Fortune v Sherbro Minerals Ltd, 1972-73 ALR S.L. 169

SECTION 26 FORTUNE v. SHERBRO MINERALS LTD.,l972-73 ALR S.L.169 H.C. I hold that a state of public emergency was in existence at the time each of the applicants was apprehended and detained and that the respondent did not unlawfully detain any of the applicants nor has it been established in this court that any of them has been unlawfully detained up to judgment. I hold that the orders signed 5 by the President under which the respondent apprehended the applicants and detained each of them were in every respect valid. I refuse the application of each of the applicants to be discharged or released from the custody of the respondent. I set aside the proceedings herein in respect of each applicant, including the writ 10 of habeas corpus issued in respect of each applicant, and order that the costs of the matter in each case be paid by the applicants, such costs to be taxed as between party and party. Applications dismissed. FORTUNE v. SHERBRO MINERALS LIMITED High Court (Tejan, J.): November 23rd, 1972 15 (Civil Case No. 419/70) 20 [ 1] Tort-rule in Rylands v. Fletcher-definition-person who, in course of non-natural user of land, brings on to it anything likely to cause damage if it escapes, strictly liable for all direct consequences of escape unless caused by plaintiff or Act of God: Under the rule in Rylands v. Fletcher a person who, in the course of a non-natural user of his land, brings or 25 accumulates on it anything likely to cause damage if it escapes is liable for all the direct consequences of its escape even in the absence of negligence, unless the escape is caused by the plaintiff or an Act of God; and the rule therefore applies to the escape of water accumulated on land by damming a stream, which escape causes the destruction of property attached to adjacent land (page 173, lines 31-36; page 174, lines 3-7; 30 page 174, line 22- page 175, line 32; page 176, lines 2-4, lines 9-13. The plaintiff brought an action against the defendants claiming damages for the destruction of his property by flooding caused by the escape of water from the defendants' dam. The plaintiff lived in a village close to land leased by the defend- 35 ants. The defendants obtained permission to construct a dam on a stream on their land. The area was surveyed before the work was carried out and precautions against flooding were taken during the construction of the dam. However, in 1968 water escaped and flooded land surrounding the plaintiff's village, destroying some of 40 the plaintiff's crops. The defendants' company paid compensation 169 THE AFRICAN LAW REPORTS for the damage. In 1969 more extensive flooding occurred, and the plaintiff's village was destroyed, crops were ruined and the drinking water supply so polluted as to be unfit for human consumption. 5 The District Officer received delegations from the village complaining of hardship suffered by the villagers but despite rep­ resentations to the defendants' company, no steps were taken to alleviate the problem and no compensation was paid. The plaintiff then brought the present proceedings against the 10 defendants claiming special and general damages for the destruc­ tion of his houses and crops and the pollution of his drinking water supply by the flooding in 1969. He based his claim on the rule in Ry lands v. Fletcher with alternative claims in negligence and nuisance, contending that by building the dam the defendants 15 had accumulated a quantity of water that would not have been found on their land in its natural state and, although they had taken some precautions, that they did not relieve them of responsi­ bility for the consequences of its escape on to the plaintiff's land. Despite the evidence the defendants argued that the precautions 20 they had taken were sufficient and had contained the flood so that the extent of the damage was not as serious as had been represented. Judgment was given for the plain tiff. Case referred to: 25 (1) Rylands v. Fletcher (1868), L.R. 3 H.L. 330; 37 L.J. Ex. 161, applied. 30 35 40 Minah for the plaintiff; Barlatt for the defendants. TEJAN, J.: In this action, the plaintiff is claiming damages for the destruc­ tion of his houses, economic trees and drinking well due to the construction of a dam in Motinga village by the defendants. The plaintiff, who is a farmer, lived in a village called Mosama near the village of Motinga. The evidence of the plaintiff was that in 1969, water accumulated in the dam by the defendants escaped and damaged seven houses owned by the plaintiff. The total cost of these houses was Le 1200. The plaintiff also alleged that his plantations, from whose crops he was earning the yearly sum of Le789 were also destroyed by the water that escaped from the dam. [The learned judge reviewed the evidence and continued:] 170 FORTUNE v. SHERBRO MINERALS LTD., 1972-73 ALR S.L. 169 H.C. It seems from the evidence, that the origin of this case was when the Paramount Chief wrote a letter to the District Officer on October 28th, 1968. As a result of this letter, the Assistant District Officer visited the village in the company of Mr. Fofana and a european officer of the company. The report of the Assistant 5 District Officer is contained in a letter addressed by him to the District Officer. It is clear from his report that a little over half of the area surrounding the village was flooded with deep water which covered all the venefera or raffia palms and some economic trees. In some areas, all the swamp rice farms were covered with 10 water. With regard to this, the company's representatives informed the Assistant District Officer that a list of the economic trees and rice destroyed by the flood had been submitted to the District Officer. As a result of the threatened flood, the villagers made certain demands which the company refused to meet. The plaintiff 15 himself said that he received compensation for his ground nut and rice farms destroyed in those floods of 1968. From what I understand from the evidence, another flood due to the construction of the dam, affected the area of Mosama village in 1969. 