IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2019
BETHEL DELIVERANCE MISSION INT - (Plaintiff)
PROPHET STEPHEN GAITU AND ANOTHER - (Defendant)
DATE: 27 TH MARCH, 2018
SUIT NO: E1 / 53 / 2013
JUDGES: ERIC BAAH JUSTICE OF THE HIGH COURT
ERNEST YAO GAEWU FOR PLAINTIFF >br>
NELSON M. KPORHA FOR DEFENDANTS
1. The plaintiff's writ of summons dated 20 May, 2013, was indorsed for the following reliefs:
a) A declaration that by the constitution of the plaintiff church, all properties acquired in the name of the plaintiffs Toh-Kpalime branch are the properties of the plaintiff.
b) An order for the immediate recovery of possession of all such properties of the plaintiff in the lands f the defendants.
c) Damages for trespass.
d) An order of injunction against the defendants jointly and severally from using, dealing and to cease forthwith the use and dealing of the plaintiff's premises and to her properties for worship, meetings and any other church activities.
e) Any other order relevant in the circumstances.
B. PLAINTIFF'S CASE
2. The plaintiff's case per the pleadings is that, it is a church incorporated under the Company's Act of Ghana, (Act 179) and has branches all over Ghana, including Toh-Kpalime. It is headquartered at Awudome Bethel, near Awudome Tsibu.
It has a constitution for the governance and regulation of the members and the various branches.
3. Until the 28 of October, 2012, the 1st defendant was a member as well as the pastor in charge of the plaintiff's branch at Toh-Kpalime. Presently, he is founder and overseer of the 2nd defendant church, which is new and different from that of the plaintiff in its totality. According to the plaintiff, its branch at Toh - Kpalime owns or owned a chapel, a plan and or indenture covering the conveyance of the site for the chapel, church office, public address systems, drums, canopies, plastic chairs, wooden chairs and other properties.
4. Per a letter dated 1st November, 2012, and addressed to the General Overseer, the 1st defendant formally announced his resignation from the plaintiff church. The plaintiff accepted the resignation. Since that date, the 1st defendant has formed the 2nd defendant church and operated as a separate entity from the plaintiff. Attempts by the plaintiff for the 1st defendant to vacate the plaintiff's premises and surround the other properties have however proven futile. The defendants have rather been using the premises and the properties as their own. The plaintiff considers the defendant's action trespassory and unlawful, and is of the view that unless compelled by the court, the defendants will not vacate the land and surrender the plaintiff's properties.
C. DEFENDANTS' CASE
5. The defendants' original statement of defense filed on 18 June 2013 was amended with leave on 27 November, 2017. Same was further amended on 16 July 2014 by the addition of a counterclaim. A last amended statement of defense and counterclaim was filed by the defendants on 21 June, 2016.
6. The case of the 1st defendant, is also that he and some of his members were formally members of the defunct White Cross Church at Vakpojordanu in 1990. Presently, the 1st defendant is the founder and leader of Christ Liberation Church (CLC), which is the 2nd defendant herein.
7. When the White Cross Church collapsed, the owner of the land on which the church was etablished reclaimed it in 1998. According to the defendants, there was no successor to the White Cross Church which collapsed in 1998.
8. In 2001, the 1st defendant joined the plaintiff church. The church had neither a chapel nor a pastor's residence. They congregated in one of the classrooms at Toh-Kpalime. The 1st defendant was ordained as pastor of plaintiff's church on 9 November, 2003. action trespassory and unlawful, and is of the view that unless compelled by the court, the defendants will not vacate the land and surrender the plaintiff's properties.
C. DEFENDANTS' CASE
5. The defendant’s original statement of defense filed on 18 June 2013 was amended with leave on 27 November, 2017. Same was further amended on 16 July 2014 by the addition of a counterclaim. A last amended statement of defense and counterclaim was filed by the defendants on 21 June, 2016.
6. The case of the 1st defendant, is also that he and some of his members were formally members of the defunct White Cross Church at Vakpojordanu in 1990. Presently, the 1st defendant is the founder and leader of Christ Liberation Church (CLC), which is the 2nd defendant herein.
7. When the White Cross Church collapsed, the owner of the land on which the church was established reclaimed it in 1998. Accordingly to the defendants, there was no successor to the White Cross Church which collapsed in 1998.
8. In 2001, the 1st defendant joined the plaintiff church. The church had neither a chapel nor a pastor's residence. They congregated in one of the classrooms at Toh-Kpalime. The 1st defendant was ordained as pastor of plaintiff's church on 9 November, 2003. The defendants claim that the dilapidated or abandoned structure of White Cross Church was burnt down by the land owners, who subsequently, offered the vacant land for sale. In or about 1995, the land owners; being the Agbi family, announced to interested persons to approach the representative of the family to acquire the said land and its adjoining plots.
9. The 1st defendant says that after the acquisition of the land previously used by White Cross Church he made a shed under which members of the plaintiff church worshiped, after they had been prevented from worshiping at the Toh-Kpalime JHS workshop. According to the 1st defendant, he extended electricity from his wife's provision store, which is on a portion of the land in dispute, to facilitate church activities. According to him, he acquired the land in his personal capacity in 2004 from the Agbi family and established his Christ Liberation Church thereon.
10. The remaining portions of the land were sold to other persons who have put residential buildings thereon.
He claimed to have put up the school and offices on the disputed land with assistance from friends. He claimed to have acquired the other properties claimed by the plaintiff - public address systems, drums, canopies, plastic chairs and other properties, form his own resources, to the knowledge of the plaintiff.
11. He admitted to have resigned from the plaintiff church for non-payment of his salaries and allowances for a period of eleven (11) years. This was in spite of religiously remitting the due percentages of the church revenue to the church headquarters.
12. He denied plaintiff's claim to ownership of the subject properties and the premises. He counterclaimed for: Declaration of title to all that piece of land described in paragraph 9 of the amended statement of defence.
13. It is of moment to refer to the plaintiffs amended reply dated 11 August, 2014, by which it explained that White Cross Church, Toh - Kpalime was integrated into and became part of the plaintiff's church branch in 2001 or thereabout. The plaintiff further explained that the Agbi family; represented by Stephen Asamoah, Agbi Kwame and Mananey Kofi Peprah, leased the subject land to the plaintiff for a church building, for which valuable consideration was paid on 3 January, 2004.
14. The following issues were set down for the determination of the case:
Whether or not the plaintiff is the owner of all the properties mentioned in paragraph 6 of the statement of claim.
Whether or not the plaintiff is entitled to the reliefs.
Any other issues not herein before mentioned but raised and arising on the pleading.
Whether or not the 1st defendant acquired the land on which the defunct White Cross Church was built from the Agbi family in 2004.
15. The following three personalities testified for the plaintiff:
Reverend Gershon Kwame Osei - PW1
Reverend Francis Addo Gotah –
PW2 Emmanuel Yaw Ahedor - PW3
16. Defendants relied on the testimonies of the following witnesses:
Reverend Stephen Gaitu - 1st Defendant.
Samuel Kodzo Baah - DW1
Nelson Kwame Agbi - DW2
The health, strength or weight of the above testimonies, as they stood individually and collectively, will be determined in due course.
