IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2018
JUSTINA MENSAH -(Plaintiff/ Appellant)
SIMMS KOFI MENSAH - (Defendant/ Respondent)
DATE: 29TH NOVEMBER, 2018
CIVIL APPEAL NO: HI/192/2018
JUDGES: K.A. ACQUAYE J.A (PRESIDING), B.F. ACKAH-YENSU J.A, I. O. TANKO AMADU J.A
LAWYERS: G.O. ADUFU ESQ. (FOR APPELLANT) K. OFFEI BADU ESQ. (FOR RESPONDENT)
TANKO AMADU J.A
(1) This appeal lies from the judgment of the High Court (Land Division) Accra dated the 14th day of June, 2017 in the said judgment the Learned Trial Judge held and ordered in inter alia as follows:-
“Thus the Plaintiff’s claim will fail. The court finds that the property in dispute located at New Achimota, was constructed by funds made available by the Defendant and even though the legal documents are in the name of the Plaintiff, she holds the legal title as a bare trustee for the Defendant. Thus having provided the purchase money and constructed the building through his own resources, the Plaintiff merely held the legal title of the estate House No.15, 13th Street, New Achimota formerly numbered as No.205 but now No.5 while the Defendant is the beneficial owner of the said property”.
(2) The Learned Trial Judge further ordered the Lands Commission to set aside the Land Certificate obtained by the Plaintiff/ Appellant in respect of the estate House on Plot No.15, 13th Street, New Achimota formerly numbered as No.205 but now known as No.5. It further ordered that the Plaintiff/ Appellant her agents, servants, assigns, workmen, grantees, privies or whosoever be perpetually restrained from entering onto any portion of or interfering in any way whatsoever with the property in dispute. The Learned Trial Judge also ordered all documents pertaining to the property in dispute to be conveyed to the Defendant by the Plaintiff and directed the State Housing Company to amend its records to reflect the name of the Defendant. The Trial Judge awarded costs of Gh₡5000 in favour of the Defendant.
(3) It is from this judgment and the respective orders made by the Trial Court that the Plaintiff/Appellant (hereinafter referred to as ‘the Appellant’) has appealed to this court by notice filed on the 11th day of August 2017 in which the following grounds of appeal have been set out as follows:-
(i) That the judgment is against the weight of the evidence.
(ii) That a substantial miscarriage of justice was occasioned when the Trial Court gave judgment in favour of the Defendant who from the evidence did not even know how the Plaintiff acquired from the State Housing Corporation the land on which the house in dispute was built.
(iii) That the Honourable Judge having found that all the documents covering the acquisition of the house in dispute are in the name of the Plaintiff erred in giving judgment in favour of the Defendant.
Iv) That the Honourable Judge erred on the means used in determining resulting trust and title in the dispute in favour of the Defendant.
(v) A substantial miscarriage of justice was occasioned when the Honourable Trial Judge failed to evaluate Exhibit ‘H’ tendered by Plaintiff in which the Defendant had tacitly acknowledged that the house in dispute belongs to Plaintiff.
(vi)The Honourable Court failed to appreciate that the previous divorce proceedings did not actually consider the issue of property settlement as provided for the provision for ancillary relief under Order 65 Rules 23, 24, 25 and 26 due to the hasty manner in which the divorce proceedings were conducted without evidence being taken otherwise all the Nineteen (19) houses and other property acquired by the Defendants as contained in his draft will and those acquired by the Plaintiff during the pendency of the marriage would have been considered together with the house in dispute in the present case.
(vii)That the Honourable Court Judge erred in law by holding that the Plaintiff is estopped by her conduct, thus leading to a substantial miscarriage of justice.
(4) An examination of the Appellant’s grounds of appeal as set out reveal a dissatisfaction with the Trial Judge’s refusal of Appellant’s plea of advancement and acceptance of Respondent’s plea of resulting trust. The Learned Trial Judge’s finding which the Appellant seeks to assail is summed up at page 107 of the record thus:-
“For all these reasons, this court is of the opinion that the Plaintiff has not been able to establish her case. The presumption of advancement which operated in her favour has not been established by her as she has failed to demonstrate from her evidence that the Defendant intended the property as a gift to her. In that vein the presumption of resulting trust has not been rebutted by her. As noted in the book Ghana Land Law and Conveyancing 2nd Edition by B.J Da Rocha and CHK Lodoh at page 155, “the presumption of resulting trust or advancement is raised only where there is no evidence to contradict it”. Thus in the absence of any evidence to the contrary to rebut the presumption of resulting trust pleaded by the Defendant the Defendant’s plea stands.
(5) In addressing our minds to the issues that have emerged for consideration, a cardinal line which permeate the posture of the Appellant’s appeal in its entirety is her dissatisfaction with the Learned Trial Judge’s finding on the requisite proof expected of the parties to discharge the burden on the plea of advancement and resulting trust. The duty of this court as an Appellate forum requires that a determination be made of the Appellant’s complaint by way of rehearing and situating the law to the evidence adduced by the parties. This will involve a determination whether or not the parties at the Trial Court had discharged their respective burdens of proof and of persuasion.
(6) THE FACTS BEFORE THE TRIAL COURT:
On or about the year 1970 the parties were married under customary law and converted same into an ordinance marriage under the Marriages Act Cap 127 in the year 1989. In the year 2012, an order for the dissolution of the marriage was entered by the Circuit Court. The Respondent during the marriage moved from the matrimonial home situate at 12 Hibiscus Road Teshie-Nungua Estate which was later settled for the Appellant by the Circuit Court, Accra pursuant to the dissolution of the marriage. The Respondent lived in the house described as No.15, 13th Street New Achimota formerly numbered No.205 and now known as No.5. The Respondent claims the house as his self-acquired property which he had used the maiden named of the Appellant in acquiring the land and putting a structure thereon.
