ACCRA- A.D 2019

DATE:  19 TH OCTOBER, 2018
SUIT NO:  BC/46/2016


i. Introduction:


[1] By a writ of summons issued on October 21, 2015 the Plaintiff claims against the Defendant the following reliefs:


a) Recovery of cash the sum of GH3,654.000.00 being cost of the construction of Six (6) fish ponds stocked with fish as well as expected income from the fish ponds as at October, 2012.


b) Interest on the said sum of GH3,654.000.00 at the prevailing Commercial Bank Lending Rate from October, 2012 until final date of payment.


c) General damages for trespass.




[2] After the service of the writ and its accompanying statement of claim on the Defendant, Appearance was entered after which a statement of defence was filed by the Defendant on December 21, 2015 to which the Plaintiff filed a reply on January 6, 2016.




ii. The Background Facts:




[3] The Plaintiff says he is a businessman and a farmer who carries out his business and farming activities in and around Obuasi in the Ashanti Region. The Plaintiff contends that he acquired a parcel of land and constructed six fish ponds and stocked them with variety of fish species around May 2012. It is the case of the Plaintiff that shortly after constructing the ponds an officer of the Defendant Company directed him to stop operations on the grounds that the Company had acquired the land in the area including that of the Plaintiff. He says he was asked to carry out a survey on the crops and structures and present an estimate.




[4] The Plaintiff has pleaded that he submitted the estimates to the Defendant Company by meeting an officer named Elton who received same but the Company failed to pay the estimate as compensation despite taking over his land and destroying his fish ponds. The Plaintiff says the Defendant is indebted to him in the sum of GH3,654.000.00 being the amount endorsed on the Writ of Summons. The Defendant according to the Plaintiff has failed to pay despite repeated demands and also a directive from the Minister of Lands and Natural Resources to pay based on an investigation conducted by the Mineral’s Commission at his instance hence the present action.






[5] The Defendant Company has denied the Plaintiff’s claim and contends that it undertook a mining project at Diawuoso after holding several consultative meetings with the leadership of the community and other stakeholders. According to the Defendant the consultative meetings began in January 2012 and the purpose was to obtain documents from people who were to be affected by the project to enable the Defendant plan the project and to determine the appropriate compensation for persons to be affected by the project. The Defendant has pleaded that it appointed an independent valuer to assess potentially affected farms and crops to determine the compensation.




[6] The Defendant further averred that two inspection teams were formed to carry out the assessment for compensation and the assessment was conducted up until October 2012. It is also the case of the Defendant that the inspection teams in consultation with the communities agreed on a cut- off date of 30th June, 2012 for compensation however, according to the Defendant during the farm assessment period, a number of speculative activities such as cocoa and oil palm seedlings and fishponds were seen. The Defendant contends that the Plaintiff’s fish pond was encountered by its inspection team on 17th September, 2012 as having been freshly dug speculatively for the sole reason of obtaining compensation from the Defendant Company. The Defendant has pleaded that the Plaintiff’s claim for compensation was refused by the Company because his activities were deemed speculative and therefore he was not entitled to compensation. On the strength of its averments the Defendant has pleaded that the Plaintiff is not entitled to his claims.




ii. Issues for Trial


[7] At the close of pleadings the many issues were set down for determination at the trial. The Plaintiff set down as many as 12 issues and the Defendant also filed 4 additional issues. The Plaintiff’s issues were as follows:


i. Whether or not the Plaintiff on or about 13th January, 2011 acquired the land from Yaw Oppong for the construction of fish ponds and as such went into operation and stocked them before 1st May 2012.


ii. Whether or not the Defendant when it undertook a mining project at Diawuoso directed its officer and surveyor to carry out survey on crops and structures for compensation to be paid to the affected persons including the Plaintiff.


iii. Whether or not Plaintiff was invited by the Defendant to its office at Obuasi to submit his estimates for his construction, stocking and returns for one year from the fish farming.


iv. Whether or not the Defendant received and accepted estimates and asked Plaintiff to stop his farming activities.


v. Whether or not the Plaintiff has been demanding payment of his compensation due him from the Defendant but same has been refused for the simple reason that it was speculative activity.


vi. Whether or not Plaintiff through his solicitor petitioned the Minister of Lands and Natural Resources for redress.


vii. Whether or not the Minerals Commission which was directed by the Minister of Lands and Natural Resources established that Plaintiff’s fish ponds fell within Defendant’s approved concession.


viii. Whether or not the Ministry of Lands and Natural Resources acting upon the findings of the Minerals Commission wrote to the Defendant and advised it to address the compensation issue with the Plaintiff.


ix. Whether or not the Plaintiff’s fish ponds were within Defendant’s concession.


x. Whether or not Defendant is estopped from denying the payment of compensation to the Plaintiff since his fish ponds fell outside Defendant’s approved concession by the Minerals Commission.


xi. Whether or not the Plaintiff is entitled to his claim.


xii. Any other issues arising from the pleadings.




Additional issues


1. Whether or not a cut-off date of 30th June, 2012 was agreed on the payment of compensation.


2. Whether or not the Plaintiff’s ponds were freshly constructed as at 17th September, 2012 and were speculative.


3. Whether the Plaintiff was asked to stop his activities as they were speculative.


4. Whether or not the Plaintiff was informed that he would not be paid compensation as his activities were speculative.




[8] I shall determine the germane issues arising from the pleadings in order to determine the dispute between the parties within the issues set down because most of them with respect to the parties and in particular the Plaintiff many of the issues set down are collateral and peripheral




iv. Determination of Issues by Court


[9] As I stated above several of the issues set down are merely collateral or peripheral and do not help in the determination of the key issues in this suit. Be that as it may I shall determine the main issues based on the facts and evidence adduced at the trial. The law is trite and same supported by statute that for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323) Section 14 of which provides:


“(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting”.




