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I
ATUGUBA, J.S.C:
FACTS:
The
Defendant/Appellant/Appellant
(hereinafter called the
‘defendant’) is the leader
(Akaboha) and the head of the
Plaintiff/Respondent/Respondent
(hereinafter called the
‘plaintiff-Church). In 2002,
Bold and Beautiful (a
periodical) published an article
alleging that the defendant had
drugged and raped a JSS girl.
Scandalized by this, the
executive council of the
plaintiff church met and urged
the defendant to institute a
libel action against the
publishers of the periodical.
The defendant however only
pleaded that the plaintiff
church should rather ‘appeal’ to
the publishers to stop further
similar publications. The
executive council then set an
investigative committee to delve
into the allegation. The
investigative committee found
that the defendant had indeed
committed the act he had been
accused of and had also
committed other sexual
misconduct contrary to the
Church’s constitution and
Bible. The defendant’s reaction
was that he was reserving his
comment but would undertake a
21-day fast with prayers for the
forgiveness of sins and would
compensate his sex victims. He
was suspended and later the
plaintiff church’s I’Odomey
conference (the general annual
assembly of the plaintiff church
which according to the
constitution of the church is
the governing body of the
Church), reached a consensus to
remove him from office. Whilst
trying to formulate its
consensus, some family members
of the defendant invaded and
disrupted the conference. The
defendant was later formally
removed but some of his family
members challenged the said
removal claiming that the
Akaboha or head holds the office
for life and cannot be removed.
Trial Court
The plaintiff church brought an
action against the defendant in
the High Court claiming the
following:
a.
A declaration that the
defendant, Prophet Miritaiah
Jonah Jehu-Appiah, the Akaboha
III or Leader and General Head
Prophet of the Musama Disco
Christo Church, based at Mozano,
Gomoa Eshiem, has been lawfully
and permanently removed from the
post or office of Akaboha or
Leader and General Head Prophet
of the said Church as from
Friday 14 February 2003.
b.
A consequential declaration that
the defendant has been ipso
facto removed or deposed
from all ancillary post or
offices, religious or secular,
affiliated to or associated with
the said Church.
c.
A further consequential order
upon the Defendant forthwith to
vacate and quit his present
official accommodation at
Mozano, near Gomoa Eshiem, along
with his wife, children and
other licencees of his, and to
deliver or hand over the said
accommodation, the keys and all
the official contents thereof to
the Church Father the Rev.
Jeresim Offa Jehu-Appiah upon
trust for the plaintiff.
d.
Such further or other relief as
in the circumstances may be just
or proper including, in
particular, a perpetual
injunction restraining the
defendant, whether by himself,
his servant, agents, privies
whomsoever or otherwise
howsoever, from holding out the
defendant in any manner
whatsoever as the Akaboha or
Leader and General Head Prophet
or as any kind of office holder
whatsoever of the Musama Disco
Christo Church.
Judgment of the High Court
The High court gave judgement in
favour of the plaintiff church.
On the question of capacity, the
trial judge held that even
though the defendant, through
his counsel, had told the court
that he had abandoned his
challenge to the people who had
initiated the action on behalf
of the plaintiff church, only to
subsequently raise the same, it
was still important to determine
the issue as capacity goes to
the root of a matter and could
be raised at any time. The
court held that aside the
consideration of the unfairness
for the defendant to raise his
abandoned challenge to capacity,
all the registered trustees of
the church were deceased and the
name of the first representative
of the plaintiff church in the
action was part of the new list
of trustees and therefore he
could bring its action.
On the second issue, the court
held that, from the evidence, it
was clear that the girls did not
fabricate the stories against
the defendant. He therefore
found that the defendant was
guilty of the conduct he had
been accused of. On the quest
ion of whether the defendant
could lawfully be removed or
not, the judge found that from
section XXIV of the Constitution
of the plaintiff church
(tendered in evidence as Exhibit
1), it is provided that members
are forbidden to do certain acts
which include immorality. The
constitution of the plaintiff
church also provided that any
member found to have violated
any of the rules shall be liable
to suspension or expulsion from
membership according to the
nature of the offence. Appendix
B (found at page 47) of Exhibit
1 provides that officers shall
hold office for life from the
date of appointment at the
I’Odormey but may be changed at
the discretion of the Executive
Council or at their request.
