ANSAH-ADDO AND OTHERS v. ADDO AND ANOTHER AND
ANSAH-ADDO AND OTHERS v. ASANTE (CONSOLIDATED) [1972] 2 GLR 400
COURT OF APPEAL
Date: 31 JULY 1972
BEFORE: APALOO AND BENTSI-ENCHILL JJ.S.C. AND KINGSLEY-NYINAH J.A.
CASES REFERRED TO
(1) Yardom v. Minta III (1926) F.C. ‘26—’29, 76.
(2) Aniomega v. Ahiabor [1971] 1 G.L.R. 1.
(3) Nelson v. Nelson (1932) 1 W.A.C.A. 215.
(4) Ruttmern v. Ruttmern (1937) 3 W.A.C.A. 178.
(5) Akyirefie v. Paramount Stool of Breman Esiam per Nana Kwa Bom III (1951) 13 W.A.C.A. 331.
(6) Kwainoo v. Ampong (1953) 14 W.A.C.A. 250.
(7) Hammond v. Randolph (1936) 5 W.A.C.A. 42, P.C.
NATURE OF PROCEEDINGS
APPEAL against the ruling of the High Court, Accra, dismissing the action of the plaintiffs for their share of moneys held by the defendants for themselves and the plaintiffs. The facts are fully set out in the judgment of Apaloo J.S.C.
COUNSEL
Dadey (J. Arthur with him) for the appellants.
U. V. Campbell (Ofosu-Asante and Offei with him) for the respondents.
[p.403] of [1972] 2 GLR 400
JUDGMENT OF APALOO J.S.C.
On or about 15 September 1928, six buying syndicates apparently originating from Akwapim, pooled
their resources together and purchased a fairly large tract of land at a place called Kakoase in the Akim Abuakwa Traditional Area. The land was purchased from the stool of Akwatia. It seems the original intention of the syndicates was to farm on the land. This, however, did not materialise as the land or a substantial portion of it contained valuable minerals. Notwithstanding its earlier alienation to the syndicates, the Akwatia stool granted leases of portions of it to the Consolidated African Selection Trust (hereafter referred to as C.A.S.T.) for mining. Under the lease, “mining revenues” and royalties became due to the stool. As is only to be expected, the syndicates asserted their right to the beneficial enjoyment of these revenues or at least to an aliquot part of them. This claim seems to have been conceded and some time in 1933, the syndicates and the Akwatia stool entered into an agreement by which they were to share these revenues in the proportions of two-thirds and one-third. A heterogeneous group of people, such as the syndicates were made of, must necessarily act through agents. The persons who filled that role were two members of the group called Abraham Asante and Charles Addo. It is possible there were others, but the evidence shows that these were the most prominent. It would seem that by 1956, the syndicates felt that they had not received their contractual share of these revenues. To obtain what they conceived to be their due, they filed an action in the High Court, Accra, claiming an account and payment to themselves of two-thirds of such revenues as were received. This action was commenced on 1 February 1956. It seems that by that date the two mouthpieces of the syndicates, Abraham Asante and Charles Addo were no more. Accordingly, the action was brought in the name of a Bafour Kwadjo Asamoah and Oppong Addo. The latter is the defendant in suit No. 461/69 and is one of the children and customary successors of the late Charles Addo. As the contract of sharing was admittedly entered into between the syndicates acting by their agents, and the Akwatia stool, the latter would be the accounting party and the entity against which the claim should be made. But owing to the intervention of legislation, that is, the Local Government Ordinance, Cap, 64 (1951 Rev.), the mining revenues and royalties became payable to the Akwatia Local Council. Accordingly, the syndicates’ suit of 1956 was instituted against that council. Under the local government legislation, the revenues from the stool lands which were, in the first instance, payable to the council, were shared out between it and the stool in certain agreed proportions. If the syndicates had succeeded in showing that all the revenues then received by the council were received in respect of lands covered by the agreement between the stool and the syndicates, there can be little doubt that they would have been held entitled to them. The Local Government Ordinance of 1951 did not seek to abrogate existing rights. [p.404] of [1972] 2 GLR 400
Predictably enough, the Akwatia stool sought and joined that action as a co-defendant because its interest was likely to be affected by the result of the action. But the real facts on which it relied to seek the joinder were that “the limits and extent of the area of the land transferred to the plaintiffs by a predecessor of the Akwatia stool have not been mutually determined by the plaintiffs and the stool by reference to any plan and there is a dispute as to the extent of the said land.” (See exhibit A.)
