DIVISION: IN THE HIGH COURT, KUMASI
DATE: 30TH SEPTEMBER, 1963
BEFORE: APALOO J.
CASES REFERRED TO
(1) Nichols v. Marsland (1875) 10 L.R. Ex. 255; 33 L.T. 265
(2) Serwah v. Darkwa, High Court, 29th June, 1962, unreported
NATURE OF PROCEEDINGS
APPEAL from a decision of a circuit court dismissing the plaintiff’s claim for damages for destruction of
her farm as a result of fire lit by the defendant.
COUNSEL
Agyepong for the appellant.
Wiredu for Asumadu-Sakyi for the respondent.
JUDGMENT OF APALOO J.
This is an appeal from the judgment of a circuit court which on the 11th April, 1963, dismissed a claim by
the plaintiff against the defendant for damage suffered by the former as a result of the destruction by fire
of the plaintiff’s cocoa farm.
There is not a great deal of controversy about the facts and I state them briefly. The plaintiff and the
defendant own farms contiguous to each other at a place called Witreso at Odumasi, Ashanti-Akim. The
preponderance of the evidence is that both were cocoa farms. Some time in September 1961, the
defendant set fire to his own farm. This fire was spread by the force of a strong wind and caused damage
to the plaintiff’s farm. It is agreed by the witnesses that it was exceptionally dry weather and dry winds
were blowing from Agogo towards Konongo Odumase. The plaintiff accordingly claimed that the
defendant was negligent in setting fire to his own farm in those circumstances and in failing to prevent its
spread to her farm.
The defendant pleaded that he took all reasonable precautions to avoid the spread of the fire and
accordingly claimed that the fire spread accidentally and also by “Act of God.” The precaution which the
defendant said he took was that he cleared the confines of his own farm before lighting the fire.
His counsel has urged in this court that that is the ordinary farming practice and beyond that the defendant
need not go. The learned circuit court judge found as a fact that before setting the fire, the defendant
cleared the edges of his farm. He held that to be the known and accepted farming practice. He therefore
concluded “the burning of the plaintiff’s farm was therefore an ‘Act of God’ and the defendant is not
liable to the plaintiff for any damages, if any, suffered by her.”
Not unnaturally, the plaintiff appeals to this court on two grounds. Firstly, it was submitted on her behalf
that the judgment was unreasonable having regard to the evidence. The way in which the judgment failed
to conform to reason, counsel pointed out, was that although the court wholly cleared the defendant from
making reparation, he was himself offering by his letter, exhibit 1, to pay compensation for the damage.
The second ground of appeal, which counsel argued with rather more conviction, complains that the “learned circuit court judge erred in holding that the burning of the plaintiff’s farm was an ‘Act of God’. “Counsel referred to and relied on the definition of an “Act of God” in Winfield on
[p.342] of [1963] 2 GLR 340
Tort (6th ed.), p. 54 which defines it as “an operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate it.” It was said that such a defence could not
fit in with the facts of this case. To show the extent to which the operation of natural forces must be
unexpected to make a successful defence of an “Act of God” counsel refers to the well-known case of
Nichols v. Marsland.1
I do not understand counsel for the respondent to attempt to support the conclusion of the learned circuit
court judge that the burning of the plaintiff’s farm on the known facts of this case was an “Act of God” in
the accepted legal connotation of that term. To conclude that where the weather was known to be
exceptionally dry and windy and a man took the risk of lighting fire which then spreads in the ordinary
course of nature and causes damage, that damage was caused by an “Act of God” is to throw reason to the
winds. It is a fallacy which I should have thought was self-evident. In my judgment, there is nothing
remotely resembling an “Act of God” in this case and in so far as the learned circuit court judge
concluded this case in the defendant’s favour on that basis, I cannot feel any doubt that he was in error.
The facts of this case suggest plainly to my mind that the defendant was negligent in lighting the fire in
the state of the weather which was known and which was narrated by the witnesses. His counsel,
however, argued with force that there was no negligence and pointed to the finding of the learned circuit
court judge that the defendant before lighting the fire took the precaution of clearing the edges of his
farm. The only object of clearing the confines of the farm was to prevent the spread of the fire. But if the
weather was known to be exceptionally dry and windy, I should have thought commonsense would
suggest that such a course would be a wholly ineffectual preventative. A man who takes the risk of
lighting fire in those circumstances must at his peril contain the fire within the confines of his land or take
the consequences of its spread. I think the defendant ought reasonably to have envisaged that the
precaution which he took was wholly unequal to the risk which he ran and that in the state of the weather,
the fire would spread to neighbouring farms precisely as it did. There can be no doubt that he owed a duty
to his adjoining farmers not to cause damage to their property. I am satisfied he committed a breach of his
duty to the plaintiff and is liable to her for the damage she sustained.
