Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 KWANTRENG v. AMASSAH AND OTHERS | GhanaLegal - Resources for the legal brains

KWANTRENG v. AMASSAH AND OTHERS


  • appeal
  • 0000-00-00
  • SUPREME COURT
  • 1 GLR 241-255
  • Print

VAN LARE, SARKODEE-ADDO AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Mortgage?-Whether mortgagor has right to bring an action in respect of mortgaged property.Trusts?-Resulting trusts and advancement?-Deed of gift to daughter?-?"Love and affection?" as consideration?-Whether circumstances rebutted presumption of advancement?-Whether statements made by grantor in grantee?'s absence are admissible on issue of donor?'s intention.Practice and procedure?-Whether point of law arising on the record can be canvassed in the appeal court although it was not raised in the court below.Statutes?-Whether Statute of Uses, 1535 (27 Hen. 8, c. 10) is a statute of general application.

Headnotes

On the 8th June, 1955, K.A. Kwantreng executed a deed of gift of a certain house in Accra, the property here in dispute, to his daughter Kate. The deed recited ?"love and affection?" between the grantor and grantee as the consideration for the grant. Mr. Lokko, solicitor to Kwantreng gave evidence that this conveyance was executed despite his strong advice against it.The deed was stamped and submitted for registration on the 24th June, 1955, and on the 22nd August, 1955, the said property was mortgaged by Kate to the then Bank of the Gold Coast for 2,500. From then until the 1st January, 1957, Kate paid this money out to her father; her statement of account headed ?"Papa?'s account?" (exhibit Z) showed that she had in fact over-paid him 92 3s. 6d. With this money, Kwantreng completed an unfinished portion of the disputed property. Kwantreng also after executing the deed of gift continued to control the property and collect the rents.In June, 1957, Kwantreng died and it was discovered that he had by will attempted to dispose of the disputed property. Kate therefore instituted proceedings against her paternal sisters claiming declaration of title and an order of ejectment of the defendants from the premises.The defendants contended that the deed of gift was subject to a collateral agreement that Kate should hold the disputed property in trust for Kwantreng (who needed the money raised by the mortgage to complete the building) and should re-convey it to him upon repayment of the bank loan. The defendants counterclaimed that they were entitled to a declaration that Kate was ?"trustee of the said property for the beneficiaries thereof named in the deceased?'s will.?"The trial court held that the deed of gift was legal and binding and that Kwantreng could not therefore effectively dispose of the disputed property by will.On appeal to the Supreme Court, counsel for the defendants-appellants argued: (1) that Kate could not maintain an action for declaration of title since the property was still mortgaged and the legal title was vested in the bank, and (2) that at most, the deed of gift was a voluntary conveyance from father to daughter and that a legal and rebuttable presumption of advancement would arise; counsel further examined the evidence on record which he submitted rebutted this presumption and favoured a resulting trust. For Kate it was argued that: (1) since counsel for the defendants had stated in the court below that ?"our case is not based on resulting trust; our submission is that the gift was made to Kate upon an express trust?", it was not now open to him to raise and argue the question of a resulting trust; (2) that what Kwantreng was alleged to have said as to the collateral agreement was said in Kate?'s absence and not [p.242] evidence against her; and (3) as the deed of gift recited ?"love and affection?" as consideration between Kwantreng and Kate, and as that is recognised by the law as good consideration, it cannot be said that the conveyance was without consideration.

Judgement

APPEAL from a judgment delivered by J. L. Minnow, Esq., Commissioner of Assize and Civil Pleas on the 31st March, 1960 (unreported) upholding the plaintiff?'s claim to declaration of title to certain land and an order ejecting the defendants therefrom. The facts are fully set out in the judgment.

JUDGMENT OF ADUMUA-BOSSMAN, J.S.C.

The plaintiff?'s writ of summons was originally filed against Mrs. Mary Amassah (ne Armah Kwantreng) her paternal sister, both of them being daughters by different mothers of the late Kwamla Armah Kwantreng, a prominent citizen and well-known licensed surveyor of Accra who died, according to the evidence, in June 1957. The original defendant unfortunately died before trial of the action could commence, whereupon her eldest surviving daughter and duly appointed customary successor was formally substituted for her. Moreover, three other paternal sisters who claimed interest in the premises by virtue of a devise contained in the last will and testament of their late father, probate whereof was granted by the High Court on the 10th February, 1958, also applied and were duly joined as co-defendants.

The writ of summons was accompanied by a statement of claim which contained the following material allegations:

?"The subject-matter of this claim which is fully described in the writ of summons, was the self-acquired property of late Kwamla Armah Kwantreng (deceased) and was conveyed to the plaintiff by her late father by way of absolute gift, by a deed of gift executed by her said father Kwamla Armah Kwantreng (now deceased) on 8th June, 1955.

