REINDORF ALIAS SACKER vs. REINDORF [1974] 2 GLR 38

CASES REFERRED TO

(1) Barrack v. M’Culloch (1856) 3 K. & J. 110; 26 L.J.Ch.105; 28 L.T. (o.s.) 218; 3 Jur. (N.S.) 180; 5 W.R. 38.

(2) Blackwell v. Blackwell [1943] 2 All E.R. 579, C.A.

(3) Heard v. Pilley (1869) 4 Ch. App. 548; 38 L.J.Ch. 718; 21 L.T. 68; 33 J.P. 628; 17 W.R. 750, C.A. (4) Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92; 2 W.& T.L.C. 749; 30 E.R. 42.

NATURE OF PROCEEDINGS

ACTION by a wife against her husband for a declaration of title to certain properties, an account and an injunction to restrain the husband, his servants and agents from interfering with the wife’s interest in the said properties. The facts are fully stated in the judgment.

COUNSEL

Nii Odoi Annan for the plaintiff.

Joe Reindorf for the defendant.

JUDGMENT OF HAYFRON-BENJAMIN J.

The plaintiff’s original claim filed on 15 December 1969 is for:

“(a) Declaration that she is a joint or co-owner with the defendant of premises No. C290/5, and C28/5, Nima, Accra, both properties having been built and acquired by the joint efforts, labours and moneys of both plaintiff and defendant, and that she is entitled to one-half share in the said properties and the proceeds or income derived from the said properties;

(b) An account of all rents collected from the said premises from 1958 to date of judgment; and (c) perpetual injunction restraining the defendant, his agents, servants and others from interfering with the plaintiff’s joint interest in these properties.”

The writ containing these claims was accompanied by a statement of claim in which the plaintiff averred that she is the lawful wife of the defendant; and that between the years 1951 and 1957, the two of them jointly acquired several plots of land at Nima area, and erected thereon the houses, the subject-matter of the suit, namely, premises C290/5 comprising two houses and premises C28/5, comprising one house. These houses have been let out to tenants including the Animal Husbandry Division of the Ministry of Agriculture, Accra. The parties have seven children now living. The defendant according to the plaintiff’s statement of claim has deserted the plaintiff, forcibly thrown her out of the matrimonial home, which was one of the houses in premises C290/5, and is now cohabiting in the said house with his concubines. He has taken complete charge of [p.41] of [1974] 2 GLR 38-46 the other premises and he is collecting the rents accruing, without giving any share thereof to the plaintiff.

The defendant in his original statement of defence filed on 30 January 1970 denies having deserted the plaintiff. He states that it is rather the plaintiff who deserted him and moved out of the house to cohabit in illicit union with her uncle. He admits occupying the matrimonial house, and also that the other house No. C28/5 has been rented, but states that the proceeds therefrom are used in paying the income tax, school fees of the children up to 1963, house rates and the costs of materials credited in building the said house and also certain of the plaintiff’s own debts. He further contends that the plaintiff has also rented another house No. C70/5(which is not the subject-matter of litigation) and collects the rents therefrom. He states that “this practice is not checked because the plaintiff still enjoys benefits as the defendant’s wife.” As regards title or ownership of the properties, the defendant contended that:

“Houses No. C290/5, C28/5 and C70/5 are all his properties but when building C28/5 and C70/5 both husband and wife thought of safe-guarding the interests of the wife and children in case of the husband’s death intestate. This was in anticipation of family claims. The names of wife and children were added in the document covering C28/5 and C70/5 to give effect to our plan.”

The houses were all built by the defendant and not by the joint efforts of the plaintiff and defendant.

The defendant finally raised by his statement of defence the question as to whether the parties being husband and wife, an action can be maintained for the partition or division of marriage or family property. The defendant stated in paragraph (11) of the said statement:

“The defendant contends that the plaintiff has no right to divide the family property as they are both married and living. The plaintiff is the legal wife of the defendant and cannot claim any division of the property from the defendant while the marriage subsists. Besides it is denied that she has any portion of the property.”

