OSUMANU vs. OSUMANU AND ANOTHER [1995-96] 1 GLR 672

CASES REFERRED TO

(1) Ussher v Darko (1977) 1 GLR 476, CA.

(2) Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95; [1957] 3 WLR 830; [1957] 3 All ER 559, PC.

(3) Attorney-General (Trinidad and Tobago) v Eriche [1893] AC 518; 69 LT 505, PC.

(4) Toronto Railway Co v Toronto Corporation [1904] AC 809, PC.

(5) Asiama v Adjabeng [1971] 2 GLR 171, CA.

NATURE OF PROCEEDINGS

APPEAL by the second defendant to the Court of Appeal from the decision of the High Court wherein it held, inter alia, that the house in dispute was the joint property of the plaintiff-wife and her first defendant-husband and therefore the sale of that house by the first defendant to the second defendant was unlawful. The facts are fully set out in the judgment of Benin JA.

COUNSEL

Darkwa-Dwamena for the second defendant-appellant.

Dick Anyadi for the plaintiff-respondent.

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JUDGMENT OF BENIN JA.

Benin JA delivered the first judgment at the invitation of Lamptey JA. Madam Agyina Osumanu, the plaintiff-respondent (herein-after called the plaintiff) sued her husband, Atta Osumanu, the first defendant, and Jacob Asuama Yeboah, the second defendant-appellant (hereinafter called the second defendant), at the High Court, Kumasi by a writ of summons dated 28 February 1986. On the writ was indorsed the following reliefs:

“(a) A declaration that house No K 23, South Suntreso, Kumasi was jointly owned by the plaintiff and the first defendant herein.

(b) An order setting aside the purported sale of house No K 23, South Suntreso, Kumasi by the first defendant to the second defendant as being without the knowledge and consent of the plaintiff.

(c) An order for perpetual injunction to restrain the defendants, their servants, agents and workmen from interfering with the plaintiff’s possession of the said house.”

The plaintiff’s case as pleaded was as follows: She, a trader, and her husband, a driver, purchased this house in dispute on hire purchase basis from the State Housing Corporation. The bigger portion of the funding was provided by the plaintiff but the couple agreed that the lease should be in the name of the first defendant for their benefit and that of the children of their marriage. That decision was taken, they being married couple and Moslems. They moved into possession and enjoyed same jointly with their children. Sometime in 1973, the first defendant secretly sold the said house to one Opanin Kwesi Boakye for ¢3,000 without the knowledge and consent of the plaintiff and the children. At her instance, the sale was nullified and she paid back the purchase money to Opanin Kwesi Boakye and thus redeemed the house.

Then in 1977 one policeman called Sergeant Yeboah, who is a relative of the second defendant came and claimed that he had purchased this house from the first defendant and demanded their ejection from the house. Subsequent investigations, however, disclosed that the documents in respect of the alleged sale were made in the name of one Kwasi Berchie who is a relative of sergeant Yeboah and the second defendant. At this stage the first defendant escaped to

[p.677] of [1995-96] 1 GLR 672 an unknown place. Subsequently, she found that the second defendant had his name on the documents of title and no longer Kwasi Berchie. The relatives of the second defendant have through diverse means harassed the plaintiff and her children in a bid to remove them from the house. Hence the action claiming the reliefs as set out already.

In his statement of defence, the second defendant denied that the plaintiff was a trader. He also denied that the plaintiff was the wife of the first defendant. He also denied that the house was sold to Opanin Kwesi Boakye by the first defendant in 1973. The case of the second defendant was that sometime in 1978 the first defendant as the beneficial owner of this house agreed to sell it to him for the sum of ¢13,000 which sum he paid to the first defendant. The assignment was executed on 7 February 1982. After the sale in 1978, the second defendant averred that he caused some extensions to be made to the house by adding three rooms, to the knowledge of the plaintiff. Further extensions were made in 1981. In 1979 the plaintiff reported Sergeant Yeboah to the “one man-one house committee” that he owned two houses including this one in dispute. This committee concluded that this house belonged to the first defendant so he had the right to sell it to the second defendant. The committee, however, pleaded with the second defendant to allow the plaintiff to continue occupation of the one room she was occupying for a monthly rent of twenty cedis. Since then she has lived in this house as the tenant of the second defendant together with four other tenants. She has been issued with a rent card and pays the rent to the second defendant’s niece and nominee, one Lydia Yeboah, but the rent has fallen into arrears since January 1986. The second defendant in conclusion averred that the sale of the house in dispute to him by the first defendant is proper since he is a bona fide purchaser for value and that the plaintiff is not entitled to her claim or at all. He counterclaimed for an order of possession of the one room being occupied by the plaintiff.