[10] The burden of producing evidence by both sides in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 323).




[11] It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act 1976 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.


Now, how then did the Plaintiff prove the reliefs he claims as per the Writ of Summons?




v. Plaintiff’s Evidence @ Trial:


[12] The Plaintiff’s case consisted of his testimony in court and the documentary evidence he submitted in support of the claim, marked in the record as Exhibits “A” to “Q”. Mr. Obeng Dompreh testified for himself and called one other witness and subpoenaed an officer of the Minerals Commission. His evidence is that in January 2011 he acquired a parcel of land at Adansi Diawuoso in the Ashanti Region from one Yaw Oppong for a period of five (5) years and paid an amount of Ten Thousand Ghana Cedis (GH¢10,000.00) as consideration together with two (2) bottles of Schnapps for the purpose of fish farming. A copy of a document titled ‘Transfer of one acre land at Diawuoso” was tendered as Exhibit “A”.




[13] According to the Plaintiff he borrowed from his friends including one Madam Akua Attah and Francis Akwasi Azendem an amount of GH¢50,000.00 in April, 2012 to undertake the project and the money borrowed was to be paid at 25% simple interest per annum. The Plaintiff again tendered a document titled “Promissory Note” as Exhibit “B” and “B1”. Mr. Obeng Dompreh further testified per the adopted Witness Statement that after the acquisition of the parcel of land and the procurement of the funds for the project, he went into operation and constructed six (6) fish ponds and stocked them with a variety of fishes in or before May 2012 at the cost of about Fifty Seven Thousand Five Hundred Ghana Cedis GH¢57,500.00.




[14] By Exhibit “C”, the Plaintiff testified that he acquired catfish fingerlings and the tilapia fingerlings from Romilia Farms Limited at Offinso in the Ashanti Region. He also testified that because he had other fish ponds at Tewobabi in the Adansi North District of the Ashanti Region, he was awarded the Best Regional Pond Aquaculture farmer. He tendered as Exhibit “D” a certificate of merit from the Ministry of Food and Agriculture to support his testimony.




[15] Mr. Obeng Dompreh further trstified that after constructing the ponds and stocking them, one Andy, an officer and surveyor from the Defendant’s Company with his team directed by the Defendant to carry out a survey on crops and structures in the area for compensation to be paid to the affected persons, engaged him on the land. According to him the said officer informed him that the Defendant Company was going to mine in the area. He also stated that the said officer “took photographs of the pond and also took video coverage of my projects with the instructions that he was going to inform his principal about my project on the parcel of land”. Mr. Obeng Dompreh further testified that officers from Defendant’s Company visited his farm on three (3) occasions and later invited him to their office in Obuasi through his Landlord Mr. Yaw Oppong who was then working with the Defendant Company.




[16] He said he went with Mr. Oppong and met officers from the Defendant’s Company led by one Elton who directed him, to submit his estimates on the cost of constructing and stocking the fish in the ponds as well as his expected returns for one year. He said he did so by submitting the estimates. He submitted Exhibit “E” which he said is a copy of the document submitted. It is the case of the Plaintiff that the grand total figure in terms of the production cost and expected returns for a year of his investment was GH¢3,654,000.00.




[17] The Plaintiff further testified that after submitting the estimates the Defendant Company then informed him to stop his fish farming activities on the land. He says he complied with the directive from the Defendant and abandoned his fish farming and the Defendant took possession of the land in or about October 2012. It is the case of the Plaintiff that despite the assurance the Defendant gave to him, he did not receive the payment and therefore in or about March 2013, he went to the Defendant to demand payment of the compensation but Defendant Company refused and failed to pay despite repeated demands.




[18] Mr. Obeng Dompreh further testified that he caused his Solicitors to petition the Minister for Lands and Natural Resources for redress. According to him the Minister caused the Minerals Commission to investigate the complaint. He told the Court that the Minerals Commission investigated and issued a report which directed the Defendant to pay the compensation but they still refused. Exhibits “F” to “H” were tendered to support the testimony. Mr. Obeng Dompreh further testified that based on the Minerals Commission’s report the Ministry through the Technical Director of Mines, on 8th May 2014 wrote to the Defendant and advised it to comply with the provisions in the Minerals and Mining Act of 2006 to “resolve the compensation issue and give a feedback to him”. A copy of the letter was tendered as Exhibit “J”. The Plaintiff testified that the Defendant Company did not respond to the letter and therefore a reminder was sent but they again refused to respond.




[19] The Plaintiff tendered as Exhibit “L” another letter dated August 14, 2014 sent to the Company. According to Mr. Obeng Dompreh the Company responded by a letter dated August 27, 2014 to say it was investigating the complaint. The Plaintiff further testimony was that the Defendant eventually submitted another letter dated September 23, 2014 to the Minister for Lands and Natural Resources based on what it said was its investigation to say it could not pay the compensation to the Plaintiff. A copy of the letter was tendered as Exhibit “P” at trial. According to Mr. Obeng Dompreh based on the letter from the Defendant, the Minister declined jurisdiction in the matter and advised the Plaintiff to proceed to Court if he so wished. A copy of the Minister’s letter was tendered as Exhibit “Q”. The Plaintiff instituted the instant action soon thereafter.




