The High Court in Accra presided over by Justice Kweku Tawiah Ackaah-Boafo has ruled in a mandamus application that the La Nkwantanang Madina Municipal Assembly has a 90-day ultimatum to stop unauthorized development of lands at Oyarifa.
Considering the writ filed before it by the Ghana National Fire Service Association (GNFSA), the court said the assembly is to make the necessary arrangement with illegal encroachers to show cause why their structures should not be removed or demolished.
Justice Ackaah-Boafo, in his ruling, said, “The application is granted as it is meritorious and worthy of consideration” since “the duty complained of is a public duty imposed by statute.”
Complaint
On June 30, 2017 the Ghana Fire Service Staff Association filed a motion on Notice for Judicial Review for an order in the nature of Mandamus directed at the La Nkwantanang Municipal Assembly to “compel them to perform their duty under the Local Government Act1993 (Act 462).
It was the contention of the GNFSA that individuals have flouted the law by constructing buildings in zoned areas meant for roads and places deemed access ways and thus blocking home owners like the applicants access to their various homes.
According to them, the assembly failed to act to stop the illegality despite being aware of same.
The applicants, who are Fire Service Officers working at the Headquarters of the GNFS and have been home owners at Oyarifa Gravel Pitch since 2005, in their affidavit in support deposed by one Joseph Amu Otto, said the assembly’s failure to act amounts to disregard for the law.
According to the applicants, “of late some people have come to the area and have started constructing buildings on zoned roads and places deemed access ways for the community’s use.”
The Applicants also contend that other developers have built or extended their walls right in the middle of the roads and thereby depriving residents’ access to their various homes.
The subject matter
In the opinion of this court, before it took the decision two main questions it set out were “Whether this is an appropriate case for which an Order of Mandamus shall issue; and Whether or not there has been a demand for the performance of an official duty and has been refused.
The court said in the light of the above, it could not be denied that the Municipal Assembly has a duty to enforce the law and where appropriate remove authorized structures.
It said despite being served with the process filed, the assembly refused and neglected to file any process to challenge the applicants’ assertions as deposed to in the supporting affidavits.
To that extent, Justice Ackaah-Boafo accepted the depositions of the applicants that the Assembly has failed to act in clear disregard of the law.
Court ruling
The law is quite trite that where a party has made an allegation or an averment and that averment is not denied, no issue is joined and no evidence need be led on that averment.
In the ruling of the court, the demand letters were clear and unequivocal and in the light of the fact that it has not been specifically denied that the demand notice was served on them, it hold that a demand was made on the assembly but no action was taken thereon.
Conclusion
The court said the overwhelming evidence is that as at the time the application was filed in court on June 30, 2017 the Assembly had still not responded to the demand by way of a reply and will construe the default of the Respondent to mean a refusal to perform its statutory function.
The presiding judge stated that the court was satisfied that the Applicant had made out a case for the grant of an order of Mandamus to compel the performance of the Respondent.
“The Respondent is hereby ordered to respond to the Applicant’s complaint and invite the individuals that the Applicant contends have built in road ways and access ways to show sufficient cause as to why their structures should not be removed and/or demolished.
“The Respondent Assembly is to make the necessary arrangement and put the necessary measures in place to be able to enforce the law in respect of unauthorized development within its jurisdiction as an Assembly within three months from today. I make no order as to costs,” the court said.
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