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JUDGMENT: By
amended writ of summons and
statement of claim filed at the
Registry of this Court on 22nd
October, 2008, the Plaintiff
claims against the Defendants
jointly and severally the
following reliefs:- a) A
declaration that by virtue of
approval letters dated 7th
January, 2008 and 11th January,
2008 Western Region (Ghana/Cote
d’ lvoire boundary teak trees)
Forest Reserve has been
allocated to Plaintiff by 1st
and 2nd Defendants. b) An order
restraining 1st and 2nd
Defendants from granting entry
permit to 3rd Defendant or any
other person or Company to enter
Western Region (Ghana/Cote
d'lvoire boundary teak trees)
Forest Reserve. c) An order
directing 1st and 2nd Defendants
to issue forthwith, entry permit
to Plaintiff Company to enter
Western Region (Ghana/Cote
d'lvoire boundary teak trees)
Forest Reserve. d) An order
cancelling the purported
reallocation of the Western
Region (Ghana/Cote d’ lvoire
boundary teak trees) Forest
Reserve to 3rd Defendant Company
or to any other Company. e)
Costs including legal fees. 2nd
and 3rd Defendants filed
separate statements of defence
denying the claim of the
Plaintiff. The 3rd Defendant
went on to counterclaim as
follows: (i) A declaration that
the purported grant or
allocation of the disputed area,
that is the Ghana/Cote d'Ivoire
boundary teak trees Forest
Reserve is contrary to Law, that
is the Timber Resources
Management Act, 1997 (Act 547)
as amended by Timber Resources
Management Amendment Act, Act
2002 (Act 617) and the Timber
Resources Management
Regulations, Amendment
Regulations, 2003 [LI 1721] and
as such void and of no effect.
(ii) A further order that the
purported wrongful act, if any,
has itself lapsed by virtue of
Plaintiffs blatant failure to
fulfill the conditions precedent
to consummation of the purported
grant. (iii) An order annulling
the purported grant of the
disputed area, that is the
Western Region (Ghana/Cote
d'Ivoire) boundary teak trees
Forest Reserve to Plaintiff or
any other Company save the 3rd
Defendant herein. (iv) An order
of perpetual injunction
restraining the Plaintiff from
laying any claim to the disputed
area and engaging in any act
preparatory to entering onto the
lands for the purposes of
operating therein. (v) A further
order directed at 1st and 2nd
Defendants to arrange entry
permits for the 3rd Defendant in
respect of the disputed area.
(vi) Other reliefs. (vii) Costs
including Solicitor's fees and
costs. At the close of pleadings
all the issues raised in the
application for directions filed
on 12th December 2008 and the
additional issues filed by the
2nd Defendant on 3rd June 2009
were set down for trial by this
Court. The issues set down were
as follows:- a. Those filed by
the Plaintiff were:- 1. Whether
or not, by letters dated January
7, 2008 and January 11 2008, 1st
and 2nd Defendants gave approval
for replacement of Opro River,
Asumina, Nsemere Sawsaw Forest
Plantations with Western Region
Ghana/Cote d'Ivoire boundary
teak trees, Pampawie Central in
the Jasikan District and Afrenso
Brohuma Forest Reserve
Plantation Compartment Seven (7)
for Plaintiff. 2. Whether or not
the decision contained in the
letters dated January 7 2008 and
January 11 2008 was subject to
manual procedures of 2nd
Defendant which included
assessment of the standing teak
volumes involved. 3. Whether or
not Plaintiff company was
required to pay additional sum
of GH¢1,243,047.46 as a result
of the decision of the Hon.
Minister of Lands, Forestry and
Mines to allocate Western Region
(Ghana/Cote d'Ivoire) boundary
teak trees, Pampawie Central in
the Jasikan District and Afrenso
Brohuma Forest Reserve
Plantation to Plaintiff company
as replacement and compensation
for the loss of the Opro River
Plantation. 4. Any other issues
raised by reason of the
pleadings. b. Additional issues
filed by the 2nd Defendant
were:- 1. Whether or not the
Hon. Minister of Lands, Forestry
and Mines has the authority to
give teak trees to anybody, the
Plaintiff inclusive, as
compensation without payment of
the value thereof under any
circumstance. 2. Whether or not
the Plaintiff company raised
objections to 2nd Defendant's
demand for payment of additional
sum of GH¢1, 243,047.46. 3.
Whether or not 2nd Defendant is
estopped from allocating the
Ghana/Cote d'lvoire boundary
teak trees to 3rd Defendant. On
3rd June 2010, the 2nd Defendant
filed amended statement of
defence pursuant to this Courts
order further denying the claim
of the Plaintiff. At the trial
each of the parties called one
witness to give evidence in
support of its case. The
Plaintiff's case which was
presented by its Managing
Director, John OWUSU Amankrah is
that by a letter dated 27th
June, 2007, the 2nd Defendant
allocated to it, boundary teak
trees in seventeen (17)
specified Forest Reserves in
consideration of the sum of GH¢1,338,883.84
in addition to 15% Value Added
Tax, He tendered in evidence the
letter of allocation as Exhibit
A. By the said exhibit, the
Forest Reserves allocated to the
Plaintiff included, Afram
Headwaters, Asubima, Asufu
Shelterbelt East, Asufu
Shelterbelt West, Opro River,
Glanirma and Kwamisa, all in
Offinso District. Others
included Dome River and North
Bandai Hills in Juaso District.
The rest were Bosomkese in
Bechem District, Nsemere/Sawsaw
and Yaya in Sunyani District,
Bosomoa arid Buru in Kintampo
District, Aboma, Pru Shelterbelt
and Awura in Mampong District.
