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GHANA BAR REPORT 1994 -95 VOL 2

 

Abbey v Sykes [1994 - 95] 2 G B R 743 – 757 C A

COURT OF APPEAL

LAMPTEY, ESSIEM, FORSTER, JJA

31 MARCH 1994

 

Evidence – Burden of proof – Declaration of title – Plaintiff claiming declaration of title to disputed property – Defendant claiming property in statement of defence but making no counterclaim – Burden of proof on plaintiff.

Practice and procedure – Appeal – Findings of fact – Trial judge’s finding to be reversed only if against weight of evidence or wrong principles of law applied.

Practice and procedure – Pleading – Equitable estoppel – Not pleaded – Whether trial judge may apply principle.

Upon the breakdown of her marriage under customary law the plaintiff instituted an action against her husband for a declaration of title to the disputed house. She claimed that she provided the purchase money for the land and the building plan. In his defence the husband claimed the house as his self-acquired property. The trial judge found that the plaintiff failed to establish her claim but granted the declaration on the basis of equitable estoppel and ordered the defendant to render account of rents collected. The defendant submitted on appeal to the Court of Appeal that the trial judge having found that the plaintiff failed to establish her claim to the land erred in invoking proprio motu the principle of equitable estoppel to uphold the claim.

Held: (1) The burden of proof lay on the plaintiff to establish her claim for declaration of title to the disputed land. Since the defendant did not counterclaim for declaration of title he did not assume any burden. Kponuglo v Kodadja (1933) 1 WACA 24, Kodilinye v Odu (1935) 2 WACA 336, Ricketts v Addo [1975] 2 GLR 158, CA, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, CA, Odametey v Clocuh [1989-90] 1 GLR 14, CA referred to.

(2) Although an appellate court might set aside a finding of fact by a trial court and substitute its findings, it would not do so as it had not been established that the judgment was against the weight of the evidence or that the court applied the wrong principles of law. Kyiafi v Wono [1967] GLR 463 referred to.

(3) As the plaintiff did not seek any equitable remedy it was wrong for the trial judge proprio motu to have invoked the principle of equitable estoppel. The issue was whether the plaintiff had adduced sufficient evidence in support of her claim to the disputed land. It was trite learning that a trial court was enjoined to dismiss a claim once it was satisfied that the claim had not been proved. The trial judge therefore erred in not dismissing the action. Dam v Addo [1962] 2 GLR 200, SC referred to.

Cases referred to:

Akrofi v Otenge [1989-90] 2 GLR 244, SC.

Dam v Addo [1962] 2 GLR 200, SC.

Duagbor v Akyea-Djamson [1984-86] 1 GLR 697, CA.

Kodilinye v Odu (1935) 2 WACA 336.

Kponuglo v Kodadja (1933) 1 WACA 24.

Kyiafi v Wono [1967] GLR 463, CA.

Magolagbe v Larbi [1959] GLR 190.

Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, CA.

Odametey v Clocuh [1989-90] 1 GLR 14, CA.

Ricketts v Addo [1975] 2 GLR 158, CA.

APPEAL to the Supreme Court against the judgment of the Court of Appeal.

Eric Narh for the appellant.

Odoi Sykes for the respondent.

LAMPTEY JA. The appellant Honestte Abbey (hereinafter called the “defendant”) customarily married the respondent Elizabeth Sykes (hereinafter called the “plaintiff”) sometime in 1960. The marriage ran into difficulties from time to time, until sometime in 1987 when it virtually foundered on the rocks. I must say that there had not been a formal customary divorce. What had happened was that the defendant unilaterally packed virtually the bag and baggage of the plaintiff and caused these to be sent to the family house of the plaintiff with a message that she should not return to the matrimonial home. Sometime in 1991, the plaintiff took action against the defendant and sought among other reliefs, the following:

“(a) A declaration that the plaintiff is the owner of house No B337/22, (B58C/22) North Kaneshie, Accra and the plot of land on which it stands.

(b) Account of rents collected from the said house from 1977 to the date of judgment.”

