BOGOSO GOLD LIMITED v. THE ESTATE OF JOSEPH NTRAKWA & ORS

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