Boateng Vrs Serwah & 2 Ors [2021] GHASC 158 (14 April 2021)

Boateng Vrs Serwah & 2 Ors [2021] GHASC 158 (14 April 2021)

The Supreme Court held that the exclusion of Exhibit 'A' was erroneous and occasioned a substantial miscarriage of justice, as it contained admissible evidence of joint acquisition. The plaintiff's customary marriage was void due to a subsisting ordinance marriage, but her claim to the properties survived on the basis of resulting trust from joint contributions. The defence of illegality did not bar her claim, as the seriousness of the alleged illegality was minor and denial would be disproportionate. The plaintiff was entitled to a 40% share in the properties as a tenant in common, not as a joint tenant with right of survivorship.

Citation
[2021] GHASC 158
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
Legal Topics
Customary Marriage, Joint Property Acquisition, Resulting Trust, Illegality Defence, Admissibility of Former Testimony
Source Language
English
Family Law Property Law Trusts and Equity Customary Marriage Joint Property Acquisition Resulting Trust Illegality Defence Admissibility of Former Testimony

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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' (former testimony) was erroneous and occasioned a miscarriage of justice
  2. 2 Whether the customary marriage between plaintiff and deceased was void ab initio
  3. 3 Whether the plaintiff is entitled to a share in the disputed properties on the basis of joint acquisition

Ratio Decidendi

The Supreme Court held that the exclusion of Exhibit 'A' was erroneous and occasioned a substantial miscarriage of justice, as it contained admissible evidence of joint acquisition. The plaintiff's customary marriage was void due to a subsisting ordinance marriage, but her claim to the properties survived on the basis of resulting trust from joint contributions. The defence of illegality did not bar her claim, as the seriousness of the alleged illegality was minor and denial would be disproportionate. The plaintiff was entitled to a 40% share in the properties as a tenant in common, not as a joint tenant with right of survivorship.

Court Disposition

appeal allowed in part

Orders

  • Judgments of the High Court and Court of Appeal set aside
  • Plaintiff awarded 40% beneficial interest in Tantra Hill and Adabraka houses as tenant in common with deceased's estate (defendants)