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

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.

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

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:

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,

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.

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

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.

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

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

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

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

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

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