ACQUAYE, J A:

This appeal is against the award of damages by the Tema High Court on 9^th July 2014 against the defendant/appellant for unlawfully pulling down the plaintiff’s building.

It all began when the plaintiff/respondent issued a writ of summons on 20^th June 2013 claiming against the defendant/appellant special damages for the full value of the plaintiffs building demolished by the defendant, punitive and aggravated damages for same and perpetual injunction restraining the defendant and her agents from interfering with the land in dispute. The plaintiff’s case was that he acquired a parcel of land at Baatsona, Spintex Road, Accra with Land Title Certificate No. TD 6792. He put up a building with a fence wall on the land but on 13^th June 2013 workers and officials of the defendant entered his property and punched a wide hole in the plaintiff’s fence wall. The following day officials and workers of the defendant again came to the premises with a pay-loader machine and demolished the plaintiffs three bedroom house with a double garage and security room. The plaintiff complained that this demolition took place after he had sued the defendant and the Inspector General of Police for an earlier demolition of the same property and whilst that suit was still pending. The defendant answered the plaintiff’s claims by testifying that the plaintiff built his house on land earmarked for a road and without a building permit. The plaintiff countered the defence by testifying that after the first demolition the defendant made him pay a penalty for not obtaining a permit and gave him a pin code to enable him continue putting up the building. According to the plaintiff a geodetic engineering report by the defendant’s own employee showed that the plot conforms with the area planning scheme and that it did not fall within a road.

The trial judge found for the plaintiff and together with the fact that the defendant never issued any notice of her intention to demolish the property of the plaintiff, awarded special damages of GH¢74,906.80 according to the bill of quantities tendered by the plaintiff. The trial judge also noted that even though the plaintiff “had sued the defendant and the matter was still subjudice, defendant out of spite, ill-will and malice went unto plaintiff’s property and demolished same with contumacious disregard of the said action in a court of law” and awarded punitive or aggravated damages of Gh¢500,000 together with costs of Gh¢25,000.00 against the defendant.

Dissatisfied with the judgment the defendant appealed listing the following grounds of appeal:

The judgment was against the weight of evidence adduced before the learned trial judge.

The learned trial judge erred in law in holding that exhibit C constitutes unassailable representation to the plaintiff to continue with the construction of his property.

The learned trial judge erred in holding that the defendant is estopped from maintaining that the plaintiff built in a road reservation and he was to stop the construction.

The learned trial judge erred in law in holding that the defendant is condemned for its action of demolition for not showing that they complied with Section 52 of Act 462.

The learned trial judge erred in law in awarding damages of Gh¢74,906.80 to the plaintiff.

The learned trial judge erred in awarding exemplary or punitive damages of Gh¢500,000 as same is excessive.

The learned trial judge erred in awarding costs of Gh¢25,000.00 as same is excessive.

Defendant will file additional grounds upon receipt of the record of proceedings.

In his submissions Counsel for the defendant/appellant abandoned ground 8 and argued the first four grounds of appeal together. Counsel for the defendant/appellant questioned the trial judge’s reliance on exhibit C, the geodetic engineer’s report, to hold that the defendant was estopped from contending that the plaintiff’s building fell in a road because the Metropolitan Engineer testified that he did not receive a copy of the geodetic report exhibit C. Counsel submitted that the defendant has a statutory duty and authority to control development which cannot be fettered by the court. Counsel compared the site plans in exhibits C and A and submitted that as the plot in both plans had shifted on the ground, so had all the roads on the land also shifted and the trial judge cannot rely on the contents of exhibit C to hold that the plaintiffs site plan conforms to the original planning scheme. Counsel for the defendant/appellant referred to Sections 49(I) and 64(1) of the Local Government Act, 1993 (Act 362) which states that “A person shall before constructing a building or any other structure obtain a building permit from the District Planning Authority which shall contain the necessary condition” and submitted that the penalty and pin code imposed on the plaintiff related to the five bedroom house built by the plaintiff and not the three bedroom house and the fence wall built on the same plot of land.

On the award of GH¢74,906.80 as special damages Counsel for the defendant/appellant submitted that the sum claimed was neither set out in the statement of claim nor particularized, neither was a single receipt tendered to prove same. Counsel submitted that the valuation report of the estimates exhibit G tendered by the plaintiff was prepared after the demolition and not one worker testified as to the costs. Counsel cited the case of Klah vrs Phoenix Insurance Company (2012)2 SCGLR 1139 which emphasized that special damages must be claimed in the pleadings and particularized to show the nature and extent of the damage claimed and submitted that the plaintiff failed to discharge the burden of proof placed on him.

