Brown and Another v Abaidoo and Another (A11/17/22) [2025] GHADC 111 (27 August 2025)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 27TH DAY OF AUGUST, 2025. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A11/17/22 ROBERT TIMOTHY BROWN ELIZABETH BROWN Suing Per their Lawful Attorney Vida Agyeiwaa Frimpong Bonney OF H/NO. OG/111/17, OBGOJO ACCRA >>> PLAINTIFFS VRS. 1. ALICE ABAIDOO 2. ALFRED ABAIDOO OF H/NO. 564/13 MAAMOBI, ACCRA >>> DEFENDANTS PARTIES: Plaintiff’s attorney present Defendants present LEGAL REPRESENTATION: Robert B. Quartey for the Plaintiffs Lamtiig Apanga for the Defendants JUDGMENT INTRODUCTION The Plaintiffs filed this instant suit per their lawful attorney on the 15th August, 2022 against the Defendants and prayed for the following reliefs; 1. Recovery of vacant possession of rooms Defendants occupy in Plaintiff’s house No. 564/13 Maamobi, Accra. A notice of appointment of solicitor was filed by Robert B. Quartey on behalf of the Plaintiffs on the 27th of October, 2022. The court differently constituted ordered parties to file their respective witness statements on the 15th of November, 2022 and this order was complied with by the Plaintiffs’ lawful attorney on the 24th of January, 2023. The 1st Defendant filed her witness statement on the 3rd of March, 2023 while the 2nd Defendant filed his witness statement on the 8th of February, 2023. Hearing commenced on the 15th of January, 2024 and was completed on the 27th of March, 2025. BURDEN OF PROOF It is a time honoured principle of the Law of Evidence, that a Plaintiff in a civil suit must, in line with the provisions of Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323) produce in Court, the requisite evidence on a balance of probabilities, to avoid a ruling being made against him. This legal principle has been emphasised in a series of cases notable the case of Ackah v. Pergah Transport [2010] SCGLR 728 where Adinyirah JSC stated the position as follows: “It is a basic principle of the 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. The method of producing evidence is carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” See the cases of Ababio v. Akwasi IV [1994-1995] GBR 774, Zambrama v. Sebgedzi [1992] 2 GLR 221 CA, In Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others [2003-2004] SCGLR 420. It follows therefore that this being a civil claim; the Plaintiffs shoulder the burden to prove their claim on a balance of probabilities. By Section 14 of NRCD 323 this burden will not shift unless they first succeeded this burden in the light of the evidence led. This position of the law has been reiterated in the case of Majolagbe v. Larbi and Others [1959] GLR 190-195, the learned trial judge, Ollennu J (as he then was) stated as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instance or circumstances, and his averment is denied he does not prove it by merely going into the witness box repeating that averment on oath or having it repeated on oath by his witness(es). He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.” EVALUATION OF THE EVIDENCE The duty of this Court therefore is to determine whether or not the Plaintiffs have succeeded this burden in the light of the evidence led. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows; “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. Although there were no issues for trial, in order to make a determination I have set down the following as issues for trial; 1. Whether or not the Plaintiffs’ have capacity to institute the instant case. 2. Whether or not the subject matter in dispute is a family property EVIDENCE ADDUCED BY PLAINTIFFS’ ATTORNEY The Plaintiffs’ attorney mounted the witness box on the 15th of January, 2025 and relied on her witness statement as her evidence in chief where she stated as follows: That the Plaintiffs and their surviving siblings who include the late mother of the Defendants are beneficiaries of the estate of the Late Jospehlus Freeman Kwamina Brown who was the bona fide owner of House Number 564/13 Maamobi, Accra which is the subject matter in dispute. That the late Josephlusus Kwamina Brown devised the subject matter to his children and his wife who was their mother his Will. That the Defendants and their late mother have lived in the subject matter for a long time and have continued to live in the said property even after the death of their mother. That a decision has been taken by the Plaintiffs to sell the property so the proceeds can be shared between the Plaintiffs and their surviving siblings. That before the sale can go through the property must be renovated due to its current deplorable state and as a result the Defendants have been asked to vacate the subject matter but all efforts to get