[20] The Plaintiff called the land owner (Yaw Oppong) who leased same to him as witness at trial. His evidence corroborated the Plaintiff’s evidence in regards to when the land was acquired and when the ponds were constructed, completed and stocked. Per the adopted witness statement filed the witness said he alienated one (1) acre land to the Plaintiff in the year 2011 to enable him establish a fish pond. He further testified that the Plaintiff went into effective occupation on the land and constructed six (6) fish ponds and stocked them with a variety of fishes. He also testified that “these activities were carried out by the Plaintiff before May, 2012”.




[21] Mr. Oppong who is a former employee of the Defendant Company further testified that “whilst in the employment of the Defendant in the year 2012 an officer of the Defendant Company by name Elton sent me to invite the Plaintiff to have a discussion with him with regards to some mining prospects which were to be carried out on Plaintiff’s acquired land where he had constructed his six fish ponds”. He further stated that “I carried out the message to the Plaintiff whom I accompanied to the said Mr. Elton’s office within the premises of the Defendant Company in Obuasi. There and then Mr. Elton informed Plaintiff in my presence that they (Defendant) had been granted a concession by the Minerals Commission to mine gold in the area which was to affect Plaintiff’s fish farm and directed Plaintiff to submit his estimates on the cost of construction and stocking of the fish as well as his returns for one (1) year and thereafter stop his fish farming activities”.




[22] Mr. Oppong concluded his evidence by stating that “I travelled to Kumasi to attend court on a particular day and on my return I was informed by Mr. Elton that the Plaintiff had submitted his estimate and he showed it to me and told me that he has directed the Plaintiff to stop his fish activities since arrangements are being made to pay him the appropriate compensation”.




[23] Mr. Felix Kwaku of the Minerals Commission was a Court witness further to a subpoena filed by the Plaintiff. At the direction of the Court he filed a witness statement and tendered the original copy of the Minerals Commission’s investigation report (Exhibit “H”). He was cross-examined by Counsel for the Defendant and thereafter the Plaintiff closed his case by imploring the Court to grant his reliefs.




vi. The Defendant’s Evidence @ Trial:


[24] The Defendant gave evidence per its representatives, Nana Ampofo-Bekoe and John Obuobi-Agyei both employees of the Defendant Company. The Defendant’s evidence was in pith and substance a rehash of its letter dated September 23, 2014 (Exhibit “P”) addressed to the Technical Director, Mines, Ministry of Lands and Natural Resources and based on which the Statement of Defence was filed.




[25] Per the witness statement filed and adopted at trial the Defendant’s witness Nana Ampofo-Bekoe testified that the Defendant undertook a mining project at Diawuoso in the Ashanti Region. According to him prior to commencing the project, the Company held several consultative meetings with the leadership and members of the community to involve them and other relevant stakeholders during the early stages of the project. According to him the consultative meetings began from January 2012 and they were able to obtain documents and concerns of people who may be affected by the project to enable the Defendant plan the project and determine the appropriate compensation to pay the persons who will be affected by the project. He tendered as Exhibit “1” an extract from the EIS report which also included the consultation.




[26] According to Mr. Ampofo-Bekoe in July 2012 after consultations with the community, the Defendant appointed Goldstreet Real Estate Consult, an independent valuer , to assess farms and crops that would potentially be affected by the project and to determine the compensation that may be payable on commencement of the project. He further testified that the consultant presented its report in March 2013. A copy of the report was tendered as Exhibit “2”.




[27] The Defendant’s witness further testified that the Defendant formed two inspection teams to carry out the assessment for compensation and the teams conducted the assessment up to October 2012 after the team in consultation with the communities had agreed on a cut-off date of 10th June 2012 for the commencement of the field valuation exercise. It is the case of the Defendant that during the period the teams were were conducting farm assessment, they encountered a number of speculative activities such as cocoa and oil palm seedlings including fishponds.




[28] It is the case of the Defendant that on 17th September 2012 the inspection team encountered a newly constructed fishpond and it was said to belong to the Plaintiff. According to the witness “it was observed that the fishpond had been freshly dug which meant that it had been done speculatively to make a claim for compensation”. Mr. Ampofo-Bokoe said “the inspection team took pictures of the fishponds and indicated that no compensation would be paid for them as it was speculative”. Copies of the said pictures were tendered at trial as Exhibit 3.




[29] The Defendant witness tendered as Exhibit “4 Series”, a photograph of what he said is “the appearance of an old fishpond is totally different from that of a freshly dug one”. Also, according to the Defendant’s witness “the Plaintiff was informed that the Defendant is not required to pay compensation to any person who undertakes a speculative development on land subjected to a mineral right after a cut-off date”. Further, Mr. Ampofo-Bekoe said the Plaintiff was asked to stop his activities as they were speculative and therefore according to him ‘The Plaintiff abandoned his speculative fish ponds when he became aware that he would not be compensated for them”. The witness tendered copies of what he said is a picture of the abandoned speculative fish ponds as Exhibit 5.




[30] The witness conceded that the Plaintiff did make a demand for compensation, but it was refused by the Defendant because his activities were deemed speculative and therefore he was not entitled to be compensated. The witness further testified that the “Defendant never asked the Plaintiff for accepted estimates from him and thereafter to stop his fish farming activities but he was only informed that his activities were speculative”. Mr. Ampofo Bekoe further testified that even “if the Plaintiff’s activities had not been speculative, the Defendant would not have accepted estimates from him because that was not the procedure involved in payment of compensation. He said the basis for the assessment of compensation was done by the consultants who determined how compensation was to be paid and not on the basis of an estimate presented by the affected persons”.




