The Registered Trustees Of Evangelical Vrs Sustainable End Of Hunger Foundation [2023] GHAHC 196 (5 July 2023)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION AD – 2023 CORAM: CHARITY ASEM (MRS) J SUIT NO. E2/03/2016 DATE: 5/07/2023 THE REGISTERED TRUSTEES OF EVANGELICAL PRESBYTERIAN CHURCH, GHANA PLAINTIFF HEADQUARTERS, HO-KPODZI SUING PER ITS DISTRICT PASTOR, PEKI-BLENGO VRS. SUSTAINABLE END OF HUNGER FOUNDATION PER ITS CHAIRMAN, STEPHEN N. OCLOO DEFENDANT MADINA - ACCRA JUDGMENT On the 6th August 2015, the plaintiff commenced this action against the defendant seeking the following reliefs; i. General damages for breach of covenant stipulation contained in the lease agreement dated 1st January 1998. ii. An order that the plaintiff re-enters the demised property. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION iii. An order for the payment of GH¢1,800.00 being the cedi equivalent of $150.00 per year of rent arrears from 2010 to date. iv. Further or other reliefs as the Honourable Court may deem fit. Upon service of the writ on the defendant, an appearance was lodged on its behalf on the 16/12/2015 and, followed up by a defence which contained a counter-claim dated the 27/10/2016. THE PLAINTIFF’S CASE The plaintiff is a religious body registered under the Religious Body Act, 1989 PNDC Law 221, known as Evangelical Presbyterian Church Ghana, with its branches throughout the Republic of Ghana. The present dispute is in respect of a property belonging to its Peki Blengo branch located in the South Dayi District. In its accompanying statement of claim, the plaintiff averred that, it has a large track of land at Peki-Blengo on which it established a Parish thereon since 1847; which is within the church’s Western presbytery of the plaintiff church. Plaintiff described the defendant as a Non-Governmental Organisation having its registered office at Madina – Accra. That plaintiff acting through its District Pastor, Peki Blengo branch sometime in January 1998, the church granted a lease of its property at the Peki-Blengo made up of; 1. A six single storey room made up of Home Science block. 2. Headmaster’s Bungalow. 3. Dining Hall 4. Kitchen and EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION 5. Two Girls’ Dormitories; to the defendant for a term of 25 years to establish a Vocational Training Centre known as African Women Entrepreneurial (AWETC). That the purpose was for training of local women and women from other places. Plaintiff avers that, the lease agreement between the parties was crystal clear on the purpose for which the facility was let to the defendant. In paragraphs 6, 7 and 8 of the statement of claim, plaintiff reproduce the salient points from the agreement, that the facility was to be used as a vocational training Centre for women. The lessee covenanted that if any other covenant contained in the agreement shall not be observed, it shall be lawful for the Lessor to re-enter upon the demised premises or any part thereof in the name of the whole and there upon this demised shall absolutely determine. Plaintiff continued that the purposes for which the property was leased have not been fulfilled. That instead of the intended Vocational Training Centre, the facility is now being run as a hotel. Plaintiff contend that the defendant’s vision has long ceased to exist in so far as training of women in vocational skills is concerned. Plaintiff aver that, for the above reasons the defendant has breached the terms of the agreement with regard to the purpose for which the property was leased to the defendant organisation. According to the plaintiff, it has by several letters made its intention known to the defendant to take over or re-enter the property but to no avail. The plaintiff has in consequence suffered and continues to suffer damages. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION PARTICULARS OF DAMAGES ARE; a) Running the facility which is within the vicinity of the church and the basic school of the E. P. Church is not the intended purpose for which the building was constructed. b) Running the facility as a hotel near the District Pastor’s residence and the school is contrary to the moral and spiritual development of the plaintiff church. The plaintiff called two witnesses to testify on its behalf. The first to speak is Rev. Ruby Nusienyo Awo Amable, the present resident pastor at the Peki-Blengo parish. She submitted a witness statement upon which she relied. Obviously, the issues she testified to happened long before she assumed duty at the Parish. Her witness statement, is a verbatim repetition of the plaintiff’s statement of claim except to tender Exhibit ‘A’ an undated lease agreement between the parties, and Exhibit ‘B, B1 to B4, being series of correspondence between the plaintiff and the defendant regarding the takeover banters. She concluded that, running of the facility as a hotel near the District Pastor’s residence and the school is contrary to the moral and spiritual development of the plaintiff church. She was extensively crossed examined which I will visit in the cause of this discussions. PW1 is one Victor Dzube. He testified that he is a retired Assistant Headmaster of Peki Technical Secondary Training Centre. It is his evidence contained in his witness statement filed on the 6/12/2022 that, on 27/03/2015, he went to the defendant facility and booked a room for two nights for one Mr. Yadogla. According to him, the said man was a newly posted Headmaster to his school. He tendered exhibit ‘C’ to show he paid the sum of GH¢40.00 for the two nights. According to him he had to book the place because, the new Headmaster’s accommodation was not ready when he arrived in Peki. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION THE DEFENDANT’S CASE The case of the defendant contained in its defence and counter-claim filed on the 10/02/2016, first of all attacked the capacity of the plaintiff and wonders if it does not have a Board of Trustees. Going through the record of proceedings inherited, the plaintiff did not take steps to amend the title of the suit in conformity with the Religious Bodies Act, (Registration) Law, 1989 PNDC Law 221. Though a legitimate legal point raised by Counsel for defendant, he also left it hanging and the case proceeded to trial. The amendment was not effected until close of evidence when a date was fixed for judgment. With leave of the court granted on the 23/05/2023 counsel for plaintiff filed amended writ to resolve the issue. In a similar situation in the case of Assemblies of God Vs Obeng (2010) SCGLR where the issue of capacity in similar circumstances to sue was raised on appeal, the Court of Appeal referred to Sections 3 and 7 (3) of PNDCL 221 which provides as follows; Section (3) “Every religious body in Ghana shall be registered under this Law, and no religious body in existence in Ghana shall after the three months from its commencement of this Law operate such a body unless it is registered under this Law”. Section 7(3) “All assets and properties of the registered religious body shall vest in the Trustees of its governing body who shall hold the same in trust for and on behalf of the members.” And by virtue of Act 106 of Trustees Incorporation Act, 1972 Act 106 Section 4 thereof it was the Trustees of the Religious body registered under the statute that were vested with power to sue and be sued in the corporate name of the said trustees. However, Section 9(2) of PNDC Law 221 vested the power of registration of a religious body to sue and be EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION sued in the corporate name of the body. The Court of Appeal allowed an amendment of the title against which appeal was lunched to the apex court. The Supreme Court stated that by ordinary rules of interpretation the combine effect of Section 3 and 21 of PNDC Law 221 is that, they repealed the relevant provisions of Act 106 on registration. The court took the view that since the courts exist to do substantial justice, it will be manifestly unjust to non-suit the plaintiffs because they added an Executive Presbytery to their names on the writ of summons. The apex court said, courts must strive to prevent and avoid ambush litigation by resorting and looking more at the substance than the form. The Supreme Court concluded that once the plaintiff church has been registered as a corporate entity under the religious bodies (registration) Law 1989 PNDC Law 221 the plaintiffs cannot be denied the capacity which they already have. The Supreme Court endorsed the Court of Appeal’s decision to amend the title and capacity of the plaintiff in order to do substantial justice, avoid mere and fanciful technicalities and bring out the real issues in controversy for resolution. With the above knowledge this court could have proceeded to maintain the plaintiff’s case and capacity of the plaintiff to deal with the substance and merit of the case, even if the amendment done belatedly was not brought. Please see the case of Hanna Assi (No. 2) v. GIHOC Refrigeration & Household Products Ltd (No. 2) (2007-2008) SCGLR, Robertson v Nii Ankrah III (1973) 1 GLR 445 C. A Gbogbolulu. I proceed therefore to state briefly the case of the defendant. Defendant’s denied with all force the claims of the plaintiff. It is the case of the defendant that, an oral lease was granted to its founder the late Mrs Esther Ocloo sometime in January 1998. They contend EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION that, the parties operated for about five (5) years before a written lease was prepared by the plaintiff in or about 2003 for execution. Defendant states that the Canter was an Entrepreneurial Training Centre and not Vocational Training Centre as alleged by the plaintiff. That the centre was primarily to train women but later admitted men. Defendant have it on record that the late Dr Mrs Esther Ocloo (of blessed memory) was the founder of the defendant venture. She was an old pupil of the plaintiff school. That at the time she took over the facility, the property was in very deplorable state and in need of complete replacement to put the facility to meaningful use. For the above reason she committed funds to renovate the facility to a befitting standard for use until it was closed down by the plaintiff in 2014. It is their case that the facility was renovated by funds raised solely by the late founder and was used as an entrepreneurial training centre. That plaintiff though brought a written agreement to be executed, took it away for registration purposes and had since not seen a copy again till this litigation. (Paragraph 11). That the facility was assisted with funds from the founder’s friends outside Ghana, therefore the programme was offered free of charge. Defendant continue that, after the death of the founder the source of funding for the foundation dried up and the defendant’s operations suffered a severe setback. This is due to the fact that, beneficiaries were not willing to pay fees for the training being given them. Since the defendant had a mandate to offer hospitality facilities, it opened its doors in that regard to carefully selected outsiders. Defendant offered the place for selected EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION workshops, seminars, weddings and funeral receptions, as a means of recouping some of its huge investments. According to defendant, the plaintiff availed itself of the defendant’s said services in that respect on a couple of occasions. That by so doing the plaintiff is estopped from complaining about the