COURT OF APPEAL
DATE: 27 JUNE 1967
BEFORE: AZU CRABBE, APALOO AND AMISSAH JJ.A.
NATURE OF PROCEEDINGS
APPEAL on the question of whether general damages can be awarded against a concessionaire for acts done by him in promotion of the objects of his concession. The facts are fully set out in the judgment of Amissah J.A.
COUNSEL
H. V. A. Franklin for the appellants.
Ansah Twum (Owusu-Ansah with him) for the respondent.
JUDGMENT OF AMISSAH JA.
Two simple points arise out of this appeal from the decision of Lassey J. (as he then was). The first is whether general damages can be awarded against a concessionaire and in favour of the holder of customary rights for acts done by the concessionaire in promotion of the objects of his concession. The second is whether the special damages awarded in this particular case were properly assessed. The appellants, Messrs. Gliksten (West Africa) Ltd., obtained a timber concession over an area which included the respondent’s cocoa farms. The concession was obtained in June 1947, and the court’s final order on it was made four years later in June 1951. The concession contained the usual clause for the protection of customary rights which includes farming. It is not clear whether the respondent’s farms were in existence at the time the concession was obtained. The vague references to time made in the course of the respondent’s case indicate that the farms were started about the same time as proceedings were being taken by the appellants to finalise their concession. Although the learned trial judge devoted some time to analysing the law applicable when a farm is grown before the grant of a concession and when it is grown afterwards and seemed to have arrived, after his discussion of the problem, at the conclusion that different principles apply to the different situations, I find, with all
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due deference to him, the question of which preceded the other of very little moment. Section 32 (1) and (2) of the Concessions Ordinance, Cap. 136 (1951 Rev.), are so sweeping in their conferment of rights onthe concessionaire, that fraud apart, his title is good against the whole world. The provision reads as follows:
“(1) A certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto, and shall be effective in respect of the whole area of land contained by the boundaries stated in such certificate, whether or not any discrepancy exists between such area and the area indicated by the notice and plan of the concession referred to respectively in subsections (1) and (3) of section 8. (2) A certificate of validity (whether issued under the provisions of this Ordinance or of any Ordinance repealed by this Ordinance) shall be conclusive evidence that all the requirements of the Ordinance under which it was granted or purported to be granted and all matters precedent and incidental thereto have been complied with, and shall not be liable to be impeached by any person by reason of any lack of notice of the boundaries or extent of the land in respect of which it is given, or for any other reason or on any other ground save that of fraud to which the holder of the concession is proved to be a party.”
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.
The respondent’s complaint is that some time in 1959, the appellants caused extensive devastation to his farms at Sankore No. 2 and Sankore No. 3. This was done as a result of the appellants felling timber in the farms and also constructing roads and passes through the farms for the caterpillars which carted the felled timber. All these activities were undertaken by the appellants without the permission of the respondent. He therefore asked for damages both general and special for the unlawful acts of the appellants. Obviously the special damages are in respect of the economic trees, in this case cocoa, which were actually destroyed by the appellants. The general damages cannot but be for the alleged trespass committed by the appellants. The following is the manner in which the learned judge dealt with the question of general damages: “With respect to the plaintiff’s claim for general damages in view of the defendants’ validated concession over the area,
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the plaintiff cannot claim prospective damages in the sense of a loss which it may reasonably be anticipated he will suffer thereafter in consequence of the defendants’ permanent devastation; it is plain that by virtue of the defendants’ validated concession the plaintiff’s rights over the area have been extinguished, and therefore, any loss which the plaintiff has suffered as a result of the defendants’ devastation or destruction of his cocoa trees must be limited to the time damage was caused in 1959.