[31] Mr. Ampofo-Bekoe also denied that the Defendant destroyed the Plaintiff’s fish ponds at Adansi Diawuoso together with the Plaintiff’s averment and contention that its activities fell outside its concessions. He stated that “although a portion of the area that the Defendant was undertaking the project fell outside the mine’s concession, the Defendant engaged with the allodial owner of the land which is the Dompoase Divisional Council before it started work on it. The witness also said the Company engaged the elders of the Diawuoso Community before it commenced the project and therefore the Defendant did not trespass on the land”.




[32] Finally, Mr. Ampofo Bekoe told the Court that “the Defendant has always been willing and ready to pay compensation to anyone who is entitled to it and that is why it engaged consultants to prepare a report on payment of compensation” but in this case according to him the Plaintiff is not entitled to any compensation.




[33] The Defendant also called Mr. John Obuobi-Agyei a Community Relations Officer of the Defendant Company as a witness. A review of his testimony per the adopted witness statement confirms that his evidence was in substance and words the same as Mr. Ampofo-Bekoe. To that extent and in my view it is pointless to recount in detail his evidence in this judgment even though it forms part of the record.




vii. Analysis of the Evidence and the Court’s Opinion:


[34] As earlier stated many of the issues raised are irrelevant and do not go to the core of what the Court is called upon to make a determination on. Indeed it is the policy of the law that only those issues which are germane to the determination of a case which must be decided by the court and not irrelevant issues although the parties might have led evidence on them.




[35] The Court of Appeal (Coram: Sowah CJ, Abban and Osei-Hwere JJA) has stated the law in DOMFE v ADU (1984-86) 1 GLR 653 that the primary facts which a trial judge might find as having been proved to his satisfaction were those necessary to establish the claim of a party or in some cases the defence and which had been alleged on one side and controverted on the other. The rule establishes further that the trial judge was not required to make findings of fact in respect of irrelevant matters on which the parties had led evidence when such findings would not assist in the determination of the issues involved in the case. Applying the above stated principle to the instant case, my view is that the germane issues for determination in this case which can be gathered from the pleadings and the evidence offered in this case are primarily only two.




[36] I say so because to my mind, based on the pleadings and the evidence heard the Plaintiff’s issues “v” to “ix” in particular are not issues properly so described because they are not contested, The same thing applies to the Defendant’s additional issues “1” and “4” stated above. To that extent in my respectful view the central issues are as follows:


(1) Whether or not the Plaintiff constructed the fish ponds before May 2012 or around September 2012 “on the land” the Defendant’s own witness testified he was asked to stop because it was speculative and;


(2) Whether or not the Plaintiff is entitled to his claim as endorsed on the Writ of Summons?




[37] Findings made on the above issues should dispose of the matter in my respectful opinion. I now therefore proceed to address them but before I do, I wish to address and respond to Counsel for the Defendant’s submission made at page 18 of her written legal submission which borders on the Plaintiff’s issue (i) stated above. Counsel stated:


“My Lord, the Defendant submits that the Plaintiff did not construct and stock his fishpond before 1st May 2012. We submit further that the Plaintiff did not go into operation before 1st May 2012.


My Lord, the Plaintiff contends that he acquired land in 2011 and that he went into operation and constructed fishponds and stocked them with fish before 1st May 2012. The Defendant denies this contention and therefore issues are joined and the Plaintiff is required to prove his assertions. It is our submission that the Plaintiff has failed to discharge the burden on him to prove his case. The Plaintiff tendered Exhibit A, as his documentation on the land on which his fish ponds were located. Exhibit A only states that land lying at Diawuoso has been transferred to the Plaintiff. The demarcations of the land have not been indicated on the document. The Plaintiff confirmed that there was no demarcation indicated on the document when he testified as follows:


Q: Can you show us from Exhibit A, the exact demarcation of the land indicated in the exhibit?


A: There is no indication of the demarcation of the land in Exhibit A.


My Lord, we submit that Exhibit A which does not have a description and demarcation of the land is not credible document since it does not satisfy the requirements in statute for a description of land to be attached to a document relating to land. We submit that this Honourable Court should disregard it. My Lord, the deed that has been exhibited in this matter could be referable to any plot of land at Diawuoso. The Plaintiff has testified that he is a farmer in the area and therefore he could be tendering a document on any land he has operated on. My Lord it is our further submission that the Plaintiff’s contention that he constructed and operated his fish ponds before 1st May 2012 is unproven. There is no evidence before this Honourable Court that supports this contention. My Lord, we submit that the Plaintiff and PWI only repeated his pleadings without showing any proof that the ponds were indeed constructed before 1st May 2012. The Plaintiff cannot prove his contention merely by repeating the claims under oath”.


Counsel then cited such cases as ZABRAMA V. SEGBEDZI [1991] 2 GLR 221 to support submission.




[38] First and foremost in my respectful opinion the Defendant Counsel’s submission is unfounded, unmaintainable and a mere red herring. In so far as it relates to the demarcation of the land in regards to Exhibit “A”, in my respectful view it is a manufactured issue which has no basis because it is indeed not well situated based on the pleadings filed by the parties and the testimony of the witnesses at trial. From the evidence it is clear that the Defendant recognized that the Plaintiff constructed fish ponds on “a land” which fell within its operation and it was based on that it concluded that the activity was speculative and should be stopped. This litigation has never been about the “demarcation of the Plaintiff’s land”. I have always understood the Defendant’s contention to be that the fish ponds were not constructed before May 2012 as held by the Plaintiff but in September 2012 and therefore speculatively done for the sole purpose of obtaining compensation but not the demarcation of the land on which the fish ponds were situate based on the evidence before the Court for determination.




