AKWASI ADU ALIAS CHIEF & ANOR vs. KWAME AMPONSAH OKYERE

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A. D. 2026

CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)

PROF. MENSA-BONSU (MRS.) JSC

ASIEDU JSC

DARKO ASARE JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO. J4/16/2024

8TH JULY, 2026

1. AKWASI ADU ALIAS CHIEF PLAINTIFFS/APPELLANTS/

2. ADWOA PINAMANG ALIAS JANET RESPONDENTS.

VRS

1. KWAME AMPONSAH OKYERE DEFENDANTS/RESPONDENTS/

2. AKUA SERWAA APPELLANTS.

JUDGMENT

DARKO ASARE JSC:

This matter comes before this Court by way of an appeal from the judgment of the Court of Appeal, Kumasi dated the 20th day of April, 2023. The Court of Appeal reversed the trial court’s judgment dismissing the Plaintiffs/Respondents’ claim to ownership of the disputed property, which claim was asserted on the basis of a grant of the disputed property from their late father, J. C. Adu (hereafter referred to as the Testator). It further reversed the trial court’s decision upholding the Defendants/Appellants’ counter-claim for title, holding that the Defendants/Appellants lacked the requisite capacity to assert title.

For purposes of convenience, the Parties in these proceedings, shall bear the same designation that they bore in the trial court and accordingly the Defendants/Appellants herein shall be described as the Defendants, whilst the Plaintiffs/Respondents herein as the Plaintiffs.

FACTS

The facts giving rise to the instant appeal have been well set out in the judgment of the Court of Appeal, Kumasi and it will be necessary only to refer to the salient points necessary for the determination of this appeal, as set out in the said judgment.

This fratricidal litigation arises from competing claims concerning the ownership and testamentary disposition of Plot No. 9, Block 1, Yenyawoso, Kumasi, together with the building erected thereon, as well as certain other properties alleged not to have formed part of the Testator’s estate. The Plaintiffs, who are the children of the late Joseph Cofie Adu alias J. C. Adu (“the Testator”), commenced the action against the Defendants, being the sole surviving executor of the Testator’s estate and one of his nieces.

The Plaintiffs’ case was that the disputed plot was acquired by the Testator in trust for his infant daughter, Adwoa Addai, who subsequently died in infancy, after which the Testator erected the house standing thereon. They further contended that, during his lifetime, the Testator made a valid gift inter vivos of the entire property to all his children, which gift was accepted in accordance with customary law and later perfected by a formal Deed of Gift, with the result that the property now vested in them absolutely. At the trial, handwriting expert evidence was led authenticating the Deed of Gift as the Testator’s genuine deed. On the basis of the foregoing, the Plaintiffs contended that the property had ceased to form part of the Testator’s estate and that he therefore lacked testamentary capacity subsequently to devise any portion of it under his Will. They also challenged the Testator’s testamentary disposition of certain other properties, contending that those assets belonged to the 2nd Plaintiff’s late mother and had merely been entrusted to the Testator to hold in trust on her behalf.

The Defendants denied these claims in their entirety. Their case was that the disputed property had been acquired by the Testator in trust, not for his daughter, but for his niece, also named Adwoa Addai. Upon her death, they asserted, the beneficial interest devolved under customary law upon the 2nd Defendant as her customary successor. On that basis, they resisted the Plaintiffs’ claims and counterclaimed for a declaration of title, recovery of possession of the disputed property, damages and consequential injunctive relief.

Judgment of the High Court

The High Court entered judgment for the Plaintiffs only in respect of their claims relating to the properties alleged to have belonged to the 2nd Plaintiff’s late mother, but dismissed their claims concerning the disputed property, known as Plot No. 9, Block 1, Yenyawoso, Kumasi.

The learned trial Judge reasoned that the Plaintiffs had failed to prove that the Adwowa Addai named in Exhibit “A”, the instrument evidencing the acquisition of the disputed Yenyawoso property, was the Testator’s daughter, having adduced no corroborative evidence such as family records or birth certificates. He likewise discounted the handwriting expert’s authentication of the Testator’s Deed of Gift, which identified Adwowa Addai as the Testator’s daughter, on grounds that the expert had failed to examine a purported questioned document. Proceeding on that premise, the trial Judge accepted the Defendants’ contention that the beneficiary named in Exhibit “A”, the instrument of conveyance, was the Testator’s niece, and consequently entered judgment on the counterclaim for declaration of title, recovery of possession and damages

Judgment of the Court of Appeal

On appeal, however, the Court of Appeal reversed the High Court’s decision on the disputed property, granted the Plaintiffs’ claims relating thereto, dismissed the Defendants’ counterclaim, and affirmed the remainder of the High Court’s judgment. Aggrieved by that decision, the Defendants have appealed to this Court on the sole omnibus ground that the judgment of the Court of Appeal is against the weight of the evidence.

GROUND OF APPEAL

That the judgment was against the weight of the evidence

Though the Defendants intimated that additional grounds would be filed upon receipt of the record of proceedings, they filed none, and the prayer for relief sought in this appeal is essentially for a reversal of the decision of the Court of Appeal

I must begin my consideration of the merits of this appeal by restating the settled principle, that where, as in the present case, the principal complaint is that the judgment appealed against is against the weight of the evidence, this Court is enjoined to undertake a comprehensive and critical review of the entire record of appeal to ascertain whether the findings and conclusions reached by the trial court are justified and find support in the evidence properly on record

In undertaking that exercise, however, it is necessary to remain mindful of the equally well-established principle that findings of primary fact founded upon the credibility and demeanour of witnesses lie peculiarly within the province of the trial Judge, who had the singular advantage of seeing and hearing the witnesses testify. Consequently, unless it is demonstrated that the trial Judge committed a substantial error in the evaluation of the evidence, or that the findings are unsupported by the record, based on a misapprehension of the evidence, or are otherwise perverse, an appellate court must be slow to interfere with such findings.

Accordingly, this appeal must be determined on the presumption that the judgment of the trial court is correct. The burden therefore rests squarely on the Appellant to identify and establish the material errors, omissions, or misdirections in the judgment which, if corrected, would warrant this Court’s intervention and result in a different conclusion. See, in this regard, Tuakwa v Bosom (2001-2002) SCGLR 61 @ 65; Nortey (No. 2) v African Institute of Journalism and Communications & 2 Others [2013-2014] SCGLR 703,; Ampomah v. Volta River Authority [1989-90] 2 GLR 28, Koglex Ltd (No 2) v Field [2000] SCGLR 175 and Nkrumah v Ataa [1972] 2GLR 13.

CONSIDERATION OF ISSUES

Upon a careful examination of the sole ground of appeal, alongside the record of appeal as well as the Statements of Case filed by learned Counsel, I consider that the determination of this appeal turns on three principal questions:-

The first concerns the identity of Adwowa Addai, the infant beneficiary named in Exhibit “A”, the instrument of conveyance evidencing the acquisition of the disputed Yenyawoso property; the second concerns the competence of the Defendants to maintain their counterclaim for declaration of title to the disputed property; and the third, and ultimately decisive issue, concerns the proper characterization of the transaction effected by Exhibit “A”, the instrument of conveyance evidencing the acquisition of the disputed Yenyawoso property, its legal effect and the consequences that ensue upon the death of Adwowa Addai, the infant beneficiary.

Whilst the first two issues admit of relatively straightforward resolution, requiring no more than an examination of whether the conclusions reached by the Court of Appeal are supported by the established evidence on record, the third issue presents a more intricate question. It enjoins this Court to determine whether the Court of Appeal was correct in the manner of its characterization of the transaction embodied in the Deed of Conveyance, Exhibit “A”, and in its determination of the legal and equitable consequences necessarily flowing therefrom. It is to the determination of these questions that I now turn.

