NKANSAH v. ADJEBENG AND ANOTHER

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]

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