QUARTEY v. ATTORNEY-GENERAL AND ANOTHER [1968] GLR 279

DIVISION: HIGH COURT, ACCRA

DATE: 21 MARCH 1968

BEFORE: CHARLES CRABBE J.

NATURE OF PROCEEDINGS

APPLICATION on behalf of an infant for approval of settlement of the infant’s claim for damages for personal injuries sustained as a result of a plane crash. The facts are sufficiently set out in the judgment.

COUNSEL

Dr. E. Ako-Adjei for the applicant.

S. S. Okunor, Senior State Attorney, for the Adjutant-General and the Public Trustee and for the Attorney-General.

G. D. Ampaw for Madam Smith.

JUDGMENT OF CHARLES CRABBE J.

This is an application on behalf of Dominic Nii-Boi Quartey also known as Jabez Dominic Quartey praying for an order of this court under Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 22, r. 9 (1) for the approval of the quantum of compensation settled by agreement and for an order directing the payment of that compensation into a trust fund to be held by the Public Trustee, as trustee for the benefit and education of the said infant Jabez Dominic Quartey. The background to this application is that the claimant, an infant aged ten years, is the son of Mr. Ebenezer Kwate Quartey, who for the purpose of this action is the next friend of the infant. Early in 1966 there was a Ghana Air Force aeroplane crash in Cape Coast. The infant-claimant, along with other children, was [p.282] of [1968] GLR 279 very seriously injured. He was completely burnt. Several other school boys involved in the plane crash died as a result of the burns they sustained as by the crash.

It is claimed that it is a mystery how the infant-claimant in this case is alive. The military authorities sent him to the United Kingdom with the consent of the father to a military hospital in England for treatment. He was treated and later brought back. From the day of the accident to the time of the commencement of the action all correspondence relating to this unfortunate affair has been between the military authorities and the father, his next friend in this action. The military authorities have agreed to award an amount of N¢6,500 to the infant-claimant as compensation or ex gratia award in respect of the injury sustained in the Air Force aeroplane crash. It was urged upon this court that the infant is the claimant in this case and that his father is only acting as the next friend, and that the quantum of the damages or ex gratia payment to be made will entirely be for the benefit of the infant-claimant and nobody else. It is therefore suggested to this court that in order to safeguard the interests of the infant-claimant the next friend who is the father has proposed that the military authorities should pay the whole quantum of compensation to the Public Trustee direct to be held by the Public Trustee as a trustee for the benefit of the infant-claimant. The father as next friend is asking the Public Trustee to accept a trust on behalf of the infant-claimant.

The Public Trustee has agreed to accept the trust. The terms of the trust so far, contended counsel for the claimant, are brief and clear: That the entire quantum of compensation to be made to the infant, namely, N¢6,500 should be held in trust by the Public Trustee for the infant-claimant Dominic Nii-Boi Quartey for his education until the infant-claimant attains the age of 21 years.

The Public Trustee has accepted or has indicated to accept the trust and his letter of acceptance was put in evidence attached to an affidavit sworn to by the father of the claimant. It is intended that all expenses for the education of the infant-claimant be paid by the Public Trustee out of the trust fund. In other words the trust is solely for the education of the infant-claimant.

The military authorities are prepared to pay the quantum of compensation to the Public Trustee. However, having regard to the provisions of Order 22, r. 9, this application is being made to this court seeking an order for the approval of the court. The application before the court is seeking to do two things. One, the approval of the amount agreed upon and secondly an order directing payment of the sum so agreed to the Public Trustee.

[p.283] of [1968] GLR 279

Counsel for the infant-claimant indicated to the court that the father of the infant-claimant as his next friend has agreed between solicitor and client that the incidental fees of the application including solicitor’s fees and all such expenses should not be paid out of the fund of the trust now to be created for the infant-claimant, unless the court otherwise directs.

