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MENSAH v. AMAGYEI AND OTHERS


  • New
  • 1961-06-22
  • HIGH COURT
  • GLR 384-387
  • Print

OLLENNU, J.


Summary

Tort?-Compensation for destruction of cocoa farm in course of establishing a new township?-Whether townsmen generally agreed not to claim compensation?-Whether such agreement, if any, sufficient to estop individuals from asserting private rights in property.

Headnotes

In clearing a site for a new township, the plaintiff's cocoa farm, which contained also kola and palm trees, was destroyed. He sued the defendants, who are the Odikro and elders of the town, for damages, by way of compensation for the loss. The defendants alleged that the plaintiff was not entitled to compensation because the chief and townsmen including the predecessor in title of the plaintiff had earlier decided and agreed that no compensation should be claimed by, or paid to, any farmer whose farm might be affected by the project.

Judgement

ACTION by plaintiff for damages for cocoa farm destroyed in the course of clearing a site to establish a new township.

The plaintiff claims against the defendants jointly and severally the sum of G2,804, as special damages and G2,000 general damages for the destruction of his cocoa farm situate at a place called Abehe-Maso, for the purpose of using the site to build a new township. The said farm contained also kola nut and palm trees. The plaintiff inherited the farm from an uncle of his, one Agyekum.

The defendants admitted destroying the farm as alleged with all the said economic trees in it. Their defence is that the plaintiff is not entitled [p.385] to damages because the land was required for national purposes, i.e. raising a new township, and therefore the people, chief and elders of the two towns, i.e. Abirem and Mamanso who were going to build the new town, agreed that no compensation should be paid for any farms which might be destroyed in the process.

The issues which were raised on the pleadings for determination are: (1) was an agreement or decision reached or taken as alleged? and (2) if it was, is it binding upon the plaintiff ? The onus of establishing the affirmative of these issues is upon the defendants.

On the first issue the first defendant, the chief of Abirem gave evidence as follows:

?"The surveyor said that the layout would destroy some cocoa farms, but the people of Mamanso said that they knew that by all means some people's properties would be destroyed but they did not mind it. The Government Agent said that in that event he would permit the surveyor to make the layout. So the work was begun.?"

Continuing he said:

?"Yes because of the new town to be built I say that the people said that it does not matter if their properties were destroyed?".

D.W.1, an elder of Abirem gave evidence of the alleged agreement as follows:

?"The Krontihene of Akim, Kotoku, then acting as regent of Kotoku, the Government Agent, and the surveyor were invited to the site; there the Krontihene poured libation. In answer to the regent the people said that they had no objection to their farms being destroyed.?"

Under cross-examination this witness said:

?"It is correct that we have permitted some people to make foodstuff farms on portion of the land which used to be the plaintiff's farm?"

The next witness D.W.2, an elder of Mamanso, said: We all decided that if cocoa, kola nut, or palm trees were destroyed the owner should not claim compensation.?"

D.W.3, linguist of the Krontihene who poured the libation at the site upon direction of the Krontihene, when asked about the alleged agreement in examination in chief said:

"No, at that site I did not get to know of any agreement which had been arrived at between the people of the two towns. All that happened was that the Krontihene was asked to pour libation for the prosperity of the new town so he caused me to do it."

And this is what D.W.4 who was the surveyor at the time said:

?"As the setting of the building line back would mean destroying some economic trees on the demarcation, I asked what was to happen and I was told by the chiefs and the people there that it was a national affair and that no crop compensation would be paid for any destruction?".

And to the court the witness said:

?"When I put the question about the economic trees to be destroyed, it was only as to trees falling on the lines I would demarcate. I was not concerned about destruction generally for the building of the town, and I made that plain to the assembly.?"

[p.386]

I cannot find upon that evidence any clear decision or agreement arrived at by the chiefs of the two towns and their elders that no compensation should be claimed by or paid to any person whose cocoa farm might be destroyed, and as far as any assurances given to D.W.4 were concerned they were limited strictly to few trees which might fall within lines which he might demarcate in making the layout according to the prepared plan, and not generally with respect to destruction of large areas of farm for building purposes. I find that no decision was taken or agreement reached as alleged by the defence.

