IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
MADAM ADWOA NKRUMAH -(Petitioner/Appellant)
SAMUEL AKWASI ESHUN - (Respondent/Respondent)
DATE: 15 TH OCTOBER, 2018
CIVIL APPEAL SUIT NO: H1/40/2017
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
SARFO GYAMFI FOR PETITIONER/APPELLANT
NO REPRESENTATIVE FOR RESPONDENT
This is a divorce proceeding filed by the petitioner appellant, hereinafter referred to as the appellant, for the dissolution of her marriage under customary law celebrated in 1952 with the respondent.
She alleged the said marriage to the respondent has broken down beyond reconciliation and that the respondent’s behaviour is so unreasonable that she cannot reasonably be expected to continue cohabiting with him.
She averred further that during the subsistence of the marriage the respondent was a womanizer, extremely violent and constantly assaulted her. That the respondent during the subsistence of the marriage committed adultery by keeping a mistress and begat three children with the said mistress who currently lives with the respondent at Asonomaso, Ashanti.
The petitioner averred further that she was a successful farmer and trader while the respondent was a driver. That during the subsistence of the marriage, they both pulled resources together and cultivated cocoa farms at a place called Nkyenkyenso near Nkawie, Ashanti and Sakora Wonoo near Dunkwa-on-offin. They also pulled resources together and built a house at Asonomaso Ashanti, House No. Plot 14 Block E. The petitioner averred that the respondent unilaterally sold this house at Asonomaso but the family prevailed on him to retrieve it for the petitioner which he did and transferred same into the sole name of the petitioner as the sole bonafide owner of same. They also pulled resources together to build another house at Tafo Nhyiaeso Kumasi Ashanti, House No. Plot 2 Block R. Tafo Nhyiaeso Kumasi.
The petitioner avers that for the past twenty years the respondent has kicked her out from their matrimonial home and rather brought his mistress to reside therewith. All attempts made by prominent chiefs and respondents family to sort out their difference has proven futile. That the respondent has behaved in such a way that she cannot reasonably be expected to live with him and that he has caused her so much pain, anxiety, ridicule distress and embarrassment wherefore she prayed for the said marriage to be dissolved.
She also prayed the court for the following; -
That the honourable court should declare title to the all that piece and parcel of House at Asonomaso Ashanti, House No. Plot 14 Block E Asonomaso Ashanti in favour of the petitioner.
That the honourable court should declare title to the cocoa farm at Nkenkeyemaso near Nkawie and same sharing boundaries with the properties of Opanin Kyerefufuo, Kwaku Badu and Opanin Kofi Anokye as a jointly acquired property as between the petitioner and the respondent.
That the honourable court should declare title to the Cocoa Farm at Dunkwa-on-Offin on Assin Kwasama Stool Lands and same sharing boundaries with the properties of Opanin Yaw John, Opanin Tetteh, Madam Yaa Amponsah, Maame Kwakyewaah and Opanin Kofi Christ as a jointly acquired property as between the petitioner and the respondent.
That the honourable court should declare title to the all that piece and parcel of house at Tafo Nhyiaeso Kumasi thus House No.Plot 2 Block R Tafo Nhyiaeso Kumasi as a jointly acquired property as between the petitioner and the respondent.
That the honourable court grant an order compelling the respondent to pay the total sum of 10,000 Ghana Cedis as “pushing off” fee.
That the honourable court to compel the respondent to account for the proceeds of the said Cocoa farms at both Nkyenkyemso near Nkawie and Dunkwa-on-Offin for the past 6 years
7. That the respondent be ordered to pay arrears for maintenance covering the last six years to the petitioner.
The respondent in his answer to the petition averred that he exclusively acquired all the properties listed in paragraph 23 of the petition and developed same with his own resources without the inclusion of the petitioner. That it was rather the petitioner who deserted the matrimonial home over twenty (20) years and has since not returned. Respondent aver that the mistress the petitioner complained about was married to him over 40 years ago to the knowledge of the petitioner.
The respondent avers further that the marriage to the petitioner has long been broken down beyond reconciliation and the court may dissolve same and that the petitioner is not entitled to her claim as she has no justification in law or equity to justifying the said claims.
