WELBOURNE, JA

This appeal is against the judgment of the High Court dated 22^nd June, 2015.

The grounds of appeal as filed by the Defendants/Appellants are as follows:

The judgment given by the learned trial judge is against the weight of evidence.

The court erred when it awarded special damages in the sum of Five Million Ghana cedis (GH¢5,000,000) when no evidence was led to establish same.

In this judgment, the Plaintiff will be described as the Respondent and the Defendants as the Appellants. The facts that culminated in this action are that the Respondent is the freehold owner of the property located on the 37 Military Hospital/Achimota Road, (near Dzorwulu Traffic Lights) which interest was registered by the Lands Registry as No. 258/67.

The Respondent further stated in his statement of claim that after acquiring the property, he went into possession of the land and developed a two-storey residential property with two out-houses thereon. The property is described as comprising of four large bedrooms, a study, a large living room and four conveniences. Each out-house had two rooms and conveniences. The Respondent leased the said property to Nigeria Airways Ltd. in 1984 for a term of Fifty (50) years. It is the case of the Respondent that sometime in November, 2009, he noticed that Nigeria Airways Ltd. had abandoned the property and subsequently his attention was drawn to the demolishing of the property by the Appellants.

According to the Respondent, although he lodged a complaint at the Kotobabi Police Station, the matter was dismissed by the police.

The Respondent averred that the Appellants had committed various breaches of the Lease Agreement as well as violation of statutory provisions which entitle him to re-enter the property hence the instant action.

The Respondent claimed among others the following reliefs:

Declaration of title to all that piece or parcel of land with building thereon situate lying and being at Dzorwulu, Accra and bounded on the north-east by a land measuring 200 feet more or less; on the south-west by an open space measuring 200 feet more or less; on the north-west by another plot measuring 100 feet more or less; and on the south-east by a land measuring 100 feet more or less and all covering an approximate area of 0.46 acres as represented by Deeds Registry No. 258/67 and 3353/82.

Re-enter and possession of the property described in paragraph 1 supra.

Special damages in the sum of Five Million Ghana cedis (Gh¢5,000,000) arising from the unlawful demolishing of the property.

Such other reliefs as the Honourable Court may think just.

The Appellants in their defence, disputed the Respondent’s claim and stated that they acquired their interest in the property the subject matter of this appeal when the Appellants assignor, Nigeria Airways Ltd. then in liquidation, transferred the residue of the unexpired interest, (namely, a term of fifty years from 1984 with an option to review for a further fifty years) in the said property to them. The Appellants insist that since the lease granted by the Respondent to Nigeria Airways Ltd. had not expired, they are the bona fide assignees in title to the property by virtue of a Deed of Assignment dated December, 2009 executed between the liquidator of Nigeria Airways Ltd. represented by Mr. Ade A. Babington – Ashaye on the one hand and the Appellants on the other hand.

It is the Appellants’ case that the Respondent was written to by the liquidator of Nigeria Airways Ltd. in August, 2009 informing the Respondent about the liquidation of Nigeria Airways Ltd. and also of the Assignment of the lease to the Appellants and all other matters relating to it.

The Appellants further contend that from Exhibit A which is the Lease Agreement executed by the

Plaintiff and the then Nigeria Airways Ltd. on the 12^th of May, 1983 (found at page 287 of the Record) that it was the parties’ intention that the Appellants’ Lessor (Nigeria Airways – the Lessee therein) would obtain a hundred-year lease. Considering however that the said Lessees therein was a foreigner and could not obtain an outright hundred year lease, the parties in compliance with Section 46 of the then PNDC 42 (which precluded the creation of a leasehold interest in a foreigner for a term of more than fifty years at a time). Exhibit A also provided per Clause 8 that at the expiration of the term the Respondent “shall have the right of option to renew the Lease for another period of fifty years for a peppercorn rent”. The parties to Exhibit A further agreed at Clause 9 that “the Lessor his heirs, assigns and successors are precluded from asking for any consideration whatsoever in whatever form from the LESSEES and that the purchase price paid shall not be varied notwithstanding any law that may be passed”. The Appellants therefore state that as assignees in title, all these rights that Nigeria Airways Ltd. had in the property were assigned to them.