17. Evidence in this case closed on 18 December 2017. The defendants’ counsel was to file his address by 31 January, 2018, and the plaintiff's counsel, by 15 February, 2018. Even though judgment could not be delivered on 15 March, 2018, and was adjourned to today, the plaintiff's counsel did not file an address.
18. The defendants' counsel filed his address on 8 February, 2018. I will refer to same at all relevant times. As I appreciate the defendants' counsel for the assistance given the court by the address, it is worth noting that a lawyer's address cannot be compelled. With or without the addresses, a judge has a duty to deliver judgment in every case he adjudicates over.
19. In Amerley v Otinkorang  GLR 656, the Supreme Court held (in holding (1):
"Having regard to Order 36 r 21(g) and (h) of the Supreme (High) Court (Civil Procedure) Rules, 1954, it is not obligatory on counsel to address court at the close of a case, but it is desirable that where the right of address is waived this should be recorded in the proceedings.”
20. The present High Court (Civil Procedure) Rules, 2004 (C.1. 47); particularly Orders 41 and 75, does not contain any provision that makes a lawyer's address compulsory. The judicial duty to give a judgment provides in Order 41 r 2(1), C.I. 47:
"It is the duty of the court to deliver judgment as soon as possible after the close of each case before it, and in any event not later that six weeks after the close of the case”.
In Oworsika III v Amontia IV  1 M.L.R.G 61, the Supreme Court per Twum JSC (at p. 96, lines 15-20) held:
"The Judicial function imposes a duty on a court or other adjudicating body to find the facts and then apply the law..."
See also: Tsatsu Tsikata v The Republic  1 M.L.R.G 120.
21. Inspite of the above, it is not a good decision for counsel to waive his address except in very simple and clear cases, especially cases which have been presided over by the same judge from beginning to the end. Where the issues are complex or complicated, and the case has taken a long period to complete; and especially where the trial was began by another judge and the proceedings adopted and continued by another, a failure to address amounts to a marked failure to assist the court dispense justice according to law.
22. Presently in the United Kingdom; a cradle of judicial excellence, lawyers are required to file two addresses. The first is the skeleton argument submitted by counsel at the beginning of the trial, and the second; written or oral submission filed or delivered at the close of the trial.
Written submissions are the norm these days and no lawyer can evade its demands. In an address to the Chancery Bar Association Conference on 26 January 2004, Mr. Justice Lightman (See: Andrew Goodman, Effective Written Advocacy in Practice, 2009, p. XVI) stated:
"Advocacy... today ... transcends its traditional form of oral presentation in court and includes and finds critical expression in written forms in which expertise is called for of the advocate and which can have a decisive effect on the outcome of the case.”
On the importance of (skeleton) addresses, he opined:
"Skeletons can have a substantial if not decisive effect on the course and indeed the outcome of proceedings. Counsel now requires expertise at least as much in preparing skeletons as in making oral submissions. The judge generally comes to a case blind. On occasion he leaves the case in the same condition. He is in need of illumination of the task before him in concise form..."
On the importance of final submissions, he stated:
"The advocate remembers that the judge is looking to counsel for assistance in reaching and reasoning his judgment. For many (if not most) judges the recourse to a written skeleton is the first resort in writing his judgment. The tedium in preparing a skeleton pays off."
23. The proceeding passages exposes the critical importance of the addresses of counsel in a case, for which reason all advocates must endeavor to meet, except in clearly exceptional cases. Inspite of the above, I remind myself that it is my duty to find the facts and apply the law to same. It is my hope and believe that at the close of my speech, I would have accomplished that task.
24. Before determining the issues set down, I will sketch out the evidential standards the parties were required to meet and the approach I will adopt for the resolution of the issues raised in this case. I begin with the burden of proof cast on the parties.
G. BURDEN OF PROOF
25. A party who affirms assumes the burden of proof. The rule as is enunciated in sections 11, 12 and 13 of the Evidence Act, 1975 (NRCD 323), has been affirmed in numerous cases including Yorkwa v Duah (1992-93] GBR 278 (at 282); Baah v Sule Brothers  1 GLR 110; Bisi v Tabiri [1987-88] 1 GLR 360; Gyamfi v Badu  2 GLR 596 and Takoradi Flour Mills v Samir Faris [2005 – 2006] SCGLR 882. The plaintiff was required to prove the averments it made on preponderance of probabilities.
26. The defendants' counterclaimed against the plaintiff for an order of declaration of title to the subject land. The defendants assumed the same burden as the plaintiff in proving the claims embodied in the counterclaim.
In Brimpong v Bawuah [1994-95] GBR 837, it was held by the Supreme Court:
"It was a well-settled principle of law that a defendant who counterclaimed assumed the same burden with respect to the counterclaim as the plaintiff...”.
Malm v Lutterodt  1 GLR1; Kodilinye v Odie [1935)2 WACA 336; Abbey v Sykes [1994-95] GBR 343; Ricketts v Addo  2 GLR 158; Sakyi v Appiah [1992-93] GBR 1620 and Gihoc Refrigeration and Household Products Ltd v Jean Hanna Assi [2005 - 2006] SCGLR 458;  1 M.L.R.G 99, held to the same effect.
27. Shifting of the Burden of Proof
The burden on the plaintiff to proof its claims, and the concomitant duty on the defendants to prove the reliefs in their counterclaim, are not static. The burdens are capable of shifting onto the other party. In respect of the plaintiff, the burden would shift onto the defendants if the plaintiff is able to adduce credible admissible evidence of such persuasive effect that if the defendants do not provide sufficient explanation, the plaintiff would be entitled to a ruling. It is vice versa if the defendants reach that level of proof in respect of the counterclaim. I now turn to the specific issues set down.
H. ISSUE 1: WHETHER OR NOT THE PLAINTIFF IS THE OWNER OF ALL THE PROPERTIES MENTIONED IN PARAGRAPH 6 OF THE STATEMENT OF CLAIM.
28. Paragraph 6 of the statement of claim lists the following properties as belonging to the plaintiff: Chapel, site plan/indenture of conveyance of the chapel site.
Public address system and drums canopies, plastic chairs, wooden chairs and other properties.
29. There are two categories composing the plaintiff's claims which must immediately be decomposed for the sake of clarity. As Aristotle puts it:
"Several questions put as one should be at once decomposed into their several parts; only a single question admits of a single answer..."
30. The plaintiff's claim covers movable and immovable property. By the additional issue, the court is also to determine if the subject land was acquired by the 1st defendant, on which the defunct White Cross Church had been established. Both plaintiff and defendants accordingly lay claim to the subject land. The court will first determine the respective claims to the subject land and thereafter deal with the other (movable) properties in contention.
Case law firmly establishes the approach and objects that an applicant for an order for declaration of title or perpetual injunction must meet. It is to these legal standards that I now turn.
Acquisition, Identity and Possession.
In an action for declaration of title to land; as in the present case where both parties lay claim to the subject land, the plaintiff; in respect of the claims, and the defendants; in respect of the counterclaims, have a duty to establish their acquisition, identity (boundaries) and possession or right to possession of their lands. This is what I refer to as the “legal trinity.” No land suit for declaration of title and perpetual injunction could succeed without proving the “legal trinity."
