By his amended writ of summons and statement of claim filed on 04/07/2011, the Plaintiff herein claimed against the Defendants herein jointly and severally for these reliefs:

Loss of rental income from the building amounting to GH¢ 108,000.00

Interest on the loan contracted to finance the building amounting to 72,000 Euros or its cedi equivalent on the day of payment

Depreciation and deterioration in the physical structure of the building amounting to GH¢37,000

Escalation in the cost of completing the building estimated to be GH¢70,000.00

General damages for breach of contract between the parties

Costs

Any other reliefs.

A summary of the Plaintiff’s case is that he acquired a piece of land at Brunkon in the Kwabre District of the Ashanti Region described as Plot numbers 2 and 4 block IV. Between the year 2000 and 2001, he sourced funding and commenced the construction of a two storey residential house. By 2002, the building had reached roofing level but the 1^st Defendant caused it to be marked for demolition as No. DUR/RRP/BR 14 and also stopped the construction. In 2007, the 1^st Defendant confirmed its notice to the Plaintiff that his property had been affected by the proposed Kumasi Outer Ring Road project and would be demolished. Consequent to this, Plaintiff was requested to submit his indenture and other documents of ownership on the property to the Kumasi Metropolitan Roads Engineer for onward transmission to the 2^nd Defendant for assessment of compensation. In April, 2009, the 2^nd Defendant communicated the assessed value to the Plaintiff and requested him to indicate his acceptance which he did. Plaintiff then cancelled all arrangements for completion of the building. In April 2011, the Defendants issued a circular to the effect that the road project had been reviewed and advised all claimants for compensation, including the Plaintiff, to continue their projects. It was the Plaintiff’s case that his building, which had been left at the mercy of the weather, has seriously deteriorated. The prices of building materials have also shot up over 100% from the 2002 levels and the loan which he contracted to put up the building continue to attract interest. He also intended to rent out the house and is therefore claiming loss of rental income.

The Plaintiff’s assertion that the 1^st Defendant marked his property for demolition in the year 2002 did not do down well with the 1^st and 3^rd Defendants.

Having denied this assertion, they pleaded that the 1^st Defendant did not indicate that demolition will take place prior to the publication of the Executive Instrument (E.I.55) in the year 2008.They explained that as of that time, there was no acquisition of the Road Right of Way. In sharp contrast to this averment, they pleaded in paragraph 8 of their defence that by a letter dated February 2007, the 1^st Defendant indicated to all affected persons or properties that their respective properties will be affected by the Arterial Road design. They however admitted that the 1^st Defendant requested the Plaintiff to submit his documents subsequent to the publication of the E.I. in 2008. The Plaintiff’s assertion that he accepted an amount of GH¢109, 486, 92 which had been approved by the 2^nd Defendant as compensation was also admitted by the 1^st and 3^rd Defendants but they denied the existence of any agreement between the parties arising out of that acceptance. Issues were joined on the alleged loss of rental income, the interest charges on a supposed loan and the escalating cost of building materials.

As regards the offer for compensation made to the Plaintiff, the 2^nd Defendant averred that it was merely performing its duty as a government valuer by placing a monetary value on the Plaintiff’s property which said act cannot be interpreted as an encumbrance on the property. Besides, the 2^nd Defendant did not interrupt the Plaintiff’s building in any way and did not take physical possession of it. The 2^nd Defendant denied the existence of any agreement between it and the Plaintiff for the payment of any sum of money.

The issues to be determined by this court are:

Whether or not the 1^st Defendant marked Plaintiff’s property for demolition in 2002 and confirmed its demolition in 2007?

Whether there was an agreement between the parties for the payment of compensation of GH¢109,486.92?

Whether the Defendants breached the agreement to pay the said compensation to the Plaintiff?

Whether or not the Plaintiff has suffered any loss as a result of the said breach if at all?

Whether the Plaintiff is entitled to the reliefs endorsed on his writ of summons and statement of claim?

