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Property - Concubinage
relationship - Breach of
Promise to marry - Damages -
Recovery of possession of house
- substantial contribution.-
Whether or not the appellant was
a licensee of a sort - Whether
or not concubine with the
consent of the woman’s parents,
can be translated into a valid
customary marriage
HEADNOTES
This case
epitomizes a love relationship
that begun on a very high note
only to become sour shortly
thereafter fizzling out all
hopes of a blissful ever after.
As recounted by the Court of
Appeal it all begun in October
2000 when the parties in this
appeal fell in love. There were
promises apparently by the
respondent to marry the
appellant, for so believed the
appellant, which however did not
materialize. Barely two years
thereafter, the relationship hit
the rocks. The appellant who
felt shortchanged mounted an
action in the High Court seeking
damages for a breach of promise
to marry; damages for
inconveniences and loss of time
wasted on the respondent; and
payment of various sums
specified in the statement of
claim. The respondent did not
only deny the plaintiff’s claims
but set up a counter claim for
recovery of possession of the
house on plot No. 26 West Fijai
Layout Block F, Ntankoful,
Sekondi; return of a pumping
machine, louvre frames, standing
fan, gas cylinders and
photographic camera. The trial
court found no merit in the
appellant’s claims and so
dismissed all of them and rather
granted the respondent’s
counterclaim. On appeal, the
Court of Appeal found for the
appellant that the respondent
had made a promise to marry her
but later reneged on it. The
Court also granted the appellant
the sum of six thousand Ghana
Cedis (GH¢6000) as general
damages to ameliorate her
injured feelings while it
dismissed the rest of the
grounds of appeal.
HELD :-
The
appellant having failed to prove
a marriage relationship as well
as any contribution to the
completion of work in the house,
the whole issue about the
applicability of the principle
becomes otiose. Counsel also
seeks a preposterous alternative
relief to the effect that this
court should make an order that
a valuation be made to determine
the appellant’s share of
contribution to the house and
same paid to her. To this, we
state that it is not the duty of
a court when a party has failed
to prove a claim to turn round
and order that a valuation be
made to determine who made what
contribution the very issue that
they had the burden to undertake
but failed to do.This appeal
lacks any merit and is
accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act,
1975). NRCD 323,
CASES REFERRED TO IN JUDGMENT
Tuakwa v Bosom 2001-2002
SCGLR 61
Mensah v Mensah
(1998-1990) SCGLR 350
Mensah v Mensah (2012) 1
SCGLR 391
Boafo v Boafo (2005-2006)
SCGLR 705
Badu v Boakye (1975) 1 GLR
283 H.C
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary
Modern Law of Real
Property 16th Edition
by E.H.Burn,
Ewe Law of Property,
(1973) by Prof A.K.P. Kludze and
edited by Anthony Allott,
DELIVERING THE LEADING JUDGMENT
AKAMBA,
JSC:-
COUNSEL
JOSEPH
E. K. ABEKAH ESQ. FOR THE
PLAINTIFF/APPELLANT /APPELLANT.
KOJO
KUM ESQ. WITH AKWASI GYIMAH-
BOTA FOR THE
DEFENDANT/RESPONDENT/
RESPONDENT.
AKAMBA, JSC:-
This is
an appeal from the decision of
the Court of Appeal that
reversed the decision of the
trial High Court dismissing the
entire claims of the plaintiff,
(herein after simply the
appellant) and granting the
counterclaim of the defendant
(hereinafter simply the
respondent) in the matter
herein.
This case
epitomizes a love relationship
that begun on a very high note
only to become sour shortly
thereafter fizzling out all
hopes of a blissful ever after.
As recounted by the Court of
Appeal it all begun in October
2000 when the parties in this
appeal fell in love. There were
promises apparently by the
respondent to marry the
appellant, for so believed the
appellant, which however did not
materialize. Barely two years
thereafter, the relationship hit
the rocks. The appellant who
felt shortchanged mounted an
action in the High Court seeking
damages for a breach of promise
to marry; damages for
inconveniences and loss of time
wasted on the respondent; and
payment of various sums
specified in the statement of
claim. The respondent did not
only deny the plaintiff’s claims
but set up a counter claim for
recovery of possession of the
house on plot No. 26 West Fijai
Layout Block F, Ntankoful,
Sekondi; return of a pumping
machine, louvre frames, standing
fan, gas cylinders and
photographic camera. The trial
court found no merit in the
appellant’s claims and so
dismissed all of them and rather
granted the respondent’s
counterclaim.
On
appeal, the Court of Appeal
found for the appellant that the
respondent had made a promise to
marry her but later reneged on
it. The Court also granted the
appellant the sum of six
thousand Ghana Cedis (GH¢6000)
as general damages to ameliorate
her injured feelings while it
dismissed the rest of the
grounds of appeal.
GROUNDS OF APPEAL
Still not
satisfied with the Court of
Appeal decision the appellant
filed two main grounds for the
determination of this court.
