NYATUAME VRS NYATUAME AND TWO OTHERS (A1/01/2022) [2022] GHADC 424 (13 December 2022)

IN THE DISTRICT COURT HELD AT ANLOGA ON TUESDAY THE 13TH DAY OF DECEMBER, 2022. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE. DISTRICT MAGISTRATE. SUIT NO.: A1/01/2022. REVEREND WISDOM YAOTSEY NYATUAME SUING AS THE CARETAKER OF THE PROPERTIES PLAINTIFF OF APOSTLES REVELATION SOCIETY (ARS), CHURCH. ABUTIA BRANCH OF ANLOGA-WOE. VERSUS 1. JOHN BESAVI NYATUAME 2. DAVID NANIGA NYATUAME 3. FREEDOM SENE NYATUAME ALL OF ABUTIA-WOE DEFENDANTS JUDGMENT The Plaintiff instituted the instant action on 10/8/2021 in his capacity as the caretaker of the properties of Apostles Revelation Society (ARS) Church, Abutia Branch; seeking the under listed Reliefs: a) “Declaration of title and rightful ownership to all that piece or parcel of land as the property of Apostles Revelation Society (ARS) Church, Abutia at Abutia-Woe situate lying and being at Abutia-Woe and bounded as follows:- On the Anloga side by Agornyo Bosodua and Rev. Y. Nyatuame’s On the Keta side by Avuablatsi’s mud pit. On the Sea side by Daniel Kwadzovi Avu Nyatuame and Atatsi Eleapeame On the Lagoon side by Korkor Apedo. b) An order directed at the Defendants to vacate from the portion of the land they are currently cultivating. c) Perpetual injunction restraining the Defendants, their agents, assigns, privies, workmen or anyone who derives interest through them from dealing with the said land in any manner. d) General damages. e) Costs.” CASE OF THE PLAINTIFF: The Plaintiff, REVEREND WISDOM YAOTSEY NYATUAME; is a senior brother to the Defendants and the surviving first-child of their late Father MR. DANIEL KWADZOVI AVU NYATUAME. The Plaintiff is also a Reverend Minister who was in charge of the ABUTIA branch of the APOSTLES REVELATIONS CHURCH (ARS). He is currently on transfer to another branch of the Church; and is in this Honourable Court to retrieve the Church’s Lands from his Blood Brothers who he prefers to refer to as CHURCH MEMBERS. He instituted the action in his capacity as caretaker of the Church’s properties. Plaintiff alleged their late father had pledged the disputed Land to the Founder of the APOSTLES REVELATIONS CHURCH (ARS) in 1976; and he actually alienated his title in the disputed land to the Church in 1976 as well to honour the said pledge. Plaintiff attached “A PLAN OF LAND” prepared in 2019, as his documentary proof of his assertion. The Plaintiff called three Witnesses. LAWRENCE AMENYO NYATUAME, DUMEGA ATSU NYATUAME as well as his uterine Brother, JOHNSON BESA NYATUAME. The Plaintiff had prepared what he titled ‘PLAN OF LAND’ ostensibly to establish a transfer of his late Father’s Title in the disputed Land to the ARS Church in 1976. The Honourable Court found that the said document was procured with intent to deceive the Court and fraudulent. The Court accordingly set it aside. For the sake of the family ties among the Parties and for posterity, the Court has decided to attach the whole of the Plaintiff’s evidence-in-chief as captured in his witness statements below. The ‘PLAN OF LAND’ prepared in 2021, has also been duly attached below. 3 5 CASE OF THE DEFENDANTS: In their joint Witness statement, the defendants averred that the Plaintiff is their half- brother and the disputed land is a portion of a larger tract of their great-grandmother, ESAVI’s land. That land eventually devolved unto their father, MR. DANIEL KWADZOVI AVU NYATUAME. Their father, MR. DANIEL KWADZOVI AVU NYATUAME married two (2) Wives and begat sixteen (16) Children in all. The first wife, ADZOVI AKPADI begat seven (7) Children including the Plaintiff herein. Their father’s 2nd wife, NYOMISHIE AMAGLO being the Defendants’ Mother, also begat nine (9) Children including the Defendants. Their father, MR. DANIEL KWADZOVI AVU NYATUAME, during his life time, built a house for his first wife, along the Keta-Anloga trunk road and shared the remaining lands thereof to the Plaintiff and his two male Siblings. Again, MR. DANIEL KWADZOVI AVU NYATUAME built a house at the lagoon side on a parcel of land, given to him by his grandmother, GBATSAXE, where the Defendants also lived with their mother. MR. DANIEL KWADZOVI AVU NYATUAME never allowed the Plaintiff and his siblings to have anything to do with the disputed land because he had already given them lands at the Roadside. From childhood, Defendants averred that they joined their father in cultivating the disputed land without any let or hindrance from any person or persons. DANIEL KWADZO NYATUAME unfortunately died in 2009. Before his demise, DANIEL KWADZOVI AVU NYATUAME had allotted the disputed land to the Defendants based on existing circumstances. 