COURT OF APPEAL, ACCRA
Date: 22 JULY 1975
LASSEY ANIN AND FRANCOIS JJ.A
CASES REFERRED TO
(1) Wiredu v. Mim Timber Co., Ltd. [1963] 2 G.L.R. 167, S.C
(2) Ramia Ltd. v. African Woods, Ltd. [1961] 1 G.L.R. 2; [1960] 1 W.L.R. 86; [1960] 1 All E.R. 627; 104 S.J. 125, P.C. affirming Ramia Ltd v. African Woods, Ltd. (1956) 1 W.A.L.R. 193, W.A.C.A.
NATURE OF PROCEEDINGS
APPEAL from the decision of the High Court, Kumasi by which judgment was entered for the respondents in an action for damages for trespass. The facts are sufficiently set out in the judgment of Francois J.A.
COUNSEL
Appiah-Menka for the appellants.
C. F. Hayfron-Benjamin for the respondents.
[p.64] of [1975] 2 GLR 62 JUDGMENT OF FRANCIOS J.A.
This appeal is the culmination of a bitter struggle between two timber firms, Kataban Timbers Co., Ltd., and Timber and Transport Sawmilling Co., Ltd. both of Kumasi. The dispute was over timber felling rights in the Desiri Concession of Messrs Gliksten (West Africa) Ltd. I shall hereafter refer to the parties simply as the respondents and appellants respectively.
The respondents were the first to set foot in the Desiri Concession having been invited by the chiefs and elders of Akwaboa, the allodial owners of the land, to construct feeder roads in the area to facilitate the transportation of their food crops to buying centres to prevent wastage. The respondents, in lieu of payment, were to fell and haul timber along the line of road construction to compensate for the cost of construction.
It appears Messrs Gliksten who held the concession had for long neglected the area to the detriment of the farming communities whose farming endeavours were gravely curtailed with resultant economic hardships. Gliksten were consequently requested to release land for the construction of roads to save the crops. Gliksten declined to release large areas of their concession for road construction, but in a letter of studied ambiguity, expressed the view that the company did not “desire to prevent the construction of roads, but it [was] unnecessary for large areas of validated concession to be used for the purpose.”
As I understand it, Gliksten were not prepared to surrender whole areas of their concession for road building, but were not averse to essential roads being constructed within the concession. Indeed, they went on to exhort the chiefs to seek the permission of the Forestry Department “before commencing the construction of new roads, and then if permission was granted, the felling of trees must be limited to those standing on the road line only.” The letter exhibit 9 in which this implied approval was given, ended as follows:
“It is essential to the future of this company and its two thousand employees that no illegal or unnecessary timber felling takes place in our Desiri Concession where before long we shall require to extract timber.”
The Ministry of Agriculture, through the chief conservator of forests on 2 May 1963 “directed that Mr. Aggrey of Kataban Timber Co., Ltd. should proceed to construct roads in the above-named concession and to fell and remove timber trees on the road line.”
The respondents, so directed and armed with the agreement of the chiefs of Akwaboa as also the implied consent of the concessionaires, Messrs Gliksten, commenced the road construction by felling and hauling away, timber along the road line. To this end they obtained a loan of £G35,000 which they utilised in purchasing caterpillars and heavy equipment for their work. Construction proceeded without incident from 1963 until February 1965 when the appellants came into the picture. They
[p.65] of [1975] 2 GLR 62
had obtained what they described as a “licence” from Messrs Gliksten to operate in the northern portion of the Desiri Concession where the respondents were. The appellants thereafter employed every stratagem to get the respondents out of the area. The immediately explosive gambit was the removal and carting away of a quantity of the respondents’ logs from the area. The respondents sued and won, thus provoking this appeal.