In the events that followed, and especially the amendment of the claim by the plaintiff, it has become unnecessary to consider this question in detail at this stage. The same question however arises indirectly in another context which we shall examine later on in this judgment.

On 18 February 1970 the plaintiff was granted leave to amend the endorsement on her writ of summons and also the statement of claim. The amendment altered the basis of the plaintiff’s claim entirely. Paragraph (1) of the endorsement of the writ was amended to read:

“A declaration that plaintiff is the owner of all the premises Nos. C290/5 and C28/5, Nima, Accra, both properties having been built and acquired by the plaintiff’s own funds without the aid and help of the defendant, and that the plaintiff is entitled to the said properties and the proceeds of the income derived from these properties.”

[p.42] of [1974] 2 GLR 38-46

And paragraph (7) of the statement of claim was made to read: “that during the years 1951 to 1957 plaintiff acquired and built three houses, namely, premises Nos. C290/5, C28/5 and C70/5, Nima, Accra, herself without the aid and help of the defendant.” The plaintiff in her reply set up her illiteracy as a contributing factor in the conveyance being made in their joint names. She further claims that the defendant is estopped in equity by his conduct in disputing the plaintiff’s claims. The actual words of the reply must be set out to show more clearly their effect and their absurdity. The reply states:

“(3) In reply to paragraph (7) of the defence plaintiff avers that she acquired and built all the three houses, namely, C290/5, C28/5 and C70/5 personally with her own funds without the help or aid of the defendant and that defendant’s name was added to the title deeds by defendant without the knowledge and consent of plaintiff; plaintiff being an illiterate person.

(4) In further reply to paragraph (7) of the defence plaintiff avers that defendant cannot be heard to dispute plaintiff’s claim to sole ownership as defendant’s conduct creates an estoppel in equity.

(5) In reply to paragraph (9) of the defence, plaintiff avers that she acquired and built house No. C70/5 herself without the aid or help of defendant and has been in undisturbed possession of the said house and has rented and collected the rent of the said house without any interference, let or hindrance from defendant. Defendant’s allegation in respect of this house is false.”

At a very late stage in the proceedings the defendant sought and obtained the leave of the court to file a counterclaim. I decided to proceed with the trial the same day without adjournment to enable the plaintiff to file a defence to the said counterclaim because the said counterclaim was entirely based on averments in the statement of defence which the plaintiff had already answered in her reply. Moreover it was clear that the counterclaim was filed to enable formal orders to be made in favour of the defendant in the event of the plaintiff’s case failing. There were no fresh issues of law or fact raised for determination. I considered the reply if established as a sufficient defence to the counterclaim.

This as I have already said is a suit brought by a wife against her husband in respect of property acquired during coverture. It appeared from the evidence that the parties are married under the Marriage Ordinance, Cap. 127 (1951 Rev.). Before examining the evidence and considering the issues raised I think it would be prudent to ascertain the legal position of a wife in respect of her capacity to acquire separate property, and also to bring an action in respect of such property. Section 2 of the Married Women’s Property Ordinance, Cap. 131 (1951 Rev.), provides that:

“The wages and earnings of any married woman acquired or gained by her in any employment, occupation, or trade, in which she is engaged or which she carries on separately from her husband, and all investments of such wages, earnings, or property, shall be deemed

[p.43] of [1974] 2 GLR 38-46 and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money and property.”

I do not think it is necessary to consider the controlling words of this section except to say that I am of the view that a married woman is still trading separately from her husband even where the husband occasionally runs errands for her in the course of the business or where the husband assists her in investing the proceeds of her trade by supervising any building she puts up out of her earnings. Furthermore the mere fact that the husband provided the initial capital or actually set up the wife in trade, as is usual in this country, would not of itself imply that the married woman is not trading separately from her husband. In England however there are decisions to the effect that savings effected by the wife out of money given to her by her husband for household purposes, and investments made with such savings, belong to the husband: see Barrack v. M’Culloch (1856) 3 K. & J. 110 and Blackwell v. Blackwell [1943] 2 All E.R. 579, C.A.

