REGISTERED TRUSTEES OF THE SDA CHURCH MILE 9 VRS. ACHEAMPONG AND ANOTHER (A1/06/24) [2024] GHADC 576 (12 November 2024)

CORAM: HER WORSHIP EUGENIA ADUBEA FORDJOUR (ESQ), MAGISTRATE, DISTRICT COURT JACOBU, ASHANTI REGION ON THE 12TH OF NOVEMBER, 2024 SUIT NUMBER A1/06/24 THE REGISTERED TRUSTEES OF THE SDA CHURCH MILE 9 PER ITS LAWFUL ATTORNEY SAMUEL ADU PLAINTIFF VRS 1. PHILIP YAW ACHEAMPONG 2. YAW KETEWA DEFENDANTS ……………………………………………………………………… TIME: 10: 00AM PARTIES PRESENT PARTIES UNREPRESENTED ……………………………………………………………………… JUDGMENT THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 1 BACKGROUND 1. By an amended writ of summons filed on the 19th of October 2023, the Plaintiff church herein through its lawful attorney instituted this action against the Defendants for the following reliefs: a. Declaration of title and recovery of possession of one and half building plot with an unknown number situate and lying at New Town “Mile 9”, Hia Road within the Amansie Central District which building plot shares common boundaries with the properties of the following people: James Barimah, River Mmesua, the Main road leading to Sabe and Hia. b. Damages for cutting down their plantain on the said land. c. Perpetual injunction restraining the Defendants, their assigns, privies, agents, workmen and all claiming title through them from further building or THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 2 constructing on the subject land in dispute or dealing with same in anyway whatsoever. 2. The parties were ordered to file their pleadings to which the plaintiff filed a statement of claim on the 1st November 2023 and the Defendants, their statement of defence on the 17th November 2023. The Defendants filed no counterclaim. 3. The plaintiff’s attorney filed a witness statement for himself and attached a citation in honour of Opanin Akwasi Barima dated 29th May 2021 marked Exhibit A, a plot allocation paper from the Opan Stool Land marked Exhibit B and dated 26th June 2021, a cadastral plan of a 0.35 acre parcel of land approved by the Regional Survey Department of the Ashanti Regional Lands Commission and dated 10th February 2022 marked Exhibit C and another Allocation form from the Saman Stool Lands marked Exhibit D. He subsequently filed a supplementary witness statement and attached his power of Attorney from the Registered Trustees of THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 3 the church. The plaintiff church called PW1-Akwasi Krah as well as James Barimah-PW2 to testify for them. 4. The 1st defendant also filed a witness statement for himself and on behalf of the 2nd defendant and called two witnesses- Samuel Osei Kwadwo Bosompim (PW1) and Mary Agyiri (PW2). They attached no exhibits to their witness statements. THE CASE OF THE PLAINTIFF 5. The Plaintiff’s lawful attorney stated that his name is Samuel Adu, a farmer and the General Overseer of the SDA Church, Mile 9 near Jacobu. He stated that he knows the defendants as well as the disputed land which is situate at Mile 9. That the land is lying and situate at a place commonly known as Mile 9 and measures about 136.6 x 110.1 x 136.8 x 144.2 feet and bounded by the properties of the following people: James Barimah, River Mmesua, the main road leading to Sabe and Hia. He stated that in the year 1990 the late Akwasi Barimah, the 1st defendant’s father gifted them THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 4 an unnumbered plot of land. That after the said gift of the plot, the late Opanin Akwasi Barimah being the grantor to the plaintiff church led some members of the church including Samuel Adu, Isaac Douglas Nimo, Joseph Forkuo, James Barimah to the Odikro of Mile 9 by name Nana Kwabena Anaanini to witness the gift of the plot of land in his palace. He further stated that the reason behind the gift was that the church house was small and as of that time, Opanin Barimah’s own children numbering about five (5) worshipped at the church. That when the elders of the church and Opanin Barimah went to the Odikro, the church offered one bottle of schnapp and Ghc5.00 as an “Aseda” in the presence of Opanin Kwabena Krah and Opanin J. K. Asante to seal the gift. 6. He further stated that the church has been on the disputed land since the year 1990 and in the year 1995, built its church house on a portion of the disputed plot and also planted plantain beside the church house. He stated that just as the church was about building a mission house to accommodate the resident pastor on THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 5 the remaining undeveloped portion, the defendant went to uproot the plantain on the plot and went ahead to lay a building foundation on same. He stated that the church in remembrance of the late Opanin Akwasi Barimah during its fiftieth (50th) anniversary issued a certificate/citation to honour him for his kind gesture shown to the church and same was tendered in evidence and marked Exhibit A. He also tendered in evidence Exhibit B being an allocation paper from the Odikro of Mile 9, Exhibit C being the Cadastral plan of the disputed plots and Exhibit D being an allocation form from the Saman Stool Lands. Attached to his supplementary witness statement was his power of attorney from the Registered trustees of the plaintiff’s church. 