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GHANA BAR REPORT 1993 -94 VOL 1

Ogbarmey-Tetteh v Ogbarmey-Tetteh

SUPREME COURT

ARCHER CJ, WUAKU, AMUA-SEKYI, AIKINS, WIREDU, BAMFORD-ADDO, HAYFRON-BENJAMIN JJSC

12 JANUARY 1993

Practice and procedure - Appeal - Leave - Appeal to Court of Appeal allowed in part - Leave not required to appeal to Supreme Court - Courts (Amendment) Law 1987 (PNDCL 191) s 1.

Practice and procedure - Appeal - Cross appeal - Respondent filing cross appeal outside time limited for appeals - Whether cross appeal competent.

Practice and procedure - Appeal - Findings of fact - Proceedings in abortive trial adopted and hearing continued before another judge - Judge not having observed demeanour of witness in abortive trial - Appellate court may interfere with findings of fact made by trial court.

Husband and wife - Property - Ownership - Wife selling her land to a buyer - Buyer expressing intention to rescind to husband in absence of wife - Husband refunding purchase price to buyer - Whether husband acquires beneficial ownership of land.

The plaintiff sued the defendant in the High Court, Accra for reliefs including a declaration that he was the owner of the contiguous lands designated in the proceedings as Plot A and Plot B respectively, recovery of possession of those lands together with the two-storey dwelling house and out-house constructed thereon and collectively referred to as House No A299A/4, Accra. The defendant denied the claim and counterclaimed for a declaration that the plaintiff held Plot B in a resulting trust for her. Trial began before Lamptey J in February 1979. After hearing the evidence of some witnesses, he went on on transfer and the case was transferred to Okai J who heard it afresh from November 1985. He also left the service and the case went before Lutterodt J in June 1986. Counsel for the parties agreed to adopt the proceedings before Okai J.

The facts on record were that the plaintiff, a student at Accra Academy, met defendant, a successful trader, in 1946. The defendant provided financial support for his education. He promised that he would marry her and in 1951 he fulfilled his promise and married her under the Marriage Ordinance. The plaintiff claimed that while they were in Tamale the defendant’s mother negotiated for Plot A from the Mills sisters for which he paid in instalments. He produced no receipts but tendered the deed of assignment as exhibit A. In respect of Plot B, he conceded that it originally belonged to the defendant but that she sold it to one Mrs Vanderpuye who eventually lost interest in it and demanded a refund of the purchase price. The plaintiff claimed that he refunded the purchase price to Mrs Vanderpuye’s mother and later informed defendant who congratulated him for doing so. He then constructed the building on the land from his resources.

The defendant testified that she bought Plot A from the Mills sisters in 1949 and completed the instalment payment of the purchase price in 1957 when she requested that the deed of assignment and the building plans be put into the name of plaintiff. She claimed that she financed the construction on the land from her resources. She called witnesses including her vendor, Helena Ashia Mills, who confirmed the sale to her and the assignment in the name of the plaintiff. There was evidence, not seriously challenged, that she had previously acquired two houses at Kaneshie from the State Housing Corporation where she once worked; one was acquired in the name of the plaintiff. She also bought a car in the name of the plaintiff for their joint use. Regarding Plot B the defendant claimed that she refunded the purchase price.

On 12 April 1990 Lutterodt J gave judgment in favour of the plaintiff. She rejected the defendant’s case on the ground that her pleadings differed materially from her testimony. She disbelieved the testimony of her grantor also on the ground that she was related to the defendant. On appeal the Court of Appeal held, on 18 July 1991, that having regard to the relationship of the parties the plaintiff must have made the refund to Mrs Vanderpuye on the defendant’s behalf as she was then abroad. The court expressed the view that if Mrs Vanderpuye indeed intended to sell Plot B to the plaintiff she would have executed a deed in his favour. Accordingly the court concluded that the plaintiff held Plot B in trust for the defendant, thus allowing in part the defendant’s appeal in respect of Plot B. On 17 October 1991 the plaintiff appealed to the Supreme Court against the decision in respect of Plot B and on 24 October 1991 the defendant filed her cross appeal against the decision of the Court of Appeal in respect of Plot A. At the hearing of the appeal the plaintiff submitted that the defendant’s cross appeal ought to be dismissed as incompetent because having lost twice, she could not cross appeal except with leave of the Court of Appeal or the Supreme Court obtained under PNDC Law 191; secondly, that her cross appeal was out of time. Counsel for the defendant replied that PNDC Law 191 was not applicable because the defendant did not lose twice, but that the judgment of the trial court was partially reversed in her favour by the Court of Appeal. Her counsel further submitted that, in any event, the Supreme Court had the discretion under CI 13 to vary a decision of the Court of Appeal suo motu where appropriate. On the merits of the case the plaintiff’s counsel contended that the decision of the Court of Appeal that the plaintiff held Plot B in trust for the defendant was unsupported by the evidence. The defendant on the other hand contended that the plaintiff failed to discharge the burden of proof and that the Court of Appeal erred in relying upon the weakness of the defendant’s case rather than the strength of the plaintiff’s case in arriving at their decision.

Held - (1) It would appear from the language of the Courts Act 1971 (Act 372) s 3(2), as amended by s 1 of the Courts (Amendment) Law 1987 (PNDCL 191) that it was only where a decision of the Court of Appeal confirmed the decision of the lower court as a whole that leave of the Court of Appeal was required to appeal to the Supreme Court. The provision did not concern situations where the Court of Appeal had allowed the appeal in part. Therefore where a party was partially successful on appeal to the Court of Appeal such party could appeal as of right to the Supreme Court. Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC cited.

 (2) Wuaku JSC dissenting: There could be no cross appeal unless an appeal had been lodged. Therefore, when the plaintiff chose to lodge his appeal almost three months after the decision of the Court of Appeal, he left the defendant with no choice but to file her cross appeal after the expiration of the time for appeal. A cross appeal owed its existence to an appeal and was deemed to have been filed on the same date as the appeal. A cross appeal would be regarded as having, so to speak, been filed out of time only if the appeal itself was filed out of time. The defendant’s cross appeal was not out of time. Crabbe III v Quaye, Court of Appeal, 31 July 1970, unreported mentioned.

Per Aikins JSC. CI 13 was silent on the practice and procedure that should apply on the filing of cross appeals and until the court prescribed the procedure it was at liberty to seek guidance from any common law or commonwealth system of jurisprudence.

Per Amua-Sekyi and Bamford-Addo JJSC. If an appeal was lodged within time, a cross appeal against the same judgment was deemed to have been lodged within time no matter how many days, months or even years after the filing of the notice of appeal.

Per Amua-Sekyi and Wiredu JJSC. No time limit within which to file a cross appeal was provided for in the rules. The test therefore was whether the cross appeal had been filed within a reasonable time after the notice of appeal was served. All that the law required was that the an appellant should have reasonable notice of a cross appeal.

Per Wuaku JSC. Under rule 9 of CI 13 a cross appeal was in the same category as an appeal and must be filed within the time limited for filing a notice of appeal. It was not by virtue of the appeal by the plaintiff that the defendant became a cross appellant, but because both parties had appealed and were therefore cross appellants. Provided the two appeals were properly before the court, it would not matter who filed his or her appeal first. There was a time limit whether the respondent intended to file notice of cross appeal or notice for variation of the judgment and since the court never granted the defendant leave to appeal out of time, her notice of cross appeal was void and she has no appeal pending for determination.

(3) Archer CJ, Wuaku and Aikins JJSC dissenting: A finding of fact by a trial court would not be disturbed on appeal except in certain circumstances. In this case the trial court did not see the defendant’s witness and the appellate court was in the same position as the trial court to assess the credibility of the witness in order to determine if the trial judge’s findings were erroneous. On the balance of probability, the defendant’s case was overwhelming and credible on Plot A and ought to have been preferred to that of the plaintiff. The plot was paid for by the defendant and the plaintiff held the plot and the dwelling house thereon in trust for the defendant. Dyer v Dyer (1788) 2 Cox Eq 92, Nkansah v Adjebeng [1961] GLR 465, Nkrumah v Ataa [1972] 2 GLR 13, Mansah v Asamoah [1975] 1 GLR 225, Harrison v Gray Jnr [1979] GLR 330, Green v Carlill (1877) 4 Ch D 882, Mercier v Mercier (1903) 2 Ch 98, Quartey v Armar [1971] 2 GLR 231, Ussher v Darko [1977] 1 GLR 476 referred to.

(4) Archer CJ, Wuaku and Aikins JJSC dissenting: With regard to Plot B the decision of the Court of Appeal was supportable on the facts. The surrounding circumstances showed an obvious intention on the part of Mrs Vanderpuye to restore the status quo. It was obvious that a sale was not contemplated. The plaintiff paid no consideration for the interest claimed; he did nothing beyond refunding the purchase money; he produced no receipt to evidence a new sale transaction between himself and Mrs Vanderpuye. He neither justified his claim to property under customary law, which required wide publicity in the form of witnesses, nor the Conveyancing Decree, which required a deed of conveyance. He called no witness to support his claims and failed to make out his case. The High Court therefore erred in decreeing title in his favour.

Per Bamford-Addo JSC. It was wrong for the Court of Appeal to add to their finding, that the plaintiff held Plot B in trust for the defendant. On the evidence, title to “plot B” never shifted to plaintiff and since defendant at all times remained the beneficial owner of it, plaintiff cannot be said to have held “plot B” in trust for defendant. A question of trust did not arise, the refund was rather an advancement of husband to wife.

Per Aikins JSC. In her pleading the defendant claimed that she refunded the purchase money to Mrs Vanderpuye through Mrs Torto and not to the plaintiff. If so, the Court of Appeal ought not have held that the plaintiff made the refund on behalf of the defendant and held Plot B in trust for her. It was not the case of the defendant that the plaintiff refunded the money on her behalf to constitute him a constructive or resulting trustee. Once the Court of Appeal found that the money was paid by the plaintiff and not the defendant, that should have ended the matter, and the court was not entitled to invoke the doctrine of resulting trust.

Per Hayfron-Benjamin JSC. I do not think that if the plaintiff’s assertion were true it would take an extra act of bravery for a husband to tell his wife that he had bought the plot. Instead, he says he meekly told the respondent, his wife, that he had refunded the money. The plain truth of the matter is that the mother of Mrs Vanderpuye had no instructions to sell the property. In common customary practice, when the purchaser does not any longer need the goods or property he returns the goods or property to the vendor and collects his money back - a refund.

Cases referred to:

Asare v Appau II [1984-86] 1 GLR 599, CA.

Asibey III v Ayisi [1973] 1 GLR 102, CA.

Atadi v Ladzekpo [1981] GLR 218, CA.

Banga v Djanie [1989-90] 1 GLR 510, CA.

Briscoe (RT)(Ghana) Ltd v Preko [1964] GLR 322, CA.

Cavender’s Trust, Re, (1881) 16 Ch D 270, 50 LJ Ch 292, 29 WR 405, CA, 51 Digest (Repl) 812.

Crabbe III v Quaye, CA, 31 July 1970, unreported.

Dam v Addo (J K) & Brothers [1962] 2 GLR 200, SC.

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

Dyer v Dyer (1788) 2 Cox Eq 92, 2 W&TLC 749, 30 ER 42.

Esso Petroleum Co Ltd v South Port Corporation [1956] AC 218, [1956] 2 WLR 81, [1955] 3 All ER 864, 120 JP 54, 100 SJ 32, 54 LGR 91, HL.

Green v Carlill (1877) 4 Ch D 882, 46 LJ Ch 477, 27 (1) Digest (Reissue) 198.

Harrison v Gray, Jnr [1979] GLR 330.

Kodilinye v Odu (1935) 2 WACA 336.

Majolagbe v Larbi [1959] GLR 190.

Mansah v Asamoah [1975] 1 GLR 225, CA.

Mercier v Mercier (1903) 2 Ch 98, [1900-3] All ER Rep 375, 72 LJ Ch 511, 88 LT 516, 51 WR 611, 47 Sol Jo 492, CA, 27 (1) Digest (Reissue) 197.

Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC.

National Society for Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280, 69 LJ Ch 457, 82 LT 443, 48 WR 449, 16 TLR 348, 44 Sol Jo 427, CA, 12 Digest (Reissue) 35.

Nkaeguo v Konadu [1974] 2 GLR 150.

Nkansah v Adjebeng [1961] GLR 465.

Nkrumah v Ataa [1972] 2 GLR 13.

Nkyi XI v Kumah [1959] GLR 281, CA.

Nyame v Tarzan Transport [1973] 1 GLR 8, CA.

Oloto (Chief) v Williams [1944] 10 WACA 23.

Quartey v Armar [1971] 2 GLR 231.

Smith v Baker & Sons (1873) LR 8 CP 350, 42 LJCP 155, 28 LT 637, 37 JP567, 1 Digest (Repl) 471.

Ussher v Darko [1977] 1 GLR 476, CA.

APPEAL from the judgment of the Court of Appeal.

George Thompson for plaintiff-appellant

Amarkai Amarteifio for defendant-respondent.

ARCHER CJ. I have had the opportunity of reading beforehand the learned judgments of my brothers Wuaku JSC and Aikins JSC and I agree with them that the judgment of the trial judge in the High Court is fair and reasonable and that it should not be disturbed.

I would therefore allow the appeal of the plaintiff and dismiss the appeal of the defendant.

WUAKU JSC. This is a cross appeal by the parties to parts of the judgment of the Court of Appeal delivered on 19/7/1991. The plaintiff-appellant will be referred to in this judgment as the plaintiff and the defendant-appellant also simply as the defendant.

The parties got married under the Marriage Ordinance on 22/9/51. The marriage seemed to have come to an end in 1970. The plaintiff claims against the defendant two main reliefs and what I may describe as four ancillary reliefs. The first main relief the plaintiff claims is for a declaration that he is the absolute owner of a piece or plot of land he described as Plot A and he sought the same relief, as the main relief, in respect of the second plot which he described as Plot B. On these two plots of land were built what is described by the plaintiff as two-storey messuage or dwelling house and out-houses and collectively referred to as House No A 299A/4. There is no dispute about the description of the two plots of land and the buildings thereon.

The defendant denied the plaintiff’s claim and counterclaimed as follows:

 “(i) a declaration that all that property known as H/No A299A/4 Lartebiokorshie, Accra comprising a two-storey house, a one-storey out-house and a caretaker’s hut and the site of the whole is held by the plaintiff upon a resulting trust for the defendant as the absolute and conclusive owner thereof.

 (ii) A perpetual injunction restraining the plaintiff, his servants and agents from interfering in any way whatsoever with the defendant’s exclusive beneficial ownership and possession of the said property.”

The trial was started before Okai J before whom the plaintiff closed his case. Because Okai J had left the Service, it was agreed that the hearing be continued before Lutterodt J. Lutterodt J carefully examined the evidence before Okai J and herself, and gave judgment for the plaintiff and dismissed the defendant’s counter-claim.

