IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
GENERAL DEVELOPMENT COMPANY LTD. - (Plaintiff/Respondent)
PETTEH ESSOUN - (Defendant/Appellant)
DATE: 30TH OCTOBER, 2017
SUIT NO: H1/20/2016
JUDGES: HONYENUGA J.A. (PRESIDING), SUURBAAREH J.A.,DAPAAH J.
MR. VICTOR OWUSU FOR DEFENDANT/APPELLANT
MR. CONSTANTINE K.M. KUDZEDZI FOR PLAINTIFF/RESPONDENT
The facts giving rise to this appeal are not in dispute. On 29th October 1975, the Nkisiam Ekisi family of Mpintsim and Sekondi of Ahanta in the Western Region, per its head, KOBINA KWAINSEN, entered into a lease agreement with SAND, GRAVEL AND STONE COMPANY LTD., represented by EMMANUEL ACKAH and PAULINA CRENTSIL, for a period of fifty (50) years. The lease agreement, which was witnessed by two elders of the Nkisiam Ekisi family, including the Defendant/ Appellant, herein simply called hereafter as the appellant, as well as the Secretary of the family. The lease agreement, which contained clauses and convenants relating to the obligations and rights of the parties, included a convenant on the part of the lessee not to assign or sublet or part with any portion of the demised land without the consent of the lessor.
The facts also show that SAND, GRAVEL AND STONE COMPANY LTD. on 2nd April, 1985, assigned its interest in the demised land to the Plaintiff/Respondent, who will simply be called hereafter as the Respondent. According to the Respondent, it proceeded to register its interest and was in uninterrupted occupation and possession, when a few months to the institution of the action, the appellant entered onto the land and began granting portions to individuals.
The Respondent, who contended that after all efforts to stop the appellant in his conduct proved futile despite being shown the Deed of Assignment, instituted the present action claiming the following reliefs:
“i. General Damages for trespass onto plaintiff’s land
ii. An order nullifying any grant or lease in respect of any portion of the said land between the defendant and any person or persons.
iii. Perpetual injunction restraining the defendant, his agents, assigns, servants, privies, cohorts and persons claiming through him from interfering in any manner or dealing with the plaintiff’s land.
iv. Recovery of possession.”
The Appellant, who in his defence did not deny the lease between his family and SAND, GRAVEL AND STONE COMPANY LTD. however contended that even though the lease was only for farming purposes, SAND, GRAVEL AND STONE COMPANY LTD. went on to acquire a mining licence to mine quarry stone. He also contended that, contrary to a clause in the lease agreement against any assignment of the land without the consent of the lessor, SAND, GRAVEL AND STONE COMPANY LTD. purported on 2nd April, 1985, to assign its interest in the land to the Respondent, which assignment, he concluded, was null and void. The Appellant also contended that the purported assignment of the mining right in the land without prior approval and consent of the minister made it null and void having contravened the mining and mineral laws.
The Appellant also alleged that the attention of SAND, GRAVEL AND STONE COMPANY LTD. was drawn to the unlawfulness of the assignment but it did nothing about it. He also denied that the Respondent has been in uninterrupted occupation and possession as well as the allegation that he had given out portions to developers.
In conclusion, the appellant averred that the land in dispute has since been zoned by the Department of Town and Country Planning and designated as a residential area and that whatever interest the Respondent had in it, has been extinguished by operation of law.
At the close of pleadings, the following issues, including the omnibus clause of any other issues arising from the pleadings, were set down for determination:
“i. Whether or not the Defendant has trespassed onto Plaintiff’s land.
ii. Whether or not the Defendant has granted portions of Plaintiff’s land to individuals without Plaintiff’s consent .
iii. Whether or not the Plaintiff is entitled to its claim.”
The Respondent’s case was presented by its personnel manager who tendered in evidence the Deed of Assignment as Exhibit A and who, under cross-examination, was emphatic that KOBINA KWAINSEN, the appellant’s head of family, consented to the assignment otherwise it could not have been prepared. The Respondent also called a surveyor to show that, during a redemarcation exercise he carried out on the land, there were several building projects at various stages and that some of the developers mentioned the Appellant as their grantor.
The Appellant on his part, gave evidence by himself and tendered in evidence the lease agreement between his family and SAND, GRAVEL AND STONE COMPANY LTD. as Exhibit 1 and insisted that the consent of his family was never sought before the assignment. He also called an officer from Town and Country Planning Department of the Sekondi-Takoradi Metropolitan Assembly, to show that the area has been zoned out with the current scheme being in 2008.
The learned trial judge, who found that the appellant had in fact entered onto the disputed land and granted portions to developers, also went on to hold that the mining laws being relied upon by the Appellant to impugn the assignment did not apply as the lessee only assigned his interest as contained in the head lease.
On the Appellants contention that the assignment was null and void for not having the consent of the lessor, the trial court held that even if that was so, since the Appellant admitted he failed to comply with the provisions of section 29 of the Conveyancing Act 1973 (Act 175) to enforce the breach, his action, in going onto the land to grant portions to developers, amounted to trespass and went on to enter judgment for the Respondent for the reliefs endorsed on its writ of summons.
