DOE vs. OPOKU-ANSAH [1997-1998] 2 GLR 149

CASES REFERRED TO

(1) Scott v Brown, Doering McNab & Co [1892] 2 QB 724; 61 LJQB 738; 41 WR 116.

(2) Baidoo v Sam [1987-88] 2 GLR 666, CA.

[p.152] of [1997-1998] 2 GLR 149

(3) Ulrich v Ulrich and Felton [1968] 1 WLR 180; [1968] 1 All ER 67; CA.

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

(5) Rimmer v Rimmer [1953] 1 QB 63; [1952] 2 All ER 863; 96 SJ 801, CA.

(6) Rogers’ Question, Re [1948] 1 All ER 328, CA.

(7) Hazell v Hazell [1972] 1 WR 301; (1971) 116 SJ 142; [1972] 1 All ER 923, CA.

(8) Wachtel v Wachtel [1973] 1 All ER 829; [1973] 2 WLR 366; [1973] Fam 72.

(9) Fribance v Fribance (No 2) [1957] WLR 384, CA.

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

(11) Falconer v Falconer [1970] 1 WLR 1333; [1970] 3 All ER 449; 114 SJ 720, CA.

(12) Sykes v Abbey, Supreme Court, Accra, 19 March 1996, unreported.

(13) Sasu-Twum (Decd), In re; Sasu-Twum v Twum [1976] 1 GLR 23.

(14) Morris v Monrovia (1930)1 WACA 70.

(15) Ababio v Bekoe II [1996-97]SCGLR 392.

(16) Obrasiwa v Otu [1997-98] 1 GLR 858, SC;[1996-97] SCGLR 618.

(17) Ampomah v Volta River Authority [1989-90] 2 GLR 28, CA.

(18) Quartey v Quartey [1991] 1 GLR 248, CA.

(19) Moses v Anane [1989-90] 2 GLR 694, CA.

(20) Garnet, In re; Gandy v Macaulay (1885)31 ChD 1, CA.

APPEAL from judgment of the Court of Appeal affirming the judgment of trial circuit court in favour of the respondent in an action for, inter alia, declaration of title to the property in dispute. The facts are sufficiently set out in the judgment of Ampiah JSC.

Nana Akufo-Addo (with him Alex Quaynor) for the appellant.

S A X Tsegah (with him Kwabena Aboagye) for the respondent

Aikins JSC. The plaintiff-respondent-respondent, George Opoku-Ansah (hereafter referred to as the respondent), commenced his action in the circuit court in May 1992 and secured a judgment in his favour. His adversary, Adelaide Doe, lodged an appeal from

[p.153] of [1997-1998] 2 GLR 149 the decision of the circuit court to the Court of Appeal. The appeal was dismissed, and it is against this decision of the Court of Appeal that she has appealed to this court.

When the appeal came up for hearing before us, Mr Kom, counsel for the respondent, raised a preliminary legal objection by taking the point “that the appeal is incompetent and not properly before the court having been filed out of time.” According to learned counsel, the judgment of the Court of Appeal was delivered on 31 October 1996; leave to appeal was granted on 3 December 1996 and the appeal pursuant to leave was filed on 3 March 1997, one day out of time. After due calculation by Nana Akufo-Addo learned counsel for the defendant-appellant-appellant (hereinafter referred as the appellant), it came to light that the appeal was within time, and the application was accordingly dismissed.

The respondent’s claim is that he owned the property in dispute under a deed of assignment granted to him by the late Mr George Doe, the husband of the appellant, by virtue of which late Mr George Doe purported to assign all his interest in the property to the respondent. He therefore by his writ asked for the following reliefs:

“(a) A declaration of title and recovery of possession of a piece or parcel of land and building thereon known as plot No D2 situate at the Ring Road Extension (North), Accra.

(b) An order for perpetual injunction restraining the defendant and her agents or servants or employees from interfering with the said piece or parcel of land.

(c) Damages for trespass for use and occupation.”

The adversary, the appellant herein, resisted the claim on the ground that the property was jointly acquired by the late husband and herself, and as a result its purported alienation by her husband without her knowledge and consent is null and void. She said the acquisition of the property was jointly financed from the profits that accrued to herself and her late husband from a tye-and-dye business which she, her mother and her late husband engaged in. In other words, as the sole survivor, she is the absolute owner of the property after the death of her husband.