32. In Mondial Veneer (Gh) Ltd v Amissah Gyebi XV  1 SCGLR 466, it was held, holding (4):
"In land litigation, even where living witnesses, directly involved in the transaction had been produced in court as witnesses, the law would require the person asserting title and on whom bear the burden of persuasion, as the defendant's company in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts, on the balance of probabilities that the party would be entitled to the claim"
33. The apex court left out one requirement, perhaps due to the peculiarities of that case. That is the requirement of identity of the subject land. A claimant's duty to prove identity is inapplicable only where the parties are ad idem as to the identity of the subject land.
34. The first arm of the legal trinity is acquisition or root of title. On the requirement for a claimant to prove his acquisition (root of title), the case of Kponuglo v Kodadja  2 WACA at 25 held:
“The first question logically and chronologically to consider in the appeal is the traditional evidence regarding the acquisition of title to the disputed territory."
35. The first question this court must resolve in view of the respective claims to title is evidence on the parties' respective acquisition of the subject land. Failure of a claimant to prove his or its acquisition must lead to the collapse of his or its case.
36. The second arm of the legal trinity is identity of the land claimed. Anane v Donkor  GLR 188, holding(1) held:
"A claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land claimed with the land the subject matter of his suit"
37. This rule requires a two-stage inquiry. At the first step, the plaintiff or claimant must prove the identity of the subject land. The second stage requires the plaintiff or claimant to establish that the identity of the subject land is the same as the land he claims. That was because, a mere identification of the subject land is pointless unless it is linked to the land the plaintiff or claimant claims. Simply put; after the plaintiff had proved the identity of the subject land, he must put forward evidence in the form of land title certificate, an indenture, receipt or other documents or oral evidence in the case of customary and equitable interests, to show that the land in dispute is the same as the land he claims.
38. To complete the legal trinity, the plaintiff or claimant must establish possession or right to possession. Possession may be actual or constructive. Actual possession is “physical occupancy or control over property,” whiles right to possession (constructive possession) “is control or dominion over a property without actual possession or custody of it”
See: Black's Law Dictionary (2009, 9 ed. 1281). Section 48 of the Evidence Act, 1975, (NRCD 323) consider possession as prove of ownership. In Amankwa v Nsia (1994-95] 2 GBR 758 at 775, Abban JA (as he then was) cited the dictum of Lord Fitzgerald in Danford v McAnnulty  8 App cases 456, HL, and held:
"Possession is mine points of the law and a defendant who has no counterclaim, only has to plead that he is in possession.”
39. The presumption of ownership in favour of a person in possession of landed property is rebuttable. Where a plaintiff or claimant establishers title over the subject land, the person in possession assumes the burden of proving why an order for recovery should not be made against him. See: Odunsi v Koforij  19 NLR7.
I will now consider the respective evidences of the parties on their claim to have acquired the subject land.
i. Plaintiff's Acquisition
40. The plaintiff claim to have acquired the subject land from the Agbi family in 2004 for which it was issued a receipt, tendered as exhibit “D”. Exhibit “D” was allegedly issued to the plaintiff on 3 January, 2004. They claim that there is a site plan over the land but same is in the custody of the 1st defendant who until November, 2012, was the pastor of the church.
41. They claim also that since the 1st defendant broke away, he has taken over possession and exercised title over the land over which his church; 2nd defendant, worship and carry on other activities. They tendered exhibits El, E3 and H to show that funds were generated by the plaintiff church for the purpose of constructing the chapel on the land acquired for the purpose. As mentioned supra, the plaintiff's counsel did not file an address so his opinions on the issues remain unknown.
42. The defendants' counsel was of the view that exhibit D, which the plaintiff tendered as proof of their acquisition of the subject land, was fraudulently prepared to achieve their self-serving interest. That was because, whereas the document states that the land belongs to late father of the grantors; Togbe Kwasi Yao of Kpalime-Duga, plaintiff's witnesses; DW1 and DW2 testified that the land the plaintiff acquired belonged to the Agbi family. It appears from the context that counsel for the defendants was referring rather to PW1 and PW2, and not DW1 and DW2.
43. He argued that since the plaintiff's witnesses claimed that they acquired the land from the Agbi family, but their document states otherwise, the plaintiff should have caused the head or lawful representative of the Agbi family to convey the land either by a lease or by an absolute conveyance. He contended that by the evidence of the plaintiff, the subject land is a family property and not the self-acquired property of Togbe Kwasi Yao.
44. He posited that if the land was indeed granted by the Agbi family, same was not granted voluntarily and that was why exhibit 'D' had to be copied to the Inspector in charge of the Ghana Police Service, Kpalime-Duga.
He wondered as to how Manasseh Peprah, who had opposed the plaintiff's occupation of the land, and had burnt down the plaintiff's church, could have been a grantor to the plaintiff?
45. A quick correction is required here. PW1 testified that it was the White Cross Church that was burnt down. The submissions of the Defendants' counsel based on the claim that Manassey Peprah burnt down the plaintiff's church was therefore not accurate. PW1 also explained that it was when the White Cross occupied the land that a member of the Agbi family was against the occupation until the White Cross Church collapsed. That was why in the receipt to cover the land, the police were copied. The evidence therefore is not that it was the plaintiff's church that the Agbi family disturbed, but rather the White Cross Church.
46. That may be understood in the context that the White Cross Church occupied the land but never acquired it. If they acquired it, the same land could not have been granted to either the plaintiff or 1st defendant.
47. The question that needs to be resolved is whether the plaintiff's claim that they acquired the land from the Agbi family is true, or is rather false, as argued by defendants' counsel. The inquiry begins with the plaintiff's pleadings. In paragraph 5 of the plaintiff's amended reply dated 11 August, 2014, the plaintiff claim that they acquired the land from the Agbi family represented by Stephen Asamoah, Agbi Kwame and Manassey Kofi Peprah. PW1 and PW2 testified that the plaintiff acquired the land from the Agbi family. The plaintiff's proof of purchase; exhibit “D”, indicates that three members of the family granted the land to them. The said grantors; as stated supra, made it clear that the property belonged to their late father, Togbe Kwasi Yao of Kpalime-Duga. What then is the “Agbi family" or who constitute it?
48. A scrutiny of the evidence shows that both parties committed the same "errors", if at all, in claiming that they acquired the subject land from the Agbi family.
I will begin with the plaintiff. Their document; exhibit “D”, indicates that the land granted them belonged to the grantors' father called Togbe Kwasi
Yaw. In the view of the defendants' counsel, this meant the land was Togbe Kwasi Yaw or Agbie Yaw's self-acquired property, and not family property. However, PW1 and PW2 testified that the land was acquired from the Agbi family. Defendants counsel considered this to be inconsistent.
49. On the part of the defendants, exhibit 2 explicitly stated that the land is family land and that its grant by DW2 was with the consent and concurrence of the principal members of the family. The two principal members who witnessed the document (exhibit 2) were Togbe Agbi Yao VII and Manase K. Pepra. However, in his evidence-in-chief, DW2 who has described the land as family land for which he needed the consent and concurrence of principal members to alienate, testified:
“The land given to my brother which he later gave to the 1st defendant is not a family land. It was my father's land. It was because we are siblings; from one mother and one father, that is why I gave it to my brother.”
