QUARTEY v. ARMAR [1971] 2 GLR 231

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27 MAY 1971

BEFORE: EDUSEI J.

CASES REFERRED TO

(1) Re Emery’s Investment Trust [1959] Ch. 410; [1959] 2 W.L.R. 461; [1959] 1 All E.R. 577; 103 S.J. 257.

(2) Dyer v. Dyer (1788) 2 Cox Eq. Cas. 92; 30 E.R. 42.

(3) Marshal v. Crutwel [1875] L.R. 20 Eq. 328; 44 L.J.Ch. 504; 39 J.P. 775.

(4) Rimmer v. Rimmer [1953] 1 Q.B. 63; [1952] 2 All E.R. 863; [1952] 2 T.L.R. 767, C.A.

(5) Balfour v. Balfour [1919] 2 K.B. 571; 35 T.L.R. 609, C.A.

(6) Silver v. Silver [1958] 1 W.L.R. 259; 102 S.J. 174; [1958] 1 All E.R. 523, C.A.

(7) Jones v. Maynard [1951] Ch. 572; [1951] 1 All E.R. 802; [1951] 1 T.L.R. 700.

NATURE OF PROCEEDINGS

ACTION for a declaration of title to certain houses and delivery of a deed of conveyance in respect of one of them. The facts are fully set out in the judgment.

COUNSEL

M. A. Mettle for the plaintiff. J. K.

Ahenkorah for the defendant.

JUDGMENT OF EDUSEI J.

The plaintiff and the defendant who were both Ghanaians, were married in Edinburgh, Scotland, in March 1950. The marriage was dissolved in April 1966 by the Kumasi High Court, and the defendant was [p.233] of [1971] 2 GLR 231 the petitioner. The appeal by the plaintiff against the judgment of the Kumasi High Court was dismissed by the Court of Appeal in April 1969.

When the marriage between the plaintiff and the defendant was dissolved in April 1966, the plaintiff mounted this action on 8 December 1966 claiming:

(a) a declaration that the plaintiff, Miss Juliana Charlotte Quartey, formerly Mrs. Armar, is the sole beneficial owner of the property known as house No. C.867/3 Adabraka (hereinafter referred to as “the Adabraka house”) and the property known as house No. B.777/14 Abossey Okai (hereinafter referred to as “the Abossey Okai house”);

(b) an order that the defendant do deliver up to the plaintiff the original deed of conveyance executed on 27 December 1962 and relating to the Adabraka house;

(c) an injunction restraining the defendant from holding himself out as the owner of both the Adabraka and the Abossey Okai houses, and

(d) an account of all moneys received by the defendant in respect of the Adabraka house and an order for the payment to the plaintiff of the amount found due to her.

The plaintiff in her statement of claim stated categorically that she purchased the two houses in question. The Abossey Okai house, an estate house, is in the plaintiff’s married name, whilst the conveyance of the Adabraka house is in the plaintiff’s maiden name.

The defendant in his amended statement of defence has denied the plaintiff’s claim and has stated that he purchased the two houses in the name of the plaintiff on the understanding that she should hold them as his property. The defendant therefore has counterclaimed for a declaration that the plaintiff holds the Abossey Okai and the Adabraka houses as trustee for him. The substance of the plaintiff’s claim is that she provided the purchase money for both houses, and therefore she is the beneficial owner. The defendant on the other hand is saying that he provided the purchase money for both houses but put them in the name of the plaintiff who was to hold them as trustee for him.

I think it is necessary at the outset to make the position clear by saying that the plaintiff’s claim is not founded on the equitable doctrine of advancement, i.e. she is not saying that the defendant purchased the two houses, and intending to make a gift of them to her, put them in her name. Her claim is that she herself provided the purchase money for the houses and therefore claims them as the beneficial owner. It becomes of great importance to assess the evidence, and to try to determine the main issue in the case, i.e. who provided the purchase money for the two houses in question.

