Boateng Vrs Serwah & 2 Ors [2021] GHASC 106 (14 April 2021)

Boateng Vrs Serwah & 2 Ors [2021] GHASC 106 (14 April 2021)

The Supreme Court held that the plaintiff's customary marriage to the deceased was void due to her subsisting monogamous marriage, but this did not bar her claim to a beneficial interest in the disputed properties, as co-ownership can arise from joint contributions outside marriage. Exhibit 'A' was admissible as former testimony. The defence of illegality did not bar the claim, as the perceived illegality was not serious and denial would be disproportionate. The plaintiff was entitled to a 40% share in the properties as a tenant in common, not by survivorship.

Citation
[2021] GHASC 106
Parties
Plaintiff/respondent/appellant: Ernestina Boateng; 1st Defendant/appellant/respondent: Phyllis Serwah; 2nd Defendant/appellant/respondent: Boampong Nyamekye; 3rd Defendant/appellant/respondent: Mark Adu Prempeh Jnr.
Court
Supreme Court
Jurisdiction
Ghana
Judgment Date
14 April 2021
Procedural Posture
Civil Appeal / Supreme Court Judgment
Outcome
Appeal allowed in part; judgments of High Court and Court of Appeal set aside.
Legal Topics
Customary Marriage, Intestate Succession, Resulting Trust, Co Ownership of Property, Admissibility of Evidence, Defence of Illegality, Public Policy, Tenancy in Common
Source Language
English
Family Law Property Law Trusts and Equity Customary Marriage Intestate Succession Resulting Trust Co Ownership of Property Admissibility of Evidence +3 more

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Parties

Ernestina Boateng

Plaintiff/respondent/appellant

Phyllis Serwah

1st Defendant/appellant/respondent

Boampong Nyamekye

2nd Defendant/appellant/respondent

Mark Adu Prempeh Jnr.

3rd Defendant/appellant/respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the customary marriage between the plaintiff and deceased was valid
  2. 2 Whether the plaintiff is entitled to a share of the disputed properties as joint owner
  3. 3 Whether Exhibit 'A' (prior testimony) was admissible evidence

Ratio Decidendi

The Supreme Court held that the plaintiff's customary marriage to the deceased was void due to her subsisting monogamous marriage, but this did not bar her claim to a beneficial interest in the disputed properties, as co-ownership can arise from joint contributions outside marriage. Exhibit 'A' was admissible as former testimony. The defence of illegality did not bar the claim, as the perceived illegality was not serious and denial would be disproportionate. The plaintiff was entitled to a 40% share in the properties as a tenant in common, not by survivorship.

Court Disposition

Appeal allowed in part; judgments of High Court and Court of Appeal set aside.

Orders

  • Plaintiff and defendants entitled to the total value of the Tantra Hill and Adabraka houses in the proportions of 40% (plaintiff) and 60% (defendants) as tenants in common.
  • The two houses to be sold based on filed valuations and proceeds shared accordingly; parties may trade entitlements by agreement.