7. PW1 also testified and stated that he is Akwasi Krah, a farmer who lives at Mile 9 and a former linguist of the Odikro of Mile, Nana Kwabena Anaanini. He stated that he knows both parties as well as the disputed plot. That the plot is bounded by the properties of James Barimah, THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 6 River Mmesua, the main road leading to Sabe and Hia. He stated that in the year 1990, the late Odikro of Mile 9 Nana Kwabena Anaanini invited him, Opanin Kofi Foffie, Opanin Kwaku Nimo and S. K. Mensah to his house that, the late Opanin Akwasi Barimah has led some leaders of the SDA church of Mile 9 namely John Mensah, the late Joshua Obeng, Samuel Adu and James Barimah,( he said those were the people he could remember were present on that day) and given a plot of land to the SDA church of Mile 9 to build their church house and a mission house. That the delegation of the SDA church presented a bottle of schnapp and Ghc5.00 to the Odikro of Mile 9 to bear witness that indeed the gift has been accepted and the kind gesture shown by the Odikro. That after the presentation to the Odikro, he, Opanin Kofi Fofie, S. K. Mensah, Opanin Kwaku Nimo, Opanin Akwasi Barimah together with the leading members of the plaintiff church were taken to the site to show and demarcate to the plaintiff church the gifted building plot. That ever since the plaintiff church has been the occupant of the disputed plot till February 2023 THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 7 when the elders of the plaintiff church came to inform him that the defendants are claiming ownership of the disputed plot by putting up a building on some part of the plot of land. 8. PW2 by name James Barimah also stated that he is a pensioner of Anglo gold Ashanti as well as a farmer. He stated that he knows the parties in this suit and that the 1st defendant is his half-brother from the same father but from different mothers. He also gave the boundaries to the plot in dispute just as that given by the plaintiff’s attorney. He stated that before the demise of his late father Opanin Barimah, he shared among all his children farm lands. That he James Barimah was given some portion of land and he planted orange numbering about sixty (60) trees and also built on the remaining plot a four bedroom house which shares boundary with the 1st defendant who was also given some portion of the land of which the 1st defendant has used for small- scale mining. He stated that the SDA church was also given a land to put up a church house and a mission THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 8 house. That he shares a common boundary with the 1st defendant and that the 1st defendant’s land does not fall within the plaintiff church’s land and does not share boundary. 9. He stated that he was present when his father gifted the plot of land to the SDA church of Mile 9 and the church offered a bottle of schnapp and an amount of Ghc5.00 as “Aseda”. That his father after the said gift went with him and the leading members of the church to the late Odikro of Mile 9 and presented a bottle of schnapp and Ghc5.00 to the late Odikro. That the late Odikro then went with his father, himself, the leading members of the SDA church and the linguist to show and present the land to the SDA church elders. That in the year 1990, the church put up a church house and that in January 2023 the church decided to put up a mission house. That they went to the plot and realized that the 1st defendant has laid a foundation to put up his house which is currently at the lentil level. That to the best of his knowledge the defendants do not share boundaries with the plaintiff THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 9 and neither do they have any plot of land on the disputed land. 10. THE CASE OF THE DEFENDANTS The 1st defendant testified for himself and on behalf of the 2nd. He stated that he is Philip Yaw Acheampong, a farmer who lives at Mile 9. He stated that the land in dispute forms part of his nine (9) acre land situate at Mile 9, Jacobu and bounded by the properties of Maame Saramata, Hia Stool and the Nine Miles township. He further stated that the land in dispute was cultivated in its original states b his father Akwasi Barimah (deceased) over a hundred years ago. That somewhere in the year 1964, his father gifted the vast land measuring approximately nine acres to me in the presence of Opanin Akwasi Amoah (deceased) and Opanin Asempa (also deceased). THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 10 That after same was gifted to him he cultivated rice, oranges and cocoa on a portion of the nine-acre land. He further stated that he continued cultivating on the land till the year 1982 when he offered “Aseda” in the form of two bottles of schnapps and Ghc5.00 to his father in the presence of Nana Acheampong, Auntie Adwoa Adda, Maame Serwaa (all deceased), Samuel Osei Kwadwo