In any case, assuming arguendo, that the said Kwaku Addo, did not in fact participate in the execution of the Respondent’s lease and that the Asare Bossman forged his signature in his bid to give the lease an air of validity, it is established law that the alienation of family property by a head of family or customary successor, without the requisite concurrence of the family, is not void but voidable at the instance of the family, provided they act timeously.
The head of family or the successor is an indispensable person in the alienation of family land; an alienation of family property by the head of the family or a successor, purporting to be with the consent and concurrence of the principal members of the family, is voidable at the instance of the family, if they act timeously; but a conveyance made by any other member without the head of family or the successor, as the case may be is void ab initio.
More important still, even if he had been a bona fide purchaser from the first defendant, our law permits sales of family property to be avoided in situations where prompt action is taken by the family concerned or its representatives to prove that the sale had been made without the consent of the principal members of the family.
In our opinion the principle of law is that a deed of conveyance, mortgage or lease of family land which is on the face of it executed by the head and another member, upon proof timeously made that its execution was without the knowledge and consent of all the principal members of the family, is null and void.
In brief, where a family member builds on vacant family land by using his own private resources, unaided by the family, whether with or without prior permission from the family, he acquires only a life interest therein. Upon his death, his building remains family property, and is heritable by members of his immediate family. On the other hand, if such a family member secures a grant from the family of a portion of unoccupied land for his building in the proper customary manner, the house built by him on such a site, by his own effort and means, becomes his self-acquired property which he can alienate inter vivos or by testamentary disposition.
It is pertinent to note that, the legal imperative requiring the consent and concurrence of “principal members” does not inherently mandate a plurality of individuals in every case. In our view, the crucial factor is not necessarily the multiplicity of individuals designated as ‘principal members’, but rather the fact that the participation of such other person(s) so designated, was a prerequisite for the making of material decisions affecting the family.
Possession by a family member and prescriptive title
At customary law, possession however long does not ripen into ownership; there is no such thing in native customary law as a prescriptive title, and the mere use and occupation for some time cannot of itself oust an original title
Powers of a customary successor over family property
Again the successor owes a duty to both the immediate and the extended family not only to preserve the property, but as much as possible to improve it; he is therefore entitled to spend a portion of the income from time to time on the property. In short he owes the family, now living and yet unborn, a duty not to commit waste in respect of the family property, but rather to preserve and improve it. Therefore while the successor, continuing in office virtually has complete control and management of the property his dominion over it is subject to important limitation that he shall not, save with the consent and concurrence of the principal members of the family alienate, encumber or otherwise deal with the property to the detriment or injury of the family
