Atta and Others v. Esson

Atta and Others v. Esson

[1976] 1 GLR 128.

Court of Appeal, Accra

5 December 1975

Appeal against a decision of the High Court in favour of plaintiff in an
action for damages for trespass and appeal injunction. The facts are sufficiently
stated in the judgment of the court.
J.B. Short (E.F. Short with him) for the appellants.
Ampiah for the respondent.
Amissah J.A. delivered the judgment of the court. The plaintiff and his
family have been declared by a series of judgment and an arbitration award
to be tenants in perpetuity of the first defendant’s family in respect of a large
piece of land in the Central Region. In spite of these judgments the plaintiff and
his people have been denied the quiet enjoyment of the of the land which they
feel themselves entitled to. The latest act of the defendants which precipitated
this action was the felling of palm trees which the plaintiff claimed his family
had cultivated on the land. On account of this alleged interference with the
plaintiff’s family right, the plaintiff brought this action claiming damages from
the defendants and a perpetual injunction restraining them and their agents
from having anything to do with the land. The case came up for trial before
Archer A. (as he then was) sitting at Cape Coast in 1968. At the trial, counsel
informed the court that they had agreed that a point of law which would dispose
of the whole case be taken first. That preliminary point which was taken, arises
out of the following pleadings of the parties. By paragraph (10) of the statement
of claim, the plaintiff pleaded:

“That in spite of all these consent judgments, awards and orders
the defendants have unlawfully entered the said land without the
plaintiff’s consent and permission felled over 400 palm trees which
the plaintiff’s family had cultivated on the land in dispute. The
value of one palm tree is at £G2.”

In answer to this pleading, the defendants stated in paragraph (6) of their
defence.

“The defendants say that in view of customary law which empowers
a landowner to enter upon his land in the possession of another as
tenant to collect palm nuts or enjoy palm and other indigenous edible
trees on the land, the defendants can exercise the right to enter the
said land for that purpose and are therefore not liable to the plaintiff
as claimed in any amount or at all and thereupon join issue with the
plaintiff.”

1

The defendants in agreeing that a decision on the legal point raised by these
pleadings would dispose of the case before the court, admitted that the plaintiff
and his family were their tenants and further that they, he defendant, had
entered on to the land occupied by the plaintiffs family and cut down the palm
trees as alleges. Moreover, the defendants concern was not with distinction
between palm trees already on the land before the tenancy was created on the
hand and palm trees planted by the tenant after the tenancy. To the defendants,
in either case the landlord was entitled to the palm trees on the land. Therefore
they did not in their pleadings specifically deny the claim of the plaintiff that
his family planted the palm trees. In view of the pleadings quoted above and of
counsel’s agreement that a decision on the legal point arising therefrom disposes
of the whole case we are bound to accept that the palm trees in this case were
planted by the plaintiff’s family as claimed.
Did the defendants have this right they claimed or not? No less an author-
ity than Sarbah supports their contention. In his Fanti Customary Laws first
published in 1897 he said ( and I quote from the third edition (1968) at pp.
69-70):

“The original or his successor can at any time go upon and retake
possession of the land as soon as the tenant asserts and adverse claim
to it. In the absence of such adverse claimed he cannot disturb the
quiet enjoyment of the tenant, without prior notice to the tenant
that he requires the land. Where, however, there are palm trees on
the land, whether planted by the owner of the land or by the tenant,
the landowner has full right, at any time he pleases, to cut trees or
gather any nuts therefrom. Custom does not permit any person to
be improved out of his land, and palm trees not only improve, but
also enhance the value of lands.

Where nuts from palm lands are manufactured into oil, the owner of
the land receives half of the oil, and the oil manufacturer the other
half, and the expenses of preparing the oil if equally shared by them.
If instead of oil manufacturer, the is extracted from the palm-trees,
palm-wine, the owner of the palm-trees is entitled to one-fourth of
the proceeds of such palm-wine, the person who fells the palm trees
and prepares the wine is entitled to one-fourth of such proceeds,
and the person who sells such palm-wine is entitled to half of such
proceeds. According to a well-known practice of the Law Courts,
each palm0-wine is valued at twenty shillings.”

