IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
BIZZACO LTD - (Plaintiff)
ACCRA METROPOLITAN ASSEMBLY - (Defendant)
DATE: 5TH APRIL, 2016
SUIT NO: RPC/365/2014
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
FELIX QUARTEY, ESQ., FOR PLAINTIFF/RESPONDENT
SAMUEL MENSAH AKRONG, ESQ., FOR DEFENDANT/APPLICANT
On the George Walker Bush motorway, otherwise called N1at the section at Abelemkpe is a piece of land by the highway which until the 3rd and 23rd of May, 2014 was occupied by the Plaintiff and had been converted into a washing bay. Acting on concerns that the activities of Plaintiff on the land poses threat to motorist coupled with a feud between Plaintiff and residents of Abelemkpe, National Security was compelled to demolish the property of Plaintiff on that piece of land.
The plaintiff company claims per the reliefs endorsed on its amended writ of summons the following reliefs originally against National Security, the Attorney General and Accra Metropolitan Assembly:
i. An amount of Ghc486.190.19 being the total amount expended by the Plaintiff on its business operations on the aforesaid land from the date when the land was given it to the date of the final demolition.
ii. Interest on same at the prevailing Bank rate from the date of the issuance of this suit to the date of final payment of same.
iii. Damages and compensation to be assessed by the court on a quantum meruit basis.
iv. Perpetual injunction restraining the Defendants their agent privies and servants and by extension, any other person or persons and or entity from dealing with the land in any manner detrimental to the interest of the Plaintiff pending the determination of all matters before the Court.
v. Costs incurred by the Plaintiff inclusive of legal fees.
vi. Any other reliefs which may be ordered by this honourable court.
The suit was amended to delete the name of National Security as a party to the suit. Eventually the Plaintiff discontinued the action against the Attorney General making the AMA the only defendant in the suit. In view of the change in parties to the suit Plaintiff indicated that it has abandoned reliefs (iii) and (iv) endorsed on the writ.
In the amended statement of claim the Plaintiff describes itself as a company that deals in the sale and rental of vehicles as well as the operation of washing bays. And that it applied for a parcel of land at Abelemkpe from the Defendant in October 2011 to be used as a washing bay. The defendant initially granted it a temporary permit to be on the land to operate a washing bay. Plaintiff had to spend GH¢25.000.00 to make the land suitable for a washing bay. Defendant became satisfied with the good use the Plaintiff had put the land and decided to execute a lease for Plaintiff in January, 2014 for a period of five years.
Based on the five year lease, Plaintiff claims to have secured two loans of GH¢40.000 and GH¢35.578.00 to inject into the business on the land. Plaintiff claim to have used the loans secured to build summer huts for clients, drill a borehole and fence round the land. That he was doing brisk
business employing forty two persons when on May 2nd 2014 one Major Awuni of the National Security came to the land where Plaintiff is operating its business and indicated that they were there to demolish the property. The National Security carried out the threats of demolition and destroyed the Plaintiff’s property on the land. To Plaintiff National Security intimated to him that the land does not belong to AMA for it to have given it to the Plaintiff. Plaintiff claims that the demolition exercise was completed on 28th May, 2014 when the National Security finally raised every property on the land to the ground.
Plaintiff claim that based on the representations made by AMA it expended all those monies and after the demolition it contracted a management company to assess the cost of the damage which came up to GHc486.190.19 and as it has suffered this huge financial loss due to the representations of the AMA it seeks those reliefs against it.
In the amended statement of defence filed by the defendant it denied the essential averments of the Plaintiff and gave a different version of the events between the parties regarding the damage caused the Plaintiff’s property on the land. Defendant claim to have granted a temporary permit for the Plaintiff to be on the land on condition that Plaintiff was not to put up any permanent structure on the land. Besides that defendant was to vacate the land anytime the government needed that land. It further averred that the grant of the land to Plaintiff on temporary basis was in furtherance of its mandate under the Local Government Act, 1993 Act 462 which mandates Assemblies to be responsible for reserved lands of the government.
Again, the Defendant set out in its defence that Plaintiff breached the material terms set out in the agreement it entered into with Plaintiff as it failed to obtain permit for the structures Plaintiff put up on the land.