But even if such a general decision was taken by the chiefs and people of the two towns, the same will be ineffective in so far as it purports to affect individual rights in property. For an individual to be deprived of his rights in property it must be shown that he personally agreed to waive that right. In so far as the said decision is to be regarded as law made by the chief and elders, it is ultra vires the council of the chiefs to make such declaration which interferes with vested individual private rights, and to make law other than by the procedure laid down by Ordinance for declaring or changing the customary law.

It was alleged that Agyekum the predecessor in title of the plaintiff was present at the meetings where the scheme to build a new town was agreed upon; and should be deemed to have acquiesced in any act done in pursuance of that scheme no matter its effect. In the first place, I do not believe that Agyekum was present at any such meetings. I accept the evidence of the plaintiff that at the time the scheme was being discussed Agyekum was too old to be able to go to the farm and could not have been present at the said meeting on the farm. In any event even if Agyekum agreed to the scheme, i.e. to build a new town on the site, that does not necessarily imply that he thereby agreed that the source of his livelihood, his cocoa farms, should be destroyed without compensation, as to create an estoppel by conduct; see the case of Sasu v. Asomani anor.1 The parties to that suit were subjects of the Kwahu stool. The plaintiff had, for nineteen years, been an abusa tenant occupying and farming a portion of the defendant's family land. A few months before the commencement of the suit, the Omanhene of Kwahu and his elders took a decision and made an order forbidding the practice of one Kwahu subject taking land on abusa tenancy of another Kwahu subject or family. By reason of the said decision and consequent order of the Omanhene and the elders of Kwahu, the plaintiff refused to give a one-third share of the proceeds of his farm to the defendant, whereupon the defendant entered the farm and seized the cocoa pods which had been harvested by the plaintiff and gathered together at a spot in the farm. The plaintiff sued him for damages for trespass. The trial native court held that the said decision or order of the Omanhene and his elders could not take away the rights of the defendant to be paid the one-third share of the proceeds of the farm, and that in so far as the order was a declaration or variation of customary law, it was null and void as not made in compliance with the Ordinance then in [p.387] force, i.e. section 20 of the Native Authority (Colony) Ordinance2. The native court therefore held that the defendant was entitled to claim his one-third share of the proceeds of the produce of the farm, notwithstanding the decision and order of the Omanhene and the elders, but that he was wrong in going upon the farm and collecting the whole of the produce. They thereupon entered judgment against the defendant. On appeal to the Land Court, Accra, the decision of the native court was upheld by Quashie-Idun, J. as he then was. It may be observed in passing that in holding that the defendant should not have re-entered the farm, both the native court and the learned judge overlooked the fact that by the refusal of the plaintiff to pay the abusa (one-third) share of proceeds to the defendant, the plaintiff denied the title of his abusa landlord, and by customary law rendered himself liable to forfeit his tenancy. Consequently, the entry by the defendant was an act of forfeiture and was justified by customary law.

But, apart altogether from what has been stated above, the alleged decision or agreement is so vague and ambiguous that in my opinion it amounts, at its best, to nothing more than an expression of willingness by the elders generally that their farms should be destroyed in the national interest, subject to payment of reasonable compensation being made to them. I therefore hold that the plaintiff is entitled to make the claim.

And now what damage has the plaintiff suffered apart from the general damage which flows from trespass? His evidence that the farm was a large one was corroborated by D.W.1.; even D.W.2 who said that the farm was a small one said it yielded 55 loads of cocoa a year. I found that witness D.W.2, to be unreliable, and I reject his evidence. But even if his figure of 55 loads a season is accepted it would mean a loss of G220 a season at the price of G4 a load or G165 at the price of G3 a load. When this amount is capitalised for ten years, it would come to a considerable sum. And if the calculation is made on the basis of 180 loads a season, which I accept, the loss would be considerable. Then there are kola nut trees and the palm trees. Upon the moderate view, making allowance for labourers' wages and other expenses I think G700 would be the smallest damage the plaintiff suffered.

There will be judgment for the plaintiff against the defendants jointly and severally for G700 damages, with costs fixed at 60 guineas.

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

O. Asamoah

Referals

Sasu v. Asomani & anor. (1949) Oll. C.L.L.171.

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