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Foreign law is fact | Burden on preponderance of probabilities | Customary marriage potentially
polygamous | Ordinance marriage strictly monogamous | Proving foreign law requires expert | Foreign
documents need authentication | Widowhood rites determined by family custom | Domicile of origin
revives on abandonment | Counterclaim is independent action | Single credible witness suffices |
Inadmissible evidence must be rejected | Intention to divorce ≠ dissolution
IN THE HIGH COURT HELD IN KUMASI, IN THE ASHANTI REGION BEFORE
HER LADYSHIP JUSTICE DR. DORINDA SMITH ARTHUR (HIGH COURT
JUDGE) ON FRIDAY 28TH
DAY OF NOVEMBER, 2025
SUIT NO. GJ12/20/2026
AKOSUA SERWAAH FOSUH ……… PLAINTIFF
SCHWESTER – ERMELINDIS WEG 9
BORNHEIM SECHTEM 53332, GERMANY
VRS
1. ABUSUA – PANIN KOFI OWUSU
2. PRISCILLA OFORI DEFENDANTS
3. TRANSITIONS FUNERAL HOME
A.K.A ENTERPRISE FUNERAL SERVICES
HAATSO, ASORE JUNCTION, ATOMIC ROAD, ACCRA
JUDGMENT
“We can do nothing against the truth, but for the truth.”
2 Corinthians 13:8. NKJV
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I. INTRODUCTION
[1] This is a case in which Akosua Serwaah Fosuh, the Plaintiff herein, seeks a
declaration that she is the only surviving spouse of the late Charles Kwadwo Fosuh, aka
Daddy Lumba, and as such the only person entitled to perform the widowhood rites of
the deceased. She seeks an order from the court to restrain the head of family of the
deceased from ever dealing with the 2nd Defendant, Priscilla Ofori as spouse of the
deceased and a further order restraining Priscilla Ofori, from carrying herself as a
surviving spouse of the late Charles Kwadwo Fosuh aka Daddy Lumba. The Plaintiff
alleges that, she and the deceased married at the Civil Marriage Registry in Germany in
2004 and that their said marriage subsisted until the demise of Daddy Lumba on July
26, 2025.
[2] The Defendants opposed the claims in its entirety and deny that the Plaintiff
contracted any valid marriage with the deceased in Germany. The documents tendered
in by the Plaintiff were challenged for their authenticity, validity, stating that they suffer
from irregularities. The defendants, however, contended that Priscilla Ofori was married
customarily by the late Daddy Lumba, bore six children with him, and was the only
person who took care of him during his long illness until his demise.
[3] Also the Defendants contended that the deceased Daddy Lumba showcased
Priscilla Ofori as his wife publicly for more than fifteen years and as a married wife of
Daddy Lumba she is entitled to be his surviving widow.
This case has generated great interest and sentiments from the general public in Ghana
and abroad.
II. PLEADINGS
[4] The Plaintiff filed a writ of summons out of the registry of this court on 2nd
October, 2025 against the Defendants jointly and severally for the following reliefs:
1. An order of this Honourable Court declaring that the Plaintiff is the only surviving
spouse of the late Charles Kwadwo Fosuh a.k.a Daddy Lumba.
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2. An order of this court declaring that, it is only the Plaintiff who has the right to
perform the widowhood rites of the late Charles Kwadwo Fosuh aka Daddy
Lumba.
3. A further order restraining the 1st Defendant from ever dealing with the 2nd
Defendant as spouse of the deceased.
4. An order restraining the 2nd Defendant from carrying herself as the surviving
spouse of the late Charles Kwadwo Fosuh aka Daddy Lumba.
[5] After the service of the writ with its accompanying statement of claim on the
Defendants with the exception of the 2nd Defendant (hereinafter referred to as D2), the
1
st Defendant (hereinafter referred to as D1), and the 3rd Defendant (hereinafter
referred to as D3) filed conditional appearance.
[6] Then counsel for D1 filed a thirty-four paragraphed statement of defence on
22/10/2025. D2 also in a forty paragraphed statement of defence filed on 27/10/25
counterclaimed for the following reliefs:
1. Declaration that Plaintiff was not married to Daddy Lumba as of 26th July, 2025
when he died.
2. Declaration that 2nd Defendant was validly married under customary law to
Daddy Lumba in his life time.
3. Declaration that 2nd Defendant is the surviving spouse of Daddy Lumba.
[7] Counsel for D3 filed a fifteen paragraphed statement of defence on behalf of D3
on 30/10/25 in which it denied substantially all the allegations and claims of the
Plaintiff. The Plaintiff filed a twenty-nine-paragraphed reply denying the D1’s defence, a
twenty-six paragraphed reply and defence to counterclaim to D2’s defence and
counterclaim and joined issues with the Defendants.
The Issues for Determination
[8] At the close of the pleadings, the Plaintiff formulated eight issues and the
Defendant also filed six additional issues, but the court with counsel struck out four of
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the issues, joined some, and added two additional issues. The issues set down were as
follows:-
1. Whether or not the Plaintiff is the only surviving spouse of the late Charles
Kwadwo Fosuh aka Daddy Lumba.
2. Whether or not Plaintiff if deemed the only surviving spouse of the late Charles
Kwadwo Fosuh aka Daddy Lumba, is the only person entitled to perform the
widowhood rite.
3. Whether or not Plaintiff not living with Daddy Lumba for seventeen years
constituted abandonment.
4. Whether or not the Plaintiff causing her lawyers to write to Daddy Lumba
demanding her share of the properties they both acquired constituted an
intention to dissolve the marriage.
5. Whether or not the 2nd defendant can be deemed as a wife on the basis of
customary marriage.
6. Can it be said that the 2nd defendant living with the late Daddy Lumba for fifteen
years and having six children with him constitute marriage.
7. Whether or not the plaintiff and the late Charles Kwadwo Fosuh married validly
under the Federal Laws of Germany.
8. Whether the plaintiff initiated divorce proceedings against the late Charles
Kwadwo Fosuh during his life time.
9. Whether or not the plaintiff and the late Charles Kwadwo Fosuh co-habited and
share matrimonial household when he later relocated to Ghana.
10. Whether or not the late Charles Kwadwo Fosuh habitual residency was Ghana or
Germany for at least fifteen years prior to his death.
11.Whether or not the marriage between the plaintiff and the late Charles Kwadwo
Fosuh had broken down under Germany law as of the time the latter relocated to
Ghana.
12.And any other further issues arising from the pleadings.
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II. PLAINTIFF’S CASE
[9] The Plaintiff testified through her attorney, Georgina Osei Bonsu. In her
evidence-in-chief she said the plaintiff is the lawful wife of the deceased Daddy Lumba
both by custom in Ghana and under German Law. She continued that the couple got
married on the 23rd December, 2004 under the German Law at the Civil Marriage
Registry, Bornheim, Germany. Before the civil marriage the couple first married
somewhere in May 1991 at Bomso in the Ashanti Region having being in an amorous
relationship from December 1985. The couple begot three children and added that they
never divorced until the demise of Daddy Lumba on 26th July 2025.
[10] She further stated that after the death of Daddy Lumba, the head of family, D1,
informed the Plaintiff that she would not be allowed to perform the widowhood rites.
She mentioned that D1 and D2 averred that the Plaintiff’s marriage was dissolved as
she abandoned the deceased for more than a decade which is not true. She said the
plaintiff visited her deceased husband periodically in 2011, 2012, 2014, and 2018 when
her mother died.
[11] She mentioned that the deceased’s name was listed in the funeral poster as an
in-law and he was allowed to perform in-law rite. She said it was the plaintiff who
bought medications for her deceased husband and that the deceased confirmed so in a
video when he was celebrating his 60th birthday so she did not abandon the deceased.
[12] The attorney maintained that the Plaintiff was the love of the deceased as he
composed numerous songs for her and that D1 in the early days after the death of the
deceased confirmed that the Plaintiff was the lawful wife and she is the only one known
to the family until he changed his position due to his parochial interest.
[13] She further said that D2 carry herself out as the wife of the deceased simply
because she has six children with him, as D2 in a suit, had so described herself. A copy
of the writ of summons and statement of claim was admitted into evidence as Exhibit J.
Hence, D2 must be restrained in that only legally married women perform widowhood
rites and that cultural right accrued to the Plaintiff alone and same cannot be shared
with D2.
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[14] She said due to the deceased’s iconic brand, the Plaintiff decided not to put her
marital problems in the public to avoid besmirching the deceased’s hard-earned name
or brand but that seemed to have made D2 think that she had endorsed her immoral
relationship with the deceased. She said the Plaintiff sometimes complained to the
deceased and even expressed an intention to walk out of the marriage but the
deceased out of love would unreservedly apologise to her to stay since she is the love
of his life. She stated that the Plaintiff did not return the traditional drinks to indicate
that she had divorced the deceased customarily.
[15] She again said the Plaintiff somewhere in 2018 instructed her lawyers to write to
the deceased to complain about some marital issues but she did not instruct her
lawyers that she had sent her customary drink to dissolve the marriage.
[16] She maintained the Plaintiff is the only surviving spouse of the deceased and that
an amorous relationship with D2 cannot metamorphose into marriage. She said the
Plaintiff and the deceased lived peacefully in Germany until the deceased decided to
seek medical attention in Ghana.
[17] She tendered in evidence a power of attorney, purportedly notarized marriage
certificate with a translation from German language into English, a letter from the
German Embassy, pictures, a funeral poster, two videos and pictures of a deceased at a
funeral.
[18] The elder sister of the deceased, Ernestina Fosuh, PW1 also known as Akosua
Brempomaa testified as a witness for the Plaintiff. In her evidence-in-chief she
mentioned that the deceased married the Plaintiff customarily in May 1991 at Bomso,
Kumasi and they had three issues. She stated that she was with the couple in Germany
and with another woman by name Georgina when they married under the German Civil
Law in December 23, 2004.
[19] She said D2 was in a relationship with the deceased and she bore him six
children and that D1 is the head of family of Royal Family of Nsuta and Parkoso and a
maternal uncle. She said she had good contact with D2 when she was living with her
brother and that the third child of D2 is named after her. She added that about four
months prior to the death of her brother, he asked her to find a place for D2 and the
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last child who was about three years in Germany to acquire his passport. So she does
not bear any grudge against D2 by testifying for the Plaintiff.
[20] She continued that it was the deceased who introduced D2 to her and confided
in her that due to the marriage with Plaintiff, he cannot marry D2 as a second wife by
custom or under the ordinance. So her deceased brother did not marry D2 and he did
not also hide things from her since she was close to him.