use of the place for occasional hospitality purposes. Contending further that, the plaintiff never complained of the use of the place or alleged that it was being run as a hotel. That plaintiff started threatening to take over the facility for no reason in its first letter in February 2009. According to defendant the rent for the year 2010 was paid through one Mr Robert Atta. But the church rejected the rent and in an accompanying letter through Mr Robert Atta the rent was sent back to defendant with the reason that they are taking over the facility. That in a similar letter dated 6/02/2014 over the issue of taking over bid, the subject or allegation of “Hotel” was not one of the reasons stated. Defendant states that, after receiving series of threatening letters from plaintiff to take over the facility whilst its lease was subsisting, it availed itself with meetings held between the plaintiff and defendant for a peaceful settlement. That it was agreed at one of such meetings that to resolving the dispute, of the re-entry, defendant was instructed to carry out a valuation of the property in order that plaintiff shall compensate defendant. According to defendant, the plaintiff reduced the understanding into writing as appears in plaintiff’s letter dated the 6/02/2014. This was to enable plaintiff pay compensation to defendant for huge investment made in the property and also for the remaining unexpired years of the lease. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION Defendant states that, in view of that, it engaged the services of a valuer who caused a valuation report to be prepared and the report forwarded to plaintiff. That at this point, the only issue outstanding between the parties was to discuss how much plaintiff would pay defendant to end the misunderstanding. Defendant says after presenting the report to plaintiff, they expected a meeting to agree on the sum to be paid. Instead plaintiff through its officials continued to write, threatening defendant with eviction. According to defendant for no reason and without notice, the plaintiff through its agents physically forced its way onto the property, cut down trees, blocked the entrances, removed the gates and sealed same with block work, put padlocks on other gates and above all wrote boldly on the walls of the facility, “CLOSED DOWN UNTIL FURTHER NOTICE” and then proceeded to issue the instant writ against the defendant. These acts of harassment of defendant’s workers from gaining access to the facility began long before plaintiff instituted the present action. That the plaintiff’s conduct has succeeded in taking by force from the defendant the property. That after taking over the property by force the plaintiffs are using the premises for the same reasons they complained of. Defendant’s claim that by plaintiff’s unlawful activities, plaintiff has seriously interfered with the defendant’s operations and caused it huge financial loss and subjected its workers to harassment and trauma and must be held liable. Defendant counter-claimed as follows; (a) Compensation for the huge financial investment made by the defendant to rehabilitate the Centre based on the valuation report dated April 2014 with any necessary adjustments to take care of intervening depreciation. (b) General Damages for trespass. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION The defendant testified through its lawful Attorney Christian Biassey-Bogart and Mr. Frank Pena as PW1. Defendant relied on Exhibit ‘1’ the Power of Attorney, Exhibit ‘2, 2A – 2D series being photographs showing part of the buildings of the facility. Exhibit 2E boldly written on the outside walls “CLOSE DOWN UNTIL FURTHER NOTICE!!!”, Exhibit 2F – 2Q being images of locked gates with padlocks and others replaced and sealed with block work. Exhibit 2P showing images of kitchen items thrown outside. Exhibit ‘3’ is the undated lease agreement between the parties. Exhibit 4A is a letter dated 30/9/2000, addressed to Dr. Esther Ocloo with the dealing “Discussions of proposed lease agreement between E P Church Blengo and Mrs Esther Ocloo covering AWET Centre.” Exhibit 4B – 4H series, being series of correspondence between the parties on the takeover, and Exhibit ‘5’ the valuation report of the premises under contention issued in April 2014. At close of pleadings the court conducted directions and the following issues were set down for determination of this dispute. The plaintiff’s issues; i. Whether or not the defendant has breached the terms, conditions and stipulations contained in the Lease Agreement. ii. Whether or not the defendant is using the demised property as a hotel. iii. Whether or not the plaintiff has suffered and continue to suffer damages as a result of the conduct of the defendant by turning the facility which is located within the vicinity of the plaintiff church, school and manage as a hotel. iv. Any other issue(s) arising out of the pleadings but not specifically pleaded. By way of additional issues filed by defendant on 21/2/2017, five issues were raised. a) Whether or not the plaintiff’s instant action is proper before the Honourable court. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION b) Whether or not the plaintiff had itself used the premises in question for the very purpose which it is accusing the defendant of and on account of which it has illegally terminated the lease agreement between the parties. c) Whether or not the plaintiff has effectively blocked the defendant from gaining access to the premises during the pending of the suit. d) Whether or not the only issue outstanding between the parties is that of the assessment of the compensation due to the defendant based on valuation report in respect of the premises to help determine the extent of the defendant’s investment thereon. e) Whether or not it was the defendant who failed to pay rent for the premises or the plaintiff refused to accept the rent from the defendant. A breach of covenant in relation to property and land means that, one party has broken the rules on what can and cannot be done on their land; or one or more parties have not acted in accordance with the covenant that is in place, which is to the detriment of the other party. It is of primary knowledge that, breaching a covenant can have serious consequence for the party who has broken the rules and legal action may be taken against them if they so wish to enforce the covenant. Straightaway, it is understood that when there is a breach of covenant the affected party must resort to legal action. Some preliminary observations by the court. The instant litigation started in this court nine and half years ago. The record shows that until the year 2020 the parties were said to be in some sought of settlement. The record of the court shows that Counsel for plaintiff on the 6/2/2020 sought the leave of the court to have this matter settled once more out of court which the court encouraged. (Section 72(2) of the Courts Act 1993) Act 459 states; “(2) Where a civil suit or proceedings EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION is pending, a court with jurisdiction in that suit or proceeding may promote reconciliation among the parties, and encourage and facilitate the amicable settlement of the suit.” Sadly, plaintiff went to sleep until the matter was struck out on the 17/05/2021 after almost a year when nothing was heard from the plaintiff. On the 17/10/2022 the matter was relisted upon an application brought by the plaintiff. The issues in this matter ordinarily, should be simple and easy to resolve especially considering the position the plaintiff, (the church) occupies in our social and spiritual life. However this matter was in this court for over nine (9) long years as a result of feet dragging which is much regrettable. I proceed now to discuss the many issues raised by the parties herein to ascertain where the gravel tilts. The plaintiff’s issues 1, 2, and 3 are intertwined, and I intend to discuss same simultaneously. In this discussion the court will refer to the disputed premises as facility. The focus of the court in this judgment will be primarily to discuss the law on takeover or re-enter by a property owner, where there is breach of covenant, the law applicable and available to him, judicial pronouncement as precedents etc. EVALUATION OF THE EVIDENCE AND THE LAW Combing through the many allegations the parties made against each other, one thing is clear, and that is, the decision between the parties for the use of the facility started with an oral agreement long before 1998. This piece of admission is contained in paragraph 5 of defendant’s statement of defence and paragraph 3 of plaintiff’s reply to defence, and counter claim filed on 11/01/2017. So, it is not denied that an oral agreement existed between the parties before it was somewhat reduced to the 2003 lease document tendered EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION by plaintiff as Exhibit ‘A’. The said lease presents interesting legal issues to be looked at latter. It should be noted that where there exist a written agreement governing a transaction between parties, their rights and obligations stands to be determined in accordance with the provisions of that written agreement and any other introduction thereto will be conjecturing. However the court may intervene where the complaining party can demonstrate a clear case of unconscionability. From the pleadings, the plaintiff made varied allegations against the defendant which according to it, is contained in the lease agreement and same constitute violation of the terms of covenant in the lease entered into in 1998. Plaintiff did not produce the said 1998 lease to the court instead the church tendered a lease made in 2003. Though signed by representatives of both parties, it is undated. Amongst the many allegations levelled, is default of rent payment, running the facility as a hotel, admitting men into the institution and offering them training skills when the agreement is strictly to train women, refusal to provide employment opportunity for the church folks, and neglect in training women in the church and the local community as a whole. According to the church, these conditions were contained in the 1998 agreement. Generally, the law has it that where a party refers to a document in support of his case but failed to produce it, the inference is that the said document does not exist. Therefore, having failed to produce the said 1998 lease document, the court holds the view that it is non-existent. The parties therefore stand to be judged on the 2003 lease. I will proceed to examine the lease and the notices served on the defendant; whether or not they meet the requirement of the law under the subjection of our discussion. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION It is noted that until 2010 when plaintiff rejected the years rent payable by the defendant; the defendant had promptly paid its yearly rent of $150.00 or its cedi equivalent to the plaintiff. One of its prompt payment was sent through the churches representative Mr Robert Attah which was however rejected. The money was returned by the same Mr Robert Attah with a covering letter. Why did the plaintiff church come to this court in the first place? As recounted above, the defendants said for no reason the plaintiff started writing threatening letters to take over the facility after the death of its founder. Defendant exhibited those letters which the court will have to critically look at. In a letter dated 24th February 2009 the E. P. Church Peki Blengo wrote to the defendant to notify it of its intention of taking over of AWETC. The letter reads as follows and for better understanding I reproduce its full content; which was addressed to the defendant. Dear Sir, The grace of God be with you. Meeting on the 17th of February 2009, the E. P. Church Peki Blenglo Church Session decided to notify you of taking over the (AWETC) African Women Entrepreneurial Training Centre for the E. P. Church Blengo Peki from 31st December 2009. For this reason, the E. P. Church Blongo Church Session decided to return your advance payment of $150 dollars for the year 2010 through Mr. Robert Atta. We wish you God’s guidance as you prepare to move out of the AWETC premises. Yours in the Lords Service …………………. Sec. Godwin Adzanu EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION ……………….. Rev. S. Y. Ofori – District Pastor ……………………. Cat. S. K. Ansre Pres. Osei K. Edward Pres. Mary Amanie. It is clear from the above letter that no reason(s) was assigned why the church decided to take over the facility. The defendant in its response told the plaintiff that the church cannot legally take over the premises with a legally existing unexpired lease. But the church did not take a cue. (My emphasis.) It is noted that subsequently there have been series of exchange of letters between the parties as well as meetings held in an attempt to resolve the matter. In another of such Takeover of the facility letters is Exhibit ‘4b’ signed by the Session Clerk and the parish pastor, this is what the church said in part; “The church is ready to take over to pay for the remaining lease years; 1. You promised to establish a vocational training centre for the benefit of both girls and women of Peki Ghana, and Africa. 2. You also promised job opportunity for church members of E. P. Church in Peki. 3. You defaulted payment of rent over four (4) years. Owing to the unfulfilled promises, the house deems it as a violation of breach of the terms of the agreement. The E. P. Church Blengo Session wants to have meeting with you on the heading of this letter. Please get an expert to value the premises before the meeting date to enable both parties finalise the modalities of the takeover. We hope you will be present for an amicable discussion of the issues at stake.” EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION From the pleadings and evidence, it does not appear the defendant, resisted the take-over bid by the plaintiff but demanded due process in concluding the matter. They however made demand for a copy of the lease agreement in order to comply with the terms which they were alleged to have breached. Subsequently the defendant wrote to plaintiff that in compliance to their request, they had engaged the services of a valuer and are waiting for the valuation report for further discussions on the matter. Whilst awaiting the valuation report, the church in another letter dated 3rd June 2014, signed by the session clerk, with heading Re: Taking Over AWETC, with varied new issues and allegations were again served on the defendant. At paragraph 6 of the said letter tendered as Exhibit ‘4a’, he wrote, “it is our position that the purpose for which the church entered into agreement with AWETC had long ceased to exist. Instead, of the agreed upon Vocational Training Centre for women the facility is being run as a hotel. Since the AWETC has for a long time violated the terms of agreement concerning the purposes of the said agreement we have the right to re-enter as laid down in the agreement.” Plaintiff’s only evidence of the facility being used as hotel is Exhibit ‘C’. Exhibit ‘C’ is a receipt dated 27/3/2015 issued to PW1, Victor Dzube in the sum of GH¢40.00 for 2 nights of lodging. From the evidence before the court, it is an established fact that the defendant had a valid lease subsisting when the plaintiff decided to take-over the premises for an alleged breach of covenant. I have said earlier that, since the parties agreed to have signed the undated lease agreement they stand to be judged by it. (My emphasis). EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION I have carefully read and studied Exhibit A, the undated lease which shows it was made sometime in 2003. Sadly none of the allegations constituting breach of covenant is contained in the said document. On the issue of default of rent payment, it was plaintiff who rejected and returned the rent presented by defendant for the reason that they want to take over the facility. The plaintiff then proceeded to lock up the major entrances to the facility before the issuance of this writ. What does the law say when a land owner wish to take over property for breach of covenant? And was defendant in breach of covenant anyway? I wish to remind us of the provisions of section 29 of the Conveyancing Decree NRCD 175 which states that; “29 (1) A right of re-entry or forfeiture under any provision in a lease for a breach of any covenant, condition or agreement in the lease shall not be enforced, by action or otherwise, until; a) The lessor serves on the lessee a notice; i) Specifying the particular breach complained of, ii) If the breach is capable of remedy, requiring the lessee to remedy the breach, and iii) Except where the breach consists of a non-payment of rent, requiring the lessee to make reasonable compensation in money for the breach; and b) The lessee has knowledge of the fact that such notice has been served; and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, (except where the breach consists of a non-payment of rent) to make a reasonable compensation in money, to the satisfaction of the lessor, for the breach. 