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Local Government Act, 1993 (Act
462) section 127 of Act 462 as
repealed by section 235 (1) of
the Local Government Act, 2016
(Act 936) - Interpretation -
HEADNOTES
The Plaintiffs instituted this
action against the Defendants on
the grounds that they had
constructed shops at the Kejetia
Bus Terminal in or about 1995
and 2000 respectively with the
consent and permission of the
Defendants. However, the
Plaintiffs contended that the
Defendants have in February 2013
or thereabout informed them that
their buildings containing the
shops were to be pulled down
pursuant to the rehabilitation
and execution of the Kumasi
Central market project. In view
of the pressure that the
Defendants exerted on the
Plaintiffs to move to a site
which they considered unsuitable
and considering also that the
Plaintiffs action is capricious,
arbitrary, oppressive,
unconstitutional, wrongful and
unlawful, the Plaintiffs
instituted the action claiming
the reliefs referred to supra as
a means of protecting their
rights. In the accompanying
statement of claim, the
Plaintiffs indicated that they
had served the requisite
statutory notice of their
intention to sue the Defendants
pursuant to Section 127 of Act
462 The Defendants deposed to an
affidavit in support thereof in
which they contended that none
of the plaintiffs in the action
has demonstrated their
compliance or otherwise with the
statutory preconditions set out
in section 127 of Act 462 for
invoking the jurisdiction of the
court and that in any case, that
the trial High Court has no
jurisdiction to entertain the
suit -
HELD :-
In conclusion, we also allow
ground III of the grounds of
appeal. In substance therefore,
having dealt with the very
essential and procedural grounds
of appeal which go to the root
of the appeal herein, it is
considered worthwhile not to
deal with the remaining grounds
of appeal. Accordingly, the
appeal filed herein against the
decision of the Court of Appeal
dated 19th November
2015 is hereby set aside. In its
place, the judgment of the High
Court, dated 27th July
2015 is restored. Appeal
therefore succeeds. There will
be no order as to costs.
STATUTES REFERRED TO IN JUDGMENT
Local Government Act, 1993 (Act
462). section 210 section 127
section 235
Court of Appeal Rules, 1997
(C.I. 19)
Appeal (Amendment) Rules, 1999
(C.I. 25).
CASES REFERRED TO IN JUDGMENT
Boyefio v NTHC Properties
[1996-97] SCGLR 531 SC
Hanna Assi (No.2) v GIHOC
Refrigeration and Household
Products Ltd. (No.2) [2007-2008]
Osman v Tedam 1970 Current
cases, 41
Larbi Mensah IV a.k.a Aryee
Addoquaye v National House of
Chiefs [2011] 2 SCGLR 883
Republic v High Court, Ex-parte
Attorney-General 1998/1999 SCGLR
595 at 618
Republic v High Court (Lands
Division) Accra, Ex-parte Lands
Commission (Nungua Stool and
Others – Interested Parties,
Civil Motion No. J5/4/14 dated 5th December
2013
Network Computers Limited v
Intelsat Global Sales and
Marketing [2012] 1 SCGLR 218 at
page 231
Republic
v High Court (Fast Track
Division) Accra, Ex-parte
National Lottery Authority
(Ghana Lotto Operator
Association and Other –
Interested Parties, [2009] SCGLR
390
Republic v Michael Conduah,
Ex-parte George Supi Asmah,
unreported judgment of the
Supreme Court in Civil Appeal
No. J4/28/12 dated 15th August
2013
Republic v High Court
(Commercial Division) Ex-parte,
Republic Bank Limited (HFC Bank
(Ghana) Limited and Securities
and Exchange Commission-
Interested Party CM. No.
JS/45/14 dated 17/12/2014.
Boyefio v NTHC Properties
[1996-97] SCGLR 531 SC
Republic v High Court,
Koforidua; Ex-parte Asare (Baba
Jamal & Others Interested
Parties) 2009 SCGLR 460 at 509
where Dotse JSC
Republic v Central Regional
House of Chiefs and others,
Ex-parte Nana Ehunabobrim
unreported judgment of the
Supreme Court Civil Appeal No.
J4/11/13
Ahinakwa
II substituted by Ayikai v
Odjidja III and others [2011] 1
SCGLR 205 and 208.
BOOKS REFERRED TO IN JUDGMENT
Modern Approach to the law of
Interpretation at page 62
DELIVERING THE LEADING
JUDGMENT
DOTSE JSC:-
COUNSEL.
THADDEUS SORY FOR THE
DEFENDATS/RESPONDENTS/APPELLANTS.
KWASI AFRIFA FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS
JUDGMENT
DOTSE JSC:-
The
Plaintiffs/Appellants/Respondents,
hereafter referred to as
Plaintiffs filed a writ of
summons against the
Defendants/Respondents/Appellants,
hereafter Defendants in the High
Court Kumasi claiming several
reliefs which will be referred
to in extenso.
