KYIAFI vs. WONO [1967]DLCA1513

Date	1967-07-03
Suit No.
Citation No.	[1967]DLCA1513

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

D. S. EFFAH FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1967]DLCA1513
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													<main id="main" class="content" style="min-height: 60rem" >KYIAFI <o:p></o:p>vs. <o:p></o:p>WONO <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 463<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">

DATE:
3 JULY 1967.<o:p></o:p>

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

D. S. EFFAH FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF 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 0in 0in">

OLLENNU, AZU CRABBE AND APALOO JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.A.<o:p></o:p>Ollennu
J.A. delivered the judgment of the court. The plaintiff, respondent to this
appeal (hereinafter called the plaintiff), and the defendant, the appellant
(hereinafter called the defendant), were married under customary law; their
marriage subsisted for about twenty years, and was dissolved in or about April
1961.<o:p></o:p><o:p>&nbsp;</o:p>It is the
plaintiff’s case that he made two farms during the period of the marriage, one
at a place called Ampontua-Kwayem, the other at Nkonsia. The plaintiff alleged
that he made a gift of the Ampontua-Kwayem farm to the defendant, and
partitioned the farm at Nkonsia, and permitted the defendant to occupy one
portion of it for her use, but never made a gift of it to her as he did in the
case of the Ampontua-Kwayem. That portion is the subject-matter of this appeal.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff alleged that upon the dissolution of the marriage he demanded the
return of the farm in the presence of the arbitrators who dissolved the
marriage, and that the defendant agreed to surrender it, whereupon, he said,
each of them paid the customary arbitration fee. The plaintiff says that
subsequently, the defendant refused to surrender the farm, hence the action.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant on the other hand contends that the farm in dispute is her
self-acquired property. She says she acquired it by cultivating the virgin
forest with employed labour, and without any assistance in any form from the
plaintiff, her husband. The issues joined upon these contradicting claims are:
(1) was the farm made by the plaintiff; and if it was (2) did the plaintiff make
a gift of it to the defendant? The first issue is a pure question of fact, the
second is mixed law and fact. Evidence was led by each party and his or her
witnesses in support of his or her claim. Upon the evidence before him, the
trial judge came to the following findings:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I have
come to the conclusion, and I find as a fact that the plaintiff’s version is
the correct one, that he acquired a large tract of land, cultivated it, and
gave a portion to the defendant during the subsistence of the marriage. It was
not a gift to the defendant.”<o:p></o:p><o:p>&nbsp;</o:p>Against
that judgment the defendant appealed to this court on two grounds namely:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) the
judgment is against the weight of evidence, and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) in
view of the plaintiff’s own case that when he gave the farm to the defendant it
was newly cultivated, and in view of the fact that the defendant had occupied
the farm for seventeen years, the learned judge of the High Court erred in
holding that ‘it is not contrary to justice, equity and good conscience that
the plaintiff should be entitled to revoke the grant to the defendant and
deprive her of this only source of income in her old age because the marriage
has been dissolved’.”<o:p></o:p><o:p>&nbsp;</o:p>On the
issue of fact, counsel submitted that the evidence led on behalf of the
defendant is more impressive and convincing than that for the plaintiff, and
that the admission by one witness for the plaintiff that the defendant has h</main>