The defendant resisted the claim on the ground that the plot of land and the dwelling-house standing on it were his self-acquired properties. Needless to state, the defendant disputed and challenged all the other claims made by the plaintiff.

After the case had been heard on the merits, the trial judge entered judgment for the plaintiff and ordered the defendant to execute conveyance of the disputed plot of land together with the dwelling-house to the plaintiff. The defendant was further ordered to render account of all rents collected from the said house from 1977 to date of judgment. The trial judge made other consequential orders which I


 

need not reproduce here since there is no appeal against these. The defendant was aggrieved and dissatisfied with the decision of the trial court and appealed to this court in the matters raised above touching upon the land and house only.

The first ground of appeal that was argued before us was formulated as follows:

“(c) The learned judge's finding on the issue of equitable estoppel amounted to gross miscarriage of justice when the matter was neither pleaded nor any evidence led thereon.”

I must confess that the language employed to formulate the defendant's complaint is inelegant. The defect was cured when learned counsel for defendant argued that ground of appeal. He drew attention to the relief the plaintiff had claimed under head (a) on the writ of summons. The claim, simply and clearly, was for a declaration of title to both the plot of land and house No B337/22 in the plaintiff.

He argued that since the trial judge made a finding that the plaintiff had failed to prove and establish the title she claimed her plain duty was to dismiss that claim. He submitted that the trial judge erred in law, when she failed and omitted to dismiss that head of claim. He invited us to dismiss that head of claim.

Learned counsel next attacked the trial judge’s consideration of the case presented by the plaintiff to ascertain whether it raised the issue of proprietary estoppel. He submitted that this issue was one that invoked the consideration of principles and rules of equity. He submitted that the plaintiff had not by her writ of summons sought any equitable relief. He submitted that the trial judge erred in law in invoking, suo motu, principles and rules of equity to determine what other relief the plaintiff was entitled to in respect of the disputed plot of land and also of house No B337/22. He invited us to set aside the conclusion and decision of the lower court based and founded on the principles and rules of equity.

In reply, learned counsel for the plaintiff was hard put in defending the approach adopted and followed by the trial judge; in particular, the application of the principles and rules of equity to the instant case. He stated that the claim was for declaration of the legal title to the properties in dispute. Be that as it may, he submitted that on the evidence of the plaintiff and her witnesses, she proved and established her right and legal title to the plot of land in dispute as well as to the dwelling-house on it. He referred to evidence which was not disputed to show that the plaintiff in 1960 gave the defendant £70 (seventy pounds sterling) to enable him buy a plot of land for her. There was evidence that pursuant to that transaction the defendant gave the site plan of the plot in dispute, exhibit D, to the plaintiff to show that that plot belonged to the plaintiff. He therefore invited us to set aside the finding of fact made by the trial judge and to find the legal title proved by plaintiff.

The submissions of learned counsel for the parties raised two issues for consideration. The first issue deals with the burden of proof on the plaintiff who had sought a declaration of title to the disputed land. The other issue is whether or not the trial judge erred in law in, proprio motu, invoking and applying the principle of equitable estoppel to the case before her.

I will deal with the first issue. The burden of proof on the plaintiff who had sought a declaration of title to land was laid down in Kponuglo v Kodadja (1933) 1 WACA 24 and has been followed and applied in a long line of cases. In Kodilinye v Odu (1935) 2 WACA 336, the principle was re-stated in the following popular passage at holding (1):

“[In] an action for a declaration of title to land by the plaintiff, the onus is on the plaintiff to satisfy the court, on the strength of his own case that title to land is vested in him. The onus is not discharged by merely relying on the weakness of the defendant's case.”

See on this Ricketts v Addo [1975] 2 GLR 158, CA, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, CA, Odametey v Clocuh [1989-90] 1 GLR 14, CA. Did the plaintiff on the evidence before the court prove and establish the legal title she claimed? The trial judge had no difficulty in answering the question. She stated her opinion in clear and unambiguous language as follows:

“Would the plaintiff thus be entitled to relief (a)? I do not possibly think, given the facts of this case, that I could declare title in the plaintiff. This is because title to the disputed land is in the defendant.”

