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I
JUDGMENT:
Aewaha Company Limited, a
company with its authorised
business being communication and
media consultancy among others,
has sued the National
Communication Authority (NCA), a
statutory body charged with the
responsibility of allocating
radio frequency channels and
generally regulating the
frequency modulation (FM)
industry in Ghana, for the
following reliefs:
“(a) An order
directed against the Defendant
ordering it to
release all equipment seized
from the Plaintiff illegally,
and also restore its operational
license;
(b) Special Damages of
US$6,632,711 together with
interest
thereon at the current rate from
1st May, 2009 until
date of final payment;
(c) Aggravated and
exemplary damages for wrongful
seizure
of communication equipment and
suspension of radio license;
(d) General
Damages
(e) Costs.
The case of the Plaintiff is
that it applied to the Defendant
for a license to establish and
operate a private FM radio
station in Accra and on 24th
December 2001 it received an
initial authorization from the
Defendant to carry out such
activity. Having satisfied the
requirements for the initial
authorization, the Defendant
granted Plaintiff the final
authorization to operate an FM
station and assigned it a
frequency of 93.5 MHz on 5th
February 2002. The Plaintiff
then proceeded to import
communication equipment. However
the Defendant for no apparent
reason froze the Plaintiff’s
license and ordered the
communication equipment to be
cleared into its custody. The
Plaintiff says the seizure of
its equipment and withholding of
its license was wrongful, and
has caused it grave financial
hardship and damage and
therefore instituted the instant
action for the reliefs stated.
The Defendant on the other hand
contends that the final
authorization had a condition
that the Plaintiff could not
import any communication
equipment into the realm without
the prior approval of the
Defendant. That, Plaintiff did
not totally abide by the terms
of the final authorization and
was in violation of Regulation
95 of the National
Communications Regulations,
2003, (L.1.1719).
The Defendant contends further
that the criminal dimension to
the unauthorized importation of
communication gadgets by
Plaintiff was being investigated
by the Office of National
Security, the Plaintiff having
on 11th December 2003
made false representations to
the Ghana Investment Promotion
Centre that the Defendant had
approved the importation of its
communication equipment. That,
its role does not supersede
National Security
considerations. Defendant
claims that the fate of the
illegally imported communication
equipment by the Plaintiff was
to be determined after the
investigations by National
Security, and a possible
prosecution of the Plaintiff in
a court of competent
jurisdiction.
I must state right at the
outset, that the Plaintiff has
admitted that the equipment that
was seized has been returned to
it and its license restored.
There is the issue whether or
not the licence was suspended or
cancelled but from the evidence
before the Court, a decision on
this issue will not amount to
much; i.e. not much will be
gained in determining this
issue. The Plaintiff’s claim is
that Exhibit “E” effectively
cancelled Plaintiff’s licence.
Indeed, if there is any doubt as
to the effect of Exhibit “E”,
Exhibit “X” puts it beyond doubt
that the Plaintiff’s licence was
cancelled. This is underscored
by the fact that a fresh grant
had to be made to the Plaintiff
by virtue of a letter dated
February 25, 2009; Exhibit “G”.
In my opinion, what ought to be
determined is whether or not the
cancellation/suspension of the
Plaintiff’s licence which was
done together with the seizure
of the Plaintiff’s equipment was
lawful.
The main issues to be determined
in my view therefore, are as
follows:
1.
Whether or not the Plaintiff
obtained the prior written
approval of the Defendant before
importing the seized
communication equipment.
2.
Whether or not the seizure of
the Plaintiff’s equipment was
lawful because of the alleged
investigation by the Office of
the National Security.
3.
Whether or not the said seizure
of the Plaintiff’s communication
equipment caused Plaintiff
financial loss and damage.
Whether or not the Plaintiff
obtained the prior written
approval of the Defendant before
importing the seized
communication equipment.
Plaintiff’s case is that after
it obtained final authorisation
from the Defendant on 5th
February, 2002, it proceeded to
import communication equipment.
Upon arrival of the
communication equipment in
Ghana, it applied for clearance
of same whereupon on the 11th
of December, 2003 the
Defendant’s Ag Director-General
ordered the Assistant
Commissioner, Customs, Excise
and Preventive Service (CEPS) at
the Kotoka International Airport
(KIA) to release the said
equipment to the Defendant’s
custody. The Plaintiff is
contending that the Defendant
wrongfully seized its
communication equipment.
The Defendant denies this. In
paragraphs 7 and 8 of the
Amended Statement of Defence,
the Defendant averred as
follows:
“7. Specifically and
significantly, the final
authorization had a condition
that the Plaintiff could not
import any communication
equipment into the realm without
the prior approval of the
Defendant.
8. The Defendant avers
that the Plaintiff did not
totally abide by the terms of
the final authorization and is
already in violation of Section
95 of the National
Communications Regulations, 2003
LI 1719.”
The position of the law is that
for every case there is a burden
of proof to be discharged and
the party who bears the burden
will be determined by the nature
and circumstances of the case.
Our Evidence Decree 1976
(NRCD 323) as interpreted in
Ababio v Akwasi 111 [1994-95]
Ghana Bar Report, Part 11, 74
is that a party whose pleadings
raise an issue essential to the
success of the case assumes the
burden of proving such issue.
In Takoradi Flour Mills v
Samir Faris [2005-06] SCGLR 882
Ansah JSC exhaustively dealt
with the burden of proof as
follows:
“ A great deal of the submission
made on the behalf of second
defendant in support of the
grounds of appeal, centered on
the burden of proof, or the onus
probandi, by which it is the
duty of the party who asserts
the affirmative to prove the
point in issue. This was
expressed in classical terms ei
incumbit probation qui dicit,
non qui negat. As it was the
Plaintiff who made the claim and
asserted the positive, he had to
adduce evidence sufficient to
establish a prima facie case, as
required by section 14 of the
Evidence Decree, 1975 because
in law where a fact is essential
to a claim, the party who
asserts the claim has the burden
to persuade the Court of
existence of that fact. The
standard of proof is by a
preponderance of the
probabilities: see section 12(1)
of the Decree. Section 17(1)
states that the burden of
producing any particular fact is
on the party against whom a
finding on that issue would be
required in the absence of
further proof.”
