LOGS & LUMBER LTD. vs. OPPON [1977]DLCA1351

Date	1977-05-26
Suit No.
Citation No.	[1977]DLCA1351

APALOO JA

LASSEY JA

ANIN J.A.

T. A. TOTOE FOR THE APPELLANTS.

HUGHES FOR THE RESPONDENT.

[1977]DLCA1351
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													<main id="main" class="content" style="min-height: 60rem" >LOGS &amp; LUMBER LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>OPPON <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 263<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:
26 MAY 1977<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">

T. A. TOTOE FOR THE APPELLANTS.<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">

APALOO, LASSEY AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
appellant company (which I shall hereafter call the company) appeals against
the judgment of the High Court, Sekondi, which awarded against it, general and
special damages for trespass and conversion.<o:p></o:p><o:p>&nbsp;</o:p>Actions
for damages for trespass are everyday fare in the courts. The unique feature of
this case, is that although the suit was in its objective compensatory and not
penal, the evidence which was led and accepted, shows that it is also one in
which the State can assert its right to institute criminal proceedings against
the company. That the judge regarded the suit in this light, is shown by the
fact that although he awarded the respondent full compensation for the loss
that he was supposed to have sustained, he also awarded in addition to this
sum, punitive damages. Indeed the judge made no secret of the fact that he was
awarding exemplary damages. He said so in express terms and used expressions
which fit snugly the familiar deterrent theory of criminal justice. He said:
“It is quite evident that the deterrent aspect has been emphasised in this
case. It is, I think, to prevent other persons of the ilk of the defendants
from committing acts of trespass of this nature that exemplary damages are
awarded.” He then awarded the colossal sum of ¢62,217.75 as damages.<o:p></o:p><o:p>&nbsp;</o:p>That one
set of facts can amount to both a crime visitable with criminal penalties by
the State and also, actionable in civil proceedings at the suit of the injured
person, is trite learning. The only policy requirement is that in such a case,
civil proceedings should be suspended until penal proceedings have been
concluded by the State: see Smith v. Selwyn [1914] 3 K.B. 98, C.A. It was not
suggested that the present action was incompetent because criminal proceedings
were not first instituted by the State against the company before the
respondent launched this litigation. The only significance of this point is
that had these proceedings been penal rather than compensatory, the evidence of
one Affuako, the key witness on whom the proof of trespass against the company
turned, and whose evidence was accepted without question by the judge, would,
by a well recognised rule of law, have received special treatment.<o:p></o:p><o:p>&nbsp;</o:p>Now the
facts which are, in the main, straightforward. The respondent is the grantee of
a timber concession in the Subri Forest Reserve. His grantor was the government
and the grant, which was by way of lease, gave the respondent exclusive right
of felling timber in the concession.<o:p></o:p><o:p>&nbsp;</o:p>It is a
large area covering about ten square miles odd. The government also made a
similar grant to a partnership in which goes by the name of Kwasi Boateng and
Gyamfi Co. in the same forest. Accordingly, the respondent and the partnership
share a common boundary. The extent of the partnership’s grant is unclear but
nothing in this case turned upon that. But it is agreed that the boundary
between the respondent and the partnership is marked by a stream called
Ntamango in the South. A technical officer of the Forestry Department, who knew
this stream, said it meanders with many tributaries. On the north right down to
south the boundary between the respondent and the partnership’s concession is
said to be marked with a cut line Late in 1969, the partnership granted the
company who are sawmillers based in Kumasi, felling rights in its concession.
The latter was shown the extent of the partnership’s concession and its
boundary with the respondent at the Ntamango stream. The company accordingly
entered upon the partnership’s concession and felled a number of trees. There
is evidence that in the course of its operations, the company went beyond the
Ntamango stream and felled fifteen trees in the respondent’s concession. The
respondent complained about this to the Forestry Department and the company
having felt satisfied that its servants indeed went beyond the boundary into
the respondent’s concession, settled this matter by paying to their grantor,
that is the partnership, compensation of ¢6,000.00. But in truth only one-half
of this sum, namely, ¢3,000.00 was paid over to the respondent apparently
because the respondent had, for this part, trespassed into the partnership’s
concession and felled a number of trees. So the partnership retained ¢3,000.00
of this sum to recoup itself. Indeed the respondent himself said in
cross-examination, “That I have some time ago trespassed into the defendant’s
concession.” The broad picture which emerges, is that here are two timber
contractors ope</main>