Brinful v Sey and Others (A1/014/24) [2025] GHADC 127 (14 August 2025)

IN THE KOTOBABI DISTRICT COURT “1”, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON THURSDAY 14th AUGUST, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS). SUIT NO: A1/014/24 EBENEZER KWESI BRINFUL - PLAINTIFF of Haiou City, China Suing Per His Lawful Attorney Daniel Tettey of H/No. Fh13 Akuafo-Pa, Nyanyano-Kakraba Accra VRS. 1. MISS GEORGINA SEY - 1ST DEFENDANT Agere, Lotto House Mamprobi- Accra 2. THEOPHILUS AYITEY HAMMOMD - 2nd DEFENDANT 24 Tsile Lane GA-446-5018 Shaibu-Dansoman 3. ISSA AYAA ARMAH - 3rd DEFENDANT P.O. Box 2394 Accra PARTIES: Plaintiff present 1st Defendant present 2nd Defendant absent 3rd Defendant absent Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 1 COUNSEL: Samuel Fianku Asamani Esq. holding the brief of Vincent Aikins Esq. for Plaintiff present Seth Lawrence Akoto Esq. for 1st and 2nd Defendants present JUDGMENT PROCEDURAL BACKGROUND Plaintiff commenced this action on 26th September, 2023 with an original writ and statement of claim filed at the Adabraka District Court 2 (formerly Kaneshie District Court 2). This was subsequently replaced by an amended writ and statement of claim filed on 13th December 2023 again at the Adabraka District Court 2 in which Plaintiff sought the following reliefs: a. A declaration that Plaintiff is the owner of the land situated and lying at Ngleshie-Amanfro and situated in the Ga South District in the Greater Accra Region of the Republic of Ghana the boundaries of which commence at a pillar marked SGC A195 08 2 on bearing 02121’ for a distance of 25082.84 feet on a bearing referred to as meridian 1 west longitude to a pillar marked SGC S580 10 1 thence runs on a bearing of 00002’ for a distance of 140.8’ feet to a pillar marked SGC S580 10 2 thence runs on a bearing of 09012’ for a distance of 100.2’ feet to a pillar marked SGC S580 10 3 thence runs on a bearing of 18022’ for a distance of 140.4’ feet to a pillar marked SGC S580 10 4 to marked thence runs on a bearing of 27042’ for a distance of 100.8’ feet to a pillar marked SGC A195 08 1 being the point of commencement and containing an approximate area of 0.321 acre (referred to hereafter as ‘the Property’). b. An order for perpetual injunction restraining the Defendants, their agents, heirs, assigns or workmen from dealing with the land in anyway whatsoever; c. General damages for trespass on the property of the Plaintiff; d. An order that 1st Defendant deposits the documents in her possession at the registry of this Honourable Court for the Plaintiff to collect same; Subsequently, on 28th February 2024, the 1st Defendant filed her statement of defence in the Adabraka District Court 2. However, before further directions regarding the conduct of the suit could take place, the suit was transferred from my sister at the Adabraka District Court 2 to this Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 2 Court to continue with the hearing of this matter by order of the Honourable Chief Justice dated 16th January, 2024. Plaintiff thereafter filed his witness statement through his lawful attorney on 4th June, 2024 and a supplementary witness statement on 11th October, 2024 in this Court. He also filed the witness statements of one Samuel Aidoo (PW1) and Emelia Quaye (PW2) whom he called as witnesses. On her part, 1st Defendant filed her witness statement on 7th June, 2024 and a further supplementary witness statement on 2nd July, 2024. 1st Defendant also filed witness statements for one Francis Sey (DW1), Andrews Boakye-Danquah (DW2) and Samuel Adotei Acquaye (DW3) whom she called as witnesses on her behalf. 2nd Defendant also filed his statement of defence on 2nd July, 2024 together with his witness statement pursuant to leave of this Court. Trial in this matter was finally concluded on 11th November, 2024 with both addresses filed on 17th March, 2025 by either side through their respective counsels. Plaintiff’s Case It is the case of Plaintiff that, he is the owner of the Property described above in his reliefs. Plaintiff states that he and 1st Defendant were in an amorous relationship which produced one issue although they did not get married, while 2nd Defendant was his former landlord, and 3rd Defendant was the vendor from whom he purchased the Property in dispute. Plaintiff further states that it was through the 1st and 2nd Defendant that he got to know that the Property had been put up for sale. According to Plaintiff, he acquired the Property which originally belonged to 3rd Defendant by remitting money for its purchase through the 1st Defendant since he is not ordinarily resident in Ghana with the total purchase price being Thirty-Thousand Ghana Cedis (GHC 32,000). After this purchase of the Property sometime in 2020, Plaintiff indicates that the indenture covering the land was deposited with 1st Defendant and kept in her custody. Plaintiff indicates further that he continued to send money through the 1st Defendant to commence constructing his Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 3 building project on the land with 1st Defendant acting as the supervisor on the Property. However, Plaintiff claims that it began to get difficult to get 1st Defendant to release money he would send for the project on the Property and for this reason, Plaintiff decided to stop using 1st Defendant as his supervisor and instead got his Sunday School teacher (i.e. the lawful attorney herein) to act in that capacity. Plaintiff however claims that 1st Defendant keeps interfering with the smooth operations of his project and preventing the engaged workers from doing their job on the Property. Based on this conduct from 1st Defendant, Plaintiff decided to demand for the return of his indentures, but 1st Defendant has refused to pay heed to this request. It is further Plaintiff’s contention that 1st Defendant by her conduct and pleadings filed in this case is now claiming ownership of the Property. Plaintiff further contends that the 2nd and 3rd Defendants have joined forces with 1st Defendant to intimidate Plaintiff and harass and prevent his workmen from entering the Property so the Defendants can appropriate the land to themselves. It is based on the above that Plaintiff commenced this action against all the Defendants herein, seeking the afore-mentioned reliefs from this Court. The Defendants’ Case The 1st and 2nd Defendants filed different statements of defence and witness statements which effectively set up different core cases from each other. 