DR. RADHA HACKMAN & 2 OTHERS vs. MRS. J. S. MAXWELL & ANOTHER [2005]DLHC7402

Date	2005-10-21
Suit No.	SUIT NO. AC 40/2003
Citation No.	[2005]DLHC7402

HIS LORDSHIP YAW APPAU J

BENTSI-ENCHILL & LETSA FOR PLAINTIFFS.

CHARLES ZWENNES OF ZWENNES HUGHES & CO FOR THE DEFENDANT.

[2005]DLHC7402
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													<main id="main" class="content" style="min-height: 60rem" >DR. RADHA HACKMAN &amp; 2 OTHERS<o:p></o:p>vs.<o:p></o:p>MRS. J. S. MAXWELL &amp; ANOTHER<o:p></o:p>[HIGH COURT (FAST TRACK DIVISION),
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. AC 40/2003&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; &nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 21ST OCTOBER, 2005<o:p></o:p>

</div>COUNSEL:&nbsp;<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BENTSI-ENCHILL &amp; LETSA FOR
PLAINTIFFS.<o:p></o:p>

CHARLES ZWENNES OF ZWENNES, HUGHES
&amp; CO FOR THE DEFENDANT. <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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HIS LORDSHIP YAW APPAU, J<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>In the months of June 2001
and April/June 2002, the city of Accra experienced serious flooding, which caused
havoc to property of some residents and even loss of lives in some parts of the
metropolis. This attracted wide media coverage and outcry by residents in the
city who were seriously affected. The plaintiffs happened to be some of the
victims of the floods. In their case, they blamed the defendant Mrs. J. S.
Maxwell for their woes. <o:p></o:p>According to them, had the
defendant not undertaken some developments over a drain behind her house, which
serves as the main waterway in the area, they would not have suffered the way
they did during the floods. They therefore took this action on 4/7/2002 against
the defendant claiming the reliefs as endorsed on the writ of summons. <o:p></o:p>The plaintiffs later
applied to have the Accra Metropolitan Assembly (AMA) joined in the action as
co-defendants blaming them for authorizing ,or permitting the defendant to
undertake the said offensive developments that led to the floods. <o:p></o:p>Their pleaded case in
brief was that the 1st plaintiff is a medical practitioner and sole proprietor
of Dua Clinic, located on the ground floor of 3rd plaintiff's property, i.e.
House Number 805/3, 5th Crescent Street, Asylum Down, the 2nd plaintiff is the
sole proprietor of a recording studio called Kays Frequency also located in the
outhouse of the same property while the 3rd plaintiff is representing the Dua
Family as owner of the house or premises where 1st and 2nd plaintiffs run their
businesses. <o:p></o:p>In or about the year 1998,
the defendant and her agents caused structures to be built over the waterway in
the area by covering the main watercourse or gutter with concrete slabs, which
she used as a parking area for her tenants and their customers. She then
constructed strong walls to seal off the area from water. This development
obstructed the free flow of water in the gutter or watercourse leading to
massive build-up of water in the area and consequent flooding anytime there is
a heavy downpour. <o:p></o:p>The first flooding they
experienced was on 27th June 2001, which caused substantial damage to their
property. They particularized the damage caused them under paragraph 9 of their
Amended Statement of Claim filed on 22/5/2003. <o:p></o:p>According to them,
portions of the wall built around their property collapsed under the weight of
the 'dammed' water resulting from defendant's development. This led to massive
flooding in the vicinity, which affected 1st and 2nd defendants' equipment in the
clinic and the recording studio. The hospital equipment and gadgets of the 1st
plaintiff and then the 2nd plaintiff's tapes, records, computers and studio
equipment were all completely submerged in water. Some were destroyed and
others damaged, which were later repaired at great expense. <o:p></o:p>Also damaged were cars
then parked in the yard of the house and electrical cables in the property,
which were all submerged. Again, there was a massive build-up of dirt and
debris in the compound of the house, which was cleaned at great expense to the
plaintiffs. They protested to the agent of the defendant and the co-defendant
but to no avail. About a year later, precisely on 8th April 2002, another
flooding occurred in the area after a heavy downpour. The walls that collapsed
during the first flooding, which they had reconstructed, collapsed the second
time causing similar flooding and damage to their property. They again
complained to the co-defendant (AMA). The co-defendant delegated its Head of
Drainage to inspect the area and defendant's construction. The officer
recommended the demolition of defendant's construction and the co-defendant
issued a notice to that effect. The defendant did not comply with the notice
until the co-defendant sent its workers to remove the offensive structures
somewhere on June 14th 2002 after another massive flooding caused by torrential
rains on 9th and 14th June respectively. They were therefore compelled to take
this action claiming the reliefs as endorsed on the amended writ of summons and
statement of claim filed on 27/5/2003. <o:p></o:p>I have to emphasize here
that the original writ was against the defendant only. The plaintiffs were
compelled to join the co-defendant to the suit because of defendant's pleading
that it was the co-defendant that authorised or permitted her to construct the
structures plaintiffs were complaining of. <o:p></o:p>The defendant and
co-defendant were separately represented so they filed separate statements of
defence. The co-defendant denied ever granting permit or authorizing the
defendant to undertake the said developments plaintiffs were complaining of and
maintained that it was for this reason that it sent its workers to remove the
structures when their attention was drawn to it. The co-defendant accordingly
denied liability of any kind in the action. <o:p></o:p>The defendant also denied
liability and maintained that neither the concrete slabs sh</main>