The defendant who had been living in the said house during her father?'s life-time and since his decease with the plaintiff?'s consent, has been exerting rights which are inconsistent with and amount to a denial of that plaintiff?'s title.

The plaintiff therefore claims as per her writ of summons.?"

[p.244]

These allegations in the statement of claim were traversed with the same counter-allegations set out in three separate statements of defence filed on behalf of the defendant and the two co-defendants, as follows:

?"In answer to paragraph 3, the defendant says that by a deed of gift dated 8th June, 1955 the property was conveyed to the plaintiff by the said Kwamla Armah Kwantreng; but the defendant says that the said conveyance was made for the purpose of enabling the plaintiff to borrow money for the said Kwamla Armah Kwantreng who needed the money to complete the building on the very same land the subject-matter of the said conveyance.

The defendant says that there was a parol collateral arrangement between the deceased Armah Kwantreng and the plaintiff that the said plaintiff should hold the said premises in trust for him the said Kwamla Armah Kwantreng, and should re-convey the said property to him upon the repayment of the bank loan, such repayment to be made from the rents of the stores already on the said land.

That the plaintiff duly mortgaged the said property to the Ghana Commercial Bank, and paid to the deceased moneys wherewith deceased continued, as owner, to extend the buildings on the land the subject-matter of the alleged absolute gift.

The defendant denies as alleged in paragraph 4 of the statement of claim that she has been living in the said house with the plaintiff?'s consent since their father?'s death and says that the dispute between her and the plaintiff has arisen because the plaintiff since the deceased?'s death, has presumed to assert an absolute title to the said property in breach of her trust, and has proceeded with the completion of the deceased?'s buildings, despite requests that she should desist until the position in regard to the whole estate had become more fully appraised.

By way of counterclaim, the defendant claims a declaration that the plaintiff is a trustee of the said property for all beneficiaries thereof named in the deceased?'s will.?"

Reply was filed on behalf of the plaintiff denying and joining issue generally on the allegations and formal counterclaim contained in the statements of defence, and thereupon the pleadings disclosed as the main issue for trial and determination the question whether or not the deed of gift relied on by the plaintiff was subject to the collateral agreement pleaded or set up in the statement of defence.

The learned commissioner when he considered the whole case after having taken all the available evidence, firstly, set out in his judgment the substance of the evidence of the plaintiff and her witnesses who, he considered, supported her, and then passed on to deal in the same manner with the evidence of the defendants and their witnesses. Thereafter he proceeded to express his considered views as follows:

?"Before dealing with the question as to the deed of gift, exhibit A, being legal and binding, I must remark that it is common knowledge that the devises and legacies in a last will and testament only become operative, come into force, at the death of the testator. There is no dispute as to the fact that late Armah Kwantreng made this deed of gift before he died . . . Now to the deed of gift?-Mr. Lokko, witness for the defendants made it quite clear that this deed of gift was made in spite of his advice against it... The defence does not deny the legality of the deed of gift but they contended that it was some sort of a trust for a specific purpose, the fulfilment of which could mean the re-conveyance of the property to their father and incidentally to his estate. They concede that they learnt this at a meeting called by the late Armah Kwantreng when Kate was present. Kate definitely denies being present at any such meeting, and there has been no evidence to convince the court that there was such a meeting at which she was present. From the evidence before this court, the only inference is that the sisters were worrying and harassing their father and he played up to them just to quieten them. In support of the alleged ?'arrangement for?' re-conveyance, counsel in his address has raised the question of the Statute of Uses. For an answer to this we turn to exhibit A itself, and since its execution is not in any way challenged, it must be deemed and accepted as expressing the intention of the grantor late Armah Kwantreng.?"

[p.245]

The learned commissioner here refers to and cites the recitals and testatum portions of the deed of gift, exhibit A, and then concludes thus:

?"This clearly shows the intention to make a gift and he did do so. The property in dispute D.762/4, Beach Avenue, Accra, could not then be treated as forming part of the estate of the late Armah Kwantreng, even though it is mentioned in his last will. He parted with his title in this property before he died. The court therefore gives judgment in favour of the plaintiff declaring her to be the owner of the property D.762/4 Beach Avenue, Accra.?"

The learned commissioner?'s views and conclusions thus expressed are challenged on a number of grounds set out in the formal grounds of appeal filed. Before turning to consider the arguments advanced on those grounds however, it seems necessary to comment on the manner in which the learned commissioner appears to have considered the case as a whole. That feature is this, and the language he uses makes it clear and plain?-that somehow his mind came to be very gravely deflected or diverted from the paramount issue in the case, which was the question whether or not the execution of the deed of gift of the premises (No. D.762/4) to the plaintiff, which was quite undisputed, was for the special purpose of enabling her to use the property in her own name to procure a loan of money from the bank, now the Ghana Commercial Bank, for her father to employ or use in completing the construction of the buildings on the land comprised in the said deed of gift. In his review of the evidence adduced on behalf of the defendants, the learned commissioner made reference to the fact that the affirmative of that question was the substance of the defendant?'s case, when he said this:

?"The defence put up is that exhibit A was made by the late Armah Kwantreng in favour of the plaintiff for a definite purpose, that of raising money from the bank to complete the house No. D.762/4 Beach Avenue, Accra; and that the intention of the late Armah Kwantreng was that the property should revert to him after such loan as would be raised from the bank for the completion of the house had been paid off by rents accruing from the house.?"

