ASANTE v. UNIVERSITY OF GHANA [1972] 2 GLR 86
HIGH COURT, ACCRA
Date: 24 MAY 1972
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Milroy v. Lord (1862) 4 De G.F. & J. 264; 31 L.J.Ch. 798; 7 L.T. 178; 8 Jur. (N.S.) 806; 45 F.R. 1185. (2) Roots v. Williamson (1888) 38 Ch.D. 485; 57 L.J.Ch. 995; 58 L.T. 802; 36 W.R. 758. (3) Re Fry; Chase National Executors and Trustees Corporation Ltd. v. Fry; [1946] Ch. 312; [1946] 2 All E.R. 106; 115 L.J.Ch. 225; 175 L.T. 392; 62 T.L.R. 414; 90 S.J. 346. (4) Spellman v. Spellman [1961] 1 W.L.R. 921; 105 S.J. 405; [1961] 2 All E.R. 498, C.A. (5) Dipple, v. Corles (1853) 11 Hare 183; 68 E.R. 1239. (6) Page v. Cox (1852) 10 Hare 163; 68 E.R. 882. (7) Re Beaumont; Beaumont v. Ewbank [1902] 1 Ch. 889; 71 L.J.Ch. 478; 86 L.T. 410; 50 W.R. 389. (8) Birch v. Treasury Solicitor [1951] 1 Ch. 298; [1951] 1 T.L.R. 225; 94 S.J. 838; [1950] 2 All E.R. 1198, C.A. (9) Richards v. Delbridge (1874) L.R. 18 Eq. 11; 43 L.J.Ch. 459; 22 W.R. 584. (10) Duffield v. Elwes (1827) 1 Bligh (N.S.) 497; 1 Dow. & C1. 1, H.L. (11) Lambe v. Eames (1871) 6 Ch.App. 597; 40 L.J.Ch. 447; 25 L.T. 175; 19 W.R. 659.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for a declaration that there was no legally binding trust in favour of herself and her children. The facts are fully set out in the judgment.
COUNSEL
- T. Yebuah for the plaintiff.
- Opoku-Akyeampong for the defendants.
JUDGMENT OF ABBAN J.
The plaintiff, by her amended writ of summons, claims, for herself and on behalf of her children, a declaration that there is no legally binding trust in favour of herself and the children of the late Asante, a former employee of the University of Ghana; and that the said university, who are the defendants herein, be ordered to release to the plaintiff the sum of ¢5,410.00 due from them to the plaintiff and her said children, as the beneficiaries of the late Asante. [p.89] of [1972] 2 GLR 86 It is clear from the pleadings that the material facts in the case are not in dispute. Thus, on 9 March 1972 after discussions with counsel, it was agreed that the only important issue in the matter is the issue set out in paragraph 1 (b) of the summons for directions, namely, “whether or not the investment constitutes a trust binding on the plaintiff personally, and for and on behalf of her children.” The decision on that issue depended, mainly, on the construction to be put on certain documents. So both counsel agreed that the cause should be disposed of by legal argument. Consequently, all the documents relevant to the case were tendered in evidence by consent. The facts may be summarized as follows. The husband of the plaintiff, called Alfred B. Asante, was on the staff of the defendants during his lifetime. Some time before September 1962, the plaintiff’s said husband, by a document commonly known as and called nomination paper, disposed of the benefits due to him from the defendants. But on 23 September 1962, he cancelled the said nomination paper and made a fresh one in which he asked the defendants to pay on his death seven-eighth’s portion of his said benefits to the plaintiff and her children, and the remaining one-eighth to his brother, called Lawrence Y. Appiah. In October 1962, the defendants established a superannuation scheme for their employees. All members of the senior and junior staff, who were appointed to “permanent established posts” in the university, were eligible to become members of the scheme. The plaintiff’s husband was then holding a “permanent established post” and was therefore considered to have joined the scheme which came into effect as from 1 October 1962. According to the provisions of the said scheme, which was tendered in evidence as exhibit 1, the defendants were under an obligation to take life insurance policies for the members of the scheme. The policies were to be taken in the name of defendants. But the premiums, necessary to maintain the policies, were made up of certain deductions from the salaries of the participants of the scheme and from the contributions made by the defendants themselves. On a participant reaching the retiring age of 60, all the benefits and entitlements due to him, under the said life policy, are paid out to him. In fact the scheme has all the attributes of a pension scheme. Provision is also made in the scheme for paying out the said benefits and entitlements in case the participant dies while still in the employment of the defendants, and before reaching the retiring age. This latter provision is contained in clause 12 of the scheme and will be fully discussed in due course. The plaintiff’s said husband never reached the retiring age of 60. He was involved in a motor accident due to the negligence of one Gyamara who was also, at the material time, an employee of the defendants. The death occurred on 17 December 1962. That is, about three months after the making of the nomination paper, exhibit A, and about two-and-a-half months after the said superannuation scheme had come [p.90] of [1972] 2 GLR 86 into operation. Following this untimely death of her husband, the plaintiff swore to an affidavit, exhibit E, verifying that she was the wife mentioned in the said nomination paper, and that she had