On the sixth ground of appeal concerning the exemplary or punitive damages, Counsel for the defendant/appellant drew our attention to the fact that the plaintiff had been penalized for constructing a house without a building permit, had his fence wall demolished repeatedly for building in a roadway and submitted that a huge amount of Gh¢500,000 should not be ordered to be paid to him out of public funds. On the costs of Gh¢25,000.00 Counsel submitted that the trial lasted less than 10 months so the award was excessive. Counsel concluded that the entire judgment of the trial court be set aside.

Answering the above submissions, Counsel for the plaintiff/respondent supported the trial judges holding that exhibit C authored by the defendant’s own theodetic engineer found that the plaintiff’s building was not on any road and asked the plaintiff to continue to build. Counsel referred to the defendant’s representative’s evidence under cross-examination that there has not been any re-demarcation of the area and submitted that the defendant’s evidence supported that of the plaintiff that he did not build on a road. Counsel for the plaintiff respondent also submitted that even if the plaintiff was building on a road, which he denied, the demolition of the building was ultra vires because the

defendant did not serve any written notice of his intention to demolish in flagrant breach of Section 52(a) and (b) of the Local Government Act 462 of 1993. Counsel further submitted that Article 19 of the 1992 Constitution required a person to be heard before a sanction is imposed on him. What is more serious and makes the defendant’s action wrongful, according to Counsel for the plaintiff/respondent is when the defendant proceeded to demolish plaintiff’s property whilst the plaintiff had filed an action against the defendant together with others seeking reliefs inclusive of an order restraining the defendants from interfering in any manner with the plaintiffs development of the land.

On the award of the special damages, Counsel submitted that it was supported by exhibit G being the estimates for the cost of reconstruction, which the defendant did not discredit under cross-examination. Counsel quoted the reasons advanced by the trial judge for awarding the punitive and exemplary damages and submitted that the award is sound in law and should not be disturbed. Counsel for the plaintiff/respondent concluded his submissions by stating that costs is at the discretion of the judge and the defendant/appellant has not given any justification why the award of Gh¢25,000 should be set aside.

On the trial judges reliance on the geodetic engineers report exhibit C, the fact that the defendant’s representative the Metropolitan Engineer testified that he did not receive the geodetic report does not mean that the survey was not conducted and a report issued thereon. The witness, the Metropolitan Engineer admitted that Vincent Yeboah who signed the report exhibit C was at the time the geodetic engineer employed by the defendant. The exhibit was addressed to the Metropolitan Engineer and copied to the plaintiff. The authenticity of the report was not challenged by the defendant neither did the defendant lead any documentary evidence to contradict its contents. Moreover, it was included in the documents the plaintiff listed to be tendered at the trial and yet no objection was raised on behalf of the defendant before or at the trial. Once a document had been admitted into evidence without objection a trial judge is bound to consider it in his judgment and if possible give effect to it.

The Supreme Court in the case of Edward Nasser & Co. Ltd vrs McVroom (1996-97) SCGLR 468 in considering the same issue unanimously held that “If a party failed to object to the admission of evidence which in his view ought not be led, he would be precluded to complain on appeal or review about the admission of that evidence unless the admission had occasioned a substantial miscarriage of justice. Consequently where evidence in respect of an unpleaded fact had been led without objection, the trial court was bound to consider that evidence in the overall assessment of the merits of the case, unless that evidence was inadmissible per see”.

See also Atta vrs Adu (1987-88)1 GLR 233 at 238 and In Re Okine (Deceased) Dodoo vrs Okine (2003- 2004) SCGLR 582 at pages 611 to 613.