In reply to the “one man-one house committee’s” involvement, the plaintiff said it did not make any finding before it ceased functioning. In respect of the extensions, she averred that she assisted the first defendant to carry them out after the property was redeemed from Opanin Kwesi Boakye. As regards the tenants in the house, she said she put them there after the extensions. On how she came to pay rents, she pleaded that Sergeant Yeboah used his position to influence the

[p.678] of [1995-96] 1 GLR 672

Rent Office, Kumasi to compel her to pay rent to him, Sergeant Yeboah, or be ejected. She stopped paying the rents having sought legal advice.

Issues were thus joined on all vital matters, namely:

(a) whether or not the plaintiff is a co-owner of the premises house No K 23, South Suntreso, Kumasi;

(b) whether or not the plaintiff is a tenant of the second defendant in the said premises; and

(c) whether or not the sale of the premises in dispute by the first defendant to the second defendant is valid.

So far, it is clear that the first defendant did not contest this action, the plaintiff and second defendant did. At the end of the day, judgment went in favour of the plaintiff. The second defendant appealed to this court. The court’s findings and reasons will be made clear as and when the various grounds of appeal are considered. These grounds are:

(i) The judgment is against the weight of the evidence.

(ii) The learned judge failed to consider or appreciate or both the defence of the second defendant.

(iii) Having found that the plaintiff appeared before the “one man-one house committee” at the Regional Office, Kumasi and took part in the proceedings before that committee, the learned judge should have entered judgment for the second defendant and that his finding that the second defendant did not purchase the house in good faith is not supported by the evidence.

(iv) The plaintiff is bound by the findings of the “one man-one house committee” and is estopped from relitigating title of the house with the second defendant.

(v) The learned judge was wrong in law by holding that the plaintiff-respondent is the equitable owner of the house and that the first defendant held same in trust for her.

Grounds (iii) and (iv) deal with estoppel. This was not set down as a triable issue and was not agreed upon as such. But as an issue arising on the pleadings, the trial court was bound to consider it, especially when evidence was also led on it. From the pleadings, the second defendant seems to be saying that the issue of title to the house had been determined by the one man-one house committee and for that reason the plaintiff was estopped per rem judicatam from relitigating

[p.679] of [1995-96] 1 GLR 672 this issue. But quite surprisingly, counsel for the second defendant in his address to the trial court did not deal with the issue at all. Not surprisingly therefore counsel for the plaintiff also did not address on this issue. The trial court dealt with it, not in relation to estoppel but, in relation to the second defendant’s plea of bona fide purchaser for value. This is what the trial court said:

The issue for consideration is whether the second defendant was a bona fide purchaser of the property for value without knowledge of the plaintiff’s equitable interest in it. I am satisfied that the plaintiff in 1979 again complained to the ‘one man-one house committee’, and the committee found on inspecting the second defendant’s documents that Sergeant Yeboah was not the owner of the property but rather the second defendant was the owner. I find that the plaintiff paid rent to the second defendant on their advice so that she could get a place to live. The second defendant has conceded that he had knowledge of the sale of the property to Kwasi Berkyie. I am satisfied that he, the second defendant, paid no ¢13,000 physically to Atta Osumanu. I have already made the finding that Kwasi Berkyie acted as a front man for the second defendant. When the controversy arose, he the second defendant stepped into Kwasi Berkyie’s shoes. This is the reason why he says he can’t trace his receipt for the ¢13,000. I find that he had none. I find that he, the second defendant, was struck with notice that though the legal title of the property was in Atta Osumanu yet the beneficial or equitable interest was in the plaintiff. In spite of this he went ahead, stepped into the shoes of Kwasi Berkyie and had the deed of assignment executed in his favour.”

The learned judge went on to cite the authority of Ussher v Darko [1977] 1 GLR 476, CA.

