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Property -
Movable and immovable properties
- Recovery of possession -
Voluntary Association -
Cessation of affiliation -
Non-denominational - Order for
accounts in respect of all
properties - Order compelling
the 1st defendant to
surrender his credentials –
Fraud. - Whether or not
Was
the Calvary Charismatic centre a
local church of the Assemblies
of God, Ghana upon its
establishment in 1985 or became
an affiliate only in 1990 when
it acquired the “set in order”
status - Whether or not
the
decision of the Board of the
Calvary Charismatic Centre to
cease affiliation with the
Assemblies of God church in
November 1992 amounted to a
division or secession from the
Assemblies of God -
Whether the plaintiffs lack
capacity to have instituted the
suit against defendants. Put in
other words, was the amendment
of the capacity of the
plaintiffs by the Court of
Appeal proper - Rule 15
(6) of the Supreme Court Rules
1996, C. I. 16 - under rule 15
of the Court of Appeal Rules,
1997 C.1.19. - Section 26 of the
Evidence Act 1975 NRCD 323
HEADNOTES
The facts of
this case admit of no
controversy whatsoever. The
genesis of this case is a letter
written by the defendants, on
the 16 day of November, 1992, in
their capacity as the Board of
the Calvary Charismatic Centre,
(hereafter referred to as
C.C.C.) and addressed to the
plaintiffs, wherein the
plaintiffs were informed that
the defendants had decided to
cease affiliation with the
Assemblies of God denomination,
i.e. the plaintiffs church with
effect from 19th
November, 1992. The plaintiffs
averred that the 1st
defendant, was until the letter
referred to, plaintiffs was the
local Pastor in charge of the
Calvary Charismatic Centre
Assembly of God Church, Kumasi
whilst the other defendants were
Deacons and members of the said
church all in Kumasi, the
plaintiff’s averred that the
Calvary Charismatic Centre,
being a local church of the
Assemblies of God, Ghana is
governed by three constitutions
of the church, The Constitution
and bye laws of the Assemblies
of God, Ghana, The Constitution
and bye laws of the Assemblies
of God, Ghana, Mid-Ghana
District, The Constitution and
bye laws of the local Churches
of the Assemblies of God The
plaintiff church is a National
Church having branches
throughout Ghana and has for
purposes of administrative
convenience been divided into
three major Districts, namely,
The Coastal Ghana District,
The Mid-Ghana District and
The Northern Ghana District
The Kumasi local churches
come under the mid-Ghana
District, including the
Plaintiffs’ church as well as
the Calvary Charismatic Centre
Assemblies of God, local Church.
After the successful completion
of the Pastoral course, the 1st
defendant was appointed an
Associate Pastor of the Central
Assembly of God Church, a.k.a
Light House Assemblies of God, a
local Church of the Assemblies
of God, Ghana in Kumasi. In
April, 1985 the 1st
defendant resigned as Associate
Pastor of the Light House
Assembly of God in order to
plant the Calvary Charismatic
Centre. Whilst the plaintiff’s
contend that this local Church,
the Calvary Charismatic Centre
was an Assemblies of God Church,
the defendants state otherwise
the High Court, Kumasi delivered
judgment in favour of the
Plaintiff, the Court of Appeal
by a majority decision,
dismissed the case and the
judgment of the Court below
affirmed with express variation
HELD
From the
scenario that had been given in
the record of appeal, it is
clear that, division and
cessation can be used
interchangeably since they meant
one and the same thing. So far
as we are concerned, the
findings of the learned trial
Judge on this issue and
concurred in by the Court of
appeal are sound both on the
facts and the law and we find no
reason to disturb them. On the
whole, we endorse the finding
that what happened in the CCC
was a division and that in the
context of this case cessation
and division mean the same thing
Apart from the above law, the
church’s own constitution which
we have referred to supra states
that, in case of division within
the membership of the church,
all church property shall remain
for the General Council of the
Assemblies of God, Ghana. It is
in view of the above reasons
that we endorse the variation of
the judgment as was ordered to
be effected by the Court of
Appeal. In the premises the
appeal filed herein against the
majority judgment of the Court
of Appeal dated 22nd
April, 2005 is accordingly
dismissed. Instead the judgment
of the trial High Court dated 11th
December, 2001 as was varied per
the majority judgment of the
Court of Appeal dated 22nd
April 2005 is upheld in its
entirety. The appeal fails and
is accordingly dismissed
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules 1996, C. I. 16
Evidence Act
1975 NRCD 323
Religious
Bodies (Registration Law 1989
PNDC L 221).
Trustees
Incorporation Act, 1972 Act 106.
Court of
Appeal Rules, 1997 C.1.19
CASES
REFERRED TO IN JUDGMENT
Achoro vrs
Akanfela [1996-97] SCGLR 209,
Thomas vrs
Thomas [1947] AER 582
Clarke vrs
Edinburgh Tramways and District
Tramways Co.1919 S.C.H.L. 35, 56
SC. LR. 86L
Powell vrs
Streatham Manor Home [1935] A.C.
243 at 250
Akuffo-Addo
vrs Cathline [1992] 1 GLR 377
per Osei-Hwere
Ghana Ports
and Harbours Authority vrs
Issoufou [1993-94] 1 GLR 24 S.C
Hanna Assi
(No.2) vrs GIHOC Refrigeration
and Household Products Ltd
(No.2) [2007-2008] SCGLR
Gihoc
Refrigeration & Household
Product Ltd. (No 1) v Hanna Assi
(No 1) [2007-2008] SCGLR 1
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC:
COUNSEL
DERY & CO. COUNSEL FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
KWAME A. BOAFO FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
DOTSE, JSC:
The fact,
that, this case, concerning a
reputable House of God and
others also reputed to be very
outstanding and charismatic men
of God has come to the
litigation altar of the civil
Courts and made to travel all
the way from the High Court,
through the Court of Appeal, to
this Court is indeed a sad
reflection on Christendom.
