MAHAMA vs. KOTIA AND OTHERS [1989]DLCA636

Date	1989-06-15
Suit No.
Citation No.	[1989]DLCA636

AMPIAH JA

LAMPTEY JA

ESSIEM J.A.

S. KWAMI TETTEH FOR THE DEFENDANTS-APPELLANTS.

LUGUTERAH (WITH HIM CUDJOE) FOR THE PLAINTIFF-RESPONDENT.

[1989]DLCA636
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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>vs. <o:p></o:p>KOTIA AND OTHERS<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 24<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15
JUNE 1989<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. KWAMI TETTEH FOR THE DEFENDANTS-APPELLANTS.<o:p></o:p>

LUGUTERAH (WITH HIM CUDJOE) FOR THE
PLAINTIFF-RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMPIAH, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF AMPIAH J.A.<o:p></o:p>In her
action before the High Court, Tamale the plaintiff claimed against the
defendants jointly and severally ¢2,000,000 general and special damages for
wrongfully entering her land and breaking down her building and the surrounding
walls. On 3 July 1985 the learned trial judge gave judgment for the plaintiff
and awarded her a total of ¢950,000 with costs of ¢100.00 against the
defendants. It is against this decision that the defendants have brought this
appeal.<o:p></o:p><o:p>&nbsp;</o:p>In view of
the stand taken by counsel in the trial Court, the only issue which was set
down for trial was whether or not there was any justification for the
demolition of the plaintiff’s building. On that issue the learned trial judge
found that there was no such justification as the defendants had no proper
authority to do so. In this appeal, counsel for the appellants has honourably
conceded that point and has restricted himself to the ground that, “The quantum
of ordinary and exemplary damages awarded were excessive and/or wrong in law.”
He also argued that the cost awarded was unreasonable.<o:p></o:p><o:p>&nbsp;</o:p>The
damages of ¢950,000 awarded by the learned trial judge consisted of: (a)
¢594,00 as cost of replacement value of the building; (b) ¢300,00 as exemplary
damages for trespass, and (c) ¢56,000 for the iron rods converted by the
defendants to build the Yendi Mosque. Counsel for the respondent has conceded
in this appeal that since the cost of iron rods was not specifically proved, it
was wrong for the trial judge to have awarded ¢56,000 as special damages for
the iron rods. I am satisfied that the learned trial judge erred on this and I
would accordingly set aside that amount.<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of this appeal counsel for the respondent asked for leave to amend his
claim to read “¢594,000” instead of ¢500,000 being the replacement value of the
building which was demolished by the defendants. Leave was granted since the
evidence on record supported the claim for ¢594,000. I must at this stage
express my dissatisfaction at the way counsel for the parties at the court
below flooded the proceeding with several irrelevant applications for
amendments. Happily the learned trial judge was unperturbed. He looked at the
pleadings which were lawfully filed and gave his judgment accordingly.<o:p></o:p><o:p>&nbsp;</o:p>An
appellate court may interfere with an assessment of damages by the court below,
but it would not do so merely because its members would themselves have awarded
a different sum. It will do so if the award is “‘out of all proportion to the
circumstances of the cash’ (that is, if it is far too high or far too low)”—per
Lord Denning M.R. in Ward v. James [1966] 1 Q.B. 273 at 301, C.A.<o:p></o:p><o:p>&nbsp;</o:p>Where
goods or any property is destroyed by the wrongful act of the defendant, the
plaintiff or owner is normally entitled to the market value of the goods or
property in order that he may be put in a position to replace them and if there
is no market value the tendency is to look to the cost of replacement: see
Clyde Navigation Trustees v. Bowring (1929) 34 L.I. L.R. 319. In the instant
case, the learned trial judge awarded the plaintiff ¢594,000 as the cost of
replacement. This was based on an assessment of the premises and walls broken
down by the defendants, as contained in exhibit F. In coming to this conclusion
in his valuation of the property, the valuer, a Mr. Dudu-Anquah, had taken into
consideration that the property had been assessed in 1975 at ¢5,600 (see
exhibit 6). As at 1975, the valuer had taken into consideration not the cost as
at 1973 but the cost as at 1975; he took into consideration the rising cost of
building materials. And on the sam</main>