MARGARET DAMPARE v. BSD MINING COMPANY LTD.
2021
COURT OF APPEAL
GHANA
CORAM
- SOWAH, J.A. (PRESIDING)
- OPPONG, J.A.
- MENSAH-HOMIAH, J.A
Areas of Law
- Tort Law
- Property and Real Estate Law
- Civil Procedure
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Cecilia H. Sowah, J.A., delivered a Court of Appeal judgment in a dispute between the lawful representative of the Akosua Kwatemaa family of Akyem Juaso and a mining company that constructed an access road through the familys farmland despite objections, damaging crops. The High Court found trespass, awarded GH25,000 general damages and GH30,000 nominal damages after holding special damages unproven. On appeal, the company challenged the quantum, and the plaintiff sought variation to enhance damages. Reviewing the record, the Court of Appeal affirmed trespass and the failure to strictly prove special damages, but held that the trial court erred in awarding nominal damages where general damages were also awarded, applying the Supreme Courts Askus authority. The court further concluded the GH25,000 general damages were unreasonably low given deliberate harm and the time to restore the farmland, and enhanced the award to GH45,000. Justices Oppong and Mensah-Homiah concurred.
JUDGMENT
SOWAH, J.A:
In this judgment I will refer to the plaintiff/respondent who is the lawful representative of the Akosua Kwatemaa family of Akyem Juaso as the “plaintiff” and the defendant/appellant company as the “defendant”.
The appeal is against the judgment of the High Court, Koforidua, dated 2nd April 2020. The judgment is at pages 206-221 of the record of appeal.
Brief Facts
The plaintiff alleged in her pleadings that the defendant defied her objections and constructed an access road through her farmland to undertake prospecting activities and had destroyed food and cash crops. She thus sought five reliefs in her writ of summons filed on 7th November 2018. Namely, a declaration that the actions of the defendant constituted trespass, perpetual injunction, special damages, general damages for trespass and punitive costs.
The special damages were particularised as follows:
Wilful destruction of over six hundred (600) cocoa trees
Wilful destruction of over fifty (50) plantain suckers
Wilful destruction of over one hundred (100) cocoyam plants
Destruction of the topography of the farmland and erosion of soil nutrients required by plants and crops to mature.
In its statement of defence, the defendant averred that it held a mining right over the area where it created the access road and denied that its activities had caused the destruction alleged by the plaintiff. It however admitted “off drops from the blade of the earth moving machine which covered about 0.111 acres of plaintiffs' land” and offered to pay compensation for the affected area based on a court-ordered survey and valuation of the crops affected.
Pursuant to a court order, a Surveyor was appointed and survey instructions filed by both parties who both amongst others, requested a composite plan and a determination of the size or acreage of the portion of the farmland graded by the defendant. The surveyor presented his report to the court and was cross-examined by both parties. [See pages 141-143 of the record]. He determined that the affected area was 0.29 acres.
Decision of trial court
At the end of the trial at which the plaintiff testified and the defendants' representative also testified; both without calling witnesses, the trial court gave judgment in favour of the plaintiff/respondent.
The trial Court found that the damage to the plaintiffs' land was not drop-offs but a carefully created access route and this constituted trespass.
The plaintiff was awarded GH¢25,000