KWABENA OBENG & ANOTHER v. KUMASI METROPOLITAN ASSEMBLY (KMA) & ANOTHER
November 19, 2015
COURT OF APPEAL
GHANA
CORAM
- AYEBI, J.A. (PRESIDING
Areas of Law
- Administrative Law
- Civil Procedure
- Constitutional Law
- Property and Real Estate Law
November 19, 2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Torkornoo, J.A., reviewed a High Court order striking out a suit by Kejetia Traders Association and Kejetia Petty Traders Association against the Kumasi Metropolitan Assembly and its Chief Executive over the Kejetia Bus Terminal redevelopment. The High Court had held that Appellants failed to meet Section 127 notice formalities and should have pursued compensation through Act 462 Section 56’s administrative process, thereby lacking jurisdiction. On appeal, the court dismissed the timing challenge but held the Section 127 notice was substantively sufficient and clarified that Section 56’s “may” denotes a discretionary internal remedy, not an exclusive forum or jurisdictional bar. Emphasizing substantial justice over technicalities, the court set aside the strike‑out, restored the suit for hearing before a different High Court judge, and awarded GH¢3,000 costs.
J U D G M E N T
TORKORNOO, J. A:
The Defendants/Respondents (hereinafter referred to as Respondents) are a Metropolitan Assembly and its Chief Executive. The Appellants sued the Respondents on 25th June 2015 and served the writ on the same date. On 6th July 2015, eleven days after service of the Writ and Statement of Claim, the Respondents entered conditional appearance to the Writ. They then applied to set aside the writ and service of the writ on the ground that the court had no jurisdiction to entertain the action.
In the supporting affidavit to the application to set aside the writ, the Respondents inter alia, averred in paragraphs 7 and 10 that
7.‘…1st defendant’s enabling statute provides avenues by which such entities may resolve any differences with 1st defendant and that omission to consult any state agency in carrying out development (sic) its plans confers no cause of action to plaintiffs against 1st defendant by way of the present suit’.
10. That a reading of the processes filed by Plaintiffs in this suit especially exhibit A exhibited to Plaintiffs affidavit in support of its application for injunction filed on 29/06/15 will confirm that none of the plaintiffs in this suit have demonstrated their compliance or otherwise with the statutory preconditions for invoking the jurisdiction of this Court and that in any case this Court has no jurisdiction to entertain the suit’.
In his ruling, the learned trial judge set out the first of the relevant provisions from the arguments of counsel as Section 127 of the Local Government Act 1993 Act 462 which reads:
127 Notice of Suit to be given to Assembly
A suit shall not be commenced against a District Assembly until one month at least after written notice of intention to commence the suit has been served upon the Assembly by the intending plaintiff or the agent of the plaintiff
The notice shall state the cause of action, the names and place of abode of the intending plaintiff and the relief which the plaintiff claims.
The court identified a notice that was dated 1-4-2015 and issued on behalf of ‘Traders and Shop owners at the Kejetia Bus Terminal’. He noted that the names of the Plaintiffs (Appellants herein) before him were not stated in the notice, neither their abode nor the reliefs to be sought.
In agreeing with the Respondent’s motion, the trial judge said on page 6 of his ruling that ‘apart from the statutory pre-condition of giving notice the Act provides more which the Respondent