REPUBLIC vs. DISTRICT MAGISTRATE, ACCRA; EX PARTE ADIO [1972]DLCA2414

Date	1972-05-22
Suit No.
Citation No.	[1972]DLCA2414

KOI LARBI J.S.C

ARCHER JA

ANNAN J.A.

JOE REINDORF FOR THE APPELLANT.

ADDY (WITH HIM B. A. ADDO) FOR THE FIRST RESPONDENT.

CARL QUIST (WITH HIM A. K BANNERMAN-WILLIAMS) FOR THE SECOND RESPONDENT.

[1972]DLCA2414
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>DISTRICT MAGISTRATE, ACCRA; EX PARTE ADIO <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]
1 GLR 125<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:
22 MAY 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;
padding:0in 0in 0in 0in">

JOE REINDORF FOR THE APPELLANT.<o:p></o:p>

ADDY (WITH HIM B. A. ADDO) FOR THE FIRST
RESPONDENT.<o:p></o:p>

CARL QUIST (WITH HIM A. K BANNERMAN-WILLIAMS) FOR
THE SECOND RESPONDENT.<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;
padding:0in 0in 0in 0in">

KOI LARBI J.S.C., ARCHER AND ANNAN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF ARCHER J.A.<o:p></o:p>This is
an appeal from the refusal of the High Court, sitting at Accra, to grant
certiorari to quash an order for the sale of a house for non-payment of general
rates by virtue of paragraph 20 of Schedule VII to the Local Government Act,
1961 (Act 54).<o:p></o:p><o:p>&nbsp;</o:p>The
history of the case may be summarised in the following chronological order: In
April 1965, one G. K. Quami who was the owner of estate house No. B.174/8,
Kaneshie, as lessee of the Ghana Housing Corporation, assigned his interest to
the appellant, Winfried Barton Adio, with the consent of the lessors. At the
time of the assignment, G. K. Quami had his name entered in the books or
registers of the Accra-Tema City Council as the owner-occupier to whom all
demand notices were to be sent. The name of G. K. Quami, notwithstanding the
assignment, remained on the register without any rectification. The appellant
claimed that in September 1965, he requested the Accra-Tema City Council by
letter to enter his name as the new owner-occupier.<o:p></o:p><o:p>&nbsp;</o:p>In March
1966, the Town Clerk of the Accra-Tema City Council filed a single application
in the District Court, Accra for an order to sell a number of houses, including
the estate house now in dispute, for non-payment of general rates for the year
1963-64. The application was heard on 4 April 1966 and the order of the court
reads as follows: “Motion ex parte for sale is not granted. By virtue of
section 20 of Act 54 I am asking the A.-T.C.C. to enter possession of the said
premises to recover the respective amounts owing.” The effect of the district
court’s order was to enable the city council to take possession of the estate
house in question, let it to tenants, collect rents and use the rents to pay
the general rates overdue. This is provided for by paragraph 20 (2) of Schedule
VII which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In a
case where an order has been made entitling a Council to take possession of
premises the Council may lease the premises and from the income derived from
the premises they shall deduct— (a) all the costs and expenses of and
incidental to the taking of possession; and (b) all the expenses incurred in
the management and leasing of the premises, and the residue of the moneys
remaining in the hands of the Council derived from the premises shall be
applied by the Council in satisfaction of the rate payable. On satisfaction of
the rate payable in any manner the Council shall relinquish possession....”<o:p></o:p><o:p>&nbsp;</o:p>There is
no indication that the city council in pursuance of the court order for
possession took steps or attempted to go into possession. However, in the first
week of June 1966, the city council filed an ex parte motion for review of the
court’s earlier order for possession. The main reason stated in the affidavit
supporting the application for review was “That this order [for possession] has
been most impracticable to execute due to the fact that landlords and tenants
have not co-operated with council regarding collection of the rates due.” The
city council therefore prayed that an order for sale should be substituted for
the order for possession. Accordingly, on 13 June 1966 the district magistrate
minuted the following in the record book, “Motion granted as prayed.” But it
appears that for unknown reasons, the formal order for sale was signed on 27
September 1967 by another magistrate, fifteen months after the motion had been
granted. As a result, the estate house was sold by public auction conducted at
the premises on 2 July 1968 to the second respondent, Cecilia Martey.<o:p></o:p>