THE CHURCH OF NEW CREATION VRS. KISSI AND OTHERS (A2/26/21) [2024] GHADC 499 (27 October 2024)

IN THE DISTRICT COURT SITTING AT AMASAMAN TUESDAY THE 27TH DAY OF OCTOBER, 2024 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE SUIT NO. A2/26/21 THE CHURCH OF NEW CREATION PLAINTIFF VS: KOFI KISSI FRANCISCA NSIAH ADJEI TWUMASI EUGENE AKWASI AMPOFO ADJEI DEFENDANTS JUDGMENT INTRODUCTION: The Plaintiff instituted the instant action against the 1st to 4th Defendants on 30th September 2021, seeking the following reliefs: (a) i. An amount of Five Thousand Two Hundred and Fifty Cedis (GH¢5,250.00) only against 1st and 2nd Defendants being an outstanding balance of the value of piece of land. OR Page 1 of 27 ii. In the alternative give vacant possession of the piece or parcel of land situate and lying at ADJEN KOTOKU and which said land being 1 1/2 plots and bounded on the West by a Road, on the North by a Road, on the East by Sampson Ofosu’s property and on the South by a Road. (b) i. An amount of the Three Thousand Five Hundred Cedis (GH¢3,5000.00) only against 3rd Defendant being an outstanding balance of the value of a piece of land. OR ii. In the alternative give vacant possession of the piece or parcel of land situate and lying at ADJEN KOTOKU and which said land being 1 plot and bounded on the North by a Road, on the East by the property of Alexander Opoku Mensah a.k.a Pastor, on the West by a Road, and on the South by the property of Belinda Essando Mensah. (c) i. An amount of One Thousand Seven Hundred and Fifty Cedis (GH¢1,750.00) only against 4th Defendant being an outstanding balance of the value of 1/2 plot of land. OR iii. In the alternative give vacant possession of the 1/2 plot of land allocated to him by plaintiff at ADJEN KOTOKU which said land is bounded on the North by a Mr. Newton’s property, on the West by a Road, on the East by the property of Alexander Opoku Mensah a.k.a Pastor and on the South by the property of Charles Akwasi Addae. (d) Interest on the amount of Five Thousand Two Hundred and Fifty Cedis (GH¢ 5,250.00) only, Three Thousand Five Hundred Cedis (GH¢ 3,500.00) only and One Thousand Seven Hundred and Page 2 of 27 Fifty Cedis (GH¢1,750.00) only respectively at the current Bank Rate from January, 2019 to the date of final payment. (e) Cost. SUMMARY OF THE PLAINTIFF’S CASE: A summary of the Plaintiff’s claim against the Defendants is as follows: 1. The 2nd, 3rd and 4th Defendants are members of the Plaintiff’s church while 1st Defendant is not a member. 2. The Plaintiff acquired a large track of land at ADJEN KOTOKU from NII KORLEY BOI II through its representative APOSTLE ALEXANDER OPOKU MENSAH. 3. The alienation of the land to the Plaintiff was witnessed by an Indenture with a site plan duly executed by both parties. 4. The Plaintiff then distributed the land to its members at reasonable prices to be paid by instalment. 5. The 2nd Defendant was given one and half (1½ plots) of land at a price of Eight Thousand Nine Hundred Cedis (GH¢8,900.00)) only, while 3rd Defendant was given one (1) plot of land at a price of Four Thousand Nine Hundred Cedis (GH¢4,900.00) only. 6. Because the 1st and 2nd Defendants were a married couple 2nd Defendant paid some deposits by herself while some were paid by her husband, the 1st Defendant paid some of the deposits by herself while some were paid by her husband, the 1st Defendant. 7. As a result, some of the receipts were issued in the names of 1st and 2nd Defendants and some in 1st Defendants name. Page 3 of 27 8. The land the Plaintiff gave to 2nd Defendant situate and lying at ADJEN KOTOKU is bounded on the West by a Road, on the North by a Road, on the East by Sampson Ofosu’s property and on the South by a Road. 9. The land the Plaintiff gave to 2nd Defendant situate and lying at ADJEN KOTOKU is bounded on the North road, on the East by the property of Alexander Opoku Mensah a.k.a. Pastor, on the West by a Road, and on the South by the property of Belinda Essando Mensah. 10. The land allocated to 4th Defendant which is half (1/2) Plot is bounded on the North by a Mr. Newton’s property, on the West by a Road, on the East by the property of Alexander Opoku Mensah a.k.a Pastor and on the South by the property of Charles Akwasi Addae. 11. The Plaintiff sent the document executed by the grantors to the Land Title Registry of the Lands Commission it found that the land had rather been registered in the name of the ODUMANO FAMILY OF ABAAMAN-ADJEN KOTOKU and not in the name of its grantors. 12. As a result, with the consent of the members who have been allocated plots of land by the Plaintiff, the Plaintiff consulted the ODUMANO FAMILY OF ABAAMAN-ADJEN KOTOKU and regularized their position by paying some amount of money to the above-named family. 13. As a result of the new document was executed for the Plaintiff by the ABAAMAN-ADJEN KOTOKU FAMILY before the Plaintiff could register the land. 14. As a result of the new development the cost of the land for each member allocated a land has also increased. 