According to the Plaintiff full
payment was made by it to the
2nd Defendant in respect of the
said allocation on 12th July
2007. A receipt on the said
payment was tendered in evidence
by the Plaintiff as Exhibit B.
In addition to the payment of
the cost of the Forest Reserves,
the Plaintiff claims that it
satisfied all the requirements
in the allocation letter except
two, namely Tax clearance
certificate and Vat registration
certificate. It explained that
those requirements could not be
satisfied because it had not
been given entry permit. This is
because entry permit had to be
issued before satisfying those
requirements. Plaintiff avers
that the entry permit was later
issued for all the Seventeen
Areas except four which were
Opro River, Asubima, Nsernere
and Sawsaw Forest Reserves. The
Plaintiff protested against the
exclusion of those areas from
the entry permit. This resulted
in a meeting being arranged by
the Minister of Lands, Forestry
and Mines between the Plaintiff
and 2nd Defendant including
representatives from the
Ministry of Finance and Economic
Planning to resolve the matter.
After the meeting it was agreed
that the exclusion of those
areas from the entry permit was
not the fault of the Plaintiff
so it would be allocated the
Western Region Ghana/Cote
d'lvoire boundary teak trees,
Pampawie Central in the Jasikan
District and Afrenso Brohuma
Forest Reserve Plantation
Compartment Seven (7) as
replacement and compensation. In
accordance with the
understanding reached at the
meeting, by a letter dated 7th
January, 2008, addressed to the
2nd Defendant, the Minister for
Lands, Forestry and Mines gave
approval for the granting of
those areas to the Plaintiff as
replacement and compensation.
The Plaintiff tendered in
evidence the letter as Exhibit
C. The Plaintiff claims that by
the letter written by the
Minister it was not supposed to
make further payment since the
areas directed to be given to it
in the letter were for
replacement and compensation.
Following the directive by the
Minister that those three areas
be allocated to the Plaintiff as
replacement and compensation,
the Chief Executive of the 2nd
Defendant company by a letter
dated 11th January, 2008
addressed to the Plaintiff
confirmed the allocation of
those three areas to the
Plaintiff. The letter was
tendered in evidence as Exhibit
D. According to the Plaintiff by
the letter it was not required
to make further payment to the
2nd Defendant in respect of the
allocation of those three areas.
Plaintiff goes on to aver that
2nd Defendant went on to issue
entry permit for two of the
areas, namely Pampawie Central
in the Jasikan District and
Afrenso Brohuma Forest
Plantation Compartment Seven (7)
but declined to issue entry
permit for the Western Region
(Ghana/Cote d'lvoire) boundary
teak trees Forest Reserve. The
Plaintiff claims that the Chief
Executive informed it that he
did not know the number of
stumps in the area and since
they would be paying social
responsibility to the community,
it would be prudent to let his
people go and check the stumps
before issuing entry permit in
respect of that area. Whilst the
Plaintiff was waiting for the
entry permit in respect of that
area, it got information that
the 2nd Defendant had sold the
area to the 3rd Defendant, hence
this action. The Plaintiff
denied that it was to make
additional payment in respect of
the Western Region (Ghana/Cote
d'lvoire) boundary teak trees
Forest Reserve. Also the
allocation made to it by the
Chief Executive of the 2nd
Defendant company was not
subject to its manual
procedures. Plaintiff avers that
at the time the 3rd Defendant
allegedly paid for that area,
the place had been allocated to
it and it had made full payment
in respect of that. It claims
that if it had worked out the
interest rate at that time for
them to pay they would have paid
higher than the Western Region
boundary lines. The Plaintiff is
as a result entitled to the
reliefs endorsed on the writ of
summons.The case for 1st
Defendant which was presented by
Joseph Osiakwan is that
somewhere in 2007, a company
petitioned the then Minister of
Lands, Forestry and Mines, Hon
Esther Obeng Dapaah that the
area allocated to it had been
re-allocated to the Plaintiff.
The Minister invited the two
parties and resolved the matter.
She realized that it was no
fault of any of the parties so
she decided to find a
replacement for the Plaintiff.
According to the 1st Defendant,
the Minister proposed that three
areas be given to the Plaintiff
as replacement. These were
Pampawie Central in the Volta
Region, Afrenso Brohuma Forest
Reserve and the Ghana/Cote
d'lvoire boundary teak trees
Forest Reserve. The 1st
Defendant avers that the 2nd
Defendant complied with the
Minister's directives and
allocated those three areas to
the Plaintiff. The 1st Defendant
claims that the replacement
exceeded the volume of trees
taken from the Plaintiff by
about six thousand cubic meters.
It avers that in such a
situation there are three
scenarios. These are either the
company gets an area which is
equal to what it lost. The
second is where the company is
given less than what it lost. In
such a situation the company
applies for a top up. The third
one is where the company is
given more than what it lost but
it would have to pay for the
excess. It claims that in the
current case the third scenario
was used so the Plaintiff was
expected to pay for the excess.
