Agbloe v.

Sappor
(1947) 12 WACA 187.
West African Court of Appeal, Gold Coast, Accra, Harragin, C.J.
(Gold Coast), Verity, C.J. (Nigeria), Lucie Smith, C.J. (Sierra
Leone)
June 18, 1947
[187]
Cases referred to:
(1) Insilhea & Others v. Simons & Others, Sarbah’s Fanti Law Report 105.
(2) Kuma v. Kuma, 5 W.A.C.A. 1.

Appeal from the Supreme Court of the Gold Coast.

The following judgment was delivered:

Harragin, C.J. The following facts are proved beyond doubt and are
hardly in dispute between the parties in this case.
The respondents are the children of the late G. A. Sappor and are the lawful
successors of their father’s estate.
The late G. A. Sappor was a member of the Tettey-Ga Family whose head
by name of Pobee had pledged the family lands to one Amartey who would
appear to have been an exacting pledgee.
The Tettey-Ga Family urged their head Pobee to redeem the property but
this he either could not or would not do with the result that one of the more
enterprising members of the family, to wit, G. A. Sappor, raised money himself
and paid off the pledge on behalf of the family. As a reward for this action “some
of the principal heads of the Tettey-Ga Family held a meeting and decided to
reward G. A. Sappor for his generous efforts in the redemption of the Tettey-Ga
Family land” and they granted to him the area of land now in dispute.
The method of conveyance was by way of a written document (Exhibit “B”)
which was signed by four of the principal heads of the Tettey-Ga Family. the
number of the principal heads of the family at that time was six and two ab-
stained from signing the document, one of them being, incidentally, the head of
the [188] family Pobee. The respondents admit that these two persons either
abstained deliberately or were not approached as they did not approve or would
not have approved of the gift.
G. A. Sappor, after taking possession of the land in question in 1912, amongst
other things, proceeded to set up a market thereon and he and his children af-
ter him collected tolls from the marked up to the 10th October, 1940, when
the marked was handed over to the Native Administration Treasury under an
Agreement whereby the Sappor Family were paid by the Native Administration
Treasury one-third of the gross takings. All went well until May, 1943, when
the respondents, as they were being pursued by the Medical Officer of Health to

1
repair market stalls, which duty should have been performed by the Native Au-
thority, suddenly decided to stop the Manche’s collector and collect the market
tolls for themselves.
The Manche then took steps to acquire rights over another property on
which to set up a new marked which was in fact done and the Manche forbade his
people to sell in the old market any more. This brought the respondents to their
senses and they approached the Manche with the result that a “pacification”
took place, the respondents offering an apology, paying a certain amount of
money and undertaking to permit the Manche to have slaughtered two sheep
in the old market for purification purposes. Not unnaturally the owners of the
new market, who happened to be another branch of the Tettey-Ga Family, were
furious and they went on to the lands of the respondents and prevented the
emissaries of the Manche from slaughtering the sheep, a necessary preliminary
to the opening of the market, and at the same time alleged that the land on
which the old market was built was part of their family land and the respondents
had forfeited all right to it if in fact such right had ever existed. The respondents
thereupon filed this action against both the Manche and the present appellants.
As the result of an amendment of the claim the relief sought amounted to (a)
a declaration of title, (b) 150 damages for interference with the said market
as against the appellants, and (c) specific performance of the Agreement dated
the 10th October, 1940, against the other defendants.
In the result the judgment of the Court was that the respondents were the
owners of the land in dispute and the appellants ordered to pay 60 as dam-
ages for unduly interfering with the land and preventing the holding of the
marked on it and as against the first defendant (the Manche) who has not ap-
pealed, the Court declared that the Agreement of the 10th October, 1940, was
still subsisting and should be carried out. against this judgment the second
defendants-appellants have appealed to this Court.
There are therefore two points for serious consideration in this case. The
first is whether the so-called conveyance by four of the principal members of the
family did in fact, according to native law and custom, convey the land to the
respondents’ predecessor in title. In other words, was the learned trial Judge
correct when he stated as follows:—
“I am satisfied from the evidence that Exhibit ‘ B ’ was signed by
the Headman at the time when there was a split in the family and I
agree with the evidence of Akumia who was called by the Court and
I hold the Heads who granted the land to Sappor were entitled to do
so according to Native Custom and under the circumstances which
existed in the family. If the defendants’ contention is correct, how
can they explain the reason why all these years no one has challenged
G. A. Sappor’s right to deal with the market as his own property
and to grant portions of the land even to a Nigerian who is a total
stranger?”
When the learned trial Judge refers to “the circumstances which existed in
the family” we can only presume that he meant to refer to the fact that the