The defendant appealed to the Court of Appeal and the appeal was allowed in respect of the plaintiff’s second main relief which is in respect of Plot B, the Court of Appeal thereby confirming Lutterodt J’s judgment in respect of the plaintiff’s main claim to Plot A. As said earlier, the judgment of the Court of Appeal is dated 18/7/1991. The plaintiff on 17/10/1991 filed a notice of appeal against the Court of Appeal judgment in respect of Plot B. The defendant too, on 24/10/1991, filed a notice of cross appeal against the portion of the Court of Appeal’s judgment which confirmed the plaintiff’s ownership in respect of Plot A.

I have decided in my judgment to examine the appeal from two angles, first on the point of law whether the defendant’s appeal is properly before the court.

When the appeal was called on 17/11/92, I drew the defendant’s counsel’s attention to the fact that the defendant’s notice of cross appeal was filed out of time. I had no response from him. I am of the view that in so far as the defendant is concerned, she has no appeal before us. Although I am alone in this regard, I think that I am entitled to express my opinion on the issue. Rule 9 of the Supreme Court Rules 1970, CI 13 provides:

 “9(1) A respondent may give notice by way of cross appeal

 (2) The provisions of rule 6 of these Rules shall mutatis mutandis, apply to a notice of a cross appeal.”

Both Osborn and Earl Jowitt in their legal dictionaries define cross appeals as “where both parties to a case appeal”. Therefore in this appeal, it is not by virtue of the appeal by the plaintiff that the defendant is the cross appellant, but because both parties have, on the face of it, appealed and are therefore cross appellants. If the two appeals are properly before the court, it would not matter who filed his or her appeal first.

Before I go any further, I will like to refer to Court of Appeal Rules 1962 (LI 218) rule 16. It provides:

“16(1) It shall not be necessary for the respondent to give notice by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period shall file with the Registrar of the Court below four copies of such notice, one of which shall be included in the record and the other three copies provided for the use of the Judges.

(2) Omission to give such notice shall not diminish any powers of the Court, but may in the discretion of the court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.”

In my opinion rule 16(2) supra is referring to notice by respondent and not notice of cross appeal.

A careful examination of the rule shows quite clearly that rule 16 envisages two situations, (a) where a would-be respondent wants to cross appeal and (b) where he does not want to cross appeal. The rule states that if he does not want to appeal but wants the judgment simply to be varied, then he shall, within one month after service upon him of the notice of appeal, cause written notice of such intention etc. The rule does not say that he shall, within one month notice after service upon him of the notice of appeal, file notice of cross appeal or cause written notice of such intention etc to be filed.

Rule 9 of CI 13 provides that rule 6 of these Rules shall, mutatis mutandis, apply to a notice of cross appeal. Rule 6 has eight sub-rules. But rules 2 and 7 have paragraphs. Rule 6 deals with notice of grounds of appeal. Rule 6(1) provides:

 “Any appeal to the court in a civil cause or matter shall be brought by notice of appeal in the Form 1 set out in the First Schedule to these Rules and shall be filed with the Registrar of the Court below.”

In my opinion rule 6(1) means that a cross appeal is in the same category as any other appeal to this court. And there is a time limit within which an appeal shall be filed with the registrar of the court below. The time within which an appeal shall be filed with the registrar of the court below is provided under the provisions of rule 8 of CI 13.

I need not reproduce the provisions of rule 8, however rule 8(3) provides:

“8(3) A civil appeal shall be deemed to have been lodged when the notice of appeal has been filed.”

 And I will add: “within the time limits”.

I have not got any local authority to support my point of view. However one may have a look at the English Annual Practice (1962) vol 1 p 1670. What is described as the Respondent’s Notice comes under Order 58 rule 6 which has five sub-rules. Rule 6(1) provides:

“A respondent who, not having appealed from the decision of the court below, desires to contend in the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court of Appeal to make, or to make in that event, as the case may be.”

Again I wish to refer to the notes on sub-rule 1 quoted above. It states:

“Respondent’s notice - This subrule is new in so far as it requires that, like the notice of appeal, a respondent’s notice of intention to ask that the decision of the Court below should be varied shall specify the grounds of that contention and the form of the order for which he proposes to ask.”

That is akin to Form 1 set out in the First Schedule to the Rules in CI 13. The note continues:

“There are two kinds of notice that may be given by a respondent - one, a substantive, cross notice of appeal; the other, a notice under this rule, asking that the decision of the Court below should be varied (sub r. (i)) or that it should be affirmed on grounds other than those relied upon by that Court (sub r. (2)).”

The note goes on to explain where a notice of cross appeal should be given and notice under the subrule that the decision of the court be varied. The case of National Society for Distribution of Electricity v Gibbs (1900) 2 Ch 281 was referred to. That case decided that under the rules of Supreme Court, 1883 Order LVIII rule 6, a cross notice is different from cross appeal, and that in that case the defendant’s cross notice was wrong and it should have been a cross appeal. The court said that because of the mode in which the two cases were linked and in the circumstances of the case and because counsel in the court below had more or less acquiesced in the wrong view taken by the trial judge, the court would treat the cross notice as a cross appeal. The court also took into consideration an agreement entered into by the parties which formed part of the pleadings and ordered that the action and the counterclaim be remitted for trial. And if I may be pardoned to refer again to the notes in the Annual Practice to Order 58 rule 6 at p 1671 it is stated:

“But the only material difference, under the present rule, between a cross notice of appeal and a respondent’s notice appears to be in the time within which they are to be served; in the former case [cross notice of appeal] the time specified in rule 4(1) [which is the time for appealing] in the latter case in rule 6(4) [that is after the service of the notice of appeal on the respondent].”

The combined effect of Order 58 rules 4 and 6 of the Annual Practice is similar to our rules 6, 8 and 9. In my view the defendant never sought leave for extension of time to appeal and since this court never granted her leave to appeal out of time, her notice of cross appeal is void and she has no appeal pending before us to be considered. In my view there is a time limit whether the respondent intends to file notice of cross appeal or notice by respondent of a contention that the judgment should be varied, whether a claim for counterclaim is involved or not. Again this is what the Annual Practice p 1670 says:

“A cross notice of appeal should be given where there are separate and distinct causes of action (whether both by the same party, or one by claim and another by counterclaim), and one party seeks to contest the decision upon one cause of action and the same or another party upon another cause of action (National Society for Distribution of Electricity v. Gibbs (1900) 2 Ch 281).”

In my opinion the only appeal properly before us for consideration is the appeal by the plaintiff. I think the parties’ claim and pleadings are very important for the determination of the appeal. In this wise I will first refer to paragraphs 11, 12 and 13 of the plaintiff’s statement of claim:

“11. As Plot B, as has already been said, is contiguous to the plaintiff’s said plot, Plot A, and as to the knowledge of the plaintiff, the defendant was no longer interested in the said plot, she having so effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase Plot B and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on her return to Accra.

12. The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra six months thereafter, she raised the subject of the purchase of the said plot in a conversation and commended the plaintiff for his wisdom in deciding to purchase the said plot since it was contiguous to his plot, Plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.

13. In early 1970 the plaintiff had a plan for an outhouse drawn up, submitted it to the Accra City Council for approval and Building Permit No 103 of 21 March 1970 was issued in his name. He then proceeded to erect the said outhouse partly on Plot A and partly on Plot B which he had lately acquired as aforesaid. The said building was financed partly out of the plaintiff’s savings and partly with an additional overdraft of ¢3,000 granted by the same bank on the same security.”

And this is what the defendant pleaded in reply.

“7. Paragraphs 11 and 12 of the statement of claim are denied. The refund of Mrs Vanderpuye’s money on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No question arose about conveying the smaller parcel to the plaintiff as alleged or at all, and no conveyance thereof has ever been made in favour of the plaintiff.

8. Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph 13 of the statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the smaller parcel as a residence for the defendant’s old mother (since deceased in 1970). Pursuant to the said family arrangement the plaintiff took out the building permit and mortgage loan from the bank as alleged.”

In my opinion paragraph 8 of the defence is an admission of paragraph 13 of the statement of claim, that it was the plaintiff who built the house on Plot B. Exhibit W, the letter written on behalf of the defendant by her lawyer, shows that the building was never put up towards any family arrangement or for the occupation of the defendant’s old mother. On the other hand the last but two paragraphs of exhibit W are admissions that it was the plaintiff who built the house on Plot B. The said paragraph ended thus:

“Our client (meaning the defendant) helped your client (meaning the plaintiff) to put up that building though she admits that your client (i.e. the plaintiff) put more money in this building than she did.”

Thus the learned trial judge made the following significant findings:

“In the face of these concessions in exhibit W how can she single-handedly put up this same building. This is another clear evidence of her inconsistency. Even so the plot was not sold in exhibit W. But we can treat that as a slight inconsistency. But we look at paragraph 8 of her statement of defence and counterclaim and we find the facts as pleaded there are entirely different from her evidence-in-chief. In para 8 she claims the two of them decided to put up the house for her mother, in her evidence-in-chief, she says she built up the house from her own resources. The authorities are clear; one cannot put a case different from what had been pleaded.”

I entirely agree with those findings. This is what Lord Normand said about pleadings:

 “The functions of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them.”

and again:

“To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

See Esso Petroleum Co Ltd v South Port Corporation [1956] WLR 81, 87.

The plaintiff’s evidence was amply corroborated by his witnesses and supported by documentary evidence. These weighed heavily against the defendant. Although the defendant alleged fraud in her statement of defence, she never gave any particulars. Various reasons were given by the defendant to whittle down the effect of the plaintiff’s evidence. The plaintiff, according to the defendant, tricked her into giving the documents to him, or he forged the document, or she conveyed the plots of land on promise of marriage or to have sex with her. DW4, Joseph L Lamptey, in his evidence-in-chief, said that a bricklayer called Alan Aryee engaged him as one of his labourers and told him that the house was to be built for one Quarshie, in other words, not for the defendant.

It is true that the plaintiff and his witnesses gave evidence before a different judge. It is also true that the trial judge did not also see Helena Ashia Mills, one of the defendant’s alleged vendors. In my view, the trial judge properly evaluated the evidence of those whom she had not seen and as well as those whom she saw and made the correct assessment. In so far as Plot A is concerned she had concurrence from the Court of Appeal.

Holding 1 in Asibey III v Ayisi [1973] 1 GLR 102, 104 states:

“when a decision upon an issue depended upon the credibility of witnesses who had given evidence at the trial and the question as to which witness was to be believed, and that question turned upon manner and demeanour, an appellate court would not interfere with a finding on that issue by the trial judge. But if there were circumstances existing which in the opinion of the court would go to credibility of witnesses, it would differ from the trial judge.”

See also Nyame v Tarzan Transport [1973] 1 GLR 8.

I do not find any circumstances existing which would convince me to differ from the trial judge’s finding. Grounds (i) and (ii) of the plaintiff’s appeal to this court are these:

“(i) that so much of Their Lordships’ decision as adjudged that the respondent was the owner of the Plot B because the appellant held it on trust for the respondents was wrong and ought to be set aside;

(ii) that there was no evidence in support of Their Lordships’ decision aforementioned.”

As a matter of fact the defendant claims that all the property, known as No A299A/4, which comprises Plots A and B were held by the plaintiff upon a resulting trust for the defendant. I need not go fully into the evidence; the defendant denied the plaintiff’s statement of claim that Plot B was a gift to the defendant which she subsequently sold: see para 5 of the defence. She in her evidence before the court admitted that the Plot B was a gift to her. The plaintiff said that the defendant sold the land to one Mrs Adina Ayele Vanderpuye. Later she decided that she would no longer buy the land. He, the plaintiff, in the absence of the defendant, decided to purchase the land. Therefore the sum of £70 being the purchase price, was paid by him with the understanding that a conveyance would be executed in his favour: see para 11 of the statement of claim quoted. It is not the defendant’s case that the plaintiff paid or refunded the £70 through one Mrs Torto. If what the plaintiff had stated in his statement of claim is true how then can it be said that the plaintiff held the property on a resulting trust for the defendant? The defendant’s reply was that, on the evidence, “the Honourable Justices of Appeal were right in their view that the plaintiff did not acquire this plot (B) for himself and that he held it on trust for defendant”.

As a matter of law the defendant led not one jot or tittle of acceptable evidence of any implied trust which trust could be founded upon her unexpressed but presumed intention. See Snell’s Principles of Equity 27th edition chapter 4 page 188. For the several reasons given above I would allow the plaintiff’s appeal and restore the judgment of the learned trial judge in full. I would dismiss the appeal of the defendant as not properly before the court because I hold the view that every cross appellant must file his or her notice of cross appeal within the statutory time limited within which notice of appeal shall be lodged. I would award costs in favour of the plaintiff.

AMUA-SEKYI JSC. The High Court, Accra gave judgment for the plaintiff in respect of two pieces or parcels of land together with the dwelling house thereon. On appeal, the Court of Appeal affirmed the decision with regard to what has been described in the proceedings as Plot A, but reversed the decision with regard to Plot B. The court adjudged Plot B and part of the dwelling house to be the property of the defendant.

The court gave its judgment on 18 July 1991. The plaintiff bided his time until 17 October 1991 when he lodged an appeal against that part of the decision which had adjudged the defendant to be the owner of Plot B and the building thereon. On being served with notice of the appeal, the defendant, on 24 October 1991 filed a notice of cross appeal in respect of that part of the decision which had adjudged the plaintiff to be the owner of Plot A and the building. Counsel for the plaintiff now objects to the defendant being heard on her cross appeal on two grounds namely: (1) the cross appeal was filed out of time; and (2) the defendant was required to obtain leave to appeal, but failed to do so.

Although counsel for the plaintiff did not refer to any provision in the law to support his first ground of objection, it may reasonably be supposed that he had in mind rule 8 (1)(b) of the Supreme Court Rules 1970 (CI 13) which requires that a civil appeal against a final decision be lodged within three months. In this case, the defendant filed her cross appeal more than three months after the Court of Appeal had delivered its judgment. What counsel seems to forget is that there can be no cross appeal unless an appeal has been lodged. Therefore, when the plaintiff chose to lodge his appeal almost three months to the day after the decision of the Court of Appeal, he left the defendant with no choice but to file hers after the expiration of the period specified in the rule.

But, is a cross appellant really bound by rule 8(1)(b)? The rule governing cross appeals is rule 9. It reads:

“9. (1) A respondent may give notice by way of cross appeal.

(2) the provisions of rule 6 of these Rules shall, mutatis mutandis, apply to a notice of a cross appeal.”

It will be observed that apart from rule 6, which deals with the form and content of appeals, no other rule is referred to as applying to a cross appeal. If any other rule is to be applied there must be compelling reasons for so doing.

There is no difference of substance between a claim and counterclaim or set-off on the one hand, and an appeal and a cross appeal on the other. Just as a claim must precede a counterclaim or set-off so must an appeal precede a cross appeal. With regard to a claim, a counterclaim and a set-off, section 32 of the Limitation Decree 1972 (NRCD 54) provides:

“32. For the purposes of this Decree, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.”

A cross appeal too, owes its existence to an appeal and is deemed to have been filed on the same date as the appeal. If an appeal is lodged within time, a cross appeal from the same judgment is deemed to have been lodged within time no matter how many days, months or even years after the filing of the notice of appeal that it was lodged. A cross appeal will be regarded as having, so to speak, been filed out of time only if the appeal itself was filed out of time. It is this that explains why in Crabbe III v Quaye, Court of Appeal, 31 July 1970 unreported, a cross appeal filed almost five years after notice of appeal had been lodged was permitted to be argued. I am satisfied that all that the law requires is that an appellant should have reasonable notice of any cross appeal.