In this
respect therefore, we would want
to reflect on the following two
quotations as we journey through
this exercise to resolve the
final victor in the sight of
men.
1.
Mathew 16, 24 -25
“Then Jesus said to his
disciples, if anyone desires to
come after me, let him deny
himself and take up his cross,
and follow me, for whoever
desires to save his life will
lose it, but whoever loses his
life for my sake will find it”
2.
“Let each one remember that he
will make progress in all
spiritual things only in so far
as he rids himself of self
love, self-will and self
interest.
St. Ignatius Loyola
BRIEF FACTS
OF THE CASE
The facts of
this case admit of no
controversy whatsoever. The
genesis of this case is a letter
written by the
defendants/appellants/appellants,
hereinafter referred to simply
as the Defendants on the 16 day
of November, 1992, in their
capacity as the Board of the
Calvary Charismatic Centre,
(hereafter referred to as
C.C.C.) and addressed to the
plaintiffs/respondents/respondents
hereinafter referred to as the
plaintiffs, wherein the
plaintiffs were informed that
the defendants had decided to
cease affiliation with the
Assemblies of God denomination,
i.e. the plaintiffs church with
effect from 19th
November, 1992.
In view of
the profound effect which this
letter generated and also its
effect on the totality of the
entire suit, we deem it fit and
proper to reproduce it in
extenso.
It must be
noted that this letter was
tendered in evidence by the
plaintiffs as exhibit BB and is
produced on page 967 of volume
one of the record of appeal
(ROA).It provides as follows:-
“Calvary
Charismatic Centre
The Executive
Presbytery
Assemblies of
God Church
P. O. Box
7644
Accra-North
Dear Partners
of the Inheritance
It is with
great joy and expectation that
we announce to you the
tremendous things that the Lord
is doing in our midst here in
Calvary Charismatic Centre. It
has not been rosy, but the good
Lord has granted us the strength
and wisdom to go through the
many phases of ministry that we
have already gone through.
”Precept upon precept, line upon
line, here a little, there a
little we are surging on in the
pursuit of the vision that God
has given as a local Church.
We are happy
to announce to you our entry
into a new phase of Ministry
that demands emphasis on the
five-fold gift of Ministry, as
well as enriching the body of
Christ with all the experience
that he has given us by His
Spirit. In this phase of
Ministry, the Holy Spirit is
leading us in the direction of
freely sharing with the Body of
Christ all that he has freely
given us, spiritually,
materially and socially.
As you may
infer from the nature of the
call, we have realized the need
to stay neutral from all
denomination affiliations if we
are to obey and pursue the will
of the Holy Spirit in an
impartial and faithful
ministration to His body.
We therefore
announce to you the cessation of
our affiliation with the
Assemblies of God denomination
with effect from 19th
November, 1992.
As we have
already mentioned we are called
into ministry unto the whole
body of Christ of which the
Assemblies of God Church is a
member. This means that we
should freely and wholeheartedly
render our services to the
Assemblies of God Church as a
member of the body of Christ and
as much as we are led by the
Holy Sprit to.
We thank the
Lord for all that he has taught
us while we remained part of the
denomination, and we are more
grateful to him for the greater
things he has in store for us as
we faithfully obey his call and
remain
non-denominational.
May the Lord
continue to bless us all, as we
obey His voice and allow
ourselves to be used by His
spirit in building His body.
Yours in His
Service
Rev. Ransford
Obeng
Joseph Opoku
C.K. Acolatse
R. K.Owusu
and
C.O.Kpodo
CC: The
District Superintendent
Mid-Ghana
Kumasi”
The above
letter led to a series of
attempts by the plaintiffs to
play it soft with the
Defendants’ but when the latter
signified their non-negotiable
doctrine about the cessation of
affiliation, the plaintiffs on
the 2nd of February,
1993 issued a writ of summons
against all the above
signatories in the High Court,
Kumasi claiming the following
reliefs.
1.
“A declaration that by seceding
from the Assemblies of God,
Ghana, the defendants have
ceased to be members of the
Church.
2.
A declaration that the Calvary
Charismatic Centre, a local
Assembly of the plaintiff’s
church i.e. the
Church
building or Auditorium and the
office block are part of the
plaintiff’s Church or same
belongs to the plaintiffs’
Church and same are held by the
plaintiff’s in trust for the
Assemblies of God Church, Ghana.
3.
A declaration that
movable
and immovable properties of
the said Calvary Charismatic
Centre are properties of the
plaintiffs Church, Assemblies of
God, Ghana.
4.
Recovery of possession
of all properties of the Church
in possession of the Defendants.
5.
Order for accounts in respect of
all properties
of the Church in possession of
the defendants.
6.
Order compelling the 1st
defendant to surrender his
credentials
to the plaintiffs after ceasing
to be an accredited Pastor of
the plaintiff’s church.
7.
Perpetual injunction restraining
the defendants, their agents,
workmen, servants, relatives,
supporters and assigns from
entering upon, dealing with or
in any way interfering with the
plaintiffs local church known as
Calvary Charismatic Centre
Church building, offices or any
other property of the Church”
In support of
the above reliefs
the
plaintiffs averred that the 1st
defendant for example, was until
the letter of 19th
November 1992, referred to
supra, plaintiffs local Pastor
in charge of the Calvary
Charismatic Centre Assembly of
God Church, Kumasi whilst the
other defendants were Deacons
and members of the said church
all in Kumasi.
