OSEI YEBOAH vs. BONTE GOLDMINES LIMITED [2000]DLCA6563

Date	2000-02-10
Suit No.	CIVIL APPEAL NO. 82/99
Citation No.	[2000]DLCA6563

WOOD (PRESIDING) BENIN J. A.

TWUMASI J. A

[2000]DLCA6563
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													<main id="main" class="content" style="min-height: 60rem" >OSEI YEBOAH<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>BONTE GOLDMINES LIMITED<o:p></o:p>(RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 82/99&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH FEBRUARY, 2000<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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CORAM:&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;<o:p></o:p>

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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>WOOD J.A.:<o:p></o:p>&nbsp;Unfortunately, I find myself unable to agree
with my two learned brothers and I am constrained therefore to give my opinion
in this case. This appeal which started off as a simple action between a farmer
living at Manso, Mpatum Ashanti and a mining Company, Bonte Gold Mines Limited,
raises interesting legal questions. I would however, before addressing those
issues, give a brief resume of the facts giving rise to this appeal. <o:p></o:p>The
plaintiff respondent sued the defendant appellant company in the Circuit Court
Kumasi for (1) a declaration of title to land and (2) damage for trespass. The
action was premised on the fact that the appellant company claiming to have
completely destroyed the whole of the 4000 teak trees cultivated on it, and
have refused or failed to compensate the respondent for the financial loss
suffered. In sum then, their case was that the appellants had no legal right to
be on the land.<o:p></o:p>&nbsp;At the hearing, the trial court found as a
fact that the appellants, having acquired a valid mining right and licence in
the land, was lawfully on the land and consequently dismissed the claims. She
however awarded respondent the sum of ¢2.6m as compensation. The appellant
company being dissatisfied with the decision has appealed to us on three
grounds namely:<o:p></o:p>&nbsp;“(a) Since there was evidence on the record
that the defendant had a legal right to be on the land by the grant of a lease
by the Government of Ghana to mine gold in the disputed area, and since by the
provisions of PNDCL 153 section 50 the defendant can destroy any crop trees on
the land for the purposes of carrying on their mining activities, the learned
trial judge erred in law when she held that the defendant had trespassed on to
plaintiff land. <o:p></o:p>(b)
Since the plaintiff did not lead any evidence as to the value of the teak tree
and since by the provision of PNDCL 153 section 71 it is only the Land
Valuation Board that can assess and approve compensation to be paid to farmers
whose crops are to be destroyed for mining purposes the learned trial judge
erred in law and occasioned a grave miscarriage of justice when she awarded an
amount of 2.5million cedis against the defendants as compensation to the
plaintiff. <o:p></o:p>(c)
The judgment is against the weight of evidence”. <o:p></o:p>It
is hardly surprising that the appellants abandoned the ground (a) Her
conclusion as far as original claims were concerned were dutifully explained as
follows:<o:p></o:p>&nbsp;“from the evidence on record, it is not in
dispute that the defendant company has the right to be on the land Exh.1 and
the fact that plaintiff accepted compensation for his food crop bear testimony
to this fact. That being so, plaintiff’s claim for trespass cannot be sustained
and same is dismissed. It is also not in dispute that plaintiff owns that piece
of land prior to Exh1”. <o:p></o:p>The
arguments advanced in support of the ground (2) is straight forward. It was
forcefully submitted that in matters of compensation for crops and other things
destroyed on any land pursuant to a mineral right granted by the Government of
Ghana, the only body that shall have authority to determine the quantum of
compensation is the Land Valuation Board. That being so, the argument
proceeded, the court was palpably wrong in holding that:— <o:p></o:p>“the
non valuation of the teak trees by the Land Valuation Board is not the sine qua
non of the payment of the compensation”. <o:p></o:p>The
further submission then was that the court erred in awarding the sum of ¢2.6m
as compensation even when he found as a fact that the respondents teak trees
have been destroyed, since the same amounts to a usurpation of the powers and
functions of the Board. Respondent counsel’s answer is simply that the
interpretation the appellant counsel has placed on the s.71 of the minerals and
mining law PNDCL 153 is clearly erroneous and the jurisdiction of the courts
were never intended to be ousted. His contention is that by a clear
construction of the s. 71 of the PNDCL 153, the board assumes the jurisdiction
to determine the quantum of compensation only where the parties fail or are
unable to reach an agreement as to the amount of compensation. Even so, it does
so in consultation with the Secretary. <o:p></o:p>Counsel’s
argument therefore is that in this instant case, in the situation in which the
respondent found himself, the proper forum for seeking redress is the court.
Counsel’s argument therefore is that in this instant case, in the situation in
which the respondent found himself, the proper forum for seeking redress is the
court. The s. 71 of the Mineral and mining law PNDCL 153 provides that:<o:p></o:p>&nbsp;“(1) The owner or occupier of any land subject
to a mining right may apply to the holder of the right for compensation for any
disturbance of the rights of such owner and for any damage done to the surface
of lands, buildings, works or improvements or to livestock crops or trees in
the area of such mineral operations” <o:p></o:p>