MENSAH VRS. PERSEUS MINING (GHANA) LIMITED (E12/28/2017) [2024] GHAHC 479 (30 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON TUESDAY THE 30TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E12/28/2017 KOFI MENSAH - PLAINTIFF VRS PERSEUS MINING (GHANA) LIMITED - DEFENDANT JUDGMENT This suit has been instituted against the Defendant Company for the following reliefs: a. An order directed against the Defendant to pay to the Plaintiff the current value of a four (4) bedroom uncompleted house at lintel stage which has been destroyed by the Defendant’s blasting operations at its Fetish mine site. b. General Damages. c. Cost for instituting the present action. The facts upon which the above prayers are made are that, sometime in 1990 the Plaintiff was given a parcel of land by his family to develop into a dwelling house. The Plaintiff upon such grant from his family cultivated oil palm trees on the land for some time while he made arrangements to develop the land. According to the Plaintiff, his family, being natives of Ayanfuri, own lands in the town which have variously been reduced into farms and dwelling houses. The Plaintiff acknowledges that the Defendant is a holder of a mining lease at Ayanfuri. Due to the use of explosives in its activities, there are mandatory statutory precautions which requires a minimum safety distance of five 1 hundred (500) meters between a person/civil works and installation and the area where the explosives are being used. By reason of this, the Chief Inspector of Mines demarcated the 500-meter area to be affected by the Defendant’s blasting operations in the Eastern Side Project (Fetish) Mining Area of the Defendant’s concession. The Plaintiff says that the Defendant declared a moratorium in the affected area and notified all structure or crop owners within the affected area to halt further developments and yield vacant possession of their properties for payment of compensation. After the declaration of the moratorium, the Defendant sent its officials to undertake a survey of all the properties in the impact zone. To the utmost surprise of the Plaintiff, no official of the Defendant approached him to undertake a survey of his crops for purposes of compensation nor gave him any indication as to whether his property would be affected by their blasting operations. The Plaintiff, upon realising the properties of most of his neighbours had been valued, personally went to the office of the Defendant at Ayanfuri where he met one Jonathan, an officer of the Defendant Company, who stated that the survey team which was still on the ground undertaking the survey would come to him for the survey of his property if same would be affected. After about a year of follow ups and inquiries at the Defendant’s office at Ayanfuri had been futile, the Plaintiff proceeded to clear his land and started developing same because the Defendant had refused to undertake a survey on his property thus, to all intents and purposes, his property would not be affected by their mining activities. The Plaintiff built to the lintel level with no reaction from the Defendant till sometime in November 2013 when officials of the Defendant left a letter authored and signed by one Evelyn Gyamfi-Hassan alleging that the Plaintiff was developing his land post-moratorium without their permission hence he would not be paid compensation for the new structure. The Plaintiff 2 immediately ordered his workmen to stop construction and went to confront the said Evelyn Gyamfi-Hassan as to when his property had been declared to be covered by the moratorium and thus inspected and valued for compensation. The Plaintiff states that several checks by the Defendant in his presence and that of witnesses revealed that his property had not been valued. Therefore, the said Evelyn Gyamfi-Hassan told the Plaintiff that in spite of their mistake, they would only pay for the value of the land and the uprooted trees and building materials but not the cost of the building. The Plaintiff rejected this offer and insisted on payment of the cost of the building. Evelyn Gyamfi-Hassan then intimated to the Plaintiff that he either accepts the offer as it stands or goes ahead with his development as they were unwilling to pay for the cost of the building at the time. The Plaintiff requested that the aforementioned offer by the Defendant be put in writing to enable him decide on his next course of action but the Defendant refused. This notwithstanding, the Plaintiff did not go back to complete his building. Sometime later, the Defendant put up a mesh wall to demarcate its impact zone and that the demarcation included the Plaintiff’s uncompleted structure. The Plaintiff further avers that the Defendant has started its blasting operations and this has cracked