[39] Curiously, despite Counsel’s submission stated above the Defendant’s own witness told the Court that the Plaintiff’s land fell within the Defendant’s operation and project area. This is part of the cross-examination of Mr. Ampofo-Bekoe on October 12, 2017 when cross-examined by Plaintiff’s Counsel:


” Q: Where you said you did the clean-up and you were saying that it was outside your concession was where the Plaintiff’s fishpond was situate that is what I am saying.


A: Plaintiff alleged fishpond were located within the project area. It is possible that it fell outside the concession but it was within the tailings clean-up area sanctioned by the EPA and all other stakeholders”.




[40] Further, I see the submission of Counsel referenced above as a diversionary tactic reminiscent of what occasioned the respected Dotse, JSC to lament in the case of THE REPUBLIC VS EDWARD ACQUAYE, EX PARTE CHARLES ESSEL, in Civil Appeal No J4/11/2008 of 10th December 2008 thus: “This case is a classic example of how a small issue can be glossed over by an over-zealous litigant and thereby introduce diversionary and irrelevant matters into the main body of the case.” I am mindful of the wise words of his Lordship and therefore I refuse to turn this suit into a land litigation.




[41] Now, it is the case of the Plaintiff that after acquiring the land from Yaw Oppong who also testified for him, he constructed 6 fish ponds and stocked them before May 2012. Under cross-examination both the Plaintiff and Mr. Oppong maintained that the fish ponds were constructed before May 2012. This is what transpired on February 23, 2017 when the Plaintiff was cross-examined by Defendant’s Counsel on the issue of the construction of the ponds:


“Q: You stated that you constructed the ponds that you are demanding compensation for in May 2012. Is that right?


A: That is not correct. The ponds were constructed in April 2012 and before May I had already finished the construction of these ponds. I also stocked these ponds with fish in April 2012.


Q: And the land of which these ponds were constructed you claim you acquired it in January 2011. Is that correct?


A: That is correct.


Q: And so from January 2011, it was only in April 2012 as you claim that you found it necessary to construct a pond?


A: That is correct.


Q: The true position is that, the ponds were not constructed in April 2012 but rather in September 2012.


A: That is not correct. The ponds were constructed in April 2012. In September 2012 when the Defendant came to the site they took pictures of the pond and at the time the ponds were stocked with fish. I was even standing there when the pictures were taken.


Q: In fact, even though the Defendant’s inspection team commenced work in July 2012 they only encountered your ponds in September 2012.


A: That is not correct. April comes before July, the Defendants inspection team came to the site in September 2012.


Q: When the inspection team came in September 2012 they noticed that your ponds were freshly duged.


A: That is not correct. It was constructed in April they came in September and the ponds were not fresh”.


A: On April 7, 2017 Counsel continued her cross-examination and the following also transpired:


“Q The case is that before the defendant began the remaining project it engaged with the stakeholders that is the people in the community, the farmers etc.


A: I don’t know anything about that I live at Bogobri and my farm is at Diawuso so I don’t know anything about it


Q: The engagement with the stakeholders was in January, 2012


A: I don’t know anything about that until they came to my farm somewhere in September, 2012 and took pictures of my farm and myself...


Q: I am suggesting to you that indeed you were aware that the re-mining was going to take place and that is why you constructed your ponds in September, 2012


A: That is not correct. I was not aware of that. I rented the land in 2011 got funds to develop the land and started the project in April, 2012. I did not acquire or rent the land because I knew there was a gold consignment or the defendant has plan of re-mining that site”.




[42] As indicated above, Mr. Oppong also testified for the Plaintiff and was cross-examined by the Defendant’s Counsel who sought to impeach his credibility on the grounds that because he was made redundant by the Defendant Company he was not a happy man and only came to Court in a fit of pique to assist his friend, the Plaintiff. This is what transpired when he was cross-examined on May 16, 2017.


” Q   Can you tell us when you started working with the Defendant?


A: Yes. The Defendant employed me in 1989.


Q: And what was your position at the Defendant?


A: I was first employed as an underground worker we were basically working with the stones. After working underground for 15 years I got severely injured and I was brought to the surface and I was taken to Mr. Elton’s office to work with him.


Q: And when did you stop working with the Defendant?


A: I was put on redundancy in year 2014.


Q: So you will agree with me that you didn’t leave the Defendant employment on your own accord


A: I agree….


Q: And you were not happy about being made redundant, is that not so?


A: All the workers were asked to go home so whether or not you were happy about it we had no choice our employer asked us to go home.


Q: I put it to you that you were not happy about your redundancy.


A: I was happy and didn’t have any problem with it because I was given some compensation


Q: The Plaintiff is your friend, is that not so?


A: Yes.


Q: And you claim to have leased land to him, is that not so?


A: That is right.


Q: Can you tell us when you leased the land to him?


A: In 2011.


Q: Can you tell us the demarcations of the land you claimed to have leased to the Plaintiff?


A: Yes. The size of my land is about 10 acres and I gave the Plaintiff an acre from this 10 acres.


