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By his writ of summons, filed on
27-01-2010, the plaintiff,
George Addo, who is a member of
the Accra Lawn Tennis Club, sued
the defendants, who are
executive members and members of
the disciplinary committee of
the same club and are being sued
in their respective capacities
and as representing the said
club. The plaintiff claims the
following reliefs against the
defendants:
“i. Declaration that the
defendants and each of them is
in breach of the club’s
constitution and bye-laws in
dismissing the plaintiff’s
counter-allegations against the
1st and 2nd
defendants without an
investigation.
ii. Declaration that the 3rd
defendant or alternatively the
club’s disciplinary committee’s
decision to determine the case
against the plaintiff if he
absented himself from its
sitting on Wednesday, 27th
January, 2010, constitutes an
infringement of the plaintiff’s
human rights and a flagrant
violation of the rules of
natural justice as well as
clause 14 of the club’s
bye-laws.
iii. Declaration that the 3rd,
4th and 5th
defendants lack the requisite
fair-mindedness, neutrality and
independence to sit as impartial
arbiters or tribunal in any case
involving or affecting the
plaintiff.
iv. Alternatively, the 3rd,
4th and 5th
defendants are incapable of
holding the scales of justice
evenly as between the plaintiff
and the 2nd
defendant.
v. An order of injunction
restraining the 3rd,
4th and 5th
defendants from sitting as the
disciplinary committee of the
club in any matter affecting or
involving the plaintiff on the
ground of unmitigated bias.”
The undisputed facts of this
case are that the plaintiff
became a member of the Accra
Lawn Tennis Club on 15-02-2005.
Dr. H. Holdbrook-Smith and Mr.
Kofi Boakye (the 1st
and 2nd defendants,
respectively) have since March,
2006, been the chairman and
secretary, respectively, of the
same club and, together with
three others, they constitute
the executive committee of the
club. Mr. F. K. A. Amoa-Awua,
Mr. Patrick Kwakye and Mr.
Abraham Odai, at all material
times of this case, were the
members of the disciplinary
committee of the club upon their
appointment by the executive
committee.
The Accra Lawn Tennis Club and
its members are governed by a
constitution as well as bye-laws
as amended from time to time. By
clause 13(ii) of the club’s
bye-laws, the disciplinary
committee is responsible for
dealing with breaches of the
club’s constitution and bye-laws
and any other matters referred
to it by the executive committee
or a member.
It is, further, provided in
clause 14(vi), (vii), (viii) and
(ix) of the bye-laws of the club
that if a person, into whose
conduct an enquiry is to be
held, does not appear at the
time, date and place appointed
for the conduct of an enquiry,
the enquiry would proceed in his
absence. The person under
enquiry may appear in person or
may send a written reply to the
charge or complaint. The
disciplinary committee may also
receive any such oral or other
evidence as would be necessary
for the determination of the
issue. After holding the
enquiry, the disciplinary
committee would make a finding
and recommendation to the
executive committee for
necessary action in accordance
with the bye-laws and
constitution of the club.
What brought about the dispute
between the parties started
sometime in November, 2009, when
the 2nd defendant
lodged a complaint of assault
against the plaintiff which
complaint went before the
disciplinary committee as
required by the constitution and
bye-laws of the club. The
plaintiff was, accordingly,
invited to attend the
disciplinary enquiry on
14-11-2009 but he did not attend
on that date and on subsequent
adjourned dates.
It is the case of the plaintiff
that he instructed his
solicitor, who by a letter of
20-01-2010, wrote to the
Disciplinary Committee through
the 3rd defendant in
which he denied the 2nd
defendant’s allegation of
assault; lodged a complaint or a
counter-complaint of misconduct
against the 1st and 2nd
defendants; requested that the
disciplinary committee
investigate the two complaints
together; raised a
jurisdictional objection to the
composition of the disciplinary
committee; and, finally,
indicated his preparedness to
appear before the disciplinary
committee to answer the charges
against him by the 2nd
defendant in the event that the
disciplinary committee dismissed
his jurisdictional objection.
According to the plaintiff, the
response he had to his
solicitor’s letter was that the
defendants, also acting by their
solicitor, dismissed his claims,
including the allegations
against the 1st and 2nd
defendants and evinced a clear
intention not to investigate his
counter-allegations against the
1st and 2nd
defendants for they concluded
that they were hallucinations.
It is, further, the case of the
plaintiff that the disciplinary
committee, by letter dated
20-01-2010 and signed by the 3rd
defendant, gave a strict warning
to the plaintiff to appear
before the committee on
Wednesday, 27th
January, 2010, for the hearing
of the 2nd
defendant’s complaint, failing
which the committee would
proceed to determine the case
against him. Thus, his action.
