HIGH COURT, ACCRA
Date: 30 JULY 1973
ABBAN J
CASES REFERRED TO
(1) Asante v. University of Ghana [1972] 2 G.L.R. 86.
(2) Bennet v. Bennet (1879) 10 Ch. D. 474; 40 L.T.378; 27 W.R. 573.
(3) In re Pauling’s Settlement Trusts [1964] Ch.303; [1963] 3 W.L.R. 742; [1963] 3 All E.R. 1, C.A.
(4) Knight v. Biss [1954] N.Z.L.R. 55.
(5) Silver v. Silver [1958] 1 W.L.R.259; [1958] 1 All E.R. 523, C.A.
(6) Mercier v. Mercier [1903] 2 Ch. 98; 72 L.J. Ch. 511; 88 L.T. 516; 51 W.R. 611; 47 S.J. 492, C.A.
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(7) Fowkes v. Pascoe (1875) 10 Ch. App. 343; 44 L.J. Ch. 367; 32 L.T. 545; 23 W.R. 538.
(8) In re Howes; Howes v. Platt (1905) 21 T.L.R. 501.
(9) Vaughan v. Vaughan [1953] 1 Q.B. 762; [1953] 1 All E.R. 209; 97 S.J. 65, C.A.
(10) Foster v. Robinson [1951] 1 K.B. 149; [1950] 2 All E.R. 342; 66 T.L.R. (Pt.2) 120; 94 S.J. 474, C.A.
(11) Dillwyn v. Llewelyn (1862) 4 De G.F. & J. 517; 31 L.J Ch. 658; 6 L.T. 878; 8 jur. (N.S.) 1068; 10 W.R. 742 45 E.R. 1285; [1861-1873] All E.R. Rep. 384, C.A.
(12) Ramsden v. Dyson (1866) L.R. 1 H.L. 129; 12 Jur. (N.S.) 506; 14 W.R. 926.
(13) Plimmer v. Wellington Corporation (1884) 9 App. Cas. 699; 53 L.J.P.C. 105; 51 L.T. 475, P.C.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for a declaration that the defendant is a bare licensee of a piece of land legally vested in the plaintiff wherein the defendant also counterclaimed for inter alia an order compelling the plaintiff to convey to him legal title to the land.
COUNSEL
Cromwell Quist for the plaintiff.
Joe Reindorf for the defendant.
JUDGMENT OF ABBAN J
In this action the plaintiff is asking for a declaration that the defendant is a bare licensee of a piece of land situate and lying at North Christiansborg, Labadi Road, Accra, and on which has been built a hospital popularly known as the Salem Hospital.
The daughter of the plaintiff was married to the defendant under the Marriage Ordinance, Cap 127 (1951 Rev.), and even though they are no longer living together, the marriage is still subsisting. They separated in September 1969, after they had lived as man and wife for 26 years. The cause of the separation does not appear to be very relevant to the present case, except that the present dispute seemed to have arisen immediately after the said separation had taken place. For the sake of clarity, the wife of the defendant will be referred to as the daughter.
The plaintiff s case
The plaintiff, some time before 1959, owned the land in dispute. She alleged that in 1954, her daughter refused to live with the defendant because the defendant was having an affair with another woman and had even had a child with the said woman. The daughter is the only child of the plaintiff and the daughter has never had a child. The plaintiff and her late husband, Sir Emmanuel Quist, interceded in the dispute between the daughter and the defendant over the defendant’s affair with that woman. The defendant realised that he was in the wrong, and therefore apologised to the daughter, the plaintiff and the plaintiff s late husband. Apart from the apology, the defendant also denied being the father of the said child.
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After the matter had been settled, the daughter went back to live with the defendant. At that time, the defendant, who is a doctor by profession, was working at the Korle Bu Hospital.
The plaintiff said the defendant later went back on his word and claimed that, after all, he was the father of the said child. This greatly upset the plaintiff s daughter, and it was from that time that the plaintiff felt she had to take steps to provide the daughter with an independent means of income. The plaintiff thought this would, in a way, give the daughter some hope and comfort. The daughter is the only child of the plaintiff and naturally the plaintiff must have had special affection for her. Indeed, the plaintiff was at all material times anxious to give the daughter every comfort and the best that the plaintiff could afford. So, for natural love and affection, the land in dispute was gifted by the plaintiff to the daughter and a deed of gift, exhibit 1, dated 27 February 1959, was executed to evidence the said gift.