It is, therefore, not true that
the Plaintiff was given the area
in dispute for free. This is
because the Minister does not
have the mandate to give any
area for free. The Plaintiff is,
therefore, not entitled to its
claim. The case for the 2nd
Defendant which was presented by
Francis Amoah is that sometime
in June, 2007, the Forestry
Commission allocated seventeen
forest reserves to the Plaintiff
on condition that the Plaintiff
would fulfill some requirements
including 100% payment for the
volume of trees allocated
including VAT and NHIS. The 2nd
Defendant conceded that even
though the Plaintiff made full
payment in respect of the areas
allocated to it, the entry
permit issued to the Plaintiff
excluded Opro River Forest
Reserve which was one of the
areas which had been allocated
to the Plaintiff. This was as a
result of a complaint lodged by
Evans Company Ltd in respect of
the Opro River. The 2nd
Defendant avers that the
Minister approved the allocation
of the Opro River to Evans
Timbers and three areas to
replace Opro River that had been
taken away from the earlier
allocation made to the
Plaintiff. The 2nd Defendant
goes on to aver that when the
Minister's directive got to it,
they computed the volumes and
realized that the Plaintiff had
lost a little over 2000 cubic
meters. Meanwhile, the areas
allocated to the Plaintiff were
far in excess of that figure. It
claims that the Pampapawie
Central and Afrenso Brohuma
alone had over 8000 cubic meters
which was in excess of the area
lost to the Plaintiff by about
6000 cubic meters. The Chief
Executive, therefore, allocated
the Pampawie Central and the
Afrenso Brohuma Forest Reserves
to the Plaintiff and it informed
it accordingly. According to 2nd
Defendant it later wrote to the
Plaintiff demanding the payment
of an outstanding balance of GH¢1,243,047.46.
The Plaintiff was given up to
28th February, 2008 to clear the
outstanding balance. It,
however, did not pay so the 2nd
Defendant stopped it from
operating in the areas allocated
to it. 2nd Defendant tendered in
evidence the letter that was
written to stop the Plaintiff
from its operations as Exhibit
6. The Plaintiff negotiated with
the Chief Executive as a result
of which a meeting was held and
in the process it submitted a
re-payment schedule to the 2nd
Defendant. He tendered in
evidence the minutes of the
meeting and the payment schedule
submitted by the Plaintiff as
Exhibits 8 and 9 respectively.
With respect to the 3rd
Defendant, the 2nd Defendant
avers that the then Minister for
Forestry, Lands and Mines in
August 2008, approved that the
Ghana/Cote d’Ivoire boundary
teak trees be allocated to it.
So the 2nd Defendant made that
allocation to the company. The
company fulfilled all
requirements as a result of
which entry permit was issued to
it. Plaintiff is, therefore,
riot entitled to its claim. The
case for the 3rd Defendant was
presented by Kwasi Asante. The
3rd Defendant claims that it
applied to the Ministry to be
allocated the Ghana/Gate
d'lvoire boundary teak trees
Forest Reserve and it was
approved. It tendered in
evidence copies of the
application and the approval
letters as Exhibits 10 and 11
respectively. The 2nd Defendant,
therefore, wrote to 3rd
Defendant confirming the
allocation and asking it to
comply with certain
requirements. It tendered in
evidence the letter as Exhibit
12. On receipt of that letter it
complied with all the
requirements as a result of
which it was given entry permit
in respect of the area. He
tendered in evidence the entry
permit as Exhibit 15. When it
went to the area with intention
to work it was stopped by an
order of this Court. In view of
that it could not go to the area
to work. According to the 3rd
Defendant the Plaintiff failed
to satisfy the requirements for
the allocation and also failed
to pay for the excess volume of
teak in the disputed area. It
was as a result of that failure
on the part of the Plaintiff
that the 2nd Defendant sold the
area to it. The Plaintiff is.
therefore, not entitled to its
claim. ln civil cases, the
general rule is that the party
who in his pleadings or writ of
summons raises issues essential
to the success of his case
assumes the onus of proof. See
Faibi v State Hotels Corporation
[1968] GLR 471 and Bank of West
Africa Ltd v Ackun [1963] 1 GLR
176. See also Sections 10 and 11
of the Evidence Act, 1975 (NRCD
323). Also in the case of Boakye
v Asamoah and Another (1974) 1
GLR 38 it was held that the
well-known legal or persuasive
burden of proof is the burden
borne by the party who will lose
the issue unless he satisfies
the tribunal of fact to the
appropriate degree of
conviction. In the current case
the burden is on the Plaintiff
to produce sufficient evidence
to prove its case. This Court
will, therefore, have to find
out from the evidence before it,
whether the Plaintiff has
properly discharged that burden.
In doing that the Court will
have to consider the issues that
were settled by this Court for
determination. The first issue
to consider is whether or not by
letters dated January 7, 2008
and January 11, 2008, 1st and
2nd Defendants gave approval for
replacement of Opro River,
Asumina, Nsemere Sawsaw Forest
Plantations with Western Region
Ghana/Cote d'lvoire boundary
teak tree, Parnpawie Central in
the Jasikan District and Afrenso
Brohuma Forest Reserve
Plantation Compartment seven (7)
for Plaintiff. By Exhibit A, the
Plaintiff was allocated boundary
teak trees in 17 Forest Reserves
at the cost of GH¢1,338,883.84
in addition to 15% Value Added
Tax subject to the Plaintiff
fulfilling certain requirements.