The conclusion she reached, as stated above, is in my opinion fully supported by the evidence on record. The evidence adduced by the plaintiff and her witnesses showed that sometime in 1964, she gave the defendant £70 to purchase a plot of land for her. In due course, the defendant gave to her a site plan of a plot of land and stated that that was the land he had bought for her. The trial judge felt satisfied that the totality of her evidence was unsatisfactory to prove and establish the title she claimed. Learned counsel for plaintiff submitted the contrary.

The issue to consider is whether the evidence adduced by the plaintiff and her witnesses was sufficient in law to prove and establish her claim to the legal title and had persuaded us to set aside the finding of fact made by the trial judge on that issue? It is well-settled law that in the appropriate case an appellate court may set aside a finding of fact made by a trial court and make and substitute its own findings. In the instant appeal, the evidence on which the plaintiff had relied was fully considered by the trial judge. Before us it had not been shown that the conclusion reached by the trial judge was against the weight of the evidence. It had not been shown that she applied the wrong principles of law. Indeed, the trial judge observed as follows:

“There is no doubt that the plaintiff who seeks a declaration of title (to land) bears the heavy onus of rebutting the presumption of law which arises in favour of the defendant that he is the legal and beneficial owner of the property in question. This is because the title deed in respect of this plot of land is in defendant's name.”

I find that the trial judge correctly stated the law on this issue. The operative law had been followed and applied in a long line of cases. I refer to the case of Kyiafi v Wono [1967] GLR 463. In that case, the claim was for a declaration of title to land in circumstances similar to the instant appeal. In the course of his judgment Ollennu JA observed as follows:

“Where in an action for a declaration of title, it is alleged that the defendant was the original owner but that title has passed to the plaintiff the onus is on the plaintiff to show the nature of the transaction on which she relies, namely, that it was a sale or gift. Indeed in an action where the claim is for a declaration of title to property in this case land, the burden of proof rests squarely on the shoulders of the claimant. It is well settled law that the claimant must succeed on the strength of his case and not on the weakness in the case of the adversary.”

I find that the plaintiff's claim for a declaration of title to the disputed plot of land was rightly rejected by the trial judge.

The other limb of the issues raised was whether the trial judge erred in law when she failed and omitted to dismiss the claim of the plaintiff under head (a) on the writ of summons. Learned counsel for the defendant submitted that the plain duty of the trial judge was to dismiss the claim of the plaintiff under head (a) on the writ of summons when she found and held that the plaintiff had failed to prove and establish her claim under that head. He invited us to dismiss the claim of the plaintiff under head (a) on the writ of summons.

In considering this complaint against the judgment, I would deal with the claim for a declaration of title to the land only; and for the moment leave the claim to the dwelling-house. It is trite learning that a trial court is enjoined to dismiss a claim when it is satisfied that that claim is not proved and established as required by law. I refer to the celebrated case of Dam v Addo [1962] 2 GLR 200 at holding (1) as follows:

“Once the trial judge has resolved the outstanding controversial issues in favour of the appellant, he should have given judgment for the appellant.”

The above respected and respectable authority has been religiously followed and applied in all appropriate cases. I do not intend to depart from it. Indeed, there is nothing on record which persuaded me to depart from it. With great respect to the trial judge, she erred in law when she failed and omitted to dismiss the claim of the plaintiff for a declaration of title to the plot of land in dispute. I dismiss the claim of the plaintiff for a declaration of title to the disputed plot.

The other serious complaint made by learned counsel for the defendant was that, the trial judge erred in law when she, proprio motu, invoked the principle of equitable estoppel and applied it to the case before her. He submitted that the trial judge erred in law when she granted the plaintiff a relief which she had not sought. Learned counsel invited us to set aside that part of the judgment. Learned counsel for the plaintiff did not advert to this complaint and made no reply to it. In considering this compliant, I have found the following passage from the case of Dam v Addo, supra very helpful. In holding (2) appears the following statement:

“A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which the party himself puts forward whether he be the plaintiff or the defendant.”

