|
Land -
Agricultural tenant.- Lease -
Tema Acquisition Area. -
Tema Development Corporation
(amendment ) Instrument 1989 (LI
1468). - Whether Recovery
of compensation at the recent
market value - Whether or not
Valuation be bedetermined by the
March 2005 of the 5 acres of
land re-entered by the
defendants or their agent
HEADNOTES
The
Respondent (TDC) is a Public
Corporation set up in 1952 by an
Act of Parliament with the sole
responsibility to manage the
township that had been created
to provide accommodation to
those that would engage in
economic operations in the
township. It was given a
125-year lease term to manage
this land area known as the Tema
Acquisition Area. Currently, the
Corporation functions under L.I.
1468 of 1989. It was in line
with this authority to manage
the acquired land that the
Respondent leased out portions
of the land for Commercial and
Industrial purposes, The records
show that at the time this offer
was made to the Appellant, he
was the very officer of the
Respondent in-charge of such
lands. The title of that
position which he held during
this time was ‘Traditional Lands
Supervisor’. Meanwhile, there is
nothing on record to show that
the Appellant wrote back to the
Respondent accepting the terms
in the offer letter as paragraph
3 of the letter quoted above
provided because he did not
tender in evidence during the
trial any such letter. What he
told the trial court was that he
gave all those letters to his
first lawyer Mr Kye who was
deceased at the time of the
trial. Neither do the records
show that the Respondent at any
time formalised the offer made
to the Appellant with the
preparation of a formal or legal
lease as indicated under
paragraph 5 of the letter quoted
above. It is therefore not
strange that the Valuers who
prepared the 2005 Valuation
Report that the Appellant used
to support his claim in the
trial High Court stated
expressly in their report that
they could not sight any title
deed covering Appellant’s root
of title to the land as it may,
documents on record show that
the Appellant was indeed offered
the area in question and
subsequently granted right of
entry. His leasehold interest in
the land could therefore be
better described as an equitable
one. About ten (10) years after
the offer or grant of the
agricultural tenancy to the
Appellant the Respondent
received a directive from the
Government to release or cede a
portion of the acquired land to
the original owners (i.e. Kpone
Traditional Council) for
residential purposes.
Unfortunately for Appellant, the
granted to him happened to fall
into this category.
Consequently, the Respondent,
wrote to all those tenant
farmers whose lands were
affected by the re-entry
(including the Appellant),
directing them to cease their
farming operations on the land
for the said lands to be
surrendered to the original
owners as directed by the
Government. The Respondent, as a
result, re-designed 1.10 acres
out of the 6.19 acres granted to
the Appellant into six (6)
residential plots and gave all
to the Appellant free of charge
for his own use. The remaining
five (5) acres of land was
surrendered to the Kpone
Traditional Council as directed
by the Government. Between the
years 2000 and 2004, the
Appellant, with the consent of
the Respondent, sold five (5)
out of the six (6) residential
plots allocated to him free of
charge, to three different
purchasers and pocketed the
proceeds. He then kept one (1)
plot for his own use..
The trial High Court, on
29/10/2010, gave the Appellant
judgment on the first two of his
reliefs but denied him the
third. The reason given for
denying him the third relief was
that he had been awarded
compensation. The Court of
Appeal, upheld the appeal of the
Respondent and set aside
entirely the judgment of the
trial High Court. the Appellant
filed a notice of appeal against
the judgment
HELD
The Court
of Appeal was on course when it
rejected and dismissed the whole
report.Fundamentally, the appeal
has no merits whatsoever as the
Court of Appeal did not err in
the conclusions it reached. The
Appellant only wanted to reap
where he had not sown. His
appeal cannot therefore succeed
and it is hereby dismissed.
STATUTES REFERRED TO IN JUDGMENT
Courts Act, 1993 [Act 459],
Evidence Act, 1975 [NRCD 323]
CASES REFERRED TO IN JUDGMENT
MAJOLAGBE v LARBI [1959] GLR 190
ZABRAMA v SEGBEDZI [1991] 2 GLR
221
ASPIN v AUSTIN [1844] 5 QB 671
Akuffo-Addo v Catherine [1992]1
GLR 377, SC;
Koglex
(No.2) v Field [2000] SCGLR 175;
uakwa v
Bosom [2001-2002] SCGLR 61;
Brown v
Quashigah [2003-2004] 2 SCGLR
930;
Ackah v
Pergah Transport Ltd & Others
[2010] SCGLR 728;
Aryeh &
Akakpo v Ayaa Iddrisu [2010]
SCGLR 891.
RABIN & Others v
GERSHON BERGER ASSOCIATION LTD &
Others [1986] 1 WLR 526
KRU v SAOUD BROS & SONS [1975] 1
GLR 46, C.A.;
AYIWA v BUDU [1963] 1 GLR 86,
S.C.;
REPUBLIC v MUNKAILA [1996-97]
SCGLR 445
TAKORADI FLOUR MILLS v SAMIR
FARIS [2005-2006] SCGLR 882
ASPIN v
AUSTIN [1844] 5 QB 671
RABIN &
Others v GERSHON BERGER
ASSOCIATION LTD & Others [1986]
1 WLR 526.
MINISTER FOR IMMIGRATION V.
NYSTON (1937) 47 CLR 1
BANK OF AUSTRALASIA V. PALMER
[1897] A.C 540.
MOUGANIE V. YEMOH [1977] 1GLR
163.
RABIN v GERSON BERGER
ASSOCIATION LTD. [1986]1WLR 526
Strakosch v. Connecticut Trust
Co., 96 Conn. 471, 114 At. 6AJ
(1921),
BOOKS REFERRED TO IN JUDGMENT
PRACTICAL DRAFTSMAN’,da Rocha
and Lodoh
The Oxford English Dictionary
Chitty on Contracts vol 1 (Sweet
& Maxwell,29th Ed,2004 para
12-098).
DELIVERING THE LEADING JUDGMEN
APPAU,
JSC. :
COUNSEL
OBENG MANU JNR.ESQ FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
K. SARFO – AGYEKUM NYANOR ESQ. FOR
THE 3RD
DEFENDANTAPPELLANT /RESPONDENT.
J
U D G M E N T
-------------------------------------------------------------------------------------------------------------------------------------------------
APPAU, JSC. :
The Court
of Appeal, on 6th
December 2012, upheld an appeal
against the judgment of the High
Court, Tema dated 24th
November 2010. Not satisfied
with this decision of the Court
of Appeal, the Plaintiff, who
won in the trial High Court, has
come before us on a further
appeal for a reconsideration of
his case. I re-call below the
facts of the case as gathered
from the evidence on record.
Facts of the case
The
Plaintiff/respondent/appellant
was an employee of the Tema
Development Corporation, which
is the
Defendant/appellant/respondent
herein. For purposes of brevity,
he would simply be referred to
as the ‘Appellant’ while the
Defendant/appellant/respondent
would assume the description
‘Respondent’.
Somewhere
in the middle of 1986, the
Appellant, while in the
employment of the Respondent,
was offered a 6.19 acre land
belonging to his employer for
farming purposes as an
agricultural tenant. The letter
that conveyed the offer, which
the Appellant described as a
lease in his testimony in the
trial High Court, was dated
26/06/1986. It is headed;
“AGRO-BASED INDUSTRIAL PLOT NO.
8A S.E. (TPD/T/AGR/607).
The
opening paragraph of the offer
letter, which the Appellant
tendered in evidence in the
trial High Court as Exhibit ‘A’
reads: “It is proposed to
lease to you the above-mentioned
plot measuring 2.50 Ha. (6.19
acres) approximately along the
Kpone Road on the following
basis:” The term of the
proposed lease was sixty (60)
years certain, commencing from
the date the Respondent granted
the Appellant right of entry.
The Appellant was only required
to pay an annual ground rent of
five thousand, eight hundred and
thirty eight old cedis
(c5,838.00), which is now fifty
eight Ghana pesewas (GHc0.58),
to the Respondent for the use of
the whole land as stipulated
under the terms stated in the
offer letter.
Paragraphs 3, 4 and 5 of the
offer letter provided as
follows:
“3. Your
written acceptance of this offer
together with the first year’s
ground rent, survey and site
plan fees must reach the
Corporation within one calendar
month from the date hereof. It
must be emphasized that this
offer will lapse if not accepted
within the time stipulated.
4. Also,
if the offer is accepted and the
lessee has not commenced
operations within two years, the
Corporation will re-enter and
re-allocate the said land.
5. As
soon as we are satisfied that
there is an uninterrupted and
physical development of the plot
for at least two consecutive
years, our Legal Department will
be advised to commence action on
the preparation of the lease.”
