v

                                       KWESI BAA KORSAH                                    Defendant-Judgment Debtor

                                       KWAMIN A AMUAKU HAYFORD                    Claimant-Appellant.

 

 

pg 188 Appeal Court, 16th Dec., 1941.

   In an Interpleader action claimant appeared to she in his personal capacity whilst in fact he was suing as a beneficiary on behalf of himself and co-beneficiaries thus violating rule 1 Order 3 of third Schedule to Supreme Courts Ordinance which states that representative capacity must be stated in the writ.

      Appeal Court commented that a copy of a Will which was put in by' consent and accepted though not even a Probate copy should not be thus accepted as evidence of the contents.

      Robert Marmaduke Korsah owned an area of land in the centre whereof in 1928 he allowed his son the judgment debtor to build a house. In 1929 he executed a deed of Gift of the land in favour of his son. The claimant contended that the land on which the house stood and a small portion around it was all that was included in the gift and he claims for himself and his co-beneficiaries as residuary legatees· under Robert Marmaduke Korsah's WiIl the remaining larger portion of the land. The description of the land in the deed of gift and in a plan attached thereto are irreconcilable. It was admitted that both portions were in judgment debtor's possession at time of attachment but claimant claimed, under Order 44 Rule 25 (1) of Schedule 3 to the Supreme Courts Ordinance that judgment debtor was holding in trust for the claimant and his co-beneficiaries under the Will. Trial Judge found against the claimant because be did not believe claimant's story. He held that if there was any ambiguity in the deed then the boundaries must be looked at and in any event judgment debtor had so -long dealt with the whole property as his own that all were estopped from now claiming that only a portion was given.

  Held: (i) That best way to resolve the latent ambiguity in the deed of gift was to Iook to the conduct of the parties and from their conduct it is evident that the onus of proof upon the claimant had not been discharged.

          (ii) That it ~as not competent for' the learned trial Judge to find that the claimant was estopped as it had not been pleaded.

  Appeal dismissed.

K. A. Bossman for Appellant.

C. C. Carter for Respondents.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND M'CARTHY, J.

G. B. Ollivant, Limited, the plaintiffs-judgment-creditors­respondents, having obtained judgment in this suit against Kwesi Baa Korsah, the defendant-judgment-debtor, proceeded to attach under a Writ of Fi.Fa. an area of land at -Winneba which they believed to be the property of the defendant-judgment-debtor, and to cause the land to_ be advertised for sale by the Deputy Sheriff whereupon Kwamina Amuaku Hayford caused to issue an Interpleader Summons whereby the plaintiffs-judgment-creditors­respondents were called upon to show cause why the property seized in the suit should not be declared and adjudged to be his property and delivered to him accordingly. The matter was tried before Fuad, J., in the Divisional Court at Cape Coast. He found " that the immovable property, subject matter of these proceed­ings, was in the possession of the judgment-debtor as his own property" and dismissed the claimant-appellant's application with costs. Against that dismissal the claimant-appellant appeals to this Court.

There are several unsatisfactory features about the proceedings.

In the first place from the wording of the title to the suit "Kwamina Amuaku Hayford-Claimant" it seems that the claimant is claiming in his personal capacity only. This is borne out both by the wording of the summons" should not be declared " and adjudged to be the property of Kwamina Amuaku Hayford "the above-named claimant thereof, and delivered to him " accordingly", and by his counsel's opening in the Court below " The remainder of the land passed to the claimant under the "terms of a Will (probate of which was given to him) and now " belongs to him." On the other hand the claimant-appellant ill his affidavit in support of his application for the interpleader summons swore:-

" 1. That I am the claimant herein for myself and other " beneficiaries under the Will of the late R. M. Korsah whose consent " I have. pg 189

 That I make this Affidavit for myself and on behalf of the "other beneficiaries in support of application for an interpleader " summons to issue and for stay of execution pending the hearing and " determination of same."

This is the only formal intimation that the "other beneficiaries" were parties to the suit, and the learned trial Judge remarked in his judgment that they were conspicuous by their absence. The question of whether in fact they are or are pg 190 not parties to the suit is left in the air. Moreover the very identity of the other beneficiaries is left vague. The claimant said in evidence •• the beneficiaries are ten j six nephews and form "nieces. Some of the beneficiaries are now dead. My aunt is " 3till alive." He does not give any names or say which, or indeed how many, are dead. But colour is lent to the above-quoted clauses of claimant-appellant's affidavit when we turn to the Will mentioned in his counsel's opening. Claimant-appellant relies upon the terms of clause fJ uf the Will which are :'-

"5. After all expenses in connection with my son Kobina Arku "Korsa,h's profession are paid, I give and bequeath unto my sisters " and their children the residue of my real and personal catate."

Claimant-appellant is one of the children and it is obvious that any claim under that clause can only be as one of the beneficiaries, and that the claimant-appellant cannot found upon the clause a claim that the whole area should be adjudged his property. Counsel for the claimant-appellant does not pretend to make such a claim; his contention throughout has been on behalf of the claimant-appellant as a beneficary claiming on behalf of himself and his co-beneficiaries. If this is so it is in flagrant violation of Rule 1 of Order 3 of the third Schedule to the Courts Ordinance (Chapter 4), the relevant part of which reads:-

" If the plaintiff sues or any defendant is sued in any " representative capacity, it shall be expressed in the writ."