The true and legal position was fully stated in the opinion of Adumua-Bossman JSC at p 203 in the following words:

“The process of consideration and weighing up of the respective cases of the parties by which the learned judge arrived at the conclusion at which he did arrive, would appear to have involved the substitution by him, proprio motu of a case substantially different from, and inconsistent with, the case put forward by the respondents and the ultimate acceptance by him of that substituted case which was not the respondent's case at all.”

In her writ of summons, the reliefs sought and claimed by the plaintiff were clearly and plainly spelt out in great detail. The plaintiff did not seek any equitable relief or remedy. It was palpably wrong for the trial judge, proprio motu, to have invoked the principle of “equitable estoppel” and applied it to determine the case before her. Her approach was not warranted by law. She clearly and plainly erred in law when she embarked upon an inquiry to ascertain whether or not the principle of “equitable estoppel” applied to the case before her. This was what she stated:

“I think this is a case which can be resolved on the principle of law known as proprietary estoppel or sometime described as “equitable estoppel” or “equity created by estoppel.”

With respect to the trial judge, the issue before her was whether the plaintiff had adduced evidence which on the balance of probabilities entitled her to a declaration of her legal right and title to the plot of land in dispute. The unwarranted inquiry conducted by the trial judge led her to conclude as follows:

“I have no doubt the property was intended to be conveyed to the plaintiff absolutely and free from all encumbrances. In my view the justice of the case demands that the defendant be compelled to give effect to his promise.”

With respect to the trial judge, the case of the plaintiff was not that the defendant promised to give her the plot of land in dispute. Indeed, there was no evidence before her which remotely suggested that the defendant promised and intended to convey the disputed plot of land to the plaintiff. The finding that there was an intention to convey the disputed property to the plaintiff was not supported by the evidence on record. The finding must be set aside. The consequential order, namely, that within 14 days of the judgment, a conveyance of the land in dispute together with the dwelling-house be executed in favour of the plaintiff, must also be set aside.

One ground of appeal was formulated as follows:

“The learned judge misdirected herself in holding that the respondent was financially capable of putting up the said house without considering her means.”

Learned counsel for the defendant submitted that the plaintiff failed to prove and establish that she built the dwelling house in dispute. He argued that the plaintiff did not lead evidence to show that the dwelling-house was built from funds and monies provided by her. He invited the court to reject the bare statement that she provided the monies for the building of the house in dispute.

In reply, learned counsel for the plaintiff submitted that the plaintiff adduced sufficient evidence to prove and establish that she provided the monies for the building of the house in dispute. He pointed to pieces of evidence on record to support and buttress his argument.

The question which must be answered is whether the trial judge was right when she found on the evidence before her that the plaintiff built the house in dispute. I must first observe that the defendant did not counterclaim for a declaration of title to the dwelling-house even though he made it quite clear in his statement of defence that it was he who had from his own funds and monies built the house in dispute. The defendant therefore did not assume any burden of proof. On the other hand, the plaintiff claimed a declaration of title to the house in dispute hence she was enjoined to strictly prove the title she had claimed.

At this early stage, I must point out that part of the evidence led by the plaintiff to show that she caused specific works to be carried out on the dwelling-house was admitted by the defendant. Does the undisputed evidence prove and establish that the dwelling house was built by the plaintiff? I think a more careful examination of the evidence on record does not support such a finding. The plaintiff gave evidence that she caused a building plan to be made for her. This was what she told the court:

“[The defendant] said I could therefore build on it [meaning the land in dispute]. The defendant went to see one Mr Palm who made a building plan for her to build on the plot. I started building on the land in 1964. I now say I started the building on the land in 1970.”

From the above passage, the plaintiff must necessarily have in her possession her copy of the building plan and building permit for the house in dispute. She could have obtained a copy from the appropriate department of state if she could not trace her copy. She could have subpoenaed the appropriate department of State to produce the building plan together with the building permit. The plaintiff did not offer any explanation for her failure and omission to put in evidence the building plan together with the building permit. The plaintiff did not call Mr Palm to assist the court. She gave no explanation for her failure to call Mr Palm to assist the court. There can be no doubt that the building plan would contain the name of the person who had commissioned the preparation of that document. That information would raise a presumption in favour of the plaintiff if her name was on it namely, that the plaintiff was the owner of the building. In my opinion, such failure or omission on the part of the plaintiff to adduce the above evidence destroyed the claim made by the plaintiff on this issue.