From this, it is clear that
Exhibit 1 made provisions for
the removal of the General
Officers who hold office for
life (which would include even
the Akaboha). The trial judge
therefore denied the defendant
his counterclaim.
Court of Appeal
Dissatisfied with this judgment,
the defendant appealed to the
Court of Appeal. The Court of
Appeal upheld the decision of
the High Court on all the
issues. On the issue of
capacity, the Court of Appeal
held that, a proper person to
bring any action must be ‘a
person aggrieved.’ He is not
anybody who is remotely
connected with the subject
matter of the dispute, not a
mere busy-body. The court takes
a broader view of locus
standi. The plaintiff has to
show that he may share that
interest with a thousand
others. The representatives of
the plaintiff church in the
action, as members, trustees and
members of the Executive Council
of the plaintiff church have
sufficient interest in the
matter to clothe them with the
capacity to bring the action
against the defendant.
On the second issue, the court
held that, exhibit 1 clearly
provides that a member can be
removed or suspended for certain
reasons which include
immorality. Also, it provides
that the General Officers of the
plaintiff church which include
the Akaboha, treasurer, general
secretary and financial
secretary shall hold office for
life from the date of
appointment at the I’Odormey
Conference but may be changed at
the discretion of the Executive
Council or at their request.
This shows that the defendant
even as the head of the Church
may be removed from his post at
the discretion of the Executive
Council even though he holds the
office for life.
At the Court of Appeal, the
defendant claimed that he was
not given a fair hearing when
the investigative committee
which was set up by the church
to investigate the allegations
against him failed to give him
an opportunity to confront or
cross-examine the alleged
victims when their statements
were being taken. However,
evidence was given to prove that
the investigating committee’s
work was met with ‘spiritual
defence’ by the defendant when
he told them it was a spiritual
attack and reserved his comments
for prayers before any comment.
In effect, the defendant refused
to co-operate with the committee
when the committee met him. He
therefore created the situation
of not meeting the victims.
After careful examination of the
record, the Court of Appeal held
that it was satisfied that the
findings of the trial Court were
clearly supported by the
evidence of the record with no
serious blunder on the part of
the trial judge.
Appeal to the Supreme Court
Again dissatisfied with the
decision of the Court of Appeal,
the defendant appealed to the
Supreme Court on the following
grounds:
1.
That the judgment is against the
weight of evidence.
2.
That the Court of Appeal erred
by delivering a lopsided
judgment in favour of the
plaintiff church without
considering the defence put up
by the defendant.
3.
That the Court of Appeal erred
by ignoring the evidential rules
relating to admission of fact
when it turned a blind eye to
the import of the evidence of DW
1-Nana Koomson.
4.
That the Court of Appeal erred
by adjudging that the plaintiff
had capacity to institute the
action against the defendant.
5.
That the Court of Appeal erred
by misinterpreting the relevant
provisions of the Companies Act
(Act 179) 1963 in favour of the
plaintiff.
6.
That the Court of Appeal erred
by adjudging that the plaintiff
complied with the rules of
natural justice.
7.
That the Court of Appeal erred
when it confirmed the decision
of the trial court that the
defendant in his capacity as the
Akaboha of the plaintiff church
can be removed from office.
8.
That the Court of Appeal erred
when it ignored the fact that
the plaintiff failed to comply
with the institutional
mechanisms established to settle
disputes internally as per the
Church’s constitution.
DECISION
GROUND 1
1.
That the judgment is against the
weight of the evidence.
The defendant claims that the
judgment is against the weight
of the evidence. Also, he
claims that the trial judge
relied on uncorroborated
evidence. The decision of the
plaintiff church to de-stool the
defendant was mainly based on
the allegations of sexual
misconduct on his part. He was
alleged to have raped or defiled
certain female members of the
church which he denied. He
claimed however that, the
evidence of the plaintiff’s
witnesses was not corroborated.
The general rule is that,
multiplicity of witnesses alone
does not prove a case, and
evidence of a single witness, if
credible and reliable is
sufficient proof of any matter
in issue. This was also stated
in the case of Adom v Ntow
(1992-1993) 4GBR 1603 C.A and
Kru v Saoud Bros (1975) 1
GLR 46. Consequently ground 1
of the appeal fails.
GROUND 2
2.