15. Members were informed accordingly and they agreed to pay the extra cost. Some of them have already made the payment. SUMMARY OF 1st, 3RD AND 4TH DEFENDANT’S CASE: I want to put on record that the 2nd Defendant did not file a Statement of Defence and the Plaintiff did not take further steps to bring the suit to her attention. As a result of this she Page 4 of 27 did not partake in the trial. The 1st, 3rd and 4th Defendants filed their Statement of Defence on 26th January 2021. A summary of their Defence is as follows: 1. The Defendants say that sometime in 2012, the Pastor of the Plaintiff’s Church namely Alexander Opoku Mensah expressed the desire to acquire plots of land at Adjen Kotoku, to resell to church member. 2. 3rd and 4th Defendants say that because Plaintiff was not a large Church, the Pastor encouraged the members to inform non-members who might be interested in the sale and purchase scheme. 3. 1st Defendant say it was the 2nd Defendant then his fiancé who convinced him pursue some of the plots of land being offered by her Church Pastor for sale. 1st Defendant was subsequently introduced to the Plaintiff’s Pastor whom 1st Defendant got to know as Alexander Opoku Mensah. 4. 1st Defendant says he acquired the disputed property as his personnel property. 1st Defendant is not however in the position to say whether 2nd Defendant also acquired plots of land from Plaintiff’s Pastor for herself. 5. Plaintiff’s Pastor conveyed land to 1st Defendant which he duly paid for. 1st Defendant says all his payments were receipted for except one installment payment of GH¢500.00 yet to be receipted for by Plaintiff. 6. It is the 1st Defendant’s case that half way into the payment for his 2nd piece of land the Pastor demanded further payment from the 1st Defendant under some ruse and bizarre excuses thus 1st Defendant ended up paying a total GH¢11,460.00 for two plots of land. 7. The 4th Defendant says that he did not negotiate for half plot and that the one-half portion of full plot was forced on him by the said Pastor instead of the full plot. All efforts made by 4th Defendant to obtain a full plot yielded no dividends 8. In the course of time the Pastor of the church travelled out of the Jurisdiction. On returning to the jurisdiction and upon realizing that the price of the property had appreciated, he sought to stop Page 5 of 27 purchasers from further instalment payments of the balance of the purchase price under the pretext that the time limited for payment had long elapsed. 9. That as a result, the 3rd Defendant too who sought to buy one plot of land and made about seventy percent payments before the Pastor returned from his trip abroad was given half plot and the balance was paid back to him. 10. The defendants further say that the agreed price for a piece of land measuring 70 x 100 was Three Thousand Five Hundred Cedis (GH¢3,500.00) only and nothing more. 11. The Plaintiff at a later date informed the defendants that the price per plot of land had increased from Three Thousand Five Hundred Cedis (GH¢3,500.00 only to Four Thousand Cedis (GH¢4,000.00) only without providing any justification for the change whatsoever. 12. It is the defendants’ case that the Pastor further increased the purchase price from Four Thousand Cedis (GH¢4,000.00) to Four Thousand Nine Hundred Cedis (GH¢4,900.00) only at his whims. Defendants say that the arbitrariness on the Pastor’s side was borne out of the respect defendants accorded him as a Pastor. 13. Defendants state that the Pastor would always threaten to re-enter and repossess the land if they failed to abide by his demands. The defendants once upon a time took the matter to a radio station in Accra for intervention but all to no avail. 14. The Defendants aver that as if the arbitrary increases of the purchase price was not enough, Plaintiff reduced the size of the plot to 60ft x 100ft instead of 70ft x 100ft agreed upon. 15. The plaintiff ought to have conducted due diligence expected of a prudent purchaser before acquiring the land from the rightful owners and it cannot visit the sins of its failure of due diligence on the poor defendants. 16. Defendants state that the demand by plaintiff for them to pay the amounts claimed is actuated by malice, agreed, avarice and unjust enrichment and a calculated attempted to rip defendants off their hard-earned money. Page 6 of 27 17. Defendants further case is that plaintiff is precluded from holding defendants accountable for its failures to conduct prior searches and due diligence before acquiring the land. 18. The Plaintiff’s bad faith and desire for unjust enrichment is made manifest by its inability or neglect to mention the sum of money it claims to have paid to the Odumano Family of Abaaman- Adjen Kotoku for regularization. 19. Defendants contend that Plaintiff’s neglect and inability to state the exact amount it purportedly paid for the regularization is borne out by the Plaintiff’s false and phoney claims. 