In this case, there is clear evidence which I accept that the plaintiff is both a housewife and a trader, a combination which is not uncommon in this country. She is what is graphically described as a “market woman.”

She contracts to buy essential commodities and foreign foods from the big importers in bulk and effects a forward sale of her portions to other market women who retail these goods. She is also engaged in retailing on her own behalf at Makola market, the leading and principal market in Accra. I am satisfied that the plaintiff realised some money from these activities, which I am satisfied she carried on separately from her husband, who when not unemployed, was engaged in full time employment as a clerk at the Public Works Department at Jumapo or as a constable. There is no evidence that the defendant at any time during the marriage joined the plaintiff in her trading activities. His case is that he provided the initial capital. Even if I were to accept this piece of evidence, I would still not be satisfied that the plaintiff was not trading separately from the defendant. This is not a case where A. provides capital for B., who is to use his own labour in trade in order that the parties may share in the profits of the trade. There is no allegation that the parties were in partnership, or that the plaintiff was an agent (commission or not is not material) of the defendant. The evidence satisfies me that the plaintiff was trading on her own account, and not under the control or supervision of her husband in her trading activities. I am not satisfied with the evidence by the defendant that he provided the initial capital to set up the plaintiff in trade. As I have said, earlier, it is usual in this country for husbands to set up their wives in trade and especially as in this case the plaintiff was very young when she started trading. The evidence however is that she had been living as a maidservant with another woman, and there assisted the said lady in trade. There is no evidence that she was given any capital by the said lady, but it is clear that she had learnt something about trade in Accra at the time of her marriage. She commenced trading without any capital,

[p.44] of [1974] 2 GLR 38-46 and in the type of trade in which she started, it is usually unnecessary to have any or any large or significant capital. She started what is sometimes called “forward trading” or more technically, she started trading in “futures.” She would bargain with a big importer to buy, e.g. 1,000 bags of flour at one pound, a bag, and then scout round among the retailers for prospective purchasers to whom she would offer the flour at £G1 5s. per bag. She would then collect £G1 5s. per bag from these retailers and thereby obtain £G1,250. She would pay £G1,000 to the big importer, and the £G250 would cover the costs of labour and transport and some profit, if she is astute enough. It is clear from the evidence that the plaintiff was a very astute and successful market woman. I reject the evidence of the defendant that he provided the initial capital to set up the plaintiff in trade.

There is, in my view sufficient evidence on the source of the funds utilised in purchasing the plots of land and in the erection of the building. The plaintiff called the mason, and the carpenter to testify. It is clear from their evidence that the money used in paying them came from the plaintiff. One of them even said that he used to be paid in sixpences and shillings mixed with flour. I do not think police constables or clerical assistants in the public service were even in those days paid in sixpences. They also testified that everytime they wanted their wages, they had to wait for the plaintiff to return from the market before they were paid. The plaintiff also called evidence on the acquisition of the plots on which the buildings in dispute were erected.

The defendant seems to rely heavily on the document of title tendered in evidence and covering the plots in dispute. They were all made in the joint names of the plaintiff and the defendant. The plaintiff’s explanation for this is most unsatisfactory. She states that she is an illiterate, and that she was misled into executing the document in that form. She says she has never consented to the defendant being a joint owner with her of the building as shown by the title deeds. It is clear that the plaintiff is an illiterate person, and that there is no presumption that she understood the documents which she executed. The burden it is true lies on the defendant to lead such evidence which has not been done in this case. Nevertheless I do not think that the plaintiff in this case should be allowed to rely on her illiteracy. On 4 February 1970, she swore to an affidavit in support of a motion for judgment in default of a defence. This affidavit was interpreted to her in the Ga language according to the jurat and she seemed perfectly to have understood the contents. In this affidavit she claimed as joint or co-owner with the defendant of the premises. She must have known that the title deeds bore the names of the two of them as joint owners. I am satisfied that she knew that the documents bore the names of the two of them as joint owners. This however does not mean that she consented to make a gift of an interest in the premises or property to the defendant. The defendant does not rely on a gift; he states that he built the houses and rather had the conveyances made in their joint names to safeguard the interests of the wife and children in the event of his dying intestate. I have already stated that I accept the evidence that it was the plaintiff who

[p.45] of [1974] 2 GLR 38-46 advanced the moneys for the purchase of the plots and the construction of the buildings thereon. The question that arises for determination therefore is whether this evidence can be used to contradict the terms of the written documents of title. It is the law that:

“If the advance of the purchase-money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made; for such evidence in effect shows that the nominal purchaser was really the agent of the true purchaser, a purpose for which parol evidence is always admissible.”

See Snell’s Principles of Equity (26th ed.), p. 192 and Heard v. Pilley (1869) 4 Ch.App. 548. The parol evidence admitted in this case clearly establishes that even though the plaintiff and the defendant are shown by the documents to be co-owners, the real purchaser and builder of the properties was the plaintiff who advanced the moneys used in buying the plots and constructing the houses. Similar situations have arisen before, and the legal position was clearly stated by Eyre C.B. in Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92 at p. 93. The learned Chief Baron said:

“The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; 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.”

This resulting trust will not however arise if it is established that the real purchaser intended a gift to the nominal purchaser. This will be presumed until the contrary is proved, where the real purchaser is the husband of the nominal purchaser or stands in loco parentis to the latter. There are certain relations not peculiar to Ghana, but which have gained colourful names here, where a comparatively rich and elderly woman forms an association with a young man of little or no visible means of support. The young man lives off the rich woman, and may even have his education and further training financed by this rich woman. The relationship sometimes blossoms into marriage, and properties are bought by the rich woman in the name of the young husband. These are called “scholarship” cases. No advancement can be presumed in such cases; there must be evidence, direct or circumstantial that a gift was intended by the wife to the husband. In this case both the husband and the wife agree that whatever was the source of the funds used in purchasing the properties, there was no intention of benefiting the husband. The paramount purpose, if the husband is believed, was to benefit the wife and children. If on the other hand, the wife’s case is accepted, then a resulting trust arises in favour of the wife for where X

[p.46] of [1974] 2 GLR 38-46 purchases property (real or personal) and pays the purchase money, but instead of requiring the vendor to convey the property either to Y. alone or to himself, takes the conveyance in the joint names of himself and Y., equity will presume that the intention was that X. and Y. were to be trustees for X. As I said this presumption can be rebutted; in this case however I am satisfied that the defendant has not rebutted the presumption that he and the plaintiff are presumed to hold the properties in dispute as trustees for the plaintiff, who as I have found, is the real purchaser. I may mention in passing that even if I had found that the real purchaser was the husband, I would still have found a resulting trust in favour of the wife by applying the presumption of advancement, and from the defendant’s own clear pleading that the conveyances were taken in their joint names to safeguard the interests of the wife and children, in the event of his dying intestate. A clear interest to benefit the wife is manifest in this pleading.

Having found that the plaintiff is the real purchaser of these plots of land and the real person who paid for the construction thereon, I have now to consider what reliefs she is entitled to. The first relief she claims is a declaration that she is the owner of the premises in dispute, and that she is entitled to the said properties and the proceeds derived therefrom. The law is clear that where a party by the writ of summons claims an absolute title, and evidence shows that he is entitled to a lesser title, the court can make declaration in his favour of the lesser title. Under normal circumstances therefore, I would have made an order declaring the plaintiff as the beneficial owner of the properties in dispute. In this case, however, the plaintiff is also claiming an injunction and an account. She is the sole beneficiary, and sui juris. By claiming these remedies she is in effect putting an end to the trust. In the circumstances, I declare her the owner both legal and beneficial of the properties in dispute. The defendant is ordered to file an account of all rents collected from the premises in dispute and pay same over to the plaintiff. The defendant, his agents, privies and assigns are also restrained from dealing or having anything to do with the premises in dispute.

Costs to the plaintiff assessed at ¢400.00.

DECISION

Judgment for the plaintiff with costs.

S.E.K.