YEBOAH vs. AMOFA AND ANOTHER [1997-98] 1 GLR 674

CASES REFERRED TO

(1) Odametey v Clocuh [1989-90] 1 GLR 14, SC.

(2) Banga v Djanie [1989-90] 1 GLR 510, CA.

(3) Khoury v Richter, High Court, Accra, 8 December 1958, unreported.

(4) Majolagbe v Larbi [1959] GLR 190.

[p.677] of [1997-98] 1 GLR 674

(5) Zabrama v Zegbedzi [1991] 2 GLR 221, CA.

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

(7) Twifo Oil Plantation Project v Ayisi 881, CA.1(1)[sic]

(8) Appiah v Takyi [1982-83] GLR 1, CA.

(9) Donkor v Wih [1989-90] 1 GLR 178, CA.

(10) Alms Corn Charity, Re; Charity Commissioners v Bode [1901] 2 Ch 750; 71 LJCh 76; 85 LT 533.

(11) Popvic v Derks [1961] VR 413.

(12) Mawaz Khan and Amanat Khan v R [1967] 1 AC 454; [1966] 3 WLR 1275; [1967] 1 All ER 1275;

110 SJ 869, PC.

(13) R v Chapman (1973) 57 Cr App R 511, CA.

(14) Abebreseh v Kaah [1976] 2 GLR 46

NATURE OF PROCEEDINGS

APPEAL by the plaintiff ex-wife and CROSS-APPEAL by the defendant ex-husband from the judgment of the High Court, Kumasi declaring the house in dispute the joint property of the plaintiff and the defendant but that the co-defendant was an innocent purchaser for value of the property from the defendant without any notice of the plaintiff’s adverse claim or title to the property. The facts are sufficiently stated in the judgments of Wood and Essilfie-Bondzie JJA.

COUNSEL

Michael Owusu for the plaintiff-appellant.

Paapa Dadson for the defendant cross-appellant.

James Ahenkorah for the co-defendant-respondent.

JUDGMENT OF WOOD JA.

In 1966 the plaintiff and the defendant contracted a customary law marriage and had seven children. Unfortunately, in October 1991, after they had lived together for a considerable number of years—33 in all—the said marriage was dissolved.

After the dissolution of the marriage, the plaintiff took the defendant to the family tribunal for failing to maintain his children. It was there that the plaintiff learnt that the defendant wanted to dispose of the house in which they were living to enable him meet some financial obligations. Claiming that she substantially contributed to the acquisition of the said property, she thereupon sued him for the following reliefs:

[p.678] of [1997-98] 1 GLR 674 “(a) A declaration that house No B 24 Adiembra, Kumasi is the joint property of the plaintiff and the defendant.

(b) An order that the plaintiff is entitled to a half portion of the house in dispute.

(c) An order of perpetual injunction restraining the defendant, his agents and servants from transferring, selling or in anyway disposing of the property in dispute.”

The defendant on the other hand resisted the action and maintained that he had purchased the land and financed the construction of the building from his own resources without any contribution whatsoever from the ex-wife, the plaintiff.

One Charles Opoku Amankwah who maintained he had bought the subject matter, successfully applied and joined the suit as codefendant. He was thus able not only to file a defence but to counterclaim for:

“(a) A declaration that the co-defendant is an innocent purchaser for value without any notice of any adverse claim or title to house No Plot 24 Block B, Adiembra, Kumasi, Ashanti.

(b) An order for recovery of possession of that portion of the premises occupied by the plaintiff.”

His defence that he was a bona fide purchaser for value was vehemently challenged by the plaintiff who in turn alleged a collusion between them to deprive her of her interest in the property.

The learned trial judge found for both the plaintiff and the co-defendant; for the plaintiff that indeed she was joint owner, and for the co-defendant that he was truly a bona fide purchaser for value without notice of the vendor’s defect in title.

However, none of these two findings satisfied the main contenders—the plaintiff and the defendant—and therefore they have both appealed against the decisions. The plaintiff filed three grounds of appeal:

“(a) That the judgment is against the weight of the evidence.

(b) That the learned trial judge erred in law when he held that when the first payment was made by the co-

[p.679] of [1997-98] 1 GLR 674 defendant-respondent property to the house passed to the co-defendant.

(c) The trial court judge erred in law when he held that the co-defendant-respondent bought the legal estate without notice of other people’s interest.”

By his grounds of appeal, the defendant complain that:

“(1) the learned trial judge erred in law and misdirected himself in holding that the plaintiff was joint owner of the premises, house number Plot 24 Block B, Adiembra when it was earlier on in the judgment found that the plaintiff led no convincing evidence to indicate her joint interest in the said property;

(2) that the learned trial judge erred in law and misdirected himself in relying on the proceedings of the Office of the Revenue Commissioner in grounding the plaintiff joint interest in the property when the defendant—has denied the contents of the proceedings and the latter procured or made without notice to the defendant and the alleged evidence therein answered; and (3) that the judgment is against the weight of evidence.”

Although, it was the plaintiff’s grounds of appeal which were argued first, I propose to deal with grounds (1) and (3) of the defendant’s grounds of appeal first, because the ground (3) in particular is the most important and ranks first both in substance and in order of sequence. What were the arguments advanced in support of these grounds?

First, it was argued that once the learned trial judge found that the plaintiff’s proof of ownership fell below the standard of proof, he was wrong in the same breath to have found the plaintiff joint owner of the property in question. Furthermore, it was submitted that she contradicted her own pleadings that she contributed to the purchase of the plot on which the building stands by failing to lead evidence in proof of same, making her claim that she was a substantial contributor to the actual building totally untrustworthy when: (a) sections 11(1) and 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323;) (b) Odametey v Clocuh [1989-90] 1 GLR 14,

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SC; and (c) Banga v Djanie [1989-90] 1 GLR 510, CA all place on her, the onerous burden of satisfying the court that she did indeed make these contributions. It was urged that under the circumstances of her case, where the title deeds are in the defendant’s name and consequently the law also by section 25 of the NRCD 323 presumes that the beneficial interest of the property is also fully vested in him, it was not enough merely for her to repeat her averments on oath.

Again, it was argued that the plaintiff’s conduct in failing to act when notices were posted on the building showing it was to be auctioned, proves she is not a joint owner or better still this conduct estops her from laying any claim to the property. Another point urged upon us was that the evidence shows that when the defendant intimated to the family tribunal that he intended to sell the property to meet his financial obligations, the plaintiff raised no objections. The argument then was that were she indeed a joint owner, she would have immediately declared her interest in the said property.

