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Upon obtaining the dissolution
of their marriage in London, the
defendant claimed the disputed
property and sought to eject the
plaintiff there from. The
plaintiff instituted an action
in the circuit court, claiming
that he purchased the property
in the defendant’s name. He
therefore claimed for a
declaration that he was the
beneficial owner of the disputed
house, an order for transfer of
the title in the house to him
and perpetual injunction to
restrain the defendant from
dealing with the said house. The
defendant on the other hand also
claimed the property as
self-acquired.
The
vendor testified in favour of
the plaintiff.
In his testimony the plaintiff
explained that he bought the
property in the defendant’s name
because of the hazardous nature
of his work. The conveyance to
the defendant, he explained
further would avoid his family
ejecting the defendant and the
children upon his death, he
being an Ashanti and the
defendant being a Mosi. The
trial judge gave judgment for
the plaintiff. There was
evidence on record that the
plaintiff continued to have
control over this property and
constructed extensions to it.
On her appeal to the Court of
Appeal the defendant complained
that the trial judge erred in
holding that the beneficial
interest in the disputed
property belonged to the
plaintiff.
Held:
on the facts the trial judge’s
finding was satisfactory. Since
the defendant did not plead and
claim the property as an
advancement but clung to her
claim that the property was
self-acquired she could not
claim upon the presumption of
advancement. A presumption of
advancement arose where a
husband supplied the purchase
money and the conveyance was
taken in the name of his wife.
The plaintiff’s claim postulated
an advancement, which if not
rebutted would entitle the
defendant to the house. There
was sufficient evidence on
record to rebut the presumption.
Moate v Moate [1948] 2
All ER 486, Grey v Grey
(1677) 2 Swans 594, Shephard
v Cartwright [1955] AC 431
referred to.
Cases referred to:
Condrin, Re, Colohan v Condrin
[1914] 1 IR 89, Digest (Repl)
569.
Grey (Lord) v Grey (Lady)
(1677) 2 Swans 594, (1677) 1 Cas
in Ch 296, Cas tem Finch
338, 25 Digest (Repl) 558.
Kingdon v Bridges
(1688) 2 Vern 67, 27(2) Digest
(Reissue) 774.
Moate v Moate
[1948] 2 All ER 486, 92 SJ 484,
25 Digest (Repl) 375.
Shephard v Cartwright
[1955] AC 431, [1954] 3 WLR 967,
[1954] 3 All ER 659, 98 SJ 868,
HL.
APPEAL from the decision of the
circuit court to the Court of
Appeal.
James Ahenkorah
for the appellant.
Aidoo
(with him Akpokavi) for
the respondent.
AMPIAH JA.
The plaintiff and the defendant
were married customarily in
1959. In 1973, they converted
their said marriage into an
Ordinance marriage. Both are
Ghanaians. They lived in Accra.
After the 1973 marriage, the
plaintiff left for London where
he was joined in 1974 by the
defendant. There were eight
issues of the marriage five of
whom are still living. According
to the plaintiff, in 1966 he
purchased in the name of the
defendant, house No V49, C4
Tema, then a rental unit from
one Larbi. The plaintiff came
down from London in 1980. In
1987, or thereabouts, the
defendant sought and obtained
dissolution of their marriage in
London. She also obtained an
order from the Edmonton County
Court, transferring their
matrimonial house at 57 North
Grove, Tottenham, London to her.
She then sought to eject the
plaintiff from house No V49, C4
Tema, claiming that it belonged
to her. Wherefore the plaintiff
claimed at the Circuit Court,
Tema for:
“(a) declaration that the
plaintiff is beneficial owner of
house numbered V 49 C4 Tema;
(b) an order compelling
defendant to cause a transfer of
the said house into the name of
the plaintiff;
(c) an order of perpetual
injunction restraining
defendant, her agents or
servants etc. from in any way
dealing with the said house
against plaintiff’s interest.”
As stated before, the defendant
denied the plaintiff’s claim and
said the house was acquired by
her personally. On 21 December
1990, the learned trial judge
gave judgment for the plaintiff
and restrained the defendant
from in anyway interfering with
the property in dispute. The
defendant has appealed against
this decision.
The defendant originally claimed
that “the judgment was against
the weight of evidence.” On 10
March 1992 however, she filed a
further ground of appeal
alleging that “the manner in
which the learned circuit judge
handled the issue of beneficial
interest in the disputed house
was so unsatisfactory that it
misled her to arrive at the
wrong conclusion that the
beneficial interest belonged to
the plaintiff instead of the
defendant.” Many issues were set
down for trial but the real
issues which arose on the
pleadings and evidence for
determination, in my opinion,
were:
1. Who purchased the house in
dispute? and
2. Whether there was a
presumption of advancement in
favour of the defendant.
