THADDEUS AND ANOTHER VRS. AFELE (A1/05/2024) [2025] GHADC 10 (28 February 2025)

IN THE DISTRICT COURT AT VAKPO HELD ON THE 28TH OF FEBRUARY, 2025 BEFORE HER WORSHIP COMFORT ASAMOAH SARPONG [Mrs.], DISTRICT MAGISTRATE. SUIT No. A1/05/2024 1. AFELE THADDEUS 2. AFELE WILSON SUING AS THE HEADS OF FAMILY OF HAVOEDOME CLAN OF WOADZE PLAINTIFFS VRS NUSE AFELE DEFENDANT JUDGMENT The plaintiffs’ claims against the defendant are as follows: [a] An order from the court directed at the defendant for the immediate removal and relocation of the defendant’s church from the Takplodzi- Anfoetoe family land, situate, lying and bounded as follows: 1. On the Northern side by the property of Dzomeku 2. On the Southern side by the property of Vienyo 3. On the Eastern and Western is a stretch from the Ewe range. [b] Immediate ejection and removal of the illegal and unauthorised structures by persons known to the defendant and his church members from the said land. [c] A perpetual injunction restraining the defendant from encroaching onto other portions of the said land but to stick to his share of one [1] plot of the land allotted to the defendant by the family. [d] Another injunction restraining the defendant from seizing the portion of land allocated to the 2nd plaintiff’s son Prince Afele. The plaintiffs attached particulars of claim and even an Exhibit and the defendant responded to it by filing Statement of Defence. The plaintiffs were then ordered to file their pleadings. 1 The plaintiffs by their joint Statement of Claim averred that the land in issue is a family property situate at Tokplodzi, which is part of the Havoedome- Anfotoe clan land, and lies at the western and eastern stretch of the Ewe range and on the south and north by the properties of Vienyo and Dzomeku respectively. That the family drew a constitution for themselves and it captured the genealogy of the Havoedome clan through the efforts of Herman Komi Afele, when he was appointed the head of the family and before his demise. That the constitution provided that each member of the family would be allocated one plot each on the Tokplodzi clan land and which was the only portion of land best suitable for building. Family members were not to engage in commercial farming on the land unless with prior approval by the elders of the family. The plaintiffs aver that in 2005 the defendant by his own action captured almost the entire Tokplodzi land illegally by himself and used it for his religious activities and allocated portions to his church members, depriving the family members from having access to their bona fide portions. This action of the defendant caused their elder brother and head of family then Herman Komi Afele to write a letter to the defendant [Exhibit ‘’A’’] in July 2007 directing the defendant to relocate the church from the land in dispute to another family land at a different location but the defendant refused. Again, Herman in August 2007 wrote another letter [Exhibit ‘’A1’’] challenging the defendant to produce evidence that the disputed land was granted to the defendant for ever for his church activities. The defendant could not produce any evidence. That the defendant has taken illegal and forceful means to take unauthorised possession of the family land to build a church camp to cover almost the entire family land. That in July 2024, a plot of land was allocated to the 2nd plaintiff’s son and the defendant encroached and seized it from the said son. The defendant was summoned before the Chief of Woadze but the defendant refused to appear before the chief. That as head of family the 1st plaintiff sees it as his duty to protect their property from being taken by a single individual and not to oversee its dissipation. The instant action is thus to protect the family property by seeking an order of the court for the removal and relocation of the defendant’s church to another location, a perpetual injunction against the defendant from encroaching on the family land but to stick to his one plot of land. 2 The plaintiffs annexed to their statement of claim Exhibit ‘’A1’’, a letter written by Herman Komi Afele when he was the head of the family before his demise, to the defendant. Exhibit ‘’A2’’ is another letter by Herman to the 1st plaintiff. The defendant in his Statement of Defence stated that he was conducting his church activities at home and one day in 1993 Godval Afele suggested to him to get a portion of their family land to conduct his church activities there. That Michael Afele and Godval accompanied him to see Peter Afele the then family head who directed Peter Afele to demarcate a portion of their family land , the land in issue to the defendant. That the demarcation was done in two folds; the first one in 1993 where Godval Afele only showed an unmeasured portion for the defendant to build his chapel in the presence of the 2nd plaintiff and then the second allocation was done in 1994 where a proper measurement of 2.5 acres of land was granted to him by Godval. That Godval before his death saw how the church was rapidly growing and gave additional portions of the family land to him to build structures where other church elders could lodge. That after 20 years after the demise of Godval Afele the plaintiffs who were members of his church but left have started fighting him with numerous issues. The defendant aver that he built a shed purposely for prayers on a portion of the land that Godval demarcated for him and named the place as Todzi and operated it until 2019 when a flood destroyed it and so he decided to use the place for farming. That, in 2020 the plaintiffs attempted to seize that portion for the 2nd plaintiff’s son Prince Afele. That, the matter was sent to the chief of Woadze Togbe Apende IV for settlement. The chief’s decision was in the defendant’s favour. The defendant also states that he did train the 2nd plaintiff’s son as a prophet with the intention that Asiwome Afele would take over from him as the leader upon the defendant’s demise, but he changed his mind and rather trained his daughter