APPEAL from a decision of Sarkodee-Adoo J. on March 20, 1957, in the Divisional Court, Ashanti Judicial Division, in favour of the plaintiff, suing as head of his family, in an action for the cancellation of a mortgage.
GRANVILLE SHARP, J.A. outlined the facts as above and
On May 29, 1951, the Asantehene had given consent in writing to the mortgage transaction and in this writing Kofi Kumah is described as the assignor, and the purpose of the transaction, parenthetically, as being to secure Yaw Kunadu. The property, the subject-matter of the deed, consisted of four cocoa farms and sales of these had taken place under the mortgage before action.
On September 26, 1955, the plaintiff in the present action brought an action against Yaw Kunadu in the Kumasi Municipal Court calling upon him to show cause why the late Kofi Attim's properties had been misadministered and for an account. The judgment in the case seems to have been inconclusive of the claims because it amounted to no more than a declaration that Yaw Kunadu was not a member of the same family as Osei Adjei, and could not in future claim to be so, this being said by the court to be the issue in the case. The said Yaw Kunadu did not appear to defend in that case.
The present case came before the Divisional Court at Kumasi upon a motion for judgment supported by an affidavit sworn on February 18, 1957, in which it was alleged that the defendants had, up to that date, failed to deliver their respective defences. While this was always true in relation to the first four defendants it ceased to be so in the case of the fifth, the present appellant, who delivered his defence on February 23, 1957, and filed it in the Divisional Court on March 4, 1957.
The fifth defendant appeared by counsel before Sarkodee Adoo J., and the case proceeded upon the motion. The defence filed by the fifth defendant was a comprehensive denial of the allegation of fraud, and also contained some important averments of the fact. It was admitted by the plaintiff in the action that Kofi Kumah was at the date of the mortgage the head of the family of Kofi Attim and the defence asserted that this head of the family properly obtained letters of administration on August 2, 1949, and that it was in his capacity as such administrator and successor that he had entered into the mortgage. It was also set out in the defence that the mortgagee had not entered into the transaction except after making proper search in the Lands Office of the Asantehene and in the Registry of the Kumasi Divisional Court, and had entered  into the transaction in good faith and without knowledge of any fraud. The defence then put the plaintiff to proof of his status as an alleged head of the family of Kofi Attim and his right to bring an action at law in respect of the family property.
Finally it was asserted that the fifth defendant had on five previous occasions been subjected to suits in respect of the same subject-matter at the instance of the plaintiff's family, twice in the Divisional Court and thrice in the Native Courts, Kumasi. In this state of affairs the motion was heard, and it will not be convenient to refer to the law which appears to me to apply to the situation.
A sale of land by the head of a family without the assent or concurrence of the rest of the family is not void. It is voidable at the instance of the family, but the court will not avoid the sale if not satisfied that the family has acted timeously and with due diligence and that the party affected by the avoidance of the sale can be restored to the position in which he stood before the sale took place. Manko v. Bonso (1). This applies as much in the case of a mortgagee as in the case of a sale if cancellation is sought.
Upon another aspect of the matter; fraud when alleged must be pleaded with the particularity of an indictment and must be affirmatively proved.
It seems to me that in the circumstances of the present case, and in the state of the pleadings, the plaintiff was under the duty to prove (a) that he was the proper person to represent the family of the late Kofi Attim in a suit relating to the family property; (b) that the members of the family were wholly ignorant of the transaction entered into by Kofi Kumah as admitted head of the family on June 29, 1951; (c) that the family had not by any conduct subsequent to the date mentioned acquiesced in the transaction; (d) that they had acted timeously and with due diligence; and (e) that the defendant could, on a declaration of the court avoiding the transaction, be put in the same situation that his predecessor occupied before the mortgage was entered into by him.
If proof of all this had been forthcoming, quite apart from the fraud alleged, the plaintiff's claim could be expected to succeed; butt it must be added that when insubstantial charges of fraud are made they must be unsupported by some evidence and particularly is this the case where the convenient disappearance from the suit of the first four defendants, including the person who as head of the family mortgaged the property, gives rise to the strong suspicion that the claim is itself an attempt to defraud the fifth defendant with the aid of the court. The allegation that Yaw Kunadu was not a member of the family as asserted in the deed seems to have been the foundation of the fraud charged. The only witness of the plaintiffs at the hearing in the court below was Osei  Adjei. He stated that Yaw Kunadu was not a member of the family and produced the judgment of the Kumasi Municipal Court to this effect. The fifth defendant was not party in any sense to those proceedings, and the decision was not binding upon him. His counsel was not able to cross-examine because he was, without sufficient cause, without his papers. A power of attorney was produced and put in evidence by the plaintiff and by it he was said to be the `` Ad Hoc Head of the Family to represent us, etc.'' The plaintiff signed this power and there were four other signatories. there was annexed to it a list of the names and addresses of sixty-two persons who were alleged to be, on the list itself, members of the family of the late Kofi Attim, but who are referred to in the body of the document as `` all of one clan Bretuo with late Kofi Attim.'' No evidence upon oath was given to establish that nay single person, either signatory or listed, was a person entitled to appoint the plaintiff as `` Ad Hoc Head of the Family.'' All that was said was that Kofi Kumah, the first defendant, had been deposed and that no other head of the family had since been appointed. The mortgage deed was produced and the plaintiff asserted that Yaw Kunadu had falsely purported to be the head of the family in the Deed and that one of the witnesses had made a similar false pretence. Not a word was aid on oath as to whether the plaintiff or any other person affected by the transaction did not know of it at the time, or by way of explanation of the delay that followed between 1951 and 1957. No reference whatever as made as to the probable or possible effects of an avoidance of the deed upon the situation of the fifth defendant as representing his predecessor against whom no charge of complicity in the alleged fraud was made. When the oral evidence concluded with this one perfunctory and unsupported witness the fifth defendant's counsel was absent, and the learned judge's note concludes, apart from the judgment, as follows: `` Cross examined by Kwaku Appiagyei. None. (5th defendant).''
Upon the face of the note it does not appear that the fifth defendant was ever called upon or given any opportunity at all to answer the case made against his interest, insubstantial as it was.
The learned judge held that `` on the evidence (oral an documentary) I am satisfied that the plaintiff is entitled to the reliefs sought as appears in the writ of summons and the statement of claim.'' He then decreed that the deed of mortgage be canceled and that the purported sale thereunder be set aside as null and void.
With the greatest respect I am unable to see any justification for this decision. In my view the plaintiff wholly failed at every stage to produce proof of the matters that were essential to the success of the claim, and, even in the absence of any evidence on behalf of the fifth defendant, who has now appealed to us, no case whatever was made out for him to answer.
 I would therefore allow this appeal, set aside the judgment of the Divisional Court and enter judgment for the fifth defendant with costs.