Boakyewaa v Agyarko (Civil Appeal No. H1/073/2025) [2025] GHACA 16 (30 July 2025)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL KUMASI – GHANA AD – 2025 CORAM: MENSAH-DATSA (MRS.), JA (PRESIDING) KWAMINA BAIDEN, JA DR. ADUSEI, JA CIVIL APPEAL NO. H1/073/2025 DATED: 30TH JULY, 2025 DORA BOAKYEWAA PLAINTIFF/APPELLANT VS. MR. YAW AGYARKO DEFENDANT/RESPONDENT JUDGMENT KWAMINA BAIDEN, JA. This is a matter in which the Plaintiff/ Appellant and Defendant/Respondent made a claim and counterclaim respectively for reliefs including a declaration of interest in the disputed property. The parties shall be referred to as Plaintiff and Defendant. The Plaintiff claimed against the Defendant as follows: a) A declaration that the Plaintiff and Defendant are joint owners of the Property PIt No: 1 BIK FX Adoato, Kumasi. 2 b) An order by the court for the Plaintiff to pay the Defendant his share of the valued price property or in the alternative for the Defendant to pay the Plaintiff 50% of the value of the property being her share of the property. c) Any other orders that the court may deem fit. The Defendant per his Amended Statement of Defence and Counterclaim as claimed against the Plaintiff as follows: a) Declaration of title and recover of possession of House No. Plot 1 Block EX Adoato, Kumasi. b) Perpetual injunction restraining the Plaintiff her agents, servants, workmen and all those claiming through her from interfering in any manner whatsoever with House No. Plot 1 Block FX Adoato, Kumasi. According to the Plaintiff, the love relationship between the parties started in 1994 and they cohabited until 2000 when the Defendant performed the customary rites of marriage and then they lived as husband and wife thereafter until 2005 when the marriage was dissolved. During the period that they were together, the parties, by their joint contribution built a house in Adoato, Kumasi but upon the dissolution of the marriage the Defendant had refused to give the Plaintiff her share of the property which she required in monetary form to acquire a new property. Hence the instant action. The Plaintiff insisted that she was married to the Defendant and was entitled to an equal share of the property based on her contribution to its development. The Defendant’s case is that he acquired the disputed land in 1996 when he had not met the Plaintiff who was married to and lived with one Paul Wernicke in Hammer Land Street 219-20537 Hamburg- Germany from 1992 to 1999 and it was therefore not possible for them to have cohabited from 1994 to 2000. He admitted that he cohabited with the Plaintiff from 2000 to 2002. He added that the Plaintiff in 2000 came to Ghana 3 and got married to one Cross Kyei under the Ordinance in Ghana at the Kumasi Metropolitan Council and it was therefore not true that he performed any customary marriage rites in 2000. The said Kyei came to live in Germany and the relationship between the parties ended. According to the Defendant, the acquisition and development of the property in question were entirely from his resources. He admitted that the Plaintiff’s uncle Francis Bugyei played a major role in the acquisition and development of the land but stated that he knew the said uncle through a deceased friend before knowing the Plaintiff. He therefore prayed that the Plaintiff’s claim should be dismissed and his counterclaim granted. The following issues were on the application for directions but issues b, c, and d below were set down for determination: a) Whether or not there was a marriage between the Plaintiff and the Defendant. b) Whether or not the Plaintiff and the Defendant are the joint owners of subject property. c) Whether or not the plaintiff and Defendant made contribution towards the project. d) Any other issues raised by the pleading The issue a): a. Whether or not there was a marriage between the Plaintiff and the Defendant On 14th July, 2020, at the hearing of the Application for Directions, the orders made by the trial Court included the following at pages 63-64 of the Record: 4 The application filed by the plaintiff for a judgement against the defendant in default of defence is abandoned by the applicant. APPLICATION FOR DIRECTIONS 1. Issue 1 (ii) - (v) filed by the plaintiff are set down for the trial. 2. Parties shall file and exchange all documents they hope to use at the trial of this case. 3. Witness Statement by the parties shall be filed on or before the 20 th of October, 2020. 4. Pre-trial checklist shall be conducted by the parties on or before the 6 th of November, 2020. 5. CMC shall be conducted on the 19th of November, 2020. Adjourned to 19th November, 2020. At the end of the trial, the High Court, Kumasi granted the Plaintiff’s claim with a variation. It ordered that the property should be shared in the proportion of 20% to the Plaintiff and 80% to the Defendant . Dissatisfied with this decision, the Plaintiff lodged this appeal on the following grounds which are found at pages 299-300 of the Record of Appeal (ROA): 1. The Judgment of the trial Court is against the weight of evidence on record. 2. The trial judge erred for ruling that the plaintiff’s interest in the joint property is 20% instead of 50% as per plaintiff’s relief sought and the Defendant’s interest is 80% 3. Additional grounds of Appeal to be filed upon receipt of the certified True copy of the proceedings of the court below. The Plaintiff did not file any additional grounds. 5 The relief sought by the Plaintiff from this Court is that the said judgment of the trial Court dated 18th day of January, 2024 and all the consequential orders made thereof be reversed, be set aside and varied. As set out in Rule 8 of the Court of Appeal Rules, 1997 (C.I. 19) and explained in several cases, a few of which are mentioned here, an appeal is a rehearing. This Court is under a duty to study the entire record to find out whether the judgment under appeal was justified as supported by the evidence on record. We are also entitled to make up our minds on the facts and to draw inferences to the same extent as the trial Court could do. See Tuakwa v Bosom [2001-2002] SCGLR 61, Fofie v Zanyo [1991] 2 GLR 472 and Praka v Ketewa [1964] GLR 423. The Plaintiff has a duty to demonstrate from the record any lapses which when corrected will overturn the judgment in her favour as she prays for in her relief. Djin v Musah Baako [2007-08] SCGLR 686. We shall proceed to deal with the grounds of appeal together, as our view agrees with the Counsel for the Defendant that the issues are related and substantially based on the evidence and the related law. The two grounds of appeal are as set out below: 1. The Judgment of the trial Court is against the weight of evidence on record. 2. The trial judge erred for ruling that the plaintiff’s interest in the joint property is 20% instead of 50% as per plaintiff’s relief sought and the Defendant’s interest is 80% Marriage between the parties became a central issue for Counsel for the Plaintiff in his submissions before this Court. He launched an attack on the trial Judge for shying away from determining the issue of marriage between the parties. According to him, concrete evidence including photographs had been tendered in evidence to establish the marriage between the parties , and further that the Defendant’s Counsel did not cross-examine PW1 on the issue of the marriage thereby signifying that he had admitted that there was indeed a marriage between the parties. Notwithstanding this 6 state of the evidence, the trial Judge failed or refused to rule that the parties were married. She instead based her decision on the property claim on co-ownership. This resulted in a diminution of what the Plaintiff would have been entitled to from the sharing of the property in that the services such as housekeeping the Plaintiff rendered and sexual intercourse enjoyed by the Defendant were not taken into account . He relied on the provisions of the Evidence Act, 1975 (NRCD 323) and the book Essentials of the Ghana Law of Evidence by S. A. Brobbey on admissions. Some decided cases he relied on included Western Hardwood Enterprises Ltd v West Africa Enterprises Ltd [1998-1999] SCGLR 105. He further argued that the parties are bound by their pleadings and the pleadings supported the Plaintiff’s case. His c onclusion was that the Plaintiff made substantial contributions to the development of the property which should entitled her to an equal share of it. Against these submissions, Counsel for the Defendant argued that there was no marriage in law in terms of the essentials of customary marriage. For this he relied on Yaotey v Quaye [1961] GLR 537 . There were also other pieces of evidence of the Plaintiff’s marriage to other men namely Paul Wernicke and Kyei within the material period which made it impossible to hold that the parties were married within the period claimed by the Plaintiff. It was however, admitted by the Defendant that a knocking ceremony was performed by him in preparation for marriage but same did not materialize. On the acquisition and development of the property, the Defendant by documentary and oral evidence proved that he acquired and developed it alone. From the pleadings, the Statement of Claim avers as follows in the Paragraphs below: 3. The Plaintiff and Defendant entered into a relationship and cohabited between 1994 and 2000. 