Counsel for the Attorney-General, the Adjutant-General of the Armed Forces and the Public Trustee made it clear to the court that neither the Attorney-General nor the military authorities nor the Public Trustee is opposed to the payment of the moneys into a trust under the conditions which have been specified by counsel for the infant-claimant. Indeed it was upon the advice of the Attorney-General that the amount concerned is to be paid to the infant-claimant. However, there were one or two points exercising the mind of the Attorney-General. These revolve on whether or not rule 9 of Order 22 can be invoked in this case. The contention of counsel for the Attorney-General is that there must exist a cause or matter before the court in order that this rule can be made to apply. Furthermore, the rule stipulates what could be done with moneys paid to the court no matter when the moneys were paid to the court. Counsel submitted therefore that this rule is not applicable since there is no action pending in the court and no moneys had been paid to the court, either in anticipation or in settlement of a court order. Counsel for Madam Smith said before this court that when the accident occurred it was his client Madam Smith, who took the child to Accra and started the negotiations. His instructions were that since the birth of this infant-claimant the father had never taken up any responsibility for the child. That has been the responsibility of the family of the mother. If any application should be made at all he contended it should be made with the knowledge and consent of those with whom the child had been staying. He would, however, not oppose the creation of a trust. Order 22, r. 9 (1) is in the following terms:

“In any cause or matter in the Supreme Court and in any Admiralty action in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind be valid without the approval of the Court or a Judge.” [p.284] of [1968] GLR 279

It was urged on this court by counsel on behalf of the infant-claimant that this sub-rule be read thus:

“In any matter in the Supreme Court in which money is claimed by or on behalf of an infant, no settlement or compromise shall, as regards the claims of any such infant be valid without the approval of the court or a judge.”

This rendering of the rule has some merit although I do not fully agree to it, for it can be rendered in other forms.

Be that as it may, it seems to me that the whole intendment of this sub-rule is to make the validity of a settlement or a compromise in any matter in which money is claimed by an infant dependent upon the sanction of the High Court. If this were not so the validity of any such settlement or compromise would be governed by the ordinary law relating to contracts relating to infants.

The object, then, of this sub-rule, is that all money claims by an infant should be made the subject-matter of proceedings in the High Court, even though, it would appear, all that the High Court can do is to give its blessing to the settlement or compromise. If this is not done then a settlement or a compromise of any such claim by an infant without the sanction of the court is made entirely at the risk of the other party. In other words the infant will be protected by the courts at all costs. Armed with such a jurisdiction it becomes, in my view, the duty of the court to consider the question of liability, the question of the quantum of damages and the question of approval coupled with the attendant issue of the creation of a possible trust.

In Re Birchall; Wilson v. Birchall (1880) 16 Ch.D. 41, C.A. it was argued that the Chancery Division had jurisdiction to approve a compromise on behalf of infants whether their advisers had approved of it or not, and that if the court saw that a guardian or next friend was acting improperly and against the infants’ interest in refusing to assent to an arrangement which appeared clearly beneficial to the children, steps might be taken to remove him and substitute some other person; but the court will not agree to a compromise without the consent of the next friend or guardian. Jessel M.R. said at p. 43 that:

“In my opinion the course which has been taken in this case is quite unprecedented. The Court can approve of a compromise on behalf of infants, but it cannot force one upon them against the opinion of their advisers. The practice followed by myself, and by Lord Romilly before me, at the Rolls, has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, [p.285] of [1968] GLR 279 but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so. If the opinion given is only that of the junior counsel and there is a leader, I ask the leader in Court whether he agrees with the junior’s opinion, and this was also Lord Romilly’s practice. This is the first time that I have known a compromise enforced upon infants against the opinion of their guardian or next friend and of their legal advisers, and I am of opinion that the orders cannot be sustained. The Respondent can hardly be considered to be in fault, as she only took what was offered by the Court, and we, therefore, do not order her to pay costs.” In Somerset v. Ley [1964] 1 W.L.R. 640, a consent order was made by the court approving on behalf of an infant-respondent, a compromise of an administrative summons taken out by the plaintiff. Cross J. said at p. 645 that:

“The court has no power to compel a guardian ad litem and her counsel to agree to any compromise. The court’s function is to give its consent, if it thinks fit, to a compromise to which the guardian ad litem and her legal advisers have provisionally agreed, subject to that consent.”