An issue canvassed strenuously by the appellants was the respondents’ lack of status. It was their case that since the recognised concessionaires had granted them a licence to fell timber in the area, the respondents were trespassers without any rights whatsoever. The appellants had indeed pressed this view on the Ministry of Agriculture so forcefully that they had inveigled the ministry to issue missives to the respondents to “clear out” of the area by the date line of 3 April 1965. The issue of trespass so forcefully canvassed before the High Court and this court, requires to be disposed of immediately and it cannot be better done than by first endorsing the conclusions of the learned trial judge on that issue.
He said:
“In my view the reasonable conclusion to come to in the light of these exchanges is that up to 7 May 1963, the plaintiffs’ obligations and rights in the Gliksten Concession had crystallised either with the express approval or authority of the grantors, and that of the Minister of Agriculture and without any objection by Gliksten. The duty was to operate a feeder road plan and the right, ancillary to it, was to fell and remove timber trees on the road line.
I think it is a fair assessment of the position to say that up to July 1963, Gliksten had neither withdrawn their earlier consent to the feeder road project nor specifically objected to the operation of that project by the plaintiffs. What they were objecting to was the matter of fellings over and beyond what was incidental to the implementation of the feeder road project. In my view then the undisputed evidence, based on the admitted correspondence in exhibit A, established that in 1963 the plaintiffs were entitled to be in the Desiri Concession of Gliksten and to fell and remove a limited, though unspecified, number of timber trees as a necessary incident of the obligation on them to operate a feeder road project in the concession for the benefit of the grantors of the concession. It follows that the plaintiffs were not trespassers in the concession either with regard to the construction of the road project or the felling and removal of timber trees for the purpose of the implementation of that project.”
But even if it were assumed that the respondents were trespassers could they be denied the rights which their earlier possession following the agreement with the chiefs, the Ministry of Agriculture and Gliksten had conferred on them? When a similar issue arose in Wiredu v. Mim Timber Co., Ltd. [1963] 2 G.L.R. 167, S.C., the Supreme Court held at p. 170:
“It is well settled law that a person in possession of land, though himself a trespasser, is entitled to maintain an action for trespass
[p.66] of [1975] 2 GLR 62
against any person who disturbs his said possession except the person in whom title to the land is vested or any one claiming in the right of the true owner, i.e., as his agent or representative. Since the plaintiffs were in possession of the land before the defendants’ entry thereon, the plaintiffs are entitled, upon the principle of law stated above, to succeed against him unless he, the defendant, succeeded in proving a better right to possession of the land.”
The appellants could not claim a better title. If they derived any valid title from Gliksten it could only be within the confines of statutory permissibility.
The respondents did not suffer the appellants’ attack on their status quietly; they sought to hoist the appellants with their own petard. They urged that the alleged “licence” which Gliksten had granted the appellants was in breach of statute and so conferred no rights. Consequently they urged that the appellants were powerless to resist their claims. The learned judge in the court below however felt that the permission granted to the appellants by Gliksten to work in their concession and fell timber therein upon agreed terms did not require validation in terms of section 13 (1) of the Concessions Act, 1962 (Act 124). He opined that the agreement “was therefore a legal and effective transaction.” With respect to the learned judge I am unable to agree with this proposition. I shall consequently attempt an examination of the requirements laid down by statute in respect of timber felling transactions, which give rise to rights at law.
By section 13 (1) of the Concessions Act, 1962 (Act 124):
“Any transaction which is an assignment, sub-demise, mortgage or surrender of the whole or of any part of the rights granted by any concession referred to in section 2 of this Act shall be void unless made with the written consent of the Minister.”
From the evidence it does not appear that the prior consent of the minister in writing was obtained by the appellants in respect of any rights in the Desiri Concession. The appellants have however attempted adroitly to side-step this statutory provision by urging that the licence they acquired did not amount to an assignment, sub-demise or mortgage, requiring written consent. In my view the words “assignment, sub-demise, mortgage, or surrender” appearing in section 13 of Act 124 must be read ejusdem generis. Upon such a construction, a licence would be a transaction which in some measure attempted to give the “whole” or “any part of the rights granted by any concession” to another. In my view the object of the section is to ensure ministerial surveillance over transactions relating to land and timber, and for the better protection of the grantors, the allodial owners. That the grantor’s rights are of paramount concern cannot be denied: see Ramia Ltd. v. African Woods, Ltd. [1961] G.L.R. 2, P.C. In the circumstances the failure of the appellants to comply with section 13 (1) of Act 124 was fatal to their case.
