IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
BIZZACO LIMITED -(Plaintiff/Appellant)
ACCRA METROPOLITAN ASSEMBLY - (Defendant/Respondent)
DATE: 15 TH NOVEMBER, 2018
CIVIL APPEAL NO: H1/150/2018
JUDGES: OWUSU J.A. (PRESIDING), LOVELACE-JOHNSON J.A., KWOFIE J.A.
MR. F. K. QUARTEY FOR PLAINTIFF/APPELLANT
A. M. A. (LEGAL DEPARTMENT) FOR DEFENDANT/RESPONDENT
MARIAMA OWUSU, J.A.:
On 5th of April, 2016, the High Court, Commercial Division, Accra, dismissed the action of the plaintiff against the defendant. In his judgment, the trial court held among others as follows:
“clearly then, alienation of an immovable property is not within the scope of The Sale of Goods Act. With the plaintiff having failed to prove that defendant misled it into coming unto the land, defendant cannot accordingly be held liable for the destruction to the property or investment made by the plaintiff and the latter has no cause of action against A.M.A. In the premises, it would be futile for the court to proceed to vet the bill of quantity submitted by PW1.
The action of plaintiff against A.M.A. is accordingly dismissed in its entirety. I will award cost of Gh¢6,000.00 against plaintiff.”
Dissatisfied with the decision of the trial court, the plaintiff mounted an appeal on the following grounds:
1. The judgment is not supported by the weight of evidence adduced at the trial.
2. The trial Judge was influenced by facts not borne by the record and thus erred by misdirecting himself on the facts.
3. Despite material evidence on record, the trial Judge erred by ignoring the defendant’s erroneous claim to ownership of the subject matter land which plaintiff relied on to its detriment.
4. The trial Judge erred when he held that plaintiff had knowledge that the subject matter land belongs to Government and not the defendant which is an Agency of Government.
5. The trial Judge erred in not finding the defendant liable having found that they did not have the legal and equitable right to assign the land to plaintiff.
6. The trial Judge erred in dissociating the defendant an Agency of Government from Government and thereby exonerating them from liability.
The relief sought from the Court of Appeal is to set aside the judgment and to enter judgment for the plaintiff/appellant.
Before dealing with the arguments advanced in support of this appeal, I will give a brief background of the case.
By its amended writ of summons, the plaintiff claims against the defendant the following:
i. An amount of Gh¢486,190.19 being the total amount expended by the plaintiff on its business operations on the aforesaid land from the date when the land was given it to the date of the final demolition.
ii. Interest on same at the prevailing bank rate from the date of the issuance of this suit to the date of final payment of same.
iii. Costs incurred by the plaintiff inclusive of legal fees.
iv. Any other reliefs which may be ordered by this honourable court.
In the statement of claim that accompanied the writ of summons, the plaintiff averred that, it applied for a piece of land at Abelenkpe in the Greater Accra Region from the Accra Metropolitan Assembly (A.M.A.) to develop and use same as a washing bay. The plaintiff was initially granted a temporary permit to be on the land and operate the said washing bay by AMA. Subsequently, in January, 2014, the defendant executed an assignment in favour of the plaintiff for a period of five years. Thereafter, according to plaintiff, it injected an amount of Gh¢486,190.19 into the business based on the assignment and or lease by building summer huts and walling the site. It is the case of the plaintiff that on 2nd of May, 2014, an officer from National Security came to the land where plaintiff was operating its business and indicated that they were there to demolish the property. The plaintiff concluded that the National Security demolished and destroyed plaintiff’s property on the land on 28th May, 2014, saying the land does not belong to defendant for it to have given it to plaintiff. Plaintiff maintains that based on the representations made by defendant to it, the former injected huge sums of money into its business which investment has been brought to its kneels hence this action.
On its part, the defendant maintained that it granted a temporary permit for the plaintiff to be on the land on condition that plaintiff was not to put up permanent structure on the land. Secondly, the plaintiff was to vacate the land anytime the Government needed that land. The defendant concluded that, the plaintiff breached the terms of the agreement it entered into with the defendant by failing to obtain permit for the structures plaintiff put up on the land. The defendant maintained the plaintiff is not entitled to any of the reliefs sought against it.