Issue relating to the identity of Adwowa Addai, the infant beneficiary named in Exhibit “A”,

Defendants’ Counsel contends, first, that the Court of Appeal erred when it reversed the trial court and held that Adwowa Addai in Exhibit “A” was the daughter, not the niece, of the Testator. According to Counsel, the question of identity was one capable of objective proof. He argues that the Plaintiffs’ bare oral evidence, unsupported by independent witnesses or documents such as birth certificates or family records, ought to have been rejected, and the Court of Appeal erred in reversing the trial court’s rejection of that evidence. Secondly, Counsel submits that the Court of Appeal was in error to affirm the handwriting expert’s authentication of the Deed of Gift, (Exhibit CE4), which identified Adwowa Addai as the daughter of J. C. Adu, when the trial court had rejected that opinion for failure to examine the relevant questioned document. Having concluded that the Court of Appeal’s findings as to the true identity of Adwowa Addai in Exhibit “A” cannot withstand scrutiny, Counsel urges this Court to set aside those findings.

In response, learned Counsel for the Plaintiff countered that this Court should not interfere with the Court of Appeal’s finding that Adwowa Addai was J. C. Adu’s daughter. Counsel argues that the Court of Appeal correctly held that the trial court misdirected itself by requiring corroboration where the issue had been adequately proved by documentary evidence, namely the Deed of Gift, properly authenticated by the handwriting expert, but which was improperly rejected by the trial court. Counsel concluded by inviting this Court to affirm the findings by the Court of Appeal.

Having independently reviewed the entire record, I am unable to accept learned Counsel for the Defendants’ sustained criticism of the Court of Appeal’s findings that the beneficiary named in Exhibit “A”, Adwowa Addai, was the daughter rather than the niece of the Testator, J. C. Adu. From the established evidence on the record, there is no doubt in my mind that the Court of Appeal correctly re-evaluated the evidence and rightly interfered with the contrary finding of the trial court.

In my judgment, the Court of Appeal had rightly reversed the trial judge’s rejection of the handwriting expert’s evidence which had duly authenticated the Testator’s Deed of Gift (Exhibit CE4) wherein the Testator unequivocally identified Adwowa Addai as his daughter.

As rightly held by the Court of Appeal, the trial Judge’s rejection of the handwriting expert’s opinion rested upon the mistaken assumption that the expert had failed to examine a certain “questioned document” when, in truth, none of the documents submitted for examination had been identified as such. That erroneous factual premise rendered the rejection of the expert evidence legally unsustainable.

It must be remembered that although expert evidence is never binding upon a court, it is settled that it may only be rejected upon cogent reasons founded upon the evidence and not upon any misconception or speculation. See the case of Tetteh & Anr. v Hayford (substituted by) Larbi and Decker [2012] 1 SCGLR 417 where the Court emphasized the need that, whenever a court decides not to use expert opinion, it must nonetheless give good, cogent and convincing reasons why the expert evidence is to be rejected. In this instant case the reason proffered by the trial judge for impugning the Deed of Gift (Exhibit “.CE4”) was without foundation, and the Court of Appeal properly set aside that determination

Once that erroneous rejection is displaced, the Deed of Gift (Exhibit CE4), executed by the Testator, identifying Adwowa Addai as his daughter, assumes its proper evidential significance as direct documentary evidence emanating from the maker himself.

As settled in a wealth of authorities, documentary evidence bears the clearest imprint of truth and unless good reason exists on the face of the record to discount it, it ought to prevail over conflicting oral testimony. See Republic v. Nana Akuamoah Boateng II; Ex parte Dansoa and Another [1982-83] GLR 913 S.C., Duah v Yorkwa [1993-94] 1 GLR 217 and Osei Yaw v. Domfeh [1965] G.L.R. 418, S.C

Once the Deed of Gift was accorded the probative value to which it was properly entitled, no further corroborative evidence was required to identify the Adwowa Addai named in Exhibit “A” as the daughter of J. C. Adu, the Testator. In these circumstances, the Court of Appeal was unquestionably correct in concluding that the trial court had misdirected itself in holding otherwise. I accordingly affirm the Court of Appeal’s determination on the identity of the beneficiary and reject the criticisms advanced against it.

Issue relating to the competence of the Defendants to maintain their counterclaim

At this re-hearing, the Parties are also sharply divided on the competence of the Defendants to maintain their counterclaim. The Defendants contend that the evidence established the 2nd Defendant as the customary successor to Adwoa Addai, whom they assert was the Testator’s niece and the beneficiary under Exhibit “A”, thereby conferring upon her the requisite standing to claim title to the disputed property. They accordingly submit that the Court of Appeal erred in dismissing the counterclaim for want of capacity.

The Plaintiffs, on the other hand, maintain that the counterclaim was grossly at variance with the evidence on record. They contend that the Adwoa Addai named in Exhibit “A” was the Testator’s daughter rather than his niece and, in any event, that the 2nd Defendant failed to establish any lawful basis upon which she could succeed to the estate of the deceased beneficiary so as to sustain the counterclaim.

After meticulous examination of the record, I am persuaded that the Court of Appeal correctly dismissed the Defendants’ counterclaim for want of capacity. From the evidence adduced at the trial, the 2nd Defendants’ entire claim to title proceeded upon the premise that the beneficiary Adwowa Addai named in Exhibit “A”, was the Testator’s niece and that any proprietary interest in the disputed property devolved upon her by customary succession.

However, as earlier determined, the Adwowa Addai named in Exhibit “A” was the Testator’s daughter and not the niece as contended by the Defendants. This means that the main plank upon which the 2nd Defendants’ case rested, finds no support in the evidence. Once that factual premise failed, the juridical foundation of the counterclaim necessarily collapsed.

Quite apart from that, the evidence disclosed no legal basis upon which the Defendants, especially the 2nd Defendant herself became entitled to assert ownership. If any transmissible interest had devolved from the deceased beneficiary, it would devolve upon those legally entitled to succeed to her estate and not upon the 2nd Defendant. Capacity to maintain an action for declaration of title must derive from an existing legal or equitable interest in the property in dispute. It cannot be founded upon speculation or an assumed claim of succession unsupported by law. The Court of Appeal therefore rightly held that the Defendants lacked the requisite standing to maintain the counterclaim, and that conclusion equally admits of no valid complaint. See Awuku v Tetteh [2011] ISCGLR 366 and Mondial Veneer (Gh) Ltd v Amuah Gyebu XV 2011 1 SCGLR 466.

Issue relating to the proper characterization and legal effect of the transaction embodied in Exhibit “A” together with the consequences that ensue upon the death of Adwowa Addai, the infant beneficiary.

The principal controversy arising under the third issue concerns the juridical character of the transaction embodied in Exhibit “A”, the instrument of conveyance evidencing the acquisition of the disputed Yenyawoso property;

Learned Counsel for the Defendants assailed the approach adopted by the Court of Appeal in construing the transaction as one between father and daughter, attracting the presumption of advancement rather than as an express trust in accordance with its express terms. Counsel submitted that, had the court below properly directed itself on the applicable principles governing express trusts, it would have concluded that the purchaser, J. C. Adu, having acquired the disputed property upon the express trust declared in favour of Adwowa Addai, thereafter lacked the competence to make any dispositions of the property. It was argued that, upon the death of the beneficiary Adwowa Addai, the beneficial interest devolved upon her estate and became transmissible to her lawful successors, with the consequence that any subsequent disposition by J. C. Adu, whether by Deed of Gift or by testamentary devise, was ineffectual for want of title or capacity. On that premise, it was contended that the Court of Appeal erred in law in upholding the validity of such dispositions.