From the evidence before the
Court, the Plaintiff as at 12th
July, 2007 had made full payment
in respect of the allocated
areas. The Plaintiff claims that
in spite of this the 2nd
Defendant gave entry permit in
respect of the seventeen areas
excluding four of them. The four
were the Opro River, Asumina,
Nsemere and Sawsaw Forest
Reserves without given reasons
for that. The Plaintiff,
therefore, protested to the then
Minister for Lands, Forestry and
Mines. The Minister conveyed a
meeting on the issue and in the
process it was agreed that three
areas made up of the Western
Region Ghana/Cote d'lvoire
boundary teak trees, Pampawie
Central in the Volta Region and
Afransu Brohuma Compartment
seven Forest Reserves be
allocated to the Plaintiff as
replacement and compensation for
the loss of Opro River area. The
Minister per Exhibit C dated 7
thJanuary 2008 directed the
Chief Executive of the 2nd
Defendant company to allocate
the areas to the Plaintiff. The
Chief Executive per Exhibit D
dated 11th January 2008 made the
allocation to the Plaintiff. I
wish to refer to the Minister's
letter in this Judgment as
follows: 7th JANUARY 2008 “THE
CHIEF EXECUTIVE FORESTRY
COMMISSION ACCRA RE: APPROVAL
FOR THE REPLACEMENT OF OPRO
RIVER, ASUMIMA, NSEMERE, SAW
FOREST PLANTATIONS FOR MESSRS
JOWAK LIMITED. I refer to the
petition of Messrs Evans Timbers
Limited (Reference ETL/LFM/19/07)
dated 8th October 2007 on the
allocation of Opro River Forest
Reserve Plantation boundary teak
to Messrs Jowak Limited. I also
refer to our discussions in my
office on the above subject
matter. I have examined all the
issues involved in the matter,
including the fact that Messrs
Jowak Limited has made full
payments for the areas allocated
to the company as far back as
12th July 2007 and that the loss
of Opro was through no fault of
the company. On the basis of the
foregoing I direct that approval
is given for the granting of the
following areas listed below as
replacement and compensation to
Messrs Jowak Limited. The areas
are: 1. Western Region
(Ghana/Cote d'Ivoire boundary
teak trees 2. Pampawie Central
in the Jasikan District 3.
Afranso Brohuma Forest Reserve
Plantation-Compartment Seven (7)
I further wish to direct that
Opro River Forest Reserve
Plantation boundary teak be
allocated to Messrs Evans
Company Limited subject to full
payment of the standing volume
of teak timber in the boundary
lines. The above directive
supersedes all previous
correspondences on the issue.
Kindly take necessary action and
provide feedback to me as early
as possible. Thanks for your
cooperation on such matters.
ESTHER OBENG DAPPAH, (M.P.)
MINISTER cc CHAIRMAN FORESTRY
COMMISSION ACCRA THE MANAGING
DIRECTOR JOWAK LIMITED ACCRA THE
MANAGING DIRECTOR EVANS COMPANY
LIMITED P.O. BOX M.933
SUAME-KUMA SI" From the
Minister's letter as shown
above, there is no doubt that
she directed that the three
Forest Reserves be allocated to
the Plaintiff as replacement and
compensation for the loss of
Opro River Forest Reserve since
the loss of the area was no
fault of Plaintiff. Even though
the heading of the letter deals
with the replacement of Opro
River and three others, the
contents of the letter shows
that the three areas made up of
Western Region (Ghana/Cote
d'lvoire Boundary teak trees,
Pampawie Central in the Jasikan
District and Afranso Brohuma
Forest Reserve Plantation -
Compartment Seven (7) were
allocated to the Plaintiff as
replacement and compensation for
the loss of Opro River Forest
Reserve. The Minister's letter
never stated that the three
areas were being allocated to
the Plaintiff as replacement and
compensation for the Opro River
and the other three areas stated
in the heading of the letter.
The contents of the letter
clearly show that the three
areas were allocated to the
Plaintiff as replacement and
compensation for only the Opro
River. It is my opinion that the
Minister did not include the
other areas in the letter
because Exhibit 5, dated 20th
September. 2007 shows that entry
permit was given to the
Plaintiff in respect of all the
seventeen areas except the Opro
River. Subsequent to the
Ministers letter, the Chief
Executive of the 2nd Defendant
company made the allocation to
the Plaintiff as shown in
Exhibit D dated 11th January
2008. I wish to refer to the
said letter in this judgment.
“THE MANAGING DIRECTOR MESSRS
JOWAK LIMITED ACCRA Dear Sir,
ALLOCATION OF OPRO RIVER FOREST
RESERVE TO MESSRS JOWAK LIMITED
AND EVANS TIMBERS LIMITED AND
RELATED MATTERS I hereby inform
you that following a directive
by the Minister for Lands,
Forestry and Mines the following
teak stands have been allocated
to Messrs Jowak Limited. 1.
Compartment 7, Afrensu Brohuma
Forest Reserve - Offinso
District 2. Pampawie Central,
Apepesu Forest Reserve - Jasikan
District 3. Western Region,
Ghana-Cote d'ivoire boundary
teak. Yours faithfully, CHIEF
EXECUTIVE PROF. Nll ASHIE-KOTEY"
So from the two letters dated
7th January 2008 and 11th
January 2008, it is very clear
that 1st and 2nd Defendants
allocated the Western Region
Ghana/Cote d'lvoire boundary
teak trees, Pampawie Central in
the Jasikan District and Afrenso
Brohurna Forest Reserve
Compartment Seven (7) to the
Plaintiff as replacement and
compensation for the loss of
only the Opro River. The Supreme
Court held in the case of Fosua
& Adu-Poku v Adu-Poku Mensah
[2009] SCGLR 310 that it is
settled law that documentary
evidence should prevail over
oral evidence. Thus where
documents supported one party's
case as against the other, the
Court should consider whether
the latter party was truthful
but with faulty recollection. In
the current case the contents of
the two letters from the 1st and
2nd Defendants respectively are
very clear that the three forest
reserves including the disputed
area were allocated to the
Plaintiff by the 1st and 2nd
Defendants as replacement and
compensation for the loss of
Opro River and being documentary
evidence that is more probable
than any other oral evidence and
I so hold. The next issue to
consider is whether or not the
decision contained in the
letters dated 7th January, 2008
and 11th January, 2008 was
subject to manual of procedures
of 2nd Defendant which included
assessment of the standing teak
volumes involved. The Defendants
claim that both letters dated
7th and 11th January, 2008 were
subject to manual of procedures
of 2nd Defendant which included
assessment of the standing teak
volumes involved. According to
them it was as a result of that,
that the 2nd Defendant assessed
the volumes of teak in the area
in dispute and asked the
Plaintiff to pay the excess
volume of teak by a certain day
which it refused to pay. The
contents of the two letters are
very clear and unambiguous. The
Minister made reference to the
allocation of Opro River Forest
Reserve to the Plaintiff in
Exhibit C. The letter also
states that the Plaintiff had
made full payments in respect of
the areas allocated to it as far
as back as 12th July 2007. The
evidence before the Court shows
that the Plaintiff was allocated
seventeen Forest Reserves
including Opro River and full
payment was made by it in
respect of the allocation. The
evidence goes on to show that in
spite of the fact that it had
made full payment in respect of
the allocation it was issued
entry permit for the areas
excluding the Opro River. The
letter shows that the loss of
Opro River was no fault of the
Plaintiff. It was as a result of
this that the three areas were
allocated to the Plaintiff as
replacement and compensation.
