ENOCK ANANE V ELLEN GYAAMAH OSEI
MAVIS AKUA ANDOH (MRS.)
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Prolonged Separation – Custody – Maintenance – Alimony – Burden of Proof. This case concerns a petition for divorce under the Matrimonial Causes Act, 1971 (Act 367), in which the Petitioner sought the dissolution of his marriage to the Respondent on the ground that it had broken down beyond reconciliation. Initially, the petition was filed through an attorney, but prior to trial, the Petitioner successfully applied to revoke the power of attorney and proceeded to testify personally. The parties were married under the Marriage Ordinance in February 2016 in Kumasi and cohabited briefly before the Petitioner relocated to the United Kingdom. The marriage produced one child. The Petitioner alleged that the Respondent’s unreasonable behaviour, such as emotional outbursts, lack of cooperation, and denial of access to the child, rendered the continuation of the marriage untenable. He sought dissolution of the marriage, custody of the child to the Respondent with access to himself, the right to name the child, and an undertaking to bear the child’s maintenance and educational expenses. The Respondent, in her Answer and cross-petition, also prayed for dissolution, custody, maintenance, reimbursement of expenses, and substantial alimony. The principal issue before the court was whether the marriage had broken down beyond reconciliation, as required under section 1(2) of Act 367. In evaluating this, the court considered whether the Petitioner had established any of the statutory facts under section 2(1), particularly unreasonable behaviour. The court held that the Petitioner failed to prove that the Respondent’s conduct, such as complaints over social media gestures, financial disagreements, and communication breakdown, amounted to grave and weighty misconduct sufficient to satisfy the legal threshold. These incidents were characterized as ordinary wear and tear of marital life rather than conduct making cohabitation unreasonable. Similarly, the Respondent’s allegations in her cross-petition, including claims that the Petitioner had concealed prior relationships and children, were unsupported by evidence. The court emphasized the principle that mere assertions, even if repeated under oath, do not amount to proof without corroborating evidence. Despite the failure of both parties to establish fault-based grounds, the court found that the marriage had broken down beyond reconciliation on the basis of prolonged separation. The evidence showed that the parties had lived apart for approximately five years, had no conjugal relations during that period, and had made unsuccessful attempts at reconciliation. This satisfied section 2(1)(e) of Act 367, which recognizes continuous separation for at least five years as sufficient proof of breakdown. Accordingly, the court granted a decree of divorce. Following the dissolution, the court addressed the ancillary issues, beginning with the Petitioner’s request to name the child. Relying on the Children’s Act, 1998 (Act 560), the court emphasized the child’s right to a name and upheld the customary principle that the father has the responsibility to name a child. Since the Respondent had named the child without the Petitioner’s involvement, the court held that the Petitioner was entitled to perform the naming, subject to customary requirements and within three months of the judgment. On custody, the court applied the welfare principle, holding that the best interests of the child are paramount. Given that the child had always lived with the Respondent in Ghana and had minimal contact with the Petitioner, the court granted custody to the Respondent to ensure stability and continuity. The Petitioner was granted reasonable access, including physical visits when in Ghana or the UK and regular virtual communication. Regarding maintenance and financial responsibilities, the court reiterated that both parents share responsibility for the upkeep of a child. Although the Respondent sought reimbursement for past expenses, she failed to provide sufficient evidence to substantiate her claims beyond limited receipts. Consequently, the court declined to order reimbursement. However, since the Petitioner expressed willingness to assume financial responsibility, the court ordered him to pay monthly maintenance of GH¢2,000 and to bear the child’s educational and medical expenses going forward. On the issue of alimony, the court considered the short duration of cohabitation and the lack of evidence of substantial joint contributions. While it declined to grant the large sum requested by the Respondent, it accepted the Petitioner’s offer and awarded a lump sum of GH¢20,000 as alimony. In conclusion, the court dissolved the marriage based on prolonged separation rather than proven misconduct, and made orders aimed at safeguarding the welfare of the child and achieving fairness between the parties. Custody was granted to the Respondent, financial responsibilities were primarily placed on the Petitioner, and a modest alimony award was made, with each party bearing their own legal costs.
EMELIA AMANKWAH V NICHOLAS AMANKWAH
MAVIS AKUA ANDOH (MRS.)