them to do so have proved futile. That the 2nd Defendant has taken it a step further to curtail all steps the Plaintiffs and their siblings made to sell the property which included engaging the services of a quantity surveyor to come to the house and value the property but this quantity surveyor was driven away by the 2nd Defendant. The Plaintiffs’ attorney tendered into evidence a copy of the Power of attorney donated by the Plaintiffs which was marked as Exhibit A, pictures of the condition of the property which was marked as Exhibit B, Pictures of the property with the inscription “Family house not for sale” which was marked as Exhibit C, a copy of the probate granted by the High Court marked as Exhibit D and the Last Will and testament of the late Josephlusus Kwamina Brown marked as Exhibit E. EVIDENCE ADDUCED BY THE DEFENDANTS The Defendants’ case is that the subject matter in dispute belongs to their grandmother and that their grandmother shared the property amongst her children which included their late mother. That their grandmother asked their mother to divorce their father and move into the subject matter with her since her health was not in the best state. That their mother adhered to the request of her mother and moved in with their grandmother during a period when the Plaintiffs were abroad. That their grandmother took care of them and even paid for their school fees. That their grandmother decided to share the property amongst her children and invited the Plaintiffs to be present for the sharing of the property. That their grandmother informed all those who were present at the meeting that their mother was the one taking care of her and that after her demise the portion of the property she was occupying would go to her. That unfortunately the family heads who were present during the meeting have passed away and that they lived in the said property peacefully until their grandmother passed away. That after the death of their grandmother a family meeting was held and it was agreed that nobody was to rent out the said house to anyone. That after the death of their mother, the 2nd Defendant was put in charge of the subject matter and the 1st Plaintiff informed the 2nd Defendant that he wanted to renovate the entire building and they agreed to this suggestion. Unfortunately after seven years the 1st Plaintiff failed to renovate the subject matter and as a result the 2nd Defendant informed the 1st Plaintiff of the state of the property and even suggested they should contribute some money to renovate the house. The 1st Plaintiff informed the 2nd Defendant that he was not financially sound and could not contribute money for the renovation. After a while he was approached by the 1st Plaintiff who informed him he wanted to sell the property so the proceeds will be shared amongst the beneficiaries but the 2nd Defendant opposed this suggestion. That the property is a family property and same cannot be sold. I have set down the following issues as issues for determination: a. The first issue to be determined is whether or not the Plaintiffs’ have capacity to institute the instant case. b. Whether or not the late Josephlus Freeman Kwamina Brown intended to create a joint tenancy or a tenancy in common in his Will. ISSUE ONE The first issue to be determined is whether or not the Plaintiffs’ have capacity to institute the instant case. Capacity to sue is defined as the right or ability to institute and maintain an action in a court of competent jurisdiction. It is settled law that where the issue of capacity to institute an action arises it must first be determined before the merits of the case itself is gone into. See the case of Fosua and Adu-Poku v. Dufie [2009] SCGLR 310. The issue of capacity has been variously dealt with by the courts and it has been held on a number of occasions that capacity goes to the root of the matter whenever it is raised; it has the potential of curtailing the action even before trial. It is usually good practice that when the capacity of a plaintiff to sue is raised, it has to be dealt with before the action can proceed. Cases such as Sarkodie I v. Boateng II (1982-83) GLR 881, Asante-Appiah v. Amponsah alias Mansah [2009] SCGLR 90 and Kowus Motors v. Checkpoint [2009] SCGLR 230 are in point. The courts have also held that capacity can be raised at any time. There is evidence on record that the subject matter was the self-acquired property of the late Josephlus Freeman Kwamina Brown who devised the property to his wife and their children, which included the Plaintiffs and the late mother of the Defendants in his Will dated the 13th of December, 1971. This fact was admitted by the 2nd Defendant during cross examination on the 1st of July, 2024 as follows: Q. You