Due to the nature of the
reliefs being claimed especially
against the 1st
Defendants, it was statutorily
incumbent upon the Plaintiffs to
satisfy the requirements imposed
in section 127 of the Local
Government Act, 1993 (Act 462).
It must be noted at this
stage that, Act 462 has been
repealed by section 235 (1) of
the Local Government Act, 2016
(Act 936). However, the
corresponding provisions in
section 210 of Act 936 are
similar in context to the
provisions of section 127 of the
repealed Act 462. However, since
at all times relevant to the
cause of this action it was the
repealed Act 462 that was the
operating law, it is that law
that will be substantially
referred to herein.
What then does section 127
of Act 462 provide. This section
provides as follows:-
127. Notice of suit to be given
to Assembly
(1)
“ 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)
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.” Emphasis
In compliance with the said
provisions, learned counsel for
the plaintiffs, Kwasi Afrifa
issued a notice by which he
sought to comply with the said
statutory pre conditions.
From the above provisions, the
following requirements must be
met by an intending plaintiff or
his or their agents who intends
to institute action against any
Metropolitan, Municipal or
District Assemblies one month
before the suit is filed and
served. These are:-
1.
The cause of action
2.
Names of the intended
Plaintiff or Plaintiffs
3.
The place of abode of the
Plaintiff or Plaintiffs
4.
The intended reliefs to be
sought
Additionally, the one month
statutory period stated in
Section 127 must have elapsed
from the date of the notice and
the date of the inception of the
suit against the Defendant.
Since the 1st
Defendant is a Metropolitan
Assembly, learned Counsel for
the Plaintiffs duly complied by
giving the said notice.
However since the instant appeal
touches and concerns the rival
interpretations placed upon the
requirement and effect of this
section 127 of Act 462 by the
trial High Court and the Court
of Appeal, respectively, we deem
it expedient to set out in
extenso the contents of the
entire NOTICE which the
Plaintiff’s Lawyer gave, which
states as follows:-
“1st April 2015
The Metropolitan Chief
Executive
Kumasi Metropolitan
Assembly
Kumasi
Dear Sir,
STATUTORY NOTICE OF INTENTION TO
COMMENCE SUIT AGAINST THE KUMASI
METROPOLITAN ASSEMBLY (KMA)
UNDER SECTION 127 OF THE LOCAL
GOVERNMENT ACT, 1993, ACT 462
________________________________________________________
OUR CLIENTS:
THE TRADERS AND SHOP OWNERS AT
THE KEJETIA BUS TERMINAL
We write to your outfit on the
instructions and authority of
our above-named clients who are
all traders at the Kejetia Bus
Terminal.
Our instructions are that your
outfit has communicated an
intention to pull down the
stores constructed by our
clients at the Kejetia Bus
Terminal out of their own funds
with a view to an alleged
rehabilitation or
reconstruction.
We are instructed that
your outfit has not valued the
property of our clients and has
not evinced any intention to
provide adequate and sufficient
compensation as required by the
Laws of Ghana particularly the
1992 Constitution.
Please note that your
behaviour is unlawful and
calculated to deprive our
clients their right to earn a
livelihood.
Your behaviour also
imperils the lives and existence
of dependents children and other
family members of our clients.
Our clients have further
instructed us that the basis of
the alleged rehabilitation
project by your outfit is
dubious and lacks transparency.
In the light of the above
we are hereby serving notice of
the intention of our clients
through us their agents to
institute the appropriate legal
action to address their
grievances.
This notice is being given in
line with the prescription of
section 127 of the Local
Government Act, 1993, Act 462.
Please take further notice
that our Kwasi Afrifa, ESQ has
the personal conduct of this
brief and all correspondence and
communication ought to directed
to him.
His telephones numbers are
0201835492 or 0244312090
Having served this notice
we do not expect any further
direct contact on the issue with
our clients as we are mandated
to deal on their behalf in
respect of all matters relative
to the issue.
Please be advised
accordingly.
Yours faithfully
Kwasi Afrifa ESQ
O & A Legal Consult
Barristers, Solicitors &
Notaries Public”
As can be seen from the
said notice, the date is 1st
April 2015 and the writ of
summons in the instant appeal
was filed on 25th
June 2015 thereby complying with
the timelines stated therein.
Secondly, the intended
Plaintiffs were described as
“The Traders and Shop Owners at
the Kejetia Bus Terminal”.
However, in the Writ of
Summons, the Plaintiffs were
described variously as
(a)
Kejetia Traders
Association of which 1st
Plaintiff is the Chairman
comprising of some 402 members.
