Cases referred to:
(1) Insilhea & Others v. Simons & Others, Sarbah's
Fanti Law Report 105.
(2) Kuma v. Kuma, 5 W.A.C.A. 1.
Appeal from the Supreme Court of the Gold Coast.
The following judgment was delivered:
HARRAGIN, C.J. The following facts are proved beyond doubt and are hardly in dispute between the parties in this case.
The respondents are the children of the late G. A. Sappor and are the lawful successors of their father's estate.
The late G. A. Sappor was a member of the Tettey-Ga Family whose head by name of Pobee had pledged the family lands to one Amartey who would appear to have been an exacting pledgee.
The Tettey-Ga Family urged their head Pobee to redeem the property but this he either could not or would not do with the result that one of the more enterprising members of the family, to wit, G. A. Sappor, raised money himself and paid off the pledge on behalf of the family. As a reward for this action ``some of the principal heads of the Tettey-Ga Family held a meeting and decided to reward G. A. Sappor for his generous efforts in the redemption of the Tettey-Ga Family land'' and they granted to him the area of land now in dispute.
The method of conveyance was by way of a written document (Exhibit ``B'') which was signed by four of the principal heads of the Tettey-Ga Family. the number of the principal heads of the family at that time was six and two abstained from signing the document, one of them being, incidentally, the head of the  family Pobee. The respondents admit that these two persons either abstained deliberately or were not approached as they did not approve or would not have approved of the gift.
G. A. Sappor, after taking possession of the land in question in 1912, amongst other things, proceeded to set up a market thereon and he and his children after him collected tolls from the marked up to the 10th October, 1940, when the marked was handed over to the Native Administration Treasury under an Agreement whereby the Sappor Family were paid by the Native Administration Treasury one-third of the gross takings. All went well until May, 1943, when the respondents, as they were being pursued by the Medical Officer of Health to repair market stalls, which duty should have been performed by the Native Authority, suddenly decided to stop the Manche's collector and collect the market tolls for themselves.
The Manche then took steps to acquire rights over another property on which to set up a new marked which was in fact done and the Manche forbade his people to sell in the old market any more. This brought the respondents to their senses and they approached the Manche with the result that a ``pacification'' took place, the respondents offering an apology, paying a certain amount of money and undertaking to permit the Manche to have slaughtered two sheep in the old market for purification purposes. Not unnaturally the owners of the new market, who happened to be another branch of the Tettey-Ga Family, were furious and they went on to the lands of the respondents and prevented the emissaries of the Manche from slaughtering the sheep, a necessary preliminary to the opening of the market, and at the same time alleged that the land on which the old market was built was part of their family land and the respondents had forfeited all right to it if in fact such right had ever existed. The respondents thereupon filed this action against both the Manche and the present appellants. As the result of an amendment of the claim the relief sought amounted to (a) a declaration of title, (b) £150 damages for interference with the said market as against the appellants, and (c) specific performance of the Agreement dated the 10th October, 1940, against the other defendants.
In the result the judgment of the Court was that the respondents were the owners of the land in dispute and the appellants ordered to pay £60 as damages for unduly interfering with the land and preventing the holding of the marked on it and as against the first defendant (the Manche) who has not appealed, the Court declared that the Agreement of the 10th October, 1940, was still subsisting and should be carried out. against this judgment the second defendants-appellants have appealed to this Court.
There are therefore two points for serious consideration in this case. The first is whether the so-called conveyance by four of the principal members of the family did in fact, according to native law and custom, convey the land to the respondents' predecessor in title. In other words, was the learned trial Judge correct when he stated as follows:--
``I am satisfied from the evidence that Exhibit ` B ' was signed by the Headman at the time when there was a split in the family and I agree with the evidence of Akumia who was called by the Court and I hold the Heads who granted the land to Sappor were entitled to do so according to Native Custom and under the circumstances which existed in the family. If the defendants' contention is correct, how can they explain the reason why all these years no one has challenged G. A. Sappor's right to deal with the market as his own property and to grant portions of the land even to a Nigerian who is a total stranger?''
When the learned trial Judge refers to ``the circumstances which existed in the family'' we can only presume that he meant to refer to the fact that the head of the family Pobee and one other principal member were at variance with  the other four members. It would there fore appear that the question for consideration is whether, because the head of the family is at variance with the majority of its members, this automatically gives the majority the right to dispose of family lands.