I shall deal with the Adabraka house first. The purchase price for this Adabraka house was £G5,500, but the conveyance is in the maiden name

[p.234] of [1971] 2 GLR 231 of the plaintiff (Juliana Charlotte Quartey). The plaintiff stated under cross-examination that she paid the initial amount of £G4,000 from her own resources, and although she kept a banking account she kept this huge amount in her bedroom in their Kumasi bungalow, where she was staying with her husband, the defendant. The plaintiff, a school teacher, however, testified that she started to teach in 1953 and was earning between £G600 and £G650 per annum, but in June 1953 she had a baby and she did not work again till August of that year. In 1954 she joined her husband in the United Kingdom, and during this time she did not work and therefore did not earn anything. In 1955 the plaintiff was back in Ghana and had another baby. She was granted three months maternity leave on one-half of her salary as a teacher. The evidence does not state when she resumed teaching in 1955 and the time she went on maternity leave. There is also no evidence of the amount of her salary. During all this time, the defendant was in the United Kingdom, and the plaintiff maintained herself from her salary together with some assistance from her mother.

The defendant, however, returned to Ghana in November 1955 and joined the Government Medical Service. He worked in Accra until February 1957 when he was transferred to Hohoe where he took charge of the Government Hospital there. His salary at the time was over £G1,000 per annum, and, apart from his salary, he made about £G400 per month from his private medical practice. During the time the defendant was working at Hohoe (i.e. February-September 1957) the plaintiff was a full-time housewife and she earned no money. At the time the Adabraka house was purchased the defendant and the plaintiff lived in Kumasi as man and wife. The defendant was transferred to Kumasi in June 1961 after three years’ specialist training course in the United Kingdom (September 1957-1960). The defendant at the time was the consultant obstetrician-gynaecologist at the Kumasi Central Hospital, and his salary was £G2,100 per annum; he was allowed private practice from which he earned about £G500 per month. It is in evidence that the plaintiff before she joined her husband in Kumasi in 1961 was a teacher at the Accra Girls’ High School. At Kumasi she taught at the St. Louis Secondary School but there is no evidence as to her salary, and in any case it could only have been a modest sum having regard to the salary scales of secondary school teachers at the time. She, however, did no teaching work during the whole of 1962 in Kumasi, and therefore earned nothing. The initial payment of £G4,000 towards the purchase of the Adabraka house was made in 1962 when the defendant was in employment earning £G2,100 per annum and was also making about £G6,000 per annum from private medical practice. For almost two years at least, with such an appreciable income it is my view that the defendant, making allowances for food, clothing and other necessaries for his family, was thus in a sound financial position to be able to provide £G4,000. Again it must be borne in mind that the defendant whilst a student in Sheffield, England, together with a friend, purchased a house [p.235] of [1971] 2 GLR 231 there. This shows the acquisitive instinct the defendant had developed, and it is not surprising that whilst he was back in his native land he would wish to own a house.

The plaintiff on the other hand was not employed throughout 1962; she could not in my judgment have saved such a large sum of £G4,000 from her salary and kept it in her bedroom during the occasions that she did some teaching. As a woman she might have used some part of her salary to buy things for herself. She did not also state how much she earned as a sculptress and, I think, it could not have been anything but modest sums which put together could not, with her savings, if any, from her salary, give her £G4,000. The procurement of the £G4,000 from the plaintiff’s bedroom in 1962 was reminiscent of the fantastic and incredible stories put forward by some witnesses before the various assets commissions of inquiry set up after the 1966 coup d’etat when they said that they kept large sums of money in their wardrobes whilst they kept banking accounts as well. The plaintiff, a qualified teacher, had a banking account with the Barclays Bank, High Street, Accra, but she chose to keep for some years £G4,000 in her bedroom. I do not believe her story for the plaintiff did not strike me as a truthful witness. I reject her evidence in respect of this matter. On the other hand, the defendant, from the manner he gave his evidence, left me in no doubt that he was an honest and truthful witness. His story about the £G4,000 was at least, if nothing at all, more probable than the plaintiff’s. I accept his evidence that he provided the £G4,000 for the initial payment towards the purchase of the Adabraka house.

