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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.''

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 authority 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 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 unreasonable 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 arrangement 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 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 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 determinable 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 defendants 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 family 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 objected 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 economic 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 continues 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

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Josh DuBois 2006-04-06