APPEAL by the defendants against the decision of the High Court that the disputed landed properties belonged to the plaintiff's family in an action for declaration of title to land. The facts are sufficiently set out in the judgment.
Afua Pokua (now deceased) was the mother of J.Y Donkor, described as Yaw Donkor at the trial. Afua Pokua had two sisters and two brothers, namely Abenaa Mframa. Amma Tanoa Kwame Adjabeng and Tuffour. It does appear that Amma Tanoa predeceased Afua Pokua. On the death of Afua Pokua her sister Abenna Mframa was by-passes as her successor because she had voluntarily disclaimed her ties with her matrilineal family. Consequently her only surviving child. Yaw Donkor, was appointed successor. On the death of Yaw Donkor his family appointed Kwaku Kwakye, the son of Abenaa Mframa (the plaintiff herein) to succeed. The plaintiff mounted this action now on appeal against the defendants because Yaw Donkor, by his will purported to dispose of the disputed properties to his wife and children.
The plaintiff made the following averments in paragraph (3) of his statement of claim:
``(3) The house situate at Nsukwao, Koforidua and known as house No T 29, the farms more particularly described in the writ of summons and the undeveloped plot were originally built, cultivated and acquired by Madam Afua Pokua.''
In answer to the above, the first to fourth defendants (who contested the suit) pleaded in paragraph (3) of their defence that the plot on which house No. T 29 was built was bought by Yaw Donkor consisting of three mud rooms. The plaintiff challenged this in his reply by the following.
``(3) ...The plaintiff says that the house was built by Madam Afua Pokua and roofed by Kwabena Anane the head of family. Okonfo Kwadwo father of Afua Pokua gifted the land on which house No. T 29 stands to Afua Pokua.''
These averments by the plaintiff admit, in short, that Afua Pokua built house No T 29 and cultivated the farms and also that the plot on which she built was gifted to her by her father. Having made these admissions, which stood unamended, these was no room for the plaintiff and his witness to depart from these admissions and the court, indeed, ought not to accept a case countray to and inconsistent with that which the party has pleaded. The authorities referred to by the trial judge are in point namely. Dan v Addo  2 GLR 200, SC and Allotey v Quarcoo  GLR 208 CA.
The plaintiff's admission that Afua Pokua built the houses and cultivated the farms did not preclude him from explaining how she came by these acquisitions. The admission did no more than to state the factual truth that she was the instrument that brought them about, it was far from admitting that the block houses and the farms were her ``self-acquired'' properties in the legal connotation familiar to as all, i.e they were not acquired as family properties. It was the case for the plaintiff that Afua Pokua succeeded to other family properties notably those of her mother Kyaama (wrongly spelt in the record) and of her brothers Adjabeng and Tuffour. One of these family farms was hewn down during the cocoa rehabilitation and out of the compensation paid she put up the main building of the block-house . Yaw Donkor was put in charge of this building, and as the eldest male of the plaintiff's family his name was permitted to be used on the plans. The family subsequently authorized Yaw Donkor to take out a bank loan to complete the boys' quarters. Afua Pokua could not pay up the bank loan before she died. The loan was still outstanding when Yaw Donkor succeeded his mother and as the bank put up notices to sell the house the family authorized the sale of family land to redeem the mortgage. The family's claim to the properties as broadly stated did not seen inherently incredible.
Although the plaintiff's head of family, the first plaintiff's witness tried to impress on the court below that the farms in dispute came to Pokua by succession yet the second plaintiff witness contradicted him and came out with the truth, or at least something very close to it according to her, Adjabeng tilled a virgin forest which he left for the whole family. Afua Pokua succeeded to this property and cultivated the cocoa farms. The only witness for the defendants. Nana Oko Yaw Acheampong (who, although not related to the plaintiff's fame in the strict sense, is closely associated with it), gave evidence on the cultivation of the farms by Afua Pokua which was substantially the same as that of the second plaintiff witness. The slight twist to his evidence was that Adjabeng acquired a virgin forest and asked his sisters to cultivate it to the best of their capacity and upon that open invitation Pokua cultivated the cocoa farms.
The evidence of both the second plaintiff witness and the first defendant witness is consistent with the acquisition of the virgin forest by Adjabeng as family land. There was no evidence of a gift of the land to his sisters by Adjabeng. That being so the customary law made its full impact. That law is that where a family member made a farm on vacant family land even by his own private resources and unaided by the family, whether with or without the prior permission of the family, he acquired only a unsufructuary life interest therein. Although the life interest is fully alienable (eg it can be given as security for a loan) it is not open to the life tenant, unless he acts with the concurrence of the head and principal members of the family, to alienate any greater interest than his life estate. On his death, the interest in the property vests in the family. It follows that any disposition by the life tenant purporting to have any other effect, such as a devise under his will, shall be ineffective: see Amoabimaa v Okyir  GLR 59, SC: Biney v Biney  1 GLR 318, CA and Osei Yaw v Domfeh  GLR 418, SC.
The defendants resisted the plaintiff's claim that the disputed properties are his family properties which have descended on him by succession. Their defence was that Yaw Donkor bought the plot together with the swish house and that he obtained a bank loan to erect the cement-blocks buildings. They also contended that Afua Pokua made a gift of the farms in dispute to Yaw Donkor for which he paid ``aseda'' to his mother in the presence of Oko Yaw Agyeman, Tuffour, Afua Ntum and other members of family.
The first defendant is the widow of Yaw Donkor. From her evidence she got married to Yaw Donkor in 1966, some eight years (so say the defendants) after the cement-blocks buildings had been put up and some 28 years after the alleged gift of the farms to her husband.
It was contented on behalf of the plaintiff that the block buildings (at least the main building) started to spring up between 1947 and 1949. She obviously had no first-hand knowledge on how these properties were acquired except for what she alleged was passed on to her by her husband and mother-in-law. The eight plaintiff dwitness was married to Yaw Donkor from 1937 to 1949. She denied that her mother-in-law gifted any farms to her husband whilst their marriage subsisted. The effect of her evidence was that in the labour market he was ``a rolling stone that gathered no moss.'' She said that when lived in the swish house with her husband the first defendant witness was a young boy attending school and that he did not live in the house with them. The evidence from the plaintiff's side was that Tuffour could not have witnessed any gift in 1933.
It is this same first defendant witness who was forward to prop the defence. He said that he witnessed the gift of the farms in 1938 although he admitted he was in standard three in the elementary school in those days. He conveniently smothered the telling effect of this admission saying that he was then sixteen years old. He told unlikely story that although the land on which the swish house stands belongs to Afua Pokua yet her son Yaw Donkor bought this land together with the mud house from his mother's husband. The alleged reason for this strange sale was that Afua Pokua had decided to end the marriage and he was therefore bent on disposing of the house.
The claim by the defendant that Yaw Donkor purchased the plot with the mud-house flew in the face of Yaw Donkor's own declaration against interest. For in the purported devise of one of the three rooms of the swish house to the plaintiff, he declared that his mother built that house which he inherited from her after her death. In the result, the evidence of the first defendant witness, the defendants' mainstay, turned out to be mere humbug.
The learned trail judge, who saw and heard the parties and their witnesses came to the following conclusion:
``On the preponderance of the evidence, I am satisfied that of the two versions the case of the plaintiff is more likely to be true. I accept it and reject that of the defence. I hold that the piece or parcel of land on which house No T 29 stands, the building and plot as well as the farms which form the subject matter of the action are family properties of the plaintiff and that they were not sel-acquired properties of the Yaw Donkor to be devised by this will''
In regard to the conduct of Yaw Donkor the trial judge ventilated his opinion sharply and scathingly as follows:
``There is no doubt that the bad habit which (he) had formed over the years in selling family lands without the knowledge and consent of the family was firmly made out. The plaintiff established a prima facie case.''
This opinion was inspired by the testimony of the queenmother of New Juaben, the fifth plaintiff witness, who informed the court that a complaint was once lodged before her by the members of family of Yaw Donkor that he had been selling family lands. According to her Yaw Donkor owned up with the explanation that he utilized 400 of it to Madam Mframa. She said that Yaw Donkor was reprimanded and they took a bottle of schnapps from him obviously as pacification. The fifth plaintiff witness was cross-examined to show that the complaint before her was really that Yaw Donkor had sold family plots to build for his wife, the first defendant. The first defendant herself admitted under cross-examination that she once heard the head of family's announcement that all those who had bought land from Yaw Donkor should come and see the family. The thrust of the evidence of the fifth plaintiff witness and the suggestion to her in cross-examination together with the admission of the first defendant is to demonstrate and confirm that Afua Pokua succeeded to other family properties (apart from the farms she cultivated) and that these properties were transmitted toYaw Donkor as successor.
It may be pertinent to throw some light on the nature of primary facts whereof a trial judge is oblidged to make a finding. I can do no better than borrow the observations of Abban JA who read the judgment of this court in Domfe v Adu [1984-86] 1 GLR 653 at 660, CA. He stated:
``I have to state that the primary facts which a trial judge may find as having been proved to his satisfaction are those necessary to establish the claim of a party or in some cases the defence and which have been alleged on one side and controverted on the other. It must also be borne in mind that the trial judge is not required to make findings of fact in respect of irrelevant matters on which the parties have led evidence when such findinds would not assist in the determination of the issues involved in the case.''
The principal issue which the trial judge posed for his determination was whether the disputed properties are family properties of the plaintiff or the self-acquired properties of the late yaw Donkor. He concluded the issue in favour of the plaintiff. The defendants are aggrieved by this conclusion, wherefore their appeal to this court.
In Kyiafi v Wono  GLR 463, CA it was held, as stated in the head note:
``(1) the principles which regulate the right of an appellate court to interfere with findings of fact made by a trial court were as follows: where the appellate court was satisfied that the reasons given by the trial court in support of its findings were not satisfactory, or where it irresistibly appeared to the appellate court that the trial court had not taken proper advantage of having seen and heard the witnesses, then in any such case the matter would become at large for the appellate court, in which case the appellate was under a duty to give such decision as the justice of the case required, and, if need be, reverse the decision of the trial court should not interfere with findings of fact made by a trial court.''
It does truly appear from the issue posed by the trial judge, that the issue of the gift of the farms pleaded by the defendants eluded him. This no doubt, did spring from the evidence of the first defendant, which suggested that Afua Pokua and her son Yaw Donkor made the farms together. Although the trial judge left this issue of the alleged gift of the farms at large this court is entitled to make up its own mind on it. Having regard to the evidence that the first defendant witness was too young to have witnessed any such gift of the farms and also that Tuffouor had died in 1933 we are unable to accept his testimony on that score. Besides, the evidence of the first plaintiff witness that Yaw Donkor never announced any gift of the farms to him on his succession commends itself for acceptance.
The finding by the trial judge that all the properties in dispute are family properties is borne out by the evidence. A look at the mortgage deed, which was capitalized upon, disclosed that when that document was executed in 1958 the ``one storey structure and outbuildings'' were already standing and that these and the plot of land were used as security for the loan. The mortgage itself was to enable Yaw Donkor obtain ``banking accommodation or facility on loan account and/or current account and/or any other account sanctioned by the bank.'' No stated amount was stipulated in the mortgage. This may well explain why the plaintiff and his witness could not inform the court about the amount obtained as loan. The mortgage deed also exposes as false the evidence implied by the first defendant and the second defendant witness that Yaw Donkor initially raised a loan from the Ghana Commercial Bank to put up house No T 29 and that was never built by Afua Pokua.
The defendants could not take any advantage of the fact that Yaw Donkor took a lease of the plot in his name from Nana Agyeman Akrasi II, Omanhene of New Juaben, or that he executed the mortgage deed in his name. The said Omamhene testified as the seventh plaintiff witness to the effect that during the tenure of his office Yaw Donkor came to him with a prepared leases witnessed by his mother and asked him to sign. According to him Yaw Donkor told him he wanted to take it to the bank for a loan to develop his mother's house. This lease was executed only four months before the mortgage deed. From the record the evidence of the seventh plaintiff witness was not effectively shaken. We have no doubt that the trial judge admitted this piece of evidence as one of those factors, which preponderated the evidence in favour of the plaintiff.
The argument that the lease and the mortgage deed operated as estoppel against the plaintiff was in our view, misconceived because Yaw Donkor knew the true purpose why those documents were made in his name. The purpose was made articulate by his declarations to the fifth plaintiff witness and the seventh plaintiff witness. The acceptance of the plaintiff's case necessarily implied the acceptance of the evidence that Afua Pokua stated the block buildings with the proceeds from rehabilitation the family's cocoa farm. On the merits of the case we hold that the general conclusion of the court below cannot be faulted.
Ground (4) of the supplementary grounds of appeal states that he the action was incompetent because the defendants were not the proper persons to be sued, since probate of the will of the late Yaw Donkor had not been granted and the defendants were not in possession as devisees. This ground reiterated the same submission which did not find favour with the trial court. The learned judge reasoned that the family should not stay and look on, supposing the executors did not take probate, whilst the beneficiaries of the will enjoyed the properties. He found that the defendants were sued because they live in the house and they are laying claim to it. As the action sues for a declaration of title we hold that it is well grounded, the absence of probate notwithstanding.
Although section 61 of the Administration of Estate Act, 1961 (Act 63), for instance, provides that the grant of probate is necessary to entitle an executor to administer the property of the testator yet it states at the same time that before probate the executor may for the benefit of the estate exercise the functions which pertain to his office, but he shall not be entitled to make a disposition of any property. In Catheline v Akufo-Addo in [1984-86] 1 GLR 57, CA, this court followed the dicta of Lord Parker of Waddington in Meyappa Chetty v Supramanian Chetty  AC 603 at 608, as well as some of the English authorities on the point, and held that as an executor derives his title and authority from the will of the testator and not from any grant of action vests in him upon the testator's death and the consequence is that he can institute an action in the character of executor before he proves the will, although he cannot make any dispositions before then. His right to sue is, of course, reciprocated by his liability to be sued. In the same token a beneficiary who meddles with the estate before probate can be sued to challenge his title.
Unfortunately the decision in Amponsah v Kwatia  2 GLR 189, CA demolishes something the last gallant effort of counsel for the defendants to save something of the appeal. His complaint was that the trial judge erred in decreeing perpetual injunction against the defendants, ie the widow and children of Yaw Donkor. He argued that as a widow the first defendant was entitled to live in the house until she is customarily divorced and also that the children are entitled to live there subject to good behaviour. He said that the effect of the injunction is to deny them those rights. The truth is that defendants have no such inherent rights. The court below found that house No T 29 is not the self-acquired property of Yaw Donkor but family property to which he succeeded. The wife and children of Yaw Donkor not being members of the plaintiff's family. There is no evidence that the plaintiff's family has revoked the licence.
It follows that the perpetual injunction cannot stand so long as the licence of the defendants has not been revoked. Subject to this we have formed the opinion that the appeal ought to be dismissed.