ATTAH AND OTHERS vs. ESSON [1975]DLCA362

Date	1975-12-05
Suit No.
Citation No.	[1975]DLCA362

LASSEY J.A

AMISSAH J.A

FRANCOIS J.A

J. B. SHORT (E. F. SHORT WITH HIM) FOR THE APPELLANTS.

AMPIAH FOR THE RESPONDENT.

[1975]DLCA362
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ATTAH AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>ESSON<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 128<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:
5 DECEMBER 1975.<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">

J. B. SHORT (E. F. SHORT WITH HIM) FOR THE
APPELLANTS.<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">

LASSEY, AMISSAH AND FRANCOIS JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Amissah
J.A. delivered the judgment of the court. The plaintiff and his family have
been declared by a series of judgments 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 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’s 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 J. (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:<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">“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 has cultivated on the
land in dispute. The value of one palm tree is at least £G2.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In answer
to this pleading, the defendants stated in paragraph (6) of their defence:<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
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 the 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
thereon join issue with the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>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, the
defendants, had entered on to the land occupied by the plaintiff’s family and
cut down the palm trees as alleged. Moreover, the defendants’ concern was not
with distinctions between palm trees already on the land before the tenancy was
created on the one hand and palm trees planted by the tenant after the creation
of 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 had 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.<o:p></o:p><o:p>&nbsp;</o:p>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):<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
original owner or his successor can at any time go upon and retake possession
of the land as soon as the tenant asserts an adverse claim to it. In the
abs</main>