Even in this Court there has been no application to amend the form of the claim.

The second unsatisfactory feature of the proceedings relates to the description of the parcel of land in dispute. The interpleader summons describes it as "certain property consisting of " all that piece or parcel of land measuring 300 x 220 x 396 " x 200 feet, bounded on the north by New Street, on the south " by William Edward Richardson's land, east by New Street and "west by Alexander Road." This is in accordance with the description of the property attached given in paragraph 3 of the cIaimant-appellant's affidavit, but in paragraph 2 of the same affidavit he sets out what has been advertised for sale as "all " right title and interest of the judgment-debtor all that piece or " parcel of land with buildings thereon ::1ituate lying and being •• at Winneba in the Central Province of the Gold Coast and " bounded on or towards the north by a street on or towards the •• south by Quainoo and Micah's land on or towards the east by a " street and or towards the west by Victoria Street." On the face of it the two descriptions might be about two entirely different pieces of land, but they are supposed to refer to the same land. Counsel has told us that Alexander Road and Victoria Street are one and the same, but this only seems to make confusion worse confounded. Nor are matters helped when we turn to the plan attached to Exhibit 1 which figures so importantly in the case, for this shows Quainoo and Micah's land as north of the area in dispute, not south of it as set out in the above-quoted paragraph 3 of the claimant-appellant's affidavit. However, the parties do seem agreed about the area of land as to which they are actually disputing. It is common ground that there is an area of land which was in the possession of the judgment-debtor and surrounded by a wall erected by him; within this area is a smaller area of 120 feet· square marked out by pillars, and within that smaller area stands the judgment-debtor's substantial house. There is no dispute as to the smaller area of 120 feet square containing the house. The claimant-appellant admits that this is the judgment-debtor's property and makes no claim to it. The dispute is as to the area within the wall surrounding the smaller area marked out by pillars. This is included in the area attached, and the claimant-appellant, whilst admitting that the judgment­debtor was in possession of it, claims that it is the property of himself and his co-beneficiaries.

A third point as to which the proceedings were unsatisfactory is that the copy of the Will of Robert Marmaduke Korsah put in evidence by consent at the outset of the case is not even a probate copy. Counsel for the claimant-appellant had stated in his open­ing that probate of the Will was given to the claimant and this was not traversed, but there was no evidence of ,probate before the Court. This is not the proper way to prove the contents of a Will.

Briefly the facts of the case are that the whole area of land now enclosed within a wall built round it by the judgment-debtor, Kwesi Baa Korsah, originally belonged to his father, Robert Marmaduke Koraah. (For convenience this whole area may be called "the larger area.") Robert Marmaduke allowed his son K wesi Baa to build a house upon this area. The house was completed in 1928. "On the 4th May, 1929, Robert Marmaduke executed a deed of gift in favour of Kwesi Baa whereby he gave, granted and conveyed to K wesi Baa his executors administrators and assigns " All that piece or parcel of land situate lying 'and "being at Winneba in the Province and Colony aforesaid and " bounded on the north by Quainoo and Micah's land measuring " one hundred and twenty feet (120') more or less on the south "by Proposed Street measuring one hundred and twenty feet " (120') more or less on the east by Proposed Street measuring " one hundred and twenty feet (120') more or less and on the " west by Victoria Road and measuring one hundred and twenty " feet (120') more or less which said piece or parcel of land is ", more particularly delineated, in the plan drawn herein."

The plan referred to is merely a square of 120 feet showing Quainoo and Micah's land on the north, Victoria Road on the west and proposed streets on the south and east. pg 192

As pointed out by respondent's counsel this document contains a latent ambiguity, the description of the land being, upon examination, irreconcilable with the plan. It was obviously the 'donor's ,intention to give his son the land on which he had built a house with an area surrounding it, but it is admitted that 120 feet measured from Victoria Road on the west would not include the house, nor would it reach as far as Quainoo and Micah's land. It is largely upon how this ambiguity is to be resolved that this case turns. The respondents contend that the measurements must be ignored and - that the deed must be interpreted as giving to Kwesi Baa the whole of the larger area, the boundaries of which coincide with the description in the deed. The appellant on the other hand contends that the effect was to give to Kwesi Baa an area of only 120 feet square within the larger area and including the house. The area for which he contends may conveniently be called "the smaller area." It is now enclosed by pillars which the learned trial Judge found were erected in 1941.

Robert Marmaduke Korsah died some six months after executing this deed of gift. He left a Will made in 19,15, clause 5 of which read! as follows:-

" 5. After all expenses in connection with my son

, "Kobina Arku Korsah's profession are paid, I give and " bequeath unto my sisters and their children the residue of " my real and personal estate."

If the appellant's contention that it was only the smaller area that passed to Kwesi Baa is correct then the balance of the larger area would form part of the residuary estate of the !ieceased and pass under clause 5 of the Will to the beneficiaries: of whom the appellant is one.

