COMFORT AMA SERWAA vs. OPANIN KWADWO DONKOR AND JAMES KOFI ASAMOAH [2018]DLCA11555

Date	2018-12-17
Suit No.	SUIT NO. H1/48/2017
Citation No.	[2018]DLCA11555

ADUAMA OSEI JA (PRESIDING)

SENYO DZAMEFE JA

WELBOURNE (MRS.) JA

ASIEDU BASOAH ANDREW ACQUAH WITH HIM FOR DEFENDANT/RESPONDENT.

[2018]DLCA11555
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													<main id="main" class="content" style="min-height: 60rem" >COMFORT AMA SERWAA<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>OPANIN KWADWO DONKOR AND JAMES KOFI
ASAMOAH<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL (CIVIL DIVISION), KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT
NO. H1/48/2017&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:
17TH DECEMBER, 2018<o:p></o:p>

</div>COUNSEL<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoListParagraphCxSpMiddle" style="margin:0cm;margin-bottom:.0001pt;
mso-add-space:auto;text-align:justify;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">ASIEDU
BASOAH, ANDREW ACQUAH WITH HIM FOR DEFENDANT/RESPONDENT.<o:p></o:p>

</div>CORAM<o:p></o:p>ADUAMA
OSEI JA (PRESIDING), SENYO DZAMEFE JA, WELBOURNE (MRS.) JA<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;ADUAMA OSEI JA:<o:p></o:p>&nbsp;This
is an appeal against a judgment of the Circuit Court, Kumasi, dated the 11th
of September, 2012, in which the trial Court dismissed the claim of the
Plaintiff/Appellant for declaration of title to land, damages for trespass, and
perpetual injunction, and entered judgment for the 2nd Defendant/Respondent
on his counterclaim. The judgment of the trial Court is found at page 254 to
page 261 of the Appeal Record, and the Notice of Appeal is at pages 263 and 264
of the same Record.<o:p></o:p>&nbsp;In
this judgment, the Plaintiff/Appellant is referred to as “the Plaintiff”, and the Defendants/Respondents are referred to as “the Defendants”.<o:p></o:p>&nbsp;The
writ of summons that commenced the suit was filed in the Circuit Court, Kumasi,
on the 23rd of June, 1995. The writ and its accompanying statement
of claim were subsequently amended and, as indorsed on the amended writ, the
Plaintiff per her Lawful Attorneys claimed for a declaration of title “to all that piece or parcel of land known
as No. 6, 6th Crescent Section 3, Atasomanso, Kumasi”. She also
sought damages for trespass and perpetual injunction in respect of the said
land.<o:p></o:p>&nbsp;To
justify her claims, the Plaintiff asserted ownership of Plot No. 6, 6th
Crescent No. 3, Atasomanso in Kumasi in her statement of claim as amended. She
stated that she acquired the said plot of land from the Chief of Atasomanso and
that she was issued with an allocation note by the Chief on 21st
May, 1983, following which she took possession of the plot. The Plaintiff
alleged that she took the allocation note to the Asantehene’s Secretariat for
processing on 26th May, 1983 and the same was signed by the
Asantehene’s Laison Officer with reference number 35925. The processed
document, according to the Plaintiff, was referred to the Lands Commission,
Kumasi, and a file was opened for her with reference number 535925/3 of 15th
May, 1986. Subsequently, a lease was executed in her favour by the
Atasomansohene, Nana Owusu Barima II, with the Asantehene Otumfuor Opoku Ware
II confirming same. <o:p></o:p>&nbsp;The
Plaintiff alleged in the statement of claim that as soon as she took possession
of the plot, she carted 10 trips of sand and 10 trips of stones there, and also
caused 2,000 blocks to be moulded and placed on the land. The Plaintiff alleged
that on the 23rd of May, 1985, she went to the land with a view to
commencing its development but, to her surprise, she met the Defendants’
workmen on the land and in the events that followed, her life was threatened.<o:p></o:p>&nbsp;The
Defendants however denied that the Plaintiff was entitled to her claims. In the
amended statement of defence, the 2nd Defendant alleged that the
disputed land was allocated to him as Plot No.122, Block H by the Adiembra
Stool through its allodial title holder, Nana Owusu Aduanim II. The Defendants
contended that the disputed land formed part of Adiembra Stool lands and did
not belong to the Atasomanso Stool. The Defendants alleged that the boundary
between the Atasomanso Stool and the Adiembra Stool had been settled in a suit
entitled, Odikro Kwaku Addai of Atasomanso Vs. Odikro Kofi Aidoo of Adiembra, in
which the Native Tribunal of Kumasihene had held that the Atasi Stream, among
others, marked the boundary between Atasomanso lands and Adiembra lands. The
Defendants contended that by the said boundary, the disputed land was on
Adiembra land.<o:p></o:p>&nbsp;The
Defendants alleged that the allocation note granted him by the Adiembra Stool
was endorsed by Otumfuor Opoku Ware, the Asantehene, on or about 20th
June, 1995, and the same was forwarded by the Laison Officer at the
Asantehene’s Secretariat to the Regional Lands Secretariat for processing. &nbsp;&nbsp;<o:p></o:p>&nbsp;The
Defendants alleged that the 2nd Defendant took possession of the
land allocated to him and by the 23rd of May, 1995, the 2nd
Defendant had constructed his building on the land up to roofing level. The
Defendants stated in the defence that when the 2nd Defendant took
possession of the land, there were no deposits of sand or stones or blocks on
it. <o:p></o:p>