As stated by Justice
Mensa-Boison JA, in the case of
Acquaye v Awotwi [1982-83] 2
GLR 110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
The well-known rule of evidence
is that although proof in a
civil case rested on the
plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. It would then rest on
the defendant to rebut the
plaintiff’s evidence. Thus in
Re Ashalley Botwe Lands: Adjetey
Agbosu & Ors v Kotey & Ors
[2003-04] SCGLR 420, it was
held as follows:
“….the burden of producing
evidence in any given case was
not fixed, but shifted from
party to party at various stages
of the trial depending on the
issue(s) asserted and/or
denied.”
The fact that in the instant
case, the Plaintiff’s
communication equipment was
seized pursuant to Exhibit “E”
is not in dispute. As a rebuttal
to the Plaintiff’s claim, the
Defendant contends that
Plaintiff was in violation of
Section 95 of the National
Communications Regulations 2003,
L I 1719. The onus was on
Defendant therefore to prove
this assertion.
The said provision reads as
follows:
“Importation of
equipment
95 (1)
Communication equipment and
systems shall not be
imported into the country
without prior approval of the
Authority.
(2) For the
purpose of sub-regulation (1),
the Authority
shall only grant approval where
adequate information on the
equipment and systems has been
provided.
(3) A person who acts in
contravention of sub-regulation
(1) commits an offence and is
liable on summary conviction to
a fine of not less than twice
the cost of the equipment
imported and not exceeding five
times the landed cost of the
equipment.”
The final authorization which
was contained in a letter dated
5th February 2002
(Exhibit “C”). Paragraph (1) (g)
(v) reads as follows:
“Importation of any
communication equipment shall be
with the prior written approval
of the NCA.”
Exhibit “AB”, a letter written
by the Plaintiff to the
Defendant, dated 08 December
2003 reads as follows:
“Approval of the
importation of communication
equipment: 93.5fm
In compliance with your letter
dated 5 February 2002 (Ref:
NCA/PBRO/FM.46) we hereby apply
for the importation of the
communication equipment as per
attached Air Waybill.”
This letter was signed by
Kwabena Andoh Amoakwah, a former
Director of Plaintiff Company
who testified as P.W.1. His
evidence was that the Plaintiff
brought in the equipment after
it received the initial
authorization, and with the
approval of the Defendant. His
further testimony was that
Plaintiff wrote to the Defendant
informing them about the arrival
of the equipment and the
Defendant wrote back approving
the importation of the
equipment, and subsequently
Plaintiff submitted the
documents to CEPS. P.W.1 also
denied Defendant’s allegation
that Plaintiff had made false
representations to the Ghana
Investment Promotion Centre
(GIPC) that the Defendant had
approved the importation of the
equipment. His evidence was that
Plaintiff applied for an
exemption from GIPC based on
communication received from the
Defendant. Plaintiff was
required by GIPC to provide it
with the final authorization,
plus the approval letter from
the Defendant before GIPC issued
the exemption letter (Exhibit
“F”). Indeed, Defendant did not
adduce any evidence to support
the assertion that the Plaintiff
had made false representations
to GIPC.
While cross-examining P.W.1,
Counsel for the Plaintiff did
not challenge the Plaintiff’s
contention that Defendant had
given approval for the
importation of the equipment.
This is what transpired:
“Q In between those two
correspondence, exhibits A and
C, on the 11th of
December, the authority acting
through the Deputy Director
General at the time wrote to you
given you approval for the
importation of communication
equipment. That was on the 11th
of December?
A.
Yes my
lord.
Q. At the time, can you tell
this court exactly where the
whereabouts of the equipment
was?
A.
My
lord I can’t 100% confirm
exactly where. I know that
payment was made for the
equipment in the UK and
subsequently, all the document
pertaining to that purchase were
forwarded to NCA plus a letter
seeking the importation of those
equipment.
B.
Yes my
lord.
Q. At the time, had the
equipment already been flown
into Ghana?
A. My Lord I can’t recollect.
Q. Be that as it may, you were
by this letter also at the time
satisfied with the bona fide
good dealings of the defendant
authority?
A. Yes my Lord.”
P.W.1 further testified as
follows:
“Q. Around what time between
December 24th and
January, did you see that change
in their dealings with you?
A.
My
Lord when these letters of
approval for importation are
issued, the NCA has a
representative at the airport
whose responsibility is to check
equipment to ensure that it is
of the required standard for
importation and we believe that
reasonable time for the
inspection of these equipment
should not be more than three
days.
Q. Would you at least be able to
tell us whether it was in the
early part of January or late
part of December that you notice
a change in the treatment meted
out to you?
A. My Lord I can’t recollect. We
are talking about 14 days here
and it will be difficult to
determine exactly what day.
Q. It is sufficient to say that
when you received Exhibit E you
were surprised that this was
what you were being told?
A. My Lord we were shocked.
Q. What was your first reaction
to the letter of January 6th
2004.
A. My Lord on behalf of
plaintiff, I wrote to the
Commission informing them about
the receipt of their letter of
the 6th of January
and stating clearly that the
argument in that letter, they
had stated in that letter that
they were investigating our
authorisation and expiry date
and I did state in that letter
that we were surprised by the
turn of events and also
surprised because their letters
of approval were clear
unambiguous and that at any time
that they deem fit to finish
their investigation, they should
endeavour to take into
cognisance the amount of time
wasted because then we would
have definitely lapsed with the
time for which we were supposed
to go into operation.”
