YEBOAH VRS YEBOAH AND ANOR (J4/7/2026) [2026] GHASC 5 (29 April 2026)

pg. 1 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA-AD 2026

Coram

LOVELACE-JOHNSON (MS.) JSC (PRESIDING) PROF. MENSA-BONSU (MRS.) JSC ADJEI-FRIMPONG JSC DZAMEFE JSC ACKAAH-BOAFO JSC

Civil Appeal

NO. J4/7/2026

29TH APRIL, 2026

VIDA YEBOAH ………. PETITIONER/APPELLANT/RESPONDENT

VRS

DR. STEPHEN YEBOAH ……… RESPONDENT/RESPONDENT/RESPONDENT

AND

MERCY AGYEIWAA ……….. APPLICANT/RESPONDENT/APPELLANT

pg. 2 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT

Judgment

ACKAAH-BOAFO JSC: i. Overview:

[1] My Lords, having regard to the facts presented in this interlocutory appeal, which arises from a petition for divorce filed by the Petitioner, and the question for our determination, I consider it appropriate to commence my opinion with the old statement of law by Scrutton L.J. in Hyman v. Hyman; Hughes v. Hughes1, to the effect that: “The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage. The Court does not, as other Courts do, act on mere consents or defaults of pleading, or mere admissions by the parties.”

[2] I understand the above statement to mean that, in a divorce petition, even where both parties agree to separate or admit certain facts, the court will not automatically grant a decree of divorce merely because such an agreement exists. This is because marriage constitutes a legal status with public consequences, and its dissolution requires judicial scrutiny beyond the mere agreement of the parties.

[3] This is an appeal against the judgment of the Court of Appeal dated 9th May 2024, by which that court set aside the ruling of the High Court delivered on 1st July 2021, by which the Applicant/Respondent/Appellant was joined to the divorce petition instituted between the Petitioner, Vida Yeboah, and the Respondent, Dr. Stephen Yeboah.

1 [1929] p.1, at p.30. pg. 3 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT

[4] For ease of reference, Vida Yeboah, the wife who instituted the divorce petition, shall hereinafter be referred to as “the Petitioner”; Dr. Stephen Yeboah, her husband, as “the Respondent”; and Mercy Agyeiwaa as “the Appellant” in this appeal.

[5] The Appellant has invoked the appellate jurisdiction of this Honourable Court, seeking an order to set aside the judgment of the Court of Appeal and to restore the ruling of the High Court which granted her application for joinder to the suit.

[6] My Lords, in this appeal, this court is not called upon to determine the substantive action, but rather to resolve an interlocutory issue — namely, whether the alleged adulterer, the Appellant, is a necessary party to the pending divorce petition before the High Court, Agona Swedru. In light of the divergent positions adopted by the two lower courts on the question of joinder, this Court, being the final appellate court, is tasked with determining whether the Appellant ought to be joined as a party to the suit.

ii. Brief Background Facts:

[7] On 26th April 2019, the Petitioner, through counsel, filed a petition for divorce at the High Court, Agona Swedru. At paragraph 27 of the petition, the Petitioner asserted that “during the subsistence of the marriage, the Respondent engaged in various acts of adultery and has continued in such conduct to the extent that the Petitioner can no longer reasonably be expected to live with the Respondent as husband and wife.”

[8] The Petitioner further particularised the alleged adultery by naming the Appellant and averred that the adulterous relationship was “a matter of public knowledge within Gomoa Oguakrom, particularly in the vicinity of the matrimonial home.” The Petitioner additionally averred that the Respondent claimed that his relationship with Mercy Agyeiwaa was in the nature of a customary marriage. The pg. 4 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT Petitioner also pleaded several instances of unreasonable behaviour on the part of the Respondent.

[9] The Respondent entered appearance and filed an Answer on 20th May 2019, in which he denied, at paragraph 2, that the marriage had broken down beyond reconciliation. He further denied the allegations contained in paragraph 27 of the petition concerning adultery with Mercy Agyeiwaa.

[10] On 7th June 2021, the Appellant applied to the High Court to be joined to the suit as a second Respondent (co-respondent). The grounds of the application were that she had been named as a party to an alleged adulterous relationship with the Respondent and that the law permitted her joinder. She averred that she had, in fact, married the Respondent as his second wife under customary law on 15th July 2012 and had since cohabited with him openly.

[11] She further contended that any purported ordinance marriage ceremony of 30th January 2014 between the Petitioner and the Respondent was a nullity, as she was already married to the Respondent under customary law. Finally, she asserted that the Petitioner was not entitled to the claimed 50% share of the properties of the marriage, as she (the Appellant) had also contributed to their acquisition through her own enterprise.