The main ground of appeal is:

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“The Court of Appeal erred in holding on the evidence adduced that the defendant-appellant did not contribute towards the construction of the property in dispute and therefore had no interest in it.”

The evidence on the record shows clearly that the legal title in the property was vested in the late Mr G E K Doe, husband of the defendant. However, the law is that the success of a claim to a beneficial interest in the property by a person in whom the legal estate is not vested must depend on establishing that the person in whom the legal estate in land is vested holds it as a trustee to give effect as a cestui que trust. What is required to be proved in this case is not that the defendant held a legal title in the property as the Court of Appeal strenuously spent time to expatiate upon, but that the defendant contributed to the building of the house.

As stated earlier, the case of the defendant is that the acquisition of the property was financed from the profits of a partnership business. It was therefore incumbent upon the defendant to produce credible evidence of the said business, the registration of such partnership under section 4 of the Incorporated Private Partnership Act, 1962 (Act 152), and the production of a document in proof of such registration. Though some evidence was given in respect of the agreement to establish the partnership, and that the partnership was registered, the defendant failed to produce any document to confirm such registration. To establish the non-registration of the said partnership, the plaintiff called the seventh plaintiff witness, an officer of the Registrar-General’s Department, who gave evidence to the effect that no such partnership was registered with the department at the material time.

By section 1 of its provisions, Act 152 came into force on 1 January 1963, ie as its commencement date; and section 4(1) of Act 152 provides as follows:

“4. (1) After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register . . . of this Act.”

Since the alleged partnership was not registered, the defendant was engaged in illegal business with her husband and mother. That being the case, how can this court properly lend its support to help

[p.155] of [1997-1998] 2 GLR 149 her assert her rights under the said business? This portion of her claim is no doubt tainted with illegality. The rule is ex turpi causa non oritur actio. See Scott v Brown, Doering McNab & Co [1892] 2QB 724 where the principle stated by Lindley L J was adopted by our Court of Appeal in Baidoo v Sam [1987-88] 2 GLR 666 at 680, CA. At 728 of the Scott case Lord Justice Lindley stated:

“No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality.”

But that is not the end of the case. Nana Akufo-Addo, learned counsel for the appellant, has raised one point that has filled me with concern. And that is his argument that the defendant was involved in the initiation of the building, from the design to the acquisition of the land and the construction, and contributed not only financially, but also by travelling from Germany to Ghana to supervise the construction. He urges that it was the clear intention of the defendant and her late husband that the house should be their matrimonial home, their joint property.

There is evidence that it was the defendant who first mooted the idea of acquiring joint property in Ghana as a matrimonial home. She said in her evidence:

“In 1962 I saw a certain building in Nigeria in Lagos. I told him about it and when he came we went to inspect it the following day together. When he inspected it, he liked it. We contacted the occupant of the house who promised supplying us with a design of the house. In a week’s time he gave us the design . . . In 1963, we were in Ghana for two months and I asked that we should put up the building but he said he was not then ready and so I went and paid for the building permit from Town Planning.”

There is also evidence that she was travelling to Ghana on diverse occasions to physically supervise the construction of the building, in addition to transacting other business in the absence of the husband from Ghana.

It has been argued that the facts of this case do not disclose the existence of an actual agreement between the defendant and her

[p.156] of [1997-1998] 2 GLR 149 husband that the defendant was to have beneficial interest in the house. True, the burden of establishing agreement is on the defendant, but I must say that in situations where there is no explicit agreement to this effect, it is the duty of the court first to infer from their conduct in relation to the property what would have been their common intention if they had put it into words before matrimonial differences arose between them or before the death of the other spouse—see Ulrich v Ulrich and Felton [1968] 1WLR 180 at 188-189, CA. Once the court finds that the transaction was such that the parties must have intended it to be binding, the court has to give effect to it even though there was no carefully formulated agreement. The law is that in the case of a husband and wife, the strictness required where the parties were strangers can be dispensed with. Even if it is argued that in this case there had been no specific agreement that the defendant was to have a beneficial interest in the property, the court would still be entitled to infer intention from their conduct, having regard to the circumstances surrounding the acquisition of the property: see Achiampong v Achiampong [1982-83] 2 GLR 1017, and also Rimmer v Rimmer [1953] 1 QB 63 at 76, CA where Romer LJ put the matter succinctly as follows:

“It seems to me that the only general principles which emerge from our decision are, first, that cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase price of property, and, secondly, that the old—established doctrine that equity leans towards equality is peculiarly applicable to disputes between husband and wife, where the facts, as a whole, permit of its application.”

