NAVRONGO/BOLGATANGA DIOCESE VRS ATINDANA (UE/BO/DC/A1/01/2021) [2023] GHADC 748 (28 December 2023)

*HWMNJ@DC/BO-28/12/2023* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BONGO IN THE UPPER EAST REGION OF GHANA, ON THURSDAY, THE 28TH DAY OF DECEMBER, 2023. SUIT NO. UE/BO/DC/A1/01/2021 NAVRONGO/BOLGATANGA DIOCESE VEA CATHOLIC MISSION PER JOHN ATUM PLAINTIFF VRS. JUSTIN ATINDANA DEFENDANT OF ALUTA’S HOUSE VEA, BONGO TIME: 09:22AM PLAINTIFF IS REPRESENTED BY JOHN ATUM DEFENDANT PRESENT EDNA IVY ADABAYERI, ESQ. FOR PLAINTIFF PRESENT MOHAMMED TAHIRU NAMBE, ESQ. FOR THE DEFFENDANT ABSENT Introduction JUDGMENT 1. This judgment is in respect of a portion of a parcel land gifted to Plaintiff church by Defendant’s grandfather in consultation with the then Chief and Tindana of Vea-Bongo in 1964. If the gift of the land had been documented and registered at the lands commission as well as building of a fence wall *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 1 of 18 *HWMNJ@DC/BO-28/12/2023* around the land given, this dispute would not have come up or arose. It is advisable that a Deed of Gift is prepared to cover any land gifted to anyone to avoid any tendency by the descendants of the donor to take the land back from the donee as in the instant case. 2. Plaintiff Church commenced this action on 10th August, 2020, and claims against the Defendant as follows: - a. An order for declaration of title and ownership of parcel of land which is situated and lying at Vea, a suburb of Bongo which is bounded to the East and shares a boundary with Vea Market, bounded South to Zoko road, North to Community Library and bounded West to the VRA Transformer. b. A perpetual injunction restraining the defendant, his descendants, his workmen, agents, headsmen, assigns, representatives or whoever from interfering with the said land described above which is subject matter of this action. c. Cost to be awarded against the defendant in favor of plaintiff. 3. Also, on the 25th day of August, 2020, the Defendant filed his defence and counterclaims against the Plaintiff as follows: a. An order for declaration of title and ownership of all that piece of land lying and situated at Vea-Bongo District bounded to the West by Aluta Atindaana’s grave, welding shop and neem tree, bounded to the East with the fell kapok tree and foot path stretch to the Vea market, bounded to the North with by church building, neem tree and sensebiga tree and bounded to the South by grave of Agobga Awinbire, baobab tree and rocks. b. A perpetual injunction restraining the Plaintiff, its assigns, its workmen, its agents, its representatives or whosoever act in any title or name on *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 2 of 18 *HWMNJ@DC/BO-28/12/2023* behalf of the Defendant from interfering with the land aptly described above. c. Damages. d. Costs including Solicitor’s fee. Plaintiff's Case 4. The Plaintiff avers that in 1964, the Priest approached the then chief of of Vea, by name Naaba Azubire Abagna for a land for the sole purpose of building a church and other missionary projects. Plaintiff states that the chief (Naaba Azubire Abagna) asked the Priest (Missionary) to identity a land suitable for the construction of the church building and a parcel of land including the land in dispute was identified and upon which the chief agreed upon consultation of the owners of the said land and agreement was reached. Plaintiff states that the chief willingly and wholeheartedly gave the church the land for the construction of the church building, even though, part of the land was family cemetery so they decided to remove or exhume everything to different location. Plaintiff avers that some years ago some family members of the land owners made adverse claim and the matter was sent to the Vea chief Naaba Alagsi Yaaba and he ruled in favor of the of the church. Plaintiff avers further that the chief held that the parents (the owners of the land) did not give any condition or say that the land should be reclaimed after their demise. Plaintiff states that Mr. Brown the then Parish priest bought a gallon of Pito to reconcile with them, after that Father Brown brought Mapping and Survey Department for site plan covering the land in contention. 5. Plaintiff avers further that in January 2020, Defendant brought a heap of sand on the mission land and the matter was reported to the Chief of Vea and he invited defendant but all effort to resolve the matter proved futile. Plaintiff states that the Tindana of the village ruled in favor of the church *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 3 of 18 *HWMNJ@DC/BO-28/12/2023* and later on informed Bon-Naba to plead with defendant to rescind his decision. Plaintiff avers that several attempts made by the church and the chiefs of the area to resolve the matter with defendant yielded no fruitful result. The Plaintiff therefore institute this suit and claims for the above- mentioned reliefs. Defendants' Case 6. Defendant vehemently denies Plaintiff’s claim and avers that the Plaintiff is not entitled to its claims. Defendant states that the Missionaries requested for land to build a church and no other developmental purposes were included in their request. The rest of land is being owned, controlled and possessed by the land owners till date. It is the case that Defendant’s family continues to farm on the land including the land the subject matter of the instant suit. Defendant states that it is in view of his family ownership of the land that the family alienated portion of the land for him to put up his residential building. 