In order not to leave any doubt, he testified that it is the land that he gave his brother, and which his brother gave to the 1st defendant, which the 1st defendant has built his chapel on. That makes it the land in dispute.
50. The western notion of the word “family” is one constituted by a couple and their dependent children. That is what is termed the nuclear or immediate family. The word family is however generally understood in Ghana to mean the wider or extended family, comprising of several households descended from one common ancestor.
51. With the growing influence of western values, resulting in emphasis on the nuclear family, as for example reflected in the ratio of distribution of the estate of a deceased intestate person in the Intestate Succession Law, 1985. (PNDCL 111), there is confusion even amongst lawyers, as to whether the term "family” had been used in the limited or wider sense.
52. That led professor Kludze to state the following in his book Ewe Law of Property (1973, p. 32);
"The word “family”, therefore, has become a term of art in Ghanaian law. However, there is a great confusion about the ambit of the term. Often one finds that neither the Ghanaian courts nor the Ghanaian lawyers are clear in their minds when they use the term "family". In different circumstances they seem to ascribe different meanings to the word even in the same context of succession to interests in property.
Sometimes it is used to refer to only the children and descendants of a living or a deceased person, thus embracing only several persons. At other times the word "family” is used in reference to a much larger group of persons, the descendants of a remote ancestor....”
53. He went on to explain that the confusion is limited amongst the Ewe where “family” is clearly identified as the dzotinu which has a special meaning. It is said to be composed by a man and his brothers, together with their children, as the basic unit. It is those units or branches that come together to form the dzotinu.
54. The preceding discussion shows that it is unsafe to insist that when the term "family” is used, it must fit only one meaning. To my mind, the context in which it was used determines whether it was used in the limited or wider sense, or in the special sense among the Ewe, as depicted by the third variation; dzotinu.
55. When the evidence is examined, the conclusion derived is that both sides acquired the land from a family in the limited sense. When PW1 and PW2 accordingly used the term “Agbi family", it could not be supposed that they could have meant only a wider family. The term could easily as well may have referred to the nuclear meaning.
That term accordingly had no consequence on this case. I, in that instance, will disagree with counsel for the defendants that the plaintiff perpetuated fraud, when its witnesses stated that the land was acquired from the Agbi family, whiles their document; exhibit D, indicates that the property was the self-acquired property of Togbe Agbi Yao, thereby making the property that of his nuclear family in terms of succession. In any case, parties are bound by the terms of the document they execute. When an agreement is reduced into writing, it is the writing that prevails. Extrinsic evidence may not be allowed to vary or extend it; except in very well-established circumstances.
56. I note that the document tendered by the plaintiff, exhibit D, is headed “Receipt/Agreement”. It has all the qualities of a conveyance. The parties, the boundaries and the consideration are stated. The only omission is the duration of the lease. If it is taken as a receipt for that omission, then it needed not be registered but could serve as evidence of sale between the Agbi family and the plaintiff. See: Issabella Odi Aggrey v Daniel Fianko  3 G.M.J. 21, SC.
57. I came to the conclusion that the plaintiff adduced sufficient credible evidence to prove that they acquired the subject land. The first defendant admitted under cross examination by the plaintiff's counsel that the plaintiff built a chapel on the land with donations from its members. He then sought to vainly explain that the plaintiff's shares of all proceeds were sent to them. The begging question is, why will the plaintiff build a chapel on the land if the land does not belong to them? Was it reasonable to suppose on the part of the plaintiff that they will build a chapel on a land acquired by the 1st defendant in his personal capacity? I believe the plaintiff's church members did neither of what the defendants’ evidence suggested. They built the chapel with donations and if the land belonged to the 1st defendant, why did he supervise the construction of the chapel for the plaintiff?
58. The defendants did not object to the exhibits tendered by the plaintiff. Amongst them are exhibits E1, E3 and H. Exhibit E is dated March 2010. It was completed and signed by the 1st defendant. The 1st defendant stated in exhibit E1, among others:
"...PROBLEMS FACING LOCAL CHURCH: CHAPEL BUILDING PROJECT, AMOUNT COLLECTED GH¢482.70) ....."
59. By exhibit H, also dated March 2010, one Mad V. Amanoh made a special donation of GH¢50.00 to the plaintiff church. Again the certificate issued her was signed by the 1st defendant.
60. These three pieces of evidence shows clearly that in 2010, or thereabout, the plaintiff church was receiving donations from its members for the church building project. At the time, the 1st defendant was still the pastor of the church. The defendants know that a chapel building cannot be constructed on the sea or in the sky. So therefore, if the plaintiff church at the time (in 2010) did not have a plot of land on which to build, what was the purpose of collecting donations for that project? Was the 1s' defendant engaging in a fantasy on behalf of the plaintiff? I do not think so.
61. If the Toh-Kpalime branch did not have a land on which to construct the chapel, the donations would have been received for the purpose of acquiring land.
62. For instance, the monthly progress report signed by the self-same 1st defendant for the plaintiff's head office indicated in respect of the Adjei - Kojo Tema branch:
"PROBLEMS FACING LOCAL CHURCH: PLOT FOR CHURCH AMOUNT COLLECTED GH¢163.20"
63. This reveals that the Adjei-Kojo branch did not have land for a church building. The donations received were therefore specifically towards the acquisition of a plot of land. The 1st defendant who is a professional teacher cannot feign ignorance of what he was doing. If the Toh-Kpalime branch did not have a plot of land, he will have first levied his members for a land before asking for donations for the building of the chapel itself.
64. The plaintiff's evidence also dented the credibility of some of the 1st defendant's claims. He denied the plaintiff's claim that he was allowed to retain 50% of the tithes at the local branch. He claimed that only 10% of the tithes were retained at the local level. Worse still, Bishop Sitsofe Fenyi (church founder) later reduced that to 5%. This claim was proven to a palpable lie.
65. The exhibits tendered by the plaintiff shows that for the month of March 2010, the tithes sent to the head office by the 1st defendant was GH¢81.60. The local branch retained GH¢81.60 (see Exhibit E). In exhibit E1, the 1st defendant sent GH¢93.50 and retained GH¢94.00. In exhibit E2, which represents the months of June, July, August, October, November and December 2005, the 1st defendant sent GH¢387.00 to the head office and retained 387.00.
66. These documents were prepared by the 1st defendant himself and signed by him. He did not challenge them when being admitted. They are therefore genuine documents. They show that for the months that records are available; the tithes were split into two, with half going to the plaintiff's head office and the local branch retaining the other half. It was the 1st defendant's duty to adduce evidence to rebut the presumption created in the exhibits which were prepared by him. He left the matter in abeyance or surmises and delighted himself in mere denials.
67. My conclusion is that the 1st defendant kept 50% of the tithes and I will believe also that he kept the donations for the church project as the plaintiff claimed.
68. Another critical evidence of the plaintiff was a letter they sent out to all their branches in 2011. At the time, the 1st defendant was still the pastor of the Toh-Kpalime branch of the plaintiff.
The letter, headed boldly as: CLAIMS TO FUNDS OR ITEMS IN THE CHURCH, stated, inter alia:
"At the last Council of Elders Conference held on Saturday, gth January, 2011, the conference has agreed to ask individuals or groups of persons who might have made any funds or items possible for any church branch but have NO INTENTION to give it out to the church completely should be bold enough to claim them or never
This was because article 14.3 of the draft constitution has clearly stated that:
"Funds and items received by the church shall be non-refundable and shall not be subject to claims by individuals, groups of organizations that might make any contributions whatsoever..."