7 4. The Plaintiff says that in the year 2000, the Defendant performed the customary rites of the marriage and they stayed as man and wife. This drew the following response from the Amended Statement of Defence and Counterclaim: 1. The Defendant admits all the averments contained in paragraph 1, 2 and 4 of the statement of Claim. 2. The Defendant denies all the averments contained in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Statement of Claim. 3. The Defendant states that he acquired the land on which the disputed property is built in 1996 before he got to know the Plaintiff. 4. The Defendant says that he acquired the land from the Amo Tebe Stool under the chieftain of Bantama Banmu -Asofohene in the year 1996 at a time that he was (sic) had never met or known the Plaintiff as in altruism (sic) lie has never married the Plaintiff at any time but admits that there was a form of concubine relationship between them in the year 2000 to 2002. 5. Defendant says that even as at the year 1996, the Plaintiff was already married to a white man by name Mr. Paul Wernicke who lived with the Plaintiff at Hammer Land Street 219-20537 Hamburg- Germany 6. Defendant says that the said marriage above mentioned between the Plaintiff and the mentioned Mr. Paul Wernicke commenced actually in the year 1992 and ended in the year 1999 so there is no way that he could have been in any relationship with the Plaintiff not to talk of her being part in any project he would undertake in. 7. Defendant therefore denies completely the averment contained under paragraph 3 of the Plaintiff's Statement of Claim and says that he has never at 8 any time been in a relationship with the Plaintiff and cohabited with her from 1994 to the year 2000. The Plaintiff then responded in her Amended Reply and Defence to Counterclaim that: 1) The plaintiff stands by all the averments in paragraph 1 - 8 of the statement of claim. 2) The plaintiff denies paragraphs 3,4,5,6 and 7 of the amended statement of defence. 3) The plaintiff asserts that he (sic) actually entered into a relationship with the defendant and cohabited with her between 1994 and the year 2000 when the Defendant performed the customary rites of the manage and the plaintiff and the defendant became customarily married. 4) The plaintiff asserts that it was her uncle - Francis Bugyei who as a build er facilitated the purchase of the plot of land for the defendant and myself. The plot was actually acquired in 1996 with contributions f rom both the plaintiff and the defendant. So, it is palpably false on the part of the defendant that he had not met or married the plaintiff at any time. Indeed the defendant married the plaintiff in the year 2000. The informal relationship actually commenced in 1994 and consequently resulted in formal customary marriage in the year 2000. The formal customary marriage collapsed in the year 2005. 5) In direct reply to paragraph 5 and 6 the plaintiff states that she has never married any white man by name Mr. Paul Wermicke and never lived with him in Hamburg 6) The plaintiff partly accepts and partly denies paragraph 10,11,12,13 and in sist that the decision to put up a building was a joint decision between her and the 9 defendant in 1996 at the time the plaintiff and defendant were in a relationship and had been in relationship that is, cohabitation for two years. 7) The plaintiff flatly denies paragraph 17 of the defendant's amended statement of Defence and states that the averment in paragraph 17 is the figment of the defendant's imagination and an attempt to distort the real facts. The mar riage between the plaintiff and the defendant took place in the year 2000. That the relevant documents will be tendered at the trial. The marriage collapsed in 2005. 8) The plaintiff denies paragraph 18 and 19 as being figments of the defendant's imagination. This is because there is incontrovertible evidence that the marriage persisted until 2005 when it collapsed. After a review of the pleadings and evidence , the trial Judge came to the following conclusion in her judgment at pages 293-294 of the Record of Appeal: “Where Plaintiff was married to Wernicke as borne out by the name she used in contracting the marriage with Cross Kyei, and suggestion made by her lawyer, then where the said marriage was monogamous one and same is subsisting, she could not validly contract a customary marriage with the de fendant and further contract another marriage under the Marriage Act , 1984-1985 (Cap 127) as portrayed by the Exhibit “27” series. Section 31 of the Evidence Act, 1975, NRCD 323 provides that “a marriage celebrated before witnesses is presumed to be valid”. Where the presumption is displaced then, in a matrimonial cause the validity or otherwise of the marriage between the parties would be pronounced upon. In this case, it seems to me that the Plaintiff’s claim of joint ownership is based on the contributions she asserts to have made and not a claim 10 of entitlement to the property based on the acquisition of property during the subsistence of a marriage.” It is difficult to appreciate the basis upon which the trial Judge concluded that marriage was not one of the factors upon which the Plaintiff was depending to make a claim of interest in the property. The marriage of the parties featured prominently in the case. If there was indeed a marriage and any benefit enured out of it to the Plaintiff, in the interest of substantial justice, she could not be deprived of it. The pleadings in the case deserved a closer look to determine the respective burden of proof borne by the parties and whether they had discharged them. It was also important to assess critically the nature and quality of the evidence adduced by the parties in discharge of their respective obligation to produce evidence. See Dzaisu v Ghana Breweries Ltd [2007-2008] 1 SCGLR 539 which also dealt with the application of Sections 11 (1) and 14 of the Evidence Act, 1975 (Act 323). The parties are required to stick to their pleadings. See Odoi v Hammond [1982 -83] GLR 1215 and Klah v Phoenix Insurance Co. [2012] GHASC 25 (30 May 2012). First of all, i t seems to us that that the trial Judge ought to have subjected the Defendant’s assertion that the Plaintiff was married to one Wernicke to a more careful analysis in terms of the evidential rules which she correctly set out in her judgment. In the Defendant’s Amended Statement of Defence and Counterclaim at Paragraphs 5 and 6, he averred as follows: 5. Defendant says that even as at the year 1996, the Plaintiff was already married to a white man by name Mr. Paul Wernicke who lived with the Plaintiff at Hammer Land Street 219-20537 Hamburg- Germany 6. Defendant says that the said marriage above mentioned between the Plaintiff and the mentioned Mr. Paul Wernicke commenced actually in the year 1992 and ended in the year 1999 so there is no way that he could have been in any 11 relationship with the Plaintiff not to talk of her being part in any project he would undertake in. The Plaintiff then responded that: 5) In direct reply to paragraph 5 and 6 the plaintiff states that she has never married any white man by name Mr. Paul Wernicke and never lived with him in Hamburg The Plaintiff having denied the assertion by the Defendant, the latter was put to proof of it. Otherwise, it remained a bare assertion. Beyond pointing out that the name WERNICKE had been used by the Plaintiff on the marriage certificate in respect of the marriage to Cross Kyei, no evidence was made to prove any marriage between the Plaintiff and any Paul Wernicke. We think this bare assertion did not amount to proof that the Plaintiff was married to any Paul Wernicke as asserted by the Defendant. The trial Judge was therefore not entitled to conclude that there was a subsisting monogamous marriage between the Plaintiff and another person so she could not