If it is said that in the Court of Appeal a cross appeal need not be filed and that the notice filed in the Crabbe case was treated as one for a variation, my answer would be that rule 16(1) of the Court of Appeal Rules 1962 (LI 218) only permits a cross appellant to adopt the less expensive course of filing notice for a variation but does not debar him from filing a cross appeal, if he so desires. In any case, the rule requires that the notice for variation, if any, be filed within one month of service of the notice of appeal. That probably accounted for the deliberate decision to file a cross appeal.

The submission that the defendant required leave of the Court of Appeal or of this court before she could cross appeal is based on counsel’s view of section 3 of the Courts Act 1971 (Act 372), as amended by section 1 of the Courts (Amendment) Law 1987 (PNDCL 191). Section 3(2) of the amended provision reads:

“3(2) Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave.”

It is counsel’s contention that as far as Plot A is concerned, the Court of Appeal affirmed the decision of the High Court and, therefore, the defendant required leave to appeal.

This submission reminds me of Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC. There, the plaintiffs had sued in the High Court for various reliefs. Some of these reliefs were granted while others were refused. On appeal, some of the reliefs which had been refused in the High Court were granted while others were again refused. On a further appeal to this court counsel for the defendants raised the issue whether leave to appeal was required. In a ruling given on 25 April 1989 this court said, per Francois JSC:

“The argument must be faulted on the conception of strands of a decision rather than a single decision. The amended provision in section 3(2) of Act 372 talks of decision - not a dissected, truncated or dismembered decision. A decision must be regarded as a whole, a complete entity. Wharton’s Law Lexicon and Earl Jowitt’s Dictionary of English Law, both describe a decision simply in two words as “a judgment.” A judgment declares either for a successful party or designates a losing one. Consequently the amended section curtailing rights of appeal, come only into play when two successive judgments are against an appellant.... Since the Court of Appeal came to the conclusion that the plaintiff had been partially successful, that conclusion cannot be equated with successive failures which would fetter the plaintiffs’ right of appeal to the Supreme Court.

Our decision is that the plaintiffs do not need leave to appeal and can appeal as of right.”

This is precisely the situation in which the defendant before us finds herself. Having been partially successful in the Court of Appeal she can appeal to this court as of right.

Although the plaintiff commenced his action in 1974, it was not till 1990 that a judgment was delivered in the High Court. The reason for this inordinate delay appears to be that there were abortive proceedings before Okai and Lamptey JJ before the matter came to a trial and was concluded before Georgina Lutterodt J. With the consent of the parties the evidence led at the earlier hearings were adopted for the purposes of the trial before Lutterodt J. The result was that Lutterodt J had none of the advantages of a judge sitting at first instance when she came to assess the evidence of the plaintiff and his witnesses, as well as that of the vendor of the parties who had been called by the defendant. The Court of Appeal failed to notice this and accepted her findings of fact as having been made by a judge who had seen and heard all the witnesses.

The defendant gave up schooling at an early age. She met the plaintiff when he was in secondary school. On completing his secondary education, the plaintiff taught for two years as an untrained teacher. He entered a teacher training college for a certificate and then, while still teaching, married the defendant in 1951. He entered the university in the same year and graduated in 1954. The evidence of the defendant that she supported the plaintiff financially both before and after the marriage is entirely credible. Such marriages of convenience are not unknown in these parts. Her evidence that when the plaintiff was a newly qualified graduate teacher she bought a motor car for their common use was not denied. When it came to acquiring land for future development, it was the defendant who approached the vendors to agree on terms. The evidence of the plaintiff that it was he who paid the purchase price was strenuously denied by the surviving vendor who had been called to give evidence for the defendant. This witness stated that it was the defendant who paid but that at her request Plot A was made out in the name of the plaintiff. Lutterodt J rejected the evidence of this witness, whom she had not seen, on the ground that she was related to the defendant and had given an unsatisfactory explanation of why the defendant had asked that one of the two documents be made out in the name of the plaintiff. According to the witness the defendant explained that she was to be married to the plaintiff. Since the document bears 1957 and the parties got married in 1951 it seemed to the judge that the evidence could not be true.

The relationship between the witness and the defendant was admitted. She was neither the mother, sister, nor even the aunt of the defendant. To suggest that the witness would permit the kind of distant family relationship which existed between her and the defendant to lead her to commit perjury is to cast a serious slur on her character. There is no evidence on record to support such a view. As she explained, she knew the plaintiff well and was distantly related to him too. There was nothing in her evidence to suggest that she harboured any feelings of ill-will towards him. Looked at carefully, it will be seen from the evidence of the witness that the negotiations for the acquisition of the plots began as far back as 1949 when, although the plaintiff and the defendant were romantically involved, they had not yet got married. As the evidence shows, the defendant, was in later years to acquire two estate houses at Kaneshie, one in her own name and the other in the name of the plaintiff.

With regard to Plot B, Lutterodt J found for the plaintiff because the defendant sold it to a lady who later rescinded the contract and claimed a refund while the defendant was out of the country. The plaintiff refunded the purchase price on behalf of the defendant. I am in complete agreement with the Court of Appeal that having regard to the relationship between the plaintiff and the defendant the refund by the plaintiff could not in law make him owner of Plot B.

Each of the parties called workmen to testify that they had been engaged by the party calling them to work on the building and had been paid by him or her. The fact that the document of title of Plot A and the building plans were in the name of the plaintiff was no reason for rejecting the evidence of the witnesses called by the defendant nor is the circumstance that in one case, the witness, a labourer, did not know if any building plans were used. With the exception of the two plumbers whose evidence appears to be in conflict with each other, it is entirely probable that the others were truthful witnesses and that they were engaged on different stages of the project which took some five years to complete.

In the courts below it was accepted on the authority of Dyer v Dyer (1788) 2 Cox Eq 92 that if the defendant paid for Plot A, the plaintiff holds it in trust for her. Having, therefore, accepted the evidence of the surviving vendor that the plot was paid for by the defendant, I come to the conclusion that the plaintiff holds the said plot and the dwelling house thereon in trust for the defendant.

In the result, I would dismiss the appeal of the plaintiff and allow the cross appeal of the defendant.

AIKINS JSC. In this appeal the plaintiff is the appellant against part of the judgment of the Court of Appeal in respect of Plot B, a portion of the land in dispute, and the defendant is the cross appellant of the other part of the judgment of the Court of Appeal in respect of Plot A which contains the main building contiguous to the said Plot B.

The plaintiff on or about 19 June 1974 issued out of the High Court, Accra a writ against the defendant claiming:

“(1) A declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as “Plot A”) comprising an approximate area of 0.315 of an acre situate at Laterbiokorshie, Accra and comprised in a conveyance dated 8th day of August 1957 registered at the Land Registry as DR No 2212/57 and made between Emma Mills and Helena Mills of the one part and Seth Ogbarmey-Tetteh (the plaintiff herein) of the other part together with the two-storey messuage or dwelling house erected thereon or on some part thereof and known as House No A299A/4, Accra;

(2) a declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as “Plot B”) measuring 58 feet by 98 feet situate at Laterbiokorshie aforesaid adjoining Plot A together with the out-house erected partly thereon and partly on Plot A;

(3) possession of Plot A and Plot B together with the two-storey messuage or dwelling house and out-house erected thereon or on some part thereof (hereinafter collectively referred to as “house No A299A/4 Accra”) which are in the wrongful occupation and possession of the defendant;

(4) the sum of ¢7,540 being rents collected by the defendant from the plaintiff’s said premises on his authority for the period May 1970 to August 1973 which defendant has refused to pay to the plaintiff despite repeated demands;

(5) mesne profits from the 1st day of February, 1974 till possession of House No A299A/4 Accra is delivered up to him, and

(6) damages for the defendant’s unlawful entry and occupation of the said premises.”

The defendant denied the claim of the plaintiff, and counterclaimed for:

“(i) A declaration that all that property known as H/No A299A/4 Lartebiokorshie Accra comprising a two storey house, a one store out-house and a caretaker’s hut and the site of the whole is held by the plaintiff upon a resulting trust for the defendant as the absolute and exclusive owner thereof;

(ii) damages for fraud;

(iii) a perpetual injunction restraining the plaintiff his servants and agents from interfering in any way whatsoever with the defendant’s exclusive beneficial ownership and possession of the said property.”

The case has had a chequered history. Trial began in the High Court, Accra presided over by Lamptey J on or about 5 February 1979. After hearing the evidence of some four witnesses, including Helena Ashia Mills and the plaintiff, Lamptey J proceeded on transfer and the case was taken over by Okai J who decided to hear it afresh. Hearing began on or about 26 November 1985. After the plaintiff had closed his case, and the defendant was to open her defence, for an unknown reason, proceedings were interrupted again, and eventually the case was transferred for continuation before Lutterodt J on 23 June 1986. Counsel for both plaintiff and defendant agreed to adopt the proceedings before Okai J and the trial judge called on defendant to open her case. It was not until 12 April 1990 that judgment was delivered and this went in favour of the plaintiff.

Aggrieved by and dissatisfied with this judgment the defendant appealed to the Court of Appeal which allowed the appeal in part with respect to Plot B in favour of the defendant. The Court of Appeal’s judgment was delivered on 18 July 1991. On 17 October 1991 the plaintiff-appellant filed his appeal to this court against the decision of the Court of Appeal with respect to Plot B and on 24 October 1991 the defendant-appellant filed her cross appeal against that part of the decision of the Court of Appeal in respect of Plot A.

Four grounds of appeal were filed by the plaintiff-appellant. These are:

“(i) that so much of Their Lordships’ decision as adjudged that the respondent was the owner of Plot B because the appellant held it in trust for the respondent was wrong and ought to be set aside;

(ii) that there was no evidence to support Their Lordships’ decision aforementioned;

(iii) that so much of Their Lordships’ decision as adjudged that damages for trespass for ¢100,000 awarded by the trial judge against the respondent be reduced to ¢10,000 was, in the premises, wrong and ought to be set aside;

(iv) that so much of Their Lordships’ decision as adjudged that there would be no order as to costs was, in the premises, wrong and ought to be a set aside and costs in the Court of Appeal awarded by Your Lordships.”

The defendant-appellant filed two grounds of appeal, namely:

“(i) the plaintiff-respondent-appellant failed to discharge the burden of proof in support of his claim;

(ii) that Their Lordships erred in law and in fact by relying on the weakness of the defendant-respondent-appellant’s case rather than the strength of the plaintiff-appellant-appellant’s case at arriving at their decision.”

Before us the plaintiff-respondent-appellant submitted that the cross appeal should be dismissed as incompetent and not properly before the court because first the defendant having lost twice cannot cross appeal as of right in respect of Plot A except with leave of the Court of Appeal or the Supreme Court and cited PNDC Law 191 to support his contention; and secondly, that the defendant’s cross appeal is out of time as it was filed without having obtained extension of time. In reply counsel for the defendant-appellant-appellant argued that PNDC Law 191 is not applicable because she did not lose twice in this case, but that the judgment of the trial court was partially reversed by the Court of Appeal in her favour. Counsel further submitted that in any event the Supreme Court has discretion under CI 13 to vary a decision of the Court of Appeal suo motu in an appropriate case.

I consider the issues raised fundamental to the determination whether consideration should be given to the cross appeal and for that matter I would wish to deal with them first. The Courts Act 1971 (Act 372) section 3(2), as amended by the Courts (Amendment) Law 1987 (PNDCL 191) provides:

“(2) Where a decision of the Court of Appeal confirms the decision appealed from a lower court, an appeal shall be against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave.”

It would appear from the language of the sub-section that it is only where a decision as a whole of the Court of Appeal confirms the decision of the lower court that leave of the Court of Appeal is required before an aggrieved party can appeal against the decision of that court, or where the court refuses to grant leave to appeal he may repeat his application in the Supreme Court. The subsection does not talk of part of a decision, but the whole decision of the court. Therefore where the Court of Appeal comes to a conclusion that a party is partially successful this cannot be taken to mean that the party has had successive failures that should compel him to apply for leave to appeal; he could appeal as of right. In other words the subsection applies only where two successive judgments go against the aggrieved party.

This court had the occasion to clarify the law on this issue in the case of Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338 at 340-341, SC. The court held:

“A decision must be regarded as a whole - a complete entity... A judgment declares either for a successful party or designates a losing one. Consequently, the amended section curtailing rights of appeal, comes into play only when two successive judgments are against an appellant.

The policy rationale in the amended provisions is to curb the spate of frivolous appeals. Merit must be demonstrated, at the leave stage, before a suitor who had failed twice, is admitted to audience for a third time. This is in consonance with the policy of discouraging endless and futile litigation. The converse is equally true. Where a suitor had had no successive reverses no impediment inhibits the utilisation of his full rights of appeal. Since the Court of Appeal came to the conclusion that the plaintiffs had been partially successful, the conclusion cannot be equated with successive failures which would fetter the plaintiffs’ right of appeal to the Supreme Court. Our decision is that the plaintiffs did not need leave to appeal and can appeal as of right.”

The next point raised is that the defendant’s cross appeal is out of time as it was filed without having obtained extension of time. What happened in this case is that judgment in the Court of Appeal was delivered on 18 July 1991 and the plaintiff-appellant filed his appeal on 17 October 1991, just within the period prescribed for lodging an appeal as of right. Then a week later, i.e. 24 October 1991, the defendant filed her notice of cross appeal.

Rule 9 of the Supreme Court Rules 1970, CI 13 simply talked of the right of a respondent to give notice by way of cross appeal, and the application of the provision of rule 6 mutatis mutandis to such notice of cross appeal, but the Rules are silent regarding the practice and procedure which shall apply in this matter. Such being the case, until the court prescribed the practice and procedure, as the justice of the cause or matter may require, I think I am at liberty to seek advice from any common law or commonwealth jurisprudence.

At common law there are two kinds of notice that may be given by a respondent. The first is a substantive notice of cross appeal, and the second is a notice asking that a decision of the court below should be varied, or that it should be affirmed on grounds other than those relied upon by the court. Here, like the appellant’s notice of appeal, a respondent’s intention to ask that the decision of the court below should be varied, or affirmed on grounds other than those relied upon by the court below, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court of appeal to make. The latter has been given statutory effect by the English Rules of the Supreme Court, Order 58 sub-rules (1) and (2) of rule 6.

Our CI 13 does not contain any provisions that are similar to the English provisions, but a like provision is contained in rule 16 of the Court of Appeal Rules 1962 (LI 218), regulating proceedings in the Court of Appeal. The rule states:

“16. (1) it shall not be necessary for the respondent to give notice by way of cross appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period shall file with the Registrar of the Court below four copies of such notice, one of which shall be included in the record and the other three copies provided for the use of the Judges.

(2) Omission to give such notice shall not diminish any powers of the Court, but may in the discretion of the court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.”

