IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA-GHANA
CORAM:	A. ASARE-KORANG, J.A (PRESIDING) V. OFOE, J.A.
C.J. HONYENUGA, J.A
SUIT N0.1-11/72/2012 15T1 NOVEMBER, 2012
FREDERICK MENSAH	PLAINTIFF/RESPONDENT
VRS.
1.	DIRECTOR NEWMONT
2.	NEWMONT GOLD GH. LTD	DEFENDANTS/ APPELLANTS
Land Law - Compulsory Acquisition - Compensation - Method of Payment— Minerals and Mining Acts s. 73 and 74 - Law on compensation payment requires agreement by the parties on what compensation to be paid —Agreed method of compensation is Acreage method.
Practice and Procedure —Appellate Court - Circumstances under which it can interfere with findings of trial court —Justifiable to do so when findings is inconsistent with crucial evidence on record
OFOE, IA.:
The defendant acquired a mining lease from the government of Ghana in Ad ausena in the New Abirem District of the Eastern Region. By law it is obliged to pay compensation to persons, including farmers, who found themselves on the acquisition area.
 

 
and were to be displaced. The plaintiff, a farmer, happens to be one of these persons. It is the accepted practice that the farmer affected, in this case the plaintiff, the chief farmer of the area, officials of the defendant company and an officer of the Land Valuation Board approves of the type and quantities of the crops found on the affected farmers land. What was found on plaintiff's land and signed by these personalities was tendered as exhibit A. The dispute between the plaintiff and the defendant in the trial court and indeed in this court is in respect of some 5000 nursery seedlings which plaintiff claims he is entitled to be compensated for. The defendant does not intend paying the plaintiff this demand because it is its case that there is an accepted mode of payment for seedlings which is not what the plaintiff is demanding. The defendant contends that the payment is on acreage basis. The matter had to go to the Nkawkaw High Court for determination.
By his writ of summons, which was home brewed i.e. issued by the plaintiff personally, he asked for an order from the court directed at the defendant to pay compensation to him as per the valuation report of his farm.
Defendants' case on the pleadings is that it is true that they found 5000 seedlings and other crops belonging to the plaintiff on the land. These were duly recorded and that is what is recorded in exhibit A. They were to facilitate the movement of the seedlings to any place of choice for the plaintiff but he refused insisting he was
 
entitled to be paid compensation for these 5000 seedlings which are
not crops planted on the land.
The trial court agreed and gave him judgment directing the defendant to pay the plaintiff compensation for all crops including the 5000 seedlings, rejecting the acreage mode of payment offered by the defendant.
The trial judges reasoning for this conclusion can be noted under two heads. Firstly that it was not right for the second defendant to object to the planting of 5000 seedlings on the plaintiff's 5 acre piece of land on the grounds that the seedlings were too many to occupy that size of land. Such objection the trial judge found unreasonable because it was the view of the trial court that it was the plaintiff's right to decide on the most economic use for his land and not the defendant. Secondly the purpose of the stock taking was to identify and record the crops growing on plaintiff's land and since counsel for the defendant in his address admitted that the 5000 seedlings are crops then the seedlings qualify to be paid compensation like any other crop.
The defendant does not agree with the trial judge and has appealed against the judgment on the grounds that the judgment is against the weight of evidence and that the order of the trial court that it pays compensation for all the 5000 seedlings is arbitrary and has no basis in law or the facts.
 
The authorities are now agreed that where a trial court took into consideration the demeanor of the witnesses before him or her as well as the substance and quality of oral and documentary testimonies before giving judgment then an appellate court has no power to disturb or interfere or reverse the judgment of the trial court. But then it is also recognized that an appellate court may reverse findings of fact made by a trial court based on established facts. It may justifiably interfere with a finding of fact by a trial court where the finding is inconsistent with crucial evidence on record or the finding of the trial court is perverse. Refer to the cases of Agbemashie vs. Amorkor (2009) SCGLR 594, Koglex No 2 vrs Field (2000) SCGLR 175 at 184. This the appeal court does by examining the record of appeal critically to satisfy itself that the said findings of the trial court are supportable having regard to the evidence on record. As is commonly said, an appeal is by way of rehearing and we are duty bound to review the record of appeal whether the appeal of the defendant is supportable
By the appeal records the valuation report plaintiff had in mind at the time of instituting the suit was exhibit A. He was asking that he be paid compensation according to this report, exhibit A. It is clear however from the record of proceedings that exhibit A is not a valuation report to form the basis of any payment as contended by the plaintiff. I will agree therefore with the defendant that exhibit A is a record of the personal data of plaintiff, and the description and enumeration figures of the crops plaintiff had on the farm at the
 