Learned counsel for the Plaintiffs, for his part, supported the reasoning of the Court of Appeal, maintaining that its characterization of Exhibit “A” as a transaction between a father and his daughter, thereby attracting the presumption of advancement, was both sound and unimpeachable. It was further contended that, upon the failure of the beneficiary’s interest, the beneficial interest in the property reverted to the Testator, J. C. Adu, as the purchaser, thereby re-vesting in him full authority to dispose of the property, inter vivos. Consequently, Counsel submitted that the Court of Appeal committed no error in sustaining the validity of the subsequent gift inter vivos, and that the criticisms directed against its decision are devoid of merit.

The Parties’ competing submissions raise the central question whether the Court of Appeal was correct in law in characterizing Exhibit “A” as a transaction governed by the presumption of advancement, or whether, upon its true construction, it created an express trust whose legal consequences were fundamentally inconsistent with that characterization as an advancement. It is to the resolution of that question that I now turn.

Following a thorough examination of the record on appeal, it is apparent that the proper analysis of the Parties’ rival contentions, must begin with the language deliberately employed by the Parties themselves in Exhibit “A”, the instrument of conveyance evidencing the acquisition of the disputed property.

Exhibit “A” expressly records that the property was purchased by J. C. Adu “in trust” for Adwowa Addai. Those words are neither accidental nor superfluous. They constitute an unequivocal declaration of trust and the clearest manifestation of the purchaser’s intention that the property should be held subject to a trust. They leave no room for implication or presumption.

It is a fundamental principle of the law of trusts that where a person expressly declares that he acquires or holds property “in trust” for another, equity gives immediate effect to that declaration by constituting an express trust. No technical words or formal language are required beyond a clear manifestation of an intention to assume the office and obligations of a trustee. This principle is authoritatively stated in Halsbury’s Laws of England (3rd ed., Vol. 38, para. 1394, p. 833), where, referencing such age old authorities as Dipple v Corles (1853), 11 Hare 183 at page 184; Re Bankhead’s Trust (1856) 2 K & J 560; Richards v Delbridge (1874) L.R. 18 Eq. 11; and Heartley v Nicholson (1875) L.R. 19 Eq. 233, the learned author explains that where the settlor constitutes himself the trustee, any words which clearly demonstrate that he regards himself as holding the property in the character of trustee are sufficient to create an express trust.

Equity has long recognized that where the language of a conveyance expressly declares that property is acquired “in trust” for a named beneficiary, the Court is not at liberty to disregard those words or to substitute a different legal relationship merely because the beneficiary happens to be the purchaser’s child. The trust arises, not by implication or presumption, but by express declaration.

The authorities are clear that an express trust arises whenever the intention to create a trust, the trust property and the beneficiary are all sufficiently identified. Once those certainties, commonly referred to as the “three certainties” coexist, equity immediately fastens upon the conscience of the trustee and impresses the property with the declared trust. The above proposition finds apt illustration in long-standing authority such as Knight v. Knight ( 1840) Beav. 148, and in the persuasive views of Brobbey J (as he then was) in the case of Cofie and Others v. Forson and Others [1992] 1 GLR 312 which I fully endorse.

Following the establishment of an express trust, the beneficial interest thereby passes in accordance with the settlor’s manifested intention, and the legal estate thereafter remains vested in the trustee solely for the purposes of the trust. It follows in this case, that the equitable rights of the beneficiary Adwowa Addai arose immediately upon execution of Exhibit “A”, not because equity presumed an intention, but because the settlor, J. C. Adu expressly declared one.

That conclusion is of considerable importance because it renders wholly inapplicable the doctrine of advancement upon which the Court of Appeal principally relied, in this case.

It is to be noted that the presumption of advancement, lucidly examined in a host of authorities like Warren v. Gurney [1944] 2 All E.R. 472 at p. 473, Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92 at pp. 93-94, Shephard v. Cartwright [1955] A.C. 431 and by the incisive views of Azu Crabbe JA (as he then was) in the case of Osmond v. Hughes [1967] GLR 405, is no more than an evidential presumption invoked where the transferor’s intention has not been expressly declared. It operates as an exception to the ordinary presumption of resulting trust only in cases of evidential uncertainty. Where, however, the instrument itself expressly declares the capacity in which property is to be held, there exists no evidential gap requiring equitable presumptions to intervene.

The above equitable principle enjoys the support of a rich line of authorities like Kwantreng v. Amassah and Others [1962] 1 GLR 241, SC, at page 248, where Adumuah-Bossman JSC cited with approval a passage from Snell’s Equity (24th ed.) p. 153, as follows:-

“Both the presumption of a resulting trust and the presumption of advancement can be rebutted by evidence of the actual intention of the purchaser. In these cases the court puts itself in the position of a jury, and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention; it is only where there is no evidence to contradict it that the presumption of a resulting trust, or of advancement, as the case may be, will prevail.”

The same principle found expression in Quist v. George [1974] GLR 1 at page 12, per Abban J (as he then was) citing in support Fowkes v. Pascoe (1875) 10 Ch. App. 343 per Mellish L.J. at p. 353 and In re Howes; Howes v. Platt (1905) 21 T.L.R. 501, and stating thus:-

“In reality, the presumption of advancement is just a convenient device “in aid of decisions on facts often lost” due to lapse of time or the death of the parties directly involved. So that it is only where there is no evidence to counteract it that the said presumption will prevail”

Flowing from the above authorities, the threshold question in this present case, was never whether equity should presume a gift from father to daughter. The conveyance, Exhibit “A”, itself had already answered that question by declaring that the property was acquired in trust for the daughter. Express intention invariably displaces presumed intention.

The Court of Appeal therefore, with due respect, misdirected itself in approaching the case as one governed by advancement when the conveyance itself conclusively established an express trust. The Court of Appeal’s finding on the issue of advancement is untenable and is hereby set aside.

I am also unable to agree with the Court of Appeal’s further reasoning that the death of the infant beneficiary Adwowa Addai, without more, automatically re-vested the beneficial interest in the Testator, J. C. Adu, as the purchaser. That proposition finds no support in orthodox principles of trust law.

The proprietary nature of a beneficiary’s equitable estate under a trust is well settled. As stated in Halsbury’s Laws of England (3rd ed., Vol. 38, para. 1480, p. 877), a beneficiary enjoys substantially the same incidents of ownership over his equitable estate as a legal owner enjoys over a legal estate. This is how the learned author puts it:-

“A beneficiary under a trust possesses the same power of alienation or disposition with respect to his equitable estate or interest thereunder as a legal owner has over his legal estate or interest in property…”

The above proposition by Halsbury’s reinforces the key principle that once an express trust has been validly constituted, the trust does not cease merely because the beneficiary dies. Rather, the beneficial interest forms part of the deceased beneficiary’s estate and devolves in accordance with the applicable law governing succession to that estate, unless the trust instrument itself provides otherwise.

It is important to note that equity recognizes only limited circumstances in which a valid trust may be extinguished. The learned author Roger Samuels in his Book “Equity and Succession” at page 41, lists some of the circumstances under which a validly constituted trust may be terminated, including the fulfilment of its purposes, the exercise of an express power of revocation, unanimous beneficiary consent – i.e. the rule in Saunders v Vautier [1841] Cr & Ph. 240, expiry of the trust or judicial intervention. The mere death of a beneficiary is not among them.

The foregoing compels the conclusion that the Court of Appeal, with due respect, erred in principle in treating death alone as sufficient to extinguish vested equitable ownership under a trust. It is a proposition to which I am unable to lend the authority of this Court.