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Burden of Proof – Property Distribution – Custody and Maintenance. The judgment concerns a petition for the dissolution of an ordinance marriage under Ghanaian law, specifically governed by the Matrimonial Causes Act, 1971 (Act 367). The Petitioner commenced the action on 9 January 2020, seeking a divorce on the ground that the marriage had broken down beyond reconciliation, alongside ancillary reliefs relating to property distribution, custody, and maintenance of the parties’ four children. The Respondent opposed the petition and filed a cross-petition, similarly alleging that the breakdown of the marriage was attributable to the Petitioner’s conduct. The parties were lawfully married in 2005 and lived together as husband and wife for several years, during which they acquired properties and had four children. Over time, the relationship deteriorated, leading to separation and unsuccessful attempts at reconciliation by family members. The Petitioner alleged that the Respondent’s conduct, particularly acts of alleged adultery, emotional distress, and incidents such as driving her out of the matrimonial home, made continued cohabitation intolerable. The Respondent, however, denied these allegations and attributed the breakdown of the marriage to the Petitioner’s alleged disrespectful and humiliating behaviour. The central issue before the court was whether the marriage had broken down beyond reconciliation, which is the sole ground for divorce under section 1(2) of Act 367. In determining this, the court considered whether any of the statutory facts outlined in section 2(1) had been established, including adultery, unreasonable behaviour, or prolonged separation. On the allegation of adultery, the court held that the Petitioner failed to discharge the burden of proof. Although she testified to having caught the Respondent in compromising circumstances with another woman, the court found that her evidence lacked corroboration and did not meet the required standard of proof, even on a balance of probabilities. The court emphasized that allegations of adultery, while often proved by circumstantial evidence, must be supported by cogent and convincing evidence, which was absent in this case. Regarding unreasonable behaviour, the court examined the incidents cited by the Petitioner, including being ejected from the matrimonial home and the Respondent breaking a door during a dispute. The court concluded that these incidents, whether considered individually or collectively, did not rise to the level of grave and weighty misconduct required by law to establish unreasonable behaviour. Instead, they were characterized as part of the ordinary wear and tear of marital life. Similarly, the Respondent’s counter-allegations of misconduct by the Petitioner were not substantiated with sufficient evidence. As such, neither party successfully proved fault-based grounds for divorce under the Act. Nevertheless, the court found that the marriage had irreconcilably broken down based on the fact that the parties had lived apart for approximately four years and that all efforts at reconciliation had failed. Although the statutory five-year separation period under section 2(1)(e) had not been met, the court relied on section 2(1)(f), which allows for dissolution where the parties, despite diligent efforts, have been unable to reconcile their differences. On this basis, the court granted the decree of divorce. Following the dissolution, the court addressed the ancillary matters. On property settlement, the court applied the principle that property acquired during marriage is presumed to be jointly owned and should be distributed equitably. Due to insufficient evidence regarding the acquisition of the properties, the court relied on this presumption. The three-bedroom matrimonial home at Kwabenya was awarded to the Petitioner to enable her continue caring for the children, while the six-bedroom house and two plots of land were awarded to the Respondent. The court rejected the Respondent’s claim that the matrimonial home should be vested in the children, noting that the law does not provide for direct ownership of matrimonial property by children in divorce proceedings. On the issue of custody, the court prioritized the welfare and best interests of the children. Given that the children had been living with the Petitioner for several years, custody was granted to her, with reasonable access afforded to the Respondent, including weekend visits and shared holidays. The arrangement was intended to ensure continuity and stability in the children’s upbringing. With respect to maintenance, the court reaffirmed that the responsibility for the upkeep of children is a joint obligation of both parents. However, taking into account the circumstances of the parties and the Petitioner’s role as primary caregiver, the court ordered the Respondent to pay monthly maintenance of GH¢3,000 for the children. Additionally, both parties were directed to share responsibility for educational and medical expenses, with the Respondent bearing 80% of school fees and the Petitioner 20%. In conclusion, the court granted the divorce on the basis of irreconcilable breakdown of marriage due to failed reconciliation efforts, despite the failure to prove specific matrimonial offences. It further made equitable orders regarding property distribution, custody, and maintenance, guided by statutory provisions and the overarching principle of fairness and the best interests of the children.
ALEXANDER MENSAH HAGAN VRS. MRS. ADWOA OFOSUA HAGAN
HIS LORDSHIP JUSTICE EMMANUEL A. LODOH
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Burden of Proof – Unchallenged Evidence – Consent Judgment. The case concerns a petition for divorce filed by the Petitioner on 15th December 2022 under the Matrimonial Causes Act, 1971 (Act 367) and the High Court (Civil Procedure) Rules, 2004 (C.I. 47) seeking the dissolution of his marriage to the Respondent on the ground that the marriage had broken down beyond reconciliation. The parties contracted an ordinance marriage on 1st May 1999 at the Grace Temple of ICGC, Cape Coast, and the union produced three children, one of whom was an adult at the time of the proceedings while the others were minors. In response to the petition, the Respondent filed an answer and a cross-petition seeking custody of the children, maintenance, alimony, and distribution of several landed properties acquired during the subsistence of the marriage. Although she initially indicated during pre-trial that she did not desire the dissolution of the marriage, her pleadings and evidence revealed significant dissatisfaction with the marital relationship. The principal issue before the court was whether the marriage had broken down beyond reconciliation within the meaning of section 1(2) of Act 367. This required the court to determine whether the Petitioner had established any of the statutory grounds under section 2(1), particularly whether the Respondent had behaved in such a way that the Petitioner could not reasonably be expected to live with her, and whether, on the totality of the evidence, the marriage could be said to be irretrievably broken. A further issue arose as to the evidential burden on both parties in proving their respective allegations, including claims of adultery and unreasonable behaviour. In its judgment, the court held that the marriage had indeed broken down beyond reconciliation and accordingly granted the petition for divorce, dissolving the marriage between the parties. The court further adopted the terms of settlement filed by the parties as a consent judgment in respect of all ancillary matters, including custody, maintenance, and property distribution. In reaching its decision, the court first addressed the burden of proof, emphasizing that each party bore the responsibility of proving the allegations they asserted in their pleadings, in line with