3) This section applies notwithstanding any provision to the contrary in the lease” EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION Section 57 of the Land Act, 2020 (Act 1036), also states that, a lessors right of re-entry under a provision in a lease for breach of covenants, conditions or agreements is enforceable by court action or any other means provided that firstly a notice has been served on the lessee to remedy the breach, secondly the lessee has knowledge of said notice and thirdly, the lessee has failed to remedy the breach within a reasonable time after service of the notice. Notwithstanding the existence of a right of re-entry, a landlord is not entitled to enter the demised property and take possession against the tenant’s wishes. And whether the right of re-entry can only be exercised by a court or by self-help, a classical application of the law was found in the case LEO LAWOE AMEGASHIE II V. FRANCIS AMIHERE & ANO. (2012) DLCA at page 810 where the Supreme Court discussed the above position of the law extensively and held that; “On the other and, even assuming that the re-entry notice was proper the issue to resolve is whether re-entry should be by an action or self-help as in the instance case. The law is settled that re-entry shall be by an action or otherwise and the otherwise cannot be construed to be self-help. In the case of WESTERN HARDWOOD ENTERPRISES LTD. V. AFRICA ENTERPRISES LTD (1998-99) SCGLR 105 THE SUPREME COURT RELIED ON SECTION 29 OF THE CONVEYANCING Act and concluded that re-entry could be by an action or otherwise and the trial Circuit Court judge was right when he held that the purported re-entry by the co-defendant which was exercised without recourse to court was unenforceable. A careful look at section 29 and 30 of the conveyancing Act (NRCD 323) 175 the word otherwise cannot mean self-help but rather other lawful means which will not allow lessor to take the law into their own hands. It will therefore dismiss ground 1 of the appeal as unmeritorious.” The defendant per its exhibit B dated the 18/03/2009 warned the plaintiff, that, plaintiff could not legally take over the premises in 2009, covered by a lease due to expire in 2023, EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION and opened their doors for negotiations. The plaintiff failed to take advantage of the olive branch and open arm extended to it, but resorted to self-help which the law frown upon. From the evidence adduce from plaintiff, this court find as a fact that all the allegations levelled against the defendant are none existent and pure afterthought. To put it mildly, the allegations made against the defendant by the plaintiff was in bad faith, unwarranted and ill thought. It should be noted that the courts determine issues on legally proven facts, and a person who comes to court no matter what his claims are, must make a case for the court to be considered in its favour otherwise he fails. Please the case of NARTEY V. MECHANICAL LIYODS ASSEMBLY PLANT LTD (1987) 2 GLR 344, where Adade JSC explained the rules thus; “A person who comes to court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails……” The evidence portrayed that after the death of the founder of AWETC Dr Mrs Esther Ocloo of Blessed Memory, the operations of the training centre took a down turn. This was because the centre which offered free training entrepreneurship skills for women and later admitted few men could not receive support from those who funded and facilitated the work of the deceased’s entrepreneurship and humanitarian ventures. In order that the centre could continue in business it decided to offer hospitality facilities. I do agree with the church, that the facility being located in the vicinity of the plaintiff’s church, the Pastors residence and even a school, the defendant must be circumspect in its hospitality activities. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION The germane question to pose at this juncture is whether or not the plaintiff complained of the above activities as constituting breach of covenant and if so, whether the plaintiff took sufficient steps to warn and served notice on the defendant to remedy the situation as required by law? The court holds the view that the correspondences between the parties did not serve the above purpose. The next important issue for consideration is defendant’s issues (d) of the additional issues filed on the 21/08/2017. Whether or not the only issue between the parties is that of the assessment of the compensation due to the defendant on the bases of the valuation report in respect of the demised premises to help determine the extent of the defendants investments therein, and the court will set for itself one additional issue; whether or not the plaintiff had a cause of action? A cause of action, according to the Black’s Law Dictionary (9 edition, 251) is that, “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” The law requires a land owner who complained of breach of conditions stipulated, to give notice for the wrong to be remedied. When the breach persist he may resort to a legal action. In the instant case, it was the plaintiff that rejected rent from defendant and proceeded to lock up the facility before heading to this court. The defendant says that as a result of the several letters exchanged by both parties coupled with meetings, the plaintiff agreed in a letter dated 6/02/2014 to pay the defendant for the remaining years of the lease, pay compensation to the defendant for the huge investment made in renovating and rehabilitating the centre. The evidence shows that, whilst the settlement was ongoing the plaintiff through its agent and or official physically forced its way onto the premises as recounted above suing the EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION defendant. As the evidence show, this court holds the view that the