The Court of Appeal further relied upon the fact that following the death of Adwowa Addai, J. C. Adu, the purchaser resumed possession of the land, exercised acts of ownership thereon and thereafter dealt with it as his own. Respectfully, those facts could not, without more, alter the legal incidents of the trust. Trustees commonly remain in possession of trust property and exercise extensive powers of management. Such acts are entirely consistent with the continued existence of the trust. A trustee cannot, by unilateral acts of dominion, enlarge his own beneficial interest or divest an existing equitable estate.

The settled principle is that equity will not permit a trustee to profit from conduct inconsistent with the obligations imposed upon him by the trust. This foundational rule is affirmed in Halsbury’s Laws of England (3rd ed., Vol. 38, para. 1444, p. 857), which cites with approval the statement to that effect by Wigram V.C. in the case of Dobson v Land [1850] 8 Hare 216 at p. 221

The subsequent dealings of J. C. Adu, the Testator must therefore be viewed within their proper legal context, as it furnished no juridical basis for concluding that beneficial ownership had automatically re-vested in him. Consequently, and with due deference, I hold that the Court of Appeal misdirected itself in law in assuming that, upon Adwowa Addai’s death, the property automatically reverted to J. C. Adu merely because he thereafter exercised acts of dominion over it.

I am equally unable to endorse the Court of Appeal’s resort to customary law to resolve the issue of ownership of the disputed property. The Parties deliberately embodied their rights in a formal written conveyance creating an express trust recognized by the general law. The legal incidents of that transaction were therefore governed by settled principles of equity unless displaced by an established rule of customary law.

The Court of Appeal in this instant appeal, sought to resolve the incidents of an express trust by reference to Akan customary law, relying on Samuel A. Gyamfi’s Funerals Among the Akan People: Some Perspectives on Asante (2020). That publication, however, merely describes the funeral customs attending the death of an infant and nowhere articulates a customary rule governing succession to the estate of an infant beneficiary under an express trust. The Court of Appeal’s conclusion that the absence of elaborate funeral rites necessarily excludes the operation of customary rules of succession — and thereby defeats the equitable incidents of the trust — rests on an unwarranted inferential leap. In my respectful view, Gyamfi’s publication establishes no settled rule of customary law capable of displacing the well-established equitable principles governing the devolution of trust property. The Court of Appeal’s reliance upon it was therefore plainly misconceived and cannot be sustained.

Besides, no such customary rule was either pleaded or proved by the Parties in this case. Nor was any satisfactory evidence led at the trial, to establish a customary right entitling a father, upon the death of his infant child, to automatically repossess property previously settled upon that child in trust. I therefore find considerable force in Defendant Counsel’s contention that by founding its decision on an un-pleaded and unproved customary rule, the Court of Appeal offended the cardinal rule that a party must not be taken by surprise on an issue decisive to the case. See the views of Adumuah Bossman JSC in the case of Oppong Kofi and Another v. Fofie [1964] GLR 174, at page 182, citing with approval the dicta of Brett and Cotton L.JJ. in Philipps v. Philipps (1878) 48 L.J.Q.B. 135, at pp. 138, 139; see also similar views expressed by Taylor JSC in the case of Bisi and Others v. Tabiri alias Asare [1987-88] 1 GLR 360 pp 386-387.

Again, in substituting presumed customary incidents for the express legal incidents of an express trust, the Court of Appeal effectively rewrote the Parties’ transaction, a course the law does not permit. In the absence of proof, the contention that customary law automatically vested the trust property in the father upon the death of the infant beneficiary, must be rejected as being repugnant to settled principles of law and equity. In this respect also, the Court of Appeal fell into error, and I respectfully so hold.

That said, merely pointing out the Court of Appeal’s cumulative errors does not necessarily exhaust the present inquiry in this appeal. Hence, if the reasoning of the Court of Appeal is rejected without identifying the correct equitable consequences flowing from the facts on record, the litigation remains unresolved.

This is in view of the fact that from the analysis above, the Defendants have failed in their counterclaim; the Court of Appeal’s legal reasoning on the trust cannot stand, and with the record disclosing no ascertainable successor to the deceased beneficiary’s equitable estate, the ownership of the land would remain indefinitely uncertain.

Such a result would be inimical to settled equitable principle, as equity does not permit the beneficial ownership of property to remain permanently in abeyance. Indeed, the trite principle is that equity abhors a vacuum in title and will not sanction a conclusion by which land is left without any beneficial owner. See the observations of Date Bah JSC in the case of GIHOC v Hanna Asi [2005-2006] SCGLR 458; at 468-469, where similar concerns about the “risk of ownerless lands” were expressed.

It is precisely to prevent such an outcome that the doctrine of resulting trust assumes decisive importance. Although, as a general rule, the death of a beneficiary does not determine an express trust, the present case discloses exceptional features. This is borne out by the fact that the record reveals no succession proceedings in respect of Adwowa Addai’s estate and identifies no person in whom her equitable interest thereafter vested.

From the facts on record therefore, the evidential lacuna is complete. The beneficial ownership has, for all practical purposes disclosed by the record, wholly failed. The pivotal question that must thus be addressed is this: what are the necessary consequences which ensue in equity, where the beneficial interest under an express trust wholly fails?

In those exceptional circumstances, equity intervenes, not by revoking the express trust, but by supplying the equitable consequence of the total failure of beneficial ownership. On the premises stated, a resulting trust will arise because equity will not permit the beneficial interest to remain ownerless. Indeed, abundant authority affirms the long-settled equitable principle that where the beneficial purposes of a trust wholly fail, the beneficial interest results back to the settlor, unless that consequence is displaced by statute.

The proposition of the law was aptly highlighted by Browne LJ in the case of Burgess v Rawnsley [1975] 3 All ER 142 at p. 149 in the following words:-

“It is clear that where a person creates a trust for a particular purpose or in contemplation of a particular event and that purpose fails or that event does not happen, there is a resulting trust in favour of the settlor. Lord Denning MR has already referred to Underhill on Trusts”

Similarly, in the case of Re Cooper’s Conveyance Trusts [1956] 3 All ER 28, the facts were that the Howard Orphan Home near Kendal, in the County of Westmorland, was founded by the generosity of the Honourable Mary Howard in 1864, but due to a change of circumstances it was forced to close in 1954 after ninety years of useful life. The question which the court had to determine was whether the lands and buildings on which the charity was conducted, and the proceeds of sale of a small part which has been sold, ought now to be applied on charitable trusts cy-près, or whether there is a resulting trust for the estate of the grantor, who had long since died. On these facts, the court held that where a charitable gift is intended to operate only for a specified purpose or duration, and that purpose subsequently becomes impossible, the failure of the gift over leaves the beneficial interest undisposed of. In such circumstances, the property reverts to the donor’s estate by way of a resulting trust, rather than being applied cy-près.

Then in the case of Re The Trusts of The Abbott Fund [1900] 2 Ch. 326, certain individuals had subscribed large sums to a fund, for the relief of two ladies who were deaf and dumb, but no provision was made for its disposal on the death of the survivor. It was held that the fund was held upon a resulting trust for the subscribers. Again in the case of Re Gillingham Bus Disaster Fund [1959] Ch. 62, a fund was raised by subscription for the benefit of victims of an accident and for other causes. The trust failed as a charity and it was held that the surplus should be held on resulting trust for the donors, although many were anonymous.

As Harman J succinctly put it at first instance in Gillingham ([1958] 1 All ER 37 at 41, a resulting trust in such circumstances, “…is an inference of law based on after-knowledge of the event…” and arises where the expectation of a trustee “….is for some unforeseen reason, cheated of fruition.” I accept that fully.