Paragraph
2 also provided:
“Notwithstanding any provision
contained herein, your tenancy
shall be subject to any new
policy, rule or bye-law that may
be adopted and passed by the
Tema Development Corporation
and, or the Government in so far
as it affects or they affect the
Tema Development Corporation.”
History of the Respondent; i.e.
Tema Development Corporation
(TDC)
The
Respondent (TDC) is a Public
Corporation set up in 1952 by an
Act of Parliament with the sole
responsibility to plan and
develop about sixty-three (63)
square miles of public land and
also manage the township that
had been created to provide
accommodation to those that
would engage in economic
operations in the township. It
was given a 125-year lease term
to manage this land area known
as the Tema Acquisition Area.
Currently, the Corporation
functions under L.I. 1468
of 1989. It was in line with
this authority to manage the
acquired land that the
Respondent leased out portions
of the land for Commercial and
Industrial purposes, including
Agriculture. The Appellant, as
an employee of the Respondent,
capitalised on this development
and secured for himself an area
of 6.19 acres for farming
purposes.
The
records show that at the time
this offer was made to the
Appellant, he was the very
officer of the Respondent
in-charge of such lands. The
title of that position which he
held during this time was
‘Traditional Lands Supervisor’.
Meanwhile, there is nothing on
record to show that the
Appellant wrote back to the
Respondent accepting the terms
in the offer letter as paragraph
3 of the letter quoted above
provided because he did not
tender in evidence during the
trial any such letter. What he
told the trial court was that he
gave all those letters to his
first lawyer Mr Kye who was
deceased at the time of the
trial. Neither do the records
show that the Respondent at any
time formalised the offer made
to the Appellant with the
preparation of a formal or legal
lease as indicated under
paragraph 5 of the letter quoted
above. It is therefore not
strange that the Valuers who
prepared the 2005 Valuation
Report that the Appellant used
to support his claim in the
trial High Court stated
expressly in their report that
they could not sight any title
deed covering the 6.19 acre land
showing the Appellant’s root of
title to the land, aside of the
offer letter referred to above.
It was this offer letter which
the Appellant tendered in
evidence (Exhibit ‘A’)
as the lease granted him by the
Respondent.
For
describing the offer letter as
the lease granted him in his
testimony in the trial court,
the Appellant was in effect
saying that no formal lease was
ever prepared and executed
between him and the Respondent
contrary to paragraph 5 of the
offer letter. Be that as it may,
documents on record show that
the Appellant was indeed offered
the area in question and
subsequently granted right of
entry. His leasehold interest in
the land could therefore be
better described as an equitable
one.
Government directive to release
a portion of the land to the
original land owner
About ten
(10) years after the offer or
grant of the agricultural
tenancy to the Appellant (i.e.
in 1996), the Respondent
received a directive from the
Government to release or cede a
portion of the acquired land to
the original owners (i.e. Kpone
Traditional Council) for
residential purposes.
Unfortunately for Appellant, the
6.19 acres that was granted to
him happened to fall into this
category. Consequently, the
Respondent, on 27/09/1996, wrote
to all those tenant farmers
whose lands were affected by the
re-entry (including the
Appellant), directing them to
cease their farming operations
on the land for the said lands
to be surrendered to the
original owners as directed by
the Government.
The
Respondent, as a result,
re-designed 1.10 acres out of
the 6.19 acres granted to the
Appellant into six (6)
residential plots and gave all
to the Appellant free of charge
for his own use. The remaining
five (5) acres of land was
surrendered to the Kpone
Traditional Council as directed
by the Government. Between the
years 2000 and 2004, the
Appellant, with the consent of
the Respondent, sold five (5)
out of the six (6) residential
plots allocated to him free of
charge, to three different
purchasers and pocketed the
proceeds. He then kept one (1)
plot for his own use.
On
19/06/2007; i.e. almost eleven
(11) years after the surrender
of the five (5) acres of land to
the Kpone Traditional Council as
directed by the Government;
which was one of the
pre-conditions for the grant of
the land to the Appellant as
expressly stated under paragraph
2 of the offer letter quoted
above, the Appellant, who by
then had retired from the
services of the Respondent,
dragged his former employer to
the Tema High Court claiming the
following reliefs:
“(a) Recovery of compensation at
the recent market value as
determined by the March 2005
Valuation of the 5 acres of land
re-entered by the defendants or
their agent;
(b) Interest on the compensation
from assessment to date of
payment and;
(c) Damages for breach of
contract”.
Decision of the trial High Court
The trial
High Court, on 29/10/2010, gave
the Appellant judgment on the
first two of his reliefs but
denied him the third. The reason
given for denying him the third
relief was that he had been
awarded compensation. The
compensation was exactly the
total sum assessed in the 2005
valuation report, which took
account of structures Appellant
allegedly had on the land at the
time of the re-entry,
disturbance caused by the
re-entry and then the
actual/market value of the
five-acre land re-entered.
The judge
wrote; “I award the said
amount of c609,975,000.00 i.e.
GHc60,997.50 (Sixty thousand,
nine hundred and ninety-seven
Ghana cedis, fifty pesewas) with
interest from March 2005 to date
of final payment. Having been
awarded compensation, the
Plaintiff will not be awarded
damages for breach of contract”.
Appellant
was given additional costs of
Three thousand Ghana cedis (GHc3,000.00).
According to the Entry of
Judgment that was served on the
Respondent, interest alone on
the compensation was assessed at
One hundred and seven thousand,
six hundred and eight Ghana
cedis, fifty-seven pesewas (GHc107,
608.57).
Appeal by the Respondent to the
Court of Appeal
Not
enthused by this judgment, the
Respondent appealed against same
to the Court of Appeal. The
Notice of Appeal was filed on
15/12/2010. The grounds of
appeal were that:
“(a) The learned trial judge
erred in law in relying on a
valuation report of State land
which had not been certified by
the Land Valuation Board.
(b) The trial judge failed to
give due and proper
consideration to the defendant’s
case that the 1.10 acres of
farmland converted to
residential use and released to
the Plaintiff was adequate
compensation for the loss of the
Plaintiff’s 6 acre farmland.
(c) The trial judge erred in
relying solely on a valuation
report tainted with
inaccuracies.
(d) The trial judge erred in
failing to take into
consideration the huge sums of
money realised by the Plaintiff
from the sale of the plots of
land released to the Plaintiff
by the defendant, the value of
the land having appreciated as a
result of the change of use of
the land from farming to
residential purpose.
(e) The judgment is against the
weight of evidence.”
The
Respondent, in its written
submissions in the first
appellate court, abandoned its
first ground; i.e. ground (a)
but argued grounds (b),
(c), (d) and
(e). It canvassed grounds
(b) and (e) together
followed by ground (c)
and (d) separately.
Decision of the Court of Appeal
The Court
of Appeal, on 06/12/2012, upheld
the appeal of the Respondent and
set aside entirely the judgment
of the trial High Court. The
last paragraph of the judgment
of the Court of Appeal was as
follows:
“We’ve read the whole record in
this case and we are of the view
that the judgment of the lower
court is not maintainable. The
whole judgment is flawed because
it was unsupported by the
evidence on record and mainly
because the reasons in support
of the findings are
unsatisfactory. The appeal
accordingly succeeds in its
entirety and we set aside the
decision of the High Court, Tema
for the reasons given.”
The main
reasons advanced by the Court of
Appeal in allowing the appeal
against the judgment of the
trial High Court as inferred
from the judgment of the Court
of Appeal were that;
(i)
it was wrong for the trial court
to award the Appellant
compensation in the sum of
GHc60,997.00 (which includes
the market value of the 5-acre
land which the Appellant did not
own), when the Respondent had
already compensated the
Appellant by giving him 1.10
acres out of the 6.19 acres,
which was re-designed into six
(6) residential plots, free of
charge and,
(ii)
the trial court erred when it
accepted wholly without any
question the valuation report
submitted by the Appellant when
the said report lacked
credibility.
Part of
the judgment of the Court of
Appeal that questioned the
propriety of the valuation
report was as follows:
“In the valuation report there
is included the site value which
stood at GHc50,900.00
representing the value of the
land. The tenant never purchased
the land. He was only using the
land for farming and paying the
annual rent of c5,838.00. The
absurdity in the report requires
the owner of the land to pay the
tenant the value of the land he
never bought in the first place.
The 1986 offer Exhibit A to the
Plaintiff was the payment of the
ground rent only. There was no
outright sale of the land to the
Plaintiff for which compensation
of GHc60,997.00 was to be paid
back to him as final
compensation. Another absurd
conclusion contained in the
valuation report is the amount
of GHc7,725.00 representing the
expected yield of three fish
ponds for a period calculated to
be over 17 years. We are of the
view that these absurdities
undermine the validity of the
whole report and in our view the
report lacks credibility and
ought to be rejected as such.”