wide open the front pillars and corridors of his structure. The Plaintiff states that the Defendant, by its activities, is destroying his structure without payment of any compensation to him contrary to law. On the other hand, the case of the Defendant is that after the moratorium was declared for the eastern side mining area on 14th February, 2012 the only structure on the plot at the time was one Sampson Afful’s uncompleted structure and the remaining part of the plot was covered with crops. The 3 Defendant therefore duly paid compensation for the crops on the plot to Sampson Afful. Whiles negotiation and payment of compensation were ongoing, the Defendant continued to caution, both verbally and in writing, the community to avoid building or upgrading any structure within the mining area. However, approximately a year after the declaration of the moratorium, the Defendant received information that the Plaintiff had started building on the same plot recorded as belonging to Sampson Afful. Its officers verbally advised the Plaintiff to stop developing the land but all to no avail. The Defendant formally wrote to the Plaintiff to warn him of the consequences of his action but again, the Plaintiff failed to adhere. The Defendant states that the Plaintiff’s structure is an illegal post moratorium development and although it tried several times to relay same to the Plaintiff, it was to no avail. The Defendant fenced the fetish mine boundary and erected warning signs for trespassers to keep out of the mine. Further, a demolishing notice was issued to the Plaintiff for him to salvage any material that he wanted from the structure but he refused to do so. In reply to the case of the Defendant, the Plaintiff states that Sampson Afful’s land abuts his own plot of land and thus share a common boundary which is delineated by oil palm trees. In respect of the caution alluded to in the Defendant’s case, the Plaintiff states that those who were cautioned not to develop their properties were those whose properties had been surveyed by the Defendant’s survey team as being within the impact zone and not the entire community as stated by the Defendant. The Plaintiff reiterated that he personally went to the Defendant’s office to invite them to undertake the survey of his property but they ignored him hence to all intents and purposes, his plots fell outside the impact zone. The Plaintiff further stated that at the Defendant’s office, he was informed by the said Evelyn 4 that the Defendant had assigned numbers to all the properties which had been surveyed and valued but her checks from the system revealed that the Plaintiff’s name was not in the system neither had any number been assigned to his plot. The Plaintiff admits he was informed his plot had been listed as belonging to one Sampson Afful per their system but he refuted this assertion and informed Evelyn that he shared a boundary with Sampson Afful and thus his property is distinct from that of Sampson’s. The Plaintiff stated that the Defendant sent two officers to verify this fact and it was revealed from the documents produced by the said Sampson that his plot was different from that of the Plaintiff’s. The Plaintiff further denies being told to salvage any materials from the land. Directions were taken on 20th February, 2017 and the issues as set out in the Application for direction were set down as issues for trial. However, upon reading the pleadings in its entirety I am satisfied that the issues germane to the case are 1. Whether or not the Plaintiff’s land is distinct from that of Sampson Afful and thus entitled to compensation for his land. 2. Whether or not the Plaintiff is entitled to be compensated for the value of his uncompleted structure. I am of the considered view that the resolution of this sole issue will effectively dispose of this case. Having outlined the issue for determination, it is necessary to briefly state the law on the burden of proof in civil cases. As a matter of principle, the burden of proof rests on he who asserts or alleges. The law requires the categorical establishment of a fact a Party alleges, most especially, when same has been denied by his opponent. See ZABRAMA V SEGBEDZI (1991) 2 GLR 221. 