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JUDGMENT
AMPIAH, J.S.C.:
On 23rd February, 2000, we gave
judgment in this appeal and
reserved our reasons; we now
proceed to give our reasons.
The late Amos Thomas Yalley of
the Ebiradze Family of Amanful
had in his Will disposed of
Houses Nos. 27/2 Ahanta Road and
58/2 Summer Road, all at
Takoradi to his son Amos Thomas
Yalley, Jnr., the defendant in
the action. The plaintiffs, the
head and member respectively of
the same family claimed that the
dispositions to the defendant
were unlawful as those
properties belonged to the
family. A dispute having thus
arisen over the issue, the
family sought a declaration from
the High Court that the
properties were family
properties: They prayed further
for an order ‘detaching’ the
properties from the estate of
the deceased.
It should be noted that in an
earlier abortive appeal at the
Court of Appeal, the defendant
had conceded that House No. 58/2
Summer Road, Takoradi was a
family property. Consequently,
the Court in ordering a
re-trial, had confined the
hearing only to House No. 27/2
Ahanta Road, Takoradi.
In the ensuing trial, the High
Court gave judgment for the
plaintiff declaring House No.
27/2 Ahanta Road, Takoradi as
family property. It said the
late Amos Thomas Yalley had no
testamentary capacity to dispose
of it to his son, the defendant.
The defendant appealed against
this decision to the Court of
Appeal which dismissed the
appeal and affirmed the judgment
of the Court below. Still
dissatisfied, the defendant
appealed to this Court. On
23/2/2000 we unanimously
dismissed the appeal.
The main issue which arose for
determination in the case was
whether or not the house was a
family property and if so
whether the late Amos Thomas
Yalley could dispose of it to
his son in his Will as if it
were his personal property.
At the trial, the Court found:—
1. That the land on which the
house was, was originally leased
to one Ekua Nkontomponyi, the
mother of the late Amos Thomas
Yalley and the 2nd plaintiff.
2. That Ekua Nkontomponyi had a
swish building on the land.
3. That Ekua Nkontomponyi died
in 1939 and the lease on the
land expired in June, 1954.
4. That upon Ekua Nkontomponyi’s
death, the late Amos Thomas
Yalley took possession of the
property and had the lease
re-newed in his name personally.
5. That the late Amos Thomas
Yalley, later had the swish
building on the land demolished
and “from his own resources
without the assistance from any
member of his family” had a
sandcrete block constructed in
its place.
6. That there was no proof of a
valid customary gift of the
property by Ekua Nkontomponyi to
the late Amos Thomas Yalley.
7. That the land and whatever
was put on the land by the late
Amos Thomas Yalley continued to
be family property, and
8. That whatever interest the
late Amos Thomas Yalley had in
the property was only for his
life and that upon his death,
the property reverted wholly to
the family as family property
and that the late Amos Thomas
Yalley had no capacity
customarily or otherwise to
dispose of it in his Will to his
son.
In his original Statement of
Defence, the defendant had
averred in paragraph 6 as
follows:—
“6. The defendant denies
paragraphs 6 and 7 of the
plaintiff’s Statement of Claim
and avers that the said property
was gifted to the late Amos
Thomas Yalley and he built House
No. 27/2 Ahanta Road, Takoradi
by himself alone without any
help from anybody.”
In his subsequent amended
Statement of Defence filed
pursuant to the Court’s Order on
24/10/91, the defendant however
did not rely on any alleged
gift, but averred,
“5. The said Ekua Nkontomponyi
was unable to perform the
building covenant in her lease
dated 10/9/29 until the lease
expired in or about 1954.
6. ........ that long after the
death of Ekua Nkontomponyi in
1939, the defendant’s father
applied for a lease of the same
land and after protracted
correspondence and negotiations
with the Land Department, a
lease dated 9:10:54 of the said
plot of land was granted to the
Defendant’s father after the
expiry of Ekua Nkontomponyi’s
lease.”
These later averments had
prompted the plaintiff’s reply
that—
“3. The plaintiff insists that
the plot was developed but was
converted into the name of the
defendant’s father when he
fraudulently represented to the
Lands Department that the late
Ekua Nkontomponyi gifted the
house to him and that he
preferred the lease to be in his
own name.” (vide paragraph
3 of the Plaintiff’s Reply to
the Amended Statement of
Defence).
The lease was renewed in 1954.
In an affidavit sworn to by the
late Amos Thomas Yalley, (this
affidavit was tendered in
evidence as Exh. B3) he said,
“para. 2. That I am the third of
the four surviving children of
Ekua Nkontomponyi my deceased
mother and her dying declaration
to the effect that I should take
the said house exclusively to
myself had never been
disregarded by my elder brother
Kofi Awotwe and that I have
appropriated the said house of
my deceased mother with their
consent and concurrence.”
This affidavit was dated 30th
June, 1950. It is quite clear
that long before the expiration
of Ekua Nkontomponyi’s lease,
the late Amos Thomas Yalley on
the assertion that the property
had become his by reason of an
alleged dying declaration or
gift, by his mother, had taken
possession of the property and
conceived an intention to have
the lease renewed in his name:
It was not that his late mother
had failed or was unable “to
perform the building covenant in
the lease”. The evidence shows
that Ekua Nkontomponyi had a
swish building on the land. The
lease had not expired when she
died. There was no evidence that
the right or hope of renewal of
the lease had in any way been
determined by the lessor. Since
the Court had found that there
was no valid gift of the
property by Ekua Nkontomponyi to
the late Amos Thomas Yalley, (an
issue which was unnecessary to
determine since the defendant
had resiled from that
contention), on the death of
Ekua Nkontomponyi the property
vested in the family as family
property, although the late Amos
Thomas Yalley had some sort of
possession of it. The Court also
never accepted the defendant’s
contention that his father had
renewed the lease in his own
name because Ekua Nkontomponyi
had not been able to fulfil a
building covenant in the lease.
In the circumstances, the late
Amos Thomas Yalley could have
held the property only as a
trustee for the family.
The laid down rule in Keech and
Sanford (1726) Sel Cast King 61,
25 ER 223 is that—
“…. Where a trustee obtains a
renewal of a lease in his name,
he will be held a constructive
trustee of the new lease.”
This is founded on the principle
that a trustee, with certain
exceptions may not either
directly or indirectly make a
profit from his relationship
which must be fiduciary.
In Biss vrs. Biss (1903) 2 Ch.
40, his Lordships held –
“There is no authority for the
general proposition that if a
person only partly interested in
an old lease obtains from the
lessor a renewal, he must be
held a constructive trustee of
the new lease, whatever may be
the nature of his interest or
the circumstances under which he
obtained the lease. A person
renewing is held to be a
constructive trustee of the new
lease if in respect of the old
lease he accepted some special
position by virtue of which he
owed a duty towards the other
persons interested.”
In Biss’ case (supra) however,
the Court observed,
"The evidence took the case out
of Ex parte Grace in that it
showed that the right or hope of
renewal had been determined by
the lessor himself before the
son intervened, so that the new
lease could not be treated as an
accretion to the estate of the
deceased, and also that the son
had in no way abused his
position nor stood in any
fiduciary relation towards nor
owed any duty to the other
persons interested in the
estate; and that he was
therefore entitled to retain the
lease for his own benefit.”
In the instant case, it has not
been shown that the right or
hope of renewal had been
determined by the lessor. When
the lease expired, Ekua
Nkontomponyi was dead. Whoever
was holding the lease did so of
the unexpired portion of the
lease. Since there was no
conduct by the lessor that it
intended to terminate the lease
or to refuse to renew it,
whoever held or was in
possession of the unexpired
portion of the lease had a duty
towards the family to renew it
on their behalf. The failure of
the late Amos Thomas Yalley to
renew the lease on behalf of the
family under the pretext that
the property had been given to
him under a dying declaration or
gift from his mother, breached
his fiduciary relationship
towards his family. He therefore
held the new lease as a
constructive trustee.
What interest then did the late
Amos Thomas Yalley have in the
property before his death? In
Ansah vrs. Sackey 3 WALR 326, it
was held,
“(i) The interest retained by a
family member in buildings
erected by him, using his own
private resources, on family
land otherwise unbuilt upon is
an interest limited to his own
life. Although the life interest
itself is fully alienable (e.g.
it can be given as security for
a loan) it is not open to the
life tenant, unless he acts with
the consent and concurrence of
the head and principal members
of the family to alienate any
greater interest or estate. On
the death of the life tenant the
interest in the property vests
in the family and any
disposition by the life tenant
purporting to have any other
effect is ineffective.
(ii) Where a family member,
using his own resources, builds
on family land by way of
addition or extension to
existing family property he
acquires no special rights in
the building he erects and these
are deemed to comprise family
property from the date of
erection.”
(See also the case of Owoo Vrs
Owoo (1945) 11 WACA 81).
Even though the case was a High
Court case, the pronouncement by
no less a person than our
esteemed Ollennu, J. (as he then
was), these principles have been
accepted by all our Courts as a
Statement of the custom and have
been acted upon accordingly.
The findings made by the trial
Court were supported by the
evidence on record. The Court of
Appeal accepted these findings.
In Koglex Ltd. (No. 2) Vrs. Kate
Field, this Court held, citing
the case of Achoro Vrs. Akanfela
(1996 – 97) SCGLR 209, that —
“Where the first appellate Court
had confirmed the findings of
the trial Court, the second
appellate Court would not
interfere with the concurrent
findings unless it was
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, was apparent in the
way in which the lower Court had
dealt with the facts.”
Both on the facts and evidence,
we find the findings by the
trial Court supported; we do not
have any justification to
disturb the decision of the
Courts below. Accordingly we
dismiss the appeal and affirm
the decision of the Courts
below.
JUSTICE A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
JUSTICE F.Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ACQUAH, J.S.C.:
I agree.
JUSTICE G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
I agree.
JUSTICE W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
AKUFFO, (MS.) J.S.C.:
I agree.
JUSTICE S.A.B. AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
EBO QUARSHIE FOR
DEFENDANT/APPELLANT
S.H. OCRAN FOR
PLAINTIFF/RESPONDENT
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