The Appellants further stated that with the belief that they would be entitled to an automatic renewal of the Lease, they redeveloped the property by the construction of an office complex that is now found on the property. This action of the Appellants finds its basis in Clause 10 of the Deed of Assignment which provides that:

“It is also agreed that the LESSEES shall not be called upon at the determination of LEASE to renovate or do anything whatsoever to the property”

Clause 10 did not require the assignor to keep the property in a tenantable condition; however, it was not prudent to leave the property to deteriorate. Thus, it was the view of the Appellants that they committed ameliorating waste on the property by building a commercial property on it which eventually would reap benefits for the Lessor.

After the trial, the judge found inter alia that:

“ …the Plaintiff described the property that was leased to Nigeria Airways Limited as a residential property, consisting of two storey building with two outhouse.’’ The judge further stated at page 192 of the record citing the case of Thome v Barclays Bank [1976] 2 GLR at page 123 that: “It is not sufficient to show that the house proposed to be built is a better one, and the fact of the Defendant’s showing that the landlord does not know his own interest will not affect the judgment of the court in any respect whatever. The landlord has a right to exercise his own judgment and caprice, whether there shall be any change; and if he objects, the court will not allow a tenant to pull down one house and build another in its place”.

The court hereby grants the Plaintiff special damages of Five Million Ghana cedis (GH¢5,000.00) for the unlawful demolition of his property.’’

We take note from the written submissions of the Appellants that he abandoned his first ground of appeal and chose to argue only the second ground namely:

“The court erred when it awarded special damages in the sum of Five Million Ghana cedis (GH¢5,000,000) when no evidence was led to establish same”.

The first ground of appeal is therefore strucout.

Order 11 Rule 12 (1) (a) of the High Court (Civil Procedure) Rules 2004 (C.I. 47) provides that:

“Subject to sub rule (2) every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including but without prejudice to the generality of the foregoing words,

“Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies”.

We realise from the pleadings that the Respondent stated in paragraph 3 of his Reliefs that he prayed for “Special damages in the sum of Five Million Ghana cedis (GH¢5,000,000) arising from the unlawful demolition of the property”.

A careful reading of the entire record does not disclose any further particulars in respect of or in support of this claim. The authorities are replete in establishing the differences between general and special damages. In the case of Klah v Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 at pages 1152-1153 it was held that “A distinction exist between general damages and special damages; for whereas general damages arise by inference of law and therefore does not need to be proved by evidence; special damages representing a loss which the law will not presume to be the consequence of the Defendant’s act but which depends in part, on the special circumstances, must therefore be claimed on the pleading and particularised to show the nature and extent of damages claimed”.

Likewise the following cases espouse similar views. Ankomah v City Investment Limited [2012] 2SCGLR 1123 at page 1134, Royal Dutch Airlines (KLM) v Farmex [1989-90] 2GLR 623 at 633SC; and Yundong Industries Ltd v Roro Services [2005-2006] SCGLR 816 at 839.

The Supreme Court speaking through Dr. Twum, JSC in Delmas Agency v Food Distribution [2007-2008] 2SCGLR 749 Holding 3 said:

“Special damages are distinct from general damages. General damages are such as the law will presume to be the natural or probable consequence of the Defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.”

The learned author S. Kwami Tetteh in his book ‘Civil Procedure a Practical Approach’ at page 296 commenting on special damages state that, “where the Plaintiff omits to plead special damages, the Defendant may object to evidence in support of special damages at the trial”.

The above cited authorities all agree with the Order 11 rule 12(1)(a) of CI 47 that for the Plaintiff to succeed in the claim for special damages, it must be pleaded and proved with particulars adduced.