[21] She mentioned that the deceased informed her about the first child and asked
her to buy things for them of which she obliged and shopped heavily for them and she
delivered them personally to them at Tantra Hills, residence of the deceased. She said it
was necessary for the Plaintiff to be in Germany as they had contracted a mortgage and
she had to work eight hours to defray the mortgage and she was also nursing their last
child and taking care of the two children singlehandedly since her brother had to leave
for Ghana to seek medical attention.
[22] According to PW1, the deceased returned to Ghana to work and also to seek
medical attention and not with intention to permanently stay in Ghana and so he
stopped the Plaintiff from frequenting Ghana because there was a debt to be paid and
the cost of plane ticket was exorbitant. PW1 said she cannot say the couple had
divorced each other because in 2018 she met the Plaintiff in Ghana in preparation for
her mother’s funeral and they both lodged at Tantra Hills, the home of the Plaintiff and
the deceased.
[23] She further said that D2 and her friend came to Tantra Hills that the deceased
said they should come and prepare the place for the Plaintiff and the deceased was
listed in the funeral poster as an in-law and he performed the in-law rites in her
presence.
[24] She said it was the Plaintiff who was buying the medications for the deceased
and so the couple had not divorced and the Plaintiff had not abandoned him. She said
the deceased referred to the Plaintiff as his lawful wife during his 60th birthday
celebration at Bayview Village on September 29, 2024.
[25] She added that the marriage between the couple had their turbulent times and
the Plaintiff occasionally registered her displeasure but she cannot recall that the
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deceased dissolved his customary marriage with the Plaintiff or that the Plaintiff
returned the customary drink. She said the deceased had apologised to the Plaintiff for
wrongs committed against her on countless occasions.
[26] She further mentioned that had it not been for recent happenings and illintentions of some people in the reproduction of letters well-kept in her brother’s
bosom, nobody would have heard that the Plaintiff had been going through a lot of
ordeals in her marriage to the extent that she had even threatened to leave the
marriage. She again said the deceased was overly privileged to have met the Plaintiff as
she saw her as a superwoman due to her tolerance and patience.
[27] She added that it will be quite unfortunate for D1 to hold that the Plaintiff was
not married to the deceased and therefore not entitled to perform the widowhood rite
but rather D2 as D2’s hands were not sought in marriage to be conferred with the right
to perform the widowhood rites at her brother’s funeral.
[28] Counsel for the Plaintiff subpoenaed an expert witness, Osei-Bonsu Safo
Kantanka to testify on the Ashanti custom. He testified that he is well-versed in Ashanti
custom and has been a resource person for chiefs, universities, courts, professors, and
students. He said he has been a funeral committee member and in the burial of the two
Asantehemaas and Mamponghene. He is an author and has written many articles and
books and that he received a grand medal award with his book, “Kenteh Cloth History
and Culture” from former President Kuffour.
[29] He stated that in Ashanti custom, a wife is a woman whom the four families
comprising the mother and father’s family of the woman and mother and father’s family
of the man have sat and drunk the head drink to confirm that she has been married to
a man but there are variations. He said during the marriage ceremony it is the father or
representative of the father of the woman who takes the head drink.
[30] He added that where the family has to perform a funeral rite, it is the head of
family who becomes the chief mourner together with the elderly women and others
who come together to organise it. He said the head of family, though the figure head,
receives directions from the elderly women and other principal members of the family.
He said it is the responsibility of a husband or husband’s family to buy the casket and if
it is a man, it is the responsibility of the children whether young or old or their family
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who buy the casket. He said it is the responsibility of the head of family with the
consent of the elderly women to go and seek for funds towards the funeral.
[31] He continued that funeral observation is believed to be both spiritual and
physical and if there is a wife or wives she or they have to perform the widowhood
rites. The wives have to go through spiritual purification so that the deceased husband’s
spirit cannot in anyway return to the wife or wives to harm her or them. So the
widowhood rites finally sever the marriage both spiritually and physically. With
widowhood rites, the women who are customarily married perform those rites subject
to how she or they treated their deceased relative.
III. DEFENDANTS’ CASE
1
ST DEFENDANT
[32] Abusuapanin Kofi Owusu, (DI) testified as the head of Royal family of Parkoso
and Nsuta, Ashanti. In his evidence-in-chief he said the deceased Daddy Lumba and the
Plaintiff were traditionally married in 1991 and they relocated to Germany and allegedly
registered their union. But the health of the deceased deteriorated after about ten years
and he expressed the desire for the couple to relocate to Ghana for him to seek medical
attention especially traditional medicine but the Plaintiff refused and threatened that if
the deceased relocated to Ghana, he should consider their marriage dissolved.
[33] He said the deceased tried to convince the Plaintiff to relocate with him without
success so he involved his family members to persuade her to relocate but she refused
so he relocated alone under serious health conditions without the Plaintiff. He said true
to the Plaintiff’s words, she never visited the deceased during his illness. And it was
during this trying period where the deceased was bedridden for five years without
spousal support that the deceased met his wife D2 who nursed him back into good
health.
[34] He continued that the Plaintiff followed through her threat with actual actions
and together with her family, presented the dissolution of marriage drinks to the
Ekuona family for the dissolution of her marriage to the deceased in line with Akan
tradition. He said the then head of family with the consent of the deceased accepted
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the dissolution drinks as presented by the Plaintiff and her family. He said all rituals for
the dissolution of marriage in accordance with the Akan traditions were performed and
both families acknowledged that the marriage between the deceased and the Plaintiff
had ended.
[35] He further testified that years after the dissolution of their marriage, the Plaintiff
through her Ghanaian solicitors wrote a letter to the deceased dated 4 February 2018
confirming the dissolution of the marriage by the presentation of the drinks and gave a
ten day ultimatum for the deceased to settle some alleged marital properties on her.
The Plaintiff in the letter admitted the deceased had gone ahead to marry another
woman and mentioned that the deceased had fathered seventeen children. He also said
the deceased refused to perform the in-law rites when the Plaintiff’s mother died. The
Plaintiff also said that should the deceased fail to settle the properties on her, she
would proceed to the German court to assert her right on the grounds of desertion.
[36] He said that upon receiving the letter, the deceased informed his family of the
content and denied all the allegations of abuse and fathering seventeen children against
him.
[37] He continued that the deceased stated that for over ten years that he was sick
and returned to Ghana, the Plaintiff took over his properties and businesses in Germany
so he has settled her and has nothing to do with her and that message was conveyed
to the Plaintiff and her family during the lifetime of the deceased.
[38] He added that the deceased informed his family there was no more marriage
between him and the Plaintiff and that for over ten years if he needed to communicate
with his three children, he had to go through a third party. He attached proof of
financial support from the deceased to the children through a third party and added
that all the family of the deceased acknowledge D2 as the current wife of the deceased.
[39] He said even the children of the Plaintiff when in Ghana live with D2 in their
matrimonial home and they affectionately refer to her as “mummy.”
[40] He added that for the last fifteen years of the deceased last days on earth, he
was married to D2. He lived with her and their children and in all public appearances
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including meeting with Presidents and chiefs, the deceased showcased D2 as his legally
married wife and the Plaintiff never challenged that fact.
[41] D1 mentioned that, the Plaintiff never took steps to cite the deceased for
bigamy or to bring to the attention of D2 and the family the alleged subsistence of any
valid ordinance marriage between her and the deceased because she acknowledged the
marriage between herself and the deceased as dissolved.
[42] He contended that the deceased for the past fifteen years or more travelled
overseas to perform various international shows including Germany where the Plaintiff
resides but he never visited the Plaintiff and rather ordinarily resided with D2.
[43] Also that the Plaintiff never visited the matrimonial home of the deceased and
D2 on the occasions that she visited Ghana until the demise of Daddy Lumba, testifying
that there was no marriage between them.
[44] According to D1, the performance of burial and funeral rites of a person is
performed in line with customs and traditional beliefs of the deceased person and
widowhood rites. And that it is only the traditionally recognised wife that is allowed to
perform those rites since it has both traditional and spiritual significance.
[45] He added that when the mother of the deceased died, the Plaintiff did not
perform the in-law rites, which is required of every traditionally recognised married wife
because she was not married to the deceased at the time even though she attended
the funeral as a private person. It was therefore a surprise to the family when they
received a letter from the lawyers of the Plaintiff dated 10th September 2025 claiming
that she is the only surviving spouse of the deceased. So the family responded and
denied her claim and informed her that the only recognised wife the family knows is D2.
[46] He maintained that since the demise of Daddy Lumba, it is only D2 that has
assisted with all the necessary arrangements towards the performance of the burial and
funeral rites and that the Plaintiff only came to pay homage to the family and left
immediately for Germany to continue with her business.
[47] He said the family finds the actions of the Plaintiff as inhumane, disgraceful and
an insult to the customs and traditions of the Akan people particularly the Ekuona
family of Parkoso and Nsuta. He said the family finds it difficult to understand why the
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Plaintiff after abandoning the deceased in his difficult times and taking over all his
properties and businesses in Germany for about seventeen years to appear upon the
demise of Daddy Lumba to claim that she was the only wife of the deceased.
[48] He said the family of the deceased was not made aware of any registration of
their marriage in Germany and that marriage if any did not have any traditional effect
as far as the family is concerned. He tendered in evidence a copy of the letter
confirming dissolution of the customary marriage, proof of financial support from the
deceased to the children through a third party, copies of pictures and videos confirming
D2 as wife by family, copies of pictures and videos confirming appearances by the
deceased and D2 as wife, copy of video by the deceased confirming who did the in-law
funeral when the mother of the deceased died, and copies of letters written by Plaintiff
‘s lawyers and the responses from the family.
2ND DEFENDANT’S CASE
[49] D2 did not testify in person but she called a witness, James Beniako Boateng
(DW1). He is a tax administrator by profession and an in-law to D2. In his evidence-inchief he says D2 is popularly known as “Odo Broni” being the pet name given to her by
the deceased husband in his show business circles. He said D2 is the younger sister of
his wife and he got to know her when he was dating her sister sometime in 2006 at the
time D2 was a Senior High School student. He continued that D2 later attended nursing
training school in Accra and he first saw the deceased Daddy Lumba with D2 together
during a funeral ceremony at D2’s hometown, Kwahu Aduamoa. They maintained their
relationship for about four years before they got married.
[50] He further said that at the marriage ceremony of D2 and the deceased, he
represented his wife who had travelled and matters relating to the previous marriage of
the deceased and Plaintiff came up during the family meeting where the deceased
mentioned that his marriage with the Plaintiff had broken down in Germany before he
relocated to Ghana and that there was nothing between him and the Plaintiff as man
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and wife. He said the deceased further stated that since he came to Ghana, there has
not been any relationship between him the Plaintiff.
