KODI vs. ACCRA–TEMA CITY COUNCIL [1975]DLHC399

Date	1975-11-17
Suit No.
Citation No.	[1975]DLHC399

APALOO J.A.

OKINE FOR THE PLAINTIFF.

NELSON-ADDY FOR THE DEFENDANT.

[1975]DLHC399
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													<main id="main" class="content" style="min-height: 60rem" >KODI <o:p></o:p>vs. <o:p></o:p>ACCRA–TEMA CITY COUNCIL<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 2 GLR 348<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:
17 NOVEMBER 1975.<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">

OKINE FOR THE PLAINTIFF.<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">

APALOO J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
plaintiff, who I should judge to be in his early forties, is a carpenter by
profession. He struck me as an industrious and serious-minded individual. Some
time in the early 1950s, he built a house on a plot of land near the beach at
Labadi. He said that before building that house, he had farmed on the land.
That house is still in existence and he lives there with his family. It is
numbered as GB 503/3.<o:p></o:p><o:p>&nbsp;</o:p>In 1967,
he began the erection of another house near his old house. It is said to be
either contiguous to or in close proximity with his old house. He completed the
construction of that house in August 1968. He has produced in evidence both the
plan and a picture of it. It is not a very elaborate structure. The building
inspector who officially reported on it (see exhibit A) described it as a
“block building of four rooms with enclosed verandah.” But it looks attractive,
at any rate from the picture that I saw of it and is the type that would easily
attract tenants. No wonder that it was immediately tenanted. The plaintiff let
each room at ¢20 per mensem and was making an aggregate of ¢80 per month from
this house. He produced in evidence a valuation of that house by a quantity
surveyor. It was estimated to cost ¢6,720.42 (see exhibit O).<o:p></o:p><o:p>&nbsp;</o:p>That
house is no longer in existence. It was demolished by the defendant council
(which I shall hereafter call the council) on 16 June 1969. The plaintiff
sought, by a prerogative writ, to prevent its demolition but was unsuccessful.
The sequel of it is this action in which he sought damages against the council
for trespass. There is also endorsed on the writ, a claim for perpetual
injunction against the council for “further acts of trespass.” As this
particular alleged wrong was committed long before the issue of the writ and as
there was no suggestion that the council threatened or evinced any intention to
demolish the plaintiff’s other house, this particular relief is unclear to me.
In any event, nothing in this case turned on the inappropriateness of that
claim.<o:p></o:p><o:p>&nbsp;</o:p>The
council admits the demolition but disputes the plaintiff’s claim that it was in
any way unlawful or entitles him to damages. It says that the building was
constructed in contravention of regulation 3 (1) of the Accra Building
Regulations, 1944 (No. 6 of 1944), in as much as the plaintiff erected it without
obtaining a permit to do so from its engineer. It says that the house being an
unauthorised structure, it was entitled, after complying with certain statutory
regulations to demolish it and it did so demolish it. As to the statutory
procedure, the council points to section 59 (1) of the Local Government Act,
1961 (Act 54), with which it says it complied. As to the real actus of
demolition, it says it did so in pursuance of powers conferred on it by the
Demolition of Unauthorised Structures (Cities and Municipal Councils Area)
Decree, 1968 (N.L.C.D. 320). The plaintiff disputes the applicability of
N.L.C.D. 320 to the facts of this case and says the matter was wholly governed
by section 59 of the Local Government Act, 1961 (Act 54), with which the
council failed to comply.<o:p></o:p><o:p>&nbsp;</o:p>Accordingly,
the main question on which this court’s decision is invited is: Was this
seeming trespass statutorily authorised? If it was, cadit quaestio, there must
be an end of this case. If it was not, the council can have no valid answer to
the plaintiff’s claim. Before attempting an answer to the crucial issue, there
are a few subsidiary issues of fact which must be determined as these may
become material hereafter. The council is obliged by virtue of section 59 (1)
of the Local Government Act, 1961 (Act 54), to serve, what the city engineer
called a “demolition notice” on the plaintiff before taking any steps to pull
down his building. According to Mr. Kuragu, the city engineer, such notice was
served on the plaintiff. The latter denies this. On the available evidence, the
balance of probability is in favour of the truth of the engineer’s evidence.
The plaintiff himself produced in evidence a letter addressed to the town clerk
by the city engineer. That letter reported on the plaintiff’s building and
described it as unauthorised. To it was attached an inspection report (exhibit
P) on the plaintiff’s building prepared </main>