The letter clearly shows that
the Minister directed that the
three areas be allocated to the
Plaintiff in the first place as
replacement for the loss and
secondly, as compensation. If it
had been only replacement for
the loss then the scenarios
provided by the 1st Defendant
would hold. On the issue of
replacement the 1st Defendant
per Joseph Osiakwan, a Senior
Planning Officer in charge of
policy at the Ministry of Lands
and Natural Resources who gave
evidence on behalf of the 1st
Defendant told the Court in his
evidence-in-chief as follows:
"Q. Do you know the reason why
the Plaintiff has brought this
action to Court? A. Yes my lord.
Q. And can you tell this Court
what you know about the matter?
A. Somewhere in 2007 a company
called Fort Williams petitioned
the then Minister of Land and
Forestry, Hon. Esther Obeng
Dapaah that the area that he has
been allocated to fell teak
trees has been re-allocated to
another timber company that is
JOWAK Sawmills. So the Minister
invited the two parties and
resolved the matter. She
realized that it was no fault of
any of the parties so she
decided to find replacement for
JOWAK Sawmills. Q. So the
Forestry Commission complied
with the Minister's directives.
A. Yes my lord. Q. So in total
how many areas were given to the
Plaintiff as a replacement? A.
The Minister proposed three
areas to be allocated to the
Plaintiff. Afranso Brohuma
Forest Reserve, Pampawie Forest
Reserve in the Volta Region and
the Ghana-Cote d'lvoire boundary
teak trees. Q. And was the
replacement equal to the volume
amount that was taken from the
Plaintiff at the time? A. My
lord the replacement was far and
over what he lost. Q. Far and
over? A. It was in excess for
about six thousand of what he
lost. 0. What is the normal at
the Ministry when areas are
re-allocated to other timber
contractors? A. Normally what
happened is that replacement
reoccur. When they occur there
are three scenarios. Either the
company gets an area which is
equal to what he lost. In that
case there is no dispute and the
other scenario the company gets
less than what he lost and in
that case he applies for a top
up. The third scenario is that
you will get over and above what
you lost but you will have to
pay for the excess. Q. So in
this case what scenario does
this case fits in? A. The third
scenario applies in this case."
If the Ministers letter had been
for only replacement, then the
scenarios identified by the
witness would have applied. This
is because replacement implies
taking the place of another
thing. The two must therefore be
identical. The volume of trees
in the area being given as
replacement should not exceed
the one lost. In that case if it
is in excess then the
beneficiary should pay the
difference. In the current case
the Minister's letter talks
about replacement and
compensation so the situation is
different. The scenarios
identified by the witness will,
therefore, not apply.
Compensation is defined by the
Black's Law Dictionary, 9th
edition at page 322 as payment
of damages, or any other act
that a Court orders to be done
by a person who has caused
injury to another. It goes on to
state that in theory
compensation makes the injured
person whole. In the current
case the Minister's letter shows
that the Plaintiff made full
payment for the allocation of
the seventeen areas to it as far
back as 12th July 2007. Through
no fault of it, it could not
enter the Opro River because it
was excluded from the entry
permit given to it in spite of
the fact that it had paid for
it. It had to wait until 7th
January when the Minister's
letter was written. This implies
that for about six months as at
that time, the Plaintiff could
not operate. This clearly shows
that the Plaintiff would
definitely suffer financial loss
in the sense that it would be
paying interest on the money it
had paid but would make no
earnings on it. The Plaintiff
avers in its evidence-in-chief
that it was allocated the areas
as replacement and compensation
for the time that the 2nd
Defendant had kept the money and
the time wasted. This follows
that the compensation was given
to cover the injury suffered as
a result of the financial loss.
It is, therefore, not surprising
that the volume in the three
areas stated in the Minister's
letter exceeds the volume in the
area lost by the Plaintiff. The
letter made it clear that the
allocation of Opro River to
Messrs Evans Company Limited was
subject to full payment of
standing volume of teak timber
in the boundary lines. Nothing
of that sort was written in
respect of the allocation to the
Plaintiff. This clearly shows
that it was not the intention of
the Minister that the Plaintiff
should make further payment. If
it was her intention that
further. payment should be made
by the Plaintiff, it would have
stated it just as she stated in
respect of the allocation to
Evans Timbers. The letter dated
11th January 2008 written to the
Plaintiff by the Chief Executive
of the 2nd Defendant company was
to implement the Minister's
directive. There was nothing in
the letter indicating that the
allocation was subject to manual
of procedures of 2nd Defendant
which included assessment of the
standing teak volumes involved.
