REGIMANUEL GRAY LIMITED VRS. TEMA WEST MUNICIPAL ASSEMBLY (LC/53/2019) [2024] GHAHC 172 (18 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON THURSDAY THE 18TH OF JULY 2024. SUIT NO: LC/53/2019 REGIMANUEL GRAY LIMITED PLOT NO. DEV/276 COMMUNITY 14 PLAINTIFF TEMA & LA BYPASS, LA, ACCRA VRS TEMA WEST MUNICIPAL ASSEMBLY COMMUNITY 18 DEFENDANT TEMA (PLAINTIFF SHALL DIRECT SERVICE) ________________________________________________________________ PARTIES ABSENT ________________________________________________________________ JUDGMENT 1. INTRODUCTION [i] The Plaintiff herein instituted this action against the Defendant for the following reliefs: JUDGMENT – REGIMANUEL GRAY vrs TMA 1 i. A declaration that the Defendant by refusing to notify Plaintiff of either its approval or rejection of Plaintiff’s application for building permit to develop plot no. DEV/276, Community 14, Tema, three months after its submission, the said application is deemed to have been approved by the Defendant. ii. An order of injunction restraining the Defendant, its assigns, agents, privies and/or workmen/servants from demolishing or causing any demolition of any development structure that may be constructed on plot no. DEV/276, Community 14, Tema, by the Plaintiff. iii. Any further order(s) as this Honourable Court may deem equitable. 2. FACTS OF THE PLAINTIFF’S CASE [ii] In its statement of claim and which was subsequently amended, the Plaintiff averred that it acquired a leasehold interest in some 15.72 acres of land from TDC Development Company Limited on or about the 28th of May 1992 and these plots have been described as DEV/276, Community 14, Tema. Per the Plaintiff, the plots of land have been registered in the Deeds Registry of the Lands Commission of Ghana as No. 854/1992 in favour of the Plaintiff herein. [iii] According to the Plaintiff, it subsequently went into effective possession of same by placing its caretakers on the land to ward off prospective encroachers and/or trespassers and also commenced the development of what is known as the second phase of the Plaintiff’s Community 14 residential estates. Sometime later, the Plaintiff decided to commence the construction of a fence wall around the remaining plots of land following attempts by trespassers to encroach on those remaining plots of the land. The Plaintiff therefore submitted its JUDGMENT – REGIMANUEL GRAY vrs TMA 2 drawings to both TDC and the Defendant for approval. In addition, the Plaintiff stated it applied and paid for a building permit from the Defendant herein. The Plaintiff further contended that on the 4th of July 2018, after submitting its building drawings to the Defendant for approval, the Defendant requested that the Plaintiff seeks a “No Objection Recommendation and Approval Notice” from TDC before its permit could be processed. The Plaintiff was thus advised by the Defendant to purchase new building permit application forms and re- submit same together with the TDC “No Objection Recommendation and Approval Notice”. The Plaintiff was said to have complied and it did purchase the building permit application forms and submitted same to TDC for approval on the 18th August 2018. [iv] On the 22nd August 2018, TDC was said to have prepared its “No Objection” recommendations and submitted same to the Sub-Technical Committee of the Defendant for further processing of the Plaintiff’s application. For inexplicable reasons, however, the Defendant has failed and/or neglected to apprise the Plaintiff of the outcome of the said application although Plaintiff has complied with all the statutory and administrative requirements imposed on applicants who apply for building permits within the Tema acquisition area, where the Plaintiff’s plots of land, as described above, are said to be located. [v] On account of the delay and the lack of communication to the Plaintiff, the Plaintiff averred that three months after the submission of the forms, it commenced the construction of a fence wall around its property but the fence wall was demolished by the Defendant on the orders of its Municipal Chief Executive (MCE). JUDGMENT – REGIMANUEL GRAY vrs TMA 3 The Plaintiff thus conducted enquiries at the Defendant’s office and same was said to have revealed that the Sub-Committee had approved the Plaintiff’s application and yet the Defendant had still not issued the Plaintiff with the requisite building permit. [vi] The Plaintiff continued to state that further investigations revealed that the MCE of the Defendant, under the pretext of public interest, had issued instructions to the Defendant to hold on with the further processing of the Plaintiff’s application; and this conduct, the Plaintiff stated was arbitrary, capricious and unconstitutional. Additionally, in so far as it has been more than three months since the application for the building permit was submitted to the Defendant and the Defendant has failed to notify Plaintiff on whether the application has been approved or refused, the Plaintiff is entitled to commence building and/or development on the land on the basis that the application has been approved. [vii] It is on the basis of the above depositions that the Plaintiff prayed for the reliefs endorsed on the writ of summons and as spelt out above. 