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Kwadwo v. Sono
[1984-86] GLR 7.
Court of Appeal, Accra
27 February 1984

APPEAL against the quantum of damages awarded by the High Court, Sunyani to the plaintiff for the destruction of, inter alia, his cocoa trees by the defendant, a concessionaire, on working his concession. The facts are sufficiently stated in the judgment.

MENSAH BOISON J. A.
This is an appeal by the defendant at the court below against an award of 61,252 special damages for his destruction of cocoa trees and other crops on the plaintiff's farm. The damage occurred in 1977 in the course of the defendants timber and logging operations on Dormaa stool land, over which the defendant had concession rights. The trial took place at the High Court, Sunyani in March 1980 before Ampiah J who dismissed the additional claims for general damages for ``capsid infestation, rehabilitation and other incidental damage as a results of the defendants acts''. The plaintiff's claim for an order of perpetual injunction restraining the defendant from further felling on the plaintiff's farm was similarly dismissed. This part of the decision is not questioned. For on authority where a person enters upon the land of another by lawful authority or licence, acts done I pursuance of the authority or licence cannot be the subject for general damages in tresspass: see Gliksten (West Africa) Ltd v Appiah (1967) GLR 44, CA.

Different considerations, however, apply to the award of the compensation now appealed against Exhibit 1, the defendant's by virtue of the Concessions Act, 1962 (Act 124), hereinafter referred to as the Act. Both at the trial and in this court, the rights conferred on the defendant by exhibits I and the exceptions in favour of the local inhabitants were not disputed. customary rights and privileges of the local population to ``hunt and snare game, to gather fire-wood for domestic purposes only, to collect snails ...and to till and cultivate farms and plantations on the demised land.'' It is also conceded that any farmer on the demised land suffer damage as a result of the timber operations of the concessionair is entitled to compensation. Indeed, when the plaintiff complained of damage of his crops, the defendant was ready to offer compensation but for lack of agreement of the figures. Consequently, upon the case coming before the court, a consent order requesting the Regional Lands Department to inspect and assess the extent of damage to the plaintiffs crops was made at the start of the procedings. The plaintiff by counsel filed inspection instructions, and the arties attended on the inspection team. In due the course the Lands Department submitted its report, exhibit A, to trial court, to be folowed by evidence from the senoir valuation officer, who lead the inspection team. What is here relevant is that the parties accepted and the trial court found that an area of 11.68 acres of the plaintiff's cocoa farm damage or destroyed involving a total of 5,067 trees at 7,51.70, a figure which have been approved by the Chief Lands Officer, Accra became a bone of contention. In judgment the learned trial judge rejected the compensation rate of 1.50 per cocoa tree fixed in 1974 by the Chief Lands Office and wich the witness had applied. The learned judge was of the opinion that was it was ridiculous low and that the rate did not reflect the economic realities of the times. There was evidence from the witness that it was the policy of the Chief Lands Officer to have compensation rates reviewed periodically and to bring them in line with economic trends in the country. That evidence was contained in exhibit X, the relevant paragraph of which reads:

(1)
`` In the past, compensation rates used in the department were restricted to lands acquisition cases where the gornment acquired land and crops. From the basis of calculation in arriving at the present (1974) rates it is clear that prominence has been given to the estimated useful life every crop in question and this will necessary imply a major change in the valuation assessments in land acquisition cases where crops are also encountered and compensation paid separately therefor.''

Exhibit Exhibit X further adds in paragraphs (4) and (5):

(1)
`` I shall be grateful if you give the matter your serious consideration and let me have your comments without prejudice to the operations of the new effect from March 1974 ...
(2)
A review of the crop compensation rates in respect of the under mentioned crops is still being undertaken and the finally agreed rates will be communicated to you in due course ...''

But even at the time of the trial in 1980 no such review had taken place, and the rate of 1.50 for a cocoa tree still prevailed.

The witness was unable to tel on what basis the rates in exhibit X were arrived at, and the learned judge was obliged to rely on the economic trends in the country to work out a reasonable rate when he delivered himself thus.

``The price of cocoa has rocketed so high from 30 to almost 80 per load at the time of the incident. Looking at the age, and the annual yield of the destroyed cocoa, coupled with the economic conditions existing at the time, I think a price 12 per cocoa tree would not be unreasonable. I would therefore award the plaintiff 60,804 damages for the cocoa trees damaged.''

Awards for other crops destroyed brought up the total amount to the 61,252 mentioned earlier; but it is as to the 60,804 for the cocoa trees that the appeal is directed.

