Annan Vrs The Trustees Of Jehovah Witness Church & 2 Others [2023] GHACC 329 (12 July 2023)

THE CIRCUIT COURT HELD AT TARKWA WESTERN REGION ON WEDNESDAY THE 12TH DAY OF JULY, 2023 BEFORE HER HONOUR HATHIA AMA MANU, ESQ. CIRCUIT COURT JUDGE. SUIT NO. C1/13/2018 ::: PLAINTIFF FREDERICK SAM ANNAN H/NO. LVB 15/90 TARKWA VRS: THE TRUSTEES OF JEHOVAH WITNESS CHURCH JOHN DUFUA ::: DEFENDANTS 1. 2. 3. MR AFFUL (ALL OF TARKWA) JUDGMENT Plaintiff – Present. Defendants – 1st Defendant represented by 2nd and 3rd Defendants. 2nd and 3rd Defendants present. LEGAL REPRESENTATION: George Essiful-Ansah for the Plaintiff absent. Bright Baiden for Defendants present. INTRODUCTION: By a Writ of Summons and a Statement, the Plaintiff on the 10th December, 2018 invoked the jurisdiction of this honourable court praying for the following reliefs against the Defendants, that is; a. Declaration of title to all that parcel of land measuring 0.30 acres (Plot No.13) and situate at Kangakrom, Tarkwa. b. Recovery of Possession. c. d. Damages for trespass. Perpetual Injunction restraining the Defendants or their agents, workmen, assigns privies from having anything to do with disputed land described in paragraph (a) supra. e. Costs. The Defendants entered appearance to the Plaintiff’s Writ of Summons and Statement of Claim on the 17th day of December, 2018, entered through their Solicitor. The Defendants proceeded to file their Statement of Defence to the Plaintiff’s action on the 22nd day of January, 2019. At the Directions stage in this cause on the 10th day of May, 2019 the following issues were set down for trial, thus: (i) Whether or not the Plaintiff acquired two (2) plots of land, Plots numbers 13 and 14 from Nana Kwabena Angu II, Apintohene. (ii) Whether or not the Plaintiff has been in uninterrupted active possession and control of the disputed land from 1991. (iii) Whether or not the Apintohene promised to replace the Defendants land. (iv) Whether or not the defence of the Defendants constitute any defence. (v) Whether or not the Apintohene promised to replace the land of the Plaintiff. (vi) Whether or not under the Trustees Incorporation Act, 1962 (Act 106), the 2nd and 3rd Defendants are clothed with the capacity to be sued for the acts and omissions of the 1st Defendant in respect of the disputed land. (vii) Whether or not the 2nd and 3rd Defendants should be non-suited as they claim no personal interest in the disputed land. (viii) Any other issue or issues arising from the pleadings and evidence. SUMMARY OF PLAINTIFF’S CASE The case of the plaintiff is gleaned from the pleadings in which the Plaintiff claims that sometime in the year 1999 or thereabout, he acquired two parcels of land – thus plot numbers 13 and 14 from the chief of Kangakrom, Tarkwa evidenced by the site plan given to that effect. According to the Plaintiff, he registered Plot No. 14 and developed same and even a portion of the disputed land that was not waterlogged by building a house thereon which house the Plaintiff has occupied with his family to date. Since portions of the other plot was waterlogged and as a result, he expended resources to bring it up to a habitable state where he could develop same. The Plaintiff continues to allege that he even planted coconut trees on the boundaries of the land but all withered except one on the land to date. The Plaintiff also averred that, he gave the land to one Mr. Arthur upon request who cultivated sugar cane until 2012 when the said Mr. Arthur became old and could not continue with the farming any longer. Plaintiff further avers that sometime in 2014, the 3rd Defendant and another person came to his house to enquire about the owner of the now disputed land and he – Plaintiff informed them he is/was the owner. The Plaintiff continues to assert that after the Defendants’ visit, the Defendants erected a sign board with the inscription “This property belongs to the Jehovah Witness Church, keep off" of which the Plaintiff removed from the land. The Plaintiff contends that confrontation ensued and parties were asked to produce their land documents on the disputed land by the grantor. And at the palace it came to light that both parties have documents to the same land and that the grantor promised to replace the Defendants land. That after the meeting at the palace, the Defendants kept coming on the land with workmen, creating disturbances and continuous harassment of the Plaintiff, his agents and workmen. SUMMARY OF DEFENDANTS’ CASE. This is contained in the Statement of Defence filed on 22nd January, 2019. The Defendants admitted paragraph 2, 11, 12 and 17 of the Plaintiff's statement of claim but asserted that the Plaintiff acquired a single plot of land and built thereon and that the Defendants’ congregation through its agents, lawfully acquired Plot No.13 from Apintohene through the Stool surveyor Mr. Gershon Yao Doe in 2007. The Defendants further denied paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 13 and 16 of the Statement of Claim and averred that the Apintohene rather promised to replace the land of the Plaintiff because during the preparation of the documents on the land, Plot No. 13 