After going through a full trial with the parties testifying and calling witnesses, the plaintiff’s claims were dismissed hence this appeal.
At this stage, let me put it on record that the defendant did not file any process in this appeal. Also, in this appeal, the plaintiff/appellant would be referred to as plaintiff and defendant/respondent as defendant.
It is noted for the record that, initially, the plaintiff issued the writ against three parties, namely, The National Security as 1st defendant, The Attorney-General as 2nd defendant and Accra Metropolitan Assembly as 3rd Defendant. The plaintiff later amended its writ of summons and statement of claim by deleting the names of the National Security Council and The Attorney-General leaving only Accra Metropolitan Assembly (AMA) as defendant.
In arguing the appeal, counsel for the plaintiff submitted that, having found that, the defendant’s grant of the land to the plaintiff was wrongful, the defendant should have been held liable for the demolition of plaintiff’s property. However, the analysis of the second issue by the trial Judge was strange and bizarre, in that, he referred to plaintiff’s application for the land, Exhibit ‘A’ and the cross examination of PW1 at page 148 and concluded that defendant was not liable.
Counsel then submitted that from the reading of Exhibit ‘A’, one is left in no doubt that the plaintiff dealt with AMA as an institution of Government. He continued that, it is true the plaintiff knew the land is Government land and therefore applied to the agency it knew had control especially as the place was being used as a refuse dump. Counsel argued that the consideration the trial Judge did not address is, if AMA knew that it was not the institution of Government that had control of that parcel of land, then why did they lead plaintiff on, issue approval permit, collected fees, issued an indenture in which AMA claimed ownership of the land, i.e. Exhibit ‘E’.
Secondly, counsel argued, the trial Judge put a wrong interpretation on Exhibit ‘B’ by referring only to clauses 4 and 5 instead of reading the whole document. He submitted that, had the trial Judge read the whole of Exhibit ‘B, he would have come to a different conclusion. This is because, in Exhibit ‘B’, AMA continued to assert title and to deal with the land as such. Consequently, counsel submitted the defendant ought to accept liability if its assumption of authority is wrong. The trial Judge therefore erred in rather putting the blame on plaintiff instead of the body that dealt with the site and who confirmed its rights to the plaintiff. He again submitted that, the finding by the trial Judge that the plaintiff was aware that the defendant had no authority to make any alienation of government land and whatever loss the plaintiff has incurred for the demolition of its property cannot be blamed on the defendant is not supported by the evidence on record.
On ground 2;
Counsel referred to the first paragraph of the judgment in contention and submitted that the narration by the trial Judge is not borne out by the pleadings and indeed the evidence on record. He then submitted that, even though the trial Judge did not make a finding on that particular evidence, it might have influenced his thoughts as to why National Security Operatives demolished the Plaintiff’s structures. He therefore submitted that the statement that National Security having demolished for the reason of feud with residents and threat to motorists is not supported by evidence on record and invited us to allow the appeal on this ground.
On ground 3 and 5;
Counsel for the plaintiff submitted that, the record confirms that the defendant asserted ownership over the parcel of land in dispute and made a grant to the plaintiff, which turned out to be wrong. Counsel argued that, the defendant tried to regularize the anomaly by writing to the Lands Commission requesting their consent to assign. This application did not save the plaintiff’s investment. Therefore, the only entity liable for the plaintiff’s loss is the defendant. He therefore urged us to allow the appeal on this ground.
Grounds 4 and 6;
On these grounds, counsel for the plaintiff submitted that, the trial Judge exonerated defendant from liability for one reason only and that is the land belongs to Government and that the plaintiff admitted this fact under cross examination. He then came to the conclusion that, it is only the Lands Commission that can validly grant Government land and not AMA. Counsel argued that when plaintiff wrote Exhibit ‘A’ to defendant, the latter owed a duty to truthfully declare its lack of legal interest and capacity to deal with the land as such.
In the view of counsel for plaintiff, what defendant did amounted to fraudulent misrepresentation when they accepted payments from defendant and even went ahead to prepare a deed Exhibit ‘E’; but it turned out AMA did not have the right to the said land and they ought to be found liable. This findings on the contrary is clearly not supported by the evidence on record. He therefore invited us to allow the appeal on these grounds also.