The learned judge’s holding that the plea of bona fide purchaser for value without notice did not avail the second defendant has not been questioned in this appeal. And on the facts before the court this decision is impeccable. This is because from the documentary evidence before the court, namely the statutory declaration by the first defendant—exhibit B; the second defendant’s solicitor’s letter—exhibit C; the State Housing Corporation’s reply—exhibit D; and the second

[p.680] of [1995-96] 1 GLR 672 defendant’s reply—exhibit E, it was clear that the second defendant knew the property was encumbered as of September 1977 and even as at 28 July 1981 when exhibit E was written, by an alleged sale by the first defendant to Kwasi Berchie. And records available at the office of the State Housing Corporation would disclose that the plaintiff was claiming an interest in this property. These are: letter from the Regional Office, Kumasi dated 17 March 1978—exhibits 13 and 14. Reply by the State Housing Corporation dated 11 April 1978—exhibit 15; letter by the Regional Office, Kumasi dated 18 July 1979—exhibit 16 and the reply by the State Housing Corporation dated 24 July 1979—exhibit 17. The summary of all these is that the plaintiff claimed to have refunded the purchase price to Opanin Boakye and thus redeemed the house as co-owner and so the regional office was advising the State Housing Corporation not to sell the house to Berchie against the wish of the plaintiff which advice the State Housing Corporation ignored on the ground that as far as their records showed, the first defendant was their only tenant in relation to this property and that he had the right to dispose of whatever interest he had in it.

Any intending purchaser of property is put on his inquiry to make such investigations as to title as would enable him to rely on the plea of bona fide purchaser for value without notice. If he failed to make such inquiries, he acted at his own peril if subsequent events disclosed that there was a valid challenge to the title he acquired. The second defendant knew it was a State Housing Corporation property so every correspondence on the latter’s file was relevant for the consideration of an intending purchaser or assignee of the property. The documents available on the file on this property with the State Housing Corporation would clearly disclose that the plaintiff was claiming part ownership of this property.

But as I said earlier, the question of the one man-one house decision or finding was pleaded as estoppel against the plaintiff and it was in that context that it should have been considered by the trial court. I have already set out the trial court’s findings in respect of the one man-one house committee (hereinafter called the committee) but to reiterate same, these are: (i) that the committee inspected the second defendant’s documents; (ii) that the committee concluded that the house did not belong to Sergeant Yeboah but to the second defendant; and (iii) that the committee advised the plaintiff to pay rent to the

[p.681] of [1995-96] 1 GLR 672 second defendant. The other finding that Berkyie was the front man for the second defendant was that of the court and not the committee. One would have thought that the written record of the committee would be put before the trial court to erase any doubts about what transpired there. That did not materialise and as it turned out, both parties only spoke from memory of what took place in 1979.

Since the court below appears to have largely accepted the second defendant’s testimony on this, judging by its findings, I think I have to dwell at length on this testimony. What was the complaint before the committee? This is what the second defendant said:

“In 1979 the plaintiff complained against my elder brother, Sergeant Yeboah, to the ‘one man-one house committee’ that she and her husband jointly owned the house. She alleged that Sergeant Yeboah had another house and so the house in dispute should be taken away from him and given to her.”

This in brief was the complaint, that Sergeant Yeboah who claimed to have bought this house from her husband (the first defendant) owned another house.

That this was the complaint cannot be impugned having regard to the fact that the one man-one house committee was set up to investigate cases where one person owned more than one house put up from state resources by either the State Housing Corporation or the Tema Development Corporation. And that precisely was what this committee, according to the court below, found out; that Sergeant Yeboah did not own this house.

It is significant to note that the committee was not said to have investigated also whether the other house was also owned by Sergeant Yeboah. Having satisfied itself that the first defendant sold the house to the second defendant and not Sergeant Yeboah, the committee ruled that Sergeant Yeboah did not own this house. It is to be noted that the plaintiff did not take any action before the committee against the second defendant to determine ownership of the house as between them. This could not have been done since the committee had no jurisdiction to do that. At any rate, that was not the issue before it. So that from the second defendant’s own testimony, the action before the committee was against only Sergeant Yeboah to determine whether he owned more than one house including this one in dispute, and the

[p.682] of [1995-96] 1 GLR 672 committee found he did not. Thus whatever estoppel that finding gave rise to was against Sergeant Yeboah, it did not estop any other person including Berkyie from claiming title to this property.

That this is the true sense in which this finding is to be understood is borne out by the fact that the second defendant has not been able to tell the court what documents he possessed then, contrary to what the trial court has found. He did not have a receipt for payment since he did not make any payment to the first defendant. He had not been given any deed of assignment as of 1979. He did not have the title deeds. The State Housing Corporation did not even know of any transaction involving him over this house, it was Berkyie they knew. The second defendant was not even a party before the committee, to cap it all. The decision that the first defendant had not sold the house to Sergeant Yeboah but to the second defendant was based on the first defendant’s evidence that he had sold it to the latter. But that decision did not finally determine ownership of the house as between the plaintiff and the first defendant since that was not the complaint before the committee. To that extent, estoppel by way of resjudicata, if at all, would not avail the defendants. That decision creates estoppel, if at all against the first defendant in favour of the second defendant. And so long as the plaintiff’s title is not derived from the first defendant she is not privy to him so as to be bound by any estoppel operating against the first defendant.