Aggrieved by and dissatisfied with the judgment, the Appellant has mounted the present appeal on as many as nine (9) grounds, with a proviso for filing additional grounds of appeal upon receipt of the record of appeal even though none were filed. The grounds of appeal are the following:
“a. The judgment cannot be supported having regard to the evidence adduced at the trial.
b. The holding by the trial judge that the Defendant/Appellant had trespassed onto the land in dispute was made in error.
c. The trial judge made an error when he failed to determine whether the assignment to the Plaintiff/Respondent was lawful or not.
d. The holding by the trial judge that the Defendant/Appellant had no authority to go onto the land in dispute without going through the process of re-entry was made in error.
e. The learned trial judge erred by holding that the mining laws in the country did not affect the assignment to the Plaintiff/ Respondent.
f. The learned trial judge erred by determining the case without reference to the Town and Country Planning Ordinance.
g. The award of Gh¢40,000.00 was a wrongful exercise of discretion by the trial judge.
h. The learned trial judge erred in law by not giving adequate consideration to the case of the Defendant.
i. The cost awarded in the judgment was too excessive.”
Even though several grounds of appeal have been filed, a critical look at them will show that whilst grounds (a), (b), (c) and (h), which are complaints about the trial judge’s misapprehension or lack of appreciation or failure to consider some evidence, and can all therefore be subsumed under the omnibus ground about the judgment being against the weight of the evidence, grounds (d), (e) and (f) relate to the trial judge’s lack of appreciation of some laws or his failure to consider them. Grounds and (i), on the other hand, relate to failure of the trial judge to properly exercise his discretion in respect of the damages and cost awarded.
Since grounds (a), (b), (c) and (h) are complaints about the judgment not been supported by the evidence led at the trial, the Appellant assumes the burden of satisfying this court that the judgment indeed cannot be supported by the evidence led. The appellant, upon such a ground of complaint, assumes the burden of showing that the judgment cannot indeed be supported by the evidence led since a judgment is presumed to be correct until it is clearly shown to be wrong. See Amponsah v. V.R.A. [1989-90] 2 G.L.R. 28 S.C. In Djin v. Musah [2007-2008] 2 S.C.G.L.R. 687, at holding (1) in the headnote, it was held that upon such a ground of appeal since the appellant is implying that either certain pieces of evidence in his favour were ignored or that some pieces of evidence were wrongly applied against him, he has to clearly demonstrate it to the satisfaction of the appellate court.
A ground of appeal based on the judgment being against the weight of the evidence is a call on the appellate court to examine the totality of the evidence, oral and documentary, and come out with its own conclusion on the admitted and disputed facts as held in Akuffo-Addo v. Catheline  1 G.L.R. 377 S.C. at holding (3) in the headnote, and quoted with approval in Agyei Osae & Others v. Adjeifio and Others [2007-2008] 1 S.C.G.L.R. 499 at 502.
It was also held in Bonney v. Bonney [1992-93] 2 G.B.R. 779 S.C. at 781 in holding (4) of the headnote, and quoted in Assibey v. Gbomittah and Another  2 S.C.G.L.R. 800 at 810 to 811 that, upon a ground of appeal that a judgment is against the weight of evidence, not only does the appellant assume the burden of showing from the evidence that it was in fact so, but that to get a favourable response, he must prove the following: that the findings of the trial judge were clearly wrong; that the trial court failed to take all the circumstances and evidence into account; that the trial court had misapprehended some evidence or had drawn wrong inferences without any supporting evidence; or had failed to take proper advantage of seeing and hearing the witnesses.
As the authorities show, an appeal based on the ground that a judgment is against the weight of the evidence is a call on the appellate court to rehear the matter, hence the generally accepted principle that an appeal is by way of rehearing as brought out in decided cases over the years. See Preka v. Ketewa  G.L.R. 423 and all the cases cited earlier in his judgment. This principle of law has been raised to a statutory pedestal by Rule 8(1) of the Court of Appeal Rules 1997 (C.I. 19) which provides:
“8(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”
Where an appeal is based on findings of fact, the primary duty of the appellate court is to examine the record of proceedings to satisfy itself if the findings are supported by the evidence led at the trial and, if they are not the judgment ought to be set aside as held in Koglex Ltd. (No. 2) v. Field  S.C.G.L.R. 175 at 184. Where the findings are however based solely on the demeanour and credibility of witnesses, an appellate court should be slow to interfere as the trial court was in the better position to assess that. See Preka v. Ketewa (supra) at 426. Where however the judgment is based on established facts, the appellate court is in as good a position as the trial court to draw its own inferences as held in Gihoc v. Hanna Assi [2005-2006] S.C.G.L.R. 458 at 460 at holding (2) in the headnote.
In his attempt to convince the court that the judgment should not be allowed to stand, the appellant first argued grounds (c), (e), (f) and (h) together. These alleged errors on the part of the trial judge in failing to determine the lawfulness or otherwise of the assignment to the respondent; error in holding that the mining laws were not applicable and did not affect the assignment; failure to consider the Town and Country Planning Ordinance, and, giving inadequate consideration to the appellant’s case.