(7) By her writ filed on the 27th day of June, 2016 Appellant (Plaintiff) sought from the High Court (Land Division Accra) the following reliefs:-
1) A declaration of title to the Estate House on Plot No.15, 13th Street New Achimota formerly numbered No.295 but now No.5.
2) An order for recovery of possession.
3) Perpetual injunction restraining the Defendant from laying claim to title or having anything to do with the said house.
(8) Respondent herein (Defendant in the Trial Court) denied the claim of the Appellant per a Statement of Defence in which he set up a counterclaim as follows:-
a) Declaration that having provided the purchase money and constructed the building through his personal resources the Plaintiff merely held the legal title whilst the resulting trust vests in the Defendant.
b) An order to set aside the Land Certificate obtained by the Plaintiff in respect of the New Achimota Property No.5, 13th Street.
c) Perpetual injunction restraining by herself, her agents, servants, assignees, workmen, grantees, privies or by whosoever claiming through her from entering into any portion of and from interfering in any way whatsoever with the Defendant house at New Achimota.
(9) At the close of pleadings, the following issues were set down for determination by the Trial
1) Whether or not the Plaintiff originally applied to the State Housing Corporation and paid deposits to be allotted one of the Estates House of the Corporation under construction at New Achimota Estate.
2) Whether or not the State Housing Corporation allowed the Plaintiff to build the house herself as a result of delay in constructing the house by the State Housing Corporation.
3) Whether or not all the documents on the acquisition of the property including permits building drawings are legitimate in the maiden name of the Plaintiff Nana Esi Brakwah.
4) Whether or no House No.5, 13th Street New Achimota is owned by the Plaintiff or by the Defendant.
5) Whether or not the Defendant is a bare licensee in the house in dispute.
6) Whether or not the Defendant is entitled to the plea of resulting trust in his favour.
7) Whether or not Plaintiff is entitled to her claim.
8) Whether or not the Defendant is entitled to his counter claim.
9) Any other issues arising out of the pleadings.
(10) PLAINTIFF’S CASE.
The Appellant lays claim to House No.5 New Achimota by the endorsements on the Writ of Summons and Statement of claim. The Appellant prosecuted her claim per her pleadings and witness statement. In her testimony she relied on a copy of the divorce certificate and terms of settlement by mutual consent tendered as Exhibits ‘1’ and ‘2’.
(11) According to the Appellant, the Respondent built Nineteen (19) houses and acquired several motor vehicles and properties. She asserted that the properties were captured in a draft will prepared and signed to by Respondent but carelessly left in their room. It was tendered as Exhibit ‘A’. According to the Appellant, she applied for an estate house from the State Housing Corporation (SHC) at New Achimota in 1977 in her maiden name Nana Esi Brakwa. The Appellant asserted that she was also known Justina Nana Esi Brakwa or Justina Adufu or Nana Esi Brakwa and Justina Mensah.
(12) The Appellant asserted further that in the year 2001 the Respondent moved from their matrimonial home settled on her after the divorce House No.12 Hibiscus Street Teshie-Nungua to the property built on Plot No.15, 13th Street Achimota on which she admitted in evidence that the Respondent undertook further developments in terms of rooms and additional structures covering an area of 0.28 acres and measuring about 100 feet from one side, 100 feet on another side, 125 feet and 120 feet more or less on the other side.
(13) The Appellant claims ownership of the said house and that she received approval from the State Housing Corporation dated 25th May 1989 tendered in evidence as Exhibit ‘B’. The Appellant testified that during the hearing of the petition before the Circuit Court Accra in Suit No.C5/440/2012 between the parties, per paragraphs 6 and 9 of his affidavit in opposition, had Respondent acknowledged that House No.205, 13th Street New Achimota belonged to Appellant and sought a transfer from Appellant in reciprocity of Respondent transferring the Teshie-Nunuga Hibiscus Road premises to the Appellant. The affidavit is tendered as Exhibit ‘H’.
(14) The Appellant denied that the Respondent only acquired the property in her name without more. The Appellant further testified that the Respondent’s plea of resulting trust was baseless and without merit. She admitted that at the time she acquired the land title certificate Exhibit ‘G’ on 5th day of October 2007, she was married to the Respondent who feigned ignorance of same. She asserted that she applied for the Achimota Estate House in the year 1977 and made deposits in 1977, 1979. She further testified that she worked in the Ghana Commercial Bank before resigning and acquired a property from the State Housing Corporation situate at Dansoman.
(15) The Appellant testified further that the State Housing Corporation acknowledged payments she had made via Exhibit ‘B’ in 1989. The Appellant denied that it was the Respondent who suggested to the use of her maiden name of Esi Brakwa in the acquisition of the New Achimota House. The Appellant argued that if the Respondent acquired the Achimota house he would have used his name for documentation. She admitted that the Respondent gave out the Achmiota house to his fiend Kofi Boakye after completion to live in. She however testified that it was with her consent and was during the construction stage. She admitted that the Respondent had been living in the Achimota House since 2001 whilst she obtained the land certificate in 2007 while the Respondent was in the occupation. During the same period, the Teshie-Nungua Hibiscus Road House was settled in her favour and had a building put up for her in her home town though she claimed to have contributed the building same.
