George Asani v Israel King of Jews Church and N’Akoah Nazareth Ansah Jamsom

Plaintiff filed this writ of summons on the 06/02/2023. Defendants entered appearance per their lawyers; Joseph Dindiok Kpemka on 16/02/2023 and filed defence on 19/05/2023.

Per the writ of summons, the plaintiff claims the following;

(a) Declaration of title to all that piece or parcel of land totaling approximately one (1) Acre and the recovery of possession of the said land in dispute situate and lying within Obeyeyie, forest reserve.

(b) Declaration that the 7.61 acres ecological forest reserve housing the Kofi Tsuru family deities and shrines is a protected area and must be free from all human activities.

(c) A declaration that the defendants Title Deeds, indentures and any other documents in possession of the Defendant in connection with the land in dispute, if any, were not genuine.

(d) An order directed at the Lands Commission to cancel and revoke all documents, title deeds, indentures and other transactions on the said land which have been made in favour of the Defendant, if any.

(e) Ejectment of the Defendant, its agents, executors, privies and assigns from the said land in dispute.

(f) Perpetual Injunction restraining the Defendant, its agents, assigns, heirs and executors from interfering with the quiet enjoyment of the land by the Plaintiff and his family.

(g) Damages for trespass.

(h) Costs.

The Defendants vehemently oppose the action and aver that:

i. The land in dispute was granted to them in 2007 by the then head of the Kofi Tsuru family, Nii Tei Ayi, as a valid customary gift;

ii. The gift was accepted, and appropriate customary "aseda" was rendered in the form of monetary payment and drinks;

iii. A formal Deed of Gift was executed and registered at the Lands Commission with lodgment number LVB6295/08.

iv. At the time of the grant, the land was vacant, and no shrine or deity existed on it;

v. The Defendants have since taken lawful possession and control of the land and have resisted unauthorized encroachments by persons purporting to act on behalf of the Plaintiff.

Defendant therefore counterclaims as follows;

1. Declaration that the 1st defendant is the owner of all that piece or parcel of land situate and located at Obeyeyie in the Greater Accra Region of the Republic of Ghana containing an approximate area of 8.37 acres more or less and bounded on the North West by vendors (Kofi Tsuru family land) measuring 357.9 feet more or less, north East by vendor’s land measuring

726.9 feet more or less, South East by proposed road measuring 788.6 feet more or less, South West by vendor’s land measuring 764.4 feet more or lessNwhich piece or parcel of land is more particularly delineated on the plan attached hereto and thereon.

2. An order of perpetual injunction restraining the plaintiff acting by himself, his agents, assigns, privies and whosever, howsoever described from interfering with 1st defendant’s ownership, possession and quiet enjoyment of the land.

3. Costs including solicitor’s fees.

The following issues were filed and set down for trial:

(a) Whether or not the Defendants ever acquired the land in dispute from the Kofi Tsuru Family.

(b) Whether or not Kofi Tsuru Family of Obeyeyie ever made a gift of land in dispute to the Defendants.

(c) Whether or not the land in dispute being an ecological forest also houses the deities of the family.

(d) Whether or not Nii Tei Ayi (deceased) the then Head of Family had the capacity to grant land as gift without the consent of the elders of the family.

(e) Any other issues arising out of the pleadings.

PROOF IN CIVIL CASES

The law is clear that proof in civil matters is by preponderance of probabilities. In the case of NANA OBIRI BOAHEN VS. GLODEN AGE COMPANY (J/4/64/2018) [2021]

Unreported SC (29 July,2021); Dordzi JSC held;

“Proof in civil matter is on the preponderance of probabilities. Section 12(2) of the Evidence Act, 1975 NRCD 323 defines proof by a preponderance of the probabilities as follows: (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.”

So therefore, the standard burden of proof in civil matters including land is provided for by sections 11(4) and 12(1) of the Evidence Act, 1975 (Act 323). The sections provide as follows;

Section 11(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.”

12(1) “Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities.”