When he came to consider and weigh up the respective cases, however, his mind appears to have digressed from this main controversial issue, with the result that he made only a perfunctory and quite inadequate examination of the available evidence relating to it, and he made that inadequate examination because of a misapprehension as to the exact nature of the evidence or case of the defendants in respect of it, when he said as follows:

?"They (defendants) concede that they learnt this at a meeting called by late Armah Kwantreng when Kate was present. Kate definitely denies her being present at any such meeting, and there has been no evidence to convince the court that there was such a meeting at which she was present.?"

He was under a misapprehension as to the case of the defendants on this point, because their evidence was not that they learnt or heard of the object and purpose of the deed of gift only at this meeting at which the plaintiff, Kate, was stated to have been present; but rather that the matter of the purpose of the making of the deed of gift was specially discussed at that meeting with the plaintiff in attendance when she admitted that purpose, of which the defendants, even prior to that meeting, had heard or learnt from their father who, however, repeated it at the meeting and thereby made it necessary for Kate then to admit it. He was under a misapprehension, in the second place, in appearing to have understood the defendant?'s evidence as amounting to the allegation that the collateral agreement as to the purpose of the making of the deed of gift was brought [p.246] into being or made only at that meeting when Kate was alleged to have been present, so that his finding that there was no such meeting with Kate present, implied that no such agreement as alleged was or could have been made, and he became absolved from examining other evidence adduced by the defendants towards establishing the collateral agreement, since, in point of fact, he failed to examine all other evidence not only of the defendants but of the plaintiff also, which pointed to the existence of that collateral agreement. His expressions during the course of his judgment indicating and pointing to the questions which he pondered over before arriving at his final decision, point conclusively to the fact that, as far as he was concerned, the crucial question all along was whether the deed of gift was legal and binding or not, when in fact there was no dispute as to the legality or validity prima facie of the said deed of gift. This is borne out by such expressions or utterances like the following:

?"Before dealing with the question as to the deed of gift exhibit A being legal and binding, I must remark that it is common knowledge that the devises and legacies in a will only come into force at the death of the testator.?"

?"The defence does not deny the legality of the deed.?"

?"Counsel in his address had raised the question of the Statute of Uses. For an answer to this, we turn to exhibit A itself; and since its execution is not in any way challenged, it must be deemed and accepted as expressing the intention of the grantor, late Armah Kwantreng;?"

?"This [referring to certain passages of the deed, exhibit A which he cited] clearly shows the intention to make a gift, and he did do so.?"

This apparent substitution in the learned commissioner?'s mind of the question of the legality and/or validity of the deed of gift, exhibit A, for that of the object and purpose of the making of the said deed of gift as the main or paramount issue in the case, seems to me to raise the first grave doubt as to the propriety, and/or soundness of his ultimate decision on the case.

Turning now to the grounds argued, the first was that the plaintiff could not maintain the action for declaration of title in face of her own admission that the premises No. D.762/4 was mortgaged to the Ghana Commercial Bank and remained unredeemed at the date of the institution of this action. The legal title to the property was in the bank and the plaintiff could not therefore get a declaration of title, unless perhaps a declaration of the equity of redemption subject to the mortgage outstanding in the bank. It seems to me, however, that this argument stems from an oversight of the express provisions of section 86 of the Courts Ordinance,1 which was in force at the time of the trial of the action between January and March 1960, that:

?"In every civil cause or matter which shall come in dependence in any of the Courts, law and equity shall be administered concurrently... and in all matters in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.?"

In accordance with this express statutory declaration, it is the conception of the mortgagor?'s right in his mortgaged property which equity recognises, which has always prevailed, at any rate since the early 17th century when the question of the conflict between the two systems of common law and equity was settled, and before the Judicature Act, 1873, formally adopted the established rule and made it an express statutory enactment. As to [p.247] how equity regarded or recognised the interest of the mortgagor in his mortgaged property, this is made clear by the pronouncements in a number of cases. In the leading case of Casborne v. Scarfe2 Hardwicke, L.C., gave what has come to be accepted as the classic description of the equitable conception of the nature of the mortgagor?'s right or equity of redemption in these works:

?"An equity of redemption has always been considered as an estate in the land, for it may be devised, granted or entailed with remainders . . . and therefore cannot be considered as a mere right only, but such an estate whereof there may be seisin; the person therefore entitled to the equity of redemption is considered as owner of the land, and a mortgage in fee is considered as personal assets . . .