It is the case of the defendants
that the disciplinary committee,
on 12-11-2009, sent a letter of
invitation to the plaintiff
notifying him of the complaint
and asking him to appear on
14-11-2009 to answer the charges
the 2nd defendant
brought against him. At its
sitting on 14-11-2009, the
plaintiff did not appear but
sent a letter requesting for an
adjournment which was granted
and he was informed in another
letter that the hearing had been
adjourned to 23-11-2009.
However, the hearing could not
come on the said 23-11-2009
because the plaintiff had
instituted an action and
obtained an interim injunction
against the 1st and 3rd
defendants, herein, at the
District Court, at Osu, which
was later dismissed as
disclosing no reasonable cause
of action. The disciplinary
committee, thereafter, notified
the plaintiff in a letter of the
hearing of the matter on
20-01-2010 but the plaintiff
failed or refused to appear.
The defendants admit that the
plaintiff caused his solicitors
to write a letter, on
20-01-2010, to the disciplinary
committee in which he denied the
charge of assault, raised a
jurisdictional objection to the
composition of the disciplinary
committee with the caveat that
he was prepared to appear before
the committee in the event that
the committee dismissed his
jurisdictional objection. The
defendants, however, deny that
the plaintiff made any complaint
or counter-complaint. The
defendants contend that the
disciplinary committee is a
standing committee formed by the
executive committee at the
beginning of its tenure to hear
any disciplinary issue that may
arise and it is not an ad hoc
committee set up solely for the
hearing of the complaint against
the plaintiff. The defendants,
on the 21-01-2010, responded to
the plaintiff’s solicitor’s
letter dismissing all the
plaintiff’s claims and stated
that the said letter only talked
about a wish to pursue
counter-charges, which was not
stated, against the 1st
and 2nd defendants.
The defendants admit, further,
that, by a letter of 20-01-2010,
the disciplinary committee wrote
to the plaintiff and gave him a
strict warning to appear before
it on Wednesday, 27-01-2010, for
the hearing of the 2nd
defendant’s complaint, failing
which the committee would
proceed to determine the case
against him. The defendants
contend that they have,
throughout the pendency of the
matter, scrupulously observed
the constitution and bye-laws of
the club and also the rules of
natural justice.
The committee even bent the
rules to accommodate the
plaintiff and have gone to great
lengths to afford him a hearing.
The 4th defendant too
has stepped down from the
disciplinary committee because
of his heavy schedule and has
been replaced by Major Gyasi.
The defendants thus contend that
there is nothing in the
plaintiff’s pleadings which
remotely support or grounds the
reliefs he is seeking and his
action is, therefore,
misconceived, vexatious,
unmeritorious and an abuse of
the processes of the court as
such plaintiff is not entitled
to his claims.
In reply, the plaintiff joins
issues with the defendants on
their defence and state in
particular that the mere
stepping down of the chairman of
the disciplinary committee will
not restore the committee to its
proper status as an impartial
arbiter.
At the application for
directions, the following issues
were set down for trial:
“i. Whether or not the
disciplinary committee’s claim
that a decision would be given
against the plaintiff if he
fails to attend the committee’s
hearing constitutes an
infringement of the club’s
constitution and violates the
audi alteram partem rule of
natural justice;
ii. Whether or not the plaintiff
made counter-allegations against
the 1st and 2nd
defendants which merited an
enquiry by the disciplinary
committee;
iii. Whether or not the
defendants acting by their
lawyer dismissed the plaintiff’s
counter-allegations against the
defendants as being without
merit;
iv. Whether or not the
disciplinary committee as it is
presently constituted can sit as
impartial arbiters over the
plaintiff in relation to the 2nd
defendant’s complaint.
v. Any other issues arising out
of the pleadings.”
I would proceed to determine
these issues in the order in
which they have been set down.
Whether or not the disciplinary
committee’s claim that a
decision would be given against
the plaintiff if he fails to
attend the committee’s hearing
constitutes an infringement of
the club’s constitution and
violates the audi alteram partem
rule of natural justice.
By article 10 of the
constitution for the Accra Lawn
Tennis Club (Exhibit A)
disciplinary matters are
conducted in accordance with the
bye-laws of the club (Exhibit
B). By regulation 13 of the
bye-laws, the executive
committee of the club appoints a
disciplinary committee which is
responsible for dealing with
breaches of the club’s
constitution, bye-laws and other
matters referred to it by the
executive committee or a member.