established principles of civil evidence. The court then examined the allegations of adultery made by the Petitioner against the Respondent and found that they were not substantiated by any credible evidence. The court noted that allegations of adultery require a high degree of proof and cannot be established merely by repetition of claims without supporting circumstances. Consequently, the Petitioner’s claim of adultery against the Respondent was dismissed as unproven. However, the court found that other allegations of unreasonable behaviour made by the Petitioner against the Respondent were not challenged during cross-examination and were therefore deemed admitted. Conversely, the Respondent’s allegations of adultery against the Petitioner were neither denied in his pleadings nor challenged during cross-examination. Applying the principle that unchallenged evidence is deemed admitted, the court accepted that the Petitioner had engaged in adulterous conduct. Additionally, the Respondent’s evidence of emotional distress, neglect, lack of communication, and deterioration in the marital relationship was also unchallenged and supported a finding of unreasonable behaviour on the part of the Petitioner. The court further considered the overall state of the marriage, particularly the persistent breakdown in communication, unresolved conflicts spanning approximately five years, and the failure of multiple reconciliation efforts by family members and religious leaders. Despite the Respondent’s stated reluctance to dissolve the marriage, her own testimony revealed that the relationship had caused her emotional pain and dissatisfaction. The court therefore found a clear inconsistency between her expressed desire to maintain the marriage and the reality of the parties’ relationship as demonstrated by the evidence. Taking into account the mutual allegations of intolerable conduct, the prolonged period of unresolved conflict, and the failure of reconciliation efforts, the court concluded that the marriage had irretrievably broken down. It held that the parties’ conduct towards each other had created a toxic and unhealthy marital environment in which neither party could reasonably be expected to continue living as husband and wife. With respect to the ancillary reliefs, the court noted that the parties had reached an agreement and filed terms of settlement prior to judgment. Consistent with established practice, the court upheld this agreement and incorporated it into its judgment as a consent order. The settlement addressed issues of child custody, maintenance, alimony, and the division of marital property, thereby resolving all outstanding matters between the parties. In conclusion, the court was satisfied on the totality of the evidence that the marriage had broken down beyond reconciliation and accordingly granted a decree of divorce. The marriage was dissolved, and the agreed terms of settlement were adopted as the final judgment of the court, bringing the dispute between the parties to a definitive end.
Beatrice Afortu Dey v Justice Boakye (alias Borga)
Justice Kwame Gyamfi Osei
The plaintiff brought an action for declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Baatsona, Nungua. She claimed to have acquired the land in 2000 from David Odai and relied on acts of possession, including construction of a foundation, septic tank, and later a perimeter wall. The defendant denied the claim and contended that the land had earlier been granted to his grantor, Eric Odai, in 1991 by Nii Afotey Odai IV. The defendant supported his claim with a Lands Commission search report, registered lease documents, and testimony from a stool secretary confirming the grant. The court held that the plaintiff failed to prove that her grantor had title to the land, noting inconsistencies in her documents and lack of credible evidence. The court emphasized that where a party’s title is derivative, proof of the grantor’s title is essential. On the issue of limitation and adverse possession, the court held that the plaintiff could not rely on the Limitation Act since she had been dispossessed before bringing the action. The court found the defendant’s evidence more credible, particularly the Lands Commission search and confirmation from the stool authority, and held that the defendant’s grantor had valid title to the land. Accordingly, the court dismissed the plaintiff’s claim and awarded costs in favour of the defendant.
Elizabeth Asaam and Esther Sahadatu Salam v Tema Development Corporation, Joseph A. Abbey and Col. Ishmael Salifu (Rtd)
Justice Ayitey Armah Tetteh
The plaintiffs brought an action for declaration of title, injunction, damages, and compensation following the demolition of their properties on land at Community 23, Tema. The 1st plaintiff claimed that she acquired land from Ibrahim Daitey and later received a promise from the defendant that she would be rewarded with 20 acres for successfully warding off land guards from the area. She alleged that this promise was fulfilled and that she was allocated 99 plots. The defendant denied making any such promise and maintained that it owned the land under a government lease. It argued that Ibrahim Daitey only held 4.82 acres farmland under a lease and had no authority to transfer a larger interest. It further contended that any transfer required its consent, which was not granted. The court found that the plaintiff failed to prove that Ibrahim Daitey had 20 acres, as documentary evidence confirmed only 4.82 acres. The purported lease to the plaintiff was defective because it did not sufficiently identify the land and attempted to convey an interest greater than the grantor possessed. The court further held that although the defendant had acknowledged the plaintiff’s occupation and interest derived from Daitey, thereby giving rise to estoppel, this was limited only to the original farmland interest. On the allegation of a promise of 20 acres, the court held that the plaintiff failed to provide credible evidence beyond mere assertions, and therefore the claim failed. Accordingly, the court rejected the claim to the 20 acres and limited the plaintiff’s interest to what was lawfully derived from Ibrahim Daitey.
Eric Nii Aryee Mensah v Victor Austin
Justice Dr. Ernest Owusu-Dapaa (JA, sitting as an additional High Court Judge)
The plaintiff brought an action for declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Kwabenya. Both parties traced their title to the Odai Ntow family but through different chains. The plaintiff relied on an assignment dated 2004 from Gertrude Ampaw, whose title derived from a 1999 lease. Although the initial grant lacked concurrence of all family branches, the plaintiff subsequently regularized his title in 2012 through a lease executed by all four recognized branches of the Odai Ntow family, in line with prior court judgments. The defendant relied on an earlier assignment dated 2003 from Margaret Afi Tsikata, whose title derived from Nii Aryee Annang. However, evidence showed that Nii Aryee Annang had previously been restrained by court judgment from alienating the family land, rendering the defendant’s root of title defective. The defendant further relied on a purported ratification in 2014, which was found to be ineffective as it lacked the participation of a recognized family head. A court-appointed surveyor prepared a composite plan which showed that the defendant’s structures, including a single room and foundation, were situated within the plaintiff’s land. The court held that although both parties traced title to the same family, the plaintiff had established a valid and superior root of title through proper regularisation and earlier acts of possession. The defendant’s title was defective both at inception and in its attempted ratification. Accordingly, the court entered judgment in favour of the plaintiff, granted declaration of title, recovery of possession, damages for trespass, and a perpetual injunction.
