REPUBLIC v. DISTRICT MAGISTRATE, ACCRA; EX PARTE ADIO
May 22, 1972
COURT OF APPEAL
CORAM
- KOI LARBI J.S.C.
- ARCHER
- ANNAN JJ.A
Areas of Law
- Administrative Law
- Civil Procedure
- Property and Real Estate Law
May 22, 1972
COURT OF APPEAL
CORAM
AI Generated Summary
Winfried Barton Adio appealed against the High Court’s refusal to issue certiorari to quash a district court order authorizing sale of estate house No. B.174/8, Kaneshie, for unpaid general rates. The Accra-Tema City Council, through its Town Clerk, initially secured an order for possession under the Local Government Act 1961 (Act 54), Schedule VII, then ex parte obtained review substituting an order for sale. A formal sale order was signed much later, and the property was auctioned to Cecilia Martey. Adio had acquired the lease from G.K. Quami with Ghana Housing Corporation’s consent and claimed to have notified the City Council of his ownership. He challenged compliance with statutory preconditions under paragraph 19. The High Court found no affixed notice and that a demand was delivered to an occupier, but nonetheless refused certiorari. Archer J.A., for the appellate court, held strict compliance with paragraph 19 is jurisdictional; non-compliance deprived the district court of power to order sale, and certiorari must issue. KOI Larbi J.S.C. and Annan J.A. agreed; the appeal was allowed.
JUDGEMENT OF ARCHER J.A.
This is an appeal from the refusal of the High Court, sitting at Accra, to grant certiorari to quash an order for the sale of a house for non-payment of general rates by virtue of paragraph 20 of Schedule VII to the Local Government Act, 1961 (Act 54).
The history of the case may be summarised in the following chronological order: In April 1965, one G. K. Quami who was the owner of estate house No. B.174/8, Kaneshie, as lessee of the Ghana Housing [p.127] Corporation, assigned his interest to the appellant, Winfried Barton Adio, with the consent of the lessors. At the time of the assignment, G. K. Quami had his name entered in the books or registers of the Accra-Tema City Council as the owner-occupier to whom all demand notices were to be sent. The name of G. K. Quami, notwithstanding the assignment, remained on the register without any rectification. The appellant claimed that in September 1965, he requested the Accra-Tema City Council by letter to enter his name as the new owner-occupier.
In March 1966, the Town Clerk of the Accra-Tema City Council filed a single application in the District Court, Accra for an order to sell a number of houses, including the estate house now in dispute, for non-payment of general rates for the year 1963-64. The application was heard on 4 April 1966 and the order of the court reads as follows: "Motion ex parte for sale is not granted. By virtue of section 20 of Act 54 I am asking the A.-T.C.C. to enter possession of the said premises to recover the respective amounts owing." The effect of the district court's order was to enable the city council to take possession of the estate house in question, let it to tenants, collect rents and use the rents to pay the general rates overdue. This is provided for by paragraph 20 (2) of Schedule VII which reads:
"In a case where an order has been made entitling a Council to take possession of premises the Council may lease the premises and from the income derived from the premises they shall deduct—
(a) all the costs and expenses of and incidental to the taking of possession; and
(b) all the expenses incurred in the management and leasing of the premises, and the residue of the moneys remaining in the hands of the Council derived from the premises shall be applied by the Council in satisfaction of the rate payable. On satisfaction of the rate payable in any manner the Council shall relinquish possession….”
There is no indication that the city council in