CHIEF SUPT. WISDOM KWASI ZOIKU vs. LA NKWANTANG-MADINA MUNICIPAL ASSEMBLY

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: AMADU JSC (PRESIDING)

KWOFIE JSC

ADJEI-FRIMPONG JSC

DZAMEFE JSC

AMALEBOBA JSC

CIVIL APPEAL

NO. J4/43/2026

28TH OCTOBER, 2026

CHIEF SUPT. WISDOM KWESI ZOIKU .…..… PLAINTIFF/RESPONDENT/

RESPONDENT

VRS

LA-NKWANTANANG MUNICIPAL ….…..… DEFENDANT/APPELLANT/

ASSEMBLY APPELLANT

JUDGMENT

TANKO AMADU JSC:

INTRODUCTION

My Lords, before us is an appeal at the instance of the Defendant/Appellant/

Appellant (hereinafter referred to as “the Appellant”), a District Assembly established under the Local Governance Act, 2016 (Act 936), against the Plaintiff/Respondent/Respondent (hereinafter referred to as “the Respondent”). The appeal is against the judgment of the Court of Appeal, Accra, dated 6th February 2025 by which that Court dismissed the Appellant’s appeal and wholly affirmed the judgment of the High Court (General Jurisdiction 6), Accra dated 18th March 2022.

The Appellant’s Statement of Case runs to one hundred pages and a Reply of seventy pages. We observe, with regret, that a very substantial portion of the Reply is a verbatim reproduction of the Statement of Case which preceded it, and that within the Statement of Case itself certain passages, notably the passages concerning Exhibits ‘G’ and ‘J’ and the cross-examination of PW2 and PW3, are set out three and in some instances four times over. A Reply under Rule 15(5) of C.I.16 is an opportunity to answer what the Respondent has argued. It is not an opportunity for repetitiveness. The practice adds nothing to the persuasive force of an argument, but rather, much to the burden of the Court.

The grounds argued before us range over stamp duty, the licensing of surveyors, the rule against hearsay, the measure of damages and the sufficiency of a solicitor’s letter. The question underlying them is a narrower one. It is whether a District, Municipal or Metropolitan Assembly as the case may be, which enters upon land in the occupation of a citizen and destroys his house, his fence wall and his chattels, without first taking the steps which Parliament requires of it, may escape liability by pointing to defects in the documents by which the citizen proves what he has lost. In the instant case, both courts below answered that question against the Appellant.

THE FACTUAL MATRIX

By a Deed of Assignment dated 5th July 2011 (Exhibit ‘B’) made between one Victor Oko Nikoi of the one part, and the Respondent of the other, all that piece or parcel of land situate at Madina, Accra, containing an approximate area of 0.317 of an acre, was assigned to the Respondent.

By lease dated 12th December 2011 (Exhibit ‘A’) made between Nii Nikoi Kotey Jonas, described therein as Head and Lawful Representative of the Nikoitse We family of La-Nkwantanang, of the one part, and the Respondent of the other, all that piece or parcel of land situate at Madina, Accra, containing an approximate area of 0.678 of an acre or 0.274 of a hectare, and bounded as therein described, was demised to the Respondent for a term of fifty years. The Respondent’s case was that both grants were made upon the strength of a judgment of the High Court dated 30th January 2004 (Exhibit ‘D’).

On 31st July 2012 the Respondent was registered as proprietor thereof at the Land Title Registration Division of the Lands Commission and issued with Land Certificate No. GA 39196, Volume 57, Folio 487 (Exhibit ‘C’).

On 7th March 2012, a matter to which we shall return more than once, the Appellant itself, in the discharge of its statutory function as the Planning Authority, granted to the Respondent Building Permit No.LANMMA/BP/MAD/REJ/01/2013 (Exhibit ‘E’), authorising the construction of a dwelling house with a fence wall upon the very land now in dispute.

Subsequent to the issuance of the Building Permit aforesaid, the Respondent entered into possession. He engaged PW1, Elvis Fiifi Hayford, a mason foreman whom he had known since the year 2000. The evidence of PW1 which stands substantially uncontradicted upon the record, was that from 2013 he constructed a fence wall around the entire six plots, hung five large metal gates, and erected a completed two-bedroom self-contained dwelling house. He thereafter constructed two stores measuring twelve feet by twenty feet each, a warehouse, and a shed housing a block factory. Two mechanised boreholes were sunk, and block-moulding machinery, together with moulds of various dimensions, was installed and put to use.

In May 2018, the Appellant in concert with the Municipal Security Council, the Greater Accra Regional Security Council and with the assistance of the National Security Council, embarked upon an exercise over some twenty-four acres of the Madina Redco Lands. Its declared purpose was to clear the area of unauthorised structures said to number over eight hundred, which were alleged to harbour hardened criminals and for prostitution, which residents of the Redco Flats had, through their Assemblyman, complained of.

The maintenance of order and the abatement of nuisance are among the most important of the functions which Parliament has entrusted to District Municipal and Metropolitan Assemblies, and a court will not lightly second-guess an Assembly’s assessment of the security needs of its municipality. The question before us is not whether the exercise ought to have been undertaken. It is whether, in undertaking it as against this Respondent, the Appellant complied with the due process of the law required of them.

The undisputed evidence on record is that, on the 6th May 2018, the Appellant’s personnel, supported by a large detachment of the Ghana Police Service and equipped with heavy plant, entered the Madina Redco and in the process, part of the Respondent’s fence wall was broken down. Upon being informed by PW1, the Respondent hurried to the site, where he met one Mr. Offei Kumi, the Director of Town and Country Planning, and showed him his Land Certificate and Building Permit. He was advised to bring the documents to the office the following day.

On 7th May 2018, the Respondent attended at the Appellant’s offices. What passed there is not seriously in dispute, for the Appellant’s own Municipal Chief Executive committed it to writing. In a petition to the Inspector-General of Police dated 15th May 2018, forming part of (Exhibit ‘H’) and appearing at pages 77 to 81 of Volume 1 of the Record, the Municipal Chief Executive wrote:

“On Monday, 7th May, 2018, Chief Superintendent Zoiku Dinam Kwasi Wisdom came to my office with his land documents and building permit which were received and he was assured that a committee will scrutinize the documents and address the issues when the entire exercise was completed, since he was not the only affected person, he needed to exercise patience until he is invited by the committee.”

From the evidence on record, no committee ever sat. The Respondent was never invited. On 12th May 2018, six days after the first entry and five days after being asked to be patient, the Appellant returned. In the words of the same petition, a “mop up exercise for the second phase” was carried out, in which “the remaining structure which belonged to the Police Officer” was “removed.”

The uncontradicted evidence of the Respondent and of PW1 was that on that day, the entire fence wall and the five gates were razed, the two-bedroom self-contained dwelling house, the two stores and the warehouse were demolished, the block factory and its plant were destroyed, and the stock of blocks and building materials on site was damaged and the site thereafter cleared of the debris. Photographs of the land before and after were tendered as Exhibits ‘M’ and ‘P’ series, and a video recording as Exhibit ‘N’.

On 13th May 2018, the Respondent’s solicitor addressed to the Municipal Chief Executive the letter which became Exhibit ‘G’, headed “Notice of Intention to Commence Legal Action against La-Nkwantanang Madina Municipal Assembly for Trespass and Causing Damage to Property.” It was received at the Appellant’s offices on 14th May 2018 and was copied to the Respondent himself at the Ghana Police Service, Tamale; to the Attorney-General and Minister for Justice; to the Minister for Local Government and Rural Development; and to the Editor of the Ghana News Agency.

On 21st May 2018, nine days after the demolition and for the first time in the history of the matter, the Appellant caused to be served upon the Respondent a notice under the Local Governance Act (Act 936) calling upon him to show cause why his structures should not be demolished. That notice is Exhibit ‘L’.

That sequence is not a matter of inference. On the Appellant’s own showing, the first document it served upon the Respondent requiring him to show cause why his buildings should not be demolished was served nine days after those buildings had been demolished by the Appellant.

THE ACTION IN THE HIGH COURT

By Writ of Summons and Statement of Claim filed on 26th June 2018, the Respondent claimed against the Appellant the following reliefs:

Special damages of GH¢607,992.79 for the unlawful damage caused to Plaintiff’s two-bedroom self-contained apartment, two stores and fence wall on 6th and 12th May, 2018;

Special damages of GH¢131,722.77 for the unlawful damage caused to Plaintiff’s fence wall on 21st May, 2018;

Special damages of GH¢1,212,215.00 being cost of building materials, machinery and equipment Defendant destroyed on 12th May, 2018;

Damages for loss of earning from the block factory;

Damages for emotional and psychological trauma, embarrassment and stress;

Damages for trespass;

Costs inclusive of legal and administrative cost.

The particulars of the special damage claimed under relief (iii) were pleaded at paragraph 19 of the Statement of Claim and repeated at paragraph 27 of the Respondent’s witness statement. They comprised, in summary, 100,000 pieces of 6-inch cement blocks at GH¢300,000; 200,000 pieces of 5-inch cement blocks at GH¢560,000; 200,000 pieces of pavement blocks at GH¢260,000; sand, stones, chippings, cement, iron rods, timber, boards and nails; a mechanised borehole and water pumping machine; a block-making machine; six moulds of differing dimensions; a pavement-block making machine; and a manual loading concrete mixer, making in the aggregate the sum of GH¢1,212,215.00.

The Appellant entered conditional appearance and filed its Statement of Defence on 15th August 2018. The defence, so far as material, was in four parts. First, it pleaded at paragraphs 8 and 9 that, save that the Respondent had put up “some wooden illegal and unauthorized structures” on part of the land, the averments as to his development of the land were denied, and that he was using part of the land to run a brothel and a block factory contrary to public policy and thereby causing nuisance and a breach of security in the community.

Secondly, it pleaded that two notices had been served upon the Respondent before the exercise, in accordance with the National Building Regulations, 1996 (L.I. 1630) and Act 936, requiring him to show cause why his unauthorised structures should not be removed, and that he had failed to respond to either. Those notices were tendered as Exhibits ‘3’ and ‘3A’.

Thirdly, it pleaded at paragraphs 15 to 21 that, the land was State land acquired under Executive Instrument 20 of 1977 and Executive Instrument 7 of 1991; that the Government, through the Lands Commission, had leased it to the then Bank for Housing and Construction for ninety-nine years from March 1977; that by an Assignment made on 13th June 2007 and plotted at the Lands Commission as No. AR 150020. That, the Official Liquidator of that Bank had assigned the unexpired residue to Mr. Teodoro Martinez Montero and further that, the Respondent’s grantor had litigated against Mr. Montero in Suit No. H1/190/2013 and lost. Thus, “the bona fide owner of the land (Teodoro Martinez Montero) has not granted the Plaintiff (Respondent herein) any lease or license to be on the subject land thus making Plaintiff’s presence on the land an actionable trespass.”

Fourthly, it pleaded that the building permit issued to the Respondent had expired, had been issued under a mistaken belief with respect to his title, and had in any event been departed from, as the Respondent had erected a block factory and stores which it did not authorise.

We observe, and shall return to the point that, the third and fourth limbs of that defence are not easily reconcilable with one another, and that the third is not easily reconcilable with itself.

THE EVIDENCE AT THE TRIAL

The Respondent gave evidence and called three witnesses. The Appellant called one. The Respondent relied upon his witness statement filed on 15th March 2019 . He testified to his acquisition of the land, the grant of the permit, his development of the site, the events of 6th, 7th and 12th May 2018, and the assurances he says he received from the Appellant.

The Respondent’s PW1, Elvis Fiifi Hayford, the mason foreman, relied upon a fourteen-paragraph witness statement and was cross-examined. He testified to what he had built and when, and to what he saw destroyed.

