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JUDGMENT:
Mandamus, is an order of
most extensive remedial nature,
and is in form, a command
issuing from the High Court of
Justice directed to any person,
corporation or inferior
tribunal, requiring him or them
to do some particular thing
therein specified which
appertains to his or their
office and is in the nature of a
public duty, this is how,
Halsbury’s law of England,
defined mandamus.
It is also defined as a
prerogative writ, and is an
order requiring an act to be
done. Mandamus may issue
against a public officer, a
statutory authority or person
who has a public duty to
perform, under the common law to
do any act so warranted but
refuses or neglects to do that
act or perform that duty. It
includes the correction of such
acts or duty wrongly performed.
The order neither grants victory
to the person applying nor is it
the result of litigation.
In ART 141 of the 1992
constitution the High Court, has
supervisory jurisdiction over
inferior tribunals or lower
courts, and ART 161, which
further defined the supervisory
powers, shows that mandamus is
one of those writs or orders the
court can employ in its
supervisory role.
Under a broad name the process
is known as, Judicial Review.
And ORDER 55, of the High Court,
Civil Procedure Rules – C.I.
47/04, provides the procedure to
follow.
An application for an
order of mandamus should be
brought within six months from
the date of the occurrence of
the event. There are four
essential requirements, that
must be satisfied in this type
of application. This was stated
in the case:
REPUBLIC
VRS.
CHIEFTAINCY
SECRETARIAT
EXPARTE: ADANSI
TRADITIONAL COUNCIL
(1968) GLR 36.
Firstly, it was held, an
applicant must establish that
there is/was a duty imposed by
the statute on which he relied.
Secondly, that the duty was of a
public nature.
Thirdly, the applicant must show
that, there was a right in the
applicant to enforce the
performance of the duty. And
finally, that there had been a
demand and a refusal to perform
that public duty enjoined by
statute.
The essential element
that must he established have
been formulated differently, in
other decided cases as follows:
(1)
That there must be a legal right
to be enforced, the purpose of
which cannot be enforced by any
other, legal remedy equally
convenient, beneficial and
appropriate.
(2)
That there must have been a
distinct demand and refusal to
do the act.
(3)
The duty to be performed must be
some public or quasi – public
legal duty and
(4)
It must appear that the order
would be effective.
It has also been held
that, the duty to be performed
should be obligatory on the
respondent, and that the
obligatory nature of the duty is
determined by the use of “SHALL”
or “MUST” in the statute.
But it appears there are
exceptions though.
However, whether to grant an
order of mandamus or not is
discretionary given the facts of
every case. But mandamus cannot
be granted to enforce the
performance of contractual
obligations, moral duties and
generally in cases in which
there are alternative and
appropriate remedies it would
not be appropriate to grant it,
this could be seen from case law
that shows the history of
evolution of this remedy.
In this application,
applicant must establish the
conditions enumerated above in
order to have a favourable
ruling in her favour, even in
the absence of the respondent.
The deposition, made by
Grace Afrakoma Adomakoa, a
retired educationist/applicant
showed that, she resides in
House No. 219, Mandela 2, New
Weija, in Ga South Municipal
Area, and that, she has been
living there for the past six
years.
And that H/No. 217, Mandela 2,
New Weija, which is a compound
house, shares a common wall with
her house.
Furthermore, she averred
that, even though the area is a
residential one, a permanent
church has been established in
the compound house,
aforementioned, and church
services are conducted with
excessive and unbearable noise
on most days of the week from
9:00 am to 4:00 pm.
And that on Sundays and other
religious occasions, the noise
making takes the worse form.
The averments showed that, “ALL
NIGHT”, prayer sessions with
loud voices, drums and other
musical instruments are used,
generating excessive and
unbearable noise from late night
to the early hours of the day.
In addition, the
deposition showed the effect of
what has been described above,
in the form of sleeplessness,
and the inability to communicate
and listen to audio or visual
programme on phone and
television in her house.
And that several complaints made
to the leadership of the church
and the house owner have not
only been ignored, but
accompanied with threats.
