COLE v. COLE [1966] GLR 177

Division: HIGH COURT, SEKONDI

Date: 15 FEBRUARY 1966

Before: KORANTENG-ADDOW J.

NATURE OF PROCEEDINGS

ACTION for a declaration of title, an order for accounts and perpetual injunction. The facts are fully set out in the judgment.

COUNSEL

K. Atta-Erskine for the plaintiff.

F. Awoonor-Williams for the defendant

JUDGMENT OF KORANTENG-ADDOW J.

The plaintiff in this action is the uncle of the defendant and hails from Sierra Leone. According to his evidence the plaintiff came to Ghana (then the Gold Coast) many years ago, worked in the Railways Department of the then civil service and is now a pensioner. He brought the defendant to Ghana when he was about fourteen years of age and found employment for him in the same department in which he was himself employed. The defendant did well for himself, was sent to the United Kingdom on a government scholarship and on his return was given a high post in the department. He is now also retired and a pensioner. He retired in April 1960 drawing an annual salary of £G1,090.

When the plaintiff retired from the civil service he engaged himself in the then flourishing timber trade and from all accounts he succeeded in that trade. In answers to questions in cross-examination the defendant said that the plaintiff had as many as seven houses and that he had never been a poor man. [p.178] of [1966] GLR 177

The dispute in this case centres around only one of the houses owned by the plaintiff—house No. 27A/5 situate at Ahanta Road, Takoradi. The brief history of the house is that the plaintiff bought the leasehold interests of one Simon Kweku Adadevoh in the plot together with an uncompleted building thereon for the sum of £G900 in 1958 as evidenced by a deed of assignment, exhibit 7, herein. After purchasing the interests of the original lessee, the plaintiff subsequently completed the unfinished building. The time at which the house was completed is not specifically stated in evidence but it must be some time after 1958, the date of the assignment.

The plaintiff’s case is that he was stricken with a stroke in 1960 and was so incapacitated that he could no more carry on his timber trade. Far from abating the illness became worse. Fearing that his end was near he summoned the defendant some time in the early months of 1961 and charged him with certain responsibilities. He asked him in the event of his death to give him a decent burial and look after his wife and children. During that period the defendant was, according to the plaintiff, at the plaintiff’s request managing all his affairs for him. To enable the defendant to execute the responsibilities entrusted to him the plaintiff said, “I told him that because of the seriousness of my illness he should prepare papers in respect of my house (house No. 27A/5, Ahanta Road, Takoradi) by which I would make over the said house to him to hold . . . “ The papers were eventually prepared and culminated in the execution of exhibit 5 herein. After the execution of exhibit 5, however, according to the plaintiff in his evidence the defendant:

“did not step where I was nor did he ever go anywhere near my business. He left all my tractors and other machinery and timber to rot in the bush . . . Soon after the execution of the documents the defendant started to collect the rents.”

The fear of death however paled away and the plaintiff sufficiently recovered from his illness. But according to him when he called upon the defendant to render accounts he refused to do so. He also refused a request by the plaintiff to reconvey the said property to him. After importunate demands which went unheeded for a period of between six to nine months the plaintiff brought this action claiming: “The plaintiff as owner of house No. 27A/5, Ahanta Road, Takoradi, claims against the defendant the following:

(i) Declaration of title of the said house,

(ii) A perpetual injunction restraining the defendant his servants or agents from entering the said house, and

(iii) An account of all rents collected from the said house.”

[p.179] of [1966] GLR 177

To this claim the defendant’s main defence, after denying the plaintiff’s title, is that he is in possession of the house. Paragraph (3) of his defence reads, “In further reply to paragraph (1) of the said statement of claim, the defendant avers that he is in possession of the said property by himself, his tenants and licensees.” By this defence he put the plaintiff to strict proof of his title. The question as to how the defendant came to possession was completely and sedulously left out in the defence.

At the hearing of this matter, with leave of the court, the plaintiff amended his statement of claim by the deletion of the whole of paragraph (4) and the substitution of two new paragraphs therefor and also by the deletion of the words donatio mortis causa from paragraph (5). The plaintiff gave evidence himself and called George Ogumey as his first witness to support him. The corroborative evidence of the plaintiff’s first witness is as follows:

“George Ogumey S.O.C. I am a seaman and I now live at Takoradi. I know the plaintiff and I know the defendant also. The plaintiff is my landlord. The defendant is a nephew of the plaintiff. About four years ago the plaintiff took ill. I used to visit him during his illness. He suffered from paralysis. On one occasion during that period he asked me to call the defendant from Sekondi for him. When I saw the defendant he asked me whether his uncle had died and I said he had not died but that he had asked me to call him. The defendant put on his clothes and went to Takoradi with me. The plaintiff was lying down. He told the defendant that his health was deteriorating and so he intended to give him his house the documents in respect of which were in the hands of the defendant. The defendant was to have the house, look after him, bury him when he died and look after his wife and children. He told the defendant that if he did not die then the defendant should return the house to him.

