DOUGLAS CARL BOTWEH vs GHANA HIGHWAY AUTHORITY
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION),
    KUMASI - A.D 2019
DOUGLAS CARL BOTWEH - (Plaintiff)
GHANA HIGHWAY AUTHORITY - (Defendant)

DATE:  31ST JANUARY, 2018
SUIT NO:  OCC 84/2015
JUDGES:  DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS:  JAMES OSEI-KOFI FOR THE PLAINTIFF
YAW ACHEAMPONG BOAFO FOR THE DEFENDANT
JUDGMENT

 

On 11th December, 2014, the Plaintiff issued a writ of summons seeking for the following reliefs:

a)    An order against the Defendant for the payment of an amount of Forty-four Thousand and Thirty-five Cedis and seven pesewas GHC44035.07 being an outstanding balance of compensation due to the Plaintiff for the destruction of his building numbered Plot 1A Oduom-Bebire during the construction of Kumasi-Konongo road.

b)    Interest on relief (a) from 18 October 2007 till date of final Judgment.

c)    An order of payment of an amount of Thirteenth Thousand, Eight Hundred Ghana Cedis(GHC 13, 800.00) being compensation due the Plaintiff in respect of his property numbered Plot 9B Block F Oduom which was destroyed during the construction of the Kumasi- Konongo Road.

d)    Interest on the relief (c) from 18 October, 2007 till date of final judgment.

 

After unsuccessful attempts at settlement the following issues were set down for trial;

i.              Whether or not the Plaintiff is entitled to further compensation for the property destroyed in respect of Plot No 1A Oduom- Kumasi.

ii.             Whether or not the Plaintiff is entitled to compensation in respect of Plot No.9B block F Oduom-Kumasi.

 

The Plaintiff’s Case

The case of the plaintiff is that sometime in the year 2006, the Defendant institution was tasked to re-habilitate the Kumasi-Konongo road and the task affected two (2) properties owned by him i.e. Plot Number 1A and Plot Number 9BBlock F all situate at Oduom in Kumasi. That the compensation payable to him were valued at GHC 50,000.00 and GHC 13,800.00 respectively. It is the Plaintiff’s case that prior to a valuation conducted by the Defendant he was paid an amount of GHC 5,964.30 and that since the submission of his valuation report, all attempts to get Defendant to pay the outstanding compensation due him have been to no avail.

 

The Defendant’s Case

The Defendant denies that the Plaintiff is entitled to compensation in respect of Plots 1A and 9B Block F, Oduom since it only dealt with the Plaintiff in respect of only one property which is plot

Number 1A Block F and that the valuation report in respect of the said property produced a sum of GHC26, 660.00 (less the amount of GHC5, 964.30 advanced to him) as compensation due Plaintiff. Further, it is the case of the defendant that there has been no formal statutory approval for compensation in relation to Plot 9B Bock F, a bare land, allegedly owned by the Plaintiff.

 

The defendant contends that this bare land was only brought to their attention when the suit was instituted. It is also the case of the defendant that the valuation reports commissioned by the plaintiff are not binding on the Defendant unless statutorily approved by the Land Valuation Division (LVD) of the Lands Commission. The defendant also contends that it cannot be liable for any breach as it only served as a supervising engineer in the road works and that it is its employer, the Ministry of Roads and Highways who should be held liable if at all.

 

The Burden of Proof in Civil Suits Generally

As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version of the rival accounts to be more probable than its non-existence.

 

Indeed, this basic principle of proof in civil suits expounded in Zambrama V Segbedzie (1991) 2 GLR 221 has been subsequently applied in numerous cases including Takoradi Floor Mills v Samir Faris [2005/06] SCGLR 882; Continental Plastics Ltd v IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v Antwi [2010] SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728.

In Ackah v. Pergah Transport Limited and Others supra, Adinyira, JSC succinctly summed up the law, at page 736:

“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than it’s non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).”

Thus at the trial, the Plaintiff bore the burden of producing evidence and the burden of persuasion on the issue as to whether he is entitled to compensation in respect the two properties. The plaintiff was required to lead evidence to establish this claim and if he failed the court ought to enter judgment against him.

 

Propriety of the Defendant as a Party to the Suit

Before I tackle the issues which have been set down for determination, I will upon the invitation of counsel for the defendant determine the propriety of the defendant as a party to the suit. In his written address filed on behalf of the defendant, counsel for the defendant submitted that the defendant cannot be sued in this action. He argued that the defendant as a body corporate only acted as Supervising Engineer on behalf of the Government of Ghana through the Ministry in the execution of the contract that led to the claim and that the contract was awarded by the Government of Ghana acting through the Ministry. It was therefore the submission of counsel that the defendant was not the proper party to be sued in the circumstance.