In further
support of their claims,
the
plaintiff’s averred that the
Calvary Charismatic Centre,
being a local church of the
Assemblies of God, Ghana is
governed by three constitutions
of the church, namely:
1.
The Constitution and bye laws of
the Assemblies of God, Ghana,
- Exhibit C, see pages 729 – 785
of record of appeal, Volume I.
2.
The Constitution and bye laws of
the Assemblies of God, Ghana,
Mid-Ghana District,
Exhibit C1 reference pages
786-804 volume I of the record
of appeal.
3.
The Constitution and bye laws of
the local Churches of the
Assemblies of God
and Exhibit C2, reference pages
805 – 833 of volume I of record
of appeal.
It is
important to note that these
three constitutions had been
tendered in this case as
exhibits C, C1, and C2.
It is
important to note that the
following facts are not in
dispute:
1.
The plaintiff church is a
National Church having branches
throughout Ghana and has for
purposes of administrative
convenience been divided into
three major Districts, namely
a.
The Coastal Ghana District
b.
The Mid-Ghana District and
c.
The Northern Ghana District
The Kumasi
local churches come under the
mid-Ghana District, including
the Plaintiffs’ church as well
as the Calvary Charismatic
Centre Assemblies of God, local
Church.
2.
The 1st defendant was
trained as a Pastor at the
Southern Ghana Assemblies of God
Bible Institute at Saltpond from
1977-1979.
3.
After the successful completion
of the Pastoral course, the 1st
defendant was appointed an
Associate Pastor of the Central
Assembly of God Church, a.k.a
Light House Assemblies of God, a
local Church of the Assemblies
of God, Ghana in Kumasi.
4.
In April, 1985 the 1st
defendant resigned as Associate
Pastor of the Light House
Assembly of God in order to
plant the Calvary Charismatic
Centre. Whilst the plaintiff’s
contend that this local Church,
the Calvary Charismatic Centre
was an Assemblies of God Church,
the defendants state otherwise.
Since this is a key issue in the
determination of the instant
appeal, I will only state the
undisputed facts as above.
5.
The Calvary Charismatic Centre
was established basically as
English-speaking Church, to
serve the needs of the non-Akan
speaking members of the church
in Kumasi.
6.
The 1st defendant
served as the District Treasurer
for the mid-Ghana District
Council of the Assemblies of
God, Ghana, between 1988 – 1990.
This period is significant
because it is the period in
which the 1st
defendant was the Pastor of the
Calvary Charismatic Centre.
7.
From 1990 to November 1992 when
he ceased affiliation with the
Assemblies of God, Ghana, the 1st
defendant was the National Youth
Co-ordinator of the Assemblies
of God, Ghana.
8.
The initial core membership base
for the Calvary Charismatic
Centre was the campus Ministry
of the plaintiff’s Church at the
KNUST, Kumasi.
9.
The Calvary Charismatic Centre
has been a fully “set in order”
church of the plaintiffs’
Church.
10.
The local Bank accounts of the
Calvary Charismatic Centre were
opened with the Plaintiff’s
Constitution as supporting
documents.
11.
The Calvary Charismatic Centre
throughout its existence as a
local church of the plaintiff
paid its local subscriptions as
a local church of Assemblies of
God in the form of tithes and
other fees as regulated by the
Constitutions.
12.
The 1st defendant and
his wife also regularly paid
their tithes as members of the
Assemblies of God.
DISPUTED
FACTS
It is
disputed:
1.
That the Calvary Charismatic
Centre was started by the 1st
Defendant as a new Church after
his resignation from the Light
House Assemblies of God in 1985,
and that he ran the said church
from 1985 -1990 when the Calvary
Charismatic Centre was
affiliated to the plaintiffs
church.
2.
That the decision of the CCC to
cease affiliation with the
Assemblies of God was taken by
the Church Board of the Calvary
Charismatic Centre pursuant to
Article XII of the Constitution
and Bye Laws of the local
Assemblies of God, Exhibit
C 1.
3.
That the properties of the
Calvary Charismatic Centre
belong to the plaintiffs’ by
virtue of Article IV section I
of the Local Churches
Constitution which states as
follows:
“All property
of the Church is held in trust
by the legally incorporated
organization known as the
ASSEMBLIES OF GOD, GHANA, no
real property of the church
shall be sold, leased, mortgaged
or otherwise alienated without
the action of the executives of
the Assemblies of God, Ghana
General Council”.
DECISION OF
THE HIGH COURT AND COURT OF
APPEAL
After a trial
which spanned 1993 to December,
2001, the
High Court, Kumasi presided over
by Quaye J as he then was on the
11th day of December,
2001 delivered judgment in
favour of the Plaintiff and
concluded the case as follows:-
“The evidence
clearly shows that there is a
division in the CCC. The
witnesses who testified for the
plaintiff church, apart from the
plaintiff’s representative,
previously belonged to and
worshipped at CCC. The said
witnesses together with some
other former members of that
local church, opposed the
secession. Some of them now
worship at Sisanso and other
Assemblies of God, Local
Churches. I find no difference
between issues 3, 4 and 6. The
finding on them is the same. The
cessation of affiliation per se
is not provided for under any of
the Constitutions of the
Assemblies of God. The provision
relating to a division in the
Church is suggestive of
secession. The ingredients that
result in division are the very
ones that exist in a secession.