(b)
Kejetia Petty Traders
Association of which 2nd
Plaintiff is the Chairman and
comprised some 2283 members.
Thirdly, it should be
noted that the names of the
intended Plaintiffs was not
attached to the Notice that has
been referred to supra.
Fourthly, the place of
abode of the intended Plaintiffs
has also not been given.
Fifthly, it is quite
apparent from the notice that,
the reference to “our clients”
as “Traders and Shop Owners at
Kejetia Bus Terminal” is very
wide, nebulous and not
descriptive enough.
It is thus clear that the
Defendants had not been given
any guidelines that will
indicate the exact number or
target class of the Plaintiffs.
Furthermore, from the
notice, valuation and the issue
of compensation was the focus of
the cause of action that the
Plaintiffs intimated. It should
therefore be assumed that any
pre-conditions for the
institution of an action against
the Defendants for payment of
compensation under Act 462 must
be complied with
Finally, the reliefs which
the Plaintiffs intended to claim
against the Defendants was not
explicitly stated as is
mandatorily required under the
provisions of the law.
At this stage, we deem it
appropriate to set out in detail
the lengthy and repetitive
reliefs which the Plaintiffs
claimed against the Defendants
as follows:-
a.
“A declaration that the
proposed rehabilitation and/or
reconstruction of the Kumasi
Central Market Project does not
include the Kejetia Bus
Terminal.
b.
A declaration that the
deliberate extension of the
Kumasi Central Market Project to
include the Kejetia Bus Terminal
is wrongful illegal and
calculated to overreach the
Plaintiff who have constructed
permanent structures thereat
with the consent and concurrence
of the Kumasi Metropolitan
Assembly (KMA) who collect
monthly shop license fees and
daily tolls from the Plaintiffs
by reason of their occupation of
the stalls.
c.
A declaration that the
non-inclusion of Urban Roads
Department and the Ashanti City
Engineer Unit of Kumasi
Metropolitan Assembly (KMA) in
the proposed rehabilitation and
or reconstruction of the Kejetia
Bus Terminal Project is
suggestive of the fact that the
Kejetia Bus Terminal Project is
not part of the overall project
but has been surreptitiously
included by the Kumasi
Metropolitan Assembly (KMA) with
a view to overreaching the
plaintiffs and depriving them
their livelihood and this view
is fortified by a public
declaration made by the
presiding member of the Assembly
that the Assembly has not
discussed the Kejetia Bus
Terminal Project and that the
rehabilitation project is
confined to the Kumasi Central
Market.
d.
A declaration that the
non-inclusion of the Kejetia Bus
Terminal in the proposed
rehabilitation project estimate
sent to the cabinet of the
Republic of Ghana is indicative
of the fact that the Kejetia Bus
Terminal is not part of the
overall project and any
purported inclusion of it is
fraudulent and calculated to
infringe the proprietary of
rights of the plaintiffs.
e.
A declaration that the
non-valuation of the plaintiff
buildings situate at the Kejetia
Bus Terminal with a view to
paying adequate and sufficient
compensation for same before any
demolition is unconstitutional
wrongful and infraction of the
Plaintiffs proprietary rights.
f.
A declaration that the
proposed relocation of the
plaintiffs to a place and site
totally unsuitable for the
nature of their work and which
is in any event incapable of
catering for all the plaintiffs
is a ruse calculated to dignify
the business of the plaintiffs
and deprive them their right to
earn a living at the Kejetia Bus
Terminal where they currently
operate their businesses.
g.
A declaration that having
financed the buildings they
occupy at Kejetia Bus Terminal
presently out of their own means
the plaintiffs are entitled to
adequate sufficient and prompt
compensation before any attempt
to relocate them therefrom.
h.
A declaration that the
entire process of the purported
construction of Kejetia Bus
Terminal is devoid of
transparency and procedural
integrity and against the
backdrop that no compensation
has been offered the Plaintiffs
to enable them reorganize their
affairs as would be beneficial
to them.
i.
A declaration that the two
months periods capriciously
decreed by the Kumasi
Metropolitan Assembly (KMA)
ordering the plaintiffs to yield
vacant possession of their
stores at the Kejetia Bus
Terminal is wrongful arbitrary
and unconstitutional against the
backdrop thereat that their
properties thereat have not
been valued with a view to
paying them adequate and
sufficient compensation.
j.
An order compelling the
Kumasi Metropolitan Assembly
(KMA) to furnish produce and
disclose the contract documents
covering the said rehabilitation
of the Kumasi Central Market
Project for transparent and open
verification of the extent and
scope of the project.
k.
An order directing the
Kumasi Metropolitan Assembly
(KMA) to provide a written
guarantee that even after the
completion of the so-called
project the present occupants of
the stores thereat would be
returned to the places occupied
by them at the present without
any further demand for the
payment of monies.
l.
