Appeal Court. 24th April,
1939.
Declaration of title-family
property-acquiesunce. Mortgage
of
family property without
consent of family.
Held: Appeal allowed. Judgment
of Court below set aside and
judgment entered for plaintiff.
The facts are sufficiently
set out in the judgment.
K. A. Kot'sah
for Appellant.
J. T. Sackeyfio for
Respondent.
The following judgments were
delivered :BANNERMAN, J.
This is an appeal from the
judgment of the Acting
Provincial Commissioner, Central
Province, dated the 19th of
August, 1938. The plaintiff's
claim is for a declaration of
title to a certain piece or
parcel of land with building
thereon situate at Royal Lane,
Cape Coast, the boundaries of
which are set out in the writ of
summons.
The substantial questions to be
determined by this Court are:
1. Whether the property in
dispute is family property.
Whether the plaintiff and the
members of his family acquiesced
in the transaction between
Samuel William Ferguson Duncan
(the Mortgagor) and George ,F.
Ferguson (the Mortgagee).
The Acting Provincial
Commissioner has held by
implication that the property is
family property and there is
abundant evidence on record to
support this view.
Now if the property is family
property it seems clear that
Samuel William Ferguson Duncan
cannot mortgage it without the
consent of the family and there
is no evidence to show that the
consent of the family was
obtained before the property was
mortg;1.ged to the defendant.
According to the evidence of the
plaintiff and his witnesses the
property was originally owned by
William Duncan who was the
grandfather of Samuel William
Ferguson Duncan and who, it is
alleged, made a gift of it to
members of his family including
William Thomas Duncan the father
of Samuel William Ferguson
Duncan. Apparently William
Thomas Duncan and some of the
members of his father's family
lived in the house for a
considerable number of years,
and the house was repaired by
William Thomas Duncan.
The contention of the plaintiff
is that the property being
family property the said William
Thomas Duncan could not inherit
it from his father. The recitals
in the Deed of Gift of the 1st
January, 1933, declare that
William Thomas Duncan inherited
the property absolutely as the
elder son of William Duncan. In
my view the recitals in
themselves are not conclusive,
and in the absence of other
evidence of a more definite
nature the defendant cannot rely
on them to defeat the
plaintiff's claim. The
plaintiff, however, goes further
and contends that even if the
property was the self-acquired
property of William Duncan it
became family property after his
death according to Native Law
and Custom as he did not
alienate it in his lifetime. I
entirely agree with this.
In my view the Acting Provincial
Commissioner based his judgment
on the assumption that the
plaintiff and other members of
his family knew of the
transaction between Samuel
William Ferguson Duncan and the
defendant and that they stood by
and took no steps to prevent
William Ferguson Duncan dealing
with the property as his own
property. In my opinion the
evidence before the Acting
Provincial Commissioner does not
support this view. As soon as
the existence of the mortgage
came to the knowledge of the
family they promptly instructed
a solicitor who wrote a letter
(Exhibit" C") to the defendant
to the effect that the property
is family property, and when the
property was advertised for sale
they immediately filed a writ
for a declaration of title. I do
not think the family could have
done anything more in the
matter.
In
my judgment the property is the
property of the plaintiff and
the members of his family and
they did not in any way
acquiesce in the transaction
between Samuel William Ferguson
Duncan and the defendant.