SOLOMON BAAH vs. MELCOM GHANA LIMITED SUNYANI BRANCH AND SUNYANI MUNICIPAL ASSEMBLY [2016]DLCA5218

SOLOMON BAAH vs. MELCOM GHANA LIMITED SUNYANI BRANCH AND SUNYANI MUNICIPAL ASSE... [2016]DLCA5218

Date	2016-01-27
Suit No.	SUIT NO.: H1/27/2015
Citation No.	[2016]DLCA5218

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS) J. A.

DOMAKYAAREH (MRS) J. A.

MUJEEB RAHMAN FOR PLAINTIFF/APPELLANT

ALEXANDER AMPONSAH FOR DEFENDANT/RESPONDENT

[2016]DLCA5218
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													<main id="main" class="content" style="min-height: 60rem" >SOLOMON BAAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MELCOM GHANA LIMITED SUNYANI BRANCH AND SUNYANI MUNICIPAL ASSEMBLY<o:p></o:p>(DEFENDNATS/
RESPONDENTS)<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">

</div>COUNSEL:<o:p></o:p>MUJEEB
RAHMAN FOR PLAINTIFF/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">

ALEXANDER AMPONSAH FOR
DEFENDANT/RESPONDENT <o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;<o:p></o:p>AYEBI
J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNoSpacing" 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>TORKORNOO
(MRS), J.A.<o:p></o:p><o:p>&nbsp;</o:p>Every proper story begins with the
words ‘In the beginning’. And so must
the just and proper resolution of a dispute be done by tracing the rights of
parties with regard to the subject matter of the dispute from the beginning of
their acquisition of those rights. Any process of resolution that attempts to
resolve a dispute without considering the landmarks of the rights from their
estuary to the points of difference is likely to result in miscarriage of
justice. <o:p></o:p>In
the beginning of the transactions that led to this dispute, one late Opanin
Kwadwo Ntow obtained proprietary interest in what was called Plot no 28 Block D
Central Area, Sunyani. From the planning scheme of the Town and Country
Planning Department of Sunyani tendered as exhibit G in this suit, this plot
measures 120 x 140 feet. It shares a boundary with Plot no 27 Block D Central
Area, which was used as a school by the Sunyani Municipal Assembly. <o:p></o:p>According
to the undisputed facts, a toilet facility was built within the area plotted as
Plot No 28 by the school authorities whose interest is in plot 27. This toilet
was used by the occupants of Plot No 28 with leave from the school authorities.
When Opanin Ntow died testate, the executors of his estate called Opanin Kofi
Nsowaah and Opanin Kwaku Okyere vested his interest in this land in his
grandson Paul Mfum in 2008. Paul Mfum subsequently assigned his interest in
plot no 28 to the Appellant in 2010. The Lands Commission Secretariat
registered a lease in favour of the Appellant over plot 28 with its
measurements of 120 x 140 feet without contention by anyone, and he was given a
building/development permit by the Town &amp; Country Planning Department of
Sunyani to construct a four (4) storey building on this same dimension of land.
<o:p></o:p>Meanwhile
in 2008, the Sunyani Municipal Assembly entered into a build, operate and
transfer agreement with Melcom Ghana Ltd, the original defendant in the action,
and the 1st Respondent in this appeal (hereinafter called the 1st
Respondent). The Assembly, as beneficial owner of plot 27 agreed to grant a
lease to Melcom to build a shopping mall and office complex on plot 27. <o:p></o:p>The
1st Respondent took steps to build a fence wall around what he
understood to be Plot no 27 – the land with the school and toilet thereon. In
2010, after obtaining his lease on plot 28, the Appellant sought a confirmation
of the dimensions of plot 28 and complained that by building the fence wall
around the toilets, Melcom had trespassed from plot no 27 onto plot no 28 and
reduced plot no 28 by 15 feet.<o:p></o:p>This
complaint precipitated the high court action by the Appellant. Eventually, the
Assembly joined the action as 2nd defendant. The Appellant sought
the following reliefs from the high court in his amended statement of claim <o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
A
declaration that the Defendant has trespassed unto the Plaintiff’s Plot No. 28
Block ‘D’ Central Area, Sunyani (i.e. the south-eastern direction) by
approximately 15 feet.<o:p></o:p><</main>