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By his writ
of summons flied on 3rd April
2008 the plaintiff claimed
against the defendant the
following reliefs: (i) A
declaration that plaintiff is
entitled to the legal ownership
of fifty percent (50%) of all
trust shares constituted by the
trust instrument dated 26th
February 1999 and registered as
LVB 3090/1999 in conformity with
the terms of the trust (ii) An
order for the transfer by the
defendant to the plaintiff of
fifty percent (50%) Of all trust
shares in which the plaintiff
has a beneficial interest by
virtue of the trust instrument
dated 26th February 1999
aforesaid. (iii) An order
compelling the defendant to
execute the appropriate share
transfer certificates and to do
all things necessary to give
full effect and meaning to the
transfer of fifty percent (50%)
of all trust shares in the
companies named in the trust
instrument dated 26th February
1999 aforesaid. ( iv ) An Order
nullifying all acts deeds and
things done by the defendant
using and voting the plaintiff's
portion of the trust shares in
any of the named companies under
the trust instrument dated 26th
February 1999 without the
plaintiff's agreement, approval
or consent. (v) Perpetual
injunction restraining the new
directors nominated by defendant
at the Emergency General Meeting
Of Panbros Salt Industries Ltd.
held on or about December 17th
2007 and subsequently appointed
as such from holding themselves
out as regularly appointed
directors and from attending any
board meetings of the said
company; for the reason that the
defendant used and voted the
plaintiffs shares without his
agreement, approval or consent
contrary to the express/implied
terms of the trust instrument
aforesaid. (vi) Damages for
unauthorized dealings with the
plaintiff's portion of the said
trust shares. Further / in the
alternative. (vii) An order
terminating the declaration of
trust made on the 26th February
1999. (viii) Costs. The
plaintiff is a businessman
resident in Accra whilst the
defendant is a lawyer resident
in the United States of America.
The plaintiff and the defendant
are uterine brothers; two of the
children of the late Samuel
Christian Appenteng one of
Ghana's foremost and prominent
indigenous industrialist. The
plaintiff's case is that
sometime in 1999 he and the
defendants' father, the late
Samuel christian Appenteng
decided to give the parties
shares in various companies
owned by him (Samuel Christian
Appenteng). The plaintiff claims
that he 'suggested to their
father that as a matter of
convenience the shares be
transferred to the defendant to
be held in his (defendant's)
name and upon trust for the
benefit of both the plaintiff
and the defendant. Their father
then transferred the shares to
the defendant by transfer
instruments dated 25th February
1999. It is the case of the
plaintiff that in accordance
with their father's intention
the defendant executed a trust
deed by which he (the defendant)
declared that he was holding the
said shares on trust for himself
and the plaintiff in equal
shares. The plaintiff alleges
that the defendant has breached
the terms of the trust by
dealing with the shares the
subject matter of the trust deed
as defendant's exclusive
property and in a unilateral
manner prejudicial and
detrimental to his (plaintiffs)
interest. It is the further case
of the plaintiff that the trust
was no longer necessary and
should be brought to an end and
the defendant compelled by the
court to transfer 50% of the
shares the subject matter of the
trust deed to him. The defendant
dispute the plaintiff's case. It
is the case of the defendant
that he bought the shares the
subject matter of the trust deed
from his late father and that
the shares were his alone. He
said that without any compulsion
from anybody he decided to
settle or create the trust
firstly out of natural love and
affection for his uterine
brother the plaintiff herein and
secondly as an incentive and to
motivate the plaintiff who was
the Managing Director of Pan
bros Salt Industries Ltd. so
that the plaintiff would manage
the company in utmost good faith
and in a manner that would
benefit all shareholders of the
company. He contended that the
plaintiff did not honour the
trust reposed in him and rather
mismanaged Panbros Salt Industry
Company Ltd. and as a result the
purpose of the trust was thus
frustrated. The defendant says
that in any event the trust deed
is unenforceable as a matter of
law since at the time it was
created he the defendant did not
own the shares the subject
matter of the trust deed. Also
the defendant contends that
assuming without admitting that
the trust deed was enforceable,
he had revoked same by a deed of
revocation dated 11th February
2008. At the close of the
Pre-Trial Settlement Conference
the following issues were set
down as the issues for
determination at the trial:- I.
Whether or not the defendant as
settler has capacity . to settle
the trust property. ii. Whether
or not the judgment in Suit NO.
F95/2001 makes the issue about
ownership of the trust property
res judicata. iii. Whether or
not the plaintiff has come to
equity with clean hands. iv.
Whether or not the trust created
if valid is enforceable to the
extent that the intention of the
settler is frustrated. V.
Whether or not the transfer by
the Iate Samuel Christian
Appenteng of the corporate
shares mentioned in the deed of
transfer dated 25th February
1999 into the defendants name
was a matter of convenience and
that in truth the shares were
meant to be conveyed to both the
plaintiff and the defendant in
equal shares. vi. Whether at all
material times the defendant
knew that the late Samuel
Christian Appenteng intended
that the shares subject matter
of the deed of transfer dated
25th February 1999 were to be
held by the defendant in trust
for himself and the plaintiff in
equal shares. vii. Whether or
not the declaration of trust
made by the defendant on 26th
February 1999 which was drawn by
Professor G. K. A. Ofosu Amaah
(the late Samuel Christian
Appenteng's lawyer) was a
manifestation of the aforesaid
intention of the late Christian
Samuel Appenteng. viii. Whether
or not the declaration of trust
executed by • the defendant on
26th February1999 is valid and
enforceable. ix. Whether or not
the plaintiff is the beneficial
owner of one-half (1/2) of the
shares subject matter of the
trust created by the declaration
of trust dated 26th February
1999. X. Whether or not the
plaintiff is entitled to an
order compelling the defendant
to transfer legal ownership of
one-half (1/2) of the shares
constituting the trust to him.
xi. Whether by the provisions of
the-trust the defendant has
authority to unilaterally deal
with the corporate shares and
accrued dividends constituting
the trust without the agreement
of the plaintiff. xii. Whether
or not the judgment of the High
Court delivered on 18th November
2004 in Suit No. F95/2001 dealt
with the ownership of the
corporate shares subject matter
of the declaration of trust
dated 26th February 1999. xiii.
Whether or not the plaintiff's
appointment as Managing Director
of Pambros Salt Industries Ltd.
had any nexus with or relation
to the trust created by the
declaration of trust dated 26th
February 1999. xiv. Whether or
not the matters contained in
paragraphs 14-30 of the amended
statement of defence are
relevant to the consideration
and determination of this
matter. xv. Whether or not the
manner in which the alleged
forensic audit of Panbros Salt
Industries Ltd. was conducted
and the matters stated in
paragraphs 20-24 of the amended
statement of defence have . been
impugned by the judgment of the
Fast Track High Court dated 4th
July 2008 as being in breach of
due process and the principles
of natural justice. xvi. Whether
or not the trust deed made on
26th February 1999 has been
revoked by the defendant and if
so whether such revocation is
valid in law. xvii. Whether or
not the defendant is bound by
the declaration of trust made by
him on 26th February 1999 and is
in breach of its provisions.
xviii. Whether or not the
plaintiff is entitled to an
order terminating the trust
created by the declaration of
trust dated 26th February 1999.
The burden of persuasion in
civil cases is generally on the
person who asserts the
affirmative of an issue Section
11 (1) and Section 14 of the
Evidence Act 1973 (NRCD 323)
dealing with the burden of
producing evidence and the
allocation of the burden of
persuasion in civil cases
provides:- "11 (1) For the
purposes of this decree the
burden of producing evidence
means the obligation of a party
to introduce sufficient evidence
to avoid a ruling against him on
an issue. 14 Except as provided
by law, unless and until it is
shifted a party has the burden
of persuasion as to each fact
the existence or non—existence
of which is essential to the
claim or defence he is
asserting" The burden of
producing evidence is however
not fixed for as was held by the
Supreme Court in Ashalley Botwe
Lands; Adjetey Agbosu and others
vs. Kotey and others (2003-2004)
SCGLR holding 5:- "Under the
Evidence Decree 1973 (NRCD 323)
the burden of producing evidence
in any given case was not fixed
but shifted from party to party
at various stages of the trial
depending on the issues asserted
and /or denied” The plaintiff
gave evidence and called one
witness whilst the defendant
also gave evidence and called 5
witnesses. In his written
address filed on 28th April 2010
counsel for the plaintiff
submitted at page 4 paragraph 4
thereof in relation to reliefs
(iv) and (v) endorsed on the
writ of summons as follows:-
"The plaintiff appreciates that
reliefs (iv) and (v) endorsed on
the writ of summons have been
substantially dealt with by the
judgment of the Fast Track High
Court Coram Ofoe J (as he then
was) see Exhibit "C'. No useful
purpose would be served by
pursuing the said reliefs. Being
redundant, the said reliefs are
hereby abandoned" Counsel for
the plaintiff having abandoned
reliefs (iv) and (v) as endorsed
on the writ of summons those
reliefs are accordingly struck
out and it is therefore
unnecessary to determine the
preliminary matters raised by
counsel for the defendant in his
written address in relation to
those reliefs that is (iv) and
(v). In view of the nature of
the issues set down for trial
and the evidence led I propose
to deal firstly with issues
concerning the transfer of
shares by Samuel Christian
Appenteng to the defendant and
secondly deal with the issues
concerning the Trust Deed
executed by the defendant. The
plaintiff led evidence to show
that the shares the subject of
the Trust Deed were originally
owned by the father of the
parties Samuel Christian
Appenteng. He said that their
father later in his life time
decided to transfer the said
shares to the defendant and
himself (the plaintiff) He said
that after their father had
invited the defendant and
himself and told them about his
intention to transfer the shares
to them, he the plaintiff
decided that for convenience and
to draw less attention to
himself as the Managing Director
of Panbros Salt Industries Ltd.