PW2, Evans Laryea Quaye, holds a degree in Quantity Surveying and Construction Economics and a Master of Science in Project Management, both from the Kwame Nkrumah University of Science and Technology (Exhibits ‘U’ and ‘U1’, at pages 298 and 299). He testified that, in June 2018, the Respondent took him to the site, where he saw the debris of the demolished structures and the damaged building materials. That he was furnished with the drawings of the dwelling house and the dimensions of the stores, warehouse and fence wall; and upon that basis he prepared the Bill of Quantities, Exhibit ‘Q’ series which costed the completed two-bedroom self-contained apartment, two stores and fence wall at GH¢607,922.79.

PW3, Sebastian Kwaku Adika, a licensed surveyor whose licence was tendered as Exhibit ‘V’, deposed that PW2 brought him the drawings, the site photographs and the Bill of Quantities. That he cross-checked the report against that data and verified the accuracy of the quantities generated and the fairness and reasonableness of the unit rates quoted. He testified that, being satisfied, he signed and stamped the document, PW2 not being a licensed surveyor and on PW3’s understanding of professional practice, PW2 was unable to do so himself.

Mr. Christian Ababio DW1, an engineer and Development Control Officer, testified on behalf of the Appellant on 11th October 2021. He described the security background to the exercise, exhibited photographs of the area before and after (Exhibits ‘1’, ‘1A’ to ‘1D’), and produced the judgment of the Court of Appeal in the Montero litigation (Exhibit ‘2’) and the two notices (Exhibits ‘3’ and ‘3A’).

The testimony of DW1 under cross-examination was, in our evaluation, decisive of much in this appeal, and we set out the material passages. Asked when and how the Respondent was served with the first notice, he answered:

“My Lord we visited the Plaintiff’s site where his unauthorized structure was behind Oman FM Radio where we met occupants of the said structure. We asked him to produce his permit on the structure which he was unable to do and a written notice was served on him to be given to the owner.”

When further asked the name of the person so served, he answered: “He did not give us his name…” Asked how Exhibit ‘3A’ was served, he answered that it was served in the same manner, upon a gentleman who claimed to work for the Respondent and who “declined” to give his name. He was then asked:

“Q: Do you have any proof of service of your

Exhibits ‘3’ and ‘3A’?

A: No my Lord, we do not have any document apart from what I have said and I rely on what

I have said.”

DW1 further admitted under cross-examination that, the Respondent had a Block factory and buildings on the land and that, the site he and his team visited was that of the Respondent.

THE JUDGMENT OF THE HIGH COURT

In his well-reasoned delivery, the Learned Trial Judge K.T Ackaah-Boafo J. (as he then was) found that, the Appellant had failed to comply with Section 106 of Act 936 and with Regulations 18 and 20 of the Local Governance (Permits and Notices) Regulations, 2020 (L.I. 2407), and further that, its entry upon the land and destruction of the Respondent’s property therefore constituted trespass.

Upon the claim in special damages, His Lordship held, at paragraph 89 of the judgment (page 422) as follows:

“In my considered opinion contrary to counsel’s submission, the bill of quantities pertaining to the costs of the building and the evidence led are plausible and compellable and I accept them as genuine and authentic. This being a case of wrongful demolition of property, in accepting the Plaintiff’s claim reference is made to the Court of Appeal case of MAHAMA VS. KOTIA [1989-90] 2 GLR 24…”

The Learned Trial Judge accordingly, granted reliefs (i) and (iii) in the sums of GH¢607,992.79 and GH¢1,212,215.00 respectively, making GH¢1,820,207.79 in special damages. He awarded GH¢50,000 for emotional and psychological trauma pursuant to Section 18(1)(b) of the Civil Liability Act, 1963 (Act 176); GH¢10,000 as damages for trespass, described by him as nominal; and costs of GH¢25,000. The aggregate sum was GH¢1,905,207.79.

The Learned Trial Judge dismissed relief (ii), holding that after the demolitions of 6th and 12th May the Respondent ought not to have rebuilt the wall of his own motion but should have challenged the Appellant’s conduct in a competent court, and that in rebuilding he had taken the law into his own hands.

The Learned Trial Judge further dismissed relief (iv), the claim for loss of earnings from the block factory, in these words (page 424):

“…this Court is unable to grant the damages for loss of earning from the block factory because the Plaintiff’s permit was to put up a residential property and not to operate a block factory. That business was illegal and the Plaintiff cannot be allowed to benefit from an operation which was illegal. It will be against good conscience and public policy to allow that.”

Clearly, in our view, a judge who dismisses two of the Plaintiff’s seven reliefs, one of them on the very ground of illegality which the Defendant urged, has on the record not accepted the Plaintiff’s case uncritically.

APPEAL TO THE COURT OF APPEAL

The Appellant’s appeal to the Court of Appeal was dismissed on 6th February 2025. The respected President of the Court of Appeal Oppong JA, in the lead judgment, held at page 732 of Volume 2 of the record that, the Respondent had not only pleaded the particulars of the special damages he claims, but had led evidence by tendering Exhibits ‘F’ and ‘Q’ series and had called a witness to speak to and corroborate the Bill of Quantities. Further that, the totality of that evidence, prepared and endorsed by an expert having special knowledge of the assessment of values, was “satisfactory enough to convince him as to the proximate replacement value that the appellant without just cause destroyed.”

His Lordship accepted, with candour, that “an invoice and bill of quantity of a property completely destroyed do not establish the actual money expended in developing the property”, but held that “the significance of it in establishing the proximate value of the property destroyed cannot be overemphasized.”

Archer JA concurred, holding that Exhibits ‘F’ and ‘Q’ and the evidence led upon them led inexorably to two facts, namely the evidence of special damage and the value of the damage; and that to accede to the Appellant’s invitation to exclude those exhibits would result in a monstrous injustice.

APPEAL TO THE SUPREME COURT

The Notice of Appeal filed in the appeal to this court set out the following ten grounds, which we set out verbatim:

The admission and reliance on Exhibit Q and F series by the trial court to award the sum of GH¢1,820,207.79 in special damages was in violation of a mandatory provision of the Stamp Act, 2005 (Act 689) and the decision of this court in LIZORI LIMITED VS. EVELYN BOYE & ANOR. (2013) 67 GMJ 66 SC, which violation renders the awards made in favour of the Plaintiff null and void.

The admission and reliance on Exhibit Q prepared and tendered by an unlicensed Quantity Surveyor was in violation of mandatory provisions of the Survey Act, 1962 [Act 127] which violation renders Exhibit Q inadmissible.

Exhibit F series were hearsay evidence; the admission and reliance on same to award special damages of GH¢1,212,215 was in violation of mandatory provisions of the Evidence Act, 1975 (NRCD 323) and same has occasioned substantial miscarriage of justice to the Appellant.

The judgment is against the weight of evidence.

Plaintiff/Respondent/Respondent failed to prove special damages of GH¢1,820,207.79 against the Defendant/Appellant/Appellant, and the grant of same by the High Court and the subsequent affirmation by the court below are erroneous as both courts failed to properly evaluate the evidence adduced by Plaintiff and to apply the requisite burden of special damages in law.

The award of special damages of GH¢1,820,207.79 against the Appellant was excessive, harsh, arbitrary and unwarranted and the same has occasioned a substantial miscarriage of justice to the Appellant.

By purporting to award the Plaintiff damages for replacement value which was neither pleaded nor sought as a relief, instead of special damages specifically pleaded, and upon which the parties fought the matter at the trial court, the court below committed an error of law by substituting a case different from what the Plaintiff presented to the court.

The jurisdiction of the high court was not properly invoked as the Plaintiff failed to strictly comply with the mandatory provisions of the Local Governance Act, 2016 (Act 936) and the decision of the Supreme Court in KWABENA OBENG & ORS VS. KUMASI METROPOLITAN ASSEMBLY (2017) 115 GMJ 162 SC which failure renders the entire proceedings at the High Court a nullity.

The removal of Plaintiff and 803 others from Madina Redco Land acquired by the State under Executive Instruments E.I.20 (1977) and E.I.7 (1991) did not constitute trespass as erroneously held by the courts below as the plaintiff and 803 others went unto the land in violation of mandatory provisions of Public Land (Protection) Act, 1974 (NRCD 240) as amended by Section 236 of the Land Act, 2020 (Act 1036).

In the face of direct challenge and denial of the Plaintiff’s claim to ownership of the land in dispute, it is grossly erroneous for the court below to hold that: (a) The Plaintiff did not need to prove his title to the land in issue in order to succeed in his claim for special damages against the Defendant and the decision in HAYFRON VS. EGYIR (1984-86) 1 GLR 682 relied on by the court is inapplicable to the facts of this case; (b) The doctrine of adverse possession was made in favour of Plaintiff to the detriment of the State and cited Section 30 of the Limitation Act, 1972 (NRCD 54) and concluded that the Defendant could not proceed to evict the Plaintiff from the land.

THE COMPETENCE OF THE GROUNDS OF APPEAL

Before turning to the substance we are constrained, as this Court has repeatedly found itself so constrained, to say so about the manner in which these grounds have been formulated.

Rule 6(4) of C.I. 16 enacts as follows:

“The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where a ground of appeal is one of law the Appellant shall indicate the stage of the proceedings at which it was first raised.”

Rule 6(5) also provides that:

“No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of evidence; and any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the Respondent.”

These are mandatory requirements. Where a ground alleges misdirection or error of law, the particulars must be expressly and clearly stated. The grounds must be concisely formulated under distinct heads, devoid of argument or narrative. No ground which is vague or general, or which discloses no reasonable ground of appeal, is permissible save the omnibus ground.

The requirement for properly formulated grounds reflect important principles of fair process. They require an appellant to afford both the Respondent and the Court fair and adequate notice of the case which is to be met, so that neither time nor judicial energy is dissipated in the pursuit of irrelevancies. They are, besides, subsidiary legislation within Article 11(7) of the Constitution and have the force of law.

The jurisprudence of this Court has consistently insisted upon their observance. In BROWN VS. QUASHIGAH [2003-2004] 2 SCGLR 930 grounds couched in narrative form, with particulars embedded within the heads themselves, were struck out. In BORLEY & ANOTHER VS. HAUSBAUER LIMITED [2021-2022] 1 SCLRG 434 at 439-440, I adopted the words of Akamba JSC in FKA COMPANY LTD. VS. NII TEIKO OKINE, and emphasised that grounds formulated contrary to the mandatory rules are inadmissible and unarguable because they are incompetent. I held further that, the appellate jurisdiction being statutory, the power to adjudicate includes the power to decline to adjudicate where the appeal rests on incompetent grounds.

Alongside that strict line there has developed a complementary line emphasising that rules of court are the handmaid of justice and not its mistress. These are OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790; REPUBLIC VS. HIGH COURT, ACCRA; EX-PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398; IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV VS. AKOTIA OWORSIKA III [2005-2006] SCGLR 637; and ASAMOAH VS. ATTORNEY-GENERAL [2017-2018] 1 SCGLR 1 to mention a few.

Taken together these decisions establish, in our considered view, four propositions:

First, the omnibus ground that the judgment is against the weight of the evidence is, by the express terms of Rule 6(5), exempt from the requirements of particulars and concision, and is sufficiently capacious to embrace any complaint that a finding of fact below is unsupported by the totality of the evidence.

Secondly, a ground which alleges error of law without setting out the particulars of the error is formally defective and would ordinarily be struck out; but the Court, in the exercise of its inherent power to do justice, may consider the substance of such a ground where its meaning is plainly discernible.

Thirdly, a ground which is argumentative or narrative, in the sense that it embeds the appellant’s reasoning or recites the decision below within the head of the ground itself, is objectionable; but may be considered upon its substance where no prejudice has been occasioned to the Respondent.

Fourthly, a ground which is genuinely vague, such that neither the Respondent nor the Court can divine the case to be made, will be struck out; for to entertain such a ground would be to require the Court to descend into the arena of conflict.

We shall therefore test the grounds of appeal before us against those yardsticks. Grounds 1, 2 and 3. Each of these alleges a violation of a named statute in respect of a named exhibit. To that extent, each is intelligible and each identifies its target. But each then proceeds to recite the conclusion contended for and, in the case of Ground 1, the authority relied upon and the consequence said to follow the citation of authority within the head of a ground is argumentative which offends Rule 6(4). Notwithstanding our observation, the defect is formal, the substance is clear, and we proceed to consider them.