The letter referred to was
tendered in evidence as Exhibit
“3”. The letter referred to
above as the approval letter,
dated December 11, 2003 was
tendered in evidence as “Exhibit
“D”. Exhibit “D” stated as
follows:
“REF:NCA/CL/12/2003/41
December 11, 2003
AEWAHA Incorporated
P.O. Box 7298
46 Okodan road
OSU, Accra
Attn: Kobina Andoh Amoakwa
Dear Sir,
RE: APPROVAL OF IMPORTATION OF
COMMUNICATION EQUIPMENT: 93.5 FM
We refer to your letter dated
December 08, 2003 on the above
subject and request you to
contact the Assistant
Commissioner of customs, Excise
and Preventive Service
(C.E.P.S)., at the Kotoka
International Airport, for the
release of your Communication
Equipment from the airport.
By a copy of this letter, the
Assistant Commissioner of CEPS,
K.I.A., is hereby authorized to
release the attached list of
equipment to you after they have
been customed/Inspected and
passed by an officer of the
National Communications
Authority (NCA), as per the
attached endorsed Airway Bill
Nos. 172-5139 2552 and 765-8819
9484 dated 4th
December 2003 and 10th
December 2003 respectively and
Invoice Nos. 095877, 095879
dated 20th November
2003 originating from Roy
Parsons Limited, U.K.
Yours faithfully
SGD
Bernard A.Forson, Jr.
Deputy Director General
For: Ag. Director General
cc: The Assistant Commissioner
Customs Excise and
Preventive Service
K.I.A. Accra”
I have noted that the subject
matter of Exhibit “D’ is “Re
Approval of
Importation of Communication
Equipment” (emphasis mine).
Indeed the author of Exhibit
“D” who at the time was Deputy
Director-General of the
Defendant gave evidence as
P.W.3. And when questioned about
Exhibit “D”, this is what he
said:
“Q. Have a look at
Exhibit “D”. Do you recall who
wrote Exhibit “D”
A.
Yes I
do.
Q. You indeed wrote and
signed Exhibit “D”?
A. Yes my lord.
Q. By Exhibit “D”, you were
giving clearance to the
Plaintiff Company to clear
equipment which they were going
to use for the running of their
radio station?
A. Partially, yes.
Q. Can you explain when you
say ‘partially yes’?
A. There are certain
proceedings that should take
place and the issuance of the
licence presupposes that all
procedures and all processes
have been completed by the
Plaintiff.
Q. Maybe I should ask you
to read Exhibit “D”?
A. Witness reads out.
Q. You were indeed
authorizing customs to release
these equipment to Plaintiff
Company?
A. Yes.
Q. At the time you wrote this
exhibit, you were satisfied that
the Plaintiff had satisfied all
conditions precedent to the
clearance of the equipment?
A. My lord presumably, we
were.”
P.W.1 also referred to the
letter from Defendant acting by
its Director General informing
the Plaintiff to disregard his
Deputy’s letter of 11th
December 2003 and ordered that
the said communication equipment
be cleared into the Defendant’s
custody. The said letter was
tendered in evidence as Exhibit
“E”; and this is how it reads;
“NCA/C/01/2004/
January 6, 2004
The Director
AEWAHA Incorporated
P.O. Box 7298
46 Okodan Rd,
Osu Accra.
Dear Sir,
RE: APPROVAL OF IMPORTATION OF
COMMUNICATION EQUIPMENT: 93.5 FM
References:
A: NCA/CL/12/2003/41
B: NCA/ACL/FM/57/15
C: NCA/PBRO/FM.46
D: Initial Authorization
Letter Dated December 24, 2001
Please disregard reference A
above. It is requested that the
attached list of equipment is
cleared into NCA’s custody.
This action has become necessary
to enable NCA conduct further
investigations into your
authorization and expiration
dates for the FM Radio
Broadcasting.
By a copy of this letter, the
Assistant Commission of CEPS,
Kotoka International airport, is
hereby authorized to release the
attached list of equipment into
NCA custody after they have been
customed/inspected and passed by
an Officer of the National
Communications Authority, as per
the Airway bill Nos. 172-5139
2552 and 762-8819 9484 dated
4/12/03 and 10/12/03
respectively and Invoice Nos.
095877 and 095879 dated 20/11/03
originating from Roy parsons
Limited UK.
Yours faithfully
SGD
Major J.R.K. Tandoh (Rtd)
Ag. Director-General
cc: The Assistance
Commissioner,
Customs Excise and
Preventive Service
KIA, Accra”.
As stated by P.W.1, Defendant
gave a different reason for
seizing the equipment in Exhibit
“E” other than the earlier
reason that the Plaintiff had
violated provisions of L.I.
1719. It must also be noted that
nowhere in Exhibit “E” did the
Defendant state that the
Plaintiff had not obtained prior
approval for the importation of
its equipment. What the
Defendant stated was that the
action of the Defendant was to
enable NCA “conduct further
investigations into your
authorization and expiration
date for the FM Radio
Broadcasting.”
In my view, it is more likely
than not that Defendant had
prior knowledge of the equipment
imported by the Plaintiff since
what Defendant was required to
do per Exhibit “D” was to
inspect and pass the equipment.
Why would Defendant approve the
clearance of equipment it had
not given prior approval for its
importation?
In my opinion, the evidence
placed before the Court
indicates that the Plaintiff
imported its communication
equipment with the approval of
the Defendant. If the equipment
did not in fact meet the
Defendant’s specifications it
would not have been subsequently
released by the Plaintiff. I
will therefore find that the
Defendant has failed to
establish that the Plaintiff had
violated the said provision of
L.I.1719.
Whether or not the seizure of
the Plaintiff’s equipment was
lawful because of the alleged
investigation by the National
Security.
The Defendant also raised as a
defence, the issue of the
“promptings” of the National
Security who were then
investigating the illegal
importation of the communication
equipment by the Plaintiff and
other risk implications for the
security of the nation. Exhibit
“E” was silent on the said role
of the Security Agency, and so
was Exhibit “X” which is a
letter written by the Defendant
to the Minister of
Communications in response to
the Plaintiff’s petition to the
then Vice President.
The evidence adduced on behalf
of Plaintiff by P.W.1 was that
the Defendant never informed
them about any investigation
involving National Security, and
indeed their letter did not
mention National Security at
all. P.W.1’s evidence was that
the first time Plaintiff heard
about this was from their former
lawyer, after they had issued a
writ in the instant suit.