It must be emphasized that the old law which stated that, if the matrimonial home stood in the husband’s name, it was taken to belong to him entirely both in law and in equity, and the wife did not get any proprietary interest in it just for the reason that she helped him to purchase or construct it, is outmoded arid thrown over board. Now by a long line of cases, starting from Re Rogers’ Question [1948] 1 All ER 328, CA and ending with Hazell v Hazell [1972] 1 WLR 301, CA it has been held that, if a wife contributes directly or indirectly (say supervising the construction

[p.157] of [1997-1998] 2 GLR 149 without any remuneration whatsoever from the other spouse), in money or money’s worth, to the initial deposit, she gets an interest proportionate to her contribution—see Lord Denning MR’s dictum in Wachtel v Wachtel [1973] 1 All ER 829 at 837, CA.

Fribance v Fribance (No 2) [1957] 1 WLR 384, CA is a case of interest. Here the house, the subject matter of the case, was bought in the name of the husband alone. But the wife had made some contributions. When the marriage broke down, they continued to stay in the house, occupying separate rooms. It was argued on behalf of the husband that the wife had no right to the house or any share in it unless she could show a contract by the husband with her or a gift by him to her or to a trust by him for her in regard to it. The argument was rejected by the Court of Appeal Where Lord Denning LJ on his part said at 387:

“I do not think that line of argument is valid today…In many cases, however, the intention, of the parties is not clear, for the simple reason that they never formed an intention: so the court has to attribute a n intention to them. This is particularly the case with family assets, by which I mean the things intended to be a continuing provision for them during their joint lives, such as the matrimonial home and the furniture in it. When these are acquired by their joint efforts during the marriage, the parties do not give a thought to future separation. They do not contemplate divorce. They contemplate living in the house and using the furniture together for the rest of their lives. They buy the house and furniture out of their available resources without worrying too much as to whom it belongs . . . In the present case it so happened that the wife went out to work and used her earnings to help run the household and buy the children‘s clothes, whilst the husband saved. It might very well have been the other way round . . . The whole of their resources were expended for their joint benefit—either in food and clothes and living expenses for which there was nothing to see or in the house and furniture which are family assets—and the product should belong to them jointly. It belongs to them in equal shares.”

Even if, as in the instant case, it can be said that there was no agreement, specific or otherwise, the circumstances that led to the acquisition of the property coupled with the conduct of both

[p.158] of [1997-1998] 2 GLR 149 husband and the defendant were such that equity and good conscience will not stay put and allow the husband to claim exclusive beneficial interest in the property, leaving the defendant destitute. The absence of agreement should not be allowed to be used as a weapon to defeat the wife’s claim. This would mean that the husband has been able to trick her to act to her detriment, and get away with it.

In saying all this, I am not unmindful that the husband of the defendant died before the commencement of the cause. I have looked at the case with care, and I am satisfied with the stand I take. As in the instant case, where the defendant has used her time, resources other than those accruing from the tye-and-dye business already dealt with, and personally supervised the construction of the building for the joint benefit of herself and the husband in the reasonable belief that she was acquiring beneficial interest in the property, the court must on equitable principles hold the husband as a trustee for himself and the defendant.

It is also said that the defendant has not been able to establish the precise extent of her contributions in terms of cash. That should not constitute a bar to her claim for joint ownership, because the house was built at a time when she was married to Mr George Doe and there had not been any incident to adversely affect their relationship or cause the marriage to flounder. Here it is appropriate to recollect the trust concept enunciated by Lord Diplock in his judgment in Gissing v Gissing [1971] AC 886 at 904-905: “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 . . .