contract another marriage. Besides, it takes more than a name to determine marriage as well as the type of marriage contracted by the person . How could the trial Court conclude that even if there was a marriage with Wernicke , it was a monogamous marriage without evidence to that effect such as a marriage certificate and the law under which it was issued? In addition, by Paragraph 6 of the Amended Statement of Defence and Counterclaim, the Defendant stated categorically that the Plaintiff’s marriage with Wernicke ended in 1999. This means the Plaintiff could contract a marriage thereafter especially in 2000. Whether there was a husband of the Plaintiff called Paul Wernicke was not established save for cross -examination question by Counsel for Plaintiff that the two marriages were arranged marriages. The Plaintiff’s claim that sh e and the Defendant struck an amorous relationship from 1994 receives corroboration from PW1 and the Defendant’s lawful attorney. See Paragraphs 2 and 3 of PW1’s Witness Statement at page 100 of the 12 Record of Appeal and page 230 where the Defendant’s attorney in spite of all the denials, under cross -examination gave this very significant answer to an equally significant question: Q. I suggest to you that the decision to put up the disputed house is a joint decision of the parties. A. It is so. From Paragraphs 5, 6 and 7 of Defendant’s lawful attorney’s Witness Statement at page 112 of the Record of Appeal, the Defendant’s initial payment for the acquisition of the land was in 1996 . There are bit s and pieces of evidence which corroborate the Plaintiff’s claim that the acquisition and development of the land was a joint decision and in view of marriage. Was there a marriage between the Plaintiff and the Defendant? The trial Judge had a duty to appropriately determine the issue whether or not there was a marriage between the parties. Quaye v Mariamu [1961] GLR 93 applied. The difficulty of the trial Judge that the Plaintiff did not give the date in 2000 when the customary marriage was celebrated did not prevent her from examining the evidence and determining it on the balance of probabilities. In the Plaintiff’s Statement of Claim, she pleaded that: 1. The Plaintiff is a seamstress and ordinarily resident in Hamburg, Germany. 2. The Defendant is a pensioner and also lives in Hamburg, Germany. 3. The Plaintiff and Defendant entered into a relationship and cohabited between 1994 and 2000. 4. The Plaintiff says that in the year 2000, the Defendant performed the customary rites of the marriage and they stayed as man and wife. 13 Save denying Paragraph 3 of the Statement of Claim, the Defendant responded as follows in the Amended Statement of Defence and Counterclaim: 1. The Defendant admits all the averments contained in paragraph 1, 2 and 4 of the statement of Claim. 2. The Defendant denies all the averments contained in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Statement of Claim. 3. The Defendant states that he acquired the land on which the disputed property is built in 1996 before he got to know the Plaintiff. 4. The Defendant says that he acquired the land from the Amo Tebe Stool under the chieftain of Bantama Banmu -Asofohene in the year 1996 at a time that he was (sic) had never met or known the Plaintiff as in altruism lie (sic) has never married the Plaintiff at any time but admits that there was a form of concubine relationship between them in the year 2000 to 2002. The Defendant admits the Plaintiff’s Paragraph 4 where the Plaintiff stated that they got married customarily and lived as husband and wife . Subsequently, he pleaded that they lived in a form of concubinage relationship. This later variation does not detract from the earlier admission that they lived as husband and wife upon a customary marriage. The Paragraph 4 of the Statement of Claim was specific that “The Plaintiff says that in the year 2000, the Defendant performed the customary rites of the marriage and they stayed as man and wife ”. The man who did not know the Plaintiff, comes to Ghana in 2000 for only three weeks and suddenly decides to perform a rite either a knocking as he describes it or customary marriage as the Plaintiff describes it. The Defendant’s story is incredible. It is required that a denial should be specific. The Defendant’s response was not a denial or a confession and avoidance. His earlier admission and subsequent explanation based on concubinage does not deny the marriage and the averment that they lived as man and wi fe. The Paragraph 4 was specifi c in its terms thus: “The 14 Plaintiff says that in the year 2000, the Defendant performed the customary rites of the marriage and they stayed as man and wife.” The Defendant’s response in Paragraph 1 is clear that “The Defendant admits all the averments contained in paragraph 1, 2 and 4 of the statement of Claim.” The subsequent explanation int roduced by the Defendant in Paragraph 4 of his Defence was part of his design or scheme to distant his amorous relationship which resulted in his marriage to the Plaintiff from the acquisition and development of the land. He could not specifically deny the performance of the marriage rites in his pleadings and could not also mention and emphasize the knocking rites, a material fact, in his pleading, as was done so strongly in the evidence of his attorney. His denial in Paragraph 4 of his Amended Defence was thus: 4. The Defendant says that he acquired the land from the Amo Tebe Stool under the chieftain of Bantama Banmu -Asofohene in the year 1996 at a time that he was (sic) had never met or known the Plaintiff as in altruism lie (sic) has never married the Plaintiff at any time but admits that there was a form of concubine relationship between them in the year 2000 to 2002. The attorney’s evidence, however, contradicts the above averment in that per his evidence the Plaintiff and the Defendant never met after the knocking rites in January, 2000. The following exchange occurred when the attorney of the Defendant was under cross-examination: Q. Indeed the marriage between plaintiff and the defendant collapsed in 2005. A. It is not correct when they met in 2000 in Ghana they never met in Germany again because plaintiff was living with Cross Kyei. The (sic) shared the same address. (See page 232 of the Record of Appeal). This scheme of d istancing the Defendant’s relationship with the Plaintiff from the property reached the height where when the Plaintiff pleaded that the Defendant was unemployed around 2000 and financially unstable, the Defendant denied that 15 presumably because the Plaintiff connected it to an averment that she contributed her own unemployment benefit to the development of the property. Yet in the Defendant’s attorney’s evidence, he stated clearly in Paragraph 49 of his Witness Statement at page 121 of the Record of Appeal that “in the year 2002, the Defendant returned to Ghana because things were difficult for him in Germany as he had lost his good paying job and was now surviving on menial jobs only fetching meagre pay.” The Plaintiff’s pleadings in question contained in the Statement of Claim were as follows: 13. Plaintiff says that in 2002 she lost her job and was paid a compensation of € 15,000 (Fifteen Thousand Euros) and she came to Ghana and spent the whole amount on the building. 14. Plaintiff says that around this time the Defendant was unemployed and was not able to contribute to the building. 15. Plaintiff says that in 2005 the marriage ended and they parted ways as husband and wife. These averments elicited the following response from the Defendant in his Amended Statement of Defence and Counterclaim at Paragraph 2: 1. The Defendant denies all the averments contained in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Statement of Claim. The denial was a bare denial . The evidence of the Defendant’s attorney however, corroborated the evidence for the Plaintiff at Paragraph 13 of the Witness Statement of her attorney at page 184 of the Record of Appeal that the Defendant was unemployed during the period around 2002 and could not make financial contribution towards the further development of the property. This is an instance where the evidence of the Defendant’s attorney supports that of the adversary, the Plaintiff. See In Re Asere Stool; Nikoi Olai v Amontia IV (subtd. By Nii Tafo Amon II) v Akortia Oworsika 16 III (substd. By Laryea Ayiku III) [2005-2006] SCGLR 637 Holding 2. This is evidence from an opponent’s witness that favoured the Plaintiff which could not be ignored. Was Plaintiff and Defendant’s marriage subsisting at the time the former contracted a marriage with Cross Kyei? The Defendant averred in his Amended Statement of Defence and Counterclaim as follows at page 79 of the Record of Appeal: 15. Defendant says that all the relevant receipts on the monies sent to Bugyei for the construction over the period will be tendered at trial for its full force and effect. 