20 [The learned judge referred to letters written to the District Officer about the threat of flooding and continued:] On October 16th, 1969, the District Officer had cause to write a letter to the company, in which he said that he was informed that the flood situation at the Mosama Slimes Retention area 25 seemed to be going up higher than it was in October 1968, causing some hardship to the villagers who had to ferry to and fro on flimsy rafts made of logs tied together. The letter further stated that this was not a safe way of travelling through the flood area. This letter is self-explanatory and it shows that there was a flood 30 in 1968, and another flood in 1969. The letter also portrays the perilous position of the villagers and the hardship and incon­ venience to which they had been subjected on account of the defendants bringing machinery on to their leased land to construct a dam. Moreover, the villagers were deprived of drinking water and 35 had to use pontoons not only to go about, but also to go to their farms. No reply was sent to the District Officer by the company, and on May 27th, 1970, the District Officer was compelled to write another letter to the defendants as a result of another delegation 40 from the village. The delegates complained that the defendants' 171 THE AFRICAN LAW REPORTS m1nmg operations were causing them tremendous hardship and making their lives unsafe. They further complained of their water supply which had been so polluted as to render it very dangerous to drink. 5 Instead of the company taking some steps at least to alleviate the indescribable sufferings of the villagers, one Mr. Mosher, the then Personnel Superintendent replied to the District Officer's letter of May 27th, 1970. It is clear from this reply that some of the residents in the village had left to find other villages to start 10 new lives when the company would not do anything to make their lives a bit safe and comfortable. Mr. Mosher said that the company had offered to dig one or more wells for the convenience of the residents, and that the remaining residents had been informed that the company would discontinue putting slimes in the Motinga 15 reservoir late that year or early the next year. This letter was dated June 15th, 1970, about eight months after the complaints were made. Mr. Mosher further stated that the Town Chief indicated that water supply was not really the problem but that they wanted to relocate their town to Ngandohu and that the residents were 20 only interested in being paid for the remaining buildings. Frankly, I am not surprised that the people of Mosama should want to vacate the village. Their lives had never been safe since the company undertook to construct a dam. They had no water to drink, and the reasonable thing to do was to abandon the village 25 since the company had made it plain that in spite of their sufferings they would continue to use slime up to early 1971. The residents then asked the company to pay for their houses, crops and lands, and I think rightly, to enable them to go somewhere else to start their new lives. 30 The defence set up in this case, in my view, is not only frivolous but an insult to the intelligence of this court. The defendants say that Mosama is on an upper region and therefore it was not possible for the flow of water from the dam to get to the village. Mr. Fofana in his evidence said: "I agree that Mosama village is higher up the 35 stream than Motinga. There was no instance when Mosama village was damaged as a result of overflow of water from the dam." This evidence is incompatible with the facts stated in the letters written by the District Officer, by Mr. Fofana himself, and by Mr. Mosher. On September 26th, 1969, Mr. Fofana wrote a letter in which 40 he stated that the coffee farms of Mr. Kamara and Mr. Conteh of Mosama village had been flooded due to the construction of the 172 FORTUNE v. SHERBRO MINERALS LTD., 1972-73 ALR S.L. 169 H.C. dam. This is clear evidence that Mosama village was affected. The report written by the Assistant District Officer in 1968 states that over half of the area surrounding the village was flooded and the District Officer's letter dated October 16th, 1969 speaks of the flood going up higher than it was in October 1968. Considering all 5 the documentary evidence in this case, the proper inference to be drawn is that the flood reached the village and damaged the houses and plantations of the residents. Even Mr. Moses Kargbo, the Assistant Superintendent of Police, who visited the village together with Mr. Fofana said that he saw many houses which were dam- 10 aged, and that although the foundations of the least damaged house were intact, the walls and roof of this house had also fallen down. There is no doubt that the flood got worse in 1969. Desperate efforts were made by the villagers through the recognised channels. They complained to their Paramount Chief and to the District 15 Office. The District Officer addressed letters in desperation to the company calling the attention of the company to the hardships caused to the villagers by the company's operation in the area. When neither the villagers nor the District Officer could get the defendants to take steps to remedy the situation, the residents of 20 the village, including the plaintiff, had to abandon the village, leaving their homes and plantations to be destroyed by the defend- ants. I accept the evidence of the plaintiff and his witnesses. I also believe the Assistant Superintendent of Police that when he visited the village, he saw damaged houses, and that the roofs and walls of 25 one of the least damaged houses had fallen although the foun­ dations were intact. With regard to Mr. Fofana I confess that I cannot place any reliance on his evidence. The plaintiff is claiming damages, basing his claim on the rule propounded by Blackburn, J. in the case of Ry lands v. Fletcher 30 ( 1) with alternative claims in nuisance and