The two terms may interchange.
In simple terms, “division” as
used in the constitution
visualizes a situation where
some members are leaving the
church or opting out of the
Assemblies of God, while other
members of the same local church
would not like to join the other
group. In this case of
secession, the five defendants
announced the breaking away of
the CCC from the Assemblies of
God. The issue then is
whether those breaking away
should keep the properties of
the Church, as they held during
the affiliation with the
plaintiff church.
I believe that a person
who has a right and exercises it
to affiliate, can in the
exercise of the same right
decide to secede or terminate
the affiliation more especially
where there is no provision in
any of the laws regulating their
relationship forbidding same or
making it unlawful. The last
issue has already been answered
in issues 3, 4 and 6. The
properties acquired and held by
CCC before 16th
November, 1992 should legally go
to the plaintiff church.
Plot No. 12,
Atimpongya, was acquired by CCM.
Evidence however, shows that the
CCC and CCM jointly invested in
its development. That property
standing on plot No. 12
Atimpongya creates joint
ownership rights in both CCC and
CCM.”
Whist the
defendants felt aggrieved by the
said decision and therefore
appealed against it the
plaintiffs even though accepted
the decision, but like OLIVER
TWIST, asked for more reliefs,
by way of variation of the
judgment pursuant to rule 15 of
Court of Appeal Rules, 1997 C.
I. 19.
COURT OF
APPEAL
On the 22nd
day of April, 2005,
the Court
of Appeal by a majority
decision-Coram Lartey JSC, as he
then was, presiding and
Twenboa-Kodua JA, with
Asare-Korang dissenting, held
per the majority as follows:
“In the
result of the entire review
foregoing, the appeal is
dismissed and the judgment of
the Court below is affirmed with
express variation as follows:
1.
A declaration that by seceding
from Assemblies of God Church,
Ghana, the defendants (i.e. the
appellants) have ceased to be
members of the Church.
2.
A declaration that Calvary
Charismatic Centre, a local
Assembly of the plaintiff
Church, i.e. the church building
or auditorium and the office
block acquired before 16th
November 1992 are held in trust
for Assemblies of God, Ghana.
3.
a. A declaration that the
movable and immovable properties
of the Calvary Charismatic
Centre are the properties of the
plaintiff (respondent) church,
the Assemblies of God, Ghana.
b. A declaration that plot No.
7, Atimpongya, Kumasi and the
auditorium and offices thereon
are the properties of the
plaintiff church, the Assemblies
of God, Ghana.
c. A
declaration that Plot No. 12,
Atimpongya, Kumasi and the
building thereon are the
properties of the plaintiff
(respondent) Church, the
Assemblies of God”
d. There
was also a declaration in favour
of the plaintiff church in
respect of Neoplan Buses, items
of furniture and office
equipment, musical instruments
etc. The Court also granted
recovery of possession in
respect of all the properties
mentioned in the writ of
summons.
The Court of
Appeal also decided that
property No. 12 was acquired and
developed by the Calvary
Charismatic Centre of the
Assemblies of God, Ghana. The
Court further directed the
parties to go into accounts in
respect of all incomes, harvest
proceeds, tithes offering if any
was outstanding before and until
16th November
1992.
The Court of
Appeal finally declared as
follows:
8.
“An order declaring ownership of
all the items contained in
Exhibits 28 and 29 in favour of
the Assemblies of God church,
Ghana. The defendants
(appellants) are by order
restrained from dealing with or
in any way interfering with the
local church of the plaintiff
(respondent) Assemblies of God
Church, Ghana which local church
is known as “the Calvary
Charismatic Centre building,
offices or any other property of
the church” in terms of the
preceding orders. In respect
hereof, their agents, workmen,
servants etc are equally
restrained. The order of
injunction shall come into force
or effect after the settlement
of accounts ordered or after a
period of three (3) months from
this day, whichever is later.”
GROUNDS OF
APPEAL
In this
Court, the grounds of appeal
are:-
1.
The judgment is against the
weight of evidence on record.
2.
That the Court of appeal erred
in law when it amended the
capacity in which the respondent
brought the action.
3.
Further grounds of appeal will
be filed upon receipt of the
record of proceedings.
Since no
additional grounds have been
filed, it is to be taken that
the above constitute the only
grounds of appeal.
APPEAL TO THE
SUPREME COURT
We have
perused the erudite submissions
contained in the respective
statements of case of the
parties. Even though we admire
the industry learned Counsel for
the parties put into the case we
think there has been an over
elaboration on their part. In
our estimation and assessment
this has led to the introduction
of an excessive amount of
extraneous matters into their
submissions coupled with
repetitions.
Our
assessment of the situation is
that Counsel have put too much
of their own self into the case.
It is a good thing for Counsel
to conduct cases with passion.
But since too much of everything
is bad i.e. too much salt which
has been added to the soup has
made it salty and therefore not
appetising. We will henceforth
urge all learned Counsel
involved in preparation of
statement of case for their
clients especially at the
Supreme Court level to be
mindful of the following:
1.
Consider in proper context the
grounds of appeal in relation to
the facts of the case and the
law applicable. Serious efforts
must be made to ensure that
Counsel does not deviate from
the grounds of appeal and embark
upon an excursion into uncharted
territories which sometimes can
lead one into a minefield.
2.
Avoid abusive and insulting
language not suitable for use in
a Court of law such as this
Supreme Court. It is to be noted
that learned Counsel can still
make their points and arguments
very strongly without the use of
language that is sometimes
associated with persons in some
other vocations. Not so however
in a Court of law.
3.
