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TSIBOE v. KUMASI MUNICIPAL COUNCIL


  • New
  • 1959-06-06
  • HIGH COURT
  • GLR 253-259
  • Print

MURPHY J.


Summary

Municipal Council?-Implied repeal of sec. 2 of the Public Officers Protection Ordinance?-Limitation on action against municipal council is 12 months?-Trespass aggravated by insult?-Damages lessened by plaintiff's conduct.

Headnotes

Mrs. Nancy Tsiboe was founder and principal of a school for girls, known as the Happy Home Institute, Kumasi. This enterprise had received recognition and financial support from the Government Social Welfare Department.In 1956 she began building premises for the school on plot No. 19 in the Asikwa residential area. Plans were drawn up and a building permit applied for, but the building was commenced before any permit had been granted. On the 16th November, 1956, the Town Engineer (Mr. Smith) issued to the plaintiff what purported to be a notice under section 68 (1) of the Municipal Councils Ordinance, 1953. This notice, which was later held by the Court of Appeal to have been invalid, required Mrs. Tsiboe to show cause why the building, or certain parts of it, should not be removed or demolished. She did not show cause, and continued building.In March 1957 Mrs. Tsiboe received notice from Town Engineer that the building was deemed to be dangerous. At about this time, she put 74 girls to live in the completed part of the building, contending that building operations had been regularly inspected by the Town Engineer's Department, and that there was no ground for anxiety. Correspondence went between Mrs. Tsiboe and the Council throughout March, April, May and June, 1957. On the 12th July the Town Clerk wrote to inform her that the Committee of Management (which had superseded the Council) had resolved on the 21st June that the building should be demolished. This letter requested the plaintiff to demolish the building before the 22nd July, failing which she should stand by to watch her property and other interests on that date, when demolition operations would be put in hand.Mrs. Tsiboe then applied to the Land Court, Kumasi, for an Order of Certiorari setting aside the Committee of Management's resolution of the 21st June, and the notice of the 12th July. Pending the hearing of the application she obtained an Order staying further proceedings or acts of the Committee of Management in respect of the building. On Friday the 29th November, 1957, the land Court dismissed the plaintiff's application and set aside the Order for stay.At about 7.30 a.m. on the following Monday, the 2nd December, without any further notice having been given to Mrs. Tsiboe, the Town Engineer, accompanied by the Assistant Town Engineer, the Senior Building Inspector, a gang of labourers and a bulldozer, arrived at the building and the demolition commenced. At that time the head teacher and many of the girls were on the premises, but it appears that, as this was a School Speech Day, other girls and Mrs. Tsiboe herself were at the Prempeh Hall preparing an exhibition. On receiving the news Mrs. Tsiboe saw her solicitor, and attempted unsuccessfully [p.254] to obtain an injunction from the Court that morning. The demolition (for which Mrs. Tsiboe later received a bill for 218 4s. 9d.) continued, and was completed during the next few days.Mrs. Tsiboe appealed against the ruling of the Land Court dismissing her application for an Order of Certiorari, and on the 9th June, 1958, the Court of Appeal gave judgment in her favour. On the 16th July, 1958, she instituted the present action for damages for the illegal demolition on the proceeding 2nd December (Suit No. D.C.224/1958, Kumasi.)

Judgement

(The judgment has been reported in full so far as it deals with questions of law; to complete the picture, the learned judge's findings of fact have been reproduced, but in abridged form.)

JUDGEMENT OF MURPHY J

I will deal first with the defendants' submission that this suit was instituted out of time. The demolition took place on the 2nd December, 1957, and the writ in this case was issued on the 16th July, 1958.

The defendants rely on section 2 of the Public Officers' Protection Ordinance, the relevant part of which reads as follows:?-

"2. Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any ordinance or of any [p.255] public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty, or authority, the following provisions shall have effect?-

(1) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage, within three months next after the ceasing thereof:"

"Person" is defined in section 3 (1) of the Interpretation Act, 1957, as including "any company or association or body of persons corporate or incorporate". On the face of it, therefore, the section would seem to apply to a municipal council.

However, section 150 of the Municipal Council's Ordinance, 1953, which is a later enactment than the Public Officers Protection Ordinance, reads as follows:-

"150. When any suit is commenced against a Council for any act done in pursuance or execution or intended execution of an ordinance or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, such suit shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof".

Various enactments are repealed by section 169 of the Municipal Councils Ordinance, but these do not include the Public Officers' Protection Ordinance.

On behalf of the defendant it has been submitted firstly, that section 2 of the Public Officers Protection Ordinance reproduces (except for a difference in the period of limitation) section 1 of the Public Authorities Protection Act, 1893, which has been held to apply to municipal corporations. Next it has been submitted that the use of the word "Officers" in the title of the Ordinance cannot affect the clear provisions of the Ordinance itself. Thirdly, it has been submitted that the Court frowns on implied repeals. Finally, it has been submitted that section 150 of the Municipal Councils Ordinance, 1953 must be regarded as being ineffective in view of the provisions of the previous Ordinance. In making these submissions Mr. Amissah has helpfully, and very fairly, referred me to a number of authorities, some of which would seem to be against him.

The case of In re Chance ([1936] Ch. 266) dealt with an apparent inconsistency between section 4 of the Judgments Act, 1864 and [p.256] section 195 of the Law of Property Act, 1925. In his judgment Farwell J. said at p. 268:?-

"But I think it is right to say this, that where a later Act does in terms repeal various earlier statutes, or sections of statutes and does not include in those repealed sections and statutes, the particular section or statute in question, the Court ought to be slow to read a section of the later Act as impliedly repealing the earlier enactment. If the court is forced to the conclusion that such enactment must be treated as repealed then it must do so, but I think that it should not do so unless it is impossible to put any reasonable meaning on the later section without implying the repeal of the earlier Act".

The learned judge went on to interpret the section of the Law of Property Act in such a way as to make it unnecessary to come to the conclusion that the relevant section of the earlier Act had been repealed.

In in re Berrey. Lewis v. Berrey ([1936] Ch.274) the same judge said, at p. 279:?-

"It is well settled that the Court does not construe a later Act as repealing an earlier Act unless it is impossible to make the two Acts or the two sections of the Act stand together, i.e. if the section of the later Act can only be given a sensible meaning if it is treated as impliedly repealing the section of the earlier Act".

Once again the learned judge went to find that it was not necessary in this particular case to imply a repeal.

The effect of these decisions seems merely to be that the Court will only imply a repeal as a last resort. I can find no authority for the proposition that where two enactments are totally inconsistent the later one must be disregarded. (The cases of In the Winding up of the Direct West End and Croydon Railway Company. Ex parte Lloyd (1 Sim. (N.S.) 248;61 E.R.96) and Port of London Authority v. Canvey Island Commissioners ([1932] Ch. 446), to which Mr. Amissah referred, seem merely to refer to erroneous recitals in Acts.) On the contrary, there are cases in which an earlier Act has been held to be repealed by implication, examples of which are given in Maxwell's "Interpretation of Statutes", 10th edition, at pages 164-167. One example which seems apposite to the present case is Rix v. Borton ((1840) 12 AE. 470; 113 E.R. 890), where it was held that section 109 of the Highways Act, 1835 (which enacted that "no action" for anything done under it should be begun after three months from the cause of action) was so clearly inconsistent, as regards actions against justices, with section 8 of the Constables' [p.257] Protection Act, 1750 (which limited the time to six months), that it necessarily repealed the latter.

In favour of the defendants it must, I think, be said that section 2 of the Public Officers' Protection Ordinance does apply to a body corporate. The word "person", as have already said, is defined by law, and it would be impossible to hold that the title of the Ordinance, or the marginal reference, overrides the clear meaning of the section. Under section 3(2) of the Municipal Councils Ordinance, 1953, a municipal council is a body corporate.

However, it seems to me to be impossible to make sense of section 150 of the Municipal Councils Ordinance, 1953 except by holding that it impliedly repeals section 2 of the Public Officers' Protection Ordinance so far as municipal councils are concerned. Consequently, in the light of the authorities cited hold that section 150 applies to the present case, and that the plaintiff is therefore within time, having instituted her suit within twelve months next after the act complained of.

I come now to the facts of the case. It will be convenient to consider the disputed facts under three main heads:?-

(1) the value of the building at the time of its demolition;

(2) the conduct of the plaintiff;

(3) the conduct of the defendants.

These all affect the measure of damages, and the third head is also relevant in considering whether the Committee of Management was genuinely acting in intended execution of a public duty.

I would say that, in considering the question of damages, the value of the building should be regarded as at least equivalent to the value of the work which had been put into it. Mr. Snack was able to give an estimate of this, albeit a very rough one. The original estimate of the cost of the whole of the building was 23,000, and there is nothing before me to show that this was not an accurate estimate, assuming that the building was properly constructed according to specifications, and in compliance with the requirements of the building regulations as to the materials used. Mr. Snack said that, having regard to the extent to which the work had progressed at the time of the demolition, and allowing for down-grading of the materials, he would estimate the cost up to then at about one-quarter of the total.

I come now to the conduct of the plaintiff, who has claimed a large sum as general damages over and above the value of the building. In paragraph 8 of her statement of claim she says, inter alia, that she had suffered a severe setback in her prestige and [p.258] reputation as a person fit to manage the Happy Home Institute. The defendants have sought to show that the plaintiff's conduct makes her undeserving of any general damages. They rely on the fact that the erection of the building was commenced and continued without permission, and in spite of the warnings issued to her; and that she put 74 girls to live in a building which she knew to be dangerous.

I think that there was some excuse for the plaintiff's continuing the erection of the building after November, 1956. But a different situation arose in March, 1957 when, after an inspection by Mr. Smith and Mr. Snack, the plaintiff received the letters from Mr. Smith and from the Town Clerk dated the 12th and 29th March respectively. The plaintiff then had notice that the building was deemed to be dangerous, but, although she did stop further work, she allowed the completed part of the building to be occupied by the girls. She says that Mr. Smith told her the girls could go in. But Mr. Snack's evidence shows that he and Mr. Smith were agreed that the building was dangerous, and it seems to me to be highly improbable that Mr. Smith would have been so foolhardy as to give permission for it to be occupied. I think that this is the most serious criticism that can be made of the plaintiff's conduct, namely that, having been warned of the danger, she put 74 girls to live in the building.

Finally, it is necessary to consider the conduct of the defendants, and in particular that of the Committee of Management, since it has been submitted on behalf of the plaintiff that this conduct was such as entitled her to exemplary damages. I am also asked to conclude from the evidence that, so far from acting in intended execution of a public duty, the Committee of Management acted maliciously, and ordered the demolition from political motives.

As Mr. Amissah has rightly submitted, it would be entirely wrong to infer a political motive merely because the plaintiff and the members of the Committee belonged to opposite political parties, otherwise no public body could carry out its proper functions without such an accusation being made. On the face of it, the Committee was merely continuing the action in relation to the plaintiff's building which had been started by the Council before it was suspended in April, 1957. I do not think that the Committee realised that what they were doing was unlawful, and after the judgment of the Land Court in December they had good reason to suppose that it was not unlawful. It is, in my view, impossible to regard the mere fact of the unlawful demolition as showing and improper motive, and one must look to see what other evidence there is to support this contention. [p.259]

Even putting the episode of demolition in the best light one can, I do not think one can regard it as anything but deplorable. I accept that once the Land Court had given its judgment the Committee of Management thought they had a right to demolish the building, and also that they thought that they were discharging their public duty in doing so, having regard to its dangerous condition, and to the fact that the plaintiff had disobeyed the notices sent to her. I am prepared to believe that the plaintiff's witnesses may be mistaken, or may be exaggerating, when they say that they were given only 15 minutes in which to vacate. But one would have expected that at least some notice would have been given to the plaintiff of the day on which the demolition was to take place. It may be said that notice had been given to her in July, and that her reply to this notice had been to institute Court proceedings. But in so doing she was only exercising her legitimate rights. It would appear that, in acting as they did, the Committee of Management wished to forestall any possibility of the demolition being further delayed. As a result of this, the plaintiff and the occupants of the school were taken by surprise. The plaintiff and a number of the girls were not at the school when the demolition started. Human nature being what it is, it is not surprising that the girls who were at the school should each have concentrated on securing her own personal belongings. Nor is it surprising that there was a certain amount of panic, accepting Mr. Snack's evidence that the demolition of part of the building had already started while the girls were removing their possessions. In these circumstances I accept that a number of things were lost in the demolition, that there was considerable distress caused to the girls, and that many of them did not return to the school after the Christmas vacation.

I find, therefore, that the trespass was aggravated by the insulting manner in which it was committed, though I am not prepared to say that the committee were acting merely from political bias. One must however, set against this aggravation what has already been said about the conduct of the plaintiff herself. The events of the 2nd December would not have been the same if the plaintiff had paid more attention to the instructions and warnings issued to her by the defendants, and if she had not allowed the girls to occupy a dangerous structure. This does not make the conduct of the Committee of Management any better, but it does mean that the plaintiff is a good deal less deserving of substantial damages than she would otherwise be.

In the light of the various matters I have mentioned, and of the conclusions drawn, I think that 7,000 would be a fair and reasonable [p.260] sum to award to the plaintiff as compensation for the unlawful destruction of her property.

Judgment for the plaintiff for 7,000 and 200 guineas costs.

(The Kumasi Municipal Council lodged an appeal in the Court of Appeal against the foregoing decision, and a stay of execution was granted.

On the 22nd December, 1959, the Kumasi Municipal Council (Validation of Powers) Act, 1959, received the Royal Assent in the Ghana Parliament. Section 2 of the Act provided as follows:?-

"The acts of the Kumasi Municipal Council relating to entry upon the land known as Plot 19 of Block II of the Asukwa Residential Area and the demolition of buildings thereon before the passing of this Act are hereby validated and declared to have been lawfully done; and the Council and its servants, agents and workmen are indemnified against liability to pay compensation or damages in respect of the acts validated, notwithstanding the provisions of section 34 of the Ghana (Constitution) Order in Council, 1957 or any rule of law."

Thereafter, the Kumasi Municipal Council withdrew the appeal, and it was formally dismissed on the 20th April, 1960).

Decision


Plaintiff / Appellant

Reindorf

Defendant / Respondent

Amissah

Referals

(1)  In re Chance ([1936] Ch. 266);

(2)  In re Berrey. Lewis v. Berrey ([1936] Ch. 274);

(3) In the Winding up of the Direct West End and Croydon Railway Company Ex parte Lloyd. (1 Sim. (N.S.) 248; 61 E.R. 96)

(4) Port of London Authority v. Canvey Island Commissioners ([1932] 1 Ch. 446);

(5) Rix v. Borton & anor. ((1840) 12 A. & E. 470; 113 E.R. 890).

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