THE REPUBLIC vs. NEW JUABENG MUNICIPAL ASSEMBLY AND 2 OTHERS EX PARTE ELIZABETH BOATENG [2016]DLCA4682

THE REPUBLIC vs. NEW JUABENG MUNICIPAL ASSEMBLY AND 2 OTHERS EX PARTE ELIZABETH... [2016]DLCA4682

Date	2016-04-27
Suit No.	SUIT NO: H1/101/2016
Citation No.	[2016]DLCA4682

ADJEI J.A. (PRESIDING)

SOWAH J.A.

MENSAH J.A.

ASURO NAPERI FOR APPLICANT/APPELLANT

D. K. NYANUDOR FOR 1ST AND 2ND RESPONDENT/RESPONDENT

[2016]DLCA4682
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NEW JUABENG MUNICIPAL
ASSEMBLY AND 2 OTHERS<o:p></o:p>(RESPONDENTS/RESPONDENTS)<o:p></o:p>EX PARTE ELIZABETH
BOATENG (APPLICANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: H1/101/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;27TH
APRIL, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASURO NAPERI FOR APPLICANT/APPELLANT <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">

</div>CORAM:<o:p></o:p>ADJEI J.A. (PRESIDING), SOWAH J.A.,
MENSAH J.A. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;tab-stops:63.75pt center 3.25in;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>SOWAH, J.A:<o:p></o:p>The
Applicant/Appellant [hereafter referred to simply as the Applicant] filed an
application under Order 55 rules 1, 2, 3 and 4 of The High Court (Civil
Procedure) Rules, 2004 (C.I.47) for the Prerogative Writ of Mandamus and
Prohibition in the nature of Judicial Review Order. <o:p></o:p>The
Motion on Notice filed on 25th March 2014 prayed the Court <o:p></o:p>“…
for the prerogative writ of mandamus to compel the new Juaben Municipal
Assembly to remove from the record on Store number 32A Kumasi Station Koforidua
the name of Ruth Asiedu or any other name or names and Restore thereto the name
of Madam Elizabeth Boateng and prohibition to prohibit Ruth Asiedu from
operating her business and or trade from the said store No. 32….”<o:p></o:p>The
affidavit and supplementary affidavit with exhibits attached which were filed
in support of the Application were deposed to by Matilda Otiwaah
who purported to be the holder of a power of attorney donated by the applicant.
She deposed that the market stall, namely, Store No. 32, Kumasi Station,
Koforidua which is the subject-matter of the application was allocated to the
applicant in 1999 by the 1st respondent Assembly. The applicant left
the jurisdiction to the United States of America in 2000 and left her business
in the store and the store to her, that is, to the lawful attorney. However the
3rd Respondent [described in the applicants Statement of case as a
brother of the applicant] had by use of a fraudulent power of attorney
purported to have been donated by the applicant transferred the interest of the
applicant in the store to the 2nd respondent. The lawful attorney
further deposed that upon becoming aware of the fraud, a request was made by
her lawyer to the 1st respondent per a letter dated 2nd
August 2013 for restoration of the store to the applicant as well as restoring
the applicants name in the official records of the Assembly which the 1st
respondent has failed to do hence the application.<o:p></o:p>The
application was opposed by the 1st and the 2nd respondents.
It does not appear that the 3rd respondent was served with the
process and he did not file any process.<o:p></o:p>The
defence of the 1st
respondent was that the store in contention is the bona fide property
of the 1st respondent Assembly and was allocated to the applicant in
1998. There was an agreement to the effect that no tenants should sub-let or
sell the store. Furthermore, it was agreed that a store would be taken over by
the 1st respondent if a tenant left the jurisdiction. That it came
to its notice in 2008 that the applicant had left the jurisdiction in 2000 and in
breach of the tenancy agreement assigned the store to someone. That it
conducted investigations in 2010 which confirmed that the applicant had
breached the tenancy agreement and acting per Dominic Ampadu, the 3rd
Respondent, had entered an agreement with the 2nd respondent. To
regularize the tenancy, it entered into an agreement with the 2nd
respondent and re-allocated the store to her in February 2013. <o:p></o:p>The
1st respondent also contended that the application was incompetent
having been brought outside the 6 months statutory time limit, thus the court
was not seized with jurisdiction. It argues that at best, the applicant and her
lawyer Sir Asante-Ansong had known of the interest of the 2nd
respondent since 12th November 2012 but had filed the application on
25th March 2014.<o:p></o:p>The
1st Respondent further questioned the genuity of the power of
attorne</main>