|
_____________________________________________________________________
R U L I N G
_____________________________________________________________________
Plaintiff pleaded that they
have developed a whole community
or town with people, football
pitches, clinic and all
concomitant social amenities
provided by no less a body than
Electricity Company and Ga West
District Assembly.
According to plaintiffs,
defendants and their agents have
embarked upon demolition of
houses at the or within the
precincts of the town, Agape
Down, Weija, that they
(plaintiffs) have established.
Being apprehensive that the
demolition exercise if continued
will affect their houses,
plaintiffs have come to the
court seeking redress. They have
sued defendants jointly and
severally for declaration that
the demolition exercise being
carried out on plaintiffs houses
are illegal and unlawful; that
the defendants are estopped from
presenting a different state of
affairs having made the chiefs
of Weija and plaintiffs believe
that their houses and
developments were outside the
restrictive area or buffer zone
and an injunction order against
defendants from further carrying
out any of the demolishing at
Agape Down,Weija.
Per the instant application for
interlocutory injunction,
plaintiffs seek an order to
restrain the defendants, their
agents, assigns, privies or
whosoever acting for and on
their behalf from carrying out
any act of demolishing of
houses/structures at Agape Down
pending the determination of the
suit.
In opposing the application,
defendants argued that if the
instant application were granted
it would have the effect of
amending the subsidiary
legislation by which the
Government of Ghana acquired the
land for the purpose of the use
of the Weija Dam.
Learned lawyer for defendants
referred the court to the case
of REPUBLIC Vs. HIGH COURT (FAST
TRACK DIVISION); EX-PARTE:
NATIONAL LOTTERY AUTHORITY
(GHANA LOTTO OPERATORS
ASSOCIATION) and INTERESTED
PARTIES (2009) SCGLR 390 and
submitted that the principle
laid down by the Supreme Court
should dissuade me from granting
the instant application,
contending that the effect of
the grant would mean permitting
plaintiffs to continue to
perform illegal act, and what is
more, the court would thereby
shield the plaintiffs from the
consequences of the breach of
their illegal actions.
The principle manifest in the
National Lottery case appears
inapplicable to the facts of
this application. The
distinguishing feature is that
in that case, the Lotto
Operators had not complied with
statute law whereby they were
obliged to register and so the
effect of the grant of the
injunction amounted to the court
granting “a temporary judicial
licence” to the applicants to
operate in the lotto business.
It was in this light that the
Supreme Court faulted the High
Court for relying on the typical
common law principles in
granting the application.
In my opinion, the Supreme Court
in the National Lottery case
under reference posited that
where an injunction will have
the effect of hindering or
stultifying the performance of
the mandate of a body created by
the constitution or statute, the
courts must refrain from
employing the typical common law
principles in granting such
applications.
What will be the effect of the
grant of this application? Will
it be that the court will be
permitting the plaintiffs to
continue to build, perpetuating
illegality? No. I do not think
that will be the effect. The
buildings of plaintiffs have
already been developed and are
in place. Rather the effect of a
grant will mean that plaintiffs
must be allowed to reside and
enjoy the use of their houses
until the defendants by the
preponderance of the evidence
establish that by law and equity
the buildings of plaintiffs
ought to be demolished.
We should not forget that the
development of the township of
Agape Down, Weija had somewhat
been induced by representations
of the Government of Ghana, the
owner of the area by law, having
compulsorily acquired same by
Executive Instrument.
Indeed plaintiffs relied on the
equitable maxim of estoppel
which is crystallized in section
26 of our Evidence Act (NRCD
323) and submitted that the
legal owner had made certain
representations which
representations had been acted
upon by the plaintiffs and their
grantors to their detriment and
therefore defendants are now
estopped from undoing what they
had encouraged.Whether or not
plaintiffs will succeed or fail
in this plea is yet to be
determined. Suffice to say now
that 1st defendant
not being a creature of the
constitution or statute in the
sense that it does not derive
its existence to any known
statute and it is only a
corporate body with Legal
Personality as a Limited
Liability Company Under the
Companies Act, 1963, Act 179, it
has no Statutory mandate to
demolish houses.
Even 2nd defendant
which is a creature of statute,
that is, the Local Government
Act, 1993, Act 462 has not
alluded to any pleadings to the
effect that they are acting
within the mandate of the law. I
am referring to section 52 of
Act 462 whereby 2nd
defendant has been granted the
mandate to demolish unauthorized
structures. However, before the
right to demolish accrues,
certain acts must be strictly
complied with as condition
precedent.
I have, earlier on in this
ruling, made the point that in
dealing with injunctions
pertaining to bodies created by
statute, the application of the
well known common law principles
will be inapposite. What the
courts will look for is whether
the body is acting ultra vires
its mandate or is acting in
breach of natural justice or is
acting in any other manner that
would justify the court’s
intervention. In any such
situation, the court will be
discharging its duty if it
intervenes by injunctions in the
interest of justice according to
law.
In this case, to the extent that
2nd defendant has not
by the pleadings acted in
consonance with Section 52 of
Act 462, it will be acting in
breach of the law if allowed to
demolish the houses of
plaintiffs at this stage.
From the foregoing I rule that
the equities in this case favour
grant of the instant
application. Accordingly, it is
hereby ordered that defendants
by their heads, their agents,
assigns, privies, workers and
whosoever acting for and on
their behalf are hereby
restrained from carrying out any
act of demolishing of
houses/structures at Agape Down
until the final determination of
this suit. I make no order as to
costs.
(SGD) ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
STEVE GRAY ESQ; FOR PLAINTIFFS.
A.
KWAKYE ESQ; FOR DEFENDANTS.
|
