2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Prof. H. J. A. N. Mensa-Bonsu, JSC, writing for the Supreme Court of Ghana, resolved a complex dispute arising from a relationship between two Ghanaian migrant workers in ItalyIssaka Hashimu and a woman identified in documents as Sawah Ama (alias Yaa Achiaa). The Court traced a decade-long litigation that began in the High Court, where the woman sued Issaka and his father, Garba Hashimu, for breach of promise to marry and for shares in properties acquired during their relationship. The Court of Appeal reversed, relying in part on new legal arguments about the illegality of prostitution and public policy. On further appeal, the Supreme Court held that the Court of Appeal improperly admitted unpleaded legal points without leave and without giving the appellant an opportunity to respond, reaffirmed the limits of the omnibus ground, and found the plaintiff had proven her claims on a balance of probabilities. Applying constructive trust principles, the Court restored the High Courts judgment (except costs to Garba) and rejected Issakas counterclaim to a Mercedes-Benz used to secure a UT Financial Services loan.
PROF MENSA-BONSU (MRS.), JSC:-
This is a case which appears simple on its face, but which is not so, in reality, having arisen out of the relations of two migrant workers from Ghana who met and cohabited as a couple, in Napoli, Italy. The female believed they were in an amorous relationship and that marriage between them was imminent, whilst the male had other ideas and therefore initially disputed the basis of the belief of the existence of an amorous relationship. There is thus a mix of love, commercial sex work, misplaced trust, manipulation of the system and intrigue, to the befuddlement of lawyers and judges alike.
Although presented as one case, it actually consists of a total of three cases in the High Court; and an appeal to the Court of Appeal, which has culminated in the instant appeal to this honourable court. The equitable maxim “Equity will not suffer a wrong to be without a remedy” is a maxim that has been brought to life and prayed in aid in order to do justice for all the parties in this case.
BACKGROUND
This is a case in which most of the basic facts had to be pried out of the defendant, and so cannot be retold without reference to the difference between the accounts of the two parties. On account of the reversal of roles in the appeals before the Court of Appeal and this honourable court, the plaintiff/respondent/appellant would simply be referred to herein as ‘plaintiff’, and the 2nd defendant/appellant/respondent as ‘defendant’ unless the context requires more specific reference, since the 1st defendant, his father, did not join the appeal in the Court of Appeal.
According to the plaintiff, the parties met between 2000 and 2001 in Udinese, Italy and formed an amorous relationship. Although the defendant initially disputed the years, putting their initial meeting at 2003, he eventually admitted to the years 2000-2001. He also disputed the amorous connection, but he eventually admitted that they “fell in love for an indefinite period”. On the record, the relationship lasted some five years, which again, the Defendant insisted was only some two years. According to the plaintiff, she gave up her job in a carpentry business in Udinese and moved to Napoli for a better job at defendant’s urging, only to discover that it was prostitution (i.e. commercial sex work as it is now known) that the defendant intended. Whatever her motivation was, she got into the trade and worked for a few years, alleging that she turned over her earnings to the