Finally arguments contained in a
statement of case must be made
relevant to specific grounds or
grounds of appeal. In such a
case, the argument must relate
to specific portions of the
record of appeal and where
applicable relevant and
appropriate legal authorities
must be cited in support. This
point is supported by
Rule 15
(6) of the Supreme Court Rules
1996, C. I. 16 which states
as follows:-
“The statement of case of each
party to the appeal
a.
Shall set out the full case and
arguments to be advanced by the
party including all relevant
authorities and references to
the decided cases and the
statute law upon which the party
intends to rely”
The situation when Counsel
decided to go on and on without
end in pursuit of undoing the
other in terms of the size of
the submissions will be frowned
upon by this Court.
ISSUES FOR DETERMINATION
The following issues are to our
mind the issues that are germane
to the resolution of the grounds
of appeal that have been argued
by learned Counsel in this
appeal.
i.
Was the Calvary Charismatic
centre a local church of the
Assemblies of God, Ghana upon
its establishment in 1985 or
became an affiliate only in 1990
when it acquired the “set in
order” status?
ii.
Whether
the decision of the Board of the
Calvary Charismatic Centre to
cease affiliation with the
Assemblies of God church in
November 1992 amounted to a
division or secession from the
Assemblies of God?
iii.
Whether the plaintiffs lack
capacity to have instituted the
suit against defendants. Put in
other words, was the amendment
of the capacity of the
plaintiffs by the Court of
Appeal proper?
ISSUE ONE
In order to
resolve issue one as has been
formulated above, a close look
will be taken at the following
exhibits in order to assess
their full effect and impact.
1.
Exhibit D
- This is the
invitation letter that was sent
out when the Calvary Charismatic
Centre was established in 1985.
Boldly printed in front of this
exhibit on page 835 of volume 1
is the logo of the Assemblies
of God, with the caption
“Come to Kumasi’s newest and
most exciting church – Calvary
Charismatic Centre”
There is
therefore an indication that the
Calvary Charismatic Centre was
established really as a local
branch of the Assemblies of God.
2.
Exhibit M
- This is the
first anniversary brochure of
the Calvary Charismatic Centre
on pages 879 – 894 of volume 1.
On the front page of this
exhibit, is the Assemblies of
God Church logo and imprint
written on it, with
CHARISMATIC NEWS boldly
written on the first page.
On the 2nd page,
which is at page 890 of volume I
of the record of appeal appears
the following statement which we
think speaks volumes.
“The CHARISMATIC NEWS is
published by the Calvary
Charismatic Centre, Assemblies
of God Church, Kumasi.”
On the 3rd
page of this exhibit, which is
at page 881 of the record of
appeal is a very beautiful
picture of the 1st
defendant and his lovely wife.
The 1st
defendant gave a report of the
activities of the Calvary
Charismatic Centre, and in it,
he admitted the immense
contribution and critical role
played by the Assemblies of God
Union of the KNUST Kumasi.
From all
indications, it does appear to
us that the Calvary Charismatic
Centre was established from the
eggs laid by Assemblies of God,
nurtured and hatched by
Assemblies of God and are being
snatched away, by the
defendants.
3.
Exhibit N
- This is the fifth
anniversary brochure of the
Calvary Charismatic Centre which
appears on pages 895-908 of the
record of appeal, Volume I. This
5th anniversary
brochure, just like the first
anniversary one had the logo of
the Assemblies of God on
the first page of the brochure
ref. page 895 of Volume I of
record of appeal. The title of
the brochure is Charismatic
Chronicle.
4.
EXHIBITS H, H1, J, K, K1 AND L
Exhibit H is a Baptismal
Certificate issued and signed by
the 1st defendant to
a member of the Calvary
Charismatic Centre Assemblies of
God in the person of Theresa
Tsakle, dated 1st
August, 1990. Boldly written in
front of this exhibit are the
words
“Assemblies of God Baptismal
Certificate”
Exhibit H1 on page 874 of the
record of appeal also gives the
same indication.
“Assemblies of God Baptismal
Certificate” dated 10th
day of August, 1985 and was
similarly signed by the 1st
Defendant, in favour of Clemence
Osei Sampah.
Exhibit J, is
an infant Dedication Certificate
issued to one Akua Asieduwa
Appiagyei on page 875. Exhibits
K and K1 are tithe packets of
some members of the Calvary
Charismatic Centre, Nii Ayi
Aryeetey and K. Amponsah-Efah
who testified as PW1, reference
pages 876 and 877. Exhibit L on
the other hand is the membership
card for adults within
Assemblies of God, Ghana church.
What has to
be noted clearly is that in our
parts of the world, the core
functions of Christian churches
is the following:
i.
To baptize their members.
ii.
Payment of tithe by the members
in those churches where payment
of tithe is a requirement
iii.
Evidence of membership of the
church,
iv.
Officiating at marriages
v.
Burying the dead etc.
We have noted
that, in the performance of
baptism by immersion, dedication
of infants, payment of tithes
and membership cards, the
Calvary Charismatic Centre used
the Assemblies of God printed
forms, cards and or logo in the
performance of those critical
core functions.
What this
means is that, right from its
inception in 1985, the Calvary
Charismatic Centre was a local
church of the Assemblies of God
and represented to the outside
world and to the generality of
its members that it was an
Assemblies of God church.
5.
It is also on record that the 1st
defendant after he resigned from
the Lighthouse Assemblies of God
Church to establish the Calvary
Charismatic Centre held two
positions within the Assemblies
of God, Church, Ghana. These
were
a.
District Treasurer, 1988 - 1990
b.