33 farm-beds were allotted to the 1st Defendant, 16 Farm beds to the 2nd Defendant and 12 Farm beds to the 3rd Defendant. The Defendants are still in possession and occupation of their individually allotted Farm-beds. The A. R. S church was brought to ABUTIA-WOE, by the Mother of the Plaintiff, ADZOVI AKPADI; in or about 1976. The meeting place of the church was on the parcel of land given to the Plaintiff’s brother, JOHNSON BESA NYATUAME at the road- side until 2010. Further, the Defendants stated that in 2011, the Plaintiff, was summoned by the KORKOR FAMILY before TORGBI SAMLAFO III in relation to the disputed land. They joined the Plaintiff as Children of MR. DANIEL KWADZOVI AVU NYATUAME; to prosecute the said matter, which ended in their favour. A similar issue relative to the land came up again in 2013, but the complainants could not pursue it. The Plaintiff thereafter, billed the Defendants various sums of Money to defray the costs incurred. The Plaintiff again said the remaining GH¢400.00 would be taken care of by the ARS Church where he had been the Resident Pastor. That in 2018, the Plaintiff demarcated and or divided the disputed land into two without their consent. They vehemently opposed the said act on grounds that the Plaintiff had nothing whatsoever to do with the disputed land and has no right to carry out that exercise. The Defendants claimed the Plaintiff asked them whether or not, “we knew that the repercussions of land litigations are death, bloodshed sickness, pouring of black powder etc. In fact, we could not fathom what prompted the Plaintiff to make such a statement which in all estimations was needless”. Finally, in 2021, Plaintiff invited the Defendants to the church premises on the disputed land; and for the first time ever, told Defendants MR. DANIEL KWADZOVI AVU NYATUAME had given the disputed land to the A. R. S Church, ABUTIA BRANCH. “As a matter of fact, the Plaintiff herein and for that matter the A. R. S. church has nothing at all to do with the disputed land. There are no available records to that effect”. The Defendants insisted that the particular parcel of Land the ARS Church was re- located to, belonged to the Plaintiff’s Wife MADAM PATIENCE MANSAH YAADOR (aka AKOS-NOR and ABOLO-TOR). It was allotted to her by their Father in his lifetime. At the end of a rather tumultuous trial, the following issues came up for determination: WHETHER OR NOT THE PLAINTIFF HAD PROVED HIS CLAIM? The Plaintiff called three Witnesses. Excerpts of their testimonies in favour of the Plaintiff are reproduced below: MR. LAWRENCE AMENYO NYATUAME: “5. My father until 1974, was a pagan. By oral tradition, I understood that my father got born again upon a vision which he had during a fishing expedition. I also understood that not too long after my father got born again, he was faced with so many issues prominent of which was a fierce land litigation with one, DR. SEGBAWU, which matter eventually ended up in the District Court, Anloga. 6. In the course of that litigation, my father went to the founder and spiritual leader of the Apostle Revelation Society (ARS) Church at Tadzewu and thereof made a vow that should God avenge him from his opponent, he would carve out a portion of his larger tract of land to the church for a place of worship to be constructed thereon. 7. My father, having come out of the said litigation successfully did faithfully redeem his vow by carving out the now disputed land to the church through the leadership of the church. 