The report exhibit C stated that the “Assembly based on complain, ordered check on existing road created on the ground” and that “the structure and fence wall were marked and subsequently surveyed.” The report observed that “the general development layout of the area conforms with the Area Planning Scheme” and that “the existing road should not be allowed to run through the complainant’s property”. In the light of the foregoing the trial judges reliance on the contents of the geodetic report authored by the defendant’s own employee cannot be questioned and Counsel for the defendant/appellant’s submission that the trial judge wrongly over relied on exhibit C to find for the plaintiff is hereby rejected. It must also be pointed out that by Section 11 of the Evidence Decree NRCD 323 of 1975 the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. Save saying that the physical development of the area led to a shift of the planning scheme no evidence was led such as the tendering of a changed planning scheme to prove a change or shift of the planning scheme of the area by defendants. As the planning authority for the area, the defendant failed in performing its duty as envisaged under Section 46 of the Local Government Act 462 of 1993. As the site plan in the plaintiffs indenture exhibit A conforms to the geodetic engineer’s site plan contained in exhibit C, the defendant failed to prove his assertion that there was a shift in the planning scheme of the area especially as there was evidence that the area had already been built upon according to the original planning scheme. Assuming without admitting that the plaintiff was building on a road and without permit, the defendant acted unlawfully or ultra vires in demolishing the plaintiffs structures in breach of Section 52(1) and (3) of the Local Government Act 462 which requires that the plaintiff be served with a written notice to show cause before a sanction is imposed and enforced on him. There is also the evidence by the tendering by the plaintiff of the writ of summons and pleadings from both sides in suit No. AD/10/2013 that there was pending before a High Court a claim for perpetual injunction to restrain the defendant and others from interfering in any manner with the plaintiffs development on his land. This notwithstanding the defendant/appellant went ahead to demolish the building and wall on the plaintiffs land.

There were thus abundant evidence on the record of proceedings to support the trial judge’s finding of liability by the defendant/appellant for the unlawful demolition of the plaintiff’s three bedroom house and fence wall. The submissions made on the four grounds of appeal argued together are untenable. Counsel for the defendant/appellants grounds 1 to 4 of the appeal that the judgment is against the weight of evidence, exhibit C did not authorize the plaintiff to continue with his building and that the plaintiff built on a road without a building permit are unmeritorious and are dismissed.

The fifth ground of appeal that the trial judge erred in awarding special damages of Gh¢74,906.80 when the amount was not pleaded on the writ of summons and statement of claim would have found favour with us had it been as simple as that. The case of Klah vrs Phoenix Insurance Company (2012)2 SCGLR 1139 quoted by Counsel for the defendant/appellant is good law. It is also good law that a party can lead evidence only on matters which has been pleaded. It was thus the responsibility of Counsel for the defendant to object when the evidence on the amount of special damages was being led because it had not been pleaded not particularized. However Counsel sat down and remained quiet for evidence on special damages to be led and the bill of quantities which contained the particulars and details of the special damages to be tendered in evidence at the trial even though it had not been pleaded. The evidence of special damages having been admitted without objection the trial judge was bound to accept the evidence led at the trial without objection and not challenged under cross-examination. In the case of Auto Parts Ltd vrs Essuman (2013 -2014)1 SCGLR 385, it was held that “evidence of unpleaded facts which had been led in without objection, are part of the evidence to be considered in the overall assessment of the case in the light of the effect of Section 6(1) of the Evidence Act, 1975 (NRCD 323)”. The submissions of Counsel for the defendant/appellant on this ground are unacceptable and are hereby dismissed.

The next ground of appeal argued by Counsel for the defendant/appellant is that the award of exemplary or punitive damages was excessive. In the case of Juxon-Smith vrs KLM Dutch Airlines (2005 – 2006) SCGLR 438 it was held that “The grounds upon which an appellate court would enhance or reduce an award of damages were that a) the trial judge had acted on some wrong principles of law b) the amount awarded was so extremely high or so very small as to make it an erroneous estimate of the damage to which the plaintiff was entitled”. The trial judge gave the reasons why he awarded the figure of Gh¢500,000.00 as exemplary or punitive damages which reasons are supported by the evidence on record. We however note that the award is more than six times the special damages awarded which we consider these excessive. We think the award of exemplary or punitive damages should have a correlation with the damages awarded. We will therefore award the plaintiff about three times the special damages awarded. We therefore substitute the sum of Gh¢250,000.00 instead of the Gh¢500,000.00 awarded for exemplary or punitive damages.

Costs are awarded at the discretion of the trial judge which normally amounts to about a tenth of the award. The award of Gh¢25,000.00 costs in this case is less than a tenth of the total damages awarded. We shall therefore not disturb the costs awarded at the trial court.

Save for the reduction of the punitive damages from Gh¢500,000.00 to Gh¢250,000.00, the appeal fails and it is dismissed.

We award costs of Gh¢5,000.00 against the defendant/appellant in this appeal.

SGD.

 K. A. ACQUAYE

 (JUSTICE OF APPEAL)

 SGD.

ACKAH-YENSU, J.A (MS)    I AGREE         B. ACKAH-YENSU

(JUSTICE OF APPEAL)

SGD.

GYAN, J.A.     I ALSO AGREE          A. S. K. GYAN

(JUSTICE OF APPEAL)