Practice and procedure - Appeal - Findings of fact - Appellate court not to disturb trial court findings unless perverse or unsupportable.

The plaintiff who had been married to the 1st defendant for forty years claimed that she had contributed to the acquisition of the property in dispute and had become either the sole or joint-owner with the 1st defendant and their ten children. She instituted an action in the High Court for a declaration of title to the property and an order compelling the 1st defendant to execute a deed of assignment in her favour, alternatively a declaration that the purported sale of the house by the 1st defendant to the 2nd defendant was null, void and of no effect. The 1st defendant claimed sole ownership of the property and the right to sell same without recourse to the plaintiff while the 2nd defendant claimed to have purchased it for value without notice of any encumbrance. The trial judge dismissed the plaintiff’s claims and gave judgment for the 2nd defendant on his counterclaim for a declaration of title to the property. He granted also the claim for perpetual injunction to restrain the plaintiff, her servants and agents from interfering with the property, account of all rents collected by the plaintiff from tenants and damages for trespass. He found as a fact that the 1st defendant alone negotiated for, bought and completed the house without assistance from the plaintiff or the children, let it out and appointed the plaintiff to collect the rents and account to him. He also mortgaged the house for a loan and settled the utility bills. On her appeal to the Court of Appeal, the plaintiff argued that the judgment was against the weight of evidence.

Held - The generally accepted principle of law was that findings of fact made by a trial court ought not be disturbed unless they were perverse or unsupported by the evidence on record. The trial judge accepted the evidence of the defendant and disbelieved the plaintiff and her witnesses. Since the judge found that the property was acquired solely by the 1st defendant from his own resources without any intention to make it a jointly-owned property with his wife and children, no presumption of trust arose. He was therefore right in rejecting the alleged trust. The appeal would therefore be dismissed. Bruce v Attorney-General [1967] GLR 170, Payin II v Anquandah (1947) 12 WACA 284, Cudjoe v Kwatchey (1935) 2 WACA 371, Bisi v Tabiri [1987-88] 1 GLR 360, Hawkins v Powell Tillery Steam Coal Co Ltd (1911) 1 KB 988 referred to.

Cases referred to:

Bisi v Tabiri [1987-88] 1 GLR 360, SC.

Bruce v Attorney-General [1967] GLR 170.

Clarke v Edingburgh and District Tramways Co (1919) SC (HL) 35, 56 Sc LR 303.

Cudjoe v Kwatchey (1935) 2 WACA 371.

Hawkins v Powell Tillery Steam Coal Co Ltd [1911] I KB 988; 80 LJKB 769; 104 LT 365 sub nom Powells Tillery Steam Coal Co Ltd v Hawkins 27 TLR 282, CA.

Hontestroom, SS v SS Sagaporack [1927] AC 37, [1927] All ER Rep Ext 831, 95 LJP 153, 136 LT 33, 42 TLR 741, 17 Asp MLC 123, 25 Ll L Rep 377, HL.

Payin II v Anquandah (1947) 12 WACA 284.

Powell v Streatham Manor Nursing Home [1935] AC 243, [1935] All ER Rep 35, 104 LJKB 304, 152 LT 563, 51 TLR 289, 79 Sol Jo 179, HL, 51 Digest (Repl) 816.

APPEAL from the judgment of the High Court.

Dr Seth Twum for the appellant.

I R Quansah for the respondents.

AMPIAH JSC. This is an appeal by the plaintiff from the decision of the High Court, Tamale dated 22 May 1989. In her amended writ of summons, the plaintiff claimed against the defendant for: (1) declaration that House No 1.86, Tamale is the property of the plaintiff; (2) an order of specific performance against 1st defendant to execute a deed of assignment of House No 1.86 to the plaintiff; (3) alternatively an order that House No 1.86 is family property for the benefit of the exclusive family consisting of plaintiff, her children and 1st defendant and that the same cannot be sold by the 1st defendant without the consent of the plaintiff and her children; (4) an order that the sale or purported sale of House No 1.86 by the 1st defendant to 2nd defendant is null and void and of no effect; (5) alternatively a declaration that House No 1.86 is affected by trusts under which the plaintiff and, or, her children are beneficiaries and that the sale by the 1st defendant to the 2nd defendant is null and void.

