HIGH COURT, ACCRA
DATE: 20 JULY 1971
HAYFRON-BENJAMIN J
CASES REFERRED TO
(1) Pettitt v. Pettitt [1970] A.C. 777; [1969] 2 W.L.R. 966; [1969] 2 All E.R. 385; 113 S.J 344, H.L.
(2) Gissing v. Gissing [1971] A.C. 886; [1970] 3 W.L.R. 255; [1970] 2 All E.R. 780; 114 S.J. 550, H.L.; reversing [1969] 2 Ch. 85; [1969] 2 W.L.R. 525; 113 S.J. 187; [1969] 1 All E.R. 1043, C.A.
(3) Smith v. Baker [1970] 1 W.L.R. 1160; [1970] 2 All E.R. 826, C.A.
NATURE OF PROCEEDINGS
ACTION on a counterclaim by the defendant that the matrimonial home was jointly acquired as the permanent home of the parties. The facts are fully set out in the judgment.
COUNSEL
E. N. Moore for the plaintiff.
Annancy for the defendant.
JUDGMENT OF HAYFRON-BENJAMIN J
The marriage between the plaintiff and the defendant in this case was dissolved on 16 April 1969. During the proceedings for the dissolution of the marriage, the defendant lived at the matrimonial home and continued to do so till the decree nisi was made absolute. The home is numbered No. 131, North Labone Estate, Accra. On 30 May 1969 the plaintiff served a notice on the defendant to quit the premises on or before 31 October 1969 on the ground that he, the plaintiff, required the premises for his own occupation. The defendant did not leave the premises and the plaintiff therefore took out a writ of summons on 10 December 1969 claiming an order for the ejectment of the defendant from the said premises. The plaintiff is the General Manager of the Agricultural Development Bank and the defendant is an assistant commercial officer at the Ministry of Trade. The defendant denied in her statement of defence that the plaintiff needed the premises for his own occupation. She went on to say that the plaintiff is occupying an official bungalow and wanted to eject the defendant out of spite. She says that she has not refused or neglected to vacate the premises but is occupying the said matrimonial home together with four children of the marriage. She claims she is entitled to stay in the matrimonial home with the children so long as she does not re-marry. She states that the plaintiff wants vacant possession of the premises in order to rent them out to tenants and therefore in the circumstances the plaintiff ought to make alternative arrangements for her and the children of the marriage. The first limb of her defence therefore is that as between the plaintiff on one side and herself and the children of the marriage on the other, the latter are likely to suffer greater hardship than the former, and also that the allegation that the plaintiff requires the premises for his own use is false. [p.117] of [1974] 2 GLR 114-126 On 23 July 1970, the court presided over by Abban J. entered consent judgment in the following terms: “Per curiam: By consent of both counsel judgment is hereby entered against the defendant in respect of the plaintiff’s claim as endorsed on the writ of summons. The defendant is therefore ordered to leave the house in dispute on or before 15 August 1970. Costs will abide the result of the defendant’s counterclaim. The defendant’s claim is adjourned to 15 October 1970.” It is pertinent before I proceed to consider the counterclaim to remark that nowhere on the plaintiff’s writ or in his statement of claim did he claim to be the sole or exclusive owner of the premises. He asserted quite clearly in his statement of claim that the premises were the matrimonial home, and that he required them for his own personal occupation. The defendant also described the premises in her statement of defence as the matrimonial home. The consent judgment therefore cannot be construed as a declaration of the plaintiff’s exclusive title to the premises as the sole owner thereof. I am fortified in this view by the learned judge’s notes of the submissions of learned counsel. They read: “Moore for the plaintiff. Annancy for the defendant. Per Moore: I am asking for judgment against the defendant ordering her to leave as the defence is no defence in law. After this the counterclaim can then be gone into. Even in that case we, without prejudice, have offered the defendant N¢300.00. Per Annancy: I concede that the defence is no defence in law. But we say that the amount they are offering for our counterclaim is too small.” All that I understand Mr. Moore to be saying here is that where as in this case a husband on divorce claims to be entitled to live in the matrimonial home to the exclusion of his divorced wife, the defence of the wife: (a) that she and the children of the marriage would suffer greater hardship is no defence in law and (b) that the falsity of the husband’s claim that he needs the premises for his own use is irrelevant. I do not see anything in the concession of these two points by Annancy as implying an admission of the plaintiff’s title for exclusive ownership of the matrimonial home. I must further state that my silence on the soundness of Mr. Moore’s submission should not be read as a stamp of approval of its legal validity. I would