In paragraph 7 of the
deposition, the applicant
submitted, what has been
described, constitute public
nuisance, and that the
provisions of the Local
Government Act 1993 [Act 462],
mandates, the Ga South Municipal
Assembly as the Statutory body
to ensure that such public
nuisance is abated forthwith.
Furthermore, she stated,
zoning in the Ga South Municipal
Area, is a statutory duty of the
Ga South Municipal Assembly, and
the failure or neglect to ensure
that a church or churches do not
operate or are situated in
purely residential areas, is
statutory duty of the respondent
to discharge.
In continuation, she
referred to EXHIBIT “1”, dated 9th
January, 2012, which is a letter
addressed to the Presiding
member of the respondent,
Municipal Assembly, and stated
her request on the respondent to
act has been ignored.
It is her case that the failure
to prevent public nuisance and
the excessive and unbearable
noise that the members of H/No.
217, Mandela, and the landlord
continue to make constitute a
refusal to perform a statutory
duty contrary to the provisions
of Act 462.
And that, this is a proper case
in which this court must compel
the respondent to act.
In the accompanying
statement of case sections 10
and 54 of the Act were cited as
the relevant provisions, that
impose the statutory duty which
respondent has failed and
neglected to perform. The
sections are reproduced below:
Section 10 of the Act
provides:
“Subject
to this Act, a District Assembly
shall
exercise political and
administrative authority in the
District, provide guidance, give
direction to, and
supervise all other
administrative authorities in
the
district”
And section 54 (1) also
provides:
(1) “Where
substantial injury to the
environment,
amenity, public health or the
economy is caused by
any
nuisance or is likely to result
from the action or
inaction of any person, a
District Planning Authority
may serve notice in a form
prescribed in regulations
on the person requiring him to
abate the nuisance
within
such time as may be specified in
the Notice.
(2) A notice
served under sub-section (1) of
this section
shall specify the nuisance and
the steps required to
be
taken to abate the nuisance.
(3) Where a
notice issued under this section
is not
complied with, a
District Planning Authority may
carry out the abatement and
recover the costs from
the
person causing the nuisance or
the owner of the
land where the nuisance is
occurring as if it were due
from the
person to the District Planning
Authority.”
The statement of case
also showed that by section 53
(1) (b) of the Local Government,
Act, the relevant, District
Assembly has mandate to prohibit
the use of land or building for
a purpose or manner contrary to
a provision of an approved plan.
It was submitted, H/No. 219 and
217 at Mandela 2, New Weija were
approved to be used as
residential buildings and not as
public place of worship.
On the other hand, no
response has been offered, as
the respondent, Municipal
Assembly refused and or
neglected to file any process
even though it has been duly
served.
This application has therefore
not been contested or
controverted in anyway.
I have found that the
fact that, the applicant’s house
is a residential facility and
the adjoining house is also a
residential facility.
It has been established that,
such a residential facility has
been turned into a public place
of worship, and excessive noise
is made as asserted by the
applicant.
It is self evident that, the
respondent has refused and
neglected to act, even though a
formal complaint and demand for
the performance of its statutory
duty has been requested by the
applicant.
I am satisfied that all
the essential characteristics of
a successful mandamus
application have been
established. The excessive
noise that in my view constitute
public nuisance is a continuing
activity, and this must be
stopped forthwith.
BY COURT:
1.
This court being satisfied with
the motion on notice for a
prerogative writ – mandamus
prayed for, against the GA South
Municipal Assembly to perform
its, statutory duty, grants the
motion accordingly.
2.
The respondent, the GA South
Municipal Assembly, is hereby
ordered to perform the statutory
duty of enforcing public
nuisance as provided for a
section 54 of the Local
Government Act, Act 462/93, as
amended, which duty it refused
or neglected to perform even
though as in EXHIBIT “1” a
request was made but it ignored
same. The public nuisance is
continuing and 21 days is
limited by this court for the
order to be complied with upon
service of the order on the
respondent.
3.
Case is adjourned to ……….June,
2012 for report.
N. M. C. ABODAKPI
JUSTICE OF THE HIGH COURT
SAMUEL CUDJO FOR APPLICANT -
PRESENT
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