he suggested to his father that
the shares be transferred into
the name of the defendant and
the defendant would then execute
a Trust Deed to show that he was
holding the shares in trust for
himself and the plaintiff. The
shares concerned were shares in
Panbros Salt Industries Ltd,
Intravenous Infusions Ltd,
Appenteng Mensah and Company and
shares in Vacuum salt Ltd. This
is how the plaintiff put it in
his in evidence-in-chief when he
was led by his counsel:- "Q. You
have brought the defendant to
this court over a dispute, tell
the court what the dispute is
about A. The dispute in general
terms is in relation to shares
that were previously held by our
late father in his various
companies, a portion of which he
gave to the two of us as a gift
sometime in early 1999. Q. How
did he give these shares out. A.
I think he had been thinking
about it for some time and it
reached a time, I think late
1998 or early 1999 when he
decided he would off-load some
of his personal shares in his
various companies to Kofi and I,
and specifically in January 1999
he invited the two of us to his
house for a discussion which I
live next door at Airport
Residential Area. He invited us
for a discussion with him and he
told us that he had decided to
give shares in the following
companies to us. These companies
were Panbros Salt Industries
Ltd, Intravenous Infusions Ltd,
Appenteng Mensah and Company
which is a holding company that
has shares in Vacuum salt Ltd.
and Intravenous as well. Q So
how did he set about giving
those shares to you. A. He told
us that he had made up his mind
and what he wanted to do and
what he expected us was to show
leadership in these companies
and take them forward. He was
now in an advanced stage in his
life, he was in his early 80's
and that was the decision he
took. We discussed this with him
in his house and we thanked him.
It was actually my idea and for
convenient that the fact that I
live in Ghana and was the
Managing Director of Panbros
Salt Industry at the time and
was playing a major role in all
his business, my brother lived
in America, I decided that I
will prefer the shares be put in
trust, le put in Kofi's name and
have the shares held in trust
for the immediate time. Q. How
did he effect the transaction.
A. His initial response was that
he thought that an agreemert
between the two of us and a
handshake will suffice and that
the trust was not necessary but
I insisted I would prefer it
like that and I did not explain
why and I suggested his
corporate lawyer as well as his
substitute director of Panbros
Salt at the time and the man who
acted in the chair when he was
absent at meetings. Professor
Ofosu Amaah and I suggested that
Kofi and I could go and see
Professor Ofosu Amaah and
discuss this matter with him and
as a senior lawyer he could know
the best way in which to prepare
the document which would be
signed to cover the terms of the
trust". The plaintiff said based
on the discussions and the
intention of their father
portions of his shares in
various companies were
transferred to the defendant to
be held in trust for himself and
the plaintiff. According to the
plaintiff, a day after their
father had transferred the
shares to the defendant, the
defendant executed a Deed of
Trust declaring himself a
trustee of the shares received
from Samuel Christian Appenteng
for himself and the plaintiff.
The plaintiff said that the
shares were a gift from their
father and were not sold to the
defendant and the defendant did
not pay for the shares. On the
other hand the defendant said
that he bought the shares the
subject matter of the Deed of
Trust from his father. He said
his father's intention in
selling the shares to him was to
ensure that after his (father's)
death he the defendant would be
the controlling shareholder. He
said after he had purchased the
shares from his father, he the
defendant created the trust as a
way of motivating his brother
the plaintiff who was the
Managing Director of Panbros
Salt Ltd. He said his intention
in creating the trust was that
he (the defendant) would have
the voting power and control but
that when it came to things like
dividends or selling the shares
or any financial benefit then he
will take a decision in
agreement with the plaintiff. He
said that in any case the
purpose of the trust was
frustrated as the plaintiff
mismanaged Panbros Salt Company
Ltd. of which he was the
Managing Director. In view of
that he revoked the Deed of
Trust by a deed of Revocation
which he tendered in evidence as
Exhibit '3' There is no dispute
that the shares the subject
matter of the dispute in this
case were originally owned by
Samuel Christian Appenteng the
father of the plaintiff and the
defendant. The evidence shows
that the shares were as follows:
(i) 40,000 shares in Panbros
Salt Industries Ltd, (ii) 8800
shares in Intravenous Infusions
Ltd, (iii) 2600 shares in
Appenteng Mensah and Company
Ltd. (iv) 12000 shares held in
Intravenous Infusions Ltd. by
Appenteng Mensah and Company.
(v) 124000 shares held in Vacuum
Salt Product Ltd. by Appenteng
Mensah and Company Ltd. These
shares were transferred to the
defendant by Samuel Christian
Appenteng himself and Appenteng
Mensah & Company Ltd. The
evidence shows that Appenteng
Mensah & Company Ltd. was a
holding company established by
Samuel Christian Appenteng and
as a holding company it (the
holding company) owned the
shares in Intravenous Infusions
Ltd. and Vacuum salt Ltd. These
shares were transferred to the
defendant on 25th February 1999.
Whereas the plaintiff says these
transfers were a gift to both
the defendant and himself by
their father, the defendant says
that he bought the shares from
his father. The plaintiff
tendered Exhibit 'L' the Deed of
Transfer of Shares from Samuel
Christian Appenteng to the
defendant in respect of the
transfer of 2600 shares held by
Samuel Christian Appenteng
(described in the document as
transferor) in Appenteng Mensah
& Company Ltd. to the defendant
S (described in the said
document as transferee). The
defendant also tendered Exhibit
'2' the Deed of Transfer in
respect of the transfer of
40,000 shares in Panbros Salt
Industries Ltd. from Samuel
Christian Appenteng to Kofi
Appenteng. Exhibit 2 like
Exhibit 'L' also describes
Samuel Christian Appenteng as
the transferor and Kofi
Appenteng as Transferee. For the
avoidance of doubt I set out
Exhibit 'L' in extenso: THIS
DEED OF TRANSFER OF SHARES MADE
this 25th day of February 1999
between Samuel Christian
Appenteng of No. 10 Narku Ipan
Street, Airport Residential
Area, Accra in the Greater Accra
Region of the Republic of Ghana
(transferor) on the one part and
Kofi Appenteng of 134 GALLOW
HILL, REDDING CT USA.
(transferee) of the other part.
WITNESS THAT IN CONSIDERATION of
the payment of Two Thousand Six
Hundred Cedis (¢2600) by the
transferee to the transferor,
the transferor hereby transfers
to the transferee 2600 shares in
Appenteng Mensah and Company
Ltd. IN WITNESS WHEREOF the
parties hereto have hereunto set
their hands and seals the day
and year first above written
SIGNED SEALED AND DELIVERED by
Samuel Christian } Appenteng the
transferor herein in the
presence of (sgd) Name: Emmanuel
Kwasi Mensah Occupation: Legal
Practitioner Address: P .0 .Box
314, Accra. SIGNED SEALED AND
DELIVERED by Kofi Appenteng the
transferee herein in the
presence of (sgd) Name: Emmanuel
Kwasi Mensah Occupation: Legal
Practitioner Address: P. 0. Box
314, Accra." As can be seen
Exhibit 'L' states categorically
that the defendant herein that
is the transferee paid Two
Thousand Six Hundred Cedis
(¢2600) to the transferor Samuel
Christian Appenteng for the 2600
shares held by him in Appenteng
Mensah and Company Ltd. Exhibit
2 the Deed of Transfer in
respect of the transfer of 40000
shares in Panbros Salt Industry
Company Ltd. by Samuel Christian
Appenteng to the defendant is an
exact repetition word for word
of Exhibit 'L', except for the
company whose shares were being
transferred and the amount paid
for the shares. Exhibit 2 like
Exhibit 'L' also states clearly
that the transferee Kofi
Appenteng had paid Forty
Thousand Cedis (¢40000) to the
transferor Samuel Christian
Appenteng for the 40000 shares
in Panbros Salt Industry Company
Ltd. Although Exhibits 'L' and 2
state categorically that the
defendant paid the sums stated
therein for the shares, the
plaintiff insists that those
amounts were token amounts
stated in the documents but the
defendant never really paid
those amounts. On the other hand
the defendant gave the following
reasons under cross- examination
for his father accepting those
small amounts as payment for the
shares. He said under
cross-examination by counsel for
the plaintiff:- Q. How much did
you pay for the shares, the
transfer of the 40% shares to
you A. If I recall I think it
was ¢40000 Cedis Q. Would it be
accurate to say that it was
merely a nominal value. A. I
would not use the word nominal,
I would say there was no effort
by my father to sell the shares
to me for the maximum that he
could, the idea came from him
and he wanted to make it
possible for me to buy the .