The Court
of appeal was of the view that
the judgment of the trial High
Court was against the weight of
evidence since the trial judge
failed to give due and proper
consideration to the
Respondent’s case. It is against
this judgment that the Appellant
is now before us requesting for
a further post-mortem
examination on the judgment of
the Court of Appeal which he
believes was flawed.
Appellant’s appeal to this Court
Almost
three months after the Court of
Appeal had delivered its
judgment setting aside the
judgment of the trial High
Court, precisely on the 5th
of March 2013, the Appellant
filed a notice of appeal against
the judgment. The grounds of
appeal canvassed in the notice
of appeal were four and the
relief sought by the Appellant
from this Court is that the
judgment of the Court of Appeal
be set aside and that of the
High court dated 29th
October 2010 be restored. The
grounds of appeal are:
a.
The Honourable Court
erred when it held that the 1.10
acre of land was compensation by
the Defendant/Respondent to the
Plaintiff/Appellant for the
re-entry of the 5 acres by Tema
Development Corporation in the
absence of any evidence to that
effect.
b.
The Court of Appeal
erred further when it arrived at
a conclusion that the
Plaintiff/Respondent/Appellant
manipulated the system as a
former employee and allocated a
large tract of land to himself
(sic) is unsupported by the
evidence on record at the trial.
c.
The Court of Appeal’s
reasons for setting aside the
valuation report (Exhibit ‘E’)
upon which the trial court
awarded compensation to the
Plaintiff/Respondent/Appellant
was totally flawed and
unsupported given that the
Plaintiff/Appellant had
structures on the land at the
time of the re-entry.
d.
The judgment is
against the weight of evidence.
The
Appellant, in his written
submissions, argued the grounds
of appeal in the alphabetical
order in which he arranged them
above. Clearly, grounds (a)
and (b) fall under the
omnibus ground (d); i.e.
the judgment is against the
weight of evidence.
Ground
(a) is to the effect that
there is no evidence on record
to show that the 1.10 acres of
land granted to the Appellant
was compensation for the
re-entry of the five (5) acres
ceded to the Kpone Traditional
Council. The Court of Appeal
therefore erred in coming to
that conclusion.
Ground
(b) is also saying that
there is no evidence on record
to support the Court of Appeal’s
conclusion that the Appellant
manipulated the system as a
former employee of the
Respondent and allocated the
6.19 acres to himself. So that
conclusion also was an error on
the part of the Court of Appeal.
Both
grounds in effect suggest that
the judgment of the Court of
Appeal on those two issues was
against the weight of evidence
adduced at the trial. I have
therefore decided to determine
the three grounds together under
the omnibus ground; i.e. the
judgment is against the weight
of evidence.
Ground
(c), which is on the
valuation report, would then
follow under a different caption
in that order.
Appellant’s submissions on
grounds (a), (b) and (d)
On ground
(a), appellant submitted
that there is no evidence
whatsoever on record to suggest
that the Respondent granted him
1.10 acres of land as
compensation for the five (5)
acres that was re-claimed,
contrary to the finding of the
Court of Appeal that there was
evidence from the representative
of the Respondent to that
effect. He said the Respondent
only introduced that assertion
in a last minute amendment that
was granted by the trial court
but he denied that averment in
his amended reply putting that
issue in controversy.
Appellant
referred to section 12 (2) of
the Evidence Act, 1975 [NRCD
323] on the standard of proof in
civil cases, which is proof on a
preponderance of probabilities
defined as; “the degree of
certainty of belief in the mind
of the tribunal of fact or the
court by which it is convinced
that the existence of a fact is
more probable than its
non-existence”.
According
to him, since the Appellant
denied that the 1.10 acres of
land that was given him was
compensation, it behoved on the
Respondent to lead credible
evidence to establish that claim
but not just to repeat that
assertion under
cross-examination without any
corroborative evidence. He cited
the cases of MAJOLAGBE v
LARBI [1959] GLR 190 and
ZABRAMA v SEGBEDZI [1991] 2 GLR
221 to support his
contention.
The
cumulative holdings in the two
cases cited supra are that where
a party’s averment is denied by
his opponent, he/she has the
burden to establish that, that
averment or assertion is true by
leading admissible evidence from
which the facts he/she asserts
can properly or safely be
inferred. It is not enough for
the party just to mount the
witness box to repeat those
averments.
Appellant
contended that the statement
that he was given 1.10 acres of
land as compensation could not
be justified in any way because
the Respondent could not just
enter (5) acres out of a total
of 6.19 acres of
someone’s land of which he is in
effective occupation after
validly acquiring same
and claim that 1.10
acres of it constitutes
compensation for the five acres
re-entered in the absence of any
agreement to that effect.
{Emphasis added}
He
concluded his submissions on
this ground by quoting part of
the judgment of the trial court
which he said is a much better
appreciation of the evidence
adduced at the trial than the
conclusion reached by the Court
of Appeal. This was what the
trial judge said;
“if an organization like TDC
will give away 6 acres of land
to its employee and later one
acre as compensation without an
application form being filled or
a letter offering the said
compensation (page 94) then it
is indicative of the
disorganised way business is
conducted there. It is bad
testimony. The innuendoes that
Plaintiff was a schedule officer
then and must have something to
do with this lack of
documentation does not amount to
corroborative evidence. The
amended statement of defence
does not allege and
particularize fraud”.
On ground
(b), Appellant contended
that he was a former employee of
the Respondent who retired with
honours. No adverse findings
were ever made against him and
none came out during the trial.
It was therefore an act of
extreme injustice for the Court
of Appeal to conclude that he
had used his position as a
former employee to manipulate
the system of the Respondent to
allocate a large tract of land
to himself. He went on to say
that the land measuring 6.19
acres was allocated to him by a
lease document (Exhibit ‘A’).
According to him, the only way
this lease agreement between him
and the Respondent could be
varied would be another written
document. He submitted that
where the parties have entered
into a written agreement with
express stipulations, it is
manifestly not desirable to
extend them by any implications,
quoting the Latin expression;
“expressum facit cessare
tacitum”.
He
contended further that under the
parol evidence rule, it is a
rule of law that if there is a
contract which has been reduced
into writing, verbal evidence is
not allowed to be given so as to
add or subtract or in any manner
to vary or qualify the contract.
He quoted the English cases of
ASPIN v AUSTIN [1844] 5 QB
671 and RABIN & Others v
GERSHON BERGER ASSOCIATION LTD &
Others [1986] 1 WLR 526 @ 530
to support the argument that
a valid lease can only be varied
by another written transaction.
It is on
the basis of the above arguments
that Appellant contended the
judgment of the Court of Appeal
was against the weight of
evidence adduced at the trial.
Respondent’s submissions in
response to grounds (a), (b) and
(d)
The
Respondent disagreed totally
with the Appellant’s assertion
that there was no evidence from
the Respondent to suggest that
the 1.10 acres that was granted
to the Appellant was
compensation for truncating the
60-year lease offered the
Appellant for agricultural
purposes. It contended strongly
that there is overwhelming
evidence on record to prove the
Appellant wrong on this point.
Respondent recounted the
testimony of Mr Swaniker at
pages 170 to 178 to support this
assertion. He then submitted as
follows: “I humbly submit
that contrary to the submission
of my learned friend on the
issue of compensation, there is
ample evidence on record to
demonstrate that 1.10 acres of
residential plots converted from
the 6.19 acres of agricultural
land re-entered by the
Respondent, was allocated to the
Appellant as compensation for
the re-entry and determination
of the lease and was so rightly
held by the Court of Appeal”.
On ground
(b) the Respondent
contended that it found nothing
wrong with the Court of Appeal’s
conclusion that the Appellant
manipulated the system to his
advantage in the allocation of
the 6.19 acres of land meant for
agricultural purposes. He quoted
in extenso that part of the
Court of Appeal’s judgment on
the issue which appears at pages
262 to 263 of the record and
then made the following
submission: “I submit that
the Court of Appeal’s decision
is fully supported by
Respondent’s representative’s
uncontroverted evidence. Here is
an employee who happened to be
in charge of the land leased to
him while he was at post. He
failed to hand over properly to
his successor when he was
leaving the Corporation on
retirement thereby making it
extremely difficult to locate
the file relating to the lease.
The irony of it is that he had
in his possession Exhibit A, a
photocopy of a document on file.
Exhibit A had a folio number and
a dispatched stamp on it at the
time it was tendered. This means
that he had access to the file
after Exhibit A had been placed
on the file and numbered. If the
applicant claims that the 1.10
acres of land allocated to him
was not compensation then it
stands to reason that he
manipulated the system to his
advantage and the Court of
Appeal was perfectly right in
the conclusion it arrived at”.