16. Defendant says that he visited Ghana in October 1996 after the land had been acquired and at the period, the foundation of the land had already commenced as the drawings of the land had all been drawn since August 1996. 17. Defendant repeats the averment contained under paragraph 7 and says that even in the year 2000 when the Defendant thought that he had a relationship with the Plaintiff, the Plaintiff had clandestinely come to Ghana and gotten married to one Kyei which was registered at the Kumasi Metropolitan Council and so the Defendant has never been married to the Plaintiff. 18. Defendant says that his building had commenced and was steadily developing by Bugyei in Ghana and that it was in the year 2000 when he came to Ghana that Bugyei introduced the Plaintiff to him his niece. 19. Defendant says that he took an interest in her and so commenced relationship with her until the mentioned Kyei whom the Plaintiff had married at the Kumasi City Council finally got back to join her in Hamburg in the 2002 which saw the end of the concubine relationship between the parties at which time the property in dispute had been fully built and roofed. By the above averments, the Defendant claimed he got to know the Plaintiff in 2000, and their relationship sta rted from that time till 2002. In the same 2000 , the Plaintiff 17 contracted a marriage with Cr oss Kyei. Yet the Defendant admits and confesses that his relationship with the Plaintiff continued till 2002 when Cross Kyei went to join the Plaintiff in Hamburg. It is interesting to note that the Defendant does not mention any marriage rites he performed in 2000 at this point. However, the Defendant’s lawful attorney’s evidence per his Witness Statement provides an interesting revelation. In Paragraphs 32, 33 and 34 at page 118 of the Record of Appeal and Paragraphs 39, 40, 41 and 42 at pages 119 -120 of the Record of Appeal, he said: 32. Accordingly in the year January 2000, the Defendant visited Ghana. Upon seeing the house, he expressed much joy and profound appreciation to Francis Bugyei for being honest in developing the land into such an incredible edifice. The Defendant spent only three weeks in Ghana in the month of January. 33. Upon seeing the house, he advanced further sums to Francis Bugyei to do fittings, doors, windows, plumber works, etc on the house. 34. It was while he was in Ghana within this period of January , that the Defendant decided to take advantage to see the Plaintiff’s family to express and indicate his intention of marrying the Plaintiff at a later (s ic) in a customary process known as “knocking” . In a ceremony of only few persons of the Plaintiff’s immediate family members, the “knocking” rites were performed. The lawful attorney then continues that after this ceremony the Plaintiff could not wait longer so contracted the marriage with Cross Kyei. This is what he said in Paragrap h 39 with further details in Paragraphs 40, 41 and 42: 39. Indeed, because the Plaintiff was not willing to wait for the Defendant for such a long time, he (sic) immediately got married to another person by name Cross Kyei on 28th January, 2000 under Marriage Ordinance CAP 127. 18 40. A certificate of marriage was accordingly issued by the Registrar of Marriages under the Licence number KMA/147/2000 and issued with certificate number 147/2000, on 28th January, 2000. Attached is an exhibit marked NFAO- 19 evidencing valid marriage between the Plaintiff and another by name Cross Kyei. 41. On the said certificate, the Plaintiff’s surname was WERNICKE. This was so because she had once been legally married but divorced to another man whose names included WERNICKE and so the Plaintiff was still bearing that name as a maiden name by then. 42. It is worth noting also that the signatory witnesses of that said marriage between Cross Kyei and Dora Wernike (now Dora Boakye, the Plaintiff ) included Francis Bugyei, the very person who the Defendant had engaged and contracted to develop his (Defendant) plot of land. Assuming there was an earlier marriage between Wernicke and the Plaintiff , which the latter denied, by the Defendant’s pleadings and evidence the marriage had ended in 1999. The Plaintiff was therefore free to contract a marriage thereafter. By the sequence of events as provided by the Defendant’s attorney, the Defendant was in Ghana in January 2000 for “only three weeks” and it was during this period that he went to see the Plaintiff’s family to perform what he described as knocking rites. What the attorney described as knocking rites, the Plaintiff described it as customary marriage and admitted as such by the Defendant . This took place in January, 2000. However, the Plaintiff, according to the attorney , “was not willing to wait for the Defendant for such a long time, he (sic) immediately got married to another person by name Cross Kyei on 28th January, 2000 under the Marriage Ordinance CAP 127”. The inference and conclusion we come to is that at the time the marriage ceremony with Cross Kyei took place the Plaintiff was married to the Defendant and in the absence of any evidence that that marriage had not been dissolved, she could not 19 contract any valid monogamous marriage with any other person be it Cross Kyei or any other. It is being said that Paragraph 24 of the Amended Statement of Defence the Defendant averred as follows: “24. Defendant says that he never heard from the plaintiff again from 2002 till he received the court summons in the 2019.” – Page 80 of ROA And the Plaintiff by her Paragraph 11 of the Amended Reply and Defence to Counterclaim she responded thus: “11. In response to paragraph 24, the customary marriage collapsed in 2000 and therefore the plaintiff had nothing to do with the defendant. That is the reason why the plaintiff called for the settlement of the subject matter in dispute. From 2000 onwards the defendant never contributed a pesewa towards the building project and all expenses on the project has been borne solely by the plaintiff.” – Page 84 of ROA The effect of the said response of the Plaintiff leads to the conclusion that there was no marriage as she asserted since in her response in the said Paragraph 11 of the Amended Reply and Defence to Counterclaim she gave 2000 as the year in which the marriage collapse. This conclusion is untenable. In the same Amended Reply and Defence to Counterclaim at Paragraphs 3 and 4, the Plaintiff confirmed the year of marriage as 2000 in addition to the Paragraph 1 which affirmed the averments on the marriage in the Statement of Claim. Further, the Plaintiff repeatedly, in the said Amended Reply and Defence to Counterclaim stated that the marriage collapsed in 2005 in Paragraphs 4, 7 and 8. The evidence for her maintained 2005. The Defendant per his pleadings indicated that his dealings with the Plaintiff went beyond 2000. His admission is that 20 he ceased the relationship with the Plaintiff in 2002. The relationship he claims started in 2000. How could it collapse in 2000 as being said? Another point being raised to support the view that the Plaintiff and the Defendant were not married is that on the marriage certificate Exhibit NFAO-19 found at page 158 of the record it is indicated that the couple’s status was that they were customarily married and it should be assumed that the customary marriage predated the ordinance marriage. Based on that assumption, there could not have been an ear lier customary marriage between the Plaintiff and the Defendant. Unfortunately, we are unable to make an assumption that is not borne out either by the document or any piece of evidence. The appeal is based on the record and this cannot be a reasonable assumption or inference from it. Otherwise, we could also assume that the father of the said Cross Kyei named on the Certificate Exhibit NFAO-19 as Gabriel Yao Kyei is the same person to whom the Defendant sold his car per Paragraph 18 of the Witness Statement of the Defendant’s Attorney at page 115 of the Record of Appeal and named as Gabriel Y. Kyei in the bill of lading Exhibit NFAO-8 particularly at page 134 of the Record of Appeal. There could not be a chain of assumptions unsupported by the record of appeal. It is the sequence of events as narrated by the Defendant’s Attorney that has situated the