5 Failing to adduce such evidence as to convince a reasonable mind, such as this Court, would be detrimental to the case of the person who alleges as he risks his case being dismissed. As a general rule, the standard of proof in civil cases in Ghana is proof by a preponderance of the probabilities. This has been defined by section 12(2) of the Evidence Act, 1975 (N.R.C.D. 323) to be the certainty of belief in the mind of the Court by which it is convinced that existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. Therefore, a Plaintiff who alleges a fact or makes an assertion which is denied by his opponent bears the onus to positively establish same by the adduction of sufficient evidence to satisfy this Court that, more probable than not, the facts he alleges are true or exists. However, it must be noted that the evidentiary burden does not rest on the Plaintiff throughout the case. The burden is not static but moves from one Party to another depending on what is asserted or alleged and by which of the contesting parties. The burden shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff leads some evidence to prove his claim. See ABABIO V AKWASI IV (1994-95) GBR 774. In this light, I proceed to make a collective determination of the issues set out above on the basis of the evidence adduced by the parties and the relevant enactments applicable to this instant case. The activities of the Defendant herein and other like companies are governed by the Minerals and Mining Act, 2006 (Act 703) together with the several Legislative Instruments made by the Minister responsible for Mines. Two of such legislative instruments directly applicable in this instant case are the Minerals and Mining (Compensation and 6 Resettlement) Regulations, 2012 (L.I. 2175) and the Minerals and Mining (Explosives) Regulations, 2012 (L.I. 2177). Under regulation 176(1)(a) of L.I. 2177, a mining company is mandated to maintain a safety distance of five hundred (500) meters between blasts and a person near the blast site. By necessary implication, persons who have interests in properties within the said five-hundred-meter safety distance will be deprived of their land use and thus entitled to compensation under regulation 1(1)(b) of L.I. 2175. Regulation 1(1) of L.I. 2175 provides as follows: (1) A holder of a mineral right shall within fourteen days after the grant of the mineral right, give notice to a person (a) who claims a right or an interest in land over which a mineral right has been granted under section 5(1) or 82(1) of the Act; or (b) whose right or interest in any land is affected in any manner by the grant of a mineral right. (2) The notice shall be posted in public places including markets, churches, mosques and schools in the affected community. It is worth mentioning that the mere fact of a property being within the five- hundred-meter safety distance does not automatic extinguish the interest or rights of the owner of the land to the said property. An owner or lawful occupier of a land affected by a mineral right is entitled to compensation under section 73(1) of the Minerals and Mining Act which provides thus: “The owner or lawful occupier of any land subject to a mineral right is entitled to and may claim from the holder of the mineral right compensation for the disturbance of the rights of the owner or occupier in accordance with section 74.” This, in my view, makes the holder of the mineral rights directly liable to the owner of the land or any lawful occupier of the land. Flowing from this, a cause 7 of action arises in favour of an owner of property against the holder of the mineral right where there is failure to pay compensation in respect of his property which is affected by the mineral rights. As gleaned from the facts above, whiles the Plaintiff maintains that his land is distinct from that of Sampson Afful, the Defendant also maintain otherwise and claims that compensation was paid for the entire land, including the Plaintiff’s land. From the Plaintiff’s testimony, he stated categorically that the said Sampson Afful is a grantee of his family and that the land delineated to Sampson only abuts his land and same is delineated by oil palm. This testimony is duly corroborated by the testimonies of Sampson Afful himself (P.W. 1) and P.W. 2. As a matter of fact, title of the Plaintiff is not in dispute. The crux of the Defendant’s case is that compensation has been paid to P.W.1 in respect of the land the Plaintiff. From the Plaintiff’s testimony, he stated categorically that the said Sampson Afful (P.W.1) is a grantee of his family and that the land delineated to Sampson only abuts his land and same is delineated by oil palm. This testimony is duly corroborated by the testimonies of (P.W. 1) and P.W. 2. P.W.1, to whom the Defendant claims was paid compensation in respect of the land in dispute, refuted this claim. His testimony remained unwavering during cross-examination. During cross-examination, he confirmed the Plaintiff shares boundary with him and that the compensation paid to him was in respect of his land only. The following ensued during cross-examination on 16th May, 2023: Q: You shared immediate boundary with that of Kofi Mensah? A: Yes. … Q: You never told Kofi Mensah that you have received compensation for the crops? 