The daughter, some months after the execution of exhibit 1, mortgaged the land to the Barclays Bank to secure a loan granted to her husband (the defendant) by the said bank. With this loan, the defendant put up the Salem Hospital on the land. When the plaintiff got to know of what was going on on the land, she said she was not pleased. But, in order not to offend her daughter, she kept quiet and never interfered. She never went near the hospital until some time in 1964 when she went there to visit a patient. She further alleged that some time in September 1969, the defendant unreasonably forced the daughter out of the matrimonial home. The daughter had nowhere to go, and as a mother she was morally obliged to offer the daughter accommodation. The plaintiff had a house at Osu Russia, Accra, which was at that time fetching the plaintiff 0300.00 a month as rent.
The plaintiff gave this house to the daughter and the daughter has been living in that house from September 1969 up to date. Incidentally, the daughter who was the plaintiff s witness in this case, could not attend court to give her evidence as she had then been put in plaster, as a result of injuries she had sustained, and had been confined to bed. On the application of the plaintiff, the court had to move to this very house to take the daughter’s evidence.
The plaintiff is now a widow, and she contended that the rents from the house could have gone a long way to support her. But because of her daughter’s occupation of the said house, she has been losing financially and in consideration of this, she asked the daughter to reconvey the land in dispute to the plaintiff, and the daughter readily agreed to the request. Thus, the daughter on 12 May 1970, executed a deed of gift, exhibit A, revesting the legal title to the land in the plaintiff. The plaintiff, being now the legal owner, is claiming that, despite the hospital which has been built on the land, the defendant is a bare licensee of the land, which licence was granted subject to the defendant continuing to live happily with the daughter as man and wife; and since they are no longer cohabiting, the licence is automatically revoked.
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The daughter in her evidence confirmed that her mother, the plaintiff, is now the legal owner of the land. The daughter admitted, however, that it was she who permitted the defendant to build the hospital on the land. The daughter said when the defendant left the government service, he set up his own private clinic in rented premises. They rented a house on Cantonments Road. After some time their landlady wanted to eject them from the said premises. The daughter interceded but the said landlady refused to allow them to stay on. The defendant and the plaintiff s daughter went round Accra in search of another place to which they could move the clinic. The daughter said when all attempts to secure convenient accommodation had failed and things were getting out of hand, she and the defendant thought of putting up a hospital of their own. She averred that it was under those difficult circumstances that she agreed to mortgage this land to the Barclays Bank to secure the loan granted to the defendant by the bank, and at the same time allowed the defendant to put up the hospital on the said land. They moved the clinic from Cantonments Road into the new hospital after its construction. She contended that she assisted in various ways to run the hospital and she gave the defendant every assistance which was expected of a loving wife, with the result that the hospital proved a success.
It was after the hospital had proved a success that the defendant started maltreating her in such a subtle manner that she was forced to leave the matrimonial home. She had nowhere to go. So her mother, the plaintiff, went to her rescue and offered her accommodation in the mother’s house at Osu Russia. The daughter said she felt her widowed mother had given up so much for her sake by accommodating her in that house, from which the mother used to get 0300.00 a month. So she revested the legal estate in the land in dispute in the mother by executing the said deed of gift, exhibit A. The daughter denied that by allowing the defendant to build on the land, or by securing the loan with the said land, she intended to give the land to the defendant as a gift, neither was she holding the land in trust for the defendant.
The defendant’s case
The defendant said he retired from the government service as a medical officer in 1955 and, intending to engage in private practice, he searched for a place to start his business. His wife, the plaintiff s daughter, suggested to him that he could put up a hospital on this piece of land. The plaintiff was then owning this land. The defendant said he agreed to the suggestion of the daughter. He caused building plans to be made by certain contractors. The cost of the building quoted by the said contractors being exorbitant, the defendant abandoned the project. He then hired premises on Cantonments Road. The defendant carried on his private practice in those premises for about three years. The landlady of this place seemed to have found a way of increasing the rent every month, and the defendant could no longer tolerate that situation.