(16) According to the Appellant, sometime thereafter the dissolution of the marriage in 2012 when she requested the Respondent to vacate the Achimota property the Respondent refused. The Appellant argued that the Respondent put up such stance as a result of the order by the court for the Respondent to transfer to her the matrimonial home at Hibiscus Road Teshie-Nungua. She argued that she did not request for a share in the numerous properties acquired by the Respondent during the marriage except the matrimonial home which the court granted to her. Contrary to her testimony, she denied that the Respondent became fabulously rich, she testified that the Respondent’s business only flourished and that description of the Respondent’s wealth was per her counsel’s own choice of words.
(17) RESPONDENT’S CASE IN THE TRIAL COURT:
The Respondent relied on his testimony contained in his witness statement and called two witnesses DW1 and DW2. The Respondent testified that he was in business for ten (10) years before marrying the Appellant whom he took to live in his house H/No.12 Hibiscus Road Teshie-Nungua Estates. At the time of his marriage to the Appellant, the Respondent asserted that he was a person of substantial means who owned property and choice vehicles. That he married the Appellant under customary law in 1970 and converted same into an ordinance marriage in 1989 after divorcing two previous wives. The Respondent asserted that he ran a company called Simms Electricals Limited which owned most of the properties save two houses registered in his name. He testified that after acquiring a State Housing Estate house for the Appellant at Dansoman by paying the deposit and thereafter the balance and registering the house in the name of the Respondent, his brother lawyer Annor Barnieh drew his attention to a piece of SHC land situate at Achimota for sale to the public. The Respondent asserted further that since he had another house i.e. the Hibiscus Road House at Teshie Nungua Estate from the State Housing Corporation, he decided to acquire the Achimota house using the maiden name of the Respondent.
(18) The Respondent testified that he provided the purchase money and kept the receipts until 2011 when they got missing mysteriously. He then employed a contractor Mr. Awuah for the construction of the Achimota House and denied the Appellant’s claim of having any hand in the acquisition and construction of the Achimota house. The Respondent testified that he allowed his friend Kofi Boakye to live in the house until Appellant became wayward and commenced staying out of the house for longer period culminating in pregnancy and birth of a child for whom medical examination revealed he, the Respondent was not the father. According to the Respondent, in order to avoid open confrontation with the Appellant, he is left her to stay in the Achimota house.
(19) The Respondent challenged Appellant’s acquisition of a land certificate in respect of the disputed property alleging that it was fraudulently by procured having failed to disclose to the Land Title Registry that she was not the owner of the property and never had possessory rights over same at the time she applied for the land certificate. The Respondent testified that Exhibit ‘B’, ‘C’, ‘D’, ‘E’, and ‘F’ only show that though he paid the purchase price of the disputed property, the documents were made in the name of the Appellant.
(20) The Respondent disassociated himself from Exhibit ‘H’ an affidavit in opposition filed before the Circuit Court wherein he seemingly volunteered to hand over the Achimota property to the Appellant since no orders to that effect were made by the court and same was based on a misconception. He asserted further that the Achimota house was merely put in the name of the Appellant but he is the true owner of the property relying on the doctrine of a “resulting trust”.
(21) JUDGMENT OF THE TRIAL COURT
At the end of the trial, the Trial Judge posed the following questions which answers the court relied upon in determining the dispute.
(i)The Trial Court posited that: In arriving at a decision as to the ownership of the house, the main issue can be restated thus, “whether the Defendant intended an advancement to the Plaintiff in the construction of the house or whether the Defendant can avail himself of the plea of resulting trust”.
(ii) “It is clear that both equitable presumptions are applicable in this matter and the question then rises as to which of the parties, on the preponderance of the probabilities has been able to establish by his evidence that his or her presumption should hold sway as against the other”.
(iii)The entirety of the Plaintiff’s claim of ownership of the house in dispute has been based solely on the documents that are in her name and the law leans favourably in her favour in that regard. Legal title to property may be sufficient especially where no adverse claim is made against the title. However where an adverse claim is made against title then other considerations do come into play for the legal title alone may not be sufficient especially in situation where the other party pleads certain equitable presumptions such as resulting trust. Then it becomes an issue of priority”.
(iv) Indeed if the Defendant’s case is to be believed, he has lived in the house in dispute for sixteen (16) years now without any challenge or adverse claim by the Plaintiff who even during the divorce proceedings between she (her) and the Defendant in 2012 did not lay claim to the house in dispute”.
(iv) “She was unable to proof exactly how she financed the construction of the building if indeed she built it herself albeit with, as she stated in her evidence, some financial assistance from the Defendant”.
(v) I must point out that the Plaintiff tendered Exhibit ‘A’ a draft will of the Defendant which was drafted in 1994 and in which the Defendant had gifted the property in dispute to the Plaintiff. If indeed the property belonged to her why would the Defendant in the draft will have had to gift it to her? This means that she only held legal title to the property, in trust for the Defendant”.
(22) FINDINGS OF THE TRIAL COURT
The Trial Court made the following findings from the evidence:
(i) “For all these reasons this court is of the opinion that the Plaintiff has not been able to establish her case. The presumption of advancement which operated in her favour has not been established by her as she has failed to demonstrate from her evidence that the Defendant intended the property as a gift to her. Thus in the absence of any evidence to the contrary, to rebut the presumption of resulting trust pleaded by the Defendant, the Defendant’s plea stands”.
(ii)The Court finds that the property in dispute located at New Achimota was constructed by funds made available by the Defendant and even though the legal documents are in the name of the Plaintiff, she holds the legal title as a bare trustee for the Defendant’.