3. STATEMENT OF DEFENCE JUDGMENT – REGIMANUEL GRAY vrs TMA 4 [viii] In its defence, the Defendant contended that the plots of land in dispute, purportedly acquired by the Plaintiff herein, were in an area beyond a storm drain and also constituted a road reservation which the Defendant could develop for the common good and use of all persons under the Defendant’s jurisdiction. The Defendant further contended that as the highest administrative and planning authority in the Municipality, it was mandated to convert land into good use and was further mandated to issue ‘Building Approval Permits’ to individuals and institutions, but in the case of the Plaintiff, no such permit had been issued because the Spatial Planning Committee of the Defendant, chaired by the Honourable Municipal Chief Executive, had never received any completed Municipal Assembly application form(s) nor any drawings from Plaintiff. [ix] The Defendant added that the submission of any drawings or a ‘No Objection’ recommendation or any other document to the Works Department of the Defendant, even if the Plaintiff’s claim was true, did not constitute an approval from the Defendant or the Spatial Planning Committee for a permit. The Defendant thus denied receiving a “No Objection” recommendation report in respect of the Plaintiff, stating further that even if the Sub-Technical Committee of the Defendant had received the “No Objection” report referred to by the Plaintiff, no recommendation pertaining to the Plaintiff had been made to the final Planning Authority of the Defendant or its Spatial Planning Committee. [x] The Defendant was also mandated, at all material times, to perform its duties in accordance with the law and against recalcitrant persons and it therefore JUDGMENT – REGIMANUEL GRAY vrs TMA 5 cannot waive the consequences of a breach of statutory laws of the Defendant, the status of the offending party notwithstanding. It is in that regard that the Defendant insisted that it had never done any unlawful act against the Plaintiff since the Spatial Planning Committee of the Defendant had not seen or received any application from the Plaintiff; but that it only removed all the illegal structures in the area within the confines of law. [xi] Even before engaging in the said demolition works, the Defendant stated it posted “STOP WORK” signs on the blocks packed on the land; and subsequently demolished an illegal structure that was offensive to public policy and the laws regulating the management of the city. Further, the demolition the Plaintiff complained of was of the foundation of a wall and not a fence wall. Among others, the Defendant concluded that the Plaintiff was not entitled to any of the reliefs indorsed on the Writ of Summons. The Defendant instead counterclaimed for the following: 4. COUNTERCLAIMS OF THE DEFENDANT a. A declaration that the act of the said demolition was lawful. b. An order directed at the Plaintiff, its assigns, agents, privies and all persons claiming title through him howsoever described not to put any building on the said land again until the Plaintiff has done the needful by applying as outlined by law. c. Costs including legal fees. 5. REPLY AND DEFENCE TO COUNTERCLAIM JUDGMENT – REGIMANUEL GRAY vrs TMA 6 [xii] The Plaintiff filed a Reply and a defence to the counterclaim, joining issues generally with the Defendant but vehemently denying the material averments of the Defendant. The Plaintiff reiterated that it indeed submitted application forms and drawings for permits for two separate projects to the Municipal Works Engineer of the Defendant, but it was the permit for only one of the projects that was issued by the Defendant. The Plaintiff proceeded to restate the procedures it went through in applying for the permit and further stated that the Defendant cannot deny receiving an application form from the Plaintiff. [xiii] Even in response to a petition submitted against the Defendant, the Defendant was said to have stated therein that it suspended the processing of the Plaintiff’s application because it received a petition from the residents in the area. Among others, the Plaintiff reiterated that it was entitled to its claims and that the counterclaims of the Defendant rather ought to be dismissed. 