2
head of the family Pobee and one other principal member were at variance with
[189] the other four members. It would there fore appear that the question
for consideration is whether, because the head of the family is at variance with
the majority of its members, this automatically gives the majority the right to
dispose of family lands.
It should here e noted that Counsel for the respondents contends that there
is some difference in native law and custom between the procedure necessary
for the transfer of title in land to a stranger and to a member of the family. He
was, however, unable to produce any authority to support this statement nor
have we been able to find any, so that the question is confined to the simple
decision as to whether the majority of the principal members of the family can
dispose absolutely of family lands without the consent of the head of the family
if they so desire.
In the first place we can find no authority for the statement that the principal
members of the family can give any title in a conveyance of family land without
the head of the family joining in the conveyance, even though he may be in
agreement.
So long ago as 1899 it was held in the case of Insilhea & Others v. Simins
& Others (1) that “family property cannot be sold except by the head of the
family with the concurrence of the elder members of the family” and all through
Sarbah’s book on the principle of Fanti customary law it is assumed that, in
every case, the land is alienated by the head of the family, vide page 78. The only
question that is dealt with at length is the necessity for the principal members
of the family to concur in the alienation.
In the judgment of the Privy Council in Kuma v. Kuma (2) at page 8, their
Lordships quote with approval a portion of the judgment of Rayner, C.J., which
reads as follows:—
“The next fact which it is important to bear in mind in order to un-
derstand the native land law is that the notion of individual owner-
ship is quite foreign to native ideas. Land belongs to the community,
the village or the family, never to the individual. All the members
of the community, village or family have an equal right to the land,
but in every case the Chief or Headman of the community or village,
or head of the family, has charge of the land, and in the loose mode
of speech is sometimes called the owner. He is to some extend in the
position of a trustee, and as such holds the land for the use of the
community or family. He had control of it, and any member who
wants a piece of it to cultivate or build a house upon, goes to him for
it. But the land so give still remains the property of the community
or family. He cannot make any important disposition of the land
without consulting the elders of the community or family, and their
consent must in all cases be given before a grant can be made to a
stranger.”
We, with greatest respect, entirely agree with the statement in the above
quotation that the head of the family may be considered to be in an analogous

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position to a trustee from which it follows that it is quite impossible for land
to be legally transferred and legal title given without his consent. The alleged
deed Exhibit “B” was therefore void ab initio, and the respondents derive no
right of absolute ownership by virtue thereof.
The only remedy that the family have is to remove the head of the family if
they do not approve of him and this had not been done in the present case.
The next point for consideration is whether the respondents were entitled
to the use and occupation of the land on which the market was built by their
predecessor. It is admitted by the appellants that up to a certain stage, to wit,
1940, the respondents had acquired a right to use that portion of the family
land [on]1 which they had built the market, but the appellants argue that as
soon as t[he]2 market ceased to be a market, i.e. when the Manche opened the
new market and forbade selling in the old market, the land reverted to all the
members [190] of the family. We are aware that, where a member of the
family or, for that matter, any person with the permission of the family erects
a building on family land and it falls into ruins the land reverts to the family
subject to certain equities into which it is not necessary to go in this case. Such
a reversion is based on native law and common sense, as there can be no logical
reason why a man should retain the right to the use occupation of property
which has become a ruin, but we cannot agree that such a position is analogous
to the present one. the old market was suitable for occupation as soon as new
tenants could be found or the old tenants placated. The use of the land had not
been granted to the respondents for the sole purpose of making a market, nor
indeed, according to the findings of the trial Judge, had the use thereof been
granted to him by the defendants for any specific purpose or for any purpose
whatever, but they had by their acquiescence in his occupation tacitly consented
thereto and cannot now determine it arbitrarily at will.
The respondents lawfully built a market on family land with the tacit consent
of the family and there was a comparatively short hiatus when the area was not
used as a market as a result of which the appellants claim that the land reverted
to the family and that they were entitled as members of the family to prevent
the re-opening of that market, which they in fact did by refusing to allow the
slaughtering of sheep on the land for purification purposes. With this argument
we cannot agree. It would be illogical to argue that, where a member of the
family was permitted to build a house and let this house to tenants, the moment
the tenants left the house and before the new tenants (if any) had moved in,
the house had reverted to the family.
Similarly, in our view, it would be most inequitable to suggest that a man
can lawfully and in accordance with native law and custom build a market at
considerable cost to himself, and a few years later because the area is unoccu-
pied for a short period, immediately the land and buildings thereon revert to
the family. No authority was quoted in support of this argument nor do we
believe that such an authority exists. We are therefore of the opinion that the
1 The copy from which this case was digitized is unclear at this point, and the text (if any)

between ‘land’ and ‘which’ is obscured. – Ed.

2 Here again, the text is obscured in the original. – Ed.

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appellants committed a trespass when they entered upon the premises, drove
away the Manches’s messengers, and refused to permit the re-opening of the
market by the slaughtering of sheep, and to that extent are liable in damage to
the respondents. The learned trial Judge has fixed general damages at 60 and
we are not prepared to disagree with him as to the amount.
As the appellants have been successful on the main portion of this appeal,
i.e. that which refers to the title to the land, they will be awarded costs in the
Court below and in this Court which we assess at 64 13s. 5d.
This appeal is allowed to the extent indicated in this judgment.
Appeal allowed in part.