 

I agree with counsel for the defendant that the capacity of a party to a suit is fundamental to the propriety of the suit and as such the issue of capacity could be raised at any time, which is why I have taken the liberty to determine the issue of capacity in spite of the fact that the defendant actively participated in the trial and the issue was not set out for determination in the trial. In fact, the participation of the defendant could not estop it from raising the issue. In Morkor v Kuma (No. 1) 1 GLR 721 the Supreme Court held in holding 3 that:

‘‘Accordingly, where in fact or law, a person was not a proper party to a suit, then no matter how actively the one had participated in a suit, that person had never been a proper party. In the instant case, judgment had been entered against the appellant and it would remain effective against her unless she took steps to set it aside. Since it was open to her at any time however belatedly, to dispute the propriety of her having been made a party to the suit, and she had been able to establish that the same was improper, justice demanded that she be struck out as a defendant. Her earlier participation could not operate to estop her from raising the objection.’’

The Ghana Highway Authority Act, 1997 (Act 540) which establishes the Ghana Highway Authority, the defendant herein provides in section 1(2) as follows:

“(2) The Ghana Highway Authority referred to in this Act as "the Authority" shall continue to have perpetual succession and a common seal and may sue and be sued in its corporate name.”

Section 2 of Act 540 also makes provision for the object of the Authority as follows:

“The Authority shall subject to the policies of the Ministry be responsible for the administration, control, development and maintenance of trunk roads and related facilities.”

 

Thus, in the cause of undertaking its mandate the defendant as a corporate entity with perpetual succession is capable of suing and could also be sued in its corporate name. In the present case, it is a road construction project that led to the claim. It is my considered opinion that the defendant was performing its statutory duty under section 2 of Act 540 when it earmarked part of the plaintiff’s property to be demolished for the purpose of road construction. According to the defendant’s own exhibit 3, the Land Valuation Division acted with the support of the defendant in assessing the value of the compensation payable to the plaintiff among other claimants. From exhibit 3, the assessment was made by the LVD at the request and as stated earlier, with the support of the defendant. Before the LVD’s valuation, the defendant had made an initial payment of GHC 5,964.30 to the plaintiff.

 

The defendant cannot, therefore, insulate itself from any liability flowing from the aforesaid statutory duty in the road construction and payment of compensation to affected persons. The duty of the court is to ensure that justice is done according to law and based on the evidence on record. Consequently, the fact that the plaintiff did not contest the alleged lack of capacity of the defendant when same was raised does not mean the court is barred from making an assessment over the issue based on the evidence on record. Thus, if there is evidence on record which contradicts a party’s assertion, the other party’s failure to deny the assertion does not make the said assertion unimpeachable. Ultimately, it is for the court to decide on the issue based on the evidence on record. In the result, I hold that the defendant was a proper party to the suit. Having determined, the propriety of the defendant as a necessary party to the suit, I now turn my attention to the merits of the suit by analyzing the issues seriatim.

 

Whether or not the Plaintiff is entitled to further compensation for the property destroyed in respect of Plot No 1A Oduom-Kumasi

In his written address filed on behalf of the plaintiff, counsel invited the court to enforcethe GHC 50,000 compensation value which was placed on his property, Plot No. 1A Oduom-Kumasi by the private valuer.

Counsel for the defendant on the other hand also submitted in his written address that should the court make a finding of fact that the plaintiff is the owner of the land (Plot No. 1A Oduom-Kumasi) and is entitled to compensation, the amount due him is GHC 26,660.00 as determined by the Land Valuation Board. This figure excludes the initial payment of GHC 5,964.30 made to the plaintiff by the defendant. Counsel for the defendant had submitted that the plaintiff failed to establish the fact that he is the owner of the property to entitle him to compensation in the first place.

 

He cited the Supreme Court decision in Boateng (No. 2) v Manu [2007-2008] SCGLR 1117 and submitted that the allocation paper covering the land which has been exhibited by the plaintiff cannot pass title to him. In his book, Land Law, Practice and Conveyancing in Ghana (Adwinsa Publications, Accra, 2015) p. 187-188, Justice Dennis Dominic Adjei explained the relevance of allocation paper in the acquisition of land in Ghana as follows:

“In the Ashanti Region and other parts of Ghana, any grant of a building plot and in limited cases agricultural farmlands are commenced by the issuance of an allocation paper. The stools issue to a future lessee an allocation paper as the first step in acquiring a lease. An allocation note or paper which is not an instrument affecting land has the name and address of the stool leasing the land, the name of the potential lessee, the date it was issued, a column for the signatures of the grantor and the grantee and their witnesses, a column reserved for the paramount chief for the area as the confirming party in the case of a stool land, and the time frame within which the lessee has to develop the land to avoid re-entry …”

 

The position of the law, as espoused in Boateng (No. 2) v Manu (No. 2) and Another [2007-2008] 2SCGLR 1117 is that the issuance of an allocation paper cannot be conclusive of land acquisition but evidence of the initial acquisition process geared towards the acquisition of land or plot. The allocation paper is not an instrument affecting land and cannot be registered under the Land Registry Act, 1962 (Act 122). It does not confer land title to the holder.