Q: You claimed that the Plaintiff constructed fish ponds on the land that you leased to him. Can you tell this court exactly when the Plaintiff constructed these ponds?


A: The land was leased to the Plaintiff in 2011, he started the fish pond in 2012 and completed in April 2012.


Q: When in 2012 do you say that the Plaintiff commenced construction of the fish ponds?


A: I do not know exactly when he started the fish ponds because when the pond was started I was not around. All I know is that in April 2012 the Plaintiff stocked the fish ponds.


Q: So you say that the Plaintiff leased the land from you in 2011 but it was only in 2012 that you say he constructed the ponds. Is that not so?


A: That is correct.


Q: Can you tell us the distance from the farm to where the fish ponds were to your house?


A: The distance between my house and the fish ponds is not too far.


Q: You have to make up your mind to go to the farm before you go there, is that not so?


A: The land is huge if you are in town you could see food crops like plantain but the fish ponds you won’t see it unless you go to the farm”.




[43] The evidence reproduced above is in substance the line of cross examination adopted by the Defendant’s counsel. In my view it failed to contradict the Plaintiff and his witness’ evidence as set out in the Plaintiff’s pleading. The lack of demarcation of the land in Exhibit “A” and the friendship of the Plaintiff and the witness, Mr. Oppong contained in the cross examination have no relevance in Defendant’s attempt to impeach Plaintiff’s evidence. The evidence before the court is that the Plaintiff acquired the land from Mr. Oppong in 2011 and the construction of the fish ponds was in April 2012.




[44] In my view therefore, at the close of the cross examination by the Defendant’s counsel, Plaintiff’s evidence stood unimpeached and uncontradicted with respect to the facts placed in his pleadings in regards to the acquisition of the land and the construction of the fish ponds. Mr. Oppong undoubtedly corroborated the evidence of the Plaintiff on the material parts of his evidence as required by law and therefore I have drawn an inference from same to confirm the Plaintiff’s evidence. See Section 7 of the Evidence Act, NRCD 323.




[45] Having arrived at this finding it is crucial to state that I have also considered the Defendant’s position and reasons in regards to when the ponds were constructed and rejected same as rather speculative. For instance the Defendant’s main witness testified that the ponds were constructed in September 2012 and not earlier based on a comparison between undated photographs taken by its officers and ones allegedly taken from a community called Sanso whose owner the Court does not know, did not hear from and cannot verify. In my view, the defence put up has created many weaknesses which together strengthens the Plaintiff’s case.




[46] This is what transpired when Mr. Ampofo-Bekoe was crossed examined on October 12, 2017 by Plaintiff’s Counsel:


” Q I am putting it to you that the        Plaintiff had constructed his 6 feet fish pond long before you met with the community leaders.


A: No, we disagree because during the time of assessment pictures taken and physical inspection by key stakeholders revealed that the alleged fish ponds were freshly dug holes


Q: Have a look at your Exhibit 4 series, who is the owner of these fishponds?


A: These fishponds are owned by community member at Sanso a community close to our operations and very close to the mine.


Q: So it means that community, Sanso is not near Diawuoso.


A: No, it is not close to Diawuoso but we took the picture to show evidence of a functional fishpond as against a speculatively dug hole.


Q: How old are the fishponds as exhibited in Exhibit 4 series?


A: The exact ages we took cannot be speculated by us but they were functional fishponds with fish visible as against the alleged fishponds which a single fingerling wasn’t sighted in as at the time of the assessment.


Q: The owner of the fishpond in Exhibit 4 series was not on the site when the pictures were taken, is that not correct?


A: I am not aware because it is my officers who took the photographs.


Q: Can you see any human beings captured by those Exhibits 4 series?


A: No, not in the pictures here.


Q: And the pictures in Exhibit 4 series do not contain any date depicting that they were taken on that date.


A: From the exhibit I cannot see any date.


Q: I am suggesting to you that these pictures are your own creature and has nothing to do with the case that we are doing.


A: I reject your suggestion and I want to tell the court these pictures were taken in a community called Sanso and the owner of those fishpond are still alive and they can be verified so it cannot be a creation of our imagination. And as I said earlier the pictures were taken to show the major differences between a functional fishpond and a manhole dug for purposes of speculation. If I can add here the project was zoned into phases. At phase one the Plaintiff had six freshly dug holes when we got to phase two we saw two other freshly dug holes belonging to the Plaintiff.




[47] From the above discourse it is clear that the Defendant’s position that the Plaintiff’s fishponds were constructed in September 2012 and not before May 2012 is anchored on the photographs tendered. Based on that the Defendant has invited the Court to draw an inference from the Exhibits filed including the photographs which have no dates to conclude that the construction of the fishponds were in September 2012. But can this Court rely on such photographs to make such a crucial determination? In my view the answer is no.




[48] In the opinion of the Court it is difficult to verify, authenticate and conclude that the photographs tell the story of when the fishponds were constructed because the photographs have no dates and descriptions embossed on them. Also, knowing that dates on digitized imagery can be manipulated, even that would not have helped the Court in its analysis on such an important issue. Further, it is important to note that a look at the photographs alleged to have come from Sanso for instance shows the ponds could have been in existence for years and the one alleged to be for the Plaintiff also been in existence for months and not days. To my mind, reliance on the photographs only by this Court to make the determination as to when the fish ponds were constructed would certainly be based on speculation and therefore I refuse to do so.