A respondent’s notice of cross appeal is normally given in relation to the subject-matter of the action. It should be given where there are separate and distinct causes of action (whether by the same party, or one by claim and another by counterclaim), and one of the parties seeks to contest the decision upon one cause of action and the same party or another seeks to contest upon another cause of action. See Annual Practice, 1962 p 1670, and Halsbury’s Laws of England 3rd edition volume 30 paragraph 880. When the court dismisses an action and a counterclaim founded on separate causes of action, and the respondent to an appeal from dismissal of counterclaim wishes to appeal from dismissal of the action, he must give a separate notice of appeal. See National Society for Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280. So also where the respondent seeks to vary the order on a point which does not concern the appellant: Re Cavender’s Trust (1881) 16 Ch 270, CA.

But where, however, the action and counterclaim are linked together, as in the instant case, the cross notice ought to be treated, and it is hereby accordingly treated, as if it were a distinct notice of appeal.

The English case of National Society for the Distribution of Electricity by Secondary Generators v Gibbs (supra) is almost on all fours with the instant case. In that case letters patent were granted to L and J of the one part, and the plaintiff company of the other part. The former agreed to call, assign and transfer to the latter all the patents. On the death of L in 1888, though the purchase money had been paid, the patents had then not been assigned, and the company sued J and the administratrix of L claiming (1) an order on the defendant to assign the patents; (2) damages for breach of the agreement; and (3) repayment of part of the purchase money on the ground that some of the patents had been declared invalid. L’s administratrix then counterclaimed for payment by the company of a sum alleged to be due to her upon agreement under a judgment pronounced by a fresh court in an action brought against her in France by the company in 1889. At the trial of the English action and counterclaim, the trial judge Cozens-Hardy J dismissed both.

The judgment was entered on May 29 1889 and on August 29 1889 the defendant, Mad Ruelle, gave the plaintiffs notice of appeal from the judgment so far as it ordered dismissal of the counterclaim. On October 24 1889 the respondents under the Rules of the Supreme Court 1883, Order 58 r 6 served the defendant with a cross notice that upon the hearing of her appeal they would move that the judgment might be reversed so far as it ordered the dismissal of the action, and that the action might be referred back for trial.

During the hearing of the appeal it was argued on behalf of the defendant that with regard to the plaintiffs’ cross notice it was irregular and out of time; that the counterclaim on which the defendant appealed dealt with a totally different subject-matter to that of the plaintiffs’ action, which was an action for damages for breach of an agreement, and it would be unfair to allow the plaintiffs to raise by the cross notice a question which entirely differs from that raised by the defendant’s appeal. Counsel submitted further that if the plaintiffs were dissatisfied with the judgment they should have appealed in the ordinary way; and that by rule 15 of Order 58 the time for appealing from a final judgment was limited to three months, so that even if this cross notice were to be treated as a definite appeal, the plaintiffs would, altogether, be out of time.

In reply counsel for the plaintiffs argued that the decision of the learned judge was in fact one decision on both the action and the counterclaim, and therefore, an objection taken by one party to that decision gave the other party equally a right to object to the decision by a cross notice.

Lindley MR ruled that it was clear that the learned judge linked the action and counter-claim together, and under the circumstances the cross notice should be treated as if it were a distinct notice of appeal. At page 287 Lindley MR had this to say:

“I wish to say one word upon the question of the plaintiffs’ cross notice. If the learned judge had not so linked the action and counterclaim together as he did, and if the Counsel in the court below had not more or less acquiesced in that view, I should have thought - and I think my brothers agree - that the plaintiffs would have been wrong in giving their cross notice as distinguished from bringing a cross-appeal, in as much as that cross notice was addressed, not merely to the counterclaim to which the appeal was confined; but to the totally different matter of their right to relief upon their action, which is a separate and distinct matter altogether. But, having regard to the mode in which the two were linked together, we think that, in the circumstances of this case, the cross notice ought to be treated and we have accordingly treated it, as if it were a distinct notice of appeal. The “appeal” referred in rule 6 of the Order LVIII is in this case the appeal by the defendant on her counterclaim; and reading the rule strictly and properly, the cross notice could only be available in connection with the appeal from the order made on the counterclaim and ought not to have been extended to a totally distinct matter - that is to say, to the relief sought by the plaintiffs on their claim. But as I have said before - and I am prepared to adhere to it - the circumstances of this case were so special by reason of the course taken to which I have alluded, that we think it only just to treat the cross notice as a cross-appeal, and we do so accordingly.”

It follows from the reasoning in this case with which I agree, that in the instant case as the decision of the court below was in fact one decision on both the action and the counterclaim, the objection taken by the plaintiff-appellant to that decision gave the other party equally a right to object to the decision by a cross notice as if it were a distinct notice of appeal. In any event it seems to me that once an appeal is lodged against the decision or any part of it, under rule 23(3) of CI 13 this court may, in hearing the appeal, make any order necessary for determining the real issue or question in controversy between the parties. This power of the court is better clarified in rule 32 of LI 218 which deals with the power of the Court of Appeal to give any judgment and make any order in an appeal before it. The rule says:

 “32. The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

And since by virtue of Article 116(4) of the 1979 Constitution as reproduced in Article 129(4) of the 1992 Constitution this court, for purposes of hearing and determining any matter within its jurisdiction, is empowered to exercise all powers, authority and jurisdiction vested in any court established by the Constitution or any other law, the powers exercised by the Court of Appeal under the above rule may be exercised by the Court.

In the result the objection raised by the plaintiff-appellant fails and is hereby overruled.

I now turn to the appeal against that part of the Court of Appeal’s decision in respect of Plot B. The trial judge had after an exhaustive and a critical examination of the evidence before her, made a finding in favour of the plaintiff in respect of this plot, but this was overturned on appeal. In its leading judgment read by Amuah JA (Ampiah and Adjabeng JJA concurring) he said:

 “I now come to the third complaint. The plaintiff said that while the defendant was away in London the mother of Mrs Vanderpuye approached him and said that her daughter was no longer interested and that she wanted a refund of the money she gave to the defendant. The defendant at the time was abroad and the plaintiff said he refunded it and when the defendant came back he told her of the refund. He went on to say that as a result he acquired the land in this way. If Mrs Vanderpuye intended to sell the land to him she would have executed a deed in his favour but in this case she did not and from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad. The plaintiff therefore held the Plot B and whatever stands on it on trust for the defendant.”

If the case were as simple as that there would have been no need for anyone to pick a bone with the court. Counsel for the plaintiff-appellant argued that there was no evidence to support Their Lordships’ decision and that they erred in holding that the appellant held the plot in trust for the respondent. The initial claim of the plaintiff in respect of this plot is contained in paragraphs 7 - 13 of the statement of claim and is as follows:

 “7. The defendant who was married to the plaintiff at the time introduced prospective purchasers of plots in Laterbiokorshie aforesaid to the said Emma Mills and Helena Mills and in consideration of her said services, the said Emma Mills and Helena Mills conveyed to the defendant by way of gift a rather smallish plot measuring 58 feet by 98 feet ... in favour of the defendant.

8. The defendant subsequently sold her said plot of land (hereinafter referred to as Plot B) to a Mrs Adina Ayele Vanderpuye.

9. In 1962 the plaintiff, a Foreign Service officer, returned from Britain where he had been on attachment to the British and Commonwealth Office, leaving the defendant behind in Britain.

10. Soon after his arrival in Accra the plaintiff got word from a Mrs Aryee, the mother of the said Adina Ayele Vanderpuye, to the effect that her daughter who was then in London was no longer interested in Plot B as the Lands Department had refused to register the said conveyance executed by the defendant in her daughter’s favour.

11. As Plot B, as has already been said, is contiguous to the plaintiff’s said Plot A, and as to the knowledge of the plaintiff, the defendant was no longer interested in the said plot, she having sold and effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase Plot B and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on her return to Accra.

12. The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra six months thereafter, she raised the subject of the purchase of the said plot in a conversation and commended the plaintiff for his wisdom in deciding to purchase the said plot since it was contiguous to his plot, Plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.

13. In early 1970 the plaintiff had a plan for an out-house drawn up, submitted it to the Accra-Tema City Council for approval and Building Permit No 103 of 21st March 1970 was issued in his name. He then proceeded to erect the said out-house partly on Plot A and partly on Plot B which he had lately acquired as aforesaid. The said building was financed partly out of the plaintiff’s savings and partly with an additional overdraft of ¢3,000 granted by the same bank on the same security.”

In her statement of defence the defendant had this to say in paragraphs 5 - 8:

 “5. Save that the plaintiff and defendant were then married and that the defendant bought a smaller adjoining parcel of land from the Mills sisters para 7 of the statement of claim is denied.

6. Paragraphs 8, 9 and 10 of the statement of claim are admitted

7. Paragraphs 11 and 12 of the statement of claim are denied. The refund of Mrs Vanderpuye’s money on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No question arose about conveying the smaller parcel to the plaintiff as alleged or at all, and no conveyance thereof has ever been made in favour of the plaintiff.

8. Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph 13 of the statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the smaller parcel as a residence for the defendant’s old mother (since deceased in 1970). Pursuant to the said family arrangement the plaintiff took out a building permit and mortgage loan from the bank as alleged.” (Emphasis supplied.)

The plaintiff’s evidence-in-chief before Okai J (which proceedings were adopted by the parties) with respect to Plot B on 6 February 1986 is as follows:

“There is a small adjacent plot measuring 100’ x 88’ to my plot of the main building. The vendors gave the plot to one Mrs Adina Vanderpuye for £70. Mrs Vanderpuye left for America. She is residing in New York. On my return from UK in early 1961 the mother of Mrs Vanderpuye came and said she wanted a refund of the money she gave to the defendant and that her daughter was no longer interested in that plot as she is residing abroad. At the time the defendant was abroad, I refunded the amount of £70 and when the defendant came back from UK I told her of the refund. As a result of that I acquired the 2nd plot from Mrs Vanderpuye. I started to develop the small plot in early 1979.”

On 27 February 1986, plaintiff continued his evidence and said:

“I purchased the plot of the out-house to the main building. Defendant originally had it and she sold it to Mrs Vanderpuye. Defendant sold it for £70. There was no document prepared by Mrs Vanderpuye to me because she had not returned to Ghana. I paid the money to her mother. I purchased the land for myself. I did not give the defendant an impression that I was putting up the building for her because she has her own property.”

The plaintiff was not cross-examined on this vital evidence. This is not surprising because before then, on 5 February 1974, the defendant had caused her solicitor, Mr K R A Korsah, to write to the plaintiff in respect of the plot as follows:

“While on this subject of building and plots, we think it is pertinent to add that your client has built on a piece of land adjacent to the premises the subject matter herein, which piece of land was given as a gift to our client by Madam Ashia Mills. Our client helped your client to put up that building though she admits that your client put more money in this building than she did.”

The defendant said nothing about this plot in her evidence-in-chief before Lutterodt J. However, the following was elicited from her in cross-examination:

“Q. Apart from the two plots of land covered by exhibit A, Mills Abloh family gave you another plot contiguous to the land in dispute?

A. Yes this is true

Q. Although this land was contiguous to the one in dispute a separate document was made in your name?

A. Yes it was a gift so they gave me the land in my name.

Q. You sold that piece of land to one Mrs Vanderpuye?

A. Yes, that was the original plan.

Q. Mrs Vanderpuye later said she was not interested in the property?

A. Yes.

Q. At the time she said so you were not in Ghana?

A. That is so. Plaintiff wrote to tell me in London.

Q. When she said she was not interested plaintiff bought the land from Mrs Vanderpuye?

A. No he did not.

Q. Mrs Vanderpuye sold this land to him?

A. She did not; she said she wanted her money back, it was £70. I refunded it.” (Emphasis supplied.)

Q. When you paid back the £70 did she receive (return) the property to you?

A. No she did not. She returned the deed I gave to her.”

Then later the following dialogue ensued:

“Q. You remember consulting lawyer Roger Korsah when this problem about this house arose?

A. Never, it was in connection with his stating falsely that we were divorced.

Q. There is a small house attached to this main one?

A. Yes.

Q. When was it built?

A. I completed it in 1970.

Q. Plaintiff built this small house out of his own resources?

A. No he had nothing. He used his name in many of my personal properties.” (Emphasis supplied.)

At this stage the letter from Roger Korsah was tendered as exhibit W and read. Then counsel asked:

“Q. Exhibit “W” talks about the subject matter of this suit.

A. I cannot remember.

Q. You told Roger Korsah that the small house was built by the plaintiff.

A. I never said that I put up that house. He never contributed towards the building”. (Emphasis supplied.)

Of the two parties whose story is to be believed? Having told Mr Roger Korsah, her solicitor, that plaintiff had “built on a piece of land adjacent to the premises the subject-matter herein”, she now emphatically denies this and says she put up that house and that plaintiff never contributed any money or thing towards the erection of the building.

It is being argued that the plaintiff cannot be said to have legally owned or purchased the plot because he was married to the defendant and he refunded the money on her behalf and that no conveyance had been executed in his favour by Mrs Vanderpuye. But that is not the trend of the evidence. From the pleadings, while the plaintiff is claiming that he refunded Mrs Vanderpuye’s money to her mother, Mrs Aryee, through Mrs Rose Torto in the presence of plaintiff’s sister, Miss Nancy Ogbarmey-Tetteh, the defendant claims she refunded the money to Mrs Vanderpuye through Mrs Torto. She never claimed she refunded the money to the plaintiff. The plaintiff repeated this in evidence and said further that he developed the plot in early 1970 and that no deed of conveyance had been executed because Mrs Vanderpuye had not returned to Ghana. Since he was not cross-examined on this issue there was in fact no need for him to proceed to call any witness, either his sister or Mrs Torto, to give evidence to buttress his position. What is more, the defendant did not even give evidence relative to this Plot B until she was cross-examined on the issue. She admitted that when the plaintiff got to know that Mrs Vanderpuye was no longer interested in the land he informed her in London and she continued to say “I refunded it”, but failed to indicate to whom the refund was made.

Now considering what she averred in her statement of defence it can safely be surmised that she meant she refunded the money to Mrs Vanderpuye through Mrs Torto and not to the plaintiff. If that is the case, and I think it is, how can the Court of Appeal rightly hold that “from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad” and for that matter the plaintiff “held Plot B and whatever stands on it on trust for the defendant”? If the Court of Appeal, in the exercise of its powers, feels itself obliged to reverse the findings of fact made by the trial court, it has to show quite clearly in its decision exactly where it thinks the trial court went wrong. It means therefore that if the court sets aside the findings of the trial court without good grounds or upon grounds which do not support such inference with the findings made by the trial court, this court will have no other alternative than to set that decision aside.

As submitted by counsel for the plaintiff-appellant it is not the case of the defendant that the plaintiff refunded the money on her behalf to make him a constructive or resulting trustee. Therefore if the Court of Appeal found that the money was paid by the plaintiff and not the defendant, that should be the end of the matter, and the court is not entitled to invoke the doctrine of resulting trust.

