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JUDGMENT
OWUSU-ANSAH, JA:
This is an appeal from
the judgment of the Circuit Court, Accra, dated the 20th
March, 2002, in respect of House No. 29 Block 6,
Korle-Gono, Accra.
The issue in this
appeal appears to be quite simply whether or not there
was a valid gift from the 2nd Plaintiff’s husband (i.e.
1st Plaintiff) to the husband of the Defendant.
On the 30th August
1999, the Plaintiffs in this case issued a Writ of
Summons against the Defendant herein, claiming:—
(a) A Declaration of
title to House No. 29 Block 6 Korle-Gono, Accra,
(b) Recovery of
Possession, and
(c) General damages.
The facts of the case
are that the 1st Plaintiff Paul Adomako ( now deceased)
jointly acquired the house in dispute with his wife the
2nd Plaintiff over a decade ago.
In the course of time
the 1st Plaintiff was alleged to have “given “ his 50%
share of the house to the Defendant’s late husband.
However,
notwithstanding this alleged ‘gift’ the Defendant’s late
husband, apparently at the request of the Plaintiff,
duly registered the said property at the Lands Title
Registry in the joint names of the Plaintiffs herein.
On the death of the
Defendant’s husband, all efforts to eject the
Defendant/Appellant were resisted by her with the stout
defence that since 50% of the property was given to her
late husband as a gift she was entitled to stay there
lawfully. It is not clear how the house was to be shared
out.
On the 20th March the
learned Circuit Judge gave judgment in favour of the
Plaintiff for all the reliefs sought or endorsed in the
Writ of Summons; and awarded ¢10 million general damages
against the Defendant, together with costs of ¢5
million, “taking into account that the Plaintiff had to
travel all the way from Canada to prosecute this case”.
It is against this
judgment that the Defendant/Appellant has appealed to
this Court on the major ground that “ the judgment was
against the weight of the evidence”.
However, in his written
submission Counsel for the Defendant/Appellant sought to
argue the first of a number of additional grounds of
Appeal filed subsequently namely, that:—
“ The learned Circuit
Judge erred in law when he held that the Defendant
relied heavily on customary gift when in fact the
Defendant pleaded and relied on a Deed of gift inter
vivos”.
The Plaintiffs at the
very inception of this suit were divorced and the 1st
Plaintiff died during the pendency of the suit-after
giving a Power of Attorney to the 2nd Plaintiff to
prosecute the claim.
In reviewing the
evidence, the learned Judge observed that the
Defendant/Appellant was relying on a customary gift made
to her late husband by the 1st Plaintiff to the
Defendant’s late husband.
It was submitted on
behalf of the Defendant/Appellant that the Defendant
never relied on customary gift as stated in the judgment
or at all.
Nor was the issue of
customary gift ever raised in the pleadings, or referred
to as part of the Defendant/Appellant’s case.
Indeed, the issues
agreed for trial at the hearing of the Summons for
Directions stage were:—
(a) Whether or not the
property in issue is jointly owned by the Plaintiffs;
(b) Whether or not the
first Plaintiff validly gave 50% share in the property
to the Defendant’s late husband.
(c) Whether or not the
Defendant’s late husband subsequently assisted the
Plaintiff in registering the property in the name of the
Plaintiffs at the Land Title Registry.
(d) Any other issues
raised by the Pleadings.
Ground 2 of the appeal
states:—
“The learned Circuit
Court Judge erred in law when he held that the Defendant
failed to specify the essential ingredients of a valid
customary gift without the learned judge himself stating
the said constituent elements of a customary gift”.
This ground can
conveniently be taken with Ground 1.
I accept learned
Counsel’s submission that customary gift was not an
issue for determination at the trial. In any event, it
is trite law that one of the most important ingredients
or a customary gift is “ASEDA” without which no
customary gift as a rule, can be complete. Equally
important are “publicity” and acceptance, and placing
the donee in possession. (Ackun vs. Yanney [1962] 1 GLR
464.
In this case it is
simply an exercise in futility to look for the
constituent elements of a customary gift, since it does
not form the basis of the case for either party. I think
the least said about this aspect of the matter the
better. I have microscopically examined the evidence as
a whole. I find that there is not a shred of evidence in
support of the learned Judge’s view that the Defendant
“relied heavily or lightly on customary gift”.
Since the Defendant
never sought to rely on customary gift that observation
by the learned Judge is misleading, as it is irrelevant.
It does not help the Court in any way in coming to any
conclusions on the matter.
I share the learned
Judge’s conclusions and the judgment in favour of the
Plaintiff but for the different reasons given herein.
The appeal must be dismissed as the judgment is not
against the weight of the evidence, nor is customary law
the issue in the case.
In ground 3 the
Appellant argues that “The learned Circuit Judge erred
in law when he held that Exhibit 1, the Deed of Gift
inter vivos, and Exhibit 2 only constituted an intention
to make a gift and that nothing passed to the
Defendant.”