This suit was determined on 11 February 1959 against the syndicates and the ratio decidendi seems to be, “that the plaintiffs, who have the onus to discharge in a claim to which the title to the land in dispute is raised, before they can proceed to claim for their rights as successors to the original grantees, failed to prove to the court the accuracy or the certainty of the area which they claimed.” It seems that there is and has always been some internal cleavage between the members of the syndicates as to whether or not they should vindicate their rights to the revenues and profits by action. The statement of defence filed in this suit shows that some of the reputed plaintiffs deny any knowledge of the action and dispute the authority of the plaintiffs to include them in the suit. The evidence shows that in the 1956 suit which determined in February 1959, the co-defendant in suit No. 461/69 and the defendant in suit No. 189/71 swore an affidavit dated 14 September 1956, dissociating his uncle Abraham from that action. The learned judge adverts to this fact and delivers himself as follows: “There is conflicting evidence before me of a full authority from the leaders of the company of the purchasers on whose behalf the plaintiffs brought the action and for themselves. There is evidence on record challenging the authority of the plaintiffs to initiate this action. The affidavit and evidence of Sekyi filed on 14 September 1956 denied the authority of the plaintiffs and claimed that his uncle was not a party to the above suit. Abraham Asante died in 1957. It is the duty of a person suing in a representative capacity to satisfy the court of his authority to sue in that capacity if he is so challenged.”The plaintiffs were, understandably, aggrieved at the result of the 1959 judgment and appealed to the Court of Appeal. During the pendency of it, the parties submitted to an arbitration apparently according to customary law. On 4 October 1959, an award was published. This was reduced into writing and signed by the arbitrators. It is not necessary to read the whole award but it is important to notice that paragraph (4) of the award records that the parties had checked the boundaries in dispute and were satisfied that they conformed with the area sold to the syndicates in 1928. The sale was therefore confirmed. Instead of the two-thirds share of the revenues to which the syndicates were entitled under the 1933 agreement, the arbitrators awarded them
[p.405] of [1972] 2 GLR 400 one-third. The syndicates, for their part, were to discontinue the appeal then pending before the appeal court. In so far as one can make out from the evidence, this award met with the satisfaction of both parties and both acted on it. As far as is known, none of the parties has sought to repudiate it. The persons who appear on the face of the award to be the parties to this arbitration, were the same parties who fought the 1959 action. Consequent upon this award, the syndicates renewed their claim to their one-third share of the “mining revenues.” The request was addressed to the Administrator of Stool Lands who has become the custodian of these sums. The latter seems to have taken the position that the arbitration was illegal and declined payment. Two letters produced in evidence show that the claim to these moneys was made on behalf of the syndicates by Mr. E K. Sekyi who is the co-defendant in suit No. 461/69 and the defendant in suit No.
189/71. Following a letter addressed to the Minister of Justice by Bempong II, Ohene of Akwatia, dated 5 July 1962, affirming the arbitration and conceding to the syndicates their right to the one-third of the revenues, the Administrator of Stool Lands reversed his position and paid the sum then due to “E. K. Sekyi, Oppong Addo and others.” The evidence shows that the said Sekyi and Oppong Addo have received various sums of money standing to the credit of that account from the Lands Department since. In the first of the two consolidated suits (No. 461/69), the plaintiff, who is one of the children of the late Charles Addo, claims against his paternal half brother, a sum of money which he says represents three-fourths of the sums he received on account of the estate of their father. This action was joined by some other members and successors of deceased members of the syndicates who claim that they are interested in a portion of these revenues inasmuch as they or their predecessors contributed part of the money in purchasing the land originally. This action, was on his own application, joined by E. K. Sekyi now described as Bafour Sekyi Asante, on the ground that he was “the recipient of all the rents or profits accruing from a portion of the land” and was likely to be affected by the result of the suit. Both the defendant and co-defendant in that suit made certain factual averments but united in contending that the plaintiff and co-plaintiffs were estopped by the judgment of February 1959, from pursuing the action.