The interest of the land must be some where, and cannot be in abeyance; but it is not in the mortgagee, and therefore must remain in the mortgagor.?"

This definition or description given by Hardwicke, L.C., sitting as a court of first instance subsequently received authoritative approval and adoption in the Court of Appeal in Heath v. Pugh3 in which Selbourne L.C. in the course of his judgment for the court (himself, Baggallay and Brett L.JJ.) after observing that: ?"In equity (where this branch of our jurisprudence originated) the conveyance of the legal estate to a mortgagee was regarded as nothing more than a security for debt . . . As to the equity of redemption, it is sufficient to quote Lord Hardwicke?'s words in the leading case of Casborne v. Scarfe?", then proceeded to cite and adopt the definition already set out. It appears clearly enough therefore that in the view of equity, the mortgagor, notwithstanding that he has divested himself of the legal estate or title in or to his land, remains nonetheless the owner of his land while mortgaged, at least until such time as he is duly divested of his right to redeem or of his equity of redemption, also. In Fisher?'s Law of Mortgages (6th ed.) para. 877, the mortgagor?'s position is thus described:

?"The mortgagor in possession may be described as one who, having parted with his estate remains [nonetheless] in possession at the pleasure and consistently with the right of the grantee, exercising the ordinary rights of property, including the right of . . . receiving rents for his use . . . [and] able to bring an action in respect of the mortgaged property against any one save the mortgagee.?"

That right to bring an action in respect of the mortgaged property is exemplified in a number of authoritative decisions, e.g. Selleck v. Smith and Ors.4; Fairclough v. Marshall5 and Van Gelder Apsimon Coy. v. Sowerby, etc. Society.6

The observations of Bowen, L.J. in the last case are worthy of citation:

?"It seems to me that nothing can be clearer than that a man does not lose his right to protect his property against wrong doing by a stranger, simply because he has mortgaged it.

. . . It is clear that a mortgagor does not lose his right to protect what is his own because he has created a debt and secured the debt by a mortgage of the property which he seeks to protect. If authority is required, which I hardly think that it is, to support the decision at which we have arrived, Fairclough v. Marshall appears to me to cover the present ground.?"7

In face, therefore, of these authorities it seems clear that the first ground of appeal argued appears to have been misconceived and can obviously not be sustained.

[p.248]

The next ground argued was ground 3 to the effect that assuming that the form of the deed of gift was such as to grant or convey to the plaintiff the fee simple estate or absolute title in the premises No. D.762/4 (which however is denied) then in that case as the deed of gift exhibit A, is no more than a voluntary conveyance (i.e. one without any valuable consideration) from a father as donor to his daughter as donee, a legal implication or presumption of advancement would arise; the presumption, however, is a rebuttable one, and counsel referred to Snell?'s Equity (24th ed.) p. 150, para. 2, and the case of Fowkes v. Pascoe8 in support of his submission. He then passed on to refer to and examine the evidence on record which he contended went to rebut the presumption of advancement, and submitted that an intention on the part of the donor to benefit the plaintiff cannot reasonably be inferred from the whole evidence available. The reply of counsel for the plaintiff was to the effect that strictly speaking an argument on resulting trusts is not open to counsel for the defendants, for he stated expressly in the court below that: ?"Our case is not based on resulting trust; our submission is that the gift was made to Kate upon an express trust?". Even then, i.e. on the basis of an express trust, counsel conceded that a collateral agreement may be established by oral evidence, the burden being then upon the party setting up the same to prove it strictly. What the defendants did, said counsel, continuing his argument, was to allege that there was a meeting of the sisters and the nephew with their father at which the matter was discussed when the father said that the purpose of the conveyance to the plaintiff, who was in attendance at the meeting, was to enable her to raise a loan for him (the father) to complete the building of the house, and the plaintiff who was present then accepted or agreed to what the father said. Counsel referred to the evidence of the nephew, Mr. Quist, and of Mrs. Welsing, and pointed out certain discrepancies in them, and submitted finally that that being the evidence by which the defendants sought to establish the collateral parole agreement, the learned commissioner was justified in coming to the conclusion that he could not believe that the meeting took place at all at which Kate was present. Concluding, counsel submitted that what the deceased said to others in the absence of the plaintiff was not evidence against her; and that the learned commissioner rejected, rightly in his view, the story that plaintiff was present at any meeting and promised to reconvey the property. Counsel submitted finally that there was no satisfactory proof of the oral collateral agreement set up or relied upon by the defendants.

Before passing on to consider the merits of the respective arguments, it seems desirable in view of the fact that counsel on both sides referred us to so many authorities, to consider very briefly the main points of law raised in the arguments, beginning first with the points raised in the arguments of counsel for the defendants-appellants.