A resulting, implied or constructive trust—and it is unnecessary for present purposes to distinguish between these three classes of trust is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have

[p.159] of [1997-1998] 2 GLR 149 conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”

Lord Denning MR followed this decision in Falconer v Falconer [1970] 1 WLR 1333, CA and clearly spelt out at 1336 the circumstances under which a trust can operate. He said:

“The House did not overturn any of the previous cases in this Court on the subject. They can, I think, still provide good guidance. But the House did make clear the legal bases for them. It stated the principles on which a matrimonial home, which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement, express or implied, but rather by virtue of a trust which is imposed by law. The law imputes to husband and wife an intention to create a trust, the one for the other. It does so by way of an inference from their conduct and surrounding circumstances, even though the parties themselves made no agreement upon it. This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution may be direct, as where it is actually stated to be a contribution towards the price or the instalments. It may be indirect, as where both go out to work, and one pays the housekeeping and the other the mortgage instalments. It does not matter which way round it is. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust.”

(The emphasis is mine)

Recently, I had the occasion to express a similar view in Sykes v Abbey, Supreme Court 19 March 1996, unreported. I delivered the judgment of the court on 19 March 1996. I said, inter alia: “One of the criticisms of the Court of Appeal was that the plaintiff merely stated she gave an unspecified sum of money for the building materials, and did not disclose what she gave to the defendant for payment of different categories of workmen who actually built the house. The court queried: ‘Why

[p.160] of [1997-1998] 2 GLR 149 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 unable to establish detailed and specified contributions in terms of cash given to the husband to purchase materials for the house in mathematical exactitude. In [our] 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 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, Fribance v Fribance [1957] 1 WLR 384, CA and Achiampaong v Achiampong [1982-1983] GLR 1017, CA.”

In the circumstances, it is my judgment that in whatever vein one views the facts and circumstances of the instant case, the defendant appellant is entitled, both in law and in equity, to some beneficial interest in the property in dispute, whether there was an agreement or not. I think, judging from the extent of the defendant’s contribution, that beneficial interest should be half share. Such legitimate interest in the property having been established, it would be highly unjust if this court approves of the unlawful act of the husband of the defendant in his sale of the property without the knowledge and consent of the defendant.

I would therefore allow the appeal and dismiss the claim of the plaintiff with costs.

Hayfron-Benjamin JSC. This is a second appeal wherein the judgment of the circuit court was affirmed by the unanimous decision of their lordships in the Court of Appeal. Strangely, the appellant urges upon this court the very ground which he canvassed before their lordships in the Court of Appeal. The appellant complains that:

“The Court of Appeal erred in helding on the evidence adduced that the defendant-appellant did not contribute towards the construction of the property in dispute and therefore had no interest in it.”

[p.161] of [1997-1998] 2 GLR 149

True, additional grounds of appeal were set down and argued before their lordships in the Court of Appeal. But before us, the appellant has set her sights solely on what she terms the error on the part of the Court of Appeal to evaluate her evidence as to her contributions towards the construction of the house in dispute.

In the appellant’s statement of case filed in respect of this appeal, learned counsel states: “The Court of Appeal in affirming the finding of the trial circuit court that the tye-and-dye business did not exist relied on the evidence of the seventh plaintiff witness, an officer of the Registrar-General’s Department, on the non-existence of the registration of the business at the department.”

And submitted that: “in the face of the preponderous (sic) evidence on record about the tye-and-dye business, the Court of Appeal ought not to have relied heavily on the evidence.” On the record, the appellant asserted that she and her mother and her late husband had formed a company—Beatrice Opoku Afari Enterprise (for that is the name of the appellant’s mother). The evidence of the witness from the Registrar-General’s Department was first to debunk the appellant’s story of a registered partnership and second to expose the appellant as not being a witness of truth. The legal position was even worse, for if such a private partnership for profit existed and was not registered, no rights could exist under it; see In re Sasu-Twum (Deed); Sasu-Twum v Twum [1976] 1 GLR 213. There was also in my respectful opinion “no preponderous (sic) evidence” in support of the tye-and-dye business.

Learned counsel continues his attack on the evidence of the officer from the Registrar-General’s Department by inviting this court to take judicial notice of the lack of a systematic keeping of records in “Ghanaian public institutions” and concludes that: “On this issue, the evidence of the defendant and her witnesses are more credible.”