An order directing the
Kumasi Metropolitan Assembly
(KMA) to respect the precedent
set in this regard by the
Assembly in 2000 in respect of
work done at the frontage of the
Kumasi Central Market and in
respect of the Anloga Carpenters
who were relocated to Sokoban
Wood Village constructed
entirely at the expense of
Kumasi Metropolitan Assembly
(KMA) without the payment of any
monies whatsoever by the
resettled carpenters.
m.
Such further orders (s) as
the Honourable Court may deem
fit.” Emphasis supplied
BRIEF FACTS
The Plaintiffs instituted
this action against the
Defendants on the grounds that
they had constructed shops at
the Kejetia Bus Terminal in or
about 1995 and 2000 respectively
with the consent and permission
of the Defendants. However, the
Plaintiffs contended that the
Defendants have in February 2013
or thereabout informed them that
their buildings containing the
shops were to be pulled down
pursuant to the rehabilitation
and execution of the Kumasi
Central market project.
In view of the pressure
that the Defendants exerted on
the Plaintiffs to move to a site
which they considered unsuitable
and considering also that the
Plaintiffs action is capricious,
arbitrary, oppressive,
unconstitutional, wrongful and
unlawful, the Plaintiffs
instituted the action claiming
the reliefs referred to supra as
a means of protecting their
rights. In the accompanying
statement of claim, the
Plaintiffs indicated that they
had served the requisite
statutory notice of their
intention to sue the Defendants
pursuant to Section 127 of Act
462 supra.
Upon service of the Writ
of Summons on them, the
Defendants entered conditional
appearance and filed a notice of
motion which substantially
sought an order setting aside
the Plaintiff’s writ of summons
and it’s service thereof on the
Defendants.
The Defendants deposed to
an affidavit in support thereof
in which they contended that
none of the plaintiffs in the
action has demonstrated their
compliance or otherwise with the
statutory preconditions set out
in section 127 of Act 462 for
invoking the jurisdiction of the
court and that in any case, that
the trial High Court has no
jurisdiction to entertain the
suit.
An affidavit was sworn to
by the 1st Plaintiff,
Kwabena Obeng on behalf of the
Plaintiffs in which they denied
the contentions of the
Defendants.
RULING BY THE HIGH COURT
KUMASI
On the 27th day of
July 2015 Richardson J,
presiding over the Kumasi High
Court delivered a Ruling which
is to the following effect as
follows:-
“In the oft-cited case of
Boyefio v NTHC Properties
[1996-97] SCGLR 531 SC it
was held that where an enactment
had prescribed a special
procedure by which something was
to be done, it was that
procedure alone that was to be
followed. As the Respondents
failed to follow the procedure
provided under the Act before
coming to Court, I am not
clothed with jurisdiction to
entertain the writ of summons
herein. I therefore hereby grant
the Defendants/Applicants
application and order the writ
of summons set aside. And it is
set aside accordingly.” Emphasis
And with that rendition, the
Plaintiffs action was dismissed
as the writ was set aside.
APPEAL TO COURT OF APPEAL AND
DECISIONS
Dissatisfied with the Ruling and
its effect on their case the
Plaintiffs appealed to the Court
of Appeal, Kumasi which on the
19th day of November
2015 delivered a judgment in
which it set aside and reversed
the decision of the High Court
in the following words:-
“It must be noted that the
letter giving notice was issued
by the agent of the appellants
who succinctly set out the
complaint of the Appellants and
their positions on that
complaint. His letter, found on
page 106 of the Record of Appeal
presented the complaints of an
intention to pull down stores
and the failure to value the
property of the traders and
thereby failing to evince the
intention to provide adequate
and sufficient compensation as
required by law and the
constitution. The said lawyers
described the acts complained of
as unlawful.
With such a description of
complaint and the legal position
of the complainant, it is not
clear what other details of
relief could be expected at this
point. Ground c of the appeal is
upheld. Ground f of the appeal
is also upheld.” Emphasis
The Court of Appeal
thereafter ordered as follows:-
“The appeal is allowed and the
ruling striking out the action
is set aside. Appellants’ suit
is restored to the list of the
High Court and ordered to be put
before a different court.”
It must however be stated
that the Court of Appeal apart
from considering that the notice
given by the Plaintiffs in
compliance to section 127 of Act
462 was proper, disagreed with
the learned trial Judge on other
issues as well.
For example it reversed
the interpretation of Section 56
of Act 462 by which the learned
trial Judge held that the
Plaintiff had no jurisdiction to
come to court for claims in
respect of compensation without
exhausting the remedies in the
said section.