[12] The Petitioner opposed the application by an Affidavit in Opposition filed on 25th June 2021, wherein, at paragraphs 6 and 7, she reiterated her assertion that the Appellant and the Respondent were engaged in an adulterous relationship.

iii. The Decision of the High Court: pg. 5 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT

[13] After hearing submissions from counsel on both sides in respect of the application for joinder, the learned trial Judge, on 1st July 2021, granted the application in the following terms:

“Having heard the submissions of both counsel, I am of the view that the said Applicant, Mercy Agyeiwaa, ought to be joined to the suit. Her name was expressly mentioned in the petition filed on 26th April 2019 under the particulars of adultery pleaded by the Petitioner/Respondent. Pursuant to Order 65 rule 7 of C.I. 47 and Section 12 of the Matrimonial Causes Act, 1971 (Act 367), it is provided that a person named in a petition as an adulterer may be made a co-respondent in the proceedings. I will therefore order that the Applicant be joined to the suit to ensure that all matters in controversy are effectually determined. The suit shall proceed in the normal course. Costs in the sum of GH¢1,000.00 are awarded against the Applicant in favour of the Petitioner.”

[14] From the foregoing, it is evident that the trial Court grounded its ruling primarily on two considerations: first, that the Applicant had been expressly named in the particulars of adultery; and second, that by virtue of Section 12 of the Matrimonial Causes Act, 1971 (Act 367) and Order 65 rule 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), she was amenable to being joined as a party, with a view to ensuring that all issues in controversy are effectually and completely determined.

iv. The Appeal to the Court of Appeal:

[15] Aggrieved by the ruling of the trial High Court, the Petitioner lodged an appeal to the Court of Appeal. In its judgment delivered on 9th May 2024, the Court of Appeal pg. 6 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT allowed the appeal, set aside the joinder order made on 1st July 2021, and awarded costs in the sum of GH¢20,000.00 in favour of the Petitioner as against the Appellant.

[16] In arriving at its decision, the first appellate court, upon consideration of the submissions of the parties and the record before it, identified the central issue for determination as whether the joinder of Mercy Agyeiwaa was necessary for the proper adjudication of the question of whether the marriage between the petitioner and the respondent had irretrievably broken down. The court answered this question in the negative, holding that, having regard to the nature of the proof required under section (1) of Act 367, such joinder was unnecessary.

[17] The first appellate court also held that adding the Appellant as a party, regardless of the nature of the marriage or her relationship with the Respondent , would merely divert attention from the substantive issues in dispute and needlessly complicate the proceedings. The Court therefore concluded that the joinder application should not have been allowed and, on that basis, set aside the trial court’s

Order

v. The Instant Appeal:

[18] The Appellant, being dissatisfied with the judgment of the Court of Appeal, has accordingly filed the instant appeal by way of a Notice of Appeal filed on 23rd May 2024, and prays this Honourable Court to set aside the decision of the first appellate court on the following grounds:

Grounds of Appeal

i. The judgment is against the weight of evidence. ii. That the Court of Appeal, Accra, lacked jurisdiction at the time of delivering its judgment in light of the Chief Justice’s directive of transferring all cases from the Central and Western Regions to the Court of Appeal, Sekondi. pg. 7 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT iii. That the Court of Appeal erred by holding that the presence of the Applicant in the suit is not relevant to resolve the issue of whether the marriage has broken down beyond reconciliation. iv. Additional grounds may be filed on receipt of the record of proceedings. See pages 57-58 of the ROA, Volume 2

vi. Summary of Arguments of the Parties:

[19] My Lords, I gather from the materials filed, namely, the statements of case, that, in this appeal, the battle lines are drawn between the Appellant and the Petitioner. The Respondent has elected to let them contest the matter without participating in this issue of joinder.

[20] From the foregoing grounds of appeal, I propose to address first the omnibus ground of appeal, being Ground I of the Notice of Appeal, and to determine its applicability. I will then consider Ground III, which concerns whether the presence of the Appellant was necessary for the just determination of the issues before the Court. Ground II, which raises a distinct issue of jurisdiction, will thereafter be considered. I will first set out below a summary of the parties’ arguments.

vii. Appellant’s Case:

[21] Counsel for the Appellant submits, on the omnibus ground, that the Court of Appeal failed to consider the totality of the affidavit evidence placed before it. Specifically, the Appellant contends that her Affidavit in Support of the joinder application clearly established that the Appellant was married to the Respondent under customary law, thereby casting doubt on the Petitioner’s allegation of adultery. Furthermore, having been expressly named in the petition, the Appellant ought to be afforded the opportunity to vindicate her reputation as a married woman of standing, pg. 8 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT rather than be portrayed as a person of immoral character intent on sowing discord between the Petitioner and the Respondent.

[22] The Appellant further contends that the Court of Appeal misapprehended section 2(1)(a) of Act

367. Counsel submits that the court erred in holding that her joinder was unnecessary for the determination of whether the marriage had broken down. The Appellant maintains that, since the Petitioner’s principal ground for alleging the breakdown of the marriage is the Respondent’s purported adultery with the Appellant, her participation is essential for a full and effectual determination of that issue. It is further submitted that, if the Appellant is found to have been validly married to the Respondent under customary law, the allegation of adultery would thereby be resolved. The Appellant also asserts that a claim that a marriage has broken down beyond reconciliation cannot be sustained in the absence of proof of any of the facts enumerated under section 2(1) of Act 367.