Again by section 16 (8) and (9) of the Concessions Act, 1962 (Act 124):
[p.67] of [1975] 2 GLR 62
“(8) The Forest Ordinance (Cap. 157) shall apply mutatis mutandis to any land outside a forest reserve in respect of which rights relating to timber or trees have been or shall be granted.
(9) Section 30 of the Concessions Ordinance and the Concessions (Timber Restriction) Order, No. 55 of 1939, shall apply mutatis mutandis to all land in Ghana in respect of which rights relating to timber or trees have been or shall be granted.”
Section 16 (3) of the Concessions Act, 1962 (Act 124), provides that:
“Any land, other than land referred to in the preceding subsections, subject to the Administration of Lands Act, 1962 and in respect of which rights have been granted with respect to timber or trees under any concession and in force immediately before the commencement of this Act are vested in the President in trust for the stools concerned, subject to the terms of the concession, this Act and any other enactment for the time being in force.”
And by section 8 (5) and (6) of the Administration of Lands Act, 1962 (Act 123):
“8. ( 5) It shall not be lawful without the concurrence of the Minister to make any transaction affecting land which is a Stool property as defined in section 52 of the Chieftaincy Act, 1961 (Act 81).
(6) Any transaction entered into in contravention of the provisions of this section shall be void.”
Two matters stand out boldly in these provisions. Firstly the paramountcy of the Concessions Ordinance and the need for strict compliance with the provisions therein; secondly, the essential requirement of ministerial approval in transactions relating to stool land.
On a true construction of the provisions referred to above, the appellants’ alleged licence was completely void and totally ineffectual as there was clear non-compliance with mandatory provisions. And as was said by Coussey J.A. in Ramia v. African Woods, Ltd. (1956) 1 W.A.L.R. 193 at p. 200, W.A.C.A., “when you find in an Ordinance only one particular mode of effecting the object, one train of formalities to be observed, the regulative provisions which the section prescribes are essential and imperative.” This view was fully endorsed by the Privy Council when the matter went to them on appeal: see Ramia Ltd. v. African Woods, Ltd. [1961] G.L.R. 2 at p. 6, P.C. The appellants having failed to show superior title or right were properly condemned in damages for trespass.
The appellants denied removing the respondents’ timber but the trial judge found against them. I think on the evidence he was perfectly justified in concluding against the appellants as he did. It is true that a witness for the respondents had justly earned the contempt of his previous employers (the appellants) by attempting to remain in employment while participating in another competitive venture. He had been summarily dismissed and had lost a subsequent claim for wrongful dismissal. It was urged that evidence from such a witness on behalf of the respondents should have
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been treated with considerable suspicion. But his evidence was only one of many pieces of evidence which cumulatively proved that the appellants had indeed carted away the respondents’ logs.
Finally on the assessment of damages it was contended that the learned trial judge relied on a tally card which was admittedly prepared for the present claim and was strictly inadmissible. But again there were other pieces of direct evidence of loss furnished in the proceedings which supported the claim and I am not prepared to hold that the learned judge’s conclusions on the assessment were therefore wrong. During the course of argument the parties agreed that if we should find against the appellants, damages should be assessed at 024,644.00 in favour of the respondents. This is a responsible compromise which is commended. In the net result this appeal is dismissed with damages varied to the agreed figure of 024,644.00. There will be costs for the respondents assessed at 462.00.
JUDGMENT OF LASSEY J.A.
I agree
JUDGMENT OF ANIN J.A.
I also agree.
DECISION
Appeal dismissed.
Order accordingly.
K.S. N.-D.