Reading paragraph 6 of the statement of claim and paragraph 4 of the statement of defence and the counterclaim, it may be inferred that the defendant pleaded the doctrine of resulting trust in respect of both Plot A and Plot B. But this does not absolve defendant from leading evidence to support her claim of resulting trust in respect of Plot B. Since this was not done it is my judgment that it was wrong for the Court of Appeal to found their judgment on resulting trust to defeat the claim of the plaintiff. The defendant having failed to prove that the refund by the plaintiff was made on her behalf (she herself claims she made the refund), the Court of Appeal should not have gone further to find an avenue for the defendant through which she could escape in order to avoid the consequences of her inability to establish a resulting trust in her favour. As was held in the case of Duagbor v Akyea-Djamson [1984-86] 1 GLR 697 at 707, CA:

“... what the learned judge did amounted simply to a substitution by him “proprio motu of a 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.”

See also the dictum of Dam v Addo [1962] 2 GLR 200 at 206, viz.

“In both Esso Petroleum Co., Ltd. v Southport Corporation and Oloto v. Williams above referred to, it was the case of the court accepting a case contrary to and manifestly inconsistent with that which the plaintiff himself had set up, whereas in our instant case it is the case of the court accepting a defence contrary to and inconsistent with that which the defendant himself has put forward; but the principle of law involved is undoubtedly the same; and in the words of Lord Normand, amounts to condemning ‘a party on a ground of which no fair notice has been given [and that] may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded’.”

It is argued that the trial judge did not have the opportunity of seeing and hearing all the witnesses in this case and so the matter had become at large for the appellate court to confirm or reverse the decision of the trial court and substitute its own decision. I have no serious qualms about this, but in my judgment the findings and conclusion of the trial judge on this issue are amply supported by the evidence on record. I am satisfied that there was enough credible evidence before the trial High Court to support the case of the plaintiff that he owned the plot and that he put up the out-house on it. He produced exhibit K, i.e. the building plan and permit in respect of the building (all in his name) though he was not able to produce the receipt for the payment of the £70. Though the payment was not controverted, he gave the reason for his inability to produce the receipt; he said it had got missing. On the contrary, the defendant was unable to produce any documentary evidence to support her claim. She could not even produce the deed she said Mrs Vanderpuye returned to her or the receipt for the £70 she also said she paid, and gave no reason for not producing it. That would have somehow strengthened her case. Her evidence was, as I said earlier, completely different from what she averred in paragraph 8 of her statement of defence. The burden was squarely on the plaintiff and he discharged it to the hilt.

For the foregoing reasons, I am of the view that the part of the judgment of the Court of Appeal in favour of the defendant-cross-appellant was wrong and accordingly this appeal should be allowed, the judgment of the Court of Appeal with respect to Plot B set aside and, in place thereof, judgment entered in favour of the plaintiff-appellant upholding his claim for Plot B.

I now move on to consider the cross appeal. The defendant-cross-appellant’s attack on that part of the judgment of the Court of Appeal in respect of Plot A is based on the following:

“a. that the judgment was given in favour of the plaintiff not on the strength of his own case, but on the “inconsistencies” in the defendant’s case;

b. that as the plaintiff was in duty bound to establish that he bought and paid for Plot A, he should have called the vendor Helena Ashia Mills whose evidence was to the effect that she meant to benefit defendant though the document of title was made in favour of the plaintiff, and that the plaintiff should not be allowed to benefit from his default in calling her;

c. that three-quarters of the summary of the trial judge was concerned with the evaluation of the defendant’s evidence, particularly that of the DW1’s evidence, resulting in miscarriage of justice and misapplication of the law.”

Speaking for myself, I do not see any merit in the complaint about the plaintiff’s failure to call Helena Ashia Mills. There is no doubt from the record of appeal that the defendant intended to take advantage of calling Helena Ashia Mills as her witness for reasons best known to herself. I say this because at the early stages of the case when the parties appeared before Lamptey J (as he then was) and the plaintiff was to open his case, the defendant sought leave of the court to call the said Helena Ashia Mills out of turn as her first witness for the reasons that the health of the witness was failing, and even though the proceedings before Lamptey J were not adopted, the defendant tendered them to enable her use her evidence in her favour. Having taken this advantage how can she now turn round to accuse the plaintiff for failing to call the said witness, and then go to the extent of saying that the plaintiff should not be allowed to benefit from his default in calling her. The defendant wants to take advantage of both situations.

In my judgment, the defendant having called Helena Ashia Mills out of turn as a witness before the plaintiff even opened his case and thereby obtaining an advantage to herself, cannot afterwards allege that it was the duty of the plaintiff to call the said witness whose evidence would have been binding on him if he had called her, and that he should not benefit from his default in not calling her. As Honeyman J said in Smith v Baker & Sons (1873) LR 8 CP 350 at 357 and approved by Baker MR in 19 QBD 347 at 350:

“A man cannot say at one time that the transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void, for the purpose of securing some further advantage.”

Be that as it may, in her evidence-in-chief Helena Ashia Mills did not talk about the deed of conveyance she executed in favour of the plaintiff. It was when she was cross-examined on it that she said that the conveyance was made in his name on the instruction of the defendant though the defendant paid for the plot. This she said was done because the defendant said he had promised to wed her. This document (exhibit A) was executed in August 1957, and it was to prove the untruthfulness of Helena Ashia Mills that the plaintiff subjected her to the exhaustive cross-examination which showed the inconsistencies in her story, and which the trial judge made elaborate references to, that counsel for the defendant is complaining about. It came to light that though the document was executed in 1957 the wedding of the two parties took place in 1951. When witness was asked “Do you know that plaintiff and defendant got married in 1951 and not in 1957?”, her reply was “I do not know”. Though she said in examination-in-chief that the building on Plot A was completed in 1951 and that she was present at the formal opening of the building, she admitted under cross-examination that in fact the building was not completed in 1951 but said there was some sort of ceremony in the house in 1951.

The other complaint of counsel for the cross appellant is that the judgment was given in favour of the plaintiff not on the strength of his own case, but on the “inconsistencies” in the defendant’s case. In her judgment the trial judge adverted briefly to the burden of proof that lay on the plaintiff. She said:

“The principal claim of the plaintiff is for a declaration of title to land. The authorities clearly show that he succeeds on the strength of his own case and not on the weakness in his opponent’s case.”

She relied on the cases of Asare v Amuzu II [1984-86] 1 GLR 599, CA and Duagbor v Akyea-Djamson [1984-86] 1 GLR 697, CA to support her contention. She quoted with approval the dictum of Abban J in the latter case, and continued:

“It follows that the burden of proof would not shift, neither would the degree or standard lessen simply because the defendant has also counterclaimed for title.”

The question is, did the learned trial judge give judgment in favour of the plaintiff not on the strength of his case, but on the “inconsistencies” in the defendant’s case? Counsel does not pinpoint or identify the “inconsistencies” he alleges, nor does he quote passages from the judgment of the trial judge to support his contention, but simply leaves the matter at large, expecting this court to decide whether he is right or wrong in his assertion. I must say, that is unfortunate. This court requires some sort of assistance from counsel under such circumstances.

However, I have read the judgment of the trial judge over and over again to see whether there is any merit in counsel’s argument, but the more I read the judgment the more I become convinced that his argument is rather unmeritorious. I find that what the trial judge did was to evaluate the evidence of the plaintiff (including the documentary evidence) and that of the defendant to ascertain which of the two divergent claims was more credible. This, the court did so exhaustively that if I venture to evaluate the evidence and make my own findings and conclusion, I shall be compelled to repeat almost all that the court had said. After exhaustively evaluating the evidence the court concluded by saying:

“The evidence of ownership is so overwhelmingly in favour of the plaintiff, and I would hesitate to make any findings to the contrary.”

There is nothing in the judgment that showed the slightest suspicion that the trial judge deviated from the principle of law she so ably enunciated at the beginning of her judgment.

Because of the divergent views expressed by some Justices of this court I think the justice of the case demands that I should say a word or two about the evidence in relation to Plot A.

At the trial court the plaintiff said that while he was at Tamale on transfer he had information of sale of plots in Accra by Emma Mills and Helena Mills. He therefore remitted £30 to the defendant to deposit for two plots for him, and he completed payment of the plots, amounting to £128 by the end of 1957 through one Mr Mills who was then caretaker of the plots for the vendors. He said a deed of conveyance was executed in his name by the vendors, and he started developing the land in early 1958. He applied for a building permit and this was also issued in his name. He completed the building at the end of 1963 with credit facilities from Messrs A G Leventis and a loan of £1,500 from Ghana Commercial Bank, together with the proceeds of some of his personal effects he sold. He said:

“In August 1977 when I was leaving Ghana for USA, I foresaw that there would be a problem with the payment of the loans. The fear arose for the lack of co-operation from the defendant for failing to pay moneys into my bank account. I therefore raised money from private sources and repaid in full the outstanding balances owing to the bank. The document on the house was released to me. I paid this money in 1977.”

With this evidence on record, the trial judge in her judgment said:

“In my view the evidence led on the purchase of the property raised a strong prima facie case that plaintiff is the owner of the property in question.”

Having said that she proceeded to examine the evidence of the defence whether any portion of the evidence of the plaintiff could be displaced.

In her evidence the defendant said that she bought the land in dispute, Plot A, in 1949 from Ashia Mills, and that the deed of conveyance was executed for her in her former married name, Mrs Ankrah, and she then had a building plan made for her by one J Lamptey of the Town Engineer’s Office. She said she used the proceeds of her car she sold for £400 together with moneys from her own resources to put up the building on the disputed land. Under cross-examination this is what she said:

“Q. You purchased a plot near the house the subject-matter of this suit?

A. Yes, the family dashed me this plot.

Q. How many of these plots were in your name?

A. I sold this plot which was dashed me to Mrs Vanderpuye. I built my house on the other two plots.

Q. In whose name were these documents made?

A. The documents were originally in my maiden name.

Q. Then subsequently what happened?

A. He tricked me and forced me and changed the documents into his name.

Q. So you made another document transferring the documents to him?

A. Yes a year later I had to go with him to one Lamptey to alter the documents into his name.

Q. When was the original title deed prepared.

A. I cannot remember.” (Emphasis supplied.)

Still under cross-examination she said she was in court when Helena gave evidence that she the defendant caused the plaintiff’s name to be put on the deed of conveyance because he had promised to marry her. While confirming this allegation, she also said the plaintiff changed her name on the document to his at the Town Planning Office with her authority and that this was done in 1956.

As I have said earlier in this judgment Helena Ashia Mills said in her evidence that she and her sister sold two plots to the defendant for £128 in 1949 and that it took the defendant up to 1951 to finish paying for the plots, and after payment she executed a conveyance in her favour. It was in cross-examination that she said the defendant asked her to put the plaintiff’s name in the deed because he had promised to marry her. On the face of this evidence one might say it is credible but when it is recollected that the defendant said she completed the building on the disputed plot of land in 1951, one has to question the veracity of the witness’s evidence. Even so, the fallacy of her evidence is more pronounced and exposed when faced with the uncontroverted evidence that the plaintiff and the defendant wedded in 1951.

When Lamptey was called to give evidence for the defence (as DW1) he said in 1954 he prepared a building plan for a two-storey building for the defendant and she started putting up her building with the aid of the plan. Then in 1956 the defendant asked him to change the name on the plan i.e. her name, to that of the plaintiff because she was afraid that in case there happened to be a trade malpractice the building might be sold, and the change was effected accordingly. He said that about the same time he saw a building permit which accompanied the plan and that on that permit a change from Dina Ogbarmey-Tetteh to Seth Ogbarmey-Tetteh had been made on it. When under cross-examination he was shown the plan and it was clear there was no amendment of the title, he still insisted he made the amendment but admitted, however, that the only amendment on the plan related to a conversion of a single to a double-storey. He admitted further that he personally did not prepare the plan but that he instructed a draughtsman to do it. When exhibit P, the building permit, was shown to him he admitted that it bore the plaintiff’s name (see examination-in-chief). It is clear that this witness cannot be a witness of truth.

This is what the trial judge said about the witness:

“It is on the strength of the answers he himself gave that I wondered how in the circumstances defendant was unable to produce the old permit, her original drawings or any other documentary proof of the facts testified to. On the contrary further answers he gave to questions put to him would support the plaintiff’s version that the plans were made in his name in his own right and the amendment made to actual drawings but not the title. See exhibit 1.

Although this witness has sworn that it was only an amendment to title that was sought, under cross-examination he admitted he prepared exhibit 1 for the plaintiff. It does not deal with any such amendment to title but an amendment to the actual drawing; the conversion of the single storey to a two-storey building.”

With respect to the actual construction of the building the trial judge examined the evidence of the parties and their witnesses who testified that they did work on the building. I do not think it is necessary that I do the same here. In my view it would be sufficient I signalled my concurrence with the views of the trial judge on the witnesses. She said:

“Certainly of the two parties, I have found the plaintiff more reliable than the defendant, which also means since the land was purchased by the plaintiff who caused the drawing to be made for him in his own name and he had resources to build, then surely the defendant (I think it was a slip, she meant plaintiff) was the person to have procured workmen for the project.”

For the reasons I have given, it is my judgment that the decisions of the trial judge and the Court of Appeal in favour of the plaintiff-appellant in respect of Plot A were correct, and accordingly this appeal by the defendant-cross-appellant must be dismissed, and is hereby dismissed.

As to the damages since the defendant-appellant does not wish to press the ground dealing with damages the decision of the Court of Appeal on this is affirmed.

WIREDU JSC. The parties to this suit are husband and wife. They have been married for a period of over 25 years and sometime in the early 1970s, their original customary marriage was converted to one under the Marriage Ordinance. The title of the case therefore should not deceive one into thinking that it is one of a matrimonial cause. It is in fact a land cause involving title to two plots of land conveniently described in these proceedings as Plots A and B.

These plots had, at the commencement of the action been developed with buildings on them.

The plaintiff, by his writ of summons issued out of an Accra High Court on June 19, 1974, claims title to these two plots of land along with four (4) other reliefs against the defendant. The writ was accompanied by a twenty-one (21) paragraph statement of claim. The defendant, for her part, put up an adverse claim of title to the same property and, for her part, counterclaimed for title and also asked for a perpetual injunction restraining the plaintiff from interfering with her exclusive possession and ownership of the property.

At the close of the pleadings, the following issues were settled and agreed to as issues for trial.

“(i) Whether the plot referred to in the plaintiff’s statement of claim as Plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right or whether it was paid for by the defendant and is thus held by the plaintiff, prima facie, as a trustee for the defendant.

(ii) Whether the two-storey dwelling house erected on the said plot and numbered A299A/4, Laterbiokorshie, Accra, was financed by the plaintiff or by the defendant.

(iii) Whether the refund of the price of the plot of land referred to as Plot B in the plaintiff’s statement of claim was made by the plaintiff or the defendant to the vendor, Mrs Adina A Vanderpuye.

(iv) Whether or not the plaintiff developed the said smaller plot (Plot B) for his sole benefit or in pursuance of a “family arrangement.”

(v) Whether or not the plaintiff is entitled to claims entered on his writ herein.

(vi) Any other triable issue or issues arising out of the pleadings.”

