NORTH EASTERN MISSION FIELD VRS ARAFAT YASSER (NR/BB/DC/A1/04/2024) [2024] GHADC 417 (2 September 2024)

IN THE DISTRICT COURT HELD ON MONDAY THE 2ND DAY OF SEPTEMBER, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. NR/BB/DC/A1/04/2024 NORTH EASTERN MISSION FIELD OF GHANA BAPTIST CONVENTION (Per Deacon Tagi Emmanuel Kwasi) } PLAINTIFF OF CHAMBA/BIMBILLA VRS ARAFAT OF CHAMBA/BIMBILLA JUDGMENT INTRODUCTION YASSER }DEFENDANT 1. The Plaintiff to this suit is a church in Chamba with their head office in Yendi. The Defendant is the son of the late Pastor Bekamba Dora of the Plaintiff’s church. 2. On the 19th day of October, 2023 the Plaintiff issued a Writ of Summons against the Defendant out of the registry of this court and claimed for the following reliefs: (i) A declaration that the 15 plots of land at Chamba lying and situate at Salaga Road behind Armdaway Filling Station – Chamba in the Nanumba North Municipality of the Northern Region where the plaintiff have its church building, Mission House and other buildings for prayer seekers on it are the bonafide properties of the plaintiff. (ii) Recovery of possession of the said plots described in claim (i) above. 1 | P a g e (iii)An order that the Defendant vacates the mission house and give possession of the entire (15) plots of land to the plaintiff. (iv) An order for perpetual injunction against the defendant, his assigns, agents, workmen and all persons claiming through him from interfering with plaintiff’s ownership, control and management of the said (15) plots described in claim (i). (v) Cost (vi) Any other order(s) as the court may deem fit. 3. The Defendant upon effective service of the Writ of Summons and Summary of Subject Matter of Claim, and on 26/10/2023 pleaded not liable to all the reliefs sought by the Plaintiff. 4. Subsequently, the court ordered the defendant to file his Statement of Defence and serve same on the plaintiff within two weeks. This order was made mainly for the fact that Plaintiff indicated they will maintain their Summary of Claim as their Statement of Claim. CASE FOR THE PLAINTIFF. 5. The Plaintiff in its Particulars of Claim sought declaration that the 15 plots of land situate behind Armdaway Filling Station is the property of the church. That the Baptist Church, Chamba started as a Prayer Camp by Elder Noel in 2009 in his own house at Chamba. That in 2010 Elder Noel brought in Deaconess Bekamba Dora to manage the Camp at Chamba while Elder Noel was managing another Prayer Camp at Burai. 2 | P a g e It is Plaintiff’s case that Deaconess Bekamba Dora became a pastor of the Baptist Church sometime in 2013, and was in charge of the Chamba branch. As a result, in 2018 and 2019 the church members organized and contributed some monies and acquired the present place of the church through Pastor Bekamba Dora. That they went ahead and built a mission house which houses the resident Pastor Bekamba Dora, built the church house and some other rooms for prayer seekers. Plaintiff further stated that upon the death of Pastor Bekamba Dora in 2021 and after her funeral rites, the son (Defendant herein) came to occupy the mission house claiming it as the property of his deceased mother. That it was at this point it was revealed that though the 15 plots had been allocated to the church Pastor Dora did not complete payment. Hence, Plaintiff through its members organized and contributed another monies to pay for the land, and in January 2022 allocation paper was issued to cover the 15 plots in the name of the Plaintiff. CASE FOR THE DEFENDANT. 6. The Defendant, on the other hand, in his defence and counterclaim contended that her deceased mother acquired 4 plots of land and built a house which she occupied with other houses for sick people. He further stated that the purported Mission House is his mother’s bonafide property which her mother occupied since 2010 till her demise in 2021. In Defendant’s Statement of Defence and Counterclaim he sought for the following reliefs: (i) Declaration that four (4) plots of land lying and situate at Chamba behind Armdaway Filling Station known as Mama Dara’s Prayer Camp where she built her house and other rooms for her sick people are the bonafide properties of the late 3 | P a g e Mama Dora (Bekemba Dora) and for that matter the defendant who is the elder child of Mama Dora. (ii) An order for perpetual injunction restraining the Plaintiff, its agents, workmen, assigns and all persons claiming through the Plaintiff from asserting ownership of the 4 plots and all structures on it such as house, rooms meant for sick people etc… (iii) Cost. ISSUES FOR DETERMINATION. 