That the Court of Appeal erred
by delivering a lopsided
judgment in favour of the
plaintiff church without
considering the defence put up
by the defendant.
Evidence given at the trial
showed that the defendant did
not give any concrete defence to
the allegation. He was also
given a chance to defend himself
when he was called by the
investigative committee. The
defendant gave a spiritual
defence when he told them it was
a spiritual attack and reserved
his comments for prayers before
any comments. This defence
cannot be accepted. Ground 2
also fails.
GROUND 3
3.
That the Court of Appeal erred
by ignoring the evidential rules
relating to admission of fact
when it turned a blind eye to
the import of the evidence of DW
1-Nana Koomson.
It is settled law that where the
trial Judge has made findings of
facts and there is evidence in
support of those findings, the
appellate Court will not
interfere with them. The
Appellate court is not to set
aside the findings of a trial
court unless there is clear
evidence of some blunder or
error which results in
miscarriage of justice. From
the trial, DW 1 claimed that the
representatives of the plaintiff
paid the females who gave
evidence against the defendant
to give false information about
the defendant because they
wanted to remove him from
office. But counsel for the
plaintiff church, during cross
examination was able to
establish that DW 1 was not a
truthful witness, he had also
performed certain immoral acts
and had received help from the
defendant. Thus, his evidence
could not be accepted. Ground 3
also fails.
GROUNDS 4 AND 5
4.
That the Court of Appeal erred
by adjudging that the plaintiff
had capacity to institute the
action against the defendant.
5.
That the Court of Appeal erred
by misinterpreting the relevant
provisions of the Companies Act
(Act 179) 1963 in favour of the
plaintiff.
The issue of capacity is very
important and can be raised at
any stage of the trial and even
after judgment. This position of
the law has been endorsed by the
court in several cases including
the celebrated case of
Tuffour v Attorney-General
(1980) 637 C.A (sitting as the
S. C). The representatives who
brought the action were members
of the church and held important
positions in the church. The
principle of corporate
personality is fundamental but
not absolute. This was stated by
Adade JSC in Agyekum v Asakum
Engineering (1989-90) GLR
650 at 673-674 very copiously as
follows:
“When courts talk of the
separate personality of a
company distinct from the
shareholders and directors,
relying, particularly on Salomon
v Salomon & Co Ltd (1897) AC 22,
PC attention is hardly called to
the fact that several exceptions
have been created by the courts,
wherein the veil is lifted, ie
‘the law disregards the
corporate entity and pays regard
instead to the economic
realities behind the legal
façade.’: See Gower, Modern
Company Law (3rd
edition) (1969) at page 189. The
learned author says at p216 that
the law will crake open the
corporate shell ‘if corporate
personality is being blatantly
used as a cloak for fraud or
improper conduct’.
In this appeal, given the
charges and counter-charges, of
improper conduct on the part of
the directors, I wonder whether
any court of justice should
maintain the cloak, especially
where, as in this case, the veil
is not for the protection of
members of the company against
third parties, but in respect of
the interests of the members and
director of the company per se.
in such a case it will be unjust
to allow one party (to
plagiarise a phrase by Russel J)
to hold the mask of corporate
entity ‘before his face in an
attempt to avoid recognition by
the eye of equity; (see Jones v
Lipman [1962] WLR 832 at 836.)
There is no doubt that looking
at the record, the real
plaintiffs are the other
directors and shareholders led
by G. K. Asafu-Adjaye. These are
the persons referred to by the
defendant as the company’s alter
ego. There is evidence that the
company has ceased to operate
since October 2, 1984; it
therefore exists only in name.
relations among the directors
and shareholders have strained
to such a limit that the parties
can no longer come together to
do business. They have pulled
apart, breaking up into two
groups; one group with the
defendant, has formed Ladco Ltd;
the other group, with G. K.
Asafu-Adjaje, has formed Asakum
Plant Hire Ltd. Each group is
keeping for its use the
plaintiff-company’s property
(particularly plant and
machinery) which it had in its
possession at the commencement
of the diaspora. There are
allegations that some of the
directors have misappropriated
funds of the company to put up
private houses; that another has
diverted cement and so on. These
are mere allegations, and
naturally have been denied. The
defendant is described in the
statement of claim as ‘a civil
engineer, a shareholder and
general manager’ of the company.