four surviving children by the deceased husband. The defendants accepted the truth of the contents of that affidavit. Thus after calculating the benefits due to her husband under the scheme and also from other sources, the defendants paid one-eighth portion thereof to Mr. Lawrance Y. Appiah, the brother of the plaintiff’s husband, in accordance with the terms of the nomination paper, exhibit A. The defendants then kept the remaining seven-eighths for the plaintiff and her children. The seven-eighths of the benefits amounted to ¢4,000.00 and this amount will, thereafter, be referred to as the capital amount. The defendants later decided to set up a trust fund with this capital amount for the plaintiff and her children. I should observe that the defendants made an ex gratia award of ¢1,010.00 to the plaintiff, as compensation for the late Asante’s death, which was negligently caused by the defendants’ said employee. The plaintiff, out of her own volition, asked the defendants to pay this ¢1,010.00 into the proposed trust fund. However, since the death of the plaintiff’s husband up to date, the defendants have not been able to set up the said trust fund. But in the meantime, they have been paying to the plaintiff for the maintenance and for the education of her children, the interest accruing from the capital amount. Even though the defendants failed to set up the trust fund, the relationship between the plaintiff and the defendants continued to be cordial until 1971. In 1971, the plaintiff applied to the defendants to pay to her part of the capital amount to enable her to settle the school fees in respect of two of her children attending Accra Girls Secondary School. The defendants turned down the plaintiff’s application, their main ground being that the plaintiff was not entitled to be paid any part of the capital amount of ¢5,410.00; but she was rather entitled to be paid only the interest accruing from the capital amount. The defendants made it clear to the plaintiff that she must not hope to receive any part of the capital amount for anything, until the children reached, what the defendants termed, “the legal age of maturity.” This stand taken by the defendants brought about a series of correspondence between the plaintiff and the defendants. One of the letters relevant to this case is exhibit D, written by the plaintiff and addressed to the defendants. The letter was dated 10 May 1971, and in it the plaintiff, among other things, stated as follows: “As you yourself observed in your letter of 27 April 1971, it will indeed be difficult for me to take over the payment of the fees of the children at the moment; and because the present fees have not been paid, the children have been sent home from school. How, then do I understand that the university is responsible for the education of the children? I shall, therefore, be grateful if the [p.91] of [1972] 2 GLR 86 university will settle the bill of ¢123.15 to enable the children to go back to school, instead of their idling about at home now. As you have already made me to understand, a trust fund has been created for the children and myself, to which I voluntarily added the ex gratia award of £G505 (¢1,010.00) granted to me by the university, and from which the children’s education is being funded. It has never been my understanding that only the interest on this fund would be used to educate the children. However, since I do not have a copy of the deed governing this trust fund, and therefore do not know on what terms and conditions this deed operates, I would be most grateful for one in order to know where exactly I stand, because different inter pretations are given to me each time I needed money to meet the children’s fees. May I now be permitted to ask that since only the interest accruing on the investment is being used in financing the education of the children, what will become of the capital amount after all the children have finished this education? As you are no doubt aware, I also have an interest in the estate of my late husband just like my children, but I have so far been denied the enjoyment of my part of the estate. Since I have not enjoyed any benefit from the investment, nor has the interest even been sufficient for only two of my four children, it stands to reason that the university is no longer interested in the education of my children, and I would therefore ask that the whole affair be wound up and the whole money given to me to enable me to educate my children. I am very sorry that I have had to go to this extent of sending you this rather long letter. But, no doubt, you will agree with me that this is a matter to which I attach the greatest importance. I shall, therefore, be grateful if you will consider all the various points I have raised and give me a favourable reply, and that I hope to hear from you, in any case, within a week. If, however, I do not hear from you within that period, I shall be compelled to hand the matter over to my solicitor. Yours faithfully, (Sgd.) Beatrice Asante.” The defendants, in their reply to this letter, exhibit D, re-stated their stand, this time, fully and in the most uncompromising manner. The contents of their reply exhibit F, are significant