The passage in Snell?'s Equity (24th ed.) p. 153, which he cited reads thus:

?"Both the presumption of a resulting trust and the presumption of advancement can be rebutted by evidence of the actual intention of the purchaser. In these cases the court puts itself in the position of a jury, and considers all the circumstances of the case, so as to arrive at the purchaser?'s real intention; it is only where there is no evidence to contradict it that the presumption of a resulting trust, or of advancement, as the case may be, will prevail.?"

[p.249]

The passage is obviously in point and clearly lends support to counsel?'s submission. As to the proposition stated by counsel that there is a presumption of advancement in the case of a voluntary conveyance by a parent to a child, which presumption, however is rebuttable, there is no doubt that the proposition is well established and supported by many authorities. It will be sufficient to refer to only one: Crabb v. Crabb.9 The facts in that case were that a father transferred a sum of stock from his own name into the joint names of his son and of a person whom both father and son employed as their banker to receive their dividends, and he told the banker to carry the dividends of the stock so transferred, as the same were received, to the son?'s account. Under this direction the dividends were enjoyed by the son as long as the father lived. Upon a dispute arising because two years after the transfer the father by codicils to his will made a different disposition of the stock, it was held that the son was entitled to the stock absolutely. Brougham L.C. in his judgment in the case referred to the applicability of the principle of gift or advancement to both the case of purchase in the name of a son, as well as the case of direct conveyance or transfer to the son, in these words:

?"in Taylor v. Taylor (1 Atkyn 386) decided a few years before, where a father had purchased land in his son?'s name, and taken possession himself, and continued to hold it and receive the rents and profits till his death, his Lordship (Hardwicke L.C.) decreed that the purchase was a trust for the son ... If, however, a purchase by the father, in the joint names of father and son, with the possession retained by the father, makes the transaction a gift to the son, surely this case of a transfer to the son and a stranger, though that stranger be the father?'s banker, cannot be less strong in favour of advancement.?"10

The learned Lord Chancellor then proceeded to touch on the rebuttable aspect of the presumption in the following observations:

?"If Mr. Remingten (the stranger) had been only the father?'s banker, and not the son?'s, that circumstance would not be so strong to rebut or displace the ruling presumption of intention to give, as where the purchase was in the name, not of the father?'s banker, but of the father himself ... Nor ought it, in the present case, to be laid out of view, that when the banker applied to the testator for instructions the latter immediately told him to carry the dividends to his son?'s account. For these reasons, I am of the opinion that consols were a gift of advancement to the son.?"

A case decided in the opposite direction, where the court held that the ostensible gift to the child was held by him in trust for the father?'s estate is Re Gooch,11 a case where a father who had shares in certain companies transferred some into the name of his eldest son, and the question arose whether they were gifts to the son or whether he held as trustee for the father?'s estate. Kay, J. giving judgment said:

?"It is obvious that the son never anywhere says that the father told him that these shares were to be for his benefit... He says, in effect, that his father told him that he wanted him to have some occupation, and that therefore he should like him to be a director of these companies, and for that .... purpose was not, on this evidence, to give these shares out and out to the son. The purpose clearly was to provide the son?'s qualification ... I cannot distinguish this case from Childers v. Childers (4 De. G. J. 482; 3 K. J. 310) which was referred to during the argument. In the case Childers v. Childers the father transferred into the name of the son a certain piece of land in order to qualify him to be a bailiff on the Bedford Level Commission. He did not communicate it to the son, and of course the son received no part of the rent of the land, and the son died. It was submitted . . . that there was no declaration of trust at all to satisfy the Statute of Frauds. However, the difficulty did not impress [p.250] the judges for a moment, because they said the whole transaction showed that the purpose was qualification ... Therefore the son was trustee, and the trust need not be declared because it resulted to the father. So I say in this case. Here the purpose was qualification and nothing else".12

It would seem to be reasonably clear therefore that the principles applicable in the cases of purchases in the name of children are equally applicable to the case of a direct gift to a child.

Turning now to points of law raised by counsel for the plaintiff-respondent, counsel submitted firstly that it was really not open to counsel for the defendants to raise and argue the question of a resulting trust resulting from the transaction of the gift to the plaintiff, because counsel in the court below expressly disclaimed that the defendant?'s case depended upon a resulting trust and stated: ?"Our case is not based on resulting trust. Our submission is that the gift was made to Kate upon an express trust?". As to this, defendant?'s counsel has explained that what he did was to express reliance on resulting trusts as an alternative defence, and then stated to the learned commissioner that the main defence is that of an express trust. Counsel called attention to the fairly lengthy arguments he made on resulting trusts before the statement which counsel for the plaintiff now relies on and I am satisfied that defendant?'s counsel?'s explanation is a correct one. In any event the law seems to be now clearly established that a point of law arising on the record can be canvassed in an appeal court although it has not been raised in the court below. So in the case of Stool of Abinabina v. Enyimadu13 before the Board of the Privy Council, Lord Cohen delivering the judgment of the Board and having referred to the two grounds or points of law on which the decision appealed from was being challenged, proceeded as follows:

?"Neither of these points was taken in the West African Courts: ... but their Lordships consider that as they involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision on them, the Appellants should be allowed to raise them before this Board.?"

