AMA BONSU vs. YAW BOAHENE [2016]DLCA4534

Date	2016-05-10
Suit No.	CIVIL APPEAL NO. NO: H1/01/2015
Citation No.	[2016]DLCA4534

E. K. AYEBI (PRESIDING) JA

GERTRUDE TORKORNOO

(MRS.) JA

ANGELINA M. DOMAKYAAREH (MRS.) JA

BRIGHT OBENG- MANU FOR DEFT/APPELLANT – ABSENT

JUDITH ADUSEI FOR PLAINTIFF/RESPONDENT – PRESENT

[2016]DLCA4534
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													<main id="main" class="content" style="min-height: 60rem" >AMA BONSU<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>YAW BOAHENE<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[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. NO: H1/01/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 10TH MAY 2016<o:p></o:p>

JUDITH
ADUSEI FOR PLAINTIFF/RESPONDENT – PRESENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AYEBI, JA<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is an appeal against the judgment
of Kumasi Circuit Court (2) dated 28th October 2013, by the defendant.&nbsp; At the trial court, the plaintiff claimed the
following reliefs:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration that the plaintiff is the
assignee/owner of Plot No. 20 Block “B”, Suame Tarkwa, Kumasi.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order for recovery of possession.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of injunction restraining the
defendant, her agents, workmen and assigns from in any manner interfering with
the plaintiff’s ownership and enjoyment of&nbsp;&nbsp;
the subject property.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The case put forward by the plaintiff
in support of his claim is that he is the assignee of Plot No. 20 Block “B”,
Suame Tarkwa, Kumasi from Opanin Yaw Kyere and his family.&nbsp; He tendered a copy of the assignment in his
favour as Exhibit A with the consent to assign by the Lands Commission.&nbsp; The said Plot No. 20 Block “B” shares
boundary with the Offinso Road in the South-West; Plot 19 in the North-West;
Plot 28 in the North-East and Plot 21 in the South-East.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; According to the plaintiff, he put up a
storey building made up of stores on a large portion of the plot and reserved
the undeveloped portion for an out-house later.&nbsp;
But at the request of Madam Ama Asantewaa (deceased) grandmother of the
defendant, he permitted her to operate a chop-bar on the undeveloped portion
without any demand for rent.&nbsp; The only
condition to the licence was that she was not to put up a permanent structure
on the land.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It is the further case of the plaintiff
that because of the cordial relationship developed between him and Madam Ama
Asantewaa, she showered him with gifts of cloths, sheep, wrist-watches and
others for the 19 years she operated on the land.&nbsp; When Madam Ama Asantewaa fell sick and was
advised by her Doctor to stop working with fire, she requested him to allow the
defendant to continue to operate the chop bar on the land.&nbsp; The plaintiff said he agreed to the request
and following on the footsteps of her grandmother, defendant also gave him
gifts occasionally or annually.&nbsp; But when
he demanded his land to put up the outhouse, the defendant laid claim to it and
summoned him before the Magazine Mechanical Association that he had denied her
the right to paint her structure.&nbsp; He
therefore sued the defendant.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The defendant denied the claim of the
plaintiff and defended the action in an amended statement of defence.&nbsp; Her case is that her late grandmother was
operating on that portion of the land before the plaintiff acquired his plot
and before her death, her grandmother had operated on the land for 52 years.&nbsp; The plaintiff therefore met her grandmother
on the land.&nbsp; In&nbsp;&nbsp; her pleadings, defendant asserted that the
land is the property of the Mechanical Association which permitted her
grandmother to operate the chop bar on the land.&nbsp; Further, the land on which the chop bar lies
is a disused pave way at back of the plaintiff’s house and the Kumasi
Metropolitan Assembly granted her grandmother permission to use the land as
such.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Despite the above averments, the
defendant further pleaded that the land on which she is operating the chop bar
form part of Plot No. 28 Block B belonging to Opanin Kofi Atia and it was
Opanin Kofi Atia who gave the portion to her grandmother in 1960.&nbsp; Currently, defendant said reports from the
Lands Commission show that the land has been designated as a lane in the
current planning scheme covering the area.&nbsp;
She concluded that her pleading that the land does not belong to the
plaintiff who is only throwing his weight about in a bullying fashion.<o:p></o:p>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; During the trial, defendant gave
evidence-in-chief for two days.&nbsp; On the
first day she said the land on which the chop bar stands belongs to
government.&nbsp; On a site plan her
grandmother gave her is an area marked red indicating a lane.&nbsp; The grandmother she said, told her the lane
will be constructed in future.&nbsp; But on
the second day, the defendant gave evidence-in-chief that the land was given to
her grandmother by Opanin Kofi Atia.&nbsp; She
tendered Exhibit 2 to show that the chop bar was registered with Kumasi
Metropolitan Assembly (KMA) and payment for renewal of permit as Exhibit 3, 3A
to 3J.&nbsp; She also stated that the disputed
plot is a paveway between plots 20 and 28 according to a plan produced by the
Survey Department.&nbsp; And since the
disputed plot did not fall in plaintiff’s land, the arbitrators told plaintiff
to allow her to continue to operate the chop bar on the plot.&nbsp; On this evidence, d</main>