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JUDGMENT
ASARE-KORANG J.A.
The parties herein were husband
and wife. With their consent,
the High Court, Accra, dissolved
their marriage on 10th February
1997 and granted custody of the
child of the marriage to the
petitioner with reasonable
access to the Respondent.
After the decree of divorce the
issues left to be decided by the
court were the Following:—
(a) That the respondent be
compelled to produce the title
deeds on House No. A211/16 South
Dome Street, Dansoman.
(b) That the respondent's name
be struck out from the title
deeds to House No. A211/16 South
Dome Street Dansoman.
(c) That the Respondent be
ejected from House No. A211/16
South Dome Street Dansoman.
(d) That the Respondent be
compelled to refund to the
Petitioner the amounts Of ¢6
million and 2000 US dollars.
(e) That the Respondent be
condemned in the costs of the
proceedings.
The gist of the petitioner's
case in respect of these
ancillary matters was that House
No. A211/16 South Dome Street
was her self-acquired property
and even though the documents in
respect of the said property
were in the name of the
Respondent, the property was
held in trust by the respondent
for and on her behalf.
The Respondent denied that he
held the property in dispute in
trust for the petitioner and
that it was his self acquired
property.
Instead of decreeing that the
property in dispute was owned
solely by one or the other of
the parties herein, the learned
trial judge held that it was
jointly owned by the parties.
She thereforsic ordered that the
house be sold and the proceeds
shared equally between the
parties or that one of them buy
the other out.
Being dissatisfied with his
judgment, the respondent has
appealed alleging the following
grounds of appeal:
(a) That in view of the fact
that each party had claimed the
property in dispute as their
solely acquired property, the
learned trial judge erred in law
by substituting a case contrary
to and inconsistent with the
claim put up by each party in
holding that the property in
dispute was the joint property
of the parties.
(b) That the judgment is against
the weight of evidence.
Additional grounds of appeal
were later filed by the
respondent and they read:
(1) That the learned trial judge
failed to give any or any
adequate consideration to the
case of the Respondent and in
the result gave a judgment which
is against the weight of
evidence.
(2) The learned trial judge
erred in law by failing to
determine the Issues as to who
paid the purchase price for the
land and the person for whom the
land was bought.
(3) The learned trial judge
erred in law by reversing the
onus of proof in requiring the
respondent to call as a witness
the person who the Petitioner
had claimed had purchased the
land on her behalf.
Looking at the grounds of appeal
it is clearly discernible that
the grounds largely relate to
the failure or omission by the
learned trial judge to draw
certain findings on some pieces
of evidence led by the parties
in this case and it is also
plain that ground (b) of the
original ground of appeal is no
different from (1) of the
additional grounds of appeal.
Broadly speaking, the respondent
desires that the judgment be
overturned on the facts as found
or omitted to be found by the
trial court.
In his statement of case,
counsel for the respondent
referred to the following
passage in the judgment:
"From the above quoted
paragraphs it is clear that the
Petitioner herein is claiming
the disputed property as her
self acquired property which the
Respondent held on trust for her
and therefore wants the court to
bring the trust to an end and
declare her owner of the
disputed house. By paragraph 14
of the answer to the petition
filed on 25th January 1996, the
Respondent denied that he held
the disputed property on trust
for the Petitioner as alleged.
He deposed to the fact that the
property was his self-acquired
property with no contribution
from the Petitioner."
It was submitted on behalf of
the Respondent that even thought
the question of Ownership of the
house had come up in divorce
proceedings, the petitioner had
not claimed the property as a
matrimonial asset that fell for
distribution and the matter was
taken out of Section 20(1) of
the matrimonial Causes Act, 1971
(Act 367). The learned trial
judge, it was urged, ought to
have dealt with the matter under
the principle of law in
BENTSIL-ENCHILL VS:
BENTSIL-ENCHILL (1976) 2 GLR 303
to the effect that property
purchased by a spouse with
thissic own money belonged to
that spouse to the exclusion of
the other.
