LARBI vs. SALLOUM [1986]DLCA937

Date	1986-02-21
Suit No.
Citation No.	[1986]DLCA937

TAYLOR J.S.C

ABBAN J.A

AMPIAH J.

BOADU FOR THE APPLICANT.

ACHEAMPONG FOR THE RESPONDENT.

[1986]DLCA937
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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LARBI <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 449<o:p></o:p>

DATE:
21 FEBRUARY 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

BOADU
FOR THE APPLICANT. <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">

TAYLOR J.S.C., ABBAN J.A. AND AMPIAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>Taylor
J.S.C. delivered the ruling of the court. This is a motion on notice filed in
this court on 4 February 1986 for a stay of execution in connection with a
judgment obtained against the applicant at the district court grade I on 1
August 1985, and from which judgment he had on 19 August 1985 lodged an appeal
to the High Court. A previous application to the High Court was also refused on
3 February 1986. From this refusal the applicant lodged an appeal to this court
on 4 February 1986 and on the same day he filed his said motion for a stay.<o:p></o:p><o:p>&nbsp;</o:p>The facts
are hardly in dispute and they can be gathered from the judgment of the
district court and the affidavits of the applicant and the respondent. By that
judgment, the applicant who was the defendant in the action at the district court
and a tenant of the plaintiff-respondent was ordered to surrender vacant
possession of the premises on or before 1 October 1985 to enable the respondent
to effect repairs which the City Engineer acting for the Accra-Tema City
Council and proceeding apparently under the provisions of section 44 of the
Local Administration Act, 1971 (Act 359), had ordered the respondent to
undertake repair because the premises were in a ruinous and, in her finding,
dangerous condition. Previously, officials of the Ministry of Health had
visited the building and ordered the respondent to evict all tenants as the
house was a health hazard and “not fit for human habitation.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In
ordering the defendant to give up the premises for the purpose of repairs, the
learned district magistrate observed that in her opinion the house was in such
a state of disrepair that construction work could not possibly be carried out
with the applicant in occupation.<o:p></o:p><o:p>&nbsp;</o:p>In the
course of the trial the learned magistrate visited the locus in quo. This excerpt
from her judgment shows her appraisal of the factual position:<o:p></o:p>The court
visited the locus and the findings which were not in dispute were these:<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">“There
were deep cracks in the outside wall; the cement floors were broken in the
yard; the building in dispute comprised three floors. The top floor had all the
iron-rods exposed and rusted; almost all the ceiling had peeled off, and there
were large cracks, along the columns. As for the interior of the ground floor,
there were no cracks in the walls of the rooms, but there were deep cracks at
all the four corners of the building running deeply along the columns from the
top to the very foundation of the building.”<o:p></o:p><o:p>&nbsp;</o:p>In view
of these findings when she visited the premises the learned district magistrate
said:<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">“It is
not in dispute that the building is two storey neither is it in dispute that
there are deep cracks in the columns; having regard to the fact that buildings
are constructed from the foundation, can i</main>