In my judgment, upon the peculiar facts disclosed by this record, equity will cut the gordian knot, and recognize the effect of a resulting trust in favour of the purchaser, J. C. Adu upon the complete failure of the beneficial ownership. That conclusion does not contradict the existence of the earlier express trust. Rather, it gives effect to an entirely different equitable principle operating after the beneficial interest has failed.

The reversion of the beneficial estate to J. C. Adu occurred by operation of law and not merely because the beneficiary Adwowa Addai died, nor because J. C. Adu exercised dominion over the property, nor because customary law restored ownership to him. It arose solely because the beneficial ownership disclosed by the record had wholly failed and equity would not permit the property to remain without an equitable owner.

Once the beneficial interest re-vested in J. C. Adu by operation of resulting trust, he became both legal and beneficial owner of the property and thereby acquired an unimpeachable root of title. He was consequently fully competent to dispose of the property by deed of gift, as indeed he did in favour of the Plaintiffs herein.

The title conveyed to the Plaintiffs by J. C. Adu was therefore derived from a valid and complete proprietary interest recognized by both law and equity. Their ownership claim to the disputed property must consequently prevail, and I accordingly so declare.

In light of the analysis above, and having carefully reviewed the record of appeal in its entirety, I hold the respectful view that there was no error in the Court of Appeal’s final conclusion that the Plaintiffs’ title derived from J. C. Adu was valid

Under the circumstances, it is my judgment that the Defendants have failed to successfully establish that the judgment of the Court of Appeal was against the weight of the evidence on record. The sole ground of appeal therefore fails and is hereby dismissed.

In summary, this appeal illustrates several settled principles of equity. An express declaration of trust excludes resort to presumptions of advancement; the death of a beneficiary does not, without more, extinguish an express trust; a trustee cannot acquire beneficial ownership merely by exercising acts of dominion over trust property; customary law cannot displace the legal incidents of an express trust unless otherwise notoriously established or properly pleaded and proved; and where, in the exceptional circumstances of a case, the beneficial ownership wholly fails and no successor can be identified, equity in the absence of clear statutory intervention, prevents a vacuum in title by raising a resulting trust in favour of the settlor.

CONCLUSION

For all the reasons afore-stated, although I respectfully disagree with the legal reasoning by which the Court of Appeal reached its conclusion on the issue of the trust, I am satisfied that its ultimate disposition of the litigation was correct.

The result is that the appeal accordingly fails and is dismissed, albeit upon grounds substantially different from those relied upon by the Court of Appeal.

(SGD.) Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

(SGD.) PROF. H. J. A. N. MENSA-BONSU (MRS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

ASIEDU JSC:

[1.0]. INTRODUCTION

My lords, this is an appeal from a judgment of the Court of Appeal dated the 20th April 2023. In the said judgment, the Court of Appeal overturned the judgment of the trial High Court which had been delivered in favour of the Defendants/Respondents/Appellants (hereinafter referred to as the Appellants).

The Plaintiffs/Appellants/Respondents shall hereinafter be referred to as the Respondents.

[2.0]. FACTS

By an amended writ of summons and accompanying statement of claim, the Respondents sought the following reliefs against the Appellants:

“1. A declaration that the gift made to his children by the late Joseph Cofie Adu also written as Joseph Coffi Adu @ J.C. Adu in respect of Plot No. 9 Block 1, Yenyawoso Layout, Kumasi described in the deceased’s Will as Plot 1 Block 9 and the building(s) thereon is valid.

2. A declaration that the deceased had no testamentary capacity to devise the said property: Plot No. 9 Block 1, Yenyawoso Layout, Kumasi described in the deceased Will as Plot 1 Block 9 and the building(s) thereon or any part thereof to any person or group of persons as same had been validly gifted to the Children of the deceased.

3. A further declaration that property Plot No. 9 Block 1, Yenyawoso Layout, Kumasi and the building(s) thereon do not form part of the residuary Estate of the Testator.

4. An Order that Plot No. 9 Block 1 Yenyawoso Layout, Kumasi and the building(s) thereon are the properties of the Plaintiffs and the other children of the late Joseph Cofie Adu @ J.C. Adu in accordance with the deed of gift executed by the said J.C. Adu for his children.

5. An Order for Possession.

6. A declaration that the properties listed hereunder do not form part of the testator’s estate and as a result the testator did not have testamentary capacity over the said properties.

a) i. A Cocoa Farm situate and lying at Tetrem/Wenchi Korkoso on Offinso Stool Land bounded by the Properties of Agya Atta, Agya Atuahene, Opanin Akwasi Nsiah and Maame Henewaa. ii. A Cocoa Farm situate and lying at a place commonly known and called as Korlekrom bounded by the properties of Agya Kobea, Agya Oteng and Agya Korle. iii. A Cocoa Farm lying at a place ordinary (sic) known and called Ahwetieso and bounded by the properties of Agya Panin, Appiagyei, Pofu Stream and a Feeder Road from Abofour to Berekum. iv. A Cocoa Farm situate at Adomkrom sharing boundaries with the properties of Agyin Nkramo, Twumasi and Adubofour.

b) Boys Quarters on Plot No. OF 88 at Offinso New Town.

c) Clothing, Gold Nuggets, Furniture and personal belongings.

7. An Order that the 2nd Plaintiff is the owner of all the properties mentioned in paragraph 6 and its sub-paragraphs supra and that any purported devise made by the testator in respect of these properties to the 2nd Plaintiff and or any other person(s) in his Will is void and same does not transfer any property to the named beneficiaries.

8. An Order restraining the Defendants, their agents, assigns, privies, family members, personal representatives and all who claim through and or under the Defendants from doing anything that is detrimental and or adverse to the interest of the Plaintiffs and their other brothers and sisters in respect of the properties so described above.

9. Any further Order(s) as the Court may deem expedient.”

[2.1]. The Respondents averred that they are surviving children of the late Joseph Coffi Adu, and commenced the instant action for and on behalf of the other surviving children of the said Joseph Coffi Adu. The 1st Appellant, sole surviving Executor of the last Will and Testament of the late Joseph Coffi Adu, was sued in that capacity (as Executor). The 2nd Appellant is a niece of the late Joseph Coffi Adu.

[2.2]. The Respondents averred that the Respondents’ father, during his lifetime, acquired Plot No. 9 Block 1, Yenyawoso Layout, Kumasi, and built a house thereon. That the late Mr. Adu acquired the said plot, by a lease from one Chief Kwabena Oduro, then the Odikro of Yenyawoso, in trust for Mr. Adu’s daughter, Adwoa Addai, a minor, and that the said lease was confirmed by Sir Osei Agyeman Prempeh II K.B.E., Asantehene.

[2.3]. It has been the case of the Respondents that Adwoa Addai, their father’s daughter, died at a tender age.

That their late father, during his lifetime, gifted the said Plot No. 9 Block 1, to his surviving children, the Respondents herein. That the Respondents and their other siblings accepted the gift and offered two bottles of schnapps and a sheep as aseda to seal the gift. The Respondents averred further that subsequently, their late father executed a deed of gift and thereby transferred Plot No. 9 Block 1 to them (children of Mr. Adu).

[2.4]. It has been averred by the Respondents that their late father, in his last Will and Testament, purported to devise two (2) rooms in House No. Plot 9 Block 1 Yenyawoso, described in the Will as Plot 1 Block 9 Yenyawoso, Kumasi, to two of their deceased late father’s daughters. That having earlier gifted Plot No. 9 Block 1 to the Respondents and their other siblings, the Respondents’ deceased father lacked testamentary capacity to have devised rooms in the said house by his Will.

That the 2nd Appellant lays claim to Plot No.9 Block 1 in a manner that is trespassory. Therefore, the Respondents sought an order to restrain the 2nd Appellant from the unlawful act.