Counsel for the respondent
therefore submitted, citing DAM
VS: J.K. ADDO & BROS (1962) 2
GLR 200 and OBADZEN II VS:
ONANKA II (1982-83) GLR 46 at
page 51 that the judgment of the
High Court is erroneous in law
in so far as it was contrary to
and inconsistent with the claim
put up by each party that the
property was their self-acquired
property.
On ground (c) which says that
the learned trial judge erred in
law by failing to determine the
issues as to who paid the
purchase price for the land and
the person from whom the land
was bought, counsel submitted
that those issues were primary
facts which the trial judge was
bound to resolve and having done
so to state his findings thereon
and apply the law. Counsel
argues that since the trial
judge declared that she was not
clear in her mind the person who
actually paid the purchase price
of the disputed land, she failed
to discharge the duty that lay
on her to resolve that issue and
the judgment ought to be set
aside.
Counsel for the respondent next
argued that the trial judge
shifted or reversed the onus of
proof in requiring the
Respondent to call as a witness
the person who the Petitioner
claimed had purchased the land
on her behalf.
The basis for this argument was
said to subsist in the
observation made by the learned
trial judge as follows:
"However the question as to the
person the land was purchased
from is not very clear. The
Petitioner alleged one Antie
Adaku arrange the sale for her.
The evidence did not say the
said Antie Adaku is dead. She
was never called to corroborate
the story of the petitioner as
regards that fact. Equally, the
Respondent never called Mr.
Lamptey from whom he claims to
have purchased the land. I was
however not told whether he was
alive or not. If the PETITIONER
FAILED TO CALL ANTIE ADAKU I
THINK THE RESPONDENT COULD HAVE
CALLED HER TO DISPEL THE NATION
THAT SHE ARRANGED THE SALE FOR
THE PETITIONER. He failed to do
this and at the end of the day I
am not clear in my mind who
actually paid the purchase price
of the disputed land on which
the house stands."
The onus of proof, its was
contended, at all times lay on
the Petitioner in so far as the
role played by Antie Adaku was
concerned and so it was said,
for the learned judge to have
required the respondent to call
Antie Adaku, was contrary to
section 14 of the Evidence
Decree, 1975 (NRCD 323) which
stipulates that the burden of
persuasion as to existence or
non-existence of each fact in a
claim or defence rests on a
party who assess that fact.
Section 14 recognises that the
burden of persuasion may shift
except where the law otherwise
provides and in so far as it
relates to the proof of facts in
a CLAIM OR DEFENCE it was not
wholly true for the respondent
to argue that the onus of proof
in this case was solely on the
petitioner in view of the
contention by the Respondent
that the property in dispute was
acquired by him alone through
his industry.
I think the assertion by the
learned trial judge that the
Respondent could have called
ANTIE ADAKU to establish whether
she (ANTIE ADAKU) in fact
arranged the sale of the land on
which the property in dispute
stands to the petitioner was not
unfavorable to the Respondent
since there was evidence on
record that ANTIE ADAKU was the
cousin or aunt of the
Respondent.
The last ground of appeal argued
by counsel for the respondent in
his written Address or
submission was ground (b) to the
effect that the judgment was
against the weight of evidence
as the learned trial judge
failed to give any or any
adequate consideration to the
case of the Respondent.
On this ground, counsel for the
respondent would want this court
to evaluate all the evidence on
record and to put itself in the
shoes of the trial court by
making findings of fact that are
contrary to those found by the
trial court.
There are compelling legal
reasons why this court cannot do
so because in my opinion the
findings of fact made by the
learned trial judge cannot be
faulted.
In his submission, counsel for
the petitioner referred to a few
authorities, with which I agree,
on the generally accepted
principle of law that findings
of fact made by a trial court
ought not to be disturbed unless
they re perverse or unsupported
by the evidence on record.
One of the cases cited by
petitioner's counsel was ATTIASE
VS: ABOBBTEY (1969) CC 149 which
decides that "an appellate court
should not reverse findings of
fact made by a trial court
unless those findings are not
supported by the evidence and it
is not for the appellate court
to substitute its opinion for
the opinion of the trial court".
