|
---
Reasons
for Judgment
Sophia A. B. Akuffo
On October 31st 2007
this Court delivered its
judgment in this matter,
dismissing the appeal herein as
being without any merit and
reserved reasons for the
judgment to the date hereof.
Following therefore are the
reasons for our judgment:-
By a Writ of Summons issued on
March 09, 2001, Madam Gladys
Anane Addo and 9 other persons
(hereinafter referred to as ‘the
Plaintiffs’), all claiming to be
members of the Kejetia Traders
Association, sued the Kumasi
Metropolitan Authority
(hereinafter referred to as ‘the
1st Defendant’ or ‘KMA’)
and the said Association through
its Chairman (hereinafter
referred to as ‘the
‘Association’ or ‘the
Appellant’) claiming the
following reliefs:-
1.
A declaration that KMA (1st
Defendant in the action) is the
sole body with the legal
authority to allocate shops and
stalls owned by KMA at Kejetia,
Kumasi.
-
A declaration that it is
unlawful for the Association
(2nd Defendant in
the action) to allocate
shops and stalls that have
been constructed at Kejetia.
-
A declaration that the
original licensees of shops
and stalls at Kejetia (who
included the Plaintiffs)
were entitled to be given
the first option, or
priority, in the allocation
of the new stores at Kejetia
that had been pre-financed
by them.
-
An order for accounts and
-
An order of perpetual
injunction restraining KMA
and the Association from
allocating any shops or
stall at Kejetia without
giving first option to the
Plaintiffs.
For the purposes of this appeal,
the relevant background facts
are that the Plaintiffs,
together with some other persons
were all licensees of KMA and
previously occupied certain
shops and stalls at Kejetia,
Kumasi. As part of a
beautification programme, the
government of Ghana decided to
demolish and rebuild all shops
and stalls at Kejetia. The newly
built shops and stalls were to
be occupied by the original
occupants of the demolished
structures. Consequently, the
Plaintiffs, who are members of
the Association, together with
other members, were called upon
to, and did make, contributions
to pre-finance the
reconstruction of the shops and
stalls. Each person paid her
contribution of, at least,
¢8,250,000.00 (now GH¢ 825.00)
to the Association. It also
appears that those who delayed
in making their payments had to
pay penalties of various
amounts. Upon the completion of
the new shops and stalls, the
same were distributed by the
Association (rather than KMA,
which by law is the duly
authorised body to own and
allocate market stalls and
shops). The Association,
however, failed to ensure that
the shops were allocated along
the previously agreed
distribution principles. The
Plaintiffs were amongst those
aggrieved by this state of
affairs.
Of the issues settled at the
Summons for Directions, the most
relevant for the purposes of
this appeal is issue 5 which
states that “an account be filed
by the 2nd
Defendant”.
The trial court, in a judgement
dated 25th October
2002, entered judgment in favour
of the Plaintiffs on all their
claims (and also in favour of
the 1st Defendant on
its counterclaim for a
declaration that it is the
statutory body with the power to
construct, manage and control
public markets in Kumasi; and an
order of perpetual injunction
restraining the Association from
usurping the lawful functions of
KMA). Consequently, on the
Plaintiffs’ claim against the
Appellants for accounts, the
court invoked Order 33 Rule 3 of
the erstwhile High Court (Civil
Procedure) Rules, 1954 (LN 140A)
(hereinafter referred to as the
High Court Rules) and ordered
that:-
-
The executives of the
Association account for all
monies collected or paid to
them and
-
The accounts should be
audited by the Serious Fraud
Office.
The learned trial judge also
ordered that KMA should assume
responsibility for the
reallocation of the shops and
stalls, as well as the financial
administration of the project.
Being dissatisfied with the
decision of the High Court, the
Association, appealed to the
Court of Appeal on no less than
11 grounds. The Court of Appeal
in a judgement entered on 29th
October 2004 (Omari-Sasu JA
dissenting) upheld the judgement
of the High Court and dismissed
the appeal in its entirety. It
needs to be emphasised, at this
point, that the learned
Omari-Sasu JA, in his dissenting
opinion, did not really touch
upon the order for accounts made
by the High Court. Rather, his
view was that KMA ought to bear
the responsibility for the
Plaintiffs’ plight since it had
shirked its statutory
responsibility and failed to
perform effective oversight of
the activities of the
Association, which had been
merely acting on KMA’s behalf.