 

The Supreme Court in the Boateng (No. 2) case supra outlined three main reasons why land allocation papers cannot be conclusive of land acquisition as follows:

“Firstly, the allocation paper may or may not state the nature of the acquisition, i.e. whether it is a lease, a sale, a pledge, mortgage, a gift, etc. Secondly, it may not specify the duration of the acquisition; and thirdly it may not give details of the extent of the land acquired. In the instant case, the allocation given to the plaintiff did not indicate the nature of the allocation, for how long the land was allocated, the terms of the allocation and even the consideration for the allocation. Registering a document like that would not validate it to be able to give it any more probative value. At best it may be stamped for the sake of its admissibility. When admitted in evidence, it can only show that some transaction had taken place to signify that the owners or holders of the land had purported to give some land to an individual or corporate body. The grantee will thereafter proceed to perfect his title by obtaining the appropriate documents that will have to be registered. The allocation paper per se cannot pass title to the grantee.”

 

From the authorities above, it is clear that an allocation paper does not transfer any title in the property to the advantage of the plaintiff. On the face of the allocation paper in issue, there is no doubt that the plaintiff purchased the land from the Fumesua Stool in 1995 for valuable consideration. The document was not meant to create title in the land but meant to facilitate the procurement of a lease. An allocation paper could, however, be relied on as evidence of ownership if the same is found to be credible. Thus, in the absence of fraud, an allocation paper can be used to demonstrate an interest in land. As a bonafide purchaser of Plot No. 1A Oduom-Kumasi, the plaintiff is therefore entitled to compensation since the property has been assessed for compensation.

 

The profound question is: is the plaintiff entitled to the amount of GHC 50,000.00?

Article 20(2) of the 1992 Constitution mandates prompt payment of fair and adequate compensation in cases of compulsory acquisition by the state. In situations where part of or the whole of a person’s property is earmarked for demolition in a bid to facilitate road construction, that portion of land is technically acquired by the state and that begets compensation to the affected person. The quantum of compensation is assessed according to law. The Land Valuation Division under the Lands Commission is the statutory body responsible for the assessment of compensation packages payable by government or its agencies upon compulsory acquisition of property. Section 22 of the Lands Commission Act, 2008 (Act 767) provides the functions of the Land Valuation Board as follows:

22.  Functions of the Land Valuation Division

The functions of the Land Valuation Division include

(a) assessing the compensation payable upon acquisition of land by the Government;

(b) assessment of stamp duty;

(c) determining the values of properties rented, purchased, sold or leased by or to Government;

(d) preparation and maintenance of valuation list for rating purposes;

(e)valuation of interests in land or land related interests for the general public at a fee;

(f) valuation of interests in land for the administration of estate duty; and

(g) other functions determined by the Commission.

 

From the functions of the LVD, a private assessment of compensation may be useful but same is subject to the scrutiny and approval of the LVD. It the LVD’s value that holds sway. Therefore, in the instant case, the court will give premium to the amount of GHC26,660.00 which was determined by the LVD as compensation due the plaintiff. The plaintiff is hereby entitled to compensation of GHC26,660.00 plus interest on the said amount at the prevailing commercial bank rate from December 2012 (when the value of the loss was determined) till date of final payment.

 

Whether or not the Plaintiff is entitled to compensation in respect of Plot No.9B block F Oduom-Kumasi

In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, the court held that where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating this 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.

 

In the instant case, apart from the plaintiff’s assertion that he owns Plot No. 9 B Block F Oduom-Kumasi, no cogent evidence was led to show that he is entitled to compensation in respect of the property. The plaintiff only repeated his compensation claim when he testified on oath. The valuation report which was tendered in evidence was self-serving and has no probative evidential value. As stated earlier, it is only the LVD that is mandated by law to determine the quantum of compensation payable to a claimant. This is done after the property has been marked for compulsory acquisition or demolition to pave the way for the intended project. Exhibit 3 provides the list of all the properties which were affected by the road project. It also identifies the claimants and the approved compensation amount. While the plaintiff’s Plot No. 1A Oduom-Kumasi is captured in the list, Plot No. 9B Block F Oduom-Kumasi is conspicuously absent. This goes to show that the property was never identified for assessment. In the absence of any piece of evidence that contradicts exhibit 3 in proving that the property was indeed assessed for compensation, the court has no option than to make a finding of fact that the said property was not identified for compensation. The result is that the plaintiff is not entitled to compensation in respect of Plot No. 9B Block F Oduom-Kumasi.

 

Even though the plaintiff did not seek general damages as a relief, he is entitled to general damages since the law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd v Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:

‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded.

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.’’

 

From the foregoing, I award GHC10, 000.00 as general damages in favour of the plaintiff. Since costs follow the event, I am inclined to award costs in addition to general damages. In doing so, I have taken into consideration the provisions of Order 74 of C.I. 47 on award of costs. I have taken cognisance of the expenses incurred in prosecuting this case by the plaintiff.

 

Accordingly, I award costs of GHC8, 000.00 against the Defendant and in favour of the Plaintiff.