8 A: I told him they paid me for the crops. Q: You did not inform Kofi Mensah about being paid compensation for crops but denied the assertion and refused that you both go unto the land? A: He came to tell me that his money has been paid to me which I explained to him it is not true. … Q: I am putting it to you that Kofi Mensah had no land in the area that is why you don’t have any idea of what was on the land? A: Not true. Q: Whatever compensation the Plaintiff is claiming has already been paid to you four (4) years back as at 30th October, 2012? A: The money paid was for my land. Further, the above is corroborated by the Defendant’s Witness, Bernard Kwabena Adjei, during cross-examination on 12th March, 2024 as follows: Q: Are you aware that Samson Afful shares boundary with the Plaintiff herein? A: Beginning I did not know. But later I got to know when Kofi Mensah said the land belongs to him, by that time we had already paid compensation to Samson Afful. In the light of the above testimonies, I find the fact of the Plaintiff sharing boundary with P.W.1 established. Flowing from this, I am satisfied that the compensation paid to P.W.1 was in respect of P.W.1’s land which comprised of the uncompleted building of P.W.1 and the palm and pineapple plantation. 9 The Plaintiff, having established his interest in the land he claims, is therefore entitled to compensation for his land. This position still stands granted that the Defendant, indeed, paid compensation in respect of the Plaintiff’s land to P.W.1. As held supra, section 73(1) of the Minerals and Mining Act vests in an owner of land the right to claim compensation for the disturbance to ownership over a piece of land affected by the grant of a mineral right and this right, in my view, is not whittled down nor curtailed merely by the negligence of the holder of the mineral right. To hold otherwise would be a failure on the part of the Court, in its constitutional duty, to safeguard an individual’s right to property under Article 18 of the 1992 Constitution. I find the Defendant liable to pay compensation to the Plaintiff for the interference to the use of his land. Thus, the next issue which deserves the Court’s consideration is whether the Plaintiff is to be compensated only for the value of the land or for the damage caused to his uncompleted structure at the lintel level. As held supra, a declaration of a moratorium, unlike compulsory acquisition of land, does not permanently and automatically extinguish rights of an owner over the land without the payment of compensation or resettlement. The declaration of the moratorium must be to the notice of all land owners. This is more so because the quantum of compensation must be by agreement between the owner of the land and the holder of the mining rights. Section 73(3) of the Minerals and Mining Act provides as follows: “The amount of compensation payable under subsection (1) shall be determined by agreement between the parties but if the parties are unable to reach an agreement as to the amount of compensation, the matter shall be referred by either party to the Minister who shall, in consultation with the Government agency responsible for land valuation and subject to this Act, determine the compensation payable by the holder of the mineral right.” 10 I find from the evidence that the survey conducted by the Defendant was only in respect of the land of P.W. 1 for which compensation was paid as far back as 30th October, 2012 to P.W.1. The land of the Plaintiff was not subjected to no survey whatsoever. More importantly, the Plaintiff was not available at the time of the declaration of the moratorium and this is clear from the testimony of P.W.2 under cross-examination. The following ensued during cross- examination on 21st June, 2023: Q: At the time of the moratorium where was Kofi Mensah? A: He lives at Wawase. Q: Would you be surprised to hear Kofi Mensah has told the Court he was present at the time of the announcement of moratorium? A: I called to inform him. Q: As part of the Moratorium the people were informed to identify their land? A: Yes. Q: At the time where was Kofi Mensah? A: He was at Wawase. Q: When the moratorium was announced he was not present but you called him? A: Yes he was at Wawase. Q: Would you be surprised that Kofi Mensah had told the Court he was present when the land was measured? A: It is not true. He was not around. 