Consolidated Appeals from Deputy Com­missioner.

Ejectment, possession and declaration of title-Alienation of family land without consent only voidable-Reopening at instance of family must be timely so that purchaser may be restored to his former position-Onus on Plaintiff to prove title.

Held: Both appeals dismissed.

The facts are sufficiently set out in the judgment.

K. A. Korsah for Appellants in first case and Respondents in second.

C. F. Hayfron-Benjamin for Respondents in first case and Appellants in second.

The following judgment was delivered :­PETRIDES, C.J .. GOLD COAST.

This is an appeal and a cross-appeal from a judgment of the Acting Deputy Commissioner, Central Province, given by him after he had retried two separate actions originally tried by the Tribunal of the Paramount Chief of Gomoa Assin.

In the action against Bonso and others the plaintiffs' claim was for" ejectment, or ownership or possession" of a piece of land with a two-storey house which the plaintiff alleged was .. the property of the late Kojo Botsio's family, which said ownership of the said property was confirmed by a judgment of the Supreme Court, Accra, dated the 8th October, 1885, in the case of Coffie Patsie v. Boatoe and two others and for £100 damages.

The Deputy Commissioner found that the land on which the two-storey house was built belonged to Botsio and his family. Although the land was family property, Botsio (described as Cudjoe Buatoe in the Deed) purported to sell it with the house thereon to Cudjoe Buatoe Bentil as evidenced by a Deed dated the 30th December, 1885. The Deputy Commissioner found that this sale was valid, and that even if the family had not given prior consent, they subsequently acquiesced in the sale by allowing Bentil and his successors in title to occupy the house rent free from the year 1885 until the present time without protest.

Appellants' Counsel contended at length that this Deed was a forgery, but entirely failed to satisfy us that such was the case.

He then contended that the alleged sale of 1885 by Botsio to Bentil was absolutely void as Botsio could not sell the land as it was family property, and that the Deputy Commissioner was wrong in holding that the family had acquiesced in the sale by allowing Bentil and his successors in title to occupy the house rent free from the year 1885 until the present time without protest. He con­tended that the family could not have acquiesced in the sale as they knew nothing abo'lt it at the time and never saw the Deed of sale. He pointed out that as Bentil had married Botsio's niece he was entitled to live in the house. We think that this contention is right, and that in consequence the fact that Bentil and those who in­herited from him paid no rent is no evidence that the family acqui­esced in the sale of the property to Bentil.

In 1914 the house was sold by Essie Gyan, who inherited in­directly from Bentil, to H. E. Thompson as evidenced by Exhibit .. D." When Thompson died Okwesi succeeded to the property and sold it to Kwa Baubin, who died and was succeeded by Kofi Acquah, who placed the defendants in possession as caretakers.

It appears from the evidence that from 1914 up to date the upper storey of the house was occupied by persons like Thompson who had no right to be there unless there had been a sale in 1885. The presence of these people from 1914 to date is only intelligible upon the footing of title as in the ordinary course of events strangers do not live in other people's houses. On the other hand until 1933 the ground floor was occupied by the plaintiff's family.

In the case of Quassie Bayaidie v. Kwamina Mensah (F.C.L. 150) the Full Court had to consider what was the effect of a sale by family land by occupant of a stool. That Court in the course of its judgment stated:-

.. Now although it may be, and we believe it is, the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right timeously and under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully re­stored to the position in which he stood before the sale."

If this judgment is sound, and the contrary is not suggested by appellants' Counsel, then it appears clear that the sale of 1885 was not void, but merely voidable and the plaintiffs having taken no steps to set it aside have no title to the land in dispute.

      The burden of proof in an action such as this for ejectment, possession and a declaration of title clearly lies on the plaintiff, and as it has been shown that Kofi Acquah has a title to the land, even though it may be a defeasible one, his caretakers cannot be ejected or a title granted to the plaintiffs in respect of this land while Kofi Acquah's title subsists.

The plaintiffs' appeal must therefore be dismissed.

As to the cross-appeal, we think that the Deputy Commissioner's decision was right and we dismiss that appeal.

KINGDON, c.J., NIGERIA.

I concur.

WEBBER, c.J., SIERRA LEONE. r concur.