ABBEY vs. SYKES [1994]DLCA5198

Date	1994-03-31
Suit No.	[1994 - 95] 2 G B R 743 – 757 C A
Citation No.	[1994]DLCA5198

LAMPTEY JA

ESSIEM JA

FORSTERJA

ERIC NARH FOR THE APPELLANT.

ODOI SYKES FOR THE RESPONDENT.

[1994]DLCA5198
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													<main id="main" class="content" style="min-height: 60rem" >ABBEY<o:p></o:p>vs.<o:p></o:p>SYKES<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;
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[1994 - 95] 2 G B R 743 – 757 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; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 31 MARCH 1994<o:p></o:p>

ODOI
SYKES 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">

LAMPTEY
JA, ESSIEM JA, FORSTERJA<o:p></o:p>

</div>LAMPTEY JA. <o:p></o:p>The
appellant Honestte Abbey (hereinafter called the “defendant”) customarily
married the respondent Elizabeth Sykes (hereinafter called the “plaintiff”)
sometime in 1960. The marriage ran into difficulties from time to time, until
sometime in 1987 when it virtually foundered on the rocks. I must say that
there had not been a formal customary divorce. What had happened was that the
defendant unilaterally packed virtually the bag and baggage of the plaintiff
and caused these to be sent to the family house of the plaintiff with a message
that she should not return to the matrimonial home. Sometime in 1991, the
plaintiff took action against the defendant and sought among other reliefs, the
following:<o:p></o:p>“(a) A declaration that the plaintiff
is the owner of house No B337/22, (B58C/22) North Kaneshie, Accra and the plot
of land on which it stands.<o:p></o:p>(b) Account of rents collected from
the said house from 1977 to the date of judgment.”<o:p></o:p>The
defendant resisted the claim on the ground that the plot of land and the
dwelling-house standing on it were his self-acquired properties. Needless to
state, the defendant disputed and challenged all the other claims made by the
plaintiff.<o:p></o:p>After
the case had been heard on the merits, the trial judge entered judgment for the
plaintiff and ordered the defendant to execute conveyance of the disputed plot
of land together with the dwelling-house to the plaintiff. The defendant was
further ordered to render account of all rents collected from the said house
from 1977 to date of judgment. The trial judge made other consequential orders
which I need not reproduce here since there is no appeal against these. The
defendant was aggrieved and dissatisfied with the decision of the trial court
and appealed to this court in the matters raised above touching upon the land
and house only.<o:p></o:p>The
first ground of appeal that was argued before us was formulated as follows:<o:p></o:p>“(c) The learned judge's finding on
the issue of equitable estoppel amounted to gross miscarriage of justice when
the matter was neither pleaded nor any evidence led thereon.”<o:p></o:p>I
must confess that the language employed to formulate the defendant's complaint
is inelegant. The defect was cured when learned counsel for defendant argued
that ground of appeal. He drew attention to the relief the plaintiff had
claimed under head (a) on the writ of summons. The claim, simply and clearly,
was for a declaration of title to both the plot of land and house No B337/22 in
the plaintiff.<o:p></o:p>He
argued that since the trial judge made a finding that the plaintiff had failed
to prove and establish the title she claimed her plain duty was to dismiss that
claim. He submitted that the trial judge erred in law, when she failed and
omitted to dismiss that head of claim. He invited us to dismiss that head of
claim.<o:p></o:p>Learned
counsel next attacked the trial judge’s consideration of the case presented by
the plaintiff to ascertain whether it raised the issue of proprietary estoppel.
He submitted that this issue was one that invoked the consideration of
principles and rules of equity. He submitted that the plaintiff had not by her
writ of summons sought any equitable relief. He submitted that the trial judge
erred in law in invoking, suo motu, principles and rules of equity to determine
what other relief the plaintiff was entitled to in respect of the disputed plot
of land and also of house No B337/22. He invited us to set aside the conclusion
and decision of the lower court based and founded on the principles and rules
of equity.<o:p></o:p>In
reply, learned counsel for the plaintiff was hard put in defending the approach
adopted and followed by the trial judge; in particular, the application of the
principles and rules of equity to the instant case. He stated that the claim
was for declaration of the legal title to the properties in dispute. Be that as
it may, he submitted that on the evidence of the plaintiff and her witnesses,
she proved and established her right and legal title to the plot of land in
dispute as well as to the dwelling-house on it. He referred to evidence which
was not disputed to show that the plaintiff in 1960 gave the defendant £70
(seventy pounds sterling) to enable him buy a plot of land for her. There was
evidence that pursuant to that transaction the defendant gave the site plan of
the plot in dispute, exhibit D, to the plaintiff to show that that plot
belonged to the plaintiff. He therefore invited us to set aside the finding of
fact made by the trial judge and to find the legal title proved by plaintiff.<o:p></o:p>The
submissions of learned counsel for the parties raised two issues for
consideration. The first issue deals with the burden of proof on the plaintiff
who had sought a declaration of title to the disputed land. The other issue is
whether or not the trial judge erred in law in, proprio motu, invoking and
applying the principle of equitable estoppel to the case before her.<o:p></o:p>I
will deal with the first issue. The burden of proof on the plaintiff who had
sought a declaration of title to land was laid down in Kponuglo v Kodadja
(1933) 1 WACA 24 and has been followed and applied in a long line of cases. In
Kodilinye v Odu (1935) 2 WACA 336, the principle was re-stated in the following
popular passage at holding (1):<o:p></o:p>“[In] an action for a declaration of
title to land by the plaintiff, the onus is on the plaintiff to satisfy the
court, on the strength of his own case that title to land is vested in him. The
onus is not discharged by merely relying </main>