time of the enumeration and not a valuation report. There is therefore a defect in the claim of the plaintiff in that he was making claim on a report which has not made any valuation entitling him to any monetary payment. This defect notwithstanding it is my view that the plaintiff's claim should not be dismissed only because of this defect in his claim. I have earlier mentioned that the plaintiff was in court without the assistance of a lawyer. The authorities have in certain circumstances permitted the courts in looking at the substance of the claim and not the form in ascertaining the nature of the claim before it. Refer to the case of Ghana Consolidated
Diamond Ltd vs. Tantuo (2003-2004) SCGLR 1144. They have also permitted the courts to amend the claim of parties before it if the circumstances will so permit and no injustice will be occasioned the other party so as to grant parties any award due them to meet the justice of the case. For this position we may look at the case of Amakom Sawmills vs. Mansah (1963) 1 GLR 368, Akyea Djamson vs. Duagbor (1989-90) 1GLR 223. What then in substance did the plaintiff want from the defendant company and did the record of appeal disclose he was entitled to any such relief against the defendant?
Before I proceed with this judgment it is worth mentioning that the record of appeal discloses that as regards compensation matters there is this negotiating committee, the Compensation Negotiation Committee (CNC) comprising representatives of farm owners, the Newmont Company, the Lands Commission and Town and Country Planning and the valuation Board. The plaintiff admits this
 
committee exists, and admits further that the decision of this committee binds him.
Reading the record of appeal in whole the defendant's position appear not to be denying the plaintiff any compensation but rather to pay him according to the operative rules in the field which accords with the Minerals and Mining's Act 2006 (Act 703). According to the defendant these are rules that have been crafted by the CNC for use and have been in use in the payment of compensation to others also entitled. To the defendant therefore the plaintiff is entitled to compensation but not for the whole of the 5000 seedlings.
I will then ask, how much compensation is the defendant admitting the plaintiff is entitled to?
Defendant testified through a Mr. Paul Obeng, an employee of the defendant company. He told the court the CNC has subcommittees. It was the Crops Compensation Committee that assessed the rate of payment for crops. The crops were classified into three: seedlings, medium and matured plants. At a meeting of the Crops Subcommittee meeting it was agreed that the definition of a seedling is a young plant that can be found on the nursery bed or on the field but has not developed new roots and leaves. This witness testified further that they found out that sixty oil seedlings
 
can plant one acre of land. So any anything in excess of the sixty is to be transported to another land. His evidence continued:
"We found out that the plaintiff had another land of about five acres in the area. We are now processing compensation for that five acres land but the extra 5000 seedlings compensation will also be added to the compensation on the five acre land. For the 0.1 acre we are going to estimate the number of seedlings which can be planted on the 5 acre land and add to the 0.1 acre land. We are only paying the transportation of the extra 5000 seedlings to the 5 acre land"
Even though it would be right to say that this evidence is not too clear, the import becomes clearer after reading submissions of both counsel. The meaning gathered is that while the plaintiff wants to be paid simply for his 5000 seedlings, since these were counted and recorded as found on his farm, the defendant wants to apply acreage payment method. In other words how many acres would the plaintiff need to be able to plant the whole of his 5000 seedlings? If by the standard practice sixty seedlings can be planted over an acre of land then for the 5000 seedlings the plaintiff would need over 80 acres of land to plant the whole of the 5000 seedlings. They found that the plaintiff had no such land. All he had was a 5.1 acre land and will therefore be paid for the number of seedlings that can be planted on this acreage and would be assisted to carry the remainder of the seedlings to any place of his choice. This acreage
 
method of payment approved by the CNC was what was used for payment of compensation all other farmers. This evidence was not denied by the plaintiff.
Submissions of counsel for the defendant in support of his ground of appeal were that there should be no doubt that exhibit A was not a valuation report but a recording of the crops that were found on plaintiff's land. Also there was the CNC which was responsible for categorizing and working out the procedure by which compensation would be paid the beneficiaries. It is counsel's submission that it was wrong for the trial judge to have ignored this CNC, its subcommittees and its guidelines and ordered payment to the plaintiff for all the 5000 seedlings, in effect failing to properly assess the probative value of exhibits 1 and 2. It is counsel's submission that compensation payment has been by the acreage method to all other farmers, who like the plaintiff have agreed to be bound by the decisions of the CNC.
Counsel for the plaintiff on the other hand had a simple position in his submission. The compensation payment by the defendant based on the acreage approach is not only arbitrary but unknown to the Mining Commission. He emphasized that the plaintiff is entitled to nothing than the full value of all the 5000 seedlings as granted by the trial judge. This to him is the agreement between the plaintiff and the defendant and nothing else.
I have stated earlier in this judgment that plaintiff's claim on the writ is defective but that we will not hold him to it if the justice of
 
