Ellembelle District Assembly Vrs Mensah and Another [2023] GHADC 77 (12 April 2023)

IN THE DISTRICT COURT HELD AT NKROFUL ON TUESDAY 12TH DAY OF APRIL 2023, BEFORE HER WORSHIP AWO AMISSAH FRENCH ESQ. AS MAGISTRATE.

ELLEMBELLE DISTRICT

PLAINTIFF SUIT NO: A11/34/23

ASSEMBLY VRS.

1. KINGSFORD MENSAH

DEFENDANTS 2. EHOMAH ERZOA NYAMEKEHA PLAINTIFF REPRESENTED BY SAAKA ALHASSAN, DISTRICT ENGINEER 1ST DEFENDANT PRESENT 2ND DEFENDANT REPRESENTED BY JOSEPH EHOMAH ELIMAH PARTIES SELF-REPRESENTED

JUDGMENT The Plaintiff has brought the instant action seeking against the Defendants jointly and severally, the reliefs endorsed on the writ of summon as follows a) An order of the Court to demolish defendant’s unauthorized building erected at the government road reservation at Aiyinasi without permit; b) Any further orders that the Court deems fit; and c) Costs. The brief case of plaintiff, per its Engineer is that defendants are residents of Aiyinasi and have erected an unauthorized building at the government road reservation at Aiyinasi without obtaining any permit. All efforts made to have them demolish the said uncompleted building have proven futile. 1st defendant pleaded liable with explanation to the claims and indicated, in summary, that the said land on which the construction is allegedly ongoing is in front of his building and forms part of his land, reason for which he permitted the 2nd defendant to erect the said structure thereon. The Court however deferred the entry of judgment to enable the Court visit the locus to apprise itself of happenings at the locus. The locus inspection which was conducted on the 28th day of March, 2023 in the presence of parties and designated court staff revealed that: (a) the entire area is built up and developed with all manner of structures including residential and commercial structures; (b) some of the already developed structures

sit directly on the shoulder of the current main single lane Aiyinasi-Elubo highway; (c) the building as measured by the plaintiff in the presence of parties present at the locus, fell 100 feet from the current main single lane Aiyinasi-Elubo highway; and (d) the building is currently at the early stages of erection with nine (9) duly partitioned cabins and appears to be an intended storey structure. With respect to Relief (a), I hereby note that the Assembly does not need a Court Order in carrying out its mandate, as it seeks so to do with this current suit. I also note, based on the observations from the locus inspection, there are other properties both commercial and residential, which actually sit on the shoulders of the current road. Hence, it appears selective on the part of plaintiffs to go after defendant’s developing property solely when there are neighbouring already developed structures which sit on the shoulder of the current road, not to talk of eating into the government road reservation. Furthermore, it is unknown to the Court that demolition is one of the processes of execution of judgments in accordance with the District Court Rules, 2009 (C. I.59). It is settled in this jurisdiction that enforcement or execution of judgments is regulated by Orders 43, 44 and 45 of the High Court Civil Procedure Rules, 2004 (C. I.47) which do not provide for demolition as one

of the methods for enforcing judgments. The Rules of Court only allow the Registrar or Sheriff to issue a Writ of Possession and give vacant possession of the immovable property to the Judgment Creditor. This principle has recently been clearly stated by My Lord Chief Justice Anin-Yeboah in his Circular SCR 9 dated 31st May, 2021 as follows: “The demolition of any wanted structure on the land is the sole responsibility of the judgment Creditor and not the Court.” I therefore align myself with the above directive and emphatically state that this Court is restricted from granting Orders not sanctioned by the Rules of Court. Consequently, plaintiff’s claim in Relief (a) is hereby refused. With respect to Relief (b), I find that defendants carried on with the construction in blatant disregard of the need to fully secure a permit, which contravenes the law. Thus, although 1st defendant pleaded liable to the plaintiff’s claims, I’ll refuse same for the reasons stated above and refer the defendants to the Assembly as these matters fall within the Assembly’s purview. No Order is made as to costs. H/W: AWO AMISSAH FRENCH DISTRICT MAGISTRATE, NKROFUL 12TH APRIL, 2023