26 Oct Ama Serwaa v Gariba Hashimu and Issaka Hashimu [Unreported Judgment] Civil Appeal No. J4/31/2020 Delivered on 14 April, 2021.
“The circumstances under which a promise of marriage would be inferred must also be given considerable thought in order to solve two problems: forestalling the situation of blackmail which has discredited this action, and discouraging unscrupulous persons from taking advantage of others.”
The parties met between 2000 and 2001 in Italy and formed an amorous relationship. The Defendant convinced the Plaintiff to give up her job and move to Napoli to work as a commercial sex worker. The Plaintiff turned over her earnings from work to the Defendant. The Plaintiff alleged that they hoped to get married and set up a home in Ghana. The Plaintiff also began receiving tutoring from Defendant’s mother towards her eventual conversion to Islam.
In the course of the relationship, the Defendant acquired properties with his and the Plaintiff’s earnings. Vehicles had also been shipped by the Plaintiff in 2002, to the Defendant’s father which were sold by the latter. The Plaintiff was never able to return to Italy. The Defendant promised to help the Plaintiff acquire fresh papers and in doing so he acted as the Plaintiff’s guarantor to raise a loan to facilitate the process. A Mercedes Benz car, which the Defendant claimed was his, was used as collateral for the loan. The parties were never formally married and the relationship fell apart when they returned to Ghana. The Defendant got married to another woman and the Plaintiff suffered a mental breakdown.
The Plaintiff sued for breach of promise to marry and sought, among others, an order for the equal distribution of the properties acquired during their relationship. The High Court found for the Plaintiff. The Court of Appeal reversed the High Court decision.
Plaintiff further appealed to the Supreme Court and invited the Court to answer whether there was a promise to marry the Plaintiff, on which she relied to “invest her earnings”. The Court also had to determine whether she was entitled to any portion of the property.
The Supreme Court held that it is a long settled legal principle that where a person fails to carry through a promise of marriage to another, it is a cognizable wrong for which the Court would give a remedy. However, that promise to marry must be seriously made and Plaintiff must have relied on that promise to make investments. It was held further that the Plaintiff will have rights in Court since “Equity will not suffer a wrong to be without a remedy”.
The Court also found that the Plaintiff shipped the cars in 2002 to Ghana with the Bill of Lading bearing the name of the Defendant’s father as the consignee. The Court found these events as pointers to the fact that the Plaintiff was led into believing that she was considered a “wife” to the Defendant, hence her reliance on that belief to act to her detriment.
The Supreme Court held that from the totality of the life they led in Ghana, the relationship between the Plaintiff and Defendant went beyond mere acquaintances in Italy and as such, it would be reasonable to find that the Plaintiff’s expectation of marriage had good basis. Therefore, the breach of a promise to marry was established. The Defendant was therefore a constructive trustee of the properties acquired for the benefit of both parties. The Supreme Court restored the judgment of the High Court.
Insight: Where there is no evidence of express promise to marry (e.g., knocking), if circumstances put together, lead to a sufficient understanding that the parties were preparing for a life together, property which is acquired together pursuant to such understanding will be deemed to be held in constructive trust, with both parties as beneficiaries.