shares, so I assume that the
value he put on it was the one
he knew I could handle because I
did not approach him to buy the
shares, he told me that he
wanted to do so" Mr. Emmanuel
Kwasi Mensah an Accra Lawyer who
the evidence shows was a
lifelong friend and legal
adviser to Samuel Christian
Appenteng gave evidence for the
defendant as DW1. Mr. Emmanuel
Kwasi Mensah was the one who
witnessed the documents of
transfer of shares Exhibit 'L'
and Exhibit 2. He said that
although he did not see the
defendant paying for the
shares-Mr. Samuel Christian
Appenteng informed him that he
had received consideration for
the transfer of the shares to
the defendant. With regard to
the issue of transfer and
payment for the shares, it is
necessary to refer to a judgment
of his Lordship Justice Yaw
Appau delivered on 18th November
2004 in Suit No. F95/2001 in the
High CourtAccra. That judgment
was tendered in evidence by the
plaintiff as exhibit'F'. It is
necessary to give the background
and the issues determined in
that case in order to put the
said judgment in its proper
perspective. That suit F95/2001
was a probate action related to
the Last Will and Testament of
Samuel Christian Appenteng. That
Suit was entitled:- "In the
Matter of the Estate of Samuel
Christian Appenteng (deceased)
In the Matter of an Application
by Kwaku Koranteng Appenteng,
Leon Appenteng and Kwabena
Appenteng (Executors/Trustees)
for the grant of Probate of the
Last Will and Testament of
Samuel Christian Appenteng
(deceased) And Karikari
Appenteng - Plaintiffs Kofi
Appenteng Vs: Kwabena Appenteng
Kwaku Koranteng Appenteng Leon
Appenteng - Defendants.
(Consolidated) The three
defendants in that suit Kwabena
Appenteng, Kwaku Koranteng
Appenteng and Leon Appenteng
were the executors of the Last
Will and Testament of Samuel
Christian Appenteng. On the
death of Samuel Christian
Appenteng the three defendants
as executors of his Last Will
and Testament applied to the
High Court Accra for probate of
the Last Will and an attached
Codicil. The plaintiffs therein
Karikari Appenteng and Kofi
Appenteng caveated and later
brought the said action against
the 3 executors claiming in the
Suit that the codicil attached
to the will could not have been
executed by Samuel Christian
Appenteng and for an order
expunging the said codicil from
the Will of Samuel Christian
Appenteng, The 2nd defendant
therein Kwaku Koranteng
Appenteng disassociated himself
from the statement of defence
filed originally for all 3
defendants incidentally by
Lawyer Ken Brookman Amissah and
filed a separate statement of
defence. In his separate
statement of defence the 2nd
defendant Kwaku Koranteng
Appenteng counterclaimed against
the 2nd plaintiff therein Kofi
Appenteng alone for the
following reliefs:- i. A
declaration'' that the
Instrument of transfer dated
25th February 1999 transferring
40% of the shares in Panbros
Salt Industries Ltd. to the 2nd
plaintiff is a forgery and
therefore null and void. ii.
Alternatively an order setting
aside or cancelling the
agreement for the transfer of
the shares as having been
procured by undue influence or
as being unconscionable or
unfair or as based on a
fundamental mistake. III. A
declaration that the
registration of the transfer was
unlawful and illegal as the
instrument is unstamped in
accordance with law" It is worth
stating that the 2nd plaintiff
in that case suit No F25/2001 is
Kofi Appenteng the defendant in
the present suit whilst the 3rd
defendant Leon Appenteng in that
suit is the plaintiff in this
present suit. At page 8 of the
said judgment exhibit 'F' this
is what Appau J (as he then was)
said:- "With regard to the
transfer of the 40% shares to
the 2nd plaintiff, the 1st and
3rd defendants contended that it
was their late father who
effected the transfer so it was
valid. As the owner of the
shares he had every right to
transfer any quantity at all to
any of his children for any
consideration that appeared to
him to be sufficient and nobody
could question that" Again at
page 24 of the judgment exhibit
'F' his Lordship Appau delivered
himself thus:- "The fact is that
the evidence before me is clear
and without any doubt whatsoever
that the transfer of the 40%
shares in Panbros Salt
Industries Ltd to the 2nd
plaintiff Kofi Appenteng was the
act of the late Samuel Christian
Appenteng and therefore genuine.
Infact there is nothing forgery
about it. The late Samuel
Christian Appenteng therefore
died possessed of only 60% out
of the original 100% shares he
owned in Panbros Salt Industries
Ltd with 40% belonging to the
2nd plaintiff Kofi Appenteng
since August 1999 when the share
certificate was finally issued
and registered" As can be seen
the issue of the validity or
otherwise of the 40% shares
transferred to the defendant by
Samuel Christian Appenteng was
clearly raised in the said suit
No. F95/2001 and was determined
by Appau J. (as he then was) The
plaintiff was a party in that
suit, indeed he was the 3rd
defendant in that suit and as
can be seen from the judgment
Exhibit 'F' in that suit the
plaintiff herein as the
3defendarIt in that suit clearly
admitted that the shares were
transferred to his brother the
defendant herein by their late
father Samuel Christian
Appenteng. In their book the
Doctrine of Res Judicata (1969
2nd ed) the learned authors
Spencer Bower and Turner stated
at page 151 that:- "Where one
cause of action has been the
subject of final adjudication
between parties, those
determinations of particular
issues which are its essential
foundation without which it
could not stand may be used as
the basis of issue estoppel
between the same parties when
another cause altogether is set
up" In New Brunswick Rail Co.
vs. British French Trust
Corporation Ltd (1939) Ac 1 at
page 19-20 H.L. Lord Maugham
explained the doctrine of
estoppel per rem judicatam in
the following words:- "The
doctrine of estoppel is one
founded on consideration and
good sence. if an issue has been
distinctly raised and decided in
an action, in which both parties
are represented it is unjust and
unreasonable to permit the same
issue to be litigated afresh
between the same parties or
persons claiming under them"
Also in Ababio vs. Kanga (1932)
1 WACA 253 at page 254 Deane
C.J. stated in determining
whether res judicata applied in
a case as follows:- "Now the
first requisite in a case of
this kind is to be clear about
our terminology. Estoppel per
rem judicatam is the rule that a
final decision of a court of
competent jurisdiction, once
pronounced between parties
cannot be contradicted by any
one of such parties as against
any other such parties in any
subsequent litigations between
them respecting the same subject
matter. The word parties must be
taken as including privies, a
privy being a person whose title
is derived from and who claims
through a party" Also see the
case of Atta Panyin vs. Nana
Asani II; Atta Payin & another
vs. Essuman (Consolidated)
(1977) 1 GLR 83.The plea of
estoppel per rem judicatam was
thus applicable not only to the
substantial issues but all
matters that impinge on the
issue. In my view Leon Appenteng
the plaintiff herein as the 3rd
defendant in suit No. F25/01
having admitted that the 40%
shares in Panbros Salt
Industries Ltd were validly
transferred to the defendant by
their father for any
consideration that appeared to
him to be sufficient and nobody
could question that, he could
now in this present suit not be
heard or permitted to raise the
issue once again in this suit.