Francis Kwabena Abban v Francisca Frimpong and Franklin Frimpong
Justice Alexander Graham
The plaintiff brought an action against the defendants seeking declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Abehenease, Accra. The plaintiff traced his title to a purchase from the Ama Asor family, initially through a purported principal member and subsequently regularized through the family head, who executed a deed of lease in his favour. The plaintiff also tendered evidence of payment and steps taken to register his interest. The defendants were served by substituted service but failed to enter appearance or file a defence. The plaintiff proceeded to give evidence in support of his claim. The court emphasized that even in the absence of a defence, a plaintiff must prove his case on a balance of probabilities and cannot rely on the weakness or absence of the defendant’s case. The court found that the plaintiff had provided credible and sufficient evidence of his acquisition and interest in the land. In the absence of any rebuttal from the defendants, the court accepted the plaintiff’s evidence as more probable and held that the defendants’ acts on the land constituted trespass. Accordingly, judgment was entered in favour of the plaintiff, granting declaration of title, recovery of possession, perpetual injunction, damages, and costs.
Nana Asare Assiedu (Kotwi Hene) v Kwabena Mensah
Justice Charles Kwesi Bentum
The plaintiff, suing as Kotwi Hene and representative of the Kotwi Stool, brought an action seeking a declaration that he was the only person with authority to demarcate and alienate Kotwi Stool lands, as well as an injunction restraining the defendant from interfering with such authority. The defendant contended that the plaintiff had been destooled in 2024 and that he, as head of the family, had assumed control of stool affairs. However, the defendant failed to adduce any evidence in support of the alleged destoolment, as his witness statement was not adopted and he did not open his case. The court held that pleadings do not constitute evidence and that the burden of proof lies on the party asserting a fact. The defendant’s failure to lead evidence meant that his allegation of destoolment was unproven. The court further held that under customary law and procedural rules, the occupant of a stool has capacity to represent the stool and exercise authority over stool lands. In the absence of proof of destoolment, the plaintiff remained the lawful occupant of the Kotwi Stool. Accordingly, the court granted a declaration that the plaintiff had authority to alienate stool lands and issued an injunction restraining the defendant from interfering. The claim for declaration of ownership of the land itself was refused, as that issue was not in dispute. Costs were awarded in favour of the plaintiff.
Dr Samuel Boateng Asamoah v Sulley Mohammed
Justice Kwame Gyamfi Osei
The plaintiff brought an action for declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Pantang, claiming title through a grant from a common grantor, Charles Kwesi Gyasi, and relying on a Land Title Certificate issued in 2015. The plaintiff also alleged that he funded the construction of a storey building on the land through monies sent from abroad. The defendant denied the claim and counterclaimed, asserting that he had acquired the land earlier through payments made to the same grantor and had constructed a two-storey apartment on the land before 2016. The defendant relied on documentary evidence, including bank statements and receipts, to support his claim of financial investment and development. The court identified the key issues as determining which party the common grantor had validly granted the land to and who developed the building on the land. The court found the plaintiff’s evidence weak and inconsistent, particularly due to failure to produce the indenture, contradictions in dates on the Land Title Certificate, and failure to call the common grantor as a material witness. In contrast, the defendant’s evidence of payment, possession, and development was found to be more credible. The court held that the plaintiff’s Land Title Certificate was fraudulently procured, having been obtained with knowledge of the defendant’s possession and without proof of valid acquisition. Applying the equitable doctrine of part performance, the court held that the defendant’s substantial acts of development and financial investment entitled him to an equitable interest in the land, notwithstanding the absence of formal transfer. Accordingly, the court dismissed the plaintiff’s claims, entered judgment for the defendant on the counterclaim, declared him owner of the land, granted a perpetual injunction, ordered cancellation of the plaintiff’s Land Title Certificate, and awarded costs against the plaintiff.
Mathew Kuma Mensah v Ernest Antwi Oti Boateng
Justice Jane Harriet Akweley Quaye
The plaintiff brought an action for declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Gbawe North. Both parties traced their title initially to the Weija Stool but later discovered through searches that the land belonged to the Gbawe Kwatei family, from whom both parties subsequently acquired their interests. The plaintiff relied on an earlier lease dated 23rd January 2020 and evidence of acts of possession, including construction of a fence wall, erection of a building, and placement of materials on the land. The defendant relied on a later lease dated March 2021, registration of title, and a land title certificate. The court found that the lands of both parties overlapped and that both derived title from a common grantor. Applying the principle that where equities are equal the first in time prevails, the court held that the plaintiff’s earlier grant took priority over the defendant’s later grant. The court further held that the plaintiff had established acts of prior possession and ownership, which displaced the presumption arising from the defendant’s land title certificate. The court also found that the defendant demolished portions of the plaintiff’s fence wall, constituting trespass. Accordingly, the court declared title in favour of the plaintiff, ordered recovery of possession, granted a perpetual injunction, and awarded general damages and costs against the defendant.