The defendant himself says he is
a director-general manager, and
owns a third of the shares of
the company. And according to
the plaintiff’s counsel, the
defendant is sued as a director.
Notwithstanding these statements
by and on behalf of the
plaintiffs, counsel is able to
assert in the letter of March
21, 1986 that the defendant:
‘was never allotted any shares,
and he never paid for any, so
that strictly speaking, he has
no shares to be bought in the
proposed buying-out process;
certainly none to be valued.’
This no doubt explains the
plaintiff’s attitude to the
orders for the accounts which
they themselves agreed to before
Ampiah J (as he then was). In an
application for a stay of
execution, the Court of Appeal,
Amua-Sekyi JA (as he then was)
felt, without expressing an
opinion on the matter, that:
The fact that the company have
refused to permit the valuation
[of the company’s asset] to be
made may at the hearing of the
appeal be held to disentitle
them to relief, and the learned
judge [Lutterodt J] be held to
have erred in entertaining the
application for judgment’.
With these sentiments, I am in
complete agreement. It would
seem that someone is trying to
cheat, and the court should not
encourage cheating. Someone is
trying to use the myth of the
separate personality of a
company to get into his hands
and under his control all the
assets of the company to the
detriment of the defendant who
too is a shareholder, director
and general manager.”
Corporate personality therefore
cannot be allowed to be used by
the respondent as a cloak for
perversion of the church.
GROUND 6
6.
That the Court of Appeal erred
by adjudging that the plaintiff
complied with
the rules of natural justice.
From the unchallenged evidence
at the trial, it was clear that
some elders of the plaintiff
church (unbelieving that he was
innocent) asked the defendant to
institute a libel action against
the publishers of the article.
He, knowing that the article was
true, pleaded that the plaintiff
church should rather ‘appeal’ to
the editor to stop further
publications. The investigative
committee set up to delve into
the matter, after hearing
several witnesses invited the
defendant, confronted him with
the evidence, and asked him for
his reaction to the evidence.
The defendant’s reaction to the
said evidence was that he was
reserving his comments but would
rather immediately undertake a
21-day fast with prayers for the
forgiveness of his sins and
would also compensate his said
sex victims. This clearly showed
that the audi alteram partem
rule of natural justice was
adhered to. He was given several
opportunities to be heard and to
tell his side of the story, all
of which he failed to take
advantage of. Indeed, the
defendant, due to his posture
before the investigative
committee, created the situation
of not meeting the victims by
not cooperating with the
investigative committee.
GROUND 7
7.
That the Court of Appeal erred
when it confirmed the decision
of the trial court that the
defendant in his capacity as the
Akaboha of the plaintiff church
can be removed from office.
Even if it be contended that the
provision relating to the
Akaboha position is specific and
therefore cannot be affected by
generalia he is still not
absolutely immune from
expulsion.
There were the days when the
rules of interpretation of
statutes quarrelled virtually
uncontrollably inter se,
but today, one of them, which
has been and still is dynamic
and composite, has prevailed
over the others although it is
now better known as the
purposive rule of
interpretation. Thus in Grey
v Pearson (1897) HL 61 at
106 it is stated as follows:
“In construing wills and indeed
statutes, and all written
instruments the grammatical and
ordinary sense of the words is
to be adhered to, unless that
would lead to some absurdity, or
some repugnance or
inconsistency, with the rest of
the instrument, in which case
the grammatical and ordinary
sense of the word may be
modified so as to avoid the
absurdity and inconsistence, but
no further.’(e.s)
The literalism of the provision
in exhibit 1 relied on by the
appellant for his shield of
irremovability cannot help him.
That provision is S,IV(3) of the
church’s constitution. It is as
follows: “The Akaboha is the
Life Chairman of the
I’Odomey Conference and the
Executive Board”. I will say
mutatis mutandis as did
Roxburgh J in In re
Ullswater, Decd. Barclays Bank
Ld. v Lowther and Another
(1952) 1Ch. 105 at 109 “I
think that is the literal
construction of these words, but
it would be a ludicrous result
and one which I am sure no court
has ever contemplated. The
truth of the matter is that,
though these operations are
stated in chronological
sequence, the words are not to
be regarded as a mandatory
direction to the trustees to
adhere to the strict
chronological sequence.”(e.s)
A legal instrument, including a
statute, has its letter as well
as its spirit or core value and
as was said by Knight Bruce L.J
in Key v Key (1853) 4 De
G.M. & G. 73. at 84 “In
common with all men, I must
acknowledge that there are many
cases upon the construction of
documents in which the spirit is
strong enough to overcome the
letter; cases in which it is
impossible for a reasonable
being, upon a careful perusal of
an instrument, not to be
satisfied from its contents that
a literal, a strict, or an
ordinary interpretation given to
particular passages, would
disappoint and defeat the
intention with which the
instrument, read as a whole,
persuades and convinces him that
it was framed. A man so
convinced is authorized and
bound to construe the writing
accordingly.”(e.s) See also
Brown v Attorney General
(Audit Service Case) (2010)
SCGLR 183.
