2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Ernestina Boateng and Mark Adu Prempeh cohabited from 1988 and undertook a joint used-car business shipping vehicles from Belgium to Ghana through AUTODEPANNAGE ADU’S, acquiring two Accra properties at Tantra Hill and Adabraka, although title was placed solely in Prempeh’s name. After Prempeh’s 2007 death, defendants obtained Letters of Administration and ejected Boateng, prompting her 2009 suit asserting widow status, co-ownership, and other reliefs. The High Court in 2012 granted her claims, but the Court of Appeal in 2016 reversed, holding her 1997 customary marriage void and excluding Exhibit “A” (the prior matrimonial record). The Supreme Court admitted Exhibit “A,” found joint acquisition and a resulting trust, rejected survivorship and locus to challenge the 1st defendant’s marital status, adopted the discretionary approach to illegality, and ordered sale and distribution 40% to Boateng and 60% to defendants, plus GHC 10,000 damages for trespass.
PWAMANG, JSC:-
My Lords, the proceedings that have culminated in this appeal were commenced in the High Court, Accra on 2nd January, 2009 but are a sequel to a partly-heard matrimonial case in that court which was struck out on 31st July, 2007 following the death of the respondent therein, Mark Adu Prempeh (the Deceased). The plaintiff/respondent/appellant (the plaintiff) herein and the deceased met and entered into a relationship in Antwerp, Belgium in 1988 and the relationship lasted for nine years before they came to marry at Kumasi in 1997 in accordance with Akan custom. Problems developed in the relationship in 2000 causing the plaintiff to file a divorce petition against the deceased praying for dissolution of the marriage and also for declaration of joint ownership of two landed properties situate at Tantra Hill and Adabraka, both in Accra. In his defence in the divorce case the deceased disputed the validity of the marriage and denied the plaintiff’s claim of joint ownership of the properties. He counterclaimed for annulment of the purported marriage and for a declaration of exclusive ownership of the two properties.
The deceased claimed that after their marriage he got to know that the plaintiff was in a subsisting monogamous marriage at the time of their customary marriage which made their marriage void so he separated from her that same year they married. In a reply to the defence the plaintiff denied that they separated and stated that the deceased was all along aware of her earlier monogamous marriage which she said was only for purposes of immigration documents and not a proper marriage. Extensive evidence was led about the marriages and the acquisition of the two properties. Unfortunately, when the trial was almost ending the respondent died in a motor accident on 17th February, 2007. On his death the defendants/appellants/respondents (the defendants) herein claiming as surviving spouse, customary successor and eldest son respectively, applied and were granted Letters of Administration over his estate including the two properties that were subject matter of the pending matrimonial case. The plaintiff therefore applied to substitute the defendants for the deceased so the case could be concluded. The court initially granted the application but subsequently it discharged the order of substitution and struck out the suit on the application of the defendants who argued that divorce proceedings are in personam so the plaintiff’s cause of action