It follows that on the facts of this case damages must be measured by reference to the position of the plaintiff at the date when the damage or loss was sustained; any damage done at all, other than loss of cocoa trees, must have been suffered in 1959, and therefore any award must be limited to that period only. This must be so because the plaintiff’s claim for general damages is based on the assumption that the defendants committed the trespass by their entry upon the land in 1959. The plaintiff’s claim for general damages is for the wanton and permanent devastation caused to his farm land by the construction of motorable roads and other caterpillar passes through his farm; this amount of damage, which by its nature is general, depends upon the extent and its permanent character. On this issue both the plaintiff and the defendants have disagreed on the evidence. However, in my opinion, it is irrelevant for the purpose of the plaintiff’s claim to examine the different views in detail. I have to saythis because, as I have already held, it seems to me that the defendants have a validated concession over the area of the plaintiff’s farm; that fact is admitted by the plaintiff himself in paragraph (2) of his statement of claim and the only doubt left in my mind on the evidence is that the date on which the certificate of validity was granted to the defendants to operate in the area has neither been mentioned in the statement of defence nor in the evidence of the defendants’ representative. The evidence I have before me is that the defendants entered the plaintiff’s farm and caused the devastation complained of some time in 1959, the same year in which they prepared exhibit 7. I am therefore inclined to find on the evidence led before me that the defendants’ concession over the area of the plaintiff’s farm must have been validated some time in or about 1959 when they started operations. I find further support for this view I have taken from the fact that the plaintiff himself has not asked for the relief of an order of a perpetual injunction to restrain the defendants from further entering the area in question. In my view any permanent devastation which the defendants might
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have done to the area could not operate to the detriment or loss of the plaintiff after 1959. For these reasons, I think the sum of £G200 would be quite sufficient to compensate the plaintiff for any damage suffered as a result of the defendants’ trespass to farm in 1959.” With all due respect to the learned judge, I have the greatest difficulty in understanding the principle upon which he based his award of general damages. To award general damages is to state that a wrong has been committed by a defendant and that these damages are what the law presumes to flow from the wrong complained of. But how can a wrong be committed on land by someone who is entitled to go on the land to carry out the activities which form the subject-matter of the alleged wrong? The appellants had a timber concession over the area in dispute. The only way they could exploit it was to enter the land, cut and carry away the timber. This must entail some destruction to other vegetation because the felling of the timber in itself would cause some damage to adjacent trees and roads would have to be built for the purpose of transporting the timber. They proceeded to do exactly this. The law then holds them liable in damages for their action. If that is right,one may well ask, of what use is a concession? The law has been attacked at times for being inconsistent, but an inconsistency of this magnitude, if allowed to stand, would deprive the law of all pretence to principle. If the law allows a person to go on land to carry out certain activities, it cannot be a wrong for the person to act in accordance with that permission. I do not think the appellants committed any wrong for which general damages could be awarded. Different considerations apply to the award of the special damages for the actual destruction of the cocoa trees. Under section 13 (6) of the Concessions Ordinance, a concession may be certified as valid only if the court is satisfied that the customary rights of natives (and here I use the word as it appears in the Ordinance) are reasonably protected in respect of cultivation, collection of firewood, and hunting and snaring game. As I said earlier, this particular concession contained the usual provision for the protection of these customary rights. The cultivation by the respondent of cocoa and other crops on the land was therefore preserved. In the circumstances it is only reasonable that the respondent be compensated for the actual destruction of such economic trees as he had cultivated in pursuance of his protected rights. Indeed there is no dispute as to his entitlement under this head, for the appellants themselves made an offer on this basis to him. The only dispute here must be as to the quantum. The respondent refused to accept the offer made, obviously because
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he thought the £G57 9s. 8d. assessed as the damage, contemptuous. In his evidence he stated that he and some helpers had done an actual count of the trees destroyed. The total they arrived at was 5,164 trees. Hetherefore claimed £G5,164 damages at the rate of £G1 per tree. The learned trial judge did not accept the number of trees as given by the respondent on the ground that “in such a case one cannot exclude the possibility of exaggeration and the counting cannot be fairly accurate.” The respondent also called a surveyor who gave the area devastated in the respondent’s farm by the appellants’ activities as 7.89 acres.
According to this surveyor such an area should contain approximately 13,744 trees but allowing for thinning and damage done to young cocoa trees due to natural causes the area could contain at least 7,000 cocoa trees. Without rejecting the calculation of the devastated area the learned judge rejected the estimated number of trees: “the surveyor’s figures were also not to be relied upon as he said he could not tell exactly the number of trees destroyed,” said the learned judge. In the event the method of assessment of damages that the learned judge adopted did not require a knowledge of the actual number of trees destroyed.
It has before been the practice of the courts to find out the number of such trees and then translate this figure into money by multiplying that number by the compensation per tree. This monetary conversion element may be anything between seven shillings to one pound per tree. As the learned judge said: “I myself have recently awarded ten shillings per a mature cocoa tree yielding fruits and seven shillings per young cocoa tree in similar cases which have come before me in this court.” However, in the instant case he thought it better to abandon this method for a “safer and more satisfactory basis for awarding compensation for damage caused.” This is the practice adopted by the Ministry of Agriculture in awarding compensation not for the number of trees, but for the acreage of trees destroyed. 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 out of the acre than his model farming brother, was bound to reap more than his brother out of the devastation
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of the farm. This, I think, is sufficient justification for the abandonment of the old method. The learned trial judge was right in basing his computation upon the acreage devastated and not the number of trees destroyed.