Section IV(1) of the said
constitution provides as
follows: “In order to fulfil
her mission of Evangelisation
and to maintain her good name
and discipline, the church
has a form of government and
executive officials” (e.s)
It is therefore quite clear from
Exhibit 1 that the plaintiff
church was established to
advance, inter alia,
sanctity and therefore it would
defeat that object and spirit to
construe it literally to mean
that the Akaboha can hold his
office for life even if he is
morally decadent. His tenure of
office for life does not stand
alone in the air but is meant to
give him the peace of mind for
the effective attainment of the
objectives of the church.
Accordingly, upon the true and
purposive interpretaion of
Exhibit 1, the Akaboha could
only hold office for life
quamdiu se bene gesserit
secundum leges Dei Omnipotenti.
GROUND 8
8. That the Court of
Appeal erred when it ignored the
fact that the plaintiff failed
to comply with institutional
mechanisms established to settle
disputes internally as per the
church’s constitution.
Evidence given at
the trial showed that, the
plaintiff church complied with
the constitutional provision
that matters must first be
directed to the various arbitral
bodies mentioned in the
Constitution. One of the
arbitral bodies was the
Executive Committee to look into
the allegation made against the
defendant; the victims of the
defendant’s act were first
invited to appear before the
investigative committee. Having
taken evidence but
unfortunately, he refused to
cooperate with the internal
mechanisms to set in place by
the constitution. The committee
then made its recommendation for
the removal of the defendant to
the Executive Council. As to
the jurisdiction of the
investigative committee in this
matter I do not think that it
undertook to investigate charges
against the appellant that are
strictissimi criminis.
For all the forgoing reasons, we
dismiss the appeal.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
CONCURRING OPINION
BENIN, JSC:-
I am in agreement that the
appeal be dismissed for the
reasons espoused in the lead
judgment just delivered by my
able brother Atuguba, JSC. I
only want to address the issue
of capacity and what counsel for
the appellant termed the
constitutionality of the action
which he has argued at length,
both in terms of law and fact. I
would not want to re-state the
law on this question of capacity
for the principle is very well
grounded in our law that where a
party’s capacity to mount an
action is challenged he cannot
succeed on merits without first
satisfying the court that he is
clothed with the requisite
capacity to bring the action.
What are the facts upon which
the plaintiff’s capacity has
been challenged in this action?
It was undisputed that the
plaintiff church was registered
with the office of the
Registrar-General as a body
corporate somewhere in 1959. The
membership of its board of
directors and board of trustees,
inter alia, was filed with that
office. The defendant contended,
among other things, that the two
persons who brought the action
in the name of the Church were
not part of the board of
trustees or board of directors.
And it was also argued that they
were not even authorized by the
appropriate bodies to bring this
action. Hence grounds iv and v
of the grounds of appeal were
raised and argued together. For
a perfect understanding of the
submissions, these two grounds
will be re-stated here. They
are:
iv. That the appellate court
erred by adjudging that the
plaintiff had capacity to
institute the action against the
defendant.
v. That the appellate court
erred by misinterpreting the
relevant provisions of the
Companies Code, 1963 (Act 179)
in favour of the plaintiff.
Counsel discussed this question
of capacity under three heads,
namely: “(i) Mandate from the
Company Church; (ii) Power of
Attorney and (iii) Resolutions”
Two relevant and material
documents were tendered into
evidence by the defendant
namely, exhibit 1 which is the
Constitution of the Church which
also incorporates the 1959
registration documents from the
Registrar-General’s office; and
exhibit 5 which is an extract
from the records at the office
of the Registrar-General
affecting the plaintiff church
which discloses the names of
members of the board of
directors and the board of
trustees. Counsel said none of
the two persons who are in court
as representatives of the
plaintiff church has been listed
as a member of the board of
directors or trustees hence they
have no capacity to bring this
action.
