Setsoafia and Another v Awumey (A9/10/23/A9/9/23) [2025] GHADC 165 (25 March 2025)

IN THE DISTRICT COURT OF GHANA, NGLESHIE AMANFRO DISTRICT COURT HELD ON 25TH MARCH, 2025 BEFORE HER WORSHIP EMELIA K. ABRUQUAH ESQ., (MRS). SUIT NO. A9/10/23/A9/9/23 1. JAMES SETSOAFIA PLAINTIFFS 2. ROYAL CITY AMBASSADORS CHURCH BOTH OF GALILEA VRS REV AIKINS AWUMEY DEFENDANT PIG FARM PLAINTIFF PRESENT DEFENDANT PRESENT JUDGMENT The Plaintiffs have filed a Writ of Summons and Statement of Claim before this court seeking the following reliefs: 1. A declaration that the Defendant has breached the terms of the license granted him by the 1st Plaintiff and therefore of no effect. 2. An order of the Honourable Court entitling the 1st Plaintiff to GHS 20,400.00 representing accumulated rents owed by the Defendant on the breached license 1 3. An order of the Honourable Court directed at the defendant to refund the rent paid by the 2nd Plaintiff for the period between 2021 and 2022 in respect of the land upon a false tenancy. 4. An order for damages for fraudulent conduct by the Defendant 5. An order for costs inclusive of legal fees Background of Plaintiffs’ Case The 1st Plaintiff claims that he is the rightful owner of the disputed land and resides on part of the property. In 2004, he entered into an oral agreement with the Defendant permitting him to occupy the land under a license agreement to set up canopies for church purposes. Under this arrangement, the Defendant was required to pay GHC 100.00 per month for the license. However, despite the agreement, the Defendant failed to make payments, accumulating outstanding rent amounting to GHC 20,200.00 from March 2004 to December 2020. Without the knowledge or consent of the 1st Plaintiff, the Defendant transformed the temporary canopy structures on the land into a permanent concrete structure for continued church use. In 2013, the Defendant further transferred possession of the land to the 2nd Plaintiff under a tenancy agreement. The 2nd Plaintiff paid the Defendant GHC 37,200.00 for an eight-year lease, under the belief that the Defendant had lawful authority to lease the land. The Plaintiffs argue that this was a fraudulent act since the Defendant had only a license and no right to create a tenancy. Fraudulent Conduct and Breach of Agreement The Plaintiffs outline several instances of fraud committed by the Defendant: 1. The Defendant failed to pay the agreed-upon license fees to the 1st Plaintiff. 2. He misrepresented himself as having the authority to lease the land to the 2nd Plaintiff. 2 3. He collected rent payments from the 2nd Plaintiff for a property he had no legal authority over. 4. Even after the expiry of the initial eight-year tenancy in 2020, the Defendant continued to demand and collect rent from the 2nd Plaintiff for 2021 and 2022, amounting to GHC 20,400.00. The Plaintiffs claim that the Defendant’s fraudulent activities were deliberate and calculated to deceive them for personal gain. The 1st Plaintiff, who is illiterate and unfamiliar with legal documentation, was further misled by the Defendant’s false representations and altered documents. The 2nd Plaintiff only discovered the Defendant’s lack of ownership after interacting with the 1st Plaintiff. According to Rev. Aikins Awumey, the Defendant, he states that in 2004, the 1st Plaintiff, out of gratitude for being healed at the church, voluntarily offered a portion of his undeveloped land in Kasoa for church activities without demanding rent. With the Plaintiff’s consent, the church erected a canopy in 2007 and later constructed a permanent structure between 2010 and 2011. As disputes arose, the church and the 1st Plaintiff agreed that the building would be rented out, with a portion of the rent paid to the 1st Plaintiff. This arrangement was formalized in 2018 through a Memorandum of Understanding. The church paid agreed "tokens" to the Plaintiff from 2013 to 2021. However, in 2022, the Plaintiff rejected the token and reported the matter to Rent Control, seeking to recover possession. A valuation of the building showed an investment of GHS 71,442 by the church, with an outstanding amount of GHS 30,000 yet to be recouped. The Rent Officer ruled that the Plaintiff either pays the Defendant this amount or allows the church to occupy the premises for 27 months at GHS 900 per month, an arrangement the Plaintiff initially agreed to. However, he later initiated court proceedings. 3 The Defendant argues that he owes the Plaintiff nothing and that the Plaintiff seeks to unjustly benefit from the church’s investment. The Defendant also states that the 2nd Plaintiff, the current tenant, has failed to pay rent since 2023, citing renovations carried out without the Defendant’s consent. Rent Control ruled that the renovation cost should be shared, but the 2nd Plaintiff has refused to pay the outstanding balance. He as well counterclaims for the following a. An order directed at the Plaintiff to pay to the Defendant the sum of GHS30,000 being the outstanding value of the disputed property and the three electricity poles with its high voltage internet cables or in the alternative b. An order that the defendant continues to be in possession of the disputed property till Defendant is done recouping his investment made in developing the property. ISSUES FOR DETERMINATION The court is tasked to deal with the following issues a. Whether or not the arrangement between the first plaintiff and the defendant was a lease or license agreement. b. Whether or not the 1st Plaintiff was aware and consented to the setting up of the church on the Property c. Whether or not the Defendant is entitled to be reimbursed for the investments made in putting up the church d. Whether or not the 2nd Plaintiff is entitled to a refund e. Whether or not the relief for damages as a result of fraud will lie. 4 It is trite that in civil cases, that the burden of proof lies on the party who in his/her pleadings or writ raises issues essential to the success of his/her case. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S.C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C.A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, 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). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that 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 more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, 5 on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” I reference Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890 where the Supreme Court held as follows; ’’In law, where evidence is led by a party and if that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." ISSUE ONE The central issue before the court is the nature of the agreement between the parties with respect to the land. The 1st Plaintiff contends that he granted the Defendant an oral license in 2004 to use his land for the purpose of erecting canopies for church activities, while the Defendant argues that the arrangement amounted to a gift and in another breathe, he said it was a lease. This analysis examines the key elements of a license and demonstrates whether the agreement, as supported by case law and factual circumstances, constitutes a license or a gift or lease. Oral agreements in Ghana are generally enforceable if they satisfy the essential elements of a valid contract. In this instance, the 1st Plaintiff’s account confirms that he permitted the Defendant to erect canopies on the land solely for church purposes. The key distinguishing factors that define a license under Ghanaian law include: 1. Permission Granted by the Landowner: The 1st Plaintiff, as the owner, granted the Defendant permission to use the land. This 6 permission is personal, meaning it does not transfer any proprietary rights or interests. Unlike a lease, where the tenant gains an interest in the property, a license is simply a right to use the property under specific conditions. 2. Absence of Exclusive Possession: A hallmark of a lease is exclusive possession, which is absent here. The Defendant’s use of the land was subject to the ongoing control of the 1st Plaintiff, who retained the right to access the property at any time. This lack of exclusive possession is consistent with a license, which does not confer a legally protected interest in the land. 3. Revocability: Licenses are generally revocable at the will of the landowner. In the present case, the Defendant’s occupation was entirely contingent on the 1st Plaintiff’s ongoing consent, which he could withdraw at any time. This revocable nature reinforces the conclusion that the agreement was a license, not a lease, else the defendant would not have said that if the first plaintiff wants his property back, then he should pay for the work done on the property 4. Specific Purpose: The license was granted for a specific, limited purpose, thus, to facilitate the erection of canopies for church activities. The scope of the Defendant’s rights was strictly confined to this purpose and did not extend to any general or permanent interest in the land. So, in this regard, any improvement done on the land was for the defendant’s own comfort and can not hold the first plaintiff to it when he is asked to move out of the land. This agreement as purported by the defendant to be exhibit one, lacked a fixed term or defined termination period, which also distinguishes it from a lease. The absence of such terms indicates that the parties did not intend to create an enduring, exclusive arrangement. Instead, the 7 arrangement was based on the 1st Plaintiff’s personal permission, which could be revoked at any time. While the Defendant asserts in another breath that the arrangement was a gift, his conduct and the specific nature of the permissions granted suggest otherwise. I say so because a gift would imply an irrevocable transfer of ownership or a permanent transfer of rights, neither of which occurred in this case. The Defendant’s reliance on the alleged “gift” does not align with the facts because if it were a gift to him, why did he seek the first plaintiff’s permission as he alleged he did before renting the place out to the second plaintiff and also why an agreement to be paying the first plaintiff a token. This clearly demonstrate that the 1st Plaintiff retained control over his property and that the Defendant’s use was limited and revocable at anytime. Based on the analysis of the key elements of a license above, it is evident that the agreement between the parties was a license and not a lease or a gift as purported by the defendant. The Defendant’s rights were derived solely from the 1st Plaintiff’s consent, without any transfer of proprietary interest. Therefore, the agreement does not confer the enduring rights typically associated with a lease or gift, and the Defendant’s occupation of the land was limited to the narrow scope of the license granted. Therefore, his acts of the place was not intended to hold the landlord to it as he did what he said he did for his own comfort and convenience ISSUE TWO One of the central issues in this dispute is the Defendant’s claim that he had the 1st Plaintiff’s consent to lease out the church building he constructed on the 1st Plaintiff’s land to recoup his investment. However, this court has determined that, by the nature of the underlying agreement, it was a license that was given to the Defendant so he therefore acquired no proprietary rights in the land as a licensee to have rented