According to the Plaintiff the
only reason given by the 2nd
Defendant for deferring the
issuance of the entry permit for
the disputed reserve was that
the 2nd Defendant wanted to
count the number of trees in the
reserve to enable it calculate
the social responsibility
payments. It, therefore, had
nothing to do with excess
payment. It is even observed
that the 2nd Defendant issued
entry permit in respect of the
other two areas in the
Minister's letter without asking
the Plaintiff to satisfy certain
conditions. This was because the
2nd Defendant accepts that the
payment made by the Plaintiff
was sufficient to cover the said
allocation. The Defendants claim
that the Plaintiff did not
satisfy the requirements
contained in the letter dated
27th January 2007 in which
seventeen areas were allocated
to the Plaintiff. Meanwhile, as
has been stated in this judgment
the 2nd Defendant issued entry
permit for two of the areas
contained in the letters dated
7th and 11th January. The
question is if the Plaintiff had
not satisfied the requirements
then why did the 2nd Defendant
issue entry permit for the two
areas out of the three areas? If
it had not satisfied the
requirements there would have
been no reason to issue entry
permit for the other two areas
contained in the two letters
excluding the Ghana/Cote
d'lvoire boundary teak trees.
The permit was issued because
the Plaintiff had earlier on
satisfied the relevant
requirements. It had earlier on
paid GH¢1,400,000.00 to cover
full payment for the seventeen
areas including the Opro River
that it lost. Even the Plaintiff
claims that it bought the
seventeen areas because of the
Opro River in the sense that the
quality of trees could not be
got from anywhere. This shows
that it highly valued that
forest reserve so when that area
was taken away from it, the
Plaintiff vehemently protested
against it. When the Minister
realized that the loss was not
its fault she decided it would
replace and compensate the
Plaintiff with the three areas.
The evidence before the Court
shows that immediately the
Minister gave her directive the
2nd Defendant issued entry
permit to the Plaintiff in
respect of Pampawie Central and
Afranso Brohuma without going
through manual procedures. The
question then is if the
allocation of those areas were
subject to manual of procedures
of 2nd Defendant why was the
entry permit to the two areas
issued without those procedures?
The said procedures could not
have been limited to the
disputed area alone. It would
have been for all the areas. So
from the foregoing it is the
opinion of this Court that the
decision contained in the
letters dated 7th January, 2008
and 11th January, 2008 was not
subject to manual of procedures
of 2nd Defendant and that the
assessment of the standing teak
volumes in the disputed area
made by the 2nd Defendant was
for the purpose of calculating
social responsibility payment
and I so hold. The next issue is
whether or not Plaintiff company
was required to pay additional
sum of GH¢1,243,047.46 as a
result of the decision of the
Hon. Minister of Lands, Forestry
and Mines to allocate Western
Region (Ghana/Cote d'lvoire)
boundary teak trees, Pampawie
Central in the Jasikan District
and Afrenso Brohuma Forest
Reserve Plantation to Plaintiff
Company as replacement and
compensation for the loss of the
Opro River Plantation. From the
contents of the Minister's
letter as already explained in
this judgment, the Plaintiff was
not required to pay additional
sum of GH¢1,243,047.46. This was
because the Plaintiff had made
full payment. of GH¢1,400,000.00
in respect of the original
allocation of 17 areas made to
it. It was, however, given entry
permit excluding the Opro River
Forest Reserve and it had to
protest before the three areas
in the Minister's letter were
allocated to it as replacement
and compensation. As has been
stated in this judgment, failure
of the 2nd Defendant to allocate
the Opro River to the Plaintiff
when it had paid for it amounts
to financial loss This is
because if the Plaintiff had
worked with the money it would h
e earned some profit on it.
Defendants create the impression
that the Plaintiff is claiming
that the three areas should be
allocated to it for free and
that it would make no payment of
VAT. Since the Plaintiff had
already paid for the Opro River
and the three areas were
allocated to it because of the
loss of that area, it cannot he
said that the three areas were
being given to the Plaintiff for
free. It had already made
payment for the areas in respect
of the payment made for the Opro
River. Also in respect of the
VAT, Exhibit A makes it clear
that an amount of GH¢1,338,883.84
was to be paid by the Plaintiff
for the seventeen areas in
addition to 15% VAT for the
volume of teak allocated. Then
Exhibit B shows that the payment
of GH¢1,400,000.00 made by the
Plaintiff excluded VAT. It
states that VAT receipt would be
issued when the VAT was paid. It
is, therefore, very clear from
the evidence that the Plaintiff
had not paid the VAT and it has
never stated that it is
demanding the replacement and
the compensation without the
payment of VAT. In my opinion it
has not paid the VAT because of
the issue at stake. It is,
therefore, the view of this
Court that the three areas
including the disputed areas
were allocated to the Plaintiff,
firstly as replacement and
secondly as compensation so the
Plaintiff was not required to
make additional payment in
respect of the allocation made
by the Minister except VAT
payment and I so hold. The next
issue is whether or not the Hon.
Minister of Lands, Forestry and
Mines has the authority to give
teak trees to anybody, the
Plaintiff inclusive as
compensation without payment of
the value thereof under any
circumstance. On this issue the
Defendants referred the Court to
the Timber Resources Management
Act, 1997 (Act 547) as amended
by Timber Resources Management
Amendment Act, 2002 (act 617)
and the Timber Resources
Management Regulations Amendment
Regulations, 2003 [LI 1721] and
submitted that by those
statutes, the Minister of Lands,
Forestry and Mines had no
authority to allocate teak trees
to anybody including the
Plaintiff as compensation, The
issue as to whether or riot the
Minister has authority to
allocate teak trees as
compensation without payment
would depend on the
circumstances. In the current
case as already stated in this
judgment. the Plaintiff was
allocated seventeen Forest
Reserves and it made payment for
that. Meanwhile, entry permit
was given excluding the Opro
River for which, the Plaintiff
had already made payment and no
refund was made to it. So in
view of the fact that it had
lost that area for which it had
made payment and the fact that
the 2nd Defendant had kept
Plaintiff's money for about six
months without issuing entry
permit to it, the three areas
were given to the Plaintiff as
replacement and compensation.