6. APPLICATION FOR DIRECTIONS [xiv] Pleadings then came to a close and the following issues were set down at the Application for Directions stage: i. Whether or not Plaintiff has a leasehold interest in a 15.72 acre of land described as DEV/276, Community 14, Tema. ii. Whether or not the parcel of land in issue constitutes a road reservation. iii. Whether or not Plaintiff submitted a duly completed form applying for a building permit, building drawing and other requisite document(s) to Defendant in August 2018. JUDGMENT – REGIMANUEL GRAY vrs TMA 7 iv. Whether or not Plaintiff’s grantor, TDC Development Company Limited (TDC) submitted No Objection recommendation to the Sub- Technical Committee of Defendant for further processing of Plaintiff’s application before Defendant. v. Whether Plaintiff is entitled to the reliefs endorsed on its writ. vi. Any other issues(s) arising from the pleadings. [xv] The following additional issues were also filed by the Defendant: 7. ADDITIONAL ISSUES 1. Whether or not the Defendant can issue a permit for physical development with conditions or without conditions. 2. Whether or not the Defendant has the mandate to issue permits for all structures before any building could be constructed under its superintending authority. 3. Whether or not the Defendant could effect or carry out an instant prohibition, abatement, alteration, removal or demolition of any unauthorized development. 4. Whether or not the Defendant can demolish any illegal structure(s) that encroaches or will encroach on a community right of space and security or that that interfered or may interfere with the use of the space. JUDGMENT – REGIMANUEL GRAY vrs TMA 8 5. Whether or not the Defendant can prohibit the use of any land or building for a purpose or in a manner that is contrary to an approved District Development Plan or for disaster prevention. 6. Whether or not in issuing the permit or otherwise, the Defendant observed the rules and regulations governing same. 7. Whether or not the Sub-Technical Committee of the Defendant, which visited the parcel in dispute, make any recommendation to the Spatial Planning Committee for approval of the application. 8. Whether or not the parcel of land in question has been zoned as a reservation in the Plaintiff’s own development scheme or that of TDC. 9. Any other issue that emanates from the pleadings of the parties. The parties were ordered to file their respective witness statements and they did. 8. WITNESS STATEMENT OF THE PLAINTIFF [xvi] The Plaintiff’s representative, who for ease of reference will be referred to as PW1, testified for and on behalf of the Plaintiff. PW1 stated he was the head of Legal and Administration of the Plaintiff. He then proceeded to testify and tender in evidence a copy of the lease obtained by the Plaintiff from TDC as Exhibit A (marked as RGL 1). PW1 added that the lease had been registered at the Deeds Registry of the Lands Commission as No. 854/1992. JUDGMENT – REGIMANUEL GRAY vrs TMA 9 [xvii] PW1 further confirmed that the Plaintiff, after going into effective possession of the land, commenced the development of phase II of its building project and even gave out some acres of the plot for community development and for the construction of a community library, police station, a park, local pub etc; all for the benefit of the residents in the area. PW1 continued to state that in spite of the above, encroachers and miscreants continued to trespass on the remaining portions of the Plaintiff’s land and so the Plaintiff was advised to fence the remaining plot of land; and that was why the Plaintiff applied to the Defendant for the building permit. [xviii] PW1 continued to narrate the processes the Plaintiff had to go through to obtain the permit; adding that since it applied to the Defendant in 2018, the Defendant has not communicated to the Plaintiff its approval or otherwise of the building permit applied for. Coincidentally, however, a second application later made by the Plaintiff to the Defendant for the construction of a school at Community 18 has been processed expeditiously by the Defendant; but this application for a building permit for the construction of a fence wall has not been processed by the Defendant. [xix] PW1, among others, concluded that for inexplicable reasons, the Defendant has failed and/or neglected to apprise the Plaintiff of the outcome of the said application since July 2018 although Plaintiff has complied with all the statutory and administrative requirements imposed on it for a building permit. The Plaintiff therefore prayed for the reliefs prayed for. JUDGMENT – REGIMANUEL GRAY vrs TMA 10 After the testimony of PW1, the Plaintiff closed its case and called no other witness. 