customary marriage between the Defendant and the Plaintiff in January 2000 and before the marriage ceremony between Cross Kyei , son of Gabriel Yao Kyei, and the Plaintiff whilst there is no evidence that the marriage of the Defendant and the Plaintiff has been dissolved . The law invalidates the purported monogamous marriage between Cross Kyei and the Plaintiff because it could not be contracted whilst the customary marriage between the Defendant and the Plaintiff subsisted. The decision in Fosua & Adu-Poku v Dufie (Deceased) & Adu-Poku Mensah [2009] SCGLR 310 emphasised that documentary evidence should prevail over oral evidence where it was authentic . It also stressed the need for appellate Courts to properly scrutinize the evidence on record to see whether indeed it supports the conclusions of 21 the trial judge. Where the trial judge’s conclusions, upon such scrutiny, was not supported by the evidence on record in the overall assessment, the appellate court was not precluded from interfering in the trial Court’s decision in the interest of substantial justice. We deem it necessary in the interest of substantial justice to correct the error or omission of the trial Court in respect of the finding that a marriage existed between the Defendant and the Plaintiff, and subsisted at the time the Plaintiff and Cross Kyei celebrated the purported ordinance marriage. Under our rehearing functions, we find that the Plaintiff was validly married to the Defendant in 2000. The marriage to Cross Kyei was invalid and we so declare. Ernestina Boateng v Phyllis Serwaa & Others [2021] GHASC 19 (14 April 2021) and Serwaa v Hashimu & Anor [2022] GHASC 107 (14 April 2022). We are of the opinion that , on the balance of probabilities, the parties struck an amorous relationship from around 1994, and a customary marriage was contracted by them in 2000. They lived together as man and wife. We further conclude that the acquisition of the property and its development was a joint decision, and it was made with marriage in view. See Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 , Fenuku v John Teye [2001-200] SCGLR 985, Effisah v Ansah [2005-20060 SCGLR 943, Bisi v Tabbiri alias Asare [1987-88] 1 GLR 360 and Takoradi Flour Mills v Saamira Faris [2005-2006] SCGLR 882. We consider the issue of the contribution made by the parties to the acquisition of the land and the development of the property. Where two or more persons contribute to acquire property, they become co-owners. See Affram & Anor v Owusu-Twumasi & 2 Ors. [2023] GHASC 39 (13 Febraury 2023). With or without marriage, where a man and a woman contribute to acquire property, they become co -owners. Serwaa v Hashimu & Anor [supra] and Ernestina Boateng v Phyllis Serwaa & Others [supra]. The relationship between the parties did not start off with a marriage. We are convinced from the evidence on record that the relationship between them started 22 before 2000 and the ceremony that took place in January 2000. This was the conclusion of the trial Judge, and we agree with it. At page 287 of the Record of Appeal the trial Judge, continuing with her findings, said that “Further, the parties were known to each other at the time the land, on which the disputed land was situated was acquired.” From 1996 when the land in dispute was acquired to January 2000 when as stated above the customary marriage was contracted, the parties were lovers or in informal relationship without any formal marriage. Exhibit E , at page 102 of the Record indicates that some contribution was made by the Plaintiff to the development of the property. The contribution of the Plaintiff during this period when there was no marriage could not be discounted as per the authorities in Ernestina Boateng v Phyllis Serwaa & Others (supra), Ama Serwaa v Hashimu & Anor (supra) and Richmond Boamah Berimah v Albert Nanor & 2 Others [2021] GHASC 165 (24 March 2021). In Ernestina Boateng v Phyllis Serwaa & Others [2021] GHASC 19 (14 April 2021) the Plaintiff and the deceased husband met and entered into a relationship in Antwerp, Belgium for 9 years before they came to marry in Kumasi in 1997 in accordance with Akan Customary law. Problems developed and the Plaintiff filed for divorce in 2000. The Respondent (the man) died before completion of the action. The marriage was declared invalid but it was decided that the deceased husband held the Plaintiff’s share of the jointly acquired properties in resulting trust for the Plaintiff. See Ama Serwaa v Hashimu & Anor [2021] GHASC 151 (14 April 2021) and Richmond Boamah Berimah v Albert Nanor & 2 Others [2021] GHASC 165 (24 March 2021). Also, in Serwaa v Hashimu & Anor (supra), the parties’ relationship was intended to end in marriage and there were joint contributions therein for the acquisition of properties – movables and immovables. The relationship did not end in marriage and upon its failure, the Plaintiff instituted an action for , among others, damages for breach of promise to marry, refund of money given as loans, sharing of properties 23 jointly acquired and reimbursement with interest for cost of vehicles. The Plaintiff’s action succeeded. In the instant case, whatever contribution the Plaintiff made during the period that the parties were in relationship but unmarried would earn her a benefit in considering the parties’ shares in the property. Does the marital relationship which we have found existed between the parties change the share of the parties as determined by the trial Court? What are the powers of a court upon the dissolution of a marriage in respect of financial provisions and property settlement? What role does the mar riage relationship play in financial provision and property settlement upon a dissolution of marriage? It is in the determination of the parties’ rights or shares in respect of properties acquired during marriage that there is constitutional, statutory and case law which governs it and guides the courts. The parties in this appeal were already divorced at the time the suit commenced. The trial Court has concluded from the evidence that both parties contributed to the development of the house, though the Defendant provided the money for the acquisition of the land and commencement of the development. Tracing the development of the law on distribution of marital property upon divorce to date and examined some of the key cases determined by the Courts , we look at Articles 18 (1) and 22 (2) and (3) of the 1992 Constitution and its significance in the development of the case law. The law recognised property jointly acquired during marriage and property acquired independently by a spouse during marriage. Spouses could own property jointly during marriage and own property individually during marriage. See the cases of Quartey v Martey [1959] GLR 377, Yeboah v Yeboah [1974] 2 GLR 114, Abebrese v Kaah & Ors. [1976] 2 GLR 46, Mensah v Mensah [2012] 1 24 SCGLR 300, Quartson v Quartson [2012] 2 SCGLR 1077, Fynn v Fynn [2013 -2014] SCGLR 727 and Peter Adjei v Margaret Adjei [2021] 172 GMJ 1. Recent Supreme Court decision s include Dr. Gilbert Anyetei (substituted by) Emmanuel Tamatey Opai-Tetteh v Mrs. Sussana Anyetei [2023] GHASC 54 (2 March 2023) / Civil Appeal No. J4/67/2021 dated 2 nd March, 2023 which even dealt with recognition of foreign decisions in Ghana and the circumstances under which the Court can make property distribution orders relating to immovable properties situate outside the jurisdiction. There are decisions which take into account a spouse’s contribution especially that of a wife, to the acquisition of the land property such as supervision of the work, domestic services, and comfort for the husband. Cases such as Mensah v Mensah [supra], Quartson v Quartson [supra], Peter Adjei v Margaret Adjei [supra] and Dr. Gilbert Anyetei (substituted by) Emmanuel Tamatey Opai -Tetteh v Mrs. Sussana Anyetei [supra], are here referred to. Whilst Article 22 (3) (a) of the 1992 Constitution provides that spouses shall have equal access to property jointly acquired during marriage, Article 22 (3) (b) provides that assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon the dissolution of the marriage. The distribution of the assets upon the dissolution of the marriage is not stated to be shared equally but rather equitably. This means that whatever proportions will make it equitable will suffice. If upon examination equality will be equitable then that should be it. However, if a ratio of 60-40 or 70-30 will be equitable then so be it. It depends on the peculiar facts of each case. The decision by the Supreme Court in Mensah v Mensah [supra] did not prescribe equality for distribution of all marital property upon the dissolution of the marriage. Under the current state of the law , it is not financial contribution alone that gives a spouse a beneficial interest in property acquired during marriage. Other services 25 including household chores, warming of a spouse’s bed, and providing him with comfort also count as contribution. Time and effort spent on the acquisition of the property equally count as contribution. As in Yeboah v Yeboah and Adjei v Adjei, the acquisition of the land was before the marriage, but the development was during the marriage. The evidence reveal ed that both parties made contribution to the development of it. It is true that strict commercial principles are not used to assess these matters. In the circumstances, we find that the trial Court by excluding the marriage from her consideration disregarded a very relevant factor in the determination of the parties ’ respective contribution to the development of the property in dispute. This exclusion affected her approach in deciding on the proportions that she prescribed. The evidence does not support individual acquisition of property within marriage as in Fynn v Fynn [supra]. Apart from a decision on the properties acquired during the marriage, the trial Court had power to exercise under the Matrimonial Causes Act. 1971, (Act 367) in respect of property settlement and financial provision upon the dissolution of marriage. The contribution of the Plaintiff to the development is beyond doubt. It cannot also not be discounted that she did so in the hope of marriage to the Defendant which fortunately for her materialized. The trial Judge, by the rules on reply, rejected her attempt to claim they both contributed to acquire the land which rejection we affirm. The rest of her story is largely credible. The contribution she made, the loss of her job, the unemployment status of the Defendant which disabled him from making further contributions to the completion of the property cannot be disputed from the totality of the evidence on record. She was a wife from 2000 to 2005 per her evidence, though the Defendant put the end of any cohabitation to 2002 per his pleadings and 2000 per his evidence. With the contradiction between the pleadings and the evidence of the Defendant , there is no 26 credible challenge to the assertion of the Plaintiff th at the marriage ended in 2005. Consequently, we deem it that the marriage between the parties ended in 2005. The trial Judge narrated the contributions of the parties from the evidence on record and determined the proportions hav ing earlier decided that marriage was not a factor to be considered. She ought to have considered the issue of marriage and its effect on the proportions. In the very recent case of Mrs. Abena Pokua v Yaw Kwakye Civil Appeal No J4/17/2025 dated 7th July, 2025, the Supreme Court clarified that the determination of property settlement and financial provision under Act 367 is independent of that of parties’ shares in respect of properties acquired jointly during marriage . The Court still possesses the discretionary power to make awards under Act 367 notwithstanding a decision on the share of parties in respect of properties acquired during the marriage. It is in line with this principle that the trial Judge should have considered the issue of marriage and the Plaintiff’s relief “Any other orders that the court may deem fit” and exercised her discretionary power to cater for the support the Plaintiff provided the Defendant as a wife. Section 1 of the Matrimonial Causes Act. 1971, (Act 367) provides as follows: (1) A petition for divorce may be presented to the Court by either party to a marriage. (2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Part III of Act 367 gives the Court power to make orders regarding property settlement and financial provision. Section 20 thereof provides that: “20. Property settlement (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as 27 settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” Act 367 therefore gives the Court the discretion to make provision as above for property settlement or as part of financial provision upon a dissolution of marriage. This discretionary power of the Court is exercised independent of the law on the distribution of properties considered as jointly acquired by the spouses during the marriage. The rules governing distribution of properties acquired during marriage are not a substitute for the powers of the Court under Act 367. The Court’s power under Act 367 remains to be exercised alone or in addition to consideration of properties acquired during marriage. The Plaintiff came to court for her portion of the property because she believed she had a share in it. She came after the dissolution of marriage and according to her the Defendant had refused to sit with her to determine their respective share in the property in question. Essentially her claim was for property settlement. This could be dealt with by the court under its powers in respect of the settlement of property and financial provision under Act 367 . When property or properties acquired during marriage surfaces in the dispute, it becomes an additional matter for consideration with rules enacted and developed to govern same. The facts in this case though simple still show the elements of love, care and support worth considering in determining t he proportional share due each party in this one property at s take. A married couple now divorced with one on pension living on meagre income, and the other who lost her job and used her compensation for the further development of the property anxiously seeking to reestablish herself, how should the Court handle it to ensure a peaceful, safe and accommodating goodbye? The trial Court based the proportions on the parties respective financial contribution and on the simple ground that the Defendant contributed more than the Plaintiff so an 80-20 in favour of the Defendant was just. The Plaintiff is dissatisfied and wants 28 equality. Despite the factors raised herein which reveal an inclination on the part of this Court to revise the proportions, equality is not on the table. Counsel for the Plaintiff who attacked the trial Judge for failing to consider the issue of marriage and thereby excluding marriage services from her consideration in determining the proportionality of the shares, did not assist this Court with the kind of evidence that would have raised the Plaintiff’s share to that of equality. The simple evidence of love, support, care and concern bolstered by the commitment and faithfulness of an uncle of the Plaintiff, PW1, who ensure d that the Defendant’s money was not wasted but applied to the purpose for which the Defendant remitted it, is what we find as a base to increase the parting package of the Plaintiff who needs an alternative to resettle. Before we conclude on the proportion, we wish to touch on the issue of allocation note. The trial Court relying on Boateng (No. 2) v Manu (No. 2) & Anor. [2007 -2008] 2 SCGLR 1117 stated that an allocation note “does not represent the fact of land acquisition”. The decision in the later case of Atwere v Owusu [2011] GHASC 23(18 May 2011) which considered Boateng (No. 2) v Manu (No. 2) & Anor. (supra) held that an allocation note without more constituted a customary grant. The Defendant’s allegation of forgery against the Plaintiff and PW1 was rightly rejected especially as they failed to call the Police, the material witnesses in respect of that issue. See Total Ghana Ltd v Thompson [2011] SCGLR 458. The forgery not having been proved or prosecuted, we find it unfortunate that this matter went to the Police and especially PW1 had to go through the Police processes. Securing a document over the land was in the interest of both parties and would be useful as the case is in court and its first outcome makes the parties co-owners. The step taken by the Plaintiff to obtain a document could not be divorced from the interest she believed she shared with the Defendant especially after the customary marriage ceremony. She was securing the land for both parties. A lot of her pecuniary contributions, per Exhibit E, were in 2000, the year of marriage. She increased her support in view of the assurance provided by the marriage. 