BOATENG VRS. SERWAH AND OTHERS (J4/08/2020) [2021] GHASC 195 (14 April 2021)

BOATENG VRS. SERWAH AND OTHERS (J4/08/2020) [2021] GHASC 195 (14 April 2021)

The Supreme Court held that although the plaintiff's customary marriage to the deceased was void due to her subsisting monogamous marriage, her claim to joint ownership of the disputed properties was valid based on evidence of substantial contribution and resulting trust. The exclusion of Exhibit 'A' was a substantial miscarriage of justice. The defence of illegality did not bar her claim as the perceived illegality was not serious, and denying her claim would be disproportionate. The plaintiff is entitled to a 40% share and the defendants to a 60% share of the properties, to be realized by sale and division of proceeds.

Citation
[2021] GHASC 195
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
Case Number
J4/08/2020
Procedural Posture
Civil Appeal / Supreme Court Judgment
Outcome
Appeal allowed in part; judgments of High Court and Court of Appeal set aside; plaintiff awarded 40% share in properties and damages for trespass.
Legal Topics
Customary Marriage Validity, Joint Property Acquisition, Resulting Trust, Illegality Defence, Admissibility of Former Testimony, Co Ownership Proportions
Source Language
English
Family Law Property Law Trusts and Equity Customary Marriage Validity Joint Property Acquisition Resulting Trust Illegality Defence Admissibility of Former Testimony +1 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 plaintiff and deceased was valid
  2. 2 Whether plaintiff is entitled to joint ownership of disputed properties
  3. 3 Whether Exhibit 'A' (prior testimony) was admissible

Ratio Decidendi

The Supreme Court held that although the plaintiff's customary marriage to the deceased was void due to her subsisting monogamous marriage, her claim to joint ownership of the disputed properties was valid based on evidence of substantial contribution and resulting trust. The exclusion of Exhibit 'A' was a substantial miscarriage of justice. The defence of illegality did not bar her claim as the perceived illegality was not serious, and denying her claim would be disproportionate. The plaintiff is entitled to a 40% share and the defendants to a 60% share of the properties, to be realized by sale and division of proceeds.

Court Disposition

Appeal allowed in part; judgments of High Court and Court of Appeal set aside; plaintiff awarded 40% share in properties and damages for trespass.

Orders

  • Tantra Hill and Adabraka houses to be sold and proceeds shared 40% to plaintiff, 60% to defendants
  • Plaintiff awarded GHC10,000.00 as damages for trespass