Mr George Eric Doe died in February 1990. The present writ of summons was filed in May 1990, so that at all material times in respect of this dispute, Mr George Doe was dead. If it is therefore sought to offer evidence which affects the interest or estate of a dead person, the test is not only on credibility of the evidence but that such evidence is literally true. In Morris v Monrovia (1930) 1 WACA 70, a case which bears some similarity with the present

[p.162] of [1997-1998] 2 GLR 149 case, Dean CJ, in considering the issue of credibility in circumstances such as this, wrote at 74 thereof that:

“The well-established rule of law is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her own deposition; and unless there be some corroboration of it something to satisfy the Court that the assertion is literally true, the Court can take no notice of it.”

In my respectful opinion, the evidence of the appellant was not in any way corroborated by the evidence of her mother. If there is anything to go by the appellant’s mother’s evidence, she was in the tye-and-dye business in a small way and the late Mr George Doe, whilst Ambassador to Germany, from time to time sent her the dyes to enable her carry on her small business. Besides, her evidence was not believed by both the circuit court and their lordships in the Court of Appeal. Clearly there was no credible evidence of any such business.

In this appeal, the record contains what I may describe as an evasive statement of defence. The appellant, then defendant, clearly admitted that the late Mr George Doe acquired title to the plot No D2 Ring Road Extension (North), Cantonments on which house No 7 is situated from the Ghana Government in or about 1963 and 1965. The statement of defence describes the document executing the assignment between Mr George Doe and the Government of Ghana and dated 6 June 1963 as “merely” evidencing the “interest already vested in her late husband.” This latter pleading could not have been seriously advanced because that assignment was indeed the genesis of any title or interest which Mr George Doe had in the property. There was again on the record overwhelming documentary evidence of the securing of a mortgage loan from the State Insurance Corporation, the engagement of the contractors—Messrs Italo-Ghana Civil Engineering Construction Company and the periodic payments made on Mi Doe’s behalf to the contractors. In all these documents, I do not see the hand of the appellant in the payment of any amount in diminution of the mortgage loan. Nor is there any evidence that while in Ghana, away from her husband, she paid any monies ever on behalf of her late husband for that purpose. Consequently I am led to conclude that the house was constructed and solely paid for by the late Mr George Doe. He was thus entitled to dispose of the property as he wished.

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Yet again, the evidence on record does not satisfy me that this property was the appellant’s matrimonial home. It appears from the appellant’s evidence-in-chief that she did not want to stay with her late husband, for she said in her said evidence that: “I was talking about time I was living in Nima. I went back to the house to live there when my husband was sick. I went there in January 1990.” Strangely enough, Mr George Doe died on 15 January 1990. In my respectful opinion, any pretence that the house in dispute was their matrimonial home was dispelled by her admission that she lived elsewhere from about 1986 until her return to the house the very month that her husband died.

In my respectful opinion, both the trial circuit court and their lordships in the Court of Appeal reviewed the evidence with a toothcomb and came to the right conclusions. The appellant could not sustain her ground that the judgment was against the weight of evidence because the law and the facts had been more than adequately dealt with in the two courts. There was no merit in the appeal and the same is dismissed.

Ampiah JSC. This is an appeal against the decision of the Court of Appeal dated 31 October 1996.

On 15 May 1990, the plaintiff issued out a writ of summons against the defendant at the circuit court claiming:

“(1) A declaration of title to and recovery of possession of all that piece or parcel of land known as plot No D2 in the Ring Road Extension (North) in the city of Accra in the Greater Accra Region of the Republic of Ghana.

(2) An order for perpetual injunction restraining that defendants and her agents or servants or employees from interfering to the said plot of parcel of land.

(3) Damages for trespass for use and occupation.”

On 22 November 1994, the court gave judgment for the plaintiff declaring title in the property in him and awarded him ¢500,000 damages for trespass. The court also ordered perpetual injunction against the defendant. The defendant appealed to the Court of Appeal. The court unanimously dismissed the appeal, thus affirming the decision of the lower court. Still not satisfied, the defendant has appealed to this court.

Apart from the omnibus ground that the judgment is against the weight of evidence, the gravamen of the defendant’s complaint against the judgment of the Court of Appeal is that:

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“The Court of Appeal erred in holding on the evidence adduced that the defendant-appellant did not contribute towards the construction of the property in dispute and therefore had no interest in it . . .”

