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JUDGMENT
BY COURT:
The Plaintiff by her writ issued
on 24th May, 2007
claimed against the defendants
jointly and severally the
following reliefs.
a)
Special damages for
i.
Cost of buildings destroyed
ii.
Cost of Valuation.
b)
General damages
c)
Perpetual Injunction restraining
defendants from carrying on any
demolition on Plaintiffs land
without due process of law.
d)
An order that the Plaintiff be
granted her building permit by
the 1st defendant.
The basis of the Plaintiff’s
claim is that she is putting up
a house on a parcel of land at
Okpobi Gonno, Teshie, Accra.
Before she commenced the
building she applied for a
building permit but she did not
receive it. She commenced the
said building and almost
completed it before it was
pulled down by the 1st
Defendant on 29th
June, 2002. That before the
building was pulled down no
notice was pasted on her
building except the one written
on the building on 28th
June, 2002 and that this
demolition exercise is in breach
of the Local Government Act
(1993) Act 462.
The defendants have resisted the
Plaintiff’s claim, and pleaded
that they acted within the law,
as the Plaintiff had no
development permit before she
commenced her building. The
defendants pleaded further that
in so far as the Plaintiff did
not commence her action within
12 months after the building had
been pulled down, the
Plaintiff’s action is statute
barred, and that the action is a
nullity.
To this pleading, the Plaintiff
pleaded in her reply that she
earlier on commenced an action
against the Defendants and
withdrew it with the leave of
the Court, with liberty to
reapply before the instant suit
was filed, and therefore the
action is not statute barred.
The issues that were set down
for determination are follows:
a)
Whether or not the Plaintiff
applied for a building permit.
b)
Whether or not apart from the
written notice on Plaintiff’s
building on the 28th
day of June, 2002 there was any
prior notice to plaintiff.
c)
Whether or not Defendants
demolished the property of
Plaintiff in accordance with the
Local Government Act 1993 (Act
462).
d)
Whether or not the conduct of
the Defendant in demolishing
Plaintiff’s property with
alleged Writ of Possession is
fraudulent and Ultra Vires.
e)
Whether or not the action is
statute barred.
f)
Any other relevant issues
arising out of the Pleadings.
Before dealing with the other
issues raised by the pleadings,
I will want to resolve issue ‘e’
The defence is that since the
demolition is said to have
occurred on 29th
June, 2002, and this action was
instituted on 24th
May, 2007, the action is statute
barred.
Section 127 A of the Local
Government Act, 1993 (Act 462)
states as follows:
“Where a suit is commenced
against a District Assembly or
an Officer of a District
Assembly for an action done in
pursuance of the execution or
intended execution of an
enactment or of a public duty or
a public authority, or in
respect of an alleged neglect or
default in the execution of that
enactment, duty or authority,
the suit shall not lie or be
instituted unless it is
commenced within twelve months
next after the act, neglect or
default complained of, or in the
case of a continuing damage or
injury within twelve months
after the date of the
cessation.”
The Plaintiff concede that this
action was commenced in 2007,
but that she commenced an
earlier action in 2002 against
the Defendants and others for
the demolition of her structure.
She however discontinued that
action with leave of the court
and with liberty to reapply.
The leave to discontinue and
liberty to re-apply has not been
tendered but since the plaintiff
was not challenged on this
assertion that she sued the
Defendants and others and
discontinued, I accept this
evidence of the Plaintiff to be
the truth. It must also be noted
that it was the Defendants who
suggested to the Plaintiff under
cross examination that she had
earlier on sued the Defendants
together with Storemount Company
Ltd in Suit Number L/505/2005.
To this the Plaintiff answered
that she sued them, but
withdrew.
Having accepted same as the
truth, an important question
which counsel for the parties
did not avert their minds to in
their addresses is this “what is
the effect of leave to
discontinue and liberty to
re-apply.”
Having been granted leave to
re-apply, what will be the
commencement date of this suit,
which on its face was commenced
on 24th May, 2007.
The Plaintiff did not lead any
evidence on when she was granted
leave to discontinue the
previous suit with liberty to
apply. Granted the
discontinuance was immediately
before this present action was
commenced, that will not
backdate the present action
which was commenced on 24th
May, 2007. Section 127 A of Act
462 used the phrase “the suit
shall not lie or be
instituted”. This is mandatory
and the Plaintiff should have
brought her action within twelve
months after the demolition of
her building which was on 29th
June, 2002.
In the case of Heward-Mill Vrs.
Heward-Mill (1992) 1 GLR 153 the
court of Appeal held in its
first holding that “where a
statutory condition must be
complied with before a court
could have jurisdiction to make
an order, failure to comply with
such a condition would leave the
court with no discretion to make
any order or orders in the
matter.
Since the Plaintiff commenced
this action in 2007 which is
more than 12 months after the
building of the Plaintiff had
been demolished, I hold that the
Plaintiffs action was statute
barred by section 127 A of the
Local government Act 1993 (Act
462). Having held that the
Plaintiff’s action was statute
barred before it was commenced
in 2007; no useful purpose would
be served by going into the
merits of the other issues set
down.
I therefore dismiss the
Plaintiff’s claim.
Counsel: Mr.
Nii Adjin Mensah for Plaintiff
Applicant.
Selina Fenteng for Defendant.
(SGD.) MR. JUSTICE S.H.
OCRAN
Justice of
the High Court
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