9. WITNESS STATEMENT OF THE DEFENDANT [xx] The head of Works of the Defendant also testified for and on behalf of the Defendant as DW1, and in line with the statement of defence, DW1 reiterated that the records of the Defendant showed that the Plaintiff had not received any permit from the Defendant to construct any permanent structure on the Community 14 plots of land. When the Plaintiff commenced the construction on the land therefore, the Defendant stated that it put ‘Stop work’ notices on the Plaintiff’s plot but the Plaintiff ignored the notices; and that was why the Defendant was compelled to demolish the Plaintiff’s structures. [xxi] Contrary to the statement of defence however, DW1 admitted that TDC processed the Plaintiff’s application and gave a ‘No Objection’ report to the proposed fence wall of the Plaintiff in conformity with TDC’s development planning scheme. TDC then referred the Plaintiff to the Defendant for the permit to construct the fence wall. JUDGMENT – REGIMANUEL GRAY vrs TMA 11 The Defendant thus received the Plaintiff’s application and referred same to the Physical Planning Department of the Defendant (working as the Spatial Planning Committee) and added that the Spatial Planning Committee, after its meeting did not recommend the Plaintiff’s application for approval. [xxii] That was because after the sub-technical committee’s visit to the Plaintiff’s site, it was discovered that the land was a reservation and there was also a huge storm drain on the land per the Plaintiff’s own planned scheme submitted to the Defendant. The Residents’ Association in the area had also petitioned the Defendant, that the land in issue included an open space to be used by the residents in case of environmental hazards and that same space was reserved as children’s playground. Thus, the Plaintiff’s development would be a huge risk to the residents. The Plaintiff is not entitled to the reliefs sought, especially when the Defendant was acting pursuant to its mandate under law. Among others, the Defendant’s counterclaims should be granted by the Court. The Defendant also called no other witness and closed it case after DW1 had been cross-examined. The trial then came to a close. 10. THE LAW ON THE INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES [xxiii] In the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court per Adinyira JSC held, in expounding on the burden of proof in civil matters held as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” JUDGMENT – REGIMANUEL GRAY vrs TMA 12 Also, in the case of Ackah v Pergah Transport Limited [2010] SCGLR 728 the Supreme Court again held that It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. [xxiv] In the case of Khoury v. Richter 1958, High Court, Accra, unreported, cited in Majolagbe v. Larbi [1959] G.L.R. 191 at p. 192. Ollenu J (as he then was) held: "Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true." 11. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL [xxv] From the trial, it is not in doubt that the Plaintiff herein has acquired all that piece or parcel of land which the Plaintiff described as No. DEV/276 Community 14, Tema. PW1 tendered in evidence Exhibits A and B (which had been marked Exhibits RGL 1 and 2) without any objection from the Defendant to demonstrate that the Plaintiff had lawfully acquired those plots of land. [xxvi] In its defence, the Defendant averred that it was not in a position to admit or deny that the Plaintiff had acquired all that plot of land; and even denied at JUDGMENT – REGIMANUEL GRAY vrs TMA 13 some stage, the said acquisition; but I find that no shred of evidence whatsoever was adduced by the Defendant to discredit the documentary evidence adduced by the Plaintiff in proof of its acquisition. In that regard, I am satisfied, on a balance of probabilities that the Plaintiff has indeed lawfully acquired the plots of land in contention. [xxvii] There is also no doubt that the Plaintiff applied to the Defendant for building permits after the Plaintiff had applied to TDC for a ‘No objection” order to enable the Plaintiff apply for the permit(s) from the Defendant. That is the permit(s) in contention and being complained of; and the Plaintiff states that from 2018 till date, when the application was made, the permit has still not been granted. It is the Defendant who is supposed to grant that permit and even though the Defendant had not yet granted the permit, it proceeded to demolish the fence wall of the Plaintiff that was constructed on a portion of the Plaintiff’s land. At paragraphs 6 to 10 of the witness statement of DW1, he testified that the Defendant indeed demolished the Plaintiff’s