These are:
(i)
The Court erred in its
evaluation of the evidence on
record on the contribution of
the Plaintiff/Appellant on the
house and thereby came to a
wrong decision that the
Plaintiff/Appellant made no
substantial contribution.
(ii)
The decision that the
Plaintiff/Appellant was in the
property as a licensee was wrong
in law and not supported by the
evidence on record particularly
when it was a fact that the
parties were in concubinage
relationship upon which the
Appellant joined the Respondent
in the house and did business
together for the improvement of
the house besides the
Appellant’s personal
contribution.
ANALYSIS
I commence my consideration of
the above stated grounds in
reverse order. My simple reason
is that this ground of appeal
that impugns the appellate
court’s finding on the capacity
in which the appellant was or
lived in the premises would
affect any consideration that
would be made concerning
whatever contribution she made
hence it is preferable that the
capacity be given the first
option of treatment. In what
capacity did the appellant make
a ‘contribution’ and what was
the purported contribution? What
justifications did the appellate
court have for concluding that
she was a licensee? To begin
with, the ground of appeal as it
is presently couched admits of
the relationship being one of
concubinage. Yet by this same
ground of appeal it is sought to
attack the 1st
appellate court’s evaluation of
the evidence on record and its
application of the law to the
facts. By the rules of this
court we are placed in the same
position as the courts below to
re-hear the matter on the record
by independently and critically
evaluating the record placed
before us and to draw our own
conclusions. This position has
been succinctly stated by this
court in numerous cases
including Tuakwa v Bosom
2001-2002 SCGLR 61 in
which we stated that, “an appeal
is by way of rehearing,
particularly where the appellant
alleges in his notice of appeal
that the decision of the trial
Court is against the weight of
evidence. In such a case, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that on
a balance of probabilities, the
conclusions of the trial Judge
are reasonably or amply
supported by the evidence”.
I have read the record of appeal
with regard to the evidence led
in support of the contending
positions and no where does the
appellant deny that the house in
issue was in an uncompleted
state before she came into the
relationship with the
respondent. The record also
supports the conclusion that it
was the respondent who invited
the appellant to occupy his
uncompleted house which at that
stage was roofed but lacked any
ceiling, window and door frames.
The floor had also not been
screeded. Also not yet
undertaken, was the electrical
wiring hence there was no
electricity. The respondent
moved the appellant into the
uncompleted house when their
courtship was in its early and
cordial days. There is no
evidence of the appellant
providing any consideration for
her occupancy of the
respondent’s premises.
Significantly the appellant and
the respondent lived in
concubinage throughout the
period in issue because the
promised marriage, as found by 1st
appellate court, did not
materialize. Concubinage
relationship is defined in
Black’s Law Dictionary as
“a relationship of a man and
woman who cohabit without the
benefit of a marriage. The woman
in the relationship, the
concubine, cohabits as a wife
without title. Although a
concubine was expected to serve
all the functions of a
legitimate wife, she has no
authority in the family or
household, and was denied
certain legal protections.”
Were it the case that the
relationship had materialized
into a marriage, different
consideration would arise. In
the light of the evidence on the
record, the Court of Appeal
correctly concluded that the
appellant was a licensee of a
sort since she occupied the
building upon the invitation of
the owner thereof, the
respondent herein. The common
law recognized three categories
of licenses notably, bare or
gratuitous licenses; license
coupled with a grant or interest
and contractual licences. As to
what category of license was
granted the appellant, the facts
on record support the view that
the appellant’s permission was a
bare or gratuitous permission. A
bare or gratuitous licence is a
mere permission for the licensee
to enter upon the licensor’s
land. This permission may be
withdrawn at any time by the
licensor. (See Modern Law of
Real Property 16th
Edition by E.H.Burn, page 640.)
Black’s Law Dictionary
also defines licensee as: “1.
One to whom a license is
granted. 2. One who has
permission to enter or use
another’s premises but only for
one’s own purposes and not for
the occupier’s benefit” The
appellant was a gratuitous
licensee or tenant given the
fact that she was invited to
occupy the uncompleted building
without consideration and in
circumstances that do not
otherwise impose a duty hence
she can have her tenancy
withdrawn at any time by the
licensor. The concept of a
gratuitous tenant has received
considerable treatment by
Ghanaian writers in Land Law and
Property. In his Ewe Law of
Property, (1973) by Prof A.K.P.
Kludze and edited by Anthony
Allott, at page 245 the
learned author highlighted on
the concept thus: “A
gratuitous tenancy may be
determined if the tenant tries
to set up an adverse title to
the land. As its basis is
usually blood relationship or
friendship, it may also be
determined for ingratitude,
disobedience or bad behavior
towards the grantor or for
committing waste. The right and
grounds for determining a
gratuitous tenancy extend to the
successors of the grantor and
grantee. Hence a gratuitous
tenancy granted several
generations ago may be
determined today if a bad
relationship develops between
those who have succeeded the
original parties.”
The overwhelming evidence from
the record of appeal supports
the conclusion that the
appellant and the respondent
lived in a concubinage
relationship. In the light of
the above conclusion we hereby
affirm the Court of Appeal’s
finding on this issue.