[2.5]. The 2nd Respondent averred that 2nd Respondent’s mother, Nana Afia Afranewaah II, who was the Queen mother of Offinso Traditional Area, died at the time 2nd Respondent was young, and left behind properties for the 2nd Respondent, which properties include two (2) cocoa farms at Adomkrom, cocoa farm at Korlekrom, cocoa farm at Ahwetieso, land at Dwenedebi, cocoa farm at Korkoso near Tetrem/Wenchi, boys quarters at Offinso New Town, clothing, gold nuggets, furniture and other personal belongings. That after the death of the 2nd Respondent’s mother, the 2nd Respondent’s late father, Mr. Adu, was entrusted with the aforementioned properties by Nana Wiafe Akenten II, then Paramount Chief of Offinso Traditional Area, an uncle to 2nd Respondent’s mother, to hold for the exclusive benefit of the 2nd Respondent, with an undertaking signed by Mr. Adu to that effect. The 2nd Respondent asserted that his late father, Mr. Adu, however, purported to devise some of the above-mentioned properties in Mr. Adu’s last Will and Testament, which dispositions are void.

[2.6]. The Appellants, on the other hand, denied the Respondents’ claims and averred that Mr. Adu acquired Plot No. 9 Block 1 in trust for Mr. Adu’s niece, Adwoa Addai, who was a minor. That the 2nd Defendant/Respondent/Appellant (2nd Appellant herein), is the customary successor of the said Adwoa Addai. Consequently, the 2nd Appellant averred that Plot No. 9 Block I was the property of Adwoa Addai, Mr. Adu’s niece, and so, 2nd Appellant was entitled to the said property in her capacity as customary successor in line with Akan customary law.

The 2nd Appellant, therefore, counterclaimed against the Respondents as follows:

A declaration of title and recovery of possession of Plot No. 9 Block I, Yenyawoso, Kumasi by succession.

Perpetual injunction restraining the Plaintiffs [Respondents herein], their assigns, workmen and person(s) claiming through them, etc from interfering with the Defendants’ right of enjoyment Plot No. 9 Block I, Yenyawoso, Kumasi.

Damages

[3.0]. JUDGMENT OF THE TRIAL HIGH COURT:

After trial, the High Court delivered judgment on the 9th March, 2018 and dismissed the case of the Respondents. Conversely, the 2nd Appellant’s reliefs on her counterclaim were granted by the Court.

The learned trial Court Judge reasoned that the Respondents did not make out a case in support of their claim that Adwoa Addai was one of Mr. Adu’s children. The Court found that neither did the Respondents call relevant witnesses to support their claim, nor did the Respondents tender photographs, a birth certificate, Hospital or school records to corroborate the fact that there was an Adwoa Addai, who was their sibling and that it was the said Adwoa Addai whose name was stated in the lease agreement as the beneficiary of the trust created by the Respondents’ father, Mr. Adu. The Court observed that it was pertinent to establish this fact by cogent evidence as the “leasehold document was silent on whether ADWOA ADDAI the beneficiary of the TRUST”, was a daughter or a niece of Mr. Adu, the settlor and trustee of the trust.

The Court was, however, satisfied with the Appellants’ version of the evidence that the said Adwoa Addai was a niece of Mr. Adu, and that Adwoa Addai was succeeded by the 2nd Appellant.

The learned trial Judge expressed himself (at pages106 – 107 volume 2 of the ROA) as follows:

“On the facts if it is proven or otherwise found that Adwoa Addai daughter of J.C. Adu, died at age eleven, the Trust property will not revert to the Trustee – J.C. Adu, because the trust had been fully constituted. The property will be part of Adwoa Addai’s estate, because it is her property and her customary successor, is the person to whom it will devolve. A Resulting trust cannot be inferred, because a child can own immovable property, except that it cannot be in his/her name.

On the facts, the retention of EXHIBIT ‘A’, tenancies created and income realized from the property do not by themselves constitute evidence of conclusive presumption that J.C. Adu did not intend to give the property to ADWOA ADDAI, his daughter.”

Having come to the conclusion that Plot 9 Block 1 was acquired and held in trust by Mr. Adu for Adwoa Addai, Mr. Adu’s niece, the Court held that the said property could not subsequently be conveyed to the Respondents herein by Mr. Adu, even after the death of Adwoa Addai, the beneficiary. That “on the facts, if it is found as proved or otherwise established that Adwoa Addai who was a minor, became an adult and had children, it is her immediate family and the extended matrilineal family who will be the rightful persons to inherit her property.”

Accordingly, the Court concluded that the Respondents herein had no interest whatsoever in the disputed property, Plot 9 Block 1, Yenyawoso, Kumasi.

[3.1]. Dissatisfied with the conclusion reached by the trial High Court, the Respondents appealed to the Court of Appeal, praying the Court of Appeal to set aside the judgment of the trial High Court.

[4.0]. JUDGMENT OF THE COURT OF APPEAL

In a judgment delivered on the 20th April 2023, the Court of Appeal overturned the judgment of the trial High Court, and found in favour of the Respondents herein.

At pages 207-208 of Volume 2 of the Record of Appeal (ROA), the Court of Appeal summed up the contentious issues before the Court in the following terms:

“Whilst the appellants [Respondents herein] contend that the late testator [Mr. Adu] acquired the said property in the name of his infant daughter called Adwoa Addai who died in infancy, the respondents [Appellants herein] contended fiercely that the said house was rather acquired in the name of Adwoa Addai, the niece of the testator and for that matter, the testator was a trustee of the said Adwoa Addai his niece. With respect to the devises in paragraph 2 [of Mr. Adu’s Will] aforesaid, the 2nd appellant contended that the said properties already belonged to her as the same were for her late mother who was the Queen mother of Offinso Traditional Area.”

The Court found that the Adwoa Addai in question was the daughter of Mr. Adu, and considering that Adwoa Addai died at a very tender age, Adwoa Addai was not considered, under Akan custom, to have left behind an estate.

The Court stated (at page 247 Vol. 2 of the ROA) that:

“It is therefore wrong for the Learned Trial Judge to hold that the subject property would have devolved on the estate of Adwoa Addai the infant child of J.C. Adu; because being a “soduor”, and an infant, she would not have any estate under the Akan Customary practice. It is therefore logical to assume that the property will revert to J.C. Adu as her death in infancy would have truncated the advancement. To hold that the testator who used his resources to acquire the subject property with the clear intention of advancing it to his daughter who died in infancy will lose such property when the said daughter died during infancy would be contrary to equity and good conscience.”

[4.1]. The Court also observed that the trial Judge’s rejection of the evidence by the 2nd Respondent on the basis that the 2nd Respondent failed to lead corroborated evidence that the Adwoa Addai mentioned in Exhibit A, the deed of lease, was her half-sister by failing to tender in evidence such documents as a Birth Certificate, Hospital records, School records, was rather onerous. The Court, therefore, stated thus, “to request Birth Certificates of someone who died in infancy in the early 1960s will be unreasonable in the circumstances. It will therefore be wrong to expect a witness to get documents as stated by the Trial Judge based upon which he rejected the appellant’s [Respondents herein] case.”

That on the evidence on record, the only reasonable inference to be made was that, Mr. Adu rather acquired the property in the name of his daughter, Adwoa Addai, and not his niece, Adwoa Addai. And that this conclusion was supported by the fact that even after the death of Adwoa Addai the niece, Mr. Adu continued to exercise rights of ownership over the subject property. That the “Trial Judge therefore was wrong when he found that the Adwoa Addai in contention was rather the niece of J.C. Adu and not his daughter.”

