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MERCY ADOLEY AKWEI, ETC.
V.
LUCY KATE AKWEI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
18TH DAY OF MAY, 1943
2PLR/1943/49 (WACA)
OTHER CITATION(S)
2PLR/1943/49 (WACA)
(1943) IX WACA PP. 111 – 117
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
MERCY ADOLEY AKWEI, ON BEHALF OF HERSELF AND AS REPRESENTING THE FAMILY OF E. A. AKWEI, DECEASED — Plaintiff-Respondent-Appellant
AND
LUCY KATE AKWEI, AS WIDOW OF THE SAID E. A. AKWEI AND AS ADMINISTRATRIX OF HIS PERSONAL ESTATE — Defendant-Appellant-Respondent
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REPRESENTATION
Frans Dove — for Appellant
K. A. Bossman with S. A. Attoh — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Administratrix — Practice and Procedure-Suit respecting real property — Suit against administrator of personal estate.
ESTATE ADMINISTRATION AND PLANNING:- Trust — Declaration of Trust — Implied Trust — Statute of Frauds (29 Car. 2, C.3) section 7-Ibid., section 8.
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT:- Joinder of parties — Interested parties not joined before judgment — Cestuis que trust — Legal effect
JURISDICTION:- Native Tribunal — Action against Administratrix for profits of estate — Land situated within the State of a Paramount Chief — Native Administration (Colony) Ordinance (Cap. 76) (Gold Coast), section 48.
PLEADING:- Reply — Statement of Frauds — Proper treatment of
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CASE SUMMARY
Plaintiff was sister of Akwei, deceased, and defendant was his widow and the administratrix of his personal estate. During Akwei’s lifetime certain land within the state of a Paramount Chief was conveyed to Akwei by deed, and a house was built upon it. The money for these purposes was provided by defendant and her father under such circumstances us to raise an implied trust by Akwei in favour of his children. No written declaration of trust was made.
Plaintiff, on behalf of herself and as representative of the family of Akwei, sued defendant as administratrix, claiming, inter alia, an account of the rents and profits of the house, and a third share of the rents and profits and of the house or its value after sale. In her defence the, defendant alleged the trust and the circumstances creating it. The plaintiff did not plead the Statute of Frauds in reply.
The trial Judge found in fact that the circumstances raising the trust existed, but held that, as there was no declaration of trust to satisfy the statute of Frauds, the house and land formed part of Akwei’s estate; and he held that the plaintiff was entitled to an account of the rents and to the payment of one-third of them to her, and to a third share of the house, or its value.
Both parties appealed. Counsel for plaintiff submitted that the proceedings below were a nullity because the cause was one properly cognizable by the Paramount Chief’s Tribunal under actions 48(1) and 48(2)(c) of the Native Administration (Colony) Ordinance, the further progress of which should accordingly. have been stopped, and the parties referred to the Tribunal, under section 65 of the same Ordinance.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
(i) The decision of the trial Court, amounting to a declaration of title for the plaintiff to an undivided one-third share of the property, ought not to have been made without joining the guardian of Akwei’s children who were minors, on whose behalf the claim had been put forward that they were Cestui qui trust.
(ii) Defendant should not have been sued as administratrix of Akwei’s personal estate, having no power to deal with the house and land in that capacity.
(iii) As plaintiff did not plead the Statute of Frauds, she was not entitled to rely thereon.
(iv) Even if the Statute of Frauds had been pleaded, it could not be relied on because, by virtue of section 8 thereof, implied trusts were excepted from its operation, and therefore the house and land did not form part of Akwei’s estate.
(v) As some law other than Native customary law (‘viz., The Marriage Ordinance, and English Law relating to the Administration of Estates) was properly applicable, under the proviso to section 48 (1) of the Native Administration (Colony) Ordinance the trial Court was properly seized of the case.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GUAHAM PAUL, C.J., SIERRA LEONE.
The material part of the writ in these cross-appeals is as follows:-
“The plaintiff is sister of the full blood and the representative of the family of E. A. Akwei who died intestate at Accra in September, 1940, and Letters of Administration of whose personal estate were granted by the Divisional Court to the defendant his widow on the 6th day of March, 1941.
“The defendant has taken possession of all the personal properties of the said E. A. Akwei, and is also in occupation of the house of the said E. A. Akwei situate at Adabraka, Accra, and has let out a portion thereof to several tenants.
“The defendant has refused to give a portion of the said rents and personal properties to the plaintiff or any member of their family, and has ignored the plaintiff’s request for a third share of the house of the said E. A. Akwei.
“And the plaintiff’s claim on behalf of herself and as representing the family of the said K A. Akwei, is, as against the defendant, a widow of the said E. A. Akwei and the administratrix of his estate, for –
“(a) an account of the said personal and profits and payment to the said properties and rents; properties and of the said properties and rents
“(b) a third share of the said house, or of the value thereof after sale;
“(c) such further or other relief in the matter as to the Court might seem fit.”