are aware that it is Mr. Josephlus Freeman Kwamina Brown who put up the house in this suit. A. Yes The 1st Defendant also had the following to say during her cross examination on the 27th of March, 2025: Q. So from your statement in paragraph 1 you will agree with me that your mother and the Plaintiffs are all children of the late Mr Josephlus Kwamina Brown. Is that correct? A. Yes My Lady Admission is defined by the 7th edition of the Black’s Law Dictionary as a voluntary acknowledgement of the existence of facts relevant to an adversary’s case. Justice Brobbey in his book, Essentials of Ghana Law of Evidence at page 112 explained admissions to mean the fact or issue which has been conceded and is no longer in contention. It was held in the case of Samuel Okudzeto Ablakwa and Another v. Jake Obetsebi Lamptey and Another [2013-2014] 1 SCGLR 16 that where a matter is admitted proof is dispensed with. Also in the case of In re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II v. Akotia Owirsika III (Substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, which was quoted with approval in Fynn vrs Fynn [2013-2014] SCGLR at 727 at 738, it was held that there cannot be any better proof than an adversary admitting a fact in contention. Therefore, with this admission there is no need to prove that the subject matter was the self-acquired property of the late Josephlus Freeman Kwamina Brown who was the father of the Plaintiffs. There is also evidence on record that after testator died probate was granted to the named executors in the Will on the 15th of May, 1973 and a copy of the probate was tendered into evidence and marked as Exhibit D. A careful perusal of the record of proceedings clearly indicates that Counsel for the Defendants failed to cross examine the Plaintiffs’ attorney on Exhibit D and it is settled law that where a party fails to cross examine a party on averment that other party need not call further evidence on that fact. In Fori v. Ayirebi (1996) GLR 627 SC it was held as follows; “The law is that when a party made an averment, and that averment is denied, no issue is joined on that averment, and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross examined upon it, he need not call further evidence of that fact.” This principle was further enunciated in the case of Ashanti Goldfields Co. Ltd v. Weschester Resources Ltd [2013] 56 GMJ 84. C.A, at page 128 by Korbieh, J.A as follows: “The law is that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side.” See the cases of In Re West Coast Dying Industry Ltd; Adam v. Tandoh (1984-86) 2 GLR 561 SC and Watalah v. Primewood Products Ltd (1973) 2GLR 126, Hammond v. Amuah (1991) 1 GLR 89 at 91. It can thus be concluded that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted in evidence. What is not denied is deemed to be admitted. I therefore conclude that a probate was granted by the High Court on the 25th May, 1973. There is also evidence on record that the after the probate was granted, the executors by name Ebenezer H. Barber and James E. Brew failed to vest the subject matter in the beneficiaries name in the Will. What options are available to a beneficiary who seeks to protect his interests in the property when a property which is yet to be vested in him. In order to answer this question I must discuss what a vesting assent is. A vesting assent is an instrument which a personal representative, after the death of tenant for life or statutory, owner, vests settled land in a person entitled as tenant for life or stator owner-Osborn Concise Law Dictionary 8th Edition. It is trite that before a vesting assent is executed in favour of a beneficiary of an estate, the estate devolves on the executor who obtained probate as the personal representative or administrator who obtained the probate. Until the vesting assent is executed, beneficiaries have no title or locus standi over the property, see the case of Okyere (Deceased) Substituted by Peprah v. Appenteng and Adoma (2012) 1 SCGLR 65, Connet v. Bentum Williams (1984-85) 2 GLR 301 at 314-316. Despite this principle the Supreme Court In the case of Opanin Yaw Anokye v. Opanin Appenteng and Akua Adomaa, Supreme Court, Civil Appeal No. J4/17/2008, 23 November 2011, held as follows: “If the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of situations postulated above? At equity, such a person should be able to mount an action to protect the estate, or to save it from being dissipated or wasted. The plaintiff in such an action will be acting on the basis of his expectant interest in the estate, not his capacity as a title holder under a will or grant at customary or statutory law. The plaintiff in such an action may take advantage to apply to the court to executor to