GLIKSTEN (WEST AFRICA) LTD. vs. APPIAH [1967]DLCA1499

Date	1967-06-27
Suit No.
Citation No.	[1967]DLCA1499

AZU CRABBE JA

APALOO JA

AMISSAH J.A.

H. V. A. FRANKLIN FOR THE APPELLANTS.

ANSAH TWUM (OWUSU-ANSAH WITH HIM) FOR THE RESPONDENT.

[1967]DLCA1499
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													<main id="main" class="content" style="min-height: 60rem" >GLIKSTEN (WEST AFRICA) LTD. <o:p></o:p>vs. <o:p></o:p>APPIAH <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 447<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 JUNE 1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

H. V. A. FRANKLIN FOR THE APPELLANTS.<o:p></o:p>

ANSAH TWUM (OWUSU-ANSAH WITH HIM) FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE, APALOO AND AMISSAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH JA.<o:p></o:p>Two
simple points arise out of this appeal from the decision of Lassey J. (as he
then was). The first is whether general damages can be awarded against a
concessionaire and in favour of the holder of customary rights for acts done by
the concessionaire in promotion of the objects of his concession. The second is
whether the special damages awarded in this particular case were properly
assessed.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants, Messrs. Gliksten (West Africa) Ltd., obtained a timber concession
over an area which included the respondent’s cocoa farms. The concession was
obtained in June 1947, and the court’s final order on it was made four years
later in June 1951. The concession contained the usual clause for the
protection of customary rights which includes farming. It is not clear whether
the respondent’s farms were in existence at the time the concession was
obtained. The vague references to time made in the course of the respondent’s
case indicate that the farms were started about the same time as proceedings
were being taken by the appellants to finalise their concession. Although the
learned trial judge devoted some time to analysing the law applicable when a
farm is grown before the grant of a concession and when it is grown afterwards
and seemed to have arrived, after his discussion of the problem, at the
conclusion that different principles apply to the different situations, I find,
with all due deference to him, the question of which preceded the other of very
little moment. Section 32 (1) and (2) of the Concessions Ordinance, Cap. 136
(1951 Rev.), are so sweeping in their conferment of rights on the
concessionaire, that fraud apart, his title is good against the whole world.
The provision reads as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) A
certificate of validity shall be good and valid from the date of such
certificate as against any person claiming adversely thereto, and shall be
effective in respect of the whole area of land contained by the boundaries
stated in such certificate, whether or not any discrepancy exists between such
area and the area indicated by the notice and plan of the concession referred
to respectively in subsections (1) and (3) of section 8. (2) A certificate of
validity (whether issued under the provisions of this Ordinance or of any
Ordinance repealed by this Ordinance) shall be conclusive evidence that all the
requirements of the Ordinance under which it was granted or purported to be
granted and all matters precedent and incidental thereto have been complied
with, and shall not be liable to be impeached by any person by reason of any
lack of notice of the boundaries or extent of the land in respect of which it
is given, or for any other reason or on any other ground save that of fraud to
which the holder of the concession is proved to be a party.”<o:p></o:p><o:p>&nbsp;</o:p>Thus even
if the holder of customary rights is on the land before the grant of the
certificate of the court validating the concession, the title of the
concessionaire takes precedence over the holder of customary rights. And only
such rights as are preserved by the law or in the concessions agreement will
continue as against the concessionaire.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent’s complaint is that some time in 1959, the appellants caused
extensive devastation to his farms at Sankore No. 2 and Sankore No. 3. This was
done as a result of the appellants felling timber in the farms and also
constructing roads and passes through the farms for the caterpillars which
carted the felled timber. All these activities were undertaken by the
appellants without the permission of the respondent. He therefore asked for
damages both general and special for the unlawful acts of the appellants.<o:p></o:p><o:p>&nbsp;</o:p>Obviously
the special damages are in respect of the economic trees, in this case cocoa,
which were actually destroyed by the appellants. The general damages cannot but
be for the alleged trespass committed by the appellants. The following is the
manner in which the learned judge dealt with the question of general damages:<o:p></o:p>