The trial judge found that attempts to reconcile the parties have failed and it is clear both parties want the marriage dissolved. He also found that the said marriage had been customarily dissolved before this petition. In effect the trial judge declared the marriage dissolved as broken down beyond reconciliation.
The trial court held that the Asonomaso house was jointly acquired during the subsistence of the marriage by the parties. However, it became a solely acquired property of petitioner after she bought same back from one Fosu [page 98 ROA].
Concerning the Tafo Nhyiaeso house, the court found that from the evidence in court and from exhibit B, the land on which the Nyhiaeso house stands was jointly acquired property of the parties[page 99 ROA]. The Judge went on “the gift of the land to Abena Kuma, if true, would be clearly unlawful as being joint owner he Respondent alone could not make a gift of the plot of land to Abena Kuma. It would even seem the gift was made during the pendency of the suit and the purpose was clearly to throw dust into the eyes of the court” (SIC)[page 99 ROA].
About the house itself the court delivered itself thus: - “As the plot belonged to both petitioner and respondent and as the gift of the land by respondent to Abena Kuma was no gift as respondent gave Abena Kuma nothing, the house was built on land jointly owned by the parties. It was with the consent of respondent but not that of petitioner. That does not change anything once the plot was jointly owned by both parties”[page 100 ROA]
The trial court held that from the evidence before it the Nhyiaeso house was constructed by DW1. “But the house is the jointly acquired property of the parties once it was built on land which was marital property. I hereby give the house to the respondent”.[page 101 ROA]
The two cocoa farms at Nkawie Nkyenkyemso and Dunkwa-on-Offin, the trial court held that the two farms are jointly acquired properties of the parties – [page 101 ROA].
The court said since the Nkyenkyemso farm was jointly acquired by the parties, the respondent can no longer give it to the petitioner as “push-off”. The court therefore gave it to the petitioner. The court then gave the Dunkwa Cocoa farm to the respondent.
The courts finding as the requirement for accounts for the Dunkwa farm was that “Given his (respondent) claim that he alone owns the farms if he has kept the proceeds it should not be strange. However, looking at the advanced age of the respondent I shall decline to order such account. But I shall compensate petitioner in other ways”.[page 102 ROA]. The trial court awarded maintenance fee of Gh¢300 per month from day of petition to day of judgment totaling Gh¢12,600and lump sum alimony of Gh¢10,000. Costs of Gh¢5000 to petitioner.
The petitioner dissatisfied with parts of the judgment filed this appeal on the following grounds: -
The judgment against the weight of evidence.
Further grounds to be urged upon the receipt of record of proceedings.
That part of the judgment of the High Court in respect of title to House No. Plot 2 Block R Tafo Nhyiaeso declared solely in favour of the respondent be set aside and the appeal in respect of same allowed.
Ground 1: Judgment against the weight of evidence on record.
Counsel submits that with regard to the house in issue, the Nhyiaeso house, the court found that both PW1 and PW2 corroborated petitioner’s case. The judge went on “But the respondent’s case is that he acquired it before the marriage. Yet in evidence he said he purchased the plot of land and his second wife Abena Kuma’s son abroad put up the house on it for Abena Kuma. And so it belongs to Abena Kumah”. He went on “however, it would seem from the corroborating evidence of petitioner, PW1 and PW2 that the plot was acquired by the parties during the subsistence of the marriage. Thus it was jointly acquired property of the parties” (Emphasis mine).
The judge went on to say the gift of the land to Abena Kuma, if true, would be clearly unlawful because being joint owners he respondent alone could not make a gift of the plot of land to Abena Kuma. It would even seem the gift was made during the pendency of the suit and the purpose was clearly to throw dust into the eyes of the court.
Counsel submit further that the trial judge held that the plot on which the house was built belong to both petitioner and respondent and alleged gift to Abena Kumah by respondent was no gift. The house was built on land jointly owned by both parties.
Counsel quoted the trial judge thus: - “As against the petitioner and his witness’ bare words, I think the evidence of the respondent and DW1 is more convincing. I shall therefore find that it was DW1 who constructed the house. But the house is the jointly acquired property of the parties once it was built on the land which was marital property. I hereby give the house to the respondent”.