National Youth Co-ordinator of
Assemblies of God Church when he
seceded from the Assemblies of
God.
It is even on
record that the 1st
defendant contested for and lost
the superintendent position of
the mid-Ghana section of the
Assemblies of God Church in
1992, having contested that
position with other ordained
Ministers of the Assemblies of
God Church in January 1992 ref.
page 335 volume 1, lines 19-25
6.
It is also on record that the 1st
defendant admitted during
cross-examination that he did
not resign from the Assemblies
of God when he resigned from the
Light House Assemblies of God
Church.
On page 515
volume 1 of the record of
appeal, from lines 24 to 35 and
pages 516, of the same volume
line 1 -9, one gets a full
picture of the exact position as
to whether or not the 1st
defendant, whom we regard and
consider as the moving spirit
and brain behind the defendants
action never really resigned
from the Assemblies of God
Church. This is what is captured
in the record of appeal.
“Q: You resigned from
Light house but not from
Assemblies of God
A: I
resigned from the Lighthouse
Assemblies of God Church because
they had employed me.
Q: You
did not resign from the
Assemblies of God organisation
A: I
was holding credentials of the
Assemblies of God organisation
Q: So
you did not resign from the
Assemblies of God organisation
A:
I did not resign from the
Assemblies of God organisation
Q: At
the time that you were Associate
Pastor of Lighthouse, you were
given oversight of the
Assemblies of God Campus
Ministry.
A: I
was the one that initiated the
Assemblies of God Campus
Ministry, Kwame Nkrumah
University of Science and
Technology, Kumasi
Q: And
the full name was Assemblies of
God Campus Ministry.
A:
Yes”
All these go
to establish the fact that at
all times material to this
action, the 1st
defendant remained an ordained
Minister of the Assemblies of
God Church. It follows therefore
that, it was in that capacity
that he was pastoring the
Calvary Charismatic Centre
Assemblies of God Church.
The extracts
from the record of appeal just
referred to also show that the
initial base and membership of
the Calvary Charismatic Centre
was the Campus Ministry of the
Assemblies of God which the 1st
defendant in his position
initiated as an ordained
Minister of the Assemblies of
God Church.
Indeed the 1st
defendant confirmed during his
cross-examination that he was
until 1992 renewing his
ordination certificate as a
Minister of religion within the
Assemblies of God. Reference
pages 508, 508B and 511 and 513
all of volume 1 of the record of
appeal.
PAYMENT OF
TITHES AND OTHER FEES BY CALVARY
CHARISMATIC CENTRE TO ASSEMBLIES
OF GOD CHURCH
There is also
evidence that the Calvary
Charismatic Centre paid its
local subscriptions as a local
Church of Assemblies of God in
the form of 20% of its tithes
and other fees as regulated by
the Constitutions of the
plaintiffs’ eg. Exhibits C, C1
and C2. These clearly establish
that the Calvary Charismatic
Centre was never an independent
Church, but a local church of
the Assemblies of God Church
from its inception until the
cessation in November, 1992.
On page 692,
of volume 1 of the record of
appeal, the learned trial Judge
explained in detail what a set
in order status of the
Assemblies of God Church
entailed. After analysing same
in detail, the learned trial
Judge concluded thus:-
“The
obligations upon the local
churches of the Assemblies of
God Church included payment by
each of the said local churches
of twenty per centum of all
monthly tithes and twenty per
centum of annual harvests and
donations to the headquarters of
the Assemblies of God Church
through the respective District
Councils”.
It is note
worthy also that, by provisions
of the Mid-Ghana constitution
exhibit C 1, a local church can
be disciplined by the District.
It is therefore not correct that
the Calvary Charismatic Centre
was an independent local church.
Having
adverted our minds to all the
exhibits referred to supra in
which the logo and name of the
plaintiffs church, (Assemblies
of God) had been manifestly used
by the defendants coupled with
the express acts of conduct and
or omission of the defendants,
we think it is correct to
conclude on the basis of the
provisions of
Section
26 of the Evidence Act 1975 NRCD
323 that the defendants are
estopped from denying that the
CCC was not an Assemblies of God
Church. Section 26 of the
Evidence Act, 1975, NRCD 323
provides thus:-
“Except as
otherwise provided by law.
Including the rule of equity,
when a party has by his own
statement, act or omission
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest”
Thus, by
reference again to exhibits H,
H1, J, K, K1 and L together with
exhibits M & N which are the
copies of the 1st and
5th anniversary
brochure’s of the Calvary
Charismatic Centre, it is clear
that the defendants, especially
the 1st held
themselves out as officers and
agents of the plaintiff’s and
they must be considered as such.
In such a
situation, all the properties
acquired by the Calvary
Charismatic Centre during the
period 1985-1992 when the
defendants purportedly seceded
from the plaintiff’s church all
belong to their mother church,
the Assemblies of God when they
decided on their own volition to
cease affiliation or seceded
from it.
The decision
of the Court therefore is that
the Calvary Charismatic Centre
was a local church of the
Assemblies of God Church upon
its establishment in 1985 and
became an affiliate when it
acquired the “set in order”
status.
2.
WHETHER THE DECISION OF THE
CALVARY CHARISMATIC CENTRE TO
CEASE AFFILIATION WITH
ASSEMBLIES OF GOD CHURCH
AMOUNTED TO A DIVISION OR
SECESSION
It is a fact
that there is no provision in
any of the three Constitutions
of the plaintiffs which makes
provision for secession. The
closest provision in the local
church’s Constitution, exhibit
C2 article XV section 4 deals
with division and is stated as
follows:
“In the case
of division within the
membership all church property
shall remain for the General
Council Assemblies of God.”