10. In 2007, the KORKOR family raised issues about the location of the church on the disputed land but my father due to the state of his health and for the fact that the Plaintiff herein was the minister in-charge of the church, asked the Plaintiff to go and face the matter.” DUMEGA ATSU NYATUAME: “7. Sometime after the parties father informed the family that due to some difficulties that he had been encountering he went and made a vow before the founder and spiritual leader of the A R S church at Tadzewu that should God favour him, he would give a portion of his land at ABUTIAGA to the church for a chapel to be built therein. 8. I quite remember that the leadership of the church came and presented some items a Ram, assorted, soft drinks and some money in appreciation of the gift in a brief ceremony. 9. Sometime later, the KORKOR family summoned the Plaintiffs before TOGBI SAMLAFO III of Woe in relation to the land. By virtue of my position as the head of the NYATUAME family well vested in the issues pertaining to the disputed land, I went with the Plaintiff to the chief’s arbitration and laid bare all the facts thereof and upon that a verdict was pronounced in favour of the Plaintiffs holding the land in trust for the church”. The following cases BEDU VRS AGBI [1972] 2 GLR 238 and NTIM VRS BOATENG [1963] 2 GLR 97; place emphasis on corroborative evidence. The Courts had held at different instances that; “Where a party makes an averment and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved the averment by merely going into the witness box and repeating the averment on oath, if he does not adduce corroborative evidence”. The various accounts above corroborated the account of Plaintiff perfectly. It was when each of the witnesses was under cross-examination from the Defendants that the well- rehearsed story started falling apart. For instance, Lawrence’s statement in paragraph ‘10’ was clearly false because, as at 2007, the plaintiff’s wife MADAM PATIENCE YAADOR was still farming on the land and so there was no Church on the site at the time. This position is supported by the criminal action instituted against ATSU RICHARD AYEKPLE in the same 2007, for allegedly stealing Madam Patience Yaador’s farm produce in that same year 2007. Finally, the Plaintiff himself had stated in paragraph ‘6’ of his witness statement that the ARS Church went into full possession and occupation of the disputed Land in 1976. That assertion was also false. At the time the Plaintiff’s wife was allotted part of the disputed land in 2005; Plaintiff told the Honourable Court the land was a Forest/Bushy. Plaintiff had been very consistent in denying his late Father’ title to the disputed Land. In the various Lawsuits that affected the disputed land, the Parties sued the representatives of MR. DANIEL KWADZOVI AVU NYATUAME. As a result, it was either his Children (including the Plaintiff herein), Brother DUMEGA ATSU NYATUAME, or other close relatives of his, who defended those actions. Unfortunately, those same close relatives of MR. DANIEL KWADZOVI AVU NYATUAME have today, divided their ranks and are either FOR or AGAINST his interest. No ARS Church Executive from their Headquarters in TADZEWU, stormed this Honourable Court with relevant Documents to prove the Church’s ownership of the disputed land. Plaintiff was urged on numerous instances to adduce relevant proof to establish his claim but he failed to do so. Plaintiff’s convenient argument was that the defendants were his Church Members. Plaintiff referred to himself and the other Children of MR. DANIEL KWADZOVI AVU NYATUAME as his Church Members whose allegiances were to the Church rather than to their late Father. In MAJOLAGBE VRS LARBI & ORS (1959) GLR 190. The Court held that, “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, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that 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.” Also in BARKER-WOOD VRS NANA FITZ [2007] SCGLR 879. The Court decided that; “The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” Plaintiff did not provide the Court with any documentary proof of the said Land transfer from his late Father to the Church. The defendants have vehemently denied the Plaintiff’s Claim in its