As regards the payment of the remaining £G1,500 there is no dispute. It is admitted on both sides that it was the defendant who paid this money by cheque. The plaintiff, however, tried to put up the story that it was a loan from her husband to her. It does not require the mind of a philosopher to reject this story as untrue; it was an attempt to offer an explanation for the payment of this amount by cheque by the defendant. I am tempted to say that if payment of the £G1,500 had been effected by cash the plaintiff’s story might have been different, and there would have been no reference to any loan transaction. The story of the loan transaction was a concoction, and my general impression of the plaintiff is that she is a stranger to truth. There never was any loan transaction between the plaintiff and the defendant. I accept the evidence of the defendant, who all along has demonstrated his honesty and truthfulness in the witness-box, that he also paid the £G1,500 as final payment towards the purchase of the Adabraka house. On the evidence I find as a fact that the total sum of £G5,500 (made up of £G4,000 and £G1,500) was provided by the defendant for the purchase of the Adabraka house.

In coming to this conclusion I have adverted my mind to the following passage in The Law of Trusts by George W. Keeton (8th ed.), p. 144 where the learned author has stated:

[p.236] of [1971] 2 GLR 231

“The parol evidence, however, must clearly prove the fact of payment by the person for whom it is attempted to establish the trust; although circumstantial evidence (e.g. that the means of the nominal purchaser were so small that he would have been unable to supply the money himself) will be accepted as sufficient.” The defendant gave as his reason for the conveyance of this house in his wife’s maiden name as follows: that he wanted “to ensure in case of my death intestate my wife would have possession of the house for my children. I considered this precaution necessary because my wife, the plaintiff, was not particularly popular with my relations.” The defendant in his testimony stated that it is his intention now to make a will though at the time the conveyance was taken in the plaintiff’s name he had not prepared any will. Counsel for the plaintiff has, however, contended that even if the purchase money was provided by the defendant the reason for the conveyance in the wife’s name was to defeat the claim of the defendant’s family (in the customary sense) and therefore it was a sham. The defendant, counsel argued, should not be permitted to profit by his wrong, and the plaintiff should be declared the owner of the Adabraka house. There is no doubt that the plaintiff’s counsel in making this submission was relying on the maxim: ex turpi causa non oritur actio, and he referred the court to Re Emery’s Investment Trust [1959] 1 All E.R.

577. That case, however, is distinguishable from the present case because in that case the purpose for acquiring the shares in the wife’s name was to evade the revenue law and this was clearly against public policy. In this case there was no question of evasion of revenue law for whether the property was conveyed in the wife’s name or devised in a will to the wife the appropriate revenue fees would be payable. It is of course a sound proposition of law that there can be no resulting trust if the purpose of the trust is unlawful, but I cannot by any stretch of legal imagination say that the purpose for which the conveyance was taken in the name of the wife was tainted with illegality. There is nothing in my view unlawful or immoral about it. It is not against public policy either. In any case when the conveyance was executed, the appropriate revenue fees were paid (see exhibit G).

It is absolutely essential to bear constantly in mind that the plaintiff’s claim is that she bought the house for her own beneficial use for ¢G5,500. She is in fact saying that she provided the purchase-money. This is what she said: “I bought the house situate on plot No.C.867/3, Asylum Down, Accra on 27 December 1962 from one Taysir Mouthtiseb for £G5,500. I paid for this house.” The plaintiff does not base her claim on the equitable doctrine of advancement. This presumption pre-supposes that the purchase-money for the property was provided by the husband and as he intended the house to be a provision for her he caused the conveyance to be prepared in her name. This is not the plaintiff’s case. The plaintiff’s case is that she bought the Adabraka house with her own money. Having decided that the purchase-money for the Adabraka house was supplied by the defendant, I now proceed to consider the legal position. The general

[p.237] of [1971] 2 GLR 231 legal principle was stated nearly 200 years ago in the leading case of Dyer v. Dyer (1788) 2 Cox Eq. Cas. 92 as follows:

“The clear result of all the cases without a single exception is that the trust of a legal estate whether freehold, copyhold or leasehold, or whether taken in the names of the purchasers and others jointly or in the name of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the Common Law that where a feoffment is made without consideration, the use results to the feoffor.”