In his evidence, the Plaintiff said he received a letter from Urban Roads

(1^st Defendant) in the year 2002 to stop the construction on his property on plots numbered 2 and 4 block IV, Brunkon , which was at the roofing level. In support of this, he tendered a letter from Urban Roads dated 19/02/2007 as exhibit ‘C’. According to the Plaintiff, Urban Roads wrote to him again in the year 2007, requesting him to produce his documents covering this property which he did. The evidence on the year 2002 letter was denied by the 1^st Defendant. Counsel for the 1^st Defendant sought to discredit this evidence in cross-examination as shown by excerpts from the cross-examination of the Plaintiff on 29/10/2013 below:

Q. When were you notified by the Department of Urban Roads that your building had been earmarked for demolition?

A. 2002

Q. I am putting it to you that you were not notified in 2002?

A. I have the letter which was sent to me in connection with that.

Q. Exhibit ‘C’ is the demolition notice served on you and the date on it is 2007?

A. The date on exhibit ‘C’ is 2007. In 2002, they wrote ‘a stop work’ on the building.

Q. You told the court that they wrote to you in 2002 and the subject matter of the letter was the demolition. Where is that letter?

A. It is with my lawyer.

This letter was never tendered in evidence by the Plaintiff. The 1^st Defendant introduced evidence to the contrary. According to the 1^st Defendant, in the years 2002, 2003 and 2004, it engaged a consultant to do a study to identify the outer ring road. Thus, in the year 2007, all persons affected by the proposed project were notified in writing (exhibit ‘C’). This piece of evidence was not discredited by the Plaintiff in cross-examination. The legal effect is that the

Plaintiff is deemed to have admitted the evidence that the consultant engaged by the 1^st Defendant carried out its mandate between 2002 and 2004. A case in point is Takoradi Floor Mills v Samir Faris (2005-2006) SCGLR 882. At page 890 of the report, Ansah JSC affirmed the statement of Brobbey J (as he then was) in Hammond v Amuah (1991) 1 GLR 89 at 91 as follows:

“ … when a party has given evidence of a material fact and is not cross-examined upon it, he need not call further evidence of that fact: see Fori v Ayeribi (1966) GLR 627. Indeed it was also held in the case of Quagraine v Adams (1981) GLR 599, CA that where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by failure to cross-examine.”

From the forgoing, it can be inferred that between 2002 and 2004, a consultant was working tirelessly to come out with a report for the proposed outer ring road. This is indeed a herculean task which could not have been done within a very short period of time. Even though the consultant’s report is not in evidence, it may be reasonably inferred from the evidence of the 1^st defendant’s representative that the study was not completed in 2002. Thus, the 1^st Defendant could not have written to any Project Affected Person (PAP) and for that matter the Plaintiff, in the year 2002 when the study had just commenced.

The submissions made by counsel for the Plaintiff on this issue are not in the least convincing. He had argued that since the marking was done before exhibit ‘C’ was written, it is conclusive that the marking was done in the year 2002.

The law on proof in civil cases is well settled. A party who makes positive assertions in his pleadings which are denied by his opponent assumes the burden of proof on those facts. This principle was expounded by Kpegah JA (as he then was) in the case of Zambrama v Segbedzi (1991) 2 GLR 221 and has since been applied in more recent cases such as Continental Plastics v IMC Technique GMBH (2009) SCGLR 298 at 307 per Georgina Woode CJ and Yaa Kwesi v Arhin Davies (2007-2008) SCGLR 50. In the event of failure to adduce any convincing and credible evidence, the proponent of those facts loses on that issue.

The Plaintiff before me has failed to produce the alleged letter which was written to him in the year 2002 pertaining to the demolition of his property in issue. In the worst case scenario, he could have furnished the court with a photograph depicting the 2002 marking for the court to form its opinion. That was also not done. It is not in dispute that exhibit ‘C’, dated 19/02/2007,was written after the marking had been made but the Plaintiff has been unable to prove on the balance of probabilities that the marking was done in the year 2002, when the proposed road study had just begun. Having failed to prove this fact by cogent evidence, the Plaintiff’s story that his property was earmarked for demolition in 2002 cannot stand. I find that the only credible evidence of the demolition is the notice given on 19/02/2007 and which is contained in exhibit C.

Next, I will determine whether or not there is an agreement between the parties for payment of GH¢109,486.92 as compensation and whether there is a breach of that agreement by the Defendants.