Evaluation of the facts and law
with regard to the submissions
of parties on grounds (a), (b)
and (d)
It is
trite or a well-established
principle of law that where an
appellant had appealed on the
omnibus ground that the judgment
is against the weight of
evidence, the appellate court
was bound to consider
comprehensively the entire
evidence on record before coming
to a conclusion on the matter.
This Court has expounded this
principle in a plethora of
decisions including the
following: 1. Akuffo-Addo v
Catherine [1992]1 GLR 377, SC;
Koglex (No.2) v Field [2000]
SCGLR 175; Tuakwa v Bosom
[2001-2002] SCGLR 61; Brown v
Quashigah [2003-2004] 2 SCGLR
930; Ackah v Pergah Transport
Ltd & Others [2010] SCGLR 728;
Aryeh & Akakpo v Ayaa Iddrisu
[2010] SCGLR 891.
The Court
of Appeal did not derogate from
its duty in this regard when it
analysed the record before it
and set aside the judgment of
the trial court that went in
favour of the Appellant on the
ground that it was against the
weight of evidence adduced at
the trial. Having climbed
further to this Court after
losing in the Court of Appeal,
the Appellant has invoked our
jurisdiction to further evaluate
the whole evidence on record and
to come to a conclusion
different from that of the first
appellate court by breathing
life into the demised judgment
of the trial court.
Since
this is a duty bestowed on us by
the Constitution, 1992 (articles
129(1) and 131) and sections
2(1) and 4 of the Courts Act,
1993 [Act 459], we hereby set
out on our journey to accomplish
this duty. We do so, mindful of
the decision of this Court in
Koglex (No.2) v Field (supra)
that as a second appellate
court, this Court must satisfy
itself that the judgment of the
first appellate court based on
findings of fact is justified on
the basis of the evidence and
materials in the record of
proceedings.
In his
evidence in the trial court as
well as in his written
submissions in the statement of
case filed on 11/03/2015, the
Appellant did not deny that the
Respondent did grant him six (6)
residential plots of land
covering an area of 1.10 acres
re-designed out of the 6.19
acres originally allocated to
him for agricultural purposes
per the offer letter tendered in
evidence as Exh ‘A’. His
contention rather was that the
1.10 acres made up of six
residential building plots that
were granted to him was not
compensation because there was
no agreement to that effect. His
argument was as follows:
“The burden of proof to
establish that the 1.10 acres of
land retained by the appellant
was compensation for the 5 acres
rested on the Respondent who
failed to discharge it, except
repeat it in evidence under
cross-examination. In the case
of MAJOLAGBE vrs. LARBI [1959]
GLR 190, it was held that where
an averment in a party’s
pleading is capable of positive
proof, it is not sufficient for
the party to mount the witness
box and repeat it. Some
corroborative evidence must be
adduced.
This statement cannot be
justified in any way
because TDC cannot
re-enter 5 acres out of a total
of 6.19 acres of a person’s land
in which he is in effective
possession after validly
acquiring same and claim that
1.10 acres of it constitutes
compensation for the 5 acres
re-entered in the absence of an
agreement to that effect.
This argument flies in the
face of the evidence since
Respondent led no iota of
evidence to prove this
allegation…”
{Emphasis added}
We find
unfathomable the logic in the
Appellant’s argument as
canvassed above. Appellant is
behaving as if the 6.19 acres of
land on which he was farming
belonged to him; that he was the
owner and the Respondent came
from nowhere and took 5 acres
out of it. His argument
re-called above that; “TDC
cannot re-enter 5 acres out of a
total of 6.19 acres of a
person’s land in which he is in
effective possession after
validly acquiring same and
claim that 1.10 acres of it
constitutes compensation for the
5 acres re-entered in the
absence of agreement to that
effect”, suggests that
he was the actual owner of the
land. This is incredible!
We do not
blame the Appellant for charting
the course he chose in dragging
his former employer to court for
doing him a favour. We blame the
Respondent for dealing
haphazardly with government land
that was entrusted under its
care for specific purposes to
satisfy one of its employees
employed to secure the very land
in question.
It is
clear from Exhibit ‘A’; i.e. the
offer letter that, the
Respondent did not follow its
own procedures governing such
allocations after granting the
Appellant right of entry.
Paragraph
5 of Exhibit ‘A’ is categorical
that; “As soon as we are
satisfied that there is an
uninterrupted and physical
development of the plot for at
least two consecutive years, our
Legal Department will be advised
to commence action on the
preparation of the lease”.
No such
lease was ever prepared and
executed between the Respondent
and the Appellant for the ten
(10) years that the Appellant
was in occupation of the land.
The Valuers who prepared the
2005 valuation report were
emphatic that they did not sight
any lease document to establish
the Appellant’s root of title.
Again, the offer letter was
silent on the fact that the
Appellant was an employee of the
Respondent and the very officer
responsible for such grants;
being the supervisor of those
lands described as ‘traditional
lands’.
If,
therefore, the Respondent
conducted its business in a
disorganised manner by not
following procedure in the grant
of the 1.10 acres to Appellant
after ceding the remainder to
the original owners; i.e. Kpone
Traditional Council, as the
trial judge chastised in her
judgment, could the Appellant
who was the schedule officer
responsible for such lands
escape blame?
The
reason why the Appellant dragged
the Respondent to the trial
court was that he had expended
money on the land in the course
of undertaking his farming
activities before the re-entry
but was not given any
compensation for the loss
incurred. Though he admits that
he was allocated six residential
plots of land covering an area
of 1.10 acres out of the 6.19
acres he was farming on after
the re-entry, he does not regard
that gesture as compensation for
the loss of farming rights
because there is no formal
agreement to that effect. His
argument was that merely
pleading that the 1.10 acres of
land granted to him was
compensation and entering the
witness box to repeat the said
pleading without any
corroborative testimony was not
sufficient to establish that
fact.
Incidentally, Appellant never
told the court the reason behind
the grant of the six residential
plots of land to him free of
charge after the release of the
land to the original owners. If
the 1.10 acres of land, which
the Respondent re-designed into
six (6) building plots and gave
all free of charge to the
Appellant immediately after the
re-entry in 1996 was not
compensation, then what was it?
A dash?
It is an
avowed principle of law that
corroboration is not a general
requirement of the law in the
absence of which the decision of
a court of fact would be
reversed. Section 7 (3) of the
Evidence Act, 1975 [NRCD 323]
provides: “Unless
otherwise provided by this or
any other enactment,
corroboration of admitted
evidence is not necessary to
sustain a finding of fact or
verdict”.
This
principle of law has been given
expression by the Court of
Appeal and this Court in the
cases of (1) KRU v SAOUD BROS
& SONS [1975] 1 GLR 46, C.A.;
AYIWA v BUDU [1963] 1 GLR 86,
S.C.; (3) REPUBLIC v MUNKAILA
[1996-97] SCGLR 445 @ 446,
holding (3) and then (4)
TAKORADI FLOUR MILLS v SAMIR
FARIS [2005-2006] SCGLR 882 @
883, (holding 3).
It must
be noted, as was recounted in
the Kru and Munkaila
cases (supra) that; judicial
decisions depend on
intelligence, quality and
credible facts but not on the
quantum or multiplicity of
witnesses produced at the trial.
Therefore, where no rule of law
or practice required
corroboration, the test is
whether the evidence adduced,
though given by a single
witness, was credible. Ansah,
JSC also coined it in the
following words in the
Takoradi Flour Mills case
(supra): “A tribunal of fact
can decide an issue on the
evidence of only one party. A
bare assertion on oath by a
single witness might in the
proper circumstances of a case
be enough to form the basis of a
judicial adjudication. The
essential thing is that the
witness is credible by the
standards set in section 80(2)
of the Evidence Act, 1973 [NRCD
323]…for; ‘testes ponderantur
non numerantur’, i.e.
(witnesses are weighed, but not
counted)”.
The
testimony of Respondent’s
representative Mr Swaniker was
to the effect that the 1.10
acres of land re-designed into
six residential building plots
and allocated to the Appellant
free of charge was compensation
for the loss Appellant incurred
when the land was re-entered and
released to the Kpone
Traditional Council on the
directives of the Government.
The Respondent, before adducing
this evidence, pleaded it under
paragraphs 7 and 8 of its
amended statement of defence
thus:
“7. In the alternative, 1.10
acres of the land was released
back to plaintiff for
residential purposes to
compensate him for the loss of
the 5 acres of farmland which he
lost through the government
directive.
8. The defendant says that the
plaintiff was adequately
compensated considering the fact
that the land released to the
plaintiff appreciated in value
as a result of change of use
from farming to residential”.