Learned counsel for the appellant, who referred to paragraphs 5 and 6 of the statement of defence and the reply thereto on the assignment being null and void as having contravened a provision in the lease agreement as per clause 8(1) of exhibit 1, submitted that the trial court, instead of pronouncing on the issue of whether the assignment contravened the prohibitive clause in the head lease in not obtaining the consent of the lessor, rather castigated the appellant for not following the laid down procedure for re-entry upon a breach of a clause in a lease. This conduct on the part of the trial judge, in the view of learned counsel, show a misapprehension of the defence put up and the court’s failure to give it adequate consideration. Citing the case of Republic v. District Court Grade I Korle Gonno; Ex Parte Ampomah (Prt. 2 [1992-93] G.B.R. 196 at 227, it was submitted that once the consent to assign was a condition precedent to an assignment, SAND, GRAVEL AND STONE COMPANY LTD. could not validly assign its residual interest in the disputed land without the consent of the lessor and as such the purported assignment to the respondent was null and void.
It was also submitted on behalf of the appellant that, from the sum total of his defence as per paragraphs 10 to 12, his entry onto the land was based on the fact that the land had been declared a planned area by a statutory body, the Department of Town and Country Planning, and that the applicable law was the Town and Country Planning Ordinance, CAP 84 of 1945. After copious reference to the evidence of DW1 on the disputed area being declared a planned area, and the fact that same was not challenged, it was submitted that the trial judge wrongly failed to determine the legal effect about the area being declared a planned area.
After reference to the provisions in sections 3 and 2(4) of CAP 84, it was also submitted, on behalf of the appellant that, with the declaration of the land as a planned area, the farming and mineral rights which pre-existed the declaration by the Department of Town and Country Planning, became extinguished and the respondent’s remedy lay in seeking compensation.
Learned counsel for the appellant, who also referred to paragraph 7 of the defence about the assignment being null and void as having contravened the provisions of the Minerals and Mining Laws, went on to refer to paragraph 6 of exhibit A, the Deed of Assignment showing that it included quarrying rights, submitted that by regulations 7(1)(b) of the Mining Regulations 1962 L.I. 231, the prior consent of the minister was a sin qua non for the assignment of a mining right. It was then submitted that contrary to what was contained in clause 6 of Exhibit A, the trial judge held that the mining laws did not apply to the matter. This finding, according to the appellant, also shows that, not only did the trial judge fail to take full advantage of the totality of the evidence led at the trial, but that he also wrongly ignored very material part of the defence, and without assigning any reason.
In dealing with ground (d) of the grounds of appeal about the holding that the appellant had no authority to go onto the land without going through the laid down process of re-entry, it was submitted on behalf of the appellant that, as it was clear from paragraphs 10 to 12 of his defence that his re-entry was not based on the breach in the convenant in the head lease, reference by the trial court to the provisions of section 29 of the Conveyancing Act 1973 (Act 175), instead of the Town and Country Planning Ordinance CAP 84 of 1945, show his misapprehension of the applicable law to the issue at stake.
On grounds (h), about the trial judge having erred in holding that the appellant had committed trespass, after reference to Odonkor v. Amartey  2 G.L.R. at 69 on what constitutes trespass to land and when a plaintiff may be said to be in exclusive possession, as well as the case of Brown v. Quashigah [2003-2004] S.C.G.L.R. 930 at 951 on the definition of possession, it was submitted that as the respondent failed to substantiate its averments about being in uninterrupted possession, its case has not been proved. It was rather contended that the appellant was in possession before the action.
With regard to the award of damages being a wrong exercise of discretion per ground (g) it was submitted on behalf of the appellant that the court failed to state the nature of the evidence that informed it in awarding the punitive damages. In the view of learned counsel for the appellant, in the absence of the number of plots of land sold by the appellant and the length of trespass, or any hardship occasioned, the award was unjustified.
In reaction to the submissions on behalf of the appellant, the respondent, after reference to the reliefs and pleadings in the matter, as well as the submissions on behalf of the appellant, contended that as the gravamen of the appellant’s case was that the consent of his family was not sought before the assignment of its interest by SAND, GRAVEL AND STONE COMPANY LTD. in the disputed land, thereby rendering the assignment null and void, his reliance on the case of Republic v. District Court Grade I Korle Gonno; Ex Parte Ampomah (supra), showed his misunderstanding of the law relating to the construction of Deeds and Documents.
In the view of learned counsel for the respondent, what the appellant termed a prohibitive clause in Exhibit 1, was infact a clause against subletting and assignment, which if not included by mutual agreement of the parties in a lease agreement, will by the provisions of section 23(1) of the Conveyancing Act 1973 (Act 175), be implied in a lease for valuable consideration. Learned counsel for the respondent then went on to submit that a breach of the covenant against subletting does not render a lease void, but merely gives the lessor the right of re-entry as brought out by the case of Schandorf v. Zeini & Another  2 G.L.R. 418, with particular reference to the explanation given by Amissah, J.A. (as he then was) at page 439. Learned counsel for the respondent, who also referred to the work of B.J. Da Rocha and C.H.K. Lodoh, Ghana Land Law and Conveyancing 1999 (2nd ed.), with particular reference to page 72, concluded that the trial judge was therefore not in error about his holding on the effect of a breach of clause 8(a) in exhibit 1, as contended by the appellant.
