ATTRAAH vs. ABOAAH [1961]DLHC1984

Date	1961-09-30
Suit No.
Citation No.	[1961]DLHC1984

APALOO J.

AGYEPONG FOR THE APPELLANT

WIREDU FOR ASUMADU-SAKYI FOR THE RESPONDENT.

[1961]DLHC1984
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ATTRAAH

[HIGH COURT, KUMASI]

[1963] 2 GLR 340

DATE: 30TH SEPTEMBER, 1963.

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COUNSEL:&nbsp;&nbsp;

AGYEPONG
FOR THE APPELLANT.

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APALOO J.

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&nbsp;

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 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
lear</main>