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