20. Defendants shall contend further that as a Company Limited by Guarantee the plaintiff was precluded from engaging in a profit generating venture such as the subject matter of the instant suit. The 1st Defendant counterclaimed against the Plaintiff as follows: A. For the 1st Defendant: Refund of money overpaid by the 1st Defendant to the Church or to the Pastor in consideration for only one and a half plots of land. B. For 1st, 3rd and 4th Defendants an Order for the release of the deed of conveyance i.e. Deed of Assignment evidencing the sale of the disputed land for which defendants have made full payment of the purchase price. C. Damages for breach of Contract. D. Costs. The Plaintiff filed a Reply to the Statement of Defence and a Defence to the Counterclaim and averred as follows: 1. At the time Plaintiff acquired the land, the land was in the Greater Accra Region and belonged to his grantors. At the time the Plaintiff went to the Lands Commission to register, it found that there has been a new redemarcation by the government so that area had gone to the Eastern Region and under the ABAAMAN-ADJEN KOTOKU FAMILY. Page 7 of 27 2. The Plaintiff therefore had to go to the ABAAMAN-ADJEN KOTOKU FAMILY to regularize its position. 3. The Plaintiff states that it paid GH¢87,500.00 to the Odumano family of Abaaman-Adjen Kotoku to regularize its position for which a receipt was issued dated 10/1/2019. 4. Some of the members have developed their lands and are living on the land with their families 5. Plaintiff states that it is not engaging in a profit generating venture. It only acquired the land for its members to help them settle on their own lands instead of renting houses. The Plaintiff denied the counterclaim of the Plaintiff.” PROCEDURE AFTER THE CLOSE OF PLEADINGS: At the close of pleadings and pursuant to the District Court Rules, 2009, (C.I 59) as amended, the Court ordered the parties to file their respective Witness Statements. The parties complied with the orders of the Court. ISSUES FOR DETERMINATION BY THE COURT: From the pleadings of the parties, their respective Witness Statements, the exhibits tendered in evidence and the Cross-Examination of the parties, the following issues arise for determination by this Court. 1. Whether or not the Plaintiff can reopen a concluded land contract and demand monies from the Defendants or terminate the contract. 2. Whether or not the 1st Defendant is entitled to overpaid purchase price from the Plaintiff or the Pastor. Page 8 of 27 3. Whether or not the Plaintiff must release to the 1st, 3rd and 4th Defendants, Deeds of Assignment over the disputed land that they have fully paid for. BURDEN OF PROOF: In civil trials, the standard of proof is on the preponderance of the probabilities. Section 12(1) of the Evidence Act, 1975 (NRCD 323) provides that: “Proof by a Preponderance of Probabilities (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. “Preponderance of the probabilities” is defined under Section 12(2) of the Evidence Act, 1975 (NRCD 323) as (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. Furthermore, the principles on which our civil jurisprudence is hinged on require that a party who asserts a fact leads credible evidence to prove same. This is codified under Sections 10, 11(1) and (4), 14 and 17 of the Evidence Act, 1975 (NRCD 323), which provides that: “10. Burden of Persuasion Defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party Page 9 of 27 (a) To raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances 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 of the fact was more probable than its non- existence. 14 Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defense that party is asserting. 17. Allocation of burden of producing evidence (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof (2) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In respect of the three issues enumerated above, I am of the respectful view that in law, the evidential and the persuasive burden were on the Plaintiff to lead enough evidence on issue one, in order to prevent a ruling against it in respect of its claim. Page 10 of 27 In respect of issue two, burden of proof was on the 1st Defendant to lead evidence in order to succeed on his counterclaim. In terms of issue three, the evidential and the persuasive burden were on the 1st, 3rd and 4th Defendants, to lead evidence to prevent a ruling being made against them. In the case of Dzaisu and Others vs. Ghana Breweries Limited [2007-2008] 1 SCGLR 539 at page 545, the Supreme Court per Sophia Adinyira JSC. (Mrs.) stated as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” Also, in the case of Majolagbe vs. Larbi and Others [1959] GLR 190 at page 192 per Ollennu J. (as he then was) stated as follows: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances, circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” Again, in the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 at page 884, the Supreme Court held as follows on Section 12(2) of the Evidence Act: “It is sufficient to state that this being a civil suit the rite of evidence requires that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities is defined in section 12(2) of the Evidence Decree. In assessing the balance of the 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 version and is deserving of a favourable verdict.” Page 11 of 27 EVIDENCE ADDUCED BY THE PLAINTIFF: In respect of issue one, the Plaintiff filed a Witness Statement