[51] According to DW1, the deceased confirmed the breakdown of his marriage to
the Plaintiff in Germany before his relocation to Ghana during the final ceremonial
questioning at the customary marriage between him and D2. He said the marriage took
place in April 2010 at the deceased former house at Tantra Hills being part of the plan
to stay out of the sight of the prowling media.
[52] He maintained that the deceased was a very private person who always shied
away from the media in spite of being a showbiz man and during the marriage
ceremony he insisted that there should be no media coverage of the event. He
continued that D2 and the deceased stayed in the deceased’s house at Tantra Hills
before they moved to their present matrimonial home at East Legon sometime in 2016.
He added that the couple altogether had six children and a birth certificate of the first
child was tendered in evidence.
[53] He stated that he is aware of the late Daddy Lumba’s sickness that led to his
surgery at Focos Hospital sometime in 2013. He said the deceased and D2 had a very
close relationship and they travelled locally and internationally together and undertook
many business ventures together during the lifetime of Daddy Lumba. They lived
together peaceably at their matrimonial home at East Legon where from time to time,
the deceased first three children paid visit and lived peacefully with D2.
[54] He continued that the deceased composed many love songs for D2 and publicly
paraded her as his lawful wife without any protest or objection by the Plaintiff.
[55] He said he got to know Daddy Lumba’s last sickness that took him to the Bank
Hospital at Cantonments in Accra sometime July 2025 and he took part in a conference
prayer for the divine healing before Daddy Lumba unfortunate and unexpected death.
He said after the demise of Daddy Lumba, friends, sympathizers both locally and
internationally thronged to his house at East Legon to pay tribute and commiserate with
the family.
[56] He stated that from the very first time D2 met Daddy Lumba till his death the
Plaintiff never showed up anywhere to protest her marriage to the deceased. He adds
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that at the main vigil to mark the occasion of Daddy Lumba’s passing, D2 was officially
recognised and called upon to pay tribute to Daddy Lumba as the surviving spouse
without any protestation or objection from the Plaintiff who was physically present at
the occasion.
[57] He further said that during the one week observation, D2 similarly was formally
acknowledged as the surviving spouse of Daddy Lumba without any objection from the
Plaintiff. He said D2 has at all time respected the Plaintiff as an elderly lady and even if
not an ex-wife of her husband she is the mother of the three step children she has
positioned herself to foster a very strong bond of unity between all the children as her
late husband desired. He said that D2 does not harbour any resentment towards the
Plaintiff and has always hoped and desired this unfortunate dispute to end so that her
late husband will finally be laid to rest.
[58] He tendered in evidence a video of the deceased confirming that when his
mother passed, it was Theresa Abebrese who performed the in-law rites. Also in
evidence are videos of the deceased celebrating his wife Priscilla on mother’s day, a
video in which Daddy Lumba is talking about his wife Priscilla’s mother and
grandmother whose interaction with him inspired the song “Ye ne wo sere kwa,” a
video of the couple and their children at the airport en route to London for a show, a
video in which Daddy Lumba is heard talking about the history of the twins in his family
that has resulted in his wife Priscilla also bearing twins.
[59] All the videos are with a certified transcription in English. He added pictures of all
the children of the deceased together during one of their visits to the matrimonial home
of their deceased father and D2, picture of Daddy Lumba with D2 exchanging
pleasantries with former President Nana Addo Dankwa Akufo-Addo and former first lady
of Ghana, picture of the late Daddy Lumba with D2 paying a courtesy call on the former
Inspector General of Police, Dr. George Akuffo Dampare in his office on 25th January
2023, a video of Daddy Lumba appreciating his wife Odo Broni in an interview with TV3
on 12 June, 2015, and a video of the late Daddy Lumba interacting with President John
Dramani Mahama at the Jubilee House on 1st July, 2025.
3
RD DEFENDANT’S CASE
The D3 did not testify or call any witness.
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1V. EVALUATION OF EVIDENCE, FINDING OF FACTS, AND APPLICATION
OF THE LAW.
[60] Before I make my findings in respect of the issues before the court, I wish to
discuss the burden of proof on each of the parties.
[61] It is a basic principle of law of evidence that a Plaintiff in a civil case has the
legal and evidential burden to produce admissible evidence to prove his/her claim and
assertions on the preponderance of probabilities. See Sections 11(4); 12(1) and 14
of the Evidence Act, 1975 (NRCD 323.) This position of the law is reiterated in the
Supreme Court case ADWUBENG VRS DUMFEH [1996-97] SCGLR 660 where the
court crystallized the standard of proof required in all civil actions at holding 3 of the
head note as follows:
“Section 11 (4) and 12 of the Evidence Decree, 1975 (NRCD 323)
(which came into force on 1 October 1979) have clearly provided
that the standard of proof in all civil action was proof by
preponderance of probabilities-no exceptions were made.”
[62] Also in ACKAH VRS PERGAH TRANSPORT LTD [2010] SCGLR 729, Holding
(1) the Supreme Court per curiam, held that;
“It is a basic principle of law on evidence that a party who bears the
burden of proof is to produce the required evidence of the facts in issue
that has the quality of credibility short of which his claim may fail.”
[63] Thus, for a court to decide a case one way or the other, each party to the suit
must adduce evidence on the issues to be determined by the court to the standard
prescribed by law. This position is supported by Section 12(2) and Section 14 of
the Evidence Act 1975 (NRCD 323).
See: ARYEH & AKAKPO v AYAA IDDRISU [2010] SCGLR 891 and
FENUKU AND ANOTHER v JOHN TEYE AND ANOTHER [2001-2002] SCGLR 985
Further, in ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 Aikins JSC
expounded that:
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“The general principle of law is that it is the duty of a Plaintiff to prove what
he alleges. In other words, it is the party who raises in his pleadings an issue
essential to the success of his case who assumes the burden of proving it.
The burden only shifts to the defence to lead sufficient evidence to tip the
scales in his favour when on a particular issue, the Plaintiff leads some
evidence to prove his claim. If the Defendant succeeds in doing this he wins,
if not, he loses on that particular issue”.
[64] By the above statement of the law Aikins JSC reiterated the position of the
Supreme Court that the party who asserts has the burden of proof in the case of
ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728. See also
ZABRAMA V. SEGBEDZI. [1991] 2 GLR 221 and GIHOC REFRIGERATION AND
HOUSEHOLD PRODUCTS LTD v HANNA ASSI [2005-2006] SCGLR 458.
[65] Therefore, the burden is on the plaintiff to prove on the preponderance of
probability that; she is legally married to the deceased Daddy Lumba and that nothing
prevents her from performing the widowhood rites and that she is entitled to be the
sole widow of the deceased Daddy Lumba.
Here, the evidence to be adduced in support of this positive assertion must be credible
evidence as was explained by Georgina Woode CJ in CONTINENTAL PLASTICS
ENGINEERING CO. LTD. VS. IMC INDUSTRIES-TECHNIK GMBH (2009) SCGLR
298 AT 307.
[66] This credible evidence as held by the Supreme Court is any corroborative
evidence that exist and which was likely to be believed by the Court as true ought to be
provided.
See FOSUA & ADU-POKU VRS ADU-POKU MENSAH [2009] SCGLR 310.
[67] It is only when the Plaintiff has been able to established her claims in satisfaction
of the burden of proof and persuasion that the burden shifts onto the Defendants for
them to disprove the Plaintiff’s case.
[68] Also, in a situation where there is a counterclaim, the counterclaimant is deemed
to be the plaintiff in respect of the counterclaim.
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The Supreme Court in the case of GBEDEMA v. AWOONOR-WILLIAMS [1970] CC
12 decided among others as follows: “A counterclaim is to all intends and purposes an
action by the respondent against the applicant. It is an independent and separate
action”.
[69] From the above, it is settled, that a counterclaim is in law a separate and
independent action which is tried together with the original claim of the plaintiff.
Therefore, if in the course of an action in which there is a counterclaim, the plaintiff
action is struck out, dismissed, discontinued or stayed, the defendant can proceed to
prosecute his counterclaim.
See: FOSUHENE v. ATTA WUSU [2011] 1 SCGLR 273
IN RE WILL OF BREMANSU; AKONU-BAFFOE & ORS v. BUAKU & VANDYKE
(SUBSTITUTED BY) BREMANSU [2012] 2 SCGLR 1313
OSEI (SUBST. BY) GILARD v. KORANG [2013-2014] 1 SCGLR 221
[70] In this case, D2 has a counterclaim. Therefore, the Plaintiff as well as the D2 are
to prove their respective cases on the preponderance of probabilities.
In the case of VERONICA OPOKU v. MARYLARTEY [ 2018 ] 119 GMJ244, the
Supreme Court held at page 258 that “It is pertinent to note that the 1
st
defendant
having filed a counterclaim assumed the position of the plaintiff in the counterclaim and
was therefore under a duty to discharged the burden of persuasion on the issue”.
See EMMANUEL AZAMETI v. DINGLE ATTIPOE KWAKU NYATEFE [2023] 183
GMJ 1 SC
[71] Therefore, just as the Plaintiff is to prove her claim on the preponderance of
probabilities, the D2 is also required to prove her counterclaim on the preponderance of
probabilities.
[72] In this case, there is enough uncontroverted evidence on record that the court
need not devote time to determine them even though some of them are part of the
issues set down at the direction stage as issues to be determined at the trial.
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a) It is undisputed from both parties’ evidence on record that the deceased Daddy
Lumba was a successful musician, a national icon, and he composed songs for all
the women in his life.
b) It is undisputed that the late Daddy Lumba was born in Ghana, lived in Ghana,
travelled to Germany, and became a citizen of Germany.
c) It is undisputed that the late Daddy Lumba hails from the Royal Family of
Parkoso and Nsuta Ashanti.
d) Also not in dispute is the fact that the late Daddy Lumba married the Plaintiff
customarily in Ghana before they returned to Germany.
e) Also that the late Daddy Lumba relocated to Ghana for medical attention.
f) Another undisputed fact is that the late Daddy Lumba lived at Tantra Hills before
moving to East Legon.
g) It is again not disputed that the late Daddy Lumba had three children with the
Plaintiff, six children with D2, and two children with other(s) making it eleven
children.
[73] In the case of FATAL v WOLLEY [2013-2014] 2 SCGLR 1070 at
page 1076, Georgina Woode CJ (as she then was) said as follows:
Admittedly, it is indeed sound basic learning that courts are not tied down
to only the issues identified and agreed upon by the parties at pre-trial.