In order to
determine exactly what happened
to the Calvary Charismatic
Centre in or about 16th
November, 1992, the conditions
prevailing in the church prior
to the writing of exhibit BB by
which the Calvary Charismatic
Centre ceased all affiliation
with the Assemblies of God
Church has to be considered in
detail.
From the
contents of the exhibit BB, it
is clear that the decision to
cease affiliation was not taken
because of doctrinal
differences. Stated briefly, the
cessation of affiliation was
predicated upon by a desire to
expand the ministry and in
essence be non-denominational.
There is no
evidence of the total membership
of the Calvary Charismatic
Centre at that material time
having held a meeting to
consider the issue of ceasing
affiliation and whether the
request to cease affiliation was
democratically decided by
affording the members the right
to decide the issue to enable
those who were opposed to do so.
Our own in
depth analysis and study of all
the evidence on record coupled
with the exhibits and the
judgments of the trial and the
appellate Courts, is that, what
happened in the Calvary
Charismatic Centre was that, the
Defendants used their position
in the Calvary Charismatic
Centre CCC at the material time,
hijacked the Calvary Charismatic
Centre, declared their cessation
agenda in order to satisfy their
own spiritual and material
advantages.
From the
scenario that had been given in
the record of appeal, it is
clear that, division and
cessation can be used
interchangeably since they meant
one and the same thing.
So far as we
are concerned, the findings of
the learned trial Judge on this
issue and concurred in by the
Court of appeal are sound both
on the facts and the law and we
find no reason to disturb them.
As a matter
of fact, we hasten to add that,
a party against whom two
concurring findings of fact have
been made by first, the trial
Court, and an appellate Court,
must be slow to bring appeal to
a second appellate Court such as
this Supreme Court.
In such an
instance, there must be really
cogent, strong legal grounds of
appeal that must be filed and
argued to convince the second
appellate Court to reverse the
findings of fact. If however as
in the instant case, the only
serious ground of appeal urged
and argued is the omnibus ground
of
“Judgment being against the
weight of evidence”
then it means
the odds are stacked against the
appellant. Under these
circumstances the second
appellate Court must be very
slow in interfering with the
findings of fact made by the
trial Court and concurred in by
the appellate Court unless
strong grounds exist for
departing from those findings.
See cases of
a.
Achoro vrs Akanfela [1996-97]
SCGLR 209, HOLDING 2
b.
Thomas vrs Thomas [1947] AER 582
c.
Clarke vrs Edinburgh Tramways
and District Tramways Co.1919
S.C.H.L. 35, 56 SC. LR. 86L
d.
Powell vrs Streatham Manor Home
[1935] A.C. 243 at 250
e.
Akuffo-Addo vrs Cathline [1992]
1 GLR 377 per Osei-Hwere
The position
can thus be stated that where
findings of fact made by the
trial Court and concurred in by
the first appellate Court, the
second appellate Court must be
slow in coming to different
conclusions unless it is
satisfied that there are strong
pieces of evidence on record
which are manifestly clear that
the findings of the trial Court
and the first appellate Court
are perverse.
It is only in
such cases that the findings of
fact can be altered thereby
disregarding the advantages
enjoyed by the trial Court in
assessing the credibility and
demeanour of witnesses.
In the
instant appeal, we find no such
compelling reason to disturb the
findings of fact so ably formed
by the trial Court and concurred
in by the Appeal Court.
On the whole,
we endorse the finding that what
happened in the CCC was a
division and that in the context
of this case cessation and
division mean the same thing.
3.
THIS THEN BRINGS US TO THE
RESOLUTION OF THE LAST ISSUE IN
THIS APPEAL
This is the
issue of CAPACITY and
whether it was proper for the
Court of Appeal to have amended
the capacity of the plaintiff’s
in order to clothe them with
capacity to maintain the action.
We find as a
fact that, the plaintiffs
commenced this action as
follows:-
ASSEMBLIES OF
GOD, CHURCH, GHANA PER THE
EXECUTIVE PRESBYTERY,
HEADQUARTERS BUILDING H/NO C.
500/J AVENOR, ACCRA
We also find
that this title is not different
from the address that the
defendants used in their letter
exhibit BB to the plaintiffs.
This meant that, the defendants
themselves were dealing with an
Executive Presbytery of the
Assemblies of God Church, Ghana.
However, as
was rightly stated by the Court
of Appeal, reference page 206 of
volume 2 of the record of
appeal, at the material time,
the relevant law under which
religious organizations such as
the plaintiff’s could be
registered was the
Religious
Bodies (Registration Law 1989
PNDC L 221).
The Court of
Appeal referred to Sections 3
and 7 (3) of PNDC L 221 which
provides as follows:-
Section (3)
“ Every religious body in Ghana
shall be registered under this
law, and no religious body in
existence in Ghana shall after
three months from the
commencement of this law operate
as such a body unless it is
registered under this law.
Section 7 (3)
“All assets and properties of a
registered religious body shall
vest in the Trustees or its
governing body who shall hold
the same in trust for and on
behalf of the members”
Before PNDCL
221 was enacted, there was in
existence the
Trustees
Incorporation Act, 1972 Act 106.
It does appear from the
records that the plaintiff
church registered first it
Trustees under Act 106 on 4th
November, 1966 and under PNDC L
221 on 25th May,
1990.
By virtue of
section 4 of Act 106, it was the
Trustees of the religious body
registered under the statute
that were vested with power to
sue and be sued in the corporate
name of the said trustees.