It seems the defendant in a
desperate attempt to salvage his
battered image and position is
prepared to rely on anything,
however untenable it may appear
to be. Exhibits 1 and 5 both
list Prophet M. M. Jehu-Appiah
as the leader of the Church. It
is a known fact the said Prophet
M. M. Jehu-Appiah died in or
about the year 1972 and the
defendant herein succeeded him.
Is the defendant then saying
that since his name does not
appear on the records of the
Registrar-General as borne out
by exhibits 1 and 5 he (the
defendant) has never been the
Akaboha? The reality of the
situation is that since the
filing of the particulars of the
church with the
Registrar-General’s office in
1959, they have undergone a lot
of changes which are not
reflected in these exhibits. So
it was prudent for Counsel for
the appellant to have pointed
out these changes which could be
found on the record; rather he
chose to point out those which
he believed were in favour of
his client. That was quite
unprofessional and dangerous. It
is dangerous in the sense that
if the court is to go by
counsel’s line of reasoning the
only logical conclusion would be
that since the defendant was
unknown in the records of the
Registrar-General, then he has
never been Akaboha. That would
be absurd, to say the least.
That is why counsel should have
been very candid with the court
and to tell us the true state of
affairs in the church as it
existed at the date of the
commencement of these
proceedings.
The true state of affairs in
regard to the membership of the
board of trustees and elders of
the church is reflected in
exhibit B, copy of the church’s
leadership filed on 8th
April 1991 with the Registrar of
religious bodies as required by
section 3 of the Religious
Bodies (Registration) Law 1989,
(PNDCL 221), since repealed.
This is found at pages 268-270
of the record. The receipt bears
the name of Prophet Miritaiah
Jona Jehu-Appiah, defendant
herein. In the said notification
in exhibit B the defendant
submitted the names of seven
persons as members of the board
of trustees including the name
of Rev. Jeresim Offa Jehu-Appiah
one of the two representatives
of the plaintiff herein.
Besides, exhibit B contains the
names of the five principal
officers of the church including
the defendant herein. Indeed the
membership of these two
important bodies is entirely
different from those in exhibits
1 and 5. Exhibit B being later
in time and done at a time the
defendant had assumed the reins
of office as Akaboha it
supersedes that in exhibits 1
and 5 which have names of
deceased persons. Exhibit B is
the deed of the defendant and he
is thus bound by it; estoppel by
deed and conduct will operate
against him. Sections 25(1) and
26 of the Evidence Decree, 1975
(NRCD 323) are both applicable;
they provide thus:
25(1) Except as otherwise
provided by law, including a
rule of equity, the facts
recited in a written document
are conclusively presumed to be
true as between the parties to
the instrument, or their
successors in interest.
26. Except as otherwise provided
by law, including a 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.
The first representative as a
trustee is clothed with the
power to represent the church.
And so too is the second
representative who is a church
religious minister and leader.
In this particular case the
defendant as Akaboha is
automatic head of the l’Odomey
Conference, the highest decision
making body in the Church, was
not expected to call a meeting
to discuss his removal from
office. Indeed it would be
unreasonable to even guess that
the defendant would call for
such a meeting, it was thus open
to any member of the executive
council or board of trustees to
bring an action to protect the
image of the church, so long as
the these bodies do not oppose
the move. As a matter of fact
the defendant had by his own
conduct and utterances given an
indication he would not take any
step to protect the church’s
image. He had refused to cause
even a rejoinder to be published
to retract the scandalous story.
In these circumstances how would
you expect the members of the
church to wait until a formal
authorization has been given by
the l’Odomey Conference which
the defendant chairs.
Be that as it may Rev. Bagyina
pw6 who spoke for the church
said the action was authorized
by both the executive council
and the board of trustees.
Having regard to the general
conduct and actions of the
hierarchy of the church in
seeking to protect or salvage
the image of the church since
the newspaper story broke out,
it was reasonable for the court
to accept and rely on the
evidence of pw6. His testimony
under cross-examination was
consistent with the mood at the
time which was to remove the
defendant from office. Moreover
the absence of a formal
resolution should not detract
from the evidence of pw6
especially as the members of
those two bodies namely the
executive council and board of
trustees have not objected to
the institution of this action.