He is estopped from raising that
issue again. The evidence
further shows that on 5th August
1999 the Board of Directors of
Panbros Salt Industries Ltd at a
meeting approved the
registration of the share
transfer from Samuel Christian
Appenteng to the defendant and
subsequently the share transfer
was formally registered and the
defendant was issued with share
certificate in respect of the
40% shares In panbros Salt
Industry Company Ltd. This is
borne out clearly by Exhibits 10
and 11 which are minutes of
meetings of the Board of
directors Panbros Salt
Industries Ltd. I find on the
evidence therefore that the 40%
shares in Panbros Salt
Industries Ltd. were validly
transferred to the defendant by
the transferor Samuel Christian
Appenteng for valuable
consideration. It is clear that
it was only the issue of the
validity of the transfer of the
40% shares in Panbros Salt
Industry Company Ltd. by Samuel
Christian Appenteng to the
defendant that was determined by
Appau J in Suit No. F25/2001. It
is also clear from the judgment
Exhibit 'F' and from the issues
raised in that suit that no
Issues relating to the Trust
Deed the subject matter of this
present litigation was raised
and determined by Appau J in
that suit. The fact that issues
concerning the Trust Deed were
not raised and determined in
suit No.F25/2001 is admitted by
both counsel in this present
suit. The plea of estoppel per
rem judicata cannot therefore
affect issues relating to the
validity or enforceability of
the Trust Deed to which issues I
now turn my attention. The
evidence of both the plaintiff
and defendant shows that almost
contemporaneously with the
execution of the share transfer
deeds exhibit 'L' and 2
transferring the shares from
Samuel Christian Appenteng to
the defendant herein he the
defendant also executed a Deed
of Trust declaring himself a
trustee of the shares received
from Samuel Christian Appenteng
for himself and his brother the
plaintiff. I say "almost
contemporaneously" because the
share transfer deeds Exhibits
'L' and Exhibit 2 were executed
on the 25th February 1999 and
the very next day 26th February
1999 the defendant executed the
Trust Deed. The Trust Deed
executed by the defendant was
tendered in evidence by the
plaintiff as Exhibit 'A'. For
the avoidance of doubt I set out
in extenso the Declaration of
Trust executed by the defendant
Exhibit 'A': THIS DECLARATION OF
TRUST is made this 26th day of
February 1999 by Kofi Appenteng
of 134 Gallows Hill Road,
Redding CT 06890 USA. (Settlor)
WHEREAS (1) The Settlor has
received transfers of shares
from Samuel Christian Appenteng
and Appenteng Mensah & Company
Ltd. to wit 40000 shares in
Panbros Salt Industries Ltd,
8,800. shares in Intravenous
Infusions Ltd, 2600 shares in
Appenteng Mensah and Company
Ltd. all from Samuel Christian
Appenteng, and 12000 shares in
Intravenous Infusions Ltd, and
124,000 shares in Vacuum SaIt
Product Ltd. from Appenteng
Mensah & Company Ltd. (2) The
Settlor now wishes to declare
himself trustee of the shares on
the following trust and subject
to the provisions of this deed:-
NOW THIS DEED WITNEESESS AS
FOLLOWS:- As and from the date
of this Deed the Settlor shall
hold the shares and all
dividends accrued or to accrue
upon trust for the Settlor and
Leon Kendon Appenteng and their
successors in title in equal
shares and agrees to transfer,
pay, and deal with the shares,
and the dividends and bonus
shares if any, payable or given
in respect of same in such
manner as he and Leon Kendon
Appenteng shall from time to
time agree. IN WITNESS whereof
the said KOFI APPENTENG has
hereunto set his hand and seal
the day and year first above
written. SIGNED SEALED AND
DELIVERED ] by the above —named
KOFI APPENTENG ] Kofi Appenteng
in the presence of .... ] (sgd)
NAME: JENNIFER ABENA —DADZIE
(SGD) ADDRESS: LEXCOM ASSOCIATES
P. 0. BOX 11428 ACCRA-NORTH
GHANA." The undisputed evidence
shows that this Deed of Trust
Exhibit 'A' was prepared by
Professor G.K. A. Ofosu Amaah
who had also prepared the Deed
of Transfer of shares Exhibits 2
and 'L'. Professor G.K. A. Ofosu
Amaah was the lawyer for
companies owned by Samuel
Christian Appenteng and was also
the substitute director of
Samuel Christian Appenteng on
the board of Panbros Salt
Industry Company Ltd. and
chaired meetings of the said
board in the absence of Samuel
Christian Appenteng. In their
book Modern Equity (15th ed) the
learned authors Hanbury & Martin
describe a trust as "a
relationship recognized by
equity which arises where
property is vested in a person
or persons called the trustee
(s) which those trustees are
obliged to hold for the benefit
of other persons called cestui
que trust or beneficiaries" B.
J. da Rocha and C.H.K Lodoh in
their book Ghana Land Law and
Conveyancing (2nded) at page
105-106 define a trust as "a
concept in equity whereby one
person (called the trustee)
holds the nominal or legal title
in property which has been made
available to him by another
person (called the settlor) for
the benefit of some other person
(called the beneficiary)." In
the case of Soonboon Seo vs.
Gateway Worship Centre (2009)
SCGLR 278 the Supreme Court
discussed extensively the
creation and constitution of a
trust and referring to da Rocha
and Lodoh's Ghana Land Law and
Conveyancing (supra) the court
said per Sophia Akuffo .J.S.C at
page 294 of the report that:- "A
trust may be completely
constituted in two (2) ways: (a)
by the settlor conveying the
property to the trustees or (b)
by the settlor declaring himself
to be a trustee for the intended
cestui que trust. Until the
property is conveyed to the
trustee or the settlor declares
himself as a trustee for the
intended cestui que trust, the
trust is incompletely
constituted The effect of an
incompletely constituted trust
is that, only beneficiaries who
have given Value (not
volunteers) can enforce it and
the court will only perfect the
trust in favour of the one who
has given value, following the
maxim "Equity considers as done
that which ought to be done" It
is clear from the trust deed
exhibit 'A' that the defendant
chose the second option of
creating a trust that is by
declaring himself to be a
trustee of the shares for
himself and the plaintiff. In
effect the defendant had a dual
position; he was the settlor and
at the sametime a beneficiary or
cestul que trust, the other
beneficiary or cestui que trust
being his brother the plaintiff.
I find that by declaring himself
a trustee for the intended
cestul que trust that is himself
and the plaintiff, the trust was
completely constituted. Indeed
in my view exhibit 'A' the Trust
Deed was an express trust. It
was Lord Langdale M. R. who in
the case of Knight vs. Knight
(1840) 3 Beav 148 at 173 stated
that for the creat3on of an
express trust three (3) things
are necessary:-viz: (i) The
words must be so used that on
the whole they ought to be
construed as imperative. (ii)
The subject-matter of the trust
must be certain and (iii) The
objects or persons intended to
have the benefit of the trust
must also be certain. These
three (3) elements are generally
called "the three certainties"
in the law of trust. Thus the
language of the instrument must
not leave any doubt that a trust
was intended and this must be
clear from an examination of the
instrument as a whole and the
property to be held in trust
must also be certain. In Snells
Equity (31st ed) paragraph 20-25
at page 492, the learned author
states as follows:- "The
paramount certainty is that of
subject matter in the first
sense, if there is no certainty
as to the property held upon
trust, the entire transaction is
nugatory. Next if that certainty
is present but there is no
certainty of words, the person
entitled to the trust property
holds free from any trust.
Finally if both these
certainties are present but
there is uncertainty of objects
there is a resulting trust for
the Settlor" Looking at the
trust deed Exhibit 'A', it
cannot be disputed that all the
3 certainties are present. The
words used in the deed are
clear, certain and unambiguous.
The Settlor uses the imperative
words 'the Settlor shall hold
the shares and all dividends
accrued or to accrue upon trust
for the Settlor and Leon Kendon
Appenteng............” The words
are clear and leave no doubt as
to the creation of a trust. The
property or the subject matter
of the trust-deed is not in
doubt; these are the shares
received from Samuel Christian
Appenteng and Appenteng Mensah
and Company Ltd; and finally the
objects or persons intended to
have the benefit are not in
doubt; they are the plaintiff
and the Settlor himself the
defendant (ie the beneficiaries
or cestui clue trust). There is
therefore no doubt that the
defendant as Settlor intended to
create and did create an express
trust. The plaintiff's evidence
was that the execution of the
trust and the creation of same
by the defendant was on the
instructions of their father
Samuel Christian Appenteng whose
original intention in
transferring the shares to the
defendant was that he should
hold it in trust for himself and
on behalf of the plaintiff. On
the other hand the defendant
disputes this assertion and said
that he bought the shares from
his father for valuable
consideration and that he then
voluntarily executed Exhibit 'A'
declaring himself trustee of the
shares for himself and the
plaintiff. The defendant also
contended that in any event the
trust deed was unenforceable. He
said further that in any event
he had revoked the trust deed by
a Deed of Revocation which he
tendered in evidence as Exhibit
3. I shall deal with the issue
of the enforceability or
otherwise of the trust
instrument and the revocation
thereof presently. I have
already held that the plaintiff
bought the shares from his
father Samuel Christian
Appenteng. But as I listened to
the evidence of the parties and
their witnesses I kept wondering
whether Samuel Christian
Appenteng the father of the
parties knew of the execution of
the Trust Deed. Whereas the
plaintiff said that their father
Samuel Christian Appenteng knew
of the execution of the trust
deed and indeed instructed that
it should be prepared in line
with his intention of giving the
shares to both the plaintiff and
the defendant, the defendant
denies this and says that their
father did not know of the
execution of the Trust Deed
until much much later that is
long after its execution.