on 22nd March 2021. The relevant parts of his testimony are as follows: My name is Alexander Opoku Mensah. I am 46 years of age and I live at Kotoku. I know the Church of New Creation. It is at Ofankor Barrier, Old Road. I am the founder of the Church and also, I am the Head Pastor. I am giving evidence on behalf of the church and myself. I know the Defendants who are members of the church except the 1st Defendant. I know the land dispute. It is at Adjen Kotoku. The Plaintiff acquired a large track of land at Adjen Kotoku from NII KORTEY BOI II through me Apostle/Pastor Alexander Opoku Mensah. The alienation of the land to Plaintiff was witnessed by an Indenture with a site plan dated 19th August, 2014 duly executed by both parties. Attached is a copy of the Indenture marked Exhibit A. The Plaintiff then distributed the land to its member at reasonable price to be paid by installments. Even though when we conducted a search at the Lands Commission before we acquired the land, when we later sent our documents for registration the name of our grantor has been changed. We rather found that the land been registered in the name of ODUMANO FAMILY OF ABAAMAN-ADJEN KOTOKU. The only explanation we had from the Lands Commission is that, that portion of the land in Greater Accra Region has been relocated to the Eastern Region. Attached is Exhibit B and C. As a result, with the consent of the members and the elders and I at a meeting with the members who have been given lands, the Plaintiff consulted the ODUMANO FAMILY OF ABAAMAN-ADJEN KOTOKU and regularized our position by paying an amount if GH¢87,500.00 to the family. Attached is the receipt marked D. Page 12 of 27 As a result, a new document was executed for the Plaintiff by the ABAAMAN-ADJEN KOTOKUFAMILY before the Plaintiff could register the land. Attached is a copy of the Indenture with the site Plan dated 17th April, 2019 duly executed by the parties marked Exhibit E. As a result of the new development the cost of the land for each member allocated a land also increased. Members are informed accordingly at a meeting and they all agreed to pay extra cost. Majority of the members have paid the extra cost except few of them who are before court. The additional cost for 1st and 2nd Defendants to pay is GH¢5,250.00 while that for 3rd Defendant is GH¢3,500.00 and also developing their lands given them. All attempts by Plaintiff to make Defendants pay their respective cost have failed. The Plaintiff caused PW 1: Kwame Buabeng to also testify on its behalf. He filed a Witness Statement on 22nd March 2021 and the relevant parts of his testimony are as follows: 6. Pastor Alexander Opoku Mensah and elders of the church decided to help members to acquire their own lands so that each could build his or her house without renting a house. 7. So, at a meeting members were informed that those who needed land should submit their names. Those who need land including me submitted my name. 8. The Pastor and the Elders acquired the land from Nii Kortey ii, Ofankor Mantse. The church was given an indenture with a site plan. 9. We the members of the church as well as the Pastor and elders demarcated the land and each member got his or her land according to the size or number of plots he needed. 10. I got one plot valued GH¢4,900.00 to be paid by installments. 11. When we conducted a search, we found out that the land had been registered in the name of our grantor at Greater Accra Region. Page 13 of 27 12. But when later we went to register, we found it has been registered in the name of Nana Fianko Ababio and Mankrado Kwame Ofori of Odumano family of Abaaman-Adjen Kotoku. 13. When we consulted the Lands Commission officials of the change, we were told the government has redesigned the portion where we have our land to the Eastern Region since there has been a new re-demarcation. 14. As a result, we renegotiated with the Oduman family of Abaaman-Adjen Kotoku for a new document for GH¢87,500.00 to regularize our position. We paid and were given a receipt. 15. There was a meeting of the Pastor, elders and Church members of this new development and the members agreed. 16. As a result, the price given to each individual increased and the members agreed to pay before documents are prepared for them. 17. The final additional cost of each land became GH¢3,500.00 a plot. 18. I have paid my total amount and I have been issued with receipts marked Exhibit F series (F and F1). 