The Methodist Church Ghana V Yeboah & 4 ORS (GJ1/102/21) [2024] GHAHC 434 (23 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION ON WEDNESDAY THE 23RD DAY OF OCTOBER, 2024BEFORE HERLADYSHIP JUSTICEHANNAH TAYLOR(MRS). SUIT NO.: GJ1/102/21 THEMETHODIST CHURCH GHANA PERTHEREGISTEREDTRUSTEES OF …PLAINTIFF WESLEYHOUSE NO. 252, LIBERIAROAD, ACCRA. V. 1. EDWARDOTTIYEBOAH …DEFENDANTS 2. LILIANNYARKO 3. KWASI BADU 4. EMELIAOWUSU 5. AKOSUA ANIMAH ALLOF EFFIDUASE _____________________________________________ J U DGME NT 1 The plaintiff Churchper its Registered Trustees, seeksper her amended writ of summonsfiled on7th June, 2024thefollowing reliefs jointly andseverally against the defendants: - i) Declaration that plaintiff church owns all that piece or parcel of land at Effiduase Ashanti on Effiduase Stool Land bounded by fitter’s work shop, petrol filling station, Damang, suburb of Effiduase and land for proposed building and the CentralGovernment area. ii) Damagesfor trespass. iii) Recoveryofpossession ofthe said land. iv) Perpetual injunction restraining the defendants, their agents, servants, workmen, relatives, assigns and all claiming through them from entering, remaining upon, interfering orinany way dealing withthe land in dispute. THEPLAINTIFF’SCASE The plaintiff avers that the land in dispute, being land at Effiduase Ashanti on Effiduase Stool Land bounded by fitters workshop, petrol filling station, Damang (a suburb of Effiduase) and land for proposed buildings and Central Government area which land is separated from fitters’ work shop and petrol filling station by a proposed street leading to Oseikrom (a suburb of Effiduase) separated from the Central Government Area by the Kumasi to Asokore motor road and separated from the land forthe proposed buildingsand Damang asuburbby aroadis owned by the church. 2 The land was acquired from the Effiduase Stool in 1903. After the acquisition, a chapel, mission house, primary school and middle school now Junior High School were put up on the land and been operated since. A special school for disabled children, a borehole, anewBishop’s manse and storeshave subsequently beenbuilt. In April 1964, the land was plotted, and on 31st May, 1965 a plan of the land so acquired was duly executed by the then chief of Effiduase, Nana Dua Awere II, thereby confirming the earlier customary grant to the plaintiff. The plaintiff church, has been in possessionofthedisputed landfor 114years. The 1st defendant some time ago, encroached upon various portions of the land by erecting woodenand metallic structuresin preparationfor hisvulcanizing works. The 3rd defendant also constructed a wooden structure on a portion of the land and was operatingablacksmithbusiness thereon. The 5th defendant also erectedametallic containeronaportion oftheland. The 2nd and 4th defendants have also dug trenches on a portion of the land ostensibly to build. Though the plaintiff caused letters to be written to the defendants in 2020 to warn them and for them to keep off the land, the 1st, 3rd and 5th defendants replied that they have beenallocated the portions theyoccupy by the SekyereEast District Assembly. 3 The 2nd and 4th defendants also assert that they were equally given the land by the District Assembly. It is the plaintiff’s contention that the District Assembly has no right or authority whatsoevertoallocateany portionofthe plaintiff’sland tothe defendants. The defendants’ acts therefore, constitute trespass and also seek to prevent the expansionofthechurch’s educationaland social welfare activities. DEFENDANTS’ CASE Defendants filed a joint statement of defence. The defendants denied the plaintiff’s claim of ownership of the disputed land. The defendants however, admitted being on the portions of the land complained of by the plaintiff and added that they were individually allocated the land by the Sekyere East District Assembly. According to the defendants, 1st defendant’s allocation was made on 1st June, 1991, the 3rd defendant’s allocation was made in the year 2014, 5th defendant’s allocation was made in the year 2013withthe allocationto the 2ndand 4th defendantsmade in the year2021. The 1st, 3rd and 4th defendants admitted that they received letters from the plaintiff and informed the Sekyere East District Assembly and were directed to respond to same that theland doesnotbelong tothe plaintiff. 4 The defendants therefore averred that the portions of land they occupy does not belong tothe plaintiffand theydenied theclaim ofhaving trespassed unto theplaintiff’sland. REPLYANDISSUES FORTRIAL The plaintiff joined issues with the defendants on their statement of defence and the following essentialissues were settledonfordetermination; 1) Whetherornot theplaintiff church owns the landindispute. 2) Whether or not the Sekyere East District Assembly has capacity to allocate the landindispute tothe defendants. 3) Whether or not the defendants have trespassed unto the plaintiff’s land or portions thereof. 4) Anyotherissues raised by thepleadings. 