After Robert Marmaduke's death, Kwesi Baa ,built a wall round the whole of the. larger area and performed a number of other acts which the respondents contend showed his ownership of all the larger area. He erected other substantial buildings upon the larger area but outside the smaller area and dealt with them as owner by leasing or mortgaging them. Inter alia he ,mortgaged one such building to the respondents themselves and this mortgage was still subsisting at the time of the attachment of the property, the respondents electing (as they were entitled to do) to proceed against the whole property by writ of Fi. Fa. rather than to rely upon the mortgaged property only to satisfy their claim.

The appellant's claim is preferred under Order 44 Rule 25 (1) of Schedule 3 to the Courts Ordinance, the material part of which reads as follows:-

 In the event of any claim being preferred to, Or "objection offered against, the sale of lands, or any other "immovable or movable propeJ1;y which may have been pg 193 attached in execution of a decree, or under any order of " attachment made before judgment, as not liable to be sold  in execution of a decree against the judgment debtor,. the Court shall, subject to the proviso contained in the next Kwesi Baa "succeeding rule, proceed to investigate the same with the like powers as if the claimant had been originally made a party to the suit, and if it shall appear "to the satisfaction of the Court that the land or other  immovable or movable property was not in the possession   of the party against whom execution is sought, or - of some "person in trust for him, or in the occupancy of persons paying rent to him at the time when the property was " attached, or that, being in possession of the party himself " at such 'time, it was so in his possession not on his -own "account, or' as his own property, but on ,account of, " or in trust for some other person, the. Court shall make an " order releasing the said property from attachment."

Since it is admitted that at the time of attachment the whole of the larger area was in the possession of the judgment-debtor, the rule clearly places upon the claimant the onus of making it appear to the Court that the debtor's possession was, as the claimant contends, on account of, or in trust for the claimant and his co-beneficiaries under the Will of Robert Marmaduke Korsah. So far from the claimant-appellant having discharged this onus in the Court below, the learned trial Judge found definitely that the property was in the possession of the judgment­debtor as his own property. The learned trial Judge delivered an oral judgment and recorded the following brief notes from it:-

"I 'do not believe evidence of claimant (one of the " beneficiaries--others conspicuous by t4eir absence) and of the "judgment-debtor, that land was measured and given to " judgment-debtor. Treatment of land by all parties; the "erection, by the judgment-debtor, of a mansion in the " middle of it without any , passage ' leading to it through " the land; the enclosing of the whole of the land by a wall "built to match the building; the putting up, by the "judgment-debtor, of other buildings on the land, and " exercising rights of ownership over them, such as leasing  them and mortgaging them, etc., show that the whole land " was given to judgment-debtor. Even if measured, it cannot now be identified; if any ambiguity in deed, then "boundaries must be looked at. Even if whole land not "intended', all are estopped now from stating that only a " portion was given .. Erection of pillars in 1941 with the " initials of the donor, who has been dead for 60 many years, " and isolating the building, a fraud and  after-thought . . " I don't believe that any. pillars existed before 1941. pg 194

 " I find that the immovable property, subject matter " these proceedings, was in the possession of the judgment " debtor as his own property.

"Application dismissed with costs-£2 2s counsel's "plus out-of-pocket expenses to be approved by the O( " later."

In substance the appeal is against the finding of fact at the debtor possessing as his own property, the claimant-appeal asking us to hold that the correct interpretation of the deed gift is that it passed only the smaller area to Kwesi Baa, and 1 the remainder of the larger area passed to the beneficiaries UI Robert Marmaduke's Will and is still their property, Kwesi : being in possession in trust for them.

We think that there is a latent ambiguity in the deed of and that the best way to resolve that ambiguity is to look to conduct of the parties even after the death of the donor. K' Baa treated the whole of the larger area as his own and claimant and his co-beneficiaries acquiesced in his so doing all the time that the present claim was made. As to why they so we venture no opinion. But, as we have already said, onus of proof was upon the claimant-appellant and we are q unable on the evidence to come to the conclusion that the decision of the Court below was wrong.

There is, however, one part of the learned trial Judge's n from his judgment to which we cannot subscribe. We refer the sentence " Even if whole land not intended, all are estople "now from stating that only a portion was given." It j cardinal rule that if a party relies upon estoppel he must p it. Although there were no pleadings in this case, there ' openings by counsel and they take the place of pleadings. for the respondents, in his opening, did not mention estoppel and though in his final address he quoted cases of estoppel, was not, in our opinion, sufficient to create a plea which requires to be answered, and it was not competent to the learned ' Judge to find that the claimant was estopped by conduct j preferring his claim. Apart from this, even if estoppel had' pleaded we do not agree that the claimant's' conduct was I as to create an estoppel against him. We think that the highest at which it can be put is that the claimant's conduct was that no Court would be likely to uphold his present content which is wholly inconsistent with it. But estoppel is only, : were, the second string to the bow, the first string, namely, finding of fact that the property was in the possession of judgment debtor as his own property, remains unimpeached.

The appeal is dismissed with costs assessed at £29 Is 0d.

26