NKANSAH v. ADJEBENG AND ANOTHER [1961] 1 GLR 465

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 30TH JUNE, 1961

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Antu v. Buedu (1929) F.C. ‘26 -’29, 474

(2) Yamuah IV v. Sekyi (1936) 3 W.A.C.A. 57

(3) Acquah III v. Ababio (1948) 12 W.A.C.A. 343.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the District Court, Koforidua, reversing a judgment of the Local Court, Nkawkaw given in favour of the plaintiff.

COUNSEL

Twum Barima for the plaintiff-appellant.

A. W. Acquaah for the defendants-respondents.

JUDGMENT OF OLLENNU J.

This is an appeal from a judgment of the District Court, Koforidua, which reversed the decision of the local court magistrate, Nkawkaw, given in favour of the plaintiff. The material part of the judgment of the learned district magistrate is as follows: “After hearing counsel on both sides, I am satisfied that the deceased testator in his life-time acquired the properties in dispute for himself and therefore cannot be deemed to be family property.” The submissions made for the defendants before the learned magistrate are:

(1) since probate had been granted of the will of the testator, a local court had no jurisdiction to entertain a suit for declaration that the properties, subject-matter of the said will are family property and not the individual property of the testator;

(2) that no evidence was adduced to prove that the property is family property;

(3) that no family property was traced to the defendants, the executors and beneficiaries under the will of the testator; and

(4) that the exhibits in the case show that the testator was in partnership with his children in business.

[p.467] of [1961] 1 GLR 465

And the submissions made for the plaintiff are that:

(1) since there is evidence that the testator started business with moneys he had from members of his family, and

(2) since he succeeded to and managed family property without accounting to the family, all properties he died possessed of must be deemed to be family property.

The local court magistrate made two important findings of fact, namely: (1) that the deceased succeeded one Berko and was up to the date of his death in charge and control of three substantial farms left by the said Berko, and also had money and other personal property left by the said Berko; and (2) that he did not believe that the defendants and other children of the deceased invested money in the business of the testator as exhibit P purported to show, because if they had, the testator would have been present as an independent witness to the payment. An appellate court is not entitled to set aside findings of fact made by a trial court unless it could show from the evidence on the record that the findings made by the trial court are not warranted, or are not reasonable inferences to be drawn from the facts established by the evidence. And where an appellate court makes findings of fact which were not considered by the trial court it must show the evidence on the record which warrants such findings. In this case the learned magistrate indicated that the facts he purported to find are based upon submissions made by counsel. With respect to the learned magistrate, I do not see how he could possibly do that in this case where the submissions made on either side did not in any way deal with the facts he found. And since these purported findings of fact are the sole bases of his judgment, it is clear that he has not dealt fully with the appeal and his decision cannot stand.

But that does not dispose of the appeal. It is for this court being seized of the whole proceedings in the case to say whether or not the decision of the local court magistrate is right.

There is no doubt that the local court magistrate appreciated the issues raised in the case though he appeared to mix them up somehow.

These issues are:

(1) was the testator in control of family property up to the date of his death, i.e. property to which he succeeded from a deceased member of the family;

(2) if he was in charge of family property could he make a will in any form without reference to family; and

(3) did the defendants invest moneys in the business carried on by the testator?

The first issue presents no difficulty; both sides are agreed that the testator succeeded Berko a member of the family and took charge of his estate, real and personal, including three cocoa farms.

But while the plaintiff said that the testator was in charge of those family farms and

[p.468] of [1961] 1 GLR 465 other property up to the date of his death and died possessed of them, the defendants said that the testator gave up the office of successor some time before his death and surrendered all the family property in his possession including the three farms to the family. It was common ground between the parties that one Kwaku Mensah, P.W. 4, was the person in physical possession of the farm, and he accounted for the proceeds. The evidence of that witness as to the person to whom he rendered accounts must seal that question. His evidence is that he accounted to the testator up to the date of his death and to no other person. Therefore the decision of the local court on the first issue is right.

As was done in the district court, it was submitted for the respondents in this court, that probate of the will having been granted, it was not competent for the local court to entertain a suit in respect of the properties bequeathed and devised under the will. Taken to its logical conclusion what this submission amounts to is that if A makes a will and devises B’s property, Whiteacre, to C, once probate was granted of A’s said will, B could not go to a local court that has jurisdiction in land cases and sue for declaration of his title to, and recovery of possession of Whiteacre. This is absurd. The grant of probate is conclusive only as to validity of the execution of a will, but not as to validity of dispositions made by the will, and it does not affect the law applicable to the properties which the will purports to dispose of or the jurisdiction of the court which would normally have dealt with cases in respect of the subject of the disposition. Thus in this case where the plaintiff contends rightly or wrongly that the properties devised under the will are family property and not the individual estate of the testator which he could dispose of by will or otherwise, the local court had jurisdiction. The question of whether the testator, as a person in charge of family property could dispose of any property by will or otherwise, is a question of law, depending upon certain facts. The law is that any property which an occupant of a stool or a successor in charge of stool or family property acquires while holding office is itself stool or family property, unless before taking the appointment he declared his individual estate to the principal members of the stool or family: see Antu v. Buedu 1(1)nor unless, while in office he to the full knowledge of the principal members engaged himself in some business or work which has no relationship to the duties of his said office, as where a chief, to the knowledge of the elders of the stool carried on business as trader: see Yamuah IV v. Sekyi2(2)

Acquah III v. Ababio3(3).

There is evidence in this case that the testator carried on business as a trader. If the local court magistrate had accepted the evidence that the initial capital with which he started business was supplied by members of his family, that fact would have taken the case out of the exception, and all properties,

[p.469] of [1961] 1 GLR 465 he died possessed of would have been family property, and in that case it would not be necessary to trace the funds of the family to any particular piece of property into which the family money might have been converted. Again if the evidence had been that the testator started trading sometime after he had succeeded to the estate of Berko, all properties he died possessed of would have been family property unless thebrespondents could show that to the knowledge of the family the capital with which the testator started the business was from private resources, in that case I would have said that the observations of the local court on the third point, i.e. that the fact that the alleged contributions made by the defendants to the capital of the business were not brought to the notice of the testators family, derogated very much from the truthfulness of the evidence in support of that allegation, would have been very material. The only difficulty which faces the appellant is that to the knowledge of the family, the testator was in business on his own before accepting the office of successor of Berko, and continued in the said business after entering upon that office. Since, as I have said before, the trial court did not find that the original capital for the business was family money, the case falls within the principle laid down in the cases of Yamuah IV v. Sekyi and Acquah III v. Ababio.

The appeal is therefore dismissed with costs fixed at 12 guineas inclusive.

DECISION

Appeal dismissed.