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The
applicant, Kinapharma Limited, a
limited liability company
registered under the laws of
Ghana, on 27-05-2010, by motion
pursuant to Order 67 of the High
Court (Civil Procedure) Rules,
2004 (C. I. 47) seeks the
following reliefs against the
respondents, namely: a) A
declaration that it is
unconstitutional and a breach of
the fundamental human rights
guaranteed by the 1992
Constitution for the respondents
and/or any other institution
which forms part of the organs
of the respondents to go ahead
and demolish applicant's
property situated around the
Spintex Road, Accra. b) An order
of perpetual injunction
restraining the respondents from
demolishing the applicant's
property. c) And for such
further orders as the court
deems fit. The case of the
applicant, is that it acquired a
parcel of land of about 1.348
acres (0.545 hectare) at Okpoi
Gono (Spintex road) sometime in
June, 1992, for the construction
of a bonded warehouse, X pert
security control and other
allied facilities. It went
through all the regulatory
processes and procedures to have
the property registered,
obtained from the appropriate
authorities a building permit to
develop the site into the bonded
ware house, X pert security
control and other allied
facilities. This complex or
edifice which has been completed
is the pivot of the whole
operations of the applicant
company. The applicant states
that the edifice holds an
average of five million United
States dollars (US$5,000,000.00)
worth of raw and finished
products which cannot be
relocated unless a similar
edifice with all its
technological apparatus is put
in place concomitantly. The
facility is the main
distribution hub for finished
products for all the applicant's
outlets throughout Ghana, the
West Africa sub region and the
rest of the world. The facility,
also, houses other subsidiaries
of the applicant which includes
X pert securities dealing in
electronic surveillance, vehicle
tracking, intruder detection
monitors, close circuit monitor,
panic alarm activation and
'receipt systems for several
blue-chip industries and
residential facilities
throughout Ghana. The complex,
also, employed 800 people while
5,000,000 others and entities
depend one way or the other on
it. The electronics housed by
the facility, according to the
applicant, include remote
monitoring systems for
transmission mast throughout
Ghana for broadcast and telecom
organization which include DFID,
Nestle, Newmont Gold, Barclays
Bank and Stanbic Bank. The
systems housed in the complex
cannot be shut down without
compromising the security of the
companies involved and Ghana as
a whole. In the event, however,
that the relocation of the
complex becomes inevitable, a
complete parallel system has to
be developed and live migrations
completed before same takes
place due to the dire security
and other implications. The
complaint of the applicant is
that it came to its knowledge of
an impending demolishing
exercise of its property by the
Department of Urban Roads to
create a right of way for the
construction of an alternative
road in the Spintex road area
and wrote to the Ministry of
Road and Highways (the 2nd
respondent, herein) to justify
its existence at the place where
the facility is situated and
requested meaningful dialogue to
solve the issue at stake.
However, the 2nd respondent,
after discussions on the issue,
replied indicating its inability
to assist with a replacement
land to construct a parallel
facility for the live migration
of facilities housed in the
complex and further reinforced
its intentions to demolish the
property in spite of the cogent
reasons advanced against such a
move. In furtherance of their
intentions, engineers from the
Ledzokuku Krowor Municipal
Assembly (3rd respondent) have
gone into the applicant's
property and marked same for
demolition and served notice
that the property would be
demolished any time without
further reference to the
applicant. The applicant, thus,
invoked the jurisdiction of this
court as it is of the view that
the intended action of the
respondents is unlawful and a
breach of its fundamental human
rights guaranteed under the 1992
Constitution as regards its
rights to acquire property and
peacefully enjoy same. The
respondents oppose the motion.