entirety and the Plaintiff had failed to convince the Court that his assertions have substance. Even when the Court insisted that Plaintiff be allowed some extra time to find any proof probably from the Church’s Headquarters in TADZEWU; Plaintiff simply said, “THERE IS NOTHING LIKE THAT”. In the end, the Plaintiff failed to prove by which lawful mode his late Father transferred his Land to the APOSTLE REVELATION SOCIETY (ARS) CHURCH AT ABUTIA-WOE. WHETHER OR NOT DEFENDANTS HAD PROVED THEIR COUNTER-CLAIM? The Defendants counter-claimed against the Plaintiff for the following; 1. “Declaration of title and rightful ownership, occupation and possession of all that piece or parcel of land situate, lying and being at Akpadiekope-Abutiaga and bounded as follows: - On the Anloga side by BOSODUA On the Lagoon side by KORKOR FAMILY LAND On the Keta side by AVUBLATSI’S MUD PIT and On the Sea side by DANIEL KODZOVI AVU/ELEAFAME ATATSI. 2. Perpetual injunction order, restraining the Plaintiff by himself, his assigns, agents, associates, workmen and or labourers or any other person or persons claiming through the Plaintiff from having anything to do with the disputed land until the final determination of the suit. 3. General damages for trespass and unlawful encroachment. 4. Recovery of possession. 5. Costs”. ORDER 15 RULE 2 (1) AND (2) of C. I. 59 AS AMENDED; provide as follows; “Counterclaim, set-off 2. (1) A defendant in an action may set-off, or set up by way of counterclaim against claims of the plaintiff, any right or claim the defendant has in relation to the plaintiff. (2) A set-off or counterclaim under sub-rule (1) has the same effect as a statement of claim in a cross action and the Court may pronounce final judgment in the same action, both on the original and on the cross claim.” ORDER 12 OF C. I. 47 AS AMENDED; defines a counterclaim as; “A convenient procedure that enables a Defendant (Defendants) to make claims against the Plaintiff (Plaintiffs) for determination alongside the Plaintiffs’ claim.” The Honourable Court held in JAAS CO. LTD. & ANOR. VRS APAU & ANOR. (2009) SCGLR 263 @ 270 that; “Whenever a Defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as it was used to evaluate and assess the case of the Plaintiff against the Defendant. …… And that meant that they also assumed the position of a Plaintiff in respect of their counterclaim”. The Defendants put up an extremely good fight in defending the action. They were the first to inform the Honourable Court that the present location of the Church was Land their Late Father had gifted to MADAM PATIENCE MANSAH YAADOR (Plaintiff’s Wife), in his lifetime. It turned out when JOHNSON BESA NYATUAME drove the ARS Church out of his premises to put up his own building around 2010-2011, the Brothers held a meeting and consequently, settled on her plot of Land since none of them was willing to sacrifice their own lands for the Church. They literally conspired and took back Land their late Father had allotted to the Plaintiff’s Wife and built the ARS Church thereon. The sole witness for the defence was MADAM AWLOR NYATUAME. She provided the Court with a decent chronology of events. Excerpts of the Defence witness’s cross- examination by the Plaintiff is reproduced below: “Q: Is it not true that our Father died in 2009? A: Yes please. That is true. Q: In paragraph ‘11’ of your witness statement, you have stated we held a meeting with Our father to move the Church to the disputed Land. A: No please. That was not what I said. Q: Are you saying our Father was not there? A: Yes. Our Father was already dead before we held that meeting. Q: Do you remember our Father was alive before Johnson expressed the desire to build on his Land? A: No. Q: Did the Church’s Land not go before TOGBI SAMLAFO a second time? A: No please. It was only our Father’s Land that went before TOGBI SAMLAFO”. WHETHER OR NOT PLAINTIFF HAD FORFEITED HIS RIGHT TO REMAIN ON HIS LATE FATHER’S LAND? Plaintiff mounted a very serious challenge to the title of his late father, MR. DANIEL KWADZOVI AVU NYATUAME to his Lands. Plaintiff had also been very insistent on the fact that his brothers