In the second suit (No. 189/71) the plaintiff in the first suit now in conjunction with the co-plaintiffs in that suit, jointly sued the co-defendant claiming “their proportionate share of the profits paid by C.A.S.T. in respect of the Kakoase lands.” The co-defendant denied that the plaintiffs were entitled to any share of these revenues and also avers that some of the persons named as co-plaintiffs did not authorise the action. But he again pleaded that the “ plaintiffs are estopped per rem judicatam . . . from alleging that the land in dispute belongs to them [p.406] of [1972] 2 GLR 400 or that they have any interest whatsoever in it.” In both cases, the plaintiffs disputed the plea of estoppelraised against them. On 8 June 1971, Hayfron-Benjamin J. ordered the two suits to be consolidated, and as it appeared to him that the issue of estoppel may conclude the matter one way or the other, he ordered it to be set down as a preliminary issue on 28 June. On that date, the parties, by their counsel, tendered by agreement the 1959 judgment on which the plea of estoppel was based, the arbitration award of October 1959 and other relevant documents. Rival argument on the question of estoppel was thereafter addressed to the court. On 5 July 1971, the learned judge delivered a reasoned ruling in which he held that in both suits, the plaintiffs were estopped by the 1959 judgment. He held that the arbitration contravened statutory provisions and was void. He accordingly dismissed both suits. This ruling is contested by this appeal. Mr. Dadey who led the attack on the ruling, put his main complaint on two limbs. He submits that the plea of estoppel per rem judicatam cannot properly be invoked against the plaintiffs by the defendant and co-defendant because in the 1959 litigation they “were in the same category.” As to the judge’s finding that “no trust resulting or constructive can be imposed on the sums of money in the hands of these men” (meaning the defendant and co-defendant), counsel says that must be wrong because these defendants acted for themselves and other members of the syndicates in receiving the moneys and, as trustees, are accountable to them.
Mr. Campbell who led a team of two other lawyers in defending the ruling, did not deliver himself with the same confidence that the learned judge seemed to have felt about the issue of estoppel. He says that at least the evidence shows that the co-defendant did not side with the syndicates in the 1959 action but took sides with the Akwatia stool. He contends therefore that he, at least, cannot be said to be in the “same category” as the other members of the syndicates. As to whether or not the syndicates were entitled to the sums adjudged due to them by the arbitration, he virtually adopts the judge’s reasoning and contended that that arbitration was held in contravention of statutory provisions and was void. The statutes against which the arbitrators sinned, in counsel’s contention, were the Akim Abuakwa (Stool Revenue) Act, 1958 (No. 8 of 1958), the Local Government Ordinance, Cap. 64 (1951 Rev.), the State Councils Ordinance, 1952 (No. 8 of 1952), and the Administration of Lands Act, 1962 (Act 123). In any case, it is said that the Akwatia Local Council were not parties to the arbitral proceedings. On the question whether or not the defendant and co-defendant were accountable to the plaintiffs as trustees of the sums they received by way of mining revenues, he submits that no such trustee beneficiary relationship can arise from an illegal
arbitration. With great respect to the learned judge, I think he disposed of the serious issue of estoppel per rem judicatam in too cavalier a manner. The judgment of 1959, was a judgment inter partes and the elementary [p.407] of [1972] 2 GLR 400 rule which governs the applicability of that plea, is that it estops the parties to the proceeding in which it is given and their privies. But the only persons who can take advantage of an estoppel by record are those who “if the decision had been the other way, would have been bound by it.” This is expressed in the well-known equitable rule that estoppels must be mutual. As far as the defendant in suit No. 461/69 is concerned, he admittedly fought the litigation which culminated in the 1959 judgment on the side of the syndicates. There was no conflict of interest between him and the syndicates and it is impossible to see how he can rely on that judgment as estopping his fellow members of the syndicates from calling on him to account for moneys he received on his own and their behalf. The co-defendant’s position was factually different from that of the defendant in suit No. 461/69 but that does not give rise to any different legal consequence. He indisputably did not side with the syndicates in the 1956 action and it is said he took sides instead with the Akwatia stool. The only really reliable evidence that exists as to his real activities in that case, is from the 1959 judgment in which it is recorded that he swore to an affidavit denying the authority of the then plaintiffs to pursue the claim in the right of the syndicates and dissociating his uncle from that suit. But such interest as he or his uncle had to the “mining revenues” derives from their membership of the syndicates. It is that right that was asserted
against the council and the Akwatia stool. Had that claim succeeded rather than failed, he could not , as I understand the law, have been properly deprived of his share of the revenues because of the part he played in that litigation. Subject to paying his assessed share of the expenses, he can, I think, enforce his right to a share of the revenue by action and it can be no answer to his claim that he or his uncle dissociated themselves from that suit.