2ND,3RD,4TH AND 5TH DEFENDANTS The 3rd and 5th defendants after the court has ordered witness statements to be filed, decided to smoke a peace pipe with the plaintiff. In pursuance of an amicable settlement out of court, terms of settlement were filed on 27th January, 2023 in which they agreed to the grant of all the reliefs sought by the plaintiffs and also agreed to vacate the portions of the land they occupy on or before the 31st December, 2022. The terms of settlement were accordingly adopted as judgement against them on 21st 5 February, 2023. There is no outstanding issue to be resolved among Plaintiff, 3rd and 5th defendants. The 2nd and 4th defendants also failed to file their witness statements and when served with hearing notices failed to attend court. They elected not to participate in the hearing aswell. The suit therefore travelled betweentheplaintiff and the1stdefendant. BURDENOF PROOF The law is settled on the burden of proof required of parties who appear before the court for specific reliefs. In a circumstance as in this case where the plaintiff’s claim is denied, she is required to lead cogent, credible and admissible evidence to establish that theexistence ofthe assertions she makesareprobable thantheir non-existence. Undersection11(1) (4) and (12)ofthe Evidence Act, 1975,NRCD323,it is stated 11(1) That the burden of producing evidence means the obligation of a party to introducesufficient evidence toavoid aruling onthe issue against thatparty.” (4) 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 ofthefact was more probable thanthenon-existence. 6 12(1)Except as otherwise provided by law, the burden ofpersuasionrequires proofby a preponderance ofthe probabilities. (2) “Preponderance of the probabilities” means the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence ofafact is moreprobable thanits non-existence”. In TAKORADI FLOUR MILLS v. SAMIR FARIS [2005 – 2006] SCGLR 882, the Supreme Court held per Ansah JSC that “It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versionsand is deserving ofafavourable verdict….” With the plaintiff laying a claim of title to land for which he seeks among other claims declaration of title to land, she must discharge the obligation which Wood CJ (as she then was) instructively set in the case of MONDIAL VENEER (Gh) LTD. v. AMUAH GYEBUXV [2011]1SCGLR 466asfollows: - “In land litigation, even where living witnesses who were directly involved in the transaction under reference are reproduced in court as witnesses, the person asserting 7 title, and on whom the burden of persuasion falls must prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities thatthe partywould be entitled tothe claim”. See also the Supreme Court case of DANIEL RAMSEY ADJEI OKOE AND ANOTHERv. NII AKWELEYLAWANI ANDANOTHER[2021] 174GMJ 465. DETERMINATION OFISSUES WHETHER OR NOT PLAINTIFF CHURCH OWNS THE LAND IN DISPUTE AND WHETHER 1ST DEFENDANT HAS TRESPASSED UNTO THE PLAINTIFF’S LAND OR PORTIONTHEREOF. The plaintiff testified through her sole witness Abraham Yeboah a member of the church with its consent. His evidence per his witness statement largely reflected her pleaded case on how the land was acquired. Abraham Yeboah supported the church’s claim ofownershipwithsome documents whichwere admitted intoevidence. On the land area acquired by the church, he tendered a plan capturing the land acquired and same was marked as Exhibit “A”. Exhibit “A” delineates an area of 22.0 acre land for the Effiduase Ashanti Methodist Church by a surveyor who endorsed same with his signature on 7th April, 1964 and it is also signed by Nana Omanhene of Effiduase endorsing the areaasdelineated forthe Effiduase Methodist Church. 8 Within the land area for the Effiduase Methodist Church is disclosed the Methodist Mission Manse, Dining Room/Kitchen, Practising School, Pastors Residence, Methodist Middle Schooland Methodist PrimarySchool. The Exhibits “B” and “D” are pictures of structures identified as the Wesley Cathedral, theBishop’sManse and anotherBishop’sManse respectively. Exhibits “E”, “E1”,” E2”, “E3”, “F”, “G” are pictures of school structures which Abraham Yeboah testified as being the Primary School building (old and new) JHS buildings, the Special School for the disabled. The pictures also disclosed the compound forthe school. Exhibit “H”is apictureofastorey building. Exhibit “J”is awaterpump used by the schools. The Exhibits “K” and “M” are pictures of wooden and metal structures placed on the land. Exhibit “N” is a picture disclosing that a portion of the land has been cleared and Exhibit “O”also discloses trenchesdug onaportion ofthe land. The Exhibit “P” and “T” are the same being letters addressed to the 1st defendant in particular and written by the Methodist Church, Ghana giving him a month ultimatum tovacatethe land he occupies. 