Although the Association, in its
Notice of Appeal to this Court
set out 4 grounds of appeal, by
its Statement of Case, the
Appellant founded its entire
case in this appeal on the sole
ground set out in the Notice of
Additional Ground of Appeal
filed on March 13th
2002 (and in accordance with
which both Respondents also
responded in their respective
Statements of Case). The
additional ground of appeal is
in the following terms:-
“The trial judge and the Court
of Appeal failed to appreciate
that the case hinged on the
verification through accounts as
to how the Appellant had applied
the Respondents’ money in the
construction of the Kejetia
Stores. The upshot is that
courts below misapplied Order 33
rule 3 of LN 140A”
Clearly, therefore, the
Appellant does not challenge the
High Court and the Court of
Appeal’s disposition of the
other claims and issues in the
case. It is also clear that both
parties are now in agreement
that the application of the
funds contributed by the
Plaintiffs in the construction
of the stalls and shops needs to
be accounted for, through
verification of the same. The
Appellant’s case (if we have
properly understood it),
however, appears to be that
there was something wrong with
the manner in which the
Honourable Judge of the High
Court applied Order 33.3 of the
then applicable High Court
Rules. Consequently, in the
Statement of Case filed on
behalf of the Appellant, counsel
argued as follows:-
a.
The Rule envisaged two
scenarios; the first was where
the books of accounts speak for
themselves, but even in such
event there could be room for
objections. The second was where
the judgment made orders which
did not require the parties to
take on a referee.
b.
The first scenario, which is
what applies to the case herein,
did not necessarily yield
finality since there would be
the need to cross-examine the
referee on the findings before
the trial judge could make any
factual findings.
c.
Therefore, since the learned
High Court Judge in this matter
did not have the prior benefit
of audited (or otherwise
verified) accounts, it was a
travesty of justice for the
Court to hold the Appellants
liable for ‘short-changing’ the
Plaintiffs. ‘The court deprived
itself of the benefit of a
proper account and nevertheless
blamed the Appellants for the
sate of affairs’.
d.
In line with the Court of
Appeal’s decision in the case of
Commodore v. Fruit Supply
Ghana Limited, [1977] 1 GLR
241 at 280 and 281, it was
imperative for the learned High
Court judge to have ordered
accounts since the case
“underscores the need for
accounts when the situation in
which the parties find
themselves arises”.
In sum, therefore, the
Appellant’s case appears to be
that, before arriving at his
judgement, the learned High
Court judge ought to have
ordered the taking and
verification of the accounts.
Thus, whilst the Appellant
appreciates, and acknowledges,
the need for accounts to be
taken and verified, its
complaint seems to be that the
learned Judge ought to have made
the appropriate orders much
earlier in the trial of the
matter. Hence the core issue in
this matter is of a very narrow
compass and is, simply, whether
or not the learned High Court
Judge did misapply Order 33 Rule
3 and, if so, whether or not
such misapplication has indeed
resulted in ‘a substantial
miscarriage of justice’ to the
Appellant.
Order 33.3 of the erstwhile High
Court Rules, provided as
follows:-
“The Court or a Judge may either
by the judgement or order
directing an account to be taken
or by any subsequent order,
give special directions with
regard to the mode in which the
account is to be taken or
vouched, and in particular may
direct that in taking the
account, the books of account in
which the accounts in question
have been kept shall be taken as
prima facie evidence of the
truth of the matters therein
contained, with liberty to the
parties interested to take such
objections thereto as they may
be advised.”
It is noteworthy that, whilst
the provisions of Rules 1 and 2
of Order 33 of the said High
Court Rules were substantially
amended by the High Court (Civil
Procedure) (Amendment) (No.2)
Rules 1977 (L.I. 1129), those
amendments left rule 3 and the
remaining Rules of the Order,
intact. Although amended Rule 1
gave a Plaintiff the power to
apply to the court for a summary
order for accounts at any time
after the Defendant has entered
an appearance, we do not read
this provision to mean that,
should such a Plaintiff fail to
make such an application at all,
(as happened in this case) the
court has no power to include
such an order for accounting in
the judgment. In any event, the
Plaintiffs herein, having, in
their Writ of Summons,
specifically claimed an order
for accounts, given the state of
the law as at the time, the
learned High Court judge would
have failed in his duty in the
matter had he failed to make
some specific dispositions on
that claim. Hence, in view of
the evidence on hand, the Court
could do no wise than grant the
claim for accounting and order
the modalities for taking and
verifying the same accordingly.
Consequently, when the learned
High Court judge, in the light
of the evidence, particularly
that of DW2 (the Appellant’s
treasurer) ordered, as part of
the judgement in the matter,
that the Executives of the
Appellants render an account to
the Plaintiffs and that those
accounts be audited by the
Serious Fraud Office, he was
acting within his statutory
powers. By the very nature of
the claim, what was at issue, in
that respect, was not whether or
not the Appellant is liable
(that stage could not be reached
until after the taking and
verification of the accounts) to
the Plaintiffs but whether or
not the Appellant owed the
plaintiffs a duty of accounting.
Hence, beyond the justifiable
finding that no proper books of
accounts had been kept, the
court made no findings regarding
culpability vis-à-vis the
application of the funds
collected from the plaintiffs.
It, therefore, follows that the
case of Commodore v. Fruit
Supply Ghana Limited (supra)
cannot support the Appellants
case. As was correctly noted by
both the Plaintiffs and KMA, in
their respective statements of
case, that case, to the
contrary, even operates against
the Appellant since that was an
accounting case in which the
trial judge failed to order
accounts. The High Court judge
in this case having, in
accordance with the claim, in
his judgement ordered the
rendering of accounts it is
difficult to fathom the
rationale or even bona fides of
the Appellant’s appeal herein.
And we find that this appeal was
brought in bad faith.
Whilst it may be arguable that,
from a case management
viewpoint, it might have been
more efficacious for the order
for accounts and verification to
have been made during the course
of the proceedings, so that the
judgment could be based on the
findings of the Serious Fraud
Office, yet these would be
purely matters of judicial
efficiency, which whilst they
are desirable, have no
legitimate bearing on the
validity of the judgement of the
High Court in this matter.
Furthermore, the Appellant has
failed to demonstrate to this
court in any cogent manner, in
what way the Court’s application
of Order 33.3 fails to respond
to the parties’ mutual
requirement for accounting and
verification, especially bearing
in mind the fact that from the
record before us, the Executives
of the Association have been
very reluctant to produce the
Appellant’s accounting books and
records. Allegedly, many of
these have been damaged; and the
only person who had access to
any other records is dead. In
the circumstances, it is our
view that the judge made a sound
decision and cannot be faulted
for the manner in which he
applied Order 33 rule 3. Any
need for cross examination of
the Serious Fraud office on any
findings it may make, pursuant
to the examination of the
Appellant’s accounts, can be
accommodated within the rules of
the High Court and there is no
conceivable way in which the
just interests of the Appellants
in the matter might be said to
have been unlawfully compromised
or otherwise prejudiced by
virtue of the judgement.
Moreover, the findings on which
the High Court judge based his
invocation of Order 33.3 have
never been challenged by the
Appellant. Rather, what is
evident is that the Appellant
is, indeed, in agreement that an
accounting is due from it to the
Plaintiffs, as well as all its
contributing members. Hence,
having collected vast sums of
money from its members, under a
special scheme, for the
construction of the shops and
stalls, accountability and
transparency dictate that the
Appellants account to the
Plaintiffs, for the application
of the funds. This duty exists
regardless of whether or not the
stalls and shops had been
properly allocated. Indeed the
executives of the Association
should not, in all honesty have
even joined issue with the
Plaintiffs on the claim for
accounts. Thus, even assuming
that the Learned High Court
Judge did misapply the Rule, it
still cannot be legitimately
concluded that such
misapplication has resulted in a
miscarriage of justice to the
Appellant.
This appeal is totally devoid of
any merit whatsoever, and as we
have already found was brought
is bad faith. Had counsel for
the Appellants exercised the
standard of professionalism
expected of lawyers who practice
before the Supreme Court, we
doubt that he would have brought
or pursued such an appeal. Our
only conclusion is that the same
was brought merely to thwart the
Plaintiffs and delay the day of
reckoning. We deplore such
conduct since it amounts to an
abuse of the court’s processes
and results in the waste of
public resources.
Sophia A.
B. Akuffo
JUSTICE OF THE
SUPREME COURT
S. A. Brobbey
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
S. K. Asiamah
JUSTICE
OF THE SUPREME COURT
Counsel:
Sir Dennis Adjei for the
Respondent
Mr. Osei Poku for Co-Respondent
(K.M.A.)
Mr. Atta Akyea for the
Appellants.
|