The intention of the defendant that he should remain the beneficial owner of the Adabraka house is further evidenced by the fact that from the moment he acquired the house the deed of conveyance (exhibit G) including the document showing the root of title of the vendor as well as the tenancy agreement between the plaintiff and the tenant, one Mr. Hatherley, have all been in his possession. Having seen the plaintiff in the witness-box, I can say that she is an intelligent woman, and I cannot believe that a person of the plaintiff’s calibre would willingly allow such important documents to remain in the defendant’s possession during the marriage and only demand them after the marriage had broken down. From my observation of her in the witness-box, my view is that she is not the type of a woman who would permit such a situation to continue for any length of time if she indeed bought the Adabraka house. Again the fact that the defendant has been collecting the rents of the house since its acquisition for his own use, and paying house rates himself and the fact that he took a renewal of the tenancy agreement of the Adabraka house in his own name clearly indicate that the defendant considered himself all the time as the beneficial owner of that house. I have no doubt at all in my mind in view of the evidence that before the marriage of the parties broke down the plaintiff freely acknowledged the defendant to be owner of the house, and that the plaintiff mounted this action to spite and embarrass the defendant when he successfully instituted divorce proceedings against her.

Looking at the facts in this case and taking into account all the circumstances as a juryman I think the conveyance of the Adabraka house in the plaintiff’s name was a mere arrangement for convenience: see Marshal v. Crutwel (1875) L.R. 20 Eq. 328.

In the result the plaintiff’s claim fails and it is dismissed. The defendant succeeds on his counterclaim and there will be a declaration that the defendant is the owner of house No. C.867/3, Asylum Down, Adabraka, Accra, and the plaintiff holds it as a trustee for the defendant. The plaintiff is also restrained from asserting any claim whatsoever to the said house.

I now come to deal with the Abossey Okai house which forms part of a housing estate. The plaintiff’s case is that she provided the initial deposit of £G95 towards the hire-purchase of this estate house and that [p.238] of [1971] 2 GLR 231 she subsequently paid the monthly instalments of £G10 2s. 11d. Indeed her contention is that she made all the payments towards the purchase of this Abossey Okai house.

The defendant on the other hand has testified that before the plaintiff left England for Ghana in 1954 he had had discussions with her about the possibility of acquiring a house in Ghana. The plaintiff wrote to her husband in England informing him that estate houses were being built and that there was a reasonable chance of securing one. On his advice the plaintiff applied for one estate house in her married name. The evidence clearly establishes that the defendant returned to Ghana in November 1955, and the actual allocation of the Abossey Okai house was made in 1956 by the State Housing Corporation to the plaintiff. The total hire-purchase price of this house was £G950. The defendant himself was not sure whether he paid the initial deposit of £G95. This payment was made on 27 February 1956 as evidenced by exhibit A1. The plaintiff was positive that she paid the deposit of £G95. It would appear from the evidence that at the time this deposit was paid the plaintiff had worked for some time as a teacher on a salary of £G600 per annum. Though at the time of the payment of the initial deposit of £G95 the defendant was also working as a government medical officer in Accra, I do not think that the modest sum of £G95 was too much for the plaintiff to provide from her salary and in view of the defendant’s evidence that he was not sure of the payment of this deposit by himself, I am prepared to accept the plaintiff’s evidence that she paid the deposit of £G95 on the Abossey Okai house.

As regards the first instalment of £G10 2s. 11d. which was paid on 20 February 1957 (see exhibit A2) the plaintiff claims that she paid it whilst the defendant asserts the contrary adding that he paid it. The plaintiff gave birth to a child on 17 February 1957 and I do not think that three days after birth the husband, the defendant herein, would burden his wife, the plaintiff, with the payment of only £G10 2s. 11d. when both of them were together as man and wife. The defendant who struck me as a very honest man would willingly pay the little sum of £G10 2s. 11d. whilst the plaintiff cared for the newly-arrived baby. I prefer the evidence of the defendant to that of the plaintiff and find that the first instalment of £G10 2s. 11d. was paid by the defendant.