Thus, if in the course of the hearing, an agreed issue is clearly found to be
irrelevant, moot, or even not germane to the action under trial, there is no
duty cast upon the court to receive evidence and adjudicate upon it. The
converse is equally true. If a crucial issue is left out, but emanates at the
trial from the pleadings or the evidence, the court cannot refuse to
address it on the ground that it is not included in the agreed issues.
See: ENVIRONMENTAL DEVELOPMENT GROUP LTD v PROVIDENT
INSURANCE CO. LTD AND 2 ORS [2020] 165 GMJ 39 SC
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[74] The law also allows a court not to restrict itself to the resolution of all the issues
set down in the application for directions. The law is that a court of law is not bound to
consider every conceivable issue arising from the pleadings and the evidence, if in the
opinion of the court, few issues could legally settle the matter in accordance with law.
See: VINCENTIA MENSAH v NUMO ADJEI KWANKU II [2018] 117 GMJ 76 SC
[75] I must state that some of the issues will be determined together as they are
intertwined and will also not be in the order as listed during the direction state.
[76] The first issue to be determined is whether or not the Plaintiff is the only
surviving spouse of the late Charles Kwadwo Fosuh aka Daddy Lumba. This issue
required the Plaintiff to lead evidence to the satisfaction of the court that she was
married to the late Daddy Lumba, that the marriage contracted was not polygamous,
that at the time of death of the Daddy Lumba their marriage had not been dissolved.
She is also required to provide sufficient, properly authentic documents which are not
contradictory and legally valid in Ghana.
[77] Here, the Plaintiff testified through Georgina Osei Bonsu and she tendered in
evidence a Power of Attorney (Exhibit A) which was objected to by all the Counsel for
the Defendants. They had concerns with the dates the signature of the Plaintiff was
executed on the document and when it was notarized. From the document, the Plaintiff
signed it on the 16th October 2025 and it was allegedly notarized on 23rd October 2025.
Meanwhile, the notarized certification says; “I hereby certify, that the above is the true
signature, subscribed in my presence, of…”
Clearly, that was not the case as the representative of the notary could not have been
present on the 16th of October 2025 when the Plaintiff allegedly signed the document.
What is rather clear though is that the signature was signed and witnessed by Prince
Daniel Kwarteng.
[78] Counsel for D2 raised issues of the signature purported to be for the Plaintiff as
appended on the document and as seen in the passport copy of the Plaintiff, Exhibit
CFK1. He is of the view that the signatures are significantly different from each other.
Counsel further argues that when the original of Exhibit A was presented, it was
different in font, font size, and margins. The court did not accept counsel for D2’s
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submission regarding the signature since the court is not a signature expert and cannot
engage in imagination expedition.
[79] Counsel for the Plaintiff in the written submission at page 14 relied on Florini
Luca & Anor v Mr. Samir & Ors (2021) JELR 107275 to the effect that the plain
purpose of the presence of a witness when it comes to power of attorney is to attest
the instrument. He argues that the vital question the court should address its mind to is
whether the plaintiff executed the instrument in the presence of the witness.
I have considered all the objections and or concerns raised and the response given by
counsels and I am of the view that Exhibit A was witnessed and notarized and as such
it is accepted as the instrument giving power to the Georgina Osei Bonsu to testify for
and on behalf of the Plaintiff. See Section 1(1) of the Power of Attorney Act,
1998 Act 549 which states:
(1) An instrument creating a power of attorney shall be signed by
the donor of the power, or a person authorized by the donor in
the presence of the donor.
(2) Where the instrument is signed by the donor of the power
one witness shall be present and shall attest the instrument.
From the above and as earlier stated, Exhibit A meets the standard required and
hence it is accepted and cannot be disregarded.
[80] Before I proceed to the evidence of the Plaintiff let me firstly address some
major topics which this case has raised. I have earlier indicated that this case has
generated much public interest and the public is interested in certain topics from the
news. It is for this reason that this judgment is not only seeking to resolve the disputes
before her but to also use the opportunity to educate and enlighten the general public
on certain sensitive matters.
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[81] Types of marriages in Ghana
1. In Ghana, there are three main types of marriage which are Customary,
Ordinance, and Islamic. Each type of marriage is independently valid and legally
recognized.
2. Customary marriage is celebrated under the customs and traditions of the
couple’s tribe or ethnic group. It is mostly based on consent. There should be
consent from the two families of the man and woman, consent from bride and
groom and a celebration to mark the covenant. Customary marriage in Ghana
involves an exchange of a dowry or head drink between the families signifying
consent, acceptance, and support. It can be registered under the Customary
Marriage and Divorce Registration Law 1985, PNDCL 112. It is potentially
polygamous meaning that a man can have more than one wife and there is no
limit to the number of wives as long as he remains married under customary law.
see GRAHAM V GRAHAM [1965] GLR 407.
3. Ordinance Marriage is a statutory, monogamous, and civil union that must be
registered, executed by the parties marrying and a marriage certificate is given
to the parties. It is strictly monogamous which means that a couple can only
have one spouse – one man –one woman. It requires a formal registration
processes at a district or municipal Assembly or at the Court registry. In Ghana
mostly among the Christians, they marry under customary law and then convert
the customary marriage to ordinance. Once a marriage is converted to
ordinance, it extinguishes all the rights and privileges guaranteed under
customary marriages. See COLEMAN V SHANG (1959) GLR 390 .
4. The last type is Islamic marriage, which is conducted under Islamic law and
officiated by an Islamic religious leader and also potentially polygamous. Both
couples must be Muslims and must be registered under the Marriage of
Mohammedans Ordinance. The registrar of Mohammedan marriages and divorce
must be notified within a week of the marriage and it can only be officiated by
an Imam, a Sheikh, or a Kadhi. A man is allowed to marry up to four wives and it
should not be between family relations and cousins.
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5. It must be stated that whilst the court is mandated to grant divorce in respect of
monogamous marriages under the Matrimonial Causes Act (Act 367) but when it
pertains to customary marriages the court is enjoined to consider the customary
rules and personal law of the parties in granting incidental reliefs.
[82] Proving a valid marriage
1. The primary and direct proof of a valid ordinance marriage is the performance of
the marriage. But a combination of other documents corroborating the
performance of the marriage is more convincing than a single document.
2. There are situations where the marriage certificate may not be enough to prove
marriage. For instance, non-consummation of the marriage nullifies the union or
mental incapacity of a spouse or the marriage was not legally solemnized in
cases of fraud or there are issues with the marriage certificate itself. Again where
the marriage is void ab initio, then the certificate may not be considered as
sufficient prove of a valid union.
3. In a situation where one of the spouses was already married to a third party
under any of the types of marriage before marrying under the ordinance, or that
the marriage was fraudulently contracted, the ordinance marriage certificate may
not be considered as prove of a valid marriage. See Section 46 of the
MarriageAct 1884-1985, CAP 127.
4. Similarly, a person who has converted his customary marriage to an
ordinance/civil marriage cannot legally marry another wife under any of the three
types of marriage in Ghana.
Thus, beside consummation, a marriage can be annulled if
1. One or both of the parties were minors when the marriage occurred
2. One of the parties was married to someone else
3. One spouse was forced into the marriage
4. There was evidence of fraud or deceit
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5. The woman was pregnant for another man
6. Incest
5. The list is not exhaustive. When any of the above conditions prevail, the
marriage certificate alone cannot be waived to prove the validity of the marriage.
The marriage is voidable and same can be annulled.
See. ERNESTINA BOATENG V PHYLLIS SERWAA AND 2 ORS, CIVIL APPEAL
NO. J4/08/2020 DELIVERED ON 14TH
APRIL 2021 SC.
[83] I now return to the first issue where I earlier stated that it is for the Plaintiff to
adduce evidence to the satisfaction of the court that:
1. She was married to the late Daddy Lumba under the civil registry marriage of
German.
2. That marriage is a monogamous one
3. That monogamous marriage was not dissolved until his demise.
Here, the Plaintiff is required to provide sufficient, properly authentic documents which
are not contradictory and legally valid in Ghana as prove of her civil marriage to the late
Daddy Lumba. This is very crucial because, it is only a monogamous marriage which
when one contracts bars the party from contracting another marriage unless it is
dissolved.
The lawful attorney under paragraph 5,6, 12, of the evidence-in- chief states that the
Plaintiff and the late Charles Kwadwo Fosuh married on the 23rd day of December, 2004
under the German Law at the Civil Marriage Registry, Bornheim, Germany. This
evidence mirrors paragraph 2 of the Statement of Claim of the Plaintiff.
[84] The first point for the court to ascertain is the determination of the applicable
foreign law in Ghana since from the evidence of the Plaintiff, the marriage was
contracted under the German Law. Section 1(2) of the Evidence Act provides as
follows:
2) The determination of the law of an organisation of states to
the extent that such law is not part of the law of Ghana, or of the
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law of a foreign state or sub-division of a foreign state, is a
question of fact, but it shall be determined by the court.
(3) The determination whether a party has met the burden of
producing evidence on a particular issue is a question of law to
be determined by the court.
Here, the courts of a country is presumed to be well versed only with the laws of its
country and can only apply its local law and foreign law operates as a question of fact
and not as law especially under common law countries and there are many decided
cases to that effect.
See MONROE V DOUGLAS, (1820) 5 MADD. 379, 56 E.R.940 and
SUSSEX PEERAGE CAZSE, 11 CL. & FIN. 85, 8 ENG. REP. 1034 ( H.L. 1844).
This is to state that a foreign law must be proven by the party usually through an
expert witness or evidence and a judge is not expected to automatically take judicial
notice of such foreign law.
[85] Thus, the Plaintiff must prove that she and the late Daddy Lumba contracted a
civil marriage under the German law through an expert witness such as a qualified legal
practitioner or an academician about civil marriage under German law means and the
standard of proof is upon the balance of probabilities.
See GODKA GROUP V P.S. INTERNATIONAL (1999-2000) 1 GLR 409 AT 424
where it was held that:
“The general principle has been that no person is a competent
witness unless he is a practicing lawyer in the particular legal
system in question, or unless he occupies a position or follows a
calling in which he must necessarily acquire a practical working
knowledge of the foreign law.”
It is required that a foreign law must be proved afresh any time it is pleaded since the
foreign law may have changed and it is proven on a case by case basis.
In the case of AMA SERWAA V GARIBA HASHIMU AND ANO., CIVIL APPEAL
NO. J4/31/2020 DELIVERED ON 14TH
APRIL, 2021 per Kulendi JSC the court held
among others as follows:
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“Foreign law, is a question of fact and ought to be pleaded and
proven at the trial stage. The method of proving foreign law, is
by offering expert witnesses. Merely presenting a lawyer with
the text of a foreign law will not be sufficient.”
