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  • appeal
  • 1961-10-18
  • GLR 589-591
  • Print



Customary law?-Gift by successor of family property to member of family?-Whether gift void or voidable.


On the death intestate of one Kwabena Mensah, the first defendant was appointed his successor. He thus took possession of the farm in dispute. He made a gift of the farm to the second defendant without the consent of the members of the family. They refused to share in the aseda which was paid by the second defendant. Five years later the plaintiff, acting on behalf of the other members of the family, brought this action in the local court to recover possession of the farm from the second defendant on the ground that it is family property. The local court decided the matter in favour of the plaintiff. The second defendant appealed. It was argued on his behalf that once aseda was paid the gift was perfected and the fact that the members of family rejected their share thereof is of no consequence; and further that after five years the family are estopped by laches from avoiding the transaction.


APPEAL from a judgment of a local court in an action by members of family to recover property gifted by successor to another member of the family without consent of the family.

Upon the death intestate of the late Kwabena Mensah Kojo Gyamfi the first defendant non-appellant became his successor and he thus succeeded to the farm in dispute. He made a gift of the said farm to the second defendant?-Kwaku Tergy. Five years later the plaintiff- respondent brought this action to recover the said farm on the ground that the first defendant gifted it without the prior consent of the members of the family. The plaintiff-respondent sued for and on behalf of the other members of the family.

The issue before the trial local court was whether or not the said gift was made with the prior knowledge and consent of the family. If not, the gift should be set aside as invalid. In support of the plaintiff-respondent?'s case that the gift was without their consent he gave evidence and called another member of the family, Kwasi Afriyie. The first defendant?'s evidence was in support of the plaintiff-respondent?'s claim that the family did not consent before he made the gift and when he sent them their share of the aseda they refused to accept same.

As against this evidence the defendant-appellant asserted that the gift was made before all the relatives and that they raised no objection and as a result defendant-appellant paid an aseda of G16 and some rum which was shared amongst the reletives. Counsel suggested that the fact that the members of the family?'s share was rejected is immaterial and that the important thing is to pay the aseda and it did not matter if it was not accepted. I think that in this case where there was no prior consultation between the family before first defendant made the gift the acceptance or rejection of the aseda by the other members of the [p.591] family was tantamount to an approval or disapproval of the gift previously made by first defendant. Two other persons gave evidence for the second defendant.

Both parties took great pains to present their cases before the trial court which was entitled to arrive at its own conclusions on the facts. That court declared in no uncertain terms its findings; namely, that the farm was family property and that the gift was made without the consent of the members of the family. In my view these findings are amply supported by the evidence. As far as the law goes there is plenty or authority for the proposition that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale or gift of family land. The sale or gift is not void but voidable at the instance of the family, provided they acted timeously. I refer to the cases of Kwesi Manko Ors. v. Bonso Ors.,1 Kuma v. Kuma2 and Agbloe II v. Sappor3 and more recently, Yawoga v. Yawoga Ors.4 and Adjei v. Appiagyei.5

The appellant argued with much force that even if it was held that the family did not consent to the gift, they should nevertheless not be allowed to avoid the gift because they did not act timeously. This submission too is supported by authority. What are the facts? There was evidence that members of the family refused to agree to the gift even on the very day it was made. There was also evidence that the family so pressed the first defendant (the donor) that he had to ask the appellant to surrender the farm even in exchange for another one of his own. This was within two years of the gift, and since then the first defendant had been pressing for the surrender of the farm. It does not appear that the appellant had incurred any or much expense in developing or improving the farm. In the circumstances I do not think I will be right in holding that the family is barred from recovering possession on account of laches. The acquiescence which will deprive a man of his legal rights is explained in the case of Abbey v. Ollennu6 and these facts do not come within its purview.

In the result I find that the facts found are supported by the evidence and that the legal effect is that the said gift was wrongfully made and should not be allowed to stand and it is accordingly set aside. The farm is hereby declared family property and the defendant-appellant and his agents are restrained from entering into it or in any way dealing with it.

The appeal is dismissed with costs assessed at 25 guineas.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

A. Appiah-Menka

Defendant / Respondent

E. Edusei for D. S. Effah


(1)  Kwesi Manko & Ors. v. Bonso & Ors. (1936) 3 W.A.C.A. 62

(2)  Kuma v. Kuma (1937) 5 W.A.C.A. 4

(3)  Agbloe II. v. Sappor (1947) 12 W.A.C.A. 187

(4)  Yawoga v. Yawoga & Anor. (1958) 3 W.A.L.R. 309

(5)  Adjei v. Appiagyei (1958) 3 W.A.L.R. 401

(6) Abbey v. Ollennu (1954) 14 W.A.C.A. 567

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