In the instant case, the 2nd
defendant, who, at the material
time of this case, was the
General Secretary, reported a
case of assault on him by the
plaintiff to the 1st
defendant, the then chairman of
the club, and the latter
referred the case to the
disciplinary committee which
consisted of the other three
defendants with the 3rd
defendant as its chairman.
Regulation 14 of the bye-laws
provides for the procedure to be
adopted in respect of
disciplinary proceedings. By way
of a summary, any member of the
club who is aggrieved by the
conduct of another member makes
a complaint to the executive and
the latter refers the matter to
the disciplinary committee which
enquires into the alleged
misconduct.
The enquiry takes this
procedure:
The disciplinary committee
serves the alleged culprit with
a written notice specifying the
nature of the complaint and
stating the day, time and place
at which the enquiry is to be
held. If the alleged culprit
does not appear for the inquiry,
the disciplinary committee
proceeds in his absence unless
it is satisfied that the absence
is excusable.
The alleged culprit may appear
in person or he may send a
written reply to the charge or
complaint. After holding an
enquiry, the disciplinary
committee makes a finding and
makes recommendation to the
executive committee for
necessary action in accordance
with the bye-laws and
constitution of the club.
In the instant case, the
evidence is clear that the 2nd
defendant reported the case to
the executive committee which
referred the matter to the
disciplinary committee. The
disciplinary committee, on
11-11-2009, notified the
plaintiff in writing of the
complaint and fixed 14-11-2009
for the enquiry. In reply, the
plaintiff asked for a copy of
the 2nd defendant’s
complaint and an adjournment of
the enquiry. The disciplinary
committee obliged and served him
a copy of the complaint and
postponed the enquiry to
23-11-2009 (Exhibit E).
Before 23-11-2009, the 2nd
defendant reported the same case
to the police and the plaintiff
was arrested and put before
court for trial. The plaintiff
pleaded with the 1st
defendant to have the criminal
trial settled amicably so that
they deal with the matter at the
club level but he refused. The
plaintiff, on 16-11-2009, got an
interim injunction order from
the Osu District Court
restraining the disciplinary
committee from investigating the
case against him. The order,
which was obtained by an
ex-parte motion, was to last for
10 days (Exhibit F). The
defendants got the order set
aside on 13-01-2010 and then, by
a letter, the disciplinary
committee wrote to the plaintiff
to appear before it on
20-01-2010 for the enquiry
(Exhibit G).
Upon receiving the invitation
for hearing, the plaintiff
caused his solicitor to reply to
the said letter on the same
20-01-2010 (Exhibit H). In
Exhibit H, the plaintiff, among
other things, denied the charge
against him and stated that the
allegation is “a ploy and part
of a well-rehearsed and
orchestrated plan hatched by
(the 2nd defendant)
with the active connivance of
(the 1st defendant),
for the deliberate purpose of
pushing an on-going agenda to
expel (the plaintiff) from the
club, consequent upon
unsuccessful attempts in the
past”.
The plaintiff, furthermore,
significantly stated the
following in Exhibit H:
“ vi. In the circumstances, it
is our client’s wish to pursue
counter-charges against the said
Mr. Kofi Boakye and Dr. Henry
Holdbrook-Smith.
vii. Our clients therefore
propose that the allegations of
Mr. Kofi Boakye as well as his
counter-charges be investigated
together and findings of facts
made, on the basis of which the
Club will take vital decisions
regarding appropriate sanctions
to be meted out, as against our
client or as against the said
Mr. Kofi Boakye and Dr. Henry
Holdbrook-Smith if our client
claims are proved.
…
ix. As things stand now, there
is a great possibility that the
present work of the Disciplinary
Committee will be vitiated and
rendered a nullity by reason of
the fact that it was constituted
by Executive Committee including
Dr. Henry Holdbrook-Smith and
Mr. Kofi Boakye who have an axe
to grind with our client. In
the circumstance, the
Disciplinary Committee will be
perceived as being judges in
their own cause and whatever
decision it takes will offend
the nemo judex in causa sua rule
of natural justice.
…
xv. If upon sober reflection
you are still of the view that
there is a strong reason for you
to continue with your hearing,
our client will avail himself at
the hearing and vigorously
defend himself, both on the
substantive charges as well as
the procedural objections.”