the structure out to a third party. Under Ghanaian property law, the agreement between the 1st Plaintiff and the Defendant was a license, not a lease. A license is a personal, revocable permission granted by the landowner for a specific purpose, 8 without conveying any legal or equitable interest in the land. The court in The Republic v. Bank of Ghana And 5 Others Ex Parte: Benjamin Duffour reaffirmed that a license merely permits actions on the land that would otherwise constitute trespass, and that no proprietary rights are transferred under such an arrangement. In line with the legal maxim nemo dat quod non habet—no one can give what he/she does not have—the Defendant, lacking any proprietary interest, could not lawfully transfer or assign any rights in the land to a third party, in this case, the second plaintiff, it calls for immediate revocation of the licence. In 2013, the Defendant purported to sublease the property to the 2nd Plaintiff and proceeded to construct permanent structures on the land. These actions were undertaken without the knowledge or consent of the 1st Plaintiff the land owner. Since the Defendant was only a licensee, his rights were limited to the narrow, revocable permission to use the land for church purposes. Ghanaian laws do not vest a licensee with the authority to assign, sublet, or make permanent alterations to the property. By his act of subletting the property and also erectting permanent structures on it, the Defendant exceeded the limited scope of his rights under the license. This not only breached the terms of the agreement but also constituted fraudulent misrepresentation, as he attempted to convey an interest in the land which he did not possess. The Defendant further contends that the 1st Plaintiff consented to such actions based on Exhibit 1 (a Memorandum of Understanding) and Exhibit 2 (a statement of account of the so-called tenancy agreement). However, a close examination of the MOU reveals that it contains no express provision authorizing the Defendant to lease the property to the 2nd Plaintiff. An MOU typically outlines preliminary intentions and, unless it incorporates all essential contractual elements with a clear intention to be legally binding, it does not confer enforceable rights. In this case, the MOU fails to modify the original license or grant the Defendant any additional authority to act as a lessor. The least talked about those exhibits one, two and three the better, why do I say so, a simple glance at three signatures of the first plaintiff on those three documents, one does not need 9 a forensic examination to know that none of them is the same as the other, more so none of them resemble the first plaintiff signature on the Rent Office form that the first plaintiff admitted to be his signature. So where from those supposed different signatures of the first plaintiff, I believe your guess is as good as mine. The above notwithstanding, the Defendant was merely a licensee without any proprietary rights, therefore subletting the property and constructing permanent structures was unauthorized and contrary to both the express oral terms of the license and established Ghanaian property law. The court is therefore of the view that the Defendant acted beyond the scope of his limited rights and his acts are therefore of no effect on the first plaintiff’s right of possession. ISSUE 3 The Defendant contends that his investment of approximately GHS 71,442 in constructing a church building on the 1st Plaintiff’s land should be recouped. However, the fundamental issue is whether the Defendant had any legal authority to undertake such permanent improvements, and consequently, whether he is entitled to compensation for his outlay. The court has already stated that the Defendant’s occupation of the land was strictly subject to the 1st Plaintiff’s continued consent. Under the established agreement, the Defendant was granted permission to erect only canopies on the land for church purposes. Importantly, this permission was personal, revocable, and did not confer any proprietary or leasehold interest in the property. As a licensee, the Defendant was not endowed with the right to alter or enhance the land without the explicit consent of the true landowner. The evidence before the court demonstrates that the Defendant unilaterally initiated permanent construction on the property, under Ghanaian property law however, any improvements made by a licensee on land for which they lack legal entitlement, do not automatically grant the licensee 10 an interest or right to recover any costs incurred in putting up those structures. Instead, the owner, being the 1st Plaintiff, retains the right to reclaim possession of the land at any time. Furthermore, in instances where a licensee makes unauthorized improvements, the law typically limits any recovery to equitable relief measures, such as claims for unjust enrichment or restitution. These principles are intended to prevent a licensee from benefiting at the expense of the landowner when the underlying permission to use the land does not include the right to alter or develop it. The Defendant’s subsequent subleting of the property to the 2nd Plaintiff further underscores his overreaching; since he never possessed any proprietary interest, his actions in transferring rights are therefore inherently unlawful. Given these circumstances, the Defendant cannot claim compensation as a matter of right for the construction of the church building. His investment was made outside the bounds of the legal authority conferred by the license. The absence of any express authorization to make permanent alterations means that the Defendant’s improvements do not entitle him to recoup his costs through