ERNESTINA BOATENG vs. PHYLLIS SERWAH, BOAMPONG NYAMEKYE AND MARK ADU PREMPEH JNR [2021]DLSC10165

ERNESTINA BOATENG vs. PHYLLIS SERWAH, BOAMPONG NYAMEKYE AND MARK ADU PREMPEH JN... [2021]DLSC10165

Date	2021-04-14
Suit No.	CIVIL APPEAL NO. J4/08/2020
Citation No.	[2021]DLSC10165

BAFFOE-BONNIE JSC (PRESIDING)

PWAMANG JSC

MARFUL-SAU JSC

AMEGATCHER JSC

TORKORNOO (MRS.) JSC

O. K. OSAFO-BUABENG ESQ WITH HIM PETRINA DEPHIA FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

EDWARD DARLINGTON ESQ WITH HIM VICTORIA ENCHILL FOR THE DEFENDANTS/ APPELLANTS/RESPONDENTS

[2021]DLSC10165
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													<main id="main" class="content" style="min-height: 60rem" >ERNESTINA BOATENG<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>PHYLLIS SERWAH, BOAMPONG NYAMEKYE
AND MARK ADU PREMPEH JNR<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL
APPEAL NO. J4/08/2020&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
14TH APRIL, 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>O. K. OSAFO-BUABENG ESQ WITH HIM PETRINA DEPHIA
FOR THE PLAINTIFF/RESPONDENT/APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

EDWARD
DARLINGTON ESQ WITH HIM VICTORIA ENCHILL FOR THE DEFENDANTS/
APPELLANTS/RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>BAFFOE-BONNIE JSC (PRESIDING), PWAMANG JSC,
MARFUL-SAU JSC, AMEGATCHER JSC, TORKORNOO (MRS.) JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;PWAMANG,
JSC:-<o:p></o:p>My
Lords, the proceedings that have culminated in this appeal were commenced in
the High Court, Accra on 2nd January, 2009 but are a sequel to a
partly-heard matrimonial case in that court which was struck out on 31st
July, 2007 following the death of the respondent therein, Mark Adu Prempeh (the
Deceased). The plaintiff/respondent/appellant (the plaintiff) herein and the
deceased met and entered into a relationship in Antwerp, Belgium in 1988 and
the relationship lasted for nine years before they came to marry at Kumasi in
1997 in accordance with Akan custom. Problems developed in the relationship in
2000 causing the plaintiff to file a divorce petition against the deceased
praying for dissolution of the marriage and also for declaration of joint
ownership of two landed properties situate at Tantra Hill and Adabraka, both in
Accra. In his defence in the divorce case the deceased disputed the validity of
the marriage and denied the plaintiff’s claim of joint ownership of the
properties. &nbsp;He counterclaimed for
annulment of the purported marriage and for a declaration of exclusive ownership
of the two properties. <o:p></o:p>The
deceased claimed that after their marriage he got to know that the plaintiff
was in a subsisting monogamous marriage at the time of their customary marriage
which made their marriage void so he
separated from her that same year they married. In a reply to the defence the
plaintiff denied that they separated and stated that the deceased was all along
aware of her earlier monogamous marriage which she said was only for purposes
of immigration documents and not a proper marriage. Extensive evidence was led
about the marriages and the acquisition of the two properties. Unfortunately,
when the trial was almost ending the respondent died in a motor accident on 17th
February, 2007. &nbsp;On his death the &nbsp;defendants/appellants/respondents (the defendants)
herein claiming as surviving spouse, customary successor and eldest son
respectively, applied and were granted Letters of Administration over his
estate including the two properties that were subject matter of the pending matrimonial
case. The plaintiff therefore applied to substitute the defendants for the
deceased so the case could be concluded. The court initially granted the
application but subsequently it discharged the order of substitution and struck
out the suit on the application of the defendants who argued that divorce
proceedings are in personam so the plaintiff’s
cause of action did not survive the death of the respondent. The plaintiff filed
an appeal against that&nbsp; ruling but later
withdrew it. As will soon become evident, though the first case was a matrimonial
one the parties joined issue on ownership of properties so this was not a
divorce case simpliciter that ended
with the death of one of the parties. The plaintiff’s cause of action in
respect of the ownership of the properties certainly survived the death of her
husband so the action ought not to have been struck out. Anyway, the plaintiff
did not pursue her appeal against the striking out but rather commenced a fresh
action and claimed for the following reliefs which make reference to the
earlier suit;<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration that the plaintiff herein as the legal
wife of Mark Adu Prempeh as at 17th February 2007 became the lawful widow of
same upon his death on that date.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration that since the Divorce petition in
which the plaintiff had prayed the court to grant her joint share in the
properties acquired during the subsistence of their marriage was still pending
before the court, the court’s ruling that her prayer before the court died with
the husband was totally wrong in law and equity.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;