7. Defendant states that the chief in consultation and consent of the land owners (Defendant’s family) grant the Missionaries portions of the land for the construction of the church for free. The grave of late Atindaana was closer and directly opposite the windows of the church. Upon the death of Aluta Atindaana, the family resolved to relocate the family grave yard since it will be exposed to the public, especially when church activities are ongoing. And on consultation and advice of soothsayers in accordance with customs and tradition, the body of Atindaana was exhumed and sent to a different location but the same piece of land. Thereon, Aluta Atindaana’s grave was constructed for his burial. Since then, his family members have been buried on the late Aluta’s grave. Defendant further states that the piece of land is being used by my family as farmland till date. 8. Defendant states categorically that the Vea chief never ruled in favor of the church as being stipulated. Defendant asserts that his family never had any reconciliation with Mr. Brown, the then Parish priest over a gallon of pito. It *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 4 of 18 *HWMNJ@DC/BO-28/12/2023* there was any survey and mapping at all, it was done at the blind side of my family, since my family never gave out the entire parcel of land to the Missionaries but only where the church was built. Defendant further states that, in January 2020, he was invited by the chief of Vea over the piece of land belonging to his family, where he heaped sand with the intention to build. Defendant further states he met elders of the church at the Vea chief’s palace when he honored the invitation. At the Vea chief’s palace it was established that the said piece of land belongs to the Defendant’s family but the church elders said they wanted to use that particular land for a purpose and are ready to get any land outside for the Defendant but he declined the request. Defendant further states that on the 15th January, 2020 whilst he was in Accra to attend Public Servant Interview, the Vea chief called and said he wanted to meet with the Defendant. The Defendant told him that if it is in respect of the land he would like to come with his uncle, Agegu-ele Atindaana, the Vea chief obliged. The vea chief offered to sell a parcel of land to Defendant of which Defendant did not show interest on. The Vea chief told Defendant that the land subject matter of the instant suit belongs to Defendant’s family and he cannot be the one to confiscate the said land for the church. That verdict was communicated to the Vea Tindaana who also ruled in favour of the Defendant’s family. The Tindaana was asked to stop the Defendant from blasting the rocks to pave way to build and the Vea Tindaana declined and said the land belongs to the Defendant’s family therefore, he cannot do that. Defendant therefore counterclaims against the Plaintiff for the above-stated reliefs. Burden of Proof 9. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. Thus burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. Sections 11(1)(4) and 14 of the Evidence Act, 1975 (NRCD 323) provide as follows: *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 5 of 18 *HWMNJ@DC/BO-28/12/2023* 11(1) For 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. 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.” 10. Thus there are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 11. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything: the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made4 in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 6 of 18 *HWMNJ@DC/BO-28/12/2023* determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court, which may turn out to be only the evidence of the plaintiff.” 12. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the minds the court or tribunal of fact such as a jury. 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 that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. Evaluation of evidence, discussion of issues and legal analysis 13. The issues for determination are (a) whether or not the Defendant’s grandfather gifted a parcel of land to the Plaintiff church including the land in dispute. (b) and if so, whether the gift of the land is revocable and (c) Whether or not Defendant is entitled to his counterclaim. 