Thus, a foreign law can only be proven by calling an expert witness. Even though the
court is not bound to accept the opinion of an expert witness, as it is of best persuasive
influence, it is to assist the court to arrive at a conclusion after examining the entire
evidence.
See FENUKU V JOHN TEYE ( 2001-2002) SCGLR 985 PER AMPIAH JSC,
TETTEH & ANOTHER v HAYFORD (SUBSTITUTED BY) LARBI AND DECKER
[2012] 1 SCGLR 417.
[86] The decided cases provide the ratio decidendi in determining foreign law
and this is in line with section 1 (2) of the Evidence Act. The precedent
adumbrates that it is the court that determines the weight to be accorded to the
evidence of the expert witness. It is for this reason that the court has to give
reasons for rejecting an expert evidence.
[87] In this case, the Plaintiff did not satisfy the requirement of the rule insofar
as proof of foreign law is concerned by calling an expert witness to give evidence
on the foreign law in issue. What constitute marriage under the civil law of
German law was not proven by the Plaintiff. In that case, the court is to presume
that the German law is the same as Ghana law.
Under Section 40 of the Evidence Act, it says:
Section 40—Foreign Law.
“The law of a foreign state is presumed to be the same as the law
of Ghana.”
Hence, the court can only presume that the civil marriage in Ghana is the same
as a civil marriage in Germany. In Ghana, the marriage under the ordinance is
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one likely to be presumed to be the same as the civil marriage in Germany. This
is a presumption and it can be rebutted. In proving this rebuttable presumption
of a civil marriage between the Plaintiff and the late Daddy Lumba the Plaintiff in
paragraph 7 of her evidence–in-chief states that “attached is a copy of the
notarized and certified German Marriage Certificate between the Plaintiff and her
deceased husband.”
[88] The tendering of this marriage certificate was objected to by the learned
counsel for the Defendants. This objection had been raised during the hearing of
the application of the interlocutory injunction on the 28th of October 2025. The
court rejected the document and advised counsel for the Plaintiff to ensure that
they complied with the requirements under the Evidence Act. It is therefore a
surprise that the Plaintiff did not comply with the requirements nearly a month
later.
[89] Section 6 of the Evidence Act says that in any action, any objection to
the admissibility of evidence by a party affected thereby shall be made at the
time the evidence is offered.
See ARYEH & KAKPO V AYAA IDDRISU [2010] SCGLR 891
It must be stated that the court is duty bound to consider and evaluate any
document if it indeed is inadmissible and to reject same if the court find it as
such.
[90] Upon a look at Exhibit B and B1 being the purported marriage certificate
and its translated copy and also the purported original that was brought before
the court by Counsel for the Plaintiff for the court to compare after the Plaintiff
had closed her case, the court agrees with counsel for the Defendants that the
purported marriage certificate as submitted has no probative value.
Here, the purported marriage certificate is a foreign document bearing a foreign
official signature. Section 161 of the Evidence Act provides that:
Section 161—Foreign Official Signatures.
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(1) A signature is presumed to be genuine and authorised if it
purports to be the signature, affixed in his official capacity, of an
official of an international public entity or a State or a public
entity in a State recognised by Ghana and the writing to which
the signature is affixed is accompanied by a certification of the
genuineness of the signature and official position of the person
who executed the writing.
(2) Such certification must be signed and sealed by a diplomatic
agent of Ghana or of a Commonwealth country who is assigned
or accredited to that country.
(3) If reasonable opportunity has been given to all parties to
investigate the authenticity of a foreign official signature, the
court may, for good cause shown, order that it be treated as
presumptively authentic without a certification.
[91] These required provisions were not adhered to by the Plaintiff. At page 18
of the written address by the Plaintiff not only did counsel admit that same was
not done but with the explanation that there are practical hardship in meeting
the statutory demands of section 161 (2) of the Evidence Act. And yet, in the
answer to interrogatories, the first question was answered to show that an
authentic version of the marriage certificate certified by the consular Ghana
mission in Germany was attached which was not the case. This interrogatory was
answered by Richard Opare Darko (ie clerk of the Plaintiff’s solicitors) who is not
fit to do so since he is not the lawful attorney of the Plaintiff. There is on record
a lawful attorney and yet the said Richard Opare Darko went ahead and
answered on oath the interrogatories of matters he had no personal knowledge
of. Supplying untruth answers as clearly the attached document is not
authentically certified document was rather unfortunate and the law clerks
should desist from such unlawful acts.
[92] I must state that there is a distinction between the legal burden of proof and
evidential burden of proof. When it comes to the legal burden of proof, anyone who
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makes an assertion bore that burden to prove those assertions but when it comes to
the evidential burden of proof it is a tactical onus. Here, a party is to produce evidence
in support of an assertion to contradict or weaken the evidence that has been led by
the opponent.
See AKUFFO-ADDO, BAWUMIA& OBETSEBI LAMPTEY V. MAHAMA &
ELECTORAL COMMISSION (NO.4) (2013) SCGLR )SPECIAL EDITION) 73
[93] Let me state that the Plaintiff should have attempted to certify the
German marriage certificate and by that she could have tendered in evidence
such attempt being a letter written to the Ghana embassy requesting for the
certification.
[94] Besides the lack of certification or authentication, counsel was to bring the
original certificate for the court to sight and compare since the court was
informed that there was an original certificate. However, what was brought to
the court was an extract from a family book or diary which Counsel for the
Plaintiff admitted to in open court. The document therefore could not be the
original and its copy being Exhibit B. Therefore, the extract cannot be proof of a
civil marriage between the Plaintiff and the late Daddy Lumba. The extract is
significantly different from the document purportedly tendered in evidence as the
marriage certificate.
[95] Also, Counsel for D2 in his written address challenged the extract brought
in as the original certificate in detail. The court is convinced that the family book
cannot be the original as it rightly says it is an extract on the face of the
document. Counsel for D2 relied on Hussey v Edah (1992-93) 4GBR 1707-
1722 to the effect that all foreign documents are to meet the requirement of
certification by the issuing country or attestation by the issuing officer and that
the Ghana mission in that foreign country ought to attest to the validity of the
document.
[96] The court agrees with the Defendants’ counsel on this issue. This is because
section 136 of the Evidence Act provides that:
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Section 136—Authentication.
(1) Where the relevancy of evidence depends upon its
authenticity or identity, so that authentication or identification is
required as a condition precedent to admission, that requirement
is satisfied by evidence or other showing sufficient to support a
finding that the matter in question is what its proponent claims.
(2) Permissible means of authentication or identification include
but are not limited to, those provided in sections 137 to 161.
[97] Here the purported extract from the marriage registry is a foreign document
bearing a foreign signature. The Evidence Act specifically provides the condition
precedent for its admission by providing the means under section 161. This means that
when it comes to foreign signatures they can only be admitted in evidence where those
conditions are met as held in the case Hussey v Ebah supra at 1722.
[98] Hence, Exhibit B must bear the authentication and certification of the marriage
registrar of the civil office of Bornheim marriage registry. After that the law mandates
the person to take the certification to Ghana embassy in Germany and seek another
certification from the head of consulate of the Ghana embassy before the court can
consider it. Without it the court cannot consider it as there is nothing before the court.
[99] The Plaintiff’s witness, Ernestina Fosuh under paragraph 8 of her
evidence-in-chief averred that she was present when the Plaintiff and the
deceased married under the German Civil law. During cross examination, she
answered that she was there when the late Daddy Lumba and the Plaintiff
signed the marriage certificate. She acerbated that:
Q. Did you see the Plaintiff and Daddy Lumba sign the marriage certificate?
A. I was there.
Q. Per paragraph 8 of your own witness statement, you claimed the only person
who witnessed the marriage was Georgina and not you.
A. Daddy Lumba my brother took myself and one lady called Georgina to
Germany on the same day so we were living with them in Germany.
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Q. You agree with me that your brother and the Plaintiff signed the marriage
certificate.
A. Once they are married they will sign a marriage certificate.
[100] The answers provided by PW1 are clear that a marriage certificate must
have the signatures of the couples and if not the more reason an expert witness
should have been brought by the Plaintiff to speak to the prominent features of a
valid marriage certificate from Germany. Then a look at Exhibit 0 series is
supposed to be Daddy Lumba and the Plaintiff signing a document.
If the evidence is true, then a marriage certificate bearing the signatures of the
parties should have been submitted or tendered in evidence. In the alterative the
absence of such signatures on the marriage certificate from Germany should
have been affirmed by an expert witness.
[101] Ghana marriage certificate has the signatures of the couples and
signatures of their witnesses. If the court is presuming German law to be the
same as Ghana law then same should be seen unless rebutted which was not
done in the instant case. In that respect, the marriage certificate should have the
signatures of the parties contracting the marriage. However, there are no
signatures for the Plaintiff or the deceased on exhibit B as presented. Hence,
what is presented to the court cannot be the marriage certificate. It has already
been said that what was presented is an extract or a record of registry in
Germany, without any explanation. It is the more reason that the document
should have been authenticated and the signature identified and certified as
required by NRCD 323.
[102] The same document is seen attached to Exhibit C being the letter
allegedly written from the German Embassy. The last paragraph of Exhibit C says
that: “Attached you find a copy of the said marriage certificate for your perusal.”
The document attached to Exhibit C is supposed to be the same document as
Exhibit B but it has a different signature and date. The document is signed by
Geis Standesbeamter dated 23/10/2025.
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Then Exhibit B, supposedly the marriage certificate has the signature of one
Berchem, Standesbeamtin dated 12/08/2025. The two documents look similar
with similar information but there is no explanation as to why each has a
different signature and date. The court has not been given any explanation as to
what exactly Exhibit B is since what was brought as the original was said to be
an extract. And even if it is the marriage certificate, same cannot be relied on by
the court as they were not authenticated or identified and certified contrary to
Sections 136 and 161 of the Evidence Act.
[103] Also Exhibit C emanating from a foreign embassy has to undergo
authentication and certification or the person who executed it should have been
called to testify. I must state that it would be a herculean task to bring any
foreign consular officer to the jurisdiction of any court in Ghana due to
sovereignty issues.
But the fact still remains that the document was not certified or identified as
prescribed by law. It must be noted that even though the German Embassy is
physically located in Ghana, it is not on Ghana’s territory or jurisdiction due to
sovereign and diplomatic immunity. With that in mind any document from the
Embassy should be taken to be from a foreign state or sub-division of a foreign
state as provided under section 161 of the Evidence Act.