however state that a legal proposition that would place a wife and the children of the marriage in a worse position than the husband’s other tenants is a proposition that must be examined with the greatest care. A consent judgment has, however, been based on it, and I restrict myself to its effect on the counterclaim. The second limb of the defendant’s defence and the basis of her counterclaim is stated in paragraphs (9) to (11) of her statement of defence and repeated in paragraph (12) of the counterclaim. She pleads: [p.118] of [1974] 2 GLR 114-126 “(9) The defendant says that plot No. 131, North Labone Estate, was originally allocated to her by the Ghana Housing Corporation and on the plaintiff’s advice she requested the said Ghana Housing Corporation to assign it to the plaintiff. (10) The defendant says that during the construction of the house while both the plaintiff and defendant were in the United Kingdom the defendant flew to Ghana at the request of the plaintiff to supervise the construction. The plaintiff has failed to reimburse the defendant for the cost of the flights. (11) The defendant says that she made several structural alterations to the building with the knowledge and consent of the plaintiff, at the cost of N¢1,430.00.” She then gave the particulars of the structural changes and their cost. She claims therefore a declaration that she is entitled to stay in the matrimonial home with the children of the marriage. In the alternative, the defendant claims from the plaintiff the sum of (a) N¢396.00 being the cost of the flight from London to Accra and (b) N¢1,430.00 being the cost of the alterations made to the building. Her claim for a declaration that she is entitled to stay in the matrimonial home with the children of the marriage was dropped in an amendment filed on 1 May 1971. In its place was substituted a claim for a declaration that she is a joint owner with the plaintiff as wife and husband of the property house No. 131,North Labone Estate because of her contribution in the acquisition and erection of the said house. The two claims that have to be considered and decided are therefore the claim for the declaration of joint ownership of the house or the claim for the costs of contribution or both. It is clear that the defendant cannot have both. If she is declared joint owner she cannot have a refund of her contribution. If on the other hand she fails in her claim for a declaration of joint ownership she may well succeed in her claim for the refund. The defence to this counterclaim is to be found in paragraphs (4) and (5) of the reply. Paragraph (4) states that: “Save that the defendant came to look for a tenant he denies that the defendant paid the fare to and from London. The plaintiff says that the alleged alterations were made without his knowledge and consent and is not liable to reimburse the defendant.” It is clear that the plaintiff does not deny the fact of alterations having been made by the defendant to the building: all he states in his reply is that they were made without his knowledge and consent. He, however, denies that the defendant paid for her fare from London to Accra, and also that the purpose of the journey was to supervise the building of the house. At the trial the defendant gave evidence and was cross-examined on it; she also called witnesses to testify on her behalf. The plaintiff however did not give any evidence. The court is now left with only the testimony of the defendant. [p.119] of [1974] 2 GLR 114-126 This testimony shows that prior to and at the time of the celebration of the marriage both the plaintiff and the defendant were employees of the Bank of Ghana. The defendant was a probationary officer and the plaintiff was a confirmed officer. The bank had a scheme whereby officers were granted building loans carrying an interest of two and a half per cent per annum and repayable over twenty years. Only confirmed officers were entitled to a loan. To obtain a loan an officer had to submit a written application, which was considered by the board of directors which usually met once a month. An officer obtained a sum which could be repaid with interest within the twenty year period with deductions from his salary which would not be more than the one-quarter of his salary. It usually took about a month to obtain the approval of the bank’s board of directors. The defendant’s father was a director of the bank at that time. It seems that an officer applicant must show to the satisfaction of the bank that he has a building plot. The bank’s loan seems to cover the whole of the cost of the building and no deposit is required or paid. Before the marriage, the defendant’s father had deposited £G600 or N¢1,200 with the Ghana Housing Corporation for a house. An allocation of house No. 131, North Labone Estate was made to the defendant. The procedure of the Housing Corporation was to take a deposit, and allocate a plot to the applicant before proceeding to build on the plot for the applicant. On marriage, the