was inadvertently added unknown to Nana that, the land had been granted already to the Defendant Congregation Five (5) years earlier. The Defendants contend that after the clarification by the Apintohene, the 1st Defendant Congregation continued to develop its Plot until the Plaintiff reported the 4th Defendant to the Police and he was arrested for criminal trespass. It is the case of the Defendants that the Police in the course of their investigations contacted the Apintohene and the Stool surveyor and concluded that the land was for the 1st Defendant Congregation. The defendants in the main denied the Plaintiff’s claim and asserted that the Plaintiff is not entitled to his reliefs. TESTIMONIES OF THE PARTIES AT THE TRIAL PLAINTIFF’S TESTIMONY The Plaintiff’s testimony comprised both documentary and oral testimonies. The Plaintiff tendered his Witness Statement and the attached exhibits, that is; A, B, B1, B2, B3, B4 and C filed on 13th August, 2020 and relied on same as his evidence-in-chief without objections. Exhibit A is a copy of the lease agreement with an attached site plan dated 13th August, 2020 which purportedly shows plot number 13 and 14 were both leased from the chief of Kangakrom to Plaintiff. The Plaintiff was cross-examined by Counsel for the Defendant. DEFENDANTS’ TESTIMONY The Defendants also testified through their Witness Statement with attached exhibits filed and were also cross-examined by Plaintiff’s Counsel. The defendants tendered into evidence Exhibit 1, an indenture executed between the grantor and 1st Defendant on the 1st day of March, 2007. There was also an attached plan signed by the director of surveys on 7th July, 2007. The Defendants also tendered in evidence Exhibit 2, police investigation report on trespass reported by Plaintiff. EVALUATION OF THE EVIDNCE LED IN THE TRIAL When the Plaintiff mounted the witness box, swore on oath and tendered his Witness Statement together with the attached exhibits A, B, B1, B2, B3, B4 and C, the Defendants and their Counsel, exercised their right of cross-examination. By a careful look at Exhibit A, it is clearly written that, “the lessor doth hereby unto and to the use of the lessee all that piece or parcel of land situate and lying at plot no. 14 block C sector 4 old Kangakrom residential area". At the schedule attached, I also observed that reference is made solely to plot no.14 and the boundaries described as plot 12 and 13. The attached site plan also refers to plot no. 14. Exhibits B, B1, B2 and B3 show men working on a land as well as pictures of a waterlogged area though Plaintiff claims it shows various stages of development, he has embarked on plot no. 13. I find that the pictures are of different angles of the said property and do not tell the story of any development. Exhibit B was taken on 1st October, 2017at 2:48 pm, Exhibit B1 was taken on 1st October, 2017 at 2:51 pm, Exhibit B2 was also taken on 1st October, 2017 at 2:50pm, Exhibit B3 was taken on 17th September, 2017at 6:34 pm and Exhibit B3 had another attachment which had men working on a land with date stamp of 13th March, 2019 at 9:20am. Studying these exhibits, I find that same at best serve as pictures of the land in disputes but not a sign of development enhanced by the plaintiff. The plaintiff in paragraph 6 of his witness statement claimed that he registered plot no. 13 later on at the Lands Commission and attached Exhibit C. A study of Exhibit C indicates GRA receipts and receipts from the Office of the Administrator of Stool Lands (OASL) made out to Vicentia Sam. Attached to the receipts is an indenture executed between Nana Kwabena Angu ll and Vicentia Sam. The said indenture is dated 1st June, 2015 and same has the picture of Vicentia Sam attached to same. The site plan attached to the indenture was duly signed by the Director of Surveys on 8th March, 2018. This means that at the time Plaintiff purportedly acquired the land in dispute thus in 2015 and allegedly paid for same, same had already been given to the defendants per their indenture dated 1st March, 2007 and site plan signed on 7th July, 2015. In other words, the date of the preparation of the Plaintiff’s indenture, site plan of plot number 13 is later in time than that of the defendants, contrary to the principle of due diligence expressed in Latin terms as Caveat Emptor – meaning let the buyer beware. The Plaintiff or the name Vincentia Sam having acquired the land without first carrying out due diligence will be fixed with notice of any encumbrance on the land. The Plaintiff was not a prudent and bona-fide purchaser without notice of any encumbrances on the land. To illustrate the point, it was held in the case of Basare v Sakyi and Another [1987-88] 1 GLR 313 – 324 at holding 2, thus: “(2) Generally speaking a purchaser was bound to inquire into the title of his vendor and would be affected with notice of what appeared in the title if he did not inquire…” The Supreme Court in the case of Western Hardwood Enterprise Ltd and Another v West African Enterprises Ltd [1997-98] 1 GLR 645 at holding 4 delivered itself on the point in the following terms: “(4) Where a party had actual notice