14. I will determine the first two issues together. Thus whether or not the Defendant grandfather gifted a parcel of land to the Plaintiff church including the land in dispute and if so, whether the gift of the land is revocable. The Plaintiff testified through its representative John Atum and called three other witnesses. Plaintiff’s representative, John Atum in his evidence in chief testified that “My name is John Atum. I live in Vea near the *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 7 of 18 *HWMNJ@DC/BO-28/12/2023* Catholic Church and the Catechist of the Vea Catholic Mission of the Navrongo- Bolgatanga Diocese, the Plaintiff in the present lawsuit who I represent. Justin Atindana, the defendant is a Public Servant who works with the National Youth Authority and lives in Vea in Bongo in the Upper East Region. The church recorded that in 1964, the then parish priest approached then chief of Vea, Naaba Azubire Abagna for a piece of land for the sole purpose of building a church, and other missionary projects. The said then chief of Vea asked the Priest to identify a suitable location for the construction of the church and the said piece of land, part of which is the disputed land was communicated to the chief. The said then Chief of Vea held consultations with the church and the landowners and upon a successful agreement was reached, the Chief willingly and wholeheartedly gave the land freely and absolutely to build the church and its developments. The land owners also agreed and exhumed all their graves to relocate their family cemetery for the construction of the church and other impending developments. The church recorded that some years later, some family members of the original land owners made adverse claims over the said part of the land in dispute and the successor of the then Chief of Vea, Naaba Alagsi-yaaba who sat on the case ruled in favour of the church. The church recorded that the said successor of the then Chief of Vea, Naaba Alagsi- yaaba held that the parents of the adverse claimants , the original land owners of the land gave out the said land freely without any conditions or intend the land to be taken back after their demise. The records also show that Fr. Browne who was the parish priest at the time too bought a gallon of pito to reconcile with the said adverse claimants including the father of the defendant herein. Fr. Browne then asked a surveyor to map out the entire piece of land gifted to the church and he produced a site plan, a part of which is the land in dispute presently. 15. In January 2020, I saw a heap of sand on the church land, the portion of the land in dispute and reported it to the Chief of Vea. The Chief of Vea invited the defendant to try to resolve the matter but all efforts proved futile. The matter was also put before the Tindana of Vea who could not also resolve it and subsequently the church reported the matter to the Bo-naba to plead *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 8 of 18 *HWMNJ@DC/BO-28/12/2023* with the defendant to rescind his decision but all these interventions proved futile. The church has over the years since 1964, a little over 20 years, taken ownership and subsequently possessed the said portion, and started building without let or hindrance from anybody including the defendant’s great grandfather who affirmed as the farm owner for his piece of the whole plot of land until around80’s when defendant’s father’s adverse claims were successfully settled and the church made a site plan of the entire land. The church is expanding and preparing to extend its buildings and insist that the piece of land in dispute does not belong to the defendant, after his great grandfather having gifted the church with the said piece of land thus making the claim over the same piece of land by the defendant illegal and contrary to the laws of the Republic of Ghana and therefore, null and void.” 16. The evidence of the other three witnesses in effect corroborated Plaintiff’s representative evidence. The Plaintiff tendered in evidence the following documents: A brief history of the St. Elizabeth Catholic Church, Vea as Exhibit A, A Site Plan as Exhibit B, Terms of Settlement dated 31st August, 2016 as Exhibit C and Proof of Payment to the Nbuto Family as Exhibit D. 17. Counsel for Plaintiff filed her submission on 21st December, 2023 and submitted inter alia as follows that: the Plaintiff acquired a valid gift of the piece of land from the various families including the Defendant’s grandfather at Vea in 1964; the Customary gift of the piece of land that the Plaintiff acquired from the various families including the Defendant’s grandfather at Vea in 1964 is irrevocable; the Defendant cannot reclaim the portion of the land gifted customarily to the Plaintiff by his grandfather in consultation with the then Chief and Tindaana for building a church in 1964. 