Having regard therefore to the explanation of defendant?'s counsel and, in any event the state of the law, it seems to me the arguments on resulting trusts are properly before us for consideration. Learned counsel for the plaintiff next raised the legal question, that whatever the deceased said to others in the absence of the plaintiff was not evidence against his client by which the alleged collateral agreement can be proved against her. As to this, however, it seems to me that, the submission is contrary to a wealth of authority and I would refer only to a passage in the opinion of Simonds L.C. delivered in the House of Lords case of Shephard v. Cartwright.14 The learned Lord Chancellor first stated the law as to presumption of advancement and its rebuttable nature, as follows:

?"The law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser stood in loco parentis, there is no such resulting trust but a presumption of advancement. Equally it is clear that the presumption may be rebutted but should not, as Lord Eldon said, give way to slight circumstances: Finch v. Finch (1808) 15 Ves. 43.?"

[p.251]

He then proceeded to deal with the type of evidence which can properly be received towards rebutting the presumption in these words:

?"It must then be asked by what evidence can the presumption be rebutted; and it would, I think, be very unfortunate if any doubt were cast (as I think it has been by certain passages in the judgments under review) upon the well-settled law on this subject. It is, I think, correctly stated in substantially the same terms in every text-book that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell's Equity (24th ed.) p. 153, which is as follows:

?'The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration... But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour?'.

I do think it necessary to review the numerous cases of high authority upon which this statement is founded. It is possible to find in some earlier judgments reference to ?'subsequent?' events without the qualifications contained in the text-book statement: . . . But the burden of authority in favour of the board proposition as stated in the passage I have cited is overwhelming and should not be disturbed.?"

In accordance with the principles above expressed, as in that particular case there was no evidence as to the circumstances in which a father had allotments of shares in several private companies, which he and an associate had promoted, made to his three children, apart from the bare fact that the allotments had been made to the children in their respective names, the House of Lords held that the courts below had been wrong in admitting and acting on subsequent acts by him as evidence in his favour to rebut the presumption of advancement to his children. On the other hand, as indicated in the statement of the legal position by Simonds L.C. above set out, a long line of cases of high authority has settled that statements made at the time of, or contemporaneously with, the transaction, are admissible on the issue of intent one way or the other, and this without any qualification as to whether the party against whom the statement is intended to be used, was present when it was made or not. Indeed in almost all the cases, the child or wife, in whose name property is bought or transferred by a parent or husband is not even present and has no knowledge of the transaction initially; yet in every such case evidence of the circumstances of the transaction, including directions and instructions to solicitors and executive officers concerned with the execution of the transaction, has been admitted as a matter of course. (See Sidmouth v. Sidmouth,15 Christy v. Courtenay16; Williams v. Williams17; Marshal v. Crutwell,18 and In re Duke of Malborough; Davis v. Whitehead.19 The submission by learned counsel for the plaintiff, therefore, that statements made by the donor to other persons in the absence of the plaintiff are not admissible and relevant on the issue of the donor?'s intent, must be limited to statements subsequent to the transaction and not those contemporaneous with it.

Another point raised by learned counsel for the plaintiff was that exhibit A recites ?"love and affection?" between the grantor and donee as consideration for the grant of the property and that is recognised by the law as consideration, so it cannot be said that the conveyance is without consideration. The answer to this however is that it is true the law recognises ?"love and affection?" between blood relatives as consideration.

[p.252]

The law however distinguishes ?"love and affection?" as ?"good?" as opposed to ?"valuable consideration?" which precludes a trust from arising at all. Sir William Anson in his well known students text-book Law of Contracts (17th ed.) p. 95 explains that: ?"The distinction between ?'good?' and ?'valuable?' consideration, or family affection, as opposed to money value, is only to be found in the history of the law of Real Property?". The distinction is also dealt with in many text-books dealing with the law of trusts of property, and in one such book Keeton?'s Law of Trusts, at p. 74, the explanation is given that:

?"Valuable consideration in the law of trusts, as in the law of contracts, is some valuable thing assessable in terms of money, with the proviso that marriage, and also a forbearance to sue, are so considered; and therefore, wherever consideration of this type is present, the trust is not voluntary. The phrase ?'good consideration?' is sometimes used, as applied to natural love and affection, but this consideration, though ?'good?' is not ?'valuable?' and was only used for the purpose of rebutting a resulting use or trust.?"