[49] Clearly, in my respectful opinion, drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. I am required to assess the evidence including the exhibits tendered in the light of all the facts, common sense and human experience. I do not think there is anything in the undated photographs from Sanso (Exhibit 4) and the unidentified place (Exhibit 3) that would reasonably permit me to infer and conclude that the Plaintiff’s fishponds were constructed in September 2012 as the Defendant contends. It is important to point out that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference in this case. A reasonably drawn inference requires an evidentiary foundation which in this case to my mind is lacking.




[50] Ollenu J. A. (as he then was) observed and held in the old case of KYIAFI v. WONO [1967] GLR 463 on the credibility of witnesses that:


“The question of impressiveness or convincingness are products of credibility and veracity. A court becomes convinced; impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses”.




[51] Relying on the above statement, I wish to state with respect to the Defendant’s witness Mr. Ampofo-Bekoe that he did not impress me as a truthful witness. I say so about the witness because I had the opportunity to observe him when he testified and I have also read the cold words of his testimony. He came across as corky and arrogant witness who was only willing to stick to his rehearsed story as contained in the statement of defence and nothing more. It is clear that he deliberately refused to admit facts until he was pushed to the proverbial wall. He was often evasive and very argumentative when he was cross-examined by the Plaintiff’s counsel. I assessed him as a witness who was selective as to what he was prepared to tell the Court and admit. He did not present himself as a witness who was being entirely candid. His testimony was given with a view to the Defendant’s Company’s interest rather than in accordance with the oath which he had taken. To that extent, I place little weight on his general testimony.




[52] From the above analysis and based on the testimony of all of the witnesses heard at trial it is my finding that the Plaintiff’s evidence that he constructed the six fish ponds before May 2012 and thus before the Defendant’s cut of date June 30, 2012 is more credible based on the balance of probabilities and I accept same. I thus reject the Defendant’s contention that the fish ponds were constructed in September 2012. I next turn my attention to whether or not the Defendant requested estimates from the Plaintiff?




[53] I note that the Plaintiff was resolute in his evidence in chief and when cross-examined that an officer of the Defendant’s Company one Elton requested for the estimates and same was presented to him. The Defendant disputes same on two main grounds. I understood the Defendant’s Counsel Ms. Denyo during her cross-examination of the Plaintiff to say among others that because the Defendant is a Company it is not true that it sent a message through Mr. Oppong because it would have sent the Plaintiff a letter. In another snippet of cross-examination, the following ensued between the Defendant’s Counsel and the Plaintiff on February 23, 2017:


Q: The Defendant never requested you to submit receipts as you contended yesterday.


A: That is not correct. Defendant company directed that I submit receipts and all documents confirming that am a fish farmer before due compensation will be paid.


Q: Can you provide us with a copy of the letter by which the said request was made?


A: I was not given a letter by the Defendant Company the Defendant Company gave a message to Mr. Yaw Oppong who then was a worker with the Defendant Company to be conveyed to me. This instructions was not in writing but it was oral.


A: Your assertion that the Defendant asked Mr. Yaw Oppong to convey a message to you is not true.


Q: My assertion is correct. Mr. Yaw Oppong and I went to meet the representatives of the Defendant’s Company.


Q: The Defendant is a company, you are aware of that?


A: Yes my Lord.


Q: And the Defendant as a company will not ask someone to convey a message to you.


A: Because Mr. Yaw Oppong was the one who granted me the land for the fish farming and the fact also that Mr. Yaw Oppong works in the Defendant Company, he was asked to convey this message to me personally so that he and I would come to the office to see the representatives of the Defendant Company. The instructions I received from them to bring receipts and documents covering the fish farm were given in the presence of Mr. Yaw Oppong.


Q: All that you said to the court is not true and that the Defendant would have sent you a letter in a matter such as this.


A: That is not correct. My evidence is based on the truth. And again when I sent the document to the Defendant Company they received it.




[54] I note that the next ground by which the Defendant disputes the Plaintiff claim that he was requested to submit estimates is that the Company left the issue of compensation with the special inspection team formed and therefore there is no way the Company could request estimates from the Plaintiff.




[55] Again, on the evidence before this Court, in my opinion the defence erected on the issue by the Defendant is simplistic and untenable. First and foremost the Defendant does not deny the fact that at the material time the Plaintiff says he was asked to submit the estimates, one Mr. Elton was the Defendant’s officer in charge of the matters such as the one the Plaintiff talks about. Also, Mr. Oppong who was an employee at the time speaks eloquently and without contradiction that the request was made through him both in his evidence in chief and under cross-examination that Elton made the request that he attend the office with the Plaintiff because as he testified he worked in Mr. Elton’s office. That evidence was not challenged by the Defendant at all. Mr. Yaw Oppong further testified that the same Mr. Elton confirmed to him that the Plaintiff submitted the estimates upon his return to Court from Kumasi one day.




[56] In the Court’s opinion there is no fetish rule that a Company cannot send message through a person. Accordingly, based on all of the above, on this issue as well I am persuaded and do accept and prefer the Plaintiff’s evidence to that of the Defendant and hold that an officer of the Defendant (Mr. Elton) accepted as a fact that the Plaintiff had fish ponds on the land within the concession of its operation and therefore requested the Plaintiff to submit estimates to him and the Plaintiff did.




[57] Concluding from the evidence on record therefore and on the balance of the probabilities, I find that the Plaintiff constructed six fishponds within the operational area of the Defendant Company and before the cut-off date of June 30, 2012 set by the Defendant. I therefore resolve the re-formulated issue one in favour of the Plaintiff. I now hereby consider whether or not the Plaintiff is entitled to his claim as endorsed on the Writ of Summons.




