IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2018
NANA KOFI AMOAH - (Plaintiff)
HON. ESTHER APPIAH & ANOR - (Defendants)
DATE: 22 ND JANUARY, 2018
CIVIL APPEAL NO: OCC/52/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.)
MERCY LARBI FOR NANA OBIRI BOAHEN FOR PLAINTIFF
PATRICK ADU POKU FOR DEFENDANTS
The Plaintiff herein describes himself as the Bammuhene of Awuah Dumase whilst the 1st Defendant has been described as a member of the Kumasi Metropolitan Assembly (KMA), representing the Abrepo Junction Electoral area. It has been observed that at the time of the trial, she was no longer the Assembly member for the said Electoral Area.
The 2nd Defendant has also been described as the decentralized body responsible for the administrative decisions of the Kumasi Metropolis. In this suit, the Plaintiff seeks to recover special and general damages from the Defendants as well as an order of perpetual injunction. The basis of his claims are that the Defendants caused their workmen to flatten trips of sand, chippings, moulded blocks, gravels, pavement blocks, etc meant for the renovation of his house numbered Plot 1, block 5 Abrepo Junction, Kumasi, resulting in a huge financial loss to him.
The particulars of special damages as contained in paragraph 11 of his statement of claim are : (i) Ten trips of chipping at two thousand Ghana Cedis per trip – GHC 20,000.00; (ii) Seven trips of sand at five hundred Ghana cedis per trip – GHC 3,500.00 and (iii) Four thousand moulded blocks at two cedis fifty pesewas per block – GHC 10,000.00. He alleged that an area ear-marked for a Lorry Park very close to the Plaintiff’s house was left untouched. The Defendants also alleged that as part of their core duties in ensuring easy access in the municipality, they received complaints from taxi drivers and inhabitants that a land lord along the Abrepo-Sofo line stretch of road had deposited sand and stones on a road reservation area which said act had distracted the operations of the taxi rank, and one Osei Bonsu who claimed to be the land lord was extorting monies from those taxi drivers. The Defendants alleged that after a series of meetings with the said Osei Bonsu and following his refusal to remove the said sand from the road reservation, the Complaints Committee of the 2nd Defendant recommended that the Engineers Department of the Assembly should see to it that the sand which was the only material on the land be removed. Hence, the Plaintiff is not entitled to his reliefs.
ISSUES FOR TRIAL
The issues set down for trial are and which will have to be determined are as follows:
Whether or not the Plaintiff or his representative was given notice to remove the materials from the site?
Whether or not the Plaintiff or his representative attended any meeting before the complaints committee of the 2nd Defendant in connection with the removal of the material?
Whether or not the Plaintiff is entitled to his claim?
Any other issues arising from the pleadings.
BURDEN OF PROOF
It is the law that in civil suits, a party whose positive assertions have been denied bears the burden of proof in respect of that assertion, and, that assertion is to be proved on the balance of probabilities. The legal basis for the degree and standard of proof are contained sections 11(4), and 12 of the Evidence Act 1975, NRCD 323. In discharging the burden of persuasion, a party is required under section 10(2) of NRCD 323 to introduce such evidence so as to establish the existence or non-existence of his or her case on the balance of probabilities. There are a host of judicial authorities on the nature of proof required in civil suits. These include the 1959 case of Majolagbi v Larbi ; Zambrama v Segbedzi (1991) 2 GLR 221 CA; Adwubeng v Domfeh (1996-97) SCGLR 660; Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis ( 2007-2008) SCGLR 580; and Continental Plastics v IMC Industries- Technik GMBH (2009) SCGLR 298 at 307 and Sumaila Bielbiel v. Adamu Dramani & Anor (No. 3) (2012) 1 SCGLR 370.
WHETHER OR NOT THE PLAINTIFF OR HIS REPRESENTATIVE ATTENDED ANY MEETING
BEFORE THE COMPLAINTS COMMITTEE OF THE 2ND DEFENDANT IN CONNECTION WITH THE REMOVAL OF THE MATERIAL?
This issue arises from paragraphs 7 and 8 of the Defendants statement of defence as follows:
7. Officials of the 2nd Defendant invited the said Osei Bonsu to its Complaint Committee after several appearances and inspections at the site, he denied demanding monies from the drivers.
8. After repeated appeals to the said Osei Bonsu to remove the sand that had created a nuisance to the use of the road had proved futile, the Committee recommended that the Engineers Department of the 2nd Defendant should see to it that the sand was removed.