The defendant agreed. It was about four years ago.”

To achieve his objective according to the plaintiff he asked the defendant to cause the necessary documents for the transfer of the property to be made. Exhibit 5 was prepared and executed by the plaintiff. Before the preparation of exhibit 5 the plaintiff signed a letter dated 22 April 1961 addressed to F. Awoonor-Williams, Esq., barrister-at-law, with a copy directed to the Lands Department, Sekondi. The letter, exhibit 1 is reproduced hereunder:

[p.180] of [1966] GLR 177

“John Cole,

P.O. Box 377,

Sekondi, 22/4/61.

To F. Awoonor-Williams, Esq.,

Barrister-at-Law,

Sekondi.

Ghana.

Dear Sir,

Deed of Gift

After due consideration and out of my own free will I have finally decided to assign my property, house No. 27A/5 of Plot No. 140 West Block Ahanta Road, Takoradi. And I hereby instruct you to prepare a legal assignment as a deed of gift to my beloved nephew Samuel Joseph Cole of P.O. Box 377, Sekondi.

2. Thanking you in anticipation.

Yours faithfully,

John Cole c.c Lands Department

Sekondi.”

Exhibit 5 is a deed of gift—an assignment of the plaintiff ‘s right in the residue of the leasehold property. In his evidence the defendant said that the property was conveyed to him by the plaintiff by way of an absolute gift at a time when he was not unwell and was affected neither by a disease of the body nor of the mind. He said specifically that at the time of the gift the plaintiff had not been striken with paralysis but that it was later that he was so affected. He added that he assisted the plaintiff in erecting the house in dispute and that before then he had given the plaintiff financial help from time to time. His contention was that the gift was made or must have been made in consideration of all the past help and kindnesses he showed to the plaintiff. The issue that falls to be decided in this case therefore is whether the gift evidenced by exhibit 5 is an absolute one made for the beneficial enjoyment of the defendant or whether the property was given to him for a special purpose as asserted by the plaintiff and his witness.

Although it does not so appear in exhibit 5, the defendant alleged and made a strenuous effort in his evidence to establish that the house in dispute was conveyed to him by the plaintiff because of financial help he had given the plaintiff from time to time. He said [p.181] of [1966] GLR 177 among other things that at the request of the plaintiff he made him a gift of an Austin car worth £G450 when he was still in the civil service. Again he alleged that he assisted the plaintiff in putting up a house at Takoradi in 1955. According to him he bought building materials worth £G165 and paid labour costs of about £G160. He said that he also paid income tax to the tune of £G351 for the plaintiff. The defendant tendered and sought to tender documents in support of these contentions. He called one witness to testify as to the value of the Austin car. The witness, Arthur Victor Thomas, did not support the defendant. According to him the value of the car was about £G250 and he based his valuation only on the fact, as he said, “because we travelled in it to Cape Coast, Tarkwa and other places.”

In support of his evidence that he assisted the plaintiff in building a house at Takoradi and expended £G165 in purchasing building materials and paid an amount of £G160 on labour the defendant sought to tender a notebook in which certain entries have been made and were purported to have been signed by the plaintiff. Upon the plaintiff raising an objection that the signature appearing in the notebook is not his, learned counsel for the defendant called upon the court to compare the signatures appearing in that notebook with the signature of the plaintiff in exhibit 1. I compared the signatures in exhibit 1 and those in the notebook and found that those in the notebook are a very poor and amateurish attempt at forging the plaintiff’s signature. It needed no expert knowledge of handwriting to make the discovery. I therefore rejected the notebook. It was rejected and marked O1.