69. This letter was admitted without objection from the 1st defendant. He did not deny receiving a copy of that letter. If he received it before he resigned, and he had a claim to the subject land or other properties, why did he not “boldly” notify the plaintiff? The constitution was promulgated (and adopted) on 8 January, 2011. Can the 1st defendant; who was member of the plaintiff in 2011 and was accordingly bound by the constitution, escape the legal scope and effect of article 14.3 of the church's constitution? I believe not.
70. There was another matter which dented the credibility of the 1st defendant. He claimed, against the denials of the plaintiff, that he personally established the Adjei-Kojo branch and that the plaintiff told him that they were not interested in it. Evidence produced by the plaintiff showed that the 1st defendant was not truthful. In exhibit E, the 1st defendant reported to his head office about the Adjei Kojo branch. He stated their problem as that of "plot for church”. He stated the amount collected for that branche's land acquisition as GH¢163.00.
71. Again, in exhibit 4 the 1st defendant wrote:
"Accountant, kindly handover Toh-Kpalime and Adjei Kojo's tithes to Rev. Osei. I authorise him to collect it for me.”
The date under the letter is 17 April 2010. If the plaintiff had no interest in the Adjei- Kojo branch, why was the 1st defendant sending monthly report on that branch to it (plaintiff). Again, why was the 1st defendant sending the tithes for the Adjei-Kojo branch to the plaintiff before the local's percentage was sent to him as per his letter of request (exhibit E4)?
72. Clearly, the Adjei-Kojo branch was established by the plaintiff and the 1st defendant was made pastor in charge by the plaintiff. Ordinary folks lie easily but when ordained men of God, professing the holy word decide to be economical with the truth, the damnation of this nation and mankind as a whole becomes more certain.
ii. Defendants Acquisition
73. The 1st Defendant admitted having being the plaintiff's pastor from 2001 – 2012. However, he claimed to have personally acquired the land on which stand the disputed chapel, school and offices. He claimed that after the collapse of the White Cross Church in 1998, the Agbi family gave them a quit notice so "we approached them and negotiated for the land on which we were living.” The family agreed and granted the land to them on which they built their houses. He tendered the receipt and indenture issued to him for that land which was admitted as exhibits “1” and “2” respectively. There is no dispute over the land the 1st defendant's house stands and the evidence disclosed that he is not the only member of the defunct White Cross church or the plaintiff church who acquired land at the same place to put up his personal building. Mention can be made of Francis Addo also known as reverend Francis Addo Gotah and Samuel Baah, who were also granted land at the area as their personal property.
74. With respect to the disputed land, the witness claimed that when the White Cross Church collapsed, the leadership of three including himself, reverend Addo Gotta and Mr. Baah Samuel refused to pay for the land so he personally paid for the whole land which used to be occupied by White Cross Church.
75. The 1st defendant claimed that in 2009, a friend from Germany called Shella Wallace with her father and grandfather agreed and assisted him in putting up the school, named Takumi Community School. The school stands on the disputed land and is also being claimed by the plaintiff. Counsel for the defendants submitted that the subject land was Agbi family land, and not the personal property of Togbe Kwasi Yao.
76. He contended that the Agbi family having made a customary grant of the subject land to the 1st defendant in 1998, the family was bereft of any right in the said property to enable them to have re-granted it in 2004. The formal re-grant of the same land by the family to the 1st defendant in 2004, he contended, was only a gloss over the 1st defendant's existing customary grant. He relied on Sarkodie v FKA Co. Ltd  SCGLR 65; Dovie & Dovie v Adabanu [2005 - 2006] SCGLR 905; Hammond v Odoi [1982 - 83] 2 GLR 1215 and Bruce v Quarnor  GLR 292.
77. I agree with him that where a family makes a customary grant, the grantor – family is left with no right in the said property to enable it re-grant it to the grantee or another party. I also agree that writing is not required for a customary grant to be effectuated. That was because, customary law knows no writing.
78. To the above authorities cited by him do I add Serwaa y Nana Agjen II [1992 – 1993] 2 GBR 915 (which held that a chief, and of course head of family cannot allocate land already allocated by a predecessor); Republic v Lands Commission; Ex parte Vanderpuye Orgle Estates Ltd [19988 1999] SCGLR 677 (which protects allocations by a deposed chief or head of family) and the Nigerian case of Ebajata & Ors v Ologbo & Anor  6 SC (pt 11) p. 51 (which confirmed that customary law knows no writing).
79. The defendants claim that the subject land was customarily granted to the 1st defendant in 1998 and a formal grant of same made in 2004. The 1st defendant in his evidence in chief made that claim. DW1 and DW2 corroborated the said claim. The plaintiff denies the 1st defendant's acquisition of the land in the year 1998 or in any other year. The 1st defendant, who has counterclaimed for the land, had the primary duty of proving that indeed, the subject land was first granted him customarily in 1998.
80. From my examination of the evidence, it became clear that no customary grant was made to the 1st defendant of the subject land in 1998. It is most certain that any grant made to him was in respect of the land on which he constructed his personal house. DW2 claimed to be the head of the Agbi family. He claimed to have granted the land in dispute to his senior brother in 1990 to enable his White Cross Church worship on same.
81. The witness then engaged in contradictions that rendered his evidence on that issue totally unreliable. In his evidence- in-chief, he stated that after his brother had had a quarrel with the White Cross Church, he (brother) gave the land that he (DW2) land given to the brother (Joseph/Jacob Agbi) to the 1st defendant said he:
"After my brother left the White Cross Church, the church collapsed at Toh-Kpalime. Joseph Agbi gave the land to the 1s defendant. When the land was given to the 184 defendant, I was at Wegbe Kpalime"
82. By his own mouth, he says that it was his senior brother Joseph or Jacob Agbi who granted the land to the 1st defendant. He also says that he was not even at Toh-Kpalime at the time, but at Wegbe-Kpalime.
83. At the tail end of his evidence-in-chief, he testified:
"It was known to me that my brother had given the land to the 1" defendant in 1998.”
Nowhere did DW2 state in his evidence-in-chief that he personally granted land to the 1st defendant as evinced by exhibits 1 and 2. Yet under cross examination, he claimed that he granted land to the 1st defendant which was different from the land granted the 1st defendant by his brother.
This is what transpired inter alia;
Q. Did you sell land to the 1st defendant?
A. Yes, I sold land to him.
The witness went on to say that the 1st defendant did not tell him what the land was to be used for, even though defendants' exhibits 1 and 2 boldly claim that the land was to be used to build a chapel.
The question then is, which land did DW2 sell to the 1st defendant? Was it the land for his private residence or the one for the chapel?
84. If it was the land for the private residence, then the evidence of DW2 has less weight since that portion is not in dispute. The land DW2 allegedly sold to the 1st defendant cannot also be the one for the chapel, because DW2 has testified that he gave that land to his brother who then sold it to the 1st defendant. He also added that the land his brother sold to the 1st defendant is different from the one he sold to the 1st defendant.