George Asani v Israel King of Jews Church and N’Akoah Nazareth Ansah Jamsom
Justice Comfort K. Tasiame
The plaintiff, suing as head of the Kofi Tsuru family, brought an action for declaration of title, recovery of possession, injunction, damages for trespass, and cancellation of the defendants’ title in respect of land at Obeyeyie. The plaintiff contended that the land formed part of family land and denied that any valid grant had been made to the defendants. The defendants asserted that the land had been gifted to them in 2007 by the then head of the family, Nii Tei Ayi, and relied on a deed of gift, registration, and acts of possession. They also counterclaimed for declaration of title and injunction. The court held that under customary law, family land can only be alienated by the head of family with the consent and concurrence of principal members. The defendants failed to adduce evidence that the alleged gift was made in the presence of any principal members of the family or that the required customary formalities were satisfied. The court further found inconsistencies in the defendants’ evidence, including contradictions between a purported gift and elements of sale contained in their documents. The court held that the defendants failed to establish a valid root of title and that the registration of their interest was founded on a defective transaction. Although the plaintiff alleged fraud, the court held that fraud was not proved beyond reasonable doubt. However, the invalidity of the underlying transaction was sufficient to defeat the defendants’ title. Accordingly, the court declared the plaintiff’s family as owners of the land, revoked the defendants’ registered title, granted recovery of possession and injunction, and awarded damages for trespass and costs.
ASHLEY E. KODJO VRS. NEPHI DAD-ORLEANS
G.K. GYAN-KONTOH ‘J’
Matrimonial Causes – Nullity of Marriage – Non‑Consummation – Voidable Marriage – Distinction Between Void and Voidable. The case concerns a petition for nullity of marriage filed by the Petitioner on 4th May 2023 under the Matrimonial Causes Act, 1971 (Act 367), seeking a declaration that the marriage between herself and the Respondent was void in law due to non-consummation. The parties, both Ghanaians, began a romantic relationship in 2015 which culminated in an ordinance marriage celebrated on 26th May 2021 at the Marriage Office in Sekondi. The Petitioner, who resides in the United States, alleged that the marriage was never consummated due to the wilful conduct of the Respondent, influenced largely by his mother. According to the Petitioner, the Respondent refused to engage in sexual relations unless she agreed to undergo certain traditional purification rites at a shrine, which she declined on religious grounds as a Christian. As a result, no marital intercourse occurred before she returned to the United States. The Petitioner further asserted that the marriage had already been customarily nullified and that she no longer wished to remain in the union. In response, the Respondent admitted that the marriage had not been consummated but denied responsibility for this situation. He contended that the delay in consummation was initially due to the Petitioner’s menstruation and later attributed the breakdown of the marriage to the Petitioner’s conduct, including alleged infidelity and lack of respect. He also denied that his mother influenced him or that any purification rites were required. Despite these conflicting explanations, both parties were in agreement that no sexual intercourse had taken place since the celebration of the marriage. The central issue before the court was whether the non-consummation of the marriage justified a decree of nullity under section 13(2) of Act 367, particularly on the ground that the marriage had not been consummated due to the wilful refusal of the Respondent. The court also considered the broader legal distinction between void and voidable marriages, and whether the facts of the case supported annulment rather than dissolution. In its judgment, the court held that the marriage had not been consummated and accordingly granted a decree of nullity, thereby annulling the marriage. The court reasoned that under section 13(2) of Act 367, a marriage is voidable where it has not been consummated due to the wilful refusal of one party. The court undertook a detailed examination of the legal concept of consummation, noting that it requires complete and ordinary sexual intercourse following the solemnization of marriage. It further explained that consummation is established upon penetration, regardless of other factors such as contraception. Although the parties offered differing explanations for the failure to consummate the marriage, the court found that these reasons were ultimately immaterial to the determination of the case, given the undisputed fact that no consummation had occurred since the marriage. The court emphasized that the essential requirement for granting nullity in such circumstances is proof of non-consummation, which had been clearly established by the admissions of both parties. The court also clarified the legal position that a voidable marriage remains valid until annulled by a competent court, unlike a void marriage which is treated as never having existed. Relying on established legal principles, the court concluded that the Petitioner had properly invoked nullity proceedings rather than divorce proceedings, as the issue concerned the validity of the marriage rather than its breakdown. In light of the uncontroverted evidence that the marriage had never been consummated since its celebration on 26th May 2021, the court was satisfied that the statutory requirement had been met. It therefore declared the marriage null and void and granted a decree of nullity, bringing the marriage to an end.
MICHAEL PEASAH YEBOAH VRS DANIELETTE PAGE
HER LADYSHIP JUSTICE MAVIS AKUA ANDOH (MRS).