The unusual thing about the trial of this case is that three trial judges were involved in its hearing. The trial first commenced before Lamptey J (as he then was) on 18 February 1976. He heard evidence of the first witness for the defendant who, on grounds of ill-health, was permitted to testify before the plaintiff and his witnesses. This witness was the only surviving co-owner of Plot A. On 18 February 1976, the evidence of the plaintiff and his first witness commenced before Lamptey J. The record shows that the matter came before Okai J who, on February 26 1983, took over the case and commenced hearing evidence of the other witnesses for the plaintiff. On June 19 1986, the case came before Lutterodt J (as she then was). The earlier proceedings before Lamptey and Okai were by consent adopted for continuation of the trial. Lutterodt J had to continue from then on with the case for the defence. She heard the case to a conclusion and delivered judgment on April 12 1990, about sixteen years from the commencement of the action. The judgment was in favour of the plaintiff for the reliefs sought on his writ. Dissatisfied with the decision, the defendant appealed to the Court of Appeal. On July 18 1991 the Court of Appeal delivered its judgment which affirmed the judgment of the High Court in favour of plaintiff in respect of title to Plot A. The court however allowed the appeal by the defendant in respect of Plot B on her counterclaim. The court awarded also damages of ¢10,000 for trespass against the defendant in respect of Plot A.

On 17 October 1991, the plaintiff appealed to this court against the decision of the Court of Appeal. Seven days thereafter i.e. on 24 October 1991, the defendant also filed a cross appeal against the judgment of the Court of Appeal. Her grounds were:

“(i) the plaintiff-respondent-appellant failed to discharge the burden of proof in support of his claim.

(ii) that Their Lordships erred in law and in fact by relying on the weakness of the defendant-appellant’s case rather than the strength of the plaintiff-respondent-appellant’s case in arriving at their decision.”

She asked that the decision of the High Court, as affirmed by the Court of Appeal, that the plaintiff is the owner of Plot A, be reversed and a declaration made in her favour.

Before this court, two objections were raised against the propriety of the notice of cross appeal filed by the defendant. The plaintiff’s first complaint was that the defendant’s cross appeal was out of time. On the objections, I have had the advantage of reading beforehand the opinion of my brother Amua-Sekyi JSC and I endorse his stand on the objections. For my part, I think the common-sense approach to the objection amply supports his disapproval of the objections. For a cross appeal to be filed, notice of an appeal filed should be given to the party filing the cross appeal. I need no authority to be convinced of the correctness of his reasons. Our rules of court do not support any of the objections raised and I will only add that the plaintiff’s objections raised have not been substantiated. No time limit within which to file a cross appeal is provided for in our practice rules. The test therefore is whether the cross appeal has been filed within a reasonable time after the notice of appeal was served. The objection is not supported by any provision in our rules of practice and, in my view, fails for the above reasons.

On the merits of the case, I will first deal with Plot B. I have had no hesitation in endorsing the conclusion of the Appeal Court in favour of the defendant. The undisputed evidence shows that the legal title to it is still in the defendant. The evidence brought by the plaintiff to support his claim is unacceptable to prove title. The undisputed evidence shows that the plot was bought and paid for by the defendant. She later agreed and sold it to one Mrs Vanderpuye. The latter, because of some difficulty she encountered in causing her title to the land to be registered, decided to abrogate the agreement and to ask for a refund of her money through her mother. At that time, the defendant was in London so the obvious person Mrs Vanderpuye’s mother had to approach was the defendant who, on his own admission, agreed and refunded the purchase money of £70 to the mother of Vanderpuye. The ordinary and obvious intention of Mrs Vanderpuye and the surrounding circumstances show an intention on her part to restore the status quo. The plaintiff paid no consideration for claiming to have acquired any interest in the land. He did nothing more beyond refunding the actual purchase money. The evidence shows that he acquired no interest at all in the land. No receipt was produced to evidence a new transaction between him and Mrs Vanderpuye. He cannot justify his claim to Plot B under any law recognised by our courts, either customary or otherwise. He cannot come under the Conveyancing Decree, which required a deed of conveyance. He cannot come under the customary law, which required wide publicity before  witnesses. He called no witness to support his claims. He failed to make out his case and the High Court in my respectful view was wrong in decreeing title in his favour.

On Plot A, by paragraph 1 of his statement of claim, the plaintiff pleaded as follows:

“In December 1955, whilst on transfer to Tamale, the plaintiff learnt through his then mother-in-law, Madam Sophia Tackie, that plots of land were being sold at Larterbiokorshie at £64 per plot and having indicated his intention of purchasing two of the said plots, paid an initial deposit to Emma Mills and Helena Mills through his said mother-in-law.”

In support of the above, he testified as follows:

“In early 1955, I was transferred to Tamale. I was accompanied by my wife, the defendant. In early 1956 whilst at Tamale, the defendant came down to Accra. She wrote to me from Accra. I remitted an amount of £30 to her to secure two plots. When I came down to Accra late 1956, I saw the vendors. By the end of 1957 I had paid to them through their agent, the late Mr Mills, a total sum of £128 for the two plots. I shall tender my document later. The vendors were Emma Mills and Helena Mills of Accra. A deed was executed and a receipt was issued. I started developing the plot in early 1958.”

His evidence above is in clear conflict with his pleadings. The law as I understand it is that a party is bound by his pleadings and the acceptance in favour of a party, of a case which is inconsistent with what he had put in and by his evidence is wrong and unjustified in law: R T Briscoe (Ghana) Ltd v Preko [1964] GLR 322, CA.

There was no amendment to the pleadings. The plaintiff could also not have justifiably been held to have proved his case on his failure to call evidence of his grantor. This will mean that he was unable to prove the root of his title. In an action for a declaration of title, a plaintiff who fails to establish the root of his title must fail because such default is fatal to his case. In the instant case, the defendant called the only surviving co-owner of the disputed land. The evidence of this witness was crucial as to who in fact purchased the plot. Her evidence was clear that the land was negotiated and paid for by the defendant. No independent, counter-evidence was provided by the plaintiff. In effect her evidence could not be tested with any rival evidence other than the self-serving evidence of the plaintiff himself which, even as was tendered, contradicted his own pleadings. Lutterodt J who did not have the advantage of seeing and observing this witness rejected her evidence on the basis that the witness was a relation of the defendant and that the reason she gave to support the claim by the defendant, that she directed her to put the plaintiff’s name in the deed of conveyance, could not be true. These reasons in my respectful view led to a faulty evaluation of the evidence. The defendant and the plaintiff are somehow also related, though distantly, so also is the relationship between the witness and the defendant. No reason was ever suggested why she should come and tell a lie in favour of defendant. She had nothing to gain by telling such a lie to perjure herself. She had no inheritable interest in the defendant’s property. The learned trial judge, Lutterodt J in my view, not having had the advantage of seeing and observing the witnesses in the box, did not enjoy the privilege of the discretion which protects a trial judge in her findings of primary facts. In fact, she was in no better position than any of the appellate judges in determining the credibility or otherwise of the evidence of the only surviving eye-witness account of what in fact actually took place resulting in the execution of exhibit A on which the plaintiff was relying.

The law on this is clear that where the evidence of a witness is material to determine an issue or where such evidence is vital to settling the issue one way or the other, then the evidence of such a person should or ought to be accepted unless it is apparent on the face of the record that it is not true. Atadi v Ladzekpo [1981] GLR 218, CA, Nkaeguo v Konadu [1974] 2 GLR 150.

Nothing appears apparent on the face of the record to me which can justify the rejection of the vendor’s evidence. The Court of Appeal glossed over this very vital point of proof and the privilege enjoyed by trial judges with regard to issues involving the resolution of primary findings of facts. The plaintiff failed on the facts of this case to show that he bought and paid for Plot A.

The rest of the evidence provided by the plaintiff was ineffective to advance his case to justify any judgment in his favour. The defendant on the other hand provided evidence as to the acquisition, supported by her vendor. She brought evidence to show how she came by the plan of the building, she brought evidence of masons engaged on the job, electricians, plumber etc. She brought evidence to show her involvement in a police case in respect of a complaint pertaining to title to the land. She brought evidence to show her ability to put up the construction of the building financially by tendering evidence of her trading activities. In fact, she was described as a hard-working woman, “jack-of-all-trades”. She testified as to how she made preparation for the opening of the house and laid her dead mother in state in the house. There was evidence which was not seriously challenged, that she acquired two houses at Kaneshie through the State Housing Corporation where she once worked. One of these two houses was taken in the name of the plaintiff. She also bought a car in the name of the plaintiff for their joint use. The plaintiff on other hand, by his own evidence, showed that he could not have put up the building without some financial help from elsewhere. He claimed to have obtained a loan from Ghana Commercial Bank to complete the house. The evidence however shows that this same loan was secured with the disputed property. I am yet to be convinced that banks take as security for granting loans uncompleted buildings. The evidence of the defendant cuts across this, that even at the time the loan was taken, the construction of the building had been completed. Her side of the story in respect of this loan is more consistent with the normal practice of banks taking completed buildings as security for loans granted.

On the balance of probability, the defence case is overwhelmingly more credible than the plaintiff’s and ought to have been preferred to that of the plaintiff.

In my judgment, therefore, the plaintiff in whose name the legal title to the disputed property stands, holds same in trust for the defendant who has established by the evidence brought by her and on her behalf that she is the real beneficial owner of Plot A and is entitled to request the plaintiff to convey the legal title to her; see the case of Harrison v Gray Jnr [1979] GLR 330. The defendant therefore succeeds on her cross appeal as regards title to Plot A.

BAMFORD-ADDO JSC. This is an appeal by the plaintiff-respondent (hereinafter called plaintiff) against part of the judgment of the Court of Appeal. The defendant-appellant (hereinafter referred to as the defendant) also filed a cross appeal against part of the same judgment.

The brief facts of this case are that the plaintiff met the defendant in 1946 while he was a student at Accra Academy and she was a successful trader. In furtherance of his education she provided financial support for him, and after his education also assisted him in finding various jobs. In 1951 he wedded her under the Marriage Ordinance and they cohabited in Accra until their transfer to Tamale in about 1953. They returned to Accra in 1956.

According to the plaintiff while in Tamale his wife informed him about land being sold by the Mills sisters, owners of a large tract of land in Accra. He said his wife’s mother, now deceased, arranged two plots for him to buy and he paid an initial amount of £30 through her and the rest by instalments to one Mr Mills also deceased till 1956 when he finished paying the total sum of £128. He did not produce any receipts from either Mr Mills or the vendors. He said in 1957 a deed of assignment was prepared and executed by him and the Mills sisters, Helena Ashia Mills and Emma Mills, vendors of the land. He claimed this land, hereinafter referred to as Plot A, as his property by purchase and tendered the deed, exhibit A, in support of his claim. He called no witnesses - his mother-in-law was dead then, and so was Mr Mills. However one of the ladies who he claimed sold the land to him was alive i.e. Helena Ashia Mills but she was not called by him; instead the defendant called her as DW1. I shall refer later in detail to the evidence of this lady, DW1, which I consider important to this case.

In respect of another plot of land adjoining Plot A, hereinafter referred to as Plot B, plaintiff said that originally his wife was the owner of this land having obtained it from the Mills sisters and on which she held the proper documents. He said that she sold Plot B to one Mrs Adina Vanderpuye for £70 but in 1961, while she was away in the UK, Mrs Vanderpuye’s mother approached him and told him that her daughter wanted a refund of the £70 from defendant since she was no longer interested in the plot. According to the plaintiff, he “refunded” the said sum to Mrs Vanderpuye’s mother and later he reported this to the defendant who congratulated him for doing so. There is no evidence that there was any sale of Plot B to him by Mrs Vanderpuye. Even though he had no documents on this land he claims that he became the owner of Plot B when he “refunded” the £70 on behalf of his wife.

The plaintiff said further that he used his own money and a loan from the Ghana Commercial Bank in 1963 to put up the building on Plot A. The evidence however was that in 1963 the said building had been completed and a certificate of habitation had been issued. He also claimed that he used his money and a further loan from GCB to put up an out-house on Plot B in 1970 and he tendered in evidence building permits in his name in support of his case.

He called two witnesses; PW1 who said that in 1960 he connected a pipe from the mains to Plot A, and PW2 who said he did the electrical work on Plot B in 1970. This was the case for the plaintiff, and all the evidence he produced in support of his claim of ownership to both plots and the buildings thereon.

The defendant counterclaimed for both plots and gave evidence that she bought Plot A from Helena Ashia Mills and her deceased sister in 1949 and paid by instalments for it until she completed payment of the purchase price, and in 1957 she requested that the documents be changed into the name of plaintiff; that she also got the building plans changed into his name and in 1958 she started putting up the building on Plot A even before the permit was issued. She claimed she had the means to build the house being a successful trader well before 1946 and that she used her savings and proceeds from the sale of a car she bought in the name of plaintiff in 1955. She also called witnesses who were present at the cutting of the sod at the start of construction work.

She called six witnesses in support of her claims including DW1, Helena Ashia Mills, her vendor. DW1 said in her evidence that she sold some land including Plot A to defendant who paid the purchase money to her personally in instalments; that in 1957 the defendant went to her accompanied by the plaintiff and requested her to change the documents on Plot A into the name of plaintiff because the latter had promised to wed her and had in fact wedded her. DW1 did not specify dates of either the promise to marry or the date of the marriage. In fact she said she did not know these dates, she did not also say that the promise to marry was made in 1957. This is what she said in cross-examination.

 “Q    When did you give the first document to defendant?

A      I made the first document in the name of plaintiff because he came with defendant and defendant said I should use the plaintiff’s name in the document. This was in 1957.

Q      Did you say defendant made the final payment to you in 1951?

A      Defendant started paying for it in 1949 and completed paying in 1951.

Q      Look at exhibit A. This is the document you executed in favour of the plaintiff?

A      That is correct. I did it on the instructions of defendant because plaintiff had promised to marry and wed defendant.

Q      By exhibit A you granted the land in dispute to the plaintiff?

A      That is not correct. The defendant was present and it was because defendant wished it done that way because plaintiff had promised to wed defendant.

Q      Your story is not true.

A      I have told the truth. The plaintiff did wed the defendant as promised.

Q      Do you know that the plaintiff and defendant got married in 1951 and not 1957?

A      I do not know.”

A reasonable interpretation of this evidence is that the defendant bought and paid for Plot A from DW1, the vendor, between 1945 and 1951. The defendant in 1957 requested her vendor to prepare the document in the plaintiff’s name because according to the defendant, the plaintiff, at a time earlier than 1957, promised to wed her and did in fact do so. She stated positively that it was to defendant that she sold Plot A and it was defendant who paid the purchase price. DW1’s evidence is relevant and important in resolving the dispute as to ownership of the plot and in my opinion is the best available evidence.

The defendant called witnesses to prove how she built the house on Plot A. These witnesses included the one who prepared the plans in the name of the plaintiff on the instruction of defendant, the plumber and electrician who worked on the building, and witnesses who attended the house-warming party organised by defendant after the completion of the house in 1963. She stated that she financed the construction with her own savings and proceeds of the sale of her car purchased in the name of the plaintiff. In her cross-examination it came out that not only had she once purchased a car in her husband’s name but she had also in 1962 purchased an estate house No 1371 in his name. These facts were not denied by plaintiff.

In respect of Plot B the defendant stated that she acquired the plot from the Mills sisters; that she sold it to Mrs Vanderpuye for £70 but in 1961 when she was out of Ghana, the plaintiff, on her behalf, refunded the £70 to the mother of Mrs Vanderpuye who was no longer interested in the plot. That the plot reverted to her and denied plaintiff’s claim as to ownership.