In the judgment in contention, the trial Judge made the following findings of fact:
1. That the mandate of managing public lands is a function of the Lands Commission and not the District Assemblies and that the Lands Commission performs that role in co-ordination with the relevant Government Agencies and Institutions.
2. The disputed land became Government land by virtue of Act 186 by the issuance of an Executive Instrument (Land Statutory Wayleaves) Accra Tema Motorway (phase II) Instrument 1973. The land acquired in the schedule of the E. I. is for the extension of the motorway including the land in dispute.
3. The disputed land being Government land, the only agency or body or authority that is constitutionally mandated to deal with it in terms of alienation is not the defendant but rather the Lands Commission.
4. The grant by AMA of the disputed land to plaintiff was wrongful as it had no such mandate to make an alienation as is contained in Exhibit ‘E’.
5. That the plaintiff was fully aware that the land it made investment on did not belong to defendant but was Government land.
6. By Exhibit ‘B’ the plaintiff was put on notice that defendant was not the owner of the land.
A carefully reading of the grounds of appeal, grounds 1, 3, 4, 5 and 6 all border on the improper evaluation of the evidence on record and the applicable law. Our duty therefore, as an appellate court is to evaluate the entire record of appeal and to find whether the conclusion reached by the trial Judge is amply supported by the evidence on record and the law. See the case of Owusu Dwamena Vs. Amoah [2015-2016] 1 SCGLR, 790, holding 2 where their Lordships held that;
“Where the appeal was based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.”
See also Rule 8(1) of the Court of Appeal Rules (as amended) C. I. 19 where it provides that;
“An appeal to the Court of Appeal shall be by way of rehearing and shall be brought by a notice of appeal.”
In this case both the plaintiff and the defendant agree the land in dispute is for the Government.
Exhibit ‘1’ from plaintiff at page 129 of the record of appeal is clear on this.
In Exhibit ‘A’ the plaintiff in applying for the disputed land wrote:
“APPLICATION FOR USAGE OF GOVERNMENT LAND
The above-named company has sited a piece of land at Abelenkpe near the overpass. The said land which is a government land (our emphasis) is being used as a refuse dump and a hide out for thieves. We think we can put the land into meaningful use at the same time generating income for the sub-metro and get the unemployed in the sub-metro work to do.”
In Exhibit ‘B’, the defendant in granting plaintiff temporal permit on 7th August, 2012 stated:
“Your application was received, discussed, considered and granted on condition that you adhere to these terms:
1. Due to the unkempt nature of the place, you are to keep the area in good shape environmentally.
2. You are to pay Gh¢500.00 for the usage of the land annually. This annual payment is subject to review as and when necessary.
3. Payment of this fee does not imply ownership of the land.
4. Be reminded that the space is a reserved land and no permanent structure is to be constructed on the land (our emphasis)
5. The government has the right to revoke this temporal permit without any cost to it when the government decides to use the space for any purpose (our emphasis again).
From Exhibit A, B and I, the finding by the trial Judge that the plaintiff is aware that the disputed land is government land is clearly supported by the evidence on record. The point of divergent is that whilst the plaintiff is of the view that the defendant could not alienate the land, the defendant on the other hand is of the view that it can deal with the land if the land is not being put to immediate use. The trial Judge in settling this issue referred to the Constitution and the Local Government Act.
Per Section 10 of the Local Government Act, 1993, Act 462, the functions of District Assemblies do not include the alienation of Government lands. Section 10 (2) (e) of Act 462 provides:
“A District Assembly is responsible for the development, improvement and management of human settlement and the environment in the district.”
This activity of the Assembly does not come close to alienation of land. The trial Judge also referred to Article 257 and 258 of the 1992 Constitution which deals with Land and Natural Resources and the Lands Commission.
Article 257 provides that:
“All public lands in Ghana shall be vested in the President on behalf of and in trust for the people of Ghana.”