11 Clearly, the Plaintiff was not present to identify his land for the purposes of compensation. This, however, did not take away the right of the Plaintiff to compensation over his land. The Defendant, having had notice of the Plaintiff’s interest in the land, ought to have surveyed and valued same in accordance with Minerals and Mining (Compensation and Resettlement) Regulations, 2012 (L.I. 2175) provided the Plaintiff’s development on the land is not speculative. Put differently, it must be evident that the development of the Plaintiff was not intended to merit or enhance compensation due him. See Regulation 1(8) of L.I. 2175. In this instant case, the evidence establishes that with the Plaintiff’s land not valued and compensation paid, he approached the Defendant on the issue and was told compensation in respect of same has been paid to the P.W.1 herein. P.W.1 on his part denied receiving compensation for the Plaintiff’s land. A prudent holder of a mineral right, in the circumstances, would investigate the claim of the Plaintiff and conduct a survey over the lands of the Plaintiff and P.W. 1 to ascertain the veracity of the Plaintiff’s claim but this was not done. The testimony of the Plaintiff in this respect was further confirmed under cross- examination when he stated thus: Q: You went to the Defendant’s Company to complain? A: Yes. I visited them, and also requested them to come and have a look at the land but they did not show up. The Plaintiff was only served with letters after he had erected the structure. In the absence of evidence to the effect that the Plaintiff made additions to the structure after service of the letter, I hold that the development of the structure did not qualify as speculative development carried out at the risk of the Plaintiff. It was therefore unlawful for the Defendant to demolish the Plaintiff’s structure without due compensation agreed by both Parties after the Defendant had notice of the claim for compensation of the land. 12 The Defendant's blatant disregard for the Plaintiff's concerns is astonishing. The evidence shows that the Plaintiff repeatedly requested payment from the Defendant, who consistently claimed to have paid the compensation to Sampson Afful. However, the Defendant failed to investigate the matter, demonstrating a lack of prudence and respect for the Plaintiff's rights. Despite the case being brought to court, the Defendant continued to disregard the Plaintiff's claims, failing to act in good faith as a neighbor should. Even if the compensation was paid to Sampson Afful, the Defendant should have taken the Plaintiff's complaint seriously and investigated the matter. The case has been ongoing for sometime, and sufficient evidence has now been presented to establish the Plaintiff's ownership of the land and the destruction of his building and crops. Unfortunately, the Plaintiff failed to provide the value of the building and crops in his filings. The moratorium in question was declared as far back as 14th February 2012. Had the Defendant exercised prudence and diligence, and not disregarded the Plaintiff's rights, payment would have been made promptly. In light of this, the Plaintiff's request for general damages is justified. The Plaintiff has lost his farm and building, which was likely his primary sources of income and livelihood. This loss has undoubtedly caused substantial distress, hardship, and financial strain on the Plaintiff. General damages are intended to compensate the Plaintiff for non-pecuniary losses, such as pain, suffering, and loss of amenity, as well as pecuniary losses that are difficult to quantify. After careful consideration of the evidence and the circumstances of this case, I find that the Defendant's conduct has caused the Plaintiff significant harm and loss. The Plaintiff’s action succeeds on the preponderance of the probabilities. Judgment is accordingly entered in favour of the Plaintiff for all his reliefs. 13 Relief A Under normal circumstances, it would be reasonable to expect the Defendant to pay the Plaintiff a moratorium, as is typically the case. However, considering the undue distress and hardship the Defendant has caused the Plaintiff, a more nuanced approach is warranted. Instead, the court will appoint a Valuation Officer to assess and determine a fair and just compensation to be awarded to the Plaintiff, taking into account the extraordinary circumstances of this case. In light of this, the Court directs the appointment of a Valuation Officer to assess the subject matter of this case as per the Plaintiff’s Amended Writ of Summons. It is hereby further ordered that the Defendant shall pay all costs associated with the Valuation exercise. Within fourteen (14) days upon receipt of the Valuation Report, the Defendant shall pay compensation to the Plaintiff for the value of the building, land, and crops thereon, as determined by the report. Relief B I hereby award general damages of GH¢200,000.00 to the Plaintiff. Relief C Cost of GH₵40,000.00 is awarded against the Defendant. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL EUNICE FRIMPONG ESQ. FOR THE PLAINTIFF. BENEDICT NII- KRAKU ESQ. HOLDING THE BRIEF OF KWEKU EYIAH ESQ. FOR THE DEFENDANT. 14