The Plaintiff’s stance as can be gleaned from his evidence is that the offer contained in exhibit ‘D’ and his acceptance as per exhibit ‘E’ constitute a binding contract between the parties and it must be enforced. His counsel reiterated this position in his written submissions . Further, counsel made reference to

Cheshire Fifoot & Furston LAW OF CONTRACT, 11^th ed. Page 28 and urged the court to infer the existence of a contract when there is a firm offer and acceptance.

At the trial, Evidence was adduced on behalf of the 1^st and 3^rd Defendants by a representative of the 1^st Defendant. The 1^st and 3^rd Defendants denied the existence of any agreement with the Plaintiff in paragraph 12 of their statement of defence. No cogent evidence from which the existence of a contract could be inferred was adduced on their behalf at the trial.

Interestingly, their counsel made submissions which rather support the Plaintiff’s position on the question of contract even though they had denied it in their pleadings. He argued that the 2^nd Defendant acted as an agent of the 1^st Defendant in communicating exhibit ‘D’ to the Plaintiff. Based on this, he conceded that there is an agreement between the Plaintiff and the 1^st Defendant which can only be enforced upon the demolition of the Plaintiff’s property in issue. Since the planned demolition never took place to the knowledge of the Plaintiff, that agreement becomes unenforceable in his view. He conceded that the Plaintiff is entitled to damages for the inconvenience suffered by virtue of the executive decision which reviewed the road project. Without much ado, counsel invited the court to assess damages by taking into account what may be fairly and reasonably arising naturally from the breach and to accept the value given by the 2^nd Defendant. He cited and relied on two English cases: 1) Hadley v Bazendale (1854) 9 Ex 341 and 2) Dunlop Pneumatic Tyre Co. Ltd v New Garage & Motor Co Ltd (1915) AC 79.

The above argument on the existence of a contract between the Plaintiff and the 1^st Defendant is thought provoking. Counsel has inferred the existence of a contract on the basis that the 2^nd Defendant acted as an agent of the 1^st Defendant when it made an offer to the Plaintiff. This also seems to be the thinking of counsel for the Plaintiff. Are they right in this regard? To be able to infer the existence of a contract on the basis of agency, certain matters need to be addressed. The first is, what was the nature of the authority given to Land Valuation Board (LVB) relative to the Plaintiff’s property which had been earmarked for demolition? Second, was the 2^nd Defendant’s act within the scope of its authority? Third, can the 1^st Defendant be bound by the 2^nd Defendants acts contained in exhibit ‘D’?

The power that an agent has to bind the principal depends on the agent’s authority. This could be express, implied or ostensible authority. The first speaks for itself, that is, when the authority is expressly stated in an agreement or document. Implied authority derives either from the type of work which the agent is doing, or the place where the agent is working. When authority is derived from the type of work, it is usually attached to a particular job. If it is derived from the place of work, it may be tied to the customs of that place of business. Ostensible authority is inferred when a principal, by words or conduct, leads a third party to believe that the agent has authority, when in fact the agent does not. This is sometimes referred to as ‘agency by estoppel’. See Stone, Richard (1996) CONTRACT LAW Cavendish Publishing Ltd. The ingredients of this type of authority were stated in the case of Rama Corp Ltd v Proved Tin & General Investments Ltd (1952) 1 All ER 554 as: i) a representation emanating from a principal , ii) reliance on the representation and iii) alteration of one’s position resulting from such reliance.

In that case, by the articles of association of the defendant company, the board of directors were empowered to delegate powers to a committee consisting of a member or members of their body. Without the authority of the other members of the board, a director of the defendant company purported to enter into an agreement on the company’s behalf with an agent of the Plaintiff Company who had no knowledge of the contents of the articles of association of the defendant company or of the board’s right to delegate powers to a committee. On a claim by the Plaintiff Company arising out of the purported agreement, the court held:

“ as at the time of the making of the purported agreement the plaintiff company, through their agent, had no knowledge of the defendant company’s articles of association and the powers of delegation contained therein, the Plaintiff company could not rely on those articles as conferring ostensible or apparent authority on the director of the defendant company to make the agreement on behalf of the defendant company, and therefore, there was no authority in the director to enter into the agreement on their behalf and so were not liable under the agreement.”