The Plaintiff did not file any reply, and by implication, the parties are deemed to have joined issues on those facts. Therefore, the onus of proof of the issues arising from those assertions rest on the Defendants.
The 2nd Defendant testified on behalf of the Defendants. It was her evidence that as the then Assembly member of Abrepo Junction, Kumasi, she received numerous complaints from the inhabitants and taxi drivers who ply the Abrepo Junction- Sofo Line road that one Osei Bonsu had deposited sand and stone on part of the road reservation that distracts their operations. She told the court that following a formal complaint to the Assembly’s Complaint Unit, Osei Bonsu denied demanding monies from the drivers. The Committee inspected the site and urged Osei Bonsu to remove the sand and stone because the site did not form part of their plot. She added that Osei Bonsu was given ample opportunity but he never mentioned that he was only a care taker for the Plaintiff until the last sitting of the committee. Later, the Suame Police supervised the levelling of the sand that the Plaintiff, through Osei Bonsu had used to prevent the drivers from using the area as a station authorized by the Assembly. She concluded that the area where the sand had been deposited does not belong to the Plaintiff; there were neither moulded blocks nor stones on it, and even rains had eroded most of the sand leaving a quantity of less than two trips. She put into evidence minutes of the meetings held as exhibits ‘1’, ‘2’ and ‘3’.
The said Osei Bonsu testified for the Plaintiff as PW1 and this was what he said in his evidence-in-chief (further witness statement filed on 19/12/2016):
I was invited by the 2nd Defendant to appear before a Public Relations & Complaints Committee
Meeting on 30th July, 2013. Attached is a copy of the invitation letter and marked as exhibit NKA 8. I did appear before the said committee and I told them that the house belongs to my uncle. The Committee members told me to go and that they will get back to me. I did not hear anything from them until the 2nd Defendant used the grader to destroy all the building materials deposited on the land. The Defendants never gave me notice to remove the materials deposited on the land… .
The invitation letter which PW1 testified about is dated 26/07/2013 and it is as follows:
PUBLIC RELATIONS COMPLAINTS COMMITTEE MEETING.
You are being invited to appear before the above committee due on Tuesday, 30th July, 2013 at the KMA Conference Hall at 2:00pm.
Your invitation is in respect of a petition brought before the committee by Mr. Nkrumah (G.P.R.T.U.
Chairman, Bantama-Abrepo Junction Trotro branch) concerning a closed trotro station.
You must endeavor to attend this very important meeting.
Sgd. Hon. Nana Kofi Senya (Presiding Member).
MR. Bonsu, Abrepo Junction
Administrator, Bantama Sub-Metro.
The Defendants also attached minutes of the meeting referred to above as exhibit 1. Exhibit ‘1’ shows that the meeting in fact took place on 30/07/2013 at the KMA Conference Hall as indicated in the invitation letter directed at PW1. Exhibit ‘1’ further shows that at the said meeting, the issue of Kwabena Bonsu and his activities on the parcel of land in issue were discussed. And, after listening to the “complainants” and the “Defendants”, the Chairman promised to pay a working visit to the place on Tuesday, 6th August 2013 at 12noon. The minutes of the meeting held on 6th August, 2013, exhibit ‘2’ ,shows that indeed some members of the Committee visited the site and saw the heaps of sand complained of by the drivers with its attendant obstructions. In the closing addresses of counsel for the Plaintiff, she submitted that the said Osei Bonsu has never been the landlord of the house in front of which the Plaintiff deposited his materials, and that the 2nd Defendant invited the said Osei Bonsu in person to only one meeting which was not in connection with the removal of the materials. Again, she stressed that the Plaintiff was not invited by the 2nd Defendant to attend any meeting at which the removal of the materials was discussed. Counsel referred to the Defendant’s own exhibits 1, 2 and 3 to support her contention.
In response to these submissions, counsel for the Defendants also argued that since the said Osei Bonsu held himself out as the landlord and/or caretaker respectively at various times, any notice served on him as a care taker is deemed to have been served on the Plaintiff. Put differently, counsel relied on the principles of Agency, and argued, that service of notice on an agent amounts to service on the principal. Thus, the Plaintiff who has admitted that the said Osei Bonsu is his caretaker cannot be heard to say that no notice was given to him to attend any meeting at the KMA. On this issue, the court agrees with the submissions by counsel for the defendants that at all times material, Osei Bonsu who held himself out as the land lord until the meeting held on 30/07/2013, acted as the Plaintiff’s agent, and to that extent, his presence at the meeting convened by the KMA suffices. In fact, during the cross-examination of Kwabena Osei Bonsu by counsel for the Defendants, he made this admission:
Q: At all materials times before the action, you represented the Plaintiff as landlord of the property adjacent the road reservation?