Kantinka Dr. Kwame Donkor
Fordwuor an eminent economist
and former President of the
African Development Bank in
Abidjan gave evidence for the
defendant as defendant fourth
witness (DW4). From his evidence
he was a life long friend of
Samuel Christian Appenteng and
knew the plaintiff and the
defendant very well as a result
of which he said he was not keen
on giving evidence in this case
but for the subpoena served on
him. He described both parties
as his "nephews". His evidence
was that he had been told by
Samuel Christian Appenteng
during his life time that he had
decided to give 40% shares in
Panbros Salt Industry Ltd. to
the defendant Kof1 Appenteng. He
said however that he did not
know if indeed Samuel Christian
Appenteng formally transferred
the shares to Kofi Appenteng.
When he was cross-examined by
counsel for the plaintiff in
respect of the trust deed his
answers were very revealing.
This is what transpired when he
was cross- examined by counsel
for the plaintiff in respect of
the trust deed:- Q. Were you
aware of any arrangement between
Leon Appenteng and Kofi
Appenteng concerning this
alleged intention the old man
had in 1996. A. No, it was only
after the death of their father
and way subsequently that Leon
Appenteng came to me to say that
he had reached a trust agreement
with Kofi because their father
had instructed that it be done
and my first question to Leon
was why would your father leave
out Charles, if it is going to
be a trust why would Charles'
name not feature but only the
two of you to share the 40%. I
did not get a satisfactory
answer. Q. Did you ask Kofi. A.
I asked Kofi too, that how come
you have been able to issue, you
have signed this when infact you
have a younger brother who
deserves a portion of this. Q.
In effect you can confirm that
there was a private arrangement
between Leon Appenteng and Kofi
Appenteng. A. No I am not
confirming it, they told me that
daddy had asked them to do a
trust. Q. They both told you
that. A. Yes. Counsel for the
defendant Mr. Bediatuo Asante
clearly not comfortable with the
answers of his witness in
cross-examination sought to
clarify matters by re-examining
the witness and the answers of
Kantinka Dr. Kwame Donkor
Fordwuor in re-examination were
even more revealing. This is
what transpired between Mr.
Bediatuo Asante and his
witness:- Q. You mentioned that
Leon Appenteng had given you
this piece of information and
later upon questioning by my
learned friend you also said
that "they told you", when did
Kofi Appenteng tell you that his
father had asked the trust be
created. A. Leon Appenteng came
to tell me that his brother had
brought a loan and the loan was
geared more or less to give
Panbros to the
Americans......... After I had
overruled an objection by
counsel for the plaintiff to the
effect that the witness was
leading fresh evidence in
re-examination the witness
continued his answer which had
been interrupted by counsel's
objection. He said:- A. It was
just to explain how Kofi
Appenteng came into this whole
question of trust because Leon
Appenteng was the first to show
me the trust document and I
wanted a way of checking with
Kofi Appenteng. It was Kofi
Appenteng who signed it, so when
Kofi Appenteng was here in
connection with this whole
thing, I called him and asked
him and he said "I issued the
trust to Leon Appenteng" and I
said "you did it under duress"
and he said "no I did it
voluntarily" Q. You said you
asked Kofi Appenteng Whether he
was under duress and he said no.
A. Yes. Q. You had used the
expression "them" and "they", in
relation to the claim that Leon
Appenteng said to you that their
father had asked that be done.
Because of your use of "they",
there is some explanation
required as to when, because the
impression has been given to the
court that Kofi Appenteng and
Leon Appenteng both told you
that their father had instructed
that the trust be set up. You
also just said that Kofi
Appenteng said he was not under
duress, the question is to
explain the two. A. When I
called them, you see Kofi
Appenteng was not here and when
he came and I called him, he
then explained to me what I have
said and so I called Leon
Appenteng to join Kofi Appenteng
and me just to find out where
the truth lay. Kofi Appenteng
confirmed in the presence of
Leon Appenteng that he signed
the paper. In fact I asked who
prepared the paper and Leon
Appenteng said it was prepared
by Ofosu Amaah. So I asked Kofi
Appenteng why did you read this
and sign without having second
thought. Kofi Appenteng said
this will make Leon Appenteng
happy. Q. On the specific
question regarding the
motivation from Kofi.that is why
he agreed to do, would you
clarify that for me. Counsel for
the plaintiff —Objection. By
Court: -Objection sustained. Q.
When did Kofi Appenteng inform
you that his father had
Instructed them to prepare a
trust. A. If you use "when" I
may not be able to give you a
date. Q. Did he ever say that,
A. Yes precisely, I think I have
to give you some further
information. There was an
account that I knew belonged to
Leon Appenteng, Kofi Appenteng,
and Kwabena Appenteng out of so
many children and so when I meet
with them I am able to say yes,
no, yes, no, when I called Kofi
and Leon, my main aim was to try
and settle the difference that
had come between the two of them
and so each one was prepared to
talk as truthfully as he
possibly could. Kofi never
denied to me that the trust was
not on the instruction of the
father. I challenged him that
their father never mentioned any
trust to me that is where I am
coming from. If the father had
told me of a trust, it would
have been a different thing, if
he had told me of a trust I
might have referred him to
Section......... Q. You just
said that Kofi never denied that
his father instructed that a
trust be created but did he ever
confirm to you. A. You mean
confirmed to me. Q. Yes. A. You
see, I am a retired certified
accountant and so when these
things come to me I do not just
take a robotic view of things,
no I could not do that. I have
to explain to my junior brothers
or nephews the fault they may be
falling into but if as the
plaintiff's lawyer is saying
that I am trying to go into the
law, I am not a lawyer, and the
only thing I know is company
code. Q. What we are trying to
clarify is that, because you
just stated that the basis of
your reference today is that
Kofi Appenteng never denied to
you about what Leon Appenteng
said A. He did not. One thing
that is clear from the evidence
of Kantinka Dr. Kwame Donkor
Fordwuor who was the defendant's
witness is that both the
plaintiff and the defendant told
him clearly that it was their
father S. C. Appenteng who
instructed that the trust should
be created. As the witness put
it "each one was prepared to
talk as truthfully as he
possibly could" Even though I
have already said that Samuel
Christian Appenteng sold the
shares to the defendant, it is
clear to me from the evidence
that he S. C. Appenteng
nevertheless knew and had a say
in the execution of the Trust
Deed. This view is not strange
and is not contradictory at all.
This view that S. C. Appenteng
knew and indeed instructed that
the Trust be created is further
reinforced by the almost
contemporaneous execution of the
Deed of Transfers Exhibit 'L'
and 2 and the Deed of Trust
Exhibit 'A'. One cannot fail but
be struck by the fact that the
Deeds of Transfers were executed
on the 25th February 1999 and
the Deed of Trust Exhibit 'A'
was executed the very next day
26th February 1999. All the
documents that is both the Deeds
of Transfer and the Deed of
Trust were also prepared by
Professor Ofosu Amaah, Mr. S. C.
Appenteng's corporate lawyer. I
hold that Samuel Christian
Appenteng knew and indeed
instructed that the Deed of
Trust Exhibit 'A' be created. In
SoonBoon Seo Vs. Gateway Worship
Centre (supra) Her Ladyship
Sophia Akuffo further stated at
page 294 of the Report:-
"......A Trust is completely
constituted when the trust
property is vested in the
trustees for the benefit of the
beneficiaries. The classic
statement of the law as to what
is meant by complete
constitution (or perfect
creation) of a trust is to be
found in the judgment of Turner
U in the leading old case of
Milroy Vs. Lord (1862) 4 DR GF &
J at pages 274-275 of the Report
as follows:- "In order to render
a voluntary settlement valid and
effectual the settlor must have
done everything which according
to the nature of the property
comprised in the settlement was
necessary to be done in order to
transfer the property and render
the settlement binding upon
him". At page 295 of the report
Her Ladyship Sophia Akuffo J.S.
