KWAME BOATENG DANKWAH & ORS v. OPANIN ADU BOAHENE
2015
COURT OF APPEAL
GHANA
CORAM
- E. K. AYEBI, J.A. (PRESIDING)
- G. TORKORNOO (MRS), J.A.
- A. M. DOMAKYAAREH (MRS), J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellate court reviewed an appeal against a High Court judgment favoring the defendant in a land boundary dispute case. Both parties acquired portions of land from the same vendor, Narrow Pharmaco Limited. Plaintiff claimed ownership of Plot No. 197A, entangled in a boundary dispute with Defendant claiming Plot No. 197B. The trial court's judgment in favor of the Defendant was challenged on grounds that it was against the weight of evidence and the amendment of Defendant's defence was improper. The Court of Appeal allowed the appeal, set aside the trial court's judgment, and emphasized that appellate intervention is warranted when lower court decisions rely on misdirected findings or improper amendments.
J U D G M E N T
A. M. DOMAKYAAREH (MRS), J.A.
1. In this case, we consider an appeal against a judgment of the High Court, Kumasi, delivered on 5th February, 2013 against the Plaintiff/Appellant herein.The Plaintiff, suing per his true and lawful Attorney, Kwaku Antwi Dankwah, issued a Writ of Summons, claiming against the Defendant:
· a declaration that the ownership of Plot No. 197A, New Asafo, Kumasi and measuring 90 feet by 195 feet by 90 feet by 180 feet is vested in the Plaintiff;
· damages for trespass;
· recovery of possession and
· an Order for perpetual injunction restraining the Defendant, his agents, servants and any person claiming title through him from interfering with the Plaintiff’s land in dispute.
2. The Plaintiff’s case was that Narrow Pharmaco Limited owned a large tract of land known as 197 Sector 13 New Asafo Kumasi; that the company decided to assign a portion of the said land to developers and consequently applied to the Town and Country Planning Department to re-zone the land which was done. The Plaintiff then applied for a portion of the land and was assigned a portion of the land described as Plot No. 197A, New Asafo, layout of Kumasi, measuring as claimed in his Writ of Summons. The Plaintiff averred in his Statement of Claim that the Defendant applied for Plot No.197 A from Narrow Pharmaco Limited long after he had acquired his land; that the Defendant trespassed unto a portion of Plaintiff’s land and was fervently developing same into a car washing bay even though ownership of the land was not vested in him, hence his claim per the Writ of Summons.
3. The Defendant, upon entering appearance, filed a Statement of Defence and followed it up with a Counterclaim. The Defendant denied the claims of the Plaintiff and went on to aver, in general answer to the Plaintiff’s claim at paragraph 8 of his Statement of Defence that:
i) The parties were each assigned a portion of the property numbered 197, Sector 13 New, Asafo, Kumasi, by Narrow Pharmaco Limited, owner of the said property.
ii) That the Plaintiff was initially assigned a partly developed portion consisting of almost completed 4 stores on the ground floor.
iii) Provided for in the building plan of the Assignor were a further 4 stores to be separated from the 4 almost completed by the staircase which was to lead to the floors above.
iv) The Plaintiff was given the land on which the further 4 stores were to be erected, and he instead of staircase, constructed a f