IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT OF GHANA

ACCRA

CORAM: DR. DATE-BAH, JSC (PRESIDING)

ADINYIRA (MRS), JSC
OWUSU (MS), JSC
DOTSE, JSC
ANIN YEBOAH, JSC
CIVIL APPEAL
NO. J4/7/2009
3RD FEBRUARY, 2010

ASSEMBLIES OF GOD CHURCH, GHANA PLAINTIFFS/RESPONDENTS/

HEAD QUARTERS BUILDING H/NO. C500/J RESPONDENTS
AVENOR, ACCRA

- VRS -

1. REV. RANSFORD OBENG

2. JOSEPH OPOKU DEFENDANTS/APPELLANTS/
3. C. K. ACOLATSE APPELLANTS
4. R. K. OWUSU
5. C. O. KPODO
______________________________________________________________________

JUDGMENT
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
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 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,

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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
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 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

plaintiffs church i.e. the Church building or Auditorium and the office block
are part of the plaintiffs Church or same belongs to the plaintiffs Church
and same are held by the plaintiffs 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 plaintiffs 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
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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 plaintiffs 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.

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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 plaintiffs 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 plaintiffs 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 Plaintiffs 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

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 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:-

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 The evidence clearly shows that there is a division in the CCC.
The witnesses who testified for the plaintiff church, apart from
the plaintiffs 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.
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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
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 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.

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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

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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 Kumasis 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.

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 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.

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 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

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 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

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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
16
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 brochures of the
Calvary Charismatic Centre, it is clear that the defendants, especially the 1st held
themselves out as officers and agents of the plaintiffs 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
plaintiffs 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

17
churchs 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.
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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.

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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 plaintiffs 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 plaintiffs 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
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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 plaintiffs 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

21
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
22
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 churchs 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
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 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.

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