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GLOVER v. ACCRA MUNICIPAL COUNCIL


  • New
  • 1961-04-05
  • HIGH COURT
  • GLR 186-190
  • Print

OLLENNU, J.


Summary

Municipal councils?-Building pulled down pursuant to notice served under s.68 (1) of the Municipal Councils Ordinance No. 9 of 1953?-Validity of such notice?-Trespass.

Headnotes

The plaintiff began to build on a plot of land belonging to him at Tesano, near Accra. He did not obtain a development permit or a building permit, as Tesano was at the time, outside Accra planning area. On the 5th November, 1959, the defendants served the plaintiff with notice under section 68 (1) of the Municipal Councils Ordinance, No. 9 of 1953, requesting him to show cause why the unauthorised building ?"should not stop?". The notice is reproduced in full in the judgment. (See p. 187 infra). On his failing to show cause satisfactory to the council, the council on the 13th May, 1960 demolished the building. The plaintiff took action against the defendants for G850 damages for trespass, G550 representing the cost of the structure as at the date it was pulled down. The defendants relied on the notice they served, and on a second one allegedly served by them on 5th January, 1960, the receipt of which latter notice the plaintiff denied.

Judgement

ACTION for damages for wrongful demolition of plaintiff?'s building in course of construction, the said demolition purporting to have been carried out under the Municipal Councils Ordinance, No. 9 of 1953.

In this case the plaintiff claims G550 special damages and G300 general damages for the demolition of his building situate at Tesano, Accra. The basis of his claim is that the said demolition is unlawful.

As most of the facts relied upon by the plaintiff are either admitted or have not been refuted, it is well at the onset to state them very briefly before turning to the controversial issues and the law involved.

The plaintiff was occupier of house No.C93/4 Ring Road, Adabraka, Accra; the said house was affected by a scheme for widening the Ring Road, and eventually the Commissioner of Lands, by letter dated the 10th November, 1959, gave notice to him to vacate the said premises, and to do so by the 28th November, 1959, as government urgently wanted to demolish the said building for the purpose of widening the Ring Road. The period within which the plaintiff was to vacate the building was by letter from the Commissioner of Lands dated 20th December, 1959, extended to 4th January, 1960. As soon as it became apparent to the plaintiff that he would be called upon to vacate his said premises, he commenced to erect the building, the subject-matter of this suit, on a piece of land he owned, situate at Tesano. On the 2nd November, 1959, he was served with notice under section 68(1) of the Municipal Councils Ordinance1, to stop his building operation. That notice was admitted in evidence in this case and marked exhibit A; it is in the statutory form, as provided in the Second Schedule to the Ordinance. It reads:

"Take Notice That you are required on or before the 9th day of November by a statement in writing under your hand or the hand of some person duly authorised in that behalf by you and served upon the Town Clerk, Accra, to show cause why the unauthorised Land-crete Building of 4 Rooms, Kitchen, Bath and Latrine (foundation concreting proceeding) which has been constructed/executed in contravention of Section 68(1) of the Municipal Councils Ordinance, 1953, should not stop.

Dated 2nd day of November, 1959.

Sgd. For Town Engineer?".

Pursuant to the said notice the plaintiff, on the 6th November, 1959 wrote to the town clerk asking for an interview. He received no reply. [p.188]

It is the plaintiff's belief that the area Tesano, which is a long distance away from Accra, is outside the Accra planning area under the Town and Country Planning Ordinance2, and is also outside the municipal boundary, and that no permits are required either for development and for the erection of buildings as required by the Town and Country Planning Ordinance3, or the Municipal Councils Ordinance4. In fact at the time the plaintiff commenced the erection of his building on the said land and to this day there are a large number of buildings in the area either completed or in the course of erection, and no permits have been granted in respect of any of them.

On the 26th November, 1959, the plaintiff applied to the planning board for the Accra planning area for permission to develop his said land, but received on the 10th December, 1959 a form exhibit C from the secretary of the board stating that no permit could be granted to him because the site falls outside the development area; in other words, that no permits are necessary from the planning board for the erection of buildings on the site. In consequence of that information, the plaintiff, jointly with two other persons who intended building in the area petitioned the defendant council for special permission to build in the area. In reply to their said petition the town engineer wrote to the plaintiff and his co-petitioners advising them ?"to approach the Town Planning Officer, Accra Region, for examination of the possibility of extending the present layout at Tesano, near the C.F.C. Housing Estate, by one building block in order to take in your area?". That letter is dated the 4th February, 1960, and is marked exhibit E in this case.