Pleadings were filed. By paragraph 15 of the Statement of Claim the plaintiff seeks the same relief as is claimed in the writ.
The deceased E. A. Akwei and the defendant Lucy Kate Akwei were married under the Marriage Ordinance in 1933. Subsequent to the marriage four children were born in addition to one before. The defendant was appointed administratrix of the personal estate of E. A. Akwei after his death intestate in September, 1940.
The dispute concerned (a) certain personal estate, and (b) a house and the plot of land on which it stood, which the plaintiff contended formed part of the estate of the deceased.
Defendant filed an inventory of the personal estate of the deceased and valued the articles therein at £199 17s 6d. The plaintiff contended that a radio, frigidaire and furniture belonged to the deceased and should have been included in the inventory which would then amount to about £500 in value. The trial Judge however, accepted the defendant’s version that she bought these articles with her own money or money provided by her relations and that her inventory was therefore correct. The second ground of appeal in the plaintiff’s cross-appeal attacked the trial Judge’s finding of fact on this point, but that ground of appeal was abandoned in this Court and the plaintiff’s cross-appeal upon this point is dismissed.
The plaintiff contended that the deceased had bought a piece of land at Adabraka and built a house on it at his own expense and that therefore it formed part of his estate.
There is no dispute that the land on which the house was built was conveyed by deed dated the 25th September, 1935, by one Margaret Ankrah to the deceased. The consideration expressed in the deed was £50.
Paragraphs 3 and 4 of the defence read:-
“3. The defendant denies that the deceased E. A. Akwei was the owner of the house at Adabraka referred to in paragraph 3 of the Statement of Claim. She says that the said house was built out of funds partly supplied to her by her father and other relatives and partly out of the profits of her separate trade and that it was the intention of herself and her husband that the said house should be a gift to the children of their marriage jointly.
“4. The building permit for the said house was applied for in the names of the said children. The defendant holds the said house for herself and in trust for the said children, whose guardian she is.”
The trial Judge found as a fact that the funds for the purchase of the land and the construction of the building were provided by the defendant and her father and relatives, the deceased not having the means to buy the land and build the house, and the building permit was taken out in the names of the children. Upon the question as to who provided the funds for the purchase of the land and for the building he said:-
”I think that the funds for both these purposes were provided by the defendant and her father and relatives as she says. The deceased clearly was not a man of means and had only a small salary as a storekeeper. The commission which he drew in that capacity was small and a great part of it was in fact retained by the firm which was paying him against debts owed by th4l defendant to that firm. “The deceased clearly had not the means to buy the land and build the house, and I believe the defendant’s evidence on that point.”
The evidence of the defendant to which the Judge referred was as follows:-
“In September, 1935, deceased got a Conveyance of land for house, Exhibit 3. I told deceased I wanted to build a house for our children. We agreed to do this. He had not enough money. I gave him £50 to buy land. I had only just given birth to a child. He said he had asked his aunt to find a plot. When he had found the plot I gave him the £50. Later he brought me this document — Exhibit 3. I saw he had taken it in his name. I refused it. I made a row with him because he had the document in his name. He said we were ‘all one’ because we were married it does not matter. Anything that he had belonged to me and vice versa. We were going to build for the children. He would get the building permit in the children’s names and it would be all right. I did not agree until he got the building permit and I saw it was in children’s names. Then I agreed. I entrusted my money to him. He kept some at home and some in the bank in Accra. The money which I had and which he had was not enough to build the house which we got up. I and deceased went to my father and showed him the plan we had prepared to build a house for our children and said we wanted his help. He agreed. Gave us first £300; then £200; again £200: total £700. He was glad to help because we were building for children. No one else helped except my uncle on my mother’s side, and my mother. I went to my uncle Darku Fio at Adumade near Suhurs, once with my husband and other time by myself and he gave us help. My mother was in Accra. We were living in my father’s house where she was. While we were building deceased and I both asked her help. She gave us at different times £40, £50 and £60. Darko Fio (my mother’s brother) gave us about £200 in all. Do notremember particular sum. He has a cocoa farm: now dead. Died one year ago. He gave me this money: not a loan.”
We also accept that evidence as the truth and accordingly dismiss the plaintiff’s cross-appeal upon this point.
On the face of it the transaction to which that evidence bears testimony creates a trust for the children; but from the judgment it appears that the trial Judge came to the conclusion that as the title to the land was in the deceased and there was no declaration of trust to satisfy the Statute of Frauds he was obliged to hold that the house and plot formed part of deceased’s estate.