The second case cited was
AMPOMAH VS: VOLTA RIVER
AUTHORITY (1989-90) 2 GLR 28
which held that:
"where an appellant charged that
the judgment of the court below
was against the weight of
evidence, there was a
presumption that the judgment of
the court below on the facts was
correct. The appellant in such a
case, therefore, assumed the
burden of showing from the
evidence on record that the
judgment was against the weight
of evidence".
There was yet a third authority
referred to namely, BONNEY vs:
BONNEY (1992-93) GBR part 2 at
page 799 where the holding was
that:—
"an appellant (who) contended
that a judgment was against the
weight of evidence assumed the
burden of showing from the
evidence that this was in fact
so. The argument that an appeal
was a rehearing and therefore an
appellate court was entitled to
make its own mind and draw
inferences might well be so but
an appeal court ought not under
any circumstances interfere with
the findings of fact by the
trial judge except where they
were clearly shown to be wrong."
In the present appeal the
totality of the evidence in my
opinion sufficiently supports
the conclusions drawn by the
trial court and I see no reason
to interfere by substituting my
own evaluation of the evidence
for that of the trial court.
I am satisfied that the learned
trial judge adequately reviewed
and examined the evidence led by
the parties before her. For
example at page 150 of the
record she noted that the
respondent seemed to rely
heavily on the fact that his
name is on the document of title
to the house in dispute and at
page 149 of the record she made
the following observation.
"The petitioner has given a
detailed account of the source
of money for building the
disputed house. This piece of
evidence was not challenged at
all during cross-examination.
She has also called witnesses
who have corroborated her
evidence as to the payment of
their wages and materials
purchased for the building".
The learned trial judge went on
to find that while the
petitioner mentioned some of the
workers who worked for her on
the building the respondent also
mentioned some of the same
workers named by the Petitioner
as his workers on the building.
The learned trial judge then
rejected the portrait painted by
the Petitioner in court of the
Respondent as a completely
irresponsible man and a spend
thrift and she concluded from
the evidence adduced by the
petitioner and the respondent
that they both contributed to
put up the disputed house.
This conclusion, to my mind,
should not be disturbed as it
was one the learned trial judge
was entitled to arrive at
considering that the matter
before the trial court was a
divorce petition, the
proceedings of which were
regulated by Order 55 of the
High Court (Civil Procedure)
Rules, LN 140A and the
Matrimonial Causes Act 1971 (Act
367). And I think counsel for
the Petitioner is right when he
states that the fact that each
party claimed the disputed house
to be self-acquired and sought
an order that effect did not
take the proceedings out of the
ambit of the Matrimonial Causes
Act 1971 (Act 367).
Section 20 (1) of Act 367
provides:
"The court may order either
party to the marriage to pay the
other party such sum of money or
convey to the other party such
movable or immovable property as
settlement of property rights or
in lieu thereof or as part of
financial provision as the court
thinks just and equitable."
IN BERCHIE-BADU VS: BERCHIE-BADU
(1987-88) GLR it was held that
the High Court in the exercise
of its divorce jurisdiction
under section 20(1) of Act 367
was armed with sufficient powers
to make provision for the wife
on the breakdown of a marriage
and in the exercise of the
court’s discretion to award
ancillary relief under the
section, the overriding
consideration was that the award
be "just and equitable"
In the instant appeal even
though, the learned trial judge
did not state that she was
making an order under Section
20(1), the ends of justice were
properly served when she decided
on the evidence before her that
the house dispute be sold and
the proceeds shared equally
between the parties or that one
of them buy the other out.
It was for these reasons that
the order of the trial court is
affirmed and the appeal filed by
the Respondent dismissed.
(SGD.)
K. ASARE-KORANG.
JUSTICE OF APPEAL
LARTEY J.A.
I agree.
(SGD.)
F.M. LARTEY
JUSTICE OF APPEAL COURT
ABBAN J.A.
I also agree.
HENRIETTA ABBAN (MRS.)
JUSTICE OF APPEAL COURT
COUNSEL
J.K. IROKO FOR STANLEY
AMARTEIFIO FOR APPELLANT
JOSEPH TURKSON FOR PETER ZWENNES
FOR RESPONDENT.
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