Black’s Law Dictionary (Sixth Edition) defines Special damages as “Those which are the actual, but not the necessary result of the injury complained of and which in fact follow it as natural and proximate consequence in the particular case that is by reason of special circumstances or condition. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonable foreseeable. Special damages must be specially pleaded and proved”.

The same dictionary defines Nominal damages as “trifling sum awarded to a Plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the Defendant’s duty, or in cases where, although there has been a real injury, the Plaintiff’s evidence entirely fails to show its amount”.

General damages are also defined as “Such as the law itself implies or presumes to have accrued from the wrong complained of for the reason that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately, and without reference to the special character, condition, or circumstances of the Plaintiff”.

In the recent case of Lizori Ltd. v Boye & School of Domestic Science & Catering [2013-2014] 2SCGLR 889 Holding 5, the learned jurist Benin JSC stated that:

“On the issue of nominal damages to be awarded by the court, counsel for the Defendants respectfully submitted that Ten Thousand Ghana cedis (GH¢10,000) representing the award of about ten per cent of the total contract sum was too huge to be described as nominal. The scope of nominal damages could not be restricted as to how much to award as of certainty; thus the court would not be restricted as to how much to award as nominal damages, but as the name implied, it must not be a huge or substantial award since its main purpose was to vindicate the right of the successful party in the action. At various times in England the award has ranged between £1 and £5”.

The Editorial Note on page 894 threw further light on what constitutes nominal damages as follows:

 “It is crucial to reiterate the basis for an award of nominal damages as endorsed by the Supreme Court (as per holding (5) above: in the words of the Supreme Court per Benin JSC: “At various times in England, the award has ranged between £1 and £5. This is how it is stated in McGregor on Damages (18^th edition), paragraph 10-006: ‘Nevertheless a token sum is awarded, which, after an early period in which the amount could be miniscule, eventually crystallised at the figure of £2, a figure that lasted for a hundred years. For some time at the end of the last century £5 had become common if not the norm, but the new century has seen a reversion to £2 which amount has even been said to be ‘the traditional sum’, while the House of Lords in Grobbelaar v News Group Newspapers Ltd. [2002] I WLR 3024, unaccustomed to having to set a figure for a nominal damages award, has reverted to £1’. But in the case of Douglas v Hello Ltd. [2003] 3 All ER 996; [2004] EMLR 2 each of the two claimants was awarded a token sum of £50, for breach of the Data Protection Act of 1998. The foregoing is merely indicative of the scope of award based on nominal damages. In the words of Charles T McCormick, in his Handbook on the Law of Damages, chapter 20 at page 85, it is ‘merely symboli’”.

In the case of Afare Apeadu Donkor v EDC Stock Brokerage Ltd. & anor [2015] al GML 106 page 120 this court per H/L Sowah JA also had this to say about General damages:

“It is trite that general damages are such as the law will presume to be the natural or probable consequence of the Defendant’s Act. It avers by inference of the law and therefore unlike a claim for special damages need not be proved by evidence. The law implies general damages in every infringement of on absolute right”.

In Bogoso Gold Ltd v Ntrakwa [2011]1 SCGLR 426 “the term ‘special damages’ appears in current usage to refer to past pecuniary loss that is calculable at the date of the trial; while the term ‘general damages’ relates to all other items of damages whether pecuniary or non-pecuniary”.

We agree with the submissions by learned counsel for the Appellant that a thorough reading of the accompanying statement of claim reveals that no further mention is made of the claim for special damages and that the Respondent apart from being silent on the issue of special damages in his pleadings, also failed to lead any evidence to establish same.