The
Appellant responded to these
amended paragraphs in his
amended reply filed on
24/04/2009 under paragraph 3 as
follows:
“3. Paragraphs 7 and 8 are
denied and Plaintiff will say
that upon persistent enquiry,
1.10 acres of his (Plaintiff’s)
land was returned to him but
there was no such understanding
or agreement that it was to be
regarded as compensation for the
5 acres forcibly taken by
Defendant and given to the Kpone
Traditional Council”.
The fact
is that the above averment by
the Appellant is far from the
truth or being factual. In the
first place, the 5 acres of land
ceded to the Kpone Traditional
Council on the directives of
Government, which is the owner
of the land in question, was not
forcibly taken away from the
Appellant. Paragraph 2 of the
offer letter (Exhibit ‘A’) was
clear on its face or categorical
that Appellant’s tenancy was
subject to any new policy, rule
or bye-law that may be adopted
and passed by either the
Respondent or Government.
Again,
the Appellant was not given a
bare 1.10 acres of the land to
continue his farming activities.
The truth of the matter is that,
the use of the land for
agricultural purposes had
changed following the directive
of Government to lease a portion
of the land to the original land
owners for residential purposes.
When the Kpone Traditional
Council therefore entered the
five (5) acres of land,
Appellant, through his lawyer Mr
Kye, persistently requested the
Respondent to compensate him as
he himself said in his evidence
at the trial. It was as a result
of this persistence, as he has
pleaded in his amended reply
quoted above that, the
Respondent took it upon itself
to redesign the 1.10 acres into
six residential building plots
which it gave to the Appellant
free of charge. Appellant, with
the consent of the Respondent,
sold five out of the six plots
and pocketed the proceeds while
he kept one plot for himself.
And it must be pointed out
clearly that the land did not
belong to the plaintiff for him
to describe it as “plaintiff’s
land”, as he did under paragraph
3 of his amended reply quoted
above.
Having
admitted that he was allocated
six residential building plots
of land covering 1.10 acres of
land free of charge in the year
2000 after losing his farming
rights over the 6.19 acres of
respondent’s agricultural land
in 1996, Appellant should have
told the trial court why he was
a beneficiary of that largess if
it was not meant to compensate
him for the loss of the farming
rights he derived from the offer
made to him in 1986, the absence
of a written agreement to that
effect notwithstanding.
It is
surprising that Appellant who
never entered into any written
contract or a formal lease with
the Respondent for the use of
the land for farming purposes
for the ten years that he was in
occupation has now turned round
to request for a written
agreement in respect of the 1.10
acres granted to him free of
charge as compensation,
otherwise he would not accept
the fact that it was
compensation. In fact, we do not
see the relevance of the English
authorities Appellant cited in
his written submissions; i.e.
ASPIN v AUSTIN [1844] 5 QB 671
and RABIN & Others v
GERSHON BERGER ASSOCIATION LTD &
Others [1986] 1 WLR 526.
A lease
in its simplest possible form is
the grant of a leasehold
interest in land as the
Respondent did in this case for
the Appellant. But in practice,
legal leases are almost
invariably bilateral contracts,
in which the tenant is not only
given an estate in the land but
also himself gives covenants,
e.g., to pay rent and execute
repairs, etc. Broadly put, a
lease agreement is a contract
between two parties, the lessor
and the lessee. Aside of the
fact that the Respondent offered
the land in question to the
Appellant for farming purposes
under express terms, there is
nothing to show that the
Respondent and Appellant entered
into or executed any written
lease agreement or contract
document.
Where is
the written lease agreement,
which Appellant says can only be
varied by another written
agreement? Is it Exhibit ‘A’?
Exhibit ‘A’ is no contract or
agreement. It was just a mere
offer letter. It was a
unilateral grant or in other
words an equitable grant or
lease.
It is
trite that a lease agreement is
a contract for lease of land and
thus the terms of the contract
have to be by mutual agreement.
The formal lease that should
have been prepared and executed
by the Respondent and the
Appellant as provided under
paragraph 5 of Exhibit ‘A’ was
not concluded. A contract or
agreement must be executed or
signed by both parties tying
them to the terms expressed
therein.
The
material terms of a valid lease
are as stated by da Rocha and
Lodoh in their book; ‘PRACTICAL
DRAFTSMAN’, published by DR & L
Printing and Publishing
Services, Accra, Ghana – 1998;
page 50, viz;
(a)
Identity of the
lessor and the lessee and the
capacities in which they are
contracting;
(b)
A precise description
of the land to be leased;
(c)
The duration of the
lease and its commencement date;
(d)
The consideration for
lease;
(e)
The covenants,
stipulations and conditions
which the parties intend to
govern their relationship; and
(f)
Signature of the
parties or their agents duly
authorised in writing to sign on
their behalf.
Exhibit
‘A’ does not satisfy all the
requirements stated above;
particularly requirements (e)
and (f). Exhibit ‘A’
is therefore not a valid lease
that is enforceable in our
courts. That is not meant to say
that the Appellant is not
entitled to any form of
compensation when it is
established that he indeed
incurred certain losses when he
was made to act on the strength
of statements made by the
Respondent in Exhibit ‘A’ to his
detriment.
The
Appellant’s contention was that
he was made to construct some
structures on the land on the
strength of Exhibit ‘A’, which
provided that he was to farm on
the land for sixty (60) years.
However, after ten (10) years,
the Respondent took away from
him five (5) acres of the land.
He therefore lost his
investments, thus the claim for
compensation. The amount of
compensation he prayed for in
his writ of summons, which was
based on a 2005 Valuation Report
made almost nine (9) years after
the re-entry and which the trial
court granted him without
question, included the market
value of the land, which in fact
did not belong to him.
The
Respondent on the other hand was
of the view that the Appellant
had been fairly compensated when
upon the re-entry; he was given
six residential building plots
covering 1.10 acres of land free
of charge, five of which he
converted into huge cash by
sale.
What is Compensation?
Compensation has been defined in
various ways. The Oxford English
Dictionary defines it as:
“The act or principle of
compensating; that which
constitutes, or is regarded as,
an equivalent; that which makes
good the lack or variation of
something else; that which
compensates for loss or
privation; amends; remuneration;
recompense”.
According
to Gilbert’s Law Dictionary,
published by Harcourt Brace
Legal & Professional
Publications Incorporated,
Chicago; “compensation is
simply payment for injury or
loss sustained; giving something
of equal value for something
lost, etc.”
One major
peculiarity about land is its
nature. Under the common law,
land consists of two things; (a)
the corporeal; i.e. the tangible
or physical land that can be
touched and measured and (b) the
incorporeal or the intangible
entity supposed to be residing
in the corporeal. The intangible
is also known as the ‘interest’
in the tangible land.
The
intangible or ‘interest’
character of land is what is
owned by the person to whom the
land belongs. The owner can
receive benefits from this
ownership alone without actually
touching the tangible or
physical land. That is why in
practice, and in most cases,
persons occupying or possessing
lands are not usually the
owners. The concept of the
intangible right or title to
land as a legal entity, separate
and independent of the tangible;
i.e. the corporeal, brings
different dimensions into issues
relating to determining
compensation for loss of land.
For
example, when the State
compulsorily acquires land, say
belonging to a Stool; exercising
its powers of ‘eminent domain’,
and there are subjects of the
Stool already farming on the
acquired land, the State is
required to pay two types of
compensation.
First,
the State pays for crops and
structures or buildings on the
land. If the user of the land
has crops only, he is paid the
value of the crops he has lost
plus loss of use. If he has in
addition to the crops,
structures or buildings like
farm huts, hamlets, etc. for
habitation and storage of crops,
he is paid the assessed value of
the structures or buildings he
is going to lose as a result of
the acquisition. The former is
called ‘crop compensation’ while
the latter is called ‘building
compensation’. This type of
compensation goes to the land
users.
Second,
the State pays for the value of
the interest the Stool as owner
has in the land; i.e. the
incorporeal or intangible, which
the Stool loses forever as a
result of the acquisition. This
payment is what some writers
describe as; ‘reinstatement’.
This form of compensation is
assessed on the basis of the
actual or market value of the
land as at the time of
acquisition.
With
regard to the land in question
in the instant case, part of
which was allocated to the
Appellant and others for farming
purposes, the State compulsorily
acquired it from the original
owners; i.e. the Kpone
Traditional Council for the Tema
Development Corporation (TDC);
i.e. Respondent, when it was
established by statute.
Ownership in the land therefore
changed from the Kpone
Traditional Council to the
State, with the Respondent as
the manager of the said lands.