parties agreed that the plot of land should be transferred into the name of the plaintiff, to enable him to take advantage of the bank’s building loan scheme. To this end, the defendant wrote to the Housing Corporation withdrawing her application and asking that the plot be transferred into the name of her husband, the plaintiff. The plaintiff also wrote an application for the allocation of that plot of land to himself. The £G600 deposit was refunded to her. This was obviously because the bank’s loan would cover the whole of the purchase price of the house and there would be no need for a deposit. The plaintiff then applied for a loan of £G 4,400 which was approved, and granted to him. This sum was paid by the bank direct to the Ghana Housing Corporation. Before this was done, however, the plaintiff had left for the United Kingdom. The defendant followed soon afterwards. Building operations had not then begun. The defendant paid a visit to Ghana, according to her to supervise the construction of the house. The plaintiff, however, avers in his pleadings that the purpose of the visit to Ghana was to look for a tenant for the house. There is therefore no disputeover the fact that the journey was in respect of the house. I shall deal with the evidence on the payment of the airfare later on. When the defendant came to Ghana, the house was not fully completed. She purchased the gauze to keep out mosquitoes and other insects, and also installed expanded metal frames on the windows to make the house reasonably burglar-proof. She engaged the services of carpenters and supervised them to install these. She applied for and paid for the installation of electricity and water facilities. The Housing Corporation was responsible for the installation of the electricity and water facilities, but when the defendant asked that these should be done, she was told [p.120] of [1974] 2 GLR 114-126 that there was a long waiting list. She therefore had to have it installed and claimed a refund from the Housing Corporation. The bank also refunded to her the costs of the installation of the mosquito and burglar-proof frames. The bank found a tenant for the house. The defendant then left to rejoin her husband in the United Kingdom. The defendant came back to Ghana in 1964, and the plaintiff came back six months later. They cohabited at the house, i.e. No. 131, North Labone Estate. Whilst they were living together in the house, the defendant caused to be constructed a roofed verandah at the back of the house; and she paid for it. She tiled the walls of the kitchen and had built-in cabinets constructed in the walls of the kitchen. She also constructed a concrete and a metal gate. She paid for all these items. According to her uncontradicted evidence, when she came back from the United Kingdom she had quite a lot of money. Her father had been remitting her while she was in England in the hope that she would study for the legal profession. She did not do so because the plaintiff was against the idea. She had saved part of this money, and it was out of this fund that she paid for the additional structures made to the house. The plaintiff left the house in 1967, and commenced divorce proceedings which lasted for two years before the pronouncement of the decree dissolving the marriage. In the meantime she continued to stay in the house with the children of the marriage. In July 1968 she added a stronger form of expanded iron or steel frame to make the house safer against burglars; she put terrazzo on the kitchen floors, and tiled the bathroom walls. She says that she informed the plaintiff who provided the transport to convey the materials used in laying these tiles and the terrazzo floor. She paid for these alterations. The defendant had never during the subsistence of the marriage demanded a refund of any of these sums expended on the house. She, however, asked once for the refund of the airfare; but when the plaintiff did not pay because he had no money, the defendant did not press him further. I shall now examine the evidence on the payment of the airfare of the defendant from London to Accra. The evidence of the remittances of her father to her is uncontradicted. It is not clear whether at that time the bank had started making monthly deductions from the plaintiff’s salary towards the liquidation of the loan. There is no evidence that whilst in Ghana during the visit the plaintiff gave her anything for her maintenance. There is evidence that she paid for certain additional structures, to be added to the house, which sum was later refunded to her by the Housing Corporation and the bank. There is no evidence that she obtained these sums from the plaintiff or repaid them to the plaintiff. I am satisfied that the defendant had sufficient means to pay the air fare to Ghana, and I accept her evidence on this issue. The plaintiff has not refunded the same to her. It is true that the plaintiff said he had no money, but I am more inclined to the view that he considered the cost of