Furthermore, to support the ground that the judgment was against the weight of the evidence, it was submitted that the trial judge erred in relying on the proceedings before the Office of the Revenue Commissioner. Counsel contended that for the declarations imputed to the defendant to qualify as a declaration against interest, and so be of full value and effect, they must be clear and unambiguous. The argument then was that in this instant case, where the defendant made no positive clear assertion before the Office of the Revenue Commissioner that he owned the property jointly with his wife, it was wrong for the trial judge to have placed any reliance on the proceedings. More importantly, it was argued that in any case, once the defendant denied having made the statements attributed to him, when he appeared before the Office of the Revenue Commissioner, the plaintiff’s mere production of a record, even though certified, was not enough. It was contended that what the learned trial judge ought to have done was to attach no weight whatsoever to the said document.

By her amended statement of claim, the plaintiff pleaded that she not only contributed financially towards the purchase of the plot but also regularly during the actual construction. It is quite true that she did not lead any evidence in support of her claim that

[p.681] of [1997-98] 1 GLR 674 she contributed towards the purchase of the plot, but the question is, does that per se make her other evidence in support of her assertion totally unreliable? For in truth she did lead evidence to support her claim of the contribution she made towards the construction of the building itself. This is what she said: “He informed me when the plot was purchased. He told me that the plot was for me and the children and I should help in the construction of the building. The help was money. I helped him in the development of this land. Whenever he comes to me, the money I have, the same I would give him for the building. I cannot remember the times I gave him money and I do not remember the period. But I started contribution to the house from the very beginning of construction till completion. I gave him about ¢10,000 or ¢5,000, any amount of money I have.”

Of course, she also tendered the proceedings of the Office of the Revenue Commissioner. It contains the record of what the defendant told the panel of investigators was the source of finance in respect of the said building. Therefore, while I agree with the defendant’s counsel that she failed to prove her contribution with respect to the land, I would not agree that her failure is fatal to the main substance of her claim. Neither would I agree that the trial judge misdirected himself.

Indeed, in my view, her failure to lead evidence on the contributions she made towards the purchase of the plot did not amount to a contradiction of or a departure from her pleadings. I prefer and I am bound by the approach adopted by and the principle enunciated in Odametey v Clocuh (supra). This was a case in which the plaintiff had in his pleadings relied on a customary grant to set up a claim of title to land. At the trial however he relied on a deed of conveyance. On the question of whether this variation destroyed his case, it was held, as stated in the headnote, that:

“Variation in pleadings that did not substantially destroy the plaintiff’s case were not material and could in appropriate circumstance be safely ignored.” As was pointedly stated by Taylor JSC at 30:

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“It seems to me that it is now common knowledge in all our courts that plaintiffs and also defendants often deviate from their pleadings and put forward cases at the trial by their evidence which reveal some variation from their pleadings. If the proposition of law put forward here [by the Court of Appeal] and supported by the majority view in RT Briscoe v Preko (supra) is correct, no plaintiff can ever successfully maintain a claim in court who had deviated, however slightly, from his pleadings.”

I do not think the plaintiff’s case falls into these category of variations which are so fundamental and so substantial it destroys her entire claim. I think her main case was that as a wife who has children with the defendant, upon an agreement reached between the two, she contributed to the acquisition of the building, a building meant for the entire family. To my mind, given the circumstances of this case, the fact that she was not a contributor to the plot does not take her right away, provided of course she is able to prove her expenditure in the land.

Now, why do I also say the trial judge never misdirected himself? First, and more importantly, the learned trial judge never made any definitive finding of fact that the plaintiff’s case as a whole, ie her evidence coupled with that of her witness, the first plaintiff witness, fell below the standard of proof required of her. As was rightly argued by the plaintiff counsel, a proper reading of the judge’s finding would show that he held that the plaintiff’s evidence alone, by itself without more, was insufficient, but that when pieced together with the defendant’s own admission at the Office of the Revenue Commissioner which is contained in exhibit B, a document tendered by the plaintiff through her witness the first plaintiff witness (and so forms part of the plaintiff’s case) the plaintiff did sufficiently make a case. In other words, he found the necessary corroboration he was looking for in exhibit B.

Indeed, counsel has described the plaintiff’s evidence as falling below the standard required in civil cases where a person claims a declaration of title. But I am afraid I do not agree with him. In actual fact, I do not think the plaintiff’s evidence alone, without exhibit B, is inadequate. Why do I say so? Sections 1(1) and (4) and 12 of NRCD 323 which the defendant counsel referred

[p.683] of [1997-98] 1 GLR 674 to as setting out the burden and the degree of proof read as follows:

“11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue . . .

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.”

I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence.” In other words, no attempt is made at disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B.

It does not seem to me that the two cases relied on by the defendant counsel, namely Odametey v Clocuh (supra) and Banga v Djanie (supra) set down any different standards or onus of proof. I think when these two cases are read in the light of sections 11(1) and (4) and 12 of NRCD 323, all the law required of a person who seeks a declaration of title is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind (not a fanciful mind), a reasonable mind would conclude the probabilities of the existence rather than the non-existence of the fact.

[p.684] of [1997-98] 1 GLR 674

It seems to me that counsel’s main grievance with the plaintiff’s evidence is that she merely “rendered”, ie repeated her averment on oath; without supplying any corroborative proof. Possibly, in the nature of receipts or even calling the workmen to come and testify on her behalf. But as I have already held, the trial judge found the necessary corroboration in exhibit B. But even if we excluded that again, as I have already pointed out, the relevant section 11(1) and (4) of NRCD 323 calls for only such sufficient evidence as the particular circumstances of the case would allow. This statutory requirement is indeed in conformity with the case of Khoury v Ritcher, High Court (Lands Division), 8 December 1958, unreported and which gave birth to the famous case of Majolagbe v Larbi [1959] GLR 150. The two cases have been fully discussed in Zabrama v Segbedzi [1991] 2 GLR 221, CA by Kpegah JA (as he then was). And, the principle discernible is that a person may be required to produce corroborative evidence only where the circumstances demand that such evidence must necessarily be in existence. Thus a court may well be satisfied with the evidence of only one person without insisting on corroborative evidence, and reckon such evidence to be sufficient, where in the nature of the relief sought and more particularly, the particular circumstances of the case, the party has none in existence to offer. I think therefore that what we have to do is to examine the facts of this case and find out if the evidence of the plaintiff alone is nevertheless sufficient.