The Respondent; including the
Appellant who was a senior
employee of the Respondent,
therefore knew that the land
belonged to the State and that
the Respondent was only
permitted by statute to manage
same. That was why in its offer
letter to the Appellant,
Respondent expressly stated
under paragraph two (2) of the
said letter that:
“Notwithstanding any provision
contained herein, your tenancy
shall be subject to any new
policy, rule or bye-law that may
be adopted, and or passed by the
Tema Development Corporation and
or the Government in so far as
it affects or they affect the
Tema Development Corporation”.
When the
Respondent wrote to the
Appellant and other agricultural
tenants to cease farming
operations because the
Government had directed it to
hand over the land to the Kpone
Traditional Council to be zoned
into residential plots, the
Appellant knew the directives
conformed to the offer letter or
unilateral lease granted him by
the Respondent. He therefore
knew that the Respondent had not
breached any contract between
him and the Respondent by the
re-entry as the possibility of
such a development was expressly
indicated in the offer letter,
which was not a contract anyway.
As a mere
agricultural tenant on the 6.19
acres of land, Appellant knew
very well that he was not the
owner of the intangible interest
in the land. He was therefore
not entitled to any compensation
payment in the form of the
actual or market value of the
land. The only payment he was
entitled to as compensation was
the assessed value of the crops
he had on the land if any, and
or the assessed value of the
structures or buildings that he
had, if any, plus loss of use as
a result of the truncation of
the period of the lease. Any
assessment of such compensation
must also be based on the value
of the crops and the structures
as at the time the land was
re-entered, and in this case,
their value in 1996.
There is
no evidence on record to show
that the Appellant had any crops
on the land at the time of the
re-entry in 1996. What Appellant
said he had on the land at the
time of the re-entry were
structures which were valued in
2005 as follows: three (3)
fish-ponds that were given an
estimated total yield of
GHc450.00 per annum at GHc150.00
per pond with a 17-year value of
GHc7,725.00 for the three
alleged ponds; two hundred (200)
pvc pipes valued at GHc687.50
and then a 2,000 gallon capacity
underground concrete tank that
was under construction valued at
GHc385.00. The total
value of these structures came
to GHc8,797.50, which is
Eighty seven million, nine
hundred and seventy five
thousand cedis (c87, 975, 000)
under the old currency.
Aside of
the valuation placed on the
alleged structures by the
Valuers in 2005, Appellant could
not tell how much he actually
lost, as evidence on record
shows clearly that he never
completed any of the structures
he said he was building on the
land at the time of the
re-entry. Interestingly, before
the Appellant accepted the six
residential building plots
covering an area of 1.10 acres
of land from the Respondent
after the re-entry in 1996, no
valuation of the alleged
structures he had built on the
land had been undertaken. The
valuation report the trial High
Court relied on to arrive at the
compensation was prepared in
2005; i.e. nine (9) good years
after the re-entry.
According
to P.W. 1 (the Valuer) when they
visited the land in 2005 to do
the valuation, the Kpone people
had already entered the land and
some people had even built on
portions so they did not see
anything tangible apart from
some of the PVC pipes and dug
grounds. When he was asked
during cross-examination to tell
the court the number of PVC
pipes he saw, he answered that
he did not see any physically.
(See page 128 of the RoA).
Again,
when he was asked to describe
the fish-ponds, he said he only
saw a disused fish pond but
could not tell the number of
fish the Appellant started with
or the yield of the pond.
According to him, he valued the
Appellant’s fish pond based on
the value placed on that of one
of the other farmers called
Captain Owiredu. (See page 131
of the RoA).
When
asked further whether he had
specific instructions to value
Appellant’s land, he answered in
the negative. (See page 128 of
the RoA). Meanwhile, the Valuers
pegged the value of the
so-called structures, including
loss of use at GHc10, 097.00
and then the market value of the
5-acre land at GHc50, 900.00
making a total of GHc60,
997.00.
Clearly,
it was wrong and even absurd on
the part of the trial court to
award the Appellant compensation
on the actual or market value of
the land when he was not the
owner of the land as the Court
of Appeal rightly held. It was
even more absurd when the
compensation was based on the
2005 value of the land when the
re-entry was done in 1996.
Another
absurd conclusion contained in
the Valuation Report, as the
Court of Appeal rightly found,
was the amount of GHc7,725.00
awarded as compensation
representing the expected yield
of three fish ponds for a period
calculated to be over seventeen
(17) years when the Valuers did
not know the yield of the fish
ponds if any, as at the time of
the re-entry in 1996.
Granted
the Appellant was not
compensated in any way and
therefore was entitled to
compensation, the computation
should have been based on the
value of the structures lost
plus loss of use as at 1996 but
not 2005. Aside of that, the
compensation cannot, under any
stretch of imagination, include
the market value of the land
which he did not own. Going by
the 2005 valuation report, which
this Court thinks should not be
the case, the amount he would
have been entitled to would be
the GHc10,097.00 being
the value of the structures plus
loss of use as was determined by
the valuation report.
This
Court therefore finds flawless
the conclusion of the Court of
Appeal that the six (6)
residential plots covering 1.10
acres of land that were
allocated to the Appellant free
of charge was more than adequate
compensation for the termination
of Appellants lease and re-entry
of the agricultural land by the
Respondent in conformity with
the provisions in the offer
letter (Exhibit ‘A’).
With
regard to the statement by the
Court of Appeal that the
Appellant manipulated the system
to his advantage as an employee,
which is the gravamen of ground
(b), Appellant contends
that, that statement was an act
of extreme injustice since there
was no evidence of that sort on
the record.
According
to Appellant, no evidence came
out at the trial to suggest an
act of dishonesty or
manipulation on his part. The
issue before the trial court, he
asserted, was not about the
propriety of the allocation of
land to him but whether he was
entitled to compensation upon
re-entry by the Respondent of a
validly allocated parcel of
land. The Court of Appeal
therefore engaged in extreme
speculation not borne out by
evidence at the trial, he
submitted. The Respondent,
however, thought otherwise.
The
question is; what pronouncement
did the Court of Appeal make to
generate the arguments on ground
(b)? The part of the
judgment of the Court of Appeal
under impeachment on this ground
is as follows:
“Here is a plaintiff who is in
charge of the defendant’s
Traditional Lands as the
Manager. He was allocated 6.19
acres of the Traditional Lands
for farming. When he left office
he did not hand over properly to
his successor. Original files
concerning all transactions
affecting his grants could not
be traced after strenuous
searches concerning them. The
plaintiff turns round to sue his
employer for compensation for
re-entry. In the course of the
trial, it came to light that
allocations of large tract of
lands were made to him without
application from him. Certainly,
he might have manipulated the
system to his advantage. His
interest was certainly in
conflict with that of his
employer and equity and by
extension the law, had no
business coming to his aid. The
trial judge ought to have second
look at the entire role played
by the plaintiff in the murky
transactions. The blame the
trial judge heaped on the TDC
ought to have been extended to
the plaintiff as well. His
conduct was not above board and
he does not deserve to benefit
from his wrongdoing; the court
should not assist him reap
undeserved benefits”.
To be
fair to the Court of Appeal,
nowhere in the statement quoted
above did the Court of Appeal
say that the Appellant
manipulated the system to his
advantage by awarding to himself
the 6.19 acres of land; which is
the gravamen of ground (b)
of the grounds of appeal.
What the
Court of Appeal said was that
the Appellant might have
manipulated the system to his
advantage judging from the way
documentation and other issues
concerning the grant to him was
handled. It did not say that the
Appellant allocated the land to
himself through manipulations.
The offer letter (Exhibit ‘A’)
was signed by the CEO or MD of
the Respondent so on paper, it
could be said that the
allocation was made by the
Respondent. This, however, does
not derogate from the fact that
he was the very officer
supervising such allocations.
Though
there is no direct evidence to
suggest that the Appellant
manipulated the system to his
advantage, the circumstances
surrounding the allocation and
the non-conformity with the
rules regulating such grants
with regard to the grant made to
him call for such speculations.
Speculations, however, no matter
their perceived accuracies,
cannot constitute proof. The
Court of Appeal was not certain
that Appellant manipulated the
system. It only concluded that;
he might have manipulated the
system to his advantage judging
from the conflict of interest
situation that existed between
the Appellant and his employer
the Respondent; Appellant being
the very officer in charge of
documentations on such
allocations.
In fact,
throughout his pleadings, the
Appellant never disclosed the
fact that at the time he
obtained the grant in 1986, he
was in the employment of the
Respondent as the very officer
in charge of such lands. He did
not ensure that all the rules
governing such grants applied in
his case (like the preparation
of a formal lease). He again did
not hand over the files covering
the grant to him to his
successor Mr Swaniker (D.W. 1)
when he was leaving office as
D.W. 1 told the trial court in
his evidence, which assertion
Appellant never challenged.