Even though the defendant had intimated in the notice of appeal that “additional grounds will be filed on receipt of the record of proceedings,” I am unaware of any further grounds filed. However, in view of the peculiar nature of the defendant’s claim, I am prepared to look at the totality of the evidence and do justice in the case.

At the close of pleadings and on the evidence adduced, the issues which posed themselves for serious consideration were:

(a) Whether or not the property in issue was jointly acquired by the late Mr George Doe and the defendant or solely acquired Mr George Doe.

(b) Whether or not the assignment of the property of Mr George Doe to the defendant is valid in law.

The trial judge after evaluating the evidence, disbelieved the story of the defendant. He found that the property under consideration was the bona fide property of George Doe, the husband of the defendant, alone and that he dealt with it as the owner without any reference to the defendant in any way. He also found that the alleged partnership story put up by the defendant did not exist and that in so far as the construction of the property was concerned the defendant did not contribute in anyway. These findings were amply supported by the evidence on record.

His lordship, Afreh JA, who wrote the leading judgment in the appeal, ably dealt with all the issues raised in the matter. In the Court of Appeal, as in this court, the defendant contended vehemently that: “the court below erred in holding on the evidence adduced that the defendant-appellant did not contribute toward the acquisition of the property in dispute and therefore has no interest in it.” It was for the defendant to establish that she and her husband were joint owners of the property. The trial court, as I have earlier stated, found that the defendant’s evidence on record was not satisfactory. Dealing with the same issue, Afreh JA observed:

“It was incumbent on her to prove that the land in dispute was conveyed to her and her husband jointly or, to use a technical term, without words of severances. She should have shown that the title she claims derived from the same grant and it

[p.165] of [1997-1998] 2 GLR 149 became vested in her at the same time as her husband’s; that their interests were identical in size; and that there was unity of possession. To determine whether or not that these unities existed, it is necessary to look at the conveyance by which the government demised the land to Doe. As the legal title in the property in dispute was vested only in her husband, the defendant in order to establish a beneficial interest, had to establish a constructive, implied or resulting trust of which she was the beneficiary or cestui que trust.”

His lordship on the authorities found quite rightly that there was no such proof. There was no evidence alluding to a common intention to a house for themselves. As stated by the judge, the proof of the common intention can be by direct evidence. In Gissing v Gissing [1971] AC 886 at 905, Lord Diplock observed:

“An express agreement between spouses as to their respective beneficial interest in land conveyed into the name of one of them obviates the need for showing that the conduct of the spouse into whose name the land was conveyed was intended to induce the other spouse to act to his or her detriment upon the faith of the promise of a specified beneficial interest in the land and that the other spouse so acted with the intention of acquiring that beneficial interest. The agreement itself discloses the common intention required to create a resulting, implied or constructive trust.”

Both courts below found that there was no evidence of any express agreement between the defendant and her husband. The appellate court went further to determine from the circumstances of this case whether or not a common intention can be inferred from the words or conduct of the defendant and her husband at the time the property in dispute was acquired; for, as was stated in the case of Gissing v Gissing (supra) at 906:

“. . . in the branch of English Law relating to constructive, implied or resulting trust effect is given to the inferences as to the intentions of parties to a transaction which a reasonable man would draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself. It is for the court to determine what those inferences are.

[p.166] of [1997-1998] 2 GLR 149

In drawing such an inference, what spouses said and did which led up to the acquisition of a matrimonial home and what they said and did while the acquisition was being carried through is on a different footing from what they said and did after the acquisition was completed. Unless it is alleged that there was some subsequent fresh agreement, acted upon by the parties, to vary the original beneficial interests created when the matrimonial home was acquired, what they said and did after the acquisition was completed is relevant if it is explicable only upon the basis of their having manifested to one another at the time of the acquisition some particular common intention as to how the beneficial interests should be held.”

In support of her claim, the defendant led evidence as to how the building was financed from profits from a tye-and-dye enterprise The two courts critically examined the evidence and rejected it. They concluded that there was no such arrangement between the defendant, her mother and the defendant’s husband. The evidence led by the defendant was found not to be satisfactory to create any such inference. The trial court, having seen and heard the defendant, and all the evidence led, was entitled to reject the defendant’s evidence. The Court of Appeal re-examined that evidence and supported the trial court in its rejection of that evidence.

