THE REPUBLIC vs. THE MUNICIPAL CHIEF EXECUTIVE LA NKWANTANANG MUNICIPAL ASSEMBLY MADINA, ACCRA (RESPONDENT) EX PARTE MR. O. G. BROBBEY (APPLICANT) [2019]DLHC7134

THE REPUBLIC vs. THE MUNICIPAL CHIEF EXECUTIVE LA NKWANTANANG MUNICIPAL ASSEMBLY... [2019]DLHC7134

Date	2019-06-14
Suit No.	SUIT NO: GJ/497/2019
Citation No.	[2019]DLHC7134

HIS LORDSHIP SAMUEL K. A. ASIEDU J

BERNICE M. KPODO ESQ. FOR DELA BLAGOGEE ESQ. FOR THE APPLICANT

[2019]DLHC7134
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE MUNICIPAL CHIEF
EXECUTIVE LA NKWANTANANG MUNICIPAL ASSEMBLY MADINA, ACCRA<o:p></o:p>(RESPONDENT)<o:p></o:p>EX PARTE MR. O. G.
BROBBEY<o:p></o:p>(APPLICANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL 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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SUIT
NO: GJ/497/2019&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: 14TH JUNE, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BERNICE
M. KPODO ESQ., FOR DELA BLAGOGEE ESQ., FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>On
the 17th December 2018, the applicant herein caused to be filed
against the respondent in this matter, an application for judicial review in
the nature of an order for mandamus to issue against the respondent herein for
basically two reliefs: an order compelling the respondent to give formal
document or agreement evidencing his right, title and interest in the stores
numbered 148, 149, 150 and 151; and, an order compelling the respondent to
remove container shops which have been unlawfully placed at the entrance of his
store.<o:p></o:p>It
is interesting to note that the motion with its supporting affidavit was served
on the respondent on the 14th March 2019 but the respondent not only
refused to show up in court but failed to file any response to the process
served on him. As a result the matter was adjourned and a hearing notice served
on the respondent to appear on the 15th April, 2019. Yet, the
respondent refused to show up despite the service of a hearing notice on him on
the 5th April, 2019. The court further adjourned the matter to the 7th
May, 2019 and caused hearing notice to be served on the respondent on the 18th
April, 2019 for an appearance on the 7th May, 2019; however the
respondent refused to either appear or file a response to the motion served on
him. The court therefore heard the application and adjourned to the 31st
May 2019 for judgment.<o:p></o:p>From
the evidence on record, the court finds that the respondent is the Municipal
Chief Executive of the La Nkwantanang Municipal Assembly, Madina, Accra. The
court holds that the office held by the respondent is a public office
established pursuant to chapter twenty of the Constitution of the Republic of
Ghana and the Local Governance Act, 2016, Act 936 and its predecessor Act, the
Local Government Act, 1993, Act 462. The court also holds that the respondent
is tasked with the discharge of the functions enumerated under the
establishment legislations. It follows therefore that the functions or the
duties of the respondent are public functions or duties. Indeed, the office
held by the respondent is a public office as opposed to a private office.<o:p></o:p>The
court finds from the evidence on record that the applicant herein was allocated
stores numbers 148, 149, 150 and 151 which are all situate at the Madina
Market, Accra by the Municipal Assembly which is headed by the respondent in
this matter. Exhibit OBG1 is supportive of this finding. Indeed this allocation
was made after the applicant has given considerable value to the Municipal
Assembly. There is also evidence on record that a container has been placed in
front of store number 149 which the applicant occupies and thus causing great
inconvenience to the applicant and his clients or customers who attend the
store to transact business. <o:p></o:p>The
court finds from exhibit OBG2 and OBG3 that the applicant has requested, on
numerous occasions, that the respondent removes the container and also grant
formal documentation in respect of the allocations to the applicant in
accordance with the Conveyancing Act, 1973, NRCD 175. There is evidence to the
effect that notwithstanding the several request made by the applicant, the
respondent has refused, without just cause, to either grant formal documentation
to the applicant or remove the container which has been unlawfully placed in
front of the applicant’s store. Consequently, the applicant caused exhibit OBG3
to be served on the respondent in which the applicant gave notice of his
intention to institute legal action against the respondent. Nonetheless, the
respondent did not bother to right his wrongs.<o:p></o:p>Order
55 rule 1 of the High Court (Civil Procedure) Rules, 2004, CI.47 permits an
applicant to apply to the High Court for judicial review and to seek the
prerogative writ of mandamus against a respondent. In Republic v. Chief Accountant, District Treasury, Kumasi; Ex parte Badu
[1971] 2 G.L.R. 285 the court held that”<o:p></o:p>An order of mandamus lies against public officials
in the performance of their public or quasi-public legal duty, to require them
to carry out their duty. The order is not meant to review or control what such
officials have done or what they do, but to compel them to act . . . The order
will only issue if the duty required to be performed can be legally done.<o:p></o:p>&nbsp;In Republic
v Court of Appeal; Ex parte Lands Commission (Vanderpuye Orgle Estates Ltd,
Interested Party) [1999-2000] 1 GLR 75, the court pointed out at page 98
that:<o:p></o:p>A mandamus is simply “an order requiring an act to
be done.” It may issue to enforce a right against public officers and other
statutory authorities derived by the citizen from a statutory legal duty or the
common law. Its purpose was succinctly set down in an old English case, R v
Baker (1762) 3 Burr 1265 at 1267 by Lord Mansfield, a Chief Justice of England
as:<o:p></o:p>