The next question is did the
appellant contribute to the
development of the respondent’s
house. If she did, does it make
the appellant a part owner of
the premises or is she entitled
to claim her contribution?
The
record of appeal amply
demonstrates that the parties
operated a joint wood supply
business when their amorous
relationship was cordial.
Payment for their supplies were
made by cheque in the name of
the appellant and eventually
paid into the respondent’s
personal bank account. The Court
of Appeal inferred from these
activities, correctly in my
view, that the monies so
deposited were jointly owned by
the parties. According to the
appellant, she contributed to
the construction of the property
in issue from profits made from
their joint business
transactions. It is trite to
state that since the appellant
was claiming that monies for the
continuation of works on the
respondent’s building were
withdrawals from the joint
monies in the respondent’s
account, she had the burden of
producing sufficient evidence on
the claim to avoid a ruling
against her on the issue. (See s
11 (1) and (4) of NRCD 323, the
Evidence Act, 1975).
The
unchallenged evidence on record
is that almost all ATM
withdrawals from the account in
question were made by the
appellant. There is however no
corresponding evidence that the
joint proceeds were utilized for
the continuation or completion
of the respondent’s building
works particularly in the light
of the respondent’s denials. The
few receipts that were tendered
by the appellant such as
Exhibits K, O, Q, R, and S
were cheque payments made into
the respondent’s account. The
exhibit T series are all
bank statements of the
respondent’s accounts. The only
receipt evidencing any purchase
is exhibit L but it bears
the name of the respondent and
not the appellant. The appellant
also tendered exhibit A
which is a Ledger account of her
transactions with Metrostar
Woodprocessing Company. Also
tendered was Exhibit G
evidencing a quantity of Ceiba
Plywood supplied to the
appellant. Unfortunately however
exhibit G is only a
way-bill which does not indicate
or bear the cost of the
materials. It also does not
state the ultimate destination
of the material. The appellant
failed to link any of the
exhibits to any undertaking on
the respondent’s building.
Against these lapses in the
evidence tendered by the
appellant and her own admission
to the effect that the room she
occupied had no louvers, it is
difficult to come to any other
conclusion than that arrived by
the Court of Appeal that the
appellant failed to show that
she had made any contribution to
the improvement in the
respondent’s building. This is
the more compelling given the
fact that all the works she
claimed to have undertaken in
contribution to the building,
such as plastering of the outer
building and the floors, ceiling
works, electrical wiring and
provision of electricity,
provision of water into the
premises are all work items
capable of proof either by
receipts of specific purchases
or by corroborative testimony of
artisans who carried out the
works and what charges or
payments were made. Of course if
the appellant, as a bare or
gratuitous licensee was able to
prove that she made
contributions to the
construction or works in the
respondent’s building, she would
be entitled to her equitable
remedy for a reimbursement. But
she failed woefully in the
discharge of the burden on her.
The
invitation by appellant counsel
to bring this case under the
spectrum of Mensah v Mensah
(1998-1990) SCGLR 350 and
Boafo v Boafo (2005-2006) SCGLR
705 is to say the least most
ambitious. I will add to
counsel’s list of the above
cases the most recent case of
Mensah v Mensah (2012) 1 SCGLR
391 on the same subject
matter and to state that the
principle of equality is
equity that runs through
those lines of cases applies in
an environment of spousal
relationship which creates a
status that goes with certain
rights and duties which are
fixed by law and custom, but the
same cannot be said of
concubinage relationship. That a
concubinage relationship does
not constitute or equate a valid
customary marriage was rightly
distinguished by Osei-Hwere J
(as he then was) in the case of
Badu v Boakye (1975) 1 GLR
283 H.C wherein he said:
“Where
a man lives with a woman not as
a real wife but only as a
concubine with the consent of
the woman’s parents, that
association cannot be translated
into a valid customary marriage
because the man and the woman
are reputed to live as man and
wife. Even though the defendant
freely described the plaintiff
as his wife and also described
their association as ‘marriage’,
this was no more than another
euphemism for ‘concubine’ and
’concubinage’ respectively.”
The
appellant having failed to prove
a marriage relationship as well
as any contribution to the
completion of work in the house,
the whole issue about the
applicability of the principle
becomes otiose. Counsel also
seeks a preposterous alternative
relief to the effect that this
court should make an order that
a valuation be made to determine
the appellant’s share of
contribution to the house and
same paid to her. To this, we
state that it is not the duty of
a court when a party has failed
to prove a claim to turn round
and order that a valuation be
made to determine who made what
contribution the very issue that
they had the burden to undertake
but failed to do.
This
appeal lacks any merit and is
accordingly dismissed.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD) S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
JOSEPH
E. K. ABEKAH ESQ. FOR THE
PLAINTIFF/APPELLANT /APPELLANT.
KOJO
KUM ESQ. WITH AKWASI GYIMAH-
BOTA FOR THE
DEFENDANT/RESPONDENT/
RESPONDENT.
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