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KWESI MANKO AND OTHERS
V.
BONSO AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
9TH DAY OF MAY, 1936
2PLR/1936/31 (WACA)
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OTHER CITATION(S)
2PLR/1936/31 (WACA)
(1936) III WACA PP. 62 – 64
LEX (1936) – III PP. WACA 62 – 64
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN (CONSOLIDATED MATTER)
KWESI MANKO AND OTHERS — Plaintiffs-Appellants
AND
BONSO AND OTHERS — Defendants-Respondents
AND
KWESI MANKO AND OTHER — Plaintiffs-Appellants
AND
ABA KOKODEY AND ANOR. — Defendants-Respondents
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REPRESENTATION
K. A. Korsah — for Appellants in first case and Respondents in second
C. F. Hayfron-Benjamin — for Respondents in first case and Appellants in second
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Ejectment, possession and declaration of title — Alienation of family land without consent — Whether only voidable — Reopening at instance of family — Whether must be timely so that purchaser may be restored to his former position
REAL ESTATE AND PROPERTY LAW:- Proof of title to land — Onus on plaintiff to prove title — Relevant consideration
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Both appeals dismissed.
1. A family would not be properly deemed to had acquiesced in the sale of family land merely by allowing someone who had married into the family to live rent-free on family property without the knowledge that the same in-law had purchased the same property from the family head who happened to be the father of the bride.
2. Where the Family allowed other third parties to successively possess the property without their consent in circumstances where such occupation is not justifiable unless there had been a sale, it may be prima facie evidence of acquiescence, and thus passage of titlebecause in the ordinary course of events strangers do not live in other people’s houses.
3. The dictum in Quassie Bayaidie v. Kwamina Mensah (F.C.L. 150) makes clear that although it is the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void. Therefore, the sale of 1885 was not void, but merely voidable and the plaintiffs having taken no steps to set it aside have no title to the land in dispute.
4. The burden of proof in an action such as this for ejectment, possession and a declaration of title clearly lies on the plaintiff, and where it is shown that a purchaser has title to the land, even though it may be a defeasible title, his caretakers cannot be ejected or a title granted to the plaintiffs in respect of this land without first securing the grant of an order setting aside the sale.
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MAIN JUDGMENT
The following judgment was delivered: per PETRIDES, C.J., GOLD COAST
This is an appeal and a cross-appeal from a judgment of the Acting Deputy Commissioner, Central Province, given by him after he had retried two separate actions originally tried by the Tribunal of the Paramount Chief of Gomoa Assin.
In the action against Bonso and others, the plaintiffs’ claim was for “ejectment, or ownership or possession” of a piece of land with a two-storey house which the plaintiff alleged was “the property of the late Kojo Botsio’s family, which said ownership of the said property was confirmed by a judgment of the Supreme Court, Accra, dated the 8th October, 1885, in the case of coffie Patsie v. Boatoe and two others and for £100 damages.
The Deputy Commissioner found that the land on which the two-storey house was built belonged to Botsio and his family. Although the land was family property, Botsio (described as Cudjoe Buatoe in the Deed) purported to sell it with the house thereon to Cudjoe Buatoe Bentil as evidenced by a Deed dated the 30th December, 1885. The Deputy Commissioner found that this sale was valid, and that even if the family had not given prior consent, they subsequently acquiesced in the sale by allowing Bentil and his successors in title to occupy the house rent free from the year 1885 until the present time without protest.
Appellants’ Counsel contended at length that this Deed was a forgery, but entirely failed to satisfy us that such was the case.
He then contended that the alleged sale of 1885 by Botsio to Bentil was absolutely void as Botsio could not sell the land as it was family property, and that the Deputy Commissioner was wrong in holding that the family had acquiesced in the sale by allowing Bentil and his successors in title to occupy the house rent free from the year 1885 until the present time without protest. He contended that the family could not have acquiesced in the sale as they knew nothing about it at the time and never saw the Deed of sale. He pointed out that as Bentil had married Botsio’s niece he was entitled to live in the house. We think that this contention is right, and that in consequence the fact that Bentil and those who inherited from him paid no rent is no evidence that the family acquiesced in the sale of the property to Bentil.
In 1914 the house was sold by Essie Gyan, who inherited in directly from Bentil, to H. E. Thompson as evidenced by Exhibit “D.” When Thompson died Okwesi succeeded to the property and sold it to kwa Baubin, who died and was succeeded by Kofi Acquah, who placed the defendants in possession as caretakers.
It appears from the evidence that from 1914 up to date the upper storey of the house was occupied by persons like Thompson who had no right to be there unless there had been a sale in 1885. The presence of these people from 1914 to date is only intelligible upon the footing of title as in the ordinary course of events strangers do not live in other people’s houses. On the other hand until 1933 the ground floor was occupied by the plaintiff’s family.
In the case of Quassie Bayaidie v. Kwamina Mensah (F.C.L. 150) the Full Court had to consider what was the effect of a sale by family land by occupant of a stool. That Court in the course of its judgment stated:
“Now although it may be, and we believe it is, the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right timeously and under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully restored to the position in which he stood before the sale.”
If this judgment is sound, and the contrary is not suggested by appellants’ Counsel, then it appears clear that the sale of 1885 was not void, but merely voidable and the plaintiffs having taken no steps to set it aside have no title to the land in dispute.
The burden of proof in an action such as this for ejectment, possession and a declaration of title clearly lies on the plaintiff, and as it has been shown that Kofi Acquah has a title to the land, even though it may be a defeasible one, his caretakers cannot be ejected or a title granted to the plaintiffs in respect of this land while Kofi Acquah’s title subsists.
The plaintiffs’ appeal must therefore be dismissed.
As to the cross-appeal, we think that the Deputy Commissioner’s decision was right and we dismiss that appeal.
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KINGDON, C.J., NIGERIA.
I concur.
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WEBBER, C.J., SIERRA LEONE,
I concur.
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