There was some dispute about the extent of the devastation. Against the figure of 7.89 acres put forward by the surveyor called by the respondent, the appellants put forward a devastated area of 2.206 acres, of which only 1.4866 acres was supposed to be grown with cocoa. The appellants’ figures were computed by their deputy general manager who is a civil engineer upon details prepared by his assistant after the respondent had pointed out the affected areas to the assistant. Unfortunately for the appellants the learned judge took a dim view of the expertise of the assistant who had no professional qualification, “but said he acquired his knowledge on these matters from mere experience.” It is not my view that experience always provides a worse teacher than the classroom, but this was a question of fact on which two contrary views were put forward. The acceptance of one necessarily involves the rejection of the other. Much as I doubt the soundness of the principle by which the one view was preferred to the other, I am not in the position to reverse the finding because there is nothing at this stage which leads me to the conclusion that the other figure is necessarily right. Reluctantly, therefore, I accept the area found by the learned judge as that which was devastated.Having decided on the area devastated in favour of the respondent the learned judge took the figure of £G50 per acre given by the appellants’ witness from the Ministry of Agriculture as the compensation per acre paid to farmers whose farms are destroyed by the Ministry and with it he computed the actual damage to the cocoa trees. His resulting figure was £G394 10s. The respondent in his cross-appeal complains that this figure is too low. I think there is some justification in this complaint. This witness from the Ministry clearly said that his department only dealt with diseased cocoa trees cut down by government. At times the department caused accidental damage to healthy cocoa trees. The £G50 per acre was paid irrespective of the size of trees destroyed and was applicable to both diseased and healthy trees. In any event the compensation paid by government was ex gratia. To my mind it is quite wrong to use a compensation figure paid by government as an ex gratia award to encourage farmers to replant their destroyed farms which were disease-afflicted; a compensation figure which in any case is based primarily upon the thinking that the trees destroyed were diseased to calculate the damage to a farmer whose trees, of which not one has been suggested to be diseased, have been destroyed by a private person. There was
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at hand a fairer basis for the calculation. For the appellants had in an exhibit given the Ministry of Agriculture’s view of the rate per acre which they thought timber concessionaires like the appellants should pay to farmers. In that exhibit the rate is given as £G100 per acre. I am inclined to the view that this is a fairer assessment for the devastation of a farm of healthy trees. I accordingly accept it in preference to the lower figure used by the trial judge. On that basis the damages for the destruction of the trees should be £G789 (N¢1,578.00). In the result I would allow the appeal to the extent of having the general damages of £G200 set aside. Otherwise, the appeal fails. The respondent’s cross-appeal should succeed to the extent of having special damages of £G789 (N¢1,578.00) substituted for the £G394 10s. (N¢789.00) awarded.
JUDGMENT OF AZU CRABBE J.A.
I agree.
JUDGMENT OF APALOO J.A.
I also agree that the appeal and cross-appeal be allowed to the limited extent proposed in the judgment of Amissah J.A., but as the appeal raised two somewhat novel points, I thought, I should express my concurrence in my own words.
There is, I think, nothing unique about a cocoa farmer bringing an action against a person who caused devastation to his farms seeking general and special damages. In my opinion, in the cocoa growing areas of this country, such actions are commonplace. The right of an aggrieved farmer to recover both general and special damages against an ordinary tortfeasor for destruction of his farm and cocoa trees has not, in my experience, ever been questioned nor could have been questioned with anything approaching reason.
But in this case, the appellants cannot be regarded as tortfeasors in any sense of that word. They are entitled to enter the land by reason of the fact that they are concessionaires and the right which the Concessions Ordinance confers on them is almost all-embracing. As I see it, the only basis on which they could properly be mulcted in general damages must be that their entry upon the land was per se a wrong redressible by the award of pecuniary compensation. If I am right in thinking that a concessionaire commits no wrong in entering land in respect of which he holds a validated concession, then there can be no rationale for awarding general damages.I think the learned trial judge was himself alive to the problem which the award of general, as opposed to special damages, posed in this case and he attempts in a somewhat verbose passage which my brother Amissah has quoted, to explain the basis on which the award was made. I share the difficulty which my brother Amissah experienced in comprehending the principles on which the learned judge
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acted. Whatever those principles are, they must, I think, be wrong. I agree therefore that the general damages be set aside. By common consent, the respondent was entitled to be compensated for the actual damage he sustained by reason of the activities of the concessionaires. Put in familiar terminology, the respondent was entitled to special but not general damages. This might seem curious but the reason for this has been explained in the very lucid judgment of my brother Amissah. I cannot improve upon that reason and I must say that he so effectively expressed my own views that I do not find it necessary to add anything. With regard to the method of assessing damages for a devastated cocoa farm, two methods were suggested to the learned judge, first, to put a pecuniary value on each cocoa tree destroyed or secondly, to fix a composite sum per acre. The first method which was urged on behalf of the respondent, was the more familiar of the two and the one in which the learned judge could derive a great deal of assistance from decided cases. Indeed, the judge himself said he had assessed damages on that basis in the past. But the judge broke away from the past and expressed preference for the alternative and less familiar method of assessing compensation by the acreage. He did not give anything like a convincing reason for his departure from well established precedent and I, who like him, have also assessed compensation on that basis in the past, was inclined at the initial stages of this appeal, to think that the newer method of assessing compensation by the acreage, was likely to result in diminished compensation to farmers and was, on that account, less than fair to them. I think differently now. Having listened to the argument of Mr. Franklin, counsel for the appellants, I am persuaded that the better method of assessment is by the acreage since the yield per acre is the same irrespective of the number of trees. Modern scientific equipment makes it easy for the acreage to be determined with great precision and if all the trees are, as in this case, healthy and of comparable age, the damage could be ascertained with practically no effort. I venture to hope, that like the learned trial judge in this case, judges faced in the future with the problem of assessing damages for devastated cocoa farms will discard the old method in favour of the new. With regard to the quantum of the compensation, I agree with the figure proposed.
DECISION
Appeal and cross-appeal allowed in part.
L.F.A.