Upon these facts the plaintiff sued for a declaration of title to Plot A and Plot B and the building thereon as well as other reliefs, and the defendant counterclaimed for title to both plots. The issues to be tried on the summons for directions were:

“i. Whether the plot referred to in the plaintiff’s statement of claim as Plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right or whether it was paid for by the defendant and is thus held by him prima facie as a trustee for the defendant.

ii. Whether the two-storey dwelling house erected on the said plot and numbered A299A/4 Laterbiokorshie, Accra was financed by the plaintiff or the defendant.

iii. Whether the refund of the price of the plot of land referred to as Plot B in the plaintiff’s statement of claim was made by the plaintiff or the defendant, to the vendor Mrs Adina A Vanderpuye.

iv. Whether or not plaintiff developed the smaller plot (Plot B) for his sole benefit or in pursuance of any family arrangement.

v. Whether or not the plaintiff is entitled to the claim endorsed on his writ herein.

vi. Whether or not the defendant is entitled to the claims specified in her counterclaim herein.

vii. Any other triable issue or issues arising out of the pleadings.”

The trial of the case started before Okai J at the High Court up to the close of plaintiff’s case and then it was transferred to Lutterodt J. Both parties agreed that the proceedings so far, be adopted and the hearing continued before Lutterodt J. After considering and evaluating the evidence she gave judgment for the plaintiff and declared him the owner of both plots A and B and granted other reliefs.

The defendant appealed to the Court of Appeal and that court affirmed the decision of the trial court in respect of Plot A , but gave judgment for defendant in respect of Plot B declaring her the owner thereof.

Plaintiff’s main ground of appeal is that the Court of Appeal erred in the decision in respect of Plot B when there was no evidence to support such findings. Other grounds regarding the issue of trespass were filed but I would not deal with them as I think my conclusion on the main ground would resolve these other matters. The defendant also cross appealed against the decision in respect of Plot A which affirmed the High Court decision declaring the plaintiff owner of that plot. Her grounds of appeal are:

“i. That the plaintiff failed to discharge the burden of proof in support of his claim.

ii That their Lordships erred in law and in fact by relying on the weakness of defendant’s case rather than the strength of plaintiff’s case in arriving at their decision.”

She sought a declaration that the decision of the trial judge as affirmed by the Court of Appeal, that the plaintiff is the owner of Plot A be reversed for a declaration that the defendant rather is the owner.

The plaintiff in his statement of case argued two preliminary issues namely that:

 “a. the defendant having lost twice, cannot cross appeal as of right in respect of Plot A except with leave of the Court of Appeal or the Supreme Court under PNDCL 191.

b. The defendant’s cross appeal is out of time as it was filed without having obtained extension of time, hence the cross appeal was incompetent and not properly before this court.”

The plaintiff’s argument that the defendant lost twice in this case cannot be right. The defendant lost in the High Court but her appeal was allowed in respect of Plot B and consequently the plaintiff also became a loser in the appeal albeit of part of the judgment. In these circumstances she cannot be said to have lost twice in a row and it is my view that PNDCL 191 is not applicable to her case.

The second objection is that defendant’s cross appeal was filed out of time, implying that rule 8 of CI 13 specifying time limits for filing of appeals applies also to cross appeals. This argument is without merit. The Supreme Court Rules 1970, CI 13 states:

“9 (1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these Rules shall, mutatis mutandis apply to a notice of a cross appeal.”

A party becomes a respondent in an appeal when the appellant files his appeal and when such a party is directly affected by the appeal. Until then he cannot be referred to as the respondent. Rule 9 of CI 13 gives the right to the respondent to file a cross appeal if desired and states in sub-rule (2) that rule 6 would then apply to the filing of the cross appeal. Rule 8 which deals with time limit for filing appeals was not made applicable, and since no time limit was provided for filing cross appeals, it is clearly reasonable to say that a cross appeal can be filed at any time after the filing of an appeal.

The plaintiff’s contention that defendant’s cross appeal is incompetent as having been filed out of time is therefore misconceived, and in my view her appeal is properly before us.

I will now proceed to deal with plaintiff’s appeal regarding Plot B. It is trite law that a person who claims land must discharge the burden of proving his title and the standard of proof is on a preponderance of credible evidence. What then was the evidence on record establishing plaintiff’s title? The plaintiff said in refunding the amount of £70 on behalf of his absent wife, he became the owner of Plot B. He had no title deeds and was not able to establish that Mrs Vanderpuye agreed to sell and did sell Plot B to him. In his own words he merely “refunded” £70 on behalf of his wife. This does not in law make him the owner of the land by purchase. Apart from his own arid evidence, he produced a building plan in his name and said he built an out-house on the plot. The defendant denies plaintiff’s claim of ownership and said that after the refund of the money the land reverted to her and the title deeds made between herself and Mrs Vanderpuye were returned to her. The Court of Appeal found thus:

“If Mrs Vanderpuye intended to sell the land to him she would have executed a deed in his favour, but in this case she did not, and from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad. The plaintiff therefore held Plot B, and whatever stands on it, in trust for defendant.”

I entirely endorse this finding except for the last line. On the evidence, title to Plot B never shifted to plaintiff and since defendant at all times remained the beneficial owner of it, plaintiff cannot be said to have held Plot B in trust for the defendant.

It was wrong for the Court of Appeal to add to their finding, that the “plaintiff held Plot B and the building thereon in trust for defendant”. A question of trust did not arise; the £70 was rather an advancement of husband to wife. To the extent I have indicated the Court of Appeal was right in the declaration that Plot B and the building thereon belonged to the defendant.

Plaintiff’s appeal against this finding therefore fails.

I will now consider the defendant’s cross appeal regarding Plot A. Her grounds are that:

“1. The plaintiff failed to discharge the burden of proof in support of his claim and,

2. Their Lordships erred in law and in fact by relying on the weakness of defendant’s case rather than on the plaintiff’s case, at arriving at their decision.”

I would like to state straightaway that I am convinced that these grounds are justified having regard to the evidence on record.

It is settled law that when the burden of proof is cast upon a plaintiff he must prove his case and win on the strength of the case presented, not on the weakness of the defendant’s case, as established by Kodilinye v Odu (1935) 2 WACA 336. In the case of Asare v Appau II (1984-86) 1 GLR 599, 603 it was held that:

 “The common run of land suits in our courts has as the plaintiff, a person who claims title to land, suing, as the defendant, a person in possession of the land. Such a defendant need not, and usually does not, seek any relief in the proceedings, being content with things as they are ... [In] that event the plaintiff must rely on the strength of his case, i.e. prove his title and not rely on the weakness of his opponent’s i.e. lack of title in the defendant; so that if the plaintiff failed to prove that he is entitled to have a declaration made of his title to the land, the action ought to be dismissed, leaving the defendant in possession of the land.”

In Duagbor v Akyea-Djamson [1984-86] 1 GLR 698, 702 Abban JA stated this principle quite succinctly thus:

“The plaintiff having sought a declaration of title to the land in dispute, could only succeed upon the strength of his case not on the weakness of the co-defendant’s case. It is true that the co-defendant also counter-claimed for a declaration of title but that is beside the point. For the co-defendant’s counter-claim could not in any way lighten the weight of the burden on the plaintiff to establish his title to the land by preponderance of admissible evidence. The defence having denied the plaintiff’s title and then counter-claimed for title, a burden was placed on the plaintiff to prove his title satisfactorily or else he must fail.”

Nkyi XI v Kumah [1959] GLR 28 was cited.

It was similarly held in the headnote in Banga v Djanie [1989-90] 1 GLR 510 that:

“The plaintiff in a claim for declaration of title to land should win on the strength of her own case which must not be propped up by weaknesses in the case of the defence. Since the plaintiff led no evidence of root of title, possession and user, she could not rely on acts which at best could only constitute the weaknesses of the defence. Kodilinye v Odu (1935) 2 WACA 336 applied.”

Per Francois JSC at pp 519-520:

“The principle [that the plaintiff should win on the strength of his case] has for several decades been the fulcrum for determination of ownership in land matters in our courts. In recent times a dangerous trend has been erupting of equating this burden with the normal burden in civil case, of measuring success by a balance of probabilities. In my view the requirements of a higher burden of proof in land matters cannot be whittled away by glosses on the principle. This quality of proof has sometimes even been equated with proof in criminal matter, ie “proof beyond reasonable doubt ... [S]uffice it to emphasise that a high measure of proof is necessary to sustain victory in a plaintiff seeking a declaration of title to land. It seems to me that the authorities require a plaintiff to lead positive evidence to merit victory, and not merely to rely on the shortcomings of a defendant in the discharge of this obligation.”

I entirely agree with the learned judge in the above dictum. In this case the issues to be tried according to the summons for directions are briefly, who purchased Plot A and paid for it, and whether Plot A was conveyed to the plaintiff in his own right or whether it was paid for by the defendant and is thus held by the plaintiff as trustee for the defendant.

The plaintiff did not call DW1 yet claimed he bought Plot A from her, therefore her evidence is relevant and important to the success of his case. DW1 however denied selling the land to the plaintiff but said she sold it to the defendant rather, and that the document on the plot was only prepared in the name of the plaintiff on the instruction of the defendant. DW1 was cross-examined at length no doubt in an attempt to discredit her but in my opinion her evidence on this issue was not shaken.

It appears to me that her vital evidence at once destroyed the plaintiff’s case. But quite surprisingly the trial judge who did not herself see or hear DW1 but relied on the record of her evidence, discredited her as a witness of truth and disbelieved her, giving judgment for the plaintiff. If a vendor of land to the plaintiff is not believed it is difficult to appreciate how he can be said to have proved his title. The main reason given by the trial judge for disbelieving DW1 is that since plaintiff wedded defendant under the Marriage Ordinance in 1951 it was a “a pure invention” for the DW1 to say that she was asked to prepare the document, exhibit A, in 1957 because, according to the defendant, the plaintiff “promised to wed and did wed her”. In 1951 plaintiff had already wedded defendant, and DW1 did not say that the promise to wed was made in 1957 therefore the finding of the trial judge that:

“the parties were wedded under the Ordinance as far back as 1951. Therefore how could the plaintiff, in the presence of the defendant, have used this promise of a wedding to enable him have things his way”

was not warranted by the evidence and was an unreasonable inference from facts.

Normally a finding of fact by a trial court will not be disturbed on appeal except in certain circumstances. In Nkansah v Adjebeng [1961] GLR 465 it was held:

“An appellate court is not entitled to set aside findings of fact by the trial court unless it could show from the evidence on the record that the findings made by the trial court are not warranted, or are not reasonable inferences to be drawn from the facts established by evidence.”

Also in Nkrumah v Ataa [1972] 2 GLR 13 it was held in holding (5) that:

 “An appellate court is not entitled to reverse findings of fact made by the trial judge unless those findings are not supported by the evidence. Similarly where the evaluation of the evidence depends upon credibility of witnesses, it is normally the trial court which saw and heard the witnesses which should decide which of them to believe. It is only where it is shown that the trial court in assessing the credibility of a witness, omitted to consider the evidence which discredits him that the appellate court will be bound to interfere.”

In this case the trial court did not see DW1 and we are in the same position as that court to consider her credibility from the evidence on record to see if the trial judge’s findings were erroneous. In any case the main issue for determination was whether the plaintiff purchased the land or whether it was the defendant who paid the purchase price and asked that plaintiff’s name be used in preparing the document, exhibit A. In other words was plaintiff merely holding it in trust for defendant?

The reason why the plaintiff’s name was used in the document is not a material issue for determination nor can it be misinterpreted the way it was done by the trial judge to discredit DW1. Her evidence clearly showed that the defendant was the beneficial owner of Plot A and that the plaintiff held the land in trust for his wife.

In the case of Mansah v Asamoah [1975] 1 GLR 225 it was held in holding (3) that:

 “Consequently an appellate court was not inhibited from disturbing the concurrent findings of the two lower courts and adjudicating the issues according to the evidence. The learned High Court judge and the district magistrate drew wrong legal inferences from facts which were either admitted or not in controversy. The appellate court was therefore in as good a position as the trial court to evaluate the evidence and form its own independent opinion while at the same time giving weight to the opinion of the inferior courts.”

It is my view that the trial judge as well as the Court of Appeal erred in rejecting the evidence of DW1 as not credible. I find that she was a witness of truth. Consequently it is my opinion that plaintiff failed to establish his claim of ownership of Plot A by purchase from DW1, Helena Ashia Mills.

As to the issue of who built the house on Plot A the defendant produced overwhelming evidence that she financed the project and procured builders etc. to build same. The trial judge’s finding “that it was the plaintiff who financed the building of the house because he was gainfully employed, but that defendant, even though she was a successful trader, had exaggerated the extent of her wealth and had failed to prove her bank balance” is a wrong and erroneous finding in law and against the weight of evidence on record.

The defendant claimed that she financed the project from her savings and the proceeds of the sale of her car, whereas plaintiff said he financed the project from his own resources and a loan from GCB which loan was shown to have been obtained in 1963 after the actual completion of the house.

On the issue of who financed the building on Plot A the plaintiff failed to discharge the burden of proof in support of his claim, instead, on the preponderance of evidence it is the defendant who financed and actually built the house. Furthermore no burden lay on her to prove her bank balance. The plaintiff is expected to win on the strength of his case not on the weakness of defendant’s case. On the evidence it is my opinion that plaintiff held Plot A in trust for the defendant.

The principle of law, as stated by Eyre CB in the case of Dyer v Dyer (1788) Cox Eq Cases 72 at 93 reported in [1775-1802] All ER 205 at 206 is that:

“The clear result of all cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold or leasehold, whether taken in the names of the purchasers and others jointly or in the names of others without that of the purchaser, whether in one name or several, and whether jointly or successively, results to the man who advances the purchase money.”

Green v Carlill (1877) 4 Ch D 882 is also authority that where a wife hands over property belonging to her husband, without any intention of making a gift of it to him, he is trustee of it for her. In Mercier v Mercier (1903) 2 Ch 98 the defendant-lady in 1883 married Colonel Mercier. They kept a joint bank account almost entirely composed of the wife’s income, and both husband and wife drew on this account. In 1891 they bought some land, which was paid for out of the joint account and was conveyed to the husband. He died intestate in 1901 and his heir-at-law claimed the land:

“Held, affirming the decision of the lower Court that Mrs Mercier had not made a gift of the purchase-money to her husband and that the land belonged to her.

Per Remor and Cozens-Hardy LJJ:

 “There is no distinction in principle between the presumption of a resulting trust in favour of the wife which arises when her income has been applied to a purchase in her husband’s name made out of her capital.”

A number of local authorities have applied this principle, namely, Quartey v Armar [1971] 2 GLR 231, Ussher v Darko [1977] 1 GLR 476, Harrison v Gray Jnr [1979] GLR 330.

In my view the findings of fact as to ownership of Plot A by the trial judge is not supported by the evidence on record nor did plaintiff succeed in discharging the burden of proof in support of his claim as required by law. The Court of Appeal stated at p 124 of the record that:

“The trial judge was therefore right in declaring the plaintiff owner of Plot A. Where a trial judge makes a finding of fact supported by the evidence on record, the appellate tribunal will not disturb it unless the judge took into consideration irrelevant matters. The said inconsistency on the part of the defendant provided sufficient evidence of which the trial judge arrived at her conclusion.” (Emphasis mine.)