The case of the respondents is
that the Government of Ghana has
power under article 257 of the
1992 Constitution to vest in
itself any land which is
required in the public interest
for public purposes, of which
the applicant's disputed land is
no exception. Furthermore, under
section 8 of the Town and
Country Planning Act, (CAP. 84),
the Minister responsible for
Local Government may create a
scheme with respect to any land,
whether in the urban or rural
area and whether or not there
are buildings on it with the
object of securing proper
sanitary conditions and
conveniences, and the
co-ordination of roads and
public services. The respondents
contend, also, that the
applicant's case is incompetent
since its affidavit in support
of its case fails to disclose
the source of the land as well
as the terms or considerations
of the head lease. The
respondents contend, further,
that the applicant obtained a
permit to put up the property on
the land in dispute in 2007,
while the layout of the area by
Town and Country Planning, which
contains the proposed road to be
constructed, was approved in
2004. Thus, based on the balance
of convenience, the grant of the
applicant's instant motion would
mean that the entire nation will
be deprived of the comfortable
use of the proposed original
Spintex road in satisfaction of
an individual interest. This
would, also, have the effect of
the Government permanently not
being able to carry out its
intentions of development in the
interest of the public. Finally,
it is the case of the
respondents that if the
application is refused, the
applicant can be adequately
compensated by the award of
damages. There is sufficient
evidence from the applicant's
Land Certificate (Kina 1) that
the applicant acquired a lease
of the land in dispute from Numo
Borketey Larweh and Nii Bortrabi
Obroni II which lease took
effect on 6th June, 1992, for a
term of 99 years (with an option
to renew for a further term of
45 years). The applicant on 7th
February, 1995, registered this
lease with the Land Title
Registry. The applicant
subsequently applied to the
appropriate regulatory
authorities for a building
permit and was granted same on
7th September, 2006. The
applicant duly constructed the
building for its business.
However, sometime in 2008, upon
hearing news in the media that
the respondents intended to
demolish the applicant's said
business premises, the applicant
wrote to the 2nd respondent,
explaining among others, that it
properly acquired the land and
obtained a building permit
before it constructed its
business premises and suggested
that a discussion could be held
to see how to resolve the
matter. The response to the
applicant's letter from the 2nd
respondent, dated January 15,
2010, (Kina 7), is very
instructive and I would quote,
verbatim, the relevant portions.
The letter states among others
thus: “….upon a joint inspection
to site with your representative
Mr. Nuamah Eshen¬Famiyeh we
hereby wish to comment as
follows: . Department of Urban
Roads (DUR) is a mandated
government agency that
constructs roads infrastructure
projects in urban centres of
Ghana. . DUR seeks advice from
the Lands Valuation Board (LVB)
for assessment and valuation of
these properties. . DUR pays
compensation through the
Ministry of Finance and Economic
Planning to persons or
organizations whose properties
are affected by projects i.e. in
the Rights of Way of
construction (ROW). . Upon
completion of the valuation and
acceptance of the person or
organizations affected by the
project, (PAP), DUR then applies
for funds through the Ministry
of Finance and Economic Planning
for payment to the PAP. We
regret to inform you ... that
DUR will not be in a position to
negotiate on your behalf for the
acquisition of a replacement of
any land elsewhere, but would
rather advise you to submit all
your documentation including any
other cost accrued on your
property to the LVB for
assessment and further action.
We wish to confirm to you that,
the project will definitely be
implemented and the location of
your property is in the Right of
Way (ROW) of construction. From
the contents of "Kina 7", supra,
the respondents, by inference
confirms the applicant's
evidence that it has title to
the land in dispute but that the
State has, compulsorily,
acquired the said land. The
letter, however, did not provide
any evidence of the compulsory
acquisition. Furthermore, by the
affidavit in response to the
applicant's motion, filed on
22-07-2010, one Eric Agyekum
Amoako, an employee of the 2nd
respondent, deposing to facts on
the authority of the 2nd
respondent, deposed in paragraph
7 thus: "That I am advised by
the 1st Respondent (the
Attorney-General) and verily
believe the same to be true
that, under Article 257 of the
1992 Constitution, the
Government has power to vest in
itself any land which is
required in the public interest
for public purposes, of which
the plaintiff's disputed land is
no exception." The above
disposition, also, creates the
impression that the Government
of Ghana vested the applicant's
acquired land in itself.
However, the deponent nowhere in
his affidavit or anywhere else
gave any semblance of evidence
of the said vesting, The
relevant portions of article 257
of the Constitution are clauses
(1) and (2) which state as
follows: "(1) All public lands
in Ghana shall be vested in the
President on behalf of, and in
trust for, the people of Ghana.
(2) For the purposes of this
article, ... 'public lands'
includes any land which,
immediately before the coming
into force of this Constitution,
was vested in the Government of
Ghana on behalf of, and in trust
for, the people of Ghana for the
public service of Ghana, and any
other land acquired in the
public interest, for the
purposes of the Government of
Ghana before, on or after that
date," (my emphasis). As
indicated earlier on in this
ruling, the applicant obtained
his lease on 6th June, 1992 and
registered same on 7th July,
1995. The 1992 Constitution came
into force on 7th January, 1993.