But, in Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal), Ltd & Another (1964) 1 All ER 630, the board of a company had the power to appoint a managing director in their articles of association but did not do it. K. acted throughout as Managing Director and was in fact held out as managing Director and entered into a contract to buy an estate. The court held among other things that the ostensible authority thus conferred on K. could bind the Company since its articles of association in fact provided for there being a managing Director of the Company. The court further held (head note iii):

‘the fact that the plaintiffs had not examined the company’s articles of association and had not enquired whether K. was properly appointed managing director did not prevent their establishing their claim against the company based on their reliance on K.’s ostensible authority.”

At page 644 of the report, Diplock, L.J. made this statement:

‘… An “apparent” or “ostensible” authority, is a legal relationship between the principal and the contractor, created by a representation, made by the principal to the contractor, intended to be and in fact acted on by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the “apparent” authority, so as to render the principal liable to perform any obligations imposed on him by such contract…’

On the evidence before me, the 1^st Defendant never represented in its February, 2007 correspondence to the Plaintiff, exhibit ‘C’, that the 2^nd Defendant was in any way authorised to make an offer of compensation to the Plaintiff. The said letter stated in part, that the Plaintiff was entitled to compensation and was thus required to submit documents of ownership to the Kumasi Metropolitan Roads Engineer, for onward transmission to the LVB. By exhibit ‘C’, a date was to be communicated to the Plaintiff to receive his compensation afterwards. By the statute which governs the operations of the LVB, as argued by counsel for the 2^nd Defendant, its core mandate is the placing of values on land. In other words, the LVB, as its name suggests, does land valuation. It does not acquire land and does not pay compensation in respect of land. Taking exhibit ‘D’ on its face value and construing it in the ordinary way, there is no doubt that the Acting Regional head of the LVB at the time, Samuel Anini, intended to make an offer of compensation of GH¢109, 486.92 to the Plaintiff and invited him to indicate his acceptance. If the letter had just ended in the first paragraph informing the Plaintiff of an approved amount as compensation in respect of his property, that could be construed as an act within the express authority of the 2^nd Defendant. The 2^nd part of the letter where an offer was made fell outside this express authority. It could not have been made under any “apparent” or ‘ostensible” authority since the 1^st Defendant had not made any representation to the Plaintiff to the effect that the 2^nd Defendant will communicate any offer to him. I give a lot of credit to the representative of the 1^st Defendant who testified. He admitted in cross-examination by counsel for the Plaintiff that the 2^nd Defendant’s duty was to forward its recommendations or report to the 1^st Defendant to act on. I share that view. Mr. Samuel Anini had no authority, express, implied or apparent, to make any offer to the Plaintiff, a Project Affected person. This was outside the scope of his agency so to speak.

In what capacity and by what authority, therefore, did Samuel Anini make an offer of compensation and invite the Plaintiff to communicate his acceptance to him? On the totality of the evidence before me, I think Samuel Anini, whilst acting as an agent for the 1^st Defendant for the purpose of land valuation , exceeded his authority by making that offer directly to the Plaintiff. The Plaintiff also communicated his acceptance to the 2^nd Defendant. That letter, exhibit ‘E’, was not copied to the 1^st Defendant and there is no evidence that the 1^st Defendant had notice of it at the time it was written. Here is a case where a Regional Head acted without authority from its principal, the 1^st Defendant. There is no evidence that the 1^st Defendant has in any way ratified the purported agreement that was created. So, in my view, no contract exists between the Plaintiff and the 1^st Defendant on a compensation amount.

Since Mr. Samuel Anini had no authority, expressly from the 1^st Defendant, or impliedly from the nature of his job or work place to enter into an agreement with the Plaintiff, there cannot also be a contract between the Plaintiff and the 2^nd Defendant.

The 3^rd Defendant has been sued as a nominal defendant by virtue of Article 88 of the 1992 Constitution which provides that all civil proceedings against the state shall be instituted against the Attorney-General as defendant and not because it was directly involved in the purported agreement. Perhaps this was done for the purpose of payment should the Plaintiff’s action succeed. The 1^st and 2^nd Defendants are state organizations. Indeed, the 2^nd Defendant is now a division of the Lands Commission. No contract can be inferred and none exists between the Plaintiff and the 3^rd Defendant. The 3^rd Defendant’s liability is linked to that of the 1^st and 2^nd Defendants.

