KWABENA OBENG AND ERIC AKWASI PREMPEH vs. KUMASI METROPOLITAN ASSEMBLY (KMA) AND KOJO BONSU [2015]DLCA3142

KWABENA OBENG AND ERIC AKWASI PREMPEH vs. KUMASI METROPOLITAN ASSEMBLY (KMA) AND... [2015]DLCA3142

Date	2015-11-19
Suit No.	CIVIL APPEAL NO. H1/9/2009
Citation No.	[2015]DLCA3142

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS) J. A.

DOMAKYAAREH (MRS) J. A.

KWASI AFFRIFA WITH AMA ASENSO FOR PLAINTIFFS/APPLICANTS

KWABENA AFRIFA NSIAH WITH VIDA ACHIAA YEBOAH FOR DEFENDANTS/RESPONDENTS

[2015]DLCA3142
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >

KWABENA OBENG AND ERIC
AKWASI PREMPEH

KUMASI METROPOLITAN
ASSEMBLY (KMA) AND KOJO BONSU

&nbsp;[COURT OF APPEAL, KUMASI]

CIVIL
APPEAL NO. H1/9/2009&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;&nbsp;
DATE: 19TH NOVEMBER, 2015

</div>

COUNSEL:&nbsp;&nbsp;

KWASI AFFRIFA WITH AMA
ASENSO FOR PLAINTIFFS/APPLICANTS,

</div>

</div>

&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;

JUDGEMENT

</div>

TORKORNOO, J. A:

The
Defendants/Respondents (hereinafter referred to as Respondents) are a
Metropolitan Assembly and its Chief Executive. The Appellants sued the Respondents
on 25th June 2015 and served the writ on the same date. On 6th
July 2015, eleven days after service of the Writ and Statement of Claim, the Respondents
entered conditional appearance to the Writ. They then applied to set aside the
writ and service of the writ on the ground that the court had no jurisdiction
to entertain the action.

In
the supporting affidavit to the application to set aside the writ, the Respondents
inter alia, averred in paragraphs 7 and 10 that

7.‘…1st defendant’s enabling
statute provides avenues by which such entities may resolve any differences
with 1st defendant and that omission to consult any state agency in
carrying out development (sic) its plans confers no cause of action to
plaintiffs against 1st defendant by way of the present suit’.

10. That a reading of the processes
filed by Plaintiffs in this suit especially exhibit A exhibited to Plaintiffs
affidavit in support of its application for injunction filed on 29/06/15 will
confirm that none of the plaintiffs in this suit have demonstrated their
compliance or otherwise with the statutory preconditions for invoking the
jurisdiction of this Court and that in any case this Court has no jurisdiction
to entertain the suit’.

In
his ruling, the learned trial judge set out the first of the relevant provisions
from the arguments of counsel as Section 127
of the Local Government Act 1993 Act 462 which reads:

127
Notice of Suit to be given to Assembly

1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
A suit shall not be commenced against a
District Assembly until one month at least after written notice of intention to
commence the suit has been served upon the Assembly by the intending plaintiff
or the agent of the plaintiff

2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The notice shall state the cause of
action, the names and place of abode of the intending plaintiff and the relief
which the plaintiff claims.

The
court identified a notice that was dated 1-4-2015 and issued on behalf of
‘Traders and Shop owners at the Kejetia Bus Terminal’. He noted that the names
of the Plaintiffs (Appellants herein) before him were not stated in the notice,
neither their abode nor the reliefs to be sought.

In
agreeing with the Respondent’s motion, the trial judge said on page 6 of his
ruling that ‘apart from the statutory
pre-condition of giving notice the Act provides more which the Respondents have
failed to meet, their claim being essentially one for compensation. Indeed,
when one looks critically or even cursorily at the basketful of reliefs indorsed
in the writ of summons and howsoever couched, presented, clothed and embroidered,
the real relief claimed by the respondents is the desire to be paid adequate
compensation for the stores they had constructed with the concurrence of KMA
which are going to be demolished by the KMA in the reconstruction of the KBT to
be undertaken.’

The
honorable court went on to glean the real desires in the various reliefs and
identified, apart from the desire for compensation, a desire not to lose their
means of livelihood during the period of construction , and then after the
reconstruction; a desire to be restored to the reconstructed shop.