The defendants denied the plaintiff’s claim; the 2nd defendant counterclaimed for: (a) a declaration of title to plot No 1.86 Tamale together with the house thereon; (b) perpetual injunction restraining the plaintiff, her servants, and, or agents from interfering with the 2nd defendant’s possession and enjoyment of the said property; (c) an order that the plaintiff shall account to the 2nd defendant in respect of all rents collected by her from tenants in House No 1. 86, Tamale and (d) damages for trespass.

The plaintiff who had been married to the 1st defendant for forty years at the time of the action and had ten children (seven of whom were living at the time of the action) by that marriage, claimed that she had contributed to the acquisition of House No 1.86 Tamale, the subject-matter of the action, and that by that contribution she had become either the owner or joint-owner of the property with the 1st defendant and her children by him. She contended that the 1st defendant was a mere trustee of the property and that he could not dispose of the property without her prior consent. She gave evidence of how she had made her contribution to the acquisition and called witnesses to support her claim. The 1st defendant resisted the claim and also called evidence as to how he had through his own resources acquired not only this house but other houses also. He contended that as the sole owner of the property he had the right to sell the property to the 2nd defendant without any reference to the plaintiff. He also called witnesses in support of his claim. The 2nd defendant’s case was that he had purchased this property for value without notice of any encumbrances if indeed there were any.

In my view, the main issues which arose out of the pleadings and evidence for determination were:

1. Did the plaintiff own the house alone or did she contribute to the acquisition of the property?

2 Was a trust created by reason of such contribution, if any?

3. Was the house acquired by the 1st defendant solely from his own resources?

4. Who then is the owner of this property?

5. Was the 2nd defendant a bona fide purchaser for value without notice of any incumbrances if there was any?

The trial judge, after an exhaustive and critical evaluation of the evidence, dismissed the plaintiff’s claims and gave judgment for the 2nd defendant on his counterclaim. The plaintiff has appealed against this judgment on many grounds. The thrust of counsel’s argument however was that the judgment was against the weight of evidence.

It could be seen from the nature of the pleadings and the evidence led in support that the decision of the court on the matter rested wholly or substantially on the facts. The plaintiff called not less than ten witnesses, including herself, to establish facts on her contribution to the acquisition of the property. The 1st defendant on the other hand called not less than six witnesses, including himself to establish his pecuniosity and capability in acquiring the property without any help, financial or otherwise, from the plaintiff or any of his children. The only question of law involved in the action was whether a trust had been created, if there was contribution from the plaintiff, and whether the 2nd defendant could be said to be a purchaser for value without notice so as to acquire title to the property. This issue of law the trial judge, from his findings and conclusions, found it unnecessary to determine. In coming to his decision, the trial judge made the following relevant findings of fact among others: (1) that the 1st defendant alone negotiated to buy the house without any prior discussions or communication with the plaintiff; (2) that there had never been any intention to own the house jointly with the plaintiff and their children; (3) that the 1st defendant paid for the uncompleted house from his own resources and completed the house on his own without any assistance from the plaintiff or any of their children; (4) that the 1st defendant put tenants in the house and collected rent and rent advances from the tenants for his own use without accounting to any body; he issued them with rent cards; (5) that the 1st defendant put in the plaintiff as a caretaker who collected rents from the tenants and accounted to the 1st defendant; (6) that all service bills bore the 1st defendant’s name and were settled by the tenants themselves outside their rents; (7) that the 1st defendant mortgaged this house for a loan and used the house as collateral and (8) that no moneys were sent by the plaintiff to the 1st defendant as contribution towards the acquisition of this house.

On the plaintiff’s own showing she could not claim to be the sole owner of this house.

Her claim was only relevant to her alleged contribution to the acquisition of the property which if accepted, could have made her, at most, a joint-owner. The trial judge on the preponderance of the probabilities, accepted the evidence of the defendant and disbelieved the plaintiff and her witnesses.