In land matters where a party prays for declaration of title to the land, the law requires that that party must prove his root of title, mode of acquisition and acts of possession. In the case of Adwoa Bokor v. Madam Agbo Addoye (Substituted by Phillip Odoi) [2021] Unreported SC 2021-12-08 (Civil Appeal NO. J4/38/2021) Torkornoo JSC held “As asserted in Mondial Venner (GH) LTD v. Amuah Gyedu XV 2011 1 SCGLR 466 @475, the law requires that person asserting title and on whom the burden falls, must prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the standard of balance of probabilities that the party would be entitled to the claim; Adwubeng v. Domfeh [1996-97] SCGLR 667 at 669.

DETERMINATION OF THE ISSUES

Preliminary issue on issue (c) that is whether or not the land in issue houses the deities of the family.

Deities are described by Oxford dictionary as a god or goddess or anything revered as divine. Plaintiff has invited this court to rule on whether or not the land in issue houses deities. This court is unable to tell whether spirits reside in the objects in pictures tendered as exhibits before the court. This is also because there is no role of spirit beings before the courts of law in Ghana. The Judges are unable to decide on presence of spirit beings.

ISSUE ONE

(a) Whether or not the family head alone can sell or gift a family land to anyone. issue (d) above. (Whether or not Nii Tei Ayi (deceased) the then Head of Family had the capacity to grant land as gift without the consent of the elders of the family.)

Authorities are of the view that a family land is land owned by the members of a particular family. See page 33 of Land Law, Practice and Conveyance in Ghana 2nd Ed by Dennis Dominic Adjei. The Plaintiff who sued in his capacity as a family head, tendered Exhibit A series which are pictures showing his nomination and installation as the head of the Nii Kofi Tsuru (Churu) family of Obeyeyie, Accra. The general rule is that the family head is to maintain an action against another to protect family property. However, under certain circumstances any member of the family, or authorized by the family may take an action when family property is under threat of being lost. Please see the case of Kasseke Akoto Dugbartey Sappor & 2 Others (substituted by Atteh Sappor) v. Very Rev. Solomon Dugbartey Sappor (substituted by Ebenezer Tekpertey Akwetey Sappor) & 4 Ors, [2021] Unreported SC CIVIL APPEAL NO. J4/46/2020 (13th Jan., 2021)

On the issue of whether the family Head alone can alienate family land, the principle of law is that, alienation of family land must be by the head of family with the consent and concurrence of the principal members of the family. Please see Dora Boateng V. Mckeown Investment Ltd. (J4/12A/2019) [2020] Unreported SC (05 Feb., 2020).

Plaintiff’s only witness testified as follows; He is the current head of family of Nii Kofi Tsuru family of Obeyeyie, Accra. He was installed as Head of family in the year 2019. He testified further that within their land is ecological forest reserve covering approximately 7.61 acres, the only surviving ecological forest reserve of the area which also houses family deities. Plaintiff testified that Kofi Tsuru Family of Obeyeyie never made a gift of land in dispute to the Defendants. Plaintiff testified further that, sometime in the year 2007, the defendant was found with a Global Positioning System (GPS) equipment on the forest land. His equipment was seized by the family on the orders of Nii Tei Ayi (deceased), the then head of family and his elders. According to the Plaintiff, defendants alleged that the former head of Nii Kofi Tsuru [now deceased] gifted the land in issue to them which they, Plaintiff deny.

Defendant’s only witness testified as follows; that somewhere in 2007, the leadership of the church approached the Kofi Tsuru family of Nsakina and Obeyeyie to inquire if they had any parcel of land to grant them. That the then family head, Nii Tei Ayi took the representatives of the defendant to a large vacant parcel of land located at Obeyeyie and, offered to grant the church some portions for free to be used for God’s work but with an opportunity for the church to show an appreciation with something of its choice and determination. That a surveyor was contracted by the defendant and upon the directions of the elders of the family, measurement was taken of the land. That the 1st defendant paid GHc100,000.00 and some customary drinks as a way of appreciation. Exhibit 1 was tendered as the deed of gift. That the defendant registered the land at the Lands Commission with the lodgment details LVB6295/08.

THE ISSUE OF A GIFT OF LAND

Defendants testified that the land in issue was gifted to them by NII TEI AYi, the then head of plaintiff’s family. Authorities are of the view that, a gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. Thus, when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made. Please see the case of ABDUL RAHMAN V. BABA LADI; CIVIL APPEAL NO. J4/36/2013, 29TH JULY, 2013.

In this case Defendants who are alleging that a gift of the land was made to them have the onus to prove the date the gift was made, the occasion the gift was made, venue at which the gift was made and in whose presence the gift was made. Defendant’s witness testified only as to date the gift was made. He testified that the gift was made in the presence of 1st defendant on 2nd October, 2007. In the closing address of the learned counsel for the defendants, he submitted that “the cornerstone of the Defendants’ claim lies in the fact that the land in dispute was voluntarily and lawfully gifted to them by the then legitimate Head of Family of the Kofi Tsuru family, Nii Tei Ayi, acting on behalf of the family.” From the evidence on record, defendants were not able to lead any cogent evidence as to which of the elders of the Plaintiff’s family was present when the Head of plaintiff’s family, purportedly gifted the land in issue to them. Learned counsel for the plaintiff’s in his closing address submitted as follows: “the Defendants per their pleadings alleged that they got the land in dispute from the Plaintiff’s Family in the year 2007 through a gift from the then Head of family Nii Tei Ayi (deceased). He submitted further that, in the Defendants attempt to discharge burden of persuasion placed on them, the Defendants in their evidence in chief annexed only exhibit “1” being an indenture titled “Deed of Gift” allegedly executed by Nii Tei Ayi (deceased) the then head of the Plaintiff’s family, and purportedly witnessed by a Samuel Ahiavor and Lawrence Ocquaye who are not family members of the Plaintiff’s family but believed to be members of the Defendants’ church. For a gift of a family land to Defendants must be done in the presence of family members. The Head of family alone cannot gift the family property to anyone.

From the evidence, defendants were not able to prove that the land in issue was gifted to them by Kofi Tsuru family, by calling any witness who is a principal member of the Kofi Tsuru family, who was present when the land in issue was gifted to defendants. Based on the evidence on record, the laws on gift of family land, I hold that there was no valid gift of the land in issue to the Defendants. This is mainly because, the alleged gift was not done in the presence of any member of Plaintiff’s family.

Plaintiff’s pleaded fraud. They testified that the defendants perpetrated fraud against the plaintiff’s family. Defendants denied this assertion. Fraud as we all know is a criminal offence. The principle of law is that, when a crime is alleged in a civil case a higher standard of proof is required. The legal luminaries are of the view that, where a party alleges any criminal conduct such as fraud and forgery against another party in a land matter, he shall be required to prove the allegation of criminal conduct on the standard burden of proof in criminal matters, that is, proof beyond a reasonable doubt, and in the case of the civil aspect, he shall prove same by a preponderance of the probabilities. Even though it is one land matter, both burdens of proof shall be used by virtue of the allegation of fraud and forgery made against the opponent.

(See SUSU BAMFO V. SINTIM [2012] 1 SCGLR 136, LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, (Adwinsa Publications, 2015) by Dennis Dominic Adjei at page 129).

The Offence of Defrauding by False Pretences is provided for under Section 131(1) of the Criminal Offences Act, (1960) Act 29.

Section 132 of Act 29 defines Defrauding by false Pretence as follows:

‘A person defrauds by false pretence if by means of a false pretence or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing’.

Section 133(1) then defines what a false pretence is. It states as follows:

‘A false pretence is a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true, and made with an intent to defraud.’