Two main issues emerged after defendant spurned the opportunity to partake in the pretrial conference and these were:
1. Whether or not Defendant’s grant of the land to plaintiff was lawful.
2. Whether or not the Plaintiff is entitled to its claim or reliefs against the defendant.
The court is not unaware of two additional issues filed by counsel for AMA. I am afraid the court is unable to incorporate those two additional issues as leave of the court was not formally granted. And with the procedure of trial at the Commercial Courts as spelt out under Order 58 of the High Court (Civil Procedure) Rules, C.I 47, with the failure of a pre trial conference to resolve the issues, when the matter is to proceed to trial, the lawyers for the parties are by practice supposed to assist the Judge in settling the issues for trial. Indeed rule 8 of Order 58 states as follows:
“If no amicable settlement is reached, the pre trial judge shall at the time settlement broke down, direct the parties to the Administrator who shall immediately fix a date before another judge on the issues set down for hearing at the pre-trial settlement conference. The hearing date shall not exceed twenty-one days from the time settlement broke down.”
Having disabled itself from participating in the pretrial conference and the issues for determination having been set down by the pretrial Judge together with the Plaintiff, I do not think it necessary to admit of any other additional issues that had been filed by the counsel for defendant as that had been done in violation of the rules. Before me will be the two issues set down for determination at the pretrial between the two parties.
EVALUATION OF THE EVIDENCE AND ANALYSIS OF THE LAW
Plaintiff bore the onus to discharge the claim he made before the court in terms of alleging that defendant had led him to be on the land when defendant knew that it had no right to make any grant of the land. Besides, that Plaintiff went on the land based on the representations made to it by defendant which representations had turned out to be false and that he Plaintiff had relied on them to his detriment of having its business brought to its knees by the demolition that was undertaken by operatives of National Security.
Plaintiff in its attempt to prove its claim called two witnesses. The first being the director of Plaintiff’s company, Bismarck Agyapong and Pw1, Nathaniel Ebo Yawson, a quantity Surveyor, who did an assessment of the value of the damage caused to the properties on the land. Defendant on other hand called two witnesses in its quest to fend off the claim of the Plaintiff. These were Twumasi Ankrah and Victor Mensah. Plaintiff tendered the following material evidence that will be useful in evaluating the substance of its case. There is Ex ‘A’ being an application letter written by Plaintiff company to defendant for approval to use the land at Abelemkpe, a government land. Ex “B” is the response of the defendant granting the Plaintiff what it called a temporary permit to be on the land. Pertinent to Plaintiff’s case is also Ex ‘E’ being what it termed an assignment of the land to it by defendant almost two years after the grant of a permit to Plaintiff to be on the land. Though called an assignment, Ex ‘E’only grants Plaintiff the right to be on the land for five years. There is also Ex ‘H’ which is a letter from defendant to Lands Commission for the consent of the Lands Commission to the grant made by defendant.
My first duty is to resolve the issue as to whether the grant of the land by AMA to Plaintiff was lawful, Plaintiff in its Ex ‘A’ written to defendant for the right to be on the land admits that the land was government land but was only being used as a refuse damp. In both Ex ‘B’ and ‘C’ defendant also concedes that the land is government land and further notes that it is a reservation. And yet in Ex ‘E’ defendant makes a claim in recital two that:
“whereas AMA has a piece of land located and being at Abelemkpe…”.
And it was based on this assumption of ownership that defendant in Ex ‘E’ makes an allocation to Plaintiff to be on the land for five years. Does government land becomes the land of a Metropolitan or Municipal or District Assembly? Or put in another way does an Assembly such as AMA controls and grants lands that are termed as government lands?
