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Tort – Damage
to farm -
Limitation
of
action – Statute bared - Damages
for negligence, breach of duty –
Whether or not plea ought to be
pleaded in compliance with the
Rules
- Whether or not the action
herein does not contain or
include a demand in the nature
of personal injuries - Whether
or not the nature of the tort
that provoked the issue of the
writ were of a continuing - the
tort or wrongful conduct was
repeated by the defendant from
any date while it was continuing
or the date of each such
repetition nature - Whether or
not liability for damage to the
cocoa crops was whether it was
caused by the act of the
defendants as a result of the
emissions of noxious fumes from
the plant that they had
installed - Whether the
plaintiffs were able to
discharge the obligation on them
to introduce sufficient evidence
in the action that would entitle
them to a determination in their
favour - 8 rule 11 - High Court
(Civil Procedure) Rules, CI 47
0f 2004
HEADNOTES
This is an
appeal from the judgment of the
Court of Appeal that allowed in
part the appeal lodged thereto
by the appellants herein
(hereinafter referred to as the
defendants). By its decision the
Court of Appeal affirmed the
finding of the High Court,
Sekondi with a variation in the
various heads of damages that
were allowed by the trial High
Court in favour of the
respondents (hereinafter
referred to as the plaintiffs).
It appears from the judgment of
the Court of Appeal that it
accepted the plaintiffs’ case
that the damage caused to their
cocoa farms was consequent upon
the erection of a plant in the
neighborhood by the defendants,
the defendant has in his
statement of case urged us to
the contrary. It was contended
on behalf of the defendant that
there was no proof of
causation between the conduct of
the defendant of emitting fumes
into the atmosphere and the
alleged damage to the cocoa
crops. The defendant also
strenuously attacked the award
of damages. It was contended
that in making the wards, the
Court of Appeal did not
distinguish between general and
special damages and that if it
had applied its mind to the fact
that the damages sought by the
plaintiffs were general it would
have made only a nominal award.
both the trial High Court
and the Court of Appeal accepted
the plaintiffs’ version of the
cause of damage to the cocoa
farms,.
HELD
Since the
defendant’s nuisance was coupled
with damages and the same has
already been computed, the award
of damages for nuisance in
respect of which the law
presumes damage as distinct from
proof of actual damage that was
allowed by the Court of Appeal
in favour of the plaintiffs were
wrong and accordingly the same
are hereby set aside. We have no
doubt in our minds that if the
learned justices of the Court of
Appeal had properly determined
that the nature of damage to the
crops was in nuisance they would
not have made a separate award
under this head also the result
of which was that the court had
made double awards for the same
head of damage.
STATUTES
REFERRED TO IN JUDGMENT
Limitation
Act, NRCD 54.
High Court
(Civil Procedure) Rules, CI 47
0f 2004
Evidence Act,
NRCD 375.
CASES
REFERRED TO IN JUDGMENT
Wilby v
Henman (1834) 2 Cr & M 658
Riches v
Director of Public Prosecutions
[1973] 2 All ER 935
Duke of
Brunswick and Luneberg v Harmer
(1849) 14 QB 185.
Sarkodie v F.
K.A Co Ltd [2009] SCGLR 65.
Cunrad v
Antifyre, Ltd [1932] All E.R.
Rep. 558 [1933] 1 K.B. 551
Standard
Chartered Bank Ghana Ltd v
nelson [198-99] SCGLR 810.
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, Volume 12
(Fourth Edition), paragraph 1114
DELIVERING
THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
SAM OKUDZETO FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOSEPHINE
HUDGES FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
J U D G M E N
T
GBADEGBE, JSC:-
This is an appeal from the
judgment of the Court of Appeal
that allowed in part the appeal
lodged thereto by the appellants
herein (hereinafter referred to
as the defendants). By its
decision the Court of Appeal
affirmed the finding of the High
Court, Sekondi with a variation
in the various heads of damages
that were allowed by the trial
High Court in favour of the
respondents (hereinafter
referred to as the plaintiffs).