The Court reasoned further that even if the subject property, Plot 9 Block 1, belonged to Adwoa Addai the niece of J.C. Adu, it would, in the circumstance, have devolved on her children upon her death and for that matter, the 2nd Appellant had no capacity to mount an action, counterclaim herein, to assert ownership of the property. Accordingly, the learned Justices of the Court of Appeal concluded that the learned trial Judge fell in error when he declared title to the said property in the 2nd Appellant. For instance, the Court stated (in the concurring opinion at page 265 Volume 2 of the ROA) that, “[t]he 2nd respondent [2nd Appellant herein], as a caretaker, could not make a counterclaim to the property in her own name, and as she did not also counterclaim on behalf of the children of Adwoa Addai, to whom the property was allegedly said to belong, she had no capacity to make counterclaim in respect of the disputed property.”

The Court of Appeal reasoned that the deed of gift executed by Mr. Adu was not challenged whatsoever by the Appellants, in the face of cogent evidence, including expert opinion, that the said deed was duly signed by Mr. Adu. The Court raised doubts as to the creation or existence of a trust in favour of Adwoa Addai, Mr. Adu’s niece, who died at the age of 37 years, yet had no knowledge that she was a beneficiary of a trust. The Court observed (at page 263 Volume 2 of the ROA) that:

“By their evidence, the respondents [Appellants herein] are saying that Adwoa Addai, on whose behalf the property was allegedly bought and held in trust, was not even aware of the property being held in trust for her. Adwoa Addai died in 1990 at the age of thirty-seven (37). The question is, why J.C. Adu did not inform her of the property or even hand over the documents of title to her. She was not even aware of the property. This creates doubts in the respondent’s [Appellant’s] story as they were relying on what late J.C. Adu allegedly told them in 1990.”

Accordingly, judgment was entered in favour of the Respondents herein.

[5.0]. APPEAL TO THE SUPREME COURT

Aggrieved by the judgment of the Court of Appeal, the Appellants, by a notice of appeal filed on the 3rd May 2023, lodged the instant appeal on the following grounds:

That the Judgment was against the weight of the evidence.

That further grounds will be filed upon receipt of the Record of Appeal.

My lords, no further grounds of appeal were filed by the Appellants. Therefore, the instant appeal has been founded on the sole ground that the judgement of the Court of Appeal is against the weight of the evidence on record.

[6.0]. APPELLANTS’ ARGUMENT

In the statement of case filed on 22nd May, 2024 pursuant to leave granted by this Court, Counsel for the Appellants argued that the conclusion drawn by the Court of Appeal that Adwoa Addai is the daughter of Mr. Adu, the settlor and trustee, is not supported by the evidence on record. That the evidence on record points to the obvious conclusion that Adwoa Addai was the niece of the trustee. According to Counsel, the 2nd Appellant testified and admitted under cross examination that Adwoa Addai was the niece of Mr. Addai, the trustee. That the Court of Appeal erred when they accepted the bare testimony of the Respondents on the identity of Adwoa Addai when the said allegation could properly be established by documentary evidence.

Counsel argued that once an express trust was constituted by Exhibit A, the deed of lease, without the reservation of a power to revoke the trust, the trustee owed a fiduciary duty to the beneficiary of the trust and therefore could not have disposed of the property to the trustee’s children by the execution of Exhibit CE4, the deed of gift. That assuming without admitting that the Adwoa Addai in contention was the daughter of Mr. Adu, the settlor, by the presumption of advancement, once the settlor and trustee had advanced the property to Adwoa Addai, his daughter, the same property could not form the subject matter of a Deed of Gift in favour of the Respondents.

That the identity of Adwoa Addai was established as the niece of the trustee for whom the property was acquired in trust and that consequently, upon her death intestate, the property would devolve unto the 2nd Appellant herein as her customary successor in accordance with Akan customary law.

Counsel has argued further that an express trust was validly constituted by the trustee in favour of an Adwoa Addai, and that in Exhibit A, the trustee declared himself to be trustee of the property in favour of Adwoa Addai without reserving the power to revoke the trust. That “once this express trust was created, the equitable interest could only be disposed of by the person entitled to the trust which is Adwoa Addai, the trustee’s niece in this case….”. Accordingly, Counsel has submitted that the trustee could not have disposed of the interest in the property to his children due to the fact that an express trust was already validly constituted.

[7.0]. RESPONDENT’S ARGUMENT

In the amended statement of case filed on the 21st January 2025, Counsel for the Respondents argued that the judgment of the Court of Appeal is in tune with the evidence on record, and ought to be affirmed by this Honourable Court. That it was incumbent on the 2nd Appellant to lead evidence in support of her claim of trust in favour of Mr. Adu’s niece, but 2nd Appellant failed to do so. That whereas the Respondents have demonstrated a gift in their favour with the production of documentary evidence in line with their pleadings, the Appellants have not been able to do so in support of the Appellants’ case. That the pleading of the 2nd Appellant is not in consonance with the 2nd Appellant’s evidence, in that whilst the 2nd Appellant averred in her pleadings that the property in question belongs to Adwoa Addai, Mr. Adu’s niece, 2nd Appellant in her evidence claimed personal ownership of the said property. This, Counsel has argued, constitutes a material inconsistency in the case of the 2nd Appellant which inconsistency ought not be overlooked by the Court.

It has been argued further by Counsel that, given the overwhelming evidence that the Adwoa Addai contemplated by Mr. Adu as beneficiary of the trust was Mr. Adu’s daughter, who died a minor, it means that the trust was not validly constituted as the person to benefit from same could not attain majority and take over the property. Consequently, Mr. Adu, the settlor, was at liberty to deal with the property as he so desired.

The Respondents have, therefore, prayed the Court to dismiss the instant appeal.

[8.0]. DETERMINATION OF THE APPEAL

My lords, as indicated above, the instant appeal is founded on the sole ground that the judgment of the Court of Appeal is against the weight of evidence on record.

It has been held, ad nauseam, by the Courts that an appeal, particularly founded on the ground that the judgment of the Court below is against the weight of evidence, throws an invitation to the appellate court to review the entire record of appeal, in order to ascertain whether the findings and conclusion reached by the court below are supported by the evidence on record. Consequently, an appellant who relies on this ground of appeal bears the duty to assist the appellate court by showing relevant evidence on record which the court below either ignored or applied in a manner which if otherwise properly considered, would have inured to the benefit of the appellant. See IN RE BONNEY (DECD); BONNEY v BONNEY [1993-94] 1 GLR 610 SC.

[8.1]. My lords, of the issues that emanated from the pleadings settled by the parties herein before the trial Court, the contention which culminated in the instant appeal has been the identity of the Adwoa Addai for whose benefit Mr. Adu acquired and held Plot No. 9 Block 1. Whilst the Respondents argue that the Adwoa Addai in question was their father’s daughter who died at about the age of 11 years and therefore entitled their father, subsequent to the death of Adwoa Addai, to gift the said property to the Respondents, the 2nd Appellant, who successfully pursued a counterclaim against the Respondents, asserts that the said Adwoa Addai was a niece to the Respondents’ father and 2nd Appellant’s elder sister, who died sometime in 1990 at about the age of 37 years. That having succeeded the said niece of Mr. Adu in accordance with Akan custom upon her death, the property, Plot No.9 Block 1, which was held in trust for the said Adwoa Addai devolved on Adwoa Addai’s estate, thereby making the 2nd Appellant the proper person to claim and protect the property in dispute.

[8.2]. An offshoot of the Court of Appeal’s conclusion, as already pointed out above, was that the 2nd Appellant lacked “capacity” to counterclaim as representative of the estate of the late Adwoa Addai. In other words, even if the evidence was settled that the Adwoa Addai in question was Mr. Adu’s niece, that would not afford the 2nd Appellant the capacity of a personal representative of the estate of Adwoa Addai (deceased).