What the
Appellant did, in fact, amounted
to conflict of interest as the
Court of Appeal rightly
asserted. It is therefore
surprising that after accepting
1.10 acres out of the 6.19 acres
free of charge after the
re-entry in 1996, the Appellant
would turn round eleven (11)
years later to sue his employer
for another undeserved
compensation. If the thinking of
the Appellant was that the 1.10
acres of land made up of six
building plots allocated to him
free of charge by the Respondent
was a mere dash, then was the
Court of Appeal wrong in drawing
the inference that he certainly
might have manipulated the
system to his advantage? We do
not think so.
On ground
(c), quite apart from the
fact that the 1.10 acres granted
to the Appellant free of charge
was more than sufficient
compensation for the farming
rights lost, the whole Valuation
Report based on market values as
at 2005 instead of 1996 when the
land was re-entered lacked
credibility. The trial High
Court should not therefore have
relied on it to determine the
amount of compensation to be
paid to the Appellant, granted
no due compensation had been
paid to him by then. The Court
of Appeal was on course when it
rejected and dismissed the whole
report.
Fundamentally, the appeal has no
merits whatsoever as the Court
of Appeal did not err in the
conclusions it reached. The
Appellant only wanted to reap
where he had not sown. His
appeal cannot therefore succeed
and it is hereby dismissed.
(SGD) YAW APPAU
JUSTICE OF THE SUPREME
COURT
CONCURRING OPINION
PWAMANG, JSC.
I agree that this appeal be
dismissed. My respected
brother, Appau JSC, has examined
the evidence in great detail and
I agree with the conclusions he
has drawn therefrom. I wish
only to add a few words of my
own on the application of the
maxim; expressum facit
cessare tacitum and the
parol evidence rule which the
plaintiff partly relied on in
this case.
The relevant facts of the case
are as follows; By a letter
dated 26/6/1986 the
Defendant/Appellant/Respondent,
hereinafter referred to as the
defendant, offered a 60 year
lease over 6.19 acres land at
Kpone near Tema to the
Plaintiff/Respondent/Appellant
hereinafter referred to as the
plaintiff, for agro-based
factory building and farming
purposes. Plaintiff at the time
was an employee of defendant and
in charge of traditional lands
of which the 6.19 acres was
part. This offer letter among
other terms provided follows;
“Para 1(v). You will be expected
to commence building operations
for the factory site within two
years of the site being handed
over subject to a reasonable
extension for legitimate cause
of delay and to have the site
fully developed within five
years from the date right of
entry is granted.
Para 2. Notwithstanding any
provision contained herein, your
tenancy shall be subject to any
new policy, sale or bye-law that
may be adopted and passed by the
Tema Development Corporation
and, or the Government in so far
as it affects or they affect the
Tema Development Corporation.”
The letter also required
plaintiff to accept the offer in
writing within one month failing
which the offer would lapse.
In 1996 the Government directed
the defendant to cede part of
its land to the Kpone
Traditional Council for
residential purposes and this
included the land leased to
plaintiff. Consequently
defendant wrote to terminate
plaintiff’s lease, re-entered
the land and re-zoned it into
residential plots. Plaintiff
and other tenants whose
agro-based industrial leases
were terminated in similar
manner requested the defendant
to pay them compensation. While
the tenants were pursuing the
compensation claims, plaintiff
was offered a new lease for 1.10
acres out of his original 6.19
acres land, but this time for
residential purposes. The new
offer letter dated 24/1/2000
contained conditions similar to
those in the 1986 letter except
for the rent payable and land
management fee which was waived
for plaintiff. The letter stated
as follows at paragraph 1(vii)
(d);
“The lessee shall not be
permitted to transfer or assign
part or whole of the vacant
plot.”
The land was zoned into six
building plots and plaintiff was
given right of entry. Plaintiff
did not develop the plots but
sold out five vacant plots for
which defendant granted consents
for transfers to the third party
purchasers.
Plaintiff nevertheless pursued
his claim for compensation from
defendant for the termination of
his earlier lease. In 2005 he
got a valuation report prepared
which he submitted to defendant
for compensation to be paid to
him. Defendant refused to pay
so plaintiff sued in the High
Court, Tema to recover the
compensation with interest. In
their amended statement of
defence, defendants contended
that the lease for the six
residential plots was given as
compensation for the termination
of the agro-based industrial
lease so plaintiff was not
entitled to his claims.
During the trial defendant’s
representative testified that
the residential plots were
offered to plaintiff without any
application by him as is the
normal procedure with defendant.
Plaintiff denied the averment
and argued that the letter
offering the residential plots
to him did not state that the
land was given as compensation
for the termination of the first
lease.
The trial High Court in its
judgment dated 29/10/2010
rejected the contention of
defendant that the residential
lease for six plots was
compensation to plaintiff
holding that if it were so the
letter offering the residential
plots should have expressly
stated so. The court accordingly
gave judgment against defendant
and being dissatisfied it
appealed against the decision.
The Court of Appeal allowed the
appeal upholding the defendant’s
case that the six residential
plots were compensation for the
termination of the first lease.
Plaintiff has appealed against
the decision of the Court of
Appeal to this court. In his
statement of case filed in this
court, the plaintiff, among
other grounds, has relied on two
propositions of law namely;
expressum facit cessare tacitum
and the parol evidence rule.
Plaintiff first argued these
legal points before the Court of
Appeal but the court did not
address them in its judgment.
The main points of plaintiff’s
arguments, as I understand them,
are that the letter offering the
1.10 acre of residential lease
to him did not state that it was
meant as compensation for the
termination of the earlier
lease. Therefore, in line with
the legal maxim expressum
facit cessare tacitum, the
court ought not to read
compensation as part of the
offer letter since that was not
expressed. Secondly, the offer
letter for the 1.10 acre lease
should be considered the written
contract between the parties so
the court ought not to accept
parol evidence which would
vary, add to or contradict the
terms stated in it by including
compensation for the termination
of the earlier lease. The two
propositions of law bear close
resemblance and before applying
them to the facts of this case,
we need to understand their
meaning and scope in Ghana law.
The literal English meaning of
expressum facit cessare
tacitum is; ‘’what has been
expressed makes what is implied
silent.’’ This expression is one
of the legal maxims described as
aids to interpretation. They are
applied by courts to help
discover the legislative intent
in statutes but may also be used
in the interpretation of deeds.
Aids to interpretation are
presumptions and not binding
rules. In the Australian case of
MINISTER FOR IMMIGRATION V.
NYSTON (1937) 47 CLR 1, the
court was considering a case in
which the principle expressum
facit cessare tacitum was
urged on it and it said as
follows at page 54 of the
report;
“…whilst ‘rules’ or principles
of construction may offer
reassurance, they are no
substitute for consideration of
the whole of the particular
text… its subjects, scope and
purpose.”
So in order to determine whether
the maxim will be of assistance
in ascertaining the intention of
defendant who signed the offer
letter for the residential
plots, which was tendered in
evidence as Exhibit ‘1A’, we
need to consider the totality of
the circumstances under which
the writing was signed. The
critical issue would be whether
what has been expressed was
intended to be the exclusive
agreement of the parties.
Next is the parol evidence rule.
It is a common law rule which
states that when two parties
have made a contract and have
expressed it in a writing to
which they have both assented as
an expression of their
intentions, oral evidence is not
admissible to add to, vary or
contradict the written
agreement. See the case of
BANK OF AUSTRALASIA V. PALMER
[1897] A.C 540. The rule was
later extended to cover all
writings that create legal
obligations between parties
whether signed by all the
parties or only one of them. See
MOUGANIE V. YEMOH
[1977] 1GLR 163.
In his written submissions,
plaintiff's lawyer referred to
the English case of RABIN v
GERSON BERGER ASSOCIATION LTD.
[1986]1WLR 526 which stated
the common law parol evidence
rule in its pristine form but
the rule has evolved and
admitted many qualifications and
exceptions. In fact, the Law
Commission of England and Wales
in their Report, Working Paper
No.154 released in 1986, stated
that the common law parol
evidence rule cannot still be
referred to as a 'rule' on
account of its many exceptions.
In Ghana the rule has been
codified in the Evidence Act
1975 (NRCD 323) at Section 177.
Parol evidence means oral
evidence but section 177 of NRCD
323 uses the term “extrinsic
evidence” which means even
any written understandings or
memoranda prior to the execution
of a written agreement may be
excluded.