structures after warnings to desist from the construction were allegedly ignored. From the said paragraphs of DW1’s witness statement, it appears to state that the demolition was done before the Plaintiff applied for the permits with the Defendant; but the evidence of PW1 seems to suggest otherwise. Nonetheless, I shall now proceed to deal with the legal issues set down as follows: 12. ISSUES I & II AND ADDITIONAL ISSUE 8 JUDGMENT – REGIMANUEL GRAY vrs TMA 14 - Whether or not Plaintiff has a leasehold interest in a 15.72 acre of land described as DEV/276, Community 14, Tema. - Whether or not the parcel of land in issue constitutes a road reservation. - Whether or not the parcel of land in question has been zoned as a reservation in the Plaintiff’s own development scheme or that of TDC. [xxviii] This Court already established above that the Plaintiff had lawfully acquired a leasehold hold interest in the land in dispute and Exhibit A, the TDC document dated the 28th May 1992 clearly describes the land in question as having an area of 15.72 acres. No evidence was adduced by the Defendant to establish otherwise and so I find as a matter of fact that the land leased to the Plaintiff is indeed 15.72 acres of land. The Plaintiff further denies that there is a road reservation on any portion of the land; but the Defendant asserts that there is. In the case of Deliman Oil Company Ltd v HFC Bank Ghana Ltd [2016] 92 GMJ at page 4, it was held thus: The very well-known rule of evidence is that proof lies upon him who affirms or alleges, and not upon him who denies, since, by the nature of things, he who denies a fact cannot produce any proof. (Emphasis is mine) [xxiv] The burden thus shifted unto the Defendant to establish that a portion of the Plaintiff’s land is a road reservation, but I find that no evidence was adduced by the Defendant to establish there is a reservation anywhere on the Plaintiff’s land. Under cross-examination, the Defendant’s Counsel posed the following questions to the Plaintiff’s representative: JUDGMENT – REGIMANUEL GRAY vrs TMA 15 Q: The location of the construction is a reservation. A: That is not correct. Q: How many of these areas do you have in your planning scheme? A: It is not a demarcated area per say (sic) however at most construction side (sic) some parcels are left after development of some houses to be used for commercial developments. One of such is a police station. Q: How many of such parcels do you have in your planning scheme? A: With the parcel in dispute there is one long stretch measuring about 3 acres. Q: I put it to you that the parcel in dispute is not for commercial or social use. A: That is not correct. Q: The parcel of land also was reserved to protect the environment and pre-existing trees, is that not so? A: That is not correct. Counsel for the Defendant again posed the following question under further cross-examination: JUDGMENT – REGIMANUEL GRAY vrs TMA 16 Q: At the last adjourned date you disagreed with me vehemently that the space you are talking about is not a reservation, is that not so? A: I indicated that the space in reference was left after development for social and commercial purposes. [xxv] Having consistently denied that there was a reservation anywhere on the Plaintiff’s plot, the Defendant assumed the burden of establishing same; but all throughout the trial, there was no pictorial evidence or otherwise; for instance, the lay out of the land etc adduced by the Defendant to show to the Court where the so-called reservation was on the Plaintiff’s plot. Indeed, there was also no evidence whatsoever adduced by the Defendant to establish that any portion of the Plaintiff’s plot was indeed a road reservation. [xxvi] What the Defendant, per DW1, tendered in evidence was Exhibit 1 series (marked Exhibit TWRG 1 series), said to be a plan of the area from TDC and the Plaintiff’s proposed fence wall; and all these documents, I find, were documents the Plaintiff had submitted to the Defendant during the application for the permit. (See paragraph 11 of DW1’s witness statement). From Exhibit 1 series, the plots have been clearly demarcated, the roads clearly identified and there is no mention of any reservation. I therefore hold that there is no iota of evidence to even remotely suggest that any portion of the land assigned to the Plaintiff by TDC is a reservation or a road reservation for that matter, even in TDC’s own plan tendered in evidence by the Defendant. [xxvii] Additionally, even though the Plaintiff’s representative admitted under cross- examination that there was indeed a storm drain on the land, once again, I find that there was no evidence adduced by the Defendant to establish that the Plaintiff, by its