9 The Exhibit “V” is a response by the 1st defendant to the letters he received. In Exhibit “V” dated 21st October, 2020, 1st defendant stated that the land he occupies is not for the Plaintiff church and same was allocated or permitted and approved by the Sekyere East District Assembly. The Exhibits “P1” and “S” are the same, they constitute a letter written to Akwasi Badu to also vacate the land and are dated 3rd October, 2020. Exhibit “Q” is a letter by Kwadwo Baduapplying tothe plaintiff church foruse ofaportionofitsland. Exhibit “U” is a letter by the Plaintiff church to one Amoako Quaysonto vacate the land and Exhibits “W” and “X” are responses from one Egya Badu and 5th defendant asserting that the land does not belong to the church and they have permits to be on the landand are payingcouncil fee. Considering the evidence as adduced by the plaintiff, she has demonstrated how the land was acquired, thus disclosing her root of title, how a customary grant made by the Omanhene and also having exercised actsofpossessionofsame thereafter. Under cross examination, Abraham Yeboah was asked the following questions and he wasunwavering onthe claim ofownership entitlement ofthe disputed land:- Q. Isthereafence wallaround theplaintiff’sland? A. Inrespect ofthe disputed area thereisno fence wall. Q. Sohowis this areaprotected fromencroachers. 10 A. The road serves as a boundary of our land and so nobody crosses the road unto ourland. Q. The road is a boundary between the plaintiff’s land and Petrol Filling Station. Is thatcorrect? A. That iscorrect. Q. The 1st defendant occupies only a portion of the road reservation and does not extendtothe plaintiff’s land. A. That isnot correct. Q. The portion was granted to him by the Assembly because it does not formpart of theplaintiff’sland. A. Itispart ofour land. Q. Itisratherthe Assembly thatis incharge ofthat portion oftheland. A. The Assembly has nopower togive that landtohim. The questions asked suggest that 1st defendant occupied land which is close to the road separating the Filling Station and plaintiff’s land. Indeed, from Exhibit “A” there is a Filling Station which is separated from the area delineated for the Methodist Church by a road. In all, the plaintiff has led evidence on thesalient factsshe alleges. 11 The burden now shifts on the 1st defendant to prove the facts he alleges in his defence. The 1st defendant’s defence put up in his pleaded case and testimony is that he is stationed as a vulcaniser at Effiduase between the Methodist Middle School and the PetrolFilling Station. The 1st defendant’s evidence discloses that he is on land close to the Methodist Middle School. From Exhibit “A” the Middle School is identifiable by the key provided and the land area from the road is delineated for the Effiduase Ashanti Methodist Church. The Filling Station is also identifiable as separated from the Methodist Church land by a road. On how he got unto the land, 1st defendant mentions that it is from the Sekyere East District Assembly. The 1st defendant’s own evidence in chief per his witness statement, paragraphs9,10,11,12arerelevant: - 9. I state that the District Assembly then granted me approval to erect my workshop at the present site, that is between the Methodist Middle School and the Petrol Filling Station on 11th June 1991 attached hereto is a copy of the letter and same is marked asexhibit “2”. 10. I state that since the grant was made to me, I have been paying for my Permit Renewal. Attached hereto is a receipt for payment of Permit Renewal and same ismarked asExhibit “3”. 12 11. I state that the District Assembly is in charge of all the Physical Development of thearea. 12. I state that the District Assembly has the power to permit me to site my workshopat its presentlocation. 13. I state that it is based on the authority of the District Assembly that I sited my workshopat its presentlocation. Exhibit “I” the letter from the Sekyere East District Assembly dated 19th April, 1991 is addressed tohim. InExhibit “1”it is stated asfollows: - “APPLICATIONFOR SITE Reference to your letter on the above subject, you are required to submit the under- mentionedbefore yourapplicationcould be considered. (a) Site plan (b) DetailPlan ofthestructure. Considering Exhibit “1”, it is in response to an application for a site. The site area applied for was not disclosed. Hence the request for the site plan and detail plan of the structure for consideration. The site plan to which the application related was not produced in this case. Whether 1st defendant produced the needed site plan, same has 13 not been disclosed. It is suggestive that the site plan sought is to enable the Assembly know the area 1st defendant holds to enable the Assembly make a determination. The testimony per the paragraphs reproduced suggest permission to site, a workshop. Per theExhibit “2”aletterdated 11thJune, 1991,the Sekyere East District Assembly, granted permission to the 1st defendant to erect a structure between the Methodist Middle Schooland the PetrolFilling Station ofanareaof20x 30. In Exhibit “2”, it is stated as well that “the area granted you is on temporary basis and thatthe Assembly may request youtoremove such astructureany time the need arise”. 1st defendant tendered Exhibit “3” to support his assertion on payments of permit renewal. Exhibit “3” the receipt is dated 7th January 2021 covers payment by the 1st defendant for temporary structure permit renewal. This receipt does not support an allocation or grant of land but covers fees for a temporary structure to be put on the land. The Exhibits “1”, “2” and “3” considered together, the Sekyere East District Assembly permittedthe putting upofatemporarystructure ontheland. Does the Sekyere East District Assembly own the disputed area the 1st defendant occupies? 