There are six elements which have to be established for a successful plea of estoppel by way of res judicata to avail a party seeking to rely on it, these are:

(a) that there was a judicial decision which is deemed a judicial decision as such in law;

(b) that there was a definite pronouncement of the decision relied upon;

(e) that the tribunal pronouncing the decision had competent jurisdiction to do so;

(d) that the decision was final;

(e) that the decision was, or involved a determination of the same question as that sought to be involved in the present suit in which estoppel is raised; and

(f) that it involves the same parties or their privies, or that the decision was conclusive in rem.

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I have already drawn certain conclusions from the trial court’s findings. But I will only put them within the context of the elements constituting estoppel. To begin with, the decision whether or not Sergeant Yeboah owned more than one house including the one in dispute is a factual decision. But whether it is judicial or not depends on the legal status of the body making that finding. The one man – one house committee, as said, was a fact-finding body with no powers of providing finality to its findings, it was subject to approval by State Housing Corporation or Tema Development Corporation as the case may be. For that reason its decision was not final and without finality estoppel could not arise. Moreover, that decision did not involve a determination of the issue of title between the plaintiff and the first defendant. And as said already, the plaintiff was not privy to the first defendant since she claimed title adverse to that of the first defendant. On privity of title: see Nana Ofori Atta II v Nana Abu Bonsra II [1957] 3 All ER 559, PC. For these reasons no estoppel arises against the plaintiff.

I will go on further to talk about the non-finality of the question of title by the committee. As the trial court found, if the question of title was investigated the second defendant would have been found not to be a bona fide purchaser. At any rate, the evidence was clear that the second defendant paid no money to the first defendant for this house and it was not his case that Berkyie was his front man. At least the correspondence from his own solicitors did not bear this out. It was made clear that the sale transaction between the first defendant and Berkyie had fallen through; hence a new one was being concluded between the first defendant and the second defendant. I am talking about exhibits B, C, D and E, the relevant portions of which I set out here. Exhibit B is a statutory declaration by the first defendant dated 2 September 1977 and it provides in paragraph (7) that:

“(7) . . . I have voluntarily given my above stated property to my said brother, Mr. Kwasi Berkyie, and that I therefore request the Senior Housing Officer, to cancel my name from all records and transfer all my interest to Mr. Kwasi Berchie.”

Exhibit C is a letter dated 19 May 1981 from the first defendant’s solicitor to the State Housing Corporation in which they state that:

“Our client wishes to assign the residue of his interest in the

[p.684] of [1995-96] 1 GLR 672 above property to Jacob Asuamah Yeboah and we shall be grateful if you will give your consent accordingly. The earlier proposed assignment by our client to Kwasi Berchie did not materialise.”

It can be seen that two years after the alleged decision that the second defendant was the owner of the house, he was then asking for permission to be assigned the interest of the first defendant in this property. The State Housing Corporation was not satisfied for it knew all along up to that moment that it was Kwasi Berchie who was being assigned this property as per exhibit B; hence it wrote in its reply — exhibit B, dated 15 June 1981 inviting both the second defendant and Kwasi Berchie to appear before them for an interview and also to produce a duly sworn statutory declaration from Kwasi Berchie assigning his interest to the second defendant. This letter should be considered alongside the State Housing Corporation’s letters dated 11 April 1978, exhibit 15, and 24 July 1979, exhibit 17, both addressed to the Ashanti Regional Administration. In the last paragraph of both letters, the State Housing Corporation wrote that Mr Atta Osumanu submitted to them a duly sworn statutory declaration asking them to assign his interest to one Kwasi Berchie and that action was accordingly taken to effect the change in the name of Kwasi Berchie.

Thus from 2 September 1977 to May 1981 the State Housing Corporation who alone could confirm or concur in any assignment by the first defendant knew Kwasi Berchie but not the second defendant, yet the letter is saying that he was the owner of this house from 1978 by purchase. What documents then were before the committee which the trial court said were examined by the committee? There was none so the trial court’s said finding is not borne out by the evidence on the record. The second defendant himself did not testify before him that he produced any documents for examination. That finding that the committee inspected the second defendant’s documents is hereby expunged from the judgment. This however does not affect the conclusion and reasons given. In conclusion, I hold that estoppel does not operate against the plaintiff in this litigation.