It appears from the judgment of
the Court of Appeal that it
accepted the plaintiffs’ case
that the damage caused to their
cocoa farms was consequent upon
the erection of a plant in the
neighborhood by the defendants,
which emitted noxious fumes from
a chimney. Although the decision
on appeal to us was not specific
as to whether the cause of
action for the tort, on which
the action was based was in
nuisance or negligence, before
us the parties have conducted
their cases on the common ground
that for the plaintiffs to
sustain their claims there must
be proof by them that the
destruction to their farms was
caused by an unlawful act of the
defendant. Following the
decision of the Court of Appeal,
the defendant lodged an
onslaught on the delivery in
which several grounds of appeal
were filed in the notice of
appeal to this court.
We have
carefully examined the grounds
on which we are invited in the
nature of a re-hearing of the
matter herein to set aside the
decision of the Court of Appeal
and dismiss the action herein.
Those grounds in so far as they
are relevant raise for our
consideration the question
whether the finding of liability
for the destruction of the cocoa
farms and the consequential
award of damages were proper? We
think that it being so the
issues that turn on the
proceedings herein touch and
concern whether the plaintiffs
had discharged the evidential
burden on them to sustain the
issue of liability for the
damage to the crops and the
award of damages. Whiles these
issues are substantive, there is
one matter, which though not
turning on the merits of the
appeal herein we need turn our
attention to. It relates to what
has been set out in the
defendant’s statement of case as
a preliminary legal argument.
Although it
is not clear the rule of Court
under which the said point,
which was not contained in the
grounds of appeal, was taken,
since the parties have fully
argued it we should pronounce
upon it. The defendant contended
for the first time in this court
that from the evidence contained
in the record of appeal the
action herein is caught by
section 3(1) of the Limitation
Act, NRCD 54. The section
provides thus:
“An action
claiming
damages for negligence, nuisance
or breach of duty howsoever
the duty exists where the
damages claimed by the Plaintiff
for the negligence, nuisance or
breach of duty consists of or
include damages in respect of
personal injuries to any person
shall not be brought after the
expiration of three years from
the date on which the cause of
action accrued.”
In response
to the above, the plaintiffs
argue that to be a good
plea it
ought to have been pleaded in
compliance with
Order
8rule 11 of the High Court
(Civil Procedure) Rules, CI 47
0f 2004.Further to this, it was
said that
the action herein does not
contain or include a demand in
the nature of personal injuries
and therefore section 3(1)
of the Limitation Act on which
reliance is placed by the
defendant is inapplicable to the
proceedings herein. We think
that the submissions of the
plaintiffs on this point are
right; for the meaning of the
words by which the section in
contention is expressed do not
in their ordinary or extended
meaning have the effect that is
urged on us by the defendant.
This aside, the point that it
raises is one of mixed law and
fact and as such it should have
been pleaded earlier on in the
trial court to enable the
plaintiffs respond thereto. To
have it raised at this stage is
to deny the plaintiffs any
opportunity of answering the
factual basis of the argument on
which it is based. In our view,
having regard to the rule on
pleadings, it is the defendant’s
responsibility to raise the
defence of statute of limitation
even if it appears on the face
of the pleadings that the action
is caught by the statute of
limitation. When such a defence
is pleaded then the burden of
dislodging it shifts to the
plaintiff. See:
WILBY
v HENMAN (1834) 2 Cr & M 658.We
do concede, however, that in
appropriate cases, a statement
of claim that on its face
discloses that the period of
limitation has expired may be
struck out as disclosing no
reasonable cause of action. See:
RICHES
v DIRECTOR OF PUBLIC
PROSECUTIONS [1973] 2 All ER
935.The requirement of the
plea of limitation being pleaded
is to afford a plaintiff who
relies on any disability when
the cause of action arose such
as being an infant or ‘non
compos mentis’ to plead it fully
in his reply.
Further, a
consideration of the
circumstances of the action
herein tend to be supportive of
the fact that
the
nature of the tort that provoked
the issue of the writ were of a
continuing nature and as
such the
tort or wrongful conduct was
repeated by the defendant from
any date while it was continuing
or the date of each such
repetition. Therefore, on
this ground also the Limitation
Act appears not to be applicable
to the action herein. See:
DUKE
OF BRUNSWICK AND LUNEBERG v
HARMER (1849) 14 QB 185.
