SYKES vs. ABBEY [1995-96] 1 GLR 81

CASES REFERRED TO

(1) Rimmer v Rimmer [1953] 1 QB 63; [1952] 2 All ER 863; [1952] 2 All TLR 767, CA.

(2) Fribrance v Fribrance (No 2) [1957] 1 WLR 384; [1957] 1 All ER 357; 101 SJ 188, CA.

(3) Achiampong v Achiampong [1982-83] GLR 1017, CA.

(4) Anstis, In re; Chetwynd v Morgan; Morgan v Chetwynd (1886) 31 ChD 596, CA.

(5) Plumptre’s Marriage Settlement, In re; Underhill v Plumptre [1910] 1 Ch 609.

(6) Walsh v Lonsdale (1882) 21 ChD 9, CA.

(7) Zimbler v Abrahams [1903] 1 KB 577, CA.

(8) Gray v Spyer [1922] 2 Ch 22; CA.

(9) Gissing v Gissing [1971] AC 886; [1970] 3 WLR 255; [1970] 2 All ER 780, HL.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff, the ex-wife of the defendant, to the Supreme Court against the decision of the Court of Appeal setting aside the order of the trial High Court, Accra ordering the defendant to convey the house in dispute which had been built on a plot of land registered in the name of the defendant to the plaintiff. The facts are sufficiently set out in the judgment of Aikins JSC.

COUNSEL

Odoi Sykes for the plaintiff-appellant.

E M Narh (with him D Mensah) for the defendant-respondent.

JUDGMENT OF AIKINS JSC.

The plaintiff and the defendant in this case were married

[p.84] of [1995-96] 1 GLR 81 under customary law in 1960. They lived together happily as man and wife for some 27 years until the marriage broke down in 1987. In the early stages of the marriage (to be precise two years after the marriage ceremony) the plaintiff, desirous of owning a house gave cash the sum of £70 to the defendant to purchase for her a plot of land, which the husband did and informed her that the land was situate at Abeka, but when later she pressed for the documents on the land, the defendant told her that the land had been stolen by someone who quickly put up a house on it. As a result, the husband released one of his own three plots of land to her as a replacement, and told her to build on it while he pursued the preparation of the title deed in her name together with the building plans.

The defendant’s version was slightly different. He denied ever giving the plaintiff any land in replacement of the one at Abeka. However, he admitted receiving the £70, but said that when the land was paid for, the surveyor who demarcated the land, one J O Abbey, gave the site plan and receipts covering the transaction to the plaintiff at their residence. He said when later he got to know that the land had been sold to another person, he informed the plaintiff, and the vendor promised to replace it, but in the event failed to honour his promise till his death.

Even though the plaintiff avers that she started building the house all by herself, after the defendant had offered to assist her with the supervision of the house, in reliance on the assurances given her by the defendant, ie to give her a valid title deed to the plot, and also to get her the final building plans in her name together with a building permit, the defendant, in paragraph (6) of his statement of defence, talks of putting up the building on the plot exclusively by him out of his own resources without any contribution in any shape or form from the plaintiff, except that on completion of the building the plaintiff of her own volition paid for the connection of light and water to the premises.

After fruitless attempts to get the defendant to execute the necessary documents in respect of the land in her favour, the plaintiff issued a writ in the High Court in October 1987 claiming:

“(a) A declaration that the plaintiff is the owner of house No B337/22 (B586/22) North Kaneshie, Accra and the plot or parcel of land on which it stands, the said house having been built with the plaintiffs own personal funds realised from her

[p.85] of [1995-96] 1 GLR 81 private trading, and that the plaintiff is entitled to have the said house conveyed to her by the defendant, and the income derived from it paid to the plaintiff, (b) An account of all rents collected from the said house from 1977 up to the date of Judgment, (c) Perpetual injunction restraining the defendant, his agents, servants and others from interfering with the plaintiff’s interest in the said house.”

Other claims by the plaintiff concern joint-ownership of a business by the parties known as “Hams Inn Stores.” I shall deal with this aspect of her claims later in this judgment.

Judgment was given in her favour by the High Court, Accra presided over by Lutterodt J (as she then was) but this was overturned by the Court of Appeal. It is against this judgment of the Court of Appeal that the plaintiff- appellant (hereinafter referred to as the plaintiff) has appealed to this court.