Bosompim and Mary Agyiri (his wife). He stated that somewhere in the year 1995, his brother called James Barimah, who is a member of the Plaintiff church, approached his father Akwasi Barimah for a portion of he, 1st defendant’s nine acre of land to erect plaintiff’s church building. That his father knowing very well that he had gifted the land to him pleaded with him together with some people to relinquish his interest in a apportion of his nine-acre land to the plaintiff church. That he gave apportion of his land measuring 40x60 feet to the plaintiff church to erect its church building. He said that was the land he granted to the plaintiff church and not one and a half building plot as being claimed THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 11 by the plaintiff church. He further stated that it is never correct that his deceased father granted one and a half plot of land to the plaintiff but he was rather the one who granted a parcel of land measuring 40x60 feet to the plaintiff church. He stated that somewhere in the year 2023, he started developing portions of his remaining land into a permanent structure and that is when the plaintiff church started claiming ownership of portions of his land. That he has never trespassed onto the plaintiff’s 40x60 feet parcel of land he granted them and that where he is currently developing does not form part of their 40x60 feet land. DW1 by name Samuel Osei Kwadwo Bosompim also testified and stated that he is a farmer who lives at Kensere near Bekwai Ashanti. He stated that in the year 1964, his father Akwasi Barimah gifted his parcel of land situate at Nine miles near Jacobu and measuring about nine acres to the 1st defendant. That the 1st defendant cultivated cocoa, oranges and rice on a portion of the said land for some time. That somewhere in the year 1982, the 1st defendant invited him together with his wife Mary Agyiri to offer “Aseda” to their THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 12 father Akwasi Barima in respect of the nine-acre land gifted to the 1st defendant. That two bottles of schnapps and an amount of Ghc5.00 was presente to their father in the presence of one Nana Acheampong and Aunt Adwoa Adda (all deceased). He stated that he and the 1st defendant cultivated rice on a portion of the 1st defendant’s undeveloped parcel of land and that the plaintiff church is not entitled to their claims. DW2 by name Mary Agyiri also testified and stated that she is a farmer who lives at Jacobu and also the wife of the 1st defendant. She stated that she has been married to her husband for the past fifty (50) years and that when she married him, he was already cultivating cocoa, oranges and rice on a portion of the nine-acre land gifted to him by his late father. She stated that she also joined him to cultivate on the land. She stated that as at the time she married her husband, his father had already gifted the nine acres to him but he had not yet offered “Aseda” to his father. That subsequently the 1st defendant invited his brother by name Samuel Osei Kwadwo Bosompim and her good self to offer “Aseda” to 1st defendant’s father Akwasi Barima. That the 1st defendant THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 13 offered two bottles of schnapps and an amount of Ghc5.00 to his father as “Aseda” in the presence of his brother, herself, Nana Acheampong(deceased) and Aunt Adwoa Adda(deceased). That they were cultivating food crops on a portion of the land when the plaintiff approached 1st defendant’s father for a portion of 1st defendant’s land to erect its church building. That due to the intervention of the 1st defendant’s father, the 1st defendant relinquished his interest in a portion of his land to the plaintiff to erect its building. That the plaintiff church’s portion being claimed does not belong to them. That the 1st defendant has been in possession of his remaining undeveloped land until now, developing a portion of same into a permanent structure. ISSUES FOR DETERMINATION a) Whether or not the disputed plot was gifted to the plaintiff church by the late Opanin Kwasi Barima or not. THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 14 b) Whether or not the portion with the plaintiff’s church house was gifted to them by the late Opanin Kwasi Barima or by the 1st defendant. BURDEN OF PROOF 11. The case of Fosua & Adu-Poku V Dufie (Deceased) & Adu Poku- Mensah [2009] SCGLR 310 at 325-327 per Atuguba JSC throws enough light on the burden of proof in actions for declaration of title and recovery of possession vis-à-vis Sections 10, 11 and 12 of the Evidence Act, 1975(NRCD 323) and he stated thus, “this being an action for declaration of title and recovery of possession, the issue is what must a plaintiff do in order to succeed? In this regard, Sections 10, 11 and 12 of the Evidence Act, 1975 come in handy in answering this question … Brobby JA (as he then was) wrote in explanation of these provisions of the Act in Yorkwa V Duah (1992-93) GBR 278 at 282 as follows: ”Part II of NRCD 323 which deals with the burden of proof covers on one hand the burden of producing