7. The court after perusing the processes filed by both parties and their witnesses concluded on the following issues for determination: (i) Whether or not the disputed land was acquired by and belongs to the Plaintiff? (ii) Whether or not Pastor Bekambe Dora (Deceased) was the resident pastor at the Chamba branch of the Plaintiff’s church? (iii) Whether or not the Defendant’s late mother (Pastor Bekambe Dora) bought any four (4) plots of land which form part of the 15 plots of land as her personal property? STANDARD OF PROOF, EVALUATION AND ANALYSIS. 8. To resolve the issues identified above the court will have to look at both the facts and evidence put forward by both parties vis a vis the applicable laws. The issues are determined when the party with the burden to establish the existence or 4 | P a g e nonexistence of an allegation is able to produce credible evidence to that effect. This position of the law is provided under section 14 of the Evidence Act, 1975 (NRCD 323) as follows: “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.” 9. The law on proof is stated in the case of OKUDZETO ABLAKWA (N0.2) VRS ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at page 867 where the court stated that: “If a person goes to court and makes an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…” 10. The statutory provisions in the Evidence Act, 1975 (NRCD 323) require that the burden of producing evidence by the parties as well as the burden of persuasion is to be determined on the preponderance of probabilities. This is provided under section 12 (1) of NRCD 323 as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” Subsection (2) of section 12 of NRCD 323 defines what preponderance of probabilities means as follows: 5 | P a g e ‘Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.’ 11. Similarly, in ACKAH V. PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736 Adinyira, JSC stated that: “It is a basic principle of the law of 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…” 12. In effect, the task to produce sufficient evidence to prove or establish one’s case is the responsibility of both parties where the defendant files his defence with a counterclaim. In other words, the burden of proof in the instant case, is on both parties to produce sufficient evidence to their claim and counterclaim on the balance of probabilities, respectively. 13. As a counterclaimant, Defendant’s counterclaim is to be viewed and treated, for all purposes, as an independent action. Hence, the Defendant now a plaintiff will be saddled with the burden of proof to lead credible evidence for the success of his counterclaim as in the instant case. In the case of JASS CO. LTD V. APPAU [2009] SCGLR 269 @271, Dotse JSC came to the conclusion on counterclaim actions that: “Where a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant.” 6 | P a g e 14. The issues identified will be resolved in that order that is, issue (i) Whether or not the disputed land was acquired by and belongs to the Plaintiff? When called upon to prove their case, Tagi Emmanuel Kwesi testified for Plaintiff and called two other witnesses including Jachain Bitukwon Moses (PW1) and Abukari Ziblim (PW2). The Plaintiff traced their root of title of the disputed land to an allocation document of the 15 plots of land in the name of the Plaintiff made by the Chamba regent as a caretaker of the Chamba Skin. Two land allocation documents were tendered and marked as Exhibits ‘AB1’ and ‘AB3’. Also, Plaintiff tendered two approval documents issued by the Municipal Environmental Officer and same were marked as Exhibits ‘AB2’ and ‘AB4’. 15. However, Exhibits AB1 and AB3 were not stamped as required by section 32 of the Stamp Duty Act, 2005 (Act 689). Subsection 1 of Act 689 tasks the judge, arbitrator or referee to take notice of an omission or insufficiently stamped documents chargeable to duty produced before them as evidence. Subsection 1 reads as follows: “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. 16. The admissibility of Exhibits ‘AB1’ and ‘AB3’ in this case is dependent upon payment of duty and subsequent stamping of same. For the fact that they have not been stamped same cannot be admitted, and to place any probative value or weight on them. 7 | P a g e 17. I have dutifully taken notice of the fact that the said exhibits chargeable to duty have not been stamped, these exhibits will have no probative value for the determination of this suit. See the cases of LIZORI LTD VRS MRS EVELYN BOYE & SCHOOL OF DOMESTIC SCIENCE suit No J4/8/2012 dated 26/7/2013, and FRANCIS APPIAH-MENSAH V. GIFTY ANANE-WIREKU, suit No. J4/28/2023 dated 19th day of July 2023. 