Having disposed of the
preliminary legal point,
we now
direct our attention to the
issue of liability for damage to
the cocoa farms of the
plaintiffs. While both the trial
High Court and the Court of
Appeal accepted the plaintiffs’
version of the cause of damage
to the cocoa farms, the
defendant has in his statement
of case urged us to the
contrary. It was contended on
behalf of the defendant that
there was no proof of
causation between the conduct of
the defendant of emitting fumes
into the atmosphere and the
alleged damage to the cocoa
crops. This raises in our
view the question
whether
the plaintiffs were able to
discharge the obligation on them
to introduce sufficient evidence
in the action that would entitle
them to a determination in their
favour on the issue of
liability for damage to the
crops? The answer to this may be
found in the
Evidence
Act, NRCD 375. The relevant
sections of the law are
contained in sections, 11 (4)
and 12 of the law, which require
the plaintiffs to prove their
case by a preponderance of the
probabilities. See:
SARKODIE v F. K.A Co Ltd
[2009] SCGLR 65.
The main
issue for determination on the
question of
liability
for damage to the cocoa crops
was whether it was caused by the
act of the defendants as a
result of the emissions of
noxious fumes from the plant
that they had installed? On
this, the plaintiffs introduced
sufficient evidence that before
the installation by the
defendant their crops were doing
quite well as was noted by the
harvest in 1988 to 1993. The
evidence discloses without doubt
that the defendant installed its
plant in the area around 1990.
Following this there was an
appreciable decline in the
harvest of the cocoa. There were
protestations from farmers over
the effect of the emissions on
their farms which were inquired
into and found to be credible
and compelled the defendant to
remove its plant from the area
in 1994.We think that the act of
removal of the plant in the wake
of protestations from farmers
coupled with the findings of
inspection teams make the
removal which was voluntarily
done by the defendant, a
conduct that reasonably entitled
the plaintiffs to infer that it
was being done to avert further
damage to their crops. Further,
following the evidence placed at
the disposal of the court by the
plaintiffs and the PW1, the
defendant was unable in my view
to prove that the damage was not
attributable to the emissions.
Indeed, on the state of the
evidence at the close of the
case of the plaintiffs, it was
such that required of the
defendant to
“raise a
reasonable doubt concerning the
existence or non-existence of a
fact by a preponderance of the
probabilities ……”
See: section
10 (2) of the Evidence Act,
1975, NRCD 323.
The
defendant’s evidence on the
likely effect of the emissions
on the crops of the plaintiffs
to say the least was bare and
when they attempted to dislodge
the effect of the inspection
report they relied on a witness
who did not testify from
knowledge obtained from his own
inspection of the farms but
rather sought to offer some
other interpretation to the
report of the inspection team.
We think that the defendant
could have made efforts to
provide the court with a more
cogent explanation of the cause
of the damage to the crops if
any were available and construe
their failure to do so against
them and conclude that on the
facts the more reasonable
conclusion to be reached on the
cause of damage to the crops was
the emissions from the
defendant’s plant. It is not
probable that the destruction
was caused by natural causes and
indeed the scientific evidence
that was tendered supported the
version of the plaintiffs as
other crops that were tried on
the land to verify the effect of
the emissions on the vegetation
proved adverse to the case put
forward by the defendant.
Then comes
the consideration whether the
conduct of the defendant was one
rooted in nuisance or
negligence. In the trial
court, the learned trial judge
considered these heads of
liability separately as he was
indeed bound to do since the
claims under both heads were not
expressed to be in the
alternative but in our thinking
in view of the continuing nature
of the tort that has affected
the property of the plaintiffs
it was one that sounded more in
nuisance than negligence. See:
CUNRAD
v ANTIFYRE, LTD [1932] All
E.R. Rep. 558 at 560; [1933] 1
K.B. 551 at 557.We make
bold to say that an act of
negligence may also constitute a
nuisance where it occasions a
dangerous state of affairs and
satisfies the other requirements
of nuisance. In our opinion the
cause of action herein is
connected with the user or
occupation of land and the
ensuing damage to the plaintiffs
cocoa farms arising out of the
user by the defendant – the
interference by the defendant
with the plaintiffs’ enjoyment
of the land on which their farms
were. On the evidence, the
interference with the rights of
the plaintiffs cocoa farms by
the emissions of fumes from the
defendant’s plant was unlawful.