1st defendant in pursing his claim of being a grantee of the Sekyere East District Assembly subpoenaed the Assembly. Ebenezer Mensah Adomako, a Physical Planning officer oftheSekyereEast District Assembly was elected totestify. 14 In his evidence, he acknowledged the presence of the Methodist Church on the land and answered asfollows: - Q. The Methodist Church, Ghana haslandin the area in dispute. A. That isso. In the evidence DW1 led, he produced a revised Effiduase Planning Scheme which was admittedinto evidence and marked asExhibit “4”. The Exhibit “4” does not disclose when it was prepared and bears no signature of who prepared same. Granted that it is taken as coming from an official source, it gives the layout of Effiduase and identifies certain land mark features. When the Exhibit “4“, is juxtaposed with plaintiff’s Exhibit “A”, the area delineated for the Methodist Church is captured therein as one block and with the inscription Methodist school. There are also other features embedded therein but there is no description of same. It is however not difficult to find that, they reflect the school structures and other buildings belonging to thechurch as found in Exhibit“A”. Conspicuously, absent in this block is any other indication that lays or slightly suggests the presence of defendant’s activity or providing an area earmarked for a vulcanizing activity though an area for a fitter’s shop is disclosed lying outside the area marked Methodist School. Obviously, Exhibit “4” is not a plan of land area, belonging to the Sekyere East District Assembly. Infact, it does not allude to ownership of land. Itwill therefore be erroneous 15 for anyone to conclude that the Exhibit “4” represents land belonging to the Sekyere East District Assembly. A Planning Scheme is for its purpose, only discloses allocated zones in land to allow different types of development in different areas. The zones disclose the uses intended for each zone or area. With no evidence of ownership of land by SekyereEast District Assembly, theyhave noland togive 1stdefendant. There is overwhelming evidence of the presence of the Methodist Church onthe land as same is acknowledged by the 1stdefendant and DW1. No doubt it is the refusal ofthe 1st defendant and other defendants to vacate the land that birth the institution ofthe action. 1stdefendant inparticular prides himself ofbeing onthe land since 1991. In TWIFO OIL PLAINTATION PROJECT LTD. v. AYISI & ORS. [1982 -1983] GLR 881 the court held that a person in possession of land is presumed to be the owner unless a better title is proved. On the presumption of ownership in favour of the person who exercises acts of ownership over a property, Dordzie (Mrs) JSC in the case of DANIELRAMSEY ADJEIOKOE supra at page506ofthe reportheld that “The law presumes that a person who exercises acts of ownership over property owns theproperty. Section 48oftheEvidence Act, 1975(NRCD 323)provides: - (1). The thingswhich apersonpossesses arepresumed tobe owned by him. (2). A person who exercises acts of ownership over property is presumed to be the ownerofit”. 16 Possession no matter how long cannot materialized into ownership as it creates only presumptive ownership. In the circumstance of this case, the plaintiff has proved its root of title and its possession. The 1st defendant on the other hand established no root of title, but seeks to rely on the permission to erect his structure for an activity which is not even captured in the planning scheme he caused to be provided per the Exhibit “4”. His presence on the land for this length of time notwithstanding, the plaintiff’s superior title as proved should displace the presumptive title he clings to. The presumption holdsfavourably fortheplaintiff. The presence ofthe 1stdefendant onthe land thus, constitutetrespass. CONCLUSION In the circumstance of this case, I find that on the evidence adduced, the scale tilts in favour of the plaintiff’s version of title to the disputed land on the preponderance of probabilities. Accordingly, judgment is entered in favour of the plaintiff against the 1st, 2ndand 4thdefendants. Accordingly,the following ordersaremade: - i. Declaration that the plaintiff church owns all that place or parcel of land at Effiduase, Ashanti on Effiduase Stool land bounded by Fitters workshop, Petrol filling station, Damang suburb of Effiduase and land for proposed buildings and theCentralGovernment area. ii. GH¢10,000.00awarded as damagesfortrespass against the 1stdefendant. 17 iii. Recoveryofpossession ofthe land. iv. Perpetual injunction restraining the defendants, their agents, servants, assigns and workmen from entering, remaining upon, interfering or in any way dealing withthe land indispute. CostofGh¢10,000.00awarded against the1stdefendant. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT. LAWYERS KWAME A. BOAFO………………………………. FORPLAINTIFF ANDREW ACQUAYE …………………………. FORTHE 1stDEFENDANT 18