(23) It is from these findings and the orders which gave effect to them in the judgment that the Appellant has appealed to this court on grounds already set out. From an examination of all the grounds of appeal, it is obvious that the Appellant seeks to impeach the Trial Court’s judgment on an allegation of lack of proper perception or evaluation of the evidence adduced at the trial. To that extent grounds (ii) to (v) can be conveniently subsumed and dealt with under the omnibus ground of appeal in that the judgment is against the weight of evidence. However ground (iv) appears to be a ground alleging error of law and even though no particulars have been set out as required by the rules of court, the particulars thereof can be deemed to be embedded in the manner in which the ground has been formulated. Ground (vii) is however a ground of error of law to which particulars ought to have been provided in compliance with Rule 8(4) of C.I.19. Not having provided the particulars thereof, it is inadmissible and unarguable. It is accordingly struck out ZABRAMA VS. SEGBEDZI  2 GLR 221 and DAHABIEH VS. S.A. TURQUI & ORS. [2001-2002] SC GLR 498 applied.
(24) The result is that all the submissions made by the parties in this appeal will be considered on the basis of a determination of the question of evidence as if only one ground of appeal has been set out and addressed. There are numerous authorities which provide for the attitude of the Appellate Court whenever an Appellant alleges that a judgment against him is against the weight of the evidence adduced at the trial. Some of these decisions are CONTINENTAL PLASTICS ENGINEERING CO LTD. VS. IMC INDUSTRIES TECHNIC GMB SC GLR 298 PER GEORGINA WOOD C.J @ PAGES 307-308 AND GEORGIA HOTEL LIMITED VS. SILVER STAR AUTO LIMITED  2 SC GLR 1277 @ PAGE 1284 all of which emphasize the position that an appeal is by way of rehearing especially where the Appellant invokes the omnibus ground of appeal that a judgment is against the weight of evidence.
(25) In determining the ground, the Appellate Court is enjoined to determine the following:
(i)Whether the findings of the Trial Court are so perverse and cannot be reasonable sustained by the prevalence of evidence adduced on record.
(ii)Whether or not the inferences drawn are from well set out and verifiable facts which places this court in the same position as the court of first instance to warrant the drawing of more probable conclusions than those arrived at by the Trial Court.
(iii)Whether the Learned Trial Judge applied wrong principles of law to the evidence adduced.
(26) In determining the issue as to whether the judgment entered by the Learned Trial Judge is against the weight of evidence, we will analyze the findings and ascertain whether the findings are supported by the evidence adduced before the Court below. In the judgment on appeal, the Learned Trial Judge made the following findings:
(a) “For these reasons this court is of the opinion that the Plaintiff has not been able to establish her case. The presumption of advancement which operated in her favour has not been established by her as she has failed to demonstrate from her evidence that the Defendant intended the property as a gift to her” (page 102 of the record).
(b)The Plaintiff did in her witness statement admit receiving financial assistance from the Defendant, her husband in the course of building the house. This is what she claims as by way of advancement. There is however no clear indication by the Plaintiff as to the exact extent to which the Defendant assisted her financially in the construction of the building, but this is not fatal to the Plaintiff as the presumption is that a transfer by a husband to a wife is intended as gift”.
(c)“Thus in the absence of any evidence to the contrary, to rebut the presumption of resulting trust pleaded by the Defendant the Defendant plea stands”.
(d) The court finds that the property in dispute located at New Achimota was constructed by funds made available by the Defendant and even though the legal documents are in the name of the Plaintiff, she holds the legal, title as a bare trustee for the Defendant”.
(27) The Learned Trial Judge found as a fact that the Appellant had failed to establish by way of evidence that the presumption of advancement which operated in her favour could be sustained to the extent that the Respondent intended the property as a gift to Appellant. The Appellant put up the case that payments or financial resources made available to the contractor for the construction of the New Achimota House was in support of Appellant’s acquisition and ownership of the property. At page 53 of the record and by way of cross examination of Respondent’s witness DW1 JOHN BAFFOUR AWUAH the Appellant sought to make her case of advancement to the extent that whatever monies were made available for the construction of the property was only in support of the wife thus: “I put it to you that Simms Kofi Mensah only helped his wife to build a house and he is not the owner”.
(28) Further at page 56 of the record the Appellant further supported that stance by way of the cross-examination of DW2 ROBIN AKATEY thus: “I suggest to you that Mr. Simms Kofi Mensah was a husband who was helping his beloved wife to build a house”. The Appellant also testified per paragraphs 18 and 19 of the witness statement thus: “18. When the building was being constructed, my husband gave me financial assistance by way of advancement”.
“19. To all intents and purposes the conduct of my husband evinced willingness to help his wife to develop her property. These was in the good and happy day of our marriage”.
(29) We find the application of the law as expressed by the Learned Trial Judge to be correct as monies advanced to wives are presumed to be gifts until same is rebutted. In the case of USSHER & ORS. VS. DARKO  1 GLR 476 cited on by the Trial Judge, it was held that the equitable presumption of resulting trust was rebuttable just as the equitable presumption of advancement. The Learned Authors of Ghana Law and Conveyancing 2nd Edition B.J Da Rocha and CHK Lodoh stated on the presumption of advancement as applying as follows:- “presumption of advancement applies to all cases in which the person providing the purchase money has an equitable obligation to support or make provision for the person to whom the property is conveyed”.