Matrimonial Causes – Dissolution of Marriage – Breakdown of Marriage beyond reconciliation – Separation – Burden of Proof – Unchallenged Evidence. The case concerns a petition for divorce initiated by the Petitioner following leave granted by the court to serve the Respondent outside the jurisdiction. The parties were married under the Marriage Ordinance on 2nd June 2012 at the Accra Metropolitan Assembly. After their marriage, they cohabited briefly in Ghana before relocating to the United States, where they lived together from 2014 until 2020. Upon the Petitioner’s retirement in 2020, he returned to Ghana permanently while the Respondent remained in the United States. The marriage did not produce any children. The Petitioner contended that the marriage had broken down beyond reconciliation, citing the Respondent’s refusal to relocate to Ghana as previously agreed, the breakdown in communication, and the absence of marital relations since 2020. Consequently, he sought a single relief: the dissolution of the marriage. Despite being duly served with the petition and all subsequent court processes via courier in accordance with the court’s order, the Respondent failed to enter appearance or file any answer to the petition and did not participate in the proceedings. The court, satisfied that the Respondent had been given adequate notice and opportunity to be heard, proceeded to hear the Petitioner’s evidence. The central issue for determination was whether the marriage between the parties had broken down beyond reconciliation within the meaning of the Matrimonial Causes Act, 1971 (Act 367) so as to warrant its dissolution. This required the court to assess whether the Petitioner had discharged the burden of proof by establishing facts sufficient to demonstrate the irretrievable breakdown of the marriage under the statutory framework. In its analysis, the court reiterated the well-established principle that a party who asserts a claim bears the burden of proving it, as reflected in both case law and the provisions of the Evidence Act. The court emphasized that the standard of proof in civil matters is on a balance of probabilities, requiring the Petitioner to present credible evidence that tilts the scale in his favour. The Petitioner’s unchallenged testimony was that the Respondent had refused to relocate to Ghana after his retirement, thereby frustrating the continuation of the marriage. He further testified that communication between them had broken down completely and that they had not lived together as husband and wife, nor engaged in any form of marital intimacy, since 2020. The court considered these factors cumulatively and found that they were not trivial but constituted serious circumstances indicative of marital breakdown. Relying on principles articulated in Knudsen v Knudsen [1976] 1 GLR 204, the court noted that a course of conduct or a combination of factors, even if individually insufficient, may together establish that a party cannot reasonably be expected to continue living with the other. In this case, the Respondent’s decision to remain abroad, coupled with the absence of communication and marital relations, amounted to a form of desertion and denial of consortium. Furthermore, the court observed that the Respondent’s failure to contest the petition or adduce any evidence left the Petitioner’s claims uncontroverted. In such circumstances, the court was entitled to rely on the Petitioner’s evidence in determining the matter. Upon evaluating the totality of the evidence, the court concluded that the parties had not lived together as husband and wife for a continuous period of approximately three years and that there was no realistic prospect of reconciliation. Accordingly, the court held that the Petitioner had successfully established that the marriage had broken down beyond reconciliation as required under sections 1(2) and 2(1) of Act 367. The court therefore granted the petition and ordered that the marriage be dissolved.
Gibrine Adam v Richard Opoku and Works Foreman/Supervisor and Catherine Amoatey and J. B. Plaza Limited
Justice Emmanuel Amo Yartey
The plaintiff brought an action for declaration of title, recovery of possession, injunction, damages for trespass, and an order setting aside a prior judgment on grounds of fraud in respect of land at Oyarifa. The plaintiff traced his title to Princeton Multipurpose Estate Agency, which had registered title to the land in 1997, and subsequently transferred the land to the plaintiff in 2017. The plaintiff obtained a Land Title Certificate and relied on acts of possession, including the existence of a warehouse, fencing, and continuous use of the property. The defendants contended that the 3rd defendant had acquired the land as far back as 1995, had been in possession, and had secured a judgment in 2018 affirming her title. They further alleged that the plaintiff’s land title certificate was fraudulently obtained. The court held that a land title certificate is prima facie evidence of title and that the burden lies on the party alleging fraud to prove it beyond reasonable doubt. The defendants failed to produce sufficient evidence from the Lands Commission or any credible source to substantiate their allegations of fraud. The court further held that the prior judgment relied upon by the defendants was not binding on the plaintiff since neither he nor his grantor was a party to that suit. The court also found that the plaintiff had established acts of possession and ownership consistent with his title. Accordingly, the court held that the plaintiff had proved his title on a balance of probabilities, dismissed the defendants’ counterclaim, and granted the plaintiff all reliefs, including damages and injunction.
F. K. A. Company Limited v Nii Boafo Daanyi-Nse I, Eric Narh and Broadcasting Taxi Rank Association
Justice Emmanuel Amo Yartey
The plaintiff, a real estate development company, brought an action against the defendants seeking declaration of title, recovery of possession, damages for trespass, and injunction in respect of land at Weija. The plaintiff traced its title to a customary grant of approximately 95.194 acres from the Weija Stool and relied on an indenture as well as several prior court judgments, including Supreme Court decisions, affirming its title to portions of the land. The defendants denied that the disputed portion formed part of the plaintiff’s land, contending instead that it fell outside the granted area and lay within land acquired by the State for the Weija–Winneba road. The 1st defendant further relied on search reports and site plans to support this contention. The central issue before the court was whether the disputed land formed part of the plaintiff’s land. A composite plan was prepared to assist the court in determining the identity of the land. While expert evidence was considered, the court emphasized that such evidence is not binding. Crucially, the 1st defendant admitted during cross-examination that the plaintiff had previously been affirmed as owner of the land by the Supreme Court. The court held that this admission, coupled with prior judgments and the plaintiff’s documentary evidence, established that the disputed land formed part of the plaintiff’s land. Accordingly, the court held that the defendants’ occupation of the land constituted trespass and entered judgment in favour of the plaintiff, granting all reliefs except demolition, and awarding general damages and costs.