On 21- 01- 2010, the Accra Lawn
Tennis Club caused its solicitor
to reply to the plaintiff
solicitor’s letter. In the
response (Exhibit J), the club
stated among others that the
purported facts on which the
plaintiff relied to challenge
the integrity of the
disciplinary committee were
hollow and that the 1st
and 2nd defendants
are not members of the
disciplinary committee. The
response informed the
plaintiff’s solicitor that the
disciplinary hearing had been
scheduled for 27- 01- 2010 of
which notice had been given to
the plaintiff. The notice by the
disciplinary committee, dated
20- 01- 2010 (Exhibit K), to the
plaintiff to appear before it
stated in paragraph 4 thus:
“The Disciplinary Committee has
decided to offer you one last
chance to appear before it,
failing which the Disciplinary
Committee will proceed to
determine the case against you.”
The first issue thus stems from
this paragraph 4 of Exhibit K.
It is submitted by counsel for
the plaintiff that the
disciplinary committee was going
to pronounce the plaintiff
guilty without hearing the 2nd
defendant who is his accuser.
This, according to counsel, was
against the principles enshrined
in criminal trials which entails
the accuser to give evidence to
prove the charge, even in the
absence of the accused.
With respect, counsel for the
plaintiff has construed the said
paragraph 4 out of context. This
is a case in which the plaintiff
had been invited for hearing of
the complaint of the 2nd
defendant, several times. And
each time the plaintiff found a
way of not appearing. If the
whole of Exhibit K is read,
there is no difficulty in coming
to the conclusion that the
plaintiff was invited for the
hearing of the charge the 2nd
defendant leveled against him.
It is a short letter and I
would, hereunder, reproduce it
in full. It states thus:
“RE: COMPLAINT AGAINST MR.
GEORGE ADDO LODGED BY MR. KOFI
BOAKYE, BOTH MEMBERS OF THE
ACCRA LAWN TENNIS CLUB (ALTC)
The Disciplinary Committee
invited you to appear before it
on Wednesday 20th
January, 2010 to help examine
the complaint lodged against you
by Mr. Kofi Boakye, a member of
the Accra Lawn Tennis Club.
2. You have failed to appear
before the Disciplinary
Committee. The Disciplinary
Committee sat from 5:30 p.m.
until 7:00 p.m. on 20th
January, 2010.
3. This constitutes the third
time that you have failed to
honour the invitation of the
Disciplinary Committee to appear
before it.
4. The Disciplinary Committee
has decided to offer you one
last chance to appear before it,
failing which the Disciplinary
Committee will proceed to
determine the case against you.
5. The Disciplinary Committee
hereby invites you to appear
before it a week today i.e. on
Wednesday, 27th
January, 2010 at 5:30 p.m. at
the Hall of ALTC.”
An overall reading of the above
letter cannot be construed to
mean that the disciplinary
committee, automatically, would
not take evidence from the 2nd
defendant before determining the
case, if the plaintiff is
absent. With respect to counsel
for the plaintiff, he is only
being pre-emptive of the conduct
of the committee. In any case,
the plaintiff himself, to whom
the letter was addressed, did
not understand it the way
counsel construed the same
letter. In the plaintiff’s
evidence-in-chief, this is what
transpired between him and his
counsel.
“Counsel: What is
it about Exhibit K that made you
give instructions for this
action to be commenced against
the defendants?
Plaintiff:
My Lordship, it is provocative
and it makes as if they are
trying to force me to do what is
not right and they have stepped
on my human right.
Counsel:
I will like you to refer
specifically to the contents of
Exhibit K and refer to anything
…?
Plaintiff:
Yes, my Lordship, paragraph 4.
With the permission of the
court, I will like to read. ‘The
Disciplinary Committee has
decided to offer you one last
chance to appear before it
failing which the Disciplinary
Committee will proceed to
determine the case against.’
Counsel:
What is not good about that
expression?
Plaintiff:
My Lord, that statement in the
context in our constitution and
the bye-laws, you cannot proceed
or do anything or decision
without the presence of the
person who has been accused, in
which I felt is not fair for
them to put in that paragraph.”
So, the plaintiff understanding
of paragraph 4 of Exhibit K is
that it is contrary to the
club’s constitution and bye-laws
for the disciplinary committee
to hear a disciplinary case in
the absence of the accused.
However, regulation 14(vi) of
the club’s bye-laws betrays the
falsehood of the plaintiff’s
understanding of his own club’s
bye-laws. The said regulation
states, thus:
“If a person does not appear at
the time, date and place
appointed, the enquiry shall
proceed in his absence unless
the committee is satisfied that
his absence has been caused by
an occurrence which was beyond
his control.”