plaintiff had no cause of action against the defendants, as has been elucidated in a number of cases including Letang v. Cooper (1965) 1 QB 232, CA and Ampratwum Manufacturing Co. Ltd v. Divestiture Implementation Committee (2009) SCGLR page 692. I have no reason to doubt the contents of Exhibit “5” which the plaintiff did not deny and even if they did Exhibit “4c” exposes them because they requested for it. The only difficulty this court has with the exhibit is that, it did not state clearly how much the defendant has invested in enhancing the value of the property as at the time of the valuation. I noted with concern also that the church did no valuation of the 1847 property before handing it over to the late Dr Ocloo. There is clear evidence that as at the time the founder took over the facility it was in bad state of disrepair. This court, based on the exhibits and evidence has no reason to doubt that the defendant made appreciable improvement to the facility and using same peacefully, until it was closed down by the plaintiff in 2014. Honestly this court is at a loss why plaintiff run away from the process it put in motion for peaceful takeover. From the available evidence before me, it is true that as at the date plaintiff run to this court the only legitimate issue to be resolved was the issue of compensation to be paid to the defendant for the unexpired term of the lease, and compensation for improvements made to the existing structures thereof. I turn to agree with counsel for defendant completely on this point. Exhibit 5, the valuation report as I said, is not very helpful in deciding fairly how much work the defendant did to improve the facility over the years but the plaintiff has agreed that improvements were made. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION From exhibit A, it is part of the covenants for defendant to improve the facility every 3 years and maintain same. The court hold the view that those improvement helped enhance the 1847 property to its current value in exhibit 5. I hold therefore that, the defendant has made improvements to the facility by painting, reroofing, block work, maintenance of lawn etc, to keep the in good tenantable condition over the years until closed down. When the witness for plaintiff testified, the following was solicited from her under cross examination; I deem it prudent to capture part of it for full effect. Q. Can you tell the court how long the defendant took over the property before a formal lease was entered into? A. I am not aware Q. Take a look at Exh. ‘A’ it states 2003 A. Yes 2003 Q. That was long after defendant was operating the facility, not so? A. Yes Q. If you look at the correspondences defendant were not even served or given a copy of your exhibit A, though they constantly demanded but you did not give it to them. A. I have no idea Q. In your letter to the defendant demanding to take over the facility, you accused defendant of using the place as a hotel not so? A. Yes Q. the defendant replied to the letter that those persons being visitors were not people from Peki A. Yes Q. In exhibit 4F your reasons are stated in the said letter A. Yes Q. In your letter dated 6/06/2014 you did not accuse the defendant of using the place as a hotel did you? EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION A. No my lady Q. Look at exhibit 4B letter dated 2009 you decided to take over the facility after defendant has expended money to put the facility in good condition A. I have seen it. Q. As at 2009 did the church have a final lease with the defendant? A. There is a 1998 agreement Q. Where is that agreement you just mentioned A. It is captured in our exhibit A. Q. I put it to you that there has never been any other lease apart from exhibit A, attached to your witness statement A. I have sighted a document in 1998 Q. Exhibit D instructed the defendant to value the premises, not so? A. Yes your ladyship Q. Discussions were on going when you took over the facility forcibly sometime in 2014 when you locked up the place. A. Yes please Q. You took over the place and padlock the entrance A. Yes I have seen it. Q. Look at exhibit 2P have you seen it? A. Yes Q. Those items belong to the defendant and it was thrown out without defendants’ presence. A. It is possible Q. Per exhibit 4D you are aware that the defendant was entitled to be paid some money that is why you requested for the valuation A. From the letter yes. Q The valuation was served on the church A. Yes EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION Q. You the Church, was supposed to pay defendant an amount of GHC40, 000.00 for the remaining unexpired term of the lease- 9 years A. Yes Q After ejecting the defendant forcefully when their term has not expired you have no business suing the defendant in court A. If he says so Q. I put it to you that the defendant has not violated any of the terms of the lease as you claim A. He did. We have evidence of people coming in. It is still being used by the defendant. Q. I put it to you that since 2010 the defendant has not been there, it is the church which is using the facility A. It is not true. Since the death of its founder Mrs Esther Ocloo the place collapsed. In all honesty, when one juxtaposes the plaintiff’s claim and the evidence adduced in support, it makes the whole case and claim of plaintiff funny and farcical and has no bases in law. It does appear that, when plaintiff realised that the facility was no longer vibrant after the death of its founder they hashed a plan to take back its property. Which was possible if proper procedure was channelled. Plaintiff’s case is easily likened to the English proverb that, “Give a dog a bad name and hang it” meaning, he who has a mind to beat his dog will easily find a stick, or one can always find a reason for what one wants to do. This was clearly evident in plaintiff’s letters to defendant. Some reason ought to be given for the persistent harassments to justify take-over of the facility by the plaintiff at all cost. In the candid opinion of this court, every letter churned out from the office of the plaintiff with the caption “Take Over or Re-Entry of AWATC” as a church is, balderdash, unfortunate and highly regrettable. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION It is in the cardinal roles of the church to foster peace and unity, giving meaning and purpose of life while motivating and promoting spiritual, physical and psychological wellbeing of society. So, when the church ventures into business it must follow the rules and the law strictly. CONCLUSION The plaintiff pleaded a 1998 lease agreement in its endorsement but tendered a 2003 undated lease. None of the issues or allegations alluded constituting a breach of covenant is found in the 2003 lease therein. Flowing from the above discussions, I find as a fact that the defendant is not in breach of any of the covenants, conditions or agreement stated in the lease, be it oral or the 2003 with the plaintiff. Is it not laughable that, the church rejected rent from defendant and later turn around to complain of breach? It is high time church administration and its businesses are placed in capable hands otherwise loses are bound to occur. I found further that the plaintiff’s act of “close down until further notice”, locking up the gates and sealing same with concrete blocks before issuance of this writ amounted to self-help take over. This conduct of forceful takeover of the premises without a court order was unjustifiable interference with land in possession of another which is trespass in law, and unlawful. That plaintiff had already taken over the place before coming to this court, and as at the time plaintiff re-entered the facility, the defendant had a validly subsisting unexpired 9 years lease. How does the lodging of a School headmaster affect the spiritual growth of the church? Well I received no evidence of the negative effect of the lodger’s presence for the two nights. Rather the conduct of the church officials have caused financial loss and damages to the defendant and financial loss to even the church itself. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION It is regrettable that none of the many legal officers of the church were consulted throughout the unpass leading to this litigation. No wonder this simple issue has been mismanaged or handled unprofessionally. The last of the issues outstanding for determination is whether or not the defendant is entitled to compensation for damages for the improvements to the property, and unexpired term of the lease when they were unjustifiably interrupted. This court has no difficulty in agreeing that, defendant is entitled to compensation for both the unexpired 9 and half years and, improvements made to enhance the value of the property and trespass. The church, is much aware that defendant is entitled to compensation thus the request for exhibit 5 (valuation report), and its exhibit 4B. Be that as it may, the court is clear in its mind that defendant have made improvements to the facility which they described as huge. Funds were raised by its founder sorely and committed to the improvement and benefit of the facility. The court in the circumstances therefore, dismiss the claims of the plaintiff as unmeritorious and same is dismissed in limini for lack of merit. Plaintiff has no reasonable cause of action when it sued the defendant. The court found merit in defendants counter claims and uphold the claims of defendant as prayed and decree as follows; a. Defendant is to recover from the plaintiff the sum of, GHC5, 000. 00 being cost of valuation fee charged on exhibit 5. b. GHC80, 000.00 being compensation for loss of use for the unexpired 9 and half year term of the lease. EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION c. Payment of GHC40, 000.00 representing compensation for improvement/renovation work done on the facility by the defendant. d. Damages for trespass in the sum of GHC5.000.00 e. Cost of GHC10, 000.00 adjudged in favour of the defendant for expenses and inconvenience in prosecuting this case. Since the relationship between the parties cannot be salvaged, the defendant is granted 3 months from this judgment to vacate the facility. I order a joint inspection team of two accredited members from both side of the divide to oversee the hand over. The defendant be at liberty to go into execution should the plaintiff failed to comply with the directives of this court. Self – help is dangerous, the Church is and should be the light of the world. (SGD.) CHARITY A. ASEM (MRS) (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION – MR KOKU AKUDE FOR PLAINTIFF – PRESENT MR GODWIN KPORBLE FOR DEFENDANT – PRESENT Statutory provisions ref; EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION Religious Bodies (Registration) Law 1989 PNDC Law 221 Section 29 of the Conveyancing Act Section 57 of the Land Act, 2020 (Act 1036) The Trustee Incorporation Act 1972 Act 106 Section 4 What does the Law say when a Land owner wish to take over property for breach of covenant? Was the defendant in the instant case in breach of covenant? Judicial Precedents ref; Nartey v. Mechanical Llyods assembly Plant Ltd (1987) 2 GLR 344 SC Western Hardwood Enterprises Ltd v. Africa Enterprises Ltd (1998-99) SCGLR 105. Leo Lawoe Amegashie II v. Francies Amihere & Ano (2012) DLCA page 810 Latang v Cooper (1965) 1QB 232 CA Ampramtum Manufacturing Co. Ltd v Divestiture Implementation Committee (2009) SCGLR EVANGELICAL PRESBYTERIAN CHURCH GHANA V. SUSTAINABLE END OF HUNGER FOUNDATION