Article 258 which relates to Lands Commission also provides:
“There shall be established a Lands Commission which shall in co-ordination with the relevant public agencies and government bodies, perform the following functions:
a. On behalf of the Government, manage public lands and any lands vested in the President by this Constitution by any other law or any lands vested in the Commission.
b. Advise the Government, Local Authorities and Traditional Authorities on the policy framework for the development of particular areas of Ghana to ensure that the development of individual pieces of land is coordinated with the relevant development plan for the area concerned.
c. Formulate and submit to Government recommendations on national policy with respect to land use and capability.
d. Advise on, and assist in the execution of a comprehensive programme for the registration of title to land throughout Ghana; and
e . Perform such other functions as the Minister responsible for lands and natural resources may assign to the Commission.”
From the above, the Lands Commission is the authority mandated to deal with and manage public lands on behalf of the Government of Ghana.
Therefore, by Article 258 (b) of 1992 Constitution and Section 10 of the Local Government Act, Act 462, the AMA cannot alienate Government land as defendant did in Exhibit ‘E’.
Consequently, the finding by the trial Judge that the assignment of the disputed land by defendant as contained in Exhibit ‘E’, was wrongful, is clearly supported by the Evidence on record based on the facts and the law.
Now, to the main issue whether the defendant led plaintiff on to invest huge sums of money into its business. The trial Judge answered this question in the negative to which counsel for the plaintiff had submitted is clearly not borne out by the evidence on record. In the view of counsel for plaintiff, the defendant should be held liable for claiming to be the owner of the disputed land when in fact it is not. Misrepresentation is defined in Osborn’s Concise Law Dictionary, Eighth Edition, edited by Leslie Rutherford and Sheila Bone as:
“A representation that is untrue, a statement or conduct which conveys a false or wrong impression. A false or fraudulent misrepresentation is one made with knowledge of its falsehood and intended to deceive. A negligent misrepresentation is one made with no reasonable grounds for believing it to be true. An innocent misrepresentation is one made with reasonable grounds for believing it to be true, as where an honest mistake is made. (our emphasis)
In this case, right from the word go, the parties were aware the disputed land is Government land. I have already referred to Exhibit ‘A’, ‘B’ and ‘1’.
Under cross-examination, DW1 stated AMA has jurisdiction over government lands that are not being used immediately by the government subject to certain terms and conditions and in Exhibit ‘B’, it reiterate that, anytime the government needs the land, the plaintiff would vacate at no cost to AMA or Government which plaintiff agreed.
To another question, this is what DW1 said:
“Q: I put it to you that AMA cannot make any such grant without the consent of Lands Commission.
A. This is a convention that exists between the agencies of government like AMA and Lands Commission.”
Clearly, this is an innocent misrepresentation. This explains why defendant wrote Exhibit ‘H’. By Exhibit ‘H’, the defendant sought Lands Commission’s consent for the former to assign the disputed land to plaintiff. This was on 20th of March, 2014 long before the plaintiff’s property was demolished.
From the plaintiff’s representative’s evidence, operatives of National Security Council visited plaintiff’s site on 3rd May, 2014 and 28th May, 2014 and demolished its property. This was about two months after Exhibit ‘H’ was written to Lands Commission. That being the case, the defendants cannot be fixed with liability when plaintiff knew it was Government that carried out the demolition exercise. This explained why plaintiff initially sued the National Security Council and the Attorney General. The trial Judge was thus right in not finding the defendant liable.
Grounds 1, 3, 4, 5 and 6 fail and they are accordingly dismissed.
This brings us to ground 2 of the appeal.
Admittedly, lines 3 to 4 of the opening paragraph of the judgment, i.e.
“Acting on concerns that the activities of the plaintiff on the land poses threat to motorist coupled with a feud between plaintiff and residents of Abelenkpe National Security was compelled to demolish the property of plaintiff on that piece of land.”;
is clearly not borne out by the evidence on record, but same has not occasioned a miscarriage of justice. As rightly pointed out by counsel for the plaintiff, no finding of fact was made on those words by the trial Judge.
This ground of appeal also fails and it is hereby dismissed.
From the foregoing, the appeal fails in its entirety and it is accordingly dismissed.
[JUSTICE OF APPEAL]
LOVELACE-JOHNSON, (J.A.) I AGREE AVRIL LOVELACE-JOHNSON
[JUSTICE OF APPEAL]
KWOFIE, (J.A.) I ALSO AGREE HENRY KWOFIE
[JUSTICE OF APPEAL]