19. The church is yet to give me my Indenture with a Site Plan. The Plaintiff caused PW 2: Mrs. Esther Apiadu to also testify on its behalf. She filed a Witness Statement on 22nd March 2021 and the relevant parts of her testimony are as follows: “My sister had Outdooring called (Baby Dedication) by the church and I was invited. Page 14 of 27 It was during that occasion that the church was acquiring land for its members to buy and I was asked if I was interested. I said I was interested and I was asked to submit my name and I did. During the distribution I was given one plot of land at GH¢4,900.00 and I paid by installment. Later there was a problem which increased the cost of the land for each member as a result the final cost of my land became GH¢8,400.00. I paid the GH¢8,400.00 by installments and was issued with series of receipts but I have the receipt for the extra cost of GH¢3,500.00. It is attached and marked as Exhibit G. I have built my house on the land where I have lived 2 years without any problem.” The Plaintiff also called PW 3: Seth Deddor to also testify on its behalf. He filed a Witness Statement on 22nd March 2021.He corroborated the testimony of the Plaintiff’s representative. EVIDENCE ADDUCED BY THE 1ST, 3RD AND 4TH DEFENDANTS: The 1st Defendant filed a Witness Statement on 6th April 2021. Relevant portions of his testimony is as follows: “Sometime in 2012, the 2nd Defendant informed me that, her Pastor had expressed the desire to acquire plots of land at Adjen Kotoku to resell to church members and non-members who were interested and convinced me to purchase some. The 2nd defendant was at all material time of the transaction my fiancé and cohabiting with me. I was subsequently introduction to the Plaintiff’s Pastor whom I got to know as Alexander Opoku Mensah. I discussed my interest in purchasing two plots of land measuring 70x100 from church. Page 15 of 27 The Pastor increased the price plot of land from GH¢3,500 to GH¢4,100 without providing any justification for the change whatsoever. I acquired the disputed property as my personnel property and am not in the position to say whether 2nd defendant also acquired plots of land from Plaintiff’s Pastor. As a result of my busy schedules, I sometimes gave money to 2nd defendant to make payments of the property for and on my behalf. This resulted in certain payments being receipted for in the name of 2nd defendant. I also made some payments personally to Plaintiff’s Pastor. (Attached as Exhibits 1, 1A, 1B are receipts for payment made personally). All the payments I made toward the purchase of the property were receipted for except one installment payment of GH¢500.00 yet to be receipted for by Plaintiff. (Attached as Exhibit 2 & 2A are receipts for payments made personally). My Lord, in the course of time into the payment for my 2nd piece of land, the Pastor demanded further payments from me. The Pastor always threatened to re-enter and repossess the land if I failed to abide by his demands. Out of respect for the Pastor, I obliged and these arbitrary demands for money and increments persisted to the point that by the end of the year 2015, I had made a total payment of GH¢11,460.00. In the course of time, Pastor Alexander Opoku Mensah travelled out of the Jurisdiction. On returning to the jurisdiction and upon realizing that the price of the property had appreciated, he sought to stop purchasers from further instalment payments of the balance of the purchase price under the pretext that the time limited for payment had long elapsed. The Pastor further increased the purchase price per plot of land from GH¢4,100.00 to GH¢4,900.00 at his whims. As if that was not enough, the size of a Plot was reduced from the agreed 70 x 100 feet to 60 x 100 feet. Page 16 of 27 The Plaintiff’s Pastor informed me that since I had not made full payment for the second of land but I had made payment beyond the value of half a plot, I was entitled to one and a half plots of land instead of the two plots of land agreed upon. The Plaintiff has refused to provide me with any sort of documentation as evidence of transfer of interest in the property to me. The Pastor recently came up with another story to exhort money from his Church members by stating that he acquired the land from a family which did not have the capacity to alienate the property even though he had assured us that he had conducted all the requisite searches with respect to the property.” The 3rd Defendant filed a Witness Statement on 6th April 2021, relevant parts of his testimony are as follows: “Sometime in 2012, my sister informed me that, her Pastor (Alexander Opoku Mensah) had expressed the desire to acquire plots of land at Adjen Kotoku to resell to church members and non-members who were interested. I met with the Pastor and informed him of my interest in purchasing two Plots of land measuring 70 x 100 feet from the Church. The Pastor increased the price per plot of land from GH¢3,500.00 to GH4, 100.00 without providing any jurisdiction for the change whatsoever. On the 17th day of July, 2012 I made a deposit of GH1,500.00 and another payment of GH1,500.00 on the 8th day October, 2012 in furtherance of acquisition of two plots of land. Both payments were receipted for. (Attached at Exhibits 3A and 3B are receipts evidencing the above-mentioned payments). The Plaintiff’s Pastor further increased the purchase price per plot of land from GH¢4,100 to GH¢4,900.00 at his whims. As if that was not enough, the size of a plot was reduced from the agreed 70 x 100 feet to 60 x 100 feet. Page 17 of 27 In the course of time, the Pastor travelled abroad for six months and upon his return, when he released the price of property had appreciated he refused to accept further payment for the property under the pretext that the time limited for payment had long elapsed. Between the years 2013-2015, I made