ESI YEBOAH ALIAS JUSTINA MONNEY V. MFANTSEMAN MUNICIPAL ASSEMBLY SUIT NO. UNREPORTED DECISION OF THE HIGH COURT MANKESSIM SUIT NO: A2/06/2021 DATE: 13TH OCTOBER, 2022.

ESI YEBOAH ALIAS JUSTINA MONNEY V. MFANTSEMAN MUNICIPAL ASSEMBLY SUIT NO. UNREPORTED DECISION OF THE HIGH COURT MANKESSIM SUIT NO: A2/06/2021 DATE: 13TH OCTOBER, 2022.

“It is my considered view that writing on people’s structures does not conform to the intentions of the Act and by the wording of both sections of the Act, if the Assembly decided to give notice, it has to be in writing, on paper, specifying the date within which the offender must respond, etc.”

By a deed of assignment, Esi Yeboah alias Justina Monney (“the Plaintiff”) acquired a piece of land in the Mfansteman Municipality from one Razak Nyarko. She began to develop the land in January 2020 and subsequently, submitted her site plan and building plan to the Mfantseman Municipal Assembly (“the Defendant”) for a permit. The documents were however returned to the Plaintiff for her to make some amendments to them before the permit would be granted. The Defendant also consented to the Plaintiff building before the final approval of the building permit.

According to the Plaintiff, notwithstanding this arrangement, the Defendant went ahead to unlawfully demolish her building. She contended that the Defendant was mandatorily required by law to serve a written notice on her to show cause why her building should not be demolished. As the Defendant had failed to do so, the demolition of her building was unlawful and therefore illegal. She thus sued the Defendant claiming that its action had caused her serious damage, injury, and loss of money.

The Defendant denied that the Plaintiff officially submitted any proper documents for approval and added that it had no arrangement with the Plaintiff to build before approval of the building permit. The Defendant however admitted that it took steps to stop the unauthorized development allegedly started by the Plaintiff.

According to the Defendant, because the developer was not known at the time of the illegal development, the staff of the Defendant wrote “Stop Work, Produce Permit” with red paint on the structure to warn the developer.
In reply, the Plaintiff admitted that on 15th January 2020, the Defendant wrote “Stop Work” on her structure. However, a day after, the Defendant demolished her structure. She further stated that prior to the demolition, when she went to the Town Planning Department, she was told to leave about five feet but she left about ten feet and then amended her building documents accordingly. She also altered the structure she was building. Nonetheless, the Defendant went ahead and demolished her building.

The Court held that the intention of the framers of the Local Government Act, 2016 (“the Act”) that written notices must be given to offending persons is known to the Defendant for which reason its officers wrote “Stop Work, Produce Permit” on the Plaintiff’s building. The Court however held that the practice of various Assemblies across the country painting the words, “Stop Work, Produce Permit” on structures was unauthorized and added that the Defendant failed to indicate the authority or power upon which it writes such notices on structures as an alternative or substitute to the statutory requirement of a written notice.

The Court added that writing on people’s structures does not conform to the intentions of the Act and by the wording of the Act, where the Assembly decides to give notice, it must be in writing, on paper, specifying the date within which the offender must respond among other details. The only instance where the Act allows instant demolition of an authorized development is where the said development encroaches or will encroach on a community right or use of the space.

In this case, the Defendant failed to give the Plaintiff the required written notice in accordance with the Act. Further, even though the Defendant claimed that it demolished the Plaintiff’s structure without notice because the structure was on a community access road, it failed to provide the required evidence to that effect before the Court, especially since the Plaintiff had denied that claim.

The Court thus held that the Defendant’s act of entering onto the Plaintiff’s land and demolishing her structure without notice to her as required by law constituted trespass to land, which once proved, entitled the Plaintiff to damages (compensation). After considering the circumstances holistically, the Court awarded the Plaintiff general damages of GHS 1,000.00 and costs of GHS 2,000.00. No special damages were awarded as the Court took the view that the Plaintiff did not provide any evidence as proof that she incurred the expenditure stated.

Insight: It is not sufficient for Assemblies to paint the words “Stop Work, Produce Permit” on structures it considers unauthorized within their local area, as writing on people’s structures does not conform to the intentions of the Local Government Act, 2016 (Act 936). Where an Assembly decides to give notice to an offending party, the notice has to be in writing, on paper, specifying the date within which the offender must respond among other relevant directions. An Assembly can only embark on instant demolition where the unauthorized development encroaches or will encroach on a community right or use of the space.

AUTHOR:
Maame Barnie Adu Amoah (Legal Associate)