In Chapman v. Chapman [1954] A.C. 429, H.L., Lord Simonds L.C. said this at p. 445:

“There is no doubt that the Chancellor (whether by virtue of the paternal power or in the execution of a trust, it matters not) had and exercised the jurisdiction to change the nature of an infant’s property from real to personal estate and vice versa, though this jurisdiction was generally so exercised as to preserve the rights of testamentary disposition and of succession. Equally, there is no doubt that from an early date the court assumed the power, sometimes for that purpose ignoring the direction of a settlor, to provide maintenance for an infant, and, rarely, for an adult, beneficiary. So, too, the court had power in the administration of trust property to direct that by way of salvage some transaction unauthorized by the trust instrument should be carried out. Nothing is more significant than the repeated assertions by the court that mere expediency was not enough to found the jurisdiction. Lastly, and I can find no other than these four categories, the court had power to sanction a compromise by an infant in a suit. to which that infant was a party by next friend or guardian ad litem. This jurisdiction, it may be noted, is exercisable alike in the Queen’s [p.286] of [1968] GLR 279

Bench Division and the Chancery Division and whether or not the court is in course of executing a trust.”

He then continued at p. 446 to state that:

“It is the function of the court to execute a trust, to see that the trustees do their duty and to protect them if they do it, to direct them if they are in doubt and, if they do wrong, to penalize them.”

Upon considering these authorities I hold the view that this court is entitled to deal with the application before it and in considering the question of liability to be told whether or not liability is disputed or admitted, whether, and to what extent, the liability if disputed can be established. The court must know the version of either party including the evidence that can be adduced. In all, therefore, this court is entitled to be put in possession of all the available material in this case so as to enable the court to form an opinion by itself on the matters in issue. The next consideration is the quantum of damages. The court is entitled to know the nature and extent of the injury suffered by the infant and their probable effect on his general health, enjoyment of life and his ability to earn for himself a reasonable standard of living.

I hold the view that the principle on which the court will approve a settlement or a compromise is that, having regard to all the circumstances, the settlement or compromise is a reasonable one; above all it is for the benefit of the infant. The interest of the infant must be the paramount consideration. As Thomas Guthrie said:

“Beautiful as is the morning of day, so is the morning of life—Fallen though we are, there remains a purity, modesty, ingenuousness and tenderness of conscience about childhood, that looks as if the glory of Eden yet lingered over it, like the light of the day on the hill-tops, at even when the sun is down.”

See Dictionary of Thoughts, p. 305.

I think we are familiar with the maxim “equity will not assist a volunteer.” On the facts so far given me, and those facts are not controverted, the next friend of the infant seeks to have the moneys payable paid into a trust to be created for the benefit of the infant. The father, as next friend, has not given any valuable consideration for the moneys now desired to be paid. It is true that the infant has suffered and on that alone it can be argued that having suffered some loss there is consideration in respect of the creation of the trust. Having regard to statements that have been mode regarding the fate of other payments made in which the relatives have jumped [p.287] of [1968] GLR 279 in on the spoils I think the interest of this infant requires that a perfect trust be created so that it becomes binding on any one.

The letter written by the solicitors of the father to the Public Trustee and the reply thereto by the Public Trustee cannot, in my view, constitute a trust. At best they declare a mere intention to create a trust and the acceptance to act as a trustee if a trust were created. I have already adverted to the fact that so far as the father is concerned there is no valuable consideration, and if there is no valuable consideration, there is the need to have a trust perfectly created. We are dealing here with a private trust, not a public one, that is, a trust in which the beneficial interest is to be vested absolutely in the infant-claimant in this case. The machinery sought to be introduced is one in which a particular purpose, primarily the education of the infant, is pointed out. In such circumstances the Public Trustee will not be a mere passive depositary but one who is being called upon to exert himself actively in the execution of the trust. It is desirable that, whether his obligations are to be imperative or discretionary, his limits are set out. I am, therefore, left in no doubt that a perfect trust is needed in this case. In the leading case of Milroy v. Lord (1862) 7 L.T. 178 at p. 181 Turner L.J. stated the law as follows:

“I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon himself. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provisions will then be effectual; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol. But in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases, I think, go further, to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration [p.288] of [1968] GLR 279 of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.”