that the property was in some way encumbered, he would be held to have constructive notice of all that he would have discovered. Since on the evidence WHEL had admitted that prior to purchasing the property they were aware that there were buildings on the land and some persons other than agents of the Apowa stool were in occupation and yet, they failed to investigate fully the title of the stool, they would be deemed in equity to have had notice of all that a reasonably prudent purchaser would have discovered. Accordingly, they were not innocent purchasers for value without notice.” In the case of Rosina Aryee v. Shell Ghana Ltd & Fraga Oil, unreported judgment of the Supreme Court, in Civil Appeal No. J4/3/2015 of 22 October 2015, Benin, JSC, dealing with issues of possession delivered as follows: - ‘’ Notice does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agent as the case may be. That is why an intending purchaser must make reasonable enquiries in respect of the property he seeks to acquire. This involves legal searches at the land registry, but more critically it involves a physical inspection of the land to ensure it is free from any encumbrances.’’ The plaintiff then attached Exhibit D to evidence the only coconut tree existing on plot no. 13. The fact that one decides to plant or utilize vacant land does not imply same is a legal act of possession one needs to prove possession by more concrete act than …. On the totality of the evidence the court finds that the plaintiff has not adduce evidence to support his claims concerning plot no. 13. The plaintiff boldly presented Exhibit C but on a study of same does not tally with this evidence adduced. The court is left pondering on why the Plaintiff who claims to have purchased two plots from the grantor will present two indentures, one executed on 21st November, 2006 between Plaintiff and Nana Kwabena Angu II and a second indenture bearing the name Vicentia Sam and executed between her and his grantor Nana Kwabena Angu II on 1st June, 2015. These exhibits contradict the evidence plaintiff presented. How could the plaintiff have bought two plots, plots 14 and 13 and then been presented with two indentures one of which does not even bear his name? I find that on the balance of probabilities the plaintiff has not established that plot no. 13 was acquired by him along with plot no. 14. … planting on vacant lands………… The common grantor of the parties at the centre of this legal tussle gave a Witness Statement and testified on behalf of the Defendants. According to the parties’ grantor when he found out the oversight which was his surveyor allocating plot no. 13 to 1st defendant in 2007 and a subsequent allocation of plot no. 13 to plaintiff, the plaintiff was told he will be allocated a new land but he ignored his grantor's advice on the matter and chose to deal with the 1st Defendant as he pleases. As a grantor, all through his evidence and cross-examination, he was clear on who was entitled to which land. I find the grantor's evidence as reliable and consistent with the happenings in this case that the land in dispute was mistakenly allocated to plaintiff in 2012 even though same had already been given to the 1st defendant in 2007. From the evidence presented by the plaintiff as at 1999 he had bought plot no. 14 and 13 but the evidence on record prove his evidence of perdos give covered only plot 14, the court would understand other legal registration at a subsequent date but evidence of an indenture at a far later date than the first one does not make his claims probably on balance of probabilities. This finding defeats the plaintiff's claim of having bought both lands at the first instances years ago. The defendant tendered into evidence Exhibit 1 which was an indenture between the grantor and 1st defendant on 1st March, 2007. There was also an attached plan signed by the director of surveys on 7th July, 2007. It is also the law that where a stool occupant or family grants a parcel of land to a grantee, it divests itself of any interest that it ever had in the land to re-grant the same parcel of land to another person. The maxim is nemo dat quod non habet. The cases of Tetteh & Another v Hayford (substituted by) Larbi & Decker [2012] 1 SCGLR 417; and Seidu Mohammed v Saanbaye Kangberee [2012] 2 SCGLR 1182 espouse this position. In the case of Tetteh & Another v Hayford (substituted by) Larbi & Decker [2012] 1 SCGLR 417 at 418 holding (4) of the headnotes, the Supreme Court unanimously stated the law as: “On application of the nemo dat quod non habet maxim, the Asere Stool, having divested itself of its interest in the land in favour of the original defendant long ago in 1974, had nothing with regard to the divested land to convey again; and so any purported sale of the already divested land, subsequently made to the plaintiff, is null and void. Abdallah v Nunynie & Degbadzor, High Court, Ho; Suit Nos L/S23/90, 24 October 1991, unreported; Wordie V Awudu Bukari [1976] 371 at 381, CA; Aboa v Keelson, Supreme Court, Suit No 81/92; Yima v Keelson, Supreme Court, Suit No 20/92, 16 March 2011 (Consolidated) unreported; and Sasu v Amua-Sekyi [1987-88] 2 GLR 222, CA cited.” Also, the case of Seidu Mohammed v Saanbaye Kangberee [2012] 2 SCGLR 1182, the Supreme Court at held that: “The principle of nemo dat quod non habet would operate ruthlessly and by it, an owner of land could only convey title owned by him at the material time of the conveyance. Since, on the evidence in the instant case, the original owner of the disputed land had divested her title to one Anna Benieh Yanney, had divested herself of title to the disputed land to one Emmanuel Nkrumah, the plaintiff’s vendor, on 12 December 1986, there was definitely no title left in her to convey to any other person at the time the conveyance to the defendant’s vendors was effected. Consequently, the conveyance to the defendant’s vendors and subsequently to the defendant were null and void and of no effect. The Court of Appeal had therefore rightly set aside the decision of the trial High Court in favour of the defendant and entered judgment for the plaintiff. The trial judge had also erred in ignoring the credible and convincing evidence of the plaintiff based on his documentary materials of title to the disputed land and to have rather preferred the porous, weak, untested, inconsistent and contradictory evidence of the discredited court-approved surveyor. Bruce v Quaynor [1959] GLR 292 at 294; Aboa v Keelson, Supreme Court, Suit No 81/92; Yima v Keelson, Supreme Court, Suit No 20/92, 16 March 2011 (Consolidated) unreported; and Sasu v Amua-Sekyi [1987-88] 2 GLR 221 (per Wuaku JA as he then was) at 241, CA cited.” Further, the law was also summed up in the case of Amankwah v Kyere [1963] 1 GLR 409-416 in the following terms at holding (2) of the headnotes: “A stool is a corporation sole and provided the occupant has been elected and installed in accordance with law and custom, a person contracting in good faith with the stool is entitled to his remedies should the contract later be abrogated. Even where the appointment of the stool occupant is later invalidated, his contracts are not thereby invalidated. Ingall v. Moran [1944] 1 All E. R. 97 at p. 101, C. A. and Fred Long & Sons Ltd. v. Burgess [1949] 2 All E. R. 484, C. A. considered.” At this juncture, I wish to associate myself with the law as observed by His Lordship Justice Sir Dennis Adjei in his book dabbed Land Law, Practice and Conveyancing in Ghana, 2015 (1st Edition) at page 19 paragraph 2 where he states: “A grant of stool lands to a person by a chief with the consent and concurrence of the principal members of his stool would remain valid even if the chief’s enstoolment is subsequently nullified. Once the grant was made when a person was a chief and his nomination had not been nullified, whatever functions or acts performed by him in his capacity as a chief would remain valid and binding except where it was fraudulently or illegally made. A successor to a stool cannot disassociate himself from any grant of land made by his predecessor before his predecessor’s nomination, election and enstoolment elapsed either by destoolment, abdication or death.” The second issue for determination as set down for trial was whether the plaintiff has been in uninterrupted active possession and control of the disputed land from 1999. Short of an indenture which covers plot no. 14, the plaintiff did not adduce any cogent evidence to prove ownership in fact the document he exhibited showed plot no. 13 does not belong to him. In the case of Sarkodie V. FKA Co. Ltd [2009] SCGLR 65, the court established that an effective customary conveyance of land would divest the grantor of any further right, title or interest in the land, the same land could therefore not be conveyed or granted to a subsequent grantee. BURDEN AND STANDARD OF PROOF The rules of evidence on the burden and standard of proof are as contained in sections10, 11, 12, 14 and 17 of the Evidence Act, 1975 (Act 323) and expounded by case law in our Courts. I set out the relevant statutory provisions in extenso for their full effects. They are as follow: Section 10(1): “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt.” Section 11 (1) “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances 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.” Section 12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence. Section 14: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence he is asserting. Section 17: (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. It is a salutary rule of evidence that the burden of proof is on he who alleges the existence or non-existence of a fact. In other words, he who alleges must proof his allegation. In the instant case, the Plaintiff alleged that a loan agreement – Exhibit “A” with the Defendant, on the understanding that he would be repaid his capital with accrued interest. Contrary to that said understanding, the Defendant failed or refused to repay the said loan plus accrued interest despite persistent demands. According to the Plaintiff, the Defendant pleaded for extension time within which to repay the loan and the Plaintiff indulged him, but the Defendant still failed to pay the Plaintiff without any justifiable reasons. In proof of