It was also submitted that as a landlord or lessor’s right to determine a lease or re-entry was restricted by statutory provisions, particularly section 29 of the Conveyancing Act 1973 (Act 175), as brought out by the case of Western Hardwood Ent. Ltd. & Another v. West African Ent. Ltd. [1998-99] S.C.G.L.R. 105 at holding (5) in the headnote, there could not be a re-entry without a court action. After reiterating that the gravamen of the appellant’s defence as brought out by his defence and evidence is that, SAND, GRAVEL AND STONE COMPANY LTD. did not seek the consent of his family before the assignment, it was submitted that the trial court’s holding that without complying with the provisions of sections 29 and 30 of the Conveyancing Act 1973 (Act 175), he had no authority to go onto the land and grant portions, did not occasion any miscarriage of justice. It was also submitted, on behalf of the respondent that, as the failure to seek consent was that of SAND, GRAVEL AND STONE COMPANY LTD. the respondent, a third innocent party, should not suffer the consequences and further that the appellant should have proceeded against SAND, GRAVEL AND STONE COMPANY LTD. but he failed to act.
In response to the submissions on behalf of the appellant trying to justify the entry based on facts pleaded about the area having being declared a planned area, and thereby extinguishing the rights of the respondent, it was submitted that, in the light of the provisions of article 18 of the Constitution, 1992 against interference with property rights of persons, the Town and Country Planning Department would be acting in breach of the constitutional provisions if its declaration of the disputed land as a planned area extinguished the respondents rights. In the view of learned counsel for the respondent, as ownership of the land was vested in the respondent, the Town and Country Planning Department could not validly deal with the head lessor, whose “reversionary” interest had not accrued, to demarcate and sell it to the detriment of the respondent. It was also submitted that from the account of DW1, the zoning and plotting was done at the instance of the appellant.
In reaction to reliance placed on the work of B.J. Da. Rocha & C.H.K. Lodoh’s work, Ghana Land Law and Conveyancing at page 334, said to be wrongly stated as page 175, it was submitted on behalf of the respondent that the authors did not say that the Town and Country Planning Department had the power to deprive a land owner of his rights in the land but that, after an area had been declared a planned area it can only be used in conformity with the scheme.
In reaction to the submissions on behalf of the appellant that the assignment also breached the minerals and mining laws, it was contended on behalf of the respondent that, apart from the fact that these laws contained sanctions for infringement, the right of re-entry or nullity or voidness of the lease was not part of them. It was further contended that the issue before the trial court did not relate to mining rights as per exhibit 3 (sic) and that, from the issues for resolution, the trial court did not err in holding that they were not affected by the mining laws.
Touching on the ground alleging error on the part of the trial judge in holding that the appellant could not go onto the land without going through the due process of re-entry, it was submitted on behalf of the respondent that to hold otherwise would be a recipe for chaos and advocating for the return to the days of the law of the jungle. In the view of learned counsel for the respondent, a breach of a covenant in a lease, gives a right to damages or re-entry but does not entitle the lessor to take the law into his hands, and that, where he decides to forfeit the lease, he must comply with sections 29 and 30 of the Conveyancing Act 1973 (Act 175). It was further submitted that the appellant could not justify his entry onto the disputed land by the unproven assertions that the zoning was by the Town and Country Planning Department as the land had not been compulsorily acquired by the state or the Department so as to oust the interest of the respondent. It was also submitted on behalf of the respondent that the appellant’s contention that the respondent could apply for compensation was untenable as the Government got nothing from the zoning since all sales were by the appellant.
In response to the ground of appeal about the trial judge having erred in holding that the appellant had trespassed onto the disputed land, it was submitted, on behalf of the respondent that, the appellant only sought to mislead since it was clear from the respondent’s pleadings and evidence that it had been in undisturbed possession between 1985 and 2008, when the appellant entered the land and sold portions to developers. It was also pointed out that whilst the appellant denied the allegation of trespass in his pleadings, he admitted going onto the land and selling portions out and claiming to have the power to do so. In the view of learned counsel for the respondent, as the lease was still subsisting, the appellant had no land, as at 2008, to give out to developers and that the principle nemo dat quod non habent was applicable to the purported grants as brought out in Tetteh & Another v. Hayford (subst.) Larbi & Decker  1 S.C.G.L.R. 417 at 431 and 432. It was then concluded on behalf of the respondent that as trespass was an interference with possession without the consent of the owner, the court was right in finding the case of trespass made out.
On the contention that the award of Gh¢40,000.00 as damages was a wrongful exercise of discretion, it was submitted on behalf of the respondent that as damages was the remedy for trespass as held in Hayford v. Egyir [1984-86] 1 G.L.R. 682, the quantum awarded was not excessive having regard to the evidence that the land was resurveyed, and many of the developers thereon said they were there at the instance of the appellant. In any case, submitted learned counsel for the respondent, an appeal court will only interfere with the assessment of damages where it is satisfied that the judge acted on a wrong principle or misapprehended the facts and upon which he made a wholly erroneous estimate of the damage suffered, as held in Karam v. Ashkar  1 G.L.R. 138.
By way of reply, it was submitted on behalf of the appellant that from clause 8(a) of exhibit 1, SAND, GRAVEL AND STONE COMPANY LTD. could not effect an assignment without the consent of the head lessor and that the facts and circumstances of Schandor v. Zenni (supra) as well as Western Hardwood Eng. case (supra) are distinguishable from this case.