Ground 4 is the omnibus ground and is unobjectionable while Ground 5 is, in truth, three grounds rolled into one: a complaint of failure of proof, a complaint of failure to evaluate, and a complaint of misapplication of the burden of proof. Besides it is argumentative. We shall however, consider its substance, largely under the omnibus ground.

Ground 6 alleges that, the award was “excessive, harsh, arbitrary and unwarranted”. It supplies not a single particular. It does not identify which item of the award is excessive, nor by what margin, nor by reference to what standard. An Appellant who says that a figure is too high must say what figure would be right, or at the least why the figure arrived at cannot stand. This ground comes very close to the fourth of our propositions. We consider it only because the underlying complaint about mitigation is discernible from the Statement of Case.

Ground 7 is competently framed and raises a clear question of law. Ground 8 embeds within the head of the ground the statute, the authority and the consequence. It is argumentative. Its meaning is nonetheless plain, and as it is said to go to jurisdiction we consider it first among the grounds.

Grounds 9 and 10 are the least satisfactory. Ground 9 is a narrative paragraph containing four propositions of law and a finding of fact which appears nowhere in the pleadings. Ground 10 is not a ground at all but a discourse in two lettered sub-paragraphs, each reciting a holding below and asserting that it is “grossly erroneous” without particulars of the error. We have hesitated over these grounds. We consider them because they raise a question, the protection of public lands, of importance beyond this case.

We make two observations of a general character. First, the deficiencies here are not merely technical. They reflect a failure to observe the structural discipline which the ground rules of this court impose: a discipline designed to crystallise the issues, to focus the Court’s attention upon the real questions in controversy, and to give the Respondent fair notice. Where an Appellant compresses his argument into the head of a ground of appeal, the result is not economy but confusion, and the labour of disentanglement falls strenuously upon the Court.

Secondly, the indulgence we extend in this case is not to be taken as encouragement to indifferent draftsmanship. It rests upon the particular features of this matter: that the Respondent has been able to answer each complaint without embarrassment, that the Appellant is a public body expending public funds, and that several of the questions raised are of general importance. Counsel who persist in this style should not assume that the indulgence will be repeated and accepted by this court in future.

THE QUESTIONS REFORMULATED FOR DETERMINATION

When read together, the ten grounds overlap very considerably and converge upon a small number of controversies. Grounds 1, 2 and 3 raise a single controversy in three parts: the admissibility of the Respondent’s documentary evidence of value. Grounds 5, 6 and 7, together with much of Ground 4, raise a second: the proof and measure of damages. Grounds 9 and 10 raise a third: the lawfulness of the Appellant’s entry and the relevance of title. Ground 8 stands alone.

Reframing the grounds accordingly, and avoiding needless repetition, we shall determine the following five questions:

(1) Whether the jurisdiction of the High Court was validly invoked, having regard to Section 210 of the Local Governance Act, 2016 (Act 936)?

(2) Whether Exhibits ‘F’ and ‘Q’ series were admissible in evidence, having regard to the Stamp Duty Act, 2005 (Act 689), the Survey Act, 1962 (Act 127) and the Evidence Act, 1975 (NRCD 323)?

(3) Whether the Appellant’s entry upon the land and destruction of the Respondent’s property constituted an actionable trespass, and whether the Respondent was obliged to prove title in order to succeed?

(4) Whether the Respondent proved his claim in special damages, and whether the courts below applied the correct measure and the correct burden of proof?

(5) Whether the award of relief (iii) is vitiated by the trial court’s own finding that the block factory was operated in contravention of the Building Permit?

We shall thereafter deal separately with the omnibus ground, and with a matter arising upon the figures which neither party has addressed.

THE LAW GOVERNING THIS SECOND APPEAL

It is settled that an appeal is by way of rehearing: TUAKWA VS. BOSOM [2001-2002] SCGLR 61; DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686; REPUBLIC VS. CENTRAL REGIONAL HOUSE OF CHIEFS, EX-PARTE GYAU IX [2013-2014] 2 SCGLR 84 are decisions of abiding value on this jurisprudence. Cconsequently, where the omnibus ground is invoked, this Court is enjoined to take another and a careful look at the entire record, oral and documentary, and to satisfy itself, upon the preponderance of the probabilities, whether the conclusions of the courts below are amply supported by the evidence on the record.

In matters of the burden of proof, the regulating provisions are Sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323), as expounded in IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU VS. KOTEY [2003-2004] 1 SCGLR 420, where Brobbey JSC drew the now familiar distinction between the legal burden of persuasion, which remains fixed where the law places it, and the evidential burden of adducing evidence, which is fluid and shifts with the state of the evidence as it unfolds; and in the exposition of Adinyirah JSC in ACKAH VS. PERGAH TRANSPORT LTD. [2010] SCGLR 728.

Upon the cardinal principle that evidence which is not effectively challenged in cross-examination is to be accepted, this Court has spoken with one voice. See the cases of FORI VS. AYIREBI [1966] GLR 627; QUAGRAINE VS. ADAMS [1981] GLR 599; MANTEY VS. BOTWE [1989-90] 1 GLR 479; TAKORADI FLOUR MILLS VS. SAMIR FARIS [2005-2006] SCGLR 882. The principle applies a fortiori where the unchallenged evidence is elicited from the opposing party’s own witness under cross-examination.

This appeal is, however, a second appeal, and it challenges concurrent findings of two courts. It is established that where there have been concurrent findings the final appellate court should be very slow to disturb them. That does not render such findings sacrosanct or insulate them from interference. Where there are exceptional circumstances producing manifest injustice, arising out of clear error whether of fact or of law, occasioned by an improper evaluation of the evidence or misapplication of the law, this Court is empowered to interfere with findings of the lower court ACHORO VS. AKANFELA [1996-97] SCGLR 209; AKUFFO-ADDO VS. CATHELINE [1992] 1 GLR 377.

The circumstances were catalogued in KOGLEX LTD. (NO.2) VS. FIELD (NO. 2) [2000] SCGLR 175 as follows: where the findings are clearly unsupported by the evidence or the reasons in support unsatisfactory; where a principle of evidence has been improperly applied or an irresistible conclusion not drawn; where the findings rest upon a wrong proposition of law; or where they are inconsistent with crucial documentary evidence on the record this court is in as much a position as the lower courts to re-evaluate the evidence and arrive as the more appropriate findings as they will irresistibly follow from the pressure of the evidence not properly evaluated.

In FRANK ODURO VS. GRAPHIC COMMUNICATIONS GROUP LTD. [2018] DLSC 4518, Benin JSC framed the inquiry as a series of questions. Did the trial court fail to consider vital pieces of evidence, oral as well as documentary? Did it rely on irrelevant or non-material evidence? Did it rely on legally inadmissible evidence? Did it wrongfully exclude relevant and admissible evidence? Did it fail to identify and allocate the burden of producing evidence and of persuasion? Did it fail to identify the standard of proof? Did it embark upon a proper evaluation of the evidence as a whole? It is against those questions, among others, that the judgments below fall to be measured.

QUESTION ONE: WAS THE JURISDICTION OF THE HIGH COURT VALIDLY INVOKED?

Section 210 of Act 936 provides:

“(1) A suit shall not be commenced against a

District Assembly until at least one month after a written notice of intention to commence the suit has been served upon the District Assembly by the intending Plaintiff or the agent of the Plaintiff.

(2) The notice shall state the cause of action, the names and place of abode of the intending Plaintiff and the relief which the Plaintiff claims.

(3) An action shall not lie against a District

Assembly unless the action is commenced within twelve months after the act, neglect or default complained of or in the case of continuing damage or injury within twelve months after the date of cessation.”

The section imposes four requirements upon an intending Plaintiff, and one upon the timing of his action: the notice must state the cause of action; (b) the name of the intending Plaintiff; (c) his place of abode; and (d) the relief claimed; and the suit must be commenced not less than one month, and not more than twelve months, after the material events.

Exhibit ‘G’ appears at page 75 of Volume 1. It was received on 14th May 2018. The writ was issued on 26th June 2018. Compliance with subsections (1) and (3) is therefore beyond argument, and is not disputed.

The cause of action is stated in the heading of the letter and in its body: trespass and causing damage to property. The name of the intending Plaintiff is stated in full together with his rank in the Police Service. The Appellant’s attack is therefore confined to two of the four requirements: place of abode, and relief.

(a) Place of abode

The Appellant submits that the description “Chief Supt. Wisdom Kwasi Dinam Zoiku, Ghana Police Service, Tamale” is an employment address and not a residential one; that the Tamale Metropolis contains several police stations and several barracks; and that the notice is therefore “hopelessly defective.”

The submission requires us to construe the expression “place of abode” in a pre-action notice provision. In doing so we apply the settled approach of this Court to the construction of statutes, which is purposive. The words are to be read in the light of the object which the provision was designed to achieve.

That object was identified by this Court in KWABENA OBENG & ANOR. VS. KUMASI METROPOLITAN ASSEMBLY (2017) 115 GMJ 162, where Dotse JSC said, of the predecessor provision, that it was “intended to afford the District Assembly… an advance opportunity and knowledge to know beforehand identities of the intended Plaintiffs and the nature, scope, content and magnitude of the reliefs intended to be claimed against them”; and, at page 195, explained that the substance of the notice is to ensure that the Assembly is not taken by surprise, is afforded an opportunity within the month to investigate the claim and decide whether it is liable, and may determine the identities of the intended Plaintiffs.

The requirement of a place of abode thus serves the purposes of identification and communication. It answers the questions: who is this person, and where may he be found? It is not a conveyancing formality demanding the precision of a habendum, nor a requirement that the intending Plaintiff disclose the location of his bed. Tested against that purpose, the objection cannot survive on the strength of the Appellant’s own documents.

First, the Appellant had some six years earlier, issued this very man a building permit in his own name for the very subject matter. It held his particulars in its own records.

Secondly, its Municipal Chief Executive had received him in person in his office on 7th May 2018, had taken custody of his land certificate and building permit, and had told him to await a committee.

Thirdly, on 15th May 2018, the day after Exhibit ‘G’ was received, that same Municipal Chief Executive addressed a petition to the Inspector-General of Police naming him as “Chief Superintendent Zoiku Dinam Kwasi Wisdom” and identifying him as a police officer whose property had been removed.

An authority which petitions a man’s own service commander about him cannot afterwards be heard to say that it did not know who he was or where he might be found. We hold that a notice which gives the intending Plaintiff’s full name, rank, service and station, in circumstances where the recipient is thereby placed in a position to identify him and to communicate with him without difficulty, satisfies Section 210(2) in that respect. We hold further that the Appellant has not shown, and did not attempt at the trial to show, that it was in fact impeded in any way by the form of the address given by the Respondent.

(b) The relief claimed

The Appellant’s principal complaint is that Exhibit ‘G’ stated the value of the damage as GH¢350,000. That the Respondent repeated that figure in his report to the police (Exhibit ‘J’). Further that, he never wrote to withdraw Exhibit ‘G’; and that he was thereafter precluded, by Section 26 of (NRCD 323) and by the requirements of Section 210(2) itself, from claiming the sum of GH¢1,951,860.56 which he in fact claimed.

This argument, forcefully advanced by the Appellant rests upon a premise which we are unable to accept in that, the “relief” required by Section 210(2) includes the quantum of damages. A relief is the remedy which the court is asked to grant. They include damages, injunction, declaration, order for account and specific performance among others. The quantum of damages is not a relief. It is the measure of one. The distinction is elementary and is reflected throughout our procedural law. A writ endorsed with a claim for “damages for trespass” is endorsed with a relief, whether or not a figure is appended.

Had Parliament intended that an intending Plaintiff be bound irrevocably to a figure named in a solicitor’s letter written days after the event and before any valuation could be obtained, it would have been necessary to say so unequivocally and plainly. Parliament did not. And there is good reason why it did not. The very purpose of the one-month period is to allow the Assembly to investigate. An investigation which could only ever confirm or deny a figure fixed before investigation began would be a strange kind of investigation reasonable persons will never contemplate.