The couple got married in 1966-67 and they have seven children. The construction itself started in 1984-85. So they had lived together for some eighteen years before the construction commenced. The evidence undoubtedly shows that the plaintiff was a very active trader. She described herself as a passbook holder who dealt in several goods. There is a controversy as to whether she also dealt in textiles. She claims she did, the defendant denied it, but I think her story is more probable, for the defendant later on conceded she dealt with giant businesses like United African Co, CFAO, and Ghana National Trading Corporation. These are also textile distributors. Even if I am on the side of error, the more important thing is that she was an active trader. The defendant in his own evidence in-chief described her undertaking as “business in bag.” He maintained that he brought the

[p.685] of [1997-98] 1 GLR 674 foods down from Accra for her to sell. He[ic] it was also that provided the initial capital for her to trade. I will reproduce a portion of the answers he gave concerning these matters when he was cross-examined:

“Q When you were transferred to Dunkwa she started trading with United African Co, CFAO, Ghana National Trading Corporation, etc.

A I know she was selling goods—trading—and I know she was getting some of her goods from these big companies.”

The parties again agreed that even when the defendant was transferred to Techiman the plaintiff did not go to join him but continued to live at Dunkwa. There is a disagreement however as to why they opted for this arrangement. The plaintiff ascribes the reason to the fact that her trading was so profitable that she did not want a disruption in her business activity. The defendant on the other hand claimed otherwise. I am inclined to accept the plaintiff’s version for all we have from the defendant was a bare denial without him assigning the real reason for that decision.

On all accounts then, she can be described as a fairly prosperous trader. There is no evidence that she acquired any immoveable property in her own name. It is most unlikely, when the evidence does not show that the defendant had other wives at this point in time, that they would exchange receipts when she gave out these moneys in respect of property she had been promised was for her and her seven children. I even think it would have been suspicious if she had produced a self-serving record of the moneys she gave out to the defendant. Again, I do not think failure to produce any of the workmen renders her evidence insufficient. The nature of her pleadings, namely that she made contributions regularly exonerates her from any such liability. This was a woman living with the children away from the husband. The construction was taking place at Kumasi, a location entirely different from where the husband who was a civil servant was posted. It was not her case that she paid or engaged workmen or that she supervised the construction. In my view, her evidence alone when all the surrounding circumstances are taken into

[p.686] of [1997-98] 1 GLR 674 account is sufficient, and a reasonable mind is likely to believe in its existence as a fact. She cannot be expected to prove her contribution with the same strictness that a “stranger” would have been required to. The case of Achiampong v Achiampong [1982-83] GLR 101, CA would place a slightly less onerous or strict requirement on a spouse, particularly when, as in this instant case, they have lived together for well over a decade and a half and have as many as seven children between them and the claimant was not an indolent woman but one who was a fairly prosperous trader.

In the Achiampong case (supra), upon the dissolution of the marriage the wife claimed a joint ownership of a house in respect of which she had made contribution towards its acquisition. The Court of Appeal urged this common sense approach when dealing with matters of this kind. And it is this, that in the case of husband and wife, the strictness usually required where parties are strangers can be dispensed with. It was this speech of Lord Eversted MR in the case of Rimmer v Rimmer [1953] 1 QB 63 at 67, CA which was applied in the Achiampong case (supra)—which I found most useful: “As Atkin LJ. observed in a well-known case, the ordinary incidents of commerce have no application in the ordinary relations between husband and wife.” In my view then, receipts are not a necessary incident of the transactions which went on between the plaintiff and the defendant and I do not find her evidence of the expenditure she had made in the building so preposterous or so fanciful that no reasonable mind would believe in its existence.

But, even if I am in error and corroboration is required to make the evidence sufficient, I think exhibit B supplies the necessary link. When the defendant appeared before the Office of the Revenue Commissioner as a civil servant to have his assets investigated, speaking on oath he described the plaintiff as a trader (corroborating the plaintiff’s claim as to what goods she dealt in) and claimed the two of them started trading together in 1967 in bags and then to textiles in 1967. He emphasised the point further in his evidence before the committee. When a member of the committee stated: “You said salary and you were trading with your wife.” The defendant answered: “Yes.”

We have however been urged to reject the exhibit for the following reasons: (a) the defendant has flatly denied making the

[p.687] of [1997-98] 1 GLR 674 said declaration; and (b) the document was obtained without notice to him and the same is only merely certified. I am afraid I do not agree with counsel. First, the defendant did not object to the tendering of exhibit B. Secondly, and more important, it is plain that the plaintiff satisfied all the conditions necessary for the admissibility of the official records. Exhibit B is an official record. The necessary conditions are set out in section 126(1) of NRCD 323 and Twifo Oil Plantation Project v Ayisi [1982-83] GLR 881, CA.. 1 will reproduce the relevant section:

“126. (1) Evidence of a hearsay statement contained in a writing made as a record of an act, event or condition is not made inadmissible by section 117 if—

(a) the writing was made by and within the scope of duty of a public official;

(b) the writing was made at or near the time the act or event occurred or the condition existed;

(c) the sources of information and method and time of preparation were such as to indicate that the statement contained in the writing is reasonably trustworthy.”

The case of Twifo Oil Plantation Project v Ayisi (supra) held, as stated in the headnote, that these conditions were conjunctive and “the gravamen of the provision was that the witness should satisfy such foundation as to indicate that the statement contained in a writing was reasonably trustworthy.” The first plaintiff witness, the legal practitioner and revenue commissioner attached to the Office of the Revenue Commissioner, established all the three important criteria; making the contents trustworthy and safe to rely on. In the court below, the defendant merely flatly denied making the declarations complained of. Once we have concluded that exhibit B was accurate, I have no option but to give full weight, value and effect to it. It then follows that the defendant is now estopped from setting up anything contrary to the declaration he made against his own interest, namely that the wife’s trading activity was one source of funding for the said property.

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Again, this finding that his own declaration corroborates the plaintiff’s assertion that she was a contributor is important for this reason also. The position of the law as can be gathered from the Achiampong case (supra) is that in the case of husband and wife, where one spouse claims he or she is a joint contributor to property acquired during the subsistence of the marriage, even if there were no express agreement that a spouse was to have a beneficial interest, the same could be inferred from the circumstances surrounding the acquisition and the conduct of the parties. As his lordship put it, equity and good conscience would never stand by and permit either of them to claim exclusive beneficial interest in the properties and leave the other destitute. I think we can safely make this inference also from the circumstances of this case. I think the decision of the trial judge that the plaintiff is entitled to half share is right and the same is supported by the record.