[23] The Appellant additionally relies on Order 65 Rule 7 of C.I. 47, which expressly entitles a named alleged adulterer to appear and intervene in proceedings. Reliance is also placed on Order 4 Rule 5(2)(b) of C.I. 47, as well as the decision of this Court in the Presidential Election Petition case [2013] SCGLR 1 (Special Edition), in support of the proposition that the governing principle of joinder is to ensure that all necessary parties are brought before the court so that all matters in controversy may be effectually and completely determined.

[24] On Ground II of the Grounds of Appeal, by which the Appellant challenges the jurisdiction of the first appellate court to entertain the appeal, the Appellant contends that, pursuant to a directive issued by the Honourable Chief Justice on 15th April 2024, under the hand of the Judicial Secretary, all appeals emanating from the Central and Western Regions were to be heard by the Court of Appeal, Sekondi, with effect from 8th April 2024. The Appellant further argues that, as the impugned judgment was pg. 9 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT delivered on 9th May 2024, after the said directive had come into force, the Court of Appeal, Accra, lacked the requisite jurisdiction to deliver the judgment at that time.

viii. The Petitioner’s Submissions:

[25] In support of the Petitioner’s case, learned Counsel for the Petitioner submits on the omnibus ground, that this ground is inapplicable in interlocutory appeals where no viva voce evidence was led at the trial, relying on Atuguba & Associates v. Scipion Capital (UK) Ltd, Civil Appeal No. J4/04/2019, dated 3rd April 2019, and Zikpuitor & Ors v. Attorney -General (2019) 130 GMJ

179. Notwithstanding this contention, Counsel proceeds to address the ground on its merits, arguing that the Court of Appeal correctly and meticulously evaluated the entirety of the affidavit evidence and rightly concluded that the Appellant’s affidavit failed to address the central question of the breakdown of the marriage.

[26] The critical issue, according to Counsel, is whether the marriage between the Petitioner and the Respondent has broken down beyond reconciliation, and this issue may be determined independently of the Appellant’s participation. Indeed, according to Counsel, the Appellant herself concedes in her submissions that “it is not the duty of the Appellant to lead evidence to show that the Respondent had committed adultery with other women.” In the circumstances, it is the case of the Petitioner that the Court of Appeal was right in its findings.

[27] On the substantive question of joinder, the Petitioner contends that the applicable test is one of necessity, such that only parties whose presence is essential to the effectual and complete determination of all matters in dispute may be joined. In support of this position, reliance is placed on Sam (No. 1) v. Attorney-General [2000] SCGLR 102, In re Presidential Election Petition (supra), and Vandervell Trustees v. White [1970] 3 W.L.R.

452. It is submitted that the Appellant has failed to satisfy this threshold. Counsel submits that the critical issue before the Court remains whether pg. 10 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT the marriage has broken down beyond reconciliation — a question which, it is argued, can be adjudicated entirely on the evidence of the Petitioner and the Respondent, without the participation of the Appellant. Her role, if any, is merely evidentiary as a witness and does not entitle her to be joined as a party to the proceedings.

[28] The Petitioner further contends that section 2(1)(a) of Act 367 requires the Petitioner to establish two elements: (i) that the Respondent committed adultery; and (ii) that, by reason of such adultery, the Petitioner finds it intolerable to live with the Respondent. It is argued that the presence of the Appellant is not required to establish either of these elements, as they are matters to be proved by the parties to the marriage.

[29] In response to Ground II of the grounds of appeal, the Petitioner argues that a fundamental distinction exists between jurisdiction and venue, the latter being an administrative matter. The Court of Appeal is established as a single court by Article 126(1)(a)(ii) of the 1992 Constitution, with nationwide jurisdiction pursuant to Article 137(1). The administrative directive issued by the Chief Justice relates to venue rather than jurisdiction and cannot operate to divest the Court of Appeal, Accra, of i ts constitutionally and statutorily conferred jurisdiction.

[30] Finally, the Petitioner submits that, even if the directive were to be construed as affecting venue, the Appellant failed to raise any objection thereto at the earliest opportunity while the matter was pending before the Court of Appeal, and is therefore deemed to have waived any such objection, reliance being placed on Yaro v. Duho [1982–83] GLR 1064.

ix. The Law, my Opinion and Analysis:

[31] My Lords, we are invited by the Appellant to review the Record of Appeal (ROA), to place ourselves in the position of both the trial court and the first appellate pg. 11 YEBOAH v. YEBOAH v AGYEIWAA.JUDGMENT court, and to arrive at a conclusion different from that reached by the first appellate court on the issue of joinder. Before addressing that issue, however, I observe that Counsel for the Petitioner has questioned the applicability of the omnibus ground of appeal in the present matter. Counsel has referred to prior decisions of this Court in support of the submission that Ground I of the Appellant’s appeal is inapplicable.