six separate payments of varying sums totaling One Thousand Nine Hundred Cedis (GH¢1,900) to the Plaintiff Pastor totaling GH¢4,900.00. (Attached as Exhibits 4, 4A-4E Series are receipt evidencing the above-mentioned payments). I initially informed Plaintiff of my desire to purchase two plots of land but the Plaintiff decided to demise to me only one plot of land with the excuse that I had delayed with the payment. I made several requests to the Plaintiff’s Pastor for documentation covering the land I had paid for but he has refused to provide me with any sort of documentation to evidence a transfer of interest in the property to me. The Pastor recently came up with another cooked-up story to extort money from me and his Church members by stating that he acquired that property from a family which did not have the capacity to alienate the property even though he assured us that he had conducted all the requisite searches with respect to the property. The demand by Plaintiff to be paid the amount claimed in the statement of claim is actuated by malice, greed, avarice and unjust enrichment and a calculated attempt to rip me off my hard-earned money. It behooved the Plaintiff to conduct due diligence and searches before acquiring the land. If Plaintiff had done its homework well, it would not have purchased the property from the wrong persons as claimed. It is my case that the Plaintiff Church by its Pastor cannot hold me liable or accountable for the failure to conduct prior searches and due diligence. Page 18 of 27 Granting without admitting that Plaintiff paid any money to the Odumano Family of Abaaman for regularization, it is unreasonable for me to bear the loss and damages in a transaction that the Plaintiff had failed to conduct due diligence expected of a prudent purchaser more so in a transaction I was not part of. I have made full payment of the one plot of land demise to me by plaintiff and I am developing same. I have not agreed to pay the extra cost incurred by plaintiff. The plaintiff is by this action seeking to take undue advantage over me. The other defendants together with my good self had the occasion of reporting of Plaintiff to a local radio station which has one of its programmes designed to assist violated persons in the society for their intervention but plaintiff’s Pastor would not budge from the breaches. The Plaintiff’s claim is frivolous and untenable even as same is not backed by any verifiable evidence or details and I should not be held liable for the additional costs Plaintiff purports to have incurred by reason of its negligence and recklessness.” The 4th Defendant filed a Witness Statement, on 6th April 2021, relevant parts of his testimony is as follows: “I made a total payment of GH¢2,640.00 to the Plaintiff Pastor for the above mentioned plot of land between the year 2012 -2015.(Attached as Exhibit 5, 5A -5L are receipts of payment). In the course of time, the Pastor travelled abroad for six months and upon his return, when he realized the value of the property had appreciated, he refused to accept further payment for the property under the pretext that the time limited for payment had long elapsed. The Plaintiff’s Pastor further increased the purchase price per plot of land from GH¢4,100 to GH¢4,900.00 at his whims. As if that was not enough, the size of a plot was reduced from the agreed 70 x 100 feet to 60 x 100 feet. Page 19 of 27 The Pastor informed me that since I had only paid about seventy (70%) of the full price for the plot of land, I will only given one half (1/2) of a plot of land and the balance refunded to me. I made several efforts to obtained the full plot of land but same did not yield any dividends. I made several requests to the Plaintiff for documentation covering the land I had paid for but the Pastor has refused to provide me with any sort of documentation to evidence a transfer of interest in the property to me. The demand by Plaintiff to be paid the amount claimed in the statement of claim is actuated by malice, agreed, avarice and unjust enrichment and a calculated attempt to rip me off my hard-earned money. It behooved the Plaintiff to conduct due diligence and searches before acquiring the land. If Plaintiff had done its homework well, it would not have purchased the property from the wrong persons as claimed. It is my case that the Plaintiff Church by its Pastor cannot hold me liable or accountable for the failure to conduct prior searches and due diligence.” DETERMINATION OF THE ISSUES BY THE COURT: ISSUE ONE: WHETHER OR NOT THE PLAINTIFF CAN REOPEN A CONCLUDED LAND CONTRACT AND DEMAND MONIES FROM THE DEFENDANTS THAT THEY HAD AGREED TO PAY. In respect of issue one, the Plaintiff on whom the burden lay expended a lot of time and energy leading evidence of events after the fact. in the case of Hammond v. Amuah and Page 20 of 27 Another [1991] 1 GLR at page 89 per Brobbey J. (as he then was) held in holding 1 as follows: “(1) where a party made an averment and that averment was not denied, no issue was joined and no evidence needed be led on that averment. And when a party had given evidence of a material fact and was not cross-examined