Certainly, the argument that she never raised the matter of her contribution at the dissolution of the marriage is not borne out by the record. This is her testimony at the dissolution proceedings: “At the dissolution we were asked to render accounts. The defendant said he had nothing against me, that is I was not indebted to him. I also said that but added that the house belonged to the two of us. I was advised that because of the raging quarrel, I should collect the money and live at the place for tempers to cool, when we would talk about the house later.”

Similarly, her unchallenged testimony shows that when the defendant intimated his intention to the family tribunal to sell the property, she handed over the matter to her lawyers. Again, I do not think the mere fact that she failed to institute an interpleader action estops her from laying her claim to the property. When she had another opportunity she set up her claim.

Under these circumstances, where the parties, put their joint resources together to acquire the said property, the plaintiff should be entitled to reliefs (a) and (b). What I find impossible to grant is the relief (c) by which she seeks an order of perpetual injunction restraining the defendant, his assigns etc from interfering, selling

[p.689] of [1997-98] 1 GLR 674 or in any way disposing of even his half share in the property. To make such a restraining order, means his fundamental right to deal with his own bona fide property in any way has been permanently taken away. The absurdity of making such an order lies in the fact that he cannot even transfer his property to his own children, for example, without falling foul of the law of contempt. In my judgment then, the proper order to make is to restrain him from transferring, selling or dealing in any manner with the plaintiff’s half share in the said property.

The plaintiff’s appeal:

I now deal with the plaintiff’s appeal. It was submitted in respect of the additional ground (a) that the learned trial judge erred when he held that on 7 January 1992 as soon as the co-defendant made the first payment, property to the house passed to the co-defendant. The argument was that on the authority of Appiah v Takyi [1982-83] GLR 1, CA he merely acquired an equitable estate, a position which existed at the date of the issue of the writ also. I had very little difficulty in disposing of this ground as the co-defendant’s counsel, a very able legal practitioner, conceded that the correct position of the law is that at the payment of the first instalment, he only acquired an equitable not a legal interest. The additional ground (b) raises a most critical issue as far as the co-defendant is concerned; that is whether or not the co-defendant did acquire the legal estate without any notice of the plaintiff’s interest.

It was submitted on behalf of the plaintiff that first, the plea of bona fide purchaser for value exists for persons who purchase the legal and not the equitable estate. It was therefore urged that the plea was not open to the co-defendant either on 5 January when he made the first instalment, or even at the date of the issue of the writ. Secondly, and even more importantly, it was argued that if we looked at the date on which he acquired the legal estate, which is 15 July 1992, we will find that at this date, he knew and was fully aware of the plaintiff’s claim to joint ownership to the said property. It was thus urged upon us that the trial judge’s finding that he bought in good faith without knowledge of the plaintiff’s interest is not supported by the record.

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The co-defendant’s counsel’s response to these submissions are two-fold. Counsel’s submission is that the subsequent legal estate acquired by the co-defendant entirely defeated the plaintiff’s prior equitable interest. Counsel maintains that this is the correct position of the law even when it can be palpably shown that even after acquiring his equitable estate and before obtaining the legal title he has become fully aware of the plaintiff’s prior equitable interest. His other argument is that, at any rate, by the date the co-defendant became aware of the plaintiff’s interest, he had paid a substantial part of the purchase price, ie ¢10 million. That he2(2)[sic] contends constitutes such a greater portion of the value that the defence became open to them.

If I understand him correctly, they can avail themselves of this defence even though they had not then acquired the legal interest. In 1988, this court in the case of Donkor v Wih [1989-90] 1 GLR 178, CA had occasion to look at the issues raised by these submissions. The court thus examined the scope of this doctrine of bona fide purchaser for value and so spelt out the circumstances under which it can successfully be raised. The court held, as stated in the headnote, that:

“(3) Although the equitable doctrine that gave priority to equities according to their dates of creation had been firmly settled, the doctrine of the bona fide purchaser for value of a legal estate without notice drove a wedge between legal and equitable right wherein equitable rights became impotent against a purchaser of the legal estate. To be qualified as the purchaser of the legal estate the purchaser must show that he had acquired some legal estate in the land and not a mere equitable interest. The requirement was satisfied if the purchaser of an equitable interest without notice of other equities subsequently acquired a legal estate or if he acquired a better right to the legal estate than a prior equitable encumbrance.”

It thus follows that the plea can only be successfully raised by the party who has acquired the legal estate not a mere equitable estate. To my mind then the critical issue is whether when the co-defendant subsequently obtained the legal estate he had no

[p.691] of [1997-98] 1 GLR 674 notice of the plaintiff’s equitable interest in the house. I think the answer should be in the affirmative. He acquired the legal estate on 15 July 1992. The true position is that before this date, the solicitors who were acting for him in the transaction knew of the plaintiff’s equitable interest in the property. Exhibits 11 and 12 which show the two payments of ¢6 million and ¢4 million respectively, show that the payments were made through his solicitor on 7 January 1992 and 28 January 1992, respectively. The final payment was made on 10 August 992 (see exhibit 10), by which date the solicitors were fully aware of the plaintiff’s claim, having themselves by 5 May 1992 been appointed solicitors for the defendant in the action then pending between the plaintiff and the defendant. In my view then, at the time be3(3)[sic] obtained the assignment he knew of the plaintiff’s prior existing equity. He cannot therefore be heard to say he acquired the legal estate in good faith and without notice of the plaintiff’s interest.

Megarry, Manual of the Law of Real Property (4th ed) clearly shows that where a purchaser employs an agent such as a solicitor to act for him in any circumstances such as we have in this case, any actual or implied notice which the agent receives is imputed to the purchaser. The authority for this proposition is Re The Alms Corn Charity; Charity Commissioners v Bode [1901] 2 Ch 750. The critical issue that must be considered then is whether when the co-defendant subsequently obtained the legal estate he had no notice of the plaintiff’s equitable interest in the said property. The evidence clearly shows that he acquired the legal estate on 15 July 1992. Well before that date the solicitors who were acting for him in the transaction knew of the plaintiff’s claim to an equitable interest in the property. Exhibits 11 and 12 which show the two payments of ¢6 million and ¢4 million, respectively identify Messrs Hayfron-Benjamin and Co as his solicitors. The payments were made on 7 January 1992 and 28 January 1992 respectively. The final payment of ¢4 million was not made until 10 August 1992 (exhibit 10 refers). Certainly, by this date the solicitors were fully aware of the plaintiff’s claim for by 5 May 1992 at least, they had been appointed as solicitors for the defendant. It follows that both at the date of final payment as well as the date of the assignment, they will be fixed with notice and he cannot be heard to plead his bona fides. It thus follows that the learned trial judge’s

[p.692] of [1997-98] 1 GLR 674 finding that he was a bona fide purchaser for value without any notice of the plaintiff’s adverse claim is not supported by the evidence and the same must be set aside.