That the co-defendant in suit No. 461/69 and the defendant in suit No. 189/71 cannot have had any
interest adverse to the syndicates in the 1956 action, is shown by his conduct subsequent to the
arbitration. Shortly after the arbitration conceded the right of the syndicates to a third of the mining
revenues, he wrote to the Chief Lands Officer “for and on behalf of the company” claiming the
syndicates’ share of these moneys. It is this right that the syndicates sought to vindicate by the 1956
action and which, by a ruthless application of the onus probandi rule, they lost. I think the mutuality rule precludes both the defendant and co-defendant from relying on the 1959 judgment as estoppel per rem judicatam as against the plaintiffs.
The learned judge came to the somewhat confident conclusion that “the plaintiffs claiming as they do
through the said companies are effectively estopped by that judgment in claiming from the defendant or from any other persons for the whole or any portion of the rents accruing from the use by C.A.S.T. of the land.” That view of the matter must be wrong because the judge was clearly conferring on the
[p.408] of [1972] 2 GLR 400 1959 judgment the status of a judgment in rem. Had that judgment gone against the council and the Akwatia stool only they and their privies could have been bound. Neither the defendant nor co-defendant could have been adversely affected by it. True, that judgment could be asserted as estoppel by the Akwatia stool and the council against the syndicates and any persons claiming through them but against no one else. My conclusion therefore must be that the learned judge was in error in holding that the plaintiff and co-plaintiffs were estopped per rem judicatam. I hold that they were not so estopped and that they were and are entitled to prosecute their claim to their share of the mining revenues against those individuals.
It is common ground that in October 1959, the parties litigant except, possibly the local council,
submitted to an arbitration. An award was published which was clearly accepted by the parties. It is as a result of this arbitration that the co-defendant, acting for the syndicates, got in the mining revenues to which the syndicates were held entitled. The learned judge himself conceded that parties can come “to a compromise or agreement not to enforce a judgment of a court of competent jurisdiction.” He said, and I agree with him, that that does not have the effect of setting aside the judgment. Paragraph (2) of the arbitral award purported to set aside the 1959 judgment. On that account, the learned judge felt no disposition to give the award any legal efficacy. I think that is only the form of the matter. But the real substance and effect of that arbitration is that the 1959 judgment became a dead letter, or as Howes J. put it in Yardom v. Minta III (1926) F.C. ‘26—’29, 76 at pp. 79—80: “Whilst such new agreement will not set aside the judgment, if subsequently thereto, the successful party attempted to enforce his judgment, . . . the doctrine of estoppel in pais would come in, and in equity no Court would give effect to the judgment, the terms of which the successful party has voluntarily and by his conduct varied.”Smyly C.J. concurred with this view and said at p. 82:
“It is obvious that, where the mutual rights of two parties have been adjudicated on by a Court of Law, it is not open to one of the parties to go to a Court of co-ordinate jurisdiction and re-open the whole matter, unless on the allegation of fraud, etc.; but I know of no law which would prevent parties, by mutual consent, or as the result of arbitration, substituting some other and possibly some more satisfactory arrangement for that contained in the judgment.” See also Aniomega v. Ahiabor [1971] 1 G.L.R. 1, C.A. That which the learned Chief Justice conceives as perfectly legitimate, is what the parties did in this case. The ratio of the 1959 judgment is that the syndicates failed to discharge the onus of establishing with certainty the area they bought and on that account, their claim failed in toto. That, as a conclusion, is clearly unsatisfactory. Indeed [p.409] of [1972] 2 GLR 400