Mr. Totoe, counsel for the defendant, has attached this award on the ground that; ``Because clause 2 (1) of the concession agreement, exhibit 1, stipulates that compensation payable to farmers for damage crops should be assessed by the Administrator of the Stool Lands the court erred in disregarding the assessment by the administrator.'' The burden of learned counsel's argument was that compensation under the concession was limited to payment of the actual of the crops damaged, which is the rate as fixed and recommended by the administrator; that any consideration of age or yield of the trees affected was in the nature of prospective damages.

To this, Mr. Amofa's rely was that the proposition that the court was limited to the administrator's determination amounted to denying the citizen access to the courts in seeking relief where he has suffered damage to his crops by the default of another, insofar as the court could not act according to its own lights and discretion. That, learned counsel for the plaintiff contended, was contrary to the Constitution, 1979 which gave the judicial power of the State to the courts.

Now clause 2 (1) of exhibit 1 relied on By Mr. Totoe enjoins the defendant:

``To compensate the owner of any fruit-bearing trees or cocoa trees growing thereon for any damage done by the lessee or his agents or contracts. Provided always that the amount of compensation payable shall be that determined by the Administrator of Stool Lands.''

Mr. Totoe also refers to the provisions of the Concessions Act, 1962 (Act 124), s 16 (4) and (5) as the source of competency of the administrator. Those provisions recited that:

``(4) All rights with respect to timber or trees on any land other than land specified in the preceding subsections of this section are vested in the President in trust for [the] stools concerned.

(5) It shall be lawful for the president to execute nay deed or do any act as a trustee in respect of lands or rights referred to in this section.''

What Mr. Totoe says is that by force of the above subsections of the Act, a demise to the defendant of the specified land overrides and extinguishes the rights and interests of the local farmers save as to what are preserved or of compensation payable therefore. This position, he' submitted, was brought about because the concession agreemnt, exhibit 1, was binding on all persons on the demised land. Consequently he added that since 1962 the assessment of compensation had been to or determined by the administrator. Mr. Totoe found support in a passage in the judgment in the case of Gliksten (WA) Ltd v Appiah (supra) when at 449, the court said:

``Thus even if the holder of customary rights is on the land before the grant of the certificate of the court validating the concession, the title of the concessionaire takes precedence over the holder of customary rights. And only such rights as are preserved by the law or in the concessions agreement will continue as against the concessionaire.''

Besides having the land vested in him, I think the provisions of sections 16 (4) and (5) of Act 124 do no more than empowered the President to grant leases for timber rights only. Such a demise affects a person like the plaintiff only insofar as the concessionaire's rights extend as well to timber standing in the plaintiff's farm. And is so far this reason that the entry by the defendants into the plaintiff's farm was held not no be a trespass. But the defendant's right of precedence to timber on the land does not in any way abridge the plaintiff's legal rights and protection to his crops. It may be observed with interest that the Act does not spell out the customary rights, privileges and interests of the local population over the demised land, as did the Concession Ordinance, Cap 136, s 13 (6)-(9). Nonetheless those rights, in my view, are legal. Not because they are declared so by and enactment but because they are immemorial customary rights and priviledges which members of the local population of the stool land hve always enjoyed; whether their possession of the land was by the right of occupation or by permission from the stool. Specifically those customary rights, in my opinion, are preserved not because the are accepted from the defendant's lease, exhibit 1, but rather that they are rights of the subjects which cannot be alienated by the stool for which the President acts.

Further if it were noted that exhibit 1 was contractual only between the President and the defendant, there could be no question that the plaintiff, was not bound by its terms. Consequently, I think the plaintiff's redress for the damage to his crops was not dependent on the terms and conditions of the lease, but based on his common law rights against an infringement of his proprietary interest. I therefore take the view that the onus is on the defendant, and not on the plaintiff, to show that the compensation clause, 2 (1) of exhibit 1, was binding on the plaintiff. I am satisfied that learned counsel has not been able to show that the provisions of section 16 (4) and (5) of Act 124 import a power for the administrator to determine the compensation rates. It follows that the trial court was not bound by the compensation clause in exhibit 1. In my opinion, the learned trial judge's approach to the assessment of the social damages was right in principle; save as to what we shall say on the quantum.