The question which naturally arises then is, should the entire sale be set aside? I think the circumstances of this case shows that the clear intention of the parties was to hold the property as joint tenants. The defendant then had no legal right, until there had been a lawful partition, to alienate the property without the consent of the plaintiff. In the result, it is the entire sale which, under the circumstances of this case ought to be set aside.

However, with the dissolution of the marriage, given the relief sought by the plaintiff, it is expedient that we terminate the tenancy and order a partitioning of the property which is yet to be completed fully by ordering it to be sold and the proceeds shared equally between the parties. We will thus order the Land Valuation Board to value the property and the registrar of the Court of Appeal to sell the property at that value. The plaintiff who is still in occupation is given the first option to purchase the said property. That option may be exercised within six months of the receipt of the said valuation report.

The Land Valuation Board shall be entitled to the usual fees which are to be borne equally by the parties, ie the plaintiff and the defendant.

JUDGMENT OF ESSILFIE-BONDZIE JA.

The appeal is against the decision of the Circuit Court, Kumasi dated 6 May 1994. The plaintiff’s claim at the court below was for the following reliefs:

“(a) A declaration that house No B 24 Adiembra, Kumasi is a joint property of the plaintiff and the defendant.

(b) An order that the plaintiff is entitled to a half portion of the house in dispute.

(c) An order of perpetual injunction restraining the defendant, his agents or servants from transferring, selling or in any way disposing of the property in dispute.”

The plaintiff and the defendant were husband and wife. They married in 1967 and had seven children. At the time of the marriage the defendant was an employee of the Audit Service.

[p.693] of [1997-98] 1 GLR 674

According to the undisputed evidence, in the early part of the marriage the plaintiff engaged in trading activities. She dealt in textiles and hand bags with many reputable companies. She also dealt in general goods. She testified that before the construction of the house in dispute, the defendant told her that the plot was for her and the children and so she should help him in the construction of the building on it. She said as follows:

“I helped him in the development of the land. Whenever he comes to me, the money I have, the same I would give him for the building. I cannot remember the times I gave him money and I do not remember the period. But I started contribution to the house from the very beginning of construction till completion. I gave about ¢10,000 or ¢5,000, any amount of money I have.”

She continued that after completion of the house she lived in it with her husband and children for eight years. The marriage was dissolved in 1990 but she has continued to live in the house with the seven children of the marriage up till now. She said that her husband appeared before the Office of the Revenue Commissioner in 1987 where his assets were investigated. That in the course of the vetting the husband told the commissioners that he built the house in dispute partly from funds from his trading activities with the wife—the plaintiff. She claimed it was this admission that saved the house from being confiscated to the State. Her evidence was that the defendant has married another woman and has a child by her. That the defendant is presently staying in one part of the house, while she and her children are staying in the other part of the house. She is occupying two rooms with her children and the defendant is occupying four rooms and a hall.

The defendant’s case is that he acquired the building in dispute from his own resources. He testified that during the investigation of his assets he never stated before the committee that the house was built partly from income from trading activities with his wife. He said at the dissolution of his marriage, the plaintiff never laid any claim to the house in dispute. That at her request he allowed the plaintiff to continue to live in the house with her children. He averred that he raised a loan to start a pharmacy shop and secured

[p.694] of [1997-98] 1 GLR 674 the loan with the house in dispute. He was unable to repay the loan and the bank decided to sell the house in dispute in satisfaction of the debt. Before the bank could effect the sale he sold the house to the co-defendant. He used part of proceeds of the sale to pay the bank.

The learned trial judge gave, inter alia, the following judgment:

(a) I give judgment to the plaintiff in respect of his relief, and declare that house No B 24 Adiembra, Kumasi is a joint property of the plaintiff and the defendant.

(b) I have held that the physical house as such is not available to be shared. It has been sold out. And since the plaintiff’s interest is only equitable she is entitled to half of the proceeds of the house in this suit, ie half of ¢14 million—¢7 million.

(c) I dismiss relief C for the above reason. I give judgment in favour of the co-defendant’s counterclaim.

(d) And declare that the co-defendant is an innocent purchaser for value without any notice of any adverse claim or title to the premises house No Plot 24 Block B Adiembra, Kumasi.

(e) and I give an order for recovery of possession of the portion of the premises occupied by the plaintiff.

(f) Judgment against the defendant.”

The plaintiff-appellant (hereinafter referred to as the plaintiff) has appealed to this court on the ground that the judgment is against the weight of the evidence. The plaintiff also filed additional grounds of appeal on the 3 March 1997. The court granted leave to argue the additional grounds of appeal which are:

(a) The trial circuit court judge erred in law when he held that when the first payment was made by the codefendant-respondent (hereinafter referred to as the co-defendant) property to the house passed to the co-defendant.

(b) The trial circuit court judge erred in law when he held that the co-defendant bought the legal estate without notice of other people’s interest.

[p.695] of [1997-98] 1 GLR 674

The defendant-respondent (hereinafter referred to as the defendant) has also cross-appealed against the judgment.

To buttress her claim the plaintiff called one Henry Kwofie as her first witness. In his testimony Henry Kwofie described himself as a legal practitioner and a revenue commissioner attached to the regional office of the Office of the Revenue Commissioners. He said that some time in 1987 there were problems in respect of financial irregularities in the Ghana Education Service. When these irregularities were detected some personnel of the Ghana Education Service and personnel of the Audit Service were interdicted from the Audit Service and subsequently dismissed. He added that sometime in October 1987 the defendant who had been interdicted from the Audit Service was invited to appear before the Office of the Revenue Commissioners in Accra for his assets to be gone into. Mr Kwofie testified that the proceedings of the commission were recorded.

The witness then tendered in evidence without objection the certified true copy of the report of the said vetting commission. This was admitted in evidence and marked as exhibit B. To attest to the authenticity and reliability of the report, exhibit B, the defendant gave evidence before the court below depicting his satisfaction with the proceedings before the commission. Under cross-examination by counsel for the plaintiff, the defendant stated:

“Q When you appeared before the Office of the Revenue Commissioner they told you to tell them all that you know about the questions they were asking.

A It is true.

Q In other words what you told them was the truth.

A That is the truth.

Q In the report you told them you built the house with financial support from your wife, from her trading activities.

A I did not say that.