Learned counsel for defendant has cited sections 10 and 130 of the Local Government Act, Act 462, 1993 that the Assembly has powers over government lands not allocated to anybody. This is in support of the claim made by its DW1 Victor Mensah under cross examination that AMA has powers over such government lands in the following exchanges:
Q: If you look at paragraph 3 of the deed of assignment that recital will therefore be wrong
A: The recital is correct
Q. When the AMA says that it has land which is the subject matter of this litigation the AMA is misstating the fact of ownership
A. AMA has jurisdiction over government lands that are not being used immediately by the government of Ghana, and it can grant for the purposes it deems fit subject to certain terms and conditions…
Q. I put it to you that the AMA cannot make any such grant without the consent of Lands Commission
A. This is a convention that exists between the agencies of government like AMA and Lands Commission”
I do not think that the exercise of powers of an Assembly under Act 462 to enter unto any land to carry out inspection, inquiry or execution of works or the improvement and management of human settlement as well as the environment in the district includes the alienation of an Assembly of a government land. All public lands in Ghana under article 257 of the 1992 Constitution has been vested in the President on behalf and in trust for the people of Ghana. Article 258 which creates the Lands Commission and gives it the following functions, among others, as:
“(1) There shall be established a Lands Commission which shall, in co-ordination with the relevant public agencies and governmental bodies, perform the following functions -
(a) on behalf of the Government, manage public lands and any lands vested in the President by this Constitution or by any other law or any lands vested in the Commission;
It is therefore clear that the mandate for managing public lands is a function of the Land Commission and not that of the District Assembly. And that the Lands Commission performs that role in co-ordination with the relevant government agencies and institutions. The land has been termed by the defendant as a reserved land. Such powers of the State to create a reserved is by virtue of Land (Statutory Wayleaves) Act, 1963, Act 186.
The law gives the power to the President of Ghana to acquire a right of way or any similar right over land whenever the President is of the opinion that it is in the public interest to do. Such a statutory wayleaves may be created in respect of a highway or any other structure by means of an Executive Instrument. In respect of this land it became the land of government in pursuance of Act 186 by the issuance of an Executive Instrument called Lands (Statutory Wayleaves) Accra – Tema Motorway (Phase 11) Instrument, 1973 where in the schedule the land acquired for the extension of the motorway encompasses the land the plaintiff occupied.
This land being government land, I find that the only agency or body or authority that is constitutionally mandated to deal with in terms of alienation is not the defendant but rather the Lands Commission. It is the Lands Commission that has the power to deal with the land but not an Assembly who may engage in alienation and later seek the blessings of the Lands Commission. There is no dispute at all between the parties that defendant did grant the land to plaintiff and no issue is joined on that fact. As it is trite that where a party makes an averment and that averment is admitted or is not denied then no issue is joined on that matter for determination. See Brobbey J. (as he then was) in HAMMOND v AMUAH  1 GLR 89. From the analysis supra I find as a fact and answer in the negative to the first issue that the grant by AMA of the land to Plaintiff was unlawful as it had no such mandate to make an alienation as is seen in Ex ‘E’.
But having found the unlawfulness of the grant of the land to plaintiff by defendant; does it make plaintiff entitled to its claim of recovery of the cost of investment on the land. Put differently the court will have to determine whether as plaintiff’s counsel claim that plaintiff was deluded into entering on the land by defendant and if it was any representation made by defendant that caused the plaintiff to invest on the land. Plaintiff’s representative had claimed through its witness statement at paragraph 13 that AMA had made Plaintiff aware of AMA’s title to the land and their right to grant the land to the Plaintiff. Plaintiff further support its claim with Ex ‘E’ that AMA had represented to it that it had title to the land and it was that representation that deluded it to enter the land and caused it to invest there.
A look at the exhibits tendered by the parties and also the cross examination of the Plaintiff’s representative seems to show that Plaintiff was fully aware that defendant was not the owner of the land before Plaintiff applied for the right to be on the land. Before examining the exhibits on record, the cross examination of Bismarck Agyapong revealed the following:
“Q: If you look at the heading it reads “Application for Usage of Government land which presupposes that you are aware that it is a government land
A: Yes my Lord”
The document counsel for defendant was referring to here is Ex ‘A’ written by Plaintiff and it is important that I quote the first paragraph of that exhibit. It reads:
“The above company has sited a piece of land at Abelemkpe near the overpass. The said land which is a government land is being used as a refuse dump and a hide out for thieves. We think we can put the land into meaningful use at the same time generate income for the sub metro and get the unemployed in the sub metro work to do”.