the visit as part of the defendant’s contribution to a joint effort in the acquisition of a matrimonial home. I find as a fact that the defendant made contributions in cash, by paying for additions and alterations to the house, in kind, by [p.121] of [1974] 2 GLR 114-126 supervising the finishing of the house and in facilitating the acquisition of the plot on which the house was built. I do not think it is necessary to consider the advantageous position the plaintiff might have been placed in the bank especially in connection with the application for the loan, by the fact of marriage to the daughter of a director of the bank. The question for determination is whether these facts can alone support a declaration in favour of the defendant that she is a joint owner with the plaintiff as wife and husband of the property, house No. 131, North Labone Estate. This question has recently come up for exhaustive consideration in the House of Lords in England in the case of Pettitt v. Pettitt [1969] 2 All E.R. 385, H.L. and Gissing v. Gissing [1970] 2 All E.R. 780, H.L. and in the English Court of Appeal in the case of Smith v. Baker [1970] 2 All E.R. 826 C.A. The aspect of the law considered in these cases is of some considerable importance in England. In a matrilineal society like the Akans and other tribes in Ghana it is crucial. Its influence may well be seminal. If a wife by contributing to the acquisition of the matrimonial home or any other property becomes a joint owner with her husband, then by the application of the doctrine of survivorship she becomes the sole owner in the event of her husband predeceasing her. The rights which the family have hitherto claimed in the estate of the deceased’s husband would have to be re-examined accordingly in order to ascertain more carefully what forms part of that estate. In such circumstances the matrimonial home would not form part of the estate of the deceased. It is true that under customary law a wife who helps the husband to acquire property has no interest in the property. Sarbah in his Fanti Customary Laws (3rd ed.), p. 60 goes as far as to say that: “If his children by a free woman (Dihi) help him to acquire any property, they have no interest therein, and in the absence of any help from his own family, property so acquired is self-acquired or private. Whatever a wife helps her husband to acquire is the sole property of the husband.” Customary law did not encourage joint ownership between persons who were not connected by blood. Most instances of joint, multiple or communal ownership under customary law were based on blood relation between the joint or multiple owners, e.g. family property, clan property etc. There is, however, no positive rule of customary law which prohibited the creation of joint interests in property between persons not connected by blood. Where there is clear evidence that the parties intended to hold the property as joint tenants, the law would give effect to such an intention. In any event, in this case the parties were married under the Marriage Ordinance and the relations between each other are not governed exclusively by customary law. English legal concepts cannot be completely excluded in the determination of this case. English law relating to the rights of spouses in property acquired during or before coverture has been progressive. However, in this as in many developing aspects of the law, there is a difference of approach between those who may be described as the conservatives and the progressives. [p.122] of [1974] 2 GLR 114-126 In England the progressives are, as on other occasions, being led by Lord Denning M.R. His judgment in the Court of Appeal in Gissing v. Gissing [1969] 1 All E.R. 1043 was delivered before the decision of the House of Lords in the case of Pettitt v. Pettitt (supra). When the appeal in Gissing v. Gissing came up to the House of Lords, it was reversed partly on the ground that it conflicted with the views expressed by their Lordships in Pettitt v. Pettitt. Viscount Dilhorne in Gissing v. Gissing [1970] 2 All E.R. 780 at pp. 784-785, H.L. said that: “The Court of Appeal by a majority (Lord Denning M.R, Phillimore LJ; Edmund Davies LJ dissenting) held that the respondent was entitled to a half share in the house.Lord Denning M.R based his conclusion on the house being a ‘family asset’. After referring to Fribance v Fribance ([1957] 1 All E R 357), and Diplock LJ’s judgment in Ulrich v Ulrich and Felton ([1968] 1 All E R 67 at 72), he said: It comes to this: where a couple, by their joint efforts, get a house and furniture, intending it to be a continuing provision for them for their joint lives, it is the prima facie inference from their conduct that the house and furniture is a “family asset” in which each is entitled to an equal share. It matters not in whose name it stands: or who pays for what: or who goes out to work and who stays at home. If they both contribute to it by their joint efforts, the prima facie inference is that it belongs to them both equally: at any rate, when each makes a financial contribution which is substantial.’ Judgment in this case in the Court of Appeal was delivered before the opinions of your Lordships on Pettitt v Pettitt were given. In the light of the views expressed in Pettitt v Pettitt the passage cited above cannot in my opinion be regarded as good law.” However before this pronouncement by Viscount Dilhorne but after the decision of the House of Lords in Pettitt v Pettitt, Lord Denning M.R. had the opportunity to consider the law again in Smith v. Baker (supra). In that case as stated in the headnote at pp. 826-827: “Most of the £95 for the purchase of a plot of land was contributed by the wife but the plot was conveyed into the husband’s name. The parties then built a bungalow on the land. They did not employ a building contractor but did a great deal of the work themselves and the wife gave up her own ‘paid’ work to help with the building operations, helping her husband until the bungalow was built. The husband’s mother provided £2,500 to pay for labour and materials because of her affection for both parties, although the money was really intended for the husband’s benefit. On completion of the bungalow a loan of £1,000 was raised on it for the joint purposes of the husband and the wife, namely for a holiday and to pay off a car, the balance being put into a joint banking account. Subsequently, the wife divorced the husband. On a summons by the wife under s. 17 of [p.123] of [1974] 2 GLR 114-126 the Married Women’s Property Act 1882 the registrar determined that the bungalow belonged to the parties in equal shares. The husband appealed contending that the wife’s work on the bungalow had been simply an improvement to it, which should be disregarded and that the preponderant share belonged to the husband as the bungalow had been built with the money provided by his mother. [It was held that in] determining the rights of husband and wife in the matrimonial home the first question was whether the home had been acquired by their joint efforts to provide the future family home; in the present case the bungalow had been so acquired; the wife’s abandonment of her own work to work on the bungalow was an important contribution to the parties’ joint efforts and was not mere leisure activity accordingly, although the legal ownership was in the husband, the beneficial ownership was in the husband and wife jointly in equal shares in the absence of any other clear division.” Lord Denning M.R. said at p. 828 that: “The husband appeals to this court, saying that the registrar’s decision was wrong. Counsel for the husband says that the registrar’s decision would be perfectly right according to the law as it was understood before Pettitt v Pettitt in the House of Lords. But he says that that case has altered the law I do not think that Pettitt v Pettitt has altered the law to any material extent. In all these cases, the first question is: was this a matrimonial home acquired by their joint efforts, intended to be the home for them and the children (if they had any) for the future as far as they could see? … I would only add that the wife’s work here falls within Jansen v Jansen ([1965] 3 All ER 363), which, in my judgment, is still good law. It is said to be correct in Pettitt v. Pettitt ([1969] 2 All E R at 391, 416) by both Lord Reid and Lord Diplock. Lord Diplock said: ‘Jansen v Jansen falls into a different category. There it was not a case of leisure activities of the spouses. The husband in agreement with his wife had abandoned his prospects of paid employment in order to work on her property …’ So here, the wife had abandoned her work for 14 months in order to work on the house. It was an important contribution to their joint efforts. The beneficial ownership was in both jointly.”In the present case if I were to apply this progressive view of the law I would decide without the slightest hesitation that the defendant had established her case to joint ownership of the house. It is, however, essential to examine this case against the more traditional view of the law. This view takes as its starting point the proposition that there is not one law of property applicable where a dispute as to property is between spouses or former spouses and another law of property where the dispute is between others. It frowns upon the use of the expression ‘family assets’ as devoid of legal meaning and conducive to the error of supposing that the legal principles applicable to the determination of interests of spouses [p.124] of [1974] 2 GLR 114-126 in property are different from those of general application in determining claims by one person to a beneficial interest in property in which the legal estate is vested in another. According to this view any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based on the proposition that the person in whom the legal estate is vested holds it as trustee on trust to give effect to the beneficial interest of the claimant as cestui que