Counsel for the respondent has urged on me not to see with what he called English eyes what ought
properly to be looked at with native eyes and not to impose liability where conduct conforms with what
local farmers themselves regard as blameless. In view of the impact which the common law has made on
our indigenous law and also our own administration of justice, I think this is a just and right-minded
observation. But it is to be remembered that the parties themselves considered this particular conduct to
be blameworthy and the defendant himself offered to pay monetary compensation for the damage. It
would be a little surprising if a
[p.343] of [1963] 2 GLR 340
rational system of law denied any remedy to a person in the plaintiff’s position who, through no fault of
her own was damnified by the culpable conduct of her neighbour. Indeed the defendant himself said,
“The farming practice in these matters is that I should go and inspect the farm and pay for the damage.”
Accordingly as I said, the plaintiff is entitled to damages which I must proceed to assess.
The plaintiff pleaded that the number of cocoa trees destroyed in her farm amount to 300 and claimed an
aggregate sum of £G150 for them. When the farm got burnt, the parties appointed a date to inspect the farm and to check the number of damaged trees as is customary. The agreed dates did not eventually prove suitable to the defendant. The plaintiff, however, sent Kwasi Adae and one Yaw Barimah to count the trees. The former gave evidence and said the damaged cocoa trees numbered 300. I did not read the cross-examination of this witness by counsel as disputing that number. The defendant himself was not in
the position to dispute that number. He failed to avail himself of two opportunities to check these trees.
The only person who said anything about the number of cocoa trees burnt in the plaintiff’s farm on the
defendant’s behalf was the defendant’s third witness by name Kwasi Beyden. He estimated the number as
40. He did not claim to have checked them and was obviously engaged in a form of guesswork. In so far
as it is necessary to credit one person as against the other, I certainly prefer the evidence of the man who
swore that he was sent for the express purpose of checking the trees and found them to be 300 to the man
who merely guessed the number. It follows that I am prepared to find and do find that the number of
matured cocoa trees burnt in the plaintiff’s farm was 300. The total sum of £G150 claimed by the plaintiff
as the value of the damaged cocoa trees works out at ten shillings per tree. I think that is reasonable and
indeed in the case of Serwah v. Darkwa2 in which I gave judgment, I accepted ten shillings as a fair value
of a matured cocoa tree. It follows therefore that I hold the plaintiff entitled to the sum of £G150 as
damages for the destruction of the cocoa trees.
The plaintiff also testified that foodstuff was damaged in her farm and estimated its value as £G50, which
sum she also claimed. The defendant is an adjoining land owner with the plaintiff and if no foodstuff was
damaged or destroyed by him, he would have said so. He himself said in cross-examination that the
plaintiff planted cocoyam, plantain and few cocoa trees. Far from disputing liability to the plaintiff in
respect of the foodstuff, he wrote a letter to the plaintiff (exhibit 1) agreeing to pay for the foodstuff as
well as the cocoa. It is not at all easy to assess damage for an unspecified quantity of foodstuff destroyed
along with 300 cocoa trees. But a wrongdoer does not get away because the assessment of damages is
difficult. In all the circumstances of this case, I think the fairest way of determining this matter is to split
the plaintiff’s claim on this head of damage into two equal halves and award her one half of the £G50
[p.344] of [1963] 2 GLR 340
claimed, that is, £G25. The plaintiff will therefore recover from the defendant the total sum of £G175 as
damages.
Accordingly, the judgment of the circuit court dismissing the plaintiff’s claim is set aside. For it, I
substitute judgment for the plaintiff against the defendant for the sum of £G175. The plaintiff will have
her costs in the circuit court assessed at 25 guineas and in this court assessed at 30 guineas. Any costs
paid pursuant to the judgment of the circuit court to be refunded to the plaintiff-appellant.
DECISION
Appeal allowed.
Judgment of the circuit court
set aside.
