ELIZABETH DUKU vs. KWADWO KARIKARI BOATENG & ORS [2015]DLHC8483

Date	2015-06-22
Suit No.	SUIT NO. C1/12/14
Citation No.	[2015]DLHC8483

HIS LORDSHIP JUSTICE JACOB B. BOON

JAMES MARSHALL BELIEB FOR THE PLAINTIFF

DEFENDANTS BY THEMSELVES.

[2015]DLHC8483
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													<main id="main" class="content" style="min-height: 60rem" >ELIZABETH DUKU<o:p></o:p>vs.<o:p></o:p>KWADWO KARIKARI BOATENG &amp; ORS<o:p></o:p><o:p>&nbsp;</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">

</div>COUNSEL:<o:p></o:p>JAMES MARSHALL BELIEB FOR THE 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">

DEFENDANTS BY
THEMSELVES.<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">

JUDGMENT<o:p></o:p>

</div>The
plaintiff is a businesswoman and lives in Kumasi. On 5th February,
2014 she instituted this action against the defendants claiming (a) declaration
of title to plots 18 and 20 on 2nd and 3rd Lane, Adjamesu
Extension on the Kumasi-Bekwai Road (b) damages for trespass (c) an order for
the removal of a fence wall and a building foundation erected on a portion of
plots 18 and 20 referred to or the plaintiff be at liberty to remove same and
the defendants surcharged with cost involved, and (d) perpetual injunction
against the defendants. The first and second defendants are the head of family
and chief of Aduanafamily of Adjamesu respectively. The structures referred to
are said to have been constructed by the third defendant whose name plaintiff
asserted is unknown her name, hence her description of him simply as the developer.<o:p></o:p><o:p>&nbsp;</o:p>The
facts of this case are quite simple. The plaintiff acquired four plots of land
described as Numbers 16, 18, 19 and 20 on 3rd Lane
Adjamesu-Extension on the Kumasi-Bekwai Road from the first two defendants. As
evidence of the alienation of the plots to her,the defendants executed an
allocation note, admitted is in evidence as exhibit ‘B’, in her favour.&nbsp; When plaintiff was ready to start development
of the plot she realized to her surprise that the third defendant had
trespassed unto her property where on he put up a fence wall and started the
construction of a foundation on portion of plots 18 and 20 allocated to her by
the first and second defendants. She said she confronted the first two
defendants in the presence of the alleged trespasser (third defendant), but
they denied her title to the property and encouraged the third defendant to
continue with the construction works he started on her property.<o:p></o:p><o:p>&nbsp;</o:p>According
to the plaintiff, as those who alienated the land to her rather supported the
third defendant, she was compelled to fall on the Town and Country Planning
Department from the Amansie District Assembly, Bekwai.&nbsp; On inspection and taking measurements of the
area claimed by the plaintiff, officials of the department confirmed the third
defendant had trespassed unto plots 18 and 20 allocated to her. It is her
further case that with this confirmation, she requested the third defendant to
remove the unlawful structures from her land to no avail whilst with support from
the other two defendants, the third defendant is laying an adverse claim to her
property. It was for these reasons that she instituted the action against the
defendants.<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff
asserted she did not know the particulars, not even the name of the third
defendant, hence after several attempts to effect personal service of the writ
on him was not successful, he was served by substitution. He failed to respond
to the writ though that service was good service in law.<o:p></o:p><o:p>&nbsp;</o:p>For
avoidance of doubt, the Court ordered the Regional Surveyor to survey the land
in dispute and to submit a report to guide the Court in its decision. The
Regional Surveyor delegated an officer from his Department and he carried out the
orders of the court. &nbsp;He then submitted a
report to the Court which was admitted in evidence as exhibit CW‘1’. <o:p></o:p><o:p>&nbsp;</o:p>From
exhibit CW‘1’, it is undeniable that the works undertaken by the third
defendant fall within the land</main>