It is trite learning that the
Defendant cannot hide behind any
authorization unless that
authority is lawful and
constitutes a legal defence to
the claim. The Defendant
therefore had to prove that the
said authorization was lawful.
The first question to ask
therefore is; under what
statutory authority did the NCA
accept the alleged instructions
from the Office of the National
Security? I have looked at the
new National Communications
Authority Act, 2008 (Act 769)
which repealed Act 524. I have
looked at Act 524 itself since
it was the prevailing Act at the
time in question; the new Act
769 saves any license frequency,
authorization made under Act
524. I have also looked at the
Security and Intelligence
Agencies Act, 1996 (Act 526). In
none of these did I find any
provision that gives the
National Security the role being
ascribed to it by the Defendant;
all power is vested in the
Defendant Authority.
Section 13 (2) of the repealed
Act 524 mandates the NCA to
grant the license except in the
event of compelling reasons
founded on, inter alia, national
security. Furthermore, the
reasons upon which the decisions
are founded must also be
communicated to the applicant.
In my opinion, S.13 (2) cannot
avail the Defendant firstly
because the considerations of
National Security and other
issues are supposed to take
place before the grant of the
license. In other words, those
considerations should form the
basis of a refusal to grant a
license and they must be
compelling. In the instant
case, the Plaintiff had been
granted a license and assigned a
frequency and therefore those
considerations do not come into
play. Secondly, even if the
Defendant was within its right
to cancel the license on the
basis of national security
issues, the reason upon which
the decision is founded must
also have been communicated to
the Plaintiff. No such reasons
were communicated to the
Plaintiff.
This position is even made
clearer in the new Act, Act
769. Under “Functions of the
Authority” - Section 3 - it is
stated amongst others, as
follows:
3 (a) establish
and monitor the implementation
of national
communications standards and
ensure compliance
accordingly.
(c ) grant
communication license
(d) regulate and
monitor licenses, holders of
frequency
authorisations in consultation
with the National Media
commission where appropriate;
(g) determine
applications for communication
licenses
including
frequency authorisations.
(k) investigate
and resolve disputes
(i)
related to harmful interference
with frequency
brought to the attention of the
Authority or of which the
Authority has knowledge,
(ii)
amongst users and operators in
respect of rates
billings and services provided
and facilitate relief where
necessary amongst the users and
operators;
(iii) in
the event of the failure to
obtain redress from
providers of public
communications services, and
(iv) in
respect of interconnection
sharing facilities and
utility installations;
(l) carry out on
its own initiative or at the
request of a person,
investigations in relation to a
person whose conduct is in
contravention of this Act;
(m) establish
quality of service indicators
and reporting
requirements
for operators and service
providers;
(n) certify and
ensure the testing of
communications
equipment for compliance with
(i)
international standards; and
(ii) environmental health
and safety standards including
electromagnetic radiation and
emissions;
In my view, even if there was
any statutory authority given to
the Office of the National
Security that allowed them to
instruct the Defendant to seize
the Plaintiff’s equipment, such
authority cannot be interpreted
in such an oppressive manner.
It is trite that if a court is
interpreting a statute that will
affect the fundamental human
rights of any person or entity,
the statute has to be
interpreted strictly. That is
the authority should not be used
arbitrarily. It appears to me
that there is no statutory
provision that made it binding
on the Defendant to take such
instructions from the Office of
the National Security, and if
the Defendant did then they
allowed themselves to be
intimidated by the Office of the
National Security.
Furthermore, Section 10 (1) (d)
of the Electronic Communications
Act, 2008 (Act 775) provides
thus:
“ 10(1) A holder of a
frequency authorisation shall
(d) on request made by
the President and subject to the
Constitution
co-operate with the Government
in matters of
National security,”
Thus even if the request was
made by the President, it had to
be subject to the Constitution.
Needless to say that in the
instant case no proof was
provided that it was the
President who requested the
purported investigations or the
seizure of the equipment.
The Plaintiff is contending
there was no such “prompting” or
instruction from the Office of
the National Security. That the
reference to National Security
is an after-thought, and the
reliance placed on this belated
alibi has all to do with the
erroneous position taken by the
Defendant that the mere mention
of National Security absolves it
of any and all blame.
I am minded to agree with the
Plaintiff because the Defendant
did not adduce a scintilla of
evidence of the said “prompting”
or authorisation. When the
question was put to the
Director-General of the
Defendant Authority (who was the
Deputy Director-General at the
time of the seizure of the
equipment), P.W.3, as to what
evidence they had, this is what
transpired:
“Q: Can you tell this Court
whether you have any evidence in
writing to show to this Court or
anyone else in the world that
indeed National Security indeed
investigated this matter?
A: If you allow me I don’t
think this is a direct answer.
There are institutional
procedures. When anyone applies
for a license, you go through a
technical procedure, a
management procedure, sub-board
procedure and a board procedure
and it goes to National Security
for vetting. The National
Security, could in their wisdom,
decide to grant, defer or held
on to the proceeding. There are
precedents where licenses out of
pressures of businesses is
compliment exceptions, would
accelerate the process and when
National Security determine at a
latter date that the process
must be stopped or curtailed, it
is done. Potentially, this
could have been one of those
cases. Two, It is not uncommon
for verbal conversations to take
place National Security and
State apparatus. It happens
everywhere between round the
globe and I am not certain you
would find anything written in
black or white to ascertain that
position and that is a private
communication that is taken very
seriously to ensure that
people’s rights are not
abused.”
Simply put, the Defendant did
not adduce cogent evidence of
the involvement of the Office of
the National Security. In my
opinion, if indeed the
instruction was given, the
Defendant should have acted on
written and not verbal
instruction. Such was the
paucity of evidence in proof of
the Defendant’s assertion that
one is reminded of the
immortalized statement of
Ollenu J (as he then was), in
Mojolagbe v. Larbi (1959) GLR
190 at 192:
“Proof
in law is the establishment of
facts by proper legal means.