it is the type of judgment that legal cynics describe as a conclusion in which nothing is concluded. It is the failure of justice engendered by this decision that the parties sought to remedy by the informal process of arbitration. From the point of view of the parties and certainly the syndicates, the arbitral award was more satisfactory than the somewhat legalistic pronouncement of the court. The stool was able to secure a reduction in the percentage of revenues payable to the syndicates and were by reason of the withdrawal of appeal, left free from any further litigation with its attendant expenses. For the syndicates, they were able to secure at least a third of the mining revenues and had the genuineness of their claim to the area they purchased affirmed. In my opinion, this arbitration was perfectly lawful and is binding on the parties. It is an odd circumstance that those who are asserting its illegality are the persons who in fact received benefits under it. The learned judge also held that paragraphs (3) and (5) of the arbitral award were null and void inasmuch as they contravened sections 14 and 75 of the Akim Abuakwa (Stool Revenue) Act, 1958, and the Local Government Ordinance respectively. It is not necessary to read these sections in full. The pith of them is
that section 14 of Act 8 of 1958 transferred the management of Akim Abuakwa stool lands to the
Receiver of Stool Revenue and section 75 of Cap. 64 denies legal validity to any disposal of stool land in any council area unless the council concurred. These statutes were passed in 1958 and 1951 respectively and as I said, have no retrospective effect. The title of the syndicates to the land was obtained in 1928 and the agreement by which they became entitled to a share of the mining revenues was entered into in 1933. In order to bring these transactions within the ambit of this comparatively recent legislation, the learned judge said that by the 1959 judgment, the syndicates failed to establish title to any portion of the land the subject-matter of the concession to the C.A.S.T. He accordingly reasoned that any title now claimed can only have been “conferred on the companies by the terms of the arbitral award.” Accordingly, he concluded “that the disposal of the stool interest (if at all) took place by virtue of the award” and not having been concurred in by the council, it was avoided by section 75 of Cap. 64. I think that is an unreal way of looking at the matter. The 1959 judgment did not decide that the syndicates did not purchase the land or that the area they claimed they bought was not sold to them. It merely said it was not satisfied of it. True, they cannot reagitate such right against the stool, not because there were any positive findings against them but because there had been no affirmative finding in their favour. It cannot be accurate to say that the title which they claimed was conferred on them by the arbitral award. It is difficult to see how a judgment or an arbitration award can confer title to property on a litigant. I think the true view is, that all a judgment or an award can [p.410] of [1972] 2 GLR 400 do, is to determine the existing rights or liabilities of the parties in litigation and thereafter declare them. But such title dates from the date of acquisition, not the date of its declaration. That, to my mind, is what the arbitral award did in this case. It merely confirmed a sale that took place in 1928 and a contract that was entered into in 1933. Since the parties are entitled to compromise a judgment, what the parties did cannot be said to be illegal. In my opinion, the arbitral award is unaffected either by the Akim Abuakwa (Stool Revenue) Act, 1958, the Local Government Ordinance, Cap. 64, or the much later Administration of Lands Act, 1962. The learned judge’s contrary conclusion was wrong and ought to be disaffirmed. It was also sought to invalidate the award by the argument that the local council—an essential party—was not a party to the arbitral proceedings. It is plain that no title to the land was vested in the council as such
nor was it a party to the contract of 1933. It had to be sued by reason of the fortuitous circumstance that in 1956, it became the recipient of part, at least, of the mining revenues. But the real battle was fought out between the stool and the syndicates. The council’s fortunes were tied up with those of the stool and it sank or swam with it. Its presence at the arbitration can only have been purely formal. The arbitral award which was published as long ago as 1959 cannot but have been known to the council. It made no issue of it nor sought to assert any rights in contravention of its provisions. The defendant and co-defendant are no agents of the council and have no business to make a complaint which the local council is entitled to make and which it abstained from making. I think the circumstance that the local council was not shown to be a party to the arbitration in no way affects its legal validity.It was also submitted to the judge below that the sums which the defendant and co-defendant received from the Lands Department were, in the circumstances of this case, trust moneys, at least as to part, and that they were accountable for them to the plaintiffs. The judge rejected that argument with some depth of feeling and expressed himself as follows:
