FREDERICK MENSAH VS. DIRECTOR NEWMONT AND NEWMONT GOLD GH. LTD. [2012]DLCA3183

Date	2012-11-15
Suit No.	CIVIL APPEAL NO. H1/72/2012
Citation No.	[2012]DLCA3183

A. ASARE-KORANG J.A (PRESIDING)

V. OFOE J.A.

C.J. HONYENUGA J.A

DR. J.E. OPPONG FOR THE PLAINTIFF/RESPONDENT

MR. SEY &CO. LEGAL PRACTITIONERS FOR THE DEFENDANT/APPELLANT

[2012]DLCA3183
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													<main id="main" class="content" style="min-height: 60rem" >FREDERICK MENSAH<o:p></o:p>vs.<o:p></o:p>DIRECTOR NEWMONT AND
NEWMONT GOLD GH. LTD.<span lang="EN-GB" style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif; font-variant-numeric: normal; font-variant-east-asian: normal; font-variant-caps: small-caps; color: rgb(0, 176, 240); letter-spacing: 0.25pt;"><o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. H1/72/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 15TH NOVEMBER, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>DR.
J.E. OPPONG FOR THE PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
SEY &amp;CO. LEGAL PRACTITIONERS FOR THE DEFENDANT/APPELLANT<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;
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A.
ASARE-KORANG J.A (PRESIDING), V. OFOE&nbsp; J.A.,
C.J. HONYENUGA J.A<o:p></o:p>

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

</div><o:p>&nbsp;</o:p>OFOE, J.A.<o:p></o:p>The defendant acquired a mining
lease from the government of Ghana in Ad ausena in the New Abirem District of
the Eastern Region. By law it is obliged to pay compensation to persons,
including farmers, who found themselves on the acquisition area and were to be
displaced. The plaintiff, a farmer, happens to be one of these persons. It is
the accepted practice that the farmer affected, in this case the plaintiff, the
chief farmer of the area, officials of the defendant company and an officer of
the Land Valuation Board approves of the type and quantities of the crops found
on the affected farmers land. What was found on plaintiff's land and signed by
these personalities was tendered as exhibit A. The dispute between the
plaintiff and the defendant in the trial court and indeed in this court is in
respect of some 5000 nursery seedlings which plaintiff claims he is entitled to
be compensated for. The defendant does not intend paying the plaintiff this
demand because it is its case that there is an accepted mode of payment for
seedlings which is not what the plaintiff is demanding. The defendant contends
that the payment is on acreage basis. The matter had to go to the Nkawkaw High
Court for determination.<o:p></o:p>By his writ of summons, which
was home brewed i.e. issued by the plaintiff personally, he asked for an order
from the court directed at the defendant to pay compensation to him as per the
valuation report of his farm.<o:p></o:p>Defendants' case on the
pleadings is that it is true that they found 5000 seedlings and other crops
belonging to the plaintiff on the land. These were duly recorded and that is
what is recorded in exhibit A. They were to facilitate the movement of the
seedlings to any place of choice for the plaintiff but he refused insisting he
was entitled to be paid compensation for these 5000 seedlings which are not
crops planted on the land.<o:p></o:p>The trial court agreed and gave
him judgment directing the defendant to pay the plaintiff compensation for all
crops including the 5000 seedlings, rejecting the acreage mode of payment
offered by the defendant.<o:p></o:p>The trial judges reasoning for this
conclusion can be noted under two heads. Firstly that it was not right for the
second defendant to object to the planting of 5000 seedlings on the plaintiff's
5 acre piece of land on the grounds that the seedlings were too many to occupy
that size of land. Such objection the trial judge found unreasonable because it
was the view of the trial court that it was the plaintiff's right to decide on
the most economic use for his land and not the defendant. Secondly the purpose
of the stock taking was to identify and record the crops growing on plaintiff's
land and since counsel for the defendant in his address admitted that the 5000
seedlings are crops then the seedlings qualify to be paid compensation like any
other crop.<o:p></o:p>The defendant does not agree
with the trial judge and has appealed against the judgment on the grounds that
the judgment is against the weight of evidence and that the order of the trial
court that it pays compensation for all the 5000 seedlings is arbitrary and has
no basis in law or the facts.<o:p></o:p>The authorities are now agreed that where a trial court took into
consideration the demeanor of the witnesses before him or her as well as the
substance and quality of oral and documentary testimonies before giving
judgment then an appellate court has no power to disturb or interfere or
reverse the judgment of the trial court. But then it is also recognized that an
appellate court may reverse findings of fact made by a trial court based on
established facts. It may justifiably interfere with a finding of fact by a
trial court where the finding is inco</main>