In the course of his judgment the trial Judge stated the plaintiff on behalf of the deceased’s family is entitled to
(1) one-third of the personal estate, valued at £199 17s 6d;
(2) an account of the rents of the house from the time of deceased’s death, and payment to the plaintiff of one-third of those rents; both these items to be subject to an account i.e. the amounts to be ascertained after deducting deceased’s liabilities and expenses of administration. I direct that an account be taken with regard to these two items;
(3) a one-third share of the house, or its value.”
The defendant was ordered to pay the costs of the action. Paragraphs (2) and (3) amount to a declaration that the plot and house belonged to the deceased and that the plaintiff is entitled to a third share of the house or its value and the rent thereof. It is in effect a declaration of title to an undivided one-third share in the property. As a claim was put forward on behalf of the children of the deceased and Lucy Akwei that they as cestuis que trust were the owners of the property it is obvious that the guardian of these children, who are minors, should have been made a party as guardian to the minors before the Court could make the order it has made in respect of this property.
From the heading to the writ it will be seen that Lucy Akwei was sued as widow of the said E. A. Akwei and as administratrix “of his personal estate.” She should not have been sued as administratrix of the personal estate in respect of the house and plot as in that capacity she had no power to deal with them and the personal estate of the deceased should not have been saddled with the costs of this action as has been done by the judgment.
In holding that as there was no declaration of any trust in writing to satisfy the Statute of Frauds the trial Judge overlooked the fact that the plaintiff did not plead that Statute. In those circumstances the plaintiff was not entitled to rely on that Statute even if its provisions had been applicable in this case. On the Judge’s findings of fact that the land was acquired by the deceased and the building was erected thereon with money provided by the defendant and her father and relatives and that the building permit was granted to the children there was a very strong presumption, which the plaintiff has not displaced, that when deceased had the land conveyed to him in his own name he did so as trustee for his children. Even if the provisions of the Statute of Frauds could be relied on, the absence of writing would not enable a person who knows that land is conveyed to him as trustee to claim it as his own. (28 Halsbury, 1st Ed. p. 10, para. 12). Although an actual trust was not declared there can be no doubt that on the facts disclosed there was a constructive or implied trust by the deceased in favour of his children. The Statute of Frauds has no application to such a trust. Section 8 of the Statute of Frauds reads:-
“Provided always, that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made.”
In Lewin on the Law of Trusts, 9th Edition page 176, it is stated:-
“As the Statute of Frauds extends to creations or declarations of trusts by parties only, and does not affect, indeed expressly excepts, trusts arising by operation or construction of law, it is competent for the real purchaser to prove his payment of the purchase-money by parol, even though it be otherwise expressed in the deed.”
It results from the above that the house and plot did not fall into the estate of the deceased and that the plaintiff’s claim in respect of them and the rents and profits thereof fails.
There is one other point which should be mentioned. Counsel for the plaintiff submitted that the proceedings and judgment in the Court below ought to be declared a nullity on the ground that it ought to have appeared to that Court that the cause was one properly cognizable by the Tribunal of the Paramount Chief of the Ga State under the provisions of section 48(1) and (2)(c) of the Native Administration Ordinance (Cap. 76) since the suit related to the ownership of land within that State, and that therefore the Court ought to have stopped the case before it and referred the parties to that Tribunal in accordance with the provisions of section 65 of the Ordinance. There was no suggestion of this in the Court below and we are of opinion that the point is a bad one owing to the proviso to sub-section (1) of section 48 which reads:-
“Provided always that a Paramount Chief’s Tribunal shall not, unless the parties shall agree thereto, have any jurisdiction in any cause or matter where it appears either from express contract or from the nature of the transactions out of which such cause or matter shall have arisen that ” the parties expressly or by implication agreed that their obligations in connection with such transactions should be regulated substantially according to the provisions of some law or laws other than native customary law, or where otherwise some other such law or laws as aforesaid is or are properly applicable thereto.”
It appears to us that some law other than native customary law, namely, Gold Coast Law under the Marriage Ordinance (Cap. 105) and English Law (as applied to the Gold Coast) relating to the Administration of Estates, is properly applicable to this case and that consequently the Paramount Chief’s Tribunal had no jurisdiction to try it (except by consent of. parties), and the Supreme Court was properly seised of the case.
We allow the defendant’s appeal and set aside the judgment of the Court below and substitute therefor the following:-
“The defendant to deliver to plaintiff an account of the administration of the personal estate of the deceased, which is valued at £199 17s 6d, and to pay to the plaintiff one-third of the value of the net personal estate. The remainder of the plaintiff’s claim is dismissed.”
Since on this judgment the defendant succeeds upon all the points in dispute in the Court below, the defendant is awarded her costs in the Court below to be taxed, Counsel’s costs being determined by the trial Judge. She is also awarded her costs in this Court assessed at £76 3s 5d on her successful appeal and at £12 0s. 6d on the plaintiff’s unsuccessful appeal, and it is ordered that if any sum· has been paid in pursuance of the judgment in the Court below it shall be refunded.
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