18. Aside Exhibits AB1 and AB3, on record Plaintiff’s witness in the person of Jachain Bitukwon Moses (PW1) testified and stated at paragraphs 5,6,7 and 8 all to prove that members of the Plaintiff’s church contributed various sums of monies to acquire the disputed land. PW1, in addition, tendered in evidence Exhibits A1, A2, A3, A4, A5, A6, A7 and A8. These are pages of a book PW1, as the Secretary to the church, recorded the names of contributors of money for the purchase of the disputed land. The money contributed ranges from GHȼ5.00 to GHȼ20.00. Others contributed foodstuff including cassava, yam, maize among others. 19. In the testimony of Abukari Ziblim (PW2) an elder of the Chamba Naa Palace, stated that he is in charge of allocation of lands. That, initially elder Noah requested for 20 plots of land but ended buying 4 plots. Also, PW2 testified that the 4 plots which was allocated to elder Noah has the church building on it. But stated further that where the mission house was built was not part of the 4 plots, hence the church members organized themselves and made payment to cover the 15 plots and documents were issued to that effect. 8 | P a g e 20. To ascertain the veracity of parties of the claim of the disputed land, the court on 21/05/2024 embarked on locus in quo. Both parties were present with the registrar and interpreter of the court in attendance. The Plaintiff representative walked the team through the boundaries of the 15 plots starting with the 1st Pillar which is at the Western side and shares boundary with Amdaway Filling Station, the Eastern Part of the 15 plots shares boundary with some of the church members including Munimue, Mashibei and Mbambe, the Southern part boundary is the Church of Christ land and the Northern part is bounded by the road leading to Gbenigbeni Filling Station. 21. Putting together the evidence on record and what was gathered at the locus the court has no doubt in mind that the disputed land was acquired by the Plaintiff’s church. I therefore resolve issue (i) in favour of the Plaintiff’s church. 22. The next issue to resolve is issue (ii) that is, Whether or not Pastor Bekambe Dora (Deceased) was the resident pastor at the Chamba branch of the Plaintiff’s church? The Plaintiff in their Summary of Subject Matter of Claim and at paragraph 5 stated that the Defendant’s late mother Deaconess Bekambe Dora became a pastor somewhere 2013 and was the pastor in charge of the Plaintiff’s church. This assertion is repeated in paragraphs 6 and 7 of the Witness Statement filed by Tagi Emmanuel Kwesi. To this assertion, the Defendant failed to admit or deny same in his pleading. In paragraph 3 of Defendant’s statement of Defence and Counterclaim, this is what he stated: 9 | P a g e ‘Defendant cannot deny or admit paragraph 5 of the Statement of Claim. As the Defendant and the whole community know her as Mama Dora.’ Again, the Defendant failed to cross examine Tagi to controvert that assertion that Mama Dora became a pastor of the Plaintiff’s church and was in charge of the Chamba branch. In their reply to Defendant’s counterclaim that the purported mission house is her late mother’s bonafide property, Plaintiff stated that as the policy of the Ghana Baptist Convention the church is mandated to build a mission house for the pastor. In addition the Plaintiff’s church bought a house at Kumoati for the Defendant’s late mother as the pastor of the church which house is the property of the Defendant’s late mother. This will be deemed to have been admitted by the Defendant sub silentio, that averment by the failure to cross examine. 23. Apart from the assertion that the Defendant’s late mother was the pastor in charge of the Chamba branch, it was also revealed at the locus that the deceased mother of the Defendant was interred just close to the church building. That it was the church that organized the funeral of the deceased and decided to bury the corps within the premises of the Plaintiff’s church since the deceased was their first branch pastor of the Church. As such, it is obvious and I do not hesitate to conclude that the deceased mother of the Defendant was the Chamba branch pastor of the Plaintiff’s church. 24. Last to resolve is issue (iii) which is, Whether or not the Defendant’s late mother (Pastor Bekambe Dora) bought any four (4) plots of land which form part of the 15 plots of land as her personal property? 