The consequences of the Appellant’s construction are, moreover, insupportable. It is to the effect that, citizen whose house is demolished must, within days, and before he can instruct a valuer or a quantity surveyor, arrive at a figure which will bind him thereafter. If he over-estimates, he is met with the charge that he has exaggerated; if he under-estimates, he forfeits the difference. The Appellant’s proposition does not in our view make legal sense.

In Exhibit ‘G’ the Respondent states the relief. Its heading announces an intended action “for trespass and causing damage to property.” Its penultimate paragraph gives notice of intention “to commence legal action against your Assembly for trespass and causing damage to his property after the expiration of thirty (30) days from the date of receipt of this letter.” Those are the reliefs which were pursued and which were granted. The figure of GH¢350,000 appears in a paragraph of narrative, as the solicitor’s contemporaneous estimate of value. It was not a formulation of relief and did not purport to be. Such a figure we not bind a court. The court will arrive at the quantum after an evaluation of the evidence.

We turn to KWABENA OBENG, upon which the Appellant’s whole argument is built, and which it submits “on all fours fits the facts of this case.” With respect to Learned Counsel for the Appellant, it does not. That decision has clearly been misunderstood and wrongly applied. The case is distinguishable upon both of its operative limbs.

As to identity: in KWABENA OBENG the intending Plaintiffs were described as “The Traders and Shop Owners at the Kejetia Bus Terminal”, an unnamed, amorphous and floating class. The Assembly could not know whom it was to investigate, whom it might settle with, or against whom it should preserve evidence. In the instant case, the intending Plaintiff is one named individual, identified by rank, service and station, whom the Assembly had itself licensed to build and had itself received him in the office of its Chief Executive.

As to relief, in KWABENA OBENG the notice announced only an intention “to institute the appropriate legal action to address their grievances.” That formula conveys nothing. It does not identify a cause of action nor a remedy, and not even a subject-matter. In the instant case, the notice names both the causes of action and the remedy sought.

What this Court condemned in KWABENA OBENG was a notice which left the Assembly guessing. Exhibit ‘G’ never left this Appellant guessing about nothing. It knew who was complaining, of what conduct, on what date, in respect of what property, and what he proposed to do about it.

We do not, in so holding, in any way resile from KWABENA OBENG. The principle for which it stands, that where a statute prescribes a procedure only that procedure may be followed, and that a court has no power to grant a waiver from a mandatory statutory requirement, is sound, and we affirm it. The cases upon which it rests, BOYEFIO VS. NTHC PROPERTIES LTD. [1996-97] SCGLR 531, REPUBLIC VS. HIGH COURT (FAST TRACK DIVISION), ACCRA; EX-PARTE NATIONAL LOTTERY AUTHORITY [2009] SCGLR 390 and NETWORK COMPUTER SYSTEMS LTD. VS. INTELSAT GLOBAL SALES & MARKETING LTD. [2012] 1 SCGLR 218 and later REPUBLIC VS. GHANA NATIONAL GAS COMPANY, EX-PARTE KINGS CITY DEVELOPMENT COMPANY (LANDS COMMISSION INTERESTED PARTY) CIVIL APPEAL NO.J4/61/2021 DATED 15TH DECEMBER 2021 AND TOGBE ADONTSIRI IV VS. ADDO MLOREE & ANOR. CIVIL APPEAL NO.J4/18/2026 DATED 8TH JULY 2026 are equally forceful and sound.

The question in every case is whether the statutory requirement has in fact been contravened. We do not find as the two lower courts have concurrently found, that, the Respondent was in any breach of any statutory requirement.

(c) The plea of estoppel

Section 26 of (NRCD 323) provides that where a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against him in proceedings between them.

The words in the above provision we have emphasised, are the difficulty. An estoppel by conduct is not established by proof of a representation alone. It requires proof that the representee acted, or refrained from acting, upon the belief which the representation induced.

The Appellant led no evidence whatever that it acted upon the figure of Three Hundred and Fifty Thousand Ghana Cedis (GH¢350,000). It did not investigate the claim. It did not commission a valuation. It did not offer to settle at that sum or at any other sum. It did not preserve so much as a photograph or an inventory of what it had destroyed, though it had heavy plant, personnel and a police detachment on the site and nine days’ notice of the complaint. It simply did nothing. Having done nothing in reliance upon the representation, it cannot found an estoppel upon it.

We would add that the Appellant’s own conduct sits awkwardly with its argument. A party which says it was misled into inaction by an understatement of GH¢350,000 must explain what it would have done differently had the figure been higher. The Appellant has not said, because there is nothing it could say: it did nothing at all, and would have done nothing at all.

(d) The procedural history

Finally, we note that non-compliance with Section 210 of Act 936 was not pleaded in the Statement of Defence; nor was it raised at the trial. It was also not the subject of objection when Exhibit ‘G’ was tendered. On the contrary, it emerged for the first time on appeal, after four years of contested litigation on the merits.

We accept without reservation that a genuine want of jurisdiction may be raised at any stage, in any court, and cannot be cured by acquiescence, waiver or consent. Nothing in this judgment is to be read as qualifying that principle. But the history is not therefore irrelevant. It is a powerful confirmation that, the notice achieved precisely what Parliament designed it to achieve. The Appellant knew who was suing it, for what, and why. It was never once embarrassed in the conduct of its defence. The objection now taken is not the vindication of a statutory safeguard. On the contrary, it is an attempt to escape a judgment by an argument which occurred to nobody until the judgment had been given.

We therefore answer Question One (1) in the affirmative. The jurisdiction of the High Court was validly invoked. Consequently, Ground 8 which provoked the jurisdicitional threshold issue fails and we dismiss same.

QUESTION TWO : WERE EXHIBITS ‘F’ AND ‘Q’ SERIES ADMISSIBLE?

(a) The Stamp Duty Act, 2005 (Act 689): Ground 1

Section 32(1) of Act 689 provides that where “an instrument chargeable with a duty” is produced as evidence in a court in a civil matter, the judge shall take notice of an omission or insufficiency of the stamp. Section 32(2) provides that if the instrument is one which may legally be stamped after execution it may, on payment of the unpaid duty and the penalty, be received in evidence subject to just exceptions on other grounds. Section 32(6) provides that, except as expressly provided in the section, an instrument executed in Ghana shall not, save in criminal proceedings, be given in evidence or be available for any purpose unless stamped in accordance with the law in force when it was first executed. Section 50 provides that “instrument includes a written or printed document.”

In LIZORI LTD. VS. BOYE [2013-2014] 2 SCGLR 889, Benin JSC held:

“This provision is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment.”

In WOODHOUSE LTD. VS. AIRTEL GHANA LTD. (2019) 133 GMJ 170, this Court, per Baffoe-Bonnie JSC, (as he then was) followed LIZORI and upheld the exclusion of an unstamped document notwithstanding the absence of objection at trial.

The legal position is that, where an instrument chargeable with duty is unstamped, it is inadmissible. Neither the silence of the opposing party nor the convenience of the court can make it otherwise; and the trial judge is under a positive duty to take the point of his own motion. However, the section must be read as a whole, and every word in it must be given work to do. The operative words are “chargeable with a duty.” Section 32 is not engaged by the production of a document. It is engaged by the production of a document upon which the Act imposes a charge.

Section 50 does not supply the charge. It defines the vehicle upon which a charge, if imposed elsewhere in the Act, will travel. To read the definition as itself creating chargeability would produce an absurdity: every letter, memorandum, invoice, medical report, weather record, school report, bank statement and photograph caption ever tendered in a Ghanaian court would be inadmissible unless first taken to the Commissioner and stamped. No court has so held, and no practice has proceeded upon that footing.

Whether a given document is chargeable therefore falls to be answered by reference to the charging provisions of the Act and its Schedule. And it is here that the Appellant’s argument takes a course which, with respect, we must reject. The submission, advanced in the Statement of Case and repeated in the Reply, is that the Schedule to Act 689 lists the documents which are exempt from duty; that proforma invoices and bills of quantities do not appear among the exemptions; and that by the maxim expressio unius est exclusio alterius they must therefore be chargeable.

This inverts the correct approach to a taxing statute. A stamp duty is a tax upon instruments. The principle of construction is that stated by Rowlatt J in CAPE BRANDY SYNDICATE VS. INLAND REVENUE COMMISSIONERS [1921] 1 KB 64, and repeatedly applied in this jurisdiction to the effect that, in a taxing Act one looks simply at what is clearly said. There is no room for any intendment; there is no equity about a tax. Indeed, nothing is to be read in, and nothing implied. A charge is imposed only where the instrument falls squarely within a head of charge.

An exemption presupposes a charge. It operates to relieve from a liability which would otherwise arise. It cannot create the liability from which it relieves. The Appellant’s maxim, therefore, cannot do the work required of it. The absence of a document from a list of exemptions tells one nothing about whether it was ever chargeable in the first place.

It follows that the burden lay upon the Appellant, as the party asserting inadmissibility, to identify the head of charge into which a proforma invoice or a bill of quantities falls. In its hundred-page Statement of Case, together with the seventy-page Reply, and throughout the proceedings in Court of Appeal and in the High Court, the Appellant has never once done so. It has not identified a head of charge. It has not identified a rate. It has not said what duty ought to have been paid, by whom, or upon what value. It has asserted chargeability and left the matter there. An assertion of chargeability is not proof of it.

We would add that, the documents themselves resist the characterisation. Exhibit ‘F’ series are proforma invoices: quotations of price. A proforma invoice creates no right and imposes no liability. It is an indication of what goods would cost if they were ordered. The holder of a proforma invoice owns nothing and owes nothing by reason of holding it. Exhibit ‘Q’ series is a bill of quantities: a professional measurement of materials, labour and cost. It is a computation and not a disposition. Neither document creates, transfers, limits, extends, extinguishes or records any right or liability in the sense in which instruments are made chargeable to duty.

The decisions in LIZORI and WOODHOUSE are accordingly distinguishable, and distinguishable upon their facts rather than upon any narrowing of their principle. LIZORI concerned receipts evidencing the payment of consideration upon a land transaction, documents bound up with a chargeable disposition and recording the discharge of an obligation. WOODHOUSE concerned an agreement. The instant case concerns a price quotation and a measurement. The principle in those cases stands untouched, but it does not extend to documents of the character in the instant case.

We are fortified in that conclusion by a consideration of consequence. If the Appellant were right, then no citizen could ever prove the value of destroyed property by a valuer’s report, a quantity surveyor’s bill or a supplier’s quotation without first presenting each such document to the Commissioner. Expert evidence of value would become, in practice, unavailable to the ordinary litigant. We do not think Parliament, in enacting a revenue measure, intended so profound an alteration in the law of evidence; and if it had so intended, it would have said so. The first ground of appeal accordingly fails.

(b) The Survey Act, 1962 (Act 127): Ground 2

The Appellant contends that, Exhibit ‘Q’ series is a nullity because PW2, who prepared it, was not a licensed surveyor; that the practice of quantity surveying in Ghana is regulated by Act 127. Further that, by analogy with the decision in HENRY NUERTEY KORBOE VS. FRANCIS AMOSA (2016) 1 GMJ 1, the document is void and of no effect. The contention founders upon the scope of the statute. Act 127 is, by its long title, “An Act to consolidate, with amendments, the law relating to geological, soil and land survey.” Section 5 empowers the Minister to appoint official surveyors and the Chief Survey Officer to license private surveyors, “whose functions are to demarcate boundaries and make surveys of land.”

Section 6(1) of Art 127 prohibits any person other than an official surveyor, a licensed surveyor or a public officer acting in the course of duty from surveying land “for the purpose of preparing a plan for attachment to an instrument of conveyance, lease, assignment, charge or transfer.” Section 6(2) prohibits any person other than an official or licensed surveyor from certifying a plan. Section 6(4) provides that the section does not apply to the mere copying of a plan. Section 25 defines a cadastral plan and a certified plan alike as a map or plan purporting to show the boundaries of land with accuracy and giving exact measurements by which the boundaries may be demarcated on the ground.