ANDREW TAMPURI MOHAMMED VRS ESTHER HYANCITHA AKANDAKUM
ERIC ANSAH ANKOMAH J
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Prolonged Separation – Burden of Proof – Consent Judgment. The case concerns a petition for divorce filed by the Petitioner on 31st May 2023 seeking the dissolution of his ordinance marriage to the Respondent under the Matrimonial Causes Act, 1971 (Act 367). The parties initially contracted a customary marriage in 2013, which was subsequently converted into an ordinance marriage on 4th October 2017. The marriage produced two children, aged nine and two years respectively, and the Petitioner also had a 20-year-old son who had lived with the family. Marital difficulties arose between the parties, leading to their separation in January 2022 when the Respondent moved out of the matrimonial home into a rented apartment with the younger child. The Petitioner asserted that for about three years preceding the petition, the parties had neither lived together as husband and wife nor engaged in sexual relations, and that all attempts at reconciliation by family members and a priest had failed. The Respondent entered appearance and filed an answer together with a cross-petition also seeking dissolution of the marriage, custody of the children, distribution of marital property, maintenance, and other financial reliefs. However, during the proceedings, the parties amicably settled all ancillary matters, including custody, property distribution, and maintenance, leaving only the issue of dissolution of the marriage for the court’s determination. The Respondent did not testify or call evidence in support of her answer or cross-petition, and she did not challenge the Petitioner’s evidence through cross-examination on the core issue of marital breakdown. The principal issue before the court was whether the marriage had broken down beyond reconciliation as required under section 1(2) of Act 367, and whether the evidence satisfied any of the statutory grounds under section 2(1), particularly that the parties had not lived together as husband and wife for a continuous period of at least two years with consent, or that they had been unable to reconcile their differences despite diligent efforts. A further issue was the effect of the Respondent’s failure to adduce evidence or challenge the Petitioner’s testimony regarding the breakdown of the marriage. In its judgment, the court held that the marriage had indeed broken down beyond reconciliation and granted the petition for divorce, thereby dissolving the ordinance marriage between the parties. The court also adopted the terms of settlement filed by the parties as a consent judgment governing all ancillary matters, including custody arrangements, maintenance, and distribution of property. In reaching its decision, the court relied on the uncontroverted evidence presented by the Petitioner that the parties had lived apart for approximately three years, had not engaged in marital relations during that period, and had made unsuccessful attempts at reconciliation through family and religious intervention. The court emphasized its statutory duty under sections 2(2) and 2(3) of Act 367 to inquire into the facts and be satisfied that the marriage had irreconcilably broken down. It found that the prolonged separation, absence of consortium vitae, and failure of reconciliation efforts were sufficient indicators of such breakdown. The court further reasoned that the Respondent’s failure to testify or challenge the Petitioner’s evidence amounted to an admission of the material facts. In support of this position, the court relied on authorities such as Aryeetey v Brown [2006] 5 MLRG 160 CA and Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882, which establish that unchallenged evidence is deemed admitted and may be accepted by the court. The court also invoked the principles under the Evidence Act, emphasizing that while the burden of proof lies on the party asserting a claim, a defendant who fails to adduce evidence runs the risk of judgment being entered against them based on the claimant’s evidence alone. Applying these principles, the court concluded that there was sufficient and credible evidence demonstrating that the parties had ceased to live as husband and wife and had been unable to reconcile their differences. Accordingly, the statutory requirements for divorce under Act 367 were satisfied. The court therefore dissolved the marriage, cancelled the marriage certificate, and declared the parties no longer husband and wife. It further incorporated the agreed terms of settlement into its judgment, thereby bringing finality to all ancillary issues without making any order as to costs.
Nii Otu Commey (suing as Head and Lawful Representative of Nuumo Kwaofio Family of Sakumotsoshishi) v Samuel Kofi Ardey and 3 Others
Justice Comfort K. Tasiame
The plaintiff, representing the Nuumo Kwaofio family, brought an action for declaration of title, injunction, and damages for trespass in respect of land at Kaankafionaa, claiming ownership through long possession and acts of ownership including farming and leasing portions to tenants. The defendants denied the claim and counterclaimed, asserting ownership of adjacent land known as Nii Kofi Addey Village, supported by traditional evidence and prior court judgments recognizing their title. A composite survey plan revealed that the lands of both parties overlapped in certain areas. The court found that the plaintiff failed to establish the identity and boundaries of his land with sufficient clarity, and his evidence contained material inconsistencies. In contrast, the defendants established a better root of title supported by consistent traditional evidence and judicial determinations. However, the court further found that the plaintiff had been in open, continuous, and undisturbed possession of part of the disputed land for over twelve years through his tenants, thereby acquiring a valid possessory title to that portion under the Limitation Act. Accordingly, the court held that while the defendants were the true owners of the land, the plaintiff was entitled to retain possession of the portions already occupied. Judgment was entered for the defendants on title, subject to the plaintiff’s possessory rights, and an injunction was granted accordingly.