18. The Defendant on the other hand testified himself and called three witnesses. Defendant testified in his evidence in chief as follows: “I state that a large portion of land was allocated to the Plaintiff some years back to build a church by my grand-father in collaboration with the chief and Tindana without any financial consideration. The grave of Atindana, my grand- father was closer and directly opposite the windows of the church. Upon the *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 9 of 18 *HWMNJ@DC/BO-28/12/2023* death of Aluta Atindana, my family consulted widely, including consultation of soothsayers as customs and tradition demanded for the relocation of burial ground of our family members since it will be exposed to public and church members when church activities are in progress and one is to be buried. The body of late Atindana was exhumed and relocated at a nearby land where Aluta Atindana was buried within the same parcel of land. That piece of land has since been designated as our family grave yard where family members are buried. Between 1998 and 2015 a number of our family members have been buried there. notable amongst them are; Aloko Atindana, Aza-ebase Atindana, Avea Atindana, Adompoaka Atindana, Apilisigo Atindana, Akolbire Atindana, Akake Atindana etc. The same parcel of land is used for farming activities by my family, the Atindana family to exercise ownership and possession. My root of title to the land the subject- matter of instant suit is traceable to Atindana whom I am a progeny and the family gifted same to me to construct a residential building. I state that there has never been any reconciliation meeting between my family, the Atindana family and the Plaintiff in respect our family land which the land in instant suit is part. In January this year, I was invited by the chief if Vea to his palace, where I met with the leadership of the Plaintiff church. Apparently, the complaint was in respect of the land I have decided to build on. Which I admitted. I enquired further whose family land it was and the chief said it was my family land. The Plaintiff’s leaders and members who were present told me that they are willing to procure a different land somewhere for me if I agree. That request, I blatantly declined. 19. Further, the Vea chief called me again on the 15th January, 2020 when I was in Accra attending in interview with the Public Service Commission. I informed him that I was out the jurisdiction and so when I come back I shall honor the invitation. Upon my return on the 19th January, 2020, the chief called again and I asked if it had anything to do with the land and he answered in affirmative. I then sought his permission to come with my uncle, Agegu-ele Atindana which he granted. On the 20th January, 2020 we honored the invitation of the chief and had personal discussions and finally discussed the land in issue, which he said he had a land at Aveam, if I am *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 10 of 18 *HWMNJ@DC/BO-28/12/2023* interested I should convey my building materials there and build whilst pursuing the Plaintiff over the land in issue. An offer I declined. I however told the chief that I was impressed with his approach to issues in this matter and that I shall convey to the Tindana of Vea which I did. The Vea Tindana invited both parties where the Plaintiff argued that the land was granted to it for free by my grand-father and further stated and that they are willing to get me a piece of land to construct my residential building. The next day a delegation was sent to my family house to see my uncle and l. The Plaintiff further went with one Agungabone to see the Tindana of Vea to confiscate the land from since I had sent some machines there to crush some rocks on the land to pave way for my building. It has been a mode of operation by Plaintiff to give monies to other families who equally own lands within the catchment area. It must be noted that it is not only my family that has land there but other families too. …The Vea Tindana passed a verdict in my favour. Therefore, the land the subject-matter of instant suit belongs to as has been allocated to me by my family, Ataindana’s family.” 20. The Defendant tendered in evidence Terms of Settlement dated 31st August 2016 and made between Plaintiff and Nbuuto Family as Exhibit 1. The evidence of the other witnesses corroborated Defendant’s case. Counsel for Defendant failed to filed written submission even though given the opportunity to do. 21. From the evidence on record, Plaintiff’s evidence is to the effect that in 1964, the then parish priest approached then chief of Vea, Naaba Azubire Abagna for a piece of land for the sole purpose of building a church, and other missionary projects. The said then chief of Vea asked the Priest to identify a suitable location for the construction of the church and the said piece of land, part of which is the disputed land was communicated to the chief. The said then Chief of Vea held consultations with the church and the landowners and upon a successful agreement was reached, the Chief willingly and wholeheartedly gave the land freely and