In the light of the foregoing it
is clear that all the arguments
founded on provisions of the
Companies Code, 1963 (Act 179)
do not fly as the records at the
Registrar-General’s office were
outdated and clearly unreliable.
The next line of argument was
that the plaintiff did not give
a power of attorney to pw6 to
testify for the plaintiff.
Counsel’s position was that “it
is trite learning that in a
situation where a party cannot
act his authority to do so is
given to another person to do so
through a Power of
Attorney………….This is what the
plaintiff should have done in
this case but this elementary
duty was ignored and it is fatal
to the case of the plaintiff.”
Counsel went on to itemize
the reasons why the lack of a
power of attorney was fatal to
the plaintiff’s case. These are:
1.
“That pw6 is deemed to have
given evidence in the case
without any authority and his
evidence is therefore of no
consequence in the case.
2.
The conduct of the plaintiff in
permitting pw6 to testify on its
behalf is wrong in law and as
such it is caught by the
principle of ‘Delegatus non
potest delegare’…………..This case
is therefore to be treated as if
the plaintiff had not given
evidence at all. One therefore
wonders why the trial court gave
judgment in favour of the
plaintiff on the basis of the
unauthorized evidence of pw6. It
is therefore submitted that the
evidence of pw6 should be
ignored at this appellate level
and treated as if he did not
give evidence at all. Without
the evidence of the plaintiff on
record, then it stands to
reason that the plaintiff has
no case against the defendant”.
I have been at pains to
understand the basis for this
submission unless we decide to
ignore the law on evidence. I
thought that the law has always
been that any competent person
with knowledge of the
subject-matter could give
evidence for a party. And if it
is the party himself who has
tasked a knowledgeable person to
testify for and on his behalf,
nobody else has the right to
challenge that. In other words I
have always thought that the
party to a case has full liberty
to decide who should talk for
him. If counsel’s argument is
accepted then even if the
trustees of the church were not
privy to the events that
culminated in this action they
could not ask any person with
knowledge of the events to
testify for them unless they
have given him a power of
attorney. Where in the rules or
laws on evidence do we justify
this preposterous argument? All
the decided cases have made it
clear that a party need not
testify by himself, see these
cases: In Re Ashalley
Botwe Lands; Adjetey Agbosu and
Others v. Kotey and Others
(2003-2004) SCGLR 420 at
page 448, per Wood, JSC (as she
then was) and William Ashitey
Armah v. Hydrafoam Estates (Gh.)
Ltd, Civil Appeal J4/33/2013
dated 28 May 2013, unreported.
And where the person giving
evidence has been called by a
party in the case to talk for
and on his behalf he does not
require a power of attorney.
Representing a party, qua party
per se, should be distinguished
from testifying for a party as a
competent witness for and on
behalf of a party or in the
stead of a party. In the former
situation a power of attorney
will be required to enable the
holder of the power to conduct
the case as an attorney; in the
latter situation a power of
attorney is not required for the
representation ends with his
testimony to the court. In this
case Rev. Bagyina said he was
the spokesperson for the
plaintiff and he testified not
as a party but as plaintiff
witness number six. He did not
require a power of attorney to
do that.
Thirdly Counsel spoke about lack
of resolutions to authorize the
issuance of the writ. Counsel’s
position, briefly stated, was
that as a registered company,
the plaintiff church was obliged
to act by resolution of the
appropriate body/bodies to
authorize the plaintiff to mount
this action. But none of the
three resolutions that were put
in evidence did authorize the
institution of this action
according to counsel. All these
resolutions were passed on 24th
January 2003 and they came from
the Elders Council and
Apakanhenfo, the Finusifim band
and Mozano Oman respectively. It
is not in dispute that all these
groups were important component
parts of the Church. It is now
clear that the membership of the
various constituent bodies filed
with the office of the
Registrar-General was not a true
reflection of the current state
of affairs. Thus the views of
these constituent bodies and
others which the entire
membership of the Church had
duly acknowledged could not be
wished away. These bodies had
taken the position that the
leadership of the defendant was
no longer tenable. Whichever way
that decision was carried out
should not detract from its
intended effect and purpose
notwithstanding that they did
not strictly conform to the
requirements of a resolution as
understood by lawyers. Their
intent was to denounce the
repugnant and shameful acts
committed by the defendant
against the Church and to get
him removed from office. The
failure to call or head same as
a resolution was of no moment,
it achieved the same purpose and
object. We as lawyers should not
make mockery of those not
endowed in the use of legal
terminology; such technicalities
belittle the intelligence of
non-lawyers and do no justice to
the parties. As a court it is
our duty to appreciate and
understand what purpose the
writer of a document sought to
attain and to give effect to it,
the language used should not be
a bar to justice. These
decisions of these important
constituents in the church no
doubt must have emboldened the
plaintiff to take this action
since the defendant had refused
to clear his name and for that
matter that of the church. The
decision to take the action,
looking at the constitution of
the church could only be reached
if the constituent bodies took a
stand against the defendant who
as the leader of the church, is
also a prophet and traditional
ruler of the town of Mozano. In
this scenario what appeared to
be a vote of no confidence by
the head chiefs, the religious
groups and the Oman representing
the people was surely the most
potent signal that an action
could be taken by the church.