1st Defendant’s case Contrary to Plaintiff’s assertion that they were merely in an amorous relationship 1st Defendant alleges that she and Plaintiff were customarily married on 21st November 2013 and cohabited after the marriage at Dansoman for about 5 years. 1st Defendant categorically denies acting in concert with 2nd Defendant or any other person to convince Plaintiff to buy the Property in question. She further denies the receipt of any monies for the purchase of the said Property and affirms that she was not directly involved in that transaction. 1st Defendant further states that she only recalls signing an indenture as a witness for Plaintiff but this was in respect of property Plaintiff had concluded by himself with another party in respect of what 1st Defendant believed was for an entirely different piece of land. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 4 1st Defendant goes on to state that she has been in possession of the Property in question without any hindrance since 2010 until now long before her marriage to 1st Defendant. She indicates that she acquired the Property directly from one Nii Armah Okine, head of the Kwashie Gborlor family of Ngleshie Amanfro (where the Property is located). 1st Defendant further claims that the Plaintiff has attempted to forcefully take possession of the Property in dispute which led to police getting involved in the matter after she reported the matter to the Amanfro police station however the police upon their investigation were able to instil peace between the parties and endorsed the 1st Defendant’s continued possession of same. 1st Defendant also contends that any monies that Plaintiff sends to her is because of the child that they have between them and that Plaintiff has occasionally sent monies to her bank account for the purposes of maintenance, rent, school fees and childcare but never for the purpose of paying any monies to 3rd Defendant. 1st Defendant also states emphatically that Plaintiff has not started any development on the Property nor has she at any material time been appointed by Plaintiff to act or supervise the work of Plaintiff on any land of his. She insists that she is in possession of the Property and therefore prayed for the instant action to be dismissed as being frivolous. 2nd Defendant’s case The case of the 2nd Defendant is quite straightforward. According to the 2nd Defendant who is the former landlord of Plaintiff, he has never acted as a supervisor for Plaintiff with the 1st Defendant. 2nd Defendant further claims that he only gave generic advice to Plaintiff regarding some lands advertised for sale in the Ngleshie Amanfro vicinity but never specifically mentioned 3rd Defendant as he (2nd Defendant) did not know 3rd Defendant to be the owner of the said land. Essentially therefore, 2nd Defendant claims he never received any monies from Plaintiff for the alleged purchase of the Property in dispute nor did he at any time act for and on behalf of Plaintiff with respect to any construction work on the Property. Accordingly, 2nd Defendant prayed for the action against him to be dismissed. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 5 With respect to the 3rd Defendant, there was no appearance entered by 3rd Defendant nor were any processes filed by or on his behalf although he was served with notice of hearings in this matter. ISSUES The five issues were agreed and set down for trial at case management conferencing are as follows: 1) Whether or not the property identified by Plaintiff as the subject matter of the suit is the same as that which 1st Defendant claims to be in possession of since 2010; 2) Whether or not Plaintiff purchased the subject matter from the 3rd Defendant; 3) Whether or not the indenture dated 2nd February 2020 was deposited in the custody of the 1st Defendant in the absence of Plaintiff; 4) Whether or not the payments made to the 1st Defendant by Plaintiff was for any other purpose other than maintenance; and 5) Whether or not by virtue of the 1st Defendant having been in peaceful and active possession of her land since May 2010, the Plaintiff or anybody else retained a right to claim ownership of same in 2024? The Law and The Evidential Burden In matters related to land and ownership of land and the rights associated with same, there is a need for a party to establish their right of ownership to a property in order to justify any acts asserting ownership. This proof is necessary because judgments related to land and ownership rights are judgements in rem and not merely in personam and are therefore enforceable against the whole world and not just the parties in the matter themselves. (See Akuse Amedeka Citizens Association vs. The Attorney-General & Anor (Suit No. J1/10/2013; judgment dated 5th Jan, 2015). Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 6 In his book ‘Land Law, Practice and Conveyance in Ghana (2015)’, the learned author, Sir Justice Dennis Adjei JA, emphasised that: “A judgment in rem determines all issues pertaining to the rights and status of the parties or things including the title or right to things and how they could be alienated and it binds all the persons within the jurisdiction of the court that pronounced it. Judgment in personam on the other hand is between the parties (inter partes) and operates as an estoppel against the parties to the suit only. Where the earlier judgment was in rem, it is likely to operate as an estoppel against all issues as to the parties and the subject matter and their rights, titles and status and how alienation of the subject matter could be made by the parties therein." (emphasis mine). With respect to land matters also, the law is that where the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counterclaimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own. This was emphatically stated by the Supreme Court in Mrs. Elizabeth Osei substituted by Portia Gilard vs. Madam Alice Efua Korang (Civil Appeal No. J4/27/ 2012, judgment dated 20th February, 2013; [2013] 58 GMJ SC) citing Yorkwa vs. Duah [1982-83] GBR 278 CA with approval further stated: “Firstly, this is a land case and therefore the plaintiff-respondent must succeed on the strength of her own case…then there was the case of Nartey vs. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 GLR 314 in which Adade JSC stated that a person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he must fail… Lastly, in Odametey v. Clocuh & Anor [1989- 90] 1 GLR 14, it was held that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence.” (see also Owusu vs. Tabiri and Anor [1987-1988] 1GLR 297 where it was emphasised that a party must win his case on the strength of his own case and not on the weakness of the defence). Additionally, in Edmund Asante-Appiah vs. Madam Kate Amponsh alias Yaa Mansah (Suit No. CA J4/34/2007, judgment dated 20th November, 2008) it was emphasised that, “The law is well established that where a party’s claims are for possession and perpetual injunction, he puts his title in issue: He thereafter assumes the onus of proving his title by a preponderance of probabilities, like any party who claims declaration of title to land. There are numerous authorities on these, including Adwubeng v. Domfeh Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 7 [1996-97] SCGLR 660, Ebusuapanin Yaa Kwesi v. Arhin Davis (2006) 2 GMLR50 and the old case of Kponuglo v. Koddadja (1933) 2 WACA 24.” It is further an unquestionably well-settled principle of evidential law that a party who asserts a fact assumes the responsibility of proving same. The burden of persuasion as well as the burden of producing evidence until it has been shifted lie on both a plaintiff and defendant, and the standard of proof required of both parties in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by virtue of sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323). In Ababio vs. Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: “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 evidence to tip the scale in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 these evidential rules were summed up eloquently by her Ladyship Adinyira JSC where it was held that: “It is a basic principle of the law of 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 varied 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…. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” What principles do these authorities highlighted above collectively establish then? Firstly, that in matters of a civil nature, each party has the duty of persuasion and the duty when shifted to produce sufficient and credible evidence to convince the court that their claim is more likely to be true than Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 8 otherwise. Secondly, that the standard of proof each party has to meet in a civil claim including land-related claims is on the balance of probabilities. Finally, that to succeed in property disputes, a party is required to prove their case on its own strength first and foremost before relying on whatever weaknesses there may be in the defendant’s case. Before discussing the issues at hand, I will at this stage comment on the submission of Counsel for the 1st and 2nd Defendants regarding the standard of proof required in land matters. Counsel for the 1st and 2nd Defendants has argued that in land cases “as represented in a plethora of cases, the standard required has been a little more than on the balance of probabilities” (see page 3 of the written address). He refers to, amongst others, cases such as Abotche vs. Kponuglo & Others (1935) 2 WACA; Banga & Others vs. Djanie and Anor [1989-90] 1 GLR 510; and Odametey vs Clocuh and Anor [1989-90] 1 GLR 14. I have considered in depth these cases referred to by Counsel and I must state respectfully that this is an erroneous statement of the law. In this same Odametey vs. Clocuh and Anor case (supra) referred to me by Counsel for the 1st and 2nd Defendants, the eminent Taylor JSC stated as follows: “I think the current principle is quite clear, at least since 1 October 1979 when N.R.C.D. 323 came into force. If there was ever a doubt about the true principle, although I am firmly of the view that there has never been any doubt, then N.R.C.D. 323 has now definitely cleared all possible doubts. The position is this: If the plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant's case to ask for relief. This is obvious from the dictum of Webber C.J. (supra). If, however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff's claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant's case to strengthen his case. This is amply supported by sections 11 and 12, particularly section 11 (4) of N.R.C.D. 323. The said section 11 (4) of the Decree does indicate, inter alia, that in a civil case: ‘. . .the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence’ (The emphasis is mine.) And of course, the burden of persuasion in a civil case is as is indicated in section 10 (2) Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 9 of the Decree the establishment of "the existence or non-existence of a fact by a preponderance of the probabilities.” (emphasis mine). It was in the Banga & Others vs. Djanie and Anor case (supra) quoted by Counsel for 1st and 2nd Defendants that the Court of Appeal speaking through Francois JSC seemed to indicate that there was a higher burden of proof for land matters in civil cases. The learned superior court judge stated as follows: “In recent times a dangerous trend has been erupting of equating this burden with the normal burden in a civil case of measuring success by a balance of probabilities. In my view the requirement of a higher burden of proof in land matters cannot be whittled away by glosses on the principle. This quality of proof has sometimes even been equated with proof in criminal matters, i.e. ‘proof beyond reasonable doubt.’ I don’t think an excursus into the learning on this aspect of proof is necessary for the purposes of this appeal; suffice it to emphasise that a high measure of proof is necessary to sustain victory in a plaintiff seeking a declaration of title to land. It seems to me that the authorities require a plaintiff to lead positive evidence to merit victory, and not merely to rely on the shortcomings of a defendant in the discharge of this obligation.” Interestingly, these two apparently conflicting decisions were given within weeks of each in the same year with the Banga & Others vs. Djanie decision given on 26th April 1989, while the Odametey vs Clocuh decision was given on 8th March 1989. However, Banga & Other vs Djanie is a Court of Appeal decision while that of Odametey vs. Clocuh is a Supreme Court decision. In that regard, the Odamtey vs Clocuh position of the law on the standard of proof in land matters being on the preponderance of probabilities supersedes that of the Banga position that a high measure of proof is required. Aside from this, the Odamtey vs. Clocuh position has also been affirmed by a plethora of recent cases such as: 1) in Adwubeng vs. Domfeh [1997-98] 1 GLR 282 where the Supreme Court noted in holding (3) that:- “Section 11(2) of NRCD 323 required proof beyond reasonable doubt only on the prosecution in criminal actions and in proof of a commis-sion of a crime in any civil or criminal action. And sections 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities. Accordingly, the cases Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 10 which had held that proof in title to land required proof beyond reasonable doubt no longer represented the present state of the law.” (emphasis mine) 2) Similarly in Jass Co. Limited & Anor vs. Apau & Anor [2009] SCGLR 265 the Supreme Court in holding (1) stated the law on proof in land cases in this way:- “the burden of proof was always on the Plaintiff to satisfy the Court on a balance of probabilities in an action for a declaration of title to land. Where the Defendant has not counterclaim and the Plaintiff has not been able to make out a sufficient case against the Defendant, then the Plaintiff claim would be dismissed. Whenever the Defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as it was used to evaluate and assess the case of the Plaintiff against the Defendant.” (emphasis mine). Other decisions include: 3) Nana Amua Gyebu XV vs. Mondial Veneer (GH) Ltd (Civil Appeal No. J4/31/2010, judgement dated 11th August, 2010) SC; 4) Madam Akosua Dufie & Anor vs. Madam Amma Fosua & Anor (Civil Appeal No. J4/25/2006; judgment dated 27th July, 2009, [2009]DLSC2502, SC) and; 5) Yirenchi & Anor vs. Stephen Bosompem & Anor (Suit No: LD/0535/2016; judgment dated 31st January, 2023) HC, all of which affirm the normal standard of proof on the balance of probabilities even in land cases. By contrast, I did not find any decisions that affirmed the Banga vs. Djanie position of a higher requirement of proof in such civil cases which involved land. I believe the above-cited authorities which affirm proof in land cases having the same standard of proof as in all civil cases is sound in law and firmly backed by sections 10, 11 and 12 of the Evidence Act, 1973 (NRCD 323). In any case, if the framers of the law intended for there to be a higher standard of proof in land matters specifically, they would have expressly stated so. I therefore do not find support in law or in principle which gives weight to Counsel for the 1st and 2nd Defendant’s assertion that the standard required in the assessment of the burden of proof in titles to land “has been a little more than on the balance of probabilities.” Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 11 Having briefly highlighted the basic legal positions relevant to this matter, I will now move on to the issues to be determined. 1) Whether or not the property identified by Plaintiff as the subject matter of the suit is the same as that which 1st Defendant claims to be in possession of since 2010? Both parties are laying claim to the Property in dispute which I have already described above. However, while 1st Defendant claims that she has been in possession of the said Property since 2010, Plaintiff claims to have been in possession of the property since 2020. It is further the contention of 1st Defendant that any property that Plaintiff is trying to lay claim to must be entirely different from the Property described herein which she acquired and has been in possession of since 2010. One of the first issues to resolve therefore was whether the property being claimed by both parties were truly one and the same or were substantially different. In support of his claim of ownership and possession of the Property in dispute, Plaintiff tendered in evidence exhibits E series and Q series which are both indentures with site plans attached for description of the land. On her part, 1st Defendant tendered Exhibit 2 in evidence in support of her averment that she acquired the Property in dispute in 2010. Interestingly, I find that the site plans submitted by Plaintiff in exhibits E and Q series are identical to that submitted by 1st Defendant in exhibit 2 with virtually the same coordinates and bearings. The only distinction being the difference in dates on the attached site plans. To be more specific, while the date indicated on the site plan of Plaintiff is dated 10th October 2022 (see exhibit Q series), that of 1st Defendant’s is dated 19th September 2022 (see exhibit 2). 1st Defendant claims that she acquired the Property by herself with no assistance from Plaintiff as far back as 2010, and yet the site plan attached to the indenture which was entered into in 2010 was not generated until 2022 and is identical to that submitted by Plaintiff. Thus, although 1st Defendant is seeking to urge this Court that the two lands which parties herein are referring to are different, the logical deduction to be made from the identicality of the site plans to both Plaintiff’s and 1st Defendant’s indentures is that the reality on the ground indicates they are referring to one and the same parcel of land. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 12 This leads me to the conclusion that although 1st Defendant sought to impress on this Court that whichever land Plaintiff actually acquired was wholly different from the land which is the subject matter of this suit, I find that the evidence indicates the contrary. I therefore resolve the first issue that the Property in contention is indeed one and the same. I will move on to the next two issues. 2) Whether or not Plaintiff purchased the subject matter from the 3rd Defendant?; 3) Whether or not the indenture dated 2nd February 2020 was deposited in the custody of the 1st Defendant in the absence of Plaintiff? I will tackle the 2nd and 3rd issues together as they are inter-connected. Although both Plaintiff and 1st Defendant are claiming ownership of the Property, 1st Defendant did not make any counter-claim for a declaration of ownership. Had there been a counterclaim for ownership by 1st Defendant, there would have been a similar burden of proof her to also establish her ownership with cogent evidence. This was emphasised in the Elizabeth Osei vs. Madam Alice Efua Korang case (supra). In the current circumstances however, Plaintiff alone bore the burden to adduce cogent evidence to establish his ownership on the balance of probabilities. How then was Plaintiff to go about proving this ownership? In Nana Amua Gyebu XV vs. Mondial Veneer (Gh) Ltd (Civil Appeal No. J4/31/2010; judgment dated 11th August, 2010) the Supreme Court held: “In land litigation…the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim.” (emphasis mine). Accordingly, the key legal imperatives to be established by Plaintiff were 1) root of title; 2) mode of acquisition and 3) acts of possession over the Property in dispute. In support of these assertions that he purchased the land from 3rd Defendant, Plaintiff tendered in evidence Exhibits D, F, G, H, J and C series which are what’s app messages between Plaintiff Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 13 and 3rd Defendant over the period spanning February to March 2020. 3rd Defendant was not called as a witness and indeed was never present throughout proceedings although he was duly served with notices of Court hearings. Nonetheless, I find that none of the exhibits tendered by Plaintiff were discredited during trial. Counsel for the 1st and 2nd Defendant sought to imply that the person referred to as “wife” in the what’s app messages between Plaintiff and 3rd Defendant was some other person other than 1st Defendant. Thus, during trial the following exchange took place under cross-examination of Plaintiff’s lawful attorney: “Q: Have a cursory look at Exhibit C2, D and G and look out for where “wife” is used in the conversation. You will agree with me that reference to “wife” in these conversations could not reasonably be connected to 1st Defendant? A: I disagree. Q: I am suggesting to you that in these conversations, Plaintiff’s reference to wife could be referring to another woman. A: I do not know. Q: So that in effect, you were not truthful to the Court yesterday when you answered in the negative as to whether Plaintiff was married by 10th March, 2022. A: I disagree. Q: Mr. Tettey do you know one Philippina Opoku Agyemang of Kumasi. A: I do not know her. Q: Mr. Tettey I am suggesting to you that by the time these conversations were going on Plaintiff and the said Philippina Opoku Agyemang were married. A: My Lady I do not know.” (see proceedings dated 31st October, 2024) However, I find that in 1st Defendant’s testimony it is she herself who has strenuously insisted that she was the wife of Plaintiff. In her own witness statement filed on 7th June 2024 and admitted as her evidence in chief, 1st Defendant states categorically at paragraph 4 that, “on 21st November, 2013 I was duly married under customary law by the Plaintiff held at House No. A 188/12 Dansoman- Shaibu in the presence of principal members from either side of the two families.” She also makes this reference to herself as “wife” in paragraph 13 of her witness statement. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 14 Indeed, both 1st Defendant and her father, Mr. Francis Sey whom she called as a witness insisted that some customary rites had been performed towards the customary marriage of Plaintiff and 1st Defendant herein. This is what ensued under cross-examination of 1st Defendant: “Q: I suggest to you that the ceremony that was performed was after you had conceived the child. A: Yes. That is what I said. That I was pregnant, and it was after I conceived that Plaintiff performed the head drink (eti nsa) ceremony. My father insisted that Plaintiff and his family perform the marriage rites since Plaintiff and I have cohabited for a long time and I was now pregnant. Plaintiff stated that he did not have the financial strength at the time so he would perform a small traditional ceremony.” (See record of proceedings dated 4th November, 2024). Under cross-examination of 1st defendant’s father as well, one Mr. Francis Sey (DW2) the following also ensued: “Q: What do you mean when you say “runaway son –in –law” in paragraph 2 of your witness statement? A: Plaintiff used to live with me in my chamber and hall apartment for two years. He was not working at the time and within this period he impregnated my daughter. And because he was unemployed I did not pressure him but told him when things become better for him he should come and perform the necessary marriage rites. However, it got to a point Plaintiff was not coming home to sleep as he used to that is why I called him “runaway son-in-law”. But sometime in 2013 he performed some rites known as the head drink ceremony (nti nsa) before the child was conceived. Q: You stated before this Honourable Court that you told Plaintiff to come and perform the necessary rites when things get better is that not so? A: Yes My Lady. Q: And as at 2013 when these rites were performed was Plaintiff still living with you? A: No My Lady he was not staying with me. Q: Mr. Francis Sey have you witnessed a traditional wedding from your tribe in its full glitz and glamour? A: Yes My Lady. Q: You would agree that they usually give a list to the prospective husband is that not so? A: I disagree. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 15 Q: So you never gave Plaintiff a list and you conclude that the rites he performed was marriage? A: We did not give him list because Plaintiff was not working so he was not financially sound. So he basically performed the knocking ceremony so that when things become better for him he would come and perform the full rites. Q: So you will agree with me that you were expecting Plaintiff to perform proper marriage rites when he becomes financially stable? A: Yes My Lady. Q: I put it to you that by your own testimony your daughter is not married to the Plaintiff. A: They had made plans to marry but because Plaintiff did not have a place of his own to reside in and not being financially sound he promised to come and marry my daughter.” (See record of proceedings dated 6th November, 2024). Flowing from the above, if indeed as 1st Defendant claims, she and Plaintiff were customarily married as far back as 2013, then how can it be that the reference to “wife” in exhibits C2, D and G at the time the dealings between 3rd Defendant and Plaintiff were going on in 2020 is a reference to someone else? Even assuming that the parties were not properly or fully married in accordance with the appropriate custom and Plaintiff indeed married one Phillipina Opoku Agyemang, the evidence that has been led indicates that this subsequent marriage took place in 2022- two whole years after the conversations in the above-mentioned exhibits. Accordingly, it could not have been this same Phillipina who could be the one being referred to in 2020 as “wife”. In Fynn vs. Fynn [2013-2014] SCGLR 727 at 738 the Supreme Court emphasised: “….in the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down the following salutary rule of law, namely that: ‘Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such an admission, which is an example of estoppel by conduct.’” (See also S.A. Brobbey in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113 on the effect of admissions). In my view therefore and flowing from the above, 1st Defendant was the one at all material times being referred to as the go-between for Plaintiff and 3rd Defendant in exhibits C2, D and G. I am further satisfied on the balance of probabilities, that the indenture in exhibit E series was indeed prepared for Plaintiff after further payment of the agreed amount of Sixteen Thousand Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 16 Ghana Cedis (GHC 16,000) was made to the 3rd Defendant. This can be seen from the combined readings of exhibits C1, C2 and D all of which corroborate Plaintiff’s assertions that the documents in Exhibit E series were delivered to 1st Defendant by 3rd Defendant after the said balance of GHC 16,000 was paid. Accordingly, I am satisfied as the trier of fact that Plaintiff has satisfactorily discharged his evidential burden of proof that on the balance of probabilities, he indeed purchased the Property herein from 3rd Defendant through 1st Defendant. I therefore resolve both the 2nd issue of Whether or not Plaintiff purchased the subject matter from the 3rd Defendant; and the 3rd issue of Whether or not the indenture dated 2nd February 2020 was deposited in the custody of the 1st Defendant in the absence of Plaintiff, in favour of Plaintiff. 4) Whether or not the payments made to the 1st Defendant by Plaintiff was for any other purpose other than maintenance? 1st Defendant has sought to urge on this Court that the payments remitted to 1st Defendant was not for the acquisition of the Property which is the subject matter of this suit or indeed any other property purchased for and on behalf or Plaintiff by 1st Defendant. Rather it was solely for the purposes of maintenance of the daughter that Plaintiff and 1st Defendant have between them. As I have already discussed under the preceding issues, the Plaintiff has led persuasive evidence to tilt the scales on the balance of probabilities in his favour that the monies advanced to 1st Defendant from exhibits were indeed for the purchase of the Property in dispute for and on his behalf. The burden thus shifted to 1st Defendant to provide counter-evidence which disproves this and affirms her contention that Plaintiff was inconsistent with the remittance of monies for the upkeep of their daughter for which reason those specific monies advanced to her from exhibits was to cover the maintenance arrears. However, 1st Defendant did not tender any exhibits in that regard. She did not provide any bank or telco wallet statements to show the receipts of monies from Plaintiff over a period of time which would then support his alleged failure to pay maintenance at different times on different months. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 17 By contrast, Plaintiff through the supplementary witness statement of his lawful attorney tendered in exhibit B and B1 which are bank statements of Plaintiff from Access Bank covering January 2020 to December 2022 which showed various transfers to 1st Defendant. In addition exhibits L, N and P were also tendered by Plaintiff which showed transfers to 1st Defendant through Stanbic Bank and Mobile money. None of these exhibits were discredited under cross- examination. Using some instances in Exhibit B1, the said exhibit shows that Plaintiff remitted 1st Defendant on 16th February, 2021 an amount of GHC 3,000 and then just the following month on 29th March 2021 an amount of GHC 10,000 was also sent. Again in September 2021, the exhibits show Plaintiff sent 1st Defendant various amounts first on 3rd September 2021 (exhibit B1) an amount of GHC10,000 was sent, again on 3rd September 2021(exhibit L) an amount of GHC 8,550 was sent, and then on 17th September 2021 (exhibit N) an amount of GHC 8,900 was sent. What this indicates to me is that there were specific purposes for each amount sent on the different occasions. I am not persuaded that all these amounts sent would certainly all have been solely for maintenance arrears. Accordingly, I am not persuaded by 1st Defendant’s contention that the payments were exclusively for maintenance arrears, and reiterate my findings that the monies shown to have been advanced to 1st Defendant in exhibits L and N were solely for the purchase of the Property in contention and the commencement of the building project on same. 5) Whether or not by virtue of the 1st Defendant having been in peaceful and active possession of her land since May 2010, the Plaintiff or anybody else retained a right to claim ownership of same in 2024? 