It was also submitted on behalf of the appellant that by the provisions of section 2 of the Town and Country Planning Ordinance CAP 84 of 1945, it is the minister acting in consultation with the Local Authority that can declare an area a planned area and, as such, the Town and Country Planning Department did not require the consent of the owner of the land before declaring an area a planned area. It was also submitted that the provisions of the Town and Country Planning Ordinance were neither also unconscionable nor inconsistent with the provisions of article 18 of the Constitution, 1992.
Learned counsel for the appellant also submitted that, as the land was originally acquired for farming purposes, upon the land being declared a planned area, per exhibit 3, with the scheme being for residential and commercial purposes, its current use was inconsistent with the previous use and thus extinguished the right to farm on it.
Referring to exhibit 1, as having purported to transfer farming as well as mineral rights, it was submitted on behalf of the appellant that as the sanctions provided in sections 106 to 109 of the Minerals and Mining Act, 2006 (Act 703) are classified as criminal offences, in view of the plethora of authority that a contract is void ab initio if it is prohibited by statute, the assignment of a mineral right without the consent of the minister being illegal, rendered it void of any legal effect.
In Hammond v. Odoi & Anor [1982-83] G.L.R. 1215 at 1235, Crabbe J.S.C. made the following statement on the importance of pleadings:
“Pleadings are the nucleus around which the whole case revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefits of the courts and parties. A trial court can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings must manifest the true and substantive merits of the case.”
It was also held in Frabina Ltd. v. Shell (Gh.) Ltd.  1 S.C.G.L.R. 429 at 431 at holding (2) in the headnote as follows:
“(2) The essence of pleadings was inter alia, not only to inform the opposing party of the case it would meet, but also to put the opposing party on notice as to prepare its case in response to the facts pleaded against it. In the instant case, the contention by the plaintiff that the payment of Gh¢10,000.00 was a refundable deposit was not only an afterthought, it was also a belated attempt to change its case from that of working capital to refundable capital. That change would fly in the face of the known principles of pleadings, especially as provided in the High Court (Civil Procedure) Rules, 2004 C.I. 47, Order 11 r.10(1)…”
Justice Annin Yeboah, J.S.C. in the case of Hydrafoam Estates (Gh.) Ltd. v. Owusu [2013-2014] 2
S.C.G.L.R. 1117 at 1122, quoted the following passages of Lord Norman in Esso Petroleum Co. Ltd. v.
Southport Corp.  W.L.R. 81 at 87 on the functions of pleadings:
“…the function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them.”
In this case, the appellant, in response to the averments contained in paragraphs 3, 4 and 5 of the statement of claim about the respondent’s acquisition, as well as paragraphs 6 to 9 about the acts of trespass, averred thus in paragraphs 6 and 7 in his defence:
“6. The purported assignment which was without the consent of the lessor of SAND, GRAVEL AND STONE COMPANY LTD., is null and void on the grounds that the purported assignment was against a prohibitive clause in the lease executed between KOBINA KWAISEN AND SAND, GRAVEL AND STONE COMPANY LTD.
7. The Defendant would also contend that the purported assignment of the mining right in the land without the consent and approval of the minister was contrary to section 19 of the Minerals and Mining Law P.N.D.C.L. 153 (old law) and section 14 of the Minerals and Mining Act, Act 703 (new law) and therefore null and void.”
Despite the above pleadings, the appellant, after castigating the trial judge for not determining the legal effect of the breach of clause 8(a) in Exhibit 1, but rather holding that he could not re-enter upon a breach without complying with section 29 of the Conveyancing Act 1973, Act 175, submitted thus at page 8 of his written submission filed on 28th October 2016:
“The finding of the learned trial judge is an indication that the trial judge misapprehended the defence put up by the Defendant/ Appellant and did not give adequate consideration to the defence of the Defendant/Appellant. This is because nowhere in the pleadings nor the evidence of the Defendant/Appellant did he state that he re-entered the disputed land because of the breach of paragraph 8(a) of Exhibit 1 by Sand, Gravel and Stone Company Ltd.
The sum total of the Defendant/Appellant defence as epitomised in his pleadings and evidence was that he entered the disputed land because the Town and Country Planning in the exercise of its statutory functions had declared the disputed land a planned area and changed the use of the land and thereby extinguished all pre-existing interest in the disputed land which were inconsistent with the new scheme.”
In arguing ground (d) of the grounds of appeal about the trial judge having erred in holding that he could not go onto the disputed land without going through due process, it was also submitted at page 13 of his written submission as follows:
“As stated earlier in this submission the relevant portion of the Defendant/Appellant’s defence are captured under paragraphs 10, 11 and 12 of his statement of defence which can be found at pages 8 and 9 of the record.
Nowhere in that defence did the Defendant/Appellant aver that he re-entered the disputed land because of the breach of one of the convenant in the head lease.”
It is pertinent to note that in response to the averments in paragraphs 6 and 7 of the defence filed, as well as paragraphs 7, 8 and 12, the respondent, by way of reply at page 12 of the records of appeal, averred thus in paragraph 2, after joining issues generally with the appellant on the statement of defence filed and calling same as sham:
“2. Save that Sand, Gravel and Stone Company Ltd. legally directed (sic) itself of its interest in the land to the plaintiff, paragraphs 5, 6, 7, 8 and 12 of the statement of defence is denied.”