APPEAL BY DEFENDANTS TO THE
SUPREME COURT
Aggrieved and dissatisfied
with the decision of the Court
of Appeal, the Defendants
appealed against that decision
to the Supreme Court with the
following as the grounds of
appeal.
i.
“The Court below erred
when it held that
Plaintiffs/Appellants/Respondents
had served 1st
Defendant/Respondent/Appellant
with a notice of their intention
to commence suit against 1st
Defendant/Respondent/Appellant
as required by the provisions of
section 127 of the Local
Government Act, 1993 (Act 462.
ii.
The court below erred when
it held that the notice on
record complied with the
requirements of section 127 of
the Local Government Act, 1993
(Act 462).
iii.
The Court of Appeal erred
and accordingly misdirected
itself when it held that the
application of provisions under
section 56 of the Local
Government Act 1993 (Act 462) is
discretionary and not mandatory.
iv.
The court below erred when
it held that
Plaintiffs/Appellants/Respondents’
written submission complied with
the requirements of rule 20 (1)
of the Court of Appeal Rules,
1997 (C.I. 19) as amended by the
Court of Appeal (Amendment)
Rules, 1999 (C.I. 25).
v.
The Court of Appeal erred
when it held that the High Court
had jurisdiction to entertain
and hear the
Plaintiffs/Appellants/Respondents’
suit as instituted before the
High Court.
vi.
The Court of Appeal erred
when it held that the ruling of
the High Court dismissing the
Plaintiffs/Appellants/Respondents’
suit was against the weight of
the affidavit evidence before
the High Court.
vii.
The Court of Appeal erred
and accordingly acted in excess
of the jurisdiction when it made
consequential orders prohibiting
the trial Judge from hearing the
matter.
viii.
Further grounds of appeal
would be filed upon receipt of
the record of appeal.
In view of the fact that
this appeal touches and concerns
section 56 as well as section
127 of Act 462, we deem it
expedient at this stage to set
the provisions of this 56 out,
since 127 has already been
referred to supra.
56. Claims for compensation
(1) Subject to this Act, a
person
(a) whose property is
adversely affected by the coming
into operation or the execution
of an approved development plan,
or
(b) who for the purpose of
complying with an approved
development plan incurs
expenditure
(i) by a subsequent revocation
or modification of the plan, or
(ii) by a subsequent revocation or
variation of a development
permit granted to that person by
a district planning authority,
or
(c) who is aggrieved by a
decision, an action or a policy
relating to an approved
development plan or the
enforcement of it, may, within
six months after the date of the
approval of the plan or of the
revocation or variation of a
permit or of the taking of the
decision or action complained
of, lodge a claim for redress or
compensation
with the district planning
authority.” Emphasis
In dealing with the
relevant grounds of appeal
herein, we shall handle grounds
(i) and (ii) together as they
are almost similar in content
and scope.
GROUNDS I AND II
I.
The Court below erred when it
held that
Plaintiffs/Appellants/Respondents
had served 1st
Defendant/Respondent/Appellant
with a notice of their intention
to commence suit against 1st
Defendant/Respondent/Appellant
as required by the provisions of
section 127 of the Local
Government Act, 1993 (Act 462.
II.
The court below erred when it
held that the notice on record
complied with the requirements
of section 127 of the Local
Government Act, 1993 (Act 462).
The learned trial Judge
had stated of this matter of
notice under section 127 of Act
462 thus:-
“But what is notice if it does
not contain what the law
requires it to contain? It is
not for nothing that the law
requires certain pieces of
information to be put down in
the notice. Certainly those
pieces of information are to
enable the Defendant prepare for
battle to seek out the intended
Plaintiff for settlement before
he goes to court to do battle.”
Emphasis
We have looked critically
at the relevant statute referred
to supra and we are certain that
it is intended to afford the
District Assembly and in this
instance the Defendants an
advance opportunity and
knowledge to know beforehand
identities of the intended
plaintiffs and the nature,
scope, content and magnitude of
the reliefs intended to be
claimed against them.
The rationale for the
above is quite obvious. What
comes easily to mind is the fact
that, quite often, actions
commenced in the courts are all
time bound. For example, in the
instant case, it would have
required the Defendants to have
made the necessary enquiries
within 8 days and conclude
whether they intend to contest
the action against the over 2000
real Plaintiffs on behalf of
whom the case was filed or
instituted.
It should have been quite
apparent that, quite apart from
the procedural timelines set out
in the various procedure rules
of the trial courts to wit C.I
59 of 2009 for the District
Courts and C. I. 47 of 2004 in
respect of the Circuit and High
Courts Courts, the requirement
of notice in section 127 of Act
462 also may afford an
opportunity to the Defendants to
consider the necessity of
settling the intended suit out
of court. The crux and relevance
of the notice is to enable the
Defendants assess their
liability or otherwise within
the period of the notice.