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In an attempt to solve the problem, the daughter again suggested to the defendant that he should build a hospital on the land in dispute. The defendant caused fresh building plans to be made for the construction of the said hospital. He obtained a loan from the Barclays Bank, and he secured it by mortgaging the land in dispute. The bank at first, according to the defendant, refused to accept a mortgage on the land in dispute because the land at that time was in the name of the plaintiff. The wife informed the plaintiff about the bank’s said refusal, and the plaintiff agreed to transfer the land into the daughter’s name to enable the defendant to mortgage it. The defendant averred that it was because of him and under those circumstances that the plaintiff had to execute the deed of gift, exhibit 1, in favour of the daughter. The defendant has finished paying back the loan and the mortgage deed and the said deed of gift, exhibit 1, have all been retrieved from the said bank. It is the further contention of the defendant that the wife never contributed financially towards the repayment of the loan even though she rendered some valuable services, occasionally, towards the running of the hospital; and that so far as the defendant is concerned, he believed that the said deed of gift was executed by the plaintiff in favour of the daughter, purposely to benefit the defendant. The defendant admitted that he and the plaintiff s daughter are no longer living together as man and wife due to some misunderstanding. He said after the daughter had left the matrimonial home, the daughter’s solicitors wrote to him demanding ground rent for the land in dispute. But a year later he received another letter from the plaintiff s solicitor to the effect that the land had been reconveyed to the plaintiff and that the defendant was to pay a ground rent of 0300.00 a month.
There were some negotiations about this rent but the negotiations broke down and no agreement was reached. The defendant denied that there was an implied condition that he was to enjoy the land free of charge so long as he continued to live together happily with the plaintiff s daughter as man and wife and shared things together. On the contrary, he maintained that apart from believing that the plaintiff granted the land to the daughter for his benefit, the daughter also gave him the impression that he was to enjoy the land in dispute forever. In brief, this is the evidence before the court.
The most important issue for the court to decide is the kind of interest which the defendant has in the land in dispute. I should observe that the defendant also put in a counterclaim asking for:
“(a) a declaration that the plaintiff holds the legal title to the land as a bare trustee to the use and benefit of the defendant in whom resides the beneficial equitable freehold interest in the said land, and
(b) an order compelling the plaintiff to execute a deed, in due form conveying the said legal title to the defendant.”
However, the nature of the defendant’s interest in the disputed land can be determined by finding out, first, the real intention of the plaintiff at the time the plaintiff executed the deed of gift, exhibit 1, dated 27
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February 1959. Learned counsel for the defendant submitted that on the evidence, the court should hold that the plaintiff executed the deed of gift with the sole purpose of creating a trust in favour of the defendant, and that the daughter, until she also executed her deed of gift on 12 May 1970, reconveying the land to the plaintiff, was a mere trustee of the said land, having no beneficial enjoyment therein. Counsel further contended that quite apart from the said trust, the court can also hold that having regard to the conduct of the plaintiff and from the transaction, an equitable presumption of advancement arose in favour of the defendant. Counsel argued that this same presumption of advancement should be raised against the daughter as well. He relied heavily on a certain passage in a letter, written by the daughter to the defendant, to show that the real intention of the plaintiff in granting the land to the daughter was to benefit the defendant and not the daughter. That letter was tendered as exhibit 2. I will consider the daughter’s explanation of the passage in question in detail in due course.
In the meantime, I will deal with the contention about the trust and the equitable presumption of advancement being raised against the plaintiff and her daughter. Considering the evidence as a whole, did the plaintiff intend to create a trust in favour of the defendant in respect of the said land? I will refer to a passage in the judgment in the case of Asante v. University of Ghana [1972] 2 G.L.R. 86 where I said at p. 93 that:
“To constitute a perfectly created trust, the person creating the trust must expressly declare himself to be a trustee of the subject-matter of the trust, or he must have done everything required of him, ‘having regard to the nature of the property involved’ in the trust, to pass the title to the trustee. In either of these two modes, the settler must employ the appropriate formalities, legally necessary for the transfer of the particular property; so that the trustee has a complete legal title to it. If the trust is not created by one of these methods, the court will not give effect to it.”
