant taxes on
the plot covered by receipts which the Defendants had continued to pay The
Defendants contended further that it was rather the Plaintiff who has
trespassed unto the defendant’s land to build on it despite warnings. The Defendant
then counterclaimed for a declaration that the title in all that plot known as
Plot No. A 14, Bodomasi is vested in the Defendants as their exclusive
property, damages for trespass and an order for perpetual injunction to
restrain the Plaintiff’s servants, agents and all persons claiming through him
from interfering with the Defendants’ title or possession in the plot.&nbsp; <o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Arial Unicode MS&quot;;mso-bidi-font-family:&quot;Arial Unicode MS&quot;">The case proceeded
to trial and on 12th August 2010, the Trial Circuit Court dismissed
the Plaintiff’s claim and entered judgment for the Defendants on their
counterclaim and reserved its reasons. On the 23rd September, 2010,
the reasons for the judgment were delivered. It is against this judgment that
the Plaintiff has launched the instant appeal.<o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Arial Unicode MS&quot;;mso-bidi-font-family:&quot;Arial Unicode MS&quot;">The sole ground of
appeal filed is that;<o:p></o:p>