Lastly, on this question of consideration, reference need only be made to the case In re Duke of Malborough20 where the Duchess conveyed to her husband in consideration of natural love and affection, and it was held that the circumstances rebutted the presumption of advancement and left unimpaired the presumption of a resulting trust for her.

I turn now to a consideration of the paramount issue of fact in the case and the merits of the prospective contentions of counsel on it. The contentions are, on the part of counsel on behalf of the defendants that the evidence as a whole does not favour or support an intention to make a gift or an advancement; but on the part of counsel on behalf of the plaintiff, that the evidence as a whole supports an intention to make a gift, and that no part of it seems adequate or sufficient rather to establish the collateral agreement set up so as to displace the prima facie gift disclosed in the deed of gift, exhibit A. Consideration of the whole evidence, it is hardly necessary to say, must be in the light of the principles disclosed in and by the cases to which reference has been made hitherto.

In embarking upon this consideration or review of the evidence as a whole, and taking a broad general retrospect of it, one becomes at once forcefully struck by the circumstance that, apart from the evidence afforded by the deed of gift, exhibit A itself, there is little or nothing else beside to support the plaintiff?'s case of an intention to benefit her personally. By contrast, the circumstantial evidence against an intention to give beneficially but in favour rather of a trust, appears to be overwhelming. There is firstly the evidence of Mr. Lokko as to the donor?'s declaration of his object and purpose in desiring the declaration A to be made. It is significant that like the legal adviser or solicitor in the case of In re Duke of Malborough Mr. Lokko advised against the proposed conveyance, but the client insisted on carrying out what he had conceived in his own mind. It seems clear from the learned commissioner?'s references to Mr. Lokko?'s evidence in his judgment that he accepted and believed the same. He, however, whether wittingly or unwittingly, completely overlooked its relevancy and significance on the issue or question of the donor?'s intention. In the light, however, of the authorities which recognise declarations contemporaneous with the transaction as admissible and relevant on the question of intention, it [p.253] is beyond question that the cogency and significance of Mr. Lokko?'s evidence as to the donor?'s explanation of his object and purpose in making the proposed deed of gift, cannot be over-rated.

Next, there is the plaintiff?'s own conduct which followed so closely after the execution of the deed of gift to her that it might well be taken as constituting part of the transaction. But even if it is not proper to consider the whole conduct as forming one transaction with the obtaining of the deed of gift, it seems to me to satisfy the test of subsequent conduct detrimental to one?'s own interest and therefore admissible against her on that basis. That conduct on her part was that almost immediately after obtaining the deed of gift dated 8th June, 1955, and getting it stamped and submitted for registration by the 24th June, 1955, she appears to have commenced negotiation for a loan facility at the then Bank of the Gold Coast, with the result that on 22nd August, 1955, she executed an indenture of mortgage granting the premises the subject of the alleged gift to her to the bank as security for placing the sum of 2500 at her disposal (see exhibit W, Mr. Lokko?'s bill for services in preparing the mortgage, and exhibit X, the indenture of mortgage). Then on the same day on which the bank placed her in the position of being able to draw up to the amount of 2500 secured by the deed of mortgage, she in effect manifested herself as being her father?'s agent in respect of the amount and paid out to him the substantial sum of 600. This was followed by further disbursements out to the father, or payments out on his account and behalf, from time to time during the period from the 22nd August, 1955, to the 1st January, 1957, at the end of which period he appears to have withdrawn or used up every penny of the amount of 2500 made available by the bank to the plaintiff, so that he (the father) came to be rather owing the plaintiff the sum of 92 3s. 6d. as an over-payment on his behalf. The details of these disbursements were set out by the plaintiff herself in a statement of account bearing the most significant description ?"Papa?'s account?" prepared and submitted by the plaintiff to her said late father (see exhibit Z). It seems unnecessary to point out how this significant conduct of arranging an accommodation facility with the bank by means of the deed of gift coming so soon after the execution of the deed of gift, confirmed Mr. Lokko?'s testimony and spoke more eloquently, even perhaps than the donor could have done if he had been alive, of the arrangement and understanding under which the deed of gift was made.