trust. The legal principles applicable to the claim are those of the law of trusts and in particular in the kind of dispute between spouses that comes before the courts, the law relating to the creation and operation of resulting, implied or constructive trusts. Lord Diplock in Gissing v. Gissing [1970] 2 All E.R. 780 at p. 790, H.L. stated that: “A resulting, implied or constructive trust-and it is unnecessary for present purposes to distinguish between these three classes of trust-is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.” Where there was a common intention at the time of the acquisition of the house that the beneficial interest in it should be shared it would be a breach of faith by the spouse in whose name the legal estate was vested to fail to give effect to that intention and the other spouse will be held entitled to a share in the beneficial interest. The difficulty where the dispute is between former spouses is with proof of the existence of such an intention. But as Lord Diplock said at pp. 790-791, supra, that: “As in so many branches of English law in which legal rights and obligations depend on the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party. On the other hand, he is not bound by any inference which the other party draws as to his intention unless that inference is one which can reasonably be drawn from his words or conduct. It is in this sense that in the branch of English law relating to constructive, implied or resulting trusts effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are.” [p.125] of [1974] 2 GLR 114-126 What inference can be drawn from the fact that the plot on which the house stands was originally allotted to the defendant and that she withdrew her application in favour of the plaintiff? It was obviously to enable the plaintiff to take advantage of the bank’s housing scheme and secure a house for both the plaintiff and defendant and any future children they may have. The plaintiff was not called upon to pay any deposit. It is clear to me that if a deposit had been required the parties would have utilised the £G600 as the deposit to secure the house. From the factors attending the acquisition of the house and the conduct of the parties subsequent to the acquisition I think the inference is clear that they intended to own jointly the matrimonial home. I therefore make the declaration that the defendant is a joint owner of the house No. 131, North Labone Estate. In determining what share the defendant is entitled to, it is clear from the evidence that the defendant spent N¢1,430 on additions and alterations to the building; she spent N¢396 on her fare to supervise the completion of the house. She however contributed also indirectly in time and effort towards the acquisition of the house. It would be difficult to quantify this in monetary terms. I shall therefore adopt the method used by Widgery L.J. (as he then was) in Smith v. Baker [1970] 2 All E.R. 826 at p. 829, C.A. The learned lord justice said: “[W]hat share should be attributed to her? Should an attempt be made nicely to calculate what her share ought to be having regard to the amount that she put into the cost of the site and the value of her work subsequently, or ought one to approach the matter on the broader basis that the husband and wife are jointly entitled to the property, treating it not as being the subject of a mathematical division but as ‘ours’? In cases where their own understanding of the situation would be that the property is ‘ours’ then the conclusion ought to be that they have equal beneficial interests in it. It seems to me that any attempt in this case to follow counsel for the husband into a careful division of the supposed value of the house on a strict mathematical basis would be to fall into the error of which courts were sometimes guilty before Pettitt v. Pettitt ([1969] 2 All ER 385), namely to try to make what seems to be the fair agreement for the parties to make. The truth of the matter is that they would not have condescended beyond the fact that this was their joint property; and accordingly equal shares is the correct answer.” In the circumstances I further declare that the defendant in this case is entitled to an equal share in the house with the plaintiff. It is therefore not necessary for me to consider the additional or alternative claim. As regards costs, I cannot overlook the fact that the plaintiff in his claim stated that he wanted the matrimonial home for his own occupation. This no doubt had an influence on the consent judgment. This assertion has been proved to have been wholly wrong and a lie. I do not propose to deal with the consequence of this lie on the consent judgment which has obviously been obtained on a false suggestion. I shall only deprive the [p.126] of [1974] 2 GLR 114-126 plaintiff of his costs on that judgment. The defendant will have her costs on her counterclaim which I assess at N¢600 inclusive.
DECISION
Wife declared joint owner of matrimonial home with husband.
S. E. K.
