Boateng Vrs Serwah & 2 Ors [2021] GHASC 105 (14 April 2021)

Boateng Vrs Serwah & 2 Ors [2021] GHASC 105 (14 April 2021)

The Supreme Court held that the exclusion of Exhibit 'A' was a substantial error as it was admissible former testimony, and its consideration established that the plaintiff and deceased jointly acquired the disputed properties. The voidness of the marriage did not bar the plaintiff's claim to co-ownership, as property rights can arise independently of marital status. The defence of illegality did not apply as the alleged illegality was not serious, and denying the claim would be disproportionate. The plaintiff is entitled to a 40% share in the properties as a tenant in common with the deceased's estate; her claim to survivorship and marital status was rejected.

Citation
[2021] GHASC 105
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 in relevant parts.
Legal Topics
Customary Marriage, Void Marriage, Co Ownership of Property, Resulting Trust, Illegality Defence, Admissibility of Evidence, Locus Standi, Tenancy in Common
Source Language
English
Family Law Property Law Succession Law Evidence Law Customary Marriage Void Marriage Co Ownership of Property Resulting Trust +4 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 exclusion of Exhibit 'A' (prior testimony) was erroneous and occasioned a miscarriage of justice
  2. 2 Whether the customary marriage between the plaintiff and deceased was void ab initio
  3. 3 Whether the plaintiff is entitled to a share in the disputed properties as joint owner despite the void marriage

Ratio Decidendi

The Supreme Court held that the exclusion of Exhibit 'A' was a substantial error as it was admissible former testimony, and its consideration established that the plaintiff and deceased jointly acquired the disputed properties. The voidness of the marriage did not bar the plaintiff's claim to co-ownership, as property rights can arise independently of marital status. The defence of illegality did not apply as the alleged illegality was not serious, and denying the claim would be disproportionate. The plaintiff is entitled to a 40% share in the properties as a tenant in common with the deceased's estate; her claim to survivorship and marital status was rejected.

Court Disposition

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

Orders

  • Plaintiff and defendants to share the value of Tantra Hill and Adabraka houses in 40% (plaintiff) and 60% (defendants) proportions.
  • Properties to be sold and proceeds shared accordingly, subject to parties' agreement to trade entitlements.