To us in the apex court,
the requirements of this notice
in section 127 of Act 462 are so
critical and therefore basic,
that if not complied with would
result in the very mischief that
the law was intended to cure.
We have perused the detail
and elegant statements of case
of learned counsel for the
parties on these grounds of
appeal.
We note also that, the
information that the notice in
the statute is required to
provide is so very basic and
crucial that in the scheme of
laws in Ghana, reference article
11 (1) (b) of the Constitution
1992, in the absence of any
constitutional provision to the
contrary, it must be enforced
and given pride of place.
In order to re-emphasise
this information, let us repeat
them again. The statute, (i.e.
section 127 of Act 127) states
that the notice shall contain
the following mandatory and
specific information about the
intending Plaintiff or
Plaintiffs:-
i.
Names
ii.
Place of abode
iii.
Cause of action
iv.
Reliefs being sought
against the relevant
Metropolitan, Municipal or
District Assembly
In the narration of the
facts of this case, reference
had been made to the said Notice
in extenso and the linkage to
the instant case.
The differences in the
compliance with the Statutory
Notice in section 127 and the
suit that has been filed in the
instant suit are quite clear and
already referred to.
Instead of learned counsel
for the Plaintiffs, Kwasi Afrifa,
addressing these issues, he
rather took us on a path of
research and treatise on
interpretation and why this
court should adopt the purposive
approach to the interpretation.
For example, the reference
and reliance by the said learned
counsel for the Plaintiffs on
the following materials and
cases, even though considered,
have been found to be
inappropriate, and therefore
inapplicable. These are:-
1.
The dictum and approach of
Prof. Ocran of blessed memory in
the case of Hanna Assi (No.2)
v GIHOC Refrigeration and
Household Products Ltd. (No.2)
[2007-2008]
2.
Sir Dennis Adjei’s J.A’s book on
Modern Approach to the law of
Interpretation at page 62
3.
Osman v Tedam 1970 Current
cases, 41
4.
Larbi Mensah IV a.k.a Aryee
Addoquaye v National House of
Chiefs [2011] 2 SCGLR 883 at 884
and
5.
Republic v High Court, Ex-parte
Attorney-General 1998/1999 SCGLR
595 at 618
just to mention a few.
As already stated, even
though we have considered the
invitation made to us by learned
counsel to consider the
purpose, substantial
justice principle,
substance and not form and
other principles of
interpretation urged upon is in
the plethora of cases referred
to by him in the statement of
case, we are not convinced
that the legislative effect of
section 127 of Act 462 should be
defeated by reference to such
principles of interpretation.
On the contrary, learned
counsel for the Defendants,
Thaddeus Sory, contended that it
was wrong for the Court of
Appeal to have endorsed the
breach of the statutory
provisions in section 127 of Act
462 supra.
In this context, we agree
with learned counsel and his
reliance on the following cases
to support that contention.
1.
See the case of
Republic v High Court (Lands
Division) Accra, Ex-parte Lands
Commission (Nungua Stool and
Others – Interested Parties,
Civil Motion No. J5/4/14 dated 5th
December 2013 where Wood CJ,
presiding quoted with approval
the dictum of Atuguba JSC in the
case of Network Computers
Limited v Intelsat Global Sales
and Marketing [2012] 1 SCGLR 218
at page 231 where our
respected brother observed
thus:-
“Unless a substantive Act can be
regarded as directory and not
mandatory or its infraction
is so minimal that it can be
observed that it can be covered
by the maxim de minimis non
curat lex or such that the
complaint about it is mere
fastidious stiffness in its
construction or the breach
relates to part of it which
in relation to others, can be
regarded as subsidiary and
therefore should not be allowed
to prejudice the operation of
the dominant part or purpose
thereof, or the strict
enforcement of the statute would
amount to a fraudulent or
inequitable use of the statute
or some other compelling reason,
I do not see how a court can
gloss over the breach of a
statute.” Emphasis supplied.
2.
See also cases like
Republic v High Court (Fast
Track Division) Accra, Ex-parte
National Lottery Authority
(Ghana Lotto Operator
Association and Other –
Interested Parties, [2009] SCGLR
390
3.
Republic v Michael Conduah,
Ex-parte George Supi Asmah,
unreported judgment of the
Supreme Court in Civil Appeal
No. J4/28/12 dated 15th
August 2013
where Akamba quoted with
approval the dicta of our
brother Atuguba and Dr. Date-Bah
JJSC respectively in the
Ex-parte National Lottery
Authority case referred to
supra.
The principle of law which is
clearly discernible from the
above cases is that unless the
provisions in the statute are so
manifestly and incurably bad, no
Judge or court for that matter
has the right or authority to
grant immunity to a party from
the consequences of the breach
of an Act of Parliament or
disable the enforcement of the
provisions of an Act of
Parliament.