C. continued:- “……the effect of
a completely constituted trust
is that the beneficiary may
enforce it whether or not he has
given value. In his book Equity
and Law of Trusts (supra) Philip
Pettitt states at page 89 as
follows:- "If the trust is
completely Constituted the fact
that a cestui que trust is a
volunteer is irrelevant, he is
just as much entitled to enforce
the trust as a cestui que trust
who has provided consideration"
I have already stated and indeed
made a finding that the Trust in
issue was completely
constituted. If it was
completely constituted then ipso
facto it is valid and
enforceable. Counsel for the
defendant has however submitted
vigorously that the trust
instrument Exhibit A is not
valid and enforceable. This is
how counsel for the defendant
Nana Bediatuo Asante put it in
his written address at page
19-20:- “………defendant upon his
own volition, purported to
settle the trust in good faith
without any valuable
consideration whatsoever from
the plaintiff thereby making
plaintiff a mere volunteer
beneficiary under the purported
trust. In the result plaintiff's
entire case rests on the
validity and enforceability of
the trust. My lord, the law is
settled that the instrument by
which a settler settles and
vests trust property in the
trustee must be such as to
effectively pass the settlor's
interest to the trustee ie his
title. If anything remains to be
done by the settlor to make the
transfer of the interest
effective the trust is not
completely constituted and it
must fail. Indeed whether the
transfer is effective or not
must depend on the type of
property to be placed in trust
and the legal requirements for
its transfer.........” Counsel
for the defendant refers to the
case of Milroy vs. Lord (supra)
particularly the dictum of
Turner L J set out earlier to
wit "in order to render a
voluntary settlement valid and
effectual, the settlor must have
done everything which according
to the nature of the property
comprised in the settlement was
necessary to be done in order to
transfer the property and render
the settlement binding on him"
Counsel then further submits as
follows at page 20 of his
written address:- "Your lordship
will no doubt agree that a
necessary corollary of the
foregoing paragraph is that the
settlor must have legal
Ownership of the property
forming the settlement in order
to be able to settle a trust
with same. Thus until legal
title or ownership is acquired a
prospective settlor who has only
an "expectancy" or possibility
of or an equitable interest in
such Property cannot validly set
up a trust with same. In such
circumstances, the said property
having only the character of an
expectancy may properly be
termed "future property". My
lord the law is that future
property for example, the hope a
person may have that he will
take under the will or intestacy
of a living person; under the
exercise of a special power of
appointment, future royalties
and the proceeds of any future
sale of specific property cannot
be owned for the simple reason
that they do not exist and for
the same reason cannot be
assigned whether at law or in
equity, or held on trust (see
Pettit Equity and the Law of
Trust (Ninth Edition)
(Butterworth's) at page 114"
Reduced to its simple terms
counsel for the defendant's
submission can be put this way:-
the property in question in this
case the subject matter of the
Trust Deed is shares. The
plaintiff Leon Appenteng was a
volunteer that is to say he did
not provide valuable
consideration for the shares the
subject matter of the Trust. At
the time exhibit 'A' was
executed the defendant the
settlor was not the owner of the
shares the subject-matter of the
trust or did not have title to
the shares. What the defendant
had at that time was a mere
"expectancy" or "future
interest" that is until the
necessary formalities were
completed (ie when Samuel
Christian Appenteng had sent the
necessary documents to the
company to effect the transfer
from himself to the defendant)
and same perfected by the
issuance of share certificate.
Since the defendant did not own
the shares at the time he
executed the trust, so the
argument of counsel goes the
trust was void and
unenforceable. The basis of this
submission by counsel for the
defendant that the defendant was
not the owner of the shares at
the time he executed Exhibit 'A'
is his further submission that
the transfer of shares is
complete when the name of the
purchaser ie the defendant is
registered as a shareholder and
issued with a share certificate.
Until that was done Samuel
Christian Appenteng and not the
defendant remained the owner of
the shares. In effect as the
defendant's name had not been
registered as the shareholder
and issued with the share
certificate, defendant had no
title to the shares, what he had
was a mere expectancy or future
interest. The defendant's
interest being a mere expectancy
or future property he could not
purport to convey the title to
himself as trustee of a trust at
the time he purported to create
the trust. In support of this
contention counsel for the
defendant referred to several
English cases including Milroy
Vs. Lord (supra;) Re Brooks
Settlement Trust (Lloyds Bank Vs
Tilland) (1939) I Ch 993; Meek
Vs. Kettlewell (1842) 1 Hare 464
and Re Fry (1946) Ch 312. In Re
Fry (supra) a donor resident
abroad died after executing a
transfer of shares but before
obtaining the requisite treasury
consent which at that time was
necessary under the Exchange
Control legislation. He had
actually applied for the consent
but further information might
have been required. Romer J held
that the shares belonged to the
residuary estate of the donor
and not the son who was intended
to benefit under the transfer
because the donor had not done
everything according to the
nature of the property to divest
himself of the title. In Milroy
vs. Lord (supra) a settler
executed a voluntary deed
purporting to transfer shares in
the Bank of Louisiana to Samuel
Lord to be held on trust for the
plaintiff. The shares could
however only be transferred by
the appropriate transfer form
followed by registration of the
name of the transferee in the
books of the bank. Lord however
held a power of attorney to act
on behalf of the settlor who had
died and it would have enabled
him (Lord) to take all necessary
further steps to obtain
registration. But this was not
done. The Court of Appeal in
Chancery held that there was no
trust although the intention
clearly was to benefit the
intended beneficiary. In Re Fry
(supra) the defect in the
transaction which was a transfer
of shares was the failure of the
donor who was resident abroad to
obtain the requisite treasury
consent which at that time was
necessary under the Exchange
Control legislation that is the
Defence (Finance Regulations)
Act 1939 then inforce. The gift
was therefore not perfect and in
the words of Turner L. J in that
case, "there is no equity in
this court to prefect an
imperfect gift" These cases
referred to by counsel for the
defendant may be contrasted with
2 cases both purely
coincidentally apparently named
Re Rose: the 2 cases are Re
Rose, Rose vs. IRC (1952) Ch 499
and Re Rose; Midland Bank
Executor and Trustee Company Ltd
vs. Rose (1949) ch 78. In Re
Rose, Rose vs. IRC (supra) a
settler by voluntary deed
transferred shares in a private
company to trustees to be held
on trusts. The directors, who
had power to refuse to register
transfers, registered this
transfer some months later. The
settlor died at a time at which
the shares would be treated as
part of his estate for tax
purposes if the date of the
transfers were the date of
registration; but would not be
so treated if the date was the
date of the execution of the
deed. The Court of Appeal held
that the relevant date was the
date of the execution of the
Deed of Transfer, for the
settlor had at that time done
everything possible to divest
himself of the property and all
that was needed in addition to
the transfer was the format act
of registration by a third
party. Evershed M.R. refusing to
follow Milroy vs. Lord (supra)
held that after the execution of
the transfer the settlor held
the shares as trustee for the
beneficiaries. At page 510
Evershed M. R. stated:- "If a
man executes a document
transferring all his equitable
interest, say JP. shares, that
document operating and intended
to operate as a transfer will
give rise to and take effect as
a trust; for the assignor will
then be a trustee of the-legal
estate in the shares for the
person in whose favour he had
made an assignment of his
beneficial interest. And for my
part, I do not think that the
case of Milroy Vs. Lord is an
authority which compels this
court to hold that in this case
—where in the terms of Turner
L.J's judgment the settlor did
everything which according to
the nature of the property
comprised in the settlement was
necessary to be done by him in
order to transfer the
property-the result necessarily
negatives the conclusion that,
pending registration, the
settlor was a trustee of the
legal estate for the transferee"
I have extensively read the
cases referred to by both
counsels because of the
submission by counsel for the
defendant that the defendant did
not have title to the share at
the time he executed the Trust
Deed and at best had a future
interest or a mere expectancy
because the transfer of the
shares to him by his father had
not been registered. In
discussing the positions of the
transferor and transferee of
shares prior to registration of
the share transfer this is what
Gower's Principles of Modern
Company Law (6th ed) (Paul
Davies ed) states at page 348:-
"As we have seen only if and
when the transfer is registered
will the transferor cease to be
a member and shareholder and the
transferee will become 'a member
and shareholder. However
notwithstanding that
registration has not occurred,
the beneficial interest in the
shares may have passed from the
transferor to the transferee. In
the case of a sale the
transaction will normally go
through three stages:- (1) an
agreement (2) delivery of the
signed transfer and the
certificate by the settlor and
the payment of the price by the
buyer and (3) lodgment of the
transfer for registration by the
company. Notwithstanding that
the transfer is not lodged for
registration or registration is
refused, the beneficial interest
in the shares Will, it seems
pass from the seller to the
buyer at the latest at stage 2
and indeed will do so at stage 1
if the agreement is one which
the courts would order to be
specifically enforced. The
seller then becomes a trustee
for the buyer and must account
to him for any dividend he
receives and vote in accordance
with his instruction" The
question that arises in this
instant case is this: at the
time the defendant executed the
Trust Deed what interest did he
have in the shares? Counsel for
the defendant says the defendant
had only a future property or an
expectancy and thus was not the
owner of the shares. To
understand what an "expectancy"
or "future property" is I will
use the explanation or example
used by J. C. Riddall in his
monumental book The Law of
Trusts (Fourth Ed)
(Butterworth's) when discussing
"expectancies" and future
property at page 69 thereof as
follows:- "We have learned that
a chose in action is a form of
property. It is something in
which the owner has an interest
now. If a person may possibly
acquire an interest in
something, at some date in the
future, he cannot be regarded as
having any proprietary interest,
whatsoever. For example T makes
a Will leaving Blackacre to his
friend A. A has no Interest in
Blackacre. T may revoke his Will
and leave Blackacre to B or
revoke his Will and be content
to die intestate so that the
land passes to his next of kin.