(30) This includes man and his wife as in the instant case. The Respondent could thus be presumed to have intended any such contributions as a gift to the Appellant. At all material times, this presumption is not absolute. It is rebuttable. In the “Law of Trusts “ J.G Riddal Butterworth’s  at page 122 the learned author commented on the presumption of advancement as follows:-“We have said that where ‘A’ is regarded by equity as being under an obligation to provide for ‘B’ (where ‘A’ is the father of ‘B’) there is a presumption of a gift to ‘B’. The legal name for the presumption is a “presumption of advancement”. The word advancement might seem to imply that there was a requirement that ‘B’ should, by the purchase or transfer, in some way be advanced in life (the meaning attached to the word in the term “power of advancement” The word advancement carries no such meaning here and the nature of the presumption is better indicated, it is submitted, by the term “presumption of gift”.
(31) Under Section 19 of the Evidence Act (NRCD 323) it is provided that: “an enactment providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption”. It is trite in our jurisprudence that he who asserts must proof. In RE: ASHALLEY BOTWE LANDS ADJETEY AGBOSU AND ORS. VS. KOTEY & ORS. [2003-2004] SC GLR 421 at page 444 the Supreme Court held that: “it is trite learning that by the statutory provision of the Evidence Decree (Act) 1975 (NRCD 323) the burden of producing evidence in any giving case is not fixed, but shifts from party to party at various stages of the trial depending on the issues asserted and/or denied”. Further the law is that a party seeking declaration of title has to discharge the burden of proof and persuasion to prove conclusively that, on a balance of probabilities the essentials of their root of title and method of acquiring title to the area in dispute is supported by relevant evidence. See the case of AGO SAI & ORS. VS. KPOBI TETTEH TSURU III  SC GLR 762 at 779.
(32) In the instant case, for the Appellant to have the presumption of advancement established in her favour it was expected of her to lead evidence in support of the claim of advancement and the intention of the Respondent directly or implied as having gifted the New Achimota property to her. Section 20 of the Evidence Act 1975 (NRCD 323) which supports this requirement provides as follows:- “a rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact” while Section 21(a) provides that: a “rebuttable presumption requires the tribunal of fact to assume the existence of the presumed fact unless and until the party against whom the presumption operates proves that the non-existence of the presumed fact is more probable than its existence”.
(33) From the evidence proffered before the Trial Court, the property was constructed by DW1 Mr. Awuah who testified to have received all financial resources for the putting up of the property from the Respondent. This testimony crucial to the determination of the facts in issue was corroborated by DW2 and was not discredited by the Appellant in cross-examination.
The Appellant failed to challenge the defence witness nor assert that the intention of the Respondent was to gift the property or the funds to her. This comes at a crucial point in the case of the Appellant whose case is that she acquired the property from the State Housing corporation and had been making payments since 1977 and given a right of entry into the land in 1989. The payments made prior to 1989 are not indicated in the letter Exhibit ‘C’.
(34) Apart from indicating that the site plan bore her name, the Appellant was unable to indicate how much was put in the construction and how she went about same as well as the names of her workers. Her case runs contrary to that of the Respondent who claimed to have acquired the land through the involvement of his brother lawyer Barnieh and made bulk payment but chose to use the maiden name of the Appellant Esi to process the acquisition so as to avoid accusations from family. The Appellant however held on her case in that documents covering the property were in her name. These included an application for an Estate House Exhibit ‘B’ a letter from SHC offering the land at New Achimota to the Plaintiff Exhibit ‘C’, Exhibit ‘D’ Certificate of right of entry, building Permit, Exhibit ‘E’ and Land Title Certificate Exhibit ‘G’. The letter offering the land to the Appellant Exhibit ‘C’ is dated 1989. This date follows the claim by the Respondent that his brother worked with the SHC from 1985 onwards. Consequently, an application in the name of the Appellant by the Respondent would not be out of the place. The Appellant acquired the Land Title Certificate at a time when the Respondent was in possession and was residing in the property. The Respondent lived in the property for sixteen (16) years before the Appellant sought to raise issues with his occupation of the property.
(35) The Learned Trial Judge thus rightfully found that the Appellant failed to demonstrate her means which would have enabled her put up the property. By her own admission she worked for fourteen (14) years and resigned from the employment of Ghana Commercial Bank. The Appellant claimed to have operated a tipper truck business but failed to put forth any evidence of earnings in that regard. The Learned Trial Judge’s finding that the Appellant had failed to demonstrate by way of evidence that Defendant intended the property as a gift to Plaintiff is well founded. The Appellant initially put up the case of having personally applied for and obtained the SHC land situate at New Achimota. She tendered various Exhibits in support. The issue of support received from the Respondent was raised in her testimony per paragraphs 18 and 19 of her witness statement that the Respondent gave her financial assistance by way of advancement in the construction of the property and that the Respondent evinced a willingness to help her develop the property.
(36) The Learned Trial Judge observed that, the Appellant failed to demonstrate how much financial support the Respondent contributed in support of the construction and same is well grounded. There is no demonstration of Respondent’s intention to provide monies to Appellant in the acquisition of the Plot from SHC. The Appellant claimed to have made part payments from 1977 and 1979. No receipts were tendered to support these claims. A letter issued by the state Housing Corporation SHC in 1989 acknowledged some payments but not hen same was paid. The SHC was also not called to testify in support of the case of the Appellant considering the claim of those payments made. We find the same situation in the construction of the property. The Appellant could not indicate how much was spent in putting up the structure neither could the Appellant indicate her appointment of the contractor and workmen.