In the instant case, it is the
breach of substantial provisions
of section 127 of Act 462 that
are in contention, i.e. a
statutory provision.
We have, after a perusal of the
contending arguments of learned
counsel been satisfied that the
enforcement of Section 127 of
Act 462 is a necessary pre
condition that has to be fully
met in order for the rationale
behind the passage of the Act to
be enjoyed by the Defendants
herein.
The mischief which the law was
intended to cure would be
seriously denied and affected if
the interpretation put upon the
section and the requirement of
notice by the Court of Appeal is
allowed to stand.
FORM AGAINST SUBSTANCE
Faced with the difficulty
of supporting the Court of
Appeal decision, learned Counsel
for the Plaintiffs relied to a
large extent on the shield of
form against the weapon of
substance. This is how learned
counsel forcefully put forward
that argument:-
“We submit by way of emphasis
that rules relating to form are
never to be elevated above
substance and in all cases the
court looks at substance rather
than form.”
Even though the above
statement may be applicable on
case by case basis, in the
instant case the form is
regulated by statute and we have
not been convinced why we should
abandon a statutory provision in
favour of a sentimental recourse
to substance.
What is at stake here is more
than mere form, it is an
opportunity for effective
dispute management to forestall
where possible unnecessary
litigation.
In actual fact, the
substance of the statutory
notice is to ensure that the
Defendants are not taken by
surprise by the nature of the
writ against them, are afforded
an opportunity within the one
month notice period to
investigate the claims and
decide whether they are liable
or not
whether or not it would be more
prudent or economical to settle
claims and also determine
the identities of the intended
plaintiffs and, the bonafides of
the reliefs etc.
An intending plaintiff has
all the time at his disposal to
evaluate the basis of the action
he intends to initiate against
Defendants before actualising
same.
It is to give practical
effect to the requirement of
this notice under section 127
supra that having considered
grounds 1 and 2 of this appeal,
we allow the said grounds of
appeal.
This means therefore that,
the court below erred when it
held that the notice on record,
which we have referred to
extensively supra complied with
the requirements of section 127
of the Local Government Act,
1993 (Act 462). The said notice
is seriously defective and the
Plaintiffs action against
defendants is accordingly set
aside.
Ground III
The Court of Appeal erred and
accordingly misdirected itself
when it held that the
application of provision under
section 56 of the Local
Government Act 1993 (Act 462) is
discretionary and not mandatory.
We have already referred
to the relevant provisions
contained in section 56 of Act
462. There is no doubt that one
of the claims by the Plaintiffs
are that no compensation has
been paid to them. It is section
56 which deals with payment of
compensations by the
Metropolitan, Municipal and
District Assemblies. It also
sets out the procedure by the
Metropolitan, Municipal and
District Assemblies. It also
sets out the procedures which
are to be followed. It also sets
out the appeals process when one
is aggrieved by the decision of
the Assembly.
In reality, we need not
belabor this point. This is
because section 56 (1) (c) of
the Act puts the matter beyond
per adventure. It states in part
that:-
“subject to this Act, a person
who is aggrieved by a decision,
an action or a policy relating
to an approved development plan
or the enforcement of it,
may within six months after
the date of the approval of the
plan or of the revocation or
variation of a permit or of the
taking of the decision or action
complained of lodge a claim for
redress with the District
Planning authority” Emphasis
In order to streamline the
appeals process, section 57 (1)
of Act 462 provides that, an
aggrieved person may appeal
within 6 months against the
decision of the Planning
authority to the Regional
Minster who may refer same to
the Ministry’s Advisory Board.”
In this respect, the High
Court was of the view as
expressed below by the learned
trial Judge as follows:-
“One of the claims by the
Plaintiffs is that no
compensation has been paid to
them. Section 56 of Act 462
deals with compensation and sets
out the procedure which ends
with appeals and which (sic) one
is aggrieved by the carrying out
of an approved development plan
should follow to get
compensation. The person does
not come to court straightaway”
The Court of Appeal on the
other hand, held as follows on
the same provision thus:-
“A cursory reading of this
Section 56 shows that, even if
all the Appellant’s (sic) claims
centered on compensation and
they did not, the court was
still palpably wrong in the
interpretation he placed on this
provision. The language of the
statute regarding lodging of a
claim for redress or
compensation with the district
planning authority is
discretionary and in no way
mandatory. To interprete
these steps as ousting the
jurisdiction of the High Court
to entertain the present action
is manifestly wrong.”
Emphasis
The Court of Appeal in
their interpretation are of the
opinion that the use of the word
“may” is discretionary. But we
have been persuaded to go by the
decision of this court in the
case of Edusei (No. 2) v A.G.