There is yet another significant short-coming in the evidence adduced by the plaintiff. In her evidence-in-chief, the plaintiff testified as follows:

“When I wanted to start building on the land, the defendant had started building on some land in that area. I decided to engage a contractor but the defendant said that to engage another contractor would be more expensive, so he said he would arrange with his workmen, to help me put up the house I wanted to build. My money was used for the construction of the house. I gave money to the defendant to purchase building material for the construction.” (My emphasis.)

In my view, since the defendant vehemently disputed and challenged the allegation that the house was built by the plaintiff, the plaintiff was enjoined to show by evidence how much money she gave to the defendant for building the house. The plaintiff merely stated she gave an unspecified sum of money for building materials. She did not disclose what she gave to the defendant for payment of the different categories of workmen who actually built the house. It must be noted that she called evidence to show what she spent on plastering, electrical wiring, ceiling and indeed labour. She even produced evidence to show what she paid for a septic tank and for connecting water to the house. Why was her evidence noticeably and significantly silent on what sum of money she gave to the defendant for the construction of the building from foundation to roofing. The plaintiff was given a fair chance and opportunity to assist the court with evidence of how much money she gave the defendant to enable him put up the house for her. She did not assist the court on this important issue as the following cross-examination shows:

“Q     I suggest you never put up any structure on the land.

A      I did. I put up a house on the land.

Q      You did not put up that house.

A      I did.

Q      This house was put up from foundation level to roofing level by the defendant.

A      He was my husband. I gave him my own money to put up the house for me.

Q      You never on any occasion gave any money to the defendant to build any house on this land for you.

A      I gave him my money.” (My emphasis.)

In my opinion, the plaintiff was provided a very fair opportunity to give particulars of any monies she claimed she gave to the defendant. The particulars of payment in terms of dates and amounts; and where possible the reason for the payment of money since these were matters within the peculiar knowledge of the plaintiff. The court was not told how much money in cedis and pesewas the house cost.

I find that the bare assertion of the plaintiff that she gave money to the defendant was not satisfactory proof of that statement. The trial judge should have so found, but did not. Indeed, she did not advert to this significant weakness in the case of the plaintiff. In my opinion, the evidence given by PW1, PW2 and PW3 to show such work as they each did on the house in dispute was far from satisfactory to prove that the whole house was built from foundation level to roofing level by the plaintiff.

The evidence of PW1 was clearly supportive on the conclusion I have reached. He testified as follows:

“The time we visited the house, all the block work had been done, but no doors and windows had been fixed; only window frames were in position. It was not roofed.”

The evidence of PW3 showed that the house was already roofed at the time he did the plumbing work. This was what he told the court:

“When I carried out the plumbing work, the building was plastered. The roof was not sealed.”

In my opinion, the evidence on which the trial judge relied was wholly inadequate to prove and establish that it was the plaintiff who had dug up the foundation, put up the block work, the roof, the frames for the doors and windows and additionally paid for the charges and fees of the workmen who had carried out these tasks. I must observe that the trial judge misdirected herself on the evidence of the defendant on this issue. It was part of the case of the defendant that he sold a house he had purchased from the State Housing Corporation and used the proceeds of sale in addition to other monies to build the house in dispute. The trial judge rejected this evidence. She stated her opinion as follows:

“Finally, counsel for the plaintiff had gone to great lengths to show how highly improbable is defendant's claim that he has sold the properties to one Madam Nkansah. I agree entirely with counsel that the alleged sale is shrouded in mystery. His evidence that he sold this house to one Madam Nkansah is not borne out by the deed of assignment No A/C1511/74 of 7 March 1974.”

On the strength of this, the trial judge concluded that:

“…his claim that he realised ¢25,000 out of the transaction and which he used therefore to complete the disputed building is palpably false.”