A: That is so, I am the caretaker.
However, the argument by counsel for the Plaintiff that Osei Bonsu was invited to only one meeting, as the record reflects, finds favour with this court. This is in view of the fact that the Defendants could not tender any documentary proof of any invitation extended to him to attend the subsequent meetings. The minutes of those subsequent meetings do not also indicate the presence of Osei Bonsu, even though the subject matter was discussed. Osei Bonsu has also denied attending those meetings. Worse of all, none of the minutes contained in exhibits ‘1’, ‘2’, and ‘3’ bear the signature of the then Chairman (Nana Kofi Senya), Secretary (Godwin Okumah Nyame) and Recorder ( Tina Yeboah-Bio). How credible are those minutes? It is doubtful whether the members present ever adopted the alleged minutes as a true record in the absence of the requisite signatures to authenticate the same.
All the same, Kwabena Osei Bonsu has admitted attending the meeting to which he was invited and whose minutes are contained in exhibit ‘1’. This is the only credible evidence in relation to a meeting attended by Osei Bonsu, and by implication the Plaintiff, and I so find. From the evidence before this court, the materials which the Plaintiff, acting through Osei Bonsu, had placed on the disputed parcel of land, had obstructed the activities of road users and other inhabitants, including the drivers whom the 2nd Defendant had expressly permitted to use the land as their station. From the content of the letter inviting Osei Bonsu to attend the meeting under consideration, exhibit “NA 8”, the agenda was a “closed trotro station”. Since it was contended that the activities of Osei Bonsu had resulted in the closure of the said station as testified to by DW1, then, by necessary implication, the materials which had been used as blockage was to be discussed at the meeting and the same was discussed ( see pages 2 & 3 of exhibit 1).
WHETHER OF NOT THE PLAINTIFF OR HIS REPRESENTATIVE WAS GIVEN NOTICE TO REMOVE THE MATERIALS FROM THE SITE.
The Plaintiff in his evidence said he was not given notice to remove the materials, PW1 also said no such notice of removal was given to him. The Defendants contended that at the series of meetings attended by PW1, Kwabena Osei Bonsu, he was directed to remove his materials from the land. Referring to exhibit ‘1’, counsel for the Plaintiff argued that at the end of that meeting, it was resolved that members of the Complaints Committee were to pay a working visit to the site, but Osei Bonsu was not ordered to remove any materials from the land. Counsel for the Plaintiff disagreed, she insisted that no notice was given. For the 2nd Defendant, counsel referred the court to section 97 of the Local Governance Act, (2016) Act 936, and argued, that it formed the legal basis for the acts of the 2nd Defendant in issue, and the Plaintiff was not even entitled to notice in the first place. And, to the extent that the sand had been placed on a road reservation and the same was causing obstruction, the 2nd Defendant acted within its legal mandate. The acts complained of by the Plaintiff occurred on 05/09/2014, that is, a day after he had sent his nephew to the KMA in respect of its intended levelling of the materials. This was when the Local Government Act 1993, Act 462 was in force. Provision was made under section 132 for obtaining particulars of ownership of premises for the purpose of service of documents and any deliberate misstatement by the occupier attracted sanctions. It states:
132. Occupier to provide specified particulars
(1) For the purpose of enabling a document to be served on the owner of any premises, a District Assembly may by notice in writing require the occupier of the premises to state the name and address of the owner of the premises. The above provision is repeated verbatim in section 215 of the Local Governance Act, 2016, Act 936. So, the option of ascertaining the particulars of the Plaintiff herein from his caretaker who had at all times held himself out as the owner, was available to the 2nd Defendant. They could have served notices of the subsequent meetings on the Plaintiff by requesting his details from the said care taker when he appeared before them at the first meeting. This would have been most desirable. Section 97 of Act 936 which counsel for the Defendants relied on to justify the acts of the Plaintiff was not in force as at September, 2014 when the sand and/or gravels, were levelled on the parcel of land in contention. To that extent, the 2nd Defendant could not have clothed itself with powers under a non-existing statute. Act 936 came into force on 20/12/2016. However, the provisions of section 97 of Act 936 are the same as that of section 55 of the then Local Government Act 1993, Act 462 which states:
55. Unauthorised development of community’s right of space.
A district planning authority may without prior notice, effect or carry out instant prohibition, abatement, alteration, removal or demolition of an unauthorised development carried out or being carried out that encroaches or will encroach on a community’s right of space, or interferes or will interfere with the use of that space.
