THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF GHANA VRS. GBEDEMAH (IRL/287/2010) [2023] GHAHC 593 (9 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON THURSDAY THE 26TH DAY OF OCTOBER 2023, BEFORE HER LADYSHIP, NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. IRL/287/2010 THE REGISTERED TRUSTEES OF THE - PLAINTIFF PRESBYTERIAN CHURCH OF GHANA VRS SOPHIA NUFIAME GBEDEMAH - DEFENDANT R U L I N G INTRODUCTION By a Writ of Summons and Statement of Claim filed on 2nd February 2010, the Plaintiff instituted the present action against the Defendant, a daughter of a Presbyter, or elder of the Plaintiff Church. An amended Writ and Statement of Claim was filed more than ten (10) years later on 22nd June 2020. In its Statement of Claim, the Plaintiff stated that the property which is the subject matter of the present dispute, hereafter also referred to as “property, subject property or land” is 2.312 acres, is situate at South Labadi Estate in Accra and was acquired in or about the year 1964. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 1 of 10 The Plaintiff added that it went into possession after the acquisition, built a chapel and school buildings on the property and applied for and obtained a Land Title Certificate dated 15th November 1997 in respect of the property. It is the case of the Plaintiff that in or about the year 1967, the parents of the Defendant, Mr. B. B. Quist and Mrs. Christine M. D. Quist who were both Presbyters or elders of the Plaintiff Church approached the Church and requested to rent a portion of the subject land for Mrs. Christine M. D. Quist to operate a day nursery/ Day Care Centre. The Plaintiff stated that it did not have an immediate use for the portion of the land requested and so it agreed to the request and rented the portion of the land which is the subject of the present action to the parents of the Defendant at an agreed rent of Four British Pounds (£ 4) per month. The Plaintiff added that the understanding was that Mr. and Mrs. Quist would put up temporary structures on the land and the Plaintiff church would give them reasonable notice to vacate the property when the Church needed it. The Plaintiff stated that when the Defendant’s father, Mr. B. B Quist died in 1984, his wife and mother of the Defendant continued to run the Day Care Centre on the subject property until she also passed away in 1994. The Defendant thereafter continued to run the Day Care Centre. It is the case of the Plaintiff that the Defendant took advantage of the fact that there was no written tenancy agreement and the effluxion of time and stopped paying rent to the Plaintiff. The Plaintiff states that in the early part of 2009, it informed the Defendant that it wants the land back, but the Defendant has refused to vacate the land and has contended that the land does not belong to the Plaintiff. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 2 of 10 The Plaintiff by this action seeks a declaration of title to the subject land, an order directed at the Defendant to remove the offending structures of the land, recovery of possession, perpetual injunction, rent arears from 1970 to date of final payment, damages for Defendant’s unlawful interference with Plaintiff’s possession and quiet enjoyment of the subject land and costs. DEFENCE AND COUNTERCLAIM OF THE DEFENDANT The Defendant filed a Statement of Defence and Counterclaim on 25th May 2021. The Defendant denied the claim by the Plaintiff that the land on which the Day Care Centre is built is for the Plaintiff. It is the case of the Defendant that the portion of the land on which she operates the Day Care Centre was acquired by her father, Mr. B. B. Quist (deceased)in the name of her mother Mrs. Christine Quist (deceased) in or about the year 1963 from the State Housing Corporation for the operation of a Day Care Centre. The Defendant stated that after the acquisition of the land for her mother, her father Mr. B. B. Quist (deceased), who was a founding member of the Plaintiff church assisted the Plaintiff Church to acquire its own land, which is that on which the Church building stands. In support of the case that the land on which the Day Care Centre is built was acquired for her mother, the Defendant stated that after acquiring the land and building the Day Care Centre on same, her mother paid all the property rates in her name when she was alive and granted the Plaintiff Church leave to use the Day Care property as a place of worship. In further denial of the claim of the Plaintiff, the Defendant stated that if the land on which the Day Care Centre is built were for the Plaintiff, the Plaintiff would have requested her to vacate the land sooner than the year 2009 when there was the need for same, rather than squeeze its members into a small shed it had constructed for its worship. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 3 of 10 The Defendant added that any right the Plaintiff may have in the property on which the Day Care Centre has been built has been extinguished and the Plaintiff is estopped by conduct form contending that the land upon which the Day care is situate is for the Plaintiff. With regard to the land title certificate of the Plaintiff, the Defendant stated that it would have been issued by mistake or fraud for a search conducted by her late mother on 16th March 1993 showed that she was the owner of the land on which the Day Care Centre is situated. The Defendant counterclaimed for a declaration of title to the land situate at South Labadi Estate and referred to as the Estate Day Care Center, a declaration that the Plaintiff’s land title Certificate has no effect, perpetual injunction and costs including legal fees. ISSUE FOR DETERMINATION DURING THE TRIAL The Court considers that the real issue for determination is which of the Parties is entitled to the subject land. WITNESS S TATEMENTS FILED In support of the Plaintiff’s case, and for the purpose of the trial, the Plaintiff filed the Witness Statement of Reverend Nortey and a Witness Statement of another witness. In her pre-trial check list, the Defendant indicated that she will testify in support of her case during the trial and rely on the Witness Statement she deposed to and filed in Court on 23rd March 2023. OBJECTION RAISED DURING THE TRIAL Trial started on 25th October 2023. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 4 of 10 The Plaintiff opened its case. In the Witness Statement of Reverend Nortey filed on 23rd February 2023, it was stated that he is a reverend minister and the lawful attorney of the Plaintiff. The witness sought to tender his Witness Statement in evidence as his evidence in chief. Counsel for the Defendant raised an objection to the admissibility of the Witness Statement for the reason that the Power of Attorney attached to the Witness Statement was not stamped and therefore inadmissible by the provisions of the Stamp Duty Act, 2005 (Act 689) ISSUE RAISED BY OBJECTION By the objection raised by Counsel for Defendant, this Court is called upon to determine whether or not the unstamped power of Attorney which is the basis of the Witness Statement of the witness is admissible and for that matter whether or not the Witness Statement challenged is admissible in evidence. APPLICABLE LAW For the purpose of this Ruling the Court deems it appropriate to reproduce the applicable provisions of the Stamp Duty Act, 2005 (Act 689), namely section 32, section 10 and section 50 of Act 689. Section 32 which contains provisions on the Admissibility of insufficiently stamped or unstamped instrument provides as follows: (1) Where an instrument chargeable with a duty is produced as evidence (a) in a court in a civil matter; or (b) before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument. (Emphasis added) SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 5 of 10 (2) If the instrument is one which may legally be stamped after its execution, it may, on payment of the amount of the unpaid duty to the registrar of the Court or to the arbitrator or referee, and the penalty payable on stamping that instrument, be received in evidence subject to just exceptions on other grounds. (Emphasis added) (See also section 12 of Act 689) (3) An instrument which is sufficiently stamped under this Act shall be receivable in evidence although that instrument may not have been stamped or is insufficiently stamped according to the law in force in the place where that instrument was executed. The Court notes that the law refers to “instruments chargeable with duty” and the term “instrument” is defined in section 50, the interpretation section of Act 689 as follows: "instrument" includes a written or printed document” The Court also notes that the law does not contain a list of the instruments that are chargeable with duty. In section 10 of the Act 689 it is stated that: (1) The Commissioner may be required by a person to express an opinion with reference to an executed instrument, as to: (a) whether the instrument is chargeable with duty; and (b) the amount of duty with which the instrument is chargeable, if duty is chargeable. (2) The Commissioner may require a person to furnish the Commissioner with an abstract of the instrument and also with the necessary evidence in order to determine whether the facts and circumstances affecting the liability of the instrument to duty, or the amount of the duty chargeable on the instrument, are fully and truly set out. (3) Where the Commissioner is of the opinion that the instrument is not chargeable with duty, the instrument may be stamped with a particular stamp denoting that it is not chargeable with duty. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 6 of 10 (4) Where the Commissioner is of the opinion that the instrument is chargeable with duty, the duty shall be assessed, and the instrument shall be stamped in accordance with the assessment. (5) An instrument is admissible in evidence and shall be available for all purposes despite an objection relating to duty whether stamped with the particular stamp denoting that it is not chargeable with a duty or stamped as charged. [As amended by the Stamp Duty (Amendment) Act, 2008 (ACT 764), s. 1(a)] ANALYSIS AND OPINION From the definition of the term “instrument” in section 50 of Act 689 as reproduced above, the Court considers that the Power of Attorney challenged is an instrument within the meaning of Act 689. In the absence of information in Act 689 as to whether or not a Power of Attorney is chargeable with duty, the Court notes that in practice Power of Attorneys relied on during trials are generally stamped. Further, there is no provision in the Power of Attorney Act, 1998 (Act 549) which excludes a Power of Attorney from the payment of Stamp Duty. For the avoidance of doubt however, the Court is of the considered opinion that in accordance section 10 of Act 689, the Commissioner appointed under the Ghana Revenue Authority Act, 2009 (ACT 791) as amended should be requested to provide an opinion or answer as to whether or not the Power of Attorney challenged is chargeable with duty. In the event that it is, the Court is of the opinion that section 32 (2) of Act 689 as explained in the recent unanimous decision of the Supreme Court delivered on 22nd March 2023, in the case of Nii Aflah vrs Benjamin Kwaku Boateng (Unreported, Civil Motion No J4/80/2022), “confers a right on, and for that matter, an option to a party seeking SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 7 of 10 to tender an unstamped or improperly stamped document or instrument in evidence, to first pay the duty and applicable penalty to the Registrar of the Court, and thereafter tender the document or instrument in evidence.” In the case of Nii Aflah vrs Benjamin Kwaku Boateng (supra), the Supreme Court reviewed its previous decisions on admissibility of documents that have not been stamped in evidence and noted that “it can be seen that, significantly, section 32(2) and (3) of Act 689, is in pari materia with and almost verbatim reproduction of section 14(2) of Act 311.” The Supreme Court held after reviewing its previous decisions that the cases of Antie & Adjuwuah vrs Ogbo [2005-2006] SCGLR 494 at page 506 and Amonoo and Others v Dee [1975] 1 GLR 305 at page 35 which decree a discretion in trial courts to admit in evidence, unstamped documents and instruments that are liable to stamping, subject to such stamping…” or subject to an undertaking by the party who wishes to rely on same to have it stamped in accordance with the law in force at the date of its execution are not in accordance with the express provisions of Act 689 or the Stamp Act, 1965 (Act 311) pursuant to which the cases of Antie & Adjuwah vrs Ogbo (supra) and Amonoo and Others v Dee (supra) were determined. The Supreme Court further held that “the law on admissibility or otherwise of unstamped documents or instruments as enunciated in the cases of Lizori Ltd vrs Boye & School of Domestic Science and Catering [2013-2014] 2 SCGLR 889 and Woodhouse Ltd vrs Airtel Ghana Ltd [2017-2018] SCGLR 615 are more accurate precedents of the proper construction of section 32 of the Stamp Duty Act, 2005 (Act 689)” CONCLUSION In accordance with Section 32 of Act 689, this Court has therefore taken notice of the omission of the stamp on the Power of Attorney relied on by the Plaintiff’s witness. SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 8 of 10 To ascertain whether or not the Power of Attorney challenged is chargeable with duty, Counsel for Plaintiff is directed to write pursuant to Section 10 of Act 689 to the Commissioner for his opinion on whether or not the Power of Attorney challenged is one chargeable with duty and may be legally stamped after its execution. The Court further directs that a copy of the letter to the Commissioner and his response should be filed in Court and served on Counsel for the Defendant within seven days after the request is sent to the Commissioner and seven days after receipt of the Commissioner’s response. In the event that the Commissioner determines that the Power of Attorney is an instrument chargeable with duty, the Ruling of the Court is that in accordance with the decision of the Supreme Court in Nii Aflah vrs Benjamin Kwaku Boateng (supra), and pursuant to section 32 of Act 689, the Plaintiff should “first pay the duty and applicable penalty to the Registrar of the Court, and thereafter tender the document or instrument in evidence”. [SGD] NABEELA NAEEMA WAHAB (MS) J. (JUSTICE OF THE HIGH COURT) COUNSEL ERIC AKWA FOR THE PLAINTIFFS – PRESENT PAPA KWEGYIR-AGGREY WITH GAIL HAZEL HESSE BEING LED BY PATRICK SOGBODJOR FOR THE DEFENDANT – PRESENT SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 9 of 10 CASES REFERRED TO: 1. Nii Aflah vrs Benjamin Kwaku Boateng (Unreported, Civil Motion No J4/80/2022) 2. Lizori Ltd vrs Boye & School of Domestic Science and Catering [2013-2014] 2 SCGLR 889 3. Woodhouse Ltd vrs Airtel Ghana Ltd [2017-2018] SCGLR 615 4. Antie & Adjuwuah vrs Ogbo [2005-2006] SCGLR 494 at page 506 5. Amonoo and Others v Dee [1975] 1 GLR 305 at page 35 SUIT NO: IRL/287/2010 – The Registered Trustees of the Presbyterian Church of Ghana vrs Sophia Nufiame Gbedemah Page 10 of 10