Every operative prohibition in the Act is thus directed to a single subject-matter: the survey of land, the demarcation of boundaries, and the preparation and certification of plans. That is the mischief at which the Act is aimed, and it is a serious one: the integrity of the cadastre and of the instruments by which interests in land are conveyed.

A bill of quantities is none of these things. It shows no boundary. It gives no measurement by which any boundary may be demarcated or re-demarcated. It is incapable of attachment to a conveyance. Its function is to measure the quantities of materials and labour required to construct a building, and to price them. It belongs to the discipline of construction economics. To hold that Act 127 regulates it, would be to extend a statute concerned with the definition of land to a document concerned with the cost of building upon it.

The Appellant sought to establish the contrary by putting propositions of law to PW3 in cross-examination. Asked which law governs the practice of quantity surveying, PW3 answered that he was not a lawyer and could not say. It was then suggested to him that the practice is regulated by Act 127, to which he answered that he would check when he got home. It was suggested that only licensed surveyors may prepare and sign works meant for official use, to which he assented.

With respect to Appellant’s counsel, this method cannot establish the proposition especially on an issue regulated by statute. The scope of an Act of Parliament is a question of law for the Court. It is not a fact capable of proof by the concession of a witness, and least of all by the concession of a witness who has expressly disclaimed knowledge of the law. A witness who says that he is not a lawyer and cannot tell what the law is, and who then assents to a lawyer’s proposition, has definitely not proved nor accepted that proposition. He has merely deferred to it as a truthful witness on oath.

The Appellant also invited us to consult the website of the Ghana Institution of Surveyors, upon which, it says, the licensing of quantity surveyors is described. We decline the invitation, for two reasons. First, the practice of a professional body, however salutary, cannot enlarge the reach of a statute. If quantity surveyors are licensed, they are licensed under whatever instrument in fact provides for it, and the existence of the practice does not demonstrate that Act 127 is that instrument. Secondly, material found upon a website formed no part of the evidence at the trial, was never put to any witness, and cannot be received by a second appellate court to establish a fact never proved in the courts below.

But we do not rest our conclusion upon the scope of Act 127 alone, for two further answers stand in the Appellant’s way even if we were wrong upon that question. First, as to the consequence of contravention. Nowhere in Act 127 provides that a document prepared by an unlicensed person is void. Section 5A(3) provides that a surveyor who performs a function in contravention of the section is liable on summary conviction to a fine or imprisonment, and shall not be entitled to recover any fee, reward or disbursement in respect of the act done. Section 6(3) provides for a fine or imprisonment. Parliament thus addressed its mind to the consequences of contravention, and prescribed two: a penal sanction, and a disability to recover fees. It did not prescribe a third.

Where a statute attaches specified consequences to a contravention and is silent as to the validity of the resulting document, a court should be slow to add a civil nullity which Parliament withheld. The addition would not merely punish the offender; it would visit the consequences of his default upon an innocent client, and, in a case such as this, upon a litigant whose only fault was to engage a graduate of the Kwame Nkrumah University of Science and Technology to measure and assess his demolished house.

The decision in KORBOE VS. AMOSA CIVIL APPEAL NO. J4/56/2014 dated 21 April 2016 is not to the contrary. That decision turned upon the particular scheme of the Legal Profession Act, 1960 (Act 32) which forbids an unlicensed person to practise as a lawyer, and upon processes filed in the court’s own proceedings, where the court has a special interest in the regularity of what is filed before it. Nothing comparable appears in Act 127. Still less, does the decision of the Court of Appeal on driving licences and motor insurance, which turned upon the construction of a contract of insurance, illuminate the question before us.

Secondly, and in any event, the document was certified by a licensed surveyor. PW3 testified that he verified PW2’s work against the site photographs and drawings, checked the accuracy of the quantities generated and the reasonableness of the unit rates quoted, and thereupon signed and stamped the document. That is precisely the professional supervision which the Appellant says the law demands. The Appellant cannot at once insist that only a licensed surveyor may authenticate such a document and complain when a licensed surveyor does so.

We must deal, finally, with the suggestion, pressed with some vigour and repeated in the Reply, that PW3 “disowned his own signature on the Exhibit Q series under oath.” That is not a fair and accurate account of the record. What occurred appears at pages 309 to 310 of Volume 1. In re-examination, the witness was asked whether the document then before him bore his signature, and answered that it did. The learned trial judge thereupon caused the following note to be entered upon the record:

“BY COURT: Let the record reflect that Exhibit Q is made up of series, there is one booklet which is Bill of Quantities and another which is drawings. When the witness was initially questioned, the court inadvertently gave the witness only the drawing and not the bill of quantities part.”

The apparent disavowal was therefore the product of the court’s own inadvertence in handing the witness the wrong booklet, and it was corrected upon the record by the judge who had made the error. The Appellant’s Statement of Case and its Reply each reproduce the cross-examination at length. Neither mentions the correcting note, which appears upon the very next pages of the transcript.

We say this with restraint but we must say it. Counsel who reproduce a passage of evidence for the assistance of an appellate court are under a duty to reproduce so much of it as is necessary to render the extract fair. To set out an answer given under a misapprehension induced by the court, and to omit the court’s own correction of that misapprehension, is to invite the appellate court into error. We are confident that no such intention was entertained, but the omission should not have occurred, less the court will construe same as disingenous on the part of counsel.

Nor can we pass over the further suggestion that PW3 “was not a licensed surveyor but was impersonating the real Surveyor Adika Stephen Kwaku.” An allegation of impersonation is an allegation of fraud. Fraud must be specifically pleaded and particularised, and must be proved to a high standard. This allegation was neither pleaded, nor particularised. It was never put to the witness in that form, and never proved. It found its way into the Statement of Case as a “strongest suspicion.” It ought not to have been alleged against a witness who had no opportunity to answer it. The second ground is also without merit, and same accordingly fails and is hereby dismissed.

(c) Hearsay and Exhibit ‘F’ series: Ground 3

Section 116 of NRCD 323 defines hearsay evidence as evidence of a statement, other than a statement made by a witness while testifying, offered to prove the truth of the matter stated. Section 117 renders hearsay inadmissible save as otherwise provided by the Act or another enactment or by the agreement of the parties. The Appellant’s ground assumes that Exhibit ‘F’ series consists of assertions by absent suppliers, tendered to prove the truth of those assertions. We do not think, that assumption, survives an examination of what the documents were tendered to prove.

The evidence of the Respondent, corroborated by PW1 and not contradicted by DW1, was that the blocks destroyed had been manufactured upon the site at his own factory. He had therefore never purchased them, and could have no receipt for them. What he had to prove was not what he had spent, but what the destroyed items were worth. To that end, he obtained current quotations from Vappy Concrete Products, a manufacturer and distributor of blocks; from Rex Africa Limited, a supplier of block-making machinery and moulds; and from Osankyi Trading Enterprise and Gabtack Construction.

A quotation tendered to prove market value is not, in our judgment, hearsay at all. Its relevance lies in the fact that it was made, and not in the truth of any assertion contained within it. The fact in issue is the price at which goods of that description may be obtained in the market. A quotation is the market price. It is an operative fact, a verbal act, in the same way that an offer is an act and not a report of one. It is original documentary evidence of the very matter it is adduced to establish.

That analysis is confirmed, and in our view put beyond argument, by the Appellant’s own principal authority. In ANKOMAH VS. CITY INVESTMENT CO. LTD. [2012] 2 SCGLR 1123 at 1133, Dotse JSC, addressing what a Plaintiff must do to establish the replacement value of property, said that it was not enough to recite figures, and that proof in law meant that sufficient evidence must be led, “ie the production of proforma invoice from regular and accredited distributor of the property concerned as the current sale price of the property.”

The Appellant devotes several pages of its Reply to the submission that the Respondent has misread ANKOMAH. With respect, he has not; and the misreading is rather by the Appellant. ANKOMAH contains two distinct passages addressing two distinct heads of loss. The passage upon which the Appellant relies concerns proof of money actually expended upon the hire of substitute chattels, and holds that receipts, and where necessary the evidence of those who issued them, are required. The passage upon which the Respondent relies concerns proof of replacement value, and prescribes the proforma invoice of an accredited distributor. Both passages are correct. They are directed to different questions. In the present case the head of loss is replacement value, and ANKOMAH commends the very method the Respondent adopted.

The decision of this court in LARDI VS. GIWAH [2013-2015] 1 GLR 54 does not carry the Appellant further. The vice identified in that case was that the source of the hearsay had not been disclosed, so that its authenticity could not be ascertained. In the instant case, each source is named upon the face of each document, with its trade and its address, and each was available to be subpoenaed by either party. The Appellant subpoenaed none of them, and did not apply for an adjournment to do so.

Further, we do not accept the Appellant’s submission that a party may never tender a document of which he is not the maker. That proposition, if correct, would render inadmissible in the hands of a Plaintiff every bank statement, every medical report and every receipt he has ever been given. The correct question is not who tenders the document but for what purpose it is tendered and whether that purpose engages the rule against hearsay.

Nor do we accept that these documents stood unexamined. The Respondent and PW1 were cross-examined at length. The Appellant was at liberty to challenge the unit prices : GH¢3.00 for a 6-inch solid quarry-dust block, GH¢2.80 for a 5-inch block, GH¢1.30 for a pavement block, as inflated, unrepresentative or fabricated. It did not do so. It led no competing valuation, called no supplier, tendered no price list of its own, and put no alternative figure to any witness. Where a party fails to challenge evidence in cross-examination and offers nothing in answer, the tribunal of fact is entitled to accept it: FORI VS. AYIREBI, QUAGRAINE VS. ADAMS and MANTEY VS. BOTWE (supra).

We recognise and reaffirm the principle in JUXTON-SMITH VS. KLM [2005-2006] SCGLR 438 and TOTAL OIL GHANA LTD. VS. THOMPSON [2010-2012] 1 GLR 153, that inadmissible evidence admitted without objection may be excluded by an appellate court, and that a party is not precluded from taking the point for the first time on appeal. Decisions of our courts must rest upon legally admissible evidence, and that principle is not to be diluted. But it presupposes that the evidence is inadmissible. It is not a licence to re-characterise admissible evidence as inadmissible once judgment has gone the wrong way.

Even if we had taken a different view upon admissibility, Section 5 of (NRCD 323) would be decisive. Section 5(1) provides that a judgment shall not be set aside, altered or reversed on appeal because of the erroneous admission of evidence unless the erroneous admission resulted in a substantial miscarriage of justice. Section 5(2) requires the Court, in determining that question, to consider whether the trial court relied upon the evidence; whether an objection could and should have been made at an earlier stage; whether it could and should have been stated so as to make the grounds clear; whether the evidence should have been excluded on those grounds; and whether the decision would have been otherwise but for the admission.

Applying those factors: the trial court did rely upon the evidence; an objection could and should have been made when the exhibits were tendered, counsel being present throughout; and the decision would not, in our judgment, have been otherwise. Even in excluding Exhibit ‘F’ series altogether, there remained upon the record the Respondent’s own evidence of what was on the site, the corroborating evidence of PW1, the admissions of DW1 that the block factory and the buildings existed, the photographs before and after, and the Appellant’s own Exhibit ‘H’. Upon that material, the Respondent would have established his loss.

We add one observation upon Section 5(2)(b). The Appellant’s Reply states, with a candour we do not criticise, that it did not object at the trial “may be for strategic reasons.” A litigant is entitled to make forensic choices. But he must live with them. A party who withholds an objection for tactical advantage, allows the evidence to go in, tests it in cross-examination, loses, and then seeks to excise it on appeal, is asking an appellate court to relieve him of the consequences of his own strategy. That is the situation to which Section 5(2)(b) is directed. This ground also fails and we answer question two by holding that, Exhibits ‘F’ and ‘Q’ series were properly admitted and properly relied upon.