10 | P a g e This last issue is formulated in respect of the Defendant’s Defence and Counterclaim for declaration that the 4 plots of land lying and situate at Chamba behind Amdaway Filling station and some other rooms are the bonafide properties of Mama Dora (Bekambe Dora). This counterclaim, in itself, is a fresh action for all intent and purposes against the Plaintiff at the instance of the Defendant. The Defendant now assumes the responsibility and burden to lead credible evidence in order to prove his counterclaim. See the case of JASS CO. LTD VRS. APPAU (Supra). 25. To support his counterclaim, the Defendant in his Witness Statement tendered two documents. These documents include a receipt in the name of Bekamba Dora dated 14/07/2010 and same marked as Exhibit ‘1’ and land Allocation Document marked as Exhibit ‘2’. The Defendant also called two witnesses who testified in support of his counterclaim. These witnesses include Bekamba Kofi (DW1) and Abukari Iddrisu also known as Jakpaful- Naa (DW2) who testified viva voce for the fact that DW2 did not file his Witness Statement. 26. In reference to paragraphs 15, 16 and 17 of this judgment, Defendant’s exhibits ‘1’ and ‘2’ are documents affecting land transaction and needed to be stamped. The failure to do so disqualifies them to be admitted in evidence for any weight to be placed on them for the determination of the matter. 27. During the inspection of the disputed land the Defendant pointed out to the team the four (4) plots he counterclaimed to belong to his deceased mother. These 4 plots are scattered at different locations but within the 15 plots of land claimed by the Plaintiff. According to the Defendant the building which housed his deceased mother is on the first plot. It is the same building which the Plaintiff described as 11 | P a g e the Mission House for the resident pastor of the Plaintiff’s church. The other three plots also have structures on them at different positions which both parties stated are structures which accommodate prayer seekers. 28. At paragraph 5 of Defendant’s Witness Statement, Defendant stated that her late mother upon acquisition of the 4 plots built her properties within the 4 plots. The said paragraph is reproduced here for the benefit of other readers of this judgment, and it reads like this: ‘5. My late mother ( Mama Dora) upon the acquisition of the four (4) plots built her living house, houses for prayer seekers and church room within the said four (4) plots.’ This statement by the Defendant is contrary and/or in conflict with the reality on the ground when the court visited locus. This is so for the fact that the Defendant never pointed the church building to include the alleged four (4) plots acquired by his late mother, but pointed the Mission House, the houses for prayer seekers on the other three (3) plots. 29. Again, Defendant’s witness (DW2) in his Evidence in Chief stated that Defendant’s late mother bought three (3) plots and he gave additional one (1) plot to Defendant’s late mother for free. DW2’s reason for the gift of extra one plot is that the healing services rendered by Defendant’s late mother was beneficial to the community. DW2 also stated that the extra plot is in respect of where Mama Dora was living before she came to acquire the three (3) plots. The Defendant repeated this assertion during the locus inspection to the effect that the house his deceased 12 | P a g e mother occupied which is described as Mission House by Plaintiff was built on the plot gifted to the deceased. 30. Surprisingly, the issue of a gift of one plot of land never appeared or was stated by the Defendant in his Statement of Defence and Counterclaim or in his Witness Statement. It was after the testimony of DW2 and at the locus inspection that the Defendant mentioned for the first time that the said plot of land was gifted to his deceased mother. Defendant made this statement to align his narration with that of DW2 who stated categorically in his Evidence in Chief that he gifted one extra plot of land to Defendant’s late mother. But the question still remains, and that is, can the regent solely make a gift of a plot of land, the property of the Chamba Skin, without the consent and concurrence of the principal members and/ or elders of his palace? 