his case, the Plaintiff mounted the witness box, tendered his Witness Statement and relied on same with its accompanied exhibits. The Defendant in his Statement of Defense, generally denied the Plaintiff’s claim but failed to lead cogent, convincing and credible evidence to displace the evidence introduced by the Plaintiff. It is the respectful view of this Court that by the combine effect of sections 10, 11,12, 14 and 17 of the Evidence Act, 1975 (Act 323) and the authorities cited supra, the irresistible and inescapable conclusion to be drawn is that, the Plaintiff failed to discharge his evidential burden of proof of his claims and his action must fail. It has been held that proof in law is the establishment of the establishment of a fact or its non-existence by proper legal means. The authorities have it that whenever an allegation is made and it is denied by the opponent and it is capable of proof, the one asserting must lead sufficient evidence to prove same. A few of authorities on the point will suffice. The Supreme Court held in the case of Ackah v Pergah Transport Limited & Others [2010] SCGLR 728 thus: “…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 the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” Also, in the case of Zabrama v Segbedzi [1991] 2 GLR 221, the Court of Appeal delivered itself on proof in the following terms: “a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” The Court in the oft-cited case of Majolagbe v Larbi [1959] GLR 190 cited the case of Khoury and Another v Richter (1958) and stated the law on proof as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g., by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating the averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” In the case of Bisi v Tabiri alias Asare [1987-88] 1 GLR 360 @ 361, it was held as follows: “The standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to a call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence become the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice stated was more probable than the choice rejected…” Also, in the case of Gifty Avadzinu v Theresa Njoona [2010] 26 MLRG 105 @ 108, it was held as follows: “The law relating to the standard of proof in all civil actions without exception was stated to be proof by preponderance of probabilities, having regard to section 11(4) and 12 of the Evidence Decree 1975 NRCD 323. This means that the successful party must show that his claim is more probable than that of the other.” As Exhibits C shows plot no. 13 was allocated to one Vicentia Sam in 2015 there is no way the Plaintiff could have been exercising uninterrupted active possession on a land which his record does not show belongs to him. It was incumbent on the Plaintiff to lead evidence to convince the Court that he really acquired plot numbers 13 and 14. This, burden, the Plaintiff woefully failed to discharge. On the totality of the evidence led, the Plaintiff failed to discharge the evidential burden cast on him for a declaration of title to be made in his favour. On issues (vi) and (vii), the court is to determine if D2 and D3 are to be held liable for acts and omissions of the 1st defendant in respect of the disputed land. The 1st defendant as a company registered with it trustees, and is entitled to sue or be sued on its own. From the totality of the pleadings, the Plaintiff did not make any claim against the 2nd and 3rd Defendants except to say that the 2nd and 3rd Defendants approached him. The 2nd and 3rd Defendants have been improperly and unnecessarily joined to the suit. The 1st Defendant is a body corporate and as such a juristic or artificial legal person that can sue and be sued. I find that there is no legal basis for saddling the 2nd and 3rd Defendants with issues on land acquired by 1st Defendant especially as Plaintiff was unable to establish any claims against them personally. It is the view and holding of this Court, that this is a proper case in which it is clearly and beyond doubt that the case of the Plaintiff against the 2nd and 3rd Defendants is unarguably unsustainable, frivolous vexatious, scandalous and discloses no reasonable cause of action. I hereby non-suit them. A. After determining the issues in this trial, I find that the Plaintiff has not established any legal title to plot no. 13. It is unfortunate that the Regional Lands Commission does not keep proper data on lands and has ended up registering plot 13 to one Vicentia Sam when same land had been registered by the 1st Defendant under their auspices. On the relief of declaration of title, the plaintiff per his document has no legal title and the said Vicentia Sam who has registered plot 13 is unknown to the grantor. I hereby hold that plaintiff is not entitled to the declaration sought. The 1st Defendant is entitled to Plot No. 13 as stipulated by their grantor and established by the evidence. The Regional Lands Commission is hereby ordered to expunge from its records any registration affecting Plot no. 13 entered in favour of the Plaintiff and the said Vicentia Sam forthwith. (SGD.) H/H. HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE) 9 19