[1998-99] SCGLR 753 at 788-789
where the court held as per
Acquah JSC (as he then was) as
follows:-
“In respect of the second
expression, the “may” gives the
victim of a human right
violation the option of going to
court to seek redress. The
victim is under no compulsion to
go to court for redress if he
does not wish to do so.”
Emphasis
See also the decision of
this court where “may” even
though not stated in mandatory
terms was held to have such an
effect in Republic v High
Court (Commercial Division)
Ex-parte, Republic Bank Limited
(HFC Bank (Ghana) Limited and
Securities and Exchange
Commission- Interested Party CM.
No. JS/45/14 dated 17/12/2014.
We accordingly agree with
the contention of learned
counsel for the Defendants that
“all that the word “may” used in
Section 56 (1) (c) of Act 462
means is that a person who is
aggrieved by the acts or
omission of a district assembly
“may” seek compensation if he
desires so to do but if he
decides to claim compensation
then it must be within six
months. It is the reason for
which it says clearly that the
person aggrieved by the decision
of a district assembly “may
within six months….lodge a claim
for redress or compensation with
the District Planning Authority”
Emphasis
The “may” therefore is
referable to the decision to
pursue the payment of
compensation if at all.
In this respect therefore,
we are of the view that the
reliance by the High Court on
the Boyefio v NTHC Properties
[1996-97] SCGLR 531 SC where
it was held that where an
enactment had prescribed a
special procedure by which
something was to be done, it was
that procedure alone that was to
be followed, is more sound and
acceptable than the Court of
Appeal position.
See also the decision of
this court in the case of
Republic v High Court, Koforidua;
Ex-parte Asare (Baba Jamal &
Others Interested Parties) 2009
SCGLR 460 at 509 where Dotse JSC
in his opinion explained thus:-
“Where a statute has made
provisions for certain steps to
be taken in order to comply with
the requirements of the law,
then no other steps other than
those prescribed must be taken
or followed. In this case, once
the first interested parties
have failed to strictly adhere
to the provisions of PNDCL 284
as will be shortly established,
it follows that their actions
falls flat in the face of the
law.”
In our considered opinion
therefore, where a statute has
set out the procedure for
seeking relief, a party cannot
resort to any other procedure
especially when that procedure
is statutory. See the effect of
decisions such as Republic v
Central Regional House of Chiefs
and others, Ex-parte Nana
Ehunabobrim unreported judgment
of the Supreme Court Civil
Appeal No. J4/11/13 and Ahinakwa
II substituted by Ayikai v
Odjidja III and others [2011] 1
SCGLR 205 and 208.
Instead of arguing the
real points of substance urged
upon us by learned counsel for
Defendants in their statement of
case, learned counsel for
Plaintiffs, Kwasi Afrifa sought
to appeal to our emotions by
reference to a litany of
judicial principles from
American text writers and
Judges. These include inter
alia:-
i.
John P. Frank -
Judicial Decisions are binding
liked or not – Page 119
ii.
Hugo Black - A
biography by Roger Newman
iii.
Simple Justice by Richard
Kluger
iv.
Importance of Supreme
Court where it’s stated that
perhaps the court has won such
vast hegemony precisely because
Americans believe that it’s nine
life –membership Justices are
beyond the rough and tumble of
everyday politics.
v.
Courts Protection of
Rights
vi.
Laws must not seek to
annoy a class
vii.
Laws which whilst
appearing impartial is in truth
administered with evil eye.
Emphasis
We have considered all the
above principles and found them
to be inapplicable in the
circumstances of this case. We
must however reiterate the fact
that most of the above
principles can be found in
Chapter 5 of the Constitution
1992 which deals with
fundamental human rights and
freedoms and the Directive
Principles of State Policy in
chapter 6.
We also wish to state
that, even though Justices of
the Supreme Court in Ghana do
not have life membership, their
tenure secures for them the same
hallowed principles and effect
subject to good behaviour which
Counsel alluded to as applicable
to the nine Justices appointed
for life in the U.S.
CONCLUSION
In conclusion, we also
allow ground III of the grounds
of appeal.
In substance therefore,
having dealt with the very
essential and procedural grounds
of appeal which go to the root
of the appeal herein, it is
considered worthwhile not to
deal with the remaining grounds
of appeal.
Accordingly, the appeal
filed herein against the
decision of the Court of Appeal
dated 19th November
2015 is hereby set aside. In its
place, the judgment of the High
Court, dated 27th
July 2015 is restored.
Appeal therefore succeeds.
There will be no order as
to costs.
V.
J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(JUSTICE OF
THE SUPREME COURT)
J. ANSAH
(JUSTICE OF
THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE
DEFENDATS/RESPONDENTS/APPELLANTS.
KWASI AFRIFA FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS |
