IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL – A C C R A
CORAM:- PIESARE, JA [PRESIDING]
DOTSE, JA
DUOSE, JA
H1/209/2007
8 TH MAY, 2008
ALICE ABEDI ADDAE … PLAINTIFF/APPELLANT
V E R S U S
(1) ADWOA AGYEKUMWAA ] … DEFENDANTS/RESPONDENTS
(2) ELIZABETH KORANTENG ]
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J U D G M E N T
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DUOSE JA:- On the 11 th
day of November 2006 Accra delivered a Judgment against the Plaintiff-Appellant.
At the trial the following claims were laid for the Plaintiff/Appellant.
(a) Declaration of title to the property described in paragraph 5 of the
Statement of Claim with the buildings thereon known as H/No. C. 30/18.
(b) Recovery of possession of the house from the defendants.
(c) Perpetual injunction etc.
The Defendants/Respondents counter claimed for the following:
(i) A declaration that the property known formerly as C. 30/18 now
C. 29/18 Abelemkpe – Accra is the property of Linda, Sandra and
Harriet Kwakye.
(ii) A declaration that the property is the matrimonial home of the 2 nd
Defendant.
(iii) A declaration that any purported execution and registration of the deed
of conveyance in favour of the Plaintiff is fraudulent null and void of no
effect.
(iv) Perpetual injunction etc.
From the records the parties filed issues to be tried, but they were not settled. The
Plaintiff/Appellant filed the following seven issues.

(a) Whether the 2 nd
Defendant is a lawful wife of the Plaintiff’s husband.
(b) Whether it was the Plaintiff who financed the acquisition and development of the property on it was the 2 nd
Defendant.
(c) Whether the property was acquired by the husband of the Plaintiff in trust for the 1 st defendant and her siblings.
(d) Who owned the property at La Palm Wine Junction.
(e) Whether the defendants occupy the property as licencess or as owners in possession.
(f) Whether the property in dispute belongs to the plaintiff or the defendants.
The Defendants also filed the following for issues.
(a) Whether or not the 1 st
Defendant and Linda Kwakye acquired their
La Palm Wine Junction property through a deed of conveyance dated
22 nd
July 1980.
(b) Whether or not William Wilson Kwakye held the property at La Palm
Wine Junction in trust for his then infant children Linda and Sandra Kwakye.
(c) Whether or not W.W. Kwakye caused the commercial premises to be constructed in 1986 for Linda, Sandra and Harried Kwakye upon a request by the 2 nd
Defendant.
(d) Who owned the property at La Palm Wine Junction.
(e) Whether the defendants occupy the property as licencees or as owners in possession.
(f) Whether the Plaintiff document with Lands Commission Index No.
AR/1690/2002 was obtained fraudulently.
(g) Whether the property in dispute belongs to the plaintiffs or the defendants.
The Defendants also filed the following for issues.
(a) Whether or not the 1 st Defendant and Linda Kwakye acquired their La
Palm Wine Junction property through a deed of conveyance dated 22 nd
July
1980.
(b) Whether or not William Wilson Kwakye held the property at La Palm Wine
Junction in trust for his then infant children Linda and Sandra Kwakye.
(c) Whether or not 2 nd
Defendant took part in the negotiations and purchase of
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the property in dispute.
(d) Whether or not W.W. Kwakye caused the commercial premises to be constructed in 1986 for Linda, Sandra and Harriet Kwakye upon a request by the 2 nd
Defendant.
(e) Any other issues arising from the pleadings.
Although there is no record to show which of the twelve issues were set down for trial, proceeded and concluded and judgment delivered on 11-11-06.
Aggrieved by the judgment the Plaintiff filed the following grounds of appeal.
(a) The learned trial judge made wrong findings of facts which were not based on the evidence.
(b) The trial judge erred in giving weight to exhibit 7 an unexecuted indenture.
(c) The learned trial judge erred in holding that the 2 nd
Defendant is a wife of
PW1 William Wilson Kwakye.
(d) The judgment was against the weight of evidence.
No additional grounds of appeal have been placed before us.
F A C T S :
I have carefully read and digested the relevant facts which emerged during the trial. The main facts are simple even though counsel on both sides tried to complicate them. The conflict centers around the question of ownership of H/No. 30/18 at a point in time now H/No. 29/18 situated in Abelemkpe Accra. The Plaintiff/Appellant is the ordinance wife of PW1 Mr. William Wilson Kwakye. The 1 st
Defendant/Respondent is the second of three children born to Mr. William Wilson Kwakye out of wedlock with the
2 nd
Defendant/Respondent. At a point in time, William Wilson Kwakye a wealthy man who lived both in Great Britain and Ghana alternatively owned four houses along the
Gifford Road also known as Trade Fair Road. These houses were near La Palm Wine
Junction and bore the following identification numbers, 22, 24, 26 and 28. At the time of the trial some of these houses had been disposed off. Of particular interest is the circumstances in which H/No. 22 Gifford Road was disposed off. The
Defendants/Respondents tendered Exhibit “2” as their source document. Exhibit “2” is
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registered as Deed Registry No. 3671/85, and is also numbered as AC 6720/80 also marked thereon is Deed Registry 960/81. It is a deed of conveyance by which William
Wilson Kwakye transferred the property to Linda and Sandra Kwakye. Apparently they were infant then. Subsequently by suit No. Misc. 18/85 dated 05/03/85 William Wilson
Kwakye (W.W.K.) caused the High Court to appoint him as Trustee for the two infant children Linda and Sandra Kwakye.
During the pendency of the Trusteeship, W.W.K. acting as Trustee, for the infant beneficiaries, transferred H/No. 22 Gifford Road to one Mrs. Comfort Kesse Yeboah for the consideration of ¢3,000,000.00. This transaction is recorded as AC. 6008/85 which is in evidence as Exhibit 3.
The jurat on Exhibit 3 was interpreted to the infants by 2 nd
Defendant/Respondent and the infants affixed their Right Hand thumb-prints thereto. Prior to the disposal of H/No. 22, the 2 nd
Defendant/Respondent lived in it with the two infants. The contrary evidence is that the Defendants lived in the house at the sufferance of the Plaintiff/Appellant. The evidence though not supported independently is that before the transactions, above
W.W.K. had gifted the house to Plaintiff/appellant customarily before the parents of both
Plaintiff/Appellant and W.W.K. lived in it with the two infants. The contrary evidence is that the Defendants lived in the house at the sufferance of the Plaintiff/Appellant. The evidence though not supported independently is that before the transactions, above
W.W.K. had gifted the house to Plaintiff/appellant customarily before the parents of both
Plaintiff/Appellant and W.W.K. Yet no evidence of the ‘ASEDA” was forthcoming. No witnesses of the Aseda were called not even the form of the Aseda was described.
Following the disposal of H/No. 22, the 2 nd Defendant/Respondent was accommodated in one of the other four houses till it was also sold to one Manience Ofeibia Mantey. It was after this transaction that 2 nd Defendant/Appellant moved or was forced by circumstances to move to reside in H/No. 30/18 or 29/18 Abelemkpe Accra.
Exhibit 3 shows that H/No. 30/18 or 29/18, was purchased on 11 th
March 1986 at a price of ¢1,000,000.00. At the time of purchase it was uncompleted. 2 nd Defendant and the infants lived in the Abelemkpe house generally during which period the house was
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completed. There is documentary evidence that the 2 nd
Defendant paid all the utility bills and property rates see Exhibits 6, 10 and 11. To show that the Abelemkpe house was purchased to replace H/No. 22 Gifford Road Exhibit 5 the original hand written receipt the Abelemkpe house was tendered by 2 nd
Defendant/Respondent. Indeed it is her testimony that she participated in the choice of the property and the preliminary negotiations towards the purchase. She also produced the original but unexecuted deed of conveyance Exhibit ‘7.’
The judgment of E.K. Ayebi J as he then was, is erudite in all respects except one upon which appeal ground (c) is premised. One should refrain from attempting to reinvent the wheel in this matter. The opening paragraph of the judgment sums up completely the cause, the event and the result which culminated in the judgment leading to this appeal. I quote the paragraph which is as follows
“When love is at its peak, the heart does rule the mind. When it turns
sour the mind regains consciousness. But by then it can be too late
to undo what had been done during sizzling romance. This is my
assessment of the circumstances of Mr. William Wilson Kwakye, PW1
in this case.”
This assessment of PW1 W.W. Kwakye can not be disturbed by this court. It is an assessment and a finding made by the trial court which saw and heard the witness. It also had the advantage of reading the body language of the witness. It is our candid view that the trial judge was very charitable and lenient to PW1when after citing several instances of deliberate false hood in his evidence merely described his conduct as not being candid in his evidence see page 11 paragraph 2 of the judgment.
Again in paragraph 3 of the same page the judge made the following significant findings of fact.
“It is noted that the gift of H/No. 22 to the Plaintiff by PW1 is not
evidenced in writing as in other cases. Knowing PW1 to be meticulous
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with such transactions, it was suggested to him that he made no such gift to plaintiff. PW1 maintained that he did and that the gift of
H/No. 24 to his son was also not in writing. But I have shown that
Gift to his son was in writing. So also was the surrender. Again PW1 was not being truthful. All this evidence of PW1 in any respectful view
is an afterthought. I hold on evidence in the document that PW1 never gave H/No. 24 to his son. Similarly, he never gave H/No 22 to the
Plaintiff and Plaintiff never owned it.”
In view of such damning assessment we are surprised that the Plaintiff/appellant mustered the courage and the guts to launch this appeal. As a matter of fact and of law this appeal is hopeless for the conclusions reached by the trial judge 19 of the judgment same as page 269 of the records – paragraph 3, 4 & 5 read paragraph 3.
It could therefore be inferred that exhibit A was obtained by plaintiff with assistance of PW1 to enable plaintiff make a claim for the Abelemkpe house.
So the plaintiff launched the District Court case against the Defendants herein as well as PW1 on 7/05/02. That suit was discontinued to file the present one. On the evidence, it is clear that if PW1 had not assisted plaintiff, she could not have had Exhibit A executed in her favour and further plaintiff would not have had any foundation for the action. Exhibit A, which is yet to be registered, I hold, was obtained by plaintiff through deceit.”
Paragraph 4: To conclude there is documentary evidence that PW1 gave H/No. 22,
Gifford Road to his daughters. Upon that gift to the children, 2 nd
Defendant occupied the said house with the children until PW1 sold it to Madam
Comfort Kesse Yeboah. PW1 used the proceeds from the sale of H/No. 22 to purchase and reconstruct the Abelemkpe house. And since that house was
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Purchased in 1986, it is 2 nd
Defendant and her children who had always lived in it and are still living in it. But for the absence of PW1 from the Country,
Exhibit 7 would have been executed in favour of the children of the 2 nd
Defendant.”
Paragraph 5: On the part of plaintiff, the only evidence of ownership which is
Exhibit A, I have found is tainted with fraud. She has never possessed
H/No. 22, Gifford Road, let alone the Abelemkpe house in dispute physically. She has also never exercised any acts of ownership directly or indirectly over the disputed house.”
I had earlier in this judgment stated that there is some merit in the 3 rd ground of appeal ie. (c). With all respect to the learned counsel in this matter right from the start the issue of the marital status of 2 nd
Defendant did not arise. The main issues were
“Declaration of title and recovery of possession of the Abelemkpe house. Properly speaking the pleading in paragraph 2 of the Statement of Claim should have been struck out as irrelevant, because it raised the issue of marital status. From all the facts the issue is what are the consequences of the documents in evidence. What was the strength of
Exhibit A as opposed to Exhibits 2, 3, 5, 6, 6A, 10 and 11. The issue of the status of 2 nd
Defendant/Respondent is a diversion or a digression. If our learned brother below had had the issues settled this matter would have been winnowed out. Again the declaration or the finding that the 2 nd
defendant is a wife of PW 1 and therefore resided in the house in dispute as her matrimonial home would seem to have indirectly placed her in conflict with the beneficiaries of the conveyance to the children. It was never the intention of the donor to benefit the 2 nd
Defendant and we so hold.
In any case Exhibit 1 the Ordinance Marriage Certificate it is trite, at once renders null and void any customary marriage contracted after it. At best the 2 nd
Defendant remains a concubine and has no claim to a matrimonial home which she did not have because she was never in statu matrimonial To this extent the appeal succeeds.
