Claim against a trustee distinguished from a claim against an agent
We are unable to agree with the contention of counsel for the respondent that this is a claim based essentially on a contract of agency and that the plaintiff has come to court for a relief in respect of that breach, because plaintiff has claimed all properties acquired by the defendant from 1942 up to date of action, on the ground that the defendant was holding his money as trustee, and has employed that money to acquire the properties; such a claim is properly available as against a trustee and not against an agent who has committed a breach of his agency, as in the latter case the principal is only entitled to claim his money and the interest thereon but not properties acquired with his money.
Following trust money into property acquired with it
In this case the plaintiff appears to have adopted the equitable principle that “if a trustee has in breach of trust converted trust money into some other form, the property into which it has been so converted becomes subject to the trust”. (See Underhill’s Law of Trusts and Trustees (11th ed.) p. 560, art. 91.)
It is further contended that by reason of the provisions of subsection (1) of section 17 of the Interpretation Act, 1960 that: “the common law, as comprised in the laws of Ghana, consists, in addition to the rules generally known as the common law, of the rules generally known as the doctrines of equity,” “legal estate and equitable estates (or interests) are now one and the same thing,” to use the words of learned counsel for the respondents. In my opinion, however, the contention is not well-founded, and appears to stem from a misapprehension similar to that which became current shortly after the enactment of the Supreme Court of Judicature Acts, 1873 and 1875,79 as to the effect of the provisions in section 24 of the 1873 Act that: “In every civil cause or matter commenced in the High Court of Justice law and equity shall be administered by the said High Court. . . “ The above-specified provision was often put forward as having effected a fusion of law and equity when, more correctly speaking, the fusion was the administration of law and equity.
The creation of a Trust operates to vest the legal title in the Trustee, while the beneficial interest is vested in the beneficiary. However, in certain instances, the title which the trustee holds in property may be an equitable one. This second concept is, however, not the subject of this Judgment and need not be discussed further.
Property of an unincorporated association held by trustees
It is a principle of the common law that property can be vested only in definite persons, and where a body of persons desire to hold and enjoy land, there are two methods by which this can be done: (a) an Act of Parliament or a charter must be procured to turn the indefinite body of persons into a definite, albeit an artificial, person, called a corporation, or (b) the land must be vested in trustees upon trust to hold and manage the land for the benefit of the proposed beneficiaries. In the eye of the law a corporation is a separate person distinct from the members of which it is formed and is capable of acquiring, holding and alienating land. An unincorporated association, like a members’ club, on the other hand, has no legal existence apart from the members from time to time of which it is composed, and a distinction is drawn between the association’s property and the separate property of the members. The members for the time are jointly entitled to all the property and funds of the association, and the property is usually vested in trustees.
Whether a trust can arise from a government publication
The admission of Exhibit C notwithstanding, it is important to note that a trust is a creation of law and cannot be created by virtue of a publication on a website, even if it is suggested that the website belongs to a Government agency or ministry. It is only by recourse to the enabling or governing statute that this Court can determine whether the creation of the Yongwa Forest Reserve, was a compulsory acquisition, a trust, or otherwise.