[104] The proof of a civil marriage requires documentary prove in the form of a
marriage certificate, marriage license together with other executed documents
by the parties and videos of the ceremony and cannot be proved by conduct as it
is in the case of customary marriages. The Plaintiff did not tender in evidence
any video aside the purported marriage certificate. Even Exhibit 0 series was
tendered in evidence through DW1 after the Plaintiff had closed her case and so
the Defendants could not cross examined the Plaintiff’s witness on same. Exhibit
O series are photographs purporting to be that of the Plaintiff and the deceased
signing a document.
Without the marriage certificate and or a video the court cannot prove the civil
marriage on a photograph alone especially in the era of photo shoots and
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Artificial Intelligence, the court is cautious in accepting photographs alone
without further credible corroborating documentary evidence where prove of a
fact demands a strict documentary proof.
[105] Thus the court finds as a fact that the Plaintiff could not prove her
marriage which she alleged was contracted under German Law since proving a
foreign law is a matter of fact. She also could not satisfy the presumption that
she contracted that marriage by providing an authentic, identified, certified copy
of the marriage certificate.
[106] Consequentially, for the contradictions, lack of authentication or
identification, and lack of certification Exhibit B, B1, and C are hereby rejected as
they have no probative value and would not be considered for purposes of
proving any civil marriage between the Plaintiff and the deceased.
[107] This court has the right not to accord to the said Exhibits any probative
weight. The law is settled that if inadmissible evidence has been received with or
without objection, it is the duty of the trial judge to reject same when giving his
judgment or ruling and to determine the weight to be accorded such documents
when giving his judgment. And if it is not rejected by the trial court, it will be
rejected on appeal. This is because it is the duty of the court to arrive at their
decision upon legal evidence only especially so where all the counsels for the
Defendants objected to them. See: FRIMPONG & ANOR V ROME [2013] 58
GMJ 131 CA
JUXON-SMITH V KLM DUTCH AIRLINES [2005-2006] SCGLR 438
THOMPSON V TOTAL GHANA [2011] 34 GMJ 16 SC .
[108] On the strength of the above authorities, I will exclude exhibits B, B1 and C as
they are not of probative value. I have considered Section 5 and 161(3) of the
Evidence Act in rejecting the exhibits. In the case of WEST AFRICAN ENTERPRISE
LTD V WESTERN HARDWOOD ENTERPRISE LIMITED [1995-96] 1 GLR 155,
the Court held that when in a trial any exhibit is found to be ineffective and invalidly or
inadmissible, the court ought to consider further whether apart from the inadmissible
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exhibit, there is no other admissible evidence and materials on the record to sustain the
party’s claim, the court is duty bound to consider those other matters.
[109] The inadmissibility or invalidity of an exhibit does not mean the automatic failure
of the party’s claim, unless from the pleadings and the evidence, those claims cannot
be sustained on any other ground.
See also, ANTIE & ADJUWUAH V OGBO [2005-2006] SCGLR 494
[110] I will therefore consider the remaining exhibits and the evidence Plaintiff’s
witnesses. The Plaintiff tendered in evidence Exhibit D and D1 being pictures of the
customary marriage between the Plaintiff and the deceased. These pictures were not
objected to and they were admitted in evidence. Both the Plaintiff’s attorney and
witness testified that the Plaintiff was married to Daddy Lumba customarily in 1991 and
led evidence on same before they returned to Germany.
[111] At paragraph 24 and 26 of the evidence–in-chief of the Plaintiff’s attorney,
Exhibit G series was tendered in evidence a video of the deceased at his 60th birthday at
Bayview village where the deceased referred to the Plaintiff as his wife he used money
to pay her head drink. This video rather supports the case that Daddy Lumba married
the Plaintiff customarily and not otherwise and this is more consistent with the admitted
evidence on record.
[112] This evidence was not disputed by the Defendants and thus the court accepts it
as a fact that the Plaintiff was married to Daddy Lumba customarily in Ghana. As earlier
mentioned customary marriage is potentially polygamous and there is no limit to how
many wives a man can marry.
[113] I then move on to the crux of the issue whether the Plaintiff is the only surviving
spouse. The 2nd defendant counterclaimed that she was validly married under
customary law to Daddy Lumba in his life time and that she is a surviving spouse of
Daddy Lumba. As indicated earlier, she also bears the burden of producing credible
cogent evidence to prove her assertion as a Plaintiff in the counterclaim that the
deceased married her customarily.
[114] D2’s witness testified that she was married to Daddy Lumba customarily in
2010. D2 did not testify in person but under interrogatories she answered under oath
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that she was married to Daddy Lumba and gave a list of the relatives of the deceased.
Her witness testified that he got to know D2 and the deceased sometime in 2006 about
nineteen years ago. He said D2 and the deceased dated for four years before they got
married sometime in April 2010. The only witness testified that he was present at the
customary marriage of the Deceased and D2.
[115] DW1 tendered in evidence four videos and photographs. Exhibit JB1 to JB5
shows a video of the deceased referring to D2 as his wife, expressing his love towards
D2 for being caring towards him and his children. Another video of the deceased
referring to D2’s mother as his mother -in-law and saying he has two mother-in-laws
since D2’s mother and grandmother are both alive.
[116] All the exhibits were admitted in evidence without any objections and they were
not contradicted by the Plaintiff under cross examination. DW1 gave the date of the
marriage ceremony, where it was held, mentioned some names of the people who
attended including the then head of family of the deceased and a representative of the
deceased late mother. He said more than a year after the customary marriage D2 gave
birth to the first child in December 2011. This piece of evidence is corroborated by the
certified copy of the passport bio page of the child.
[117] He gave a vivid account from what happened and the court has nothing to
consider otherwise. I must state that the evidence of DW1, the witness for D2 was
credible, coherent, and consistent. His evidence was not contradicted and he provided
credible answers to the court. The evidence of a single witness if credible and reliable is
sufficient to prove an issue in dispute. After all, witnesses are weighted and not
counted. Therefore, a party does not prove his case by multiplicity of witnesses called
but by the quality or credible or reliable evidence led at the trial by himself or by his
witness.
See: GHANA PORTS AND HARBOURS AUTHORITY & CAPTAIN ZIEM V NOVA
COMPLEX [2007-2008] SCGLR 806
MUZAMA DISCO CHRISTO CHURCH V JEHU APPIAH [2010] 27 MLRG 56 CA.
[118] Furthermore, paragraph 18 of the evidence-in-chief of D1 states that for the last
fifteen years of the deceased last days on earth, he was married to D2 and lived with
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her. He continued that in all his public appearances during those times including
meeting Presidents and chiefs the deceased showcased D2 as his legally married wife.
This evidence was not challenged by the Plaintiff. DW1 attached pictures Exhibit Dl and
a video of some of the public appearance of the deceased and D2. In most of the
pictures, they are dressed in similar colors with the deceased holding her hands or waist
and some with dignitaries like the former IGP. Pictures of D2’s children with the children
of the Plaintiff are also in evidence.
[119] PW1, the elder sister of the deceased under cross examination though she
denied the fact that D2 was married to the deceased, she admitted that D2 is her in-law
as she is caught on tape, Exhibit JB2 series referring to her as her sweet sister-in-law,
loving sister-in-law, among others.
[120] It is noted that customary law marriage can even be accepted through the
conduct of the parties or through long cohabitation and it does not require documentary
proof as marriages under the ordinance do. When PW1 was asked whether her own
family has recognized the Plaintiff as their surviving spouse by giving her up-keep
money, she said she does not know. She also does not know whether her family has
notified the family of the Plaintiff of the death of DL with a drink as custom demands.
She expressed surprise when she was asked whether she knows the Plaintiff is in court
because she wants to be the only surviving widow of the deceased. The answers went
like this:
Q. So as you sit here do you know what the Plaintiff wants the court to do for her.
A. Yes I know.
Q. So you know she wants the court to order that she is the only surviving spouse.
A. I don’t know.
[121] It is very surprising that PW1 who admitted visiting the deceased and D2 right
from the birth of their first child and even the third child is named after her can testify
in court to deny D2 as her sister-in-law. From her own answers under cross
examination she has been very active in the lives of the deceased and D2.
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She confirmed D2 used to call her frequently and according to her the deceased tasked
her to get a place for D2 and his last child to stay in Germany for the child’s passport
acquisition. But for the audios that she sent to D2 which are now in evidence, PW1
would have succeeded in denying that D2 was married to the deceased and that she
was her sister-in-law.
[122] Counsel for the Plaintiff in his written address raised an issue about the venue of
the customary marriage of D2 and the deceased as it took place in the house of the
deceased. I have noted some marriages are contracted at event centres, hotels, parks,
and thus meeting at the deceased house for the customary marriage cannot make the
ceremony invalid as the most important thing is for the families of both parties to meet
and head drink accepted as stated by PW2 and I see no reason to reject his
assessment.
Counsel for the Plaintiff also raised a question on a photograph Exhibit CKF2 tendered
in evidence by D1 indicating a picture of the deceased and D2 which says it is a picture
taken after the deceased had an interview after their customary marriage.
I have already indicated that the evidence of D1 was not given much weight as he had
little knowledge of the life of the deceased. I therefore find as a fact that D2 was
customarily married to the deceased before his demise and also find as a fact that they
got married in 2010. Having so determined, upon the balance of probabilities the
Plaintiff cannot be said to be the only surviving spouse of the late Daddy Lumba.
[123] I must state that even if they had not contracted their customary marriage in
2010, per the Ashanti custom and as confirmed by the PW2, the expert witness on
customary laws of Ashanti, D2 had become a wife of the deceased. This is because,
there are varied ways a customary marriage can be contracted and it goes beyond
celebration. The witness gave many instances under cross examination where a
relationship between a man and a woman can be deemed as customary marriage and I
accept his evidence.
[124] One of such is when an elderly man enters into an amorous relationship with a
young woman and if it is noticed, the family of a woman will sit with the man and if he
accepts to live with the woman as his wife, the parties become a man and a wife. Or
when a man impregnates a woman, accepts the pregnancy, names the child, and
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continues to live with her as husband and wife to the knowledge of all then by their
practice, they are deemed as husband and wife.
[125] Thus, under customary law even though there are prescribed customs and
traditions regarding marriages, there are times some people depart from those
prescribed ways and yet it is accepted by the family as a valid marriage as confirmed by
PW2, the expert witness. Flowing from the above, the first, fifth, sixth, seventh, and
eleventh issues are all determined.
[126] I then move to the other leg of the second issue which is whether the Plaintiff is
the only person entitled to perform the widowhood rite as it has already being
determined that the Plaintiff is not the only surviving spouse.
Widowhood rite
[127] Widowhood rite is incidental to custom and cultural practice of the deceased
family. Upon the death of a spouse, “till death do us apart,” the body of the deceased
returns to its roots, the family. In the case of Daddy Lumba, he is an Ashanti so his
mortal remains belong to his matrilineal Royal Family of Parkoso and Nsuta.