In March 1957 the defendant had been transferred to the Hohoe Government Hospital and his salary was £G1,000 per annum. In addition to this he earned about £G400 per month from private medical practice. The plaintiff who had joined her husband at Hohoe did not work to earn anything. Between February 1957 (when she gave birth to their fourth child) and September 1957 (when the husband left for England) the plaintiff was a full-time housewife. It does appear that the instalments covering the period of April to December 1957 were paid in a lump sum on 12 March 1957 and the amount was £G91 6s. 3d. (see exhibit A3 and the entries in exhibit 1). The plaintiff in her evidence testified that she paid the instalments stated on exhibit A3, and the defendant also asserted that he [p.239] of [1971] 2 GLR 231 paid those instalments. In view of the relative financial positions of the plaintiff and the defendant at the material time I prefer the evidence of the defendant to that of the plaintiff and find that the sum of £G91 6s. 3d. which is evidenced by exhibits A3 and 1 was paid by the defendant on 12 March 1957 at a time when the plaintiff was a full-time housewife. There is evidence also that the defendant was then preparing to leave Ghana in September 1957 for England to continue his specialist training in obstetrics and gynaecology; and his testimony is that since his family would not accompany him on this trip his main concern was to have them properly accommodated, and with this in view he decided to complete payment of the purchase price of the Abossey Okai house. He said he therefore gave the plaintiff £G800 to pay to the State Housing Corporation. The plaintiff also testified that she paid the £G800 from her own resources, as evidenced by exhibit A4. This payment was made on 14 June 1957 at a time when the plaintiff was a full-time housewife and earning no money; it should also be borne in mind that the plaintiff’s evidence is that even though she kept a banking account she did not pay this money from her account but kept this huge sum of £G800 in the house. There is evidence from the plaintiff herself that at

Hohoe she was a full-time housewife. She did not offer any explanation for the payment of £G800 if in fact she paid it when the monthly instalment was the modest figure of £G10 2s. 11d. I disbelieve the plaintiff about the payment of the £G800 for she was quite incapable of providing this amount at the time. The evidence of the defendant as to his financial capabilities at Hohoe had been adverted to already-for he was receiving a salary of £G1,000 per annum and making about £G400 per month from private practice-and I have no difficulty in accepting his evidence that he provided the sum of £G800 (exhibit A4) for the Abossey Okai house. And finally the sum of £G7 6s. 8d. was paid on 28 June 1957 (exhibit A5) and here too I accept the defendant’s evidence in preference to the plaintiff’s for the simple reason that the defendant was earning money as a medical officer at the time whilst the plaintiff had stopped working for some five months then. It was the defendant’s intention to complete payment of the Abossey Okai house before his departure to England in September 1957, and this would settle his mind about accommodation for his wife and children, and here was a father – a pater familias – who was concerned about the welfare of his family. The reason for the receipts (exhibits A1-A5) bearing the name of the plaintiff is not far to seek: the original application for the Abossey Okai house as well as its subsequent allocation by the State Housing Corporation was made in the name of the plaintiff, and receipts for payment made towards the hire-purchase price had to be written out in her name.

Certain extensions had been done to this Abossey Okai house and there are conflicting claims as to which of the two parties provided money for these extension works which were under the supervision at various times of Lieutenant-General J. A. Ankrah and Isaac Okaikwei Armar, the first witness for the defendant. Neither party called Lieutenant-General

[p.240] of [1971] 2 GLR 231

J. A. Ankrah to give evidence for reasons not apparent to the court. Be that as it may, the defendant called as his first witness, his brother. The defendant said that whilst in Kumasi he gave £G200 to the plaintiff to deposit with her mother in Accra so that the first witness for the defendant could draw on that for the extension work on the Abossey Okai house. The plaintiff on the other hand said that she paid for the extensions. The first witness for the defendant supervised the extension works and his evidence appears to support that of the defendant. By exhibit 3 (a letter dated 30 September 1964 from the plaintiff to the first witness for the defendant) the plaintiff asked the first witness for the defendant to suspend further work on the Abossey Okai house because the amount voted for the extension works had been exceeded and the defendant too was out of the country. A portion of exhibit 3 reads as follows: “But from the statement of accounts I have received we have exceeded our limits without achieving our goal. . . . In the circumstances therefore I am forced to request you kindly to suspend further work on the project until Armatei returns . . .”