It has now become clear that I do not subscribe to the views of Counsel for the 1^st and 3^rd Defendants that there is a contract between his clients and the Plaintiff but the same is unenforceable in the light of an executive decision to review the Road project. Instead, I am convinced that, the arguments made by counsel for the 2^nd Defendant on the issue of agreement are correct to some extent. She had argued that according to section 5 (j) of the Lands Commission Act, 2008, Act 767, the functions of the Lands Commission include providing land and land related valuation services. She then made reference to section 22(a) of the same Act and submitted that its core functions include assessing the compensation payable upon acquisition of land by the government. Her position was that merely informing the Plaintiff of an approved compensation amount cannot be interpreted as a contract with the Plaintiff. And, in any case, it was the Urban Roads which stopped the work. Counsel’s stance would have been fully right had the letter, exhibit ‘D’, ended with the first paragraph. But, the 2^nd Defendant’s Ag. Regional head proceeded to make an offer and invited an acceptance from the Plaintiff. That is where the problem lies. I do not intend to revisit the question of “agency” and the fact that the 2^nd Defendant’s Ag. Regional head had no authority to do what he did so as to bind the Defendants. I think my earlier conclusion as regards the 1^st Defendant also applies to the 2^nd Defendant.

Having found that there is no valid contract between the Plaintiff and the Defendants, the issue of breach of contract becomes redundant. Be that as it may, the Plaintiff could not legally continue with the construction on his property from the year 2007 when he received a formal notice of demolition from the 1^st Defendant and is therefore entitled to some compensation for the loss he has suffered. In this light, I will uphold the submissions made on behalf of the 1^st and 3^rd Defendants that the Plaintiff is entitled to damages.

By the endorsement on the Plaintiff’s writ of summons and statement of claim, he is asking for special damages. That being the case, he ought to have particularized each head of special damages in his statement of claim for the Defendants to react to them. In paragraph 17 of his statement of claim, he pleaded that he had spent approximately 67 thousand Euros on the building, made up of personal savings, loans and credit from various sources. He failed to plead the source of the loan and the quantum. How much of this amount came from his personal savings? All these were not pleaded.

Whilst giving evidence in court, the Plaintiff said he took a loan from a Bank in Frankfurt but failed to disclose the name of the bank. In cross-examination, he indicated that the loan amount was 5 thousand Euros and had documentation to that effect. As to be expected, no documentation on the alleged loan transaction was brought to the notice of the court at any time during the trial. If the said documentation really exists, the Plaintiff ought to have sought leave of the court to tender it before closing his case. Now, to the personal savings. From the writ, the Plaintiff is ordinarily resident in Germany. It can be presumed that the alleged savings were brought into Ghana from Germany. By what means was the money brought into the country? If the monies were brought in through bank transfers, the Plaintiff could have tendered documentary evidence to that effect. Assuming the Plaintiff withdrew cash from his bank in Germany, he could have furnished the court with his savings or checking account details as proof. The Plaintiff is also claiming 72,000 Euros as interest payment on the loan he contracted. Granted that the principal loan amount was 5,000 Euros as alleged by the Plaintiff, what was the rate of interest? If he genuinely paid that amount of interest on a 5,000 euro loan, certainly, there will be documentary or electronic evidence of the statement of account and the interest rate could have been inferred from that. It does not make economic sense for the Plaintiff to look on for a 5,000 euro loan, as alleged by him, to accumulate 72,000 Euros interest.

Conversely, if the Plaintiff paid off the loan and now wants a reimbursement together with interest, that ought to have been particularised and proved. The Plaintiff’s evidence that his property has deteriorated over the years cannot be swept under the carpet. He is asking the Defendants to pay him GH¢37, 000.00 for the deterioration. How did he arrive at that figure? Did he cause an expert to do a thorough assessment before arriving at that figure, noting that he is not a technical person? Where is proof of that assessment? What of the loss of rental income which he put at GH¢108,000.00? Rent from landed property depends on a lot of factors such as the neighbourhood, the finishing, furnishing and the like. For example, a two storey residential property at airport residential area in Accra with genuine marble tiles and other high quality finishing will definitely attract a higher rent than a similar structure in the hinterlands with plastic tiles and ordinary finishing. There is no evidence on record indicating how the Plaintiff’s house would have looked like if the construction had not been stopped. The claim of GH¢108,000.00 as loss of rental income, to me, is highly speculative and ridiculous.