due to Asiwome’s mismanagement of two branches and his sexual harassment of the female members. That the plaintiffs’ action is motivated by malice and they want to take possession of the entire Tokplodzi land where the church is located. That the 2nd plaintiff was the one who replied the letters Herman wrote to the defendant defending the defendant that he also has right to occupy the family land and that Herman should give the defendant a different portion of land to relocate to. The defendant concluded by stating that his past and present occupation on the Tokplodzi land was legally granted him by the past heads and top elders of the Havoedome- Afele clan, and that the plaintiffs have no capacity to cause the instant action against the defendant and prayed the court to dismiss the action. The issues for determination are 1. Whether or not the grant of the disputed land to the defendant was a gift or a licence. 2. Whether or not the land given to the defendant measured two and a half acres. THE CASE FOR THE PLAINTIFFS The plaintiffs in their joint witness statement and through the 1st plaintiff testified that the land in dispute is their family property. That the defendant about twenty years ago went onto the family land and illegally has built permanent structures on the land, using some for church activities and has allocated portions of the land to his church members for building , and has prevented family members from accessing the family land. That the head of family then Herman Komi Afele [late] during his life time wrote to the defendant in 2007, directing defendant to relocate his church since the defendant alone could not capture the family property for his private use but all to no avail. That the late Herman again challenged the defendant in another letter [Exhibit ‘’A1’’] of his legal ownership of the disputed land but the defendant could not produce any proof of his ownership of the disputed land. That the defendant for a long time refused to consider the interest of the family and keeps occupying and depriving family members of their right to enjoy the family property. That the defendant refused to have the matter settled hence the suit claiming the reliefs as endorsed on the writ of summons. In cross- examination the defendant put to the plaintiff that Godval Afele and Peter Afele gave him two acres of the family land to build his church. The plaintiff rejected that assertion and stated that in 2007 the family asked for proof of his ownership of the land the defendant could not produce any evidence. The plaintiff added that their late brother Herman before his demise asked the defendant to vacate from the family land as evidenced by the letters including Exhibit ‘’A1’’ he wrote to the defendant but the defendant turned a deaf ear to the family’s request and started threatening family members from going onto the disputed land. The plaintiff admitted that Godval Komikuma, Peter Afele and Michael Afele gave the disputed land to the defendant but it was without proper consultation with the family, and that was why Herman asked the defendant to move his church from the family land. The witness said their action is not motivated by malice because they have left the defendant’s church as members. They are protecting the family property. The plaintiffs’ did not call any witnesses. THE CASE FOR THE DEFENDANT The defendant testified and called one witness. The defendant per his witness statement testified that the land in dispute is a family property and that in 1993 the then head of family Peter Afele together with two principal elders of the family namely Godval Afele and Michael Afele agreed to grant him a portion of their family land to carry out his religious activities. Godval together with the 2nd plaintiff took him to the land and allocated portions of the family land to him where he has been operating his church till date. That the elders told him he as a family member was also entitled to have equal access to the family land just as any other member of the family. That the land was not sold to him and so there was no documentation to that effect. That the 1st plaintiff has three plots of land on which he has built on one plot, planted coconut on another and given the third one to his wife. The defendant states that the plaintiffs’ action is motivated by greed simply because the defendant failed to act on their selfish directives to conduct his church activities, and for which reason the 1st plaintiff resigned from the church as an elder and began to team up with the 2nd plaintiff to fight him over his possession of the disputed land. The defendant thus prayed the court to dismiss the plaintiffs’ action with heavy cost. In cross- examination the defendant said the three heads of the family, Godval, Peter and Michael gave him the land in dispute. The defendant admitted that the two gates of the family should come together to grant him the land but at that time only the Afele side that was the head and controlling the land and everything. He rejected the assertion that the two gates of the family granted a portion of the family land to the Evangelical Presby church. He denied that one Ayim William was the head of the Ayim gate when the Afeles granted him the land in dispute. The defendant rejected the plaintiff’s assertion that Godval, Peter and Michael denied granting him two acres of land for his church. The plaintiff put to the defendant that Godval gave his plot of land to the defendant for his prayer camp for some time but he did not gift same to the defendant. 