[58] My findings above notwithstanding, can it really be said that the Plaintiff has established on the balance of probabilities his claim in terms of the sums endorsed on the writ? In my view, while I have no problem relying on Exhibits “A” and “C” in my assessment of the Plaintiff’s claim I have difficulty accepting Exhibits “B” and “E” in assessing the Plaintiff’s claim. The manner of preparation of Exhibit “E” in particular weakens the probative value as a document which this Court should accept as relevant and reliable. Save the fact that it has a date of September 30, 2012 there is no indication that it was the document submitted to Mr. Elton. For instance if it was a copy submitted, why was it not stamped? Also, there is no indication as to how the Plaintiff arrived at the figures stated thereon. In simple terms, I am unable to accept same as a copy of the estimates submitted to the Defendant Company through Mr. Elton. I am of the view that Exhibit “E” fails to meet the acceptable legal threshold and reliability for same to be accepted by this Court because it is simply a self-serving document and I therefore I place no weight on it.




[59] In regards to Exhibit “B” as well, I am of the opinion that there is lack of nexus between the alleged monies borrowed and the fish pond project. The fact that the Plaintiff borrowed money from friends to my mind does not in any way shape or form establish that he used same for the fishpond project. From my evaluation of the evidence therefore, whilst it is my finding that the Plaintiff has discharged his burden of proof and the evidential burden in the context of his claim that his constructed fish ponds were destroyed as a result of the project embarked upon by the Defendant in my respectful view he has failed in totally discharging the burden that the Defendant is liable to pay the amount stated on the Writ of Summons as the claim.




[60] But, does the above finding means that I should wring my hands in despair and lament that because the Plaintiff failed to establish the figures endorsed on his Writ of Summons he should go home empty handed even though I have found that his six fishponds which were destroyed were constructed before the cut-off date set and therefore ought to have been compensated for same? I think equity and conscience dictate that I should not do so. It bears stressing that though this court is a court of law, it is also a court of equity. As explained by Abban JA (as he then was) in DOMFE v ADU SUPRA @ 666, where the judge sits as a court of law, he also sits as a court of equity and of conscience.




[61] In my view the award of general damages to the Plaintiff is appropriate in this case even though not for “Trespass” as endorsed on the Writ of Summons. Clearly, based on my understanding of the law, a concession holder cannot be found liable for trespass. It is a fact that the Defendant Company entered the land lawfully as a concession holder and had permit to work within the concession and so it cannot be liable for trespass, I do hold.




[62] On the evidence before the Court, I am satisfied that the Plaintiff is an award winning farmer engaged in the fish farming business. Exhibit “D” for instance speak to the fact that he was the Regional Best Farmer (Pond Aquaculture) for the year 2011; that is a year before the farming activity which is the subject matter of this suit. To my mind therefore, he is entitled to compensatory damages for the loss of his economic rights and income as a fish farmer for the investment made.




[63] It is trite that liability for payment of damages is established when a claimant proves on the balance of probabilities that a defendant’s wrongful act caused a tangible harm, loss or injury to him. To that extent, once the threshold is met, the Plaintiff is entitled to some compensation for the recovery of his or her loss.




[64] In the case of ATTORNEY GENERAL v FAROE ATLANTIC COMPANY LIMITED [2005-2006] SCGLR 271 the Supreme Court per Dr. Twum JSC stated the basic principle stated in the Hadley v Baxendale [1854] 9 Exch 341 in regards to the award of general and special damages at page 290 of the report thus:.


“My Lords, in my view, a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damage are ever ordered. See London and Northern Bank Limited v Newness [1900] 16 TLR 433.


General damages are such as the law will presume to be natural or probable consequence of the defendants act. They arise by inference of the law and need not therefore be proved by evidence. Hence they may be averred generally as was done in this suit.” See also such cases as[1]




[65] Awarding the Plaintiff general damages not for trespass but as compensation even though not specifically claimed by the Plaintiff in my view would be the natural and logical consequence of my findings. It will prevent the Plaintiff from having a pyrrhic victory and prevent a scenario where he will have to issue a fresh writ based on my findings for compensatory damages. Also, in my view this Court will not be acting without jurisdiction in doing so because there is precedent to support same[2].




[66] Consequently I shall make the following orders against the Defendant Company; The Defendant shall pay to the Plaintiff as follows:


(1) Payment of the money spent to acquire the land –Exhibit A – GH10,000.00


(2) The payment of the money on Exhibit C - GH19,080.00


(3) GH10,000.00 for one fish pond. Therefore the six ponds total - GH60,000.00 as general damages for the destruction of the ponds.


Total = GH 89,080.00




[67] Finally, on the issue of costs, I am of the respectful view that the Defendant is required to compensate the Plaintiff for his legitimate and reasonable expenses incurred in prosecuting the action based on Order 74 of C.I. 47 and on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262. I wish to state that whilst I am not unmindful of the fact that litigation is expensive, in my respectful opinion I have to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances of the case based on the law and specifically the factors set out under Order 74 of C.I. 47, rather than an amount fixed by actual costs/expenses incurred by the successful litigant and/or award the cost as punishment of the Defendant. With that in mind, I shall award the Plaintiff cost of GH20,000.




[68] Finally, I wish to state that this judgment does not account for matters like the petition to the Minister and the work of the Minerals Commission because their investigation at best is only persuasive but not binding on me and it has not formed part of my analysis and conclusion in this case.