The generally accepted principle of law is that findings of fact made by a trial court should not be disturbed unless they are perverse or not supported by the evidence on record. In Bruce v Attorney-General [1967] GLR 170, it was held inter alia that an appellate court should not disturb findings of fact made by a trial judge but it was equally true that an appellate court was not precluded from doing so. Reading the judgment in that case, Adumua-Bossman J (as he then was), sitting as an Additional Judge of the Court of Appeal approached the issue, relying on Verity CJ’s observation in the case of Payin II v Anquandah (1947) 12 WACA 284 at 287 - 288, thus:

“... we would bear in mind the well established principles regarding the functions of an appellate Court in relation to the findings of fact by a trial Judge sitting without a jury, principles which were examined and affirmed by the House of Lords in Powell v Streatham Manor Nursing Home [1935] AC 243. In that case the Lord Chancellor ... approved the dictum of Lord Shaw when he said in Clarke v Edingburgh and District Tramways Co (1919) SC (HL) 35:

‘When a Judge hears and sees the witnesses and makes a conclusion or inference with regard to what is the weight or balance of their evidence, that judgment is entitled to great respect and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.’

Lord Wright ... proceeded to quote the opinion of Lord Sumner in Hontestroom (Owners) v. Sagaporack (Owners) (1927) A.C. 37. In that case His Lordship said:—

‘Of course there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses ... It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and judicial obligation. None the less, not to have seen the witnesses puts the appellate court in a permanent position of disadvantage as against the trial Judge, and, unless it can be shown that he failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.’

While we are bound to observe these principles we must not overlook the judicial obligation referred to by Lord Sumner and referred to by this court in Cudjoe & Others v. Kwatchey & Others 2 WACA 371 at p. 374 where it was said:—

‘The Appeal Court is not debarred, however, from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence not disregarding the judgment appealed from but carefully weighing it and considering it and not shrinking from over-ruling it if on full consideration it comes to the conclusion that the judgment is wrong’...”

In the recent case of Bisi v Tabiri alias Asare [1987-88] 1 GLR 360, 368 the Supreme Court had occasion to refer to the principle; it held among other things that:

“I cannot believe that it was ever intended that the Court of Appeal (or any appellate court for that matter) should move into a new era of regular questioning of decisions of trial judges on issues of fact, as distinct from law, which were supportable. For this reason there could be no grounds for cavilling at the judge’s exercise of discretion or duty in the selection of witnesses to believe or in stating his findings of fact.”

His Lordship Mr Justice Taylor however expressed a contrary view. In his view, at p 386:

“In a case where the evidence of a plaintiff is so romancing and conflicting, I do not think ... that the suggested “judge of fact” formula so obviously founded on sheer surmise is objectionable on logical ground as not being conducive to justice unless the judge can give convincing reasons why he preferred one piece of evidence against the other.”

Even though Justice Taylor’s view was an approval of the dictum of Buckley LJ in Hawkins v Powell Tillery Steam Coal Co Ltd [1911] 1 KB 988 at 996, the observation of the majority in Bisi’s case (supra) is still the accepted principle of law.

As stated before in this judgment, the whole of the evidence adduced was based on facts pleaded. I have read the whole of the proceedings. After carefully weighing the evidence and considering it, I am satisfied that all the findings made by the trial judge were supportable. The trial judge cannot be faulted for the painstaking manner in which he evaluated the evidence on record. In the circumstances, I am unable to disturb findings of fact. Since the judge found that the property was acquired solely by the 1st defendant from his own resources without any intention to make it a jointly-owned property with his wife and children, no presumption of trust arose. He was therefore right in not accepting the alleged trust put up by the plaintiff. Also, it could not be said that the 2nd defendant had any notice - actual or constructive - of any interest of the plaintiff and, or her children in the property. His purchase of the property could not have been affected by any interest. In the particular circumstances of the case however, since the 1st defendant was found to be the sole owner of the property, it was not necessary for the trial judge to find whether or not the 2nd defendant was a purchaser for value without notice: The 2nd defendant therefore acquired full title in the property.

For the above reasons, I would dismiss the appeal and affirm the decision of the court below.

ESSIEM JA. I agree.

ADJABENG JA. I agree.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner.