All For Christ Ministry v Kwame and Another (A1/9/2023) [2025] GHADC 223 (4 April 2025)

INTHE DISTRICTMAGISTRATE COURTHELDATNSOATRE INTHE BONOREGION ONFRIDAYTHE 4THDAY OFAPRIL 2025,BEFORE HIS WORSHIPAUGUSTINE AKUSA-AMONADDITIONAL RESPONSIBILITY ASMAGISTRATE SUITNO. A1/9/2023 ALL FOR CHISTFAITHMINISTRYPER FELICIASERWAA OFTWUMASIKROM PLAINTFF VERSUS 1. NANA KWAME 2. PHILEMONASANTE DEFENDANTS BOTHOFNSOATRE JUDGMENT: The plaintiff mounted the instant action in a representative capacity claiming the following reliefs against thedefendants jointly and severally; (a) Declaration of title and recovery of possession of all that plot numbered 1 Block ‘F’ Sector 5 lying and situate and being at Adwinsa Park, Nsoatre of which the defendantshave trespassed unto. (b) Generaldamagesfortrespass. 1 (c) An order for perpetual injunction restraining the defendants, their assigns, agents, servants, workmen and privies from entering or developing, alienating or dealing withthe plotofland in any manner. The defendants repudiated liabilityand mounted aspouted defence. THE PLAINTIFF’S CASE The plaintiff’s case is that she purchased the disputed plot of land from the Nsoatre Plot Allocation Committee in the year 2005 and offered a consideration of GH¢1,000.00. She submitted that she registered the land in the name of her church viz ALL FOR CHRIST MINISTRY hereinafter referred to as the church and was duly issued with relevant documents covering the said land. She avers that some few years ago, she visited her land and noticed that the defendants had trespassed onto a portion of her land by constructing a goat pen. After her initial protest, the defendants promised to remove the pen anytime she required that portion for use. The plaintiff explained that as and when she wanted to reclaim the land, the defendants refused to vacate with the excuse that the disputed portion belongs to the state. She therefore summoned the defendants before the Nsoatre Benkumhene’s palace but the defendantsfailed tohonourthe invitation, hence this action. 2 THE DEFENDANT’SCASE The 1st defendant, led by Benjamin Kusi Adomah Esq., testified that he acquired his building plot over twenty years ago from the late J. Ohene Afoakwa and has since put up a building thereon. He explained that the portion in dispute is a green belt earmarked and reservedfor roadconstructionand it isunder high tension electricity lines. He explained that because the proposed roadhis yet tobe constructed, he decided tofence the area with teak wood slabs. He averred that in 2023 he noticed that a strange person had come unto the land by dumping sand into where he had put up the wooden fence. He resisted the dumping of the said on the land and the person told him that the plaintiff had sold that greenbelt reserved for future roadconstruction tohim. He therefore fiercely resisted the unlawful sale of the disputed land because if he were to allow any development on the land, he would not be able to access his house as it would change the characterand nature ofdevelopmentinthe area. According to the defendant, when the matter first came to court, differently constituted, the trial Magistrate referred the matter to the Physical Planning Department of the Sunyani West Municipal Assembly for resolution. After visiting locus and later technical determination of the issue, the Head of the Physical Planning Department Gifty Nyarko submitted a comprehensive report and made her findings and recommendations. The locusreport wastendered in evidence. 3 The 1st defendant urged on the court to dismiss the suit on the grounds that the plaintiff lacked capacity toinitiate this action. It has to be placed on record that the plaintiff produced a witness who was an apprentice to the surveyor who first demarcated the area into building plots for and on behalf of the NsoatrePlot AllocationCommittee. Edward Nketia a member of the Afoakwa family who are the grantors of the 1st defendant testified asDW1. BACKGROUND: When this matter first came to court, the court in its wisdom immediately ordered the Physical Planning Department of the Assembly to intervene. Whilst the Department was carrying out the court decree, an intervener came to court to have the matter settled out of court. Settlement howeverfailed so trycommenced on5/07/24 and ended on11/10/24. Atthe end oftrial, the issuesthat callfor determinationare; (a) Whetherornot theplaintiff has capacity toinitiate the presentaction. (b) Whetherornot theland in dispute belongstotheplaintiff. 4 BURDENOFPROOF: Before I deal with the issues for determination I shall briefly touch on the burden of proof. In civil matters the general rule is that the party who in his pleadings or of his case, assumesthe onusofproof. See BANK OF WEST AFRICAN VS. ACKUN (1963) GLR 176. The civil onus is on a preponderance of probabilities. See Section 12 of the EVIDENCE ACT, 1975 (Act 323). Therefore, in the instant case, the burden lies on the plaintiff to convince the court that she had capacity to mount this action and that the subject matter of the instant action belongs toher. EVALUATIONOF EVIDENCE: The title of the suit is ALL FOR CHRIST FAITH MINISTRY PER FELICIA SERWAA OF TWUMASIKROM VRS. NANA KWAME & PHILEMON ASANTE. The title of the suit clearly shows that the plaintiff took the instant action in a representative capacity. For a person to take any action in court the person must first be a member of the Board of Trusteesofthatchurch. During cross-examination of the plaintiff by learned counsel for the defendant, he following ensued. Q. Do youpersonally ownthe disputed plot ofland. 5 A. It is mine. I bought it in the name of the church. That is All For Christ Faith Ministry. Q. Isthe plotofland yourpersonalpropertyorthe property ofthechurch. A. Itismy ownproperty. Q. Then I am putting it to you that you do not have capacity to institute this in the name ofthe church. A. I have capacity. I was a member of the church and I bought the land for the church but I amno longeramember ofthe church. The head pastoris in Berekum. Q. Inwhose name was the disputed land registered. A. The church. The responses of the plaintiff clearly show her confusion. If the land in dispute is the personal property of the plaintiff as she alluded to, then why did she sue in a representative capacity for the church she is no longer a member. In one breath she avers that she bought the land in the name of the church and in another breath she claims she personally owns the disputed land. Since it is evident that she took this action in a representative capacity for the church and she not being a member of the Board of Trustees of the church or not being a member of the church any longer she lacked the capacity toinstitute the instant action. 6 It is trite that only trustees of religious bodies registered under Trustees Incorporation Act 1962 (Act 106) may sue or be sued. In cases where a church is not incorporated under the law, the members may sue in a representative capacity over their property which may be in danger. But in the instant case the plaintiff was categorical that she is no longer a member of the church and that the Head Pastor is in Berekum wherein therefore lies her capacity to institute the instant action. Capacity goes to the root of every action and a person who is unable to satisfy the court that he has capacity to maintain an action in courtmay notevenbe heard atall. In locus report prepared by the Head of the Physical Planning Department of the District Assembly assisted the curt immensely. Amongthe findings and recommendations ofthe report,it was statedas follows; (a) The defendant Philemon Asante’s grounds claim (plot No. 114 Block ‘E’ Sector 5 - Nsoatre was consistent with the approved local plan of the area. The said claim according to the approved local plan of the area does not share boundary (fence line)with the plaintiff’s claimand hence thereis no possibility ofencroachment. (b) The ground claim of Nana Kwame represented by his building was inconsistent with his site plan. Thus his building was located on plot Nos. 86 and 87 Block ’F’ Sector5- Nsoatre. (c) The ground claim of the plaintiff (Felicia Serwaa) fell partially within High Tension Line and plot Nos. 86 and 87 Block ‘F’ Sector 5- Nsoatre. The report categorically 7 states that the plaintiff’s plot is present on the local plan but it is missing on ground due tofaulty demarcation ofplotsonthe area. From the foregoing it is clear that plot number 1 Block ‘F’ Sector 1 which the plaintiff is claiming as hers does not physically exist. This may account for her desperate desire to claim aparceloflandthatfalls under aHighTension Line. It is instructive to note that during further cross-examination of the plaintiff by learned counsel forthe defendantson02/08/24 the following ensued. Q. Areyouaware that partofthe disputed plot is under hightensionline. A. Idon’t know. Q. Since you don’t know, I am suggesting to you that that part of plot is under high tensionline and the otherpartis earmarkedfor theconstructionofaroad. A. Idon’t know. To these simple questions, the court expected the plaintiff to have simply denied or affirmed but her response “I don’t know” meant that she does not really know the nature and characteristicsofthe land she isclaiming as hers. However PW1 during cross-examination sharply contradicted the misleading evidence of plaintiff thus; 8 Q. Do youknowthe identity ofthe land indispute? A. Yes. Q. Do youknowthatpart ofthe plot liesunder high tensionline? A. Yes. Q. Are you saying you and Boakye (surveyor) negligently allocated plot of land that liesunder hightension line tothe plaintiff. A. Itwas notdone negligently eventhoughpartis under tension pole. Q. Are you aware that part of the plot is a proposed road leading to the 1st defendant’s house? A. Yesthere areroadsso it is possible thatpart haveblocked the road. The evidence ofPW1 is clearlyin conflict with thetestimony oftheplaintiff. In ATAA V. LADZEKPO (1981) GLR 3 218, it was held that a trial court should not gloss over whenever the testimony of a party on a critical issue is in conflict with the testimony ofhis own witness. 9 In all departments of this trial the plaintiff has failed to discharge the statutory burden of proving that her case is more probable than not. Her suit therefore lacks legal merit and is accordinglydismissed withcosts ofGH¢4,000.00awarded against her. H/W AUGUSTINEAKUSA-AM (DISTRICTMAGISTRATE) 10