[128] The performance of widowhood rite is not an entitlement as it is not incidental to
being married to the deceased. It cannot also be used to disinherit a surviving spouse
as that cultural injustice has been taken care of under the Intestate Succession Act,
1985 (PNDCL 111). Widowhood is thereby a rite and who has to perform that rite is
determined by custom and in this case the matrilineal family of the deceased through
the head of family in consultation with the elderly women in the family.
[129] PW2 testified that in Ashanti custom, funeral is believed to be both spiritual and
physical and if there is a wife or wives, she or they have to perform the widowhood rite.
It is the women who were customarily married to the deceased who perform the rites
so the applicable law is customary law. Under cross examination PW2 answered among
others the following:
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Q. Is there any grounds that a wife can be refused to perform widowhood rites (kuna)
by the deceased family?
A. When the family realise that the marriage was at the verge of breaking down and
their relation was not well treated by the wife they can refuse the wife from performing
the widowhood rite. At times it is successful and at times, the wife goes to apologise
and there are negotiations and so the wife may be allowed to perform the widowhood
rites.
[130] From the answers given by the witness of the Plaintiff, much depends on the
family of the deceased as to who can perform the widowhood rites. They decide based
on how the spouse treated their deceased relative.
[131] Thus, it is the family of the deceased who has to recognise a spouse as a
widow of the deceased. If the family refuses to accept the widow’s items for the last
bath of the deceased or the burial items that person cannot continue to perform the
widowhood rite. It is thus pertinent for a spouse to respect and live peacefully with the
family of the deceased’s husband and attempt to settle all disputes with them amicably
if she intends to perform the widowhood rite.
Divorce
[132] The combined understanding of reading “THE LAW OF FAMILY RELATIONS IN
GHANA” in which learned author, W.C. Ekow Daniels at page 319 summarized JB
Danquah’s extra-judicial divorce procedure and William E. Offei’s book, Family Law in
Ghana, Fourth Edition, Page 172 Writing under the topic, ‘Dissolution of Customary
Marriages’ together with the evidence of PW2 is that:
6. Dissolution of Akan customary marriage cannot be done without the meeting of
the family of both parties.
7. There should be a complaint made by the aggrieved spouse.
8. The parties are heard in accordance with the rules of natural justice and each
party is given the opportunity of stating his or her case and to answer questions
posed.
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9. After the hearing, a serious attempt is made to reconcile the parties. It is only
where reconciliation fails that the woman is expected to return the head drink.
10.Then properties are shared and or compensation is paid especially in cases of
adultery.
11.The head of family of the man will then make a pronouncement that the
marriage is dissolved by releasing the woman to her family.
12.There are times the meeting will not end with the dissolution but the parties are
given some time to reconcile but where especially the woman after various
attempts thinks she still wants the marriage to be terminated will return the head
drink to the man and his family without another meeting being convened.
[133] On the other hand, in Ghana the Matrimonial Causes Act 1971, Act 367,
governs the law on dissolution of monogamous marriages. Petitions for divorce under
the Act is not open to all persons. Under Section 31 of the Act, “The court shall have
jurisdiction in any proceedings under this Act where either party to the marriage1. is a citizen of Ghana; or
2. is domiciled in Ghana; or
3. has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.”
[134] A party has to prove to the court that the marriage has broken down beyond
reconciliation. This is the sole ground for divorce. That notwithstanding this sole ground
must be evidenced by proof of one of the following:
(a) Adultery (JOHN V JOHN & ANOTHER [1973] 2 GLR 434
(b) Unreasonable Behavior (ADJEI V ADJEI (1969) CC 103)
(c) Desertion (ARKU V ARKU & ABRAHAM [1965] GLR 269)
(d) Separation with consent for two (2) years (ANTWI V ANTWI [1962] 1
GLR 321)
(e) Five years of Separation -without consent ( KOTEI V KOTEI [1974] 2
GLR 172)
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(f) Parties are unable to reconcile their difference despite diligent efforts
(ANSAH V ANSAH GLR 1127)
[135] Although the Court may find one or more of the facts required to be established
for the dissolution of the marriage, the Court shall not grant a petition for divorce
unless it is satisfied, on all the evidence that the marriage has broken down beyond
reconciliation. See DANQUAH V DANQUAH [1978] GLR 371.
Here, there is no evidence on record to show that the late Daddy Lumba went through
customary divorce proceedings with the Plaintiff and thus the letter alone indicating a
return of the head drink to the deceased cannot be relied on to conclude as such.
[136] The next issue is whether or not Plaintiff not living with Daddy Lumba for
seventeen years constituted abandonment. From the Plaintiff’s attorney and witness,
PW1 the deceased relocated to Ghana in 2013. This is what the lawful attorney said:
Q. When did the deceased husband relocate to Ghana?
A. 2013.
Q. On records the deceased Daddy Lumba permanently relocated to Ghana somewhere
in 2007 or 2008 are you aware?
A. The last time I saw him in Germany was in 2014 but permanently in 2017.
Then later after she had denied already given answers
Q. But you will agree with me that some point the deceased relocated to Ghana.
A. I do not know what year.
Q. Can you confirm if at any point the Plaintiff ever relocated to Ghana from Germany?
A. No, she did not.
[137] The Attorney could not answer most questions averred in her own
evidence-in-chief. She had earlier mentioned the Plaintiff could not relocate with the
late Daddy Lumba because she had to remain to pay the mortgage, take care of the
children as they were young and also pay for loan they had contracted. Yet under cross
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examination she could not give any detail on any of the reasons by saying I do not
recall or denying outright. She gave evasive answers and contradicted her own
evidence. She did not know anything about the alleged loan contracted, not the
amount, date, bank and who contracted it. Even PW1 also denied under cross
examination that there was a mortgage to be paid even though that assertion is stated
under paragraph 20 of her evidence-in-chief.
[138] When the attorney was asked;
Q. Can you confirm if the Plaintiff performed any wifey/marital duties to the deceased
when he was in Ghana.
A. She was in Germany and the deceased was in Ghana.
Q. Whilst Charles was in Ghana the Plaintiff was in charge of the properties and
businesses in Germany.
A. I believe so.
[139] These answers confirm that the Plaintiff did not relocate with the late Daddy
Lumba. Meanwhile, it is clear from the evidence on record that he left Germany for
Ghana for medical attention. Even though the attorney mentioned 2013, same cannot
be correct because her own evidence at paragraph 19 she says that the Plaintiff visited
the deceased in 2011, 2012, 2014 and 2018. If the deceased relocated to Ghana in
2013, then the Plaintiff could not have visited him in 2011 and 2012 because he was
not in Ghana.
In any case, these dates mentioned are disputed as D2 was at that time married and
living with the deceased at Tantra Hills before they moved to East Legon in 2016 from
the records. These facts are confirmed by PW1 that D2 was living with the deceased at
Tantra Hills from 2010 to 2016.
[140] Meanwhile, paragraph 8 of the statement of claim of the Plaintiff
mentioned that they have three children with ages 31, 24, and 20 years and same is
repeated under paragraph 13 of the evidence-in-chief of the Plaintiff’s attorney. From
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their evidence the last child is 20 years now so if per her evidence under paragraph 21
that the Plaintiff was nursing the last child, then it means the deceased relocated to
Ghana sometime in 2005 or 2006 and not 2013 as the last born was twelve (12) and
definitely not been nursed or breastfed at age twelve.
[141] It followed that from the Plaintiff’s own account the deceased had been in
Ghana for about nineteen years which is consistent with DW1’s evidence that he met
the deceased with D2 in 2006 and that they dated for four years before marrying in
2010.
[142] Thus, the court can safely infer that the late Daddy Lumba relocated to
Ghana sometime in 2006 about nineteen years ago. And from all account the deceased
and the Plaintiff decided to stay their separate ways.
[143] This evidence is corroborated by PW1 that D2 had three of her children at
Tantra Hills before she moved with the deceased to East Legon. From the records, the
first child of D2 was born in 2011. Therefore, it cannot be correct that the Plaintiff
visited the deceased in 2011, 2012 and 2014.
And even if she did, then she did not stay at Tantra Hills as D2 and the deceased were
staying there. What is mentioned and not disputed though is that the Plaintiff visited
Ghana in 2018 for her mother’s funeral. This account is not disputed by any of the
parties and even that she was at Tantra Hills whilst the deceased stayed with D2 at
East Legon as confirmed by PW1 under cross examination.
[144] Whether nineteen, seventeen or fifteen years it can be said that these
years are more than enough to confirm that the deceased and the Plaintiff had decided
to stay apart. It is not disputed that the deceased had surgery in 2013 at Focos and
yet the Plaintiff did not visit him. From D1’s Exhibit DL9 – video, it is a continuation of
the Plaintiff’s Exhibit G where the deceased mentioned that he was bedridden for more
than five years and expressed his gratitude to D2 for taking good care of him during his
illness.
[145] DW1 also confirmed that the deceased was in a wheel chair when he
visited in 2013 after the surgery. From the video where the deceased himself said he
was bedridden for more than five years means that the deceased could not have visited
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Germany in 2014 as stated by the attorney of the Plaintiff. One thing is clear though
that the Plaintiff’s children visited the deceased and D2 in their home during summer
vacation and there are photographs to corroborate these averments. Aside the
photographs none of the parties disputed the assertions that the children visited the
deceased and lived with him and D2.
[146] So the question is did the Plaintiff divorce the late Daddy Lumba in his life
time? From the evidence on record the court will answer this question in the negative,
though according to Exhibit DL1 a letter written to the deceased from the lawyers of
the Plaintiff, she gave a ten days ultimatum to proceed to German court for divorce.
[147] The letter is addressed to the deceased and the Plaintiff is copied. This
letter is mentioned by the Plaintiff in her reply to D1 at paragraph 9, 11, 17 and yet the
lawful attorney purported to deny she instructed her lawyers to write to him and
labeled it fictitious. The Plaintiff’s reply to D1 was in direct reference to the Exhibit DL1
the letter.
[148] The Plaintiff mentioned in paragraph 7 of her reply to D1 that she
reluctantly agreed for the deceased to return to Ghana but he wanted to explore other
alternative medication in Ghana. In paragraph 6 of the same reply she mentioned that
she was taking care of the deceased whilst he was in Germany before he decided to
relocate to Ghana for alternative care.
[149] It is on record as admitted by the lawful attorney of the Plaintiff that the
deceased had properties and businesses in Germany and it was the Plaintiff who took
over those businesses. And from all indications the deceased planned his relocation to
Ghana. And he would not have left when he knew of a financial burden without making
the necessary provisions.