However, the Plaintiff has demonstrated in his evidence that he will have to spend more money to complete his building in view of the ever rising cost of building materials such as cement and iron rods. On this point, I think the Plaintiff is justified.

The Plaintiff has not been able to prove the special damages by concrete and cogent evidence. The Supreme Court, Per Seth Twum JSC, held in AG v Faroe Atlantic Co. Ltd. (2005-2006) SCGLR 271 that special damages must be particularised and strictly proved. Also in Delmas Agency Gh Ltd v Food Distributors International (2007-2008) SCGLR 760, Dr Seth Twum stated:

“ Where a 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.”

In AG v Faroe Atlantic Co., referred to supra, his Lordship was of the view that general damages need not be proved. At page 276 of the report (holding 4), it is stated:

“… The court would not order particulars of general damages which were such as the law would presume to be the natural or probable consequence of the defendant’s act, arising by inference of the law and therefore not necessary to be proved by evidence. Hence, general damages might be averred generally…”

On the totality of the evidence on record, the Plaintiff’s claim for special damages cannot stand. Instead, general damages will be awarded. This should not be nominal in the light of the loss the Defendant has suffered. It is true that his building was not demolished. But, it is going to cost him more money than what would have been required to complete the building had the construction not been stopped. The building which has been left at the mercy of the weather as a result of the 1^st Defendant’s act will have to be put in good shape before the construction can continue. More importantly, the Plaintiff would have earned some income from this property if he was allowed to complete the building.

What then, should be the quantum? If the Plaintiff had attached a recent valuation report on the state of the property, that could have assisted the court in determining the quantum of damages but he is not obliged to prove general damages.

On the quantum of damages, counsel for the 1^st and 3^rd Defendants submitted that the measure must be proportionate to the loss suffered. He invited the court to uphold the figure indicated in the evidence of the 1^st Defendant’s representative being 10% of the 2012/2013 value of the Plaintiff’s property. That is, 10% of GH¢187,700.00 which will amount to approximately GH¢18,700.00. These figures were seriously challenged by counsel for the Plaintiff in cross-examination on the ground that they were cooked up. One would have expected the 1^st Defendant to tender a detailed valuation report for the court to form its own opinion. Instead, a simple letter indicating the figures was tendered, exhibit 2. This letter was written by the Land Valuation Division of the Lands Commission on 20/05/2012 and addressed to the Metro Roads Engineer, Department of Urban Roads, Metro Roads Unit, Kumasi. The contents are as follows:

RE: KUMASI OUTER RING ROAD PROJECT PENDING SUIT – OPPONG KYEKYEKU

With reference to your letter with reference no. DURK/CC1/1662/VOL 1 dated 8^th May 2012, I write to inform you that, Land Valuation Division of Lands Commission approved a compensation sum of One Hundred and nine Thousand, four hundred and eighty six Ghana Cedis, Ninety-Two Ghana pesewas (109,486.92) in 1997 to the subject property.

The present Value of the Approved Compensation sum amounts to GH¢ 187, 640.87. I am pleased to recommend ten percent (10%) of the present value; in the sum of Eighteen Thousand, Seven Hundred and Sixty-Four Ghana Cedis (GH¢18,764.00), as cost of disturbance and inconvenience to the Claimant.

SGD. REGIONAL VALUER

(KWABENA A. GYANG).

I share the sentiments of counsel for the Plaintiff that the figures in exhibit ‘2’ are not reliable. First, it was written in so much haste that the author placed a 1997 value on the property. Meanwhile, the land on which the plaintiff’s property is built was allocated to him on 15/03/1998 as per exhibit ‘A’. The Plaintiff filed his suit in the year 2011. He was not informed that the property would be re-valued to enable him exercise his statutory rights. Indeed, in the initial letter written to him, exhibit ‘C’, the Plaintiff was given the option to appoint a valuer to advise him on any valuation done by the Government valuer, the 2^nd Defendant herein. At the commencement of the trial, the parties were ordered to file documents they intend to rely on. Exhibit ‘2’ was never filed and brought to the notice of the Plaintiff until it was tendered in court with its unpardonable misleading date. I think the Plaintiff ought to have been given opportunity to cause a valuer to re-value the property.