There is the issue of ground (b) ie. “The trial judge erred in giving weight
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to exhibit “7” an unexecuted indenture.” I have quoted in extensor paragraph 4 of page 19 of the judgment same as page 269 of the records and I repeat more precisely as follows:-
“But for the absence of PW1, from the country Exhibit ‘7’ would have been executed in favour of the children of the 2 nd
defendant.”
Surely that is either an obiter dictum or a hypothesi. It is not a foundation of the judgment the ground of appeal is therefore not competent and it is accordingly dismissed.
What in our considered view operated most in the judgment but which was not adequately expatiated is the consequences of the extant trust at the time of the disposal of the property to Mrs. Comfort Kesse Yeboah. What then were the legal consequences of the disposal of property held on trust.
In MILROY V. LORD [1862] 4 DCGF & J 264 the English Court of Appeal identified two ways by which a trust relationship can be brought about. A trust can be expressly created in two way (1) when a person declares himself as a trustee (2) when a person transfers property on trust to trustee. From the moment of the declaration, he will hold the property on trust, he retains the legal title whereas the beneficiaries will have the equitable interest in the property. A declaration of trust is generally valid and effective it is so irrespective of whether it is made orally or without consideration JONES V. LOCK
[1865] 1CH. App. 25 when a trust is created the settler cannot change his mind.
HENRY V. ARMSTRONG [1880] 18 CH. D. 668 PAUL V. PAUL [1820] 20 CH. D.
742. CA. A trust can not be brought to an end without the consent of the beneficiaries
RE BOWDEN [1936] CH. 71.
The trustee’s ownership is very burdensome. The trusteeship obligates the trustee to manage the property in the exclusive interest of the beneficiaries, and imposes onerous duties and liabilities on them. All the advantages lie with the beneficiaries.
Trusts are created for many different reasons. Here in Ghana it may be so done to provide advancement for children born out of wedlock. It may also be made to place trust property out of the reach of possible contestants in case of intestacy. In view of
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incidents of misappropriation of trust property the law in England created a variety of rules and presumptions to enable the identification of specific property and to determine whether it continued to be identified as such through transfers, mixing and substitutions.
The principle in TAYLOR V. PLUMER [1815] 3 M & S 562 is that common law will trace property through clean substitutions. “It makes no difference in reason on law into what other form, different from the original, the change may have been made ……….for the product or the substitute for the original thing still follows the nature of the thing itself…….” See also Re
HALLET’S ESTATE [1880] 13 CHS 696.
In that case trustee used trust money to purchase a diamond ring. The beneficiaries had the option to take the diamond ring or to have a change over it for the amount of money that the trustee took.
In the circumstances of this case, the trial court properly found on documentary evidence that a deed was made to transfer the property H/No. 22 Gifford Road to Linda and Sandra Kwakye who were then infants. That W.W. Kwakye properly constituted himself a trustee for the management of the property for the children. That H/No. 22
Gifford Road was sold to Mrs. Comfort Kesse Yeboah by W.W. Kwakye PW1 acting as trustee for the infant children. That at the time of the sale of the property the trusteeship had not lapsed. That the H/No. 30/18 or 29/18 Abelemkpe Accra was bought very soon after the sale of H/No. 22 Gifford Road. That there is sufficient evidence deducible from the conduct of W.W. Kwakye from which a reasonable tribunal would draw a reasonable conclusion based on the preponderance of probabilities that H/No. 30/18 or 29/18
Abelemkpe was a replacement for H/No. 22 Gifford Road. The surrender of Exhibit 5 the original purchase receipt to the mother of the children, the residence of the children exclusively in the property for so long, the payment of property rate, for so long by the children through their mother constitute enough evidence upon which to trace the proceeds form the disposal of H/No. 22 Gifford Road.
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In sum therefore the appeal fails except for ground (c).
~eb~
I.D. DUOSE
JUSTICE OF APPEAL
I agree. E. K. PIESARE
JUSTICE OF APPEAL
I also agree. J.V. DOTSE
JUSTICE OF APPEAL
COUNSEL: MR. AGYABENG AKRASI FOR PLAINTIFF/APPELLANT.
MR. K.A. YANKYERE FOR THE DEFENDANTS/RESPONDENTS.
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