Where a party makes an averment
capable of proof in some
positive way, e.g. by producing
documents, descriptions of
things, reference to other
facts, instances, or
circumstances, and his averments
is denied, he does not prove it
by merely going into the witness
box and repeating that averment
on oath, or having it repeated
on oath by his witnesses. He
proves it by producing other
evidence of facts and
circumstances, from which the
court can be satisfied that what
he avers is true.”
I have taken note of the fact
that there is a member of the
National Security Agencies on
the governing Board of the
Defendant. I am therefore of
the view that if indeed the
Office of the National Security
had any reason to advise the
seizure of any equipment, they
should have informed the Board
to table a resolution to that
effect. Maybe it would have
been in the Defendant’s interest
to have joined or called the
Office of the National Security
to give evidence on the matter,
to the instant suit, but it did
not. The onus was on the
Defendant to prove its
assertion, but it failed to do
so.
The evidence placed before the
Court is that the Plaintiff
petitioned to the President for
the release of the seized
equipment and the report sent by
Defendant to Plaintiff (Exhibit
“S”) made no mention of the
instruction by the Office of the
National Security. The letter
under cover of which Exhibit “S”
was sent (Exhibit “8”) was dated
Friday, February 13 2009, and it
appears to me that it was the
first time documents relating to
the Plaintiff’s application were
being sent to the Office of the
National Security. It is
therefore obvious that the
Office of the National Security
had no record of Plaintiff’s
application and therefore could
not have directed the seizure of
the Plaintiff’s equipment and
withdrawal/suspension of the
license.
The Office of the National
Security by letter dated 18th
February 2009 (Exhibit “6”),
replied to Exhibit “8” and
raised no objection to the grant
of authorization to Plaintiff to
establish and operate a private
FM Radio Station “subject to the
requirement of the Authority.”
No reference was made to any
previous investigation of the
Plaintiff, or that it was
lifting its prior objection to
such a grant. Rather, in
accordance with the law, it left
the decision to grant a license
to the Defendant.
In the circumstance, I will find
that the Defendant has not
proved that there were any
investigations by the Office of
the National Security, and that
it acted on the “prompting” or
instructions of the National
Security when it seized the
Plaintiff’s communication
equipment.
Whether or not the said seizure
of the Plaintiff’s communication
equipment has caused it
financial loss and damage.
I will start by stating that the
law anticipated claims for
damages with the cancellation or
suspension of licences and thus
Section 21(4) of Act 524
provided as follows:
“ In determining
whether it is necessary to
suspend or cancel a
licence granted under
this Act, the Authority shall
consider the
extent to which any
person is likely to sustain loss
or damage
as a result of the
suspension or cancellation.”
The Plaintiff, as earlier
stated, is claiming Special
Damages of US $6, 623,711
together with interest thereon,
and also aggravated and
exemplary damages for wrongful
seizure of communication
equipment and suspension of
radio license. Plaintiff is also
claiming General Damages.
The law protects persons whose
title to, or possession of,
goods is interfered with, or
whose goods are damaged by
intentional conduct. The major
extant chattel torts of
trespassing and conversion
predominantly protect interest
in possession.
It is trite learning that
trespass and conversion deal
with intentional wrongful
interference with goods.
The remedy for torts is
compensatory damages.
Compensation is the award of a
sum of money which, so far as
money can be so, is the
equivalent to the Claimant’s
loss.
The aim for compensatory damages
for tort is to put the claimant
into as good a position as it
would have been in if no tort
had been committed. The classic
English tort case laying down
the aim of compensatory damages
is Livingstone v Rawyards
Coal Co. (1880) 5 App Cas 25 at
39. Lord Blackburn stated
that the measure of damages was:
“ ..... that sum of
money which will put the party
who has been injured, or who has
suffered, in the same position
as he would have been in if he
had not sustained the wrong for
which he is now getting his
compensation.”
In the Ghanaian case of
Yungdong Industries Ltd v Roro
Services & Others (2005-2006]
SCGLR 816 at 837 , the
dictum of Dr S. Twum JSC was
that a successful action for
conversion might result in a
judgment of one of three
different forms; (i) for the
return of the chattel or
recovery of its value as
assessed and damages for its
detention; (ii) for the value of
the chattel as assessed and
damages for its detention; and
(iii) for the return of the
chattel and damages for its
detention. It was clear that in
each of the three different
forms of judgment, general or
special damages might be awarded
for the wrongful detention. The
instant action obviously falls
in the 3rd category.
I will reiterate the point
earlier made that the equipment
that were wrongfully interfered
with have already been returned
to the Plaintiff.
The learned Judge stated further
that generally, damages in tort
would be awarded by way of
monetary compensation for a loss
or losses which a plaintiff had
actually sustained, and the
measure of damages on that basis
might vary infinitely according
to the individual circumstances
of any particular case. It was
for a plaintiff to prove what
loss, if any, it had suffered by
reason of a tort, and when the
effect of the tort was
potentially adverse interference
with the course of its business
operations, it was for it to
establish by evidence that there
had been, in fact, such adverse
interference and that, it had
suffered a properly quantifiable
loss by reason of it.
In a claim for damages, the
position of the law with regard
to special damages is that as
the name indicates they are
special and must be claimed with
such particularity that the
defendant knows, not only the
amount of loss or damage alleged
to be suffered but also how that
amount is made up or
calculated. Any monetary loss
suffered by the applicant up to
the date of trial must be
pleaded, particularised and
proved or else it cannot be
recovered. In the case of
Stroms Bruks Aktie Bolag v.
Hutchison (1905) AC 515 at
525-526, HL (SC) Lord
Macnaghten stated that: “Special
damages’ – are such as the law
will not infer from the nature
of the act. They do not follow
in ordinary course. They are
exceptional in their character,
and, therefore, they must be
claimed specially and proved
strictly.”
This position is enunciated in
the case of Delmas Agency
Ghana Ltd. v Food Distributors
International Ltd (2007 -2008)
SCGLR 748, in which case
Dr.S. Twum JSC stated that
“Where the plaintiff has
suffered a properly quantifiable
loss, he must plead specifically
his loss and prove it strictly.