Counsel submit that this conclusion by the trial judge was palpably wrong in law. Counsel argued that the trial judge having concluded that the house was the jointly acquired property of the parties once it was built on land which was martial property cannot turn round and give a determination contrary to his own established facts.
Counsel argued further that there are a plethora of cases that led credence to the fact that property acquired during the subsistence of a marriage was presumed to be jointly owned property of the couple, irrespective of the contribution made by the couple. Counsel referred this court to the following cases: -
Stephen Mensah vrs Gladys Mensah  42 MLRG 82 SC
Patience Arthur vrs Moses Arthur  67 GMJ 110 SC Fynn vrs Fynn & Arthur  72 GMJ 43
Counsel prayed this court to reverse the trial court’s decision on the Tafo Nhyieaso house based on the evidence and the courts own conclusion on the ownership of the said house and declare same as a joint marital acquired property of the parties.
When as appellant’s appeal is on the omnibus ground of judgment against the weight of evidence, what the appellant simply means is that the judgment of the trial court cannot be supported by the evidence before it. It is thus a request to the appellate court to do the following: -
Go through the whole proceedings of the trial.
Review the judgment and see whether it is supported by the evidence on record.
See whether the trial judge had correctly applied the law to the facts.
Whether his findings are based on the evidence before him and whether those findings find support with the evidence.
Whether the trial judge considered all the evidence including documents and exhibits available on record and applied them correctly as against the law.
Whether the trial judge used all the evidence appropriately for each party and not leaving any evidence out which affected the outcome of the case to the advantage or disadvantage of any of the parties.
(i) Tuakwa vrs. Bosom [2001/2] SC GLR 6
(ii) Djin vrs. Musah Baako [2007/08] SC GLR 686,
It must however be noted that it is incumbent on such an appellant to demonstrate the lapse or error complained off in the judgment appealed against. In the instant appeal, the appellants beef is about the trial judge’s declaration of House No. Plot 2 Block R Tafo Nhyiaeso to the respondent.
The trial High Court Judge in the judgment held that the evidence of the respondent and DW1 was more convincing as to who built the Tafo house. The evidence of DW1 is that while in Germany the mother Abena Kumah informed him that his father, respondent had gifted her a plot of land and requested him to assist her build on it and he did. Starting with the boy’s quarters’.
The petitioner denied this and counsel for the petitioner extensively cross examined DW1 on that issue.
Q- You said there is a house on the plot and you built it. When did you build it?
A- I started the boy’s quarters 1991 and completed it within 4 years. I started the main house 3 years after completing the boy’s quarters. I have not completed the main house. I am on it.
Q- Did you obtain any building permit.
A- Yes for both boy’s quarters and main house
A- In 1991
Counsel for the petitioner showed him exhibit ‘D’ which is a building permit.
Q- You are aware it covers the building in dispute
Q- Tell us the date on exhibit ‘D’
A- 4thOctober 1978
Q- By 4thOctober 1978 you were a student at Obuasi Secondary Technical
Q- And by then you were only about 14 years
Q- As a student you could not have obtained a building permit
A- It is the time exhibit “D” was procured by my father but he could not put up the house.
This question and answer section clearly shows that DW1 is not truthful and cannot be trusted. I do not see why the trial judge believed his story as “more convincing”. He told blatant lies to the court as to the procurement of the building permit and even mentioned a date in 1991 when he started the Boy’s quarters. He insisted there was no house on the land and he dug the foundation.
Again, DW1 denied there was a house on the land since 1979
Q- By 1979 there was a building on the land
A- It is not correct
Q- It was put up by the parties
A- It is not correct
Counsel then showed a document, an application for pipe borne water to be connected to the house, this was tendered through him and admitted without objection on exhibit ‘G’.
Q- Look at exhibit ’G’, read it out to the court
A- I do not have any glasses hereto read
Q- I put it to you that by 1986 there was a building on the plot and your father (respondent) used it as a collateral to obtain a loan from the bank.