A test of
enforceability of promises which has, over the years,
become firmly established in common law countries, is
the doctrine of consideration. It excludes from
enforcement donative promises, that is promises to give
or to do something without some bargained exchange in
return. That is, a gratuitous promise not given in
exchange for another, not contained in a deed and not
one which induces detrimental reliance. In my view the
exclusion of donative promises from the realm of legal
enforceability makes good sense whether it is in writing
or not.
As already stated from
the evidence there is no indication whatever that the
appellant was relying on customary gift.
On the contrary, the
Defendant/Appellant was relying on a Deed of gift inter
vivos as evidenced by Exhibit 1.
The appellant contends
that “the 1st Plaintiff by a DEED OF GIFT gave his 50%
share in house No. 20 Block 6 Korle Gono, Accra, to the
Defendant’s late husband, and emphasised that a deed of
gift is irreversible, drawing a distinction between a
deed of Gift and customary gift.
The latter in certain
circumstances may be revoked but not the former. Counsel
refers to the definition of a “Deed” as stated in the
Concise Dictionary of law ‘Oxford University Press as
“ A written document
that is signed…”
I must confess I find
this definition too simplistic, as it would seem to
postulate that every signed written document is a deed!
With the greatest respect that cannot be a correct
statement of the law as I understand it.
Formerly a deed
comprised a written document signed by both parties with
a seal attached and which was then delivered to the
person who expected to acquire property there under.
A valid deed no longer
requires a seal or a technical special language, but
instead the document must be signed in the presence of a
witness who attests the signature and the document must
make it clear on its face that it is intended to be a
deed. In the instant case it was signed by the 1st
Plaintiff only.
It is true that in the
early law the obligation engendered by the affixing of a
seal was regarded as essentially conventional or
contractual. In the modern law the deed still plays its
part.
If an individual wishes
to bind himself by a gratuitous promise, the rule that
all simple contracts require to be supported by the
presence of consideration forbids him to implement his
intention otherwise than by deed.
If he complies with
this formality he will doubtless be made to pay damages
should he break his promise. But, let it be noted, he
will thus be bound, not because he has made a contract,
but because he has chosen to act within the limits of a
prescribed formula.
His liability is
removed from the normal notion of agreement. In fact it
has even been held in the cases of Fletcher v. Fletcher
in [1844]4 Have R. at 67, and Xenos vs. Wickham [1867]
LR 2 HL 296, that a deed may create a legal obligation
or duty in favour of a beneficiary who is unaware of its
existence.
One of the main
advantage in the Contracts by deed, as opposed to simple
contracts, (apart from the issue of consideration) is of
course the period of limitation (12 years in the case of
the former and 6 years in the case of the latter.)
In the ultimate
analysis I am less than satisfied that Exhibit 1 is a
“DEED” within the meaning of the law as I understand it.
It is therefore only a nudum pactum at best a futile
exercise. It has no legal effect (see the case of TSEDE
and others vrs. NUBUASA and another [1962] 1 GLR 338.
Contracts that are to
be valid despite lack of consideration, in other words,
exceptions to the requirement of consideration in the
formation of a valid contract, have been spelt out in
section 8(1) and (2) of the Contracts Act, 1960 (Act 25)
i.e. a promise to keep an offer open and a promise to
waive payment of a debt. This ground of appeal also
fails for the reasons given.
Grounds 4 and 5 were
argued together.
That is to say that the
learned Circuit Court Judge erred in law when he held
that:
“The Plaintiff had
fulfilled her obligation under NRCD 323
Evidence Decree 1975
without referring to the particular section or Sections
of NRCD 323”.
In my view this can
only mean that the learned Circuit Court Judge was
satisfied on the balance of probabilities that the
Plaintiff had discharged the burden of proof (onus
probandi).
I agree that the rules
of evidence are mainly exclusionary, and not substantive
law upon which judgment can be given. I think it is
wrong, as a rule to refer in a judgment to a statute
without reference to the section relied upon in support
of a judgment or argument and the practice should be
discouraged. That notwithstanding, this omission alone,
cannot, without more, be sufficient justification for
setting aside any judgment that is otherwise good
enough.
On a careful perusal of
the evidence of both the Plaintiff/Respondent and the
Defendant/Appellant, however, certain questions suggest
themselves.
There is no dispute
that the house in question was purchased by the
Plaintiffs (then husband and wife) as their joint
property. That notwithstanding the 1st Plaintiff
purported to give his 50% share to the Defendant’s
husband.
The Defendant in her
statement of defence stated that she was on the premises
by virtue of a 50% share of the premises given to her
late husband by the 1st Plaintiff.
That being the case why
did her late husband go ahead to register the title deed
in the joint names of the Plaintiffs after the gift to
him. That I think is significant.
And in any case why the
subsequent surrender of the document of title to the
Plaintiffs?
To a question in
cross-examination of the Defendant, i.e. “you know that
your husband was only a caretaker staying in Canada?
Answer: That is
correct”.