renounce probate or to appoint another person to administer the estate. It is obvious that in such an action, the lackadaisical or disinterested executor may fail or refuse to participate or mount any opposition. If he does oppose the action, he will put to the necessary inquiries which will not only protect the estate but enable the tribunal, as a court of equity, to give directions on the appropriate management of the estate”. See Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeeb Civil Appeal No. J4/44/2017 Dated 31st January, 2018. From the above discussion it is clear that the Plaintiffs the capacity to institute the instant action not as title holders under the Will of the late Jospehlus Freeman Kwamina Brown but on the basis of their expectant interest in the estate. ISSUE TWO I will now discuss whether or not the late Josephlus Freeman Kwamina Brown intended to create a joint tenancy or a tenancy in common in his Will. To determine whether there was joint tenancy or tenancy in common, the most important feature to consider is the words in the Will dated the 13th of December, 1971. I will reproduce the relevant portion of the said Will as follows: I hereby give devise and bequeath to my wife Mrs. Sophia Brown and all my children… and my house No. C.564/23 at Accra-Maamobi with all the furniture therein and… Applying English canons of construction of documents to the Will made in English form, it is clear that the testator intended to create a tenancy in common as the language of the Will is plain and unambiguous. In the case of Owusu and Another v. Agyentoa [1995-96] 1 GLR 45, the Supreme Court held inter alia that: “A joint tenancy was restricted to the life of the first person to die, leaving the entire devise to the surviving devisee, but under a tenancy in common the scope of the grant to each devisee was unconditional, unrestricted or unfettered to the extent of their separate and distinct interest or shares. A tenancy in common therefore allows each holder of the property to bequeath his or her interest upon death while a joint tenancy is restricted to the life of the beneficiary who dies and this leaves the residuary interest to the surviving beneficiaries. This therefore means that upon the death of the Defendants’ mother, her interest survived her children which in this case are the Defendants and this therefore makes them beneficiaries of the estate of the Late Josephlus Freeman Kwamina Brown. This therefore means that upon the death of the Defendant’s mother her interest accrued to the surviving children who are the Defendants in this case. Even though the executors failed to vest the property in the beneficiaries of the estate, there is evidence on record that the Plaintiffs have decided to sell the property. This fact was admitted by the Plaintiffs’ attorney during cross examination on the 13th of February, 2024. This is what ensued: Q. Have you taken steps to replace James E. Brew who was appointed by the court to administer the estate of the deceased? A. No My Lady but the senior of the children has taken over as the head of the family. Q. Has the property been shared or given to the beneficiaries as directed by the Will of the testator? A. It has not been shared but due to the condition of the building we decided to sell it and share the proceeds among the children. Q. The said property in dispute was equally distributed among the children of the deceased A. No My Lady There is also evidence on record are occupying a portion of the property which they state is their mother’s portion given to her by their grandmother who happens to be the wife of the late Josephlus Freeman Kwamina Brown. This alleged distribution of the property by the late wife of Josephlus Freeman Kwamina Brown was wrong in law as same had been devised to her and her children. Even though this distribution was wrong in law there is unchallenged evidence on record that the Defendants are occupying a portion of the subject matter in dispute as beneficiaries of their late mother’s estate. This fact was corroborated by the Plaintiffs’ attorney during cross examination on the 13th of February, 2024. This is what she said: Q. So they are not squatters as you stated in your witness statement A. No My Lady, they are not squatters Plaintiff’s attorney also agreed with Counsel for Defendants that the Defendants are beneficiaries of their mother’s share of the property. This is what was said on the same day: Q. You will agree with me that the defendants you have brought to this court are the children of one of the direct beneficiaries; Rebecca Brown A. Yes My Lady Q. You will agree with me that the defendants in this case are the grandchildren of the dead owner of the property in dispute. A. Yes My Lady Q. And