This shows that the Plaintiff
did not make further payment
because it had already paid for
the allocation made to it.
Counsel for the 2nd Defendant
argues that if the Plaintiff is
disputing the fact that it was
not supposed to pay for the
excess volume allocated, why did
its Managing Director submit a
reschedule of how it intended to
settle the outstanding debt of
GH¢1,243,047.46 on March 15,
2010 to the 2nd Defendant as
contained in Exhibit 9. He goes
on to argue that since Exhibit 9
is an admission of liability,
the Plaintiff is estopped by
conduct to affirm otherwise. The
said rescheduling of the said
outstanding debt by the
Plaintiff takes its root from
Exhibit 8. The said exhibit
shows that the Acting Chief
Executive of 2nd Defendant
company called a meeting to give
the Managing Director of the
Plaintiff company' the
opportunity to discuss the way
forward in settling his
company's indebtedness to the
Commission. It must be noted
that the said meeting was held
on 30th November. 2009. It goes
on to show that no decision was
taken on item 4 which deals with
the boundary allocation under
litigation and the amount
involved is GH¢1,243,047.46
Which is the amount being
demanded by the 2nd Defendant
from the Plaintiff as the
outstanding balance. This was
confirmed by Francis Amoah who
gave evidence on behalf of the
2nd Defendant in his
evidence-in-chief on 26th July
2010. I wish to refer to that
aspect of his evidence-in-chief
as follows: “Q. Can you tell the
Court from exhibit 8 where the
issue in respect of the excess
volume was talked about captured
in exhibit? A. My lord it is
captured as item 4." The said
witness went on to say on the
same day that the amount
involved in respect of the
excess volume was GH¢1,243,047.46.
It was based on the agreement
reached in Exhibit 8 that
Plaintiff issued Exhibit 9. So
that exhibit has got nothing to
do with the issue before this
Court. More so it was issued on
March 15, 2010 when this case
had been pending before this
Court for over one year. The
Court cannot, therefore, rely on
Exhibits 8 and 9 to make a
decision in this case. I,
therefore, hold that in the
current circumstances where
payment has been made in respect
of an area and entry permit is
not given for that area in spite
of the fact that the
2ndDefendant is still keeping
the money involved, the Minister
could give areas as compensation
without asking for further
payment and not that she is
given the area for free without
payment being made. It must be
noted that in the current case
payment has already been made by
the Plaintiff in respect of the
payment made for the Opro River
which t lost so asking the
Plaintiff to make further
payment in respect of the
allocation would amount to
double payment. It must be noted
that this does not affect the
VAT payment which is yet to be
paid by the Plaintiff. The next
issue is whether or not the
Plaintiff company raised
objections to 2nd Defendant's
demand for payment of additional
sum of GH¢1,243,047.46.
According to the Plaintiff it
did not receive the letters on
the demand for payment of the
additional sum. The 2nd
Defendant, however, insists that
the Plaintiff received the said
letters. Since the Plaintiff has
denied that it received those
letters the onus is on the
Defendant to lead sufficient
evidence to prove that the
Plaintiff received those
letters. In the celebrated case
of Maiolaqbe v Larbi [1959] GLR
190, it was held that when a
party makes an averment in his
pleading which is capable of
proof in a positive way and the
averment is denied, that
averment can not be sufficiently
proved by just mounting the
witness-box and reciting the
averment on oath without
adducing some corroborative
evidence. In the current case
Plaintiff has denied that it
received those letters so the
2nd Defendant should lead
corroborative evidence to prove
that the Plaintiff actually
received those letters. The 2nd
Defendant being a very big
organization, it is expected
that records of letters sent out
would be kept and where
necessary tendered in evidence.
This it could not do. Since the
2nd Defendant could not lead a
corroborative evidence to prove
that the Plaintiff received
those letters, the Court agrees
with the Plaintiff that truly
those letters were not received
by the Plaintiff. The Defendants
claim that by virtue of Exhibit
9 the Plaintiff saw the demand
notice on the payment. As has
been stated elsewhere in this
judgment, Exhibit 9 was written
on March 15, 2010. Also the
Plaintiff claims it was its
lawyer who showed the demand
notice to it which implies that
it did not see those letters at
that time. It saw it at the time
it had given the case to its
lawyer to take action. It
cannot, therefore, be said that
the Plaintiff received those
letters. Since the Plaintiff did
not receive those letters it
follows that it would not be
able to raise objections to 2nd
Defendant's demand for payment
of additional sum of GH¢1,
243,047.46. The last issue is
whether or not 2nd Defendant is
estopped from allocating the
Ghana/Cote d'lvoire boundary
teak trees to the 3rd Defendant.
The evidence before the Court
shows that the Minister's
directive in respect of the
disputed area and the other
areas was made on 7th January,
2008 and the Chief Executive
implemented the directive by
allocating the areas to the
Plaintiff on 11th January, 2008.