The deed of gift, exhibit 1, cannot in any way be described as a trust deed. On the contrary, it contains a clear intention on the part of the plaintiff that her daughter was to be the only object of her bounty. The plaintiff influenced by motives of generosity and maternal affection, transferred both the legal estate and the beneficial interest in the land to the daughter, and at the time of the said transfer, the plaintiff never had the defendant in her contemplation. I further find that the land was intended for the separate use and enjoyment of the daughter, and the fact that the defendant later on built thereon cannot raise a presumption of resulting trust or of advancement in his favour. As a matter of fact, the relation existing between the plaintiff and the defendant makes it difficult for such a presumption to arise. Because a widowed mother-in-law, as the plaintiff is, does not stand in loco parentis to her son-in-law so as to raise a presumption that in a transaction of this kind a benefit was intended for the son-in-law. In other words, the plaintiff is not under
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any legal or equitable obligation to support the defendant. Thus, even if the land had been purchased by the plaintiff in the name of the defendant, no presumption of advancement would have arisen.
In Bennet v. Bennet (1879) 10 Ch.D. 474, it was held that even where a mother makes a purchase or investment in the name of her own daughter or in the joint names of herself and her child, that does not of itself afford the presumption of advancement. For there is no obligation on a mother to make provision for her child, as in the case of a father. See also In re Pauling’s Settlement Trusts [1964] Ch. 303, C.A. where presumption was fully discussed. If as between a mother and her own child a presumption of advancement cannot arise, how then can it be said to have arisen between a mother-in-law and her son-in-law? In the New Zealand case of Knight v. Biss [1954] N.Z.L.R. 55, the court held that there is no presumption of advancement where a father-in-law transfers property to his son-in-law.
The passage in the daughter’s letter, exhibit 2, and on which the defendant is relying, affords the defendant very little assistance in view of the explanation given by the daughter in the course of her evidence. The said passage reads:
“My mother gave me the land and allowed us to build the clinic buildings on the understanding [that] the clinic would be run to our mutual benefit while we continue to live and share things together as man and wife.”
When the daughter was confronted with this passage she explained as follows:
“At the time I wrote exhibit 2 I was really confused. The object of my mother giving the land to me was not for the defendant to build a clinic on it. What I meant was that I was living with the defendant under one roof and taking part in the activities of the hospital.”
This explanation of the daughter that she was in a state of confusion when she was writing the letter, exhibit 2, becomes reasonable when that passage is read together with other portions of the said letter. That letter, on the whole, contains what may be properly described as a pathetic story of a wife who had lived for over 26 years with her husband without a child, due to no fault of hers, and who had bestowed some appreciable financial benefit on the said husband and from whose hands she later on suffered considerable cruelty, and was eventually compelled to leave the matrimonial home to seek shelter somewhere else. The following paragraphs from the said letter support this view:
“At long last, after anxious and sleepless nights considering our future, the time has come when, for the sake of my very life and safety I must do what I feel you have wanted for a long time and that is to leave your house forever. After what has gone on during the past few weeks no self-respecting and right-thinking person can fail to see your desire to continue your adulterous associations with
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those whom you openly and shamelessly acknowledge to be your wives and your children by them. Even animals know when persons who once professed to love them, treated them kindly, cease to care for them. Your intolerance and inhuman treatment, subjecting me to all forms of subtle cruelties and indignities such as no woman can continue to bear, have at last succeeded in forcing me out of your life.
Before I leave, after sharing the past 26 years of my life with you, I feel I ought to point out to you a few only of the many ways in which you have made my life miserable and reduced me to almost a mental and physical wreck. I do this, not because you are not aware of all that has taken place, but in order that no false motives may be attributed to me and wrong accusations made if the time comes for a review of our lives and the reasons for our separation.”
After giving a catalogue of matrimonial offences committed by the defendant, the letter went on at p. 6:
“I have borne all the hardships and suffering you have created for me with Job-like patience. I can no longer continue to bear the disgrace, and shame and the misery. You are a doctor and you should know, if you care to, that I am mentally and physically incapable of continuing such a life in a place where I am obviously not wanted. I have to go before something serious happens to me.”