If he does not, he is not
entitled to anything unless
general damages are also
appropriate”
The Plaintiff particularized its
loss as follows:
$
1.
Interest on loan
agreement
4,069,165.00
2.
Legal
Retainer Fees
700,137.00
3.
Business and Marketing
Services
85,261.00
4.
Consultancy
Agreement
265,660.00
5.
Tenancy
Agreement
625,177.00
6.
Technical Services
Agreement
686,767.00
7.
Interest on
Tower
27,694.00
8.
Equipment Replacement
Value
163,850.00
US$ 6,623,711.00
The evidence of Edwin Addo, PW4
was to prove the claim for
Special Damages. PW4 tendered in
evidence a stack of documents,
as proof of the costs incurred
and expended as a result of the
wrongful actions of the
Defendant. The documents are as
follows:
1. Plaintiff and Serengeti
Limited – Exhibit “J”
2. Letter appointing
Lawrence N. Otoo as legal
Counsel to Plaintiff – Exhibit
“K”.
3. Proposal from MindMaps
ZA for Business
Planning Services - Exhibit “L”
4. Website and Design
Proposal from MindMaps ZA –
Exhibit “L1”
5. Invoice from MindMaps ZA
“L2”
6. Consultancy Agreement
between the Plaintiff and
MindMaps ZA - Exhibit “M”
7. Independent Contractor
agreement between the Plaintiff
and Serengeti limited – Exhibit
“N”
8. Tenancy Agreement
between Anna Victoria Mensah and
the Plaintiff – Exhibit “P”.
9. Statement of Plaintiff’s
Claim – Exhibit “Q”
A summary of the Plaintiff’s
claim can be gleaned from
Exhibit “Q” as follows:
“Various Expenses At Present
Values
($6,623,711/GH¢9,375,863) 1
Part 1 – Contractor Fee
($6,686,767)
....................................
1
Part 2 - Interest on Loan
($4,069,165)
.................................
1
Part 3 - Legal Fees ($700,137)
.............................................
2
Part 4 - Rental Cost
($625,177)
.........................................
2
Part 5 - Tower Cost ($27,694)
...........................................
2
Part 6 - Equipment Replacement
($163, 50)
................... 3
Part 7 - Business
consulting and Marketing Cost
($350,921)... 3
7a - Initial Planning
and Design Services
($85,261)........... 3
7b - 18 Month Retainer
Agreement ($265,660)
....................3
Summary of Claims
|
Creditor |
Description |
Amount
|
Cumulative |
|
Serengeti Ltd. |
Interest on Loan
Agreement |
4,069,165 |
4,069,165 |
|
Fugar & Co |
Legal Retainer Agreement
|
700,137 |
4,769,302 |
|
MindMaps
|
Business & Marketing
Services |
85,261 |
4854564 |
|
MinMaps |
Retainer |
265,660 |
5,120,223 |
|
Anna Mensah |
Tenancy Agreement |
625,177 |
5,745,400 |
|
Serengeti Ltd |
Technical Services
Agreement |
686,767 |
6,432,167 |
|
Aewaha
|
Interest on Tower
|
163,850 |
6,623,711 |
|
|
|
|
|
|
|
GH¢ Equivalent |
1 |
9,375,863 |
|
|
|
|
|
“
I have taken note of the fact
that an item in the summary of
claims is “Interest on Loan
Agreement”. In a claim for
damages, the Court considers two
matters; remoteness of damages
(the proximate cause of the
breach) and the measure of
damages (the quantum of money to
be awarded). The position of
the law on remoteness of damage
was set out by Alderson B, in
Hadley v Baxendale [1854] 9 Exch
341 at 354. The principle in
Hadely v Baxendale has
been approved by the Ghanaian
courts in a long line of
decisions. One such is the
Supreme Court’s decision in the
case of Nartey-Tokoli v Volta
Aluminium Co Ltd (No 2)
[1989-90] 2 GLR 341 at 369.
The Plaintiff’s claim for
interest on the said loan is too
remote to be sustained, and I
will so find.
PW4’s evidence was that the
Plaintiff incurred out of pocket
expenditure to the tune of US$
6,623.711.00. However the
witness appeared to have revised
his position under cross
–examination. This is what he
said:
“Q: For the avoidance of
any doubt in this court can you
confirm to me that that the
plaintiff company on whose
behalf you are giving evidence
has incurred this amount of US$
6,623,711as out of pocket
expenditure?
A: I have explained that
a lot of these agreements as he
will get to see once he studies
them were agreements that were
signed 4/5 years ago in certain
cases. We entered into
contractual obligations on fixed
amount of money pursuing the
agreements being signed 4 or 5
years has elapsed the amount you
mentioned is a combination of
out of pocket expenses and
interest accrued on those out of
pocket expenses.
Q: So are you saying
essentially to this court that
the plaintiff company has not
incurred out of pocket
expenditure currently as at
today to the tune of US$
6,623,711, not so?
A: What I am saying is
that the plaintiff company which
is Aewaha is contractually
obligated to settle an
outstanding amount of $6.6
million which is indeed a
combination of monies spent out
of pocket and interest charged
on it the fact that you haven’t
spent the money does not mean
that the money is not.....
Q: I am not asking you
to give examples or
suppositions. I am asking you to
be clear and candid with the
court.
A: The answer is no.
Q: How much currently of
your claim in special damages
have you endorsed of US$
6,623,711 have you spent as out
of pocket expenditure?
A: I believe the
original amounts are stated in
the summary of our claim.
P.W.4 was unable to point to any
evidence that categorically
showed what had been spent as
out-of-pocket-expenditure to
qualify as Special Damages.
Although he gave evidence to the
effect that there had been a
drawdown of monies to the tune
of US$2,612,559.00 from
Serengeti as financier and
lender, no evidence was adduced
to establish that Plaintiff had
indeed expended the said amount.