“I am certain that no trust, resulting or constructive, can be imposed on the sums of money in the hands of these men. Even if I stretch the doctrine of constructive trusts to the lengths to which it now covers, in America, to cover many cases of unjust enrichment, I cannot find the way clear to hold that there is anything in these minutes to indicate that the plaintiffs are entitled to any portion and if so, to what portion of these sums of money. ”The learned judge gave no reason for this somewhat confident finding. That holding seems to me a little surprising because the facts of this case show plainly that both the defendant and co-defendant were acting for the syndicates and received these sums in that capacity. I cannot see how these sums can be other than trust moneys. The history
[p.411] of [1972] 2 GLR 400 of the syndicates shows that at a very early stage of their existence, Abraham Asante and Charles Addo were the mouthpieces of the group and conducted its affairs. When they seem to have passed out, the co-defendant and defendant who are their nephew and son respectively seem to have stepped in their shoes and filled that role. When the co-defendant was in negotiation with the Lands Department for the receipt of these moneys “For and on behalf of the company” his address seems to indicate that the company was “Abraham Asante, Charles Addo and others.” When the Akwatiahene wrote to the Minister of Justice on 5 July 1962, authorising release of the moneys to the syndicates, he said the payment of the third share of the revenues should be made to “Abraham Asante, Charles Addo and others.” At that date, both Abraham Asante and Charles Addo were dead. The Minister of Justice must have been cognisant of this, so he authorised that the payment be made to “E. K. Sekyi, Oppong Addo and others.” Can this consistent use of “others” be meaningless? In my judgment, it refers and can only refer to that amorphous group which in 1928 pooled together their resources to purchase the “Kakoase lands.” Indeed the co-defendant in his letter of 29 March 1961, to the Chief Lands Officer added this descriptive epithet to
the “company’s” name: “Abraham Asante, Charles Addo and others, Kakoase Land Purchasers c/o E. K. Sekyi. ”The latter name is the co-defendant’s own. The co-defendant was distinguishing himself from the group which he calls a “company.” It must be sense and not nonsense that he did this. I think the reason was because he knew that these moneys belong to the group and not to himself personally. Both the defendant and co-defendant were fiduciaries vis-à-vis the “company” and are liable to account to it. The liability to account is indeed one of the main vehicles by which a court of equity enforces the trustee’s fiduciary duty. That principle of the received common law is wholly in consonance with our indigenous conceptions of justice. In Nelson v. Nelson (1932) 1 W.A.C.A. 215, some of the children of a deceased brought an action for account against a brother of theirs who had been appointed by the deceased, on his death bed, to look after their interests in his estate. It was held that not being head of the family, he was liable to account. Michelin J. who spoke for the court said at pp. 217—218: “In my opinion, this is not the case of an action by a junior member of a family against the head of a family but is brought by brothers and sisters of the defendant against him in his fiduciary position as a caretaker on their behalf, not only at the request of the deceased but also at the request of the head of the family, to look after their interests in the property of the deceased. He was therefore clearly liable to account to the plaintiffs. ”In Ruttmern v. Ruttmern (1937) 3 W.A.C.A. 178, a member of a family who acted as agent for the family in conducting its affairs was
[p.412] of [1972] 2 GLR 400 held accountable to his brothers and sisters. A contention that that claim was barred by laches was rejected. Kingdon C.J. said at p. 180: “They, as the literate members of the family, naturally managed the family affairs rather than the illiterate plaintiffs, who entrusted the family affairs to the members most capable of managing them. It would, I think, be inequitable and contrary to well-recognised native custom to deprive the illiterates of their claim to enforce their rights even after a period of years.”See also an instructive article by Dr. Ekow Daniels on “Some principles of the law of trusts in West Africa” [1962] Journal of African Law p. 164.