A has no more than a hope that T
will leave his Will unchanged.
In such a case A is said to have
an “expectancy ". Or if A is the
object of a power of appointment
with the result that whist he
has no property now, if the
power is exercised in his favour
he will do so then A, as an
object of a power has an
"expectancy". Or suppose that A
holds shares in a company that
may or may not declare a
dividend at the coming year end.
A's present right to receive a
dividend, if one is declared, is
a chose in action which can be
assigned. But if he purports to
assign a dividend that has not
yet been declared, he will be
seeking to assign what is no
more than an expectancy. The
word "expectancy" is used in the
older sense...... "expectations"
indicating "prospects" …..The
term "after acquired property"
is used to refer to any property
which a person may receive (by
gift or by will) at a future
date. An expectancy is thus a .
specific form of "after
acquired-property". The term
"future property" is a generic
term which connotes both
expectancies and after-acquired
property" In the light of this
explanation of what an
"expectancy" or a "future
property" is, can one honestly
describe the interest the
defendant had in the shares at
the time of the execution of the
trust deed as future property or
an expectancy? I think the
answer is clearly in the
negative. For the fact is that
on the 25th February 1999 Samuel
Christian Appenteng had
transferred the specified shares
for valuable consideration to
the defendant by the deed of
transfer Exhibit 2 and Exhibit
'V. Samuel Christian Appenteng
owned the whole 100% shares in
Panbros Salt Industries Ltd. On
the defendant's own evidence it
was his father Samuel Christian
Appenteng who had voluntarily
decided to make it possible for
him to buy the shares. It is
true that by the next day 26th
February 1999 when the defendant
executed the trust deed, the
share transfer Exhibit 'L' and
Exhibit 2 had not been
registered but there is no doubt
that at that date the defendant
had a definite beneficial
interest In the shares. That
beneficial interest in my view
was not an expectancy or future
property. It was a definite
equitable beneficial interest
which was subsisting. Although
Samuel Christian Appenteng
nominally still held the legal
title to the shares, it is my
view that having on the previous
day sold the shares to the
defendant, then pending
registration of the share
transfer Samuel Christian
Appenteng held the legal title
to the shares as trustee for the
defendant who held the
equitable, beneficial interest.
In Parrington's Company Law (8th
ed) (Butterworths) the learned
author states at page 416 as
follows: “…It is doubtful
whether the judicial assumption
that the legal title to shares
passes on registration of the
transfer and not before has any
real foundation. The purpose of
registering the transfer is to
notify the company of it, so
that the transferee may require
the company to pay him his
future dividends and allow him
to vote at shareholders'
meetings. On . registration, the
transferee acquires those legal
rights against the company, but
it does not follow that the
legal title to the shares has
not already passed from his
transferor to the transferee by
virtue of the executed share
transfer and the transferor's
share certificate being
delivered to him, so making his
right to the shares effective
against all interested persons
except the company" I think in
all of this discussion of the
law, it is important that
counsel for the defendant does
not confuse issues because there
is a clear difference between an
imperfect gift or an imperfect
transfer of property on one hand
and a valid declaration of trust
on the other. In this instant
case the fact of the defendant
having made a valid declaration
of trust is not in doubt. I hold
therefore that the defendant had
a beneficial interest in the
shares at the time he executed
the Trust Deed. I have already
dealt with the issue of whether
or not the Trust in issue was
completely constituted and I
have already held that it was
completely constituted when the
defendant declared himself a
trustee of the shares. As stated
earlier in the Gateway Worship
Centre Case (supra) "once a
trust is completely constituted,
the fact that a cestui que a
trust is a volunteer is
irrelevant. He is just as much
entitled to enforce the trust as
a cestui que trust who has
provided consideration" As also
stated in The Law of Trusts by
J. C. Riddall (supra) page 73:-
“………once the trust is completely
constituted it is too late for
the Settlor to seek to recover
the beneficial interest in the
property for himself" I hold
that the Trust Deed Exhibit 'A'
is valid and enforceable even
though the plaintiff is a
Volunteer. I now wish to deal
with the issue of the Revocation
of the Trust. The defendant led
evidence to show that he had
executed a Deed of Revocation
sometime in February 2008
revoking the Trust Deed Exhibit
'A'. The Deed of Revocation was
tendered in evidence by the
defendant as Exhibit 3. It is
the following terms:- “DEED OF
REVOCATION THIS DEED OF
REVOCATION is made this 11th day
of February, 2008 by Kofi
Appenteng of No. 134, Gallows
Hill Road, Redding, Connecticut,
06896, U.S.A ('The Settlor')
WHEREAS (1) The Settlor settled
his bonafide self acquired
property in the trust dated 26th
February, 1999 and stamped as
"LVB 3090/99" ('the Trust) (2)
The Settlor now wishes to revoke
the said Trust in view of the
frustration of the purpose for
which the settlement was made
and the Trust created. NOW THIS
DEED WITNESSESS as follows: (3)
The settlor hereby revokes the
Trust dated 26th February, 1999
and authorises the Trustee
therein to distribute accrued
dividends up until the date of
this Deed of Revocation. (4) The
Settlor hereby discharges
absolutely, the Trustee from the
Trust powers and provisions
declared and contained l the
Trust upon distribution of any
accrued dividends thereunder as
contemplated by paragraph (3)
hereof. (5) By this Deed of
Revocation, the Trust property
reverts to the Settlor. IN
WITNESS whereof the said Kofi
Apppenteng has hereunto set his
hand and name on the day and
year first above written. SIGNED
by Kofi Appenteng } Kofi
Appenteng in the presence of: }
…………………….. (signed)
signed................. Name:
... KWESL..E...YANKEY...... And
Before Me Signed
Address:...P.O.Box...16022.......
NOTARY PUBLIC JUSTICE
KUSI-MINKAH PREMO
KIA...........................
P. 0. BOX 14951 ACCRA.
11-02-2008 The defendant said
that the purpose of setting up
the trust was to motivate his
brother the plaintiff as
Managing Director of Panbros
Salt Industries Ltd. He said he
subsequently realised that that
purpose for setting up the trust
had been frustrated by his
brother mismanaging the company
and its finances. He called the
company's auditors Messrs
Deloitte and Touche to lead
evidence in respect of the
mismanagement of the company by
the plaintiff and also to tender
in evidence the results of a
forensic audit carried out into
the finances of the company. The
plaintiff on the other hand
contended that he was appointed
Managing Director of Panbros
Salt Industries Ltd in the
lifetime of his father and that
the creation of the trust had
nothing to do with his
Management of Panbros Salt
Industries. I should say in
passing that in my view there is
nothing on the face of the Trust
Deed Exhibit 'A' to suggest that
the creation of the Trust had
any connection with the
plaintiff's position as the then
Managing Director of Panbros
Salt Industries Ltd. With regard
to the Revocation of Trusts this
is what Halsbury's Laws of
England (Fourth Edition) Vol 48
says at paragraph 566 at page
288:- "Where an express trust is
completely constituted, it is
generally binding and
irrevocable whether it was or
was not constituted for valuable
consideration, unless such a
power of revocation is expressly
reserved. In certain
circumstances, however a
disposition of property in trust
may be set aside under the
provisions relating to the
avoidance of transactions at an
undervalue in bankruptancy or
under the general statutory
provisions relating to
dispositions in fraud of
creditors, or on the grounds
that the disposition was induced
by fraud, duress or undue
influence ....”. Also in Snell's
Equity (31st Ed Sweet & Maxwell)
the learned author states at
page 499 paragraph 20-40 as
follows:- "In general, a settlor
cannot revoke a completely
constituted trust unless the
settlement reserves a power of
Revocation. Nor is the mere
absence of a . power of
Revocation in a voluntary
settlement or the presence in it
of unusual provisions, any
ground for setting it aside,
provided the provisions of the
settlement were brought to the
settlor's attention and
understood by him". On the face
of Exhibit 'A', it is clear that
the power of revocation was not
expressly reserved and there is
no evidence whatsoever that the
document was executed by the
defendant under duress, fraud or
undue influence. Indeed the
defendant himself admitted in
evidence that he voluntarily
executed Exhibit 'A' This is
part of what he said when he was
cross-examined by counsel for
the plaintiff on the 4th June
2009: "Q. You gave your
credentials in your
evidence-in-chief, you stated
that you are a lawyer. A. I am.
Q. A lawyer of course with
considerable experience. A. Of
some experience. Q. You have
been a lawyer since when. A. I
have been a lawyer since 1984.
Q. And you work with one of the
largest law firm in New York. A.
Yes. Q. You Would boldly say of
yourself that you have
considerable experience in the
law. A. I would never say that,
the law is too vast for one to
have considerable experience. Q.