The conclusion reached by the trial judge with respect, is not supported by the evidence adduced by the defendant. He tendered in evidence, a letter he wrote to the State Housing Corporation dated 27 May 1987 seeking the consent and concurrence of the corporation to transfer ownership of house No 300-SH 13, North Kaneshie to Madam Akosua Nkansah. The Chief Legal Officer of the corporation by a letter dated 7 December 1987 gave the defendant consent to transfer the said house, and by a separate document under the seal of the corporation, the consent was formally given to the defendant. In the light of the documentary evidence before the trial court, it is difficult to find justification for the conclusion reached by the trial judge that the defendant's evidence was palpably false. The conclusion was neither warranted nor supported by the evidence to which I have drawn attention. In my opinion as between the evidence of the plaintiff and that of the defendant, the defendant has indicated that he invested a substantial amount of money including ¢25,000 from the sale of one of his houses in the building whereas the plaintiff did not lead evidence on how much money in terms of cedis and pesewas the foundation, the block work, the roofing, the window and door frames cost her.

In the celebrated case of Magolagbe v Larbi [1959] GLR 190, the law on what was proof of an averment was clearly stated. The principle of law was applied by the Supreme Court in the recent case of Akrofi v Otenge [1989-90] 1 GLR 244, SC. In holding (1) of the report appears the following:

“(1) proof was no more than credible evidence of a fact in issue. It did not matter that the evidence was given by one or several witnesses; the important thing was the quality of the evidence. Since the plaintiff’s evidence that he was head of his family was supported by a member of the family, the defendants who denied his capacity should have mentioned the person they contended was the head of family and if necessary called witnesses to support them, especially since in Ghanaian local communities the heads of the various families were well-known and it was thus easy to come by that evidence. However the defendants did not even take the first step to discharge their burden; they led no evidence. Thus the only evidence on record on the issue of headship of the family was that of the plaintiff and his witness. Since that evidence was credible and the defendants had failed to discharge the burden that then shifted to them, they had to lose on that issue.”

The court itself questioned the plaintiff on the nature and content of her complaint. I reproduce the relevant passage as follows:

“By court: What complaint did you make before Ashalley Okoe?

A      I went to complain that the defendant had thrown out my possessions even though he came to marry me properly from my family.” (My emphasis.)

When plaintiff was pressed with further questions by learned counsel for the defendant, the plaintiff stated as follows:

“Q     You did not go to Ashalley Okoe with your marriage problems only?

A      Because he threw my things away and said he was not going to marry me again. I said I had my documents covering the house with him and so I demanded their return.”

The answer given by the plaintiff did not support account for rents received by the defendant. Why did the plaintiff not demand an account for rents received from tenants by the defendant? In my view, the evidence on record was wholly inadequate to prove and establish the claim for an account. I reject head (b) of the claim on the writ of summons. I set aside the order that the defendant render account of all rents received by him to the plaintiff.

I cannot conclude this judgment without making some observations on the site plan, exhibit D. I find that the trial judge misconceived the evidential value of exhibit D. The first observation I must make is that one evidence before the court, exhibit D was put in evidence by plaintiff to prove her title to the land. Since it was the plaintiff who had tendered it to prove her right and title to the land in dispute, the rejection of that exhibit by the trial judge destroyed the case and claim of the plaintiff. Indeed the foundation of the case of the plaintiff rested entirely and wholly on exhibit D. The trial judge made that finding of fact.

Was exhibit D a forged document? Who forged exhibit D? According to the plaintiff, exhibit D was given to her by the defendant. The defendant vehemently denied and disputed this. The plaintiff on whom fell the burden of proving that it was the defendant who gave her exhibit D led no corroborative evidence on this issue. The record showed that it was the defendant who proceeded to prove and establish the fact that he did not and could not have given exhibit D to the plaintiff. He did this by calling DW3, Mr Osekre. On the face of exhibit D, a Mr Osekre had prepared exhibit D. DW3 denied he prepared exhibit D. He made it clear to the court that he did not know both the plaintiff and the defendant. Neither the plaintiff nor the defendant employed DW 3 to prepare exhibit D. Mr Osekre did not give that evidence. His evidence therefore meant that exhibit D was a forged document. Now on the face of exhibit D appears the following writing:

“SITE PLAN

PROPERTY OF ELIZABETH SYKES

I, R M K OSEKRE, licensed surveyor certify that this plan is faithfully and correctly executed and accurately shows the land within the limit of the description given to me by Elizabeth Sykes-Abbey.” (My emphasis.)