But we are not out of the woods yet. Section 7 of the Public Trustee Ordinance, 1952 (No. 24 of 1952), states that, ‘‘The Public Trustee may accept trusts which are exclusively for religious or charitable purposes.” This means that a trust which the Public Trustee has a discretion to accept must be either a religious or a charitable trust. We can safely leave out of consideration the question of religious trusts. We must, however, consider whether the trust desired to be created in this case is a charitable trust, so that the Public Trustee can accept it. It is well settled that not every public trust is a charitable trust; yet no trust can be charitable unless it be of a public character. In other words, though the particular object of a trust may be private, its extensiveness must constitute it as a public charity in order to render it a charitable trust. A trust, therefore, to be charitable must be of a public character, the only exception being those relating to the relief of poverty. In order that a trust is to be regarded as of a public character it must be for the benefit of a community and not for the benefit of particular private individuals, nor for a specified class of private individuals. In Re Compton; Powell v. Compton [1945] Ch. 123, C.A. Lord Greene M.R. stated the law at pp. 128-129 as follows:

“The fundamental requirement of a charitable gift is, in my opinion, correctly stated in the following passage in Tudor on Charities, 5th ed., p. 11: ‘In the first place it may be laid down as a universal rule that the law recognizes no purpose as charitable unless it is of a public character. That is to say, a purpose must, in order to be charitable, be directed to the benefit of the community or a section of the community.’ Authority for this proposition is to be found in numerous cases of which the following are examples: per Lord Cairns in Goodman v. Mayor of Saltash ((1882) 7 App.Cas. 633, 650): ‘Such a condition would create that which in the very wide language of our courts is called a charitable, that is to say a public, trust or interest, for the benefit of the free inhabitants of ancient tenements. A trust of that kind would not in any way infringe the law or rule against perpetuities, because we know very well that where you have a trust which, if it were for the benefit of private individuals or a fluctuating body of private individuals, would be void on the ground of perpetuity, yet if it creates a charitable, that is to say a public, interest, it will be free from any obnoxiousness to the rule with regard [p.289] of [1968] GLR 279 to perpetuities’; per Lord Macnaghten in Pemsel’s case ([1891] A.C. 531, 580): ‘The Court of Chancery has always regarded with peculiar favour those trusts of a public nature which, according to the doctrine of the court derived from the piety of early times, are considered to be charitable’; per Chitty J. in In re Foveaux ([1895] 2 Ch. 501, 504): ‘To be a charity there must be some public purpose—something tending to the benefit of the community. The benefit in point of local area need not extend to the public at large; a trust for the benefit of the inhabitants of a particular district will suffice’; and per Lord Wrenbury in delivering the judgment of the Privy Council in Verge v. Somerville ([1924] A.C. 496, 499): ‘To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first inquiry must be whether it is public —whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may, for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals, cannot.’ The proposition is true of all charitable gifts and is not confined to the fourth class in Lord Macnaghten’s well-known statement in Pemsel’s case ([1891] A.C. 583). It does not, of course, means that every gift that tends to the public benefit is necessarily charitable. What it does mean is that no gift can be charitable in the legal sense unless it is of the necessary public character.”

Subsection (1) of section 9 of the Public Trustee Ordinance, 1952, is as follows:

“The Public Trustee may by that name, or any other sufficient description, be appointed to be trustee of any will or settlement or other instrument creating a trust or to perform any trust or duty belonging to a class which he is authorised by regulations made under this Ordinance to accept, and may be so appointed whether the will or settlement or instrument creating the trust or duty was made or came into operation before or after the commencement of this Ordinance and either as an original or as a new trustee, or as an additional trustee, in the same cases, and in the same manner, and by the same persons or court, as if he was a private trustee, with this addition, that, though the trustees originally appointed were two or more, the Public Trustee may be appointed sole trustee.” [p.290] of [1968] GLR 279