absolutely to build the church and its developments. Plaintiff church entered into possession and put up a church building on a portion of the land gifted to them. *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 11 of 18 *HWMNJ@DC/BO-28/12/2023* 22. The Defendant corroborated Plaintiff’s case when he testified that a large portion of land was allocated to the Plaintiff some years back to build a church by his grand-father in collaboration with the chief and Tindana without any financial consideration in 1964. He however claims that his family reclaimed the land from the Plaintiff church in 1968. Thus on 7th August, 2023, during cross examination of the Defendant by counsel for Plaintiff, he testified as follows: Q: In your paragraph 4 that your grandfather in collaboration with the chief gave the land to the Tindaana without any financial consideration. Ans: Yes, that is so but I have more to add. The land was given out in 1964 but that time we had settled at the place currently taken over by Vea Dam and with construction of the dam we had no farm lands so that compelled us to reclaim our lands. Q: What was your grandfather name? Ans: Aluta Atindana Q: How many years ago? Or which year was this? Ans: 1964. Q: How old were you? Ans: I was not born yet. Q: You do not know the size of the said land, do you? Ans: I know all the boundaries of our land and adjourning land. Q: I am asking of the size? Ans: I have not measured that. *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 12 of 18 *HWMNJ@DC/BO-28/12/2023* Q: But you are able to say your grandfather gave the land without any consideration? Ans: Yes, there was no consideration at all. Q: So you agree your family members know this. Ans: Yes, we gave them and we reclaimed in 1968. They know about the gift but have taken it back. 23. Also DW1-Apoah Avoah, the Tindana of Vea under cross examination by the lawyer for Plaintiff on 10th August, 2023 testified as follows: Q: You are the Tindana of Vea right? Ans: That is so Q: Which year did you became a Tindana? Ans: I cannot recall the year. Q: Your role as Tindana is to take care of the land and all land issues. Is that so? Ans: Yes Q: As part of your role do you keep track of lands your predecessors did? Is that so? Ans: That is so. Q: You know all the land transactions your predecessors did. Are you aware? Ans: My father has told me of such transactions and I am aware. Q: So you are aware the defendant ancestors gave out land to the church? *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 13 of 18 *HWMNJ@DC/BO-28/12/2023* Ans: My father told me so. Q: You are not aware they did not take any money. Ans: They did not take money. 24. From the above evidence, it is clear that a parcel of land was gifted to Plaintiff church by the Defendant grandfather including the land in dispute. What then is a gift? The Black’s Law Dictionary (8th ed. 2004), page 2026, defines Gift as “The voluntary transfer of property to another without compensation.” See also the book entitled Ghana Land Law and Conveyancing by B J Da Rocha and CHK London, 2nd edition at page 460 where a gift was defined as a voluntary transfer of title by the owner of a property to another person for no valuable consideration. 25. In Barko V Mustapha (1964) GLR 78, the Supreme Court held among other things that the burden of proof is on an alleged donee to prove the existence of a customary gift. The Court outlined the ingredients of a customary gift as follows (i) publicity, (ii) acceptance and (iii) placing the donee in possession. This standard of ascertaining a customary gift was also applied. In Asare v Kumoji (2000) SCGLR 298 at 302 per Aikins JSC: His Lordship stated thus: “With regard to customary gifts inter vivos, our courts have stressed that the acceptance of gift, especially land, "must be made by the presentation to the donor of some token acknowledgement and gratitute in the presence of witnesses.” There are two ways of making such valid gift, either by a conveyance where a deed of gift is granted to evidence the transaction, or orally where it is governed by customary law.” It is noteworthy the Defendant admitted that his grandfather gave a parcel of land which includes the land in dispute to the Plaintiff church for free or without financial consideration as can gleaned from the evidence quoted above; as a result there is no issue about the validity of the gift land to the *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 14 of 18 *HWMNJ@DC/BO-28/12/2023* Plaintiff Church and this court will not go into what constitute customary gift. 26. However the Defendant’s claim is that his family has reclaimed the land gifted to the church by his grandfather. The question is whether a valid customary gift is revocable? The answer to this question is no. It is a fundamental principle of law that customary gift cannot be revoked except in gifts between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration. See Okai v Okoe (2003/2004) SCGLR 393, Sese v Sese (1984) 2 GLR 166 at 174, CA and Kwantreng v Amassah & Others (1962) 1 GLR 241, SC. The gift of the land in the instant case is not a gift between parent and child. That being so, the parcel of land gifted to Plaintiff church by the Defendant’s grandfather including the land in dispute is not revocable. The court therefore agrees with the submission of the learned counsel for Plaintiff as stated in paragraph 16 supra. Besides, the Defendant also has failed to convince this court with sufficient evidence that in 1968 his family reclaimed the land given to the Plaintiff Church in 1964. 