QUESTION THREE: WAS THE ENTRY AN ACTIONABLE TRESPASS?

We now come to Grounds 9 and 10, which the Appellant treats as its case of substance: that the land is public land vested in the State by E.I. 20 of 1977 and E.I. 7 of 1991; that the Respondent was an encroacher; and that a District Assembly charged with the protection of public land cannot be a trespasser when it removes an encroacher.

(a) Section 236 of the Land Act, 2020 (Act 1036) and retrospectivity

The argument rests very largely upon Section 236 of Act 1036, which provides, among other things, that despite the Limitation Act 1972 (NRCD 54) a person who unlawfully occupies public land acquires no interest in or right over it by reason of the occupation. That no estate or interest in public land may be acquired by prescription or adverse possession. That the appropriate agency may serve a notice requiring the occupier to vacate within not less than twenty-one days. That upon failure to vacate the agency may eject him and demolish his structures; and that the agency is not liable in civil action in respect of an act done in good faith in the execution or intended execution of the section.

Act 1036 received the assent on 23rd December 2020. The acts complained of occurred on 6th and 12th May 2018. The writ issued on 26th June 2018. Section 236 was therefore not in existence when this cause of action accrued, nor when the action was commenced, nor for two and a half years thereafter.

Article 107(b) of the Constitution, 1992 denies Parliament power to pass any law “which operates retrospectively to impose any limitation on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person”, save in the case of a law enacted under Articles 178 to 182. To apply Section 236 so as to strip the Respondent of a right of action which had accrued to him in 2018, and simultaneously to confer upon the Appellant an immunity which it did not enjoy when it acted, would be to give the section exactly that operation. There is besides the ordinary presumption against retrospectivity, which nothing in the language of Section 236 displaces.

Section 236 of Act 1036 has no application to this appeal. To the extent that the courts below were invited to consider it, they were invited into error; and to the extent that the Court of Appeal was drawn into a discussion of adverse possession by reference to it, we say something further below.

(b) The law in force: NRCD 240 and the notice that was never given

The Appellant’s answer to the retrospectivity point is that Section 236 merely re-enacts the Public Lands (Protection) Act, 1974 (NRCD 240) and so changes nothing. That answer is correct so far as it goes, and it does not assist the Appellant.

Section 3(1) of NRCD 240 provides:

“Where any person (in this Decree referred to as ‘the trespasser’) has unlawfully occupied or in any manner encroached upon or interfered with any public land, the appropriate authority or any duly authorised agent of such authority may, in writing, serve a notice on the trespasser, either personally or by affixing the notice to any part of the land affected, requiring the trespasser to vacate that land within twenty-one days from the date of the notice.”

Section 3(2) provides that it is “where a trespasser refuses or fails to vacate the land within twenty-one days from the date of the notice referred to in subsection (1)” that the authority may eject him, confiscate or remove his goods, abate any nuisance, and confiscate, demolish or remove any structure. Section 3(3) permits the use of such reasonable force as may be necessary “for the purpose of carrying out any of the measures specified in subsection (2).” The twenty-one day notice is thus not a formality. It is the condition upon which the entire summary power depends. Without it, there is no power to eject, no power to confiscate, no power to demolish, and no power to use force.

Section 3(4): the immunity upon which the Appellant relies in its modern form under Section 236(8) provides that “no civil action shall be brought against any person acting under this section in respect of any act done by him in good faith in the execution or intended execution of the provisions of this section.” A body which has not served the notice which Section 3(1) requires is not “acting under this section” at all. The immunity is conferred upon those who execute the section. It would be a remarkable statute which protected an authority for doing the very thing the statute forbids it to do until notice has been given.

The Appellant never served a notice under (NRCD 240). It never suggested at the trial that it had. Its Statement of Defence pleaded no such thing. Its witness spoke only of Exhibits ‘3’ and ‘3A’, which were notices under L.I. 1630 and Act 936. As the Respondent correctly observes, and as the Appellant does not answer, (NRCD 240) was invoked for the first time in this Court. Throughout the trial and in the first appellate court, the Appellant’s case was that it had acted under the Local Governance Act, 2016 (Act 936).

The position is therefore this. Upon the Appellant’s own alternative case, the land was public land and a power to remove the Respondent existed. But that power was conditional, and the condition was never satisfied. Whichever statute the Appellant selects to stand upon, it stands upon one which it did not obey.

(c) The Local Governance Act and L.I. 2407

If the Appellant is taken at its word that it acted under Act 936, its position is no better. Section 106(3) empowers the District Planning Authority to give notice in writing, in the form set out in the Sixth Schedule, to an owner, occupier or developer who is building or has built without a permit or in contravention of a by-law. Section 106(4) requires that notice to call upon him to show cause why the building should not be removed, altered or demolished on or before a specified day, and to require a written response.

Section 106(5) provides that if he fails to show sufficient cause the Authority shall by notice order him, within one month, to remove, alter or demolish at his personal cost. Only if he fails to comply within that month may the Authority, under Section 106(6), carry out the removal itself and recover the expense as a debt. Regulation 20 of L.I. 2407 requires a notice to be served personally upon the person required to receive it, or by posting it upon his premises.

By Section 42 of the Interpretation Act, 2009 (Act 792), “may” is permissive and empowering, and “shall” is imperative and mandatory. And where an enactment prescribes a mode of doing a thing, that mode alone may be followed: BOYEFIO VS. NTHC PROPERTIES LTD. (supra). It is not without irony that the Appellant invokes BOYEFIO against the Respondent upon Section 210 while itself standing in breach of the principle upon Section 106.

The courts below found, concurrently, that no notice was served upon the Respondent before the demolition. That finding is amply supported by the record and we would not disturb it. It rests upon the admission of DW1 that he had no proof of service and could not name a single person served and further upon the Appellant’s failure to produce any record, receipt or endorsement of service, the Respondent’s denial, which was never displaced as well as and upon the eloquent fact that Exhibit ‘L’, the only show-cause notice ever proved to have reached the Respondent, was served on 21st May 2018, nine days after the site had been cleared.

A notice calling upon a man to show cause why his buildings should not be demolished, served upon him by the party which has already demolished them, is not compliant with Section 106. It is an epitaph. Indeed it is a dishonest way of justifying a wrong by public authority which we deprecate in the strongest terms.

There is a further and independent defect. Even upon the Appellant’s own Exhibits ‘3’ and ‘3A’, only seven days were allowed. Section 106(5) requires one month. The Appellant thus not only failed to prove service; the documents it says it served were, upon their face, non-compliant with the statute. And the evidence of DW1 that the period allowed for showing cause is seven days was simply wrong in law.

(d) Trespass and the question of title

The Appellant’s remaining complaint is that, the Respondent having asserted ownership in his pleadings and the Appellant having denied it, the Respondent could not succeed without proving his title. The starting point is HAYFRON VS. EGYIR [1984-86] 1 GLR 682, where Apaloo CJ said at page 691:

“It is trite learning that trespass is a wrong to possession. That is the wrong of which the appellant complained. She is not only entitled to compensation for the invasion of her possession, but could have regained her possession if she had been dispossessed by the respondent. There is no warrant for the proposition that she cannot have the possessory remedy of damages unless she proved title.”

The same principle appears in NKYI XI VS. KUMAH [1959] GLR 281, where Van Lare JA held that mere possession is sufficient to maintain an action for trespass against anyone who cannot prove a better title. In MAJOLAGBE VS. LARBI [1959] GLR 190; in SERAPHIM VS. AMUA-SAKYI [1962] 1 GLR 328; in SUMMEY VS. YOHUNO [1962] 1 GLR 160, Crabbe JSC spoke of the “monstrous principle” that a Plaintiff in continued and undisturbed possession might not be ousted by a Defendant setting up a fictitious title. See also MENSAH VS. PENIANA [1972] 1 GLR 337; in FRANCE VS. GOLIGHTLY [1991] 1 GLR 74; and in OSEI (SUBSTITUTED BY) GILLARD VS. KORANG [2013-2014] 1 SCGLR 221 at 234. The judicial position is reinforced by Section 48 of NRCD 323, which presumes ownership from possession and from acts of ownership.

There is a qualification, and the Appellant is right to invoke it. Where the reliefs sought make title a live issue, as where a declaration or a perpetual injunction is claimed, the Plaintiff must prove title. In SAGOE & ORS. VS. SSNIT [2012] 2 SCGLR 1093, Gbadegbe JSC held that, the claim having included damages for trespass and an order of perpetual injunction, the reliefs sought necessarily required title to be determined. And where a defendant in trespass pleads ownership or a better right to possession, the Plaintiff’s title is put in issue: ISSIW VS. WIABU (1970) CC 108.

However, that qualification does not fit this case, for two reasons. First, the reliefs claimed were damages only. There was no claim for a declaration of title, none for recovery of possession, and none for a perpetual injunction. The principle in SAGOE is distinguishable precisely upon the feature which was decisive there and absent here. The Appellant’s submission that the Respondent’s pleading of ownership was enough to put title in issue confuses the narration of how a Plaintiff came to be in possession with the assertion of a claim requiring adjudication of title. A Plaintiff suing in trespass may recite his root of title as part of his narrative without thereby converting a possessory action into a proprietary one.

Secondly, and decisively, the rule in ISSIW VS. WIABU (supra) protects a Defendant who claims under or by the authority of a better title. It affords no protection to a stranger. The principle is stated in BUCKNOR VS. ESSIEN [1963] 1 GLR 426 at 431, where Crabbe JSC said:

“Any possession is a legal possession against a wrongdoer, and the wrongdoer cannot set up the title of a third party to excuse his trespass unless he claims under or by authority of such person.”

The Appellant claims under nobody. It does not assert that the land is its own. It asserts that the land belongs to the State, or, upon its own pleading at paragraph 21 of the Statement of Defence, that “the bona fide owner of the land” is Mr. Teodoro Martinez Montero. It led no evidence that the State authorised the destruction of the Respondent’s buildings. It led no evidence that Mr. Montero authorised it, or requested it, or knew of it. Its own witness said the Assembly entered pursuant to its planning and security mandate, that is to say, in the purported exercise of statutory powers which, as we have held, it did not exercise lawfully.

A Defendant who cannot say “I entered by the authority of the true owner” cannot invoke the true owner’s title to defeat a possessor. That is the whole point of BUCKNOR VS. ESSIEN [1963] 1 GLR 426, and it is an answer to Grounds 9 and 10 which do not depend upon our resolving who in truth owns this land, a question which, we emphasise, is not before us and upon which we express no opinion whatever.

Further, the Appellant’s position upon ownership has not been consistent. In one breath the land is State land never divested; in the next it is Mr. Montero’s by an assignment from the Official Liquidator of the Bank for Housing and Construction, plotted at the Lands Commission as No.AR 150020. These propositions cannot both be wholly true, and a litigant who advances both is in a weak position to reproach his opponent for uncertainty as to title.

(e) The Court of Appeal and adverse possession

The Court of Appeal, at pages 729 to 730 of Volume 2, went further than the case required. It reasoned that, the Respondent having been permitted to erect permanent structures, a case of adverse possession had been made out in his favour to the detriment of the State; and it invoked Section 30 of the Limitation Act, 1972 (NRCD 54) and MEMUNA MOUDY & ORS. VS. ANTWI [2003-2004] SCGLR 967 for the proposition that the Republic is affected by the law of limitation as if it were a private person, concluding that the Appellant could not proceed to evict the Respondent.

With all due respect to the Learned Justices of the Court of Appeal, we do not endorse that reasoning.The question whether, and in what circumstances, time may run against the Republic in respect of lands compulsorily acquired by executive instrument is a question of considerable public importance. It touches the security of the public estate and the integrity of compulsory acquisition. It did not arise for decision in this case neither was it the subject of full argument in the court below. The record was not directed to it; and the State was not a party and was not heard.