evidence under Sections 11, 12 THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 15 and 13. Considering the wording of Section 10(1) in the light of the commentary on the Evidence Decree… I am of the view that the expression burden of persuasion should be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or a fact…” 12. The burden of proof for declaration of title to land rests heavily on the Plaintiff, who must prove on the preponderance of probabilities, his acquisition either by purchase or traditional evidence, or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land as espoused in the cases of Abbey and Others v Antwi V [2010] SCGLR 17, Comfort Offeibea Dodoo v Nii Amartey Mensah (civil Appeal Suit No. J4/12/2019) (2020) unreported SC (05 February 2020), Odoi v Hammond [1971] 1 GLR 375, CA. 13. Where the Defendant files a counterclaim however, then each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 16 counterclaimant is as good as a plaintiff in respect of a property which he assays to make his/her own. This was espoused in the case of Osei v Korang [2013]58 GMJ 1 at 22-23. 14. The law is also settled that in an action for declaration of title, the case of the party in possession is strengthened. Possession raises a strong presumption in favour of the party who has it- Majolagbe v Larbi & Ors [1959]1 WACA 253. In law, possession is nine points of the law and a plaintiff in possession has a good title against the whole wide world except one with a better title – Osei v Korang (cited supra at pages 26-27). Possession is a matter of law but it is established by physical acts – Brown v Quashigah [2003-2004] 2 SCGLR 930 at 951. 15. Also, for a claim in declaration of title and recovery of possession, the plaintiff must lead clear evidence as to the identity of the land claimed. Thus, a claim for declaration of title or an order for injunction must always fail, if the Plaintiff fails to establish positively the identity of the land claimed, the subject matter of the THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 17 suit. This was espoused in the cases of Anane v Donkor (1965) GLR 188, Nii Tackie Amoah VI v Nii Armah Okaine & Okaine & Ors, Civil Appeal Suit No: J4/59/2013 (dated 15/01/14), Jass Co.Ltd & Anor v Appau & Anor [2009] SCGLR 265 at pages 272-273. 16. However, if the identity of the disputed land is not in issue between the parties at trial, then there is no need to establish the identity of the land in dispute. This was emphasized in the case of Anyetei Chantey vrs Tei Kwablah Kweinor (J4/25/2019) [2020] Unreported SC 19(20 May 2020). 17. Again, it is very important that for a stool or family to succeed in an action for declaration of title it must prove its method of acquisition conclusively either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute. ANALYSIS THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 18 18. In analyzing the issues at hand vis-à-vis the relevant laws outlined supra, I shall discuss and analyse the issues together. I must say that this case is one with very sharp contrasting evidence from both sides. 19. While the plaintiff described the identity of the land in dispute and gave its specific boundaries, the 1st defendant described same as forming a part of a nine (9) acre land gifted to him by his late father, Opanin Kwasi Barima. During cross-examination of PW1(a half- brother of the 1st defendant) by the 1st defendant, the 1st defendant stated that he was even the one who demarcated PW1’s portion to him and that their father did not give him a plot when he was sharing his plots for his children. 1st defendant also claimed he left a portion in the middle that is, between the land of the church house and that of PW1. In the mind of the court therefore, the portion in contention is that middle portion which shares boundary with the plot of PWI and the plaintiff’s church house. THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 19 20. DW1, Samuel Osei Kwadwo Bosompim who is also a brother to the 1st defendant and obviously a half- brother also to PW1 during cross-examination by the plaintiff’s lawful attorney admitted that the rest of the siblings had their own lands but this particular land in dispute belongs to the 1st defendant. If all the siblings had their own lands, then where is the land of PW1 who is also a part of the siblings? The 1st defendant claimed he was not given any land by their late father. 