A- I do not know
There is evidence before the trial court that in 2005 the respondent summoned his son Daniel Eshun before the Ashanti Town District Court to eject him from the house in dispute. The proceedings were tendered as exhibit ‘C’. In it the respondent described himself as the landlord of the house in issue.
Q- In Exhibit ‘C’ your father described himself as the Landlord.
A- Yes but by then he had not made the change of name.
Q- Exhibit ‘B’, the last paragraph reads ……?
A- I cannot read
Q- This deed of gift in exhibit ‘B’ relates to the house in dispute
Q- I suggest to you by exhibit ‘B’ it is your father (Respondent) who is making the gift to your mother.
A- I built it for her
From the discourse it is clear that the DW1 was not truthful to the court. If there was no building on the land in 1978, why apply to Ghana Water Sewage Corporation for water to be connected to the house in 1979 and not to the land? – Exhibit ‘G’.
From exhibit ‘B’ it was the respondent who transferred the house to Abena Kumah. If it is true that respondent gifted the land to Abena Kumah and he DW1built a house thereon for her, why will the respondent transfer same to her.
Again as at 1986, the respondent had used this same property in issue to apply for a loan at the Ghana Commercial Bank (exhibit ‘E’). If DW1 built this house in 1991, starting with the boy’s quarters how come respondent used same property for a loan in 1986?
With all these I wonder why the trial judge believed DW1’s evidence as “more convincing”. There is no basis for the trial judge believing the evidence of DW1 since its full of falsehood. I believe he is a suborn witness to the respondent.
The law is clear that he who alleges must establish the existence of that fact especially when his opponent denies same – See
(i) Ababio vrs. Akwasi II [1994/5] GBR III 174,
(ii). Memuna Amondy vrs. Kofi Antwi  3 MLG 183 CA where it was held “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred. Failure of which the assertion is not true”.
I wonder why DW1 never called any witness to corroborate his claim that he built the house. For example, the artisans or workers who did the job. Receipts to show where he bought the building materials etc. failure to call these material witnesses is fatal to his case and weakens his claim – See (i) Nkrumah vrs Foli [1982/3] GLR 1046, (ii) Abaidoo vrs Awortwi  GLR 383.
In effect I think the trial judge erred in believing the evidence of DW1?
The law cautions appellate courts to hasten slowly when it comes to interfering with issues of fact since the trial court had the opportunity of seeing the parties physically and observing their demean our in the box. However, if it is glaringly clear that the witness was not truthful or cannot support nor substantiate his evidence especially on cross examination then the appellate court can interfere and take a different decision of its own contrary for that of the trial court. See (i) Kofi vrs Kumansah [1984/6] 1 GLR 116 at 121 – CA, (ii) Bisi vrs Tabiri [1984/6] 2 GLR 282.
From the evidence before the High Court, it was not established factually thatDW1 built the house in 1991 since there is copious evidence of the existence of the house before 1991. Building permit was taken in 1978, application to Ghana Water Sewage Corporation in 1979 and used as collateral for loan from GCB in 1986. All these point to the fact that the building in issue existed before 1991 and therefore cannot be built by DW1 in 1991 as he alleges in his evidence in-chief.
I hold that the building in issue was never built by DW1 for the mother Abena Kumah.
This then goes to buttress the claim of the petitioner and supported by PW1 and PW2 the house was built by the parties and not by DW1.
Assuming the trial judge was even right in holding that DW1 constructed the house he himself in the judgment said “But the house is the jointly acquired property of the parties once it was built on land which was marital property”. That being his conclusion why will he then give it to one party, the respondent?
There was no basis for him doing so since it contradicted his own findings on the ownership of the said house. He was therefore wrong and erred in giving out the house to the respondent. Assuming he was giving a house each to the petitioner and respondent he should have stated so in the judgment. That at the end of the trial since both houses were jointly acquired he has decided to give one each to the parties. He had the right so to do.
However, by his own conclusion that the house was jointly acquired he could not give it to one party without that explanation. That ground of appeal succeeds and that order giving the Nhyiaeso house to the respondent is hereby set aside. The property is the joint property of both parties and must be shared equally.