This statement of the law seems to have obtained in more recent times
some end endorsed from Bentsi-Enchill. At p. 398 of his Ghana Land Law
he said: “Income-yielding shrubs and trees already on the land, such as palm
trees, kola, and timber generally, are understood to belong exclusively to the
landlord.” Bentsi-Enchill, it appears was not prepared to go the lengths which
Sarbah did because he limited the landlord’s rights to economic shrubs and
trees “already on the land.” And his statement was made when discussing the

2

arrangement “where the tenant is given virgin land to bring into cultivation.
On the proposition that the landlord was entitled to the fruits of economic trees
planted by the tenant on the land, Bentsi-Enchill expressed no view. Sarbah’s
proposition cannot, therefore, be said to have got the unqualified approval of as
modern a writer as Bentsi-Enchill.
In spite of the opinion of such a formidable jurist as Sarbah to the contrary,
Archer J. decided in Esson v. Attah, High Court, Cape Coast, 20 June 1968,
unreported; digested in (1968) C.C. 125 that the defendants were not entitled
to cut the palm trees on the land occupied by the plaintiff’s family. It is because
of that the present appeal been brought before us.
The pith of the learned trial judge’s argument in rejecting the opinion of
Sarbah is contained in the one sentence which said that: “It sounds unreason-
able indeed that where a tenant has by his own labours planted palm trees his
landlord should indiscriminately enter the land and cut the palm trees any time
he pleases.” Like Archer J., we do not wish to cast doubt on the distinction
and learning of Sarbah. Indeed the learned judge accepted that what Sarbah
wrote might have represented the customary law embodies the rules of conduct
of the people at a particular time. These rules represents what is reasonable in
any given situation in the society. Customary Law therefore, must develop and
change with the changing times. What was reasonable in the social conditions
of the nineteenth century would not necessarily be reasonable today. A contrary
theory would ensure that the customary law becomes ossified and incapable of
growth to meet new challenges and demands. No proposition would be more out
of records with the hopes aspirations of Ghanaians today than that a landlord
who has spent no effort whatsoever towards that end should enter and collect
at will the fruits of the labour of his tenant. Who amongst us would today be
prepared to take land to cultivate on that basis? We cannot imagine an ar-
rangement more ruinous of agricultural enterprise, subversive of expansion and
consequently prejudicial to national development than that.
One point taken by Mr. Short, counsel for the defendants, was that the
decision of Archer J. was given per incuriam inasmuch as the court failed to
consider the case of Egyin v. Aye [1962] 2 G.L.R. 187, which, being a decision
of the former Supreme Court of Ghana, was binding on it. van Lare J.S.C.
giving the judgment of the court in that case had said at p. 194, “It must be
appointed out that the felling of palm trees is by customary law exercise of
unequivocal acts of ownership reserved only to an owner of land, or a pledge
holding of the owner: Ashon v. Barng (1897) Sar.F.C.L. (1st ed.) 132 at p.
135). Mr. Short relied on this statement in support of the argument in favour of
the landlords right to economic trees.But that statement has to be considered
in the context in which it was made. Ashon v. Barng (1897) Sar.F.C.L. (3rd
ed.) 153 was a case to determine the right as between an owner of the land
and his pledgee to cut down palm trees on the land pledged. Redwar Ag.J.
at p. 156 found by preponderance of evidence that “the custom is clearly and
satisfactorily proved . . . ” The owner’s claim for damages in trespass against
the pledgee “had a legal right to do what he had done . . . ” Far from the case
showing the owner’s invariable right to fell palm trees whoever had possession

