BADU KAKYIRE vs. ABENA ASANTEWAA & 4 OTHERS [2014]DLHC8168

Date	2014-07-24
Suit No.	SUIT NO. C12/237/13
Citation No.	[2014]DLHC8168

HIS LORDSHIP JUSTICE JACOB B. BOON

HON. BEN ABDALLA FOR PLAINTIFF

J. K. KODUAH FOR CLAIMANT

[2014]DLHC8168
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													<main id="main" class="content" style="min-height: 60rem" >BADU KAKYIRE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ABENA ASANTEWAA &amp; 4 OTHERS<o:p></o:p>(CLAIMANTS)<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. C12/237/13&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 24TH
JULY, 2014<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>HON.
BEN ABDALLA 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">

J.
K. KODUAH FOR CLAIMANT&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><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>The plaintiff/respondent, to be referred to simply as the plaintiff,
instituted an action against two defendants, namely, Opanin Akwasi Addae and
Glena Akosua Addae for declaration of title to a piece of land described as
Plot NO. 159 A Odumasi, Kumasi, (b) recovery of possession, (c) perpetual
injunction or in the alternative, recovery of the sum of GH¢52,500.00 being the
amount the plaintiff asserted he paid to the defendants as the purchase price
of the piece of land since 2007, which amount defendants refused to refund,
having also failed to deliver possession of the disputed plot to plaintiff
despite repeated demands. Plaintiff also prayed for interest on the
GH¢52,500.00 from 2007 till date of final payment. Based on admissions by the
defendants in the statement of defence and upon application by the plaintiff,
judgment was entered for the plaintiff for the recovery of an amount of
GH¢35,000.00. He was also allowed interest on the amount as well as costs of
GH¢2000.00. In an attempt to execute the judgment in his favour, the plaintiff
attached the same property he had prayed the court for declaration of title.
Having come to the notice of the claimants, who are sisters to Opanin Akwasi
Addae, that the property was attached by the plaintiff, they interpleaded on
the basis that the property was originally acquired by their late father who gifted
it to his children except Opanin Akwasi Addae, before his death. It is their
case that their deceased father, Opanin Akwasi Asante, had put up a building on
a portion of the land, leaving a portion infront of the house vacant. &nbsp;According to the 2nd claimant who
testified for herself and on behalf of the other claimants, when the gift was
made her mother offered aseda consisting of a drink to seal it. The claimants
called the customary successor of their father who confirmed the gift. He also
said the 1st defendant had approached him to release the vacant
portion of the property for him to develop and share the rooms with him, but he
objected leading to a suit in the High Court over the property. He said
judgment was entered for Akwasi Addae in that suit. However, he was
dissatisfied with the decision of the High Court and filed an appeal at the
Court of Appeal. The notice of appeal was tendered in evidence as exhibit ‘A’.
Exhibit ‘A’ shows that the appeal was filed since 3rd January, 2007.
There is no evidence before this court that it has been heard and determined,
implying it is still pending at the Court of Appeal. The fact that the appeal
is still pending will be an impediment to the property, the subject of the
appeal, being attached in satisfaction of a judgment debt. <o:p></o:p><o:p>&nbsp;</o:p>There is a suggestion by counsel for the plaintiff that the suit at the
High Court which led to the appeal has no relevance to the disputed property.
This cannot be the true position as in exhibit 1, which is a search report
generated on behalf of the plaintiff, it was indicated the judgment of the High
Court was plotted against the disputed property in the records of Lands Commission.
<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff also tendered exhibit 2 which is a lease in respect of the
disputed plot in favour of Akwasi Addae. In his testimony he said the record,
as in exhibits 1 and 2, pointed to the one conclusion that the land belonged to
Akwasi Addae and he did not need to carry out any further investigations on the
title of the land. He testified that though in exhibit 1, it is indicated the
land was originally acquired by late Akwasi Asante, he did not consider it
necessary to trace his customary successor to know the status of the land. That
was an error on his part as a prudent purchaser of land would have gone further
to find out the status of the land particularly from the family members of the
original owner of the land </main>