upon it, he needed not call further evidence of that fact.” It is an admitted fact that the cost of each plot of land was Three Thousand Five Hundred Cedis (GH¢3,500.00 only. The Plaintiff in order to succeed in respect of this issue, was to have led evidence to the effect that after the process of regularizing the documents on the land with the Odumano Family of Abaaman-Adjen Kotoku and paying it consideration of Eighty-Seven Thousand Five Hundred Cedis (GH¢87,500.00) only, the land allocated for each member also increased. At a meeting all the members agreed to pay the extra cost. I find the case of the Plaintiff quite challenging. As a purchaser of land, the Plaintiff was duty bound to conduct due diligence before it purchases same, in order for it to be aware of any encumbrance on the land. The Plaintiff did not do this from the evidence on record. From the evidence led by the Plaintiff, it only conducted its due diligence as the Lands Commission, after it had paid consideration to the Head of the Abbanman Division of Kwartey Family. See Exhibit A. A search conducted (See Exhibit B), confirmed that the land fell into a declaration by Nana Fianko Ababio and Mankrado Kwame Ofori. Who is to be faulted for this, the members of the church and other purchasers such as the 1st, 3rd and 4th Defendants? Not at all. The Plaintiff cannot visit the sins of its failure to conduct due diligence prior to purchasing land on the Defendants. I will reproduce portions of the Cross Examination of the Plaintiff on 15th August 2022: Q. So in effect it is your case that the church has incurred an additional cost of GH¢87,500 being money that the Church paid to the Nii Oduman Family not so? Page 21 of 27 A. That is not so. The said GH¢87,500 is the money paid to Bretuo Chinto Family and not an additional amount paid with GH¢207,000. Q. So which family did you pay the GH¢120.000 to? A. Nii Ofankor Family. Q. Indeed it is your case that this GH¢87,500 came about because that 2nd Family claimed to be the owner of the land that you bought from the Nii Ofankor Family. A. That is so. This came about because when we originally bought the land from the Nii Ofankor Family, we did a search at the Lands Commission in Accra which confirmed the owners of the land to be the Nii Ofankor Family. The Lands Commission subsequently referred us to Koforidua that the location of our plot is for the Eastern Region so we went to Koforidua and at Koforidua it was confirmed that the land belonged to the Chinto Family. Q. Papa Osofo I am suggesting to you that you did not conduct a search before paying for the land in dispute. A. That is not so, we conducted a search. Q. When did you buy the land? A. 2012. Q. When did you conduct the search? A. The search was conducted in 2014 but at the time we had not finished paying for the land. Q. Kindly take a look at Exhibit C of your Witness Statement. Have you seen Exhibit C? A. Yes please. Q. It is the report of the Lands Commission not so. Page 22 of 27 A. Now look at the date. When was that search report dated? A. 22nd July, 2015. Q. So you see I am suggesting to you that your testimony before the court that you conducted a search before buying the land is false. Objection by Plaintiff: That is not what the witness stand. Defendant: It is as easy as the parlance “Book no lie” This is a question. I put to the witness. BY COURT: It is not an unfair question. The witness can answer it. A. I am being truthful to the court. The time allocated for us to pay for the land has been captured in the search so I couldn’t have paid for the land before conducting the search.” An already concluded land agreement, can be re-opened upon agreement by the parties. Since it is the contention of the Plaintiff that the members of its church, including the Defendants, agreed to this. The evidential and persuasive burden were thus on the Plaintiff to demonstrate this. This was capable of positive proof. The Plaintiff could have tendered signed minutes of the meeting signed by proper officers of the church showing the Defendants present and they consenting to the new purchase price. A written document showing that the Defendants have agreed to pay the sums stated in paragraph 25 of the Witness Statement of the Plaintiff, will have been enough. I have carefully looked at the Witness Statement of the Plaintiff, the testimony in paragraph 25 of its Witness Statement, is not supported by any evidence whatsoever. On 1st September 2022, this is part of what transpired during Cross Examination: Q. The other side of your conduct with respect to this transaction was that you increased the size of a plot of land from GH¢3,500 to GH¢4,000 without providing any justification for the change in price. A. It is not so, the church had a meeting and all the church members aside the Defendants are aware of the amount. Page 23 of 27 Apart from repeating its averments of oath, the Plaintiff did not lead any evidence to demonstrate that the 1st, 3rd and 4th Defendants, agreed at a meeting of the church to pay additional sums for their plots of land. In light of the above, I will dismiss the claim of the Plaintiff in respect of its claim against the 1st and 3rd Defendants. The Plaintiff will however succeed partly against the 4th Defendant, since from the evidence he has tendered and admissions made by him, there is an outstanding purchase price of Eight Hundred and Sixty Cedis (GH¢860.00) only to be paid by him. The Plaintiff is entitled to interest thereon from the time it became due till date of final payment. ISSUE TWO: WHETHER OR NOT THE 1ST DEFENDANT IS ENTITLED TO OVERPAID PURCHASE PRICE FROM THE PLAINTIFF OR THE PASTOR. In respect of this issue the evidential and the persuasive burden was on the 1st Defendant to lead evidence to prevent a ruling against him. From the undisputed evidence on record, the 1st Defendant purchased two plots from the Plaintiff at a cost of Three Thousand Five Hundred Cedis (GH¢3,500.00) only each. The total comes to Seven Thousand Cedis (GH¢7,000.00) only. This piece of evidence was not challenged by the Plaintiff. I have already held earlier in this Judgment that the Plaintiff failed to conduct due diligence on the land before it purchased same and sold to the Defendants. The Plaintiff and its witness testified that the Defendants agreed to the increment in the purchase prices of the land. However, it did not lead any evidence to support this portion of its testimony. This makes it bare assertions. The Defendants are all uniform in their contention that the increment in the purchase price of the land was arbitrary and imposed Page 24 of 27 on them by the Plaintiff. They have stoutly denied the allegations of the Plaintiff. In the circumstances, the evidential and the persuasive burden was on the Plaintiff. They have failed to discharge this. In the absence of evidence that the Defendants agreed to an increase in the purchase price of the land, I will hold that under the circumstances and from Exhibits 1-2A, the 1st Defendant is entitled to a refund of the sum of Three Thousand Nine Hundred and Sixty Cedis (GH¢3,960.00) only being payments that he has been able to positively prove, with interest thereon from the time the over-payment was made till same is refunded. In the case of the 3rd Defendant, he has led evidence that though he intended to purchase two plots of land, the Plaintiff has only given him one plot of land. The 3rd Defendant has been able to demonstrate by positive proof that he has paid a total of Four Thousand Nine Hundred Cedis (GH¢4,900.00) only. Since the agreed price for a plot of land is Three Thousand Five Hundred Cedis (GH¢3,500.00)) only, he is entitled to a refund of a sum of One Thousand Four Hundred Cedis (GH¢1,400.00) only with interest thereon, from the time the over-payment was made till same is refunded. In the case of the 4th Defendant, from his Exhibits 5-5M, he has made payment of Two Thousand Six Hundred and Forty Cedis (GH¢2,640.00) only towards the total purchase price. There remains a balance of Eight Hundred and Sixty Cedis (GH¢ 860.00) only to be paid to the Plaintiff. I have already held earlier in the Judgment that he is entitled to pay same to the Plaintiff with interest thereon. ISSUE THREE: WHETHER OR NOT THE PLAINTIFF MUST RELEASE TO THE 1ST, 3RD AND 4TH DEFENDANTS, DEEDS OF ASSIGNMENT OVER THE DISPUTED LAND THAT THEY HAVE FULLY PAID FOR. Page 25 of 27 From the evidence on record, there is no record that the parties agreed on the price for documentation. However, in a land transaction a seller is bound to give good title to a purchaser. The Plaintiff failed to conduct due diligence on the land before purchasing and selling same to the Defendants. This is a breach of an implied term in a contract. From the evidence on record, the Plaintiff failed to do this and it has now regularized its interest with a new grantor. As a result of this breach it has incurred extra cost. Instead of awarding monetary amounts for general damages, I will order that the Plaintiff should at its cost prepare title documents for the 1st and 3rd Defendants within six months from the day of this Judgment. In the case of the 4th Defendant the six months within which the Plaintiff must prepare title documents for him, will only run when he has fully repaid the remaining purchase price to the Plaintiff, as well as interest thereon. DISPOSITION: From the totality of the evidence on record I hold in respect of the claim of the Plaintiff as follows: 1. The Plaintiff’s claim against the 1st and 3rd Defendants, fails in its entirety. 2. The Plaintiff succeeds partly in its claim against the 4th Defendant, but for only a refund of the sum of GH¢860.00, with interest thereon from the day of breach till the day of final payment. 3. The 1st Defendant succeeds in his counterclaim against the Plaintiff, but for a sum of GH¢3, 960.00, with interest thereon, from the time the over-payment was made till same is refunded. 4. The 3rd Defendant succeeds in his counterclaim against the Plaintiff and is entitled to a refund of a sum of GH¢1,400.00 with interest thereon, from the time the over-payment was made, till same is refunded. Page 26 of 27 5. The cost of the 1st and 3rd Defendants against the Plaintiff, is assessed at GH¢15, 000.00 each. (SGD) H/W ANNETTE SOPHIA ESSEL MAGISTRATE Page 27 of 27