(37) The Respondent on the other hand claimed to have acquired the property using the maiden name of Appellant. The documents in respect of the acquisition got missing mysteriously. The contractor who built the property testified that the Respondent gave him the financial wherewithal to put up the house. The Respondent after completion allowed a friend to stay in the house and thereafter relocated to live in the property for sixteen (16) years without challenge from the Appellant. During the divorce proceedings between the parties before the Circuit Court, the New Achimota property was not claimed by the Appellant. The Respondent has indicated how the property was developed while the Appellant had failed to discharged her duty on same.
We are aware that Section 35 of Evidence Act 1975 (NRCD 323) provides under rebuttable presumptions that: “the owner of the legal title to property is presumed to be the owner of the full beneficial title”.
In the case of WOOD (Substituted by) ASANTE KORANTENG VS. TAMAKLOE & DERBAN [2007-2008]2 SC GLR 852 @ 858 the Supreme Court held on the provision of the Section as follows:-
(38) Accordingly the provisions of Section 35 of the Evidence Decree 1975 (NRCD 323) (hereinafter referred to as “the Decree) comes into play “the section provides that: “the owner of the legal title to property is presumed to be the owner of the full beneficial title. Admittedly under the terms of part of the Decree, this is a rebuttable presumption. However pursuant to Section 20 of the Decree, the effect is that “a rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence on the burden of persuasion as to the non-existence of the presumed fact”.
The Act goes further in Section 21 to specify the procedure for supplying this presumption where as in this case, it is proof by a preponderance of the probabilities is required.
(39) In the instant case, we find that the Respondent has successfully dislodged the presumption. We hold the finding of the Learned Trial Judge on the issue of the Appellant holding of the title to the property as sound in law. In the same way, we accept the Trial Court’s finding that the Appellant held same in trust for the Respondent who only used her maiden name in acquisition of the property. We find that the Respondent has been able to prove the nonexistent of the presumed fact that all financial contributions towards the acquisition and construction of the property is intended as a gift to the Appellant.
(40) RESULTING TRUST
At the Trial Court, the Respondent raised the plea of resulting trust and his counterclaim sought a declaration that: “having provided the purchase money and constructed the building through his personal resources, the Plaintiff merely held the legal title whilst the resulting trust is vested in the Defendant”. The Appellant seeks to assail the judgment of the Trial Court on these findings. In her written submissions, the Appellant contended that the Respondent failed to proof resulting trust in that he is the owner of the house with the Appellant holding it in trust for him. She argued that the Respondent failed to discharge the burden placed on him to proof same. She argued that all the documents bore her name thus making her the legal and beneficial owner and that the Respondent did not know how she acquired the property. The Appellant claimed therefore that it was wrong for the Learned Trial Judge to shift the burden of disproving resulting trust on the Appellant.
(41) The Doctrine of resulting trust, (meaning to jump back) is said to be the creation of an implied trust by the operation of the law where a person receives the benefit of transfer of a property without paying anything for same and is implied to have held the property for the benefit of the other person. The Learned Trial Judge made the following findings thus: “in the absence of any evidence to the contrary, to rebut the presumption of resulting trust pleaded by the Defendant, the Defendant’s plea stands. The court finds that the property in dispute located at New Achimota was constructed by funds made available by the Defendant and even though the legal documents are in the name of the Plaintiff, she holds the legal title as a bare trustee for the Defendant”.
(42) We have considered the entire case and complaint of the Appellant with respect of the above finding and hold that the true position of the law is provided by the learned author J.G Riddall in the Law of Trust supra who wrote at page 115 of his book thus:- “that in all these examples of purchase in the name of another, the starting point is that equity presumes that it was the intention of the person (or persons) who provided the purchase money, that the person (or persons to whom the legal title is conveyed should hold it in trust, for him (or them). But this is only a presumption and so like any other presumption it can be rebutted”. This is the effect of Section 20 of the Evidence Act 1975 (NRCD 323).
Where therefore, it is from a man to a woman it is presumed that such transfer is a gift subject to what follows later. It is submitted that where ‘A’ acquired property in the name of ‘B’ and has a special relationship like that of a husband and wife and father and daughter, ‘B’ will hold the property absolutely unless ‘A’ can rebut the presumption of gift. The evidence to be adduced in support and what the court must seek is what has been the intention of ‘A’ in having the property transferred to ‘B’, whether same is accompanied by any declarations to the extent that ‘B’ holds in trust or takes beneficially. In looking at the intention of ‘A’, the court is enjoined to look at the intention of the one who provided the purchase money, circumstances of the transaction (whether he retained the title deeds or had passed them on to ‘B’. The author cited the case of SHEPHARD VS. CARTWRIGHT  AC 431 at page 445 where Viscount Simonds relied on Snell’s “Principles of Equity 27th Edition, page 178 and stated the correct statement of the law thus:-
“The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction are admissible in evidence either for or against the party who did the act or made the declaration. Subsequent acts and declarations are only admissible as evidence against the party who made them and not in his favour”.
(43) In similar words in “Ghana Land Law and Conveyancing” the learned authors wrote at page 115 that: “the presumption of advancement may itself be rebutted by evidence that the person paying the money did not intend to forgo his beneficial interest as for example by his retaining the title deeds of the property or collecting rents or otherwise exercising control over the property”.
Contrary therefore, to the position of the Learned Trial Judge, the burden was on the Respondent to rebut the presumption of a gift. The finding of the Trial Judge that the burden was on the Appellant to discharge in respect of the plea of resulting trust is not the correct position of the law. Notwithstanding this error, the Respondent had testified that he retained all documentation in respect of the acquisition and construction of the property until it got missing mysteriously from his custody. In addition, the Respondent occupied the property for a period of sixteen (16) years unchallenged.