Alternatively, the 1^st Defendant ought to have caused the revaluation report to be served on the Plaintiff for his comments. Without the full valuation report, how can the court determine that the figure quoted in exhibit ‘2’ represents the true value of the Plaintiff’s property as well as the other heads of claim? For instance, the 1^st Defendant’s representative said in his evidence-in-chief that the figure quoted by the 2^nd Defendant took into consideration loss of business and disturbance. Yet, exhibit ‘2’ talks of “cost of disturbance and inconvenience to the claimant.” It is not clear whether that phrase carries a technical meaning which includes loss of business. Indeed, if a genuine valuation had been done, why was it not brought to the notice of the court in the course of the trial for the court to form its own opinion? Inviting the court to accept a figure in exhibit ‘2’ without the valuation report giving details of how the figure was arrived at is very worrying and this goes against the probative value of exhibit ‘2’.

Exhibit 1 needs to be commented on. This is the circular which the 1^st Defendant wrote to all PAP on 29/04/2010. It reads:

PEOPLE AFFECTED BY THE PROJECT (PAP) ALONG THE OUTER RING ROAD IN KUMASI.

The Department of Urban Roads intends to undertake a review of the route/corridor of the Outer Ring Road.

The intention of this exercise is to reduce the heavy impact of people affected by the project in the previous selected corridor and reduce the cost of compensation.

In this regard, the Department would not prevent any PAP from continuing with the development of their properties since a new scheme will be developed to avoid most of the existing properties.

SGD

Dr. D.D. Darko

Ag. Director.

Was exhibit ‘1’ communicated to the Plaintiff and if so, when was this done and by what means? It is in the evidence of the 1^st Defendant’s representative that radio announcements were made to that effect. The same witness conceded that the Plaintiff was in Germany at the material time but he could not tell whether the Plaintiff was given a copy of this letter. This is what he told the court concerning the communication of the 2010 letter, exhibit ‘1’, to the Plaintiff:

“The Plaintiff, I believe, called and we told him about the letter. The Plaintiff was communicating with us from Germany. I am not sure whether we gave him a copy of the letter. Subsequently, we informed him about this development and that was when we received a writ from his lawyer that we had been summoned to court.”

The Plaintiff’s original writ of summons was filed on 04/06/2011. He filed an amended writ of summons on 04/07/2011 which was served on the Lands Commission on 07/07/2011. If the story of the 1^st Defendant’s representative that the Plaintiff caused the writ to be served on them at the time they communicated the review of the road project to him is true, then it may be reasonably inferred that the Plaintiff did not have notice of exhibit ‘1’ until over a year after it had been written. This should not operate to the Plaintiff’s disadvantage since the 1^st Defendant knew that the Plaintiff was outside the jurisdiction at that time. If the 1^st Defendant had taken reasonable steps to mail a copy of the circular,exhibit1, to the Plaintiff’s last known address in Ghana, the Plaintiff could have been imputed with notice thereof. This was not done.

So, on the totality of the evidence on record, I find that the Plaintiff could not continue with his construction from February, 2007 to on or about April, 2011, a period of approximately 50 months. I notice that the Plaintiff’s property was at the roofing level. If the Plaintiff is telling the court that he would have completed the building, but for the 1^st Defendant’s order, then it means that he had all the money that would have been used to do the same.

During this long period of waiting, it would have been reasonable for him to put this money in a low risk investment such as government bonds. That way, he would have earned interest and mitigate his losses as well. Taking into consideration the ever rising cost of building materials as well as the rate of inflation, I think an amount of GH¢40,000.00 will be adequate compensation for the Plaintiff. This is to be paid by the 1^st and 3^rd Defendants. After all, the building was not demolished. The land is intact. With this amount, he can conveniently rehabilitate the structure and then proceed with the development. In arriving at this figure, I have taken into account the fact that the 1^st Defendant did not act recklessly. Its decision was in the best interest of the nation of which the Plaintiff is apart.

to the issue of cost. This case suffered so many adjournments at the instance of the Defendants. On at least two occasions, the Plaintiff came from Germany to give evidence but the trial could not proceed. I have taken into consideration the provisions of Order 74 of C.I. 47 and award GH¢5,000.00 as cost in favour of the Plaintiff against the 1^st and 3^rd Defendants.