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Head notes -
An overview of the facts of this
case is that the Plaintiffs gave
one version of the facts and the
Defendant a conflicting account of
the facts. The learned trial judge
preferred the defendant’s account
of the facts, but his decision was
reversed by the Court of Appeal
The conflicting evidence relates
to the purchase of a particular
piece of real estate in Agona
Swedru from the United Africa
Company. A Deed of Assignment
relating to the transaction was
executed between the late Yaw
Koranteng and the UAC on 29th
May 1972 and registered in the
Deeds Registry (See Exhibit B at
p.116 of the Record). Before the
execution of the Deed, however,
there was evidence showing that
Opanyin Kwame Addo had made the
initial contact with UAC and that
the receipt for the purchase price
of NC 9,000 issued by UAC in
respect of the property had been
issued in his name on 20th
September 1971 (See Exhibit 1A at
p. 118 of the Record). A letter
from the Acting Eastern Region
Properties Manager of the UAC,
dated 3rd September,
1971 (Exhibit 1B, at p. 119 of the
Record), which is addressed to Mr.
Kwame Addo of Agona Swedru, refers
to his offer of NC 9,000 and
indicates that it is receiving
favourable consideration. On 14th
September, 1971 the Ghana
Properties Manager of UAC wrote to
Mr. Kwame Addo, accepting ,
subject to contract, his offer to
purchase the property in question
for NC9,000. (See Exhibit 1D at p.
121 of the Record). There is
other correspondence also on
record which confirms that the
actual negotiation resulting in
the sale of the Agona Swedru
property to Mr. Koranteng was
carried out by Mr. Kwame Addo
HELD;
We am not persuaded by this
argument because there is not
enough evidence on record to prove
on the balance of probabilities
that Opanyin Kwame Addo paid his
own money to the UAC for his own
account. By asserting the
existence of a resulting trust,
the Defendant bears the burden of
persuasion of the factual
precondition to its existence. He
therefore needs to prove that the
purchase price paid by Opanyin
Kwame Addo was his own money and
paid on his own account. On the
view of the facts taken by the
Court of Appeal, which we share,
he has failed to do so.
Accordingly, we would dismiss the
additional ground of appeal as
well. In the result, the appeal
is dismissed.
CASES REFEARED TO
Brown
vrs Dunn (1893) 6 R67 at p. 71, HL
Adwubeng v Domfeh [1996-97] SCGLR
660).
Koglex Ltd.(No.2) v Field [2000]
SCGLR 175
Eyre CB said in Dyer v Dyer (1788)
2 Cox Eq. 92
COUNSEL:
Adumua Bossman for the
Defendant/Appellant/Respondent
Bram Larbie for the
Defendant/Respondent/Responden
J U D G M E N T
DR. DATE-BAH, J.S.C.
As Isaac Watts, the English
hymn-writer, in his Divine
Songs for Children, says:
“Birds in their little nests
agree
And ‘tis a shameful sight
When children of one family
Fall out, and chide, and fight.”
The facts of the case before us
poignantly present us with the
spectacle that the father of
English hymnody, Isaac Watts,
paints. It is a case eminently
suited to alternative dispute
resolution but which has
travelled all the way to this,
the final, Court of the land and
so resolve it we must. It is a
shame, however, that these close
relatives could not resolve the
matter amicably among
themselves.
An overview of the facts of this
case is that the Plaintiffs gave
one version of the facts and the
Defendant a conflicting account
of the facts. The learned trial
judge preferred the defendant’s
account of the facts, but his
decision was reversed by the
Court of Appeal, applying the
principles laid down in
Koglex (No 2) v Field [2000]
SCGLR 175. The
Defendant/Respondent/Appellant
(who will be referred to in this
judgment as the Defendant) is
now inviting this Court to
restore the trial judgment.
The
Plaintiffs/Appellants/Respondents
(who are subsequently referred
to as the Plaintiffs) are the
administrators of the Estate of
the late Opanyin Yaw Koranteng
of Asamankese, while the
Defendant is the son of the late
Opanyin Kwame Addo of Agona
Swedru, an uterine brother of
the said Opanyin Koranteng. The
brothers were from Abetiti,
Kwahu, but had settled in
Asamankese and Agona Swedru
respectively to carry on their
business of trading.