In Ababio v Bekoe II [1996-97] SCGLR 392, this court held, inter alia, that an appellate court, not having seen the witnesses, it was in a permanent position of disadvantage against the trial judge and therefore unless it could be shown that the trial judge had failed to use or had palpably misused his advantage, by for example failing to observe into inconsistencies or indisputable fact, or material probabilities, the higher court ought not to take the responsibility of reversing conclusions arrived at merely as a result of their own comparison and criticism of the witnesses and of their own view of the probabilities of the case. In the instant case there was evidence in support of the findings by the trial judge and the Court of Appeal fully indorsed the findings after its own revaluation of the evidence on the record. It is also a principle of law that concurrent findings of lower appellate courts should not be easily displaced. In Obrasiwa II v Otu [1996-97] SCGLR 618, it was held, inter alia, that:

[p.167] of [1997-1998] 2 GLR 149

“where the lower appellate court had concurred in the findings of the trial court, especially in a dispute, the subject-matter of which was peculiarly within the bosom of the two lower courts or tribunals, a second appellate court would not interfere with concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error which had resulted in a miscarriage of justice was apparent in the way in which the lower tribunals had dealt with the facts. The errors would include an error on the face of a crucial documentary evidence; a misapplication of a principle of evidence; and finally, a finding based on an erroneous proposition of law such that if that proposition was corrected the finding would disappear. However, it was not enough that the blunder or error per se was established; it must further be established that the said error had led to a miscarriage of justice.”

I have examined the evidence on record and do not see any such errors that have resulted in any miscarriage of justice.

Even though in the particular circumstances of this case, it was not necessary to apply the principle of a bona fide purchaser for value without notice, I agree with the Court of Appeal that that principle would apply if the equities in the matter were to be seriously considered.

The defendant stated as one of her grounds that the judgement was against the weight of evidence, but her counsel did not seriously argue on this ground. In the case of Ampomah v Volta River Authority [1989-90] 2 GLR 28, CA, the court held, as stated in the headnote (holding 2) that:

“(2) Where (as in the instant case) an appellant charged that the judgment of the court below was against the weight of evidence, there was a presumption that the judgment of the court below on the facts was correct. The appellant in such a case therefore assumed the burden of showing from the evidence on record that the judgment was indeed against the weight of the evidence.”

In the instant case there was clear evidence on record which supported the findings of fact and conclusions made by the trial court. Therefore the appellant has not been able to discharge the burden of showing that the judgment of the court below was

[p.168] of [1997-1998] 2 GLR 149 against the weight of evidence. In conclusion, I would dismiss the appeal as unmeritorious.

Adjabeng JSC. Judgment was given by the Circuit Court, Accra in favour of the respondent herein on his claim for a declaration of title to and recovery of possession of a plot of land with building thereon situate at the Ring Road Extension (North) in Accra, and described as plot No D2. The court also made in favour of the respondent an order of perpetual injunction, and awarded damages of ¢500,000 for trespass. An appeal against the judgment to the Court of Appeal was dismissed. Undaunted, the appellant has appealed to this court.

The appellant’s appeal to this court is based on two grounds. These are:

“(a) The Court of Appeal erred in holding on the evidence adduced that the defendant-appellant-appellant did not contribute towards the construction of the property in dispute and therefore had no interest in it.

(b) The judgment is against the weight of evidence.”

The main thrust of the appellant’s appeal before us seems to be in the following submission contained in her statement of case filed in this court. It is therein submitted that:

“The Court of Appeal perpetuated the error of the trial circuit court in holding on the evidence adduced that the defendant did not contribute towards the construction of the property in dispute and therefore had no interest in it. That finding was against the weight of the evidence.”

A close look at the arguments advanced in support of the appeal shows clearly that it is not the contention of the appellant that the findings of the trial court are not supported by the evidence adduced before that court. What the appellant seems to be complaining about is the fact that the trial court and the Court of Appeal did not accept the appellant’s version of the story. It seems to me, therefore, that the main quarrel of the appellant about the decision of the trial court, as confirmed by the Court of Appeal, is that instead of these courts accepting her version of the story, they rather accepted the version of her opponent, the respondent.