We note that the issue of
nuisance was determined against
the defendant in the trial court
and affirmed by the first
appellate court and in these
proceedings the said
determinations have not been
proved to be either unreasonable
and or perverse such as to cause
us to intervene to reach a
different conclusion on the
facts and accordingly we reject
the lame attack on the question
of liability for damage to the
plaintiffs’ crops. In our
opinion, the Court of Appeal’s
finding in negligence on the
issue of damage to the
plaintiffs’ farms ought to have
been as mentioned in the course
of this delivery one in nuisance
and accordingly
we
proceed with the proceedings
herein on the basis that the
liability for the damage to the
crops was in nuisance, it being
an order that on the evidence
the court below could have made
if it had properly considered
the nature of the wrongful act
of the defendant.
The defendant also strenuously
attacked the award of damages by
the Court of Appeal. It was
contended that in making the
wards, the Court of Appeal did
not distinguish between general
and special damages and that if
it had applied its mind to the
fact that the damages sought by
the plaintiffs were general it
would have made only a nominal
award.
We have carefully and anxiously
considered the considerable
submissions urged on us in
support of this and have come to
the view that although the
damages were not specifically
pleaded, having regard to the
fact that they related to loss
of income over a period of years
that could not have been
reasonably computed by anybody
with arithmetical precision as
might be the case regarding for
example loss of wages or
salaries that were previously
predetermined under a contract
of employment or past expenses
incurred consequent upon a tort
such as hospital expenses,
travel and lodging expenses,
past nursing care and the like
the head of damage that was
suffered by the plaintiffs
flowing from the tortuous act of
the defendants included past
and future loss of income from
their farms. These earnings
being the natural consequence of
the defendant’s wrongful acts
were in their nature at large
and were to be awarded by the
court taking into account what
it considered fair and
reasonable .It appears therefore
that it is impossible for them
to have specifically pleaded
these as special damages and
that the proper mode of seeking
relief on them is to lead
evidence thereon for the trier
of fact and or a court of law to
assess the damages. The
statement that general damages
must be nominal is perhaps in
our view to broad in the context
of this case to be accepted as
correct. The correct position
that runs through a collection
of cases on the point is that
where an act of a defendant
ordinarily entitles a plaintiff
to an award of damages without
proof of actual damage such as
an act of unlawfully entering
upon the close of another, the
award under this head is general
damages, which in its nature is
nominal and only intended to
vindicate the right of the
occupier to have undisturbed
possession of his property.
Writing on the subject ‘Nominal
damages’, the learned authors in
Halsbury’s Laws of England,
Volume 12 (Fourth Edition),
paragraph 1114 at page 417
state as follows:
“ A plaintiff
is entitled to ‘ nominal
damages” where (1) his rights
have been infringed, but he has
not in fact sustained any actual
damage from the infringement, or
fails to prove that he has; or
(2) although he has sustained
actual damage, the damage arises
not from defendant’s wrongful
act but from the conduct of the
plaintiff himself; or (3) the
plaintiff is not concerned to
raise the question of actual
loss, but brings his action
simply with the view of
establishing his right.”
This being
the position, the learned
justices of the Court of Appeal
were right in describing the
awards as general damages. The
term “special damage” appears in
current usage to refer to past
pecuniary loss that is
calculable at the date of the
trial while “general damages”
relates to all other items of
damage whether pecuniary or non-
pecuniary. In the instant case,
the losses that were claimed by
the plaintiffs in the past were
such that they could not have
been precisely calculated by
them and as regards the future
incomes they were anticipated
and so equally incapable of
being calculated at the date of
the trial and thus fell into the
category of general damages
since their right to the amount
of damages was dependent on what
the court thought was fair and
reasonable.
The next
matter that comes up for
consideration is the award of
damages by the Court of Appeal.