Thus when pw6 said the executive
council and board of trustees
authorized the action he was
speaking the truth, the lack of
resolutions to that effect
notwithstanding.
It is important to recall the
resolution by the Elders Council
and Apakanhenfo dated 24th
January 2003. It was addressed
to the Chairman of the Interim
Oversight Administrative
Committee, which was then
running the affairs of the
Church. It reads in relevant
part thus: “…….we were briefed
on recent developments
concerning the Akaboha
III…………..and hereby resolve that
in view of the damaging things
done by the Akaboha III, where
he has not been able to redeem
himself of, we cannot serve him
again as the Akaboha of the
church” This was attested by
principal kingmakers, namely the
Twafohene, Adontenhene,
Benkumhene, Nyimfahene,
Sanaahene, Obaatan, Kyidomhene
and Guantoahene. Other members
of this body who also attested
to the resolution were the
acting Chairman of the Council
of Elders as well as eight
district heads from various
parts of the country. In a
situation like this any member
of the Board of Trustees or the
Interim executive body that was
in place could take an action to
redeem the image of the church
by seeking to enforce the
decisions taken by the various
bodies in the church to remove
the defendant. As earlier
pointed out it would be absurd
to expect the defendant to
convene a meeting of the
l’Odomey Conference to recommend
the institution of an action
against himself.
Unconstitutionality of the suit.
This is the subject of ground
viii which I thought borders on
capacity as well. The
appellant’s contention couched
in several words in the
statement of case as well as the
reply to the respondent’s
statement of case was that the
plaintiff did not exhaust the
internal mechanism provided
under the church’s constitution
before instituting this action.
For that reason he submitted the
action was unconstitutional,
which I understood to mean
premature and should be
dismissed on that account. I do
not think we need to spill much
ink on this point which as I
said was addressed at length.
Section XIV of the constitution
makes resort to arbitration a
precondition before resort to
the law court in matters
involving members of the church.
That arbitration clause does not
apply here because the present
action does not involve opposing
members of the church; it is an
action by the church itself
against a member for which no
provision is made in the
constitution for arbitration.
Secondly, the church cannot be
treated as a member for it is
not, having regard to the
definition of member of the
church in section X of the
constitution. Finally the
jurisdiction of the arbitration
panel was ousted by the general
law of the land in the sense
that the issues involved were
criminal offences of rape and
defilement which only the State,
represented by the
Attorney-General and the courts
of the land, could deal with.
These criminal offences could
not be the subject of private
arbitration. Indeed subsection 5
of section XIV of the church’s
constitution, exhibit 1 makes it
clear that the arbitrators are
to decline jurisdiction “when it
is found to be more serious and
above the church’s
jurisdiction’’ There is no doubt
such serious criminal offences
as rape and defilement are above
their jurisdiction. Arbitration
in the circumstances of this
case was a non-starter. These
arguments are thus roundly
rejected. The action was thus
properly brought by persons with
the right capacity to act on
behalf of the church.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE
OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
GUSTAV ADDINGTON ESQ. FOR THE
DEFENDANT /APPELLANT/
APPELLANT.
ALEX ABBAN ESQ. LED BY KWEKU
ASIRIF ESQ. FOR THE PLAINTIFF/
RESPONDENT/ RESPONDENT.
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