The conflicting evidence relates
to the purchase of a particular
piece of real estate in Agona
Swedru from the United Africa
Company. A Deed of Assignment
relating to the transaction was
executed between the late Yaw
Koranteng and the UAC on 29th
May 1972 and registered in the
Deeds Registry (See Exhibit B at
p.116 of the Record). Before
the execution of the Deed,
however, there was evidence
showing that Opanyin Kwame Addo
had made the initial contact
with UAC and that the receipt
for the purchase price of NC
9,000 issued by UAC in respect
of the property had been issued
in his name on 20th
September 1971 (See Exhibit 1A
at p. 118 of the Record). A
letter from the Acting Eastern
Region Properties Manager of the
UAC, dated 3rd
September, 1971 (Exhibit 1B, at
p. 119 of the Record), which is
addressed to Mr. Kwame Addo of
Agona Swedru, refers to his
offer of NC 9,000 and indicates
that it is receiving favourable
consideration. On 14th
September, 1971 the Ghana
Properties Manager of UAC wrote
to Mr. Kwame Addo, accepting ,
subject to contract, his offer
to purchase the property in
question for NC9,000. (See
Exhibit 1D at p. 121 of the
Record). There is other
correspondence also on record
which confirms that the actual
negotiation resulting in the
sale of the Agona Swedru
property to Mr. Koranteng was
carried out by Mr. Kwame Addo.
To resolve
this conflict between the
negotiation by Opanyin Kwame
Addo and the final conveyance
being made to Opanyin Koranteng,
the Defendant pleaded in his
Statement of Defence as follows:
“6. In further answer
Defendant says by virtue of an
affidavit sworn to by Kwame Addo
on 18th October,
1971, Opanyin Kwame Addo
verified his ownership of the
property and also authorised
U.A.C. to prepare the documents
in the name of his junior
brother, Yaw Koranteng”.
The Plaintiffs’ case was that
Opanyin Koranteng owned the
Agona Swedru property and that
the Deed of Assignment was
binding proof of that fact.
However, after the purchase of
the property, he had authorised
his elder brother, Opanyin Kwame
Addo, who was resident locally
in Agona Swedru to take care of
the property on his behalf.
Opanyin Addo had been authorised
to collect rents from the
tenants on the land, to use some
and to account for the rest to
Opanyin Yaw Koranteng Also.
Kwame Addo, with the permission
of his brother Yaw Koranteng,
had been permitted to occupy
some of the stores in the Swedru
property without paying any
rents, in view of his services
to Yaw Koranteng. However,
after the death of the two
brothers, the Defendant, son of
Kwame Addo, as earlier
mentioned, had purported to
claim ownership of the property
in dispute. This was why the
Plaintiffs had brought the
present action seeking:
“(a) Declaration of title
to all that piece or parcel of
land situate, lying and being at
Agona Swedru in the Central
Region of the Republic of Ghana
measuring 351 feet to the
North, 350 feet to the South,
244 feet to the East and 250
feet to the West and containing
an approximate area of 1.91
acres or as contained in Land
Registry document No. 1814/1974
dated 29/5/72 together with all
buildings contained thereon.
(b)
An
order of account of all rents
received by Defendant in respect
of the said property since
March, 1999.
(c)
An
order of perpetual injunction
restraining the Defendant and
his agents and assigns from
interfering with Plaintiffs’
peaceful enjoyment of their
property.
(d)
An
order of recovery of possession
of two stores occupied by
Defendant on the property.”
At the trial,
the Second Plaintiff testified
that after the death of his
father, Opanyin Koranteng, he
and the other grantees of the
letters of administration over
his father’s estate found among
his belongings an indenture
which was put in evidence as
Exhibit B, namely the Deed of
Assignment between the UAC and
his father, which has already
been referred to. He said that,
subsequent to this discovery,
they sent letters to those
occupying the property in issue
asking them not to pay rent to
anybody except the
representatives of the
Plaintiffs. As a result of this
letter, they received a letter
from the Defendant claiming that
the land in question was his
bona fide property.