Before occupying the property the Respondent gave it out to a friend to live in and this evidence was not challenged by the Appellant who testified to have supported the grant of the license. The construction of the property was undertaken by the Respondent while DW1 and DW2 the contractor and head man testified and corroborated Respondent’s claim of exclusively putting up the building. The witnesses denied knowledge of the Appellant’s assertion of putting up the building or contributing to same. To all intents and purposes, the Respondent exercised control over the property. As the Trial Court correctly interrogated itself, “If as claimed by the Plaintiff she is the beneficial owner of the house in dispute, why did she during the divorce, claim said house? Why was the house not included as a part of the divorce settlement”. The parties per Exhibit ‘2’ agreed that “the 12 Hibiscus Road House and the house at Fetteh be given to Appellant by way of settlement. And settles all claims by the Appellant”.
(44) SUBMISSIONS ON EXHIBIT ‘H’
With respect to Exhibit ‘H’, the Appellant assails the judgment of the Trial Court on grounds of miscarriage of justice. She contends that the Trial Court failed to evaluate Exhibit ‘H’ by which she claimed the Respondent had acknowledged that the property in dispute belongs to the Appellant. We have examined Exhibit ‘H’ and same it titled “Affidavit In Opposition”. We find that the Motion paper for which the affidavit is deposed to in opposition is not tendered to assist this court verify the purport of that application and any subsequent orders made therefrom. This Court has not been provided with any orders made pursuant to the application even if same were moved. Paragraph 2 of the Exhibit ‘H’ reads as follows:-“I have been served with a court process entitled “Motion On Notice together with supporting affidavit and two exhibits”.
In the absence of further evidence, the affidavit in opposition presupposes that an application was being made for the Respondent to convey the disputed property to the Appellant. Paragraph 9 of the affidavit in opposition is reproduced thus: “In any case so long as the Applicant herein has failed to comply with the order to covey H/No.205 13th Street New Achimota to me in reciprocity of my also conveying the Hibiscus Road House to her, her hands are dirty and cannot apply for the order she is presently seeking”.
(45) We are not furnished with any orders of the Circuit Court apart from Exhibit ‘2’ the court notes at page 137 attesting to the settlement agreed to by the parties before the Circuit Court. The Trial Court was therefore not confronted with any orders for the Appellant to convey House No.25 New Achimota to the Respondent to verify the facts as set out in the affidavit. We find the Appellant’s difficulties with the affidavit in opposition Exhibit ‘H’ as self-induced. It is not disputed that the Trial Court did not dwell on the said Exhibit. However it is not in dispute that the relevant documents covering the property New Achimota House is in the name of the Appellant. In fact the Respondent’s case is that he caused the acquisition to be in the name of the Appellant.
(46) The Respondent has also raised plea of resulting trust. The legal title as it stands is in the name of the Appellant while Respondent claimed she held same in trust for. For the equitable presumption the Respondent relies upon be realized, the legal title held by the Appellant should be transferred to the Respondent. A prayer for an order for the New Achimota House to be conveyed to Defendant is therefore not misplaced. The Respondent is in possession of the house. The title documents are in Appellant’s name. Granted without admitting that the facts as set out in the affidavit in opposition should stand in the face of the Respondents rejection of same, a conveyance of the title deeds to the Respondent is not at variance with the position of the law as same is consistent with the claim that the Appellant held the legal interest in trust for the Respondent.
(47) PREVIOUS DIVORCE SETTLEMENT:
The Appellant further challenged the judgment of the Trial Court on the ground of the court failing to appreciate that the previous divorce proceedings did not actually consider the issue of property settlement as provided for in Order 65 Rules 23, 24 and 26 of C.I.47. We do not find any merit in this ground of appeal. As per Exhibit ‘2’, the Circuit Court endorsed the settlement agreed to by the parties. This included even arrears of electricity and property rates which Respondent was to pay. The parties were guided by their respective rights and agreed to the terms they deemed appropriate. The Appellant’s complaint is now otiose and not supported by the evidence. At the application for directions stage the issue of the divorce proceedings not considering property settlement was also not raised as an issue for determination though the Appellant had averred in her statement of claim that she did not make a claim for a share in the numerous properties acquired during the marriage except the matrimonial home No.12 Hibiscus Road Teshie-Nungua.
(48) ESTOPPEL BY CONDUCT
The Learned Trial Judge at page 106 of the record found as follows:- “however after the divorce settlement in 2012, the Defendant continued to reside in the property in dispute, not paying any rent of any sort to the Plaintiff if she was the owner of it and without her making any claim for the property and presumably paying all expenses such as utilities and property rates since there is no evidence that the Plaintiff has ever paid any such expenses the Plaintiff is estopped by her conduct from claiming the property in dispute even though the Defendant did not plead estoppel. As was held in NANA BEDIAKO ATSWERE VS. OSEI OWUSU  36 GMJ 157 SC failure to plead estoppel is not fatal if it causes no surprise”.
(49) The Appellant contends as a ground of appeal that the plea of estoppel by conduct is not available to the Respondent and that the finding by the court in that regard is erroneous. As stated in the NANA BEDIAKO ATWERE CASE (supra) failure to plead estoppel is not fatal where it causes no surprise to the adversary. It is provided in Section 20 of the Evidence Act provides 1975 (NRCD 323) as follows:- “Except as otherwise provided by law, including a rule of equity when a party has by his own statement, act of omission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thin shall be conclusively presumed against that party or his successor in interest in any proceedings between that party or his successor in interest and such relying person or his successors in interest”.