It cannot be disputed that on the face of exhibit D the site plan was prepared on the instruction of Elizabeth Sykes-Abbey. That name is not the name of the defendant. Exhibit D was put in evidence over and above vehement objection from the defendant. The plaintiff was the person who tendered it. In my opinion, it was not sufficient for the plaintiff to merely tell the court that it was the defendant who gave her exhibit D. The plaintiff was under a duty to give explanation to show she was not aware that exhibit D contained false statements.

In examining the issues raised by exhibit D and in considering the evidence of Mr Osekere DW3, the trial judge observed as follows:

“I now make my own independent assessment of the evidence led. Exhibit D purports to bear the signature of DW3 (Mr Osekre)…” although he (DW3) swore that he knew neither of the parties. Now in spite of the defendant’s claim while cross examining the plaintiff that it was she who took the surveyor Osekre (DW3) to the dispute land at Kaneshie and caused him to draw exhibit D, the evidence led by this man (DW3), who incidentally was their own witness is to the contrary. He does not know the plaintiff.”

It is true that DW3 (Osekre) stated that he did not know the plaintiff. It is also and equally true that DW3 (Osekre) testified that he did not know the defendant. On this, the passage above is eloquent testimony: the trial judge had stated as follows: “Although he (DW3) swore that he knew neither of the parties.”

The trial judge did not make a finding that DW3 knew or ought to have known the defendant. She did not make a finding that she rejected the evidence of DW3 that he did not know the defendant. The clear and undisputed evidence of DW3 was that he did not know the defendant. It was the plaintiff who had tendered in evidence exhibit D. I reject her evidence that exhibit D was given to her by the defendant. I must observe that since the claim to a declaration of title on the land in dispute was solidly based and founded on exhibit D the rejection of exhibit D leads me to the inescapable conclusion that he plaintiff failed to prove that head of claim.

For all the reasons given above, I find that the appeal succeeds. I set aside the judgment dated 8 November 1991. I vacate all the orders made by the court below. I enter judgment for the defendant.

ESSIEM JA. I am of the opinion that this appeal should be allowed. The claim before the court was for:

“1a. Declaration that the plaintiff is the owner of house No B 337/22 (B58 C/22) North Kaneshie, Accra and the plot or parcel of land on which it stands, the said house having been built with the plaintiff's own personal funds realised from her private trading and that the plaintiff is entitled to have the said house conveyed to her by the defendant, and the income derived from it paid to the plaintiff;

b. An account of all rents collected from the said house from 1977 to the date of judgment;

c. Perpetual injunction restraining the defendant, his agents, servants and others from interfering with the plaintiff's interest in the said house;

2a. Declaration that the plaintiff is a joint-owner or co-owner with the defendant of the business known as “Hands Inn Stores” at James Town, Accra, the said business having been purchased by the joint contributions of the plaintiff and the defendant (the plaintiff contributing the larger share) for their joint profit and benefit;

b. An account of the operations of the said business from 1 January 1985 up to the date of judgment;

c. Perpetual injunction restraining the defendant, his agents, servants and others from interfering with the plaintiff's interest in the said business.”

The parties in this case were married in 1960 under Ga customary law and lived together as man and wife for some years before the marriage broke down.

It was the case of the respondent that during the subsistence of the marriage she asked the appellant to buy her a plot of land for building purposes. She gave the appellant seventy pounds sterling for the purpose. Although the appellant told her that he had bought the land he never took her to the land although she asked him repeatedly for this until one day he told her that the land had been “stolen” and promised he would give her one plot to replace the “stolen” one. Subsequently the defendant gave the plaintiff a plot of land at North Kaneshie to replace the lost land which was at Abeka. In due course the marriage between the parties broke down and some elders met to go into their problems. That effort ended in the dissolution of the marriage.