they have been living in the property in dispute as members of the family and beneficiaries of their mother’s share of the property A. Yes My Lady. I was also living there With this admission by the Plaintiffs’ attorney proof by the Defendants had been dispensed with. See Samuel Okudzeto Ablakwa and Another v. Jake Obetsebi Lamptey and Another(supra). With this admission, any decision to sell the subject matter must be done with all the surviving beneficiaries of the estate of the late Josephlus Freeman Kwamina Brown and this includes the Defendants. The Plaintiffs claim that there was a meeting held by the surviving children of the testator where it was agreed that the subject matter will be sold. Unfortunately, the Plaintiffs failed to call any witness to corroborate that indeed this meeting took place. The Plaintiffs also admitted that there was no minutes taken during the alleged meeting and that the Defendants were informed of the decision taken. Upon the Plaintiff’s attorney being questioned during cross examination this is what she had to say on the 13th of February, 2024: Q. How was the decision reached? A. The uncles went to meet the defendants and informed them at Maamobi of the plan to sell the property due to the condition of the house Q. You say you were not at this meeting how do you know what was discussed A. After the meeting they called us as some of us have lost our mother and fathers so they wanted us to know the decision they had taken Q. Was there any minutes taken at that meeting? A. No My Lady because they are owners of the house they can take any decision at any time. They are grandchildren Q. Was there any record of attendant taken at that meeting? A. No My Lady To make matters worse the Plaintiffs’ attorney admitted that the Plaintiffs alone took the decision to sell the property but then changed her testimony and stated that all the remaining siblings also agreed to the sale when she was pressed further. This is what she said during cross examination on the 13th of February, 2024: Q. You told this court that you and others agreed to sell the property. Who do you mean by we? A. It was Robert Timothy Brown and Elizabeth Brown who decided to sell the property Q. So you mean 2 out of the 9 children decided to sell the property. Is that so A. All the remaining children agreed to the sale of the property and Robert Timothy and Elizabeth Brown are the ones in Ghana so they took charge of same. It is trite law that when a statement or conduct which is inconsistent with the testimony of the witness at the trial may be relevant in determining the credibility of that witness. See section 80 of the Evidence Act, 1975 (NRCD 323). In the case of Gyabaah v. The Republic [1984-86] 2 GLR 461 the Court of Appeal held as follows; “The law is that a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction… With the above case in mind it is clear that there are inconsistencies in the testimony of Plaintiffs Attorney and as a result her testimony is not worthy of credit and I will not attach any probative value to it. A careful perusal of the evidence adduced by the Plaintiffs’ attorney clearly indicates that she failed to lead evidence that this decision was a joint one involving all the beneficiaries of the testator. This is what was said during her cross examination on the 13th of February, 2024: Q. Do you have any evidence before the court that the children of the deceased agreed to sell the property? A. I do not have any evidence but per the Power of Attorney I have been given, it is clear that they want to sell it. I have carefully examined the Power of Attorney tendered into evidence by the Plaintiffs’ attorney and there is no mention of the decision being made with the consent of all the remaining siblings of the Plaintiffs or the Defendants who are the children of the late Rebecca Brown. Just informing the Defendants of the decision does not satisfy the need for there to be a mutual agreement by all the beneficiaries to sell the subject matter. I hereby conclude that the Plaintiffs failed to lead cogent evidence to prove that the decision to sell the subject matter was made with the consent of all the beneficiaries of the estate of the late Josephlus Freeman Kwamina Brown. The Plaintiffs only reason for praying for this relief is to make way for the sale of the property which in the opinion of this Court is not a reason for the Defendants to be ordered to give vacant possession of the rooms they occupy. The parties are advised to take steps to regularise their title and then take a final decision with all the beneficiaries to sell the property. The Plaintiffs’ case therefore fails in its entirety and judgment is entered against them. SGD H/W ADWOA BEN SAO ASUMADU-SAKYI MAGISTRATE