85. As would be shown later, DW2 repudiated the only concrete evidences that the defendants tendered to show that he sold the land for the chapel to them. The place and weight of the evidence of DW2 is in doubt and its impact on defendants' overall case was even negative.
86. The defendants tendered a document headed “Contract of Sale (Receipt)" The said document has the name of DW2 as the head of the Agbi family. The contents of the document are inter alia, as follows:
"I NELSON AGBI, hereby called the landlord confirms the sale of land of an area of sixty by one hundred and fifty yards (60 yards x 150 yards) to Rev. STEPHEN GAITU of Kaira, but a resident of Toh Kpalime in the Kpando District of the Volta Region, Ghana. The said land is in Toh-Kpalime opposite D/A JHS and was bought for the purposes of binding a chapel.
The transaction took place on 20th April, 2004.
87. If the land had earlier been given to the 1st defendant in 1998, why did DW2 fail to mention it in the document? If DW2 had forgotten, why did the 1st defendant not remind him of same so that that crucial fact could be placed on record?
88. That was not all. The same parties executed an indenture on the same 20 April, 2004. Not a single word was said about the alleged customary grant to the 1st defendant in 1998. The indenture boldly states that the grant to the 1st defendant was made on 20 April, 2004. It should be noted that the indenture, exhibit 2, was prepared by a solicitor, David Agorsor, a solicitor and advocate of Accra. Which lawyer worth his sort will fail or refuse to recite in an indenture that there had been a prior customary grant to his client(s)?
89. The submissions of the defendants' own counsel is apposite here. He argued that the 1st defendant's title is based on the customary grant made to him by the Agbi family in 1998. Properly, the indenture should have been a mere confirmation of the said grant. If there was such a customary grant, how could both sides forget it even with the assistance of lawyer, and rather craft a new agreement which has no mention of the alleged 1998 grant? Something is wrong here. The bona fides of the defendants' claim appear murky. I smell something. It is not a rat. It is bigger than a rat. I smell the carcass of a cow.
90. It should be noted that facts recited in a document are conclusively presumed to be true as between the parties. The rule; as enshrined in Section 6 of the Evidence Act 1975, NRCD 323, was applied by the Supreme Court in In Re Koranteng (Decd.) Addo v Koranteng  - 2006] SCGLR 1039.
91. In Smith v Blankson [2007-2008] SCGLR 374 (holding 1), the court explained that the rule was neither sacrosant nor a hard and fast one, and that each case must be considered on its own merits. The defendants could rebut the presumption created by the recitals in their own document; exhibit 2, and prove that the actual grant was made in 1998 but affirmed formally by the indenture in 2004. That the defendants did a bad job in the discharge of the duty imposed on them by the pleadings and the evidence is an understatement. They appeared to believe that the mere repetition of the claim by the witnesses in the witness box was sufficient.
92. The worse for the defendants is however yet to come. The defendants' fortes were the receipt, exhibit 1 and the indenture, exhibit 2. Under cross-examination, DW2 revealed that his father, Togbe Agbi Yaw or Yao, died before he sold the land to the 1st defendant. The following transpired:
Q. Do you know Togbe Yaw VII.
A. He is my father.
Q. When did he die?
A. I can't tell the date. It is being a while now
Q. But was your father alive when you sold the land to the 1st defendant.
A. He died before I sold the land.
Q. That means your father died before 2004.
A. I can't tell the date.
Q. Look at these documents (Exhibit 2), this is the document you, gave 1st defendant as having purchased land from you.
A. That is not the document I gave him.
Q. 1ST defendant tendered Exhibit 2 as the document you gave him.
A. He bought a land from me. I sold land to him.
Q. In Exhibit “2”, Togbe Agbi Yaw VII was a witness to the document.
A. I sold the land to the 1st defendant.
Q. I put it to you also that in Exhibit 2, your father read the document to you and you seemed perfectly to understand same before you signed.
A. Not correct. I did not sign that document.
Q. In the oath of proof, your deceased father signed as deponent.
A. I don't know anything about that document it is a forged document.
93. Indeed, the defendants' counsel recalled DW2 for re-examination with leave of the court. During the process, DW2 explained that his father was Togbe Yaw Agbi VI. According to him, Togbe Yaw Agbi VII had died recently and was yet to be buried at the time. The obvious implication of the evidence adduced under re-examination is that DW2's real father, Togbe Yaw (or Yao) Agbi VI had died some time ago and that his successor, Togbe Yao Agbi died recently and was alive at the time exhibit 2 was executed.
94. The evidence did not achieve much. The witness has already said that he did not sign exhibit 2 and the said document is a forgery. He claimed not to have given exhibit 2 to the 1st defendant. His evidence totally repudiated exhibit 2 and not part of it. Accordingly, it was not relevant whether it was Togbe Yao Agbi VI or VII who witnessed it. The allegation by DW2 against exhibit 2 was so loud and violent that it cannot be ignored.
The bona fides of exhibit 2 was shattered and the defendants' counsel made no effort to restore it during the re-examination.
95. Another factor was the dates on the indenture, exhibit 2. The operative date for its execution between the parties is 20 March 2004. Strangely, no step was taken on it until 2nd November, 2011, when it was sent to the registrar of the High Court for a certificate in proof of the oath. It was presented to the Lands Commission around 2012. It was registered under the Land Registry Act, 1962, (Act 122) on 5 December, 2013. The document has been repudiated by DW2, but the registration makes it an official document that enforces certain presumptions in 1st defendant's favour.
96. The fact of its registration is accordingly relevant. The registration created a presumption that the interest registered exists in law. Title to the interest in the land registered however is not thereby guaranteed by the state. The Supreme Court so held in Amuzu v Oklika [1997 - 1998] 1 GLR 89.
97. It must be noted that registration of title or an interest in land; no matter the solemnity of the procedures followed, does not create an unquestionable right. The court is entitled to examine the bona fides of the registration if evidence is proffered for the purpose.
98. Whether registered under the Land Registry Act, 1962 (Act 122) or under the Land Title Registration Law, 1986 (PNDCL 152), a registration does not confer state-guaranteed title. For example, under PNDCL 152, the effect of registration under Section 43(1) is subject to the limitations in the form of encumbrances and other existing interests in Section 43 (2), (3) (4) and Sections 46 and
99. That led me to state in Presbyterian Church of Ghana v Nicholas Parker (FAL 284/10) High Court Accra, dated 1 February 2016:
"I will state emphatically that no title registered in Ghana with full knowledge of the adverse and overriding legal or equitable interests of an opponent can subsist when challenged properly and timeously in court, even if the conveyance was written with the blood of the grantor and on the skin of the grantee."
100. In casu, the interest in the land was registered by the 1s' defendant fully aware of the adverse interest of the plaintiff in same. The plaintiff has properly and timeously challenged the said registration. The registration has no legal effect in the face of the plaintiff's prior or existing equitable interest in the subject land, which the 1st defendant was fully aware of but sought to subvert.
101. It is evident that the defendants' case in respect of the acquisition of the land was highly conflictual. The defendants' evidence suffered violence against itself. It was a case of a house against divided itself. In Mathew 12:24-25, the Lord Jesus in a parable to his disciples, said (King James Version)
“24. And if a Kingdom be divided against itself, that Kingdom cannot stand. 25. And if a house be divided against itself, that house cannot stand.”
102. There are canal law versions of the powerful spiritual and wise sayings of the Lord Jesus. In Atadi v Ladzekpo (1981] GLRD 15, CA, it was held in holding 1:
“...Whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue ... it was not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue.
A trial court would however be entitled to accept one such conflicting evidence if he directed his mind to such conflict in a party's case and nevertheless found it justifiable to make a finding in favour of the party on whose behalf a conflict existed having regard to the particular facts in issue and the circumstances surrounding the case."
103. The above dictum, crafted by the immutable Ollenu J, (as he then was) in Tsrifo v Dua VIII (1959] GLR 63 was borrowed by the Supreme Court in Osei Yaw and Anor v Domfeh  GLR 418 and the Court Appeal in Atadzi v Ladzekpo (supra). On the issue of acquisition of the subject land, the court could not accept the evidence of the defendants which suffered critical contradictions, against that of the plaintiff, which was corroborated in most material particular by the vivo voce evidence of the 1st defendant and the documents he authored as pastor of the plaintiff's church.
104. The 1st defendant is a pastor of the Lords Vineyard. But he is human and suffers from all the foibles of men. He could fall to evil ways, including deception. As William Shakespeare (1564-1616) said in Hamlet (1599 1600, I.V):
"One may smile, and smile and be a villain.”
And that is why Charles Dickens (1812-70, Great Expectations, 1860-1, Ch XL) cautions us:
"Take nothing on its looks: take everything on the evidence. There's no better, rule."
105. When I ignored the looks and took everything on the evidence, the plaintiff's claim to have acquired the subject land stood confirmed. The defendants contrary claim in their counter-claim, crumbled like the cookie. As explained at the onset, proof of acquisition is important but is only part of the job done. I will accordingly proceed to examine the issue of possession to enable me determine how it impacted on the respective claims to title of the subject land.
106. As briefly outlined at the onset, the parties were required to prove that since their alleged acquisitions, they have been in possession or have had the right to possession. That was because, possession; as with consummation in marriage, is required to complete the circle of acquisition. Possession; whether actual or constructive, is an indicia of title. As mentioned earlier, Section 48 of the Evidence Act, 1975 (NRCD 323) stipulates that a person in possession of a thing is deemed to own it. Halsbury's Laws of England (3rd ed. Vol. 15 p. 285, para 516) as well categorises possession as proof of ownership. I mentioned Amankwa v Nsia [1994 - 1995] 2 GBR 758 supra. To that 1 add Summey v Yohuno  1 GLR 431; Ababio v Kanga  GLR 190; Majolagbe v Larbi  GLR 190; Nyiklokpo v Agbedetor [1987-88] 1 GLR 165; Agbo Sai & Ors v Kpobi Tetteh Tsuru III  SCGLR 762; Odonkor v Amatei [1992-93] GBR 59; Ricketts v Addo  2 GLR 158 and Perry v Clissold  AC 73. They all espouse the principle that possession raises a presumption of ownership.
107. That was why it was important for me to determine as to which of the parties has been in possession of the land since the alleged acquisitions. It must be made clear that, mere possession without an animus possidendi; that is, an intention to possess to the exclusion of others, will not suffice. In addition to physical possession, there must be an animus possidendi; for that will create the adverse situation that will warn other contenders to the land to be on their guard and take steps to protect their interests.
108. In that respect, authorities like Payinlli v Anquandah  12 WACA 284; Yartey & Oko v Construction & Furniture West Africa Ltd & ors  1 GLR 86; Kuma v Kuma 5 WACA and Birimpong v Barwuah  2 GLR 20; all of which supports the above proposition, are relevant. Notice can also be taken of the erudite dissenting opinion of Amua-Sekyi JSC on the same issue in Nartey v Mechanical Lloyd Assembly Plant Ltd [1987 – 1988] 2 GLR 314.
109. Both sides claim to have been in possession of the subject land. The case of the plaintiff is that when the White Cross Church collapsed, it occupied the land until the Agbi family formally granted it to them in 2004. To the plaintiff, they have been in possession from at least 2004 until the 1st defendant broke off in 2012 and annexed the uncompleted chapel, offices and school that situates on the land.
110. It was common cause that the 1st defendant was a member of the plaintiff church from 2001 or thereabout. He was ordained as reverend minister in November, 2003 and took over the church. The plaintiff's witness, PW1, admitted that at the time, there was no church building. The plaintiff's members worshipped in a shed erected with palm fronts on the subject land.
111. The 1st defendant resigned per a letter admitted as exhibit “C”. The letter is dated 1st November, 2012. However, the 1s' defendant directed that his resignation was to take effect from 28 October 2012. He thereby made his resignation take retrospective effect.
112. I do not think he had the right to make that choice. Employment policy and the constitution frown upon that retroactive approach. The proper approach, is to give the employer a period's notice. In the instant, there is no indication that the plaintiff got the letter on the day it was written (1/11/12). I however will presume that they did received it. I hold that the resignation of the 1st defendant from the plaintiff church was effective 1 November, 2012 and not 28 October 2012 as he retroactively and autocratically stated.
113. Having settled on the day of his resignation, it is now safe for me to conclude that the 1st defendant was pastor of the plaintiff from 2003 to 1 November, 2012. The 2nd defendant was created by the 1st defendant' after he resigned from plaintiff church. The 2nd defendant accordingly could not have been in possession of the land until after 1 November, 2012.
114. Who then was in possession of the land from 2004 when both sides claim to have acquired it, until the 1st Defendant resigned?
115. The plaintiff's claim that it has been in possession of the land since the collapse of the White Cross Church was corroborated by the 1st defendant. The plaintiff claim to have worshipped in a shed made with palm fronts on the subject land. The 1st defendant in the further amended statement of defence dated 21 June 2016, stated in paragraph 11:.
"Ist defendant states that after he acquired this land previously occupied by the White Cross Church from the family, I made a shed under which we (us) members of the plaintiff church worshipped when we were prevented from worshipping at the Toh-Kpalime JHS workshop.”
116. The defendant's admission proves that the plaintiff church has been in possession of the subject land, previously occupied by the White Cross Church from around 2001 to the 1 November, 2012 when the 1s' defendant resigned. This, in addition to the admission of the 15 defendant that he collected donations as priest of the plaintiff to build a chapel in the name of the plaintiff on the land he claimed to have personally acquired, was his cul de sac.
117. The plaintiff's witness claimed that eight other branches of their church assisted the construction of the chapel through the proceeds of their harvests. When cornered, the 1st defendant admitted that the plaintiff built a chapel on the subject land with the donations and other contributions of its members.
Under cross-examination, the following transpired:
Q. By exhibit H which you authorized, there is a church building and same was constructed with donations from others.
A. I agree. These documents were prepared to invite people. With (the) negotiation with the plaintiff, whatever money I raised, a percentage was to be sent to the headquarters. After inviting people, they collected their portion and the accountant can testify to that especially concerning this special form that he has tendered.
118. Once again, the 1st defendant was not fully forthcoming with the truth.
There was no evidence that the contributions and levies specifically for the church building was sent to the head office or was shared with the head office. What were shared were the tithes and the 1st defendant meticulously recorded the percentages received by each party. If the donations for the chapel were shared with the head office, why did he not state it in his monthly reports?
119. Secondly, he entertained the erroneous view that once he had sent 50% of the tithes to the head office, all other donations were for his personal use, and therefore, if he used it to acquire property, the mother church had no interest in it. He could not have held a more utopian view. His position violates common church administrative practice. Case law has also settled the matter and I will revert to that later.
120. It is sufficient now to recall that 1st defendant admitted that the plaintiff built a chapel on the land and that same was built with the donations of the members of the plaintiff church. The evidence established that most of the plaintiff's members at Toh Kpalime used to fellowship with the defunct White Cross Church. The plaintiff claimed to have acquired the land previously used by White Cross Church when that church collapsed in the town.
121. The evidence of DW2 lend credence to the plaintiff's claims. DW2 explained that, his brother who brought the White Cross Church left because members of Bethel Deliverance Church (plaintiff) said they will not fellowship with White Cross Church again. It was commonsensical that after the White Cross Church left or collapsed, the plaintiff church will seek to covert their land for worship as the plaintiff in fact claims. What else was expected from plaintiff church which was worshipping in a classroom and had been asked to stop the worship there?
122. On the issue of possession, I concluded that the plaintiff exercised acts of possession by worshipping on the land, by erecting the shed and constructing the chapel thereon. - The plaintiff exercised an animus possidendi.
123. The 1st defendant led all the efforts of the plaintiff stated above. He never made known that he had also acquired the land until he left the church to establish his own. The church building, the office buildings and the school built whiles he was pastor of the plaintiff church, are for the plaintiff.
c. Identity of the Land
124. The last item I will consider is identity of the subject land. Anan Donkor which I cited supra held to the effect that an action for declara of title to land or perpetual injunction must fail if the plaintiff or defendant counter-claimant failed to establish the identity of his land at the close of case. Other cases speaking to the same issue include Agyei Osae v Adje [2007 - 2008] SCGLR 499; Nyiklorkpo v Agbedator [1987 - 1988] 1 165; Gawu v Ponoku (1960) GLR 101; and Fofie v Owusu [1993 - GBR 877;
124. This is a heading on which I must spend little time. The parties were idem as to the identity of the subject land, and the fact that it is the s land both claimed to have acquired for the purposes of their respe church projects.
The land was the one formally occupied by the White Cross Church plaintiff's witness claimed that their site plan on the land is with defendant and he has refused to release it to them. This claim was not denied by the 1st defendant. It could therefore i been possible for the plaintiff to tender the site plan. In any case, a need not tender a site plan before he can succeed in an action for de of title.
125. In Nmati v Adtsia & Ors.  GLR 272, Ollenu J, (as he then
"The submission that an action for trespass cannot succe identification of the land alleged to have been trespassi correct statement of the law; But a plan of the land alleged to have been trespassed upon is not in dispensable; it is most desirable, but it is not a sine qua non. A plaintiff claiming trespass is entitled to succeed even without a plan, if the oral evidence tendered by him leaves a clear picture of the identity of the land which is in dispute between him and the defendant."
126. The above dictum can safely be applied to a claim for title to land. Luckily for the plaintiff, the 1st defendant who is in possession of their site plan used it to prepare a new site plan with his name and particulars, and had same annexed to the indenture, exhibit “2”. The disputed land, which will form the subject of this judgment, is as better described in the site plan annexed to exhibit 2.
I. MOVABLE PROPERTIES
127. The plaintiff listed a number of movable items which it claimed to have purchased from its own resources. The 1st defendant denied this and claimed to have purchased those items with his own resources.
128. In Assemblies of God Church, Ghana v Rev. Ransford Obeng & 4 ors (Civil Appeal No 34/7/2009, dated 3 February, 2010), the Supreme Court affirmed the concurrent judgments of the High Court and the Court of Appeal, which held that all properties acquired with the resources of the church by breakaway members remains the property of the original church. So long as the subject land and any of the immovable properties were acquired with the resources of the plaintiff church, the defendants have no legal claim to same.
129. This however does not take away the right of members of a church to acquire their own properties with their own resources. The plaintiff did not tender any receipt or document to indicate that it acquired any of the movable properties. The defendants however tendered receipts as proof of ownership of those properties.
130. I will consider them in turn:
Exhibit 3 - Dated 28-9-10. Cash of ¢480.00 was paid for a set of premium drum. The money was paid by one Seth Dzitse. The set of drum should be the property of the plaintiff because; It was purchased in 2010 when 1st defendant was pastor of the plaintiff church. There is no indication that the 19 defendant purchased the items. One Mr. Seth Dzitse paid for it. The 1st defendant cannot argue that the items bought by Seth Dzitse; presumably a member of the church while he was a pastor of the plaintiff, should be his personal property. The set of drums is declared to be the plaintiff's property.
Exhibit 3A - Dated 2/11/12. The items were purchased by the 1st defendant after he had resigned from the plaintiff church. The receipt indicates his name as purchaser. The said items, being canopies with the listed accessories are declared the property of the 1st defendant.
Exhibit 3B - Dated 2/11/12. The name on the receipt is that of the 1st Defendant. The items were also purchased a day after 1st defendant resigned from the plaintiff church. I declare the items listed on exhibit 3B - double booth VIP canopies to be the property of the 1st defendant.
Exhibit 3C - Dated 6/4/12. The items comprised in the receipt, being a VIP double booth canopy was acquired months after the 1st defendant left the plaintiff church. The plaintiff cannot lay claim to those items. They are declared to be the property of 1s' defendant.
Exhibit 3D - Dated 5/4/12. The items covered by the receipt, being canopy with its accessories were also purchased after the 1st defendant had left the plaintiff church. The plaintiff's claim to that property also fails. The items belong to the 1st defendant.
J. CONCLUSION AND DECISIONS
Based on the totality of the evidence, the court concludes and decides as follows:
131. That the plaintiff proved its acquisition, possession and identity of the subject land which it proved to be the subject of the grant to it by the Agbi family in the transaction covered by exhibit “D”. The plaintiff's title to the subject land; better identified in the site plan attached to exhibit 2, is hereby declared.
132. Since the 1st defendant registered the land to which he did not have any legal interest, the registration was illegal and is hereby quashed. I order the Lands Commission (Land Title Registry) Volta Region, Ho, to delete the 1st defendants registration covered by exhibit 2, with immediate effect.
133. The defendants are granted up to 30 May, 2018, to vacate the subject land, comprising the chapel building, the church office buildings and the Takami Community School.
134. The plaintiff is granted leave to recover the said property after 30 May, 2018. The defendants, their assigns and all claiming through them are perpetually restrained from any adverse possession or dealing with the subject land effective 30 May 2018.
135. The plaintiff failed to establish its title to the immovable properties save the set of premium drums covered by exhibit 3. The plaintiff's title to the drums is hereby declared. The plaintiff claim to the other movable properties remained unproved and is hereby dismissed.
136. Judgment is entered for the plaintiff for the subject land with all the structures and properties thereon. Defendants counterclaim for the subject land is dismissed but their claim for the movable properties listed in exhibit 3A, 3B, 3C and 3D are upheld.
Party and counsel cost of GH$5,000.00 is allowed against defendants.