It was after this that the respondent instituted this action to claim the reliefs in this case. The claim is based on the fact that house No B 337/22 (B 58 C/22) was built by the respondent on land which the appellant gave the respondent to replace the lost land. This claim was denied by the appellant. His case was that the house in dispute was his self-acquired property. The learned trial judge in her judgment concluded that she could not declare title in the respondent. This is what she said:

“Would the plaintiff thus be entitled to relief (a)? I do not possibly think, given the facts of this case, that I could declare title in the plaintiff. This is because title to the disputed land is in the defendant. Plaintiff, quite understandably was unable to produce any conveyance in proof of title.”

In my opinion therefore the learned trial judge had resolved the issue of title in favour of appellant and she should have decreed title to the disputed property in the appellant. She did not do this. Instead she continued in her judgment as follows:

“But I think this is a case which can be resolved on the principle of law known as proprietary estoppel or sometimes described as “equitable estoppel” or equity created by estoppel.”

She then continued to discuss this principle and applied same to the facts in this case and decreed title to the respondent.

With great respect to the learned trial judge, I think in this she erred. She had substituted a completely new case for the respondent. No court has a right to do that. The learned trial judge claimed to sustain the respondent’s claim by applying the principle of equity. One of the maxims of equity is that equity follows the law. In Snell's Principles of Equity, 24th edition p 22 we have this:

“The court of Chancery never claimed to override the courts of common law “where a rule, either of the common, or the statute law, is direct, and governs the case with all its circumstances on the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it.”

The first relief sought by the respondent in this case was for “declaration that the plaintiff was the owner of house No B 537/22 (B58 C/22) North Kaneshie, Accra and the plot or parcel of land on which it stood, the said house having been built with the plaintiff's funds realised form her private trading and that the plaintiff is entitled to have the said house conveyed to her by the defendant and the income from it paid to the plaintiff.” There are four other reliefs which the plaintiff sought from the court as I have earlier referred to in this judgment. The other reliefs are consequential upon relief (a) just quoted.

The trial judge as pointed out earlier in this judgment concluded


 

that she could not declare title in the plaintiff. This is because title to the disputed land was in the defendant.

It is a well-settled principle that a plaintiff who seeks a declaration of title must succeed on the strength of his own case and not on the weakness in the case of the defendant. The plaintiff had the burden of proving her case. As the learned trial judge found “the plaintiff quite understandably, was unable to produce any conveyance in proof of title.” In my humble opinion the main conclusion reached by the trial judge did not justify her resort to equitable principles to grant the plaintiff her reliefs the prayer for declaration of title. In the course of her judgment the learned trial judge dismissed the plaintiff's case in the following manner:

“…would the plaintiff thus be entitled to the relief (a)? I do not possibly think, given the facts of this case, that I could declare title in the plaintiff. This is because title to the disputed land is in the defendant.”

In view of this I do not see the justification for the learned judge in not dismissing the plaintiff's claim for declaration of title to the house in dispute. As I have already shown, equity follows the law.

In my opinion since the dominant claim before the court was the issues of title to land it was the duty of the plaintiff to produce evidence in proof of that claim. In the opinion of the trial court, the plaintiff did not do this. The court however went ahead to apply equitable principles to justify the court sustaining the plaintiff’s claim. I am unable to find any justification for this.

In Duagbor v Akyea-Djamson [1984-86] 1 GLR 697, CA holding (2), the Court of Appeal held:

“[T]he plaintiff having failed to prove that the land was owned by his vendor…and the judge having found that he co-defendant was the owner should not have gone further to find some avenue through which the plaintiff could escape in order to avoid the consequences of his inability to establish his title. What the judge did amounted simply to a substitution by him proprio motu of case substantially different from and inconsistent with the case put forward by the plaintiff and the ultimate acceptance by him of that substituted case which was not the plaintiff's case at all.”

In my opinion this advice was not adhered to by the learned trial judge. The plaintiff did not prove any of the reliefs she claimed in this case and the learned trial judge should have dismissed her case. I am of the opinion that the appeal should be allowed.

FORSTER JA. I also agree that the appeal should be allowed.

Appeal allowed.

S Kwami Tetteh, Legal Practitioner

 
 

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