It should here e noted that Counsel for the respondents contends that there is some difference in native law and custom between the procedure necessary for the transfer of title in land to a stranger and to a member of the family. He was, however, unable to produce any authority to support this statement nor have we been able to find any, so that the question is confined to the simple decision as to whether the majority of the principal members of the family can dispose absolutely of family lands without the consent of the head of the family if they so desire.
In the first place we can find no authority for the statement that the principal members of the family can give any title in a conveyance of family land without the head of the family joining in the conveyance, even though he may be in agreement.
So long ago as 1899 it was held in the case of Insilhea & Others v. Simins & Others (1) that ``family property cannot be sold except by the head of the family with the concurrence of the elder members of the family'' and all through Sarbah's book on the principle of Fanti customary law it is assumed that, in every case, the land is alienated by the head of the family, vide page 78. The only question that is dealt with at length is the necessity for the principal members of the family to concur in the alienation.
In the judgment of the Privy Council in Kuma v. Kuma (2) at page 8, their Lordships quote with approval a portion of the judgment of Rayner, C.J., which reads as follows:--
``The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in the loose mode of speech is sometimes called the owner. He is to some extend in the position of a trustee, and as such holds the land for the use of the community or family. He had control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so give still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger.''
We, with greatest respect, entirely agree with the statement in the above quotation that the head of the family may be considered to be in an analogous position to a trustee from which it follows that it is quite impossible for land to be legally transferred and legal title given without his consent. The alleged deed Exhibit ``B'' was therefore void ab initio, and the respondents derive no right of absolute ownership by virtue thereof.
The only remedy that the family have is to remove the head of the family if they do not approve of him and this had not been done in the present case.
The next point for consideration is whether the respondents were entitled to the use and occupation of the land on which the market was built by their predecessor. It is admitted by the appellants that up to a certain stage, to wit, 1940, the respondents had acquired a right to use that portion of the family land [on]1 which they had built the market, but the appellants argue that as soon as t[he]2 market ceased to be a market, i.e. when the Manche opened the new market and forbade selling in the old market, the land reverted to all the members  of the family. We are aware that, where a member of the family or, for that matter, any person with the permission of the family erects a building on family land and it falls into ruins the land reverts to the family subject to certain equities into which it is not necessary to go in this case. Such a reversion is based on native law and common sense, as there can be no logical reason why a man should retain the right to the use occupation of property which has become a ruin, but we cannot agree that such a position is analogous to the present one. the old market was suitable for occupation as soon as new tenants could be found or the old tenants placated. The use of the land had not been granted to the respondents for the sole purpose of making a market, nor indeed, according to the findings of the trial Judge, had the use thereof been granted to him by the defendants for any specific purpose or for any purpose whatever, but they had by their acquiescence in his occupation tacitly consented thereto and cannot now determine it arbitrarily at will.
The respondents lawfully built a market on family land with the tacit consent of the family and there was a comparatively short hiatus when the area was not used as a market as a result of which the appellants claim that the land reverted to the family and that they were entitled as members of the family to prevent the re-opening of that market, which they in fact did by refusing to allow the slaughtering of sheep on the land for purification purposes. With this argument we cannot agree. It would be illogical to argue that, where a member of the family was permitted to build a house and let this house to tenants, the moment the tenants left the house and before the new tenants (if any) had moved in, the house had reverted to the family.
Similarly, in our view, it would be most inequitable to suggest that a man can lawfully and in accordance with native law and custom build a market at considerable cost to himself, and a few years later because the area is unoccupied for a short period, immediately the land and buildings thereon revert to the family. No authority was quoted in support of this argument nor do we believe that such an authority exists. We are therefore of the opinion that the appellants committed a trespass when they entered upon the premises, drove away the Manches's messengers, and refused to permit the re-opening of the market by the slaughtering of sheep, and to that extent are liable in damage to the respondents. The learned trial Judge has fixed general damages at £60 and we are not prepared to disagree with him as to the amount.
As the appellants have been successful on the main portion of this appeal, i.e. that which refers to the title to the land, they will be awarded costs in the Court below and in this Court which we assess at £64 13s. 5d.
This appeal is allowed to the extent indicated in this judgment.
Appeal allowed in part.