BERCHIE-BADU vs. BERCHIE-BADU [1988]DLCA723

Date	1988-01-28
Suit No.
Citation No.	[1988]DLCA723

WUAKU J.S.C.

OSEI-HWERE JA

ESSIEM J.A.

QUANSAH FOR THE RESPONDENT-APPELLANT.

EDUSEI FOR THE PETITIONER-RESPONDENT

[1988]DLCA723
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													<main id="main" class="content" style="min-height: 60rem" >BERCHIE-BADU <o:p></o:p>vs. <o:p></o:p>BERCHIE-BADU <o:p></o:p>[COURT OF APPEAL ACCRA]<o:p></o:p>[1987-88] 2 GLR 260<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
28 JANUARY 1988<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">

QUANSAH FOR THE RESPONDENT-APPELLANT. <o:p></o:p>

EDUSEI FOR THE PETITIONER-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">

WUAKU J.S.C., OSEI-HWERE AND ESSIEM
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the first judgment at the invitation of Wuaku J.S.C. The parties
were married at Harringay Registry Office, London on 22 August 1970. They had
three issues between them. On 4 March 1983 the petitioner filed her petition
for divorce on the ground that the marriage had broken down irretrievably and
beyond reconciliation. One of the grounds (for the purpose of this appeal)
stated in her petition as contributing to the breakdown was that the respondent
had fraudulently changed the title to the land at Nzima-Atwima the petitioner
had purchased with her own money for the purpose of constructing a house.
Wherefore, paragraph 12 (d) of her petition prayed the court to decree:<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">“That a
transfer of the family’s own matrimonial house now under construction at
Nzima-Atwima be made to the petitioner on trust for the said three children of
the marriage; the said plot having been purchased earlier by the petitioner for
¢150 of her own money.”<o:p></o:p><o:p>&nbsp;</o:p>Whilst
the petition was pending before the High Court, Kumasi the petitioner brought
a’ motion to oust the respondent and some of his family members from the
matrimonial home. In her accompanying affidavit the petitioner now deposed that
she had used her own money and industry to construct the said matrimonial home.
In his affidavit in answer, the respondent denied the petitioner’s claim that
she put up the said matrimonial home and asserted, at the same time, that he
put up the house out of his own resources. The ownership of the matrimonial home
became a triable issue alongside the issue of the breakdown of the marriage.
The respondent cross-appealed for the dissolution of the marriage.<o:p></o:p><o:p>&nbsp;</o:p>In his
judgment the learned trial judge found that the parties could no longer live as
man and wife and he, accordingly, dissolved the marriage. In regard to the
three children of the marriage, the learned judge gave custody of the two boys
to the respondent and custody of the third and youngest child, a girl, to the
petitioner. He considered the matrimonial home as, the real bone of contention
in the proceedings before him. He found that the plot was in the name of the
petitioner but that the respondent had the building plans made out in his name.
As to how the building was financed the learned judge found that it was “from
the profits made in the largely illicit trade carried on by them between Kumasi
and London.” He finally declared that “Plot No 8 Block B, Nzima, near Kwadaso
and the dwelling-house thereon (meaning the matrimonial home) to be the
property of the petitioner:” He reasoned that the respondent knowingly expended
money on a house being erected oil land hearing his wife’s name and that he was
never left in any doubt that the wife regarded the house as being for her and
her children.<o:p></o:p><o:p>&nbsp;</o:p>On
maintenance, he ordered that the respondent pay to the petitioner the sum of
¢600 per month as maintenance for their youngest child. In addition he was to
pay her school fees and, if she should thereafter enter a boarding institution,
the fees were to be paid by the respondent and the monthly maintenance reduced
to ¢400 per month.<o:p></o:p>The order
was made on 27 February 1985. Aggrieved by the decision of the learned judge
granting title of house No 8, Block B, Nzima near Kwadaso, Kumasi, and the
dwelling-house thereon to the petitioner, the respondent brought this appeal
urging that:<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">“(a) the
trial judge failed to consider the case of the appellant and therefore arrived
at an erroneous decision; <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">(b) 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">