were allotted lands as Church-members and not as children of their Father. The Court realized the seriousness of the challenge and so pleaded with the Defendants to allow Plaintiff provide the necessary evidence to back his allegations. That is, any proof of transfer of his late father’s title in the disputed Land to the ABUTIA-WOE BRANCH of the APOSTLES REVELATION SOCIETY (ARS) Church. Any proof of Plaintiff’s assertion could have serious repercussions for the Defendants. By that same token, Plaintiff’s failure to prove such serious allegations must also attract substantial sanctions. It is trite knowledge that any denial of a Landlord’s Title to his Land by any person is an act that is likely to affect adversely and substantially, the interest of the Landlord and hence; is a ground for eviction of the tenant/person. The Plaintiff herein is not claiming the land for himself. He sought to claim it for an organization, which is the ARS Church, ABUTIA BRANCH. The Plaintiff cannot on one hand, oppose his late Father’s ownership of the disputed land and on the other hand, have a right of inheritance in the same Land through his late Father. The Plaintiff’s conduct is offensive. He has disqualified himself from such inheritance and estopped from asserting such rights in the disputed Land. That type of offence even received statutory backing in SECTIONS 27 OF THE EVIDENCE ACT, 1975 (NRCD 323). It provides as follows; 27) Estoppel of tenant to deny title of land-lord “Except as otherwise provided by law, including a rule of equity, against a claim by a tenant, the title of a landlord at the time of the commencement of their relation is conclusively presumed to be valid.” The Plaintiff was up in arms against his late Father’s estate. He claimed his father gave out the disputed land to the Church in 1976. The ARS Church takes its Properties seriously; and would not have abandoned the disputed Lands for close to THIRTY (30) YEARS if it were indeed their Property. The Court finds therefore, that MR. DANIEL KWADZOVI AVU NYATUAME was still in effective possession and occupation of his Lands; and continued to exercise acts of ownership by apportioning his Lands until his demise. That is sufficient proof the disputed land was still under his control. EVIDENCE OF COURT WITNESS, MADAM PATIENCE MANSAH YAADOR (PLAINTIFF’S WIFE): The Honourable Court was compelled to subpoena the Wife of Plaintiff, MADAM PATIENCE MANSAH YAADOR; to ascertain whether the current location of the ARS CHURCH at ABUTIA, was previously in her possession. Indeed, when she obliged the court with her testimony, those facts were clearly established. The Court’s witness could not provide us with dates. That notwithstanding, the relevant portions of her evidence were coherent, concise and very direct to the point. It has been transcribed verbatim below; “The Church was previously at the Roadside. When I got married to the Plaintiff, I assumed responsibility for cooking for his late father. I sought permission from him one day and he granted me the disputed Land to cultivate. It used to be a Bush/Forest. I have suffered on that land. Sometimes even ‘juju’ was planted on the land to harm me. On another occasion, I had to share my harvested Cassava with some BOSODUA Women. Then ATSU RICHARD AYEKPLE also stole my crops and the matter ended up in this very Court. Yet, after the death of my Father-in-law, his Children took the portion I was cultivating from me and placed the ARS Church there. I am not even a member of the Church. I want this Court to know that, if I were not in possession and occupation of the Church land, the KORKOR Family would have taken it from them after my Father-in-law died. My Father-in-law gave the Land to me to cultivate in his lifetime. After his death, they took it from me and put a church thereon. (At this point, the Witness started crying in open court)”. The Honourable Court finds that her Land actually serves as a last boundary to the KORKOR FAMILY LAND. By the time the Court’s Witness had finished her testimony, the Defendants had successfully rebutted the assertions of the Plaintiff and his witnesses, and had effectively, proved their counterclaim. EVALUATION OF THE EVIDENCE: A GIFT is a form of alienation of an interest in Property such as land. Its effect is to transfer the Title in the Property from the DONOR to the DONEE. According to the late Professor A. K. P. KLUDZE, although a gift is not a contractual transaction, in Customary Law such as that of the Ewes; once effected, it becomes irrevocable and binds the Donor and the Donee. Gifts of Land were not common. However, the outright gifts of Land have been known to be done among the Ewes in consideration for Marriages. It is therefore the determination of the Honourable Court that, the land allotted to MADAM PATIENCE MANSAH YAADOR by her late father-in-law MR. DANIEL KWADZOVI AVU NYATUAME, shall vest in her, and the descendants of Her Body in perpetuity. Again, since the Plaintiff could not produce any Documentary proof to support his claim, the Court hoped to rely on his Witnesses. As it turned out, they all came in with the same well-rehearsed story, which quickly crumbled under cross-examination. Publicity would have brought the Gift of Land to the ARS CHURCH, to the notice of the public and especially, to those who would, but for the GIFT, be entitled to inherit the said Property. A Land transaction ought to be in writing in order to be Valid. In the absence of such writing, PUBLICITY is crucially important. None of the above was reportedly done. The Plaintiff’s case finally crumbled when the few Witnesses he had rehearsed the evidence with fumbled in Court and for instance, stated differently that the Church was moved to its present location in 2005 and 2007. Only for Plaintiff to explain later that from 2005, his Wife continued farming on the land for some 5 to 6 more years. The bottom-line however is that, MR. DANIEL KWADZOVI AVU NYATUAME was still in possession and occupation of his Land to enable him grant Land to MADAM PATIENCE YAADOR around 2005 before his death in 2009. CONCLUSION: In BENYAK CO. LTD. VRS PAYTELL LTD. & OTHERS [2013-2014] 2 SCGLR 976. The Court held per ANIN-YEBOAH JSC (As he then was) as follows; “In all civil cases, where the Plaintiff’s averments are denied, the onus of proof falls squarely on him. He must do so on the preponderance of probabilities.”  Plaintiff sued the Defendants as the caretaker of the properties of APOSTLES REVELATION SOCIETY (ARS), CHURCH. ABUTIA BRANCH OF ANLOGA-WOE. Yet, he is no longer in charge of the said Abutia Branch of the Church.  Plaintiff, his Witnesses, the Defendants as well as their Witness, all attest to the fact that the disputed Land belonged to DANIEL KWADZOVI AVU NYATUAME.  Again, the Plaintiff, his Witnesses, the Defendants as well as their Witness, all qualified as Parties to the suit because they are Children and relatives of MR. DANIEL KWADZOVI AVU NYATUAME; and not as Members of the ARS CHURCH. Under the circumstances of Plaintiff’s inability to substantiate what he had alleged to be true, he forfeits his right to INHERIT the disputed Land; and hereby restrained from repeating such unsubstantiated claims against his late FATHER’s ESTATE forthwith. ORDERS:  PLAINTIFF’S ACTION FAILS AND HIS UNSUBSTANTIATED CLAIM IS DENIED IN ITS ENTIRETY.  ALL THE PARTIES AGREE THE DISPUTED LAND ORIGINALLY BELONGED TO THEIR FATHER DANIEL AVU KWADZO NYATUAME. THIS COURT AFFIRMS THAT AGREEMENT IN THE ABSENCE OF ANY CONTRARY SUPERIOR TITLE.  THIS COURT ACCORDINGLY DECLARES THAT LATE DANIEL KWADZOVI AVU NYATUAME REMAINS THE RIGHTFUL OWNER OF THE DISPUTED LAND.  THE 2019 PLAN OF LAND PREPARED BY THE PLAINTIFF IS FRAUDULENT AND IS ACCORDINGLY DECLARED INVALID.  BY DENYING HIS FATHER’S TITLE TO THE DISPUTED LAND; PLAINTIFF HAD BY STATUTE, FORFEITED HIS RIGHT TO INHERIT/ REMAIN ON HIS LATE FATHER’S LAND FORTHWITH.  THE PLOT OF LAND THE ARS CHURCH, ABUTIA BRANCH; IS CURRENTLY ON, IS HEREBY DECLARED THE PROPERTY OF MADAM PATIENCE MANSAH YAADOR; THE PLAINTIFF’S WIFE.  THE PLAINTIFF IS PERPETUALLY RESTRAINED FROM EVER REPEATING HIS UNSUBSTANTIATED CLAIM AGAINST HIS LATE FATHER’S BONAFIDE LANDS.  COSTS IS WAIVED ON HUMANITARIAN GROUNDS. . (SGD) REJOICE ASEYE GADAGOE DISTRICT MAGISTRATE ANLOGA 13/12/2022. 18