Acting upon the said advice of the town engineer, the plaintiff approached the town planning officer and the latter suggested to him that he could build on his land upon an undertaking that if, when the area was laid out, a road should run through his building and it should become necessary to demolish the same, he would not claim compensation for such demolition. The plaintiff brought that suggestion to the notice of Mr. Agbenu, D.W.1, the council's building inspector then in charge of the area, and having been assured by him, Mr. Agbenu, that he could proceed with the work upon that undertaking, the plaintiff continued with the erection of the said building.

On the 13th May, 1960, Mr. Ben Quaye, D.W.2, who succeeded Mr. Agbenu as building inspector in charge of the area, had the plaintiff's said building demolished.

The defence is that on the 5th January, 1960, the council had a second notice served on the plaintiff asking him to show cause in writing before the 12th January, 1960, why his said building should not be demolished, but the plaintiff failed to comply with the said notice and therefore the council pulled down the building. The plaintiff of course denied that any notice was served upon him on the 5th January, 1960. It was also submitted by learned counsel for the defendant council, that quite apart from the [p.189] plaintiff's failure to comply with the request in the alleged second notice, the letter exhibit B which he wrote to the town clerk upon his receipt of the first notice exhibit A, was defective in that it failed specifically to state any reason why the building should not be pulled down and therefore the council was justified in pulling down the building.

Two questions arise upon this defence:

(i) Was any notice served upon the plaintiff on the 5th January, 1960, as alleged by the defence?

(ii) If a second notice was served, are the two notices valid or is any of them valid?

(His lordship then reviewed the evidence relating to the alleged second notice of the 5th January 1960, and came to the conclusion that no such notice was in fact served on the plaintiff. He then continued:] But even if a second notice was served upon the plaintiff the important legal question is: are the notices said to be issued under section 68(1) of the Municipal Councils Ordinance5, or any of them valid?

The said section 68(1) reads as follows:

"If any building or other structure is being or has been constructed or if any work is being or has been executed in contravention of any regulation made under the provisions of section 67 of this Ordinance or of any permit granted under any such regulation, a Town Engineer may give notice in writing in the form prescribed in the Second Schedule to this Ordinance to the owner of the premises whereon such contravention is taking or has taken place, if he is known and resides in the Gold Coast, and the occupier, if any, of such premises, requiring such owner and occupier on or before such day as may be specified in such notice, by a statement in writing under his hand or under the hand of an agent duly authorised in that behalf and duly served upon the Town Clerk to show sufficient cause to a committee appointed by the Council for the purpose why such building, structure or work should not be removed, altered or pulled down.?"

As is apparent on its face, notice under the section can only issue ?"if any building or other structure is being or has been constructed or if any work is being or has been executed in contravention of any regulation made under the provisions of section 67 of this Ordinance or of any permit granted under any such regulation?". Therefore, for such a notice to be valid or effective it must specify the particular regulation made under section 67 which has been contravened. It is well to remember that the said section 67 makes provision for the erection of a building both with and without permit, therefore the non-existence of a building permit in respect of a building or structure is not of itself enough justification to invoke section 68(1) of the Ordinance. Some particular provision regulating building under a building permit, or building without a building permit must first be infringed and in giving such notice under section 68(1), that regulation made under section 67 which has been infringed must be specified.

The legal principles governing notices issued under section 68(1) of the Municipal Councils Ordinance6 were discussed in great detail by the Court of Appeal in Nancy Tsiboe v. Management Committee of the Kumasi Municipal Council.7 In the course of that judgment their Lordships after citing the said section 67(1), stated as follows: [p.190]

"This and section 68 make it clear in our view that the legislature was providing for the control not only for work under a permit but also work carried on otherwise than under permit, and was further providing that, where the latter was the case, it was imperative for the local authority to state precisely which was the regulation, which of its regulations was being or had been contravened?".

That is the principle which must be applied to this case.

Now the notice exhibit A called upon the plaintiff by a statement in writing to the town clerk to show cause why his building ?"which has been constructed/executed in contravention of section 68(1) of the Municipal Councils Ordinance 1953 should not stop?". That is to say the particular regulation which the plaintiff is alleged to have contravened is section 68(1). In short the notice on the face does not allege any contravention of any regulation made under section 67; therefore the notice is invalid. Thus even if a second notice was given, which I have found was not given, it has not been shown that it was in a different form; the presumption therefore is, that it was in the same terms, and therefore that too is invalid. It follows that the demolition which was carried out pursuant to those invalid notices or any of them is itself illegal, and an unlawful interference with the civil rights of the citizen.

[His lordship then proceeded to assess damages, which he fixed at G550 special and G200 general].

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

K. Ohene Ampofo

Defendant / Respondent

Andoh

Referals

Nancy Tsiboe v. Management Committee of the Kumasi Municipal Council, Court of Appeal, June 9, 1958, unreported.

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