The appellant's second ground of appeal was that 'because the acreage method of assessing the special damages could be applied in the instant case the court erred in not applying 'that method'. Computation by the acreage of the number of cocoa trees destroyed in claims for damages appears to have been in recent times first ventured upon in these courts in the unreported case of Appiah v Gliksten (WA) Ltd before Lassey J (as he then was) at High Court, Sunyani. The merits of this mode of calculation are lucidly explained in the judgment of this court delivered by Amissah JA in JA in Glikstein (WA) Ltd v Appiah (supra) on the appellate hearing of that case. At 452-453 of the judgment this is what the court said:

``The rationale for this method of calculation is that according to good agricultural practice an acre should contain a certain number of trees to give maximum production and this number would depend on the optimum spacing between any two trees of that species. If one plants the trees too closely and therefore exceeds the number of trees, this will not increase the yield per acre. All other factors remaining the same, the yield per acre would remain the same. In other words a farmer does not increase the yield per acre from his farm by ignoring sound agricultural principles and growing more trees therein than the acre can take. But the result of the old method of calculation of damage is that the farmer with more trees per acre, though not making more or out of the acre than his model farming brother, was bound to reap more than his brother out of the devastation of the farm. This, I think, is sufficient justification for the abandonment of the old method.''

I however, agree as advanced by Mr. Amofa, that assessment by the acreage is a rule of practice and not a principle of law, and that this court is not bound to follw is as precedent. But I also think that where a rule of practice has the merit of scientific approach, and thus more likely to result in greater fairness to the parties, the lawyers conservatism might do well to employ science as a handmaid of legal reasoning to advantage. I would permit myself to add quickly that care must always be taken that a rule of practice should not become a rule of thumb with a danger to override any conflicting general principles of law relating to damages in such claims. In the instant case, two items of acreage of the damage caused either by loading, felling or by way of caterpillar etc, trucks and (b) estimated number of cocoa trees damaged.

The acreage of 11.68 and the total of 5,067 damaged trees found by the court were based on the evidence of the leader if the inspection team. Questioned as to how he arrived at the number 10' X 10' we have 400 cocoa trees or approximately 400 cocoa trees in 1 acre ...'' This evidence was not seriously challenged. Indeed, the defendant was present at the inspection by his agent and all along the impression was given that the defendant accepted the figure of 5,067. Besides, the defendant later called this very witness, after his evidence as a common witness, to give evidence for him. That I think shows faith in the credibility of that witness.

Assessment by the acreage as I understand it is a means of ascertaining the number of trees affected in a case of devastation to crops. If that number is agreed upon by the parties, then I do not think there is room for preference between actual numeration and calculation by the acreage. In the Appiah case (supra) the respondents disputed the figures obtained by actual court, and so arose the question of choice between actual counting and computation by the acreage. In the instant case, the learned trial judge was not faced with any choice because there was after the inspection no dispute on the figure of 5,067 arrived at 1 am of the opinion that there in no substance in this complaint.

To revert to the award of special damages of 60,804, it is complained, in essence, that the learned judge acted on wrong principles when he took unto account the age and annual yield of cocoa trees. It is said that a consideration of those matters made the award partake of prospective damages, which will then be general damages.

I think there is no argument that here it is the actual value of the cocoa trees that the plaintiff is entitled to as compensation. And on principle, a plaintiff is required to prove such loss. But the evidence in support will of course depend on the nature of the subject matter among other things. What is the price of a cocoa tree on the market? How may loads dose a five-year old tree bear as compared with a ten-year old? These questions seems to defy practical answers; but certainly the value of a five-year old bearing tree may differ from that of a fully matured tree. These I think are factors which might help determine the economic usefulness of the crop and its pecuniary value. For that is what the plaintiff wants as compensation. The price per load of cocoa is a useful index of the value of trees lost, and that cannot be divorced from age and yield. In my opinion, the learned judge was right in principle in considering the factors as he did. His reasoning cannot be faulted.

By the nature of the subject matter, the support of value called for the exercise of the judge's discretion in arriving at a fair and reasonable rate. While we do not seek to substitute our discretion for his, it seems to us that the figure arrived at was excessive and therefore an erroneous assessment of damage.

We think the rate of nine cedis per tree and not twelve cedis would be a fair and reasonable figure. In the result, the award of 60,804 is reduced by 15,201 and the sum of 45,603 is substituted for the judgment in favour of the respondent here. Save as to that variation the appeal would be dismissed.

FRANCOIS J.A.
I agree.

WIREDU J.A.
I also agree with the conclusion.

Appeal dismissed.
Damages reduced.

J A A





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Josh DuBois 2004-12-01