5 The defendant rejected that assertion. The defendant admitted that Herman Afele wrote to him to vacate from the land but he did not because the plaintiffs then being members of his church wrote to Herman that he the defendant is a family member and so he was also entitled to the use of the family land. In answering questions by the court the defendant finally admitted that the letter dated 9th July, 2007 was addressed to him but stated that it was the plaintiffs who wrote the response to Herman. The defendant’s witness is Togbe Apende IV, Acting Paramount Chief of Woadze. The witness’s testimony per his witness statement is that in June 2020 the plaintiffs summoned one Mr. Akpe Adzamoa before him and his chiefs over their family land. The said Adzamoa told them it was the defendant who gave him the land to build and when the defendant was invited he did confirm that Mr. Adzamoa was one of his topmost church elders and so he gave Adzamoa a portion of his own land to build. That the land the defendant occupies was given to him by their past family heads purposely for church activities. The plaintiffs disagreed with the defendant that the family gave the defendant the land. That the panel visited the locus and met two sons of the plaintiffs who confirmed that to the best of their knowledge the defendant is the owner of the disputed land. Upon their return the chiefs gave their award in favour of the defendant. ANALYSIS OF THE EVIDENCE AND THE APPLICATION OF LAW In a civil suit a party has an obligation to produce sufficient evidence in persuading the court to give a ruling in their favour. Section 10[1] provides that the burden of persuasion is the obligation of a party to establish to a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10[2] provides that the burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non – existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11[1] provides that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against that party on the issue. Then section 12 explains proof by the preponderance of the probabilities. Section 12[1] states that the burden of persuasion requires proof by a preponderance of a probability. Section 12[2] ‘’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. There is no gainsaying that the land in dispute is a family land. The parties are siblings. It is a fact that the family of the parties have two branches; the Afele branch and the Ayim branch. It is also a fact that the defendant started his church as a prayer group or prayer meeting from home. The defendant states at para.5 that as a pastor he carried out his church activities at home including performing deliverance and healing services for the sick. Then one day in 1993 Godval suggested that he be given a portion of the Topkplodzi land so that he could build a church camp. The issue now is was the grant a gift or licence? I believe that the defendant was carrying out too much nuisance in the house that the siblings had to get him a place for him to carry out his religious activities. I can image the challenges of the other occupants in the house to endure so much noise either in the day or at night when deliverance sessions are held. To mitigate their suffering the Afele brothers, or I should say, the Afele heads of family decided to give the defendant a place on their family land for him to carry out his deliverance and all. It is clear that the land was not sold to the defendant, neither was it a gift to him. According to the defendant he was taken to the land by Godval and the 2nd plaintiff to allocate a portion of the land to the defendant where he could build his chapel. That was in 1993 and Godval showed him an unmeasured piece of land to build his chapel. And that is where he has been operating his church till date. At para. 7, the defendant states that in 1994 Godval Afele demarcated two and a half acres of land and handed it over to him, this time without the other two brothers. From the evidence what the Afele brothers granted to their brother the defendant was a licence or gratuitous tenancy. According to Prof. Kludze in his Ewe Law of Property, ‘’gratuitous tenancies are usually granted to relatives and friends of the family by allowing them free use of the land; it may also be granted to any other person. It is then said the land is giving to the grantee ‘’to eat on’’ or du nu le edzi. It is apt to be confused with an outright gift because of the absence of the obigation on the tenant to pay any form of rent, particularly if the tenancy subsists over a considerable time. It is, however, not a gift and the paramount title to the land is not transferred’’, [See page 249]. The defendant was taken to the family land and was shown an unmeasured portion to build his prayer camp, [para.7 of the Statement of Defence]. I don’t believe the brothers expected the defendant to put up any huge structure, after all he was carrying out his religious activities in the house, possibly in his room. I therefore believe that the defendant was rather given the one plot of land belonging to Godval. And that was in 1993. This grant was not a gift but it was a licence to the defendant to operate his church on the land. Now the defendant says there was a second grant of two and a half acres of the land to him in 1994 by Godval Afele alone. This statement can be found at para. 7 of the Statement of Defence. Yet in cross examination the defendant rejected the plaintiff’s assertion that Godval, Peter and Michael Afele denied granting him the two acres of land. It is clear that the three brothers did not grant the defendant the two and a half acres of the land. I am also of the opinion that the defendant is claiming that Godval granted him the two and half acres now because Godval is no more to deny or confirm the defendant’s claim. In the case of Moses V Anane [1989-90] 2 GLR 694, CA, the court referencing Brent M.R. in an English case of In re Garnett; Gandy V Macaulay [1885] 31 ChD. 1 stated that a claim against a deceased person should be scrutinised with the utmost suspicion. The Garnett quote is reproduced below: ‘’The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration]becomes absurd’’. Proof by such evidence must be strict and convincing. The earlier grant in 1993 was with the consent of the three Afele brothers. So why was there no such discussions and consent by the same brothers if a greater portion was going to be given to the defendant? The defendant in my opinion took undue advantage of his being a family member to appropriate portions