development, was obstructing the said storm drain and/or that JUDGMENT – REGIMANUEL GRAY vrs TMA 17 any development undertaken on the disputed portion of the Plaintiff’s plots would adversely affect the residents in the area. Indeed, DW1 added that the residents had petitioned the Defendant over a portion of the Plaintiff’s plots that is a road reservation and another portion that was an open space for the residents; but once again, no iota of evidence was adduced by the Defendant to establish its claims. Moreover, the TDC has lawfully sold the plots of land to the Plaintiff; and so I am unsure how the Plaintiff’s development would affect the community or the alleged reservation. [xxviii] Again, I find that the Defendant’s own Exhibit 2 series (marked Exhibit TWRG 2 series), Appendix A at page 7 clearly stated “- Undeveloped - Site is open space - Seems to be road reservation (but according to TDC, it is not.)” (Emphasis is mine) If the grantors of the land state it is not a reservation, wherein lies the Defendant’s proof of a road reservation then, from the above? Even if there was a road reservation, the land had been sold to the Plaintiff in 1992, and so the Defendant has to engage TDC and the Plaintiff if there is the need to have a road in the area, apart from the ones indicated on the Defendant’s Exhibits. I am therefore unsure if the Plaintiff’s development would affect the entire community as the Defendant alleged; and this uncertainty must inure to the benefit of the Plaintiff herein. JUDGMENT – REGIMANUEL GRAY vrs TMA 18 I will proceed to deal with the following set of issues: 14. ISSUES III & IV - Whether or not Plaintiff submitted a duly completed form applying for a building permit, building drawing and other requisite document(s) to Defendant in August 2018. - Whether or not Plaintiff’s grantor, TDC Development Company Limited (TDC) submitted No Objection recommendation to the Sub-Technical Committee of Defendant for further processing of Plaintiff’s application before Defendant. [xxix] There is no need belabouring the above because DW1 admitted the Plaintiff submitted application forms but they were not approved. DW1 gave the answers below under cross-examination: Q: The application by the Plaintiff was part of the 20 applications? A: Yes, My Lord. But it was not recommended for approval, My Lord. Q: What you are saying is that you did not recommend the Plaintiff’s application to the Spatial Planning Committee for approval? A: Yes, My Lord. JUDGMENT – REGIMANUEL GRAY vrs TMA 19 Q: So that only seven applications out of the 20 were not recommended for approval? A: Yes, My Lord. [xxx] It is also obvious that TDC submitted its “no Objection” report to the Defendant and paragraph 12 of DW1’s witness statement expressly admitted same as follows: 12. That TDC processed the Plaintiff’s application and gave “No Objection” to the proposed Fence Wall in conformity to TDC’s Development Planning Scheme. However, TDC referred the Plaintiff to the Defendant/ Assembly to permit to construct. (sic) [xxxi] TDC therefore, having given the “No Objection” report on the same fence wall, I again find that the Defendant ought to adduce sufficient evidence to establish that the Plaintiff was not entitled to the grant of the permit, but once again, no reasonable explanation and/or justification was adduced by the Defendant for the refusal of the permit. Therefore, wherein lies the justification of the Defendant in refusing the Plaintiff’s permit to only construct the said fence wall? The testimony of DW1, the minutes of the Committee meetings tendered in evidence unfortunately do not disclose any reasonable justification for the refusal of the Plaintiff’s permit, having carefully considered the totality of the evidence adduced before this Court. I will proceed to deal with the following set of issues together: JUDGMENT – REGIMANUEL GRAY vrs TMA 20 15. ADDITIONAL ISSUES 1 TO 7 - Whether or not the Defendant can issue a permit for physical development with conditions or without conditions. - Whether or not the Defendant has the mandate to issue permits for all structures before any building could be constructed under its superintending authority. - Whether or not the Defendant could effect or carry out an instant prohibition, abatement, alteration, removal or demolition of any unauthorized development. - Whether or not the Defendant can demolish any illegal structure(s) that encroaches or will encroach on a community right of space and security or that that interfered or may interfere with the use of the space. - Whether or not the Defendant can prohibit the use of any land or building for a purpose or in a manner that is contrary to an approved District Development Plan or for