At this stage I shall sum up on the plea of estoppel by saying that it is precluded for these reasons:

(i) lack of jurisdiction in the committee;

(ii) lack of mutuality; and

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(iii) lack of a definite pronouncement as to title in favour of the second defendant as against the plaintiff and as between the plaintiff and the first defendant, in other words, there was no finality.

The committee was set up by virtue of the provisions of the State Housing and Tema Development Corporation (Ownership of Houses) Decree, 1979 (AFRCD 50), since repealed. The committee was only empowered to forfeit to the State Housing Corporation and the Tema Development Corporation any house from any person who was found to own more than one house built by the State Housing Corporation or Tema Development Corporation. It had no jurisdiction to investigate title to a single house being disputed by two or more persons. At best it could only be described as an inferior tribunal and as such its jurisdiction was conferred only by the enabling enactment. In the case of Attorney-General for Trinidad and Tobago v Eriche [1893] AC 518, PC where it was found that an ordinance did not have the effect of erecting the stipendiary magistrate into a tribunal competent to decide title, it was held that as it did not have jurisdiction to decide title, a plea of res judicata would not avail the party relying on the magistrate’s conviction for trespass. Another relevant case in point is Toronto Railway Co v Toronto Corporation [1904] AC 809, PC.

The parties are also not ad idem as to whether title between the plaintiff and the second defendant was determined. The record is not available to resolve this. Be that as it may, this issue could not have been resolved for (i) it was not the issue before the committee; (ii) the defendant was not summoned there as a party and was thus not in contest with the plaintiff, so the plaintiff had no opportunity to challenge his claim to the house; and (iii) the committee had no jurisdiction to determine that issue.

I have already said that the committee did not determine title. The advice given to the plaintiff to pay rent was wrong and obedience to it was a mistake. An advice by a body as distinct from a judicial decision or order, cannot ground estoppel. Thus the payment of rent pursuant to the advice given by the committee was not tantamount to an admission of the second defendant’s title to this property. Grounds (3) and (4) are accordingly dismissed.

Next, counsel argued ground (5). This relates to the first triable issue. The court found the plaintiff to be a co-owner of this property

[p.686] of [1995-96] 1 GLR 672 having repurchased it. This is what the court said:

“That the first defendant is the person who dealt with the State Housing Corporation as the owner of the house, is not in dispute. There is however evidence that when he sold the house to Kwesi Boakye sometime in 1973 for ¢3,000 the plaintiff protested to the then Regional Commissioner and refunded to the purchaser, Kwesi Boakye, the price of ¢3,000 . . . But for the ¢3,000 the plaintiff refunded to Kwesi Boakye, the house would have been lost to her and her husband and children. Even if the plaintiff contributed nothing towards the purchase of the house, it is a hard fact that she can be said to have repurchased it for ¢3,000. But her conduct in making that refund supports her claims that she was a joint owner of the house and that she could not afford to see that it was sold by her husband. I hold that from July or August 1973, when she made the refund of the ¢3,000 to Kwesi Boakye, the first defendant was a nominal and bare legal owner (trustee) of the house and that she, the plaintiff, is the beneficial owner thereof.”

This holding is the subject of ground (5). Counsel for the second defendant submitted that even if the plaintiff paid the ¢3,000 she was only a bare creditor to the first defendant and not a repurchaser of this house. Secondly, that payment would not affect an innocent purchaser. I have upheld the trial court’s conclusion that the second defendant was not an innocent purchaser. Just to buttress that holding, the second defendant as already demonstrated was aware of the sale to Berkyie. One would want to know why he denied this fact in his pleadings. And as early as 1979, at least, when he went to the committee, he was aware of the plaintiff’s adverse claim to this house, yet he went ahead in 1982 to take the assignment. That is enough to answer this question of bona fide purchaser against the second defendant.

To return to the question of repurchase it is clear from the record that both the plaintiff and the first defendant are illiterates from Northern Ghana. Thus their personal law must primarily be found in the customary law applicable to them. Thus recourse to the English law of trust was not desirable in the first instance. The application of the customary law was a must in view of the provisions on the choice of law in the Courts Act, 1971 (Act 372) which was then applicable,

[p.687] of [1995-96] 1 GLR 672 which provisions have been retained in the present Courts Act, 1993 (Act 459), s 54. The plaintiff said she contributed substantially towards the liquidation of the hire purchase installments. She said their intention was to get this house for themselves and their children. That was why at any time the first defendant sold or attempted to sell the house she resisted it and in one instance she actually refunded the entire purchase price in order to redeem the house. There is no evidence that the money paid to redeem the house was a loan advanced to the first defendant. Indeed, the first defendant did not say this anywhere. I believe it is a belated invention by counsel to find some reason for this payment. The intention of the plaintiff in redeeming the house was to keep it as joint property with the husband and in trust for their children. There is overwhelming evidence on record to support this.