of the family land without proper grant. As a family member the defendant is entitled to a portion of the land but not to grab it in such a manner that would deprive other family members their right to the use of the land. He the defendant is granting portions of this land to his church member to put up buildings without consent of his family. In August 2007 Herman Afele [deceased] the then head of family wrote to the defendant [Exhibit ‘’A1’’] reminding the defendant that the land in dispute is a collective property for the Afele and the Ayim families and that no part of the land had ever been granted by one family without the involvement of the other. Herman Afele challenged the capacity of the Afeles to gift the disputed land to the defendant without the consent and the concurrence of the Ayims. He also stated in that letter that Gottvwald Afele alone used to pray in the same area the defendant is holding his prayer meetings and Gottwald might have told the defendant to continue his prayer meeting there before he died. ‘’But he definitely did not give you any piece of our land which he knew very well did not belong to him alone; hence he did not produce any documentation with regard to the so called piece of land the measurement of which we asked you to produce but you failed to do so’’. Herman continued that Michael Afele also had his own church and never attended the defendant’s prayer meeting , neither did Michael give the defendant the land because in 2004 Michael told him so when there was a discussion over the defendant’s prayer group activities on the family land. This discussion prompted the family to have a guideline entitled ‘’Agreement on land use for Religious activities’’. ‘’I refer you to the copies of that paper which were sent to the elders and yourself a few years ago even before he died’’. Herman continued that in April, 2004 when the elders of the family asked the defendant to mention the size of space he alleged was given him the defendant never responded to that enquiry. Herman questioned the defendant if he was building a chapel and houses on the family land to house his church members who came from the surrounding villages. The totality of the letter was that the family rejected the defendant’s claim that those three brothers gifted the land in dispute to the defendant and their attitude against the defendant building his private houses on the land to house his followers. The grant of the land to the defendant was not a gift that was why the Ayim family which is a co- owner of the property was not consulted for their consent for the defendant to house his prayer camp on the family land. This is the point Herman was making in his letter that the Afele branch alone could not make a permanent grant to the defendant without the consent and concurrence of the Ayim family. Interestingly when the court asked the defendant what his reply to the letter was the defendant said the plaintiffs were responsible for writing replies to Herman, feigning any knowledge of what they wrote. D.W.1 testified that he and his elders settled the matter and even went to the locus in quo. What the panel failed to do was to determine the nature of the grant. If it was a gift to the defendant, was it sanctioned by the head of family and the principal members? Did the defendant tell the chiefs he offered thanks in the presence of witnesses as required by custom? I believe the chief and his elders inadvertently did not question the defendant the nature of the grant. It is not just that the defendant is a family member and thus entitled to the use of family land. It is the use of the land for a religious activity which is a private venture by the defendant. The church is a body corporate limited by guarantee. Therefore the church must take steps to acquire its own property. The land in issue is family property, and per the evidence the family has not gifted any piece of land to the church through the defendant, the founder. The church through the defendant was granted a licence to operate on a plot of land on the defendant’s family land. And it does not matter how long the church stays on the land the grant cannot transform into a gift. In conclusion and on the balance of probabilities, it is my opinion that the defendant was granted one plot of land as a licensee to carry out his religious activity on the family land. There is no proof that the two and a half acres of land in dispute was granted to the defendant as a licence or a gift. His appropriation of that portion of the family land is unlawful, and thus has no capacity to alienate same without recourse to the Tokplodzi- Anfoetoe family. Any allocation of the family land situate, lying and bounded by the properties of Dzomeku, Vienyo and the Eastern and the Western stretch of the Ewe range to other persons by the defendant is void. Such persons must yield vacant possession to the plaintiffs’ family. By setting up an adverse title to the land in dispute, the defendant by his conduct has brought the grant of the land the three brothers made to him to an end. The grant is determined. According to Professor Kludze in his book [supra] gratuitous tenancy has its basis in blood relationship or friendship but it may be determined for ingratitude, disobedience or bad behaviour towards the grantor or for committing waste. The defendant has shown ingratitude to his family as well as committing waste on the land by allowing his church members to put up structures on the land in dispute. The defendant is therefore liable to yield vacant possession of the land in dispute to the Tokplodzi- Anfoetoe family. A perpetual injunction is granted against the defendant from any interference on the disputed land whatsoever apart from his portion of the one plot given him by Godvall. The defendant is also perpetually restrained from preventing the 2nd plaintiff’s son from the quiet enjoyment on the land as a member of the family. Cost of Gh¢5,000.00 against the defendant. ………………SGD………….…… H/W COMFORT ASAMOAH SARPONG [Mrs.] (DISTRICT MAGISTRATE)