and I will therefore set them out in extenso. The letter reads: “Dear Madam, Thank you for your letter dated 10 May 1971. I can see from the letter and the previous discussions with you that you are under a serious misunderstanding of the nature of the trust. By operating the trust the university’s responsibility does not go outside the limit of the size of the capital amount and the income [p.92] of [1972] 2 GLR 86 that may be derived from investment of that amount. You will realise that indeed there is no other source of funds from which the university would undertake to educate your children except the amount held in trust. I have also explained to you previously that the university cannot pay you part of the capital amount itself. This was at the time you tried to claim £G700 from the fund which was not paid. I can only state that the university has not given you the idea that it would fully educate your children. To answer your questions specifically: (1) The university’s solicitors have not yet been able to complete the trust deed due to circumstances outside their control. I shall furnish you with a copy as soon as it is possible to do so. (2) The capital amount would become payable after all the children have reached the legal age of maturity. (3) You have not been denied the enjoyment of the gratuity of N¢1,010.00 which was granted to you by the university. You voluntarily requested that the amount should be added to the trust fund so that the interest to be derived from the fund might be bigger. (4) I have no authority to pay the whole or any part of the capital amount of the trust funds to you but I can submit your letter to the superannuation management committee at its next meeting in June and I shall advise you of their decision. Yours faithfully, (Sgd.) ? ? Finance Officer.” After receiving the last letter, the plaintiff could no longer bear with the defendants. She therefore instituted the present proceedings. In his submission, learned counsel for the plaintiff argued that the defendants have no right to call themselves trustees of the capital amount of ¢5,410.00, since the plaintiff’s late husband, by making the nomination paper, did not intend to create any trust in respect of the said benefits or entitlements. Counsel contended that the nomination paper lacked certainty of words, and could not be looked upon as an instrument creating a trust with the defendants as trustees. Learned counsel further argued that since it was the plaintiff who, voluntarily, asked the defendants to pay the ¢1,010.00 into the proposed trust fund, even if there had been a trust fund, the plaintiff, being sui juris, can at any time put an end to that trust, and call upon the defendants to pay out the said ¢1,010.00 to her. As regards the superannuation scheme, of which admittedly the plaintiff’s late husband was a participant, and whose provisions were therefore binding on the said husband, learned counsel for the plaintiff contended that the defendants cannot rely on it as having given them the power to create a trust fund on behalf of the plaintiff and her children. [p.93] of [1972] 2 GLR 86 So that the defendants have no right, either under the nomination paper, or under the superannuation scheme, to keep the capital amount of ¢5,410.00, and the same ought to be paid to the plaintiff for her own benefit and that of her four children. Learned counsel for the defendants, on the other hand, contended that whether the nomination paper created the defendants trustees or not, the defendants have absolute discretion, under the superannuation scheme, to create a trust fund for the plaintiff and her said children. Learned counsel relied, principally, on the provisions of clauses 11 (d) and 12 of the scheme as the basis of his contention and defence to this action. Counsel argued that the scheme is a sort of contract between the participants of the scheme and the defendants, and that the plaintiff’s husband being a participant, was bound by its provisions. Learned counsel further argued that under clauses 11 (d) and 12 of the scheme, the defendants have every right to act as trustees in respect of the capital amount, and to administer the same for the benefit of the plaintiff and her children, the absence of a trust deed notwithstanding. In the circumstances, counsel submitted that the defendants can hold on to the sum of ¢5,410.00, until the children are of age, when the whole amount will be paid out to them. The question which arises is whether the nomination paper created the defendants trustees of the seven-eighths’ share of the said benefits; and if not, whether the defendants have a right, nevertheless, under clauses 11 (d) and 12 of the superannuation scheme, to create a trust fund with the said benefits of ¢5,410.00, despite the plaintiff’s objection, and to administer the said trust for the benefit of the plaintiff and her four children. To constitute a perfectly created trust, the person creating the trust must expressly declare himself to be a trustee of the subject-matter of the trust, or he must have done everything required of him, “having regard to the nature of the property involved” in the trust, to pass the title to the trustee. In either of these two modes, the settlor must employ the appropriate formalities, legally necessary for the transfer of the particular property; so that the trustee has a complete legal title to it. If the trust is not created by one of these methods, the court will not give effect to it. In Milroy v. Lord (1862) 4 De G.F. & J. 264, which is a leading case on this subject, Turner L.J. at p. 274 of the report said: “I take the law of this court to be well settled, that, 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. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares [p.94] of [1972] 2 GLR 86 that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift.” These principles have been applied and followed in many cases. See for example, Roots v. Williamson (1888) 38 Ch.D. 485; In re Fry; Chase National Executors and Trustees Corporation, Ltd. v. Fry [1946] Ch. 312 at p. 315 and Spellman v. Spellman [1961] 1 W.L.R. 921 at p. 926, C.A. Examining the contents of the nomination paper, exhibit A. in the light of these principles, can it be said that the late Asante, by the said nomination paper, intended to create a trust? The operative part of the nomination paper so far as this case is concerned states: “I have to inform you [defendants herein] that I am withdrawing the name of my next-of-kin, Mr. Lawrance Yaw Appiah, as my sole beneficiary. Instead, my wife and children should enjoy seven-eighth’s of my legacy and my brother Lawrence Y. Appiah, one-eighth.” It would seem that the rationale behind the making of such nomination papers is to avoid the controversy, likely to arise as to the person entitled to the enjoyment of the benefits accruing from the employer to the employee, in case the employee dies intestate and before the said benefits are due to be paid. Many establishments, and even some government departments, do resort to a nomination paper system as a convenient method of disposing of the gratuity and other entitlements of their employees who die intestate, while still in their employ. But I think a nomination paper such as the one we are concerned with in the present case, cannot create a trust in favour of the donees named in that document, so as to make the employer a trustee of the said entitlements. It is true that no particular words are required for the purpose of creating a trust, so long as the intention to create one can fairly be collected from the expression used: See Dipple v. Corles (1853) 11 Hare 183 at p. 184 and Page v. Cox (1852) 10 Hare 163 at p. 169. But considering the intention of the late Asante, as evinced in that nomination paper, and on a fair construction thereof in accordance with the usual canons of interpretation, it is impossible to find therein sufficient words of intention to create a trust. My view is that the late Asante had no intention of creating any trust. He appeared to have made a direct gift to the plaintiff and her children, and which gift was to take effect, conditionally, on death occurring and in that event only. It could rather have resembled a donatio mortis causa, if certain conditions had not been absent . As described by Buckley J. In Re Beaumont; Beaumont v. Ewbank [1902] 1 Ch. 889 at p. 892: [p.95] of [1972] 2 GLR 86 “A donatio mortis causa is a singular form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the title becomes absolute not under but as against his executors. In order to make the gift valid it must be made so as to take complete effect on the donor’s death. The court must find that the donor intended it to be absolute if he died, but he need not actually say so. In Gardner v. Parker 3 Madd. 184, Sir John Leach V.C. says ‘It is to be inferred that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death.’ It is a question of fact: the inference may be drawn that the gift was intended to be absolute, but only in case of death.” This passage was referred to with approval by Evershed M.R. in Birch v. Treasury Solicitor [1951] 1 Ch. 298 at p. 307, C.A. See also Richards v. Delbridge (1874) L.R. 18 Eq. 11 at p. 14 and Duffield v. Elwes (1827) 1 Bligh (N.S.) 497 at p. 530, H.L. As I have already said, the nomination paper lacks certain essential requirements of a donatio mortis causa because this document, which can be said to be the effective means of obtaining the said benefits from the defendants, was not delivered by the donor, the late Asante, to the plaintiff and her children. It was rather delivered to the defendants. Furthermore, there is no evidence that at the time the late Asante made the gift, as contained in the nomination paper, he was in “contemplation of approach of death,” nor was he in fear of any present peril. The fact that he died just about three months after the making of the nomination paper in question does not make any difference. He was just moved by the general idea of man’s mortality to make that nomination paper. I therefore hold that the nomination paper cannot constitute a trust deed, and that the disposition made therein cannot also be classified as a valid donation mortis causa. I will say further that it is not possible even to spell out therefrom any equitable assignment. Be that as it may, the absence of these did not affect the efficacy of