This conduct of the respondent in filing a reply in reaction to the defence filed as a whole, and its specific reaction to the facts pleaded in paragraphs 6 and 7 in particular, was in order as whatever facts that were pleaded by way of defence were indications of the evidence that would be led by way of defence to the action for trespass. Having therefore stated facts in his defence, the appellant cannot be heard to say that some of those facts pleaded were not intended as his defence as shown from the excerpts in his submissions quoted supra. What is even intriguing is that, he also led evidence, by way of cross-examination, to show that the assignment to the respondent breached a clause in Exhibit 1 and also contravened the Minerals and Mining Laws as pleaded in paragraphs 6 and 7 of his statement of defence.
It is also pertinent to note that grounds (c) and (e) of his grounds of appeal, and the copious submissions in respect of them, show his reliance on paragraphs 6 and 7 of his statement of defence, in addition to the averments in paragraphs 10, 11 and 12, as answers to the charge of trespass.
Having pointed out the functions and importance of pleadings in an action, and the fact that a party who has made averments in his pleadings and given evidence in an attempt to prove them, cannot later turn round to say in his submissions that those averments were not the basis of his entry onto the land in dispute, I shall now proceed to consider the grounds of appeal to see if there are any merits in them.
As indicated from the onset, grounds (a), (b), (c) and (h), being complaints about the trial judge’s assessment of the evidence led at the trial, can all be dealt with under what is usually termed as the omnibus ground about the judgment being against the weight of the evidence. From the pleadings, in addition to issues i, ii and iii, other issues that arose for determination were; whether or not the assignment to the respondent had the consent of the head lessor; whether or not the assignment contravened the provisions of the Minerals and Mining Laws and; whether or not the declaration of the disputed area as a planned area extinguished the interest of the respondent.
In reaction to the allegations of trespass, the appellant pleaded in paragraphs 6 and 8 that the assignment was null and void as having breached a clause in the head lease, Exhibit 1, and further that when the original lessee’s attention was drawn to the breach, it did nothing. These averments were denied in the respondent’s reply in paragraph 2 quoted earlier. Issues were thus joined as to whether or not the assignment to the respondent was with or without the consent of the appellant’s family. Though the defendant, the appellant who alleged positively that the assignment was without the consent of his family, assumed the burden of proof on that issue. He failed to adduce any evidence to support the averment but merely repeated the averments from the witness box. As indicated, the lease, Exhibit 1, was signed by his head of family with the appellant and two others, including the family secretary, being witnesses. The assignment to the respondent was in 1985 and despite the allegation in paragraph 8 of the defence that Sand, Gravel and Stone Company Ltd.’s attention was drawn to the breach in the clause in the lease and it did nothing, the appellant did not call any member of his family to support this averment. He never also told or indicated to the court what action the family took against the original lessee for the alleged breach of a clause in the lease or why the family failed to exercise its right of re-entry from 1985 until 2008 when he went onto the land. There is also no indication as to when the then head of family, Kobina Kwansen died, and when the appellant became the successor and why the family did not act all this while.
From a reading of clause 8(a) of Exhibit 1, the consent was not required to be in writing and so the fact that the appellant’s family failed to act upon the alleged breach of the clause in the lease all this while can only mean that the necessary consent was obtained before the assignment to the respondent. My view is buttressed by the evidence showing that the respondent was in undisturbed possession and occupation from 1985 until 2008. As held by Ollenu J, in Khoury v. Richter, High Court dated 8th December 1958:
“Where a party makes an averment capable of proof in some positive way e.g. by production of documents, description of things, reference to other facts, and instances and his averment is denied, he does not prove it by going into the witness box and repeating the 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.”
The above statement has been applied in many cases including Majolagbe v. Larbi  G.L.R. 190 at 192; and Baah Ltd. v. Saleh  1 G.L.R. 119. The appellant therefore failed to satisfy the court that the assignment to the respondent was without the consent of his family as required by clause 8(a) of exhibit 1. The evidence rather suggest that the respondent’s long uninterrupted possession and occupation is conclusive presumption that such consent was obtained.
As to whether or not the appellant went onto the land in dispute and gave portions out to developers, despite his denial of paragraphs 7, 8 and 9 of the statement of claim in his general denial in paragraph 1 of the statement of defence, as well as in paragraphs 10 and 11, the evidence clearly show that he did go onto the land and gave portions to developers. This is clear from the evidence of PW1, appearing at pages 76 to 80 of the record of appeal, as well as the appellant’s answers in cross-examination, pages 94 and 95, where he admitted it and even tried to justify it.
As rightly held by the trial judge, at the time the appellant went onto the land in 2008 and started to grant portions to developers, he had not taken any action to re-enter the land assuming that there was indeed a breach of clause 8(a) of Exhibit 1, as required by the provisions of section 29 of the Conveyancing Act 1973, Act 175. As was also submitted on behalf of the respondent, and supported by the evidence, the respondent was in lawful possession and the appellant’s family reversionary interest had not accrued. His entry onto the land in the circumstances therefore amounted to trespass having regard to the authorities cited on behalf of the respondent, and referred earlier in this judgment, on what constitutes trespass to land.
With regard to ground (h) about the trial judge having failed to give adequate consideration to the appellant’s case, what I can say is that the appellant failed to point out which pieces of evidence appearing on the record in his favour, which were either ignored or applied against him, and but for which the judgment would have been otherwise.