This is a very simple document.
A. Very simple. Q. That is
Exhibit 'A' A. Yes. Q. Your
declaration. A. That is correct
Q. Not our declaration A. That
is correct, my personal
declaration. Q Made freely. A.
Yes. Q Made voluntarily A. Yes.
Q. Devoid of fraud or undue
influence A. That is correct. Q.
At the time you were doing
Exhibit 'A' you had clear
intention to create the trust.
A. That is correct. Q. Clearly
in your mind you had no doubt as
to who the beneficiaries of the
trust would be. A. That is
correct. Q The beneficiaries
were yourself and Leon Appenteng
A. That is correct. Q. In your
mind you knew who the
beneficiary of the trust would
be. A What I had in mind clearly
was that I wanted to create a
trust that would in certain
circumstances (sic) when there
was any matter when there would
be dividends or proceeds from
the sale of the transactions
that decision would not be taken
without consulting Leon
Appenteng. Q. You clearly had an
intention as to who the
beneficiaries of the trust would
be. A. Yes. Q. Who were to be
the beneficiaries of the trust;
yourself and Leon Appenteng. A.
That is correct. Q. Holding in
Equal share. A. Not holding in
equal share Q. I am saying that
concerning your appropriate
right in the subject matter of
the trust, you and Leon
Appenteng were to have equal
shares 50% each in the subject
matter of the trust. A. I do not
think that is what it says. Q.
When this document was presented
to you for execution, you read
it. A. Yes I did. Q. You
understood it. A. Yes. Q. You
appreciated the implications and
the nature of the document. A.
Yes. Q. Before you appended your
signature. A. That is correct.
Q. You even said to this court
that the document was prepared
on you instructions A. That is
correct. Q. And this document
you would agree with me that, it
is the accurate representation
of your instructions. A. That is
correct. Q. At the time when you
made this declaration of trust
in February 1999, the share that
you mentioned there you had
received them from S. C.
Appenteng and Appenteng Mensah
and Company Ltd. A. I do not
believe that I actually
physically received the shares
at that time. In other words I
do not believe the shares were
issued to me at the time I made
the declaration, I think I
executed a document to purchase
the shares one or two days
before Q. So you had received
the shares by instrument of
transfer signed by the owner of
the shares. A. I do not want to
argue about interpretation, to
me receiving shares means
that....... Q. No we are not
talking about interpretation,
you had received shares. A. I
had purchased shares. Q.
Whatever, whether purchased or
received, you had received
shares. A. I had purchased
shares. Q. Per an instrument of
transfer of shares. A. That is
correct. Q. Signed by your
father. A. That is correct. Q.
By the date of this declaration
you had received a Deed of
Transfer. A. That is correct Q.
So you well knew by the time you
executed Exhibit 'A' that the
shares that you made mention of
had been documented as having
been given to you. A. Pursuant
to the Deed of Transfer, that is
correct. Q. The Deed of Transfer
was on the 25th of February
1999. A. As I said I do not
remember the date. Q. When was
the deed of transfer from
Appenteng Mensah & Company Ltd.
A. I do not recall the date of
the transfer, I have to see the
document. Q. That Deed of
Transfer was executed in your
favour. A. Yes. Q, And you know
it is the subject matter of this
action, not just the Panbros
one. A. Yes Q. Can you produce
that. A. The share certificate.
Q. Not share certificate, deed
of transfer of shares. A. I
believe that the deed of
transfer would be with the
company secretary. There is no
doubt that the defendant
executed the Trust Deed
voluntarily and free from any
undue influence. I hold
therefore that not having
expressly reserved a Power of
Revocation in the Trust Deed,
the defendant did not have the
power to revoke the said Deed of
Trust by the Deed of Revocation
Exhibit 3. I hold that Exhibit 3
the Deed of Revocation is
invalid and void. The plaintiff
further or in the alternative
seeks an order terminating the
declaration of trust made on
26th February 1999. The rule on
termination of trust is that
when the equitable interest
presently vested in a cestui que
trust who is of full age and
capacity ie sui juris he can
require the trustee to convey
the trust property to him thus
bringing the trust to an end
irrespective of the fact that
the trust instrument contains
contrary provisions. That is the
principle enunciated in Saunders
vs. Vautier (1841) 4 Beav 115.
The Trust Deed which I set out
earlier provides:- “……..the
Settlor shall hold the shares
and all dividends accrued or to
accrue upon trust for the
settlor and Leon Kendon
Appenteng and their successors
in title in equal shares and
agrees to transfer, pay and deal
with the shares and dividends
and bonus shares if
any........as he and Leon Kendon
Appenteng shall from time to
time agree" Counsel for the
defendant has submitted in his
address that: . "The words "
...........and their successors
in title in equal shares
............ .is evidence of the
settlor's intention that the
defendant and plaintiff were to
take beneficial interest in the
trust property the benefit from
the economic proceeds accruing
to such share. The Settlor
inserted the words "their
successors in title" so that if
peradventure, neither defendant
nor plaintiff were no longer in
the picture, their successors in
title will stand in their stead
to benefit from the same trust
property” To have declared that
their successors in title were
to stand in their stead
afterwards can only confirm that
the present beneficiaries were
entitled to have beneficial
interest only under the trust
and not to take absolutely. Any
other interpretation of the deed
will result in a defeat of the
settlor's intention that some
economic benefit that is the
dividends accruing to the shares
bonus shares and the like be
conferred on the successors in
title of the immediate
beneficiaries". The problem in
this case as I see It is that
unlike most litigations
concerning trust property where
the Settlor would have died or
passed away and the ensuing
litigation would be between the
cestui que trust or
beneficiaries and the trustee,
in this present case the settlor
is alive and is himself a
beneficiary and is a party in
this litigation. But in my view
the fact that the Settlor is
alive and is a party to the
litigation makes no difference.
The intention of the Settlor
must be sought from the trust
document itself and not from
what the Settlor now says his
intention were when he executed
the Trust Deed see Akim Akroso
Stool vs. Akim Manso Stool
(1980-90) 1 GLR 100. Also see
Bimpong Buta's book The Law of
Interpretation in Ghana page 26
where the learned author states
that:- "The construction must be
near to the mind and intention
of the maker. The first basic
rule in effect means that the
court: must discover the true
intention of the author of the
document and thus arrive at an
interpretation that gives the
document its real meaning" The
trust document Exhibit 'A'
speaks for itself. It says "the
settlor shall hold the shares
and all dividends accrued or to
accrue upon trust ......... in
equal shares..........and he
agrees to transfer, pay and deal
with the Shares and dividends
and bonus share.........in such
a manner as he and. the
plaintiff shall from time to
time agree" The language of the
Trust Deed Exhibit 'A' leaves me
in no doubt that both the
plaintiff and the defendant were
entitled to the shares itself
together with any dividends
accrued or to accrue in equal
shares and not only to economic
benefit as counsel for the
defendant erroneously says. To
give any other interpretation to
the terms of the trust will lead
to injustice. Both the plaintiff
and the defendant are sui juris.
They are uterine brothers. The
evidence shows that this problem
with the shares started in or
around 2007. Several well
meaning friends and
acquaintances of the parties and
their father including lawyer
Ekow Awoonor, Michael Kendon,
Lawyer Sam Okudzeto and Kantinka
Dr. Kwame Donkor Fourdjour have
tried to resolve this issue
without success as can be seen
from the e-mails Exhibits 'E',
'E1' and 'E2' tendered by the
plaintiff in evidence. By a
letter Exhibit 'D' dated 4th
July 2007 the plaintiff had
written to the defendant
demanding the termination of the
trust. Eventually this matter
has come to court. As the
parties came to court in the
course of the trial I noticed
that they were not even on
speaking terms. For uterine
brothers, this situation is most
unfortunate. It seems to me that
to allow the trust to continue
to exist will only lead to
further recriminations and
continued litigation. I have no
doubt that an order of
termination of the trust will be
in the best interest of the
parties and the trust property.
Counsel for the defendant has in
his written address raised issue
with the plaintiff counsel's use
of the term 'trust shares" to
describe the shares the subject
of the trust deed. Whatever
language is used to describe the
shares, there is no dispute that
it is the shares the subject of
the Trust Deed that are being
referred to. The plaintiff in my
view has led sufficient evidence
to prove his case. I therefore
enter judgment in favour of the
plaintiff for reliefs (i),(ii)
and (iii) as endorsed on the
writ of summons. Counsel for the
plaintiff says I will ask for
cost of GH¢25,000. Counsel for
the defendant says I will offer
cost of GH¢5,000. By Court: Cost
of GH¢7,000 against the
defendant. COUNSEL KEN BROOKMAN
AMISSAH FOR THE PLAINTIFF WITH
HIM COSMAS ANDOH. MR. BEDIATUO
ASANTE FOR THE DEFENDANT |