negligence. The rule in Rylands v. Fletcher is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which 35 is the natural consequence of its escape. This case was started at Liverpool Assizes, and by a judge's order, an arbitrator had to state a special case. The case went to the Court of Exchequer and by a majority decision was decided in favour of the defendant. The Court of Exchequer Chamber unanimously reversed the 40 decision. In 1868, the case went to the House of Lords and there 173 THE AFRICAN LAW REPORTS the rule was stated by Lord Cranworth as follows (L.R. 3 H.L. at 340; 37 L.J. Ex. at 165): "If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, 5 he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and what­ ever precautions he may have taken to prevent the damage." In this case the defendants caused a reservoir for water to be constructed on their own land. They employed for the purpose a 10 competent engineer and contractor. The district was a mining district, and it happened that at the site selected there were some old vertical shafts which, as it turned out, led down to some old abandoned coal workings. These vertical shafts, half filled with earth, were discovered by the workmen while making the reservoir, 15 but they filled them up and stopped them with such skill and caution as was deemed necessary. Subsequently, the reservoir being filled, the water forced its way down these shafts, and, escaping into the old workings, flowed through them and flooded the coal mine. 20 In his judgment, after stating the facts, the Lord Chancellor said (L.R. 3 H.L. at 338; 37 L.J. Ex. at 164): "My Lords, the principles upon which this case must be determined appear to me to be extremely simple. The Defend­ ants, treating them as the owners or occupiers of the close on 25 which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or under- 30 ground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the Plaintiff, the Plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by 35 leaving, or by interposing, some barrier between his close and the close of the Defendants in order to have prevented that operation of the laws of nature. As an illustration of that principle, I may refer to a case which was cited in the argument before your Lordships, the 40 case of Smith v. Kenrick in the Court of Common Pleas ... On the other hand if the Defendants, not stopping at the 174 r I FORTUNE v. SHERBRO MINERALS LTD., 1972-73 ALR S.L.169 H.C. natural use of their close, had desired to use it for any pur­ pose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner 5 not the result of any work or operation on or under the land, -and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were 10 doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the Defendants 15 would be liable .... My Lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case. The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment in the Court of 20 Exchequer Chamber, where he states the opinion of that Court as to the law in these words: 'We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; 25 and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the Plaintiff's default; or, perhaps, that· the escape was the consequence of vis major, or the act of God; but as nothing 30 of this sort exists here, it is unnecessary to inquire what excuse would be sufficient." The facts of the present case before me are almost identical with the facts in the case of Rylands v. Fletcher (1). There is evidence that the defendants were the lessee of land on which there was an 35 already existing natural stream. The defendants, not stopping at the natural use of this stream, decided to construct a dam on it, and which the Lord Chancellor termed a non-natural use, and in construction of the dam, water escaped and flooded the plaintiff's land, causing damage to the crops on his plantations, and to his 40 houses. In such a case, I think the rule in Rylands v. Fletcher (1) 175 THE AFRICAN LAW REPORTS applies and that the defendants are liable for the damage caused. The defendants have not shown by evidence that the escape was due to the plaintiff's default. They have also failed to show that escape was the consequence of an Act of God. 5 There is evidence that the area was surveyed before the work was carried out, indicating that precautions were taken in the construction of the dam. But under the rule this is no excuse and Lord Cranworth in Rylands v. Fletcher said (L.R. 3 H.L. at 341; 37 L.J. Ex. at 165): "In considering whether a Defendant is liable 10 to a Plaintiff for damage which the Plaintiff may have sustained, the question in general is not whether the Defendant has acted with due care and caution, but whether his acts have occasioned the damage." I am satisfied with the evidence of the plaintiff and his witnesses 15 and I believe that the plaintiff's plantations and houses were damaged owing to the defendants' construction of a dam on a stream on their land. I also believe the evidence of the plaintiff with regard to the crops and houses destroyed and as to their value. Having regard to the circumstances of this case, I will give 20 judgment for the plain tiff. With regard to the assessment of general damages, I think it will be right to take into consideration the hardship the plaintiff suffered and the attitude of the defendants when called upon to alleviate his suffering. The plaintiff and his family had to abandon 25 their village, leaving behind his farm and plantations and his houses, to go and find a new home in a strange village. The plaintiff no doubt would have to arrange to have a farm in the new village. All these factors, having been taken into consideration I think I will make the following orders in favour of the plaintiff: 30 (a) That the defendants pay to the plaintiff the sum of Le1,200 as general damages; (b) that the defendants pay to the plaintiff the sum of Lel,998 as special damages; and (c) that costs are to be taxed and paid by the defendants. 35 Judgment for the plaintiff. 40 176