As indicated, he failed to produce any evidence in support of his contention that clause 8(a) of Exhibit 1 had been breached and as such the court had no business considering the legal effect of a breach of a clause in the lease.
He also alleged that the court erred in holding that the mining laws were not applicable in the matter. Is his complaint against this holding justified? I do not think so because a critical look at Exhibit A will show that at the time SAND, GRAVEL AND STONE COMPANY LTD. purported to assign its quarrying rights in the disputed land to the respondent, there was no quarrying right to be assigned, for it is clearly stated in clause 5 of exhibit A that the Quarrying Agreement had expired and that an application had been made to the Government for renewal without indicating the date the application for renewal was made. As the mining licence had expired as at the time of the assignment of its interest to the respondent, there was no quarrying right in Sand, Gravel and Stone Company Ltd. which it could assign to the respondent and as such, the prior consent of the minister, as required by the mining law in existence at the time, was not necessary. The trial judge was therefore justified in holding that the Minerals and Mining Laws were not applicable.
The other defence raised by the appellant, as contained in paragraphs 10 and 12 of his statement of defence is about the respondent’s rights in the disputed land having been extinguished by virtue of the area been declared a planned area by the Department of Town and Country Planning. From the evidence led at the trial, the last scheme for the area was in 2008, the year the appellant went onto the land in dispute. The respondent, by way of reply per paragraph 3 at page 12 of the record of appeal, denied the averments and contended that any such purported zoning was a nullity as he had not authorised it.
The appellant, in his evidence, sought to say that it was the department of Town and Country Planning that had in the exercise of its powers, declared the area a planned area and zoned it for residential purposes. The witness he called from the department, did not however help his case much as the witness said he did not know who caused the area to be zoned but also stated that such an exercise is usually carried out in consultation with the land owners. See page 108 of the record of appeal.
Learned counsel for appellant, in his written submissions, sought to say that the department of Town and Country Planning did not need to consult any landowner before declaring an area a planned area and sought to quote from Ghana Land Law and Conveyancing by B.J. Da Rocha and C.H.K. Lodoh to justify the assertion. Learned counsel for the respondent however contended that not only will such powers be arbitrary and unconscionable, but also that it will contravene article 18 of the Constitution 1992 which guaranteed property rights and non-interference with same.
Section 2 of the Town and Country Planning Act 1945, CAP 84 provides as follows:
“S.2. Declaration of planning area
(1) Where the minster, after consultation with the relevant local governing authority, is of the opinion that a scheme should be made for an area, the minister may by executive instrument declare that area a planning area.
(2) The executive instrument shall come into operation on the day of its publication in the Gazette and shall cease to have effect if within three years from the day of a scheme in respect of a planning area or a part of it has not been approved under section 13.
(3) A copy of the instrument shall also be posted at the places within the planning area as directed by the minister.
(4) When an area has been declared a planning area under this section, the value of all building or land in the area shall, for the purpose of determining the amount of compensation or betterment payable under this Act, be deemed to be the value of the building or land on the day twelve months immediately prior to the declaration or in the case of a building erected after the day but before the date on which the area was declared a planning area, the value of the building at the time of completion.
Section 2 of the Town and Country Planning Act, 1945, CAP 84 sets out in detail how an area is declared a planning area. From the detailed provisions, this is usually done by an executive instrument by the minister in consultation with the relevant local governing authority. See subsection of section 2 of the Act. By subsection (2) the executive instrument shall come into effect on the day of its publication in the Gazette and shall cease to have effect if not approved within three years. By subsection (3), the minister shall direct copies of the instrument to be posted at places within the planning area. Subsection (4) then provides for the valuation of all properties in the area for the purposes of compensation.
Even though section 2 of the Town and Country Planning Act 1945, CAP 84 does not say anything about the land owner being consulted before an area can be declared a planned area, from the detailed provisions concerning what is to be done, the respondent, who has been found to be on the land since 1985, could not have failed to see copies of the instrument that would have been posted on portions of the land even if it did not see the gazette publication. Since the respondent has structures on the land, such structures and even the land would have been valued for the purposes of compensation as stipulated in section 2(4) of CAP 84. The valuation of buildings or the land could not have been done on the blind side of the respondent who was able to detect the entry of the appellant onto the land very quickly.
As the respondent denied that the area had been declared a planned area, the appellant, who asserted positively, had the burden of proving it by adducing the requisite facts and evidence to satisfy the court, on the preponderance of the probabilities, that the area has indeed been declared a planned area. It is true the appellant supoened an officer from Town and Country Planning Department of the Sekondi-Takoradi Metropolitan Assembly to support his claim that the area has been declared a planned area, but as indicated earlier, he did not help the appellant’s case much apart from saying that the current scheme for the disputed area was in 2008.
Assuming that there is planning scheme in respect of the area in dispute as Exhibit 3 tries to show, it is to be pointed out that an area is declared a planned area by an executive instrument and not the scheme as provided in section 2(2) of CAP 84. A scheme only comes into place after an area has been declared a planned area upon an executive instrument. See section 8 of CAP 84 which provides that the minister shall in consultation with the committee provided for under section 7, frame a scheme for the planning area. Section 9(2)-(5) of CAP 84 even provides for different categories of schemes classified as “preliminary”, “supplementary” and “final”. Exhibit 3 only shows a revised physical development plan from the physical planning department of STMA-Sekondi and nothing more.
