ATTAH vs. LAGOS [1960]DLHC69

Date	1960-03-18
Suit No.
Citation No.	[1960]DLHC69

ADUMUA-BOSSMAN J.

SHORT FOR PLAINTIFF.

DEFENDANT IN PERSON.

[1960]DLHC69
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													<main id="main" class="content" style="min-height: 60rem" >ATTAH <o:p></o:p>vs. <o:p></o:p>LAGOS<o:p></o:p>&nbsp;[HIGH
COURT CAPE COAST]<o:p></o:p>[1960] GLR 42<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
18TH MARCH, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SHORT FOR PLAINTIFF.<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;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.<o:p></o:p>In this
appeal form a decision of the Native Court “B” of the Asin Local Council, the
judgment appealed from does not seem to me to be capable of support. That
judgment did not take any account of the admitted fact that when the area in
dispute was alleged to have been cultivated originally by Kojo Alata, defendant’s
father (now deceased), that original cultivation was not in right or title of
the Andoe Stool at all, but of a woman cal led Adwua Brenua of Anomaboe. It
follows, therefore, that so far as the Andoe Stool is concerned, it never gave
any right of occupation or possession of that disputed area, or the adjoining
or any other area, to the defendant’s late father.<o:p></o:p><o:p>&nbsp;</o:p>When,
therefore, as the result of litigation between the Andoe Stool and Kojo Alata’s
grantor, a decision was given against her, and a declaration of ownership made
in favour of the Andoe Stool, it is clear that Kojo Alata and his successors
had no inherent right as against the Andoe Stool to the possession or the
usufruct of the area cultivated by him, except such as might be obtained by
agreement with the Stool. At that time, that is, when title to the land was
declared to be in the Andoe Stool, if Kojo Alata was then in de facto
occupation and possession of the whole area cultivated by him, the Andoe Stool
could not dispossess him of the areas which he was then occupying without first
giving him an opportunity to attorn tenant to the Stool, and to agree to occupy
on such customary terms as the Stool might impose. See Ababio II v. Nsemfoo (12
W.A.C.A. 127). The admitted position, however, was that (because Kojo Alata
either was then dead, or died shortly after the litigation) the areas which he
had cultivated prior to the litigation were left abandoned for a considerable
length of time.<o:p></o:p>The
defendant’s own evidence was as follows:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I
arrived from Nigeria about six years ago and heard from authentic source that
my father owned cocoa farm on a portion of Adontihene’s land at Akyisan.
Recently about five months ago (5 months) I approached the Adontihene of Andoe
with a request for return of my late father’s cocoa farms on his land.”<o:p></o:p><o:p>&nbsp;</o:p>According
to the evidence of the Adontihene Efilfa X, first witness for the plaintiff and
representative of the Andoe Stool, the litigation with Adwua Brenua resulting
in the decision in favour of his Stool took place about twenty years ago, that
is, in about 1939. The disputed land remained abandoned for a long period of
ten years after the conclusion of the litigation. In these circumstances,
authority is clear that upon such long abandonment, whatever rights of
occupation for farming existed became extinguished and the land forfeited to
the Stool, which could then make a valid grant to a new tenant. So in Asenso v.
Nkyidwuo (1 W.A.L.R. at p.246), Coussey P. said as follows:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
defendant’s refusal to enter into any form of agreement and his failure to take
any care whatever of the farm or clearance he had made on the said land for
over ten years constitute sufficient evidence of abandonment, entitling the
Omanhene to reallocate the area to the plaintiff . . . It was not abandonment
by express declaration it is true, but it was abandonment by conduct over a
number of years ... This is supported by Sarbah, who says at p.56 of his Fanti
Customary Laws 1897 edition: — ‘But where a person in possession of the public
land abandons it or his family have abandoned it for more than ten years at
least the village headman and elders can allow another person to occupy the
same’.”<o:p></o:p><o:p>&nbsp;</o:p>Accordingly,
the Adontihene granted the land to the plaintiff in February, 1949.<o:p></o:p>