Clearly the Court of Appeal erred in affirming the decision of trial court in respect of Plot A for the above quoted reason. It was wrong for both courts to rely on the weakness of defendant’s case rather than on the strength of plaintiff’s case to give him judgment.

For these reasons the appeal of plaintiff in respect of Plot B should be dismissed and defendant’s appeal in respect of Plot A be allowed. In the result both plots belong to the defendant together with the buildings thereon.

HAYFRON-BENJAMIN JSC. The facts revealed in this appeal constitute an epitome of a social phenomenon which has happened in the country for a long time. The scenario is familiar. A young man, usually a student or a small businessman, forms a liaison with an older working woman or business woman and he is enabled by her financial support to advance himself in life. The success of the student or young businessman reflects on the woman and improves the social standing of both of them. Seth and Dinah Ogbarmey-Tetteh were cast in this mould. In their case the omens were good. On the evidence they were paternal relatives. Again, earlier in their association, the two celebrated an Ordinance marriage so that just before the present litigation broke out, Dinah’s solicitors in reply to a letter written by Seth’s solicitors about the ownership of the house in dispute, No A299/4, Laterbiokorshie, Accra were able, on her instructions, to write concerning the marriage that Dinah “in an erroneous belief that marriages are made in heaven and are for eternity, without seeking legal advice, had their plots conveyed to her husband (Seth)”.

This letter was written and dated 5 February 1974. The claims to the houses in dispute were not the only surprises which befell Dinah. For, in evidence, before Okai J on 6 February 1986, Seth was able to depose under oath that Dinah “came back to Ghana in February 1974. She came to learn that the marriage had been dissolved”. In her absence in London, Seth had obtained a divorce from Dinah without Dinah’s knowledge. The battle lines were drawn and Seth, on 19 June 1974, commenced the present action against Dinah.

In the present opinion, Seth will be referred to as the appellant and Dinah as the respondent. I have had the pleasure of reading the lead judgment and I am in full agreement with the evaluation of the evidence and authorities bearing on the evidence. I am also in full agreement with the conclusions in that judgment. I however wish to express myself briefly on the points raised in the statement of case of both parties and other matters connected therewith.

The judgment of the High Court was given in favour of the appellant on 12 April 1990. By that judgment, the appellant was adjudged absolute owner of two plots designated Plot A and Plot B. Being aggrieved and dissatisfied with the judgment aforesaid, the respondent appealed to the Court of Appeal. Their Lordships, in a unanimous judgment, gave Plot A to the appellant and Plot B to the respondent. This second judgment was delivered on 18 July 1991. There, the matter rested and it would appear that respondent would have been satisfied with the judgment of Their Lordships in the Court of Appeal granting her the smaller Plot B together with the outhouse which, on the evidence, straddled both plots A and B. How the respondent was going to assert title to the outhouse Their Lordships did not say. Be that as it may, on 17 October 1991, a day before the expiration of the date within which the appellant could exercise his undoubted right of appeal, in a design to upstage Shakespeare’s Shylock, the appellant lodged a notice of appeal to this court. In his notice of appeal, the appellant sought the following reliefs:

 “(1) That the decision of the trial judge that the appellant was the owner of Plot B together with the building thereon be restored.

(2) That the damages for trespass in the sum of ¢100,000 awarded by the trial judge to the appellant be restored.

 (3) That the costs incurred by the appellant in the Court of Appeal be awarded by your Lordships.

(4) That costs occasioned to the appellant in the appeal be awarded by your Lordships.”

Promptly and within seven days of the lodgement of the appellant’s appeal - that is 24 October 1991 - the respondent cross appealed. The respondent also sought the following reliefs:

“(i) That the decision of the trial judge as affirmed by the Court of Appeal that the plaintiff-respondent-appellant is the owner of Plot A be reversed.

 (ii) A declaration that the defendant-appellant is the owner of Plot A.”

Thus by the appeal and cross appeal the whole litigation which began on 19 June 1974 had been recommenced before us. Before us the appellant has raised two points of law against the respondent and contends:

“(i) The defendant having lost twice cannot cross appeal as of right in respect of Plot A except with the leave of the Court of Appeal or the Supreme Court - see PNDCL 191.

 (ii) The defendant’s cross appeal is out of time as it was filed without having obtained extension of time.”

Upon these two grounds of law, the appellant urges this court to dismiss the cross appeal “as incompetent and not properly before the court”.

With the greatest respect to counsel for the appellant, I am unable to accede to his prayer. The rule of this court governing cross-appeals may be stated as follows, rule 9 of CI 13:

 “(1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these rules shall, mutatis mutandis apply to a notice of a cross appeal.”

Rule 6 of CI 13 to which rule 9 refers deals with the form and content of a notice of appeal. The time within which an appeal may be lodged to this court is governed by rule 8 which is not referred to in rule 9. Rule 9(2) only says that the provisions of rule 6 shall apply mutatis mutandis to the notice of a cross appeal. In ordinary English all it means is that the provisions of the rule shall be adapted as nearly as possible to suit the purposes for which the cross appeal is lodged. Then again rule 9(1) speaks of a “respondent”. By rule 70 of CI 13, a “respondent” is defined as:

 “(a) in a civil appeal any party directly affected by the appeal other than the appellant.”

In his notice of appeal, the appellant states quite clearly that the person directly affected by his appeal is Dinah Ogbarmey-Tetteh, the respondent. These two points of law fail and they are dismissed as wholly unmeritorious.

I have already expressed my concurrence with the conclusions arrived at in the lead judgment. The appellant’s appeal with respect to Plot B must fail. In appellant’s own evidence-in-chief, he said:

“The vendors gave the plot to the defendant. The defendant sold the plot to one Mrs Adina Vanderpuye for £70. Mrs Vanderpuye left for America. She is residing in New York. On my return from UK in early 1961, the mother of Mrs Vanderpuye came and said she wanted a refund of the money she gave to the defendant and that her daughter was no longer interested in that plot as he is residing abroad. At that time, the defendant was abroad. I refunded the amount of £70 and when defendant came back from UK I told her of the refund.”

The appellant contends and would like this court to believe that when he used the expression “refund” what he really meant was that he bought the plot. That argument to me sounds hollow. I do not think that if his assertion were true, it would take an extra act of bravery for a husband to tell his wife that he had bought the plot. Instead, he says he meekly told the respondent, his wife, that he had refunded the money. The plain truth of the matter is that the mother of Mrs Vanderpuye had no instructions to sell the property. In common, customary practice, when the purchaser does not any longer need the goods or property he returns the goods or property to the vendor and collects his money back - a refund. This accounts for the use of the expression “refund” by the mother of Mrs Vanderpuye and the appellant. It was obvious that the idea of a bargain and sale was not contemplated. The appellant’s first ground of appeal therefore fails and with it the other grounds of appeal contained in his notice of appeal.

The matters raised in the cross appeal have been dealt with comprehensively in the lead and other opinions offered by my learned and respected sister and brothers. It has been suggested that this court should be careful not to disturb the findings of fact made by the trial judge. The argument is based primarily on section 12 of the Evidence Decree which requires that proof must be by a preponderance of probabilities. That section defines “preponderance of probabilities” as denoting “a certain degree of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. In my view such a test presupposes that the trier of fact has seen and heard all the witnesses and observed their demeanour. For it must be admitted that even though demeanour per se is an uncertain guide, its advantage arises where the scales may be evenly balanced and it becomes necessary to tilt it in order that the ends of justice may be attained.

The situation is not so in this appeal. The learned High Court judge, the trier of fact, confessed thus:

 “The judgment therefore is based on the previous proceedings in the adopted proceedings, and the evidence of DW1 contained in exhibit 1 as well as the evidence before me.”

Section 12 of the Evidence Decree will not in the circumstances apply to the matters raised in the appeal and this court, and indeed the Court of Appeal, is entitled to review the evidence and come to its own conclusions as are warranted by law.

In the statement of claim filed on 19 June 1974, the appellant, then plaintiff, pleaded in part as follows:

“3. By the first week in August 1957, the plaintiff had paid the said purchase money amounting to £128 in full and by a conveyance dated the 8th day of August 1957, the said piece of land situate at Laterbiokorshie aforesaid comprising an approximate area of 0.315 of an acre and more particularly described in the said conveyance was conveyed by the said Emma Mills to the plaintiff absolutely and forever.

4. The plaintiff subsequently had the said conveyance stamped and registered at the deeds registry (as the Lands Registry was then known) as DR No 2212/1957. The said piece of land is hereafter referred to as Plot A.”

The respondent in her statement of defence filed on 18 October 1974 responded to the appellant’s averments in the following manner:

“2. Save that the plaintiff paid no money whatever paras 3 and 4 of the statement of claim are admitted. The purchase money for the land comprised in the conveyance DR 2212/1951 was paid exclusively by the defendant from her own resources. The defendant accordingly contends that the said conveyance is held by the plaintiff upon a resulting trust for the defendant absolutely and beneficially.”

The respondent counterclaimed for the Plot A. At the close of pleading, the summons for directions disclosed that one of the issues set down for trial was:

 “(1) Whether the plot referred to in the plaintiff’s statement of claim as Plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right; or whether it was paid for by the defendant and is thus held by the plaintiff prima facie as a trustee for the defendant.”

The appellant in his pleading claimed he bought Plot A from Emma Mills. The respondent in evidence said she bought the same property from the sisters Emma and Helena Mills. The conveyance referred to in paragraph 4 of his statement of claim and exhibited in the proceedings shows that his vendors were Emma and Helena Mills. Yet again the respondent in her pleading contended that even if the conveyance were drawn in favour of the appellant, yet the appellant merely held the plot in trust for her. In the light of these averments and the evidence on record the burden lay squarely on the appellant, notwithstanding that the respondent was counterclaiming for the same property, to produce evidence to satisfy the court that his assertions are probably true. Thus section 11 of the Evidence Decree (1975) NRCD 323 states as follows:

“11(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

In this appeal it was not enough that the appellant should plead the origin of his title without more if there was evidence available which should confirm his claim. In Majolagbe v Larbi [1959] GLR 190 at page 192 Ollenu J (as he then was) stated:

 “Proof in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.”

In this appeal upon the issue joined the evidence of the vendors was crucial to the resolution of the issue in favour of one of the parties. The appellant failed to call them. But the respondent called Madam Helena Mills who ascribed a reason why she otherwise charged the respondent for the plots. She said:

 “I should have made a gift of it to defendant since I knew her family very well but in those days we were engaged in litigation hence we needed money. The defendant took a period up to 1951 to pay the total of £128.”

In my respectful opinion, Madam Helena Mills was not shaken under cross-examination. Concerning the execution of the document exhibit A this is what the witness had to say:

 “Q.   When did you give the first document to defendant?

A.    I made the first document in the name of the plaintiff because he came with defendant and defendant said: I should use the plaintiff’s name in the document. This was in or about 1957.

Q.     Did you say the defendant made the final payment to you in 1951?

A.     The defendant started paying for it in 1949 and completed paying in 1957.

Q.     Look at exhibit A. This is the document you executed in favour of the plaintiff?

A.     That is correct. I did it on the instruction of defendant because plaintiff had promised to marry and wed defendant.

Q.     By exhibit A you granted the land in dispute to the plaintiff?

A.     That is not correct. The defendant was present and it was because defendant wished it done that way because plaintiff had promised to wed defendant.”

Strangely though, the appellant was not concerned to answer the respondent’s cross appeal. The appellant was more concerned with the objections in point of law in the certain belief that these points would dispose of the cross appeal in his favour. I am of the opinion that the appellant erred; for this piece of evidence completely destroyed the appellant’s claim to Plot A. Madam Helena Mills was certain that Plot A was bought and paid for between 1949 and 1951. The appellant agrees that Plot A was acquired in those years. Madam Mills said it was the respondent who paid for Plot A by instalments and that but for her need for money for litigation she would have given the plot to the respondent free of charge. The appellant’s only response to this averment in cross-examination was that what Madam Mills was saying was not true. But the appellant’s version of this part of his case was not put to the witness.

I accept the version of Madam Helena Mills as to how it came about that the document exhibit A was executed with the appellant as the grantee or assignee. The evidence is clear. Madam Helena Mills was the undoubted owner of the land and she had sold the land between 1949 and 1951. There was no question at that time of any document being prepared with respect to the sale of land. The document, exhibit A, bears the date the 8th day of August 1957. The appellant and the respondent were married in 1951. Therefore the appellant submits that if Madam Mills says that she executed the document in favour of the appellant because the respondent told her that she had promised to marry her and wed her, then Madam Mills’s story cannot be correct.

I think the appellant has misread the evidence. In the light of Madam Mills’s own familiarity with the respondent she could not fail knowing that the respondent had contracted an ordinance marriage with the appellant in 1951. It was, in my view, in 1957 that the respondent, wanting to erect a structure on the land, would need the title deeds. Thus the request of the respondent for Madam Mills to use the name of appellant as purchaser of the title was because the appellant had promised to marry and wed the defendant. And then again the appellant “had promised to wed defendant”. I think the grammar is very important. If indeed in 1957 the appellant was only about to marry and wed the respondent, it would have been foolish for Madam Mills to use expressions which suggested that the marriage and wedding had already taken place. In those circumstances the evidence of Madam Helena Mills, which was not in any way shaken in respect of the sale of Plot A, satisfies me that the respondent was the real owner of Plot A. In my view when rival parties claim property as having been granted to each by the same grantor the evidence of the grantor in favour of one of the parties, unless destroyed by the other party, should incline a court to believe the case for the party in whose favour the grantor gives the evidence. Clearly the evidence adduced with respect to the sale of Plot A demonstrates that the appellant held the said Plot A in trust for the respondent.

But that does not end the matter. The appellant claimed that he built the house on Plot A. However, the evidence which he led does not satisfy me that in fact he did so. The evidence of his witnesses was not of a quality as would incline any reasonable person, or indeed a court to the conclusion that the matters to which they deposed were solely referable to the construction of the house. The appellant contended that he raised a loan in 1963 from the Ghana Commercial Bank to put up the building on Plot A. But the evidence shows that in 1963, the building had been completed and a certificate of habitation had been issued with respect to it. The appellant’s evidence was demonstrably untrue. I believe that the respondent financed the building on Plot A. In exhibit A which was the letter dated 5 February 1974, the respondent’s solicitors wrote to the appellant’s solicitors in the following words:

“Sometime thereafter she engaged contractors to erect an edifice wherein they may enjoy in bliss their conubium. Your client then had neither the desire nor the means to put up a building, but it is admitted that when the building was almost complete, inspired by the zeal and tenacity with which his wife had tackled the project, he offered his mite, albeit not a widow’s, to assist in completing the building.”

In my respectful opinion, this statement from the solicitor’s letter, reflected the truth about the manner in which the building on Plot A was financed and constructed.

In the result, the cross appeal succeeds. There will be judgment dismissing the appellant’s appeal and allowing the respondent’s cross appeal.

Appeal dismissed. Cross appeal allowed.