27. Further more, the court found as a fact that the land in dispute forms part of the parcel of land the Defendant’s grandfather gave to Plaintiff in 1964. So, having found that the land in dispute forms part of the one given to Plaintiff by Defendant’s grandfather in 1964, the Nemo dat principle will be applied. It is an established principle of law that you cannot give what you do not have (nemo dat quod non habet). Thus, a person who has no title to a thing cannot pass title to another person. In other words an owner of land can only convey what he owns. In the case of Bishopsgate Motor Finance Corporation Ltd. V. Transport Brakes Ltd. [1949] 1 KB 322 or 1 All E. R. 37, at 46, Lord Justice Denning (as he then was) said: "… No one can give a better title than he himself possesses …” *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 15 of 18 *HWMNJ@DC/BO-28/12/2023* The Supreme court also held on the nemo dat quod non habet maxim in the unreported consolidated suit No. 81/92 and L. 20/92 dated 16th March 2011 entitled Mrs. Christiana Edith Agyakwa Aboa v Major Keelson (Rtd) and Okyeame Yima & Anr v Major Keelson as follows: “It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro Stool Nana Antwi Awuah III cannot revoke what his predecessor had done.” In addition, in the case of Seidu Mohammed V. Saanbaye Kangberee [2012] 2 SCGLR 1182, the court noted as follows: “This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance…” 28. It is very clear from the evidence on record that Plaintiff was given a parcel of land, including the land in dispute by Defendant’s grandfather in 1964. Hence, the Defendant’s grandfather having gifted the land in dispute to the Plaintiff Church, the Defendant's family had nothing to give or convey to the Defendant. The purported gift or alienation of the land in dispute to the Defendant by Defendant’s family is therefore null and void and of no effect. The Plaintiff has therefore discharged its burden of proof that the land in dispute belongs to it. Thus, from the evidence on record, the Plaintiff Church has established the existence of the facts contained in their claim by a preponderance of the probabilities. 29. The next issue to consider is whether or not the Defendant is entitled to his counterclaim. It is a well-established principle of law that a defendant who files a counterclaim has the same burden of proof as a plaintiff. In the case *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 16 of 18 *HWMNJ@DC/BO-28/12/2023* of Nortey (No.2) V. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated thus, “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”. 30. In the instant case, the Defendant counterclaims against the Plaintiff for the land in dispute. He therefore has a burden of proof to discharge. But having examined the evidence of the parties on record as well the above analysis under issues one and two, this court is of the considered opinion that the defendant has failed to establish the existence of facts contained in his counterclaim by the preponderance of the probabilities. The Defendant’s counterclaim is accordingly dismissed. Conclusion 31. Having examined the whole evidence adduced by the Plaintiff and the Defendant on record, the submission filed by counsel for Plaintiff on 21st December, 2023 and from the foregoing authorities as well as the analysis, the court holds as follows that: a. Plaintiff’s action succeeds. Thus, plaintiff has established the existence of the facts contained in its claim by preponderance of the probabilities and Plaintiff church is hereby declared the owner of the land in dispute or all that piece of land as described in their claim. b. Plaintiff is granted an order to recover possession of the land in dispute from the defendant. c. The defendant, his agents, assigns, privies, descendants, representatives or assigns and all those claiming through him are perpetually restrained *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 17 of 18 *HWMNJ@DC/BO-28/12/2023* from interfering with plaintiff’s ownership, quite enjoyment and use of the said land. d. The Defendant failed to prove his counterclaim to the satisfaction of this court. Accordingly, Defendant’s counterclaim is dismissed. e. There will be no order as to costs. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-NAVRONGO-BOLGA D. V. CATHOLIC MISSION VRS. JUSTIN ATINDANA (SUIT NO. A1/01/2021)* Page 18 of 18