the transaction between the late Asante and the defendants. There was in the hands of the defendants a sum of money, or a monetary liability, over which the late Asante had the right of disposal. The late Asante, by that document (the nomination paper), selected or nominated the plaintiff and her children as the persons to whom seven-eighths of the said entitlements should be paid in case of his death intestate; and the defendants, by the same document, had been given authority by the late Asante to make the said payment. In fact, reading through the various documents and minutes of the defendants which were tendered [p.96] of [1972] 2 GLR 86 in this case, there is no doubt that the said nomination paper was brought into existence at the instance or at the request of the defendants. The defendants accepted that nomination paper, and gave a tacit undertaking to the late Asante that they would comply with its contents. The defendants considered themselves as bound by the contents of that document; and that was why on the death intestate of Asante, as soon as it was practicable, they paid to the late Asante’s brother the one-eighths’ share of the benefits. In the circumstances, I hold that the defendants were likewise bound, at the request of the plaintiff and without question, to pay out to the plaintiff the seven-eighths’ share of the said benefits. The contention of the learned counsel for the defendants that the superannuation scheme, exhibit D, gave the defendants a right to create a trust fund with the said seven-eighths’ portion of the benefits, and that the defendants are entitled to hold on to the amount involved, to say the least, is misconceived. Clauses 11 (d) and 12 which formed the foundation for the argument of the learned counsel for the defendants, provide that: “11. (d) where the management committee is satisfied that there are exceptional circumstances, surrender the policies or convert them to fully-paid policies for reduced benefits to be held by the council until they mature, and apply the surrender values or the monies received on the maturing or such fully-paid-up policies, as the case may be, for the benefits of the member, his wife and children or any of them and the assignment of the monies to such other persons as the management committee may select upon trust for the maintenance or benefit of the member, his wife and children or any of them, . . . Benefits on death: If the member dies while in the service of the university and before any benefits shall have become payable under the policy or policies effected on his behalf, the council shall in its absolute discretion pay or make over the money assured by the said policy or policies either: (a) to the persons entitled to benefit under any will made by the member and admitted to probate, or where there is no such will as on an intestacy; or (b) where the management committee is satisfied that there are exceptional circumstances, for the benefit of the member’s widow and children, or any of them by any of the methods authorised by 11 (d).” The emphasis is mine. The words of these clauses, taken by themselves, are plain and unambiguous. So they do not present any difficulty. All that clause 12 (a) is saying is that in the event of the death of a participant of the scheme, [p.97] of [1972] 2 GLR 86 the benefits due to the participant would be paid to the persons named in the participant’s will as the donees of the benefits. If the participant, however, dies without making a will, the benefits will be paid to persons proved to be legally entitled to enjoy the said benefits on intestacy. The council mentioned in clause 12 is the governing body of the university. In any of those circumstances, the defendants have been given absolute discretion. But I am of the opinion that where the benefits have been disposed of by a deceased participant in a valid will, or in a nomination paper left with the defendants, the defendants cannot exercise any discretion in the matter, but are to abide by the contents of the said will, or of the nomination paper, as the case may be. It is only in the absence of either a valid will or a nomination paper that the said discretion of the defendants’ can be exercised. In the present case, there was an intestacy, but the intestate left with the defendants a nomination paper by whose terms the defendants had already agreed to be bound, and have in fact partially carried out. The question of the creation of a trust fund cannot therefore arise under clause 12 (a). As a matter of fact, clause 12 (a) does not give the defendants any right to create a trust fund on behalf of anybody. It is rather clause 12 (b) which gives the defendants discretionary powers to establish a trust fund with any sum of money to which the wife and children of the deceased participant of the scheme may become entitled. Nevertheless, it should be noted that when clause 12 (b) is read together with clause 11 (d) their cumulative effect is that the defendants can establish a “trust fund” only “where there are exceptional circumstances.” The management committee mentioned in clause 12 (b) is a committee set up by the defendants to administer the scheme on behalf of the defendants. It is