State and explain ways in which beneficiaries can hold third parties (other than the trustee) liable for breach of the trust committed by them.

(20 marks)

Beneficiaries can hold third parties liable through proprietary and personal remedies, primarily under constructive trust principles for knowing receipt or dishonest assistance.

  • Knowing receipt: Where a third party receives trust property knowing it was transferred in breach, they are liable as constructive trustee. Requires actual or constructive knowledge (Baden v Société Générale [1993] 1 WLR 509). In Ghana, this applies if a bank like Ecobank receives misappropriated funds; beneficiaries can trace and claim.
  • Dishonest assistance: Third parties assisting in breach (without receiving property) are liable if acting dishonestly (Royal Brunei Airlines v Tan [1995] 2 AC 378). Dishonesty is objective; no need for fiduciary relationship. Example: An advisor aiding a trustee’s fraud in Ghanaian pension trusts, violating BoG’s anti-money laundering directives.
  • Tracing: Beneficiaries follow trust property into third parties’ hands, claiming it back if identifiable (Re Diplock [1948] Ch 465). Common law (legal title) or equity (mixed funds). In practice, during Ghana’s banking cleanup, beneficiaries traced assets from collapsed banks like Capital Bank.
  • Personal claims: For unjust enrichment or damages, third parties repay value received.
  • Limitations: Innocent volunteers protected; must prove knowledge/dishonesty.

Practical insight: In Ghanaian corporate trusts, this ensures accountability, aligning with Basel III risk management for banks handling trusts, preventing losses like in the 2017 insolvencies.

(Marks allocation: 5 marks per way, including explanation, cases, and practical examples; total 20.)

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