On these issues the learned
trial judge found in favour of
the plaintiff. She found that it
was the plaintiff who purchased
the house from
Larbi, PW1, as a rental unit and
asked that it be registered in
the name of his wife, the
defendant. Both the plaintiff
and the defendant claimed to
have bought the interest of one
PW1 in the property which then
belonged to the Tema Development
Corporation (TDC). PW1 gave
evidence in favour of the
plaintiff. The preponderance of
the evidence on record supported
the claim by the plaintiff.
Counsel for the defendant
graciously conceded that the
evidence weighed heavily in
favour of the plaintiff. I am
satisfied with this finding.
The defendant herself did not
accept that there was any
advancement to her of this
property. In fact she clung
resolutely to her claim that she
had purchased the house herself.
She did not plead any such
advancement and she called no
witnesses in aid of such claim.
She thus disabled herself from
leading evidence and taking
advantage of the presumption of
advancement.
The legal position is that where
a husband supplies the purchase
money and the conveyance is
taken in the name of the wife, a
presumption of advancement
arises. See Moate v Moate
[1948] 2 All ER 486; and, if the
conveyance is taken in the name
of both the husband and his
wife, the wife is still entitled
to a half share. See Kindon v
Bridges (1688) 2 Vern 67,
Re Condrin [1914] IR
89.
Even though the defendant did
not plead an advancement to her
of this house, the plaintiff’s
claim postulated a presumption
of advancement which if not
rebutted would give the
defendant legal title in the
house. Fortunately, by the
nature of the defence, the only
evidence which the judge could
rely on for a rebuttal of this
presumption was contained in the
evidence of the plaintiff. The
plaintiff’s evidence was that:
“House No V49 was bought by me
when I was working with the
Black Star Line from one
Lawrence Larbi. I bought this
house in 1967. I purchased the
house in my wife’s name. There
were a lot of accidents in Black
Star Line and we have been
dying, drowning etc. So I
thought if I died this way my
wife and children would suffer
hence I transferred the house
into my wife’s name so that in
case I die then the house
belongs to my children.”
He testified further:
“I am an Ashanti. My ex-wife is
a Mosi. I thought that my
children were Northerners and if
I die like I said my family
might come and eject my children
and wife from the house hence I
did it that way - put my wife’s
name on the document. There were
two rooms. I decided to make
extension in 1980 when I
returned.”
The evidence overwhelmingly
shows, despite minor
discrepancies, that at the time
this purchase was made the
plaintiff had embarked on a
hazardous business. It is true
that later he changed his work
for a safer one. His evidence
was amply supported by PW1 who
denied selling the house to the
defendant. The intention of the
plaintiff was also corroborated
by the evidence of PW2 who
testified among other thing as
follows:
“Oppong had many of his relative
in town whom he said he had been
taking care of. So when he
bought V49 he told me that he
was going to sea and may or may
not return due to what has been
happening to others so he would
like to give the house to his
wife for the upkeep of his
children.”
The plaintiff pleaded that the
defendant came from the North.
In answer to this the defendant
only said:
“The defendant, however denies
that she is from the North. The
defendant says she does not even
know the North.”
The plaintiff reiterated this
averment in his evidence by
saying that the defendant is a
Mosi. The defendant could not
tell the court positively, where
she comes from in Ghana.
Significantly she has a Northern
name in her maiden name namely “Adishatu.”
This would not make her a
Notherner by all means but it is
probable. The evidence would to
some extent support the
intention of the plaintiff in
putting the house in the name of
the defendant. There is also
evidence that the plaintiff had
to relinquish his interest in
another house to a relative in
order to take possession of this
house.
The operation of the presumption
is, as was pointed out in
Grey v Grey (1677) 2 Swans
594, evidential, and since the
presumption is rebuttable, it
can be rebutted by evidence of
the real purchaser’s actual
intention. The best evidence is
of course a declaration by the
person who supplied the purchase
money at the time of the
purchase. Subsequent
declarations cannot rebut the
intention to advance if it
really was present at the time
of the purchase. In Shephard
v Cartwright [1955] AC 431,
the House of Lords held that:
“The acts and declarations of
the parties before or at or
immediately after the purchase
constituting part of the same
transaction, were admissible in
evidence for or against the
party who did the act or made
the declaration.”
The plaintiff continued to have
control over this property and
to construct extensions to it.
In the absence of any evidence
in support of the advancement,
the plaintiff’s evidence was
enough to establish his
intention. The presumption of
advancement was therefore
satisfactorily rebutted. The
learned trial judge was
therefore right in accepting the
plaintiff’s claim. I have no
justification to disturb the
judgment. I would accordingly
dismiss the appeal
ADJABENG JA.
I agree.
FORSTER JA.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner
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