3

over the land and whatever the terms of possession it shows that as between
the owner and his pledgee, the customary law then it shows that as the owner
and his pledgee, the customary law then recognized the right of the pledgee to
cut the palm trees. Egyin v. Aye (supra) on the other hand was a case in which
two persons, one of whom had no title, disputed the title to land. The fact that
one of the disputants had pledged the land and that his pledgee felled the palm
tress was used evidence determining the issue of ownership in favour of that
particular pledgor. In neither case was there an issue as to whose was the right
as between an owner and his tenant to fell palm trees on the land. The decision
in Egyin v. Aye did not, therefore, Archer J. from taking the view that he did.
We have no doubt that customary law today would not permit a landlord
to enter onto agricultural land granted to his tenant to gather the fruits of
economic trees planted on it by the tenant. We would understand a principle
which forbids the tenant from committing such waste on the land as would
destroy or reduce the value of the reversionary interest of the landlord. But
the maxim, if maxim it be, that, “custom does not permit any person to be
improved out of his land” used to justify what in modern eyes looks no less
than a landlord’s charter for plunder, appears to us, however beautiful it may
sound and whether representative of the values Ghanaians in the nineteenth
century, totally indefensible today. We accordingly agree with the conclusion of
Archer J. that the landlord is not entitled to palm trees on the land whether
planted by them or by the plaintiff’s family, we hold that this appeal must fail.
Learned counsel for the defendants has argued that is Sarbah’s proposition
was wrong no court has so declared before, and, therefore, presumably persons
were entitled to act in accordance with Sarbah until a court declared to the
contrary. We do not think so. We think but the customary law as stated by
Sarbah became outdated and ceased to be law as soon as conditions in society
changed so as to make it unreasonable for persons to conduct themselves by
it. It is, therefore, not necessary for the society to await a court’s ruling before
deciding to act in a manner contrary to a rule of conduct which has become
unreasonable.
But what of the part of the customary law as stated by Sarbah which gives
the right to economic trees already on the land to the landlord? The objection,
in those cases to that leg of Sarbah’s rule on the ground that it acts as a
disincentive to economic progress is not as strong. And there are considerations
why we cannot say that aspect of the rule has been or must be discarded.
Archer J. in holding that the enjoyment of economic trees like palm belonged
to the tenant unless expressly reserved by agreement between the parties to the
landlord relied on a passage in Ollennu’s book on the Principle of Customary
Law in Ghana. That passage which appears at p. 59 of the book reads as follows:

“Another important incident of the determinable title is the right to
palm and cola nut and other economic trees of the land. In all parts
of Ghana where the oil palm trees and other species of palm grow,
it is the owner of the determinable title in the land, and he alone
who is vested with the right to harvest the fruit, to fell the palm

4

trees or to tap wine from them. Neither the owner of the absolute
title nor the owner of the sub-absolute title can go upon land to
harvest cola nuts, palm trees for palm wine. They may request the
owner of the determinable title to supply so many pots of palm wine,
or a quantity of palm nuts or cola nuts as customary services, but
they are not permitted by custom to go upon land in possession of
a subject to take any of these things.”

The learned judge seems to have equated the expression “the owner of the
absolute title” used by Ollennu in this passage to “the landlord” in our present
classification, and the expression “the owner of the determinable title in the
land” appearing in the quotation to our “tenant.” With all due reference, we
do not think that Ollennu was here discussing the ordinary relationship of the
landlord and tenant. His concern for the moment was with the various degree
of ownership recognize by the customary law and their incidents. Thus he spoke
of “the owner of the absolute title” who would be the allodial owner of the land
like stool and “the owner of the determinable title” who would be a subject or
family member properly on the land. The passage referred to therefore, does
not contemplate incidents attached to the right of a tenant under an ordinary
tenancy. That aspect of the matter is dealt with by Ollennu in chapter 6 of his
book on tenancies. At p. 87 of the book, the learned author says:

“Except by special agreement, palm trees, kola nuts and such fruits
are generally excluded from the operation of abusa or abunu tenancy,
and that is so even though in the process of the cultivation and
maintenance of the abusa or abunu farm, the tenant must work
which must improve such trees growing in the farm, e.g. he must
trim palm trees from time to time, or clear the bush round such
trees. These trees ate the special prerogative of the owner of the
determinable title. It is he alone who has the right to the fruits.
The tenant may pick a few fruits for his personal consumption, but
he should not harvest them for sale, and he should not without the
express authority of the landlord fell any oil palm tree, agor palm,
dawadawa tree or shea butter tree.”

The distinction in Ollennu’s terminology between “the owner of the deter-
minable title” and “the tenant” is brought out clearly in this passage. And as
between these two it is not the tenant who has the right to the fruits of economic
trees on the land.
In the present case, the relationship between the plaintiff’s and the defen-
dants families is such as may well justify the finding that the plaintiff’s family
were the owners of the determinable title in the land. They certainly were not
ordinary tenants. They were tenants in perpetuity. The consideration for their
right to occupation was the payment of 27 shillings, that is two cedis 70 pesewas,
yearly.
Arbitrators have held that the plaintiff’s family should join the defendants
together “in sharing debts, performing funeral obsequies, and any other fam-

5

ily transactions together as their ancestors were doing.” And in that case, the
adoption of the statement of Ollennu which gives the enjoyment of economic
trees on the land to the owner of the determinable title in order to vest such
enjoyment of trees already on the land in the plaintiff’s family cannot be ob-
jected to. We believe it was on the basis that the present plaintiff’s family
had such title to the land as would warrant their being designation as owners
of the determinable title according to custom that the learned judge drew his
general conclusion that “a tenant in perpetuity is entitled to the palm trees on
his tenancy and that the landlord has no right whatsoever to enter the land and
cut palm trees or to collect palm nuts unless such rights have been expressed
reserved to him by agreement between the parties.” We are however, anxious
that the generality of that holding should not be considered as applying to the
ordinary customary tenancy agreement over land on which already existed eco-
nomic trees like the palm or kola tree. The customary rule in that respect,
allocating the fruits not to the tenant but to his landlord has not been shown
to be unreasonable. Ollennu whose statement of the ;aw impressed the learned
judge as the modern exposition of the law, confirms, as we have seen, the view
that except by special agreement, the enjoyment of the fruits of these trees con-
tinues with the landlord. We have no cause to differ from that view. That rule
must, therefore, be accepted as still governing the relationship of landlord and
tenant.
Archer J. adjourned the assessment of the amount due to the plaintiff for
the felling of the palm trees and of the damages for trespass against two of
the defendants to a later date thereby giving the parties the opportunity to
agree between themselves on the damages. He did not grant the perpetuity
injunction requested by the plaintiff to restrain the defendants and their agents
from having anything to do with the land in question. That relieve aspect of the
case was dealt with Baidoo J. who awarded ‹400.00 for the palm trees felled and
‹200.00 as general damages awarded for trespass. He also granted the perpetual
injunction against the defendants asked for. The defendant’s argument against
the damages awarded was not such a complaint of excessiveness of amount; it
was that as no court had previously declared the principle under which they
acted, we remain unpersuaded by their argument on this point. But they have
argued further that as the landlords, the grant of a perpetual injunction against
them from entering their own land was wrong. Mr. Ampiah for the plaintiff has
handsomely conceded this point. He observed that this was inconsistent with
the ruling of Archer J.
In the circumstances we would allow this appeal to the extent of canceling
the order for a perpetual injunction otherwise we would dismiss the appeal.

Appeal dismissed subject to canceling grant of order for perpetual injunction
S.Y.B.-B.

6

[1976] 1 GLR 128.

Court of Appeal, Accra

5 December 1975

Appeal against a decision of the High Court in favour of plaintiff in an
action for damages for trespass and appeal injunction. The facts are sufficiently
stated in the judgment of the court.
J.B. Short (E.F. Short with him) for the appellants.
Ampiah for the respondent.
Amissah J.A. delivered the judgment of the court. The plaintiff and his
family have been declared by a series of judgment and an arbitration award
to be tenants in perpetuity of the first defendant’s family in respect of a large
piece of land in the Central Region. In spite of these judgments the plaintiff and
his people have been denied the quiet enjoyment of the of the land which they
feel themselves entitled to. The latest act of the defendants which precipitated
this action was the felling of palm trees which the plaintiff claimed his family
had cultivated on the land. On account of this alleged interference with the
plaintiff’s family right, the plaintiff brought this action claiming damages from
the defendants and a perpetual injunction restraining them and their agents
from having anything to do with the land. The case came up for trial before
Archer A. (as he then was) sitting at Cape Coast in 1968. At the trial, counsel
informed the court that they had agreed that a point of law which would dispose
of the whole case be taken first. That preliminary point which was taken, arises
out of the following pleadings of the parties. By paragraph (10) of the statement
of claim, the plaintiff pleaded:

“That in spite of all these consent judgments, awards and orders
the defendants have unlawfully entered the said land without the
plaintiff’s consent and permission felled over 400 palm trees which
the plaintiff’s family had cultivated on the land in dispute. The
value of one palm tree is at £G2.”

In answer to this pleading, the defendants stated in paragraph (6) of their
defence.

“The defendants say that in view of customary law which empowers
a landowner to enter upon his land in the possession of another as
tenant to collect palm nuts or enjoy palm and other indigenous edible
trees on the land, the defendants can exercise the right to enter the
said land for that purpose and are therefore not liable to the plaintiff
as claimed in any amount or at all and thereupon join issue with the
plaintiff.”

1

The defendants in agreeing that a decision on the legal point raised by these
pleadings would dispose of the case before the court, admitted that the plaintiff
and his family were their tenants and further that they, he defendant, had
entered on to the land occupied by the plaintiffs family and cut down the palm
trees as alleges. Moreover, the defendants concern was not with distinction
between palm trees already on the land before the tenancy was created on the
hand and palm trees planted by the tenant after the tenancy. To the defendants,
in either case the landlord was entitled to the palm trees on the land. Therefore
they did not in their pleadings specifically deny the claim of the plaintiff that
his family planted the palm trees. In view of the pleadings quoted above and of
counsel’s agreement that a decision on the legal point arising therefrom disposes
of the whole case we are bound to accept that the palm trees in this case were
planted by the plaintiff’s family as claimed.
Did the defendants have this right they claimed or not? No less an author-
ity than Sarbah supports their contention. In his Fanti Customary Laws first
published in 1897 he said ( and I quote from the third edition (1968) at pp.
69-70):

“The original or his successor can at any time go upon and retake
possession of the land as soon as the tenant asserts and adverse claim
to it. In the absence of such adverse claimed he cannot disturb the
quiet enjoyment of the tenant, without prior notice to the tenant
that he requires the land. Where, however, there are palm trees on
the land, whether planted by the owner of the land or by the tenant,
the landowner has full right, at any time he pleases, to cut trees or
gather any nuts therefrom. Custom does not permit any person to
be improved out of his land, and palm trees not only improve, but
also enhance the value of lands.

Where nuts from palm lands are manufactured into oil, the owner of
the land receives half of the oil, and the oil manufacturer the other
half, and the expenses of preparing the oil if equally shared by them.
If instead of oil manufacturer, the is extracted from the palm-trees,
palm-wine, the owner of the palm-trees is entitled to one-fourth of
the proceeds of such palm-wine, the person who fells the palm trees
and prepares the wine is entitled to one-fourth of such proceeds,
and the person who sells such palm-wine is entitled to half of such
proceeds. According to a well-known practice of the Law Courts,
each palm0-wine is valued at twenty shillings.”

This statement of the law seems to have obtained in more recent times
some end endorsed from Bentsi-Enchill. At p. 398 of his Ghana Land Law
he said: “Income-yielding shrubs and trees already on the land, such as palm
trees, kola, and timber generally, are understood to belong exclusively to the
landlord.” Bentsi-Enchill, it appears was not prepared to go the lengths which
Sarbah did because he limited the landlord’s rights to economic shrubs and
trees “already on the land.” And his statement was made when discussing the

2

arrangement “where the tenant is given virgin land to bring into cultivation.
On the proposition that the landlord was entitled to the fruits of economic trees
planted by the tenant on the land, Bentsi-Enchill expressed no view. Sarbah’s
proposition cannot, therefore, be said to have got the unqualified approval of as
modern a writer as Bentsi-Enchill.
In spite of the opinion of such a formidable jurist as Sarbah to the contrary,
Archer J. decided in Esson v. Attah, High Court, Cape Coast, 20 June 1968,
unreported; digested in (1968) C.C. 125 that the defendants were not entitled
to cut the palm trees on the land occupied by the plaintiff’s family. It is because
of that the present appeal been brought before us.
The pith of the learned trial judge’s argument in rejecting the opinion of
Sarbah is contained in the one sentence which said that: “It sounds unreason-
able indeed that where a tenant has by his own labours planted palm trees his
landlord should indiscriminately enter the land and cut the palm trees any time
he pleases.” Like Archer J., we do not wish to cast doubt on the distinction
and learning of Sarbah. Indeed the learned judge accepted that what Sarbah
wrote might have represented the customary law embodies the rules of conduct
of the people at a particular time. These rules represents what is reasonable in
any given situation in the society. Customary Law therefore, must develop and
change with the changing times. What was reasonable in the social conditions
of the nineteenth century would not necessarily be reasonable today. A contrary
theory would ensure that the customary law becomes ossified and incapable of
growth to meet new challenges and demands. No proposition would be more out
of records with the hopes aspirations of Ghanaians today than that a landlord
who has spent no effort whatsoever towards that end should enter and collect
at will the fruits of the labour of his tenant. Who amongst us would today be
prepared to take land to cultivate on that basis? We cannot imagine an ar-
rangement more ruinous of agricultural enterprise, subversive of expansion and
consequently prejudicial to national development than that.
One point taken by Mr. Short, counsel for the defendants, was that the
decision of Archer J. was given per incuriam inasmuch as the court failed to
consider the case of Egyin v. Aye [1962] 2 G.L.R. 187, which, being a decision
of the former Supreme Court of Ghana, was binding on it. van Lare J.S.C.
giving the judgment of the court in that case had said at p. 194, “It must be
appointed out that the felling of palm trees is by customary law exercise of
unequivocal acts of ownership reserved only to an owner of land, or a pledge
holding of the owner: Ashon v. Barng (1897) Sar.F.C.L. (1st ed.) 132 at p.
135). Mr. Short relied on this statement in support of the argument in favour of
the landlords right to economic trees.But that statement has to be considered
in the context in which it was made. Ashon v. Barng (1897) Sar.F.C.L. (3rd
ed.) 153 was a case to determine the right as between an owner of the land
and his pledgee to cut down palm trees on the land pledged. Redwar Ag.J.
at p. 156 found by preponderance of evidence that “the custom is clearly and
satisfactorily proved . . . ” The owner’s claim for damages in trespass against
the pledgee “had a legal right to do what he had done . . . ” Far from the case
showing the owner’s invariable right to fell palm trees whoever had possession

3

over the land and whatever the terms of possession it shows that as between
the owner and his pledgee, the customary law then it shows that as the owner
and his pledgee, the customary law then recognized the right of the pledgee to
cut the palm trees. Egyin v. Aye (supra) on the other hand was a case in which
two persons, one of whom had no title, disputed the title to land. The fact that
one of the disputants had pledged the land and that his pledgee felled the palm
tress was used evidence determining the issue of ownership in favour of that
particular pledgor. In neither case was there an issue as to whose was the right
as between an owner and his tenant to fell palm trees on the land. The decision
in Egyin v. Aye did not, therefore, Archer J. from taking the view that he did.
We have no doubt that customary law today would not permit a landlord
to enter onto agricultural land granted to his tenant to gather the fruits of
economic trees planted on it by the tenant. We would understand a principle
which forbids the tenant from committing such waste on the land as would
destroy or reduce the value of the reversionary interest of the landlord. But
the maxim, if maxim it be, that, “custom does not permit any person to be
improved out of his land” used to justify what in modern eyes looks no less
than a landlord’s charter for plunder, appears to us, however beautiful it may
sound and whether representative of the values Ghanaians in the nineteenth
century, totally indefensible today. We accordingly agree with the conclusion of
Archer J. that the landlord is not entitled to palm trees on the land whether
planted by them or by the plaintiff’s family, we hold that this appeal must fail.
Learned counsel for the defendants has argued that is Sarbah’s proposition
was wrong no court has so declared before, and, therefore, presumably persons
were entitled to act in accordance with Sarbah until a court declared to the
contrary. We do not think so. We think but the customary law as stated by
Sarbah became outdated and ceased to be law as soon as conditions in society
changed so as to make it unreasonable for persons to conduct themselves by
it. It is, therefore, not necessary for the society to await a court’s ruling before
deciding to act in a manner contrary to a rule of conduct which has become
unreasonable.
But what of the part of the customary law as stated by Sarbah which gives
the right to economic trees already on the land to the landlord? The objection,
in those cases to that leg of Sarbah’s rule on the ground that it acts as a
disincentive to economic progress is not as strong. And there are considerations
why we cannot say that aspect of the rule has been or must be discarded.
Archer J. in holding that the enjoyment of economic trees like palm belonged
to the tenant unless expressly reserved by agreement between the parties to the
landlord relied on a passage in Ollennu’s book on the Principle of Customary
Law in Ghana. That passage which appears at p. 59 of the book reads as follows:

“Another important incident of the determinable title is the right to
palm and cola nut and other economic trees of the land. In all parts
of Ghana where the oil palm trees and other species of palm grow,
it is the owner of the determinable title in the land, and he alone
who is vested with the right to harvest the fruit, to fell the palm

4

trees or to tap wine from them. Neither the owner of the absolute
title nor the owner of the sub-absolute title can go upon land to
harvest cola nuts, palm trees for palm wine. They may request the
owner of the determinable title to supply so many pots of palm wine,
or a quantity of palm nuts or cola nuts as customary services, but
they are not permitted by custom to go upon land in possession of
a subject to take any of these things.”