disaster prevention. - Whether or not in issuing the permit or otherwise, the Defendant observed the rules and regulations governing same. - Whether or not the Sub-Technical Committee of the Defendant, which visited the parcel in dispute, make any recommendation to the Spatial Planning Committee for approval of the application. JUDGMENT – REGIMANUEL GRAY vrs TMA 21 [xxxii] The above issues are not triable issues and they ought not to have been set down for the trail because it is obvious to me that the above constitute the mandate granted to the Defendant by law. There is therefore no doubt whatsoever in my mind, that the Defendant has to observe its own rules and regulations in issuing permits and the above issues are not worth discussing. I will conclude by discussing the following issues: 16. CONCLUSION - Whether Plaintiff is entitled to the reliefs endorsed on its writ. - Any other issues(s) arising from the pleadings. - Any other issue that emanates from the pleadings of the parties [xxxiii] In discussing the above, for the avoidance of doubt and based on the evidence adduced before this Court, hinging on the refusal or otherwise of the permit sought by the Plaintiff herein, I find that no report or proof was furnished by the Defendant to this Court to demonstrate or even suggest that the Spatial Committee of the Defendant or any sub-committee, for that matter, did visit the site for inspection and made recommendations for the refusal of the Plaintiff’s permits. No petition(s) from the residents were disclosed and without sufficient evidence, this Court cannot rely on some petitions, whether spurious or genuine to make a determination that the Plaintiff is not deserving of the requisite permit. Also, from the lack of reasonable justification before this JUDGMENT – REGIMANUEL GRAY vrs TMA 22 Court, I am minded to believe the Plaintiff’s assertions, that the refusal of the permit may be based on someone’s capricious and arbitrary orders. [xxxiv] I also have no proof whatsoever, even from the Plaintiff’s own evidence that the area has been zoned as a reservation. Why then would TDC sell the land off if it is a reservation? And the Defendant itself confirmed TDC stated it was not a reservation. In the absence of any valid justification therefore for the refusal, I find that the Plaintiff’s application has to be properly evaluated and approved and the permits granted. The Plaintiff is therefore, indeed, entitled to some reliefs from this Court. [xxxv] In arriving at the reliefs to be granted to the Plaintiff herein, I would finally rely on the NATIONAL BUILDING REGULATIONS 1996, (LI 1630), Regulation 8 — Failure of District Planning Authority to Process Application, which provides thus: (1) Where a person submits an application for a building permit, the District Planning Authority shall notify him within 7 days of the receipt of the application and shall within a period of 3 months thereafter notify the applicant whether the application is granted or refused. (2) An applicant not informed of the grant or refusal of the application may after the expiry of the 3 months commence development on the basis that the application is acceptable to the District Planning Authority. JUDGMENT – REGIMANUEL GRAY vrs TMA 23 The law is clear, with no ambiguity and there is again no doubt in my mind that the Plaintiff herein is entitled to the reliefs sought. [xxxvi] For the foregoing reasons, judgment be and is hereby entered in favour of the Plaintiff for all the reliefs endorsed on the writ of summons as follows: i. A declaration that the Defendant by refusing to notify Plaintiff of either its approval or rejection of Plaintiff’s application for building permit to develop plot no. DEV/276, Community 14, three months after its submission, the said application is deemed to have been approved by the Defendant. ii. This Court shall further grant an order of injunction restraining the Defendant, its assigns, agents, privies and/or workmen/servants from demolishing or causing any further demolition of any development structure that may be constructed on plot no. DEV/276, Community 14, Tema, by the Plaintiff. iii. The Defendant herein, be and is hereby ordered to issue a formal permit(s) for the Plaintiff in the absence of reasonable justification for the refusal to issue the permit. This Court shall further mulct the Defendant in costs of Gh¢30,000.00 in favour of the Plaintiff herein. JUDGMENT – REGIMANUEL GRAY vrs TMA 24 SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 18TH JULY 2024. COUNSEL: PETRINA DEFIA WITH MILLICENT DEDO OSSOM FOR THE PLAINTIFF, HOLDING O. K. OSAFO BUABENG’S BRIEF COUNSEL FOR THE DEFENDANT, PATRICE CAESAR SOWAH ESQ. ABSENT JUDGMENT – REGIMANUEL GRAY vrs TMA 25