In the closing submissions made by learned counsel for the plaintiff he stated « besides the serious doubts raised in the execution of the document, Defendants’ exhibit “1’ is highly pregnant with fundamental flaws that are clear on the face of the document that points to nothing but fraud. He submitted further that, Exhibit”1” of the Defendants’ is titled “Deed of Gift” however, paragraphs 3, 4, and 5 of the said document being the recitals, clearly points to a sale or purchase with the use the words “Sale”, “Purchaser” and “Vendor” clearly stated in the said paragraphs. That the issue of whether the Defendant got the property through gift becomes murkier when the Defendant witness was shown plaintiff’s Exhibit “J” another indenture allegedly executed by the Plaintiff’ predecessor also in 2007. But the said Exhibit “J” is a “Deed of Lease”.

The Defendants’ witness admitted to the existence of the Plaintiffs exhibit “J” in the

following excerpts of his cross-examination on 15th May 2025

Q: I put it to you that the 2nd Defendant when challenged produced a lease Exhibit

“J” of the Plaintiff which is a deed of lease entered into on 28th October, 2007. A: That is so.

Q: When you take a look at exhibit “J” there is a stamp under the supposed thumbprint of Nii Tei Ayi, that is Obeyeyie Family, I suggest to you that there is no family called Obeyeyie Family, and the stamp does not exist in the Plaintiff’s family.

A: That is not so.

Defendants have not been able to produce evidence to contradict the evidence by the Plaintiffs that in the year 2007 when the surveyor of the defendants entered unto the land, they were chased out. The chasing out of the defendants and the surveyors was ordered by the then Head of family, Nii Tei Ayi, according to the evidence of the Plaintiff. The Plaintiff who has the onus of proof have been able to provide concrete evidence that, the defendants did not obtain the thumbprint of Nii Tei Ayi (deceased), the then head of family. And that their land documents are not stamped but exhibit J was stamped with a name Obeyeyie family which did not represent their family. If that is what plaintiffs are alleging, then it is an issue of forgery rather than fraud.

In view of the discussions above, I am of the view that, the Plaintiff was unable to prove the allegation of fraud against the defendants beyond reasonable doubts.

Learned Counsel for the defendants submitted that “In the celebrated case of BENJAMIN DANQUAH V. AGNES AHADZI, the Supreme Court held that mere irregularities are insufficient to warrant the cancellation of a registered title. It must be proven that the title was obtained through fraudulent misrepresentation, material non-disclosure, or a fundamental legal defect. The Court stated clearly that: “The principle of indefeasibility of title is not absolute, but fraud must be strictly proven and cannot be inferred lightly.”

In the case before me, the defendants who had the onus of proof that their title was obtained regularly in conformity with principles of law, that is to say the land was gifted to them by the former head of Plaintiff’s family in the presence of the principal members of the family, and that they presented Aseda on a specific day and date, were unable to lead any evidence to that effect. This means that the alleged transfer of the land from the Plaintiff’s family to the defendants has a fundamental legal defect. It is my holding that the Plaintiff has discharged his burden of proof that their former family Head did not gift any portion of the land in issue to the Defendants. In one vein per exhibit J, defendants stated the land was leased to them. However, per exhibit 1 which is the deed of gift, defendants testified that the land was gifted to them. However, parts of Exhibit 1, paragraphs 3,4 &5 thereabout addresses a purchase of the land dispute and not a gift which is at variance with the testimony that the land in dispute was gifted. The basis of the registration which is exhibit 1 is faulty. One cannot put something on nothing and expect it to stand. Therefore, the registration of the land in the name of the defendants is null and void.

ISSUE TWO

Whether or not the land in dispute belongs to the Plaintiff’s family.

Plaintiffs prayed for declaration of title to the land, recovery of possession and injunction. The principle of law on recovery of possession and declaration of title to the land is that he who claims for recovery of possession and declaration of title is to clearly describe the land in issue.

In the case of Griffith Sowah Osekre & Regsma vrs. Abdul Latif Karroum & Eric Osei Kwaku [2020] Unreported CA, Civil Appeal No. H1/65/2015 It was held … it is incumbent on a party who claims for declaration of title to land, injunction and recovery of possession to clearly describe the land claimed.

Please see also the cases of Anane v. Donkor [1965] GLR 188 SC KWABENA V. ATUAHENE [1981] GLR 136 SC HOLDING 3

ASHALLEY BOTWE LANDS, ADJEITEY AGBOSU & Ors V. KOTEY & ORS [2003- 2004] SCGLR 420; 438

Plaintiff testified that Kofi Tsuru Family owns a large track of land stretching from the banks of the Nsaki River (Nsakina) to share boundary with Achiaman and Abehenease settlements in the Ga West District. That the land was granted to their patriarch Nii Kofi Tsuru (Deceased) by his grandfather Nii Odartei of ancient time. That the land measure 7811.42 feet more or less on the North-East bounded by the Abehenease land, measuring 12,441.10 feet more or less on the East bounded by Abehenease land measuring 11,329.42 feet more or less on the South bounded by Ponku’s land measuring 12,329.42 more or less on the West bounded by Nii Achia’s land measuring 3,842.47 feet more or less on the North West bounded by Cheaku’s land and measuring 7,756.11 feet more or less on the North bounded Cheaku’s land containing approximately 4,235.49 acres or 1,714 Hectares particularly delineated and adged pink on the site plan situate lying and being between the Nsaki river and the Achiaman village in the Ga West District, Accra. Further, that his family has been in effective possession and occupation of the land since time immemorial and has passed on the management to subsequent generations which was administered by the successive Heads of the family including the immediate predecessors Nii Tei Ayi and Edward Kissie Ashong (All deceased).

It has been suggested by Yaw Oppong, in his book: “Contemporary Trends In The

Law of Immovable Property in Ghana” Published by the Black Mask Limited (2019)

at pages 284 that “The concept of possession is an important mode by which a person may acquire an interest in land …”. According to the learned author at page 286, he opined “it needs to be emphasized that possession is a presumption of ownership, as stipulated in section 48 of the Evidence Act. It is therefore rebuttable at the trial by adducing of evidence. In transactions concerning land, especially at customary law, possession or occupation could be consistent with either ownership, license or pledge as well as with trespass.”

It has also been held in the case of Asare v Appaw II [1984] GLR 59 that “A person in possession is prima facie entitled to the land.” Plaintiff testified that the land in issue was granted to their ancestor Nii Kofi Tsuru (Deceased) by his grandfather, Nii Odartei of ancient time. Plaintiff testified further that Judgements in two suits; Suits Nos; 175/48 and L/93/58 both titled Amartei Kofi v. Kwei Mensah described the boundaries of their family land. That there is an ecological forest reserve covering 7.61 acres, the only surviving ecological forest reserve of the area which also houses the family deities. Exhibit F and F1 show the pictures of the alleged deities. The defendants on the other hand also testified that they are in possession of the area of land in dispute.

I am of the view and I so hold that, the Plaintiff satisfied the rules by describing their land as testified by the plaintiff in immediately above, proved his root of title, mode of acquisition and acts of possession. With the whole evidence; exhibits and testimony before this court, I hold that the land in issue belongs to Plaintiff’s family.

ISSUE THREE

Plaintiffs prayed the court for an order directed at the Lands Commission to cancel and revoke all documents, title deeds, indentures and other transactions on the said land which have been made in favour of the Defendant, if any. Defendants tendered land title certificate exhibit 1. Learned counsel for the defendants in his closing address submitted that “it is the respectful submission of the Defendants that their registered

interest in the land in dispute is not only valid but protected under the current legal regime governing land ownership in Ghana, the Land Act, 2020 (Act 1036).

Section 97(1) of Act 1036 provides that: “A certificate of title issued by the Lands Commission in respect of land registered under this Act shall be prima facie evidence of the matters stated in the certificate and of the interest of the proprietor in the land.”

This provision enshrines the principle that registration confers legal protection and evidentiary weight to the interest of the registered proprietor, in this case, the Defendants.

More importantly, Section 98(1) of the Act states: “Subject to this Act, the rights of a person registered in the land register as proprietor of an interest in land are indefeasible.” The word “indefeasible” as used in the statute means that, once registration is complete, the title cannot be defeated or challenged except under limited and statutorily defined circumstances. These exceptions are explicitly listed under Section 98(2), and they include:

• Fraud or dishonesty on the part of the registered proprietor.

• A void or illegal transaction.

• An interest that was wrongly registered due to a mistake attributable to the

Commission.

Learned counsel for the defendant submitted further that, in the present case:

• There is no fraud on the part of the Defendants.

• There is no evidence of dishonesty.

• The registration was not based on a void transaction, but on a duly executed

and registered deed of gift.

• The Lands Commission has not admitted to any mistake.

Contrary to the submissions of learned counsel for the Defendants, the law is trite that, land title certificate is not automatic evidence of ownership of land, the validity of the title can be impugned, registration of land per se does not confer automatic title. In the case of Awuku v. Tetteh [2011] 1 SCGLR 366, it was held that “Even if the appellant has registered his document of title, the registration per se would not confer title on a person, what matters was the underlying facts. In the case before me, the plaintiff testified that their late Head of family never gifted the land in issue to the Defendants. Defendants alleged that they paid GHC100,000.00 to the then Head of family and presented drinks but they did not present any receipt of payment to the court. Defendants have not been able to prove that, the then Head of family, Nii Tei Ayi gifted the land in issue to them in the presence of any principal member(s) of his family. I have no contrary view to the assertions by the Plaintiff, it is the holding of this court that, the registration of the land in issue by the Lands Commission, was in error as the alleged gift has a legal defect. The registration as in exhibit is hereby revoked.

On the issue of damages for trespass, the law is trite that general damages need not to be proven. In the case of NUNEKPEKU AND OTHERS V. AMETEFE [1966] GLR 249 it had been held that “In an action the true nature of which was damages for trespass to land it was sufficient for the plaintiff to establish possession. It was only where there was specific or general denial of his title that the plaintiff could not succeed without proving his title. An action for the recovery of possession was a wrong against possession, and therefore the main fact which a plaintiff must prove in order to succeed was possession. But where, the defendant pleaded possession then it was incumbent upon the plaintiff to prove that he was in possession at the time the defendant entered upon the land and wrongfully dispossessed him of it.”

Where the defendant enters upon the land with a permission, the courts do not grant damages for trespass. In the case of Ebenezer Kwaku and Others v. Otibu IV (J4/53/2021) [2021] Unreported SC (7th July, 2021) The SC held “We again set aside the award of damages made issue to the Defendants. In one vein per exhibit J, defendants stated the land was leased to them. However, per exhibit 1 which is the deed of gift, defendants testified that the land was gifted to them. However, parts of Exhibit 1, paragraphs 3,4 &5 thereabout addresses a purchase of the land dispute and not a gift which is at variance with the testimony that the land in dispute was gifted. The basis of the registration which is exhibit 1 is faulty. One cannot put something on nothing and expect it to stand. Therefore, the registration of the land in the name of the defendants is null and void.

ISSUE TWO

Whether or not the land in dispute belongs to the Plaintiff’s family.

Plaintiffs prayed for declaration of title to the land, recovery of possession and injunction. The principle of law on recovery of possession and declaration of title to the land is that he who claims for recovery of possession and declaration of title is to clearly describe the land in issue.

In the case of Griffith Sowah Osekre & Regsma vrs. Abdul Latif Karroum & Eric Osei Kwaku [2020] Unreported CA, Civil Appeal No. H1/65/2015 It was held … it is incumbent on a party who claims for declaration of title to land, injunction and recovery of possession to clearly describe the land claimed.

Please see also the cases of Anane v. Donkor [1965] GLR 188 SC KWABENA V. ATUAHENE [1981] GLR 136 SC HOLDING 3

ASHALLEY BOTWE LANDS, ADJEITEY AGBOSU & Ors V. KOTEY & ORS [2003- 2004] SCGLR 420; 438

(b) A declaration that the defendants Title Deeds, indentures and any other documents in possession of the Defendant in connection with the land in dispute, if any, were not genuine.