It is clear from these paragraphs that when the daughter wrote exhibit 2, she was not only in a state of confusion and distress, but was almost a mental wreck. It was because of the mental agony and the strain, that she could not express herself clearly and properly in the passage in question. Even if her explanation is rejected as being unreasonable, paragraph 2 of page 6 of the letter where the said passage occurs, if read as a whole, makes the defendant’s contention also unreasonable and totally misconceived: It states as follows:
“I wish however, to raise one matter which must be settled immediately in order to make our separation complete and give you the freedom which you have sought for so long to live with those others you find more useful and who may make your [home] a happier place to return to after your day’s work with all your various wives and their children around you. As you know, I made extensions to our present home in order to carry on my bakery. I spent quite a lot of my own money in building and furnishing the bakery. Since you no longer want me in your house I have been obliged to remove all my equipment and leave the rooms for you. On the other hand you have also built a clinic on a part of land at Osu belonging to me which my mother gave to me. My mother gave me the land and allowed us to build the clinic buildings on the understanding [that] the clinic would be run to our mutual benefit while we continue to live and share things together as man and wife.
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Now that things have come to such an end she wants her land back and I am prepared to convey it back to her. In any case, I need a place to instal and run my bakery and there is no reason why you should force me to leave your house and the bakery which I built with my own money on your land while you continue to occupy something which, we have also built on land belonging to me and my mother for your business.”
(The emphasis is mine.) The only interpretation which can be put on this passage is that the land was granted to the daughter and the daughter was to regard it as her separate property and that the daughter, with the knowledge of the plaintiff, allowed the defendant to build thereon.
I now come to the presumption of advancement raised against the daughter. The fact that the daughter concurred in the erection of the hospital on the land cannot be an indication that the daughter also intended to give the land to the defendant as a gift. It is well-settled that where a husband transfers property to his wife, the presumption of advancement applies. So that the onus of proving that no gift was intended would be on the husband: Silver v. Silver [1958] 1 W.L.R. 259, C.A. In that case the husband purchased a dwelling-house in the wife’s name, and when £1,300 remained unpaid on the building society’s mortgage, the husband left the wife and he applied under section 17 of the Married Woman’s Property Act, 1882 (45 & 46 Vict, c. 75), for an order that the house was held by the wife upon trust for herself and himself jointly. The county court judge held that there was nothing in the evidence to rebut the equitable presumption that in having the house purchased in his wife’s name, and in paying the instalments due under the mortgage, the husband intended to make an advancement and the wife was not a trustee of the house, in whole or in part for the husband. On appeal, it was held that, on the facts, the findings of the county court judge should not be disturbed and that since the matrimonial home was purchased in the name of the wife it was presumed to be a gift by the husband to the wife in absence of evidence to the contrary.
On the other hand, no such presumption arises when a wife transfers or puts property in the name of her husband. Prima facie, the husband will be regarded as a trustee for the wife. Equity dislikes and distrusts gifts by a wife to a husband. In Mercier v. Mercier [1903] 2 Ch. 98, C.A. a married couple bought land which was paid for out of their joint account almost entirely composed of the wife’s income and was conveyed to the husband alone. On the husband’s death intestate, his heir-at-law claimed the land. It was held that the wife had not made a gift of the purchase-money to her husband and that the land belonged to her. On the facts of the instant case, I am of the view that no presumption of advancement can be raised against the daughter.
Even if it is conceded that the circumstances under which the daughter permitted the defendant to build on the land raised a presumption that the daughter intended to give the land to the defendant as
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a gift, I will hold that the said presumption has satisfactorily been rebutted by the evidence of the daughter, which evidence I accept. I must point out that, in reality, the presumption of advancement is just a convenient device “in aid of decisions on facts often lost” due to lapse of time or the death of the parties directly involved. So that it is only where there is no evidence to counteract it that the said presumption will prevail: see Fowkes v. Pascoe (1875) 10 Ch. App. 343 per Mellish L.J. at p. 353 and In re Howes; Howes v. Platt (1905) 21 T.L.R. 501. I therefore hold that the defendant has utterly failed to prove a resulting trust or any advancement in his favour.