The evidence goes on to show
that 3rd Defendant applied to
the Minister to be allocated the
disputed area on 12th August,
2008 and the approval given on
13th August, 2008. This clearly
shows that even at the time the
3rd Defendant applied for the
area, the area had already been
allocated to the Plaintiff as
replacement and compensation for
the loss it had incurred. Since
it had already made full payment
for the original areas allocated
to it which included the area it
lost, the 2nd Defendant should
have issued entry permit for all
the three areas without asking
the Plaintiff to make additional
payment. It was, therefore,
wrong for the 2nd Defendant to
decide to allocate the area to
3rd Defendant when it had not
fully resolved the issue on the
Ghana/Cote d'lvoire boundary
teak trees with the Plaintiff.
It is even observed from the
evidence that following the
Minister's directive, the 2nd
Defendant allocated the Afrensu
Brohuma Forest Reserve and the
Pampawie Central to the
Plaintiff on 10th January, 2008.
Then on 11th January, 2008, the
2nd Defendant went on to confirm
the allocation of the two areas
as well as the Ghana/Cote
d'Ivoire boundary teak trees to
the Plaintiff. The question-is
if it was not the intention of
the 2nd Defendant to allocate
the Ghana/Cote d’lvoire boundary
teak trees to the Plaintiff then
why did it go on to confirm the
allocation of the three areas to
the Plaintiff on 11th January
2008 after it had issued entry
permit in respect of two of the
areas on January, 2008? It is,
therefore, Clear from the
evidence that the three areas
had already been allocated to
the Plaintiff by the 1st and 2nd
Defendants. In view of that 2nd
Defendant had no basis to take
away the Ghana/Cote d'lvoire
boundary teak trees from the
Plaintiff and re-allocate, it to
the 3rd Defendant when it had
not fully resolved the issues on
it with the Plaintiff. 2nd
Defendant is, therefore,
estopped from allocating the
Ghana/Cote d'lvoire boundary
teak trees to the 3rd Defendant
and I so hold. From the evidence
before the Court, the Plaintiff
has led sufficient evidence to
prove that in view of the full
payment made by it in respect of
the allocation of seventeen
forest reserves made to it, it
is not supposed to make further
payment in respect of the
allocation of the disputed area
to it This is because the
disputed area together with
other two areas, were allocated
to the Plaintiff as replacement
and compensation for the area it
lost. The Plaintiff is,
therefore, entitled to its
claim, The 3rd Defendant
counterclaimed as follows i.
declaration that the purported
grant or allocation of the
disputed area is contrary to
law, that is the Timber
Resources Management Act 1997
(Act 547) as amended by Timber
Resources Management Amendment
Act, 2002 (act 617) and Timber
Resources Management Regulations
Amendment Regulations, 2003 (LI
1721) and as such void and of no
effect. A further order that the
purported wrongful act, if any,
has itself lapsed by virtue of
Plaintiff's blatant failure to
fulfill the conditions precedent
to the consummation of the
purported grant. iii. An order
annulling the purported grant of
the disputed area to Plaintiff
or any other company save 3rd
Defendant. iv. An order of
perpetual injunction restraining
the Plaintiff from laying any
claims to the disputed area and
engaging in any acts preparatory
to entering onto the lands for
the purposes of operating
therein. V. A further order
directed to 1st and 2nd
Defendants to arrange entry
permits for 3rd Defendant in
respect of the disputed area.
vi. Other reliefs. vii. Costs
including Solicitors fees and
costs. The 3rd Defendant assumes
the position of the Plaintiff in
respect of its counterclaim so
the burden is on it to lead
sufficient evidence to prove its
claim. The 3rd Defendant has led
evidence to show that it applied
for the disputed area to be
allocated to it and it was
approved. It went on to make
full payment in respect of the
area and entry permit was issued
to it. It is, however, the
opinion of this Court that at
the time the Ghana/Cote d'lvoire
boundary teak trees forest
reserve was allocated to the 3rd
Defendant, it had already been
allocated to the Plaintiff as
replacement and compensation for
the area it had lost for which
the Plaintiff had already made
payment. 1st and 2nd Defendants,
therefore, did not have the
right to re-allocate the area to
the 3rd Defendant at a time when
they were keeping the
Plaintiff's money in respect of
the Opro River Forest Reserve.
The allocation made to the 3rd
Defendant by and 21 Defendants
was, therefore, wrong and of no
legal effect so the 3rd
Defendant is not entitled to its
counterclaim. The counterclaim
of the 3rd Defendant is as a
result dismissed. In the light
of the foregoing judgment is
granted the Plaintiff as
follows:- a. It is hereby
declared that by virtue of
approval letters dated 7th
January, 2008 and 11th January,
2008, Western Region (Ghana/Cote
d'Ivoire boundary teak trees)
Forest Reserve has been
allocated to Plaintiff by 1st
and 2nd Defendants. b. It is
hereby-ordered that 1st and 2nd
Defendants are restrained from
granting entry permit to 3rd
Defendant or any other person or
company to enter the Western
Region (Ghana/Cote d'Ivoire
boundary teak trees) Forest
Reserve. c. 1st and 2nd
Defendants are hereby ordered to
issue, forthwith, entry permit
to Plaintiff in respect of the
Western Region (Ghana/Cote
d'lvoire boundary teak trees)
Forest Reserve. d. It is hereby
ordered that the purported
reallocation of the Western
Region (Ghana/Cote d'lvoire
boundary teak trees) Forest
Reserve to 3rd Defendant or any
other company is cancelled.
Plaintiff's costs are assessed
as GH¢5O,000.00 against the
Defendants jointly and
severally. Mr. Kofi Peasah-Boadu
for the Plaintiff Ms. Georgina
Mensa-Bonsu for the 1st
Defendant Mr. Dennis Osei- Hwere
for the 2nd Defendant Mr. Addo
Atuah for the 3rd Defendant
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