Now, can the depositing of materials on a parcel of land for whatever reason be considered as a “development” within the meaning of the then section 55 of Act 462? A quick look at the interpretation section will be useful. Under the Interpretation section of Act 462 of 1993 (and even under section 234 of Act 936), “physical development” which is the closest to the word “development” variously used in the enactment is defined in these words:
“physical development” includes the carrying out of building, engineering, mining or any other operations, exiting use of land or building and the subdivision of land, the disposal of waste on land including the discharge of effluent into a body of still or running water and the erection of advertisement or other hording.
Also, a “community right of space” is defined in the interpretation section of both Act 462 and Act 936 as follows:
“community right of space” means a road, street, footpath, pavement, passenger terminal, parking area, a public right of way, school ground, hospital ground, open space, cemetery, playing field, square, durbar ground, market place, public place of assembly, or a space or ground or an area for public or community use that exists or is so designated in an approved settlement plan or under law
In effect, an area earmarked as a road reservation falls within the definition of “community right of space”. But then, would we say that the depositing of sand, stones, gravels, and the like , where applicable, on such an area constitute a physical development on the land so as to entitle a district planning authority to carry out an instant prohibition, abatement, alteration, removal or demolition without notice? The mere depositing of building materials like sand, gravels etc on land earmarked for public use, does not, in the view of this court, fall within the definition of “physical development” under the then Act 462 and the current Act 936. However, those acts can be classified as “nuisance”, which has been defined under the interpretation sections of both Act 462, section 54 and Act 936, section 96 as follows:
Section 54 of Act 462 (same as sec. 96 of Act 936) Nuisance:
(1) Where substantial injury to the environment, amenity, public health or the economy is caused by a nuisance or is likely to result from the action or inaction of a person, a district planning authority may serve notice in the prescribed form on, and requiring that person to abate the nuisance within the time specified in the notice.
(2) A notice served under subsection (1) 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 a debt due from that person to the district planning authority.
Apart from discussions held at the Assembly’s complaint unit meeting as evidenced by exhibits ‘1’, ‘2’ and ‘3’, it appears no step was taken to formally notify the Plaintiff or his representative of the nuisance and its eminent abatement. The discussions at the meeting, especially, where the said minutes bear no signature, are not sufficient. On the basis of the evidence on record, the 2nd Defendant has not demonstrated to the satisfaction of this court that it gave formal notice in the manner prescribed by the law to the Plaintiff or his representative or agent prior to the levelling of the materials on the disputed portion of the land, but then, there is a clear indication that the Plaintiff was aware of the intended act. How did he come by that knowledge?
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIMS?
To determine this question, the court must first decide whether the disputed portion of land forms part of the Plaintiff’s plot. The most credible evidence on record on this point is that of the Surveyor, DW2. In his evidence, he said that the Court ordered the Survey and Mapping Division to produce a composite plan of the Plaintiff’s site plan to indicate whether the sand and stones were deposited within the Plaintiff’s plot. He tendered his report as exhibits 4 and 4A. He testified about his findings as follows:
With respect to the composite plan, the boundary shown green on the composite plan is the area claimed on the ground by the plaintiff. The boundary shown red on the composite plan is the area where the trips of sand, chippings, blocks, gravels and pavement blocks were deposited by the Plaintiff. The boundary shown blue on the composite plan is the area where the Defendants showed the materials mentioned above were deposited. Approved layout is shown by the scheme is in black. The area hatched is the road reservation. The materials deposited on the area fall within the road reservation.
Counsel for the Plaintiff could not discredit the above piece of evidence during cross-examination. Neither did the Plaintiff call another surveyor to contradict the findings of DW2. This court has no reason to doubt the findings of DW2 and would accept the same as an accurate reflection of the situation on the ground. The only irresistible conclusion is that the Plaintiff deposited his materials on a road reservation area which does not belong to him.
