GATEWAY WORSHIP CENTRE vs. DAVID SOON BOON SEO [2009]DLSC2481

Date	2009-01-21
Suit No.	CIVIL APPEAL NO.J4/12/2008
Citation No.	[2009]DLSC2481

AKUFFO J.S.C (PRESIDING)

DATE-BAH J.S.C.

ADINYIRA (MRS) J.S.C.

OWUSU J.S.C

DOTSE J.S.C.

JAMES AHENKORAH FOR THE APPELLANT WITH GEORGE AMAGYEI.

CHARLES MBEAH FOR THE RESPONDENTS.

[2009]DLSC2481
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													<main id="main" class="content" style="min-height: 60rem" >GATEWAY WORSHIP CENTRE<o:p></o:p>vs.<o:p></o:p>DAVID SOON BOON SEO<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO.J4/12/2008<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 21ST JANUARY, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES
AHENKORAH FOR THE APPELLANT WITH GEORGE AMAGYEI.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CHARLES
MBEAH FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AKUFFO
J.S.C (PRESIDING), DATE-BAH J.S.C., ADINYIRA (MRS) J.S.C., OWUSU J.S.C, DOTSE&nbsp; J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>AKUFFO, JSC:<o:p></o:p>&nbsp;This is an appeal from the judgment of the
Court of Appeal dated 9th December, 2005, which upheld a judgment of the
Circuit Court dated 8th December, 2003 in favour of the Respondents
herein.&nbsp; <o:p></o:p>Brief
Background<o:p></o:p>The
Appellant is a missionary of Korean nationality and was at all material times
resident in the Tema Metropolitan area. The 1st Respondent is the Pastor of the
2nd Respondent, a church located in Tema. According to the Respondents, the
Appellant promised to raise funds for the 2nd Respondent whilst on a projected
trip to Korea. Prior to his departure, the Appellant, with the members of the
church as participants, produced a video film, which depicted members of the
church living in the Ashaiman Community in abject poverty and degradation. The
purpose of the video was to curry the sympathy of prospective Korean
benefactors and foster their generosity. Upon his return from his Korean trip,
the Appellant made an open declaration to the church that the said funds had
been so raised from a benefactor. The Appellant, however, did not disclose the
quantum of the monies he had collected; nor did he hand over any such fund to
the respondent church, but retained the same in his own bank account. He then
used part of it to acquire the land in dispute herein. Subsequently, the pastor
of the church, Ben Adjei, together with the church, acting by its trustees,
sued the Appellant in the Circuit Court for a declaration of title to the land
in dispute, recovery of possession, perpetual injunction, an order for accounts
and other orders. The Circuit Court granted to the Respondents the reliefs
claimed, except the one for accounts. The Appellant, thereupon, appealed to the
Court of Appeal upon the sole ground that the judgement was against the weight
of the evidence. The Court of Appeal affirmed the decision of the Circuit
Court, and dismissed the appeal. The Appellant then appealed to this court upon
no less than 8 grounds which for the sake of brevity may be summed up as
follows:-<o:p></o:p>a. Taking into account the claim and
evidence in the matter, the 1st Respondent herein had no locus standi in the
suit and should have been struck out as a party thereto.<o:p></o:p>b. Since the reliefs sought by the
respondents in their suit against the Appellant ‘involved the application of
principles of trusts or equity’, the Circuit Court had no jurisdiction to
entertain the claim.<o:p></o:p>c. The claim against the Appellant was
a claim by a volunteer to enforce a promise to make a gift and, therefore,
could not be maintained.<o:p></o:p>d. To the extent that the promised
gift related to funds not in the possession of the Appellant at the time of the
promise, the promise was one to give non-existent future property and,
therefore, unenforceable. <o:p></o:p>e. Since the promise did not quantify
how much money was to be raised for the 2nd Respondent, it was void for
uncertainty and, therefore, unenforceable.<o:p></o:p>f. Since the defence was that the
money raised was for general missionary work in Ghana, the trial and appellate
courts erred in ‘failing to raise and consider’ the issue of whether the funds
were raised for such general purposes or specifically for the 2nd Respondent.<o:p></o:p>g. The trial and appellate courts also
erred in not specifying whether their conclusion that the land was purchased in
trust for the 2nd Respondent was founded on the centre’s ownership of the money
or on the Appellant’s abuse of his position in the 2nd Respondent church, to
purchase the land for any person other than the 2nd Respondent.<o:p></o:p>Although
there was an 8th ground set down in the notice of appeal, the same was not
touched upon in the statement of case and consequently we will not take that
ground into any consideration in this judgment.&nbsp;
<o:p></o:p>In
our view, this appeal raises the primary issue of whether or not the Circuit
Court had jurisdiction to entertain the action before it, and the secondary
issue of whether, if the court had jurisdiction, it and the Court of Appeal
properly applied the applicable principles of law and equity in determining the
dispute. <o:p></o:p>Since
jurisdiction is always a fundamental issue in any court action, we shall first
deal with the question of whether or not the Circuit Court had jurisdiction to
apply principles of trusts and equity in the determination of matters before it
and to grant the equitable reliefs it did. However, before proceeding further,
it is important for us to note that it is in this court that, for the first
time in the course of the litigation of this matter, the Appellant raised this
question of the trial court’s jurisdiction. Taking into account the nature of
the claims endorsed on the writ before the Circuit Court, it is rather puzzling
that neither in the Circuit Court nor in the Court of Appeal did the Appellant
raise this matter. We deplore such lack of diligence which could lead to wastage
of the time and other resources of the court and parties, since jurisdiction is
fundamental to the validity of a court’s judicial activity. Fortunately, in
this case, it is our view that the Circuit Court’s jurisdiction in the matter
before it was unquestionable.<o:p></o:p>