In the case of Clipper Leasing Corporation v AG & Ghana Airways (In Liquidation) [2016] 100 G.M.J pages 31-32, on the issue of whether a party who claims to have suffered a quantifiable loss as a result of a breach of a right is required to specifically plead same with particulars or not, H/L Justice Pwamang (JSC) stated as follows:

“The law as we know it is that where a party has suffered a quantifiable loss as a result of a breach of a right he is required to specifically plead it, with particulars. The claim should not only be stated in the endorsement on the writ of summons but the pleadings must contain the particulars as to how such loss came about and the value in money terms of the loss. The purpose is to give sufficient notice to the opponent to prepare to defend the claim. A party may suffer more than one quantifiable loss and in that case he is required to give particulars of each loss and will be required to prove each particulars strictly. All the particulars will give the total sum being claimed as special damages which may be endorsed on the writ of summons”.

The Respondents submitted in answer that during the trial when the Respondent further gave particulars and details of the demolished property, the Appellants did not object or raised any objection to the ‘details’. In his evidence in-chief at page 125 of the record, below is how Plaintiff described the demolished property:

Q. Can you describe the property?

A. My lord, the property was a twin storey building apartment and each storey building apartment had four large bedrooms and each storey building has a living room, a kitchen, a garage, and had two (2) bedrooms with toilet, kitchen and bathroom.

It is the submission of the Respondent that the above discourse represents proof of the subject matter as well the value of the subject matter. We do not agree with him on this point. As far as the record reflects, this cannot amount to proof of special damages.

The learned author S. Kwami Tetteh in his book ‘Civil Procedure a Practical Approach’ at page 296 commenting on special damages said’ ‘where no objection is raised to the admission of evidence in proof of unpleaded special damages or in excess of the special damages pleaded, the court would consider the evidence in awarding damages or in making an award’. Amakom Sawmills & Co. Ltd v Mensah [1963] 1GLR 368, CA and Quargraine v Adams [1981] GLR 599, CA.

Applying the principles governing damages as discussed above to the instant appeal, it is our opinion that the Respondent woefully failed to particularize special damages or offer any values as to the special damages he was claiming. In addition there was no evidence to that effect on the record to warrant the application of the above principles as stated in Amakom Sawmills Co. Ltd. v Mensah (supra).

We also took notice of the ameliorating waste committed by the Appellant in putting up a commercial property on the land. According to BJ da Rocha & CHK Lodoh in their book ‘Ghana Land Law and Conveyancing’ at page 61, ameliorating waste is explained as follows:

“Ameliorating waste is an unauthorized act of a lessee which enhances the value of the land… even an alteration in the character of the land which enhances the value of the land is waste.”

Megarry & Wade in their book ‘The Law of Real Property’ (5^th Edition) at page 96 states that:

“Claims for this type of waste find little favour in the courts unless the whole character of the property has been changed”.

In the English case of Doherty v Allman (1878) 3 App.Cas.709, the court noted that the conversion of a dilapidated store into a dwelling house may be an ameliorating waste.

We are also guided by the statement of Her Ladyship Akoto Bamfo JSC in Klah v Phoenix Insurance (supra) that:

“It is important to stress that the efficient conduct of a case includes the drafting of correct pleadings, the marshalling and adducing of the relevant evidence during the trial and the invocation of the correct principles of law. These are well-known basics. If counsel falls short in any of these areas, it may lead to failure of the action he or she has initiated or, correspondingly, success of an action he or she is defending. In such a situation, it is no use for counsel to turn around and blame the court for allowing technicalities to frustrate its primary and important function of justice. Courts do justice according to law. Accordingly, counsel cannot afford to take their eyes off the details of the law.”

For the reasons as stated succinctly by Her Ladyship, Justice Akoto Bamfo in the case cited above, the Appellant can only be awarded with nominal damages which are entirely within the discretion of the court. We therefore make an award of Ten Thousand Ghana cedis (GH¢10,000).

We hereby set aside the award of Five Million Ghana cedis (Gh¢5,000,000) made by the trial judge.

The appeal therefore succeeds in part.

Cost of Five Thousand Ghana cedis (GH¢5,000) awarded to the Defendants/Appellants.