So, by this regulation, the
disciplinary committee was
entitled to proceed with the
hearing of the 2nd
defendant complaint against the
plaintiff in the latter’s
absence. And this was conveyed
to the plaintiff in paragraph 4
of Exhibit K. The plaintiff, who
perhaps did not avert his mind
to regulation 14(vi) of the
club’s bye-laws or was simply
adamant, refused to appear and
instituted the instant action.
It is thus not the case that the
disciplinary committee decided
to find the plaintiff guilty if
he did not appear for the
hearing on 27-01-2010, even
without taking evidence from the
plaintiff. The disciplinary
committee has shown by all the
happenings in this case that it
was going to take evidence. For
instance, by its first
invitation to the parties by
notice, dated 11-11-2009
(Exhibit C) for the hearing, the
disciplinary committee stated,
among other things, thus:
“I am by this letter inviting
you and the mentioned witnesses
and any other persons who might
have witnessed the incident to
meet the Disciplinary Committee
at 4:00 p.m. on Saturday 14th
November, 2009, in the
conference room of the Club
House of ALTC.
Please do not fail to meet with
the disciplinary committee to
enable the complaint be fully
examined.”
The disciplinary committee has
shown that it would take
evidence from all parties and
witnesses who would appear.
ii.
Whether or not the plaintiff
made counter-allegations against
the 1st and 2nd
defendants which merited an
enquiry by the disciplinary
committee.
By the plaintiff solicitor’s
letter, dated 20-01-2010
(Exhibit H), the plaintiff made
allegations of bias against the
1st and 2nd
defendants and gave details of
the facts supporting the
allegations. The plaintiff
expressed the wish to pursue
counter-charges against the 1st
and 2nd defendants
based on the said allegations
and proposed that the said
allegations and counter-charges
be investigated together with
the 2nd defendant’s
case.
Exhibit H is so explicit on the
counter allegations the
plaintiff made against the 1st
and 2nd defendants
which cannot genuinely be
denied.
However, the plaintiff’s
counter-allegations against the
1st and 2nd
defendants has nothing to do
with the disciplinary
committee’s competency to hear
the 2nd defendant’s
case against the plaintiff for
reasons that were well stated by
the letter of the club’s
solicitor in response (Exhibit
J).
By the constitution and bye-laws
of the club, which the plaintiff
was expected to have known
before becoming a member or
should have known upon becoming
a member, it is the chairman
elect who appoints a standing
disciplinary committee for his
tenure of office and none of the
executive committee members is
party to any disciplinary
proceedings. As such, the
allegation of bias against the 1st
and 2nd defendants in
their positions as chairman and
general secretary of the club
cannot be transferred to the 3rd,
4th and 5th
defendants who constitute the
disciplinary committee. The
plaintiff’s allegations did not,
therefore, merit investigations
by the disciplinary committee
along with that of the 2nd
defendant complaint.
iii. Whether or not the
defendants, acting by their
lawyer, dismissed the
plaintiff’s counter-allegations
against the 1st and 2nd
defendants as being without
merit.
From Exhibit J, aforementioned,
the defendants’ solicitors
rightly dismissed the
plaintiff’s counter-allegations
against the 1st and 2nd
defendants as same is without
merit for the reasons above
stated. The plaintiff’s
allegations had nothing to do
with the disciplinary committee
and its work by the constitution
and bye-laws of the club.
iv. Whether or not the
disciplinary committee, as it is
presently constituted, can sit
as impartial arbiters over the
plaintiff in relation to the 2nd
defendant’s complaint.
As stated earlier on in this
judgment, the constitution and
bye-laws of the club gave the
chairman of the club power to
appoint a standing disciplinary
committee for the same tenure as
the executive committee to
handle disciplinary matters. The
disciplinary committee is not
set up on ad hoc basis as and
when disciplinary matters arise.
The 1st defendant, in
due exercise of his
constitutional functions,
appointed the 3rd, 4th
and 5th defendants as
the disciplinary committee of
the club.
The allegations of bias the
plaintiff made are not against
any of the members of the
disciplinary committee. So, it
cannot be said that any of the
disciplinary committee members
or the whole disciplinary
committee is sitting on his or
their own cause or matter
contrary to the nemo judex
in cause sua principle
of natural justice.
The disciplinary committee, as
constituted, can, therefore, sit
as an impartial arbiter over the
plaintiff and the 2nd
defendant’s case.
From the above, therefore, the
reliefs the plaintiff seeks from
this court are unmeritorious and
same are hereby dismissed.
COUNSEL:
1. Mr. Kweku Paintsil for the
Plaintiff
2. Mr. Edward Anokye for the
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF HIGH COURT
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