Native Law and Custom-Fanti Customary Law-Alienation of Family Land.

This was a dispute about land belonging to the Effia Stool. The appellants as plaintiffs claimed on a lease given them by one Chief; the defendant in occupation claimed on a lease given him and his people by the predecessor of that Chief and had the support of the co-defendant, who said in regard to the plaintiffs that the consent of the Family's representatives had not been obtained and the lease to them was unauthorised, and in regard to the defendant, that his people were recognised by the Family as the tenants. The plaintiffs admitted that the said consent had not been obtained but contended that it was not necessary on the ground that the Family had delegated all authority to alienate land and divested itself of its interest by virtue of the election and installation as chief of the person who gave the plaintiffs .their lease. The evidence on the record proved, however, that the consent of the head and principal members of the Family was needed in Fanti Customary Law and also the approval of the Para­mount Chief, the overlord of the Effia Stool. The trial Judge dismissed the claim and the plaintiffs appealed.

Held: The lease given to the appellants was given them without the consent of the head and principal members of the Family and without the approval of the overlord of the Effia Stool, as required in Customary Law; that lease was therefore not binding on the Stool Family.

Case cited:-

Mary Barnes v. Chief Quasie AUa, 17th July, 1871, Sarbah Fanti Customary Law, p. 1(}9, and pp. 78-9.

Appeal by plaintiffs: No. 22/50.

F. Awoonor-Williams, with him K. A. Bossman, for Appellant.

C. C. Lokko for Respondents.

The following judgment was delivered:

Korsah, J. This is an appeal from the decision of Lingley, J., in a suit in which plaintiffs-appellants claim that by virtue of a document dated 16th February, 1948, executed by Chief Brempong Yaw III of Effia and three others, they are lessees in possession of a piece or parcel of land, which includes the area described as Effia Zongo, occupied by defendant-respondent Mamah Mashie together with the Moshie Comryunity, and to be entitled to rents and mesne profits from the said defendant-respondent. It is admitted that the said Mamah Mashie and his people had been put in possession of the said land by the predecessor of the said Chief Brempong Yaw. [pg 11]

Petteh Esson, head of the Effia Stool family was upon his application made a co-defendant, are the grounds that the said Stool family who he contends are owners of the. said land, had not authorised Chief Brempong Yaw and or any persons to grant the said land to plaintiffs-appellants, nor had his consent and concurrence or the consent and concurrence of the accredited representatives of the Stool family been obtained in respect of the grant alleged to have been made by Chief Brempong Yaw to the plaintiffs-appellants. He further stated that the family recognised defendant-respondent and his people as their· tenants, consequently they are not liable to pay rents to plaintiffs-appellants or to be ejected from the said land at the request of plaintifIs-appcllants.

It is contended on behalf of the plaintiffs-appellants that Petteh Esson is not the head of the said Stool family, and even if he is, his consent and concurrence, and the consent and concurrence of other principal members of the family are not necessary to a valid transfer of family land by Chief Brempong Yaw to whom it is alleged, the Stool family had delegated all authority with respect to the alienation of family land and divested itself of its interest by virtue of Chief Brempong Yaw's election and installation as Chief of Effia.

This contention, however, is not supported by statements on Native Customary law recorded in Sarbah's Fanti Customary Law, nor by the judgment of any Court of competent jurisdiction.

In the case of Mary Barnes v. Chief Quasie Atta (1), Chalmers Judicial Assessor said" not even the regular occupant (of a Stool) could alienate property without some concurrence by the people of the Stool who have an interest in it and are usually consulted on such a matter

      ".Sarbah states at pages 78-9 :-

" The head of the family cannot without the consent of all the principal members of the family, or the greater part thereof, that is the Ebusuafu, alienate the immoveable ancestral or family property.

" Although alienation may be necessary for some family purpose, or for the discharge of family obligation, nevertheless unless confirmed by the senior or principal members of the family, such alienation is revocable.

" Neither the head of the family acting alone nor the senior members of the family acting alone, can make any valid alienation or give title to any family property whatsoever."

It is not denied that the alleged grant by Chief Brempong Yaw to the plaintiffs­appellants was made with the knowledge that the said land had been previously granted to defendant-respondent and his people by the predecessor of the said Chief. It is admitted that he did not consult the head of the family nor did he obtain the consent and concurrence of the principal members of the family.

There is evidence on record which proves that not only is it necessary to obtain the consent and concurrence of the head and principal members of the Effia Stool family but it is also necessary to obtain the approval of the Paramount Chief of Dutch Sekondi who is the overlord of the Effia Stool whenever the said Stool family desire to alienate Stool land.

The learned Judge found that in these circumstances the Stool family is not bound by the lease to plaintiffs-appellants. In my opinion the judgment of the Court below is supported by evidence of Native law on record and by previous decisions. This appeal should be dismissed.

Foster-Sutton, P. I concur. Coussey, ]. I  concur.

Appeal ,dismissed. [pg 12]