Section 177 of NRCD 323 provides
as follows;
Extrinsic Evidence Affecting the
Contents of a Writing;
(1) Except as otherwise
provided by the rules of equity,
terms set forth in a writing
intended by the party or parties
to the writing as a final
expression of intention or
agreement with respect to such
terms as are included in the
writing may not be contradicted
by evidence of any prior
declaration of intention, of any
prior agreement or of a
contemporaneous oral agreement
or declaration of intention, but
may be explained or
supplemented-
(a) by evidence of consistent
additional terms unless the
court finds the writing to have
been intended also as a complete
and exclusive statement of the
terms of the intention or
agreement, provided that a will
and a registered writing
conveying immovable property
shall be deemed to be a complete
and exclusive statement of the
terms of the intention or
agreement; and
(b) by a course of dealing or
usage of trade or by course of
performance.
(2) Nothing in this section
precludes the admission of
evidence relevant to the
interpretation of terms in a
writing.
The wording of our provision is
similar to and can be said to
have been influenced by the
provisions of Article 2-202 of
the Uniform Commercial Code
of the United States of America
published in 1952. It
provided as follows;
UCC 2-202: Terms in a
writing intended by the parties
as final expression of their
agreement may not be
contradicted by extrinsic
evidence, but may be
supplemented
(a)
by
course of dealing or usage of
trade (1-205) or
by course of performance
(2-208); and
(b)
by
evidence of consistent
additional terms unless the
court finds completely
integrated agreement.
The policy behind the parol
evidence rule is that human
memory is slippery and oral
testimony, which is usually
given sometime after a
transaction, is not as reliable
as documentary proof. What is
more, the spoken word was viewed
with skepticism. For these
reasons the rule was invented to
ensure certainty and finality of
transactions which is in the
public interest. But it was
long ago conceded that there are
instances where the strict
application of the rule can
result in injustice and lead to
the enforcement of contracts
that the parties really did not
make or exclude oral terms that
were intended by the parties to
be binding. For those reasons
the common law courts, in
exercise of their equity
jurisdiction, made exceptions to
the rule hence the reference to
rules of equity in Section 177
of the Evidence Act. The
equitable exceptions include
evidence to establish mistake,
illegality, fraud and
misrepresentation in respect of
executed contracts. See the case
of MONGANIE V. YEMOH
supra.
For our purposes in this case,
the first important point to
note about Section 177 of NRCD
323 is that it sets a condition
precedent to the application of
the extrinsic evidence rule;
which is that it must be shown
that the writing sought to be
protected must have been
intended by the party or parties
who made it to be a final,
complete and exclusive statement
of the terms of the agreement.
This in American jurisprudence
is referred to as final and
complete integration of the
agreement. So where one party
relies on the written terms of
contract but the opponent
alleges that the contract
document was not meant to
contain all the provisions of
their agreement, he will be
entitled to lead extrinsic
evidence to prove that, apart
from the written terms there are
others that were agreed upon
between the parties but which
are not in the writing.
The case of Strakosch v.
Connecticut Trust Co., 96 Conn.
471, 114 At. 6AJ (1921), was
an action against an executor
for breach of an oral agreement
by the testator to settle an
income on plaintiff when adopted
by him. The court found that the
written instrument of adoption
had not superseded this oral
agreement, applying the
following test:
"The plaintiffs claim that the
existence of the written
agreement rendered the prior
oral agreement between the
parties...of no avail to the
defendant. This claim is based
on the so-called 'parol evidence
rule,' that where parties merge
all prior negotiations and
agreements in writing, intending
to make that the repository of
their final understanding,
evidence of such prior
negotiations and agreements will
be rejected as immaterial ....
Whether the parties intended the
writing to embody their entire
oral agreement or only a part of
it, was a question for the trial
court to be determined from the
conduct and language of the
parties and the surrounding
circumstances; and that court
has found that the parties had
no such intent, and there is
nothing in the record to show
that the court in reaching that
conclusion, erred either in law
or in logic."
The common law has also now
adopted this approach and as
Chitty put it; ".....the
scope of the parol evidence rule
is much narrower than at first
sight appears. It has no
application until it is first
determined that the terms of the
parties' agreement are wholly
contained in the written
document." See Chitty on
Contracts vol 1 (Sweet &
Maxwell,29th Ed,2004 para
12-098).
The second point we need to note
about Section 177 is that it
makes an exception to the rule
for extrinsic evidence to be led
of additional terms that are
consistent with and explain or
supplement terms in the written
agreement. The parol or
extrinsic evidence that is
allowed may also be offered to
explain or supplement a term in
the existing agreement with
evidence of a course of dealing,
usage of trade or course of
performance between the parties
but which was not specifically
stated. This exception to the
parol evidence rule has also
been adopted at common law. See
Chitty on Contracts supra.
para 12-095.
With these principles in mind I
will now consider the evidence
led in this case, but before I
do that, it must be noted that
plaintiff in this case is not
basing his case on a contract
executed by himself and the
defendant that contains terms
that he says are binding on the
parties so nothing more should
be added. He is relying on the
offer letter signed by defendant
and contending that its terms
constitute the agreement between
the parties with regard to the
six residential plots so oral
evidence of compensation as a
term of that contract is
inadmissible on account of the
parol evidence rule.
Section 177 of NRCD 323 says;
"writing intended by the
party.....to the writing as a
final expression of intention or
agreement..." Defendant who made
the writing says it was not
intended as the final and
complete agreement but there was
another part of the agreement
having to do with compensation
which was oral. Plaintiff who is
not a signatory of the writing
cannot say much about the
intention of defendant. If he
was relying on a writing signed
by the two parties he might have
been in a better position than
he finds himself. The decided
cases say that whether the
writing constituted only a part
or the whole and complete
agreement of the parties depends
on the circumstances of the
transaction and the behaviour of
the parties.
It is clear from the evidence on
record that the parties in this
case had not been reducing all
their dealings into writing.
For instance, in the letter
offering the 6.19 acres to
plaintiff, he was required to
give written consent of the
offer within one month or else
the offer would lapse.
Plaintiff did not tender any
letter of acceptance of the
offer within one month but he
nevertheless took possession and
was treated as a lessee by
defendant. Furthermore,
plaintiff was to complete
building a factory on the land
within five years of entry on it
but he did not put up any
factory building in the 10 years
that he was in possession. So if
plaintiff was held strictly to
the terms of the 1986 offer
letter tendered as Exhibit ‘A’,
the court would have had to
conclude that he had no valid
lease to begin with.
In the same way, plaintiff
accepted the condition in the
offer of the 1.10 acre
residential land not to transfer
the vacant land but he
nevertheless did and defendant
granted him consent. What all
this means is that the offer
letters in both cases were not
intended to contain all the
terms of the parties dealings in
respect of the lands. There were
oral terms that the parties
observed in both transactions so
the terms were not finally and
completely integrated in the
writing, both for the 6.19 acres
and the 1.10 acre. Plaintiff
having conducted himself in line
with these partly written and
partly oral terms of contract
cannot now talk of excluding
oral evidence by reliance on the
parol evidence rule.
The rule is not applicable on
the ground that the writing
Exhibit ‘1A’ was not intended as
the final and complete
expression of the agreement
between the parties regarding
the 1.10 acre residential plots.
If that were so, on what
authority did plaintiff transfer
the vacant plots to third
parties when Exhibit ‘1A’
specifically forbade such
transactions? For the same
reason that the offer letter was
not an expression of the whole
agreement of the parties, the
maxim expressum facit cessare
tacitum is not applicable on
the facts in this case.
Secondly, to my understanding,
the evidence that defendant led
on the compensation was to
explain and supplement the terms
of the offer letter for the
residential plots which stated “Land
Management Fee of NIL …”.
The evidence that the term was
stated as such because there was
an additional oral term that the
offer of the lease was
compensation for the termination
of the earlier lease is not
inconsistent with the terms of
Exhibit ‘1A’. The evidence
establishes a practice by
defendant to charge a sum of
money as management fee for its
leases but in this case no sum
of money was charged plaintiff.
This evidence is made admissible
by Section 177(1)(a) of NRCD323
as an exception to the extrinsic
evidence rule.
That evidence of compensation is
credible having regard to the
fact that plaintiff did not
obtain the residential plots
through the normal procedure.
Furthermore the explanation that
plaintiff was not charged land
management fee because of some
other consideration in the form
of accepting the termination of
his agro-based industrial lease
is reasonable and highly
probable on all the
circumstances of this case.
Plaintiff did not lead any
evidence in answer to this part
of defendant's case and I accept
the evidence of defendant. Since
plaintiff accepted the
residential plots as
compensation and has sold out
five of them at much higher
prices, he has no legal basis to
claim another compensation.
It is also for the above reasons
that I agree that the appeal be
dismissed.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
OBENG MANU JNR.ESQ FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
K. SARFO – AGYEKUM NYANOR ESQ. FOR
THE 3RD
DEFENDANTAPPELLANT /RESPONDENT. |