In the appellant’s statement of case filed in this court, it is submitted on behalf of the appellant as follows:

[p.169] of [1997-1998] 2 GLR 149

“The Court of Appeal in affirming the finding of the trial circuit court on the tye-and-dye business that it did not exist relied on the evidence of the seventh plaintiff witness, an officer of the Registrar-General’s Department on the non-existence of the registration of the business at the Department. It is submitted that in the face of the preponderous evidence on record about the tye-and-dye business, the Court of Appeal ought not to have relied so heavily on the evidence.”

(The emphasis is mine.) Again, it is submitted in the appellant’s statement of case, as follows: “It is common knowledge that records are not properly and comprehensively kept by Ghanaian public institutions. This situation coupled with the fact that the search conducted was not comprehensive undermines the evidential value of the evidence of the seventh plaintiff witness and the Court of Appeal ought not to have relied on it in deciding on the existence or otherwise of the tye and dye business. On this issue evidence of the defendant and her witnesses are more credible.”

(The emphasis is mine.)

It is clear from the above submission that, in the opinion of the appellant and her counsel, the evidence of the appellant herself and her witnesses is more credible and should have been accepted by the trial court and the Court of Appeal. And the failure of these courts to accept the case of the appellant is the basis of this appeal before us. But whose duty is it to accept or not to accept one of two rival stories in such a situation? Is it the trial court or the appellate court? It is trite learning that it is the trial court which has seen and heard the parties and their witnesses that would be in the better position to decide which of the two stories to accept. And once the trial court makes a choice which is supported by the evidence on the record, an appellate court ought not to disturb the choice or finding so made: see Ampomah v Volta River Authority [1989-90]2 GLR 28 at 35, CA; Quartey v Quartey [1991] 1 GLR 248 at 249, CA.

In the instant case, it was the duty of the appellant to satisfy the trial court on her claim that she contributed substantially towards the cost of acquiring the property in dispute and so was a joint

[p.170] of [1997-1998] 2 GLR 149 owner thereof with her late husband. The burden, assumed by the appellant, it must not be forgotten, was a heavy one since the appellant had not made such a claim during the lifetime of her late husband. Such a claim made after the death of the appellant’s husband, therefore, makes the claim rather suspicious. Clear, cogent, and credible evidence was in the circumstances needed to clear such suspicion: see Moses v Anane [1989-90] 2 GLR 694 at 697, CA; Garnett, In re; Gandy v Macaulay (1885) 31 ChD 1, CA. The trial court considered the evidence on the tye-and-dye business the appellant talked about, and came to the conclusion that the appellant’s story was not credible. The court in its judgment concluded as follows: “I am not satisfied that the defence has been able to establish the quantum of her contribution to the acquisition of the building or premises under consideration.”

It is not disputed that the findings of fact made by the trial court are supported by the evidence on the record. The affirmation of these findings by the Court of Appeal cannot, therefore, in any view, be faulted. In the circumstances, I am of the firm view that this court has not right to interfere with the findings and conclusion of the trial court as affirmed by the Court of Appeal. The appeal ought to fail.

Atuguba JSC. I take it as a general principle, at any rate in civil cases, that the intention of the parties can be inferred from the surrounding circumstances in the absence of an express indication thereof. In this case the plaintiff-respondent-respondent (herein after referred to as the respondent) who has been found to be the purchaser of the disputed house made such extensive alterations and additions to the property inconsistent with the defendant-appellant-appellant’s title thereto, if really she had any in it, that her failure to assert her rights as against him does not point to her being a co-owner thereof. Even after her husband’s death, the appellant still regarded it as her deceased husband’s property. At page 118 of the record, she testified in examination-in-chief as follows: “at the time of his death as far as I am concerned the house still belonged to him.” Joint property does not belong to one person.

Clearly, her later assertions to the contrary about joint ownership with her would be afterthoughts. The two sets of expressions coming from the same person who knew all along her alleged joint interest in the property, are incongruous.

[p.171] of [1997-1998] 2 GLR 149 In any case, the question of intention of acquisition of joint matrimonial property is an ascertainable fact. On this issue, there are two concurrent findings of fact by the courts below. On well known principles of law concurrent findings of fact can only be upset on very cogent grounds. The appellant has not demonstrated such grounds.

I would also therefore dismiss this appeal.

Appeal dismissed.

SA