BANNERMAN, J. This is an appeal from the judgment of the Acting Provincial Commissioner, Central Province, dated the 19th of August, 1938. f 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. 2. 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 mortgaged 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. In my opinion the appeal should be allowed.
BUTLER LLOYD, AG. C.J., NIGERIA I concur. STROTHER-STEWART, J. I concur.
The following Order was made :- The appeal is allowed and the judgment of the Provincial Commissioner’s Court is set aside and in lieu thereof judgment is entered for the plaintiff with costs. Defendants-respondents to pay the plaintiff’s taxed costs in the Court below and the costs of this appeal which are assessed at £35 10s. 3d. The Court below to carry out.