(50) The Learned Trial Judge found that even after the divorce, the Respondent continued to stay in the property. No demand for rent were made on him, no property rate nor utility payments were made by the Appellant. During the divorce settlement the ownership of the New Achimota House was not an issue. The Appellant did not act in any manner that could be construed to be within the ambit of seeking to exert ownership or control over the property. The question to pose is whether her conduct, omission or inaction could have caused the Respondent to believe in a certain state of affairs inconsistent with his ownership of the dispute property. The answer is emphatically in the negative.
(51) FINDINGS AND ORDERS.
We are guided by the time honoured practice of the law that a party who asserts must discharge the requisite burden of adducing evidence in support. IN ACKAH VS. PERGAH TRANSPORT  SC GLR 728 at 736 the Supreme Court held that: “it is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim fails……………”
(52) In EFISAH VS. ANSAH [2005-2006] SC GLR 943 at 959 the Supreme Court considered the grounds upon which findings of the Lower Court could be disturbed and held that: “it is well settled that specific findings of fact might properly be set aside to be wrong because the tribunal had taken into account matters which were irrelevant in law or had excluded matters which were relevant in law, or had excluded matters which were crucially necessary for consideration or had come to a conclusion which no court, instructing itself on the law, would have reached and where the findings were not inferences drawn from specific facts such finding might property be set aside”.
(53) It is noteworthy that some of the grounds of appeal filed give rise to issues of the law and their application to the facts and evidence put before the court. In the case of FABRINA LTD. VS. SHELL GAHAN LTD.  1 SC GLR 429 the court supported the position that points of law could be raised for the first time at any stage of the proceedings and among others where the legal issues raised are substantial and could be disposed of without the necessity of adducing fresh evidence.
(54) The finding by the Trial Court that the Appellant had failed as a party seeking declaration of title to properly discharge the requisite burden in respect of the plea of advancement is supported from the evidence adduced. In respect of the plea of resulting trust, the true position of the law is that a Defendant has the burden to discharge by rebutting the plea of advancement and the equitable presumption that the person in whose name the property is acquired or monies expended takes interest absolutely as intended. We have found that the Trial Court erred on this when it held that the Appellant has the burden to dispel the presumption of resulting trust. We however find that the Trial Court was right in terms of the Appellants failure to discharge the burden of proving advancement.
(55) The Appellant also alleged that the Trial Court erred in not finding for her since the Respondent from the evidence did not know how Appellant acquired the land on which the house was built. The question of the Respondent knowing how Appellant allegedly acquired the land is not even one of the issues set out for trial at the application for directions stage. We see this allegation as an afterthought which did not arise from the pleadings. In any case, the Respondent’s case was that he used the name of the Appellant in acquiring the property. The Appellant also claimed that any support provided by the Respondent was by way of advancement. The issues were mostly settled between the plea of resulting trust and advancement. The claim by the Appellant to have made payments since 1977 was not supported by any proof. The right of entry is dated 1989 at a time the Respondent asserted he had acquired the property in the maiden name of the Appellant.
(56) The Appellant has also questioned the finding by the Trial Court in favour of the Respondent when all documents bore the name of the Appellant. We find the position of the Trial Court to be correct and undeserving of disturbance. The presumption is that he that holds the legal title is the owner but same is a rebuttable presumption. The Trial Court found correctly in the absence of intention on the part of the Respondent to surrender the property to the Appellant absolutely. The Appellant could not challenge the contractor who put up the property neither DW2 the headman. The Appellant described the Respondent as a fabulously rich man but could not on her part demonstrate any means capable of sustaining such a building project.
(57) In our view Exhibit ‘H’ could not be employed by the Appellant to her advantage or could it be said to be material. The wording of the relevant paragraph of Exhibit ‘H’ did not amount to an admission that the property was owned by the Appellant. The Appellant has failed to appreciate the true and correct position of the law that while she has her name on the documents covering the property she would only be presumed to hold the legal title. In as much as the Trial Court found that Respondent held the equitable interest and did not gift the property to the Appellant, there was the need for the Appellant to reconvey the legal interest to the Respondent. The affidavit in opposition did not in itself raise any new issues which are unknown to the law and the parties.
(58) The parties contested the action per their pleadings and witness statements. The issues deemed and agreed to by the parties as issues for trial did not include the issue of the divorce Court not considering the application of Order 65 Rule 23, 24, 25 and 26 of C.I.47. Those provisions do not belong to this litigation. The petition was pronounced upon by the divorce court pursuant to a settlement brokered by the parties themselves. The provisions of the rules regulating divorce proceedings in the High Court (Civil Procedure) Rules C.I47 are matters to be addressed during the pendency of the petition and not after same has been concluded and effectually pronounced upon by the divorce court. The Appellant set up a case and reliefs she sought from the divorce court. The duty of a court is to pronounce on reliefs sought. The case of NYAMAH VS. AMPONSAH  SC GLR 361 at 362-366 is instructive. We find that the plea of advancement and resulting trust are not affected in any way by the arguments on this leg of the submission. The position of the law is that the court is enjoined to address relevant issues. Consequently, the finding by the Trial Court that the Appellant is estopped by conduct is sustained.
(59) In the result, this appeal wholly fails and it is accordingly dismissed. The judgment of the Trial Court is hereby affirmed.
I.O. TANKO AMADU
(Justice of Appeal)
I agree K.A. ACQUAYE
(Justice of Appeal)
I also agree B.F. ACKAH-YENSU
(Justice of Appeal)