Q At page 6 of exhibit B you told them that part of the finance from putting up the building came from the trading activities of your wife.

A This is not so. I have not said this.”

[p.696] of [1997-98] 1 GLR 674

A careful look at the pleadings and the evidence adduced at the court below reveals that the main issues in this appeal are:

(a) Whether or not during the subsistence of the marriage the plaintiff was a trader dealing in textiles and hand bags.

(b) Whether or not the plaintiff made substantial contributions from her trading activities towards the construction of the house in dispute.

(c) Whether or not before the construction of the house the defendant informed the plaintiff that the house was for the benefit of the plaintiff and her children.

(a) 4(4)[sic] Whether or not the co-defendant is an innocent purchaser for value without notice of any adverse claim.

There is evidence from the plaintiff that after the defendant had purchased the land on which the house in dispute stands he informed her about it and assured her that the land was for her and the children of the marriage. For that reason she should help in the construction of the house by way of financial contribution. It is noticeable also that in paragraphs (11) and (16) of the statement of claim, the plaintiff pleaded as follows:

“11. The plaintiff says that when the defendant appeared before the Office of the Revenue Commissioner which was vetting him he told the commissioner that he built the house partly with funds accruing from his trading activities with the wife—the plaintiff—over the period 1964-1986. “

Both in his evidence and pleadings the defendant denied having built the house in dispute partly through the trading activities of his wife. In paragraph (16) of the statement of defence the defendant said: “The defendant vehemently denies paragraphs (11) and (13) of the amended statement of claim and will put the plaintiff to the strictest proof of same.” And the following exchange took place during the cross-examination of the defendant:

“Q At page 7 of exhibit B you repeated that some of the money came from the trading activities of your wife.

[p.697] of [1997-98] 1 GLR 674

A It is not true. In the asset declaration form I filled. I did not state this fact that the house was jointly built. If I had said it was jointly built they would have taken me to task.”

It should be pointed out that the defendant did not speak the truth when he gave evidence before the trial court. His evidence before the revenue commissioners in October 1987 regarding how he financed the building in dispute is in contradiction and totally in conflict with his evidence before the court. In 1987 when matters were fresh in his memory he admitted that he financed the building partly through the joint trading activities with his wife. In her evidence before the Office of the Revenue Commissioners, the defendant said:

“Q You said Margaret Yeboah is a trader in textiles. Since when has she been dealing in textiles?

A Actually we started trading together in 1967 in Takoradi.

Q So she started her trading activities in 1967 and she was dealing in textiles?

A No. In 1967 it was in bags, but it was when we came to Dunkwa in 1969 that she started to deal in textiles.”

(The emphasis is mine.) The defendant also gave the following testimony.

“Q Apart from your salary and the trading activities of your wife, did you get any other money to finance the building of the house?

A Oh yes.

Q You got some other money?

A Yes.

Q From where?

A First I won lotto.

Q How much?

A That was ¢12,000 at that time.”

As indicated earlier, the defendant’s evidence before the trial court and that before the Office of the Revenue Commissioners in October 1987 when he was still married to the plaintiff and

[p.698] of [1997-98] 1 GLR 674 matters were fresh in his mind, are in conflict and in contradiction with each other. These conflicts and contradictions compel me to conclude that the defendant is not a reliable witness. He is a liar. It is evident from his testimony on oath before the Office of the Revenue Commissioners that his evidence before the trial court was a pack of untruths. The settled principle is that a lie on some material issue by a party indicates a consciousness that if he tells the truth he will lose. As Hall J, said in Popvic v Derks (1961) VR 413 at 422: “Matters which otherwise might be ambiguous or colourless are rendered suspicious and corroborative by reason of the false denial.” See also Mawaz Khan and Amanat Khan v R [1967] 1 AC 454 at 463. In R v Chapman (1973) 57 Cr App R 511 at 521, CA it was held that: “Proof of a lie told out of court is capable of being direct evidence admissible at the trial amounting to affirmative proof of the untruth of the defendant’s denial of guilt. This in turn may tend to confirm the evidence against him and implicate him in the offence charged.”

I hold that the defendant lied to the court below when he asserted that he built the house in dispute solely from his own resources and without contribution from his wife. I further hold, relying on the authorities cited, that the lies told by the defendant constituted additional corroboration of the plaintiff’s case that she contributed substantially to the construction of the house in dispute.

The plaintiff’s case is that at the suggestion and request of the defendant she helped in the construction of the house by contributing financially out of her trading activities. She averred:

“I helped in the development of the land. Whenever he comes to me the money I have, the same I would give him for the building. I cannot remember the times I gave him money and I do not remember the period. But I started contribution to the house from the very beginning of construction till completion. I gave about ¢10,000 or ¢5,000 any amount of money I have.”

It is true that the plaintiff could not state the quantum of her contribution towards the building. Her evidence shows that she did

[p.699] of [1997-98] 1 GLR 674 not take account of how much money she gave her husband at a time. But a contribution spanning from the 1960 to 1981 from trading would be substantial. Having regard to the fact that the plaintiff was married to the defendant and they had seven children and the peculiar circumstances involved, her conduct in not recording the moneys she was contributing was natural. In Abebreseh v Kaah [1976] 2 GLR 46 it was held, as stated in the headnote, that:

“[A]lthough W could not state in terms of cash how much contribution towards the building was, it is clearly substantial. The ordinary incidents of commerce had no application in the ordinary relations between husband and wife and W’s evidence as to the size of her contribution and her intention in so contributing should be accepted. Rimmer v Rimmer [1953] 1 Q.B. 63, C.A. cited.”

In this case it is obvious from the judgment of the court below that the trial judge accepted the plaintiff’s explanation that she was induced to contribute towards the building by the representation made by the defendant that he was going to build for her and her children. The effect of the defendant’s conduct in inducing the plaintiff to contribute towards the building was that equity and conscience would not allow him to claim exclusive beneficial interest in the property and leave the wife destitute. In Achiampong v Achiampong [1982-83] GLR 1017 at 1031, CA in a similar situation, Abban JA (as he then was) delivering the judgment of the Court of Appeal stated that:

“If the absence of agreement was allowed to be used by the husband as a weapon to defeat the wife’s claim, it would mean that the husband had been able to persuade the wife to act to her detriment and cleverly got away with it.”

I think the decision in Achiampong v Achiampong (supra) is relevant and can be conveniently applied in this case. I hold that the plaintiff was entitled both in law and in equity to some beneficial interest in the house in dispute absence of agreement notwithstanding.

