ACQUAYE v. AWOTWI AND ANOTHER

Mensa Boison J.A. delivered the judgment of the court. This appeal by the defendant is against the judgment of the Circuit Court, Kumasi (G. P. K Twumasi, Esq., presiding) given on 17 November 1980. By that judgment the respondent (hereinafter called the plaintiff) was granted declaration as the licensee of a market stall, being stall No. R.3, an order for possession and an order for the refund of rents paid to the appellant (hereafter called the defendant). A counterclaim by the defendant for like reliefs was at the same time dismissed. Both parties claim by right of customary succession to their respective deceased mothers, each party alleging that her mother was the original grantee or licensee of this stall.

The Kumasi City Council (K. C. C.), as successor to the K.P.H.B., is the market authority and licensor of stalls in the Kumasi Central Market. For the purposes of allocation of such stalls and collection of stated rents therefor, the authority maintains a yearly ledger or register of the licensees with reference to their stalls. At the end of each year the particulars of current licensees are entered afresh in a new register for the ensuing year.

It is clear from the evidence that so long as a licensee of a market stall complies with the terms of the grant and pays the required rent, the allotee remains the permanent licensee of the particular stall. Indeed, the licence for all practical purposes passed down to the estate of a deceased licensee, although the name of the original licensee was retained on the register. Thus it happened that the plaintiff and, as well as the defendant, claims that as long ago as 1925 or 1926, the Kumasi Public Health Board (K.P.H.B) as the market authority, allotted stall No. R.3 exclusively to their respective mothers. The plaintiff alleges that not many years after the allocation, her mother, Akua Ackun, fell ill, and had to be sent down to Elmina, her home town, for cure. Akua Ackun was kept in Elmina for about 10 years; but before leaving Kumasi, she left her stall, R.3, in the charge of the defendant’s [p.1113] mother, Araba Mansah. When eventually Akua Ackun returned to Kumasi, still not in poor health, Araba Mansah had just died in 1965, leaving her daughter, the defendant, in the stall. The defendant refused to yield up the stall, even after the intervention of the K. C. C. Akua Ackun also died in 1974, with the occupancy of the stall still in dispute and before the close of that year, the plaintiff