29 By finding that the trial Judge excluded a very relevant factor namely marriage and its related matters from her consideration in deciding on the proportions to be allotted to the parties, there is good ground for this Court to interfere in her decision. See Fosua & Adu-Poku v Dufie (Deceased) & Adu-Poku Mensah [supra] and Kojach Limited v Multichoice Ghana Ltd [2014] DLSC 2936. This Court’s rehearing obligation is to study the entire record to find whether the judgment under appeal was justified as supported by the evidence on record. We are also entitled to make up our minds on the facts and to draw inferences to the same extent as the trial Court could do. If there were pieces of evidence which were either overlooked by the trial Court which if it had considered would have worked in favour of the Plaintiff or the Court took into account matters it ought not to have taken into account but because it did so it worked against the Plaintiff, our duty is to correct it. From Dr. Gilbert Anyetei (substituted by) Emmanuel Tamatey Opai -Tetteh v Mrs. Sussana Anyetei [supra], per Pwamang JSC, the Court said at pages 22-23: “The evidence led in this case is stated above and our opinion of the totality of the evidence is that the wife did contribute to the acquisition of the properties. The law no longer requires a spouse to prove direct pecuniary contribution in the form of p aying part of the purchase price of the property from her own money or buying part of the building materials in the case of a house. In this case the wife testified that she was working and earning income, … As we have observed, the evidence from both parties was terse, so it is difficult to estimate proportions of their respective contributions, courts resort to the maxim equality is equity…” In all the circumstances of this case and taking all the factors of cohabitation, marriage with its related love, support, care and concern, and contributions , it is our opinion that a proportion of 70% to the Defendant and 30% to the Plaintiff is just and fair. The 30 10% taken off the Defendant’s portion and added to the Plaintiff’s share is what she obtains by reason of the marriage and the love, support, care and concern she gave to the Defendant. The appeal succeeds. The judgment of the trial Court for the sharing of the property is varied for the reasons and in the terms stated above. Consequential Orders: 1. The Land Valuation Division of the Lands Commission to value the Property within 3 (three) months from today at cost to be borne by the parties according to the ratio specified above. The Report is to be submitted to the Registrar of the Court. 2. After the submission of the Valuation Report to the Registrar, the parties shall have the first option to buy each other out subject to the condition that the Defendant shall have the first option to buy out the Plaintiff within 2 months failing which the Plaintiff shall have the option to buy out the Defendant also within 2 months. 3. Subject to 2 above, the property is to be sold by public auction and the proceeds shared by the parties according to the 70-30 ratio within 6 (six) months with the assistance of the lawyers. There is no order as to costs. SGD. KWAMINA BAIDEN, JA (JUSTICE OF APPEAL) SGD. I agree GEORGINA MENSAH-DATSA (MRS.), JA (JUSTICE OF APPEAL) 31 Concurring Opinion I have had the privilege of reading beforehand the elaborate judgment of my brother in respect of the instant appeal. Inasmuch as I concur with the conclusion that the instant appeal should be allowed by granting 30% interest in the disputed property to the Plaintiff/Appellant and 70% to the Defendant/Respondent on the bases of the contributions of the parties, I am unable to agree that marriage should be considered as a contributory factor in the property-settlement equation. On the background facts, both parties had claimed ownership interests in H/No. Plot 1 Block FX, Adoato, Kumasi. The Plaintiff/Appellant had claimed 50% interest in the disputed property, whereas the defendant Respondent had claimed 100% ownership interest in the disputed property. The trial Judge upon evaluation of the evidence before her granted 20% interest to the Appellant and 80% interest to the Respondent on the basis of their established contributions to its acquisition. Determining issue of marriage between the parties: It is not in doubt that the parties herein had, at some point in time, engaged in an amorous relationship. They were in a concubinage relationship for a while in Germany. Whereas the Appellant contended that they cohabited from 1994 to 2000, and was customarily married by the Respondent in 2000, the Respondent stated that they cohabited from 2000 to 2002. The Respondent, however, admitted that he performed a knocking ceremony in 2000 in preparation for marriage but stated that the promised marriage did not materialise. In determining whether there was a valid customary marriage between the parties, on the bases of the evidence presented by the parties, the trial court reasoned as follows: “Where Plaintiff was married to Wernicke as borne out by the name she used in contracting the marriage with Cross Kyei, and suggestion made by her lawyer, then where the said marriage was monogamous one and same is subsisting, she could not validly contract a customary marriage with the 32 defendant and further contract another marriage under the Marriages Act, 1984-1985, (Cap 127) as portrayed by the Exhibit “27” series. Section 31 of the Evidence Act, 1975 (NRCD 323) provides that “a marriage celebrated before witnesses is presumed to be valid.” Where the presumption is displaced then, in a matrimonial cause the validity or otherwise of the marriage between the parties would be pronounced upon. In this case, it seems to me that the Plaintiff’s claim of joint ownership is based on the contributions she asserts to have made and not a claim of entitlement to the property based on the acquisition of property during the subsistence of a marriage. Pages 293- 294 of the Record of Appeal (ROA) Upon recalibration of the evidence on record, I am of the firm conviction that the reasoning and conclusion reached by the trial court on the question of marriage between the parties was sound. The subsistence of a marriage between the parties could not have been favourably considered as a contributory factor in the grant of an interest in the disputed property to the Appellant. There was evidence on the record that the year (i.e., 2000) in which the Appellant claimed she got married to Respondent, without providing the specific date of the alleged customary marriage, the Appellant had contracted a valid monogamous marriage under Cap 127 at the Kumasi Metropolitan Assembly (KMA). The trial Judge identified that disability pertaining to the parties in deciding not to consider marriage as a factor in the assessment of the percentage of entitlements of each of the parties. Apparently, while it is not difficult to accept the conclusion in the judgment of my brother that the trial judge could not just infer that the Plaintiff was married to one Paul Wernicke under the ordinance, without concrete evidence of that marriage, there existed on the record an ordinance marriage certificate between one Cross Kyei and the Appellant. This marriage was contracted on 28 th January 2000 (i.e., the same year 33 the Appellant claimed the Respondent married her) and the certificate numbered KMA/147/2000 was confirmed by KMA to be authentic. A closer reading of the inscriptions on the said marriage certificate issued to the Appellant and Cross Kyei indicated that the parties had married under customary law prior to the conversion of their marriage into the ordinance marriage on 28 th January 2000. The said marriage between the Appellant and Cross Kyei was also witnessed by Francis Bugyei, a witness of the Appellant in the instant suit. The question then is when did the Respondent marry the appellant? The pleadings of the parties provide the necessary elucidation about the conflicting claims of the parties. The Appellant admitted that the purported customary marriage between her and the Respondent ended in the year 2000. In paragraph 24 of the amended statement of defence filed on 22/9/2020, the Respondent stated that: “24. Defendant says that he never heard from the plaintiff again from 2002 till he received the court summons in the 2019.” – Page 80 of ROA In an amended reply filed on 23/10/2020, the Appellant answered as follows: “11. In response to paragraph 24, the customary marriage collapsed in 2000 and therefore the plaintiff had nothing to do with the defendant. That is the reason why the plaintiff called for the settlement of the subject matter in dispute. From 2000 onwards the defendant never contributed a pesewa towards the building project and all expenses on the project has been borne solely by the plaintiff.” – Page 