Accordingly, the tenants of the
property had not paid any rents
to the Plaintiffs. The second
Plaintiff acknowledged that the
tenants had been paying rent to
the Defendant’s father. He also
testified that one of the stores
in the property was occupied by
the Defendant and another by the
Defendant’s father. However, he
denied the assertion by the
Defendant in his Statement of
Defence that the land had been
bought by Opanyin Kwame Addo
from the UAC and that he had
exercised rights of ownership
over the property. He explained
that the reason why his father
had given his brother one of the
stores to occupy was so that he
could “stay in that store and
take good care of his property
for him”. (See p. 29 of the
Record.)
The Second
Plaintiff also refuted the
assertion by the Defendant that
during his father’s lifetime he
had convened a family meeting
attended by Opanyin Koranteng
and other principal members of
their family at which the
Defendant’s father had made a
gift of the land in dispute to
the Defendant. This is a
passage from the Second
Plaintiff’s evidence in chief
(pp. 30-31 of the Record):
“Q. You said the
defendant’s father called such a
meeting but that there was no
agreement reached. Can you tell
the Court why there was no
agreement.
A.
Yes I
can explain: The time he called
the meeting, at the time, the
topic the defendant’s father
raised was that he wanted to
seek permission from my father
to give the store that he is
occupying to add to that being
occupied by the defendant.
Opanyin Yaw Koranteng did not
agree to what his brother
suggested. Because Yaw
Koranteng did not agree Op.
Kwame Addo also agree (sic) that
matters should remain like that;
but Opanyin Kwame Addo said he
had already got a sheep for the
family to slaughter. So they
slaughtered the sheep. The
sheep was not for “a thank you”
but it was used by the family as
meat, and Opanyin Yaw Koranteng
did not take the meat because he
was not well.
Q.
Who
were some of the family members
who attended the meeting.
A.
My
father’s sister Yaa Egyiwaa his
nephew Kojo Ntim, Kojo Asare,
Prince Kofi Enim Koranteng, Nana
Darkwa (the Kwahu chief in this
town).
Q.
The
defendant insists in his
statement of defence that by
virtue of the fact that there
was a gift to him, he had every
right to do anything on the
land, collect rents without
rendering accounts to anybody
including you.
A.
It is
not he who collects the rent,
but his father who collects the
rent.
Q.
Do you
agree that a gift of that
property was made to the
defendant.
A.
No,
not at all, no gift was made to
him.”
The Second
Plaintiff’s testimony on these
matters was substantially
corroborated by the testimony of
the other witnesses called by
the Plaintiffs, namely: PW1,
Margaret Yaah Adjeiwaah, an
uterine sister of Opanyin
Koranteng and Opanyin Kwame
Addo; PW2, Nana Darkwa Boateng,
nephew of the two deceased
brothers and chief of the Kwahus
in Agona Swedru; and PW3, Felix
Kojo Ntim, a nephew of the two
deceased brothers.
In contrast,
the contention of the Defendant
was that the property in issue
was his. He had received it by
way of gift from his father,
Opanyin Kwame Addo, who had
originally bought it from the
UAC. In his testimony, the
defendant tendered in evidence
the documentary evidence already
referred to indicating that it
was his father who had
negotiated with the UAC and
reached agreement with them on
the sale of the property in
issue. He also tendered in
evidence an affidavit that had
been deposed to by his father
(See Exh. 2 at p. 126 of the
Record) in which his father
swore that he was the true and
lawful purchaser of the land in
dispute; that he had paid the
purchase price of NC 9,000 in
his name to the UAC; but that
all documents bearing his name
should now bear the name of his
brother Opanyin Yaw Koranteng.
The evidence that the defendant
gave as to how his father
acquired the property in dispute
was as follows (See p. 57 of the
Record):
“Q. Did your father tell
you how he came by this property
A.
