OPPONG vs. OPPONG [1992]DLCA5051

Date	1992-06-03
Suit No.	[1992 – 1993] 4 G B R 1586 - 1591 C.A
Citation No.	[1992]DLCA5051

AMPIAH JA

ADJABENG JA

FORSTER JA

AMES AHENKORAH FOR THE APPELLANT.

AIDOO (WITH HIM AKPOKAVI) FOR THE RESPONDENT.

[1992]DLCA5051
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													<main id="main" class="content" style="min-height: 60rem" >OPPONG<o:p></o:p>vs.<o:p></o:p>OPPONG<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 4 G B R 1586 -&nbsp; 1591 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 3 JUNE 1992<o:p></o:p>

AIDOO
(WITH HIM AKPOKAVI) FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMPIAH
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>AMPIAH JA. <o:p></o:p>The
plaintiff and the defendant were married customarily in 1959. In 1973, they
converted their said marriage into an Ordinance marriage. Both are Ghanaians.
They lived in Accra. After the 1973 marriage, the plaintiff left for London
where he was joined in 1974 by the defendant. There were eight issues of the
marriage five of whom are still living. According to the plaintiff, in 1966 he
purchased in the name of the defendant, house No V49, C4 Tema, then a rental
unit from one Larbi. The plaintiff came down from London in 1980. In 1987, or
thereabouts, the defendant sought and obtained dissolution of their marriage in
London. She also obtained an order from the Edmonton County Court, transferring
their matrimonial house at 57 North Grove, Tottenham, London to her. She then
sought to eject the plaintiff from house No V49, C4 Tema, claiming that it
belonged to her. Wherefore the plaintiff claimed at the Circuit Court, Tema
for:<o:p></o:p>“(a) declaration that the plaintiff is
beneficial owner of house numbered V 49 C4 Tema;<o:p></o:p>(b) an order compelling defendant to
cause a transfer of the said house into the name of the plaintiff;<o:p></o:p>(c) an order of perpetual injunction
restraining defendant, her agents or servants etc. from in any way dealing with
the said house against plaintiff’s interest.”<o:p></o:p>As
stated before, the defendant denied the plaintiff’s claim and said the house
was acquired by her personally. On 21 December 1990, the learned trial judge
gave judgment for the plaintiff and restrained the defendant from in anyway
interfering with the property in dispute. The defendant has appealed against
this decision.<o:p></o:p>The
defendant originally claimed that “the judgment was against the weight of
evidence.” On 10 March 1992 however, she filed a further ground of appeal
alleging that “the manner in which the learned circuit judge handled the issue
of beneficial interest in the disputed house was so unsatisfactory that it
misled her to arrive at the wrong conclusion that the beneficial interest
belonged to the plaintiff instead of the defendant.” Many issues were set down
for trial but the real issues which arose on the pleadings and evidence for
determination, in my opinion, were:<o:p></o:p>1.
Who purchased the house in dispute? and<o:p></o:p>2.
Whether there was a presumption of advancement in favour of the defendant.<o:p></o:p>On
these issues the learned trial judge found in favour of the plaintiff. She
found that it was the plaintiff who purchased the house from Larbi, PW1, as a
rental unit and asked that it be registered in the name of his wife, the
defendant. Both the plaintiff and the defendant claimed to have bought the
interest of one PW1 in the property which then belonged to the Tema Development
Corporation (TDC). PW1 gave evidence in favour of the plaintiff. The
preponderance of the evidence on record supported the claim by the plaintiff.
Counsel for the defendant graciously conceded that the evidence weighed heavily
in favour of the plaintiff. I am satisfied with this finding.<o:p></o:p>The
defendant herself did not accept that there was any advancement to her of this
property. In fact she clung resolutely to her claim that she had purchased the
house herself. She did not plead any such advancement and she called no
witnesses in aid of such claim. She thus disabled herself from leading evidence
and taking advantage of the presumption of advancement.<o:p></o:p>The
legal position is that where a husband supplies the purchase money and the
conveyance is taken in the name of the wife, a presumption of advancement
arises. See Moate v Moate [1948] 2 All ER 486; and, if the conveyance is taken
in the name of both the husband and his wife, the wife is still entitled to a
half share. See Kindon v Bridges (1688) 2 Vern 67, Re Condrin [1914] IR 89.<o:p></o:p>Even
though the defendant did not plead an advancement to her of this house, the
plaintiff’s claim postulated a presumption of advancement which if not rebutted
would give the defendant legal title in the house. Fortunately, by the nature
of the defence, the only evidence which the judge could rely on for a rebuttal
of this presumption was contained in the evidence of the plaintiff. The
plaintiff’s evidence was that:<o:p></o:p>“House No V49 was bought by me when I
was working with the Black Star Line from one Lawrence Larbi. I bought this
house in 1967. I purchased the house in my wife’s name. There were a lot of
accidents in Black Star Line and we have been dying, drowning etc. So I thought
if I died this way my wife and children would suffer hence I transferred the
house into my wife’s name so that in case I die then the house belongs to my
children.”<o:p></o:p>He
testified further:<o:p></o:p>“I am an Ashanti. My ex-wife is a
Mosi. I thought that my children were Northerners and if I die like I said my
family might come and eject my children and wife from the house hence I did it
that way - put my wife’s name on the document. There were two rooms. I decided
to make extension in 1980 when I returned.”<o:p></o:p>The
evidence overwhelmingly shows, despite minor discrepancies, that at the time
this purchase was made the plainti</main>