Abbey v Sykes

LAMPTEY JA. The appellant Honestie 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:

“(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.

(b) Account of rents collected from the said house from 1977 to the date of judgment.”

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.

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.

The first ground of appeal that was argued before us was formulated as follows:

“(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.”

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 b