this committee which must first consider whether there are “exceptional circumstances,” calling for the setting up of a trust fund and then make recommendations to the defendants. The expression “exceptional circumstances” has not been defined in the scheme (exhibit 1). It has been left to the discretion of the management committee to decide as to what situations should be looked upon as “exceptional circumstances.” All the same, it is inconsistent with principle for the management committee to assume the existence of “exceptional circumstances” on the death of a participant of the scheme, when there are no available facts from which that conclusion can logically be drawn. The defendants, in their statement of defence, did not even allege the existence of exceptional circumstances. I have also gone through the minutes tendered in evidence by the defendants and I have been unable to discover anything in them indicating or suggesting the nature of the “exceptional circumstances” which might have moved the management committee to come to the conclusion that a “trust fund” was necessary for the plaintiff and her children. Indeed, at no time did the management committee even consider whether or not the case of the plaintiff and her children was one of an “exceptional circumstance.” [p.98] of [1972] 2 GLR 86 Despite the absence of “exceptional circumstances” as envisaged by clause 12 (b) of the scheme, despite the existence of the nomination paper which the defendants themselves considered as binding on them, and despite the fact that the plaintiff is sui juris and a natural guardian and next-of-kin of the said children and can properly look after the said children, the defendants arrogated to themselves the right to create a trust fund with the said sum of ¢5,410.00. The defendants were clearly in error. The fact that the plaintiff, originally, consented to the establishment of the said trust fund is neither here nor there. She gave that consent as a result of the misleading impression and facts given to her by the defendants, namely, that they had a right to set up a trust fund, when in fact they had no such right. Her apparent consent was therefore given under a mistake of fact and was, in the circumstances, no consent at all. There is no doubt that the defendants were moved by kind thoughts to assist the plaintiff and her children, and to see that the late Asante’s entitlements were put to good use. But in their anxiety to show kindness, they have over-looked the real purpose and intendment of clause 12 of the superannuation scheme; and, to use the expression of James L.J. in Lambe v. Eames (1871) 25 L.T. 175 at p. 176, they have sought out of officious kindness to impose a trust on the plaintiff and her children, where her late husband never thought of creating any, and where in the particular circumstances of this case, the superannuation scheme never permitted them to do so. Consequently, their officious kindness has now turned out to be a very cruel kindness indeed. For it has brought unnecessary hardship and financial embarrassment to the plaintiff. Her pleas that part of the capital amount be given to her for the payment of the school fees of her children who had been sent home, owing to her inability to settle the said fees, were unreasonably and unsympathetically turned down because of the so called trust. Her husband died in 1962 and up to date, a period of nearly nine years, the trust fund, advocated by the defendants, has not yet been set up. The trust deed has not even been drawn up. The capital amount of ¢5,410.00 the subject of the alleged trust, was never put in any separate savings account for and on behalf of the plaintiff and her children. The amount of ¢5,410.00 is still mixed up with the defendants’ own savings account; and at certain stated periods the defendants declared to the plaintiff any sum of money which they considered to be the reasonable interest on the said ¢5,410.00. The defendants’ contention that the plaintiff was entitled to be paid only the interest for the education of her children was ill-grounded. I cannot find the source from which they derived this strange proposition. Because the very clauses of the scheme, on which they themselves relied to reject the plaintiff’s requests, do not stipulate that in administering a trust fund only the interests accruing from the capital amount should be used for the benefit of the widow and her children. [p.99] of [1972] 2 GLR 86 On the whole, I find that the defendants clearly misapprehended their legal position in this matter and their conduct, to my mind, is indefensible. In the circumstances, judgment will be entered for the plaintiff. Accordingly, it is hereby declared that there has never been any trust, express, implied or otherwise, which is binding on the plaintiff and her children in respect of the sum of ¢5,410.00, the subject-matter of dispute herein. It is further declared that the plaintiff is entitled to be paid the said amount of ¢5,410.00, and the same should be paid to her forthwith, together with any accrued interest. The plaintiff is entitled to her costs which I assessed at ¢500.00 inclusive of counsel’s fee of ¢300.00.
DECISION
Judgment for the plaintiff.