The learned judge seems to have equated the expression “the owner of the
absolute title” used by Ollennu in this passage to “the landlord” in our present
classification, and the expression “the owner of the determinable title in the
land” appearing in the quotation to our “tenant.” With all due reference, we
do not think that Ollennu was here discussing the ordinary relationship of the
landlord and tenant. His concern for the moment was with the various degree
of ownership recognize by the customary law and their incidents. Thus he spoke
of “the owner of the absolute title” who would be the allodial owner of the land
like stool and “the owner of the determinable title” who would be a subject or
family member properly on the land. The passage referred to therefore, does
not contemplate incidents attached to the right of a tenant under an ordinary
tenancy. That aspect of the matter is dealt with by Ollennu in chapter 6 of his
book on tenancies. At p. 87 of the book, the learned author says:

“Except by special agreement, palm trees, kola nuts and such fruits
are generally excluded from the operation of abusa or abunu tenancy,
and that is so even though in the process of the cultivation and
maintenance of the abusa or abunu farm, the tenant must work
which must improve such trees growing in the farm, e.g. he must
trim palm trees from time to time, or clear the bush round such
trees. These trees ate the special prerogative of the owner of the
determinable title. It is he alone who has the right to the fruits.
The tenant may pick a few fruits for his personal consumption, but
he should not harvest them for sale, and he should not without the
express authority of the landlord fell any oil palm tree, agor palm,
dawadawa tree or shea butter tree.”

The distinction in Ollennu’s terminology between “the owner of the deter-
minable title” and “the tenant” is brought out clearly in this passage. And as
between these two it is not the tenant who has the right to the fruits of economic
trees on the land.
In the present case, the relationship between the plaintiff’s and the defen-
dants families is such as may well justify the finding that the plaintiff’s family
were the owners of the determinable title in the land. They certainly were not
ordinary tenants. They were tenants in perpetuity. The consideration for their
right to occupation was the payment of 27 shillings, that is two cedis 70 pesewas,
yearly.
Arbitrators have held that the plaintiff’s family should join the defendants
together “in sharing debts, performing funeral obsequies, and any other fam-

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ily transactions together as their ancestors were doing.” And in that case, the
adoption of the statement of Ollennu which gives the enjoyment of economic
trees on the land to the owner of the determinable title in order to vest such
enjoyment of trees already on the land in the plaintiff’s family cannot be ob-
jected to. We believe it was on the basis that the present plaintiff’s family
had such title to the land as would warrant their being designation as owners
of the determinable title according to custom that the learned judge drew his
general conclusion that “a tenant in perpetuity is entitled to the palm trees on
his tenancy and that the landlord has no right whatsoever to enter the land and
cut palm trees or to collect palm nuts unless such rights have been expressed
reserved to him by agreement between the parties.” We are however, anxious
that the generality of that holding should not be considered as applying to the
ordinary customary tenancy agreement over land on which already existed eco-
nomic trees like the palm or kola tree. The customary rule in that respect,
allocating the fruits not to the tenant but to his landlord has not been shown
to be unreasonable. Ollennu whose statement of the ;aw impressed the learned
judge as the modern exposition of the law, confirms, as we have seen, the view
that except by special agreement, the enjoyment of the fruits of these trees con-
tinues with the landlord. We have no cause to differ from that view. That rule
must, therefore, be accepted as still governing the relationship of landlord and
tenant.
Archer J. adjourned the assessment of the amount due to the plaintiff for
the felling of the palm trees and of the damages for trespass against two of
the defendants to a later date thereby giving the parties the opportunity to
agree between themselves on the damages. He did not grant the perpetuity
injunction requested by the plaintiff to restrain the defendants and their agents
from having anything to do with the land in question. That relieve aspect of the
case was dealt with Baidoo J. who awarded ‹400.00 for the palm trees felled and
‹200.00 as general damages awarded for trespass. He also granted the perpetual
injunction against the defendants asked for. The defendant’s argument against
the damages awarded was not such a complaint of excessiveness of amount; it
was that as no court had previously declared the principle under which they
acted, we remain unpersuaded by their argument on this point. But they have
argued further that as the landlords, the grant of a perpetual injunction against
them from entering their own land was wrong. Mr. Ampiah for the plaintiff has
handsomely conceded this point. He observed that this was inconsistent with
the ruling of Archer J.
In the circumstances we would allow this appeal to the extent of canceling
the order for a perpetual injunction otherwise we would dismiss the appeal.

Appeal dismissed subject to canceling grant of order for perpetual injunction
S.Y.B.-B.

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