However, Section 9 (2) of PNDC L
221 vested the power of
registration of a religious body
to sue and be sued in the
corporate name of the body.
By ordinary
rules of interpretation the
combined effect of Sections 3
and 21 of PNDC L 221 is that
they repealed the relevant
provisions of Act 106 on
registration.
In this
Court, we take the view that
since the Courts exist to do
substantial justice, it will be
manifestly unjust to non-suit
the plaintiffs because they
added “Executive Presbytery” to
their names on the writ of
summons. Courts must strive to
prevent and avoid ambush
litigation, by resorting and
looking more at the substance
than at the form.
On the facts
once the plaintiff church had
been registered as a corporate
entity under the Religious
Bodies (Registration) Law 1989
PNDC L 221, the plaintiffs
cannot be denied the capacity
which they already have.
We agree that
there are plethora of legal
authorities to support an
amendment of a capacity of a
party on appeal in order to do
substantial justice in the case.
See cases like:
i.
Ghana Ports and Harbours
Authority vrs Issoufou [1993-94]
1 GLR 24 S.C
Where the
Supreme Court held that:-
“…the Court
had a duty to ensure that
justice was done in cases before
them and should not let the duty
be circumvented by mere
technicalities. Since the power
to make amendments to the
capacities of a party rested in
the inherent jurisdiction of the
Courts, the Courts could, when
the issue was raised either in
the trial Court anytime after
judgment was delivered or in the
appellate Court on the
application of a party to the
suit, orally or otherwise, grant
such amendments as were
necessary to meet the justice of
the case”.
In the
circumstances of this case, we
are of the considered opinion
that the Court of Appeal was
right in amending the capacity
of the plaintiff’s in order to
do substantial justice, avoid
mere and fanciful technicalities
and bring out the real issues in
controversy for resolution. The
amendment by the Court of Appeal
of the capacity of the
plaintiffs was in order, and
that ground of appeal is equally
dismissed.
ii.
Hanna
Assi (No.2) vrs GIHOC
Refrigeration and Household
Products Ltd (No.2) [2007-2008]
SCGLR where it was held
as per Prof. Ocran JSC on page
34 as follows:
“The majority
in the ordinary panel had
assigned a sacrosanct quality to
pleadings that cannot be
justified either in procedural
law or in policy terms. As
recently as 28 February 2007, in
the counterpart application to
this review application – the
earlier one brought by the
respondent in suit No CM
J7/1/2007, namely,
Gihoc
Refrigeration & Household
Product Ltd. (No 1) v Hanna Assi
(No 1) [2007-2008] SCGLR 1
– this same review panel
decided (per Atuguba JSC) that
pleadings, as initially filed in
a case, could not be said to be
watertight throughout the
proceedings so as to render
impossible any additions or
amendments through evidence
adduced in Court or the
agreement of the parties to
consider other issues.
Moreover, since an appeal was in
the nature of a re-hearing, a
party, and indeed, the court
itself, could throw in a fresh
issue or fresh matter of
evidence for consideration. As
long as there is the opportunity
for full argumentation by the
parties, the potential natural
justice problem of surprise did
not arise.
There is
therefore ample legal support
for the amendment of the
capacity of the Plaintiffs. That
ground of appeal is also
dismissed.
VARIATION OF
JUDGMENT BY COURT OF APPEAL
We have
already stated that the decision
to vary the judgment upon an
application is one that is
covered
under rule 15 of the Court of
Appeal Rules, 1997 C.1.19.
Besides, we
also take cognisance of an
equitable maxim which states
that:
“He
who comes to equity must come
with clean hands”
However, the
circumstances under which the 1st
defendants purported to change
the registration documents in
respect of plot No 12,
Atimpongya upon which the
building known as Calvary
Charismatic Centre building
complex has been sited from
Calvary Charismatic Centre into
Calvary Charismatic Ministry
which was not in existence at
the time the land was purchased
in 1990 smacks of fraud. The
attempt by the 1st
defendant to change the purchase
date from 1990, when there was
no division, to 1992 smells of
fraud. In view of the above it
will be manifestly unjust to
allow the defendants to enrich
themselves by their own
fraud.
Besides,
under Section 7 (3) of PNDC L
221 the operating law at the
time, all assets and properties
of a registered religious body
shall vest in the Trustee or its
governing body who shall hold
the same in trust for and on
behalf of the members.”
Apart from
the above law, the church’s own
constitution which we have
referred to supra states that,
in case of division within the
membership of the church, all
church property shall remain for
the General Council of the
Assemblies of God, Ghana.
It is in view
of the above reasons that we
endorse the variation of the
judgment as was ordered to be
effected by the Court of Appeal.
This way,
there will be finality of
judgment and of all issues in
controversy will be seen to have
been dealt with.
CONCLUSION
In the
premises the appeal filed herein
against the majority judgment of
the Court of Appeal dated 22nd
April, 2005 is accordingly
dismissed.
Instead the
judgment of the trial High Court
dated 11th December,
2001 as was varied per the
majority judgment of the Court
of Appeal per Lartey JSC
presiding and Tweneboa Kodua JA
dated 22nd April 2005
is upheld in its entirety. The
appeal fails and is accordingly
dismissed
J.V.M. DOTSE
JUSTICE OF THE
SUPREME COURT
DR. S.K DATE-BAH
JUSTICE OF THE
SUPREME COURT
S.O.A. ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
R. C. OWUSU (MS)
JUSTICE OF THE
SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
COUNSEL:
DERY & CO. COUNSEL FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
KWAME A.
BOAFO FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT |
