DWOMOH vs. OBUASI URBAN COUNCIL [1972]DLCA2216

Date	1972-02-14
Suit No.
Citation No.	[1972]DLCA2216

AZU CRABBE J.S.C.

LASSEY JA

SOWAH J.A.

LUTTERODT FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1972]DLCA2216
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													<main id="main" class="content" style="min-height: 60rem" >DWOMOH <o:p></o:p>vs.<o:p></o:p>&nbsp;OBUASI URBAN COUNCIL <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&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;&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 301<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
14 FEBRUARY 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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LUTTERODT FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AZU CRABBE J.S.C., LASSEY AND SOWAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.<o:p></o:p>This
appeal was by the plaintiff, the appellant herein, against the decision of the
High Court, Kumasi, which dismissed a claim for damages against the defendants,
the respondents herein. The appellant was the lawful owner of a house on plot
number 301 situate on Insuta Street, Obuasi, which he bought. By a scheme of
development and layout by the respondent council, the appellant’s property
became affected and, as a result, the respondents recovered possession of it.
In replacement, the appellant was given a new lease of two plots known as No. 9
at Kwabrafoso and No. 101 at Tutuka, respectively. Both plots are within the
Obuasi area under the administration of the respondent council which
administered all the lands in Obuasi for and on behalf of the Ashanti
Goldfields Corporation, the owners thereof.<o:p></o:p><o:p>&nbsp;</o:p>The
respective plots were re-allocated to the appellant in 1951, and he entered
both and paid the annual rents regularly and these were received from the
commencement of the lease in 1951 up to the period 1960 that is, one year in
advance. The appellant said after that he applied for and obtained from the
respondent council building permits Nos. 547 and 548 preparatory to engaging on
building activities on the two plots. He said he had virtually completed the
building on one of the plots which had reached roofing level when the
respondent council in November 1956 gave notice of its intention to re-enter
the plots on the ground of failure to build on time, and did enter. Thereupon
the appellant sued the council to recover damages for unlawfully determining
his occupation of the plots.<o:p></o:p>The
ground given by the respondent council for its decision to re-enter the plots
was that the appellant had failed to develop the two plots assigned to him by
the council by not having buildings erected on them in compliance with the
councils building regulations and also in breach of the condition which
required him to build on the plots within twelve months of going into
occupation.<o:p></o:p><o:p>&nbsp;</o:p>It seems
when the plots were being allocated to the appellant, no written lease or
agreement embodying the vital condition to build within twelve months was
produced and shown to him. The appellant said he was never told of this condition
by the clerk of council at the time of the reallocation of the plots. This the
clerk denied in his evidence, and said he communicated to the appellant
verbally that occupation of the plots was subject to the fulfilment of the
condition to build within twelve months, and the appellant seemed to have
understood the same.<o:p></o:p><o:p>&nbsp;</o:p>A vital
condition of occupying the two plots originally belonging to the respondent
council was that the buildings were to be completed and finished to the
satisfaction of the council within the time stipulated. This appeared not to
have been done by the appellant at the time the council exercised its right of
re-entry. The right of re-entry relied on by the respondents arose upon breach
of the condition to build contained in the verbal lease which the appellant’s
own pleadings showed clearly had been communicated to him and that he knew of
this condition before he accepted the offer of the plots.<o:p></o:p><o:p>&nbsp;</o:p>On the
issue whether or not the appellant had partly developed either of the two plots
by commencing building work on it, the learned judge preferred the evidence of
the officials of the council who inspected the sites and found no existing
building on either of them, and made a positive finding. The judge was also
satisfied that the appellant knew that the condition of the allocati</main>