At pages 264 to 265 volume 2 of the ROA, the Court of Appeal observed as follows:

“This brings me to the legal issue of capacity on the part of the 2nd respondent [2nd Appellant herein] to make a counterclaim. If, as the respondent’s [Appellants’] evidence show, she was made a caretaker until the children of Adwoa Addai were of age, she was expected to hand over to them when they became of age. DW1, Sophia Adu Boakye, was thirty-nine (39) years old when she testified on 7th November, 2016. She had long come of age at the time of the action, yet the evidence does not show that the disputed property was handed over to her, if indeed J.C. Adu [Mr. Adu] had said it was for Adwoa Addai to be held by the 2nd respondent [2nd Appellant] for the children until they became of age.

[8.3]. As DW 1 was of age, one would have expected her to have joined the action to enable her make a counterclaim on behalf of herself and her siblings. The 2nd respondent [2nd Appellant], as a caretaker, could not make a counterclaim to the property in her own name, and as she did not also counterclaim on behalf of the children of Adwoa Addai, to whom the property was allegedly said to belong, she had no capacity to make a counterclaim in respect of the disputed property.”

My lords, the DW1 referred to in the preceding dictum, one Sophia Adu Boakye, testified at the trial that she, DW1, is a surviving child of Adwoa Addai who was Mr. Adu’s niece. The learned Justices of the Court of Appeal pointed out, therefore, that if the 2nd Appellant was required by custom to serve as caretaker of the estate of the said late Adwoa Addai until Adwoa Addai’s children became of age, DW1’s testimony implied that the 2nd Appellant had no business with the estate of the said Adwoa Addai, Mr. Adu’s niece.

[8.4]. In the circumstance, the capacity and locus standi of the 2nd Appellant ought to be established first before any other issue is considered on the merits. If the claim of 2nd Appellant’s capacity and/or locus standi is not substantiated, the 2nd Appellant’s counterclaim falls, and the instant appeal falls with it.

Indeed, in Alfa Musah v Francis Appeagyei [2019-2020] 1 SCLRG 606, this Honourable Court stated (at pages 612 to 613 of the Report) that:

“We think the law is that when a party lacks the capacity to prosecute an action, the merits of the case should not be considered. However, the two lower courts, with due respect, proceeded to discuss at length all the issues raised, as if the appellant’s case was to be considered on the merits. If a suitor lacks capacity, it should be construed that the proper parties are not before the court for their rights to be determined. A judgment, in law, seeks to establish the rights of parties and to declare the existing liabilities of the parties. In the case of Akrong v Bulley [1965] GLR 469, the Supreme Court after holding that the plaintiff lacked capacity to prosecute the action as an administrator of the deceased, did not proceed to discuss the merits. For it is not permitted in law, to discuss the merits of a matter when the proper parties are not before the court.”

The relief granted by the trial High Court, as indorsed in the 2nd Appellant’s counterclaim, reads as follows:

“By way of counterclaim, the 2nd Defendant [2nd Appellant herein] repeats the averments in paragraphs 2 to 12 of the amended statement of defence and counterclaims as follows:

“A declaration of title and recovery of possession of Plot No.9 Block 1, Yenyawoso, Kumasi by succession.”

The 2nd Appellant asserted ownership of the disputed property, Plot 9 Block 1, on the basis that after the death of Adwoa Addai, 2nd Appellant’s sister and Mr. Adu’s niece, the 2nd Appellant was invited by Mr. Adu, together with Adwoa Addai’s children, and Mr. Adu told the 2nd Appellant that the disputed property was for Adwoa Addai and that the 2nd Appellant “should take it [the property] and use it to take care of her [Adwoa Addai] children.” (See page 33 of Vol. 2 of the ROA).

With respect, leaving the property in charge of the 2nd Appellant for the children, assuming that indeed happened, was not sufficient basis for the 2nd Appellant to assert ownership of the property. Therefore, the learned trial High Court Judge erred in declaring title in the 2nd Appellant on her counterclaim. It has been held by this Honourable Court that even without first having the estate vested in them, the children of a deceased person have an immediate right to assert ownership, either by way of a suit or counterclaim, to protect the estate of their deceased parent(s). See Boya v Mohammed (substituted by) Mohammed & Mujeeb [2017-2020] 1 SCGLR 997. This, the Court held, was the effect of section 4(1)(a) of the Intestate Succession Law (PNDC Law 111). That immediate right does not seem to extend to a caretaker like the 2nd Appellant herein whose duty, according to her own testimony, was to use the property in question to take care of the infant children of the deceased who are now of full age and capacity.

[8.5]. My lords, a counterclaim is regarded as a separate and independent action in itself. A counterclaim was a cross-action and was therefore a separate action which would be filed to commence proceedings in the court in which the plaintiff’s claim was filed. See, Kamara vs. Traore [1968] GLR 1009; Fosuhene vs. Atta Wusu [2011] 1 SCGLR 273; Hydrafoam Estates Ltd. vs. Owusu [2013-2014] 2 SCGLR 1117

That being so, a Defendant who intends to raise or file a counterclaim should ensure that he has capacity to make the claim in respect of which he portends the counterclaim. In filing a counterclaim therefore, a Defendant is required to satisfy the provisions of Order 2 rule 4 of the High Court Rules of Procedure to the effect that:

4. Indorsement as to capacity

(1) Before a writ is filed it shall be indorsed

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which the defendant is sued.

(2) Before a writ is filed by a plaintiff who acts by an order or on behalf of a person resident outside Ghana, the writ shall be indorsed with a statement of that fact and with the address of the person so resident”.

The endorsement on the 2nd Defendant’s counterclaim leaves one in no doubt that the 2nd Defendant was claiming in her own right for declaration of title to the property in dispute. The 2nd Defendant/Appellant’s counterclaim is not brought in a representative capacity. The 2nd Defendant/Appellant claims in her own right for a declaration of title to the property in dispute. The evidence which she adduced shows clearly and without any doubt that the 2nd Defendant/Appellant lacks capacity to claim the disputed property in her own right. At page 33 of volume 2 of the record of appeal, the 2nd Defendant/Appellant testified that:

“It is not true my uncle had a daughter called Adwoa Addai. There is an Adwoa Addai who was my elder sister. She died long ago. She died in 1990. She had five daughters. I know Sophia Boakye (DW1) who is the daughter of my late sister Adwoa Addai. When my sister died, I was appointed by the family as the customary successor. My late sister Adwoa died was born in 1953. On the death of my late sister my uncle J C Adu invited me and my sister’s children over the disputed property, he told us the property in dispute belongs to my sister Adwoa Addai so I should take it and use it to take care of her children”.

[9.0]. CONCLUSION

From the foregoing, the 2nd Appellant lacked capacity as a representative of the estate of the Adwoa Addai she purported to have succeeded. Having not sought, at the very least, to claim the property for and on behalf of the estate of the late Adwoa Addai but in the 2nd Appellant’s own name and right, I am of the humble view that the 2nd Appellant was bereft of locus standi to so claim. Accordingly, the instant appeal fails on the preliminary question of locus standi, and is hereby dismissed. The judgment of the Court of Appeal dated the 20th April 2023, is hereby affirmed.

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

LOVELACE-JOHNSON JSC:

I have read the judgment of my respected brother Asiedu JSC. I agree with his reasoning and the unanimous conclusion of my brethren that the appeal has no merit and should be dismissed.

(SGD.) A. LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

COUNSEL

KWAKU GYAU BAFFOUR ESQ. FOR THE DEFENDANTS/RESPONDENTS/

APPELLANTS.

KWAME ASIEDU-BASOAH ESQ. FOR THE PLAINTIFFS/APPELLANTS/

RESPONDENTS.