So, obviously, if the land in
dispute was a public land by 7th
January, 1993, the applicant
could not have obtained title of
same in 1995. Again, the
respondents have not shown any
evidence that the Government of
Ghana has vested the land in
dispute in itself after 7th
January, 1993. The applicant's
land is, therefore, not part of
the public lands of Ghana. The
respondents, again, seek refuge
under the Town and Country
Planning Act, 1945 (CAP. 84) by
contending that the applicant
obtained the permit to put up
the property on the said land in
2007, while the layout of the
area by Town and Country
Planning, which contains the
proposed road to be constructed,
was approved in 2004. Indeed, by
section 2(1) of CAP. 84, the
Minister responsible for Local
Government has power, after
consultation with the relevant
local governing authority, to
declare an area as a planning
area but the Minister could only
do so by an executive
instrument. This is subject to
approval by the Minister
responsible for Local Government
under section 13 of CAP. 84. The
respondents have failed to show
any evidence that any executive
instrument was issued and
approved by the Minister.
Furthermore, and perhaps more
importantly, the respondents
have failed to show that the
Minister responsible for Local
Government acquired the land in
dispute or same was acquired by
law pursuant to section 20 of
CAP. 84. The relevant sections
of section 20 of CAP. 84
provides as follows: "20 (1) The
Minister may acquire the land or
buildings that are necessary or
expedient for carrying into
effect the provisions of a
scheme. (2) Where the Minister
is unable to purchase by
agreement a land or building
required for carrying a scheme
into effect the land or building
may be acquired under the State
Lands Act, 1962 (Act 125) or the
State Property and Contracts
Act, 1960 (CA. 6)." The
respondents, herein, have failed
to show that the Minister
acquired the land in dispute by
agreement with the applicant.
They have, also, failed to show
that the land in dispute was
acquired under Act 125 or CAP.
6. Before a land is deemed to
have been acquired under these
Acts, the President of Ghana
must do so by executive
instrument which would state
that the land is needed for the
public interest. The executive
instrument has to be published
including personal service on
property owners affected by the
acquisition. Thereafter, the
affected property owners would
be paid adequate compensation
and property and persons
resettled if the need arises.
The above statutory provisions
have been transformed into
constitutional rights by article
20 of the 1992 Constitution. The
relevant provisions of article
20 of the Constitution provides
thus: "20(1) No property of any
description, or interest in or
right over any property shall be
compulsorily taken possession of
or acquired by the State unless
the following conditions are
satisfied - (a) the taking of
possession or acquisition is
necessary in the interest of
defence, public safety, public
order, public morality, public
health, town and country
planning or the development or
utilization of property in such
a manner as to promote the
public benefit. (b) the
necessity for the acquisition is
clearly stated and is such as to
provide reasonable justification
for causing any hardship that
may result to any person who has
an interest in or right over the
property. (2) Compulsory
acquisition of property by the
State shall only be made under a
law which makes provision for -
(a) the prompt payment of fair
and adequate compensation; and
(b) a right of access to the
High Court by any person who has
an interest in or right over the
property whether direct or on
appeal from any other authority
for the determination of his
interest or right and the amount
of compensation to which he is
entitled. (3) Where a compulsory
acquisition or possession of
land effected by the State in
accordance with Clause (1) of
this article involves the
displacement of any inhabitants,
the State shall resettle the
displaced inhabitants on
suitable alternative land with
due regard for their economic
well being and social and
cultural values." The
respondents have failed to show
that the land in dispute has
been compulsorily acquired by
the State in accordance with the
Constitution, Act 125 and CAP.
6. From the above, I have found
that the land in dispute is the
leasehold property of the
applicant which entitles it to
protection under article 18 of
the Constitution. By article 18
of the Constitution, the
applicant is entitled to own the
said land with the development
it made thereon. The applicant
is protected from any
interference from any person or
body including the respondents,
herein, except in accordance
with law. The intended
demolition of the applicant's
property by the respondents is
unlawful as they have failed to
show that the land in dispute
had been properly acquired in
accordance with the due process
of the law. Accordingly, I
declare that it is
unconstitutional and a breach of
the fundamental human rights
guaranteed by the 1992
Constitution for the respondents
and/or any other institution
which forms part of the organs
of the respondents to go ahead
and demolish the applicant's
warehouse complex situated along
the Spintex road. Any demolition
of the said property without
following due process would
infringe upon the constitutional
rights of the applicant under
article 18 of the Constitution.
Furthermore, the respondents are
hereby restrained from going
ahead to demolish the
applicant's said warehouse
without following the due
process of law. COUNSEL: 1. Mr.
Kwame Boateng for Applicant. 2.
Mr. Animah Asare (Assistant
State Attorney) appears for
Respondents. |