The factual justification put forward by the defendant and co-defendant for resisting the claim of the
plaintiffs to account is not entirely in harmony. According to the defendant in suit No. 461/69, after the 1959 judgment, the co-defendant entered into negotiation “on behalf of the syndicates with the Akwatia stool and after several and expensive arbitrations the land was resold to the syndicates.” It was then said that as the other members failed to pay their part of the second purchase price, the codefendant kept the land for himself. If that be right, it is difficult to see how the claim to account is validly answered. The co-defendant’s own answer is more expansive. He says, after the 1959 judgment, he “negotiated with the Akwatia stool and bought land in dispute for himself.” As he was on the evidence, acting at some time for the syndicates, it is clear that if this averment be true, equity would impose on him a constructive trust and he will hold this land in trust for the syndicates. Again on this question, both equity and customary law notions are in accord. In Akyirefie v. Paramount Stool of Breman Esiam, per Nana Kwa Bom III (1951) 13 W.A.C.A. 331, a member of a family used his own funds in redeeming family land which was on pledge to another member of the family. He therefore asserted ownership in himself personally. The court held that the members of the family not having been made distinctly to understand that the appellant was redeeming on his own behalf, the land remained the property of the family. In so holding, the court cited and relied on Sarbah’s Fanti Customary Laws. The case of Kwainoo v. Ampong (1953) 14 W.A.C.A. 250 was decided on the same basis. See also Hammond v. Randolph, (1936) 5 W.A.C.A. 42, P.C. Underlying all these decisions, is the basic notion that a fiduciary who obtains personal advantage by virtue of his position, must hold whatever he obtained in trust for the beneficiary. It is also pleaded by the co-defendant that the plaintiffs were barred by laches, that the arbitration was “nullified by the Lands Department” as contravening the Akim Abuakwa (Stool Revenue) Act, 1958, and that the “land in dispute is not the same as the land bought by the Companies. The Plaintiffs joined issue with the co-defendant on all these averments. The learned judge did not take evidence and did not [p.413] of [1972] 2 GLR 400 resolve the issues of fact joined between the parties. He considered these matters de bene esse except in so far as any such matters were admitted. Having done that, he concluded that “no trust, resulting or constructive, can be imposed on the moneys in the hands of these men.” I have looked at this matter in like manner but have reached the diametrically opposite conclusion, namely, that the moneys in the hands of “these men” are subject to a trust in favour of themselves and the plaintiffs — members of the syndicates. In view of the result which I have reached, namely, that the syndicates are not estopped and that the defendant and co-defendant are accountable to the syndicates for the “mining revenues” they received in respect of the “Kakoase Land,” this case must go back so that the issues of fact and any other outstanding issues not raised in the appeal or considered in this judgment may be resolved.
Before I am done, there is one last matter to which I think it necessary to advert. This judgment has
proceeded on the basis that the defendant and co-defendant are jointly liable to account to the plaintiffs for the trust moneys which have come into their hands. I see a necessary repugnance between these two consolidated suits. The first of the two suits, i.e. No. 461/69 is predicated on the fact that the Kakoase land belongs only to Abraham Asante and Charles Addo and that only their successors are entitled to the beneficial enjoyment of the revenues accruing therefrom. It is on that basis that the plaintiff seeks a certain proportion of the profits from the defendant—his paternal half brother. The second suit, i.e. No. 189/71 is based on the sounder ground that these revenues enure for the beneficial enjoyment of all members of the syndicates. Yet the co-plaintiffs joined the plaintiff in the first suit and the latter joined the co-plaintiffs to assert this claim against the co-defendant in the second suit. It is possible there might be a conflict of interest between the plaintiff and co-plaintiffs. No doubt, counsel would consider what amendments are desirable in the light of the views expressed in this judgment. I also venture to hope that the court to which this matter will be remitted, will feel disposed to grant any amendment that the parties may seek so that the real questions in controversy between them may be finally resolved. During the pendency of these suits in the court below, the learned judge granted an interim injunction restraining the parties from collecting any of the revenues accruing out of the land in question until the determination of the suit. He discharged this order in his ruling against which this appeal has been brought. I think it right that the injunction be re-imposed and that both the defendant and co-defendant be restrained from collecting any further revenues or profits from the Lands Department until this matter is finally disposed of. In view of the conclusion which I have reached on the question of estoppel and the other matters debated in this case, this appeal must succeed. I would accordingly allow the appeal and set aside the ruling appealed from. In lieu of it, I would remit this case to the court below [p.414] of [1972] 2 GLR 400 for hearing on its merits. In order to avoid him any embarrassment, I would order that these suits shall be heard and determined by a judge other than Hayfron-Benjamin J.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
I agree.
JUDGMENT OF KINGSLEY–NYINAH J.A.
I also agree.
DECISION
Appeal allowed.
Case remitted to court below for hearing on merits.
S. E. K.
