KYIAFI v. WONO

JUDGMENT OF OLLENNU J.A.

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.

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.

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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.

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:

"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."

Against that judgment the defendant appealed to this court on two grounds namely:

"(1) the judgment is against the weight of evidence, and (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