P.W.4’s further evidence as
that payments for goods
purchased were made by Serengeti
out of the British Virgin
Islands who was presented
directly with the invoices of
the equipment supplied without
any recourse or reference or
notification to the Plaintiff as
purchaser, and then honoured.
P.W.4 also testified that there
was an additional capital
expenditure of an amount of
$783,767.00 or thereabouts on
procurement of preparatory
assets, but did not provide any
evidence to support this. He
said it was his belief that it
was the shareholders that
sponsored this additional
expenditure by raising capital
under a loan to the company.
This is what he said:
Q: 30% of the loan that
you claim this ¢5,000,000
capitalized company borrowed
which you claim is $2,612,559
30% of that translates to US$
783,767. My question is which of
those shareholders in the
individual capacities loaned
this ¢5,000,000 incorporated
company the amount of US$
783,767?
A: I will assume all
five of them.
Q: You would assume all
five of them?
A: Yes I wasn’t a
director at that time but I will
assume all five of them
contributed to that loan.
Q: In your evidence in
chief is that “I was a
consultant for Aewaha and was
involved in the setting up of
the company” that’s your
testimony.
A: Yes that is my
testimony.
Q: And yet as a
consultant involved in the
setting up of the company you
can only give this court
assumptions as to which of the
shareholders contributed an
additional US$ 783,767 in loans?
A: I think that will
depend on what your definition
of setting up a company means.
If it is that I was involved
with consultations and the
planning of and not necessarily
the registration of then
certainly I should not be
expected to know exactly how
much each shareholder gave or
Director gave at the time.
Setting up goes beyond going to
the Registrar General’s Office
with a piece of paper and some
money.
Q: So you don’t know who
provided this amount and in what
proportion?
A: I would assume that
that the share holders did.
Q: I am not asking for
your assumptions here, this is a
court of evidence. So you don’t
know?
A: No I do not.
P.W.4’s further evidence under
cross-examination was as
follows:
Q: If I am to understand
you correctly the company first
borrowed $2,612,559 as a loan
from Serengeti, a British Virgin
Island Company then the company
took a further set of loans from
its five (5) shareholders to the
tune of $783,767 and then in
addition to that the company
went further to expend further
amounts of money in respect of
the particulars you have stated
in paragraph 12 of your amended
statement of claim. Particulars
2, 3, 4, 5, 6 and 7 is that
Correct?
A: Yes that is correct.
Q: So additionally to these
first two loans they spent legal
retainer fee of $700,137?
A: No they did not.
Q: You have it here as
special damage to the tune of
700,000 spent on legal retainer
fees, is all of that out of
pocket expenditure incurred by
the plaintiff company?
A: Yes it is.
Q: You’ve told this court
already you understand what out
of pocket expenditure means?
A: Yes I do.
Q: Did the plaintiff
company out of its pocket meet
legal retainer bills to the
amount of $700,000?
A: No, the legal entity
owes legal fees up to the
700,000.
Q: So it has not paid
700,000 to any lawyers at this
point?
A: Currently there are debt
certificate between ourselves
and FUGA & CO. because the debts
were never contested by Aewaha.
Q: So how much of the
700,137 have you actually paid
as a company to Messrs FUGA &
CO.?
A: At the moment I am not
aware that we’ve paid anything.
One of the heads of the
Plaintiff’s claim for Special
Damages was “Tenancy Agreement”,
and the evidence before the
Court is that part of the
property owned by Anna Victoria
Mensah, sole shareholder and
Chairman of Plaintiff Company.
P.W.4’s evidence was that the
Plaintiff continued to pay rent
despite the fact that it never
had the chance to take up
occupancy and commence business
operations from there.
With regard to the claim for
“Contractor Fee”, this is the
evidence led by P.W.4:
Q: Turn to page 2
paragraph 5A of exhibit “N”
Counsel Reads Out. That is the
240,000 which you referred to in
part 1 of Exhibit Q?
A: it would appear to be
so, yes.
Q: You have; however,
itemized under item 6 of your
Statement of Claim that amount
of 240,000 has become a
liquidated claim of 686,767.00.
How did that come about?
A: For the first twelve
month of engagement, we owed the
consultant US$ 240,000.
Q: Did you pay him?
A: No we have not paid
him because we were not allowed
to operate. After a year,
obviously, it was clear to all
of us that it was basically, the
license has not been given but
the equipment was still
confiscated. So we decided to
cut off after first year and the
interest accrued on the 240,000
is what amounted to 686,767
dollars. This amount here
686,767 dollars is the capital
of 240,000 plus interest of 18%.
In my view, the evidence adduced
on behalf of the Plaintiff to
prove its claim for Special
Damages was inadequate. The
tendering in evidence of copies
of agreements etc is not
sufficient proof that the monies
being claimed have indeed been
expended. One would think that
the sums of money paid to and
received by the various parties
would be covered by invoices and
receipts which the Plaintiff
could have tendered in
evidence. Admittedly the
authorities have not held that
to establish a claim receipts
should be provided by all
means. Indeed it has been held
that it is not a strict
requirement of the law and that
obtaining receipts for services
rendered is desirable but not
compulsory. See Yamusah v.
Mahammah (1991) 1 GLR 549,
and R.T Briscoe (1964) GLR
322.
In Kubi v. Dali (1984-86) 2
GLR 501 this is the way His
Lordship Justice Abban put it at
page 505:
“I do not think in the
circumstances of this particular
case, the production of receipts
at the trial could be the only
legitimate means of proving
special damages and she led
cogent evidence to that effect.
She led evidence to show that
she incurred hospital expenses,
paid for the cost of police
report and spent on
transportation to and from the
hospital. In the course of the
evidence, the plaintiff clearly
indicated that she had no
receipts for some of the items
but had receipts in respect of
others but had lost them and
they could not be traced and the
court was therefore entitled to
accept secondary evidence as
given by the plaintiff. In
respect of those she was not
given receipts for it was again
a question of fact as to whether
or not the expenses were
incurred.”