The plaintiff tried to explain this virtual loan transaction and the admitted use of a substantial part of the money obtained from the bank in the construction of the buildings on the land in dispute by saying she obtained the money for herself and arranged for her father to act as her agent to see to the construction of the buildings for her. Unfortunately for her, she is decisively discredited and exposed by her own written matter which discloses beyond question that she regarded and conducted herself as her late father?'s agent in obtaining the money, holding it for him, and paying it out to him or as he directed from time to time until the whole amount was completely paid out, and she rather found herself a creditor for her father?'s in respect of the items of over-payment set out in the statement, exhibit Z, as ?"owing?" to her by her father. From every point of view that statement of account exhibit Z is so cogently decisive of the paramount issue of fact for determination in this case, that it appears unnecessary to review in any detail other pieces of material evidence which also tend, not only to refute the legal presumption, but to discredit the definite assertion which the plaintiff made in the course of her evidence [p.254] that her father intended and meant to benefit her and expressly declared the transaction embodied in exhibit A to be an absolute gift to her in appreciation of certain financial assistance which she gave him in the past. Such other evidence need only be mentioned cursorily and that is the circumstance that, apart from carrying on with the completion of the uncompleted portion of the premises with part of the money obtained by the plaintiff from the bank on his behalf to which we have already made reference, firstly, her father in the interval between the execution of the deed of gift on the 8th June, 1955, and the execution of the mortgage to the bank on 22nd August, 1955, collected the rents of the premises; and secondly, he continued in complete control of the premises occupying it with his other daughters, dependants and the nephew Quist, and also directing the occupation and use of the premises in exactly the same manner as prior to the execution of the deed of gift and as though it had not been made at all. This state of affairs the plaintiff not only accepted, but confirmed as being the true state of things by her conduct in openly holding out herself as being nothing more than as her father?'s agent in obtaining the money which she held at his disposal and in paying it out as and when he requested, as clearly established by her own statement of account exhibit Z. In these circumstances I am quite satisfied, after carefully examining the whole of the evidence available in this case that the deed of gift, exhibit A, was made for the plaintiff only for the purpose which she herself by her own conduct during her father?'s lifetime, as from the date of execution of the document till his death, so clearly and unequivocally admitted, namely, the sole purpose of using the property in her name to raise the loan primarily for the completion of the buildings on the land, as in fact the money obtained was actually used in doing. I therefore find the main contention of counsel for the defendants-appellants that the evidence as a whole does not support an intention of a gift to the plaintiff, clearly and well established, and I would uphold the same.

Having come to that decision on the main issue of fact raised in the case, it does not seem to be necessary to deal with and give a definite decision on the last ground of appeal argued, as to whether the Statute of Uses, 1535,21 is in force in this country as to make it necessary for the same technical words of limitation which must be used to convey or grant a fee simple in England, to wit, the words ?"unto and to the use of A and his heirs?", to be used in the conveyance of an absolute title to land in this country. I would only make the observation that it seems difficult to conceive of how an enactment of such fundamental importance in English conveyancing law and practice as the Statute of Uses, cannot be applicable anywhere where English conveyancing form is adopted or employed, and that local conveyancing practice as carried on from the days of the earliest legal practitioners, like the Hon. John Mensah Sarbah and others, up to date, would seem to negative the suggestion that the Statute of Uses has no operation locally when English conveyancing forms are employed. As already indicated however, it is unnecessary definitely to decide the point in connection with the determination of this appeal.

[p.255]

In the result I would allow the appeal and set aside the judgment of the learned commissioner and substitute therefore a judgment for the defendants on the plaintiff?'s claim, and enter judgment decreeing title to the property in dispute in the plaintiff as a trustee for herself and all the beneficiaries named in the will of the late Kwamla Armah Kwantreng, including the defendants and co-defendants as claimed by the latter in their counterclaim.

JUDGMENT OF VAN LARE, J.S.C.

I agree

JUDGMENT OF SARKODEE-ADDO, J.S.C.

I also agree.

Decision

<p>Appeal allowed.</p>

Plaintiff / Appellant

K. Bentsi-Enchill

Defendant / Respondent

E. Akufo-Addo with him G. Koranteng-Addow

Referals

(1) Casborne v. Scarfe (1737) 1 Atk. 603; 26 E.R. 377

(2) Heath v. Pugh (1881) 6 Q.B.D. 345

(3) Selleck v. Smith (1826) 3 Bing 603; 130 E.R. 646

(4) Fairclough v. Marshall (1878) L.R. 4 Exch. 37, C.A.

(5) Van Gelder Apsimon Co. v. Sowerby, etc. Society (1890) 44 Ch. D. 374, C.A.

(6) Fowkes v. Pascoe (1875) 10 Ch. App. 303

(7) Crabb v. Crabb (1834) 1 My. & K. 511; 39 E.R. 774

(8) Re Gooch (1890) 62 L.T. (N.S.) 384

(9) Stool of Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171

(10) Shephard v.  Cartwright [1955] A.C. 431

(11) Sidmouth v. Sidmouth (1840) 2 Beav. 447; 48 E.R. 1245

(12) Christy v. Courtenay (1849) 13 Beav. 96; 51 E.R. 38

(13) Williams v. Williams (1863) 32 Beav. 370; 55 E.R. 145

(14) Marshal v. Crutwell (1875) L.R. 20 Eq. 328

(15) In re Duke of Marlborough; Davis v. Whitehead [1894] 2 Ch. 133

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