He
told me.
Q Briefly tell the Court
what he told you about the
property.
A. A very close friend of
my father by name Opanyin Kwadwo
Fordjour had a store on the
land; he later approached my
father and informed him that UAC
wanted to sell the land; but
that he Fordjuor did not have
enough money to buy it. So my
father contacted UAC and
negotiated with them. That’s
how he came to buy the land.
Q. Did your father tell
you whether he registered the
said property in his name.
A. No.
Q. Did your father in
fact register the property.
A. Yes he did.
Q. How did he register
the property
A. He swore an affidavit
and registered it in his brother
Yaw Koranteng’s name.”
The defendant also gave the
following testimony regarding
the alleged gift of the UAC
property made to him by his
father (at p. 61 of the Record):
“Q. Could you tell the
Court how the disposition of the
third property – that is the
U.A.C. land was made.
A.
My
father called a gathering of his
family members including his
brother Opanyin Yaw Koranteng
and Mame Adjewaa (PW2) and PW3 –
Opanyin Yaw Darkwa as well as my
mother and her family members.
Q.
Can
you give the names of your
mother’s family members who were
present at that meeting?
A.
Yes,
they were:
Efua Biri, Yaw Mireku, Kwabena
Appiah, my son – Kwesi Addo.
There my father made it clear to
the meeting that he has given me
the U.A.C. land as well as the
store. So I bought a sheep and
presented it to him as
thanksgiving I also added two
bottles schnapps The sheep was
slaughtered and shared; they
used some of the sheep – meat to
prepared (sic) food which we all
ate. Opanyin Yaw Koranteng said
he was sick and his share of the
meat he took away in a polythene
bag to Asamankese.”
The learned trial judge, Woanyah
J., believed the defendant’s
version of the evidence above.
He identified alleged conflicts
within the evidence of the
second Plaintiff and with the
evidence of his witnesses which,
in his view, affected the
credibility of that evidence.
In expressing his preference for
the evidence led by the
defendant, he said (at p.
108-109 of the Record):
“On the other hand, the version
of the Defendant’s case differs
as to the nature of the
transaction. The Defendant says
that it is true the Plaintiffs
have the indenture on the
disputed land, but that the form
in which the land together with
the buildings thereon was
conveyed to the late Koranteng
was the suggestion of his late
father Opanyin Kwame Addo
himself, as he did not want it
to be know (sic) that he had
bought the land with the
buildings as he might continue
to be pestered by Opanyin
Fordjuor and other people hoping
to benefit in a similar way.
This assertion by the Defendant
was never challenged by the
Plaintiffs when the Defendant
was under cross-examination.
Such an assertion in my
considered view is so
significant and crucial that the
Defendant should have been
confronted whiles in the box,
but instead the second Plaintiff
asked no question of the
Defendant bearing this fact
out. I think that on the
authority of Brown vrs Dunn
(1893) 6 R67 at p. 71, HL
the Plaintiffs must be deemed to
have admitted or accepted the
Defendant’s version of the
matter as related by him.”
He also accepted the evidence of
the Defendant that the
Defendant’s father had in his
lifetime exercised acts of
ownership over the disputed
property without challenge. In
the view of the learned trial
judge, this evidence on the
exercise of acts of ownership
by Opanyin Kwame Addo had been
received unchallenged by the
Plaintiffs and
should thus equally be regarded
as admitted by the Plaintiffs.
He concluded as follows on the
evidence of the Defendant (at p.
110 of the Record):
“Legally speaking, replacing
Opanyin Kwame Addo’s name, on
the suggestion of Opanyin Kwame
Addo himself, with the name of
Opanyin Yaw Koranteng would mean
a transfer of interest in the
property to Opanyin Yaw
Koranteng. But critically
examined against the background
of the circumstances surrounding
the whole transaction, and the
entire correspondence relating
to the purchase and the eventual
purchase itself, the transfer of
the property by the UAC to
Opanyin Kwame Addo, we would say
that the replacement of the
actual purchaser’s name was not
an accident but was truly
arranged by the two deceased
brothers to deceive the public
as to the true ownership of the
property. The two deceased
brothers had thought it all out
and it seems to me they knew
what they were doing. I do not
think that without any prior
discussion of the change of
name, the identity of the land
and the purchase price, the
Defendant’s father can, as it
were, out of the blue, go to the
Plaintiff’s father and say to
him, “Take this Indenture”. In
my view such a situation is not
the normal course of conduct
relating to any intended
acquisition of property by any
two or more persons. The
evidence of the Defendant is
therefore more preferable.”
This conclusion of the learned
trial judge was one way of
resolving the puzzling issue
in this case: why did Opanyin
Kwame Addo register the land in
his brother’s name?
Did the two brothers collude to
deceive Opanyin Fordjour, as the
learned trial judge
found? Or is the more
reasonable inference from the
evidence that Kwame Addo
intended to make a gift of the
property to his brother, in the
light of the evidence on
record of their close
relationship? Or is the
Plaintiffs’ explanation to be
believed that
Opanyin Kwame Addo all along
acted as caretaker and agent of
his brother Opanyin
Koranteng? The answer to this
puzzling issue is crucial to the
outcome of this case.
On appeal, the Court of Appeal
did not accept the learned trial
judge’s resolution of
this issue.
Mrs Akoto-Bamfo JA, delivering
the lead judgment of the Court
of Appeal, with which the other
two judges concurred, said (at
p. 161 of the Record):
“I am of the view that Exhibit
‘B’ [i.e. the Deed of
Assignment] established Yaw
Koranteng as the owner. The
receipt on its own does not
establish ownership, neither can
it be given the same weight as a
Deed of Assignment having regard
to the deposition in the
affidavit and my observations
thereon. Aside from the
documentary evidence, there were
witnesses called by the
plaintiffs; who were
significantly members of family
of the deceased brothers and who
had personal knowledge of the
events as opposed to the
witnesses called by the
defendant who were obviously
interested parties.
The younger sister of the
deceased parties was emphatic
that the property belonged to
Opanin Koranteng, her evidence
on the meeting at which Opanin
Koranteng rejected the proposal
made by Opanin Kwame Addo to
hand over the store to the
defendant was corroborated in
every material particular by PWs
2 and 3, the head of the Kwahu
Community in Agona Swedru and
Opanin Kwame Addo’s nephew and
successor respectively. It is
of significance that the latter
actually lived with Opanin Kwame
Addo for over 10 years.
Against these pieces of evidence
offered by the plaintiffs’
witnesses were those offered by
the defendant’s aunt, child and
sister who cannot be described
as disinterested parties.
In preferring the evidence of
the defendant’s witnesses to
those of the plaintiff’s, the
learned trial judge described
the evidence of the latter as
unreliable, contradictory and
adduced only to serve the
interests of the plaintiffs.
A careful reading of the
proceedings does not reveal the
basis for these. It is my
considered view that the
findings of the learned judge
are indeed inconsistent with the
documentary evidence and cannot
be supported by the evidence on
record. The attack mounted
against the judgment on that
score is therefore sustainable.”
We agree with this view of the
learned Justice of Appeal. In
our opinion, the
judgment of the learned trial
judge was against the weight of
evidence. And, as
correctly analysed by the
learned Justice of Appeal, the
circumstances of the present
case are such as permit an
appellate court to set aside the
findings of fact of the trial
court. In the first place, the
learned trial judge applied the
wrong burden of proof to
the evidence adduced before him,
insisting that the applicable
burden was proof
beyond reasonable doubt, when
the right burden was proof on
the balance of
probabilities. (See sections
11(4) and 12 of the Evidence
Decree 1975, NRCD 323
and Adwubeng v Domfeh
[1996-97] SCGLR 660). The
improper application of a
principle of evidence is one of
the circumstances identified by
Acquah JSC, as he then
was, in Koglex Ltd.(No.2) v
Field [2000] SCGLR 175 at p.
185 as justifying an
appellate court to interfere
with a finding of fact of a
lower court.
Another circumstance justifying
an appellate court to set aside
the finding of fact of a lower
court is “where the finding is
inconsistent with crucial
documentary evidence on
record.” (Per Acquah JSC in the
Koglex (No.2) case
(supra). This was manifestly the
case here, where the learned
trial judge failed to give the
right weight to the Deed of
Assignment. Section 25(1) of
the Evidence Decree, 1975 (NRCD
323) provides that:
“Except as otherwise provided by
law, including a rule of equity,
the facts recited in a written
document are conclusively
presumed to be true as between
the parties to the instrument,
or their successors in
interest.”
This section thus establishes an
estoppel by written document
which is applicable to
the facts of this case.
Although section 25(2) creates
an exception to the rule in
respect of recitals of
consideration, the Defendant, in
my view, has been unable by his
parole evidence to establish
that he paid for the property in
dispute for his own
account.
However, the Defendant expresses
himself to be aggrieved by the
judgment of the Court of Appeal
and has appealed to this Court
for redress, on the following
original grounds of appeal:
“(i) The entire judgment
was against the weight of the
evidence
(ii)
The
learned appeal judges erred when
they disturbed the findings of
fact of the trial judge.”
In view of the agreement we have
expressed with the Court of
Appeal above, it
follows that we find no merit in
these grounds. In addition to
the assessment above
by the Court of Appeal of the
evidence on record, with which
we agree, we wish to
highlight the following evidence
on record as justification for
finding no merit in
these grounds of appeal.
In addition to the Deed of
Assignment, there was
considerable circumstantial
evidence on record tending to
prove that the true owner of the
Swedru property was
Opanyin Koranteng. Take, for
instance, this passage from the
cross-examination of
the Second Plaintiff, who
testified on behalf of all the
Plaintiffs (at p. 35 of the
Record):
“Q. Have you taken the
trouble to examine the Ex. B
that you tendered in.
A.
Yes.
Q.
How
many buildings are on the
property you are describing.
A.
They
are many.
Q.
Do you
want the Court to believe that
all the building were (sic) on
the land at the time of the
purported sale.
A.
No,
since the sale, there had been
an additional one building.
Q.
A
building of how many rooms.
A.
About
five rooms.
Q.
Do you
know the man who put up this
additional building.
A.
Yes.
Q.
Tell
the Court who built it?
A.
My
father Yaw Koranteng put it per
Kwame Addo.
Q.
Do you
know when these rooms were put
up?
A.
It was
around the 1980’s.
Q.
So in
effect you knew more about the
property before your father
died.
A.
I knew
a little.
Q.
Tell
the Court what you knew.
A.
During
the lifetime of my father, he
sometimes told us he was coming
down to Swedru to see his
brother as well as his
properties. At times when we
come together with our father, a
bulk of money used to be given
to our father by the brother
which our father told us was
proceeds from his properties.
Again about the additional
buildings, all I know is that
Kwame Addo came to my father at
Asamankese and discussed the
fate of the undeveloped land.
So my father told Kwame Addo to
use proceeds from the property
to put up an additional building
for him. This is all I know.
Q.
So
your earlier assertion that you
came to know about the property
through Ex B is not true.
A.
Yes, I
told the Court that it was
through the document Ex B after
my father’s death that I got to
know that property actually
belonged to my father.
Q I put it to you if
your case is that you got to
know that the property belonged
to your father through Ex. B
after your father’s death, then
your allegation that Kwame Addo
sought permission from your
father can’t be true.
A. It is true.”
This evidence provides
circumstantial evidence
corroborating the presumption of
ownership that flows from the
Deed of Assignment. However, it
might be objected that this
evidence is a mere affirmation
on oath by a Plaintiff of the
averments contained in the
Plaintiffs’ pleadings. To this
objection, the response would be
that there is corroborative
evidence from Plaintiffs’
witnesses. For instance, PW1,
Margaret Yaa Adjeiwaah, the
sister of the two deceased
brothers, in her
evidence-in-chief, said (at p.
37 of the Record):
“Q. Do you know how Yaw
Koranteng acquired his property.
A.
Yes I
know it.
Q.
Tell
the Court.
A.
Yaw
Koranteng was living at
Asamankese and came to buy the
land here, and as the brother
Kwame Addo was already living
here, he asked Kwame Addo to be
caretaker of the land for him.”
Another illustration of such
corroboration from the
Plaintiffs’ witnesses was the
evidence of PW3, Felix Kojo
Ntim. He said, at p. 49 of the
Record, in his
evidence-in-chief:
“Q. Do you know the parties
in this suit.
A.
Yes, I
know them all.
Q.
How do
you know them.
A.
I know
them to be my late uncles’
children.
Q.
Who
are these late uncles?
A.
They
are Kwame Addo and Yaw
Koranteng.
Q.
These
your late uncles – what was your
relationship with them.
A.
I
stayed with my late uncle Kwame
Addo from 1947 – 58.
Q.
After
1958, did you have anything to
do with the late Addo?
A.
After
leaving him in 1958, I went to
work in Accra and after having
accrued some money I came back
to my late Kwame Addo to put a
request before him.
Q.
What
was that request.
A.
I
requested some of his stores to
enable me trade in them.
Q.
Where
are these stores?
A.
They
are in the former UAC buildings
here in Agona Swedru.
Q.
What
happened when you made the
request.
A.
He
told me the stores are not for
him, that he was just a mere
caretaker; and he directed me to
see his younger brother Yaw
Koranteng at Asamankese.
Q.
Did
you go.
A.
Yes I
went.
Q.
Tell
the Court what happened.
A.
He Yaw
Koranteng gave me an appointed
day to meet him here in Swedru.
When I came here, he asked
whether there were some vacant
stores and I said yes; and he
allocated the empty store to me.
Q.
When
these were going on where was
your uncle, Kwame Addo?
A.
My
uncle Kwame Addo was present.
Q.
Tell
the Court what happened after
you had the shop.
A.
After
about five months, I was paying
rents for the store; so I
decided to see my uncle Yaw
Koranteng at Asamankese about
the rent. So he again gave me
an appointed day to meet him
here in Swedru. When he came,
he stopped me from paying rent
and since that time up till now
I have been in the store without
paying rent.
Q.
What
is your position in the family
now.
A.
I
inherited my late uncle Kwame
Addo.”
Such corroborative evidence has
led us to the conclusion that
the Court of Appeal was right to
reverse the findings of fact of
the learned trial judge. For,
the evidence led by the
Defendant is of much less weight
and does not include the
conclusive weight of a deed.
The Defendant has also filed an
additional ground of appeal,
with leave of this Court, to the
following effect:
“The appeal justices failed to
appreciate that on the true
construction of the exhibits
tendered by the
Defendant/Respondent/Appellant,
especially Exh. 2, in terms of
section 25(2) of the Evidence
Decree 1975 (NRCD 323), Yaw
Koranteng held the legal title
of the property in dispute upon
a resulting trust for Kwame Addo
as the beneficial owner of that
property.”
It is to the issue of law
embodied in this additional
ground and its factual
preconditions that we turn to
next. In essence, a resulting
trust, in this context, is a
legal presumption made by the
law to the effect that where a
person has bought property in
the name of another, that other
will be deemed to hold the
property in trust for the true
purchaser. It is a trust
implied by equity in favour of
the true purchaser or his
estate, if he has died. The
trust is regarded as arising
from the unexpressed or implied
intention of the true
purchaser. Obviously, though,
for such a resulting trust to be
implied, certain factual
preconditions must exist and the
issue is whether on the facts of
the current case a resulting
trust may validly be implied.
In the context of this case, the
main factual precondition is
proof that the beneficiary of
the resulting trust advanced the
purchase money for the
transaction.
On this issue, Eyre CB said in
Dyer v Dyer (1788) 2 Cox
Eq. 92 at p. 93; 30 ER 42 at p.
43
“The clear result of all the
cases, without a single
exception is that the trust of a
legal estate, whether taken in
the names of the purchasers and
others jointly, or in the names
of others without that of the
purchaser, whether in one name
or several; whether jointly or
successive – results to the man
who advances the purchase money.
… It is the established
doctrine of a Court of equity
that this resulting trust may be
rebutted by circumstances in
evidence.”
Thus, for a resulting trust to
be established, there has to be
proof that the purchase money of
the property was advanced by the
beneficiary of the resulting
trust. Accordingly, before a
resulting trust can be implied
on the facts of this case, one
has to accept that the
Defendant’s father, Opanin Kwame
Addo, advanced the purchase
price of the property in
dispute. This proposition,
however, is controverted by the
Plaintiffs and constitutes the
issue at the very heart of the
case between the parties. In
effect, therefore, the
invocation of a resulting trust
on these facts necessarily
carries with it a circularity.
One is therefore thrown back to
the evidence and the grounds of
appeal already dealt with,
namely, whether the weight of
the evidence supports the view
of the facts taken by the Court
of Appeal or the learned trial
judge.
The Plaintiffs’ case is that
Opanyin Kwame Addo entered into
the negotiations evidenced by
the Exhibits 1A to 1H as an
agent of their father, Opanyin
Koranteng. On this view of the
facts, a resulting trust cannot
arise since Opanyin Kwame Addo
was not the purchaser, but
merely an agent of the
purchaser.
The Defendant’s resulting trust
argument, however, relies on an
inference from the evidence that
the Defendant’s father did not
receive any purchase money from
his brother, but used his own
money. The inference is drawn
from the Affidavit, Exh. 2(at p.
126 of the Record) already
referred to, sworn to by Opanyin
Kwame Addo. In the Statement of
Case before this Court by the
Defendant, he makes the
following argument:
“Furthermore by paragraph 3 of
that affidavit Kwame Addo was
adding to his identification as
the purchaser who actually paid
the price of NC 9,000 to the UAC
who in turn issued the receipt
(Exh. A1, p.118 of the record)
to him. The final paragraph
immediately above the jurat and
deponent’s signature takes the
trouble to demonstrate to all
and sundry that he, Kwame Addo
as the verified true purchaser
is requesting the change from
his name into the name of his
brother Yaw Koranteng. Nowhere
does he give the slightest hint
that in the purchase of the
property he had been acting as
the caretaker or other agent of
Yaw Koranteng or that the
purchase money had been supplied
him by Yaw Koranteng to pass on
to UAC for the property. There
is no logical inference
possible, as the Appeal Court
appears to have assumed, that
the entire or comprehensive
change into the name of Yaw
Koranteng and/or the isolated
expression “the purchase price
has been paid in my name to UAC”
that the purchase price was
supplied by Yaw Koranteng. At
least, equally compelling is the
inference that Kwame Addo was
using his brother as a front
simply. Indeed the learned
trial Judge found that both
brothers were trying to deceive
the public, by reason of the
substitution of Yaw Koranteng’s
name. It is submitted that
construing Exh. 2 purely within
its own four corners it is wrong
to ignore the obvious insistence
that Kwame Addo was exclusively
the source of the purchase price
which he paid to UAC against the
receipt (Exh. 1A).”
We am not persuaded by this
argument because there is not
enough evidence on record to
prove on the balance of
probabilities that Opanyin Kwame
Addo paid his own money to the
UAC for his own account. By
asserting the existence of a
resulting trust, the Defendant
bears the burden of persuasion
of the factual precondition to
its existence. He therefore
needs to prove that the purchase
price paid by Opanyin Kwame Addo
was his own money and paid on
his own account. On the view of
the facts taken by the Court of
Appeal, which we share, he has
failed to do so.
Accordingly, we would dismiss
the additional ground of appeal
as well. In the result, the
appeal is dismissed.
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
R.T. ANINAKWA
JUSTICE OF THE SUPREME COURT
COUNSEL:
Adumua Bossman for the
Defendant/Appellant/Respondent
Bram Larbie for the
Defendant/Respondent/Respondent
gso* |
