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KOJO ADJEPONG
V.
KWAKU FOKUO AND AKOSUA BADU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA
19TH DAY OF NOVEMBER, 1945
2PLR/1945/10 (WACA)
OTHER CITATION(S)
2PLR/1945/10 (WACA)
(1945) XI WACA PP. 67 – 69
LEX (1945) – XI WACA PP. 67 – 69
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BEFORE THEIR LORDSHIPS:
HARRAGIN, C.J., GOLD COAST
BAKER, AG. C.J., NIGERIA
M’CARTHY, J.
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BETWEEN
KOJO ADJEPONG – Plaintiff-Respondent
AND
KWAKU FOKUO AND AKOSUA BADU – Defendants-Appellants
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ORIGINATING COURT(S)
APPEAL FROM CHIEF COMMISSIONER’S COURT, ASHANTI
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REPRESENTATION
H. A. Hayfron-Benjamin — for Appellants
E. O. Asafu-Adjaye — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE TAND PROPERTY LAW:- Claim for declaration of title as owner of freehold property held in trust — Lease transferred by Plaintiff and 1st Appellant to 2nd Appellant to safeguard property from execution by creditors — Contract against Public Policy — How determined — Relevant considerations of court
COMMERCIAL LAW — CONTRACT:– Contract made in pari delicto” — What constitutes — Fraud and collusion indulged in by Appellants — Advancement of Public Policy — How properly approached by court
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held (dismissing the appeal):–
1. That having regard to the conduct of the parties, they are not in pari delicto and public policy is advanced by allowing Plaintiff relief.
2. That a declaration is in order that property is jointly owned by Respondent and 1st Appellant as equitable co-owners and that 2nd Appellant holds it in trust.
Cases cited:-
Goscoiqne v. Gaiscoigne (1918), 1 K.B. 223.
Reynell v. Sprye, 1 D.M. & G, 660, 679.
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MAIN JUDGMENT
The following judgment of the Court was delivered by M’CARTHY, J.:-
In this case the plaintiff-respondent claimed a declaration that he is co-owner with the 1st defendant-appellant of certain leasehold property in Kumasi, and that the 2nd defendant-appellant, whose name is entered as lessee of the property in the Lands Department, Kumasi, holds the same in trust for the plaintiff-respondent and 1st defendant-appellant. The case eventually reached the West African Court of Appeal, by which it was remitted to the Chief Commissioner’s Court for trial de novo, on the ground that averments of breach of trust, collusion and fraud made by the plaintiff had never been investigated, and required investigation.
Upon the retrial the Chief Commissioner’s Court delivered the following judgment:-
”I am satisfied that there is ample proof that the home in question is the joint property of Kojo Adjepong and Kwaku Fokuo and that they assigned it to Akosua Badu so as to safeguard it from being seised in execution of any debt which might be incurred by them:
The Plaintiff will have the order for which he asks, viz. that the house on plot O.I. No. 61 is jointly owned by himself and Kwaku Fokuo. He also asks that I make an order that the house should be sold. As a mortgage on this property is the subject of an action in the Divisional Court in which the present parties are interested, I cannot make any such order. Plaintiff to get his costs in this Court to be taxed and costs in this Court and the Court below in respect of the hearing of the ease in the first instance.”
Although fraud is not mentioned in the judgment, it is plain from the issues involved that in effect the trial Court found that there had been fraud on the part of the 1st defendant-appellant, breach of trust on the part of the 2nd defendant-appellant as well as collusion between them.
The only ground of appeal which need be considered is the following:-
“(f) That the agreement which the Respondent seeks to enforce was against public policy in that it alleges that the property was assigned to the 2nd Appellant to safeguard it from execution by creditors”.
This is based on evidence given by the Respondent before the Chief Commissioner’s Court to the effect that he and 1st Appellant had transferred the lease to the 2nd Appellant, and that they (Respondent and 1st Appellant) decided to do this so that if either of them got into debt the house could not be seized by Fi.Fa.
The issue as to whether this admission would be a bar to relief was not raised in the Court below. The terms of the admission and of the passage in the relevant judgment above quoted indicate that the admission related to future creditors.
It may be observed that in the former judgment of this Court it was stated that the transfer was made to obviate the possibility of either present Appellant or present Respondent alienating the property without the knowledge or concurrence of the other.
In the report of Gascoigne v. Gascoigne (1918), 1 K.B. 223, the head-note is as follows:-
”A husband took a lease of land in his wife’s name and built a home upon it with his own money. He used his wife’s name in the transaction with her knowledge and connivance because he was in debt and desirous of protecting the property from his creditors. In an action by him against his wife for a declaration that she held the property as trustee for him—
Held, that he could not be allowed to set up his own fraudulent design as rebutting the presumption that the conveyance was intended as a gift to her, and that she was entitled to retain the property for her own use notwithstanding that she was a party to the fraud”·
The creditors mentioned in that case were present or future creditors.
But assuming that this Court would ordinarily hold that on the facts of the present case the decision in Gascoigne v. Gascoigne applied, there is another point to be considered.
It was held in Reynell v. Sprye, 1 D.M. & G. 660, 679,
“Where the parties to a contract against public policy, or illegal, are not in pari delicto (and they are not always so), and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transaction, relief is given to him”.
In this case the parties are in pari delicto as regards the transaction itself, but whereas the present issue has only arisen because of the admission made by the Respondent (obviously in ignorance of the fact that it at least savoured of illegality), the Appellants have been found to have indulged in fraud and collusion. This lengthy case which came before the Asantehene’s Divisional Court ”B”, and the Chief Commissioner of Ashanti’s Court, before being remitted by the West African Court of Appeal to the Chief Commissioner’s Court, was due to the fraud of the Appellants. As already indicated, it is only in this Court and on this occasion that the point has been raised that the transaction was against public policy.
This Court in the circumstances has no hesitation in holding (on the above assumption) that having regard to the whole conduct of the parties, they are not in pari delicto, and that public policy is advanced by allowing the Plaintiff the relief which he seeks, particularly so in view of the fact that creditors of Respondent and 1st Appellant in order to secure interest on moneys advanced by them towards the erection of the building are at present in possession of some of the rooms of the building, and if the fraudulent transfer to 2nd defendant-appellant was upheld would lose the security which they obviously looked to when they advanced moneys to Respondent and 1st Appellant.
There being no substance in the other grounds, the appeal is dismissed, and the judgment of the Court below affirmed, subject to this variation: The declaration that the property is jointly owned by Respondent and 1st Appellant is replaced by a declaration that the property is jointly owned by the Respondent and 1st Appellant as equitable co-owners, and that the 2nd Appellant holds it in trust for these two.
The Respondent is awarded costs in this Court assessed at £23 8s. 6d.
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