21. Although there seem to be a serious feud between the 1st defendant and his sibling, PW1, he and the plaintiff church are the only boundary owners to the disputed plot which have come to bare in this case. The court would have preferred another adjoining boundary owner to break the ice by confirming whether the plot in dispute has been in the possession of the plaintiff church since the year 1990 as they claim or in the possession of the 1st defendant since the year 1964 when same was allegedly gifted to him by his late father as he also claims. THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 20 22. This burden should have been properly discharged by the 1st defendant after the plaintiff church had duly proved that PW1 was their adjoining boundary owner hence, shifting onto him the burden of producing evidence to corroborate his ownership of the disputed plot. DW1 claimed he was present when their father gifted the nine (9) acre land to the 1st defendant and that the other witnesses who were also present when the 1st defendant went to present “Aseda” to their late father are all deceased. This could be true but the plaintiff church was also able to prove that the land in dispute was gifted to them by the late Opanin Barima and that the plaintiff’s attorney, PW1 as well as PW2 were all witnesses when an “Aseda” was provided to the Odikro as well as to the late Opanin Barima. The assertions of the plaintiff sounded more credible than that of the 1st defendant especially when the 1st defendant claims he was the one who demarcated plaintiff church’s portion to them and mentioned a different set of people who he gave the land to while the plaintiff church also THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 21 mentioned a different set of people inclusive of PW1 and PW2 who were present when they received the gift from the late Opanin Barima. In fact defendants’ witness, DW1 admitted in cross-examination that he was not present when 1st defendant allegedly was giving the church’s portion to it. How then can he testify to the portion that was given to the church either by his brother or by his late father? Clearly I can glean from that aspect of the evidence of DW1 that he was not a party or witness when any land was being gifted to the plaintiff church and his information is a hearsay evidence from the 1st defendant which has been rebutted by PW1 and PW2 who were present during a gift of the disputed plot by the late Opanin Barima to the plaintiff church. 23. On the aspect of possession, I am inclined to believe the plaintiff church that they have been in possession of the disputed plot since the year 1990 when same was gifted to them by the late Opanin Barima by cultivating on same. As for the 1st defendant’s development he has made on the land, both parties attest to the fact that THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 22 same was done just last year and cannot amount to a constructive possession of the land by him since the year 1964 that same was allegedly gifted to him by his father. Why then has the 1st defendant not taken any steps to even acquire just an allocation paper from the Samanhene just as the plaintiff church did? In cross- examination, it came to light that the Samanhene who signed the allocation paper for the plaintiff church is a family member of both the 1st defendant as well as PW1 and that the plaintiff church went to him before proceeding to prepare a site plan and subsequently, a cadastral plan of the plot in dispute. The said Samanhene in the mind of this court would have been quite instrumental and the 1st defendant actually prayed the court during hearing to call him as a witness which same was granted but he never did so. 24. CONCLUSION In the face of such sharp conflicting evidence adduced by both parties in this court, I can only determine this case in favour of whose assertions seem more probable THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 23 than the other in the face of the law and the plaintiff church who alleged that they own the plot in dispute has been able to discharge their burden on a balance of probabilities. If indeed the land in dispute belongs to the 1st defendant as he wants this court to believe, then he has really exhibited nonchalance in having actual possession of the land in dispute since the year 1964 when same was allegedly gifted to him. 25. FINAL ORDERS The reliefs of the plaintiff are granted as prayed safe for Relief (b) which is damages against the defendants for cutting down their plantain on the disputed land. I am unable to grant this relief because the plaintiff seemed to have abandoned same in their pleadings and witness statements by not even coughing about same. No evidence was even adduced on the quantum of plantain destroyed whatsoever. Relief (b) is thus dismissed. I declare title of all that one and a half building plot situate at New Town, Mile 9 which shares common THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 24 boundaries with the properties of James Barimah, River Mmesua, the main road leading to Sabe and Hia covering an approximate area of 0.35 acre or 0.14 hectare as per the Cadastral plan on record duly approved by the Regional Survey Department of the Lands Commission to the plaintiff church herein. The plaintiff church is to recover possession of the said land described supra in dispute. The defendants, their assigns, agents and anybody claiming through them are perpetually restrained from having anything to do with the disputed land described supra. 26. COSTS Cost of Ghc2000.00 awarded against the Defendants in favour of the Plaintiff. SGD H/W EUGENIA A. FORDJOUR DISTRICT COURT MAGISTRATE, JACOBU THE REGISTERED TRUSTEES OF SDA CHURCH VRS PHILIP YAW ACHEAMPONG & 1OR ] e t a D [ 25