31. Customarily, a gift of land made by a family, a stool or a skin and/ or by the head of family, occupant of the stool or skin, as the case may be, must do so with the consent and concurrence of the principal members of the family, elders of the stool or skin. Any customary grant of land devoid of this essential requirement makes the grant so made null and void, and of no legal consequence. In his evidence DW2 never mentioned that the gift was made with the consent and concurrence of the elders of the palace but said he added extra one plot. This is a portion of the Evidence in Chief of DW2 on 29/04/2024: ‘…when she came to the land I told her that I cannot give her the whole land she was looking for. She left and later came with three (3) plots’ money. The price was GHȼ300.00 per plot. So in all, she paid GHȼ900.00. I added extra one plot to her 3 plots making it 4 plots…’ 13 | P a g e The lack of approval by the elders of the Chamba Palace when DW2 made the alleged gift of one extra plot of land to the Defendant’s late mother during his reign as the regent is null and void, and of no legal consequence. See the case of AWUKU VRS. TETTEY [2011] SCGLR 366. 32. On the same date and under cross examination DW2 agreed with Plaintiff’s representative and asserted that where he sold to Defendant’s late mother is not the disputed land. These are extracts from the cross examination between Plaintiff’s representative and DW2: Qn. You said you sold three plots to Defendant’s mother and added another plot to her. Can you tell the court the one you added to the three plots where it was? Ans. It is around Gungunla Road. Frankly, I was not the one doing the demarcation. Qn. Is it the place where the Defendant’s mother was healing the mad persons that you sold to her or a different place? Ans. That is where she was healing the mad persons. Qn. Put: that where you sold to Defendant’s mother is not where we as a church bought, it is not the same land. Ans. I know where I gave to the Defendant’s mother was where she was healing the mad persons. 14 | P a g e Qn. Put: that you gave the Defendant’s mother land and its documents covering where she was healing mad persons not the disputed land that the church bought. Ans. All I know is that Defendant’s mother came looking for a plot after buying the three plots I added where she was initially healing the mad persons. Qn. Put: that the Defendant’s mother has no land on the disputed land. She has land where she was healing mad persons. . Ans. I initially said that where the Defendant’s mother was healing mad persons is not the disputed land. I only know where the Defendant’s mother was healing mad persons. 33. The above questions and answers point to one conclusion that a reasonable man can make, and that is, the disputed land is different from what DW2 sold to Defendant’s late mother for her personal use. And the evidence on record is inconsistent with the Defendant’s pleading and/or counterclaim. In the recent case of ADWOA BOKOR VRS. AGBO ODDOYE (substituted by Philip Odoi) Civil Appeal N0. J4/38/2021, dated 8th December 2021, the Supreme Court speaking through Torkonoo JSC (as she then was) stated thus: “The principle must be noted that where the party’s evidence is inconsistent with his pleadings, the opponent’s case must be found preferable to the one who departs from his pleadings.” 34. The inconsistencies in Defendant’s pleadings and evidence coupled with unequivocal admission by DW2 that the disputed land is not where DW2 sold to Defendant’s late mother creates doubt in the mind of the court to believe the 15 | P a g e Defendant for his counterclaim. On that note, I resolve this last issue (iii) in favour of the Plaintiff. CONCLUSION. 35. The court, after evaluation and analysis of evidence adduced by both parties and their witnesses, has found that the Plaintiff has made a strong case which has not been controverted by the Defendant. Thus, the Plaintiffs’ evidence against that of the Defendant has led the court to conclude with these orders on preponderance of probabilities in favour of the Plaintiff: (i) It is declared that the 15 plots of land at Chamba lying and situate at Salaga Road behind Armdaway Filling Station – Chamba in the Nanumba North Municipality of the Northern Region where the plaintiff has its church building, Mission House and other buildings for prayer seekers on it are the bonafide properties of the plaintiff. (ii) (iii) Recovery of possession of the said plots described in claim (i) above. It is ordered that the Defendant vacates the mission house and gives vacant possession of the mission house found within the Plaintiff’s (15) plots of land. (iv) The Defendant, his assigns, agents, workmen and all persons claiming through him are henceforth perpetually injuncted from interfering with plaintiff’s ownership, control and management of the said (15 plots of land described in claim (i). (v) The Defendant’s Counterclaim fails and is hereby dismissed in its entirety. (vi) Cost of GHȼ2,000.00 is awarded in favour of the Plaintiff against the Defendant. SGD. 16 | P a g e 17 | P a g e