HIGH COURT, ACCRA
Date: 11 JULY 1975
ABOAGYE J
NATURE OF PROCEEDINGS
ACTION by the plaintiff for damages for the wrongful demolition of her house. The facts are sufficiently set out in the judgment.
COUNSEL
C. E. Quist for the plaintiff.
B. A. Addo for the defendants.
JUDGMENT OF ABOAGYE J.
By her writ, the plaintiff claims the sum of 050,000.00 damages from the defendant council for wrongfully entering and demolishing her two-storey house No. D. 454/2, Salaga Market Street, Accra, on 15 and 16 October 1974.
By their statement of defence the defendants deny that the demolition of the plaintiff s house in question was wrongful. According to them the said house was in a dangerous and ruinous state and a source of danger to the occupants and members of the public as well. They, therefore, exercise their powers under section 44 of the Local Government Act, 1971 (Act 359), as amended by the Local Administration (Amendment) Decree, 1974 (N.R.C.D. 258), in demolishing the property. The procedure followed by the defendant is set out in paragraphs (2), (3), (4), (6) and (9) of the statement of defence which reads:
“(2) The defendants say that an inspection conducted by the City Engineer’s Department of the defendant council in 1974, revealed that the plaintiff’s building was in a dangerous state of disrepair.
[p.199] of [1975] 2 GLR 198
(3) In or about June 1974, it was noticed by the defendant council that the deterioration was worsening and posing a serious threat not only to the occupiers of the premises, but also to neighbouring properties and those who pass within or near its precincts.
(4) The defendants say that it therefore became necessary to serve Dangerous Building Notice No. 5504 dated 25 June 1974, on one Mr. Quartey-Papafio an occupier of the building herein, ordering the building to be demolished forthwith.
(6) A further inspection was conducted on the building in September 1974 and it was then found in a ruinous state and in immediate danger of collapse, and the defendants therefore entered the building and took measures to protect the occupiers and the general public by demolishing the first floor and part of the ground floor thereof.
(9) Defendants further say that the acts complained of were acts done by them under and by virtue of powers conferred upon them by section 44 of the Local Government Act, 1971 (Act 359).”
In his reply to the statement of defence, Mr. C. E. Quist, counsel for the plaintiff averred that the act of the defendants in demolishing the plaintiff ‘s building was wrongful and seriously contravened the provisions of section 44 of the Local Government Act, 1971.
The only issues set out for trial were: (a) Whether or not the defendants’ act in demolishing the said building contravened the provisions of section 44 (1) to (4) of Act 359, (b). If so, the quantum of damages.
Section 44 of the Local Government Act, 1971, deals with ruinous or dangerous buildings. Subsections (1) to (4) state the steps to be taken before a building in a dangerous or ruinous state can be demolished.
The subsections read:
“(1) If a District Council is satisfied that any building or anything affixed thereto is in a ruinous state or is dangerous to the occupiers of such building or neighbouring buildings or to the general public, the Council shall take such measures as it may think necessary by fencing or otherwise for the protection of the occupiers or the general public and may by notice in writing to the owner of the building, if he is known, and to the occupier thereof, if any, require the owner or occupier to take down, secure or repair the building or other thing.
(2) If the owner or occupier does not begin the work required within a period of fourteen days after the service of the notice and does not complete the work within the time specified by the Council or if no owner or occupier is known, the District Council may make complaint thereof to a District Magistrate.
(3) The District Magistrate may where a complaint has been made under subsection (2) of this section, order that such building or other thing or so much thereof as is in a ruinous or dangerous condition be taken down or rebuilt or repaired as the circumstances of the case may require.
[p.200] of [1975] 2 GLR 198
(4) If the owner or occupier does not begin the work required by an order made under the provisions of subsection (3) of this section within a period of fourteen days after the making of the order and does not complete the work within the time specified by the Council, the Council shall execute the order and the expenses so incurred by the Council together with the cost of erecting and taking down any fencing or hoarding or any work done in accordance with subsection (1) of this section shall be met in the first instance from the revenue of the Council and shall be recoverable as if it were a debt due from the owner or occupier to the Council.”
Subsection (1) of section 44 empowers a district council to fence a dangerous building or otherwise make provision for the protection of occupiers of the building or members of the general public. Under the subsection the council may also give notice in writing, requesting the owner of the building to take down, secure or repair the building or any dangerous object affixed thereto. Subsection (2) of the section states that if the owner or occupier of the building does not start the work required by the notice to be done within fourteen days after service of the notice and complete the same within the time specified by the council, or if the owner or occupier of the building is unknown, the council may make a complaint of the fact to a district magistrate.
The district magistrate, acting under subsection (3) of the section, after going into the complaint, may order that such building or other thing or so much thereof as is in a ruinous or dangerous condition be pulled down or rebuilt or repaired as the circumstances of the case may require. Subsection (4) states that if the owner or occupier of the building does not begin the work ordered by the district magistrate within a period of fourteen days after the making of the order and does not complete it within the time specified by the council then the council shall have power to execute the order of the magistrate and expenses so incurred by the council together with the costs of erecting and taking down any fencing or hoarding or any work done in accordance with subsection (1) shall be met in the first instance from the revenue of the council and shall be recovered from the owner or occupier.
From the statement of defence filed on behalf of the defendants, it is clear that the provisions of section 44 of the Local Government Act, 1971, were not complied with inasmuch as no complaint was made to a district magistrate and no magisterial order requiring the plaintiff to pull down her property was obtained. The act of the defendants in demolishing the plaintiff s house was outside their jurisdiction and therefore wrongful for which the plaintiff is entitled to recover damages.
DECISION
Judgment for the plaintiff.
L.F.A.