Thus, when a party is not able
to tender in evidence invoices
and receipts to support its
claim, he is obliged to lead
cogent evidence to convince the
court. It is my opinion that the
evidence placed before the Court
was hopelessly lacking in
certainty and therefore the
Plaintiff has failed to strictly
prove its claim for Special
Damages, and I will so find.
The Plaintiff is also making a
claim for “Aggravated and
exemplary damages for wrongful
seizure of communication
equipment and suspension of
radio licence”.
P.W.2, Samuel Siaw of Messrs
Andah & Andah, a firm of
chartered accountants, tendered
in evidence as Exhibit “H” a
document prepared by his firm
purporting to show and
demonstrate the loss and damage
that Plaintiff had suffered as a
result of the
suspension/cancellation of its
licence. PW.2 sought to ground
and justify Plaintiff’s claim as
follows:
“So if you look at the total
amount that we are looking at it
is made up of three components:
the income that would have been
earned from the operations of
the company itself, then how
much the company would have
earned if it had invested its
cash surpluses and the brand
value and we totalled all and we
arrived at GH¢6.3 million.”
The dictum of Adade JSC in the
case of Royal Dutch Airlines
(KLM) v Farmex (1989-90) 2 GLR
623 at 633 was that:
“Special damages must be
specifically pleaded and
specifically proved. But the
rule does not imply that if one
claims general damages only, one
cannot lead evidence of specific
damages as a foundation for an
award of general damages. After
all, in coming to a decision as
to how much general damages to
award, the court needs some
guidance as to financial loss.”
Dr. S. Twum JSC in Delmas
Agency Ghana Ltd v. Food
Distributors International Ltd
(supra) however opined that the
above quoted decision of Adade
JSC was clearly overboard. Dr.
Twum stated that, general
damages are such as the law will
presume to be the natural or
probable consequences of the
defendant’s act. It arises by
inference of the law and
therefore need not be proved by
evidence. The law implies
general damage in every
infringement of an absolute
right. The catch is that only
nominal damages are awarded.
Where the Plaintiff had suffered
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. If he
does not, he is not entitled to
anything unless general damages
are also appropriate.
The law is clear that whenever a
damage of any kind is an
essential portion of the cause
of action, it is special damage
and as much certainty and
particularity will be insisted
upon both in pleading and proof
of damage, as is reasonable,
having regard to the nature of
the acts themselves by which the
damage is done. So if the
Plaintiff really wanted to claim
and prove loss of profits, it
should have pleaded it with full
particulars of the quantum and
how it is made up; see
Attorney-General v. Faroe
Atlantic Co. Ltd. (2005-2006)
SCGLR 271 at 291. Since
this claim was not specifically
pleaded as special damages, and
particularized, it would be
regarded as general damages.
The position of the law is that
when in proving loss one is
concerned with past facts the
usual civil standard of “proof
on the balance of probabilities”
is deemed appropriate. The
usual standard is thought apt
for facts which must be either
true or false. But where in
proving loss one is concerned
with future events or with
hypothetical actions of third
parties, the balance of
probabilities standard is
thought inapt. Instead full
damages are only awarded if the
claimant can prove its loss with
reasonable certainty. Below
that, damages- sometimes loosely
referred to as damages for “loss
of a chance “ – can be awarded
in proportion to the chance of
that loss. No damages at all
are recoverable where the chance
of the loss is entirely
speculative.
In Mallett v McMonagle (1970)
AC 166 at 176, Lord Diplock
summarised the law as follows:
“In determining
what did happen in the past a
court decides on the balance of
probabilities. Anything that is
more probable than not it treats
as certain. But in, assessing
damages which depend upon its
view as to what will happen in
the future or would have
happened in the future if
something had not happened in
the past, the court must make an
estimate as to what are the
chances that a particular thing
will or would have happened and
reflect those chances, whether
they are more or less than even,
in the amount of damages which
it awards.”
In my opinion the testimony of
P.W.2 was discredited under
cross-examination. Firstly, the
testimony of P.W.2 was based on
hearsay evidence from an
independent consultant from
within the industry, but refused
to either provide the report
itself or even to identify him
in order for the Defendant to
test the veracity of the said
evidence. The law of evidence
is that evidence adduced that
does not lend itself to being
tested as to its truth and
veracity under cross-examination
is to be disregarded.
P.W.2 admitted to not obtaining
the data upon which he relied
from the primary sources of the
radio stations themselves; he
did not lay sight or rely on any
audited accounts of the said
radio station companies. He
also had no means of knowing or
ascertaining whether those
management accounts he claimed
were those of the radio station
companies were actually theirs.
Furthermore, he had not met or
had discussions with them. He
was also relying on a base
period over which to calculate
loss of profits but for a part
of which the Plaintiff had not
had its licence suspended.
Also, P.W.2 was unable to
provide a justifiable reason for
applying the particular rates of
profit which he applied, or the
basis upon which he calculated
the “brand value” of the
Plaintiff Company name,
“AEWAHA”. Indeed even now, the
Plaintiff is still not
broadcasting under the name
“AEWAHA”, and there is no
reasonable reference point upon
which P.W.2 could base his
ascription of value to the
“AEWAHA” brand.
It is my opinion that Plaintiff
did not meet the required
standard of proof to establish
this claim. However, in several
types of English case law the
burden on the claimant is eased
by presuming that loss has been
suffered; in other words,
damages are sometimes “at
large”. The tort of defamation
probably the most important in
this respect, but the same
applies, for example, to
trespass of goods.
As stated above, Plaintiff did
make a claim for General
Damages. In my opinion, the
instant case is one in which
loss may be presumed and damages
are “at large”. I will
therefore find that Plaintiff is
entitled to an award of general
damages.
In conclusion, I will hold that
the Defendant wrongfully
interfered with the Plaintiff’s
communication equipment and
award General Damages of GH¢20,000.00
to the Plaintiff.
Costs of GH¢10,000 awarded in
favour of the Plaintiff.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
PHILLIP ADDISON
-
PLAINTIFF
CHARLES ZWENNES
- DEFENDANT |