I will like to make the following observations about the hospital. It appears to me that the daughter in her anxiety to see that the defendant got on as a doctor, and believing that whatever property the defendant acquired was for their joint benefit, persuaded the defendant to put up the hospital on the land. In fact the wife in her evidence said she regarded the hospital on the land as their joint property, and in my opinion, she was right in thinking that way. For, I find that the loan for the construction of the hospital was granted by the bank to both of them, since the defendant and the daughter were looked upon by the said bank as the borrowers: see exhibit 3. The defendant said he alone paid back the loan, but I find that the money used in repaying the loan came from the proceeds of the hospital which the daughter assisted in running. She, at times, used her own money in buying provisions for the hospital. That is, she sometimes did the shopping for the hospital, supplied cakes, cooked three times a day for European in-patients, as the cook employed for the hospital was most of the time drunk. She also sewed window blinds and provided linen for the hospital. On some occasions she acted, virtually, as a matron of that hospital.
All these services she performed without asking for any salary or reward. The money she spent in purchasing food items and other articles for the hospital was never refunded to her and she in fact never asked to be reimbursed. All these could have cost quite a fortune, and it cannot therefore be contended that the wife never contributed financially towards the success of the hospital. In my opinion the hospital was a product of a joint marriage effort. So that the wife is entitled to consider herself as having some interest in it.
Apart from the hospital, has the defendant any interest at all in the land itself, or is he a bare licensee, as contended by the plaintiff? I have already found that no presumption of advancement could arise in favour of the defendant. But taking into account the circumstances under which the daughter granted the permission to the defendant, is it possible to suppose that the daughter, by agreeing to the defendant building the hospital on the land intended, or was understood by the defendant, to create a contractual relation? Without more, it cannot be said that the daughter intended to bind herself, and that the defendant could assume
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that he was entitled to go on enjoying the land forever. In Vaughan v. Vaughan [1953] 1 Q.B. 762 at p. 767, C.A., Evershed M.R. after referring to a passage in his own judgment in Foster v. Robinson [1951] 1 K.B. 149, C.A. observed:
“I did not intend to lay it down in that passage that, where a promise has been made which is not contractual in form or effect and that promise has in fact been acted upon, then and without more a right is given to the promisee to go on enjoying the subject-matter of the promise indefinitely.”
(The emphasis is mine.) In the same case, Denning L.J. (as he then was) expressed a similar opinion at p. 768 where he said:
“To establish a contractual licence there must be a promise which is intended to be binding; and which is either supported by consideration, or is intended to be acted on and is in fact acted on.”
(The emphasis is mine.)
I think the defendant’s conduct comes within the last principle, because he put up the hospital on the land on the promise of the daughter. Although right from the beginning the defendant had no contractual licence, by entering the land and developing it on the faith of the daughter’s promise, he can now be said to have even more than a contractual licence, and it will not be fair to look upon him as a bare licensee whose licence is subject to revocation at any moment. The defendant constructed the hospital not only with the acquiescence of the daughter but also with the active encouragement of the daughter who, at the material time, was the legal owner of the land; and since he expended a considerable amount of money on the project, equity will neither allow the daughter nor the plaintiff, who is the present legal owner, to rely on her legal title to prevent the defendant from further enjoyment of the fruits of his toil. In Dillwyn v. Llewelyn [1861-1873] All E.R. Rep. 384, C.A., Lord Westbury L.C. at p. 387 said:
“About the rules of the court there can be no controversy. A voluntary agreement will not be completed or assisted by a court of equity; in cases of mere gift, if anything be wanting to complete the title of the donee, a court of equity will not assist him in obtaining it, for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift … So if A. puts B. in possession of a piece of land, and tells him, ‘I give it to you, that you may build a house on it; and B., on the strength of that promise, with the knowledge of A., expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract which arises from the contract, and to complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement, not binding originally for want of the memorandum
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in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance.”
See also the dictum of Lord Kingsdown in Ramsden v. Dyson (1866) L.R. 1 H.L. 129 at p. 170. It will be recalled that Lord Kingsdown’s opinion in the latter case was a dissenting opinion, but his statement of the law appears to have been accepted by the other members of the House, who differed from him only on the question of inferences to be drawn from the facts. In any event, there seems to be little difference between the dictum of Lord Westbury in Dillwyn and that of Lord Kingsdown in Ramsden, even though Dillwyn was not cited in Ramsden. It is also worth mentioning that the dictum of Lord Kingsdown in Ramsden was expressly approved by the Privy Council in Plimmer v. Wellington Corporation (1884) 9 App. Cas. 699 at p. 710, P.C.
I should make it clear that any defence, equitable or otherwise, which the defendant could have pleaded against the daughter, had the daughter been the plaintiff in the present suit, can also be pleaded against the plaintiff. Because, in the first place, the plaintiff is now standing in the shoes of her daughter. Secondly, for some years before the daughter executed the deed of gift, exhibit A reconveying the land to the plaintiff, the plaintiff knew that the defendant had incurred considerable expense in developing the land. Thirdly, the plaintiff knew that her daughter who was the legal owner of the land at that time did not only permit the development, but also persuaded the defendant to make the said development.
As I have already held, the defendant acquired, not only a contractual licence after the construction of the hospital, but also an equity in the land. In the circumstances, the plaintiff is estopped by the said equity from asserting that the defendant is a bare licensee. Consequently, I hold that the claim of the plaintiff is misconceived.
The counterclaim
Learned counsel for the defendant contended that the interest which the defendant acquired in the land has provided the basis upon which this court should compel the plaintiff to execute a deed, conveying the legal title to the land to the defendant.
I have no doubt that the kind of estoppel which is available to the defendant in the present case, is more than a shield. In other words, it can also be a sword by which the person in possession may, in certain circumstances, compel the conveyance to him of the legal estate. But in view of my findings that no presumption of advancement arose in favour of the defendant and that no gift had ever been intended for the defendant, I cannot go the whole hog with learned counsel for the defendant. My other reason for refusing to order the transfer of the legal title to the defendant is that the building with which we are concerned in the present case is not a dwelling-house for the defendant’s personal use as in Dillwyn’s case. In Dillwyn’s case apart from the fact
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that the court found that a gift was originally intended for the son, the building which the son put up on the land was a dwelling-house. What the defendant herein has constructed on the land in dispute is not a house but a hospital which is being run not as a charitable institution but as a profit-making concern; and from the evidence, I find that the defendant has been making considerable profit from it. I am therefore inclined to the view that the defendant must have had sufficient satisfaction for his expenditure.
However, taking all the surrounding circumstances into consideration, the equity can be fairly discharged, not by conveying the legal estate in the land to the defendant, but by executing a lease in his favour. This is what the defendant himself tried to get from the plaintiff. The parties, through their respective solicitors and before the action was instituted, attempted to negotiate with a view to granting a lease of the land to the defendant (see the letters, exhibits 9 to 13, which were tendered by the defendant without objection). But the negotiations broke down because they could not agree on the term of years and on the ground rent to be paid.
The defendant’s solicitor, in exhibit 9, suggested a term of, at least, 25 years and an annual ground rent of 0400.00. The plaintiff on the other hand, through her solicitor’s letter exhibit 10, said she was prepared to grant to the defendant a lease for a term of thirteen years, commencing from 1 January 1971, at a ground rent of 04,800.00 per annum. Having regard to all these exhibits, and especially to the fact that the defendant is still legally married to the plaintiff s daughter, I think a lease for a term of 25 years should be reasonable. The difficulty is about the ground rent. But that can be assessed by the Chief Lands Officer.
I therefore order that the Chief Lands Officer, Lands Department, Accra, or a valuer appointed by him from that department, should assess the value of the ground rent payable in respect of the bare land, and within fourteen days after the plaintiff has been informed by the Chief Lands Officer of the ground rent payable, the plaintiff should execute a lease in respect of the land in dispute and in favour of the defendant. The said lease must be for a term of 25 years, commencing from 1 January 1971, and it should also contain the usual terms, covenants, or conditions.
Accordingly, the plaintiff s claim will be dismissed; and on the counterclaim, judgment will be entered for the defendant but in terms as ordered above. I make no order as to costs.
DECISION
Plaintiff s claim dismissed.
Counterclaim allowed but varied in terms.
S.Y.B.-B.
