MANU, ETC. vs. GYAMFI AND ANOTHER [1961]DLHC5416

Date	1961-10-18
Suit No.
Citation No.	[1961]DLHC5416

DJABANOR J.

A. APPIAH-MENKA FOR DEFENDANT-APPELLANT

E. EDUSEI FOR D. S. EFFAH FOR PLAINTIFF-RESPONDENT

[1961]DLHC5416
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">MANU, ETC.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">GYAMFI AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 589&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:<span style="font-size:10.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"> 18TH OCTOBER, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

A.
APPIAH-MENKA FOR DEFENDANT-APPELLANT.<o:p></o:p>

E.
EDUSEI FOR D. S. EFFAH FOR PLAINTIFF-RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

DJABANOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
DJABANOR J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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 &amp; Ors. v. Bonso &amp;
Ors.,1(1) Kuma v. Kuma2(2) and Agbloe II v. Sappor3(3) and more recently,
Yawoga v. Yawoga &amp; Ors.4(4) and Adjei v. Appiagyei.5(5)<o:p></o:p><o:p>&nbsp;</o:p>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 recov</main>