In support of his contention that he paid for and on behalf of the plaintiff his personal income tax receipts, apart from the fact that the receipts were issued to John Cole (the plaintiff) there is no indication that the amounts they cover were paid by the defendant. The receipts read “Received from John Cole . . .” The earliest of the said receipts was dated 12 September 1961 after the execution of exhibit 5 and could not have been the consideration for the gift in exhibit 5 as the defendant sought to make it appear. I could not accept the receipts and, upholding the objection of the plaintiff, rejected them as being irrelevant. On the question of other financial aid he gave to the plaintiff from time to time the defendant tendered a letter dated 20 December 1959, addressed by the plaintiff to him in which the plaintiff acknowledges a debt he owes him, exhibit 3. But in that letter the plaintiff also promised to refund whatever amount he owed. He says among other things “by the grace of God you will have it the end of January.” The plaintiff also tendered exhibit B, a letter dated 17 April 1944, addressed to him by the defendant and in which the

[p.182] of [1966] GLR 177 defendant acknowledges the receipt of an amount of £G12 sent to aid him as financial assistance. I do not believe the evidence of the defendant that at the time exhibit 5 was prepared and executed the plaintiff was sound in health. In exhibit A an affidavit sworn to on 15 February 1961, in the case of John Cole v. Tom Davis, transferred suit No. 1/1960 and tendered by the plaintiff the defendant deposed inter alia as follows “That I am the nephew of the plaintiff, John Cole, herein and authorised to make this affidavit on his behalf; the said John Cole being ill . . . having partial attack of paralysis from which he has not recovered.” I therefore reject the defendant’s evidence on that point and find as a fact that at the time exhibit 5 was prepared the plaintiff was ill suffering from a stroke or paralysis. I find also that beside the consideration appearing on exhibit 5 there is no other consideration for the gift in exhibit 5. Assuming that it were true that the defendant assisted the plaintiff financially, as he tried to assert, such consideration would have been past and could not support the transaction. Financial assistance between the parties was mutual, if anything.

I believe and accept the evidence of the plaintiff and his witness that the building, the subject-matter herein, was conveyed to the defendant for the purpose of performing specific functions for the plaintiff, namely, to care for him during his affliction, to give him a decent burial and to maintain and keep his wife and children out of the rents from the said house in the event of his death. The evidence of the plaintiff and his witness that the gift was made for a specific reason was not challenged in cross-examination. I quote hereunder the cross-examination of the plaintiff’s witness George Ogumey.

“Q. How many years ago did you stop your work ?

A. About three years ago.

Q. How are you supporting yourself ?

A. I am being supported by my son.

Q. How long ago did you call the defendant for the plaintiff ?

A. About three years ago.

Q. For how long have you been a tenant of the plaintiff ?

A. About twenty years.

Q. Has the plaintiff been paying you ?

A. No.

Q. When you went to see the plaintiff what was his condition ?

A. His sickness was serious.

Q. Was he able to talk ?

A. He could talk but not much.

[p.183] of [1966] GLR 177

Q. Did the plaintiff trust the defendant ?

A. Yes.

Q. When the plaintiff told the defendant what you told the court how many people were present ? A. We were three.

Q. You are staying in the house of the plaintiff now sold to Mr. Farage?

A. No.”

I accept also the evidence of the plaintiff that after the execution of exhibit 5 the defendant started to collect rents accruing from the house in dispute but did none of the things the plaintiff asked him to do and for the consideration of which the property was conveyed. This evidence is borne out by the conduct of the defendant who has since then treated the property as beneficially his own and has maintained that assertion throughout this case.

As stated in Halsbury’s Laws of England (3rd ed.), Vol. 38, p. 865, para. 1459: “Failure of purpose of gift ostensibly beneficial. Where property is purchased in the name, or is transferred into the possession, of a person ostensibly for his own use, but really to effect or assist a purpose which is never carried out, there is a resulting trust of it for the purchaser or transferor, and he can make good his claim to it. Even if a transfer was made for the fraudulent purpose of evading the law, the transferor is entitled to have the property reconveyed or restored provided that the purpose was never carried out, and that it is not necessary for him to disclose the illegality in the course of legal proceedings for recovery of the property.”

I hold that there should be a resulting trust of the property the subject-matter of this claim in favour of the plaintiff. I give judgment therefore for the plaintiff for:

(a) declaration of his title to house No. 27A/5, Ahanta Road, Takoradi; and

(b) grant a perpetual injunction in his favour restraining the defendant his servants and agents from entering the said premises; and

(c) order the defendant to file an account of all rents collected by him from the said house from the date of the execution of exhibit 5 within one month from today’s date and to pay into court at the same time for the collection of the plaintiff the sum of all such rents after rates and taxes have been deducted.

[p.184] of [1966] GLR 177

I award costs assessed at 75 guineas in favour of the plaintiff.

DECISION

Judgment for the plaintiff with costs.

E.D.K.