[150] Due to the fact that the late Daddy Lumba is not around to answer to any of the
allegation even though from all indications and from Exhibit DL11, the deceased denied
all the allegations as contained in Exhibit DL1, the court is cautious in admitting any
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evidence where the late Daddy Lumba is not present to answer especially so where the
Plaintiff waited for his demise before raising them.
[151] In AMANKWAH & ORS VRS NSIAH [1994-95] GBR PT2 p.758, this
court stated inter alia as follows:
“2. The law was well established that a claim against a dead person should be
viewed with utmost suspicion and examined critically. Such a claim must not be
taken on its face;
All test for credibility ought to be applied. The claimant ought to explain the
omission to make the claim while the deceased was alive. Without some
explanation the claim should be considered as false.”
[152] The law is settled, that when an attempt is made to charge a dead person in a
matter, in which if he was alive, he might have answered the charge, the evidence
ought to be looked at with great care. The evidence ought to be thoroughly scrutinized,
and the judge must view it with suspicion. The proof of such assertion against a
deceased must be strict and utterly convincing since the person is dead and cannot
respond.
See: MARGARET OSEI ASSIBEY V JOYCE GBOMITTAH&2 ORS [2012] 47 GMJ
61 SC, FOSUA & ADU-POKU V DUFIE (DECEASED) &ADU-POKU MENSAH
[2009] SCGLR 310, IN RE KRAH (DECEASED); YANKYERAAH& ORS V OSEI
TUTU &ANOTHER [1989-1990] 1 GLR 638 SC.
[153] Thus it is clear from the records that the Plaintiff and the deceased did not
share matrimonial home when the deceased relocated to Ghana but rather the
deceased lived with D2 in the deceased house at Tantra Hill before they moved to East
Legon.
[154] Paragraphs 8 to 10 of the evidence-in-chief of D1 mentioned that the
Plaintiff presented a drink to the Ekuona family for the dissolution of her marriage to
the late Daddy Lumba. He also said that the then head of family with the consent of the
late Daddy Lumba accepted the dissolution drinks and all rituals for the dissolution of
marriage were performed and both families acknowledged the marriage as dissolved.
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He supported his evidence with Exhibit DL1 being a copy of a letter from the Plaintiff’s
lawyers Mercer & Company dated 04/02/2018 and signed by Benjamin Ampoma-Boaten
Esq.
[155] D1 under cross examination admitted that he was not present when the head
drink or dissolution drink was presented to the family. He also did not hear about it that
is why he thought the Plaintiff was still married to the late Daddy Lumba. According to
him he only knew of the Plaintiff and not D2 until after the demise of Daddy Lumba that
he went to the house and met D2. He said it was at that time that he got to know D2
was married to the deceased and has had six children with him.
[156] I must state that since D1 was not around and did not know much about the
happenings of the family members, he should have called another member who was
present and could testify regarding the issues he had raised.
[157] I have no doubt Exhibit DL1 emanated from the lawyers of the Plaintiff. As I
have earlier mentioned the Plaintiff had already admitted same in her pleadings. But the
content of that letter alone cannot be relied on to conclude that the Plaintiff returned
her head drink to the family of the deceased. It is noted that in Ashanti custom
dissolution of a marriage can be initiated by any of the parties to the marriage but the
family members will have to meet and attempt reconciliation first. The meeting of the
family members is very crucial and it is when reconciliation fails that the head drink can
be returned to complete the dissolution.
[158] D1 was not present and he did not call any material witness to testify and
corroborate the assertion that the dissolution drink was received from the Plaintiff or
that the family member met to dissolve the marriage especially so where the Plaintiff
has denied. Even though there are times the dissolution drink can be returned when the
family had not met and it would be accepted as confirmed by PW2. This can only
happen when the family is aware of the couples’ irreconcilable differences. D1 was not
aware of anything about the deceased and the Plaintiff and as such his evidence cannot
be relied on by the court.
[159] I agree with counsel for the Plaintiff in his written address that intention to
dissolve a marriage could not be equated to actual dissolution. At best Exhibit DL1 can
be said to be the intention expressed by the Plaintiff as she had already admitted to in
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paragraph 9 to 11 in her reply to D1 that she was going through hard times and used
the letter to draw the attention of the deceased.
[160] I have noted that the deceased in the video at Bayview village referred to the
Plaintiff as his wife he has used money to marry. This can be taking to mean that the
deceased acknowledged and accepted the Plaintiff a year before his death that she is
his wife. At the same time he acknowledged D2 as his wife and showed appreciation to
her. The court is of the opinion that the deceased intended peace to reign among his
wives as he recognized and acknowledged both of them publicly before his death and
his intentions must be respected.
In the instant case, the Plaintiff had contended that the late Daddy Lumba changed his
domicile to become a German national. The assumption is that the late Daddy Lumba
denounced his domicile to acquire his German nationality.
Domicile
[161] Domicile refers to someone’s true, principal, and permanent home. That is
the connecting factors that link one to the system of law which content constitute his or
her personal law. It is the jurisdiction a person has a substantial connection with, or
considers as his fixed or permanent home or in which he principally resides.
In OMANE V. POKU [1972] 1 GLR 295 the court held inter alia that: An individual’s
domicile is determined by the lex fori – the law of the forum. The law distinguishes
between domicile of origin and domicile of choice.
13.At common law, a child acquires the domicile of his parents. Although the burden
of proof is the normal civil standard of proof by the preponderance of
probabilities, there must be strong evidence to support a claim that a person
with a domicile of origin in Ghana has abandoned it in favour of a foreign
domicile.
14.Thus, it has been held that naturalization in a foreign country does not
necessarily amount to abandoning one’s domicile of origin in Ghana.
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There are two types of domicile and they are; domicile of origin which is not lost until a
domicile of choice is acquired.
1. Indeed, domicile of origin is never extinguished. At common law, it remains in
abeyance upon the advent of a domicile of choice and it is revived when the
domicile of choice is abandoned. This is the doctrine of revival of domicile of
origin, which demonstrates the importance placed by the common law on
domicile as a connecting factor.
2. A domicile of origin is distinguishable from a domicile of choice in some
important respects.
3. First, domicile of origin is received at birth by operation of law;
4. A domicile of choice is acquired by an individual from the voluntary action of
residence, plus an intention to remain permanently.
Thus, the personal law of a person is a reference to the system of customary law to
which he is a subject. This is the tribe or ethnic origin of a person. There must be an
intention of a person to live permanently in a new country to change their domicile.
This is due to the fact that a person’s domicile is one of the connecting factors that
determines which court has jurisdiction over their marriage (Section 31 of the
Matrimonial Causes Act), and it may affect how a deceased property is distributed
and may have significant tax obligations.
ABU-JAUDEH V. ABU-JAUDEH[1972] 2 GLR 444; SEIDU MOSHIE V. AMADU
MOSHIE, SUIT NO. LS 5074/88 (HIGH COURT, 2008).
SIMPSON V. SIMPSON [1960] GLR 105.
Richard Frimpong Oppong & Kissi Agyebeng: Conflict of Laws in Ghana
(Sedco Publishing Limited, 2021).
[162] Flowing from the above, the last issue for determination is whether or not the
late Charles Kwadwo Fosuh lost his domicile of origin and acquired his domicile of
choice. This issue is very important as at common law, questions of personal status are
generally determined under the law of a person’s domicile. From the records, the
deceased stayed in Germany and acquired German citizenship together with the
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Plaintiff. It is not in dispute that the deceased relocated to Ghana and he has been in
Ghana for almost two decades.
[163] He was born in Ghana, hailed from Ashanti, and had his lineage as an Ashanti
royal. From the earlier discussion, the deceased Daddy Lumba became a German citizen
but he never lost his domicile of origin. And even if his domicile of origin was deemed to
have been held in abeyance when he moved to Germany, worked and lived there, he
revived his domicile of origin when he relocated to Ghana, got married, had six children,
worked and died in Ghana. Thus the court finds as a fact that the deceased was a
Ghanaian domiciliary prior to his death and as such his habitual residence was Ghana.
See: AMPONSAH V AMPONSAH (1997-1998) 1 GLR 43.
IV. DISPOSITION/HOLDING
[164] I have considered the entire evidence adduced by the Plaintiff and the
Defendants, the exhibits, and the written addresses filed by learned counsel for the
Plaintiff and the Defendants. And in the premises I refuse the Plaintiff’s reliefs (a), (b),
(c), and (d). I also refuse the relief (i) of the 2nd Defendant and rather grant reliefs (ii)
and (iii) of the 2nd Defendant.
In the result, I hold that:
1. The Plaintiff was customarily married to the deceased Charles Kwadwo
Fosuh aka Daddy Lumba in 1991 in Ghana.
2. The 2nd Defendant was customarily married to the deceased Charles
Kwadwo Fosuh aka Daddy Lumba in 2010 in Ghana.
3. I declare that the Plaintiff and the 2nd Defendant are the surviving
spouses of the deceased Charles Kwadwo Fosuh aka Daddy Lumba.
Consequential orders:
a) The Ekuona Family of Parkoso and Nsuta, Ashanti represented by the
head of family Abusuapanin Kofi Owusu, the 1st Defendant is hereby
ordered to recognize the Plaintiff – Akosua Serwaah Fosuh and the 2nd
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The Law Platform | TLP/HC/2025/04 49
Defendant – Priscilla Ofori, to perform the widowhood rite during the
burial and funeral of the late Charles Kwadwo Fosuh aka Daddy Lumba
forthwith.
b) There is no impediment in the way of the 3rd Defendant in allowing the
Ekuona Family of Parkoso and Nsuta represented by the head of family
Abusuapanin Kofi Owusu access to the body of the late Charles
Kwadwo Fosuh aka Daddy Lumba to perform his burial and funeral
rites.
I make no orders as to costs.
H/L DR. DORINDA SMITH ARTHUR
JUSTICE OF THE HIGH COURT
COUNSEL:
WILLIAM KUSI ESQ FOR PLAINTIFF WITH EVANS OPPONG ADOMA ESQ AND
HENRY BENJAMIN ARTHUR BAIDOO ESQ.
DOMINIC KWADWO OSEI ESQ HOLDS BRIEF FOR FATI ALI YALLAH FOR THE
1ST DEFENDANT WITH AL-HASSAN HUDI ESQ.
A. K. OSEI-OWUSU ESQ WITH KWASI MENSAH NYARKO ESQ FOR 2ND
DEFENDANT.
EBENEZER ADJEI BEDIAKO ESQ WITH EDWARD OMANE ESQ FOR 3RD
DEFENDANT. write standard journalistic news story from this court judgment by making sure every statement is captured in the story.