the case so demands. From the record of appeal it appears clear that what the plaintiff is asking from the court is for an order to be paid compensation for the 5000 seedlings. What is the basis for this claim? Since he is asking for this payment he has the evidential burden to convince the court the basis for this claim. I think the position of the law on this is clear. In his counsel's submission he refers to exhibit 1 at page 7 land 72 as the contract and the "law" which binds the defendant to pay t7 per seedling to the plaintiff Try as I could I found no basis for considering this exhibit as a contract or law governing compensation. Exhibit 1 is the report of the 7th meeting held by the crop subcommittee. The report contains deliberations and definition of mature plant, medium plant and seedlings and nothing else. Counsel again refers to exhibit 2 as an agreement to pay (P7 as compensation rate for seedlings. Here again there is nothing in there that specifies t7 as compensation rate for all seedlings found on a farm. It would appear therefore that the plaintiff failed to establish any basis for the compensation of all the 5000 seedlings he is asking of this court.
The trial judge concluded that in so far as counsel for the defendant has admitted that seedlings are also crops then the seedlings are entitled to compensation. With all due respect to the trial judge counsel's submission is not evidence and therefore it was wrong for him to have relied on such submission to find for the plaintiff Again nowhere in the record of appeal is it stated that if seedlings are found to be crops then they are entitled to compensation. In any case it has never been in doubt that in
 
exhibit 1 seedlings are crops. The issue before him was what mode of payment existed for the payment of seedlings. Was it payment on acreage basis as contended by the defendant or payment for the whole 5000 seedlings as contended by the plaintiff and why? This was not answered by the trial judge. The trial judge's next argument he made in favour of the plaintiff was why the defendant would want to determine for the plaintiff how many seedlings should fill an acre of land. According to the trial judge it was for the plaintiff to determine how many seedlings he will want to put on a plot and not the defendant. This position taken by he trial judge is not accurate. The law on compensation payment as will be shown presently requires agreement by the parties on what compensation to be paid and not a sole decision of the plaintiff. He argued further that since the seedlings were in existence before the moratorium then the defendant was bound to pay for the 5000 seedlings. Here again with all due respect to the trial judge he begged the question. Why should the plaintiff be paid for all the 5000 seedlings only because they were in existence before the moratorium? It is not an accurate position to take that every crop in existence before the moratorium was entitled to compensation. The record of appeal does not support such position.
I have stated earlier in this judgment that the defendants admit the plaintiff is entitled to compensation but not to the whole of the 5000 seedlings as claimed by the plaintiff. They contend that their chosen method of payment is in accordance to Act 703, the Minerals and Mining Act which governs compensation payments. What does this
 
law say? On reading this enactment I find the following provisions very relevant to our case i.e. sections 73 and 74 of this Act.
1173(1) The owner or lawful occupier of any land subject to
a mineral	right is entitled to and may claim from the
holder of mineral right compensation for the disturbance
of the rights of the owner or occupier, in accordance with
section 74.
"74.(1) The compensation to which an owner or lawful
occupier of land may be entitled	may include
compensation for:
(a)Deprivation of the use of or particular use of the
natural surface of the land or part of the land
(b)Loss of or damage to immovable property
(c)In the case of land under cultivation, loss of
earnings or sustenance suffered by the owner or
lawful occupier, having due regard to the nature of
their interest in the land
(d)Loss of expected income, depending on the nature
of the crops on the land and their life expectancy..."
 
Reading the law in whole and the above mentioned sections in particular, one will not fail to come to the conclusion that there is no iron clad rule as to what compensation should be paid to beneficiaries. It is a function to be determined by agreement noting that at the end of the deliberations fair compensation will be paid all beneficiaries. This is a constitutional, Article 20(2)(a) of the 1992 constitution. The Act also provides for steps to be taken where there is no agreement. Refer to section 73(3). So was there agreement between the parties as to the compensation payable to the plaintiff? From the record of appeal it would appear that because several other farmers were affected by the acquisition it became necessary to have an umbrella body, the CNC, for the decision on the modalities and how much compensation to pay beneficiaries to be determined. It is reasonable to conclude from the evidence therefore that the CNC was the body that did the negotiation and it is at that point that agreement, the agreement required under the law, is reached with the beneficiaries. This is what the plaintiff said in cross examination:
"Q. You said the compensation is done by the CNC (Compensation Negotiation Committee)
A. Yes they negotiate the price
Q. Whatever CNC agreed is binding on you?
A. Yes"
 
I have earlier mentioned the composition of the CNC.
 
What then did the CNC agree should be the mode of handling seedlings and how much was to be paid for seedlings? From the evidence on record I think the plaintiff should be bound by the decision of the CNC which is that the plaintiff will have to be paid for the number of seedlings that will cover the area 5.1 acres and should be assisted to convey the remainder of the seedlings to any place of his choice.
In consequence of the analysis of the evidence on record and on application of the law governing compensation payments, the Minerals and Mining Act, I find myself unable to support the findings and judgment of the trial court. He failed to give adequate consideration to the evidence on record thereby coming to a wrong conclusion granting the order that the plaintiff be paid compensation for all the 5000 seedlings.
I will uphold the appeal and set aside the judgment and order of the trial court.
(SGD.)
VICTOR D. OFOE
JUSTICE OF APPEAL
(SGD.) ASARE KORANG, J.A I agree	A.ASARE-KORANG
JUSTICE OF APPEAL
 
(SGD.)
C.J. HONYENUGA JUSTICE OF APPEAL
 
COUNSEL
•	DR. J.E. OPPONG FOR THE PLAINTIFF/RESPONDENT
•	MR. SEY
CO. LEGAL PRACTITIONERS FOR THE
DEFENDANT/APPELLANT