1st Defendant has contended that she has been peaceful possession of the Property since 2010. She tendered in evidence exhibits 1 series and exhibit 2 in support of this assertion. She also called as a witness one Andrews Boakye Danquah (DW1) who gave evidence that he used to observe 1st Defendant coming to work on the Property. 1st Defendant however did not make any prayer by way of counter-claim for the Property. I have carefully scrutinised the evidence and testimony of 1st Defendant and her witnesses. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 18 The first interesting thing to note is that the site plan attached to exhibit 2 which is the indenture 1st Defendant claims was given to her by her vendors upon allegedly purchasing the land in 2010 bears the date 19th September, 2022, about twelve whole years after the alleged purchase in May 2010. To combat this discrepancy, 1st Defendant sought to urge that an original site plan was given to her in April, 2010. However, she inadvertently failed to attach same because there was an updated bar-coded site plan of this old site plan dated in 2010, for which reason it was only the updated bar-coded site plan she tendered in evidence. I however found this argument of 1st Defendant to be quite disingenuous. At all material times 1st Defendant had this material piece of evidence in her possession, and she could have tendered it at any time prior to the commencement of trial. Indeed, even after trial commenced, if the failure to attach such a piece of evidence was due to genuine inadvertence, then 1st Defendant could have at any time sought leave of the court to file a further supplementary affidavit to attach this proposed evidence, and it would be within her right to do so. Indeed, under the procedural rules, a party may even go so far as to seek leave to amend their pleadings to plead a material fact at any stage of the proceedings (see Order 19 of the District Court Rules, 2009 (CI 59)). Such an amendment would of course be subject to such terms or costs as the Court considers just. Yet despite this permissive right, 1st Defendant never sought leave to file a further supplementary witness statement until in the middle of her cross-examination when under cross-examination she was questioned on the only site plan that she ultimately chose to attach to her supplementary witness statement in Exhibit 2 (see proceedings dated 1st November, 2024). One of the crucial issues agreed during case management stage as far back as May, 2024 was this fifth issue: “Whether or not by virtue of the 1st Defendant having been in peaceful and active possession of the land since May 2010, the Plaintiff or anybody else retained a right to claim ownership of same in 2024” (see case management proceedings dated 9th May, 2024). This shows that the timing of the alleged acquisition of the disputed land by 1st Defendant was a crucial issue that 1st Defendant had the burden to lead evidence to establish. This was the more reason the old site plan should have been included in either her original witness statement filed on 7th June, 2024 or to her supplementary witness statement filed on 2nd July, 2024 together with the new bar-coded site plan marked exhibit 2. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 19 The second interesting thing this Court has noted was that aside from her failure to attach material evidence, I also find 1st Defendant to be a woefully unreliable witness. 1st Defendant confirmed that her birthday is 26th May, 1989 and that as at 2010 she was twenty-one years old. She claimed she was able to make the purchase of the land in 2010 at that young age of 21 years because barely two months after completing secondary school in 2007 she started working at the Accra Mall sometime in May 2007 and it was through this work that she was earning (as she states), “a substantial amount of income”. In fact, according to 1st Defendant this income from her work as a sales representative at a boutique in the Accra Mall in 2007 was so substantial, she was not only able to purchase the land in 2010, she was also able to use the income to cater for the educational needs of Plaintiff at Accra Polytechnic (now Accra Technical University). This testimony was given under cross-examination where 1st Defendant stated as follows: “Q: Would you agree that having been born in 1989, as at 2010 you were only 21 years old? A: Yes My Lady. I agree. Q: I suggest to you that at 21 years old you did not have any financial means of acquiring immovable property in Ghana. A: I disagree My Lady. At 21 years I was working and where I was working, I was earning a substantial amount of income. The income was sufficient to the extent of catering for the educational needs of Plaintiff at Accra Poly (now Accra Technical University). The family of Plaintiff are aware of this and if they are truthful they will admit same.” (see proceedings dated 1st November, 2024) Curiously enough, and contrary to 1st Defendant’s assertions however, a quick search in the Google search engine reveals that the Accra Mall did not open until 4th July, 2008. This opening date is in fact also confirmed from the website of the Accra Mall itself. How then could 1st Defendant have been working in a boutique at the Accra Mall in May 2007 when the Mall did not operate until July, 2008? Even giving 1st Defendant the benefit of the doubt that she got the dates mixed up, she could not even name the boutique that she was earning such a lucrative income from which allowed her to not only purchase land in 2010 but even support someone else at a tertiary institution with its attendant high costs. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 20 In addition to these inconsistencies, both 1st Defendant and her father (ie DW2) claimed that Plaintiff lived in her father’s hall for about two years because he did not have a place to stay. 1st Defendant further claimed that Plaintiff stayed in her father’s hall for about two years but left in or about 2013 when she conceived their daughter (1st Defendant confirmed this estimated period of conception to be August/September 2013 under cross-examination dated 4th November, 2024). I will reproduce the relevant portions of the evidence given to this Court by 1st Defendant below: “QUESTIONS BY COURT By Court: How long did Plaintiff stay in your father’s hall? 1st Defendant: About two years. By Court: Around what time did he leave? 1st Defendant: When I conceived our child.” Yet in her own witness statement filed on 7th June, 2024 at paragraph 3, 1st Defendant states as follows, “in 2012, we (Plaintiff and myself) moved into a single room with a porch apartment at House No. 24 Tsile Lane, Dansoman Shaibu (GA-014-8533) belonging to 2nd Defendant where we stayed for about 5 years before Plaintiff travelled to China.” So which assertion is true? That Plaintiff stayed in her father’s hall until 2013 when she conceived or that she moved with him to 2nd Defendant’s house in 2012 and stayed there for five years? I also found 1st Defendant’s father (DW2) not to be a credible witness. In his testimony before this Court he stated: “QUESTIONS BY COURT By Court: When did she finish Secondary School? DW2: 2007 By Court: And where did she work? DW2: At Accra Mall. By Court: When did she start IPMC? DW2: I cannot recall the exact date. By Court: How long did she attend IPMC before she got pregnant? DW2: It has been long and I cannot recall when exactly and I do not want to do any guess work. By Court: How long did she work at Accra Mall for? Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 21 DW2: I cannot recall but I know she worked at a boutique. I will plead with the court to pardon me with my date issues. By Court: When did Paa Kwesi (Plaintiff) come and stay with you? DW2: 2012. By Court: At the time Plaintiff came to stay with you had 1st Defendant started IPMC? DW2: Yes My Lady. By Court: How long had she been attending IPMC before Plaintiff came to stay with you. DW2: Two years.” Assuming the above testimony to be completely true, this would mean that this evidence contradicts 1st Defendant’s paragraph 3 of her witness statement which I have already quoted above. Moreover, if 1st Defendant had indeed been attending further schooling at IPMC two years before Plaintiff came to stay with DW2 in 2012 that would mean she started schooling at IPMC around 2010. Yet 1st Defendant herself earlier testified that she didn’t continue with her further schooling until sometime after 2011 until she conceived somewhere in 2013. This evidence of 1st Defendant is reproduced below: “Q: Which means in 2015 and 2016 you were schooling because you told this Honourable that you pursued further education for two years. A: That is not so. I stated I finished Senior High School in 2007 and went to work at the Accra Mall. I worked from 2007 to somewhere in 2011. And I went back to school for two years before I conceived.” The combined effect of all the above discrepancies and inconsistencies of 1st Defendant and her witnesses leads me to the conclusion that 1st Defendant and her witnesses are not at all credible and their testimony on oath cannot be relied on. The documentary evidence per exhibits 1 and 2 further submitted by 1st Defendant also woefully failed to corroborate her assertion that she purchased the Property in 2010. I therefore find that with respect to the fifth and final issue 1st Defendant has failed to discharge her evidential burden to persuade this Court that on the balance of probabilities, her assertion is more likely to be true. Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 22 Conclusion Having found in favour of the Plaintiff, I will hold that he is entitled to all his reliefs. Thus the following reliefs prayed for by Plaintiff from this Honourable Court are granted as follows: a. A declaration that Plaintiff is the owner of the land situated and lying at Ngleshie-Amanfro and situated in the Ga South District in the Greater Accra Region of the Republic of Ghana described above and referred to in this judgment as ‘the Property’. Having found that Plaintiff has proved on the balance of probabilities that he is the owner of the said Property I accordingly grant relief a) and declare Plaintiff as the said owner of the Property. b. An order for perpetual injunction is granted restraining the Defendants, their agents, heirs, assigns or workmen from dealing with the land in anyway whatsoever c. Plaintiff is awarded general damages for trespass on the Property of the Plaintiff to the tune of Five Thousand Ghana Cedis (GHC 5,000); d. An order is made that 1st Defendant deposits the documents in her possession at the registry of this Honourable Court for the Plaintiff to collect same. I will further award Plaintiff costs of Seven Thousand Ghana Cedis (GHC 7,000). This brings the total judgment debt to Twelve Thousand Ghana Cedis. Plaintiff is further awarded interest on the said judgment debt at the prevailing bank rate from the date of judgment until date of final payment in accordance with the Court (Award of Interest and Post Judgement Interest) Rules, 2005 C.I 52. It is further ordered that the amount of Five Thousand Ghana Cedis (GHC 5,000) paid into this Court on 16th April, 2024 in compliance with the order for security of costs be released back to Plaintiff. SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Ebenezer Kwesi Brinful vs. Georgina Sey & 2 Ors. 23