This section no doubt has to be read with section 7 of the Ordinance in mind. The trust referred to in the section must be a charitable trust. Nothing is said in the regulations made under the Ordinance about charitable trusts as has been provided for religious trusts. One is therefore left to rely on the English authorities to which reference has already been made. There can be no doubt that the word “charitable” as used in section 7 of the Public Trustee Ordinance ought to be given its technical meaning. But section 2 of that Ordinance defines “trust” as including “guardianship of infants.” Since by our Interpretation Act, 1960 (C.A. 4), the plural includes the singular the Public Trustee can be appointed a trustee in respect of the guardianship of an infant. From very early times children whose homes could not provide them with the necessaries of life have always been the province of charity. In ancient Greece, from the time of Socrates there was a fund for the orphans of soldiers and sailors. The Jews made provision for the succouring of fatherless children by making their care a religious duty. And there is evidence that there were charities available for orphans in Japan as early as the ninth century. The Christian churches from the first took special responsibility for destitute children, and it is in general true to say that in Europe good neighbourliness up to the sixteenth century had been the main source of help for children. Under fuedalism, as under slavery, children were instrumental to the well-being of the owner of the land on which the family worked; under neither economy could there be the possibility of much discrimination in the treatment of children. Personal relationships were not held to be paramount, although incidentally strong bonds of affection and loyalty might develop. In most cases support would be forthcoming for the children left destitute within the area of the manor, but no one outside it had any responsibility for them. During the two and a half centuries from 1350 to the passing of the Poor Relief Act of 1601 (43 Eliz. 1, c. 2), there were changes in economic and social structure which made it necessary for the whole community to take responsibility for destitute people, including children.

I have gone a little length into the question of guardianship of infants to show that the whole fabric of the law relating to infants is a reflection of the social conditions of a people. The power of life and death of the father in Roman Law, patria potestas, reflects the Roman idea of the capacity of an infant to do certain things for himself. The Greek law of Solon, the Hebrew Decalogue and the laws of Alfred are, whether one considers them as legislation or not, declarations of existing custom. And our social conditions, from time [p.291] of [1968] GLR 279 immemorial, create the customs which are handed down from generation to generation.

In Donoghue v. Stevenson [1932] A.C. 562 at p. 583, H.L., Lord Atkins said in that famous case:

“I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”

My attention has been drawn to the fact that the infant in this case was not the only one who was injured by the aeroplane crash. There were quite a number of others. Ex gratia payments have been made to the relatives of the other children. No one can certainly say; most probably the sums of money paid have already been squandered. Is this desirable? counsel for Madam Smith did say in argument that, “since the birth of the child, the father has never taken up any responsibility for the child. The family of the mother has always borne that responsibility. . . .” This, he said, was upon his instructions. In fairness to counsel I might say that he did say that he does not oppose the creation of a trust. But this instruction given to counsel is an example of the adage: exterior actions indicate interior motives. Or as the Irish put it, the tongue cannot withhold what the heart has. When such issues as the welfare of children are before these courts parties must learn to forget personalities and deal with principles. The intentions of the father are that a trust should be set up for the benefit and education of the infant-claimant. Those who conducted the negotiations for the infant-claimant at the early stages never at any time suggested the setting up of a trust. When the question of trust is raised there are cries of failure to maintain. We must, I conceive, learn to raise our thinking at times to the objective level.

Be that as it may, I am forced by the prevailing conditions of this country, and especially by the fact that the ex gratia payments now desired to be made to the infant-claimant could be used, other than for the benefit of the infant, to hold that the court must exercise jurisdiction to sanction the settlement reached between the military authorities and counsel for the infant-claimant. As already indicated it is the duty of the court to consider the question of liability, the question of damages and the creation of a perfect trust for the benefit of the infant. The full facts of the case must, therefore, in my view, be placed at the disposal of this court including the discussions and correspondence on this case, together with the draft of the trust intended to be

[p.292] of [1968] GLR 279 created. Upon consideration of the relevant material I will approve and sanction the settlement and the appointment of the Public Trustee as trustee for the infant under the terms that the court will sanction.

I ask counsel to agree upon the facts and draw up the relevant material in written form and attach the draft of the trust deed for the approval of the court. I make no order as to costs.

DECISION

Order accordingly.

S.K. T.