From the evidence led by the appellant, he again failed to discharge the evidential burden of satisfying the court that the disputed land has been declared a planned area. As indicated, apart from his failure to produce the executive instrument declaring the area as a planned area, from what is required to be done before an area is declared a planned area, the respondent would certainly have been aware of it. It is only where the appellant has led evidence to satisfy the court that the disputed area has in truth and infact been declared a planned area that the trial court would be called upon to consider its effect on the respondent’s claim in respect of the land. His complaint per ground (f) of the grounds of appeal is therefore unjustified.
It was also contended on behalf of the appellant that with the area being declared a planned area, the respondent’s interest was extinguished as it could not use the land for farming purposes, which was the purpose for which the original lease was granted.
Assuming without admitting that the disputed land had infact and in truth been declared a planned area, will these assertions of the appellant in his submissions be right? From his evidence and Exhibit 3, the scheme for the disputed land is for residential and commercial purposes. If this is so, then the respondent’s interest would not have been extinguished because, from Exhibit 1, clause 5(b), one of the rights granted the lessee was to “build houses and farming structures” on the land and this right, is also contained in clause 2 of Exhibit A, the Deed of Assignment to the respondent. The appellant’s submission that he entered onto the disputed land because the decision declaring it a planned area extinguished the respondent’s interest in the land, because its interest was limited to farming, and which is inconsistent with the current scheme, is not supported by documentary evidence led at the trial.
I shall now consider grounds (g) and (i) which impugned the manner the trial judge exercised his discretion in the award of damages and cost. The written submissions on behalf of the appellant was limited to the award of damages meaning that he had abandoned ground (i) in respect of the cost.
As a general rule, an appeal court will not interfere with the exercise of discretion by a court except in exceptional circumstances. The Supreme Court in Crentsil v. Crentsil  2 G.L.R. 171 at 175, quoted the following passage from the judgment Swinfen Eady MR in Wickins v. Wickins  p.265 at 272 C.A. for the general rule:
“Where Parliament has invested the court with a discretion which has to be exercised in an almost inexhaustible variety of delicate and difficult circumstances, and where Parliament has not thought it fit to define or specify any cases or classes of cases fit for its application, this court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised, or to place greater fetters upon the judge of the Divorce Division than the legislature has thought it fit to impose…”
In that same case, the court also quoted the following passage of Viscount Simon L.C. in Blunt v. Blunt  A.C. 517 at 518 H.C.:
“An appeal against the exercise of a court’s discretion can only succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account; but the appeal is not from the discretion of the court to the discretion of the appellate court.”
In Traboulsi v. Patterson Zachonis  1 G.L.R. 133 at 138 C.A., Azu Crabbe J.S.C. quoted the following passage from Buabeng v. Forkuo  C.C. 58 on when an appellate court may interfere with the discretion exercised by a court:
“It seems to me, having regard to the propositions of the law contained in the passages quoted above, that an appellant, who impugn an order made by a judge in the exercise of his discretion, assumes the burden of making the appeal court feel clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in his favour or that there has been a miscarriage of justice. The appeal court will readily reverse the order if it comes to the clear conclusion that the judge did not take the right matters into consideration or give them the right weight.”
In Sappor v. Wigitab Ltd. [2007-2008] 1 S.C.G.L.R. 676 at 679, the court, per Wood J.S.C. (as she then was) endorsed the principles enunciated in Nkrumah v. Serwah [1984-86] 2 G.L.R. 725 that an appellate court would interfere with discretion exercised by a lower court in the following circumstances: where the lower court applied wrong principles; where the conclusions reached would work manifest injustice; where the discretion was exercised on wrong or inadequate material; or where the exercise of the discretion was arbitrary, capricious or where it was based on uninformed conclusions.
The appellant’s complaint is that the trial judge did not indicate what in the evidence informed his decision to award the damages he did. It is true that the trial judge did not explain what aspects of the evidence informed his decision to award the damages he did. Be that as it may, being an exercise of discretion, and having indicated in summary form why he made the award, the appellant, who is impugning that exercise of discretion, must bring himself within some of the criteria laid down in the decided cases before this court can interfere. From the principles laid down in the decided cases, I am afraid the appellant made no attempt to satisfy this court why it should interfere with the discretion already exercised by the trial judge. As Badoo J.S.C. said in Kyenkyenhene v. Adu [2003-2004] 1 S.C.G.L.R. 142 upon reliance on Charles Osenton & Co. v. Johnston  AC 130, H.L. an appellate court is not at liberty to merely substitute its own exercise of discretion for the discretion exercised by the trial judge even if it would have exercised its discretion in a different way if it were exercising the original discretion. Apart from saying that the trial judge did not expatiate what aspects of the evidence informed his exercise of discretion, the appellant has not also demonstrated that the discretion was arbitrary, capricious or that the award was not warranted by the circumstances of the case. As submitted by counsel for the respondent, the land was resurveyed and there was evidence that the appellant had given out several plots to developers. This ground of appeal also therefore fails and is accordingly dismissed.
In conclusion therefore, having found that there is no merit in all the grounds of appeal filed, the appeal is therefore dismissed and the judgment of the High Court, Sekondi dated 29th January, 2015 is hereby affirmed.