From the answer of Plaintiff’s representative whiles under cross examination as quoted supra and Ex ‘A’ written by Plaintiff itself, I find as a fact that Plaintiff was fully aware that the land it made investment on did not belong to defendant but was a government land. And if it knew it to be a government land and not for the defendant the right body to apply for allocation of government land was the Lands Commission and not the AMA. Long before Ex ‘E’ was entered into between the parties in 2014, on 7th August, 2012 defendant had issued Ex ‘B’ to Plaintiff and had told Plaintiff among others that:
“be reminded that the space is a reserved land and no permanent structure is to be constructed on the land.
The government had the right to revoke this temporal [sic] permit without any cost to it, when the government decides to use the space for any purpose”.
I have already detailed out how the land became a government reserved land by virtue of an Executive Instrument and Ex ‘B’ reminding Plaintiff that it is such a government land was to put Plaintiff on notice that defendant was not representing that it was the owner of the land. So if Plaintiff had been told in unequivocal terms that the land it was seeking was a government land and its representative in the person of its Managing Director has admitted in court that Plaintiff knew that the land was a government land, and per its own showing and exhibit it state that the land was a government land; could defendant be held liable for making representations that Plaintiff now claims has turned out to be false?
Representation according to the Law of Contract by Chesire & Fifoot, 15th Ed at page 332, the learned authors states that:
“is a statement of fact by one party to the contract (the representor) to the other (the representee) which while not forming a term of the contract is yet one of the reasons that induces the representee to enter into the contract. So a misrepresentation is simply a representation that is untrue”.
Misrepresentation could either be a fraudulent one, or a negligent misrepresentation or could be an innocent one. I have found that defendant did not represent to plaintiff that it was the owner of the land and even if in Ex ‘E’ defendant purports to claim to be the owner, that is completely irrelevant as plaintiff knew all along that defendant was not the owner. It is the law on misrepresentation that knowledge of the untruth of a representation is a complete bar to relief to a claim since a Plaintiff cannot assert that he has been misled by the statement. As it was noted in the English case of IRVINE v KIRKPATRICK 7 BELL APP 186 that
“the misrepresentation and the concealment go for just nothing, because it is not dolus qui dat locum contractui”.
Plaintiff being fully aware that defendant had no authority to make any alienation of government land whatever losses Plaintiff has incurred for the demolition of its property cannot be blamed on the defendant. Plaintiff’s counsel in his address cited section 28(1) of the Sales of Goods Act, Act 137 that AMA did not have good title to the land and could not have protected the Plaintiff. With the greatest respect to the submission of counsel for Plaintiff, I fail to appreciate the import of the citing of the Sale of Goods Act. As goods in the Sale of Goods Act, Act 137 is defined under section 81 as:
“movable property of every description, and includes growing crops or plants and other things attached to or forming part of the land which are agreed to be severed before sale by or under the contract of sale”
And under section 74 of the law it notes that “
“This Act applies to every contract of sale of goods made after the commencement of this Act”.
Illustration of this provision by some few authorities in England and Ghana will show that it is not every contract of sale that comes within the scope of sale of goods. In the English case of MORGAN v RUSSELL  1 K. B 357; where there was an issue as to whether or not the sale of cinders and slag which were affixed to the land but not detached from the soil was a sale of goods, the court held that it was not a sale of goods, but a sale of an interest in land.
Coming home in the Ghanaian case of HALABY v WIREDU  2 GLR 249 where the plaintiff sold his business and stock-in-trade together with the business premises to the defendant by two separate agreements, Koranteng –Addow J held that it was not every contract of sale that came within the scope of the Sale of Goods and that:
“The sale of a business was not the sale of goods within the meaning of Act 137. The sale of a business was a sale of more than the goods that were sold by the businessman. It included the sale of goodwill and a whole business organisation. … what was sold consisted also of an interest in land and this could not be the sale of goods”.
Clearly then, alienation of an immovable property is not within the scope of the Sale of Goods Act. With the Plaintiff having failed to prove that defendant misled it into coming unto the land, defendant cannot accordingly be held liable for the destruction to the property or investment made by Plaintiff and the latter has no cause of action against AMA. In the premises it would be futile for the court to proceed to vet the bill of quantity submitted by PW1.
The action of Plaintiff against AMA is accordingly dismissed in its entirety. I will award cost of GH¢6.000.00 against Plaintiff.