JUDGMENT OF AMPIAH J.A.
Ref.: Administration of Estates Act, 1961 (Act 63), s. 74.
The plaintiff-appellants in this action (hereinafter referred to as the plaintiffs) are the children of the late Emmanuel Quao Kpakpa Quartey who was also the brother of the defendants. By their writ of summons, the plaintiffs sought a declaration of title to house No. C 29/1, Adama Avenue, Adabraka situate on plot No. 23, Adabraka, Accra. They also sought for an order of ejectment against the defendants-respondents (hereinafter referred to as the defendants) and a further order of injunction restraining the defendants or their agents or servants from collecting further rents from the said house. The defendants resisted the claim of the plaintiffs and counterclaimed for an order setting aside an indenture No. 4505/A/38 dated 1
October 1938 which apparently vested the said property in their brother E. Q. K. Quartey alone. The learned trial judge of the High Court, Accra dismissed the plaintiffs’ claim and gave judgment for the defendants on their counterclaim after he had ordered further amendment of that claim. It is against this judgment that the plaintiffs have appealed.
The plaintiffs who at the initial stages of this appeal were represented by counsel decided after their counsel had withdrawn to prosecute the appeal themselves through their spokesman, the first plaintiff, namely A. K. Quartey. Before the hearing of the appeal, however, counsel for the defendants who had earlier filed a notice of amendment moved the court for the amendment of the counterclaim. This was granted without objection.
Arguing for the plaintiff’s, the first plaintiff submitted in substance that the judgment was against the weight of the evidence and that the learned trial judge failed to take into consideration the effect of the indenture No. 4505/A/38 of 1 October 1938, which had vested the property in their father. He could not deny or admit specifically whether the said property was originally vested in the father of the defendants, J. H. Quartey, but contended that whatever interest the said J. H. Quartey had in that property was forfeited by the government after failure to build on the land as covenanted. The government thereafter vested the property in their father, E. Q. K. Quartey, who built on the land and subsequently devised it to them (the plaintiffs and their other brothers and sisters) in his will dated 10 July 1961 probate of which was taken on 25 September 1967. The first plaintiff made fetish of a docket reference No. 2041/1711 which contained a letter dated 21 May 1930, which docket got missing in the course of a trial which had moved from one judge to another. In fact, at one stage, the first plaintiff refused to continue with the appeal unless this document was found. After he had agreed to continue with his argument, he contended that since that document which contained part of their evidence could not be traced, the learned trial judge was
wrong in giving judgment against the plaintiffs without reference to that docket.
In reply to the plaintiff’s submission, counsel for the defendants submitted that that document referred to as No. 2041/1711 was only a docket which contained letters and other correspondence on the property in dispute and that the relevant letters and correspondence were duly tendered in evidence for consideration by the judge. The loss of that docket did not in any way occasion any miscarriage of justice. Counsel further submitted that the learned trial judge exhaustively considered both the evidence and the law and made positive findings of fact which were abundantly supported by the evidence. He submitted that there was no merit in the appeal.
There can be no doubt from the record that before the learned trial judge proceeded to give his judgment, he had adequately appraised himself of the issues involved in the case as agreed upon by the parties at the summons for direction. He set these out in detail and went on to determine them. He made the following findings:
“(1) That plot No. 23, West Adabraka on which the house in dispute stands was first granted to J. H. Quartey in 1918.
(2) That it was J. H. Quartey who first built on the plot he acquired.
(3) That E. Q. K. Quartey, the father of the plaintiffs, entered this land as the administrator of the estate of the late J. H. Quartey in which capacity the Lands Department dealt with him and granted him the five-year lease and the subsequent freehold interest contained in exhibit A (the conveyance No. 4505/A/38 dated 1 October 1938).
(4) That there was no forfeiture of the grant made to the late J.H. Quartey.
(5) That E. Q. K Quartey held the property in trust for the defendants and that his only interest in the property was a life interest.”
On these findings, the learned trial judge concluded that the property in dispute belonged to the defendants and their other brothers and sisters and that the plaintiffs’ father had no testamentary capacity as an administrator to dispose of the property to his children (the plaintiffs and the other children). He accordingly dismissed the plaintiffs’ claim.
On the defendants’ counterclaim, the learned trial judge found that there had been a misrepresentation of the facts by E. Q. K. Quartey for the acquisition of the conveyance (exhibit A). He held therefore
that that document (exhibit A) could not stand. He exercised his powers under Order 28, r.12 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) to amend the counterclaim and then ordered the setting aside of the name of E. Q. K. Quartey on indenture No. 4505/A/38 to read J. H. Quartey. Upon this he entered judgment for the defendants on their counterclaim.
There is no dearth of authorities for the proposition that an appellate court would not interfere with the decision of a court on findings of fact unless such a decision is shown to be perverse or not the result of a proper exercise of discretion: see the case of Codjoe v. Kwatchey (1935) 2 W.A.C.A. 371 at 374 relying on Ntiaro v. Akpam (1916) 3 N.L.R. 10 and Darkwa v. Denteh  2 G.L.R. 305, C.A.
A plea that a finding of fact by a tribunal of first instance was not supported by the evidence, required for its determination an inquiry whether or not there was evidence which if believed would justify the findings of the said tribunal. It did not require that the reviewing or appellate tribunal should place itself in the position of the tribunal of first instance which had the advantage of seeing and hearing the witnesses, an advantage which was denied to the reviewing tribunal: see Republic v. Asafu-Adjaye (No.2)  G.L.R. 567, C.A.
In Lofthouse v Leicester Corporation (1948) 64 T.L.R. 604, C.A. Lord Goddard C.J. observed:
“This Court no doubt has a wider power when the matter is tried by a single Judge, and can reverse the Judge on the facts. But the Court is naturally very slow to do that, because the Judge has an opportunity of seeing and hearing the witnesses and obtaining what... speaking for myself, I think is so important — and which can only be obtained at the trial and not at the hearing of the appeal — the imponderable elements which I may call the atmosphere of the case. Although I do not intend to lay down anything which is necessarily exhaustive, I would say that the Court ought not to interfere where the question is a pure question of fact, and where the only matter for decision is whether the Judge has come to a right conclusion on the facts, unless it can be shown clearly that he did not take all the circumstances and evidence into account, or that he has misapprehended certain of the evidence, or that he has drawn an inference which there is no evidence to support.”
In the instant case, the learned trial judge exhaustively and critically examined all the evidence on record before coming to his conclusions. In this appeal, the plaintiffs have not been able to displace
these findings. I have read the evidence myself and I am satisfied that the findings were more than sufficiently supported by the evidence. The plaintiffs have not been able to satisfy me where the judge went wrong. I agree with the learned trial judge that the plaintiffs were unable to establish their claim with that certainty requisite in such matters.
That the plaintiffs’ father breached the trust reposed in him by his brothers and sisters is evident from the proceedings. The plaintiffs derive their title from the will of their father E. Q. K. Quartey. This property was not devised specifically to the plaintiffs; it is presumed to have been vested under the residuary devise. I share the observation of the learned trial judge that if, indeed, the late E. Q. K. Quartey had sincerely believed the property to be his he would have specifically devised it and not left it to fall under the residue. Be that as it may, the learned trial judge found that the late E. K. Q. Quartey was only an administrator of the estate of J. H. Quartey and that he held the property in trust for the other beneficiaries of that estate. In that capacity, the plaintiffs’ father could not have willed the property either specifically or residuary to the plaintiffs.
It is provided under section 74 of the Administration of Estates Act, 1961 (Act 63) that:
“74. Where a person as personal representative of a deceased person (including an executor in his own wrong) wastes or converts to his own use any part of the estate of the deceased, and dies, his personal representative shall ... to the extent of the available assets of the defaulter be liable and chargeable in respect of the waste or conversion in the same manner as the defaulter would have been if living.”
In the particular circumstances of this case, I am of the opinion that the court could trace the property and set aside any sale or disposition of the property and vest it in those who by law are entitled to it. The learned trial judge having found the late E. Q. K. Quartey guilty of breach of trust was perfectly entitled to set aside the conveyance (exhibit A) and, for the purpose of giving effect to the rights of the persons interested, ordering the substitution of J. H. Quartey’s name for that of E. Q. K Quartey in that document.
In this appeal, counsel for the defendants applied for a variation of the amendment ordered by the court below. This is to bring the document, exhibit A., up to date and ensure the subsistence of a document to support the title to the house. This was granted.
In conclusion, I would dismiss the appeal and order that the document (exhibit A) be corrected by the insertion in that document immediately after the name “Emmanuel Quao Kpakpa Quartey” and
before the other words following it, the following words: “administrator of the estate of the late J.H. Quartey (Decd) for and on behalf of himself and all the children of the said J. H. Quartey (Decd).”
JUDGMENT OF OSEI-HWERE J.S.C. I agree.
JUDGMENT OF ESSIEM J.A. I also agree.