[p.700] of [1997-98] 1 GLR 674

Now, having regard to the extent and the substantial nature of the plaintiff’s contribution I hold that her contribution should be half share. In the circumstances, I agree with the trial judge when he gave the following judgment in favour of the plaintiff: “I give judgment to the plaintiff in respect of her first relief and declare that house No B 24 Adiembra, Kumasi is a joint property of the plaintiff and the defendant.”

The co-defendant’s case was that he was an innocent purchaser for value without notice. He said before he bought the house he made a search at the Lands Commission in January 1992 which showed that the lease and all other documents on the house bore the defendant’s name. He later inspected the house in dispute and served all the tenants notice to quit; he however failed to serve the plaintiff who according to the defendant was his ex-wife living in the house with their children. The co-defendant claimed that he had purchased the house for ¢14 million. He completed the full payment of the house when this action had already been instituted in the High Court. In other words when the plaintiff commenced her action on the 24 April 1992 only ¢10 million had been paid to the defendant. This is borne out by the receipt—exhibit 23. The evidence further establishes that counsel for the co-defendant acted also for the defendant during the purchase of the house. Exhibit 23 shows that on 10 August 1992 when the matter was already in court, the co-defendant acting through the same counsel paid the final instalment towards the purchase of the house. The record of proceedings further reveals that the same counsel for the co-defendant entered appearance for the defendant on 5 May 1992 when the latter was sued in respect of the house in dispute. The same counsel also filed a defence for the defendant and applied to have the co-defendant joined to the suit. These steps mean that at the time counsel for the co-defendant was acting for the latter in the purchase of the house, he knew that the ownership of the house was being disputed by the plaintiff. I hold that since counsel for the co-defendant and his representative knew that the ownership of the house was in dispute at the time instalment payments were being made for the purchase of the house, and since the last payment was made by the same counsel when the case was already in court, the co-defendant was deemed to have had knowledge that the ownership of the house was in dispute.

[p.701] of [1997-98] 1 GLR 674

It is my view that it was because of this knowledge that when he served notices to quit to tenants of the house, he left out the plaintiff and his children. As a prudent purchaser he should have inquired from the plaintiff as to why she was in the house. Under these circumstances it is my finding that the co-defendant failed to establish that he was an innocent purchaser without notice. He knew that the ownership of the house was being disputed by the defendant’s wife when he bought it.

Even if the sale was valid (which is disputed), it is my view that the defendant conferred on the co-defendant only his interest in the house in dispute. The question is: What interest did the co-defendant acquire in the house in dispute when he made full payment of the purchase price? As already found, the plaintiff and the defendant are joint owners of the house in dispute. It is however a settled principle of law that a joint tenant does not own any specific share in the land. He however has a potential share equal in size to the other joint tenant. And he or she can alienate his interest during his lifetime. If however a joint tenant alienates his interest, his grantee took his share but he holds his share as a common tenant with the other tenant: see Patriche v Powlet (1740) 2 ATK 54.

In this case it is my judgment that what the defendant sold to the co-defendant was only his interest as a joint owner in the property in dispute. He did not sell the whole house which belonged to him jointly with the plaintiff. In other words, the co-defendant merely stepped into the shoes of the defendant. He acquired only the right, title and interest of the defendant on the house. So that it is my finding that the learned trial judge erred when he held that the physical house is not available to be shared and that the plaintiff is entitled to half of the proceeds of the house.

It is my judgment that the plaintiff is entitled to half share of house No Plot 24, Block B Adiembra, Kumasi. In the result, I give judgment in favour of the plaintiff in respect of reliefs (a), (b) and (c) of her claim. The co-defendant’s counterclaim is accordingly dismissed. The plaintiff’s appeal is allowed. The defendant’s cross-appeal is also dismissed.

[p.702] of [1997-98] 1 GLR 674

JUDGMENT OF BADDOO JA.

This is an appeal from the judgment of the circuit court, presided over by his Honour Adu-Gyamfi dated 6 May 1994. In that judgment, the appellant (hereinafter referred to as the plaintiff) obtained a declaration that she was a joint owner with the respondent, (hereinafter referred to as the defendant) of house No B 24 Adiembra, Kumasi. The same judgment held that the co-respondent (hereinafter referred to as the co-defendant) was an innocent purchaser for value of the legal estate in the house, No B 24 Adiembra, Kumasi. The plaintiff has appealed against the judgment on the declaration made in favour of the co-defendant while the defendant has appealed against part of the judgment which made the plaintiff and the defendant joint owners of house No B 24 Adiembra, Kumasi.

The facts of the case are quite simple. The plaintiff and the defendant were married in 1968. They had seven issues. During the subsistence of the marriage, the defendant built house No B 24 Adiembra, Kumasi. In September 1990 the marriage between the plaintiff and the defendant was dissolved. The plaintiff claims that she contributed substantially towards the construction of the house in question and therefore she was entitled to joint ownership. The defendant disputes such claims, maintaining vehemently that he alone financed the building, without any financial assistance from the plaintiff.

The issue which were joined for trial were:

(a) whether or not during the subsistence of the marriage, the plaintiff was a trader dealing in textiles or bags;

(b) whether or not while at Techiman, the defendant was engaged in trading and farming;

(c) whether or not the defendant made money from the sale of certain vehicle and the money was used to finance the building;

(d) whether or not the plaintiff made a substantial contribution from her own resources towards the construction of the house in dispute;

(e) whether or not during the construction of the house the defendant informed the plaintiff that the house was for the benefit of the plaintiff and her children; and

(f) whether or not the defendant sold the house in dispute to one Charles Amankwa.

[p.703] of [1997-98] 1 GLR 674

The plaintiff gave evidence for herself and told the court that she contributed substantially towards the construction of the house. Sometimes she gave ¢10,000 or ¢5,000 or any money she had. In the 1980’s a contribution of ¢10,000 or ¢5,000, was quite substantial. She could make these contributions because she was trading in textiles with many reputable firms. She never kept a record of these contributions because of their relationship as husband and wife with children.

After the plaintiff had given evidence, a legal practitioner attached to the Office of the Revenue Commissioners (ORC) was called for the plaintiff. He tendered the assets declaration form of the defendant and the record of proceedings of the vetting proceedings. The defendant gave evidence for himself and told the court he acquired the plot and built the house on it from his own resources. He testified that at Techiman where he had been transferred, he engaged in commercial farming and other trading activities to finance the construction of the building. He was categorical that the plaintiff did not contribute towards the construction of house No B 24 Adiembra, Kumasi.

The trial judge found that even though the plaintiff did not produce any receipts or record of payments to the husband, to establish her contribution towards the construction of the house, there was corroborative evidence from the defendant himself, when he appeared before the revenue commissioners at Parliament House in October 1987. The trial judge found that at the Office of the Revenue Commissioners, the defendant admitted that he and the plaintiff partially financed the construction of house No B24 Adiembra, Kumasi from their joint trading. He made this finding from the answers which the defendant gave to the questions put to him by the revenue commissioners. The trial judge therefore held that by the defendant’s own admission, the house No B 24 Adiembra, Kumasi, was a joint property of the plaintiff and the defendant.

I agree with the findings of the trial judge that though the evidence adduced by the plaintiff as to her contributions towards the construction of the house fell below the balance of probabilities as required by law, the defendant did provide corroborative evidence that the plaintiff by trading jointly with the defendant, financed the construction of house No Adiembra Kumasi. In

[p.704] of [1997-98] 1 GLR 674 exhibit B, the record of proceedings at the Office of the Revenue Commissioners, this is what the defendant said:

“Q So how did you finance your building?

A In actual fact when I say I started the building in 1974, it does not mean that I started the actual construction work, putting down blocks and so on. In fact I started buying certain items for the house.

Q So how did you buy them? Where did you get the money to buy them?

A For instance when I meet an item, I buy. So if I can buy a bag of cement, I will buy and make some blocks.

Q You have still not answered my question. Where did you get the money to buy those items?

A That was coming from my salary. I told you I was still trading with my wife. We started from Takoradi.

Q You said salary and you were trading with your wife?

A Yes.

Q Were you keeping records of the things you were buying?

A No.”

Then later on in the proceeding we have another admission by the defendant that the building was financed through the joint enterprise with the plaintiff:

“Q Now where else did you get money to put up this building? You have mentioned your salary, your partnership with your wife, the lotto winning and then what?

A Then also I got a loan.”.

There is this other admission by the defendant on the record of proceedings:

“Q You said you put up your building from your salary, trading activities with your wife, the first lotto of ¢12,000 and then those loans and overdraft?

A And then farming.

Q What kind of farming is that?

[p.705] of [1997-98] 1 GLR 674 A Yams and maize.”

Again in exhibit C we have another admission:

“Q You said you were trading?

A When I said that my wife was trading.

Q In what?

A In textiles.

Q Cloth?

Q Yes.

Q Techiman or Kumasi?

Q Suiting materials.

Q Where?

Q At Dunkwa.

Q Who gave her the money to start trading, was it you?

A Yes.

Q So again you got the money from somewhere. How much initial capital did you give her?

A In fact we started with ¢40,000.

Q What year?

A 1967.

Q So you started trading in materials?

A No 1967, we started together; we were then at Takoradi. Even the ¢40,000 it was a loan I collected from somebody and we started.

Q Is she still trading?

A Yes.”

From the foregoing, it is quite clear that the trial judge was right when he concluded that the defendant did provide corroborative evidence by his own admissions before the revenue commissioners. Section 7(1) of the Evidence Decree, 1975 (NRCD 323) provides that:

“7. (1) Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.”

[p.706] of [1997-98] 1 GLR 674

In this case the admissions by the defendant before the revenue commissioners confirms the evidence of the plaintiff that she contributed substantially towards the construction of house No B 24 Adiembra, Kumasi, since the building was financed by the joint trading activities of the defendant and herself.

On the question of whether the co-defendant was a bona fide purchaser for value without notice, the trial judge held that since the co-defendant made a search at the Lands Commission which showed that the lease and all other documents on the house were in the name of the defendant, and had made a part-payment of ¢10 million, the property had passed to the co-defendant. But the trial judge having come to the right conclusion that the property was the joint property of the plaintiff and the defendant, should have held that the defendant could not therefore dispose of the joint property without the knowledge and consent of the plaintiff.

He should have so held because even if the co-defendant were a bona fide purchaser for value without notice, he could not have priority over the holder of a legal estate which the plaintiff had as a joint owner of the property: see Halsbury Laws of England (4th ed), Vol 16, para 1311 which states: “Originally the plea of purchase for value without notice was available against both equitable and legal claims, but it came to be restricted to cases where the defendant himself had the legal estate, or where the legal owner was suing, under the auxiliary jurisdiction in equity, to obtain assistance, such as discovery, in his action at law. Hence in later times the plea was not admitted against an equitable claimant, nor against a legal owner who sued on his legal title under the concurrent jurisdiction in equity, or who sued in equity for an equitable remedy, such as foreclosure, incident to his legal title . . . If the plaintiff came into equity for substantial relief, and if his claim was based on a legal title, the court did not allow the plea to be a bar to the declaration of his right . . . “

Now, was the co-defendant a bona fide purchaser for value without notice? Did he know about the interest of the plaintiff when he set out to purchase the property? Notice may be actual or constructive. For actual notice to be binding, it must be given by a

[p.707] of [1997-98] 1 GLR 674 person interested in the property during the course of the negotiation. On the other hand, notice to an agent working on the transaction is imputed as actual knowledge to the principal and affects him, whether it has been communicated to him or not, except where there has been fraud on the part of the agent: see Halsbury’s Laws of England (4th ed), Vol 16, para 1324.

In this case, the solicitors who made the search for the co-defendant were the same solicitors who entered appearance and filed a defence for the defendant. The writ was issued on 24 April 1992. The solicitors for the defendant filed their defence on 5 June 1992. The assignment on the property was executed on 5 July 1992. Since it was the same solicitors acting for the defendant and the co-defendant, the co-defendant must be deemed to have known that there was some other interest in the property. He could therefore not be a bona fide purchaser without notice.

I shall therefore set aside the sale of the property and grant the reliefs (a) and (b) sought by the plaintiff. The appeal is therefore allowed and reliefs (a) and (b) granted. With regards to relief (c) since the plaintiff and the defendant are joint owners of the property, the defendant is entitled to half of the property.

The cross-appeal by the defendant is hereby dismissed. The counterclaim of the co-defendant is similarly dismissed. The property should be valued by the Lands Valuation Board and sold. The proceeds will be divided between the plaintiff and the defendant. Since the plaintiff is in possession, she will be given the first choice. If she is unable to purchase within six months, the registrar should then proceed to sell.

Cost of ¢300,000 to the plaintiff.

DECISION

Appeal of plaintiff allowed.

Cross-appeal of co-defendant dismissed.

LSNA.

Endnotes

1 (Popup – Footnote) 1 same in content 2 (Popup – Footnote) 2 same in content 3 (Popup – Footnote) 3 same in content 4 (Popup – Footnote) 4 same in content