It is to be observed that the
damages from the emissions to
the plaintiffs farms were
foreseeable for which the
defendant must suffer in its
pocket. In its computation of
the damages, the Court of Appeal
though varying the damages did
not particularly as regards the
general damages provide any
basis for the global award. The
Court ought to have provided a
rational criterion for the
awards. In our view it was not
proper for it just to have
varied the award by reducing it
without indicating what the
‘multipliers were’. Since the
Court of Appeal acted upon wrong
principles in assessing the
damages to the cocoa crops, it
is competent for us to reverse
the award. See:
STANDARD CHARTERED BANK
GHANA LTD V NELSON [198-99]
SCGLR 810.
Turning to
the damages suffered by the
plaintiffs as a result of the
tort committed by the defendant,
we wish to observe that since
the claim is essentially one in
general damages, the pleadings
and the evidence led on the
quantity of the yield per acre
are only anticipatory and are
only offered to enable the trial
court or the court to determine
from the totality of the
admitted evidence what it
considers fair and reasonable.
In the proceedings before us as
is revealed by the record of
appeal, the plaintiffs in their
statement of claim specified the
yield that they were having
prior to the installation of the
plant by the defendant. In the
evidence in support of their
claim to damages, they indicated
a yield that was over and above
what was contained in the
pleadings filed on their behalf.
In our view this should not
prevent the court from coming to
its view on what is considered
fair and reasonable. At the
trial before the High Court,
evidence was tendered by both
parties on what the yield from
the cocoa should be. While the
plaintiffs appeared from the
oral evidence tendered to have
exaggerated their loss, the
defendant on the other hand
sought by their evidence to
reduce the loss that they were
likely to suffer consequent upon
their wrongful conduct. In such
cases, the court proceeds by
taking into account all the
relevant circumstances and as
said earlier on in the delivery
herein making an award that is
fair and reasonable. In the case
of the Court of Appeal, which in
its judgment took the view that
the award by the High Court was
wrong thereby resulting in an
excessive and erroneous award,
it did not unfortunately
provide how it came by the award
that it substituted for that of
the High Court. All that was
said by the learned judge who
delivered the opinion of the
court was to the following
effect:
“The trial
judge awarded the 1st respondent
GH1 485, 000.00 and the 2nd
respondent GH 371,250.00 for
general damages and loss arising
out of gas pollution, poisonous
smoke etc caused by the
appellant to the respondents’
cocoa farms. On these awards
too, I shall award the 1st
respondent GH 990, 000.00.For
the 2nd respondent,
he would have his award assessed
at GH 248, 000.00.”
There is
obviously a legitimate ground
for complaint by the defendant;
for the above does not provide
any basis for reaching the
amount allowed as general
damages. The court ought to have
at least provided the figures
that were used as multipliers in
its computation. We think the
defendants were right in their
complaint and proceed to compute
the damages in terms of what we
consider to be fair and
reasonable and indeed in line
with the settled judicial
opinion in such matters.
We think that
the number of years allowed as
the remaining life span of
fifteen years which we may
describe as the years of
purchase so to say is reasonable
having regard to the evidence
that was placed before the court
by the parties. Regarding the
yield of cocoa per acre, we
think that four bags would be a
fair and reasonable quantity.
There is in our opinion no
credible challenge to the price
of a bag of cocoa as at the date
of the trial in the High Court,
which was put at GH 75.00 and
accept same. Based upon this
the damages of the 1st
plaintiff would be the number of
acres -132 multiplied by number
of bags per acre -4. This then
is multiplied further by the
price per bag of GH 75.00 that
is finally multiplied by the
years of purchase-15. In simple
arithmetical terms it comes to
132x4x75x15=GH 594,000.00. That
of the 2nd plaintiff
would be computed using the same
multipliers of 75, 15, and 4
but with a reduced acreage of
33. The 2nd
respondent’s award thus comes to
32x4x75x15=148,500.00.
Since the
defendant’s nuisance was coupled
with damages and the same has
already been computed, the award
of damages for nuisance in
respect of which the law
presumes damage as distinct from
proof of actual damage that was
allowed by the Court of Appeal
in favour of the plaintiffs were
wrong and accordingly the same
are hereby set aside. We have no
doubt in our minds that if the
learned justices of the Court of
Appeal had properly determined
that the nature of damage to the
crops was in nuisance they would
not have made a separate award
under this head also the result
of which was that the court had
made double awards for the same
head of damage.
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
COUNSEL:
SAM OKUDZETO FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOSEPHINE HUDGES FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
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