84 of ROA Indubitably, the Appellant knew that she was not married to the Respondent as far back as the year 2000. The testimony of the Appellant’s attorney that the parties contracted customary marriage in the year 2000 and stayed together as a married couple till 2005 was therefore inconsistent with the pleadings (i.e., amended reply) of the Appellant. The logical sequel of this is that the Appellant contracted an ordinance 34 marriage at the registry of KMA – Kumasi, knowing very well that there was no existing customary marriage between her and the Respondent. Against the backdrop of the above recounted facts, I am unable to reverse the findings made by the trial court that there was no valid customary marriage between the Appellant and the Respondent. A concubinage relationship did not constitute or equate to a valid customary marriage. In the face of the evidence that there was a subsisting ordinance marriage between the Appellant and Cross Kyei (contracted on 28th January 2000), the trial court could not have jettisoned that evidence to uphold the Appellant’s contention that she was customarily married to the Respondent from the year 2000 till 2005. Mintah v. Ampenyin [2015-2016] 2 SCGLR 1277 applied. In the result, what germanely remained for this appellate court to consider was the contributions of each of the parties to the acquisition of the disputed property. Even though I am unable to come to a conclusion that the disputed property was acquired in the course of marriage, I am however minded to consider the real substance of the matter by considering the contributions of the parties during the period of their cohabitation. That aside, in the year 2000 when the appellant stated that she was married by the respondent, the disputed property had been completed ceteris paribus. Therefore, the drawing power of a marriage should not be considered by this appellate court in assessing the extent of the contributions of the parties towards the acquisition of the disputed house. Evidence of contribution by Plaintiff/Appellant: At the trial, the Appellant called two witnesses including his lawful attorney – Seth Adu Boahen Appiah. The lawful attorney testified that it was the Respondent who initially sent 10000 Deutse Marks to Francis Bugyei (PW1) out of which 4000 Deutse Marks was used to purchase the disputed plot. For him, the remaining 6000 Deutse Marks was used by PW1 to commence construction of the disputed house. He further testified that since then, the Appellant had also expended various sums of monies on 35 the building. Among the amounts listed by the Appellant’s attorney as having been expended by the appellants on the disputed property, the only receipt presented was exhibit ‘D’ – receipt with an amount of GHC10,000 used in purchasing doors. See pages 183-184 of ROA PW1 in the person of Francis Bugyei testified that the parties sent various sums of monies over a period of time to him for the construction of the disputed house. PW1 tendered as exhibit ‘E’: a written extract of monies received from the parties from 1996 to 2000. On the said extract, PW1 indicated the remittances from the Appellant against her name. It followed therefore that the amounts which were not identified to a named person on exhibit ‘E’ were remitted by the Respondent. And also, the extract of remittances presented by the Appellant’s witness confirmed that it was the Respondent who made a more significant contribution to the acquisition of the disputed property. The above conclusion is consistent with the admissions by the PW1 under cross - examination on 17th June 2022: “Q: From exhibit ‘E’ the amount of 10,552,000.00 old cedis allegedly remitted to you on the 28th day of May 1996 was remitted by who? A: Yaw Agyarko, the defendant. Q: Can you read and write? A: Yes Q: From your extract of remittances thus exhibit E, there is an amount 2,800,000.00 old cedis, can you tell this court the date that that amount was supposedly remitted to you? A: 28th day of august 1996 Q: Can you tell the court who made the remittances to you? 36 A: Yaw Agyarko, the defendant. Q: On the 7th day of October 1996, an amount of 5,000,000.00 old cedis was also allegedly remitted to you by the defendant Yaw Agyarko. Is that not so A: It is so Q: On the 11 th day of November 1996, again the defendant Yaw Agyarko allegedly remitted an amount of 8,500,000.00 old cedis to you. Is that not so A: Yes it is Q: From exhibit E there is an amount of 3,500,000.00 old cedis can you tell the court the date that said amount was allegedly remitted to you? A: In December 1996 Q: Was that also remitted to you by the defendant? A: Yes Q: You will then agree with me that between the 28 th day of May 1996 and December 1996, from your own Exhibit ‘E’, the defendant had remitted to you a total amount of 30,352,000.00 old cedis. Is that not so? A: Yes” Pages 197- 199 of ROA Evidence of contribution by the Defendant/Respondent: The case of the Respondent at the trial Court was that he acquired the disputed property in 1996 before he met the Appellant. The Respondent testified through his lawful attorney in the person of Nana Yaw Kusi. He stated that he acquired the disputed plot with the assistance of one Francis Bugyei (PW1) at a price of 4000 Deutse Marks. The Respondent stated that he sent an initial total of 10000 Deutse Marks to PW1, and the excess amount of 6000 Deutse Marks was used to commence construction of the disputed house, such that by the year 2000 the house had been roofed. This claim by the Respondent that he remitted 10000 Deutse Marks to purchase 37 the disputed plot and to commence the construction of the disputed property was confirmed by the appellant’s attorney and PW1. The Respondent’s attorney further testified that he made additional transfers and gave other monies to PW1. The Respondent tendered evidence of the bank transfers made to PW1 between 1996 and 1999 as exhibits NFA0 -4, NFA0-6, NFA0-9, and NFA0-10. The Respondent also provided evidence of cars he shipped from Germany to PW1 and Gabriel Kyei – exhibits NFA0-7 and NFA0-8 – and contended that the proceeds from the two the cars were used by PW1 towards the completion of the disputed house. Analysis of ownership interest of the parties: It was on the bases of the above evidence that the Appellant claimed 50% ownership interest in the disputed property. The Respondent on the other hand claimed 100% ownership interest in the disputed property. The trial Judge, upon assessment of the evidence, reasoned that: “On the ownership of the structure (disputed property) on the land, I find that same was acquired jointly by the parties. However, the Court finds that the Defendant’s contribution is enormous and the Plaintiff’s contribution, where mathematics comes in handy as an aid, being a smaller percentage.” Consequently, the trial judge granted 20% ownership interest to the Appellant and granted 80% ownership interest to the Respondent. In support of the ratio of ownership interests allocated to the parties, the trial court established that the contributions of the Respondent to the acquisition of the disputed property was ‘enormous’ as against ‘a smaller percentage’ of contribution by the Appellant. Indeed, the evidence of the Appellant’s witness (PW1), as set out supra, confirmed that the Respondent provided a lion’s share to the acquisition of the disputed property. PW1, as the receiver of the remittances from the parties between 1996 and 2000, was a material witness in the scheme of things, and his testimony corroborated that of the respondent. As held by Ollennu J (as he then was) in Tsrifo v. 38 Dua VIII [1959] GLR 63 : where the evidence of one party on an issue in a suit is corroborated by the witness of his opponent, a court ought to accept the corroborated version in preference to the uncorroborated version. See also Banahene v. Adinkra & Others [1976] 1 GLR 346 and Osei Yaw v. Domfeh [1965] GLR 418 SC. On the totality of the evidence, the relatively enormous contribution of the Respondent should translate into about 70% ownership interest in the disputed property. In percentage terms, the Appellant should be granted 30% interest in the disputed property whereas the Respondent be granted 70% ownership interest. On that score, the instant appeal should be allowed in terms of the allocation of ownership interests to the parties, taking into account the contributions of the parties. SGD. DR. POKU ADUSEI, JA (JUSTICE OF APPEAL) COUNSEL: STEPHEN ADADE-BOAFO ESQ. FOR THE PLAINTIFF/APPELLANT RAPHAEL DARKO ESQ. WITH MAAME AFUA SAKYIWAA ASAASIE OPPONG ESQ. FOR THE DEFENDANT/RESPONDENT