The first defendant having lost title to the house by sale and the plaintiff having redeemed it with the intention of having joint interest in it, the first defendant, even if he alone owned this house previously, thenceforth became only a joint owner and trustee of the house and had thus no right to dispose of it without reference to the plaintiff. What is of paramount consideration is the manifest intention of the wife in paying the contribution and in redeeming the house, this is important since customary law does not presume joint ownership in a wife who assists the husband to acquire property. Nor does it frown upon joint ownership. It all depends upon the evidence as regards the intent with which the assistance is offered and accepted. Indeed, in this case, the trial court’s conclusion that the plaintiff repurchased this property as joint owner cannot be faulted even under customary law.

In my view, since the plaintiff had manifested a clear intention to be a part owner, at least, following the repurchase, the first defendant became a trustee of the property in customary law as well as equity and was bound to hold same for himself and the plaintiff. If English law is applicable, this is a case where a resulting trust can be invoked in favour of the plaintiff. As explained in Halsbury’s Laws of England (3rd ed), Vol 14 at p 625:

“A resulting trust may arise solely by operation of law, as where, upon a purchase of land, one person provides the purchase-money and the conveyance is taken in the name of another. There is then a resulting trust in favour of the person

[p.688] of [1995-96] 1 GLR 672 providing the money, unless from the relation between the two, or from other circumstances, it appears that a gift was intended.”

It is clear that after the plaintiff had paid the ¢3,000 to redeem the house it was still agreed that the first defendant’s name be placed on the lease, not as a gift to the first defendant but as their joint property.

Next, counsel for the appellant talked about the extensions made to the house. The trial court declined to make any findings on this because it had not become necessary. But he went on to say that the second defendant’s claim that he made the extensions was a bare assertion without any evidence in support. I thought the judge had effectively made up his mind but he stopped short on that note without deciding who actually did the extensions. This court had held that it is the duty of the trial court to make primary findings of facts on contested issues and that an appellate court which had neither seen the witnesses nor heard their evidence could not resolve matters in controversy: see Asiama v Adjabeng [1971] 2 GLR 171 at 180-181, CA and where there are no findings of facts the trial is held unsatisfactory. But in this case, the trial court held that the resolution of this issue was not material to the determination of title to the house, and I think he was right. A trespasser who erects buildings on land does not thereby acquire title to the land by that act. Thus since it has been found and held that the plaintiff was a joint owner of this property and that the second defendant was not a bona fide purchaser, even if he did the extensions, he did so at his own peril. Ground (5) fails.

I think the trial court having found that the second defendant paid no money to the first defendant to buy this house should have concluded that he was not a purchaser at all, let alone for value. For it was not the second defendant’s case as pleaded that Kwasi Berchie was his front man and no such evidence was led at the trial. Indeed, the second defendant in his pleadings denied every averment concerning the said Kwasi Berchie. The trial court’s finding that Kwasi Berchie was the front man for the second defendant and therefore the purchase price of ¢13,000 paid by Kwasi Berchie was in fact for the second defendant is not borne out by the record and is accordingly expunged from the record. Thus at the end of the day, as said earlier, there was no evidence of purchase led by the second defendant except what he said the first defendant told the committee that he sold the house to him and not Sergeant Yeboah. That was clearly untrue having regard to the

[p.689] of [1995-96] 1 GLR 672 evidence that Kwasi Berchie was at the time the person the first defendant was dealing with. And the records at the State Housing Corporation clearly supported this. From the various letters already referred to, it is clear that the second defendant was trying to step into the shoes of Kwasi Berchie in 1981 at a time the first defendant had completely left Kumasi and his whereabouts were not known. The judgment was thus not against the weight of the evidence nor was the second defendant’s case not considered.

In conclusion, we vary relief (a) to read a declaration of joint ownership in favour of the plaintiff and the first defendant. Subject to this variation, the other conclusions and orders of the trial court are endorsed. The costs awarded jointly against the first defendant are set aside. The appeal is dismissed accordingly.

DECISION Appeal dismissed. DRKS