And she went on to
admit that the Land Certificate was registered on behalf
of the Plaintiffs by her late husband.
There was some allusion
to fraud. It is a well-established principle that fraud
must not only be pleaded but it must be strictly proved.
I can find no such evidence on record, other than the
suggestion that the subsequent registration of the
property already gifted to the Defendant’s husband
amounted to fraud. For the above reasons also I would
dismiss the appeal.
The issue of the
Defendant’s capacity was also raised on the basis that
since on her own admission the Defendant was on the
premises on the authority of her late husband, she would
have no right to remain there after the death of her
husband.
It was contended that
assuming that the husband died intestate, his estate
would have devolved on his wives (if any) and children
as well as other family members, so that in the absence
of a vesting assent she cannot lay any claim to the
estate.
In my judgment a
distinction must be drawn between a situation in which a
person is sued as in this case, and another situation
where the person sues, ie. Takes the initiative.
For it will be wrong,
inequitable, unjust and oppressive to sue a person (the
Defendant in this case) and purport to stop or prevent
her from defending the suit merely because she has not
produced a vesting assent. If the Defendant had taken
the initiative by suing or even counter-claiming, her
capacity to do so could then be brought in issue. I
therefore find no merit in this argument, and I dismiss
it accordingly.
Another point raised is
the non-registration of Exhibit 1 and 2 upon which the
Defendant relies heavily in support of her claim. It is
my view that both Exhibits are seriously in breach of
the provisions of the Land Registry Act 1962 (Act 122)
Section 24(1), and as such could not operate to transfer
any legal interest in land to the Defendant’s late
husband.
Counsel for the
Defendant cites the case of Amuzu vs. Oklikah [1998]
(Supreme Court) in which the court held, inter alia,
that the document in such a case is not rendered null
and void or invalid. Its effectiveness at law is
deferred until or unless it is so registered.
But obviously their
lordships did not mean that its effectiveness would be
deferred in perpetuity. Thus in this case to the extent
that it has still not been registered it cannot operate
to confer title or other legal interest on the
Defendant.
Finally Ground 7
states: “The learned Circuit Court Judge erred in law
when he proceeded to give judgment for 2nd Plaintiff for
a declaration of title when the 1st Plaintiff died
during the pendency of the suit and without any
substitution being made. The 2nd Plaintiff in the
circumstances has no locus standi to proceed.”
It was submitted on
behalf of the appellant that the 1st Plaintiff having
died during the pendency of the suit he should have been
substituted, and 2nd Plaintiff alone could not prosecute
the case to an end.
The first question
that comes to mind is substituted by whom? It is not
disputed that the property belonged jointly to both
Plaintiff as husband and wife.
Moreover, it is obvious
that the action was commenced by both parties jointly as
Plaintiffs. In the course of time, the 1st Plaintiff was
apparently content to leave matters in the hands of the
2nd Plaintiff who pursued the case with vigour.
In my judgment where
two or more beneficial joint owners of property (as
opposed to tenants in common) commence legal action in
their joint names with a view to recovering the
beneficial ownership of the property for themselves
jointly, if one of them dies during the pendency of the
suit the surviving other or others may continue to
prosecute the action to a conclusion without prejudice
to the right of any other persons(s) who may have an
interest therein to assert, to apply to be joined as a
party to the suit. This is the best way to do
substantial justice and avoid unnecessary and fruitless
delay and expense.
As already indicated by
far the crux of the matter is whether the 1st Plaintiff
validly gave 50% share in the property to the
Defendant’s husband. This has been dealt with elsewhere,
but for the sake of emphasis let me reiterate that it is
the very legality of the purported gift that is being
challenged.
In view of the joint
ownership of the property one of the Plaintiffs could
not have alienated any part of the property without
reference to the other party. This is the result of the
principle of unity of interest. There are quite a number
of decided cases in support of this proposition,
although most of them are from foreign jurisdictions,
notably Britain. (See, for example, the cases of:
- Thames
Guaranty Ltd vs. Campbell [1984] 3 WLR. 109
- Leek and
Moorlands Building Society vs. Clerk [1952] 2 QB 788.
I hold therefore that
where, as in this case, property is owned jointly (as
opposed to tenancy in common) either party may alienate
his interest only with the knowledge and consent of, or
with concurrence and approval by, or in concert and
consultation with, the other joint owner for obvious
reasons. The reasons for acquiring joint property would
otherwise be defeated if we look at the history of the
concept of joint ownership in land law.
In the result,
considering the evidence as a whole and having regard to
the submissions by learned counsel on both sides I have
come to the conclusion that this appeal must fail and it
is dismissed accordingly.
P. K. OWUSU-ANSAH:
JUSTICE OF APPEAL
OWUSU, JA:
I agree.
R.C. OWUSU(MISS)
JUSTICE OF APPEAL
ADINYIRA, JA:
I also agree.
S.O. A. ADINYIRA (MRS.)
JUSTICE OF APPEAL
COUNSEL
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