The learned trial judge in her decision accepted the claims of the plaintiff. After quite an exhaustive examination of the evidence before her, she had no hesitation in holding that the defendant gave the vacant plot of land at North Kaneshie on which the disputed building stands to the plaintiff. The trial judge gave very convincing reasons why she thought the fourth defendant witness, J O Abbey, an assistant to the licensed surveyor, Reginald M Q Osekre, was not a witness of truth. She found as a fact that the plaintiff provided the funds for the project which was clearly intended to be hers, that the plaintiff purchased the sceptic tank for the building, and rejected as not probable the explanation by the defendant that he used the plaintiff’s name to purchase the tank in order to convince her that he was still bent upon giving her the disputed premises in the near future, and had not reneged on his promise.

The learned trial judge also accepted the evidence of the first plaintiff witness, Kwasi Afful, who in the company of the second plaintiff witness, Kobena Afful, plastered all the walls of the house both inside and outside, as well as the floor with cement provided by the plaintiff during the course of which both the plaintiff and the defendant paid constant visits to the site. The Judge said:

“This evidence led by this witness thus shows that the plaintiff,

[p.86] of [1995-96] 1 GLR 81 indeed, caused some very substantial work to be done on the property and that would only have come about because as she alleged, she was putting up this building in her own right and from her own resources.”

She continued:

“It is on the same basis that her evidence, which was admitted by the defendant, that she provided or made connections for the water and electricity needed for the premises cannot be ignored. Again, the defendant explained how come the plaintiff made these two important contributions. But I found it difficult to accept his version because if it was upon the basis of his mere promises to devise this property to the plaintiff, and consequently she was desirous of contributing towards the project, was it not likely her contribution would have come in the form of building materials or cash rather than the defendant making a formal application in her own name to the two institutions for these services to be provided?”

The Court of Appeal, without giving any reasons, set aside the finding of the trial court that the defendant gave out the land on which stood the building in dispute. Lamptey JA delivering the leading judgment said:

“The unwarranted inquiry conducted by the trial judge led her to conclude as follows:

‘I have no doubt that the property was intended to be conveyed to the plaintiff absolutely and free from all encumbrances. In my view, the justice of the case demands that the defendant be compelled to give effect to his promise.’ With respect to the trial judge, the case of the plaintiff was not that the defendant promised to give her the plot of land in dispute. Indeed, there was no evidence before her which remotely suggested that the defendant promised and intended to convey the disputed plot of land to the plaintiff. The finding that there was an intention to convey the disputed property to the plaintiff was not supported by the evidence on record. The finding must be set aside. The consequential order, namely that within fourteen days

[p.87] of [1995-96] 1 GLR 81 of the judgment, a conveyance of the land in dispute together with the dwelling-house be executed in favour of the plaintiff, must also be set aside.”

Since the trial judge gave reasons for her finding, which has not been stated to be unsatisfactory, the Court of Appeal should not simply have set it aside without giving reasons for so doing. In my view, the finding of the trial court was amply supported by the evidence on record and the conclusion she drew from that finding was justified. It cannot therefore be said that the decision of the trial court was defective.

One of the criticisms of the Court of Appeal was that the plaintiff merely stated that she gave an unspecified sum of money for building materials, and did not disclose what she gave to the defendant for payment of the different categories of workmen who actually built the house. The court queried: “Why was her evidence noticeably and significantly silent on what sum of money she gave to the defendant for the construction of the building from foundation to roofing it?” True, the plaintiff was not able to establish detailed and specified contributions in terms of mathematical exactitude. In my view, that should not constitute a bar to her claim to the house. The reason is that the house was built at a time when the parties were cordially married without any adverse relationship between them. Transactions between man and wife under such circumstances should not be viewed with such scrutiny as associated with commercial transactions relative to normal businessmen in their day to day purchases and payments expected to be particularly documented and receipted: see Rimmer v Rimmer [1953] 1 QB 63 at 67 and 76, CA; Fribrance v Fribrance (No 2) [1957] 1 WLR 384, CA and Achiampong v Achiampong [1982-83] GLR 1017, CA.

In dealing with relief (a) of the plaintiff’s claim, the learned trial judge stated as follows: “I do not possibly think, given the facts of this case, that I could declare title in the plaintiff. This is because title to the disputed land is in the defendant. The plaintiff, quite understandably, was unable to produce any conveyance in proof of title. But I think this is a case which can be resolved on the principle of law known as proprietary estoppel or sometimes described as ‘equitable

[p.88] of [1995-96] 1 GLR 81 estoppel’ or ‘quity created by estoppel.’”

After discussing what in her view was the meaning of the principle, the learned trial judge concluded: “In what way would equity be satisfied? I have no doubt that the property was intended to be conveyed to the plaintiff absolutely and free from all encumbrances. In my view, the justice of this case demands that the defendant be compelled to give effect to his promise.”

The Court of Appeal agreed with the first leg of the trial court’s rejection of the plaintiff’s claim for declaration of title to the disputed plot of land. As to the other limb, the Court of Appeal held that the trial judge erred in law when she failed and omitted to dismiss the claim of the plaintiff under head (a). The court then proceeded to dismiss the claim for declaration of title to the land, and further held that since the plaintiff did not seek any equitable relief or remedy, it was palpably wrong for the trial judge, proprio motu, to invoke the principle of “equitable estoppel” and apply it to determine the case before her.

It is universally acknowledged that equity looks upon that as done which ought to be done, or which is agreed to be done. Thus where an obligation arises from contract, equity goes to the aid of the person entitled to the benefit of the contract and treats as done what ought to be done in his favour as against the person liable to perform it: see In Re Anstis; Chetwynd v Morgan; Morgan v Chetwynd (1886) 31 ChD 596 at 605, CA per Lindley LJ and In re Plumptre’s Marriage Settlement; Underhill v Plumptre [1910] 1 Ch 609 at 619 per Eve J. The legal position is that equity will treat the subject matter, as to collateral consequences and incidents, in the same way as if what is contemplated finally by the parties had been exactly as they ought to have been done. For instance, where a party holds possession under an agreement for a lease, of which specific performance would be ordered, the parties are treated in equity as being in the same position as regards their respective rights as if the lease had been granted: see Walsh v Lonsdale (1882) 21 ChD 9, CA; Zimbler v Abrahams [1903] l KB 577, CA and Gray v Spyer [1922] 2 Ch 22, CA.

In the instant case, the absence of documentary evidence in respect of the agreement to convey the land on which stands the house in

[p.89] of [1995-96] 1 GLR 81 dispute should not be allowed to be used by the husband as a weapon to defeat the wife’s claim. The wife would have, under such circumstance, been callously tricked to act to her detriment and to the benefit of the husband. The facts clearly establish that there was actual agreement between the parties on the disputed land. There was a clear intention on their part that the wife was to have a beneficial interest in the land the legal title of which rested with the husband. Equity was therefore created against the husband and in the wife’s favour, and this court has to give effect to it. In the case of husband and wife the strictness which is normally required in transactions between strangers could be dispensed with. This Court is entitled to infer that the wife was to have beneficial interest in the land from the conduct of the parties, having regard to the facts and circumstances surrounding the building of the house.

“As Lord Diplock rightly pointed out in his judgment in Gissing v Gissing [1971] AC 886 at 904, HL: “Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based upon the proposition that the person in whom the legal estate is vested holds it as trustee upon trust to give effect to the beneficial interest of the claimant as cestui que trust.”

One last point I would like to touch upon is this. The plaintiff in her writ also claimed:

“(a) A declaration that the plaintiff is joint-owner or co-owner with the defendant of the business known as ‘Hams Inn Stores’ at James Town, Accra the said business having been purchased by the joint contribution of the plaintiff and the defendant (the plaintiff contributing the larger share) for their joint profit and benefit.

(b) An account of the operations of the said business from 1 January 1985 up to the date of judgment.

(c) Perpetual injunction restraining the defendant, his agents, servants and others from interfering with the plaintiff’s interest in the said business.”

The trial Court held that the plaintiff had a joint interest in the two [p.90] of [1995-96] 1 GLR 81 businesses, and ordered an account for the period 1 February 1985 to the date of judgment, and a perpetual injunction restraining the defendant, his agents, etc from interfering with the plaintiff’s interest in the said businesses. There was no appeal against this part of her decision, but the Court of Appeal in its judgment vacated all the orders made by the court below, of course including the foregoing. I think this is an inadvertent mistake on the part of the court. It is necessary therefore to get the records straight by restoring the trial court’s orders about the two businesses.

In my view, the appeal succeeds.

JUDGMENT OF AMPIAH JSC.

I agree.

JUDGMENT OF KPEGAH JSC.

I also agree.

JUDGMENT OF ADJABENG JSC.

I also agree.

JUDGMENT OF ATUGUBA JSC.

I also agree DECISION Appeal allowed DRKS