proprietary claims. The court is of the opinion that any improvement done was for the defendant’s own comfort and convenience and so cannot ask the first plaintiff to either pay him GHC30,000.00 or be allowed to recoup his investment. See Acquah Vrs Oman Ghana Trust Limited (1984-86) 1 GLR, 150. So any potential remedy would be confined to an equitable adjustment, which, in this case, is not supported by the facts and the governing law. I therefore hold that since the defendant’s actions exceeded the scope of the license granted by the first Plaintiff, he is not entitled to recoup his investment as a matter of right. The Defendant’s counter- claim for GHC30,000.00 or the alternative relief is therefore denied. ISSUE 4 The issue at hand is whether the Defendant must return the rent monies paid by the second Plaintiff and whether the first plaintiff is entitled to an accumulated rent of GHC20,200.00. While 11 it is conceded that the Defendant was not the rightful person to whom rent should have been remitted under the true ownership of the land, the 2nd Plaintiff nevertheless enjoyed the benefits of possession and occupation of the property up to date. The critical question is whether the Defendant’s collection of rent gives rise to an obligation to refund those amounts. Fundamentally, rent is the consideration paid in exchange for the right to occupy and use property. Even though the Defendant lacked a proper proprietary interest being merely a licensee, the second Plaintiff’s receipt of possession and the use of the premises constitutes a benefit from which the Defendant derived consideration, he the second Plaintiff’s possession of the property and enjoyment of its benefits effectively absolve the Defendant from the obligation to return the rent, as such payments were rendered as consideration for that occupancy by the second plaintiff. Furthermore, it is important to note that even if the Defendant’s authority to sublet was flawed, the fact that the 2nd Plaintiff continued to occupy and benefit from the property under the arrangement indicates that he received a valuable benefit. Equitable principles such as unjust enrichment require that a party who receives a benefit should not be compelled to disgorge it unless the benefit was obtained through improper conduct. Here, the Defendant’s sublet and collected from the second plaintiff rent, this does not, in itself, establish that the second Plaintiff is entitled to a refund especially in the absence of evidence that he was misled or that the rent was grossly excessive. The second plaintiff is therefore not entitled to a refund of the rent paid to the Defendant unless clear evidence of misrepresentation or overpayment is demonstrated, the relief sought by the 2nd Plaintiff for a refund must fail and it is hereby rejected. On whether the first plaintiff is entitled to a refund of GHC20,200.00 as an accumulated rent, the court has already held that the defendant has no authority, being a licensee to sublet the property out for a gain. This is what transpired when the defendant was being cross examined by counsel for the plaintiff 12 Q. As an educated person, what is the meaning of the phrase, the first plaintiff is my landlord? A. I have accepted him as my landlord Q. How much in all have you paid to the first plaintiff as your landlord for your tenancy on his land? A. I have not paid anything because there is no rent agreement between us but when we agreed to rent that church premises, each year rent, a token was given to him, which was GHC4000.00 Q. Have you calculated the total sum of money you collected from the second plaintiff? A. Yes Q. How much is the total sum? A. GHC56,000.00 but there were expenses out of which GHC4000.00was given to the landlord and ghc1,192.00 was deducted by the second Plaintiff for renovation. From this discourse, assuming without admitting, the Defendant wants the court to believe that he and the first Plaintiff entered into an agreement to lease first Plaintiff’s land to the second Plaintiff without agreeing on what should be given to the first Plaintiff. So the first Plaintiff signed the supposed agreement for the defendant to rent the property out to the second Plaintiff so that he will be given just a token whilst the Defendant takes the chunk of rent? I don’t think that was what happened else first Plaintiff wouldn’t have summoned the Defendant before the chief, then to the rent office and finally to this honourable court. It is therefore the opinion of the court, that the Defendant rented the first Plaintiff’s property out without his consent, hence the various steps 13 taken to retrieve his property. The first Plaintiff is therefore entitle to the accumulated rent he is demanding from the Defendant. However, the court being a court of justice will not gloss over what the Defendant did on the land in terms of improvement. On the preponderance of the probabilities, I find the Plaintiffs case more probable than not. In the circumstance I enter judgment in the first plaintiff’s favour as follows: 1. I declare that the Defendant has breached the terms of the license granted him by the Plaintiff and therefore it is of no effect and ceases to exist. 2. The court in consideration of the amount received by the Defendant from the second Plaintiff as rent of the first Plaintiff’s property, I order that the defendant should refund to the first Plaintiff GHC 12,000 being part of the rent received from the second Plaintiff and for breach of the license granted him. 3. I award damages of 10,000 in favour of the first Plaintiff as against the defendant 4. Finally costs of 2000 is awarded in favour of the first Plaintiff as against the Defendant (SGD) H/W EMELIA K. ABRUQUAH (MRS) (MAGISTRATE) 14