G. B. Ollivant, Ltd. V. Kwesi Baa Korsah & Anor (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claimant-Appellant.

Facts

In an Interpleader action claimant appeared to sue in his personal capacity whilst in fact he was suing as a beneficiary on behalf of himself and co-beneficiaries thus violating rule 1 Order 3 of third Schedule to Supreme Courts Ordinance which states that representative capacity must be stated in the writ.

Appeal Court commented that a copy of a Will which was put in by consent and accepted though not even a Probate copy should not be thus accepted as evidence of the contents.

Robert Marmaduke Korsah owned an area of land in the centre whereof in 1928 he allowed his son the judgment debtor to build a house. In 1929 he executed a deed of Gift of the land in favour of his eon. The claimant contended that the land on which the house stood and a small portion around it was all that was included in the gift and he claims for himself and his co-beneficiaries as residuary legatees under Robert Marmaduke Korsah’s Will the remaining larger portion of the land. The description of the land in the deed of gift and in a plan attached thereto are irreconcilable. It was admitted that both portions were in judgment debtor’s possession at time of attachment but claimant claimed, under Order 44 Rule 25 (1) of Schedule 3 to the Supreme Courts Ordinance that judgment debtor was holding in trust for the claimant and his co-beneficiaries under the Will. Trial Judge found against the claimant because he did not believe claimant’s story. He held that if there was any ambiguity in the deed then the boundaries must be looked at and in any event judgment debtor had so long dealt with the whole property as his own that all were estopped from now claiming that only a portion was given.

Held

(i) That best way to resolve the latent ambiguity in the deed of gift was to look to the conduct of the parties and from their conduct it is evident that the onus of proof upon the claimant had not been discharged.

(ii) That it was not competent for the learned trial Judge to find that the claimant was estopped as it had not been pleaded.

Appeal dismissed.