SAMUEL K. MARFO vs. ABUSUAPANIN HENRY KWAKU BOADI [2012]DLHC8238

Date	2012-09-13
Suit No.	SUIT NO. C12/91/11
Citation No.	[2012]DLHC8238

HIS LORDSHIP JUSTICE JACOB B. BOON

NENE KORDAR FOR THE PLAINTIFF/RESPONDENT

G. K. BADU FOR THE DEFENDANT/APPELLANT.

[2012]DLHC8238
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL K.
MARFO<o:p></o:p>vs.<o:p></o:p>ABUSUAPANIN HENRY KWAKU BOADI<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. C12/91/11&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
13TH SEPTEMBER, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NENE
KORDAR FOR THE PLAINTIFF/RESPONDENT <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">

G.
K. BADU FOR THE DEFENDANT/APPELLANT.&nbsp;&nbsp; <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>This is an appeal from the judgment of the Konongo
District Court presided over by His Worship Nana R. A. Kpodo dated the 29th
Day of September, 2010. It was entered for the plaintiff/respondent, to be
referred to as the plaintiff. The defendant/respondent, hereafter called the
defendant, is dissatisfied with the judgment and has filed the instant appeal.
At the Konongo District Court, the plaintiff had sought an order of the court
to compel the defendant to release three bedrooms in a house No. NT 23,
Konongo, to him and his siblings. He claimed the house was built by his late
father, one Kofi Kwakye, and before his demise he gifted the rooms to him, his
siblings and their mother. The defendant filed a counter-claim to the effect
that as the head of late Kofi Kwakye’s family and his current customary
successor, he had a legal right to renovate and / or repair the whole house
which in a state of disrepair. He therefore prayed for vacant possession of the
property pursuance to notice of 25th November, 2009 issued to
occupants of it to vacate by the end of February, 2010 to enable the works to
take off. The district court gave judgment for the plaintiff, necessitating the
instant appeal. Several grounds of appeal were filed. They are reproduced
hereunder for clarity:<o:p></o:p><o:p>&nbsp;</o:p>“a.
The court erred in law in granting judgment for the plaintiffs when the action
was statute barred because the defendant has been in adverse possession since
the death of their father in 1961 in a clear violation of the provisions of the
Limitations Decree 1972 (NRCD 54)<o:p></o:p><o:p>&nbsp;</o:p>b.
The trial magistrate erred in law in holding that the plaintiffs were entitled
to their claim for rooms in the disputed house in question when there was no
evidence of an inter vivos gift or a valid customary will<o:p></o:p><o:p>&nbsp;</o:p>c.
The trial magistrate erred in unilaterally and arbitrary changing the date for
the next adjourned date from 4th day of October, 2010, thus
depriving the defendant the right to legal representation without any
justification.<o:p></o:p><o:p>&nbsp;</o:p>d.
The trial magistrate erred in law when he held that the Intestate Succession Law,
1985 (PNDCL 111) as amended by Intestate Succession (Amendment) Law, 1991 PNDCL
264, applied in this case.<o:p></o:p><o:p>&nbsp;</o:p>e.
The trial magistrate erred in law when he held it had jurisdiction over the
case when the property value was over GH¢5,000.00 (Five Thousand Ghana Cedis)
above the jurisdiction of the District Magistrate Court.”<o:p></o:p><o:p>&nbsp;</o:p>Though the notice of appeal indicated additional grounds
would be filed on receipt of the record, no other grounds were filed and
brought to the attention of the court.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the defendant in his written address, discussed
only the ground of jurisdiction of the trial court over the suit as he asserted
that the value of the rooms exceeded the jurisdiction of the district court. In
support he referred to section 57(1) (e) of the Courts (Amendment) Act 2002,
Act 620 which is in the following terms:<o:p></o:p><o:p>&nbsp;</o:p>“47(i)
A District Court shall within the area of its jurisdiction have civil jurisdiction
in the following matters:<o:p></o:p>