NICHOLAS AFFENYI & 76 OTHERS vs. ABOSSO GOLDFIELDS LTD [2014]DLCA5126

Date	2014-07-10
Suit No.	CIVIL APPEAL NO. H1/162/2012
Citation No.	[2014]DLCA5126

MARFUL-SAU JA (PRESIDING)

GYAESAYOR JA

TORKORNOO GERTRUDE JA

SALLY HAYFRON-BENJAMIN BOATENG FOR DEFENDANT/APPELLANT

DOUGLAS KORSAH BROWN FOR 1ST – 39TH PLAINTIFF/RESPONDENT

ALEX ABBAN FOR 40TH- 77TH PLAINTIFFS/RESPONDENTS

[2014]DLCA5126
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													<main id="main" class="content" style="min-height: 60rem" >NICHOLAS
AFFENYI &amp; 76 OTHERS<o:p></o:p>vs.<o:p></o:p>ABOSSO
GOLDFIELDS LTD<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="margin-left:.5in;text-align:center;
text-indent:-.5in;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO. H1/162/2012&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
JULY, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SALLY
HAYFRON-BENJAMIN BOATENG FOR DEFENDANT/APPELLANT<o:p></o:p>DOUGLAS
KORSAH BROWN FOR 1ST – 39TH PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ALEX
ABBAN FOR 40TH- 77TH PLAINTIFFS/RESPONDENTS<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;
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MARFUL-SAU
JA (PRESIDING), GYAESAYOR JA, TORKORNOO GERTRUDE JA<o:p></o:p>

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

</div>MARFUL-SAU, JA:<o:p></o:p>The
fundamental issue raised in this appeal is whether or not the trial judge was
right in ordering the appellant to pay adequate compensation for the farms of
the respondents as a result of the appellants agreement to relocate the
respondents from the village of Kyekyewere, near Tarkwa in the Western Region
of Ghana. The respondents totalling 77 in all by their amended writ of summons
filed on 4th December, 2003 sought the following reliefs against the
appellant:-<o:p></o:p>‘’i.Compensation
due to them for the farm crops lost by them due to their relocation as a result
of the activities of the defendant company.<o:p></o:p>ii.
Interest on such compensation from due date of final judgment at the prevailing
bank rate.<o:p></o:p>iii.
General damages for injuries and losses suffered by the plaintiffs as a result of
the adverse effects of the environment pollution caused by the defendant
surface mining activities and defendant’s failure to pay the agreed
compensation as scheduled.<o:p></o:p>iv.
Costs.’’<o:p></o:p>The
brief facts of the case are that the respondents who were all farmers alleged
that the surface mining activities of the appellant occasioned massive
environmental pollution that endangered human, animal and plant lives in their
community. The respondents alleged further that the air and their source of
water were polluted as a result of the mining operations of the appellant.
According to the respondents in view of the adverse effects on their community,
appellant offered the inhabitants of the area a choice between resettlement
package and relocation package. The respondents opted for the relocation
package under which according to respondents the appellant agreed to pay them
relocation allowance and compensation for their properties as well as food and
cash crops lost to them. <o:p></o:p>While
the appellant denied the alleged adverse effects of its operations on the
community, it admitted making the resettlement and relocation packages to the
respondents. The appellants however denied agreeing to pay compensation for
cash and food crops to the respondents. The appellants relied on the Kyekyewere
Resettlement/Relocation Agreement which was signed by representatives of the
parties herein on the 15th October 1999 and tendered in evidence as
Exhibit 4.<o:p></o:p>At
the end of the trial the court held that the activities of the appellants had
not caused any adverse environmental effect on the community as alleged by the
respondents as they were not able to prove same. The trial court also found
that by the agreement in Exhibit 4, the appellant did not undertake to pay compensation
for the farms belonging to the respondents. At page 324 of the record the trial
judge delivered as follows:-<o:p></o:p>‘’I
hold the view that these answers by Dr. Aubynn on the meaning of relocation are
contrary to his own definition in evidence –in- chief and re-echoed by DW4. It
is in evidence that 85% of the inhabitants of Kyekyewere are settler farmers.
These people who hail from various parts of Ghana and even Ivory Coast and Togo
opted for relocation; the effect of relocating to their new destinations is
that they will have to abandon their farms. This is evident in Dr. Aubynn’s
evidence as regards the resignation of the 1st plaintiff and his
intention to move to his farm at Praso in the Central Region. So therefore the
said relocates(sic) cannot be expected to come back from their new abode to
cultivate their farms.<o:p></o:p>Although
not legally obliged to resettle the Kyekyewere community, defendant at the
request of the community agreed to settle them. Defendant has itself offered
the people </main>