MOHAMMED OSUMAN vs. MAAME ADUSAH AND CECILIA ADJEI DANSO [2015]DLHC8199

Date	2015-06-12
Suit No.	SUIT NO. C11/17/11
Citation No.	[2015]DLHC8199

HIS LORDSHIP JUSTICE JACOB B. BOON

OSEI BOATENG FOR PLAINTIFF/APPELLANT

KWABENA OBIRI-YEBOAH FOR DEFENDANT/RESPONDENTS

[2015]DLHC8199
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													<main id="main" class="content" style="min-height: 60rem" >MOHAMMED
OSUMAN<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MAAME ADUSAH AND CECILIA ADJEI DANSO<o:p></o:p>(DEFENDANT/RESPONDENTS)<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. C11/17/11&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:
12TH JUNE, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSEI
BOATENG FOR PLAINTIFF/APPELLANT<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">

KWABENA
OBIRI-YEBOAH FOR DEFENDANT/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;
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>This is an appeal
against the judgment of His Worship Michael Gyamfi Boamah, sitting at
Mamponteng District Court held on 9th January, 2014. In the court
below, the plaintiff claimed (a) declaration of title and recovery of
possession to Plot No. 3 Block K, situate at Kenyasi, alleging he acquired it
from one John, and (b) perpetual injunction to restrain the defendants from
interfering with her possession of the plot of land. Though not compulsory in
the District Court, both plaintiff and defendant filed pleadings. In the
statement of claim the plaintiff asserted he acquired the disputed property in
the name of one Mma Asana Rahman as the allottee. He also averred that an
allocation note was issued in the name of the allottee by the acting
Tewobaabihene Nana Opoku Agyeman and some of his elders. The said document was
tendered in evidence and marked as exhibit <o:p></o:p>‘A’. It is in
the name of Emma Asana Abdulraham the person referred to by the plaintiff as
the allottee. It is to be noted that upon an application by the plaintiff, he
was granted leave for the so-called allottee to join the action as a
co-plaintiff. The co-plaintiff thereafter filed a statement of claim in which
she claimed ownership of the land in dispute. She alleged she acquired the land
through the plaintiff described as her brother, but whilst she was out of the
Region, the defendant put up an adverse claim to the property, alleging she
purchased it from one K. Opoku Aning of Duase/Kwabre. She explained that the plaintiff
issued the writ of summons at the lower court because she was not available in
the Region, I presume Ashanti Region, at the time of the alleged trespass unto
the property by the defendant. In terms of the statement of claim filed by her,
she claimed ownership of the disputed plot of land, notwithstanding the
undeniable fact that the instant action was mounted by her brother, the plaintiff
herein, without evidence of any authorization to do so, raising the fundamental
issue of capacity of plaintiff. The issue, though crucial, was not addressed by
the Court below. <o:p></o:p><o:p>&nbsp;</o:p>The grounds
of appeal includes the general one that the judgment of the lower court was
against the weight of the evidence. The law is clear that in such a situation the
appellate court is bound to evaluate the whole record of appeal so as to
satisfy itself that the lower court was justified in arriving at its
conclusions as if the appeal is being reheard: see Tuakwa v Bosom (2001-2002)
SCGLR 61. And in Agyeiwaa v P&amp;T Corporation (2007-2008) 2 SCGLR 985, Wood
CJ said at page 989 that:<o:p></o:p><o:p>&nbsp;</o:p>“The well-established rule of law is that an appeal
is by way of rehearing, and an appellate court is therefore entitled to look at
the entire evidence and come to the conclusions on both the facts and law.”<o:p></o:p><o:p>&nbsp;</o:p>Also in
Oppong v Anarfi (2011)1SCGLR 556, Vida Akoto Bamfo JSC said of this rule of law
at page 562 of the report as follows:<o:p></o:p><o:p>&nbsp;</o:p>