We need to emphasise for the avoidance of doubt that nothing in this judgment is to be taken as approving the view that this Respondent acquired, by possession, any interest in this land as against the State. That question remains open, and will fall to be decided in a case in which it properly arises and belongs and in which those affected are represented.

The excursus was, however, unnecessary to the result, and its excision leaves the judgment below standing. The Respondent did not need adverse possession. He needed possession. And of possession there was never any doubt. The Appellant had itself licensed him to build, and found him on arrival with a completed dwelling house, a fence wall enclosing six plots, five metal gates, two boreholes and a working factory.

We answer Question Three by holding that the Appellant’s entry and destruction constituted an actionable trespass, and that the Respondent was under no obligation to prove title. Consequently, Grounds 9 and 10 also fail.

QUESTION FOUR: PROOF AND MEASURE OF DAMAGES

(a) The Appellant’s central proposition

The Appellant’s case upon damages rests upon a single proposition, repeated upon almost every page of its Statement of Case and again throughout its Reply: that special damages mean money already expended and receipted; that they “live in the present and not in the future”; and that a claimant who cannot produce receipts for expenditure actually incurred must fail. It relies upon BOHAM VS. EVONNA [1992] 1 GLR 287, AHENKORA VS. MUBARACK [1972] 2 GLR 429, and a dictum of Twum JSC in ATTORNEY-GENERAL VS. FAROE ATLANTIC CO. LTD. [2005-2006] SCGLR 271.

The proposition, so stated, is too wide, and it is necessary that we correct it. The decisions in BOHAM VS. EVONNA and AHENKORA VS. MUBARACK (supra) were each concerned with the estimated cost of repairs to a damaged motor vehicle. In each, the thing damaged survived; the claimant had not repaired it; and he sought the estimated cost of a repair which he might or might not carry out. The observation of Kpegah J (as he then was) observation that special damages are not concerned with expenses yet to be made is entirely sound in that setting. The loss had not crystallised, the repair might never be effected, and to award the estimate would have been to speculate.

Where, however, the thing is not damaged but destroyed, the position differs in kind and not merely in degree. The loss crystallises at the moment of destruction. It is measured not by what the owner has since spent but by what he has lost. The governing principle is restitutio in integrum. The claimant is to be restored, so far as money can do it, to the position he occupied before the tort. Where property is completely destroyed, the measure is its value at the time and place of destruction. That principle is not displaced by anything in the Ghanaian authorities, and it is the principle upon which the case of ROYAL DUTCH AIRLINES (KLM) VS. FARMEX LTD. [1989-90] 2 GLR 623, which the Appellant itself cites, estabishes.

It is also the principle which this Court applied in ANKOMAH, where the proforma invoice of an accredited distributor was identified as evidence of the current sale price, that is to say the replacement value, of the property concerned. A rule admitting only receipts for money already spent would render that passage unintelligible, for a man whose goods have been destroyed and who has not replaced them can have no such receipts.

We would go further. The Appellant’s rule would produce a result which no system of law especially in the common law jurisdiction could countenance. A man whose house is unlawfully demolished and who lacks the means to rebuild it would recover nothing; his wealthier neighbour, able to rebuild at once, would recover in full. The measure of a wrongdoer’s liability would vary inversely with the poverty of his victim. We do not accept that this is the law.

The true rule as to the particularity of proof is that stated by Bowen LJ in RATCLIFFE VS. EVANS [1892] 2 QB 524: that the character of the acts which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage ought to be stated and proved. As much certainty and particularity must be insisted on, as is reasonable, having regard to the circumstances and to the nature of the acts by which the damage is done. It is an ancient and salutary principle, and it answers the Appellant’s argument directly. A claimant cannot be required to produce a class of proof which the wrongdoer’s own act has made impossible.

It follows that Exhibits ‘F’ and ‘Q’ series were not merely admissible; they were the appropriate evidence. To prove the value of a destroyed building, a bill of quantities prepared by a qualified professional and verified by a licensed surveyor is precisely what the case requires. To prove the value of destroyed blocks manufactured on site, a current quotation from a block manufacturer is precisely what the case requires.

(b) Whether special damages were proved: Ground 5

In NORGBEY & ANOR. VS. ASANTE & ANOR. [1992] 1 GLR 506 at 516-517, Acquah J (as he then was) explained that a successful proof of special damage involves, first, proof of the subject-matter of the special damage, and secondly, proof of the value claimed for that subject-matter; and that: “…in a claim for special damages where the claimant succeeds in proving both the subject matter and the value, he is entitled to be awarded the value he claims. But where he succeeds in proving only the subject matter but fails to prove the value of the subject matter, the claimant is not to be denied any compensation. In such a situation, the claimant is entitled to be awarded some value for the damaged subject matter.” That analysis was adopted by this Court in ANKOMAH and we apply it.

Proof of the subject-matter. Upon this the evidence was overwhelming, and a great deal of it came from the Appellant itself. PW1, the mason who built the structures, described what he built and when. The building permit, Exhibit ‘E’, was issued by the Appellant. The Appellant’s own Exhibits ‘3’ and ‘3A’ acknowledge a walled property at Madina Redco. DW1 admitted under cross-examination that the Respondent had a block factory upon the land and buildings upon the land. Exhibit ‘H’, the Municipal Chief Executive’s own petition, records that the remaining structure belonging to the police officer was removed. Photographs of the site before and after the exercise were tendered. The subject-matter was, in our judgment, proved several times over.

Proof of value. The Respondent called PW2, who attended at the site, saw the debris and the damaged materials, was furnished with the drawings and dimensions, and prepared a bill of quantities costing the completed dwelling house, two stores and fence wall at Six Hundred and Seven Thousand, Nine Hundred and Twenty-Two Ghana Cedis, Seventy-Nine Pesewas (GH¢607,922.79). Under cross-examination on 3rd June 2021 it was suggested to him that the contents of his witness statement were matters of which he had no personal knowledge. He answered: “That is not correct my Lord, before I prepare the Bills of Quantities I went to the site and I saw properties that were demolished. I saw building materials that were also damaged and so it is not correct that witness statement information that were fed to me by my client.” The testimony of PW3, a licensed surveyor, verified the quantities and the unit rates and certified the document. For the movables, the Respondent tendered current quotations from four named suppliers.

What is striking about this trial is what the Appellant did not do. It did not challenge a single quantity in the bill. It did not challenge a single unit rate. It did not suggest that the dwelling house was smaller than described, that the fence wall was shorter, that the stores were fewer or that the rates were above market. It called no quantity surveyor, no valuer and no supplier. Its entire case upon quantum was that the documents were legally inadmissible.

Having elected to fight upon admissibility alone, and having failed upon admissibility, the Appellant cannot now complain that the figures went unexamined. It had the opportunity to examine them and declined it. As Ollenu J (as he then was) observed in MAJOLAGBE VS. LARBI (1959) GLR at 192, an averment is proved by producing evidence of facts and circumstances from which the court can be satisfied that what is averred is true. That is what the Respondent did. The Appellant, by contrast, contented itself with a denial and a legal objection; and a denial, however emphatic, does not displace evidence.

We agree that the Learned Trial Judge’s reasons upon quantum were shortly expressed. It would have been better if he had set out in terms why he accepted the bill of quantities, item by item or at least in its principal components. But the brevity of reasons is not the same thing as the absence of reasons, and the question for us is whether the conclusion was open upon the evidence. It plainly was. Where a quantification is placed before a court by a qualified witness, verified by a second, and left wholly unchallenged by the party against whom it is tendered, a judge who accepts it is not required to reason at length in order to explain why he has not rejected it. There was nothing to provoke that critical judicial exercise however desirable it might have been.

The Appellant complains that the sums awarded were the exact sums claimed, and describes this as “incredible” and as evidence of arbitrariness. We do not follow nor accept that contention and argument. Where a claimant particularises his loss, proves the subject-matter, adduces unchallenged evidence of value, and the tribunal accepts that evidence, the award will necessarily equal the sum proved. Exact correspondence is the ordinary consequence of accepted evidence. Had the judge awarded a different figure, chosen from nowhere, the complaint of arbitrariness would have had far greater force.

(c) “Replacement value”: Ground 7

Ground 7 asserts that by awarding “replacement value” the court below substituted a case different from that which the Respondent presented, contrary to DAM VS. J. K. ADDO & BROTHERS [1962] 2 GLR 200, BANGA VS. DJANIE [1989-90] 1 GLR 510 and KWAME VS. SERWAH [1993-94] 1 GLR 421. The ground in our view rests upon a confusion between a head of claim and a measure of assessment.

The Respondent’s claim was, and remained throughout, a claim in special damages for the destruction of identified property. “Replacement value” is not a separate relief which he might have claimed and did not. It is the yardstick by which the quantum of that very claim falls to be measured where the property is destroyed. When Oppong JA spoke of the “proximate replacement value of the properties destroyed”, his Lordship was not awarding a different relief; he was explaining how the relief claimed fell to be quantified.

The principle in DAM VS. ADDO (supra) is directed against the substitution of a wholly novel case incompatible with that which the party has put forward, so that a litigant is condemned without notice of the case he had to meet. Nothing of that character occurred in the instant case. The Respondent pleaded the destruction, particularised the items, tendered valuation evidence and was cross-examined upon it. The Appellant knew from first to last that it was being asked to pay for the value of what it had destroyed.

The case of MAHAMA VS. KOTIA [1989-90] 2 GLR 24 is directly in point and was rightly relied upon below. There the plaintiff sued for general and special damages for wrongfully entering her land and breaking down her building and surrounding wall, and the award included the replacement value of the building. The pattern of that case and of this one is the same, and we see no reason to doubt its correctness.

(d) Excessiveness and mitigation: Ground 6

An appellate court will interfere with an award of damages where it is so unreasonably high or so unjustifiably low as to represent a wholly erroneous estimate: KUBI VS. DALI [1984-86] 2 GLR 501; MUMUNI VS. AWUKU [2013-2015] 2 GLR 186. The Appellant has not brought itself within that principle. It has identified no item in the bill of quantities as overstated, no unit rate as excessive, and no figure of its own. An assertion that a sum is “whopping” or “outrageous” is not a demonstration that it is wrong. The sum is large because what was destroyed was substantial: a completed two-bedroom self-contained dwelling house, two stores, a warehouse, a fence wall enclosing six plots, five metal gates, two mechanised boreholes, a block-making plant with six moulds, a pavement-block machine, a concrete mixer, and a very large stock of blocks and materials.

In respect of mitigation we find that two answers are decisive. First, the burden. It is for the Defendant who alleges a failure to mitigate to plead it and to prove it. See the case of DELMAS AGENCY GHANA LTD. VS. FOOD DISTRIBUTORS INTERNATIONAL LTD. [2007-2008] SCGLR 748. The Appellant (Defendant in the proceedings) led no evidence of what steps were available to the Respondent, over what period, at what cost, or to what effect. It asserted only that others had vacated. An assertion in a written address is not evidence, and the burden was not discharged.

Secondly, the facts. The complaint is that the Respondent had six days’ notice after 6th May and failed to move some five hundred thousand blocks, a block-making plant, a pavement-block machine, a concrete mixer and a quantity of building materials. We find the criticism unrealistic upon its own terms, and in the circumstances of this case, we find it worse than unrealistic.

The Respondent did not spend those six days in idleness. On the day of the first entry he went to the site and produced his documents to the Director of Town and Country Planning. On the following day, he attended at the Appellant’s offices with his land certificate and building permit. He was received by the Municipal Chief Executive. And upon the Municipal Chief Executive’s own written account he was told that a committee would scrutinise his documents, and that the issues would be addressed when the exercise was completed, and that “he needed to exercise patience until he is invited by the committee.”

A public authority which tells a citizen to be patient and to await a committee to address a grievance cannot afterwards complain that he was impatient. The Appellant’s own conduct is the complete answer to its own submission. Had the Respondent removed his property in the face of that assurance, he might with equal force have been told that he had acted precipitately upon a matter still under consideration and to his detriment.