This Armatei is the defendant who was in England at the time. If it was the plaintiff alone who was providing money for the extension works on the Abossey Okai house then I pose the question: Why suspend the work? If the work was to be suspended until the return of the defendant from England then it is reasonable to infer that he (the defendant) was the person who provided the money for the extension works and not the plaintiff. In the circumstances I prefer the evidence of the defendant on this matter and find that the £G200 for the extensions came from the defendant.

It does appear from the evidence also that other sums of money were expended on extensions to the Abossey Okai house but neither party could specify the exact amounts so expended. The plaintiff’s case is that she provided the purchase money for the Abossey Okai house, and the cost of the extension works was paid by her. It is not her case that the defendant made all the payments in respect of the house which is in her name with a view to advancing her in life. The plaintiff is not relying on the presumption of advancement.

In such circumstances the general proposition of law, therefore, is that if two or more persons together purchased property and provided the money in unequal shares, the purchasers were presumed to take as tenants in common in shares proportionate to the sums advanced. But where the persons involved in the purchase are man and wife, unless there is evidence to the contrary, it is presumed that they intended to own the property jointly and the equity maxim – “equality is equity” prevails. Romer L.J. made the point clear in Rimmer v. Rimmer [1952] 2 All E.R. 863 at p. 870, C.A. when he said that, “cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the

[p.241] of [1971] 2 GLR 231 respective rights of strangers …” And Atkin L.J. also observed in the well-known case of Balfour v. Balfour [1919] 2 K.B. 571, C.A. that the ordinary incidents of commerce have no application in the ordinary relations between husband and wife. Here I am considering what I may call a family asset, something acquired by the spouses for their joint use, with no thought of what is to happen should the marriage break down. Thus in Silver v. Silver [1958] 1 W.L.R. 259 at p. 264, C.A. Parker L.J. said: “In these circumstances it seems to me that in the present age common sense dictates such an asset should be treated as the joint property of both, in the absence of evidence to the contrary. This view is well expressed by Denning L.J. in Fribance v. Fribance [1957] 1 W.L.R. 384 at 387 and also in Rimmer v. Rimmer [1953] 1 Q.B. 63. I need only refer to the passage in his judgment in the latter case where he said (at p. 74) `it seems to me that when parties, by their joint efforts save money to buy a house which is intended as a continuing provision for them both, the proper presumption is that the beneficial interest belongs to them both jointly. The property may be bought in the name of the husband alone or in the name of the wife alone, but nevertheless if it is bought with money saved by their joint efforts and it is impossible fairly to distinguish between the efforts of one and the other, then the beneficial interest be presumed to belong to them both jointly’.”

It is quite clear from the defendant’s evidence that when he made the final payment of the £G800 his chief concern was to accommodate properly his family who must be spared the worry of paying the instalments whilst he was away in England pursuing his specialist training. There can be no doubt that he was intending the Abossey Okai house to be, what I may term, the matrimonial home, a family asset, for himself, his wife and Children, and the plaintiff herself regarded it as such and reference is made to the passage quoted from her letter (exhibit 3) to the first witness for the defendant. The evidence, however, establishes that the wife contributed £G95 towards its purchase; she might have paid part of the cost of the extension works also. In fact the plaintiff now lives in this house with her children by the defendant. I think it would be wrong to attach to it the precise figures contributed by them so as to say that the beneficial interests must be arithmetically related to the sums contributed. It is too true that the defendant’s contributions were by far the greater, but in the absence of a clear intention to hold the property in definite shares I hold that the plaintiff and the defendant own the Abossey Okai house jointly. In coming to this conclusion I have also considered the decision in Jones v. Maynard [1951] Ch. 572 where a banking account was in the husband’s name but was fed by moneys of both and treated as a joint account. Vaisey J. held in this case that although the husband’s contributions were much larger than the wife’s, it belonged to them both jointly.

On the facts and in the circumstances of this case (about the Abossey Okai house) although the wife holds the sole legal title to the Abossey Okai house, she holds it on behalf of both of them as their joint property.

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In view of the substantial victory of the defendant in the whole case, I award him N¢300.00 costs against the plaintiff.

DECISION

Judgment for the defendant in respect of the first house. Both plaintiff and defendant to own the second house jointly.

S.A.B.