Mercy Adoley Akwei, On Behalf Of Herself And As Representing The Family Of E. A. Akwei, Deceased V. Lucy Kate Akwei, As Widow Of The Said E. A. Akwei And As Administratrix Of His Personal Estate (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Judgment—Practice and Procedure—Joinder of parties—Interested parties not joined before judgment—Cestuis que trust.
A•dministratrix—Practice and Procedure—Suit respecting real property—Suit against administrator of personal estate.
Pleading—Reply—Statute of Frauds.
Trust—Declaration of Trust—Implied Trust—Statute of Frauds (29 Car. 2, C. 3) section 7—Ibid., section 8.
Jurisdiction—Native Tribunal—Action against Adm,inistratriz for profits of estate—Land situated within the State of a Paramount Chief—Native Administration (Colony) Ordinance (Cap. 76) (Gold Coast), section 48.

Facts

Plaintiff was sister of Akwei, deceased, and defendait was his widow and the administratrix of his personal estate. During Akwei’a lifetime certain land within the state of a Paramount Chief was conveyed to Akwei by deed, and a house was built upon it. The money for these purposes was provided by defendant and her father under such circumstances as to raise an implied trust by Akwei in favour of his children. No written declaration of trust was made.

Plaintiff, on behalf of herself and as representative of the family of Akwei, sued defendant as administratrix, claiming, inter alit’, an account of the rents and profits of the house, and a third share of the rents and profits and of the house or its value after sale. In her defence the defendant alleged the trust and the circumstances creating it. The plaintiff did not plead the Statute of Frauds in reply.

The trial Judge found in fact that the circumstances raising the trust existed, but held that, as there was no declaration of trust to satisfy the statute of Frauds, the house and laud formed part of Akwei’s estate; and he held that the plaintiff was entitled to an account of the rents and to the payment of one-third of them to her, and to a third share of the house, or its value.

Both parties appealed. Counsel for plaintiff submitted that the
Adoley,-proceedings below were a nullity because the cause was one properly
cognizable by the Paramount Chief’s Tribunal under sections 48 (1) and 48 (2) (c) of the Native Administration (Colony) Ordinance, the further progresi of which should accordingly.have been stopped, and the parties referred to the Tribunal, under section 66 of the same Ordinance.

Held

(i) The decision of the trial Court, amounting to a declaration of title for the plaintiff to an undivided one-third share of the property, ought not to have been made without joining the guardian of Akwei’s children who were minors, on whose behnif the claim had been put forward that they were Cestuia que trust.
(iii Defendant should not have been sued as administratrix of AkweN personal estate, having no power to deal with the house and land in that capacity.
As plaintiff did not plead the Statute of Frauds, she was not entitled to rely thereon.
Even if the Statute of Frauds had been pleaded, it could not be relied on because, by virtue of section 8 thereof, implied trusts were eacepted from its operation, and therefore the house and land did not form
of Als-avei a estate.
( u) As some law other than Native customary law (viz., The Marriage Ordinance, and English Law relating to the Administration of Estates) was properly applicable, under the proviso to section 48 (1) of the Natie Administration (Colony) Ordinance the trial Court was properly, seized of the case.