No individual or group of individuals can unilaterally change land use in Ghana whether the land is occupied or not, this is the preserve of the Statutory Planning Bodies. So, the fact that there is a vacant land in front of one’s property does not give the person exclusive rights to the use of the land. In developing any land, the land owner must be mindful of the actual dimensions of his land and operate within the same. In the present case, the Plaintiff did not have any express authorization from the 2nd Defendant with respect to the use of the land earmarked as road reservation. An association of taxi drivers had been granted permission by the 2nd Defendant to use the said land for their station, as the evidence shows, but the activities of the Plaintiff, acting through Kwabena Osei Bonsu (PW1), was obstructing the land use which amounted to nuisance. The 2nd Defendant was entitled to take steps to abate the Nuisance.
Admittedly, the 2nd Defendant did not follow its own procedural requirement of giving formal notice in the prescribed form, stating the Nuisance complained of and the steps taken to abate the same. In any case, the law says the Assembly “may” given notice in the prescribed form, so there is room for an Assembly to use other means of bringing the nuisance to the attention of the wrong doer, where necessary. Be that as it may, if Osei Bonsu was minded to remove those materials from the road reservation peacefully, he would have done so after the first meeting with the Complaints Committee of the 2nd Defendant. Again, the meeting which Osei Bonsu attended was held on 30/07/2013, and the levelling was done on 05/09/2014. If indeed, the materials were to be used for renovation as contended by the plaintiff, the same would have been used within a reasonable time without giving rise to the constant complaints. Yet, Osei Bonsu, who acted as the Plaintiff’s agent, played the ostrich and pretended there was simply no issue to attend to. It was his own careless and unconcerned conduct that caused the 2nd Defendant to level the ground to put an end to the obstruction that had more or less become a perennial nuisance. Moreover, paragraphs 4, 5, 6 and 7 of the Plaintiff’s statement of claim, which he conveniently ignored in his evidence -in-chief, is an indication that at least the Plaintiff had some form of notice of the intended action. They read:
4. The Plaintiff avers that, on 4th of September, 2014, he received information that, the KMA has evinced an intention to flatten trips of sand, trips of chippings, moulded blocks, gravels, pavement blocks etc meant for renovation exercise at the house under reference.
The Plaintiff avers that, he sent his nephew, one Bonsu, to go to the KMA office to officially lodge a complaint or protest against the KMA’s intended action Plaintiff says that officials of the KMA flatly denied having nursed or natured such an information.
The plaintiff says that he was shocked that, the KMA, spearheaded by the 1st defendant, and in the company of well armed KMA workers, used a grader with Registration number GR 215 on the following day to flatten the trips of sand, trips of gravel; pavement blocks; stones; chippings; moulded blocks and virtually destroying everything.
The Plaintiff’s rather terse evidence-in-chief before this court is a departure from his own pleadings. What did he have to hide from the court? By the preponderance of the evidence, the court finds that even though notice was not given to the Plaintiff in the prescribed form, he was aware of the nuisance he had created as well as the eminent abatement of the same by the 2nd Defendant. One would have thought that immediately he had information of the levelling of the materials, he would have taken steps to remove them. Yet, he took no steps to abate the nuisance.
Consequently, the Plaintiff cannot complain about the acts of the 2nd defendant in levelling whatever materials that was causing the obstruction on the road reservation. The 2nd Defendant’s actions were reasonable under those circumstances. As for the 1st Defendant, the Plaintiff has not been able to satisfy the court of her role in the exercise apart from saying that she spearheaded the same. An Assembly man or woman represents the interests of their communities as and when required. The Plaintiff’s allegations against the 1st Defendant cannot be true because on the basis of the evidence before this court, the 1st Defendant was only present during the exercise in her capacity as the Assembly Member of the area. She did no wrong in her private capacity.
The Plaintiff did not even have a cause of action against the 1st Defendant personally, in the circumstances of this case and has merely wasted her precious time in court. The Plaintiff cannot break the law with impunity and expect the law to come to his aid for acts wrongfully done. Even equity frowns on that, as the saying goes, he who comes to equity, must come with clean hands. By the preponderance of the evidence before this court, the Plaintiff is not entitled to his claims against the Defendants and his action fails. Judgment is entered against the Plaintiff.
The case was straight- forward, but both parties contributed to the delays. Having considered the provisions of Order 74 of C.I. 47, the court awards cost of GHC 2000.00 against the Plaintiff in favour of the Defendants.
ANGELINA MENSAH-HOMIAH (MRS.)
JUSTICE OF THE HIGH COURT