We note, finally, that the Appellant’s Reply asserts that the Respondent “simply felt he is a police officer and could intimidate the defendant with his uniform.” There is no evidence upon the record to support that assertion, it was never put to the Respondent in cross-examination, and it has no place in a submission to this Court. It is a mere red herring most probably intended to attract underserved sympathy which judicial decisions are not founded upon. We reject that contention without qualification.

We answer Question Four by holding that the Respondent proved his claim. That the courts below applied the correct measure, and further that the award is not open to challenge as excessive. Grounds 5, 6 and 7 must fail and as with the other grounds already considered, we dismiss them.

QUESTION FIVE : THE BLOCK FACTORY AND PUBLIC POLICY

The Learned Trial Judge dismissed relief (iv), the claim for loss of earnings from the block factory, holding that the business was illegal because the permit was for a residential property, and that the Respondent could not be permitted to benefit from an illegal operation. Yet by relief (iii) he awarded the sum of One Million, Two Hundred and Twelve Thousand, Two Hundred and Fifteen Ghana Cedis (GH¢1,212,215.00) for the very blocks, moulds, machines, mixer and raw materials by which that business was carried on.

The Appellant has capitalized on this and submits that the two holdings cannot stand together as the court condemned the enterprise with one side of its mouth and rewarded it with the other, and that this amounts to a judicial endorsement of illegality contrary to the ratio in NETWORK COMPUTER SYSTEMS LTD. VS. INTELSAT GLOBAL SALES & MARKETING LTD. [2012] 1 SCGLR 218. There is force in the point as a matter of presentation, and had the trial judge expressed himself more fully, the appearance of inconsistency might have been avoided. On analysis, however, it elides a distinction which the law has long drawn and is permissible.

The maxim ex turpi causa non oritur actio bars a claim which the claimant can establish only by relying upon his own illegality. It does not divest an owner of the ownership of his goods, and it does not confer upon strangers a liberty to destroy them. The question of title to, and ownership of land is radically different from the damages that may be occasioned from the destruction of both fixed and movable assets on the land by a presumed owner without due process.

Relief (iv) was a claim for the profits of the enterprise. To assess it, the court would have had to take an account of the earnings of an unpermitted business and award them as of right. That claim depended, root and branch, upon the operation of the factory. The Plaintiff could not have proved a cedi of it without proving the very trading which the Learned Trial Judge held he ought not to have carried on. The Learned Trial Judge was correct to refuse it.

Relief (iii) was a claim of an entirely different character. It was a claim for the value of chattels, being blocks, moulds, machines, cement, sand, timber, iron rods and nails, which belonged to the Respondent and which the Appellant destroyed. To make out that claim the Respondent had to prove that the goods were his, that they were upon the land, and that the Appellant destroyed them. He needed to rely upon no illegality of his own. The only illegality upon which that claim turned was the Appellant’s.

The distinction is that drawn in BOWMAKERS LTD. VS. BARNET INSTRUMENTS LTD. [1945] KB 65, where a claimant recovered in conversion for goods delivered under hire-purchase agreements which themselves contravened Wartime Orders, because his claim rested upon his title to the goods and not upon the unlawful agreements. There, Du Parcq LJ observed that, a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear from the pleadings or the evidence that the chattels came into the Defendant’s possession by reason of an illegal contract. The principle applies with at least equal force where the Defendant has not merely converted the goods but destroyed them.

Therefore, ownership of a chattel is not forfeited by a planning contravention. If a man builds without a permit, or departs from the terms of the permit he has, Parliament has said what shall follow. Section 106(7) of Act 936 makes contravention of the terms of a permit an offence punishable by a fine of not less than two hundred and not more than four hundred penalty units, or by imprisonment, or both, with a continuing penalty for each day of contravention after written notice. Sections 106(3) to (6) prescribe the procedure by which the offending structure may be removed while Section 106(6) entitles the Assembly to recover the cost of removal as a debt.

Parliament thus armed the Assembly with a prosecution, a procedure and a right of recoupment. It did not arm it with a power of summary destruction, neither did it declare the offender’s goods forfeited. Where a statute creates an offence and prescribes its punishment, the courts will not add a further and uncovenanted sanction of forfeiture.

The point is illustrated by RANDOLPH VS. ACCRA CITY COUNCIL [1975] 2 GLR 198, where a council demolished a building without first obtaining the magisterial order which the statute required. The act was held wrongful and the Plaintiff entitled to damages, notwithstanding that the Plaintiff had failed to repair the building as she had been required to do. The unlawfulness of the conduct of the owner in failing to repair the building, did not license the unlawfulness of what the council did.

There is a further and more general consideration which we cannot pass over. The Appellant’s argument, carried to its conclusion, is that a citizen who breaches a planning regulation places his property outside the protection of the law, so that a public authority may destroy it at will and without answering for it. That is tantamount to arbitrariness on lawless.

We reject that proposition without hesitation as it is preposterous in a democratic society. It would convert a regulatory contravention into a forfeiture, and would leave the citizen without remedy for the destruction of property which remained, in law, his own. The rule of law does not admit of self-help of that order by the organs of the State. It is precisely because the citizen may be in the wrong that the statute requires notice, an opportunity to show cause, and a month within which to comply. Those requirements exist for the guilty as much as for the innocent. Indeed they exist principally for the guilty, since the innocent will rarely be threatened with demolition at all.

The Learned Trial Judge’s two holdings were therefore not inconsistent as urged on this court by the Appellant. He declined to enforce the fruits of an unpermitted business, and he compensated the destruction of goods lawfully owned. That is a coherent and, in our respectful view, a correct application of principle. Consequent upon this affirmation, we answer Question Five by holding that the award of relief (iii) is not vitiated by the finding upon relief (iv).

THE OMNIBUS GROUND

Ground 4 was argued as a compendium of the matters already canvassed, and it is unnecessary to repeat what we have said. Discharging our duty under TUAKWA VS. BOSOM (supra) and numerous other authorities on the issue to look again at the whole record, we are satisfied that the conclusions of the courts below are not merely supported by the evidence but are the only conclusions which the evidence reasonably permits.

The Respondent was in possession under a permit granted by the Appellant itself. The Appellant entered twice within six days and destroyed what it found. It served no notice under (NRCD 240) and none which complied with Section 106 of Act 936 or Regulation 20 of L.I. 2407. Its own witness could not name a single person served nor produce a single proof of service, and conceded that no such document existed. Its own Municipal Chief Executive recorded in writing that the Respondent had been told to be patient and to await a committee which never sat. Its only show-cause notice was served nine days after the site had been cleared. It offered no valuation, no counter-figure and no expert of its own.

When measured against the questions posed in FRANK ODURO VS. GRAPHIC COMMUNICATIONS GROUP LTD., (supra) the courts below did not fail to consider vital evidence; did not rely upon irrelevant or inadmissible material. Neither did the courts below misallocate the burden of proof nor fail to evaluate the evidence as a whole. There is no misapplication, misapprahension nor any error within the ACHORO VS. AKANFELA principles which would entitle this Court to disturb concurrent findings. We accordingly dismiss Ground 4 as well.

A MATTER ARISING UPON THE FIGURES

In the discharge of our judicial duty as the final court, we notice a discrepancy which neither party has addressed and which we raise of our own motion. Relief (i) as endorsed upon the Writ, was repeated at paragraph 18 of the Statement of Claim, and was awarded, in the sum of GH¢607,992.79. The Bill of Quantities, Exhibit ‘Q’ series, and the evidence of PW2 give the cost of the completed two-bedroom self-contained apartment, two stores and fence wall as GH¢607,922.79. Both figures recur, inconsistently, in the judgments below and in the Statements of Case of both parties. The difference is Seventy Ghana Cedis,(GH¢70.00) and has every appearance of a transposition of digits.

Since the sum proved in Exhibit ‘Q’ series is GH¢607,922.79, then the entry of judgment in the sum of GH¢607,992.79 is an accidental slip, correctable in the High Court upon the application of either party under the slip rule pursuant to Order 16 Rule 10 of C.I.47, we express no conclusive view, and nothing in this judgment precludes such an application.

OBSERVATIONS

Before we come to our disposition we think it right to make three observations of general application, in the hope that they may be of assistance beyond this case. First, as to records of service. This appeal has turned in substantial part upon the inability of a Municipal Assembly to prove that it served the notices which the law required it to serve. Its witness could not name the persons served, produced no endorsement, no acknowledgment, no photograph of a notice affixed to premises, and no service book. Regulation 20 of L.I. 2407 permits service either personally or by posting the notice upon the premises. Either method is capable of being evidenced.

An Assembly which is about to demolish a citizen’s house should be able to demonstrate, months or years later and to the satisfaction of a court, exactly what was served, upon whom, when and by what means. We commend to District Municipal and Metropolitan Assemblies the keeping of a proper register of statutory notices, recording those particulars and retaining photographic evidence of affixture. Such a register costs little to keep. Its absence cost the Appellant this appeal.

Secondly, as to the invocation of the judicial oath. The Appellant reminded us, citing Date-Bah JSC in EX-PARTE NATIONAL LOTTERY AUTHORITY (supra), that no judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament, and that the judicial oath enjoins judges to uphold and enforce the laws of the Republic. We accept that reminder, and we have acted upon it. But it cuts in more directions than one. The Acts of Parliament which have been most conspicuously breached in this matter are Section 106 of Act 936, Regulation 20 of L.I. 2407, and, upon the Appellant’s own alternative case, Section 3(1) of (NRCD 240) was breached by the Appellant. A litigant who invites a court to enforce the statutes of the land must be prepared for the court to enforce those which bear upon his own conduct.

Thirdly, as to the conduct of appeals. We repeat what we said at the outset regarding the length and repetition of the processes filed. A Statement of Case of one hundred pages and a Reply of seventy, the latter substantially reproducing the former, do not assist an appellate court. Prolixity obscures the good points along with the bad. Counsel would serve their clients better by selecting their strongest grounds and arguing them once, well.

CONCLUSION AND DISPOSITION

We return to where we began. The Appellant is a creature of statute. Every power it possesses is because Parliament conferred it, and it possesses each such power only upon the terms upon which it was conferred. The enabling Act which created the Assemblies gives them ample authority to control development, to abate nuisance and to remove unauthorised structures. The Public Lands (Protection) Act 1974 (NRCD 240) repealed by Section 282(1) (1) of the Land Act 2020 (Act 1036) which is now the regulating statute gave it authority to eject encroachers from public land. This authority required notice first. It gave the citizen an opportunity to be heard, or at the very least to remove his goods. Those requirements are conditions upon the exercise of the power, not obstacles to good administration.

In the instant appeal before us, the Appellant took none of the steps required of it. It entered upon the Respondent’s land twice within six days, having in the interval assured him through its Chief Executive that his documents would be considered and asked him to be patient. It destroyed a completed dwelling house, two stores, a warehouse, a fence wall, five gates, two boreholes, a block-making plant and a very large stock of building materials. It kept no record of what it destroyed, and served its “show-cause notice” nine days afterwards. When sued, it defended not upon the footing that it had acted lawfully, but upon the footing that its opponent’s documents bore no stamps, that his quantity surveyor held the wrong licence, and that his solicitor’s estimate had been too modest.

We have considered each of those arguments upon its merits, and at length, because a public authority is as much entitled to the protection of the law as any other litigant, and because a point of statutory construction does not become a bad point merely because the party taking it has been wrongful. Having considered them, we find that, not one of them is sound. Accordingly, this appeal fails in its entirety and same is accordingly dismissed. Save for our disagreement with the question of title to the land which the Court of Appeal strayed into, and which we find as inconsequential to the determination of the appeal, we wholly affirm the concurrent judgments of the High Court and the Court of Appeal dated 18th March 2022 and 6th February 2025 respectively.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

COUNSEL

MOHAMMED AWAL ALHASSAN ESQ. FOR THE DEFENDANT/APPELLANT/ APPELLANT.

JAMES MENSAH KULLEY ESQ. FOR THE PLAINTIFF/RESPONDENT/

RESPONDENT WITH HIM PATIENCE ACKAH ESQ.