MRS. CHARITY BOADI-DARKWA VRS MR. MICHAEL BOADI- DARKWA
HIS LORDSHIP JUSTICE EMMANUEL A. LODOH
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Prolonged Separation – Consent Judgment – Ancillary Reliefs. The case arose from a petition for divorce filed by the Petitioner on 3rd September 2021 under the Matrimonial Causes Act, 1971 (Act 367) and the High Court (Civil Procedure) Rules, 2004 (C.I. 47) seeking the dissolution of her ordinance marriage to the Respondent. The parties had celebrated their marriage on 8th October 1989 at the Assemblies of God Church in Cape Coast and had two children, both of whom were adults at the time of the proceedings. In addition to the dissolution of the marriage, the Petitioner sought ancillary reliefs including a declaration of a 50% interest in properties acquired during the marriage, recovery of her share, a lump sum payment of GH¢40,000, and costs. The Respondent did not file a cross-petition opposing the divorce but indicated in his response that he was against the dissolution on religious grounds, although he did not actively prevent the Petitioner from pursuing the petition. The central factual dispute concerned the nature and duration of the parties’ separation. The Petitioner testified that the parties had not lived as husband and wife for a continuous period of five years and had not engaged in sexual relations during that time. The Respondent, while admitting that there had been no sexual relations for five years, contended that the Petitioner had only moved out of the matrimonial home two years prior to the filing of the petition. Notwithstanding this discrepancy, it was common ground that the marital relationship had significantly deteriorated, and the parties were no longer living in a manner consistent with a subsisting marriage. The main issue before the court was whether the marriage had broken down beyond reconciliation as required under section 1(2) of Act 367, and in particular whether the Petitioner had established any of the statutory facts under section 2(1), especially the ground that the parties had not lived as husband and wife for a continuous period of at least five years. A further issue was whether it was necessary for the court to determine the allegations of unreasonable behaviour raised by the Petitioner, or whether the evidence of prolonged separation was sufficient to dispose of the matter. Additionally, the court had to determine the appropriate approach to the ancillary reliefs in light of a settlement agreement reached by the parties during the proceedings. In its decision, the court held that the marriage had broken down beyond reconciliation and accordingly granted the petition for divorce, dissolving the marriage between the parties. The court further adopted the terms of settlement filed by the parties on 18th July 2023 as a consent judgment, thereby resolving all issues relating to property distribution and other ancillary matters without further adjudication. In reaching its decision, the court reasoned that although the Petitioner had pleaded several particulars of unreasonable behaviour, it was unnecessary to examine those allegations in detail because the evidence of prolonged separation provided a clearer and more decisive basis for determining whether the marriage had irretrievably broken down. The court evaluated the conflicting evidence regarding the duration of separation and found the Petitioner’s account more credible, particularly in light of the Respondent’s admission that there had been no sexual relations for five years. The court considered sexual relations to be an essential component of marital life and concluded that the absence of such relations for a prolonged period supported the inference that the parties had ceased to live as husband and wife in any meaningful sense. Relying on the statutory requirement under section 2(1)(e) of Act 367 and guided by judicial authority such as Kotei v Kotei [1974] 2 GLR 172, the court emphasized that the relevant test was not merely physical separation but a total breakdown of the marital relationship, including the absence of consortium vitae and an intention not to resume cohabitation. The court found that the Petitioner’s prolonged absence from the matrimonial home and her clear intention not to continue the marriage satisfied this requirement. Consequently, the statutory condition of five years’ separation was met, and the court was satisfied on the totality of the evidence that the marriage had broken down beyond reconciliation. Regarding the ancillary reliefs, the court noted that the parties had voluntarily entered into a settlement agreement addressing the distribution of their properties and other financial matters. Consistent with established practice, the court upheld this agreement and incorporated it into its judgment, thereby bringing finality to all outstanding issues between the parties.
Daniel Henry Mensah and Regina Odoom v Ellen Worglo
Justice Priscilla Dapaah Mireku
The plaintiffs brought an action for declaration of title, damages, and injunction in respect of land at Atoman near Amasaman, claiming title through a grant from the Atowe family in 2014 and relying on acts of possession including construction works and deposition of building materials. The defendant claimed prior title to the land through a grant in 2004 from a different family and asserted that she had been in possession since then. The defendant later abandoned her original grantor and purported to regularize her title with the Atowe family in 2019. Both parties alleged acts of possession and trespass by the other. The court found that the subject matter described by both parties referred to the same land based on identical site plan coordinates. The court further found that the defendant’s original grant was fraudulent, having been executed in the name of a deceased person, and therefore incapable of passing title. Although the defendant was found to have been first in possession, the court held that possession founded on a fraudulent title could not prevail. The court also held that the Atowe family, having validly granted the land to the plaintiffs in 2014, lacked capacity to grant the same land again to the defendant in 2019. Accordingly, the court held that the plaintiffs had established a valid root of title, entered judgment in their favour, dismissed the defendant’s counterclaim, and awarded general damages and costs.
Edward Kofi Ohene v Benjamin Kwamina Mensah and Arnold Tetteh Mensah and George Amonoo
Justice Emmanuel Amo Yartey
The plaintiff brought an action against the defendants seeking declaration of title, recovery of possession, damages for trespass, and injunction in respect of land situated at Kwabenya, Accra. The plaintiff traced his title to a lease granted in 1996 by the Odai Ntow family, which was duly executed, registered, and later supported by a Land Title Certificate. The plaintiff also led evidence of long and uninterrupted possession, including fencing the land, constructing buildings, placing caretakers, and cultivating crops. The plaintiff further relied on previous judgments affirming the Odai Ntow family as allodial owners of the land and establishing the proper persons authorized to grant such lands. The plaintiff also regularized his title following a public notice issued by the family. The defendants, who claimed to be members of the same family, trespassed onto the land, demolished existing structures, and commenced development. Despite filing a defence and counterclaim, the defendants failed to participate in the trial and led no evidence in support of their claims. The court held that the plaintiff had established a valid root of title supported by documentary evidence and acts of possession. The Land Title Certificate further strengthened the plaintiff’s claim. The court also held that the defendants’ acts amounted to trespass and that their counterclaim failed for want of evidence. Accordingly, judgment was entered in favour of the plaintiff, damages were awarded, and the counterclaim was dismissed.