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The Professional Musical
Spinners Association of Ghana (PROMSAG)
is an incorporated association
under the Companies Act, 1963
(Act 179). Its constitution was
promulgated on 27-02-1990. One
of the aims of PROMSAG, as
stated in Article 1(1) of their
constitution, is “to secure and
maintain complete Unity amongst
all Musical Spinners who are
members or get to be members of
the Association.” This noble aim
turns out to a mirage as would
be revealed in the circumstances
which culminated to the instant
action in this court.
On 23-12-2008, PROMSAG (1st
plaintiff) and Hon. Nii Amarh
Ashitey (the 2nd
plaintiff)) caused a writ to be
issued from the registry of this
court by which they claim
against the defendants the
following reliefs:
“1) A declaration that the
purported election of the
defendants as the Greater Accra
Regional Executives of the
Professional Musical Spinners
Association of Ghana (PROMSAG)
is null and void:
2) A further declaration that
the conduct of the defendants in
requesting the second plaintiff
to hand over the National Office
to the defendants is null and
void.”
The defendants to this suit
numbering nine are the
following:
1.
Emmanuel Ashiteye Afutu;
2.
Joseph Nii Armah Quaye;
3.
E. A. Tagoe;
4.
Emmanuel Adjei;
5.
Samuel Yiadom;
6.
John Quatson;
7.
Edmund Aryeetey;
8.
James Krampah; and
9.
Dickson Solomon Nmerteh
The case of the plaintiffs is
that the 2nd
plaintiff is the National
Chairman of the 1st
plaintiff association. The
defendants are all members of
the Greater Accra Regional
Branch of the association. On
12-12-2008, the defendants, by
letter addressed to the 2nd
plaintiff, described themselves
as the “Newly elected Executives
of PROMSAG, Greater Accra
Region” and requested the 2nd
plaintiff to hand over the
national office of the
association to them from Monday,
15-12-2008. This action of the
defendants is unconstitutional
and reckless. In pursuance of
this conduct, the defendants
caused the Kaneshie Police to
summon the 2nd
plaintiff to the police station
to explain the basis of his
position in the association.
This prompted the plaintiffs to
institute this action claiming
the reliefs stated hereinbefore.
The case of the defendants is
that the 2nd
plaintiff is not the National
Chairman of the association for
he had not been elected in
accordance with the constitution
of the association. The 2nd
plaintiff’s claim to that
office, therefore, is
illegitimate and
unconstitutional. But, in
pursuance of his illegitimate
position, the 2nd
plaintiff has over the years
been receiving royalties from
some members of the association
unjustifiably and has failed to
render accounts in respect
thereof to the members of the
association.
The defendants admit that they
wrote to the 2nd
plaintiff on 12-12-2008
requesting him to hand over the
national office of the
association to them. They
justify this action by
contending that they were the
constitutionally elected
executives of the Greater Accra
Region of the association and
thus entitled to take over the
national office of the
association. They, therefore,
deny that their action in
reporting the 2nd
plaintiff to the police to hand
over the national office is
unconstitutional and reckless.
The defendants contend, further,
that the association is run by
its executive council and they
constitute the executive council
of the association. As such,
they, as the executive council,
are vested with the authority to
bring legal action for and on
behalf of the association and
not just any ordinary member.
Thus, the instant action has
been fraudulently initiated in
the association’s name.
The defendants, from the above,
contend that the 2nd
plaintiff has no cause of action
against them and counterclaims
against him for the following
reliefs:
“i. A declaration that the 2nd
Plaintiff has not been nominated
and elected to the office of
chairman in accordance with the
constitution of the 1st
plaintiff.
ii. A declaration that the 2nd
Plaintiff is not entitled to
hold office of the chairman of
the 1st Plaintiff.
iii. An order directed at the 2nd
Plaintiff to render accounts to
members of the 1st
Plaintiff in respect of all
royalties he has received from
members of the 1st
Plaintiff.”
In reply to the defence, the 2nd
plaintiff says that his
predecessor as National Chairman
of the association assumed
office in January 1999 and left
office in 2006 and he took over
the position pending elections.
The letters covering his
assumption of office as the
interim National Chairman was
signed by the General Secretary
of the association and copied to
all regional executive
chairmen.
The second plaintiff again
contends, in reply, that the
current suit is at the instance
of the Executive Council of the
association and that the 1st
defendant, Emmanuel Ashiteye
Afutu, was a member of a
committee set up to make
recommendations for holding
elections. The committee, in its
recommendations, requested that
District and Regional elections
be held first before the
national elections. The
Executive Council set up a
machinery to hold the District
and Regional elections one of
which had already been held.
At the application for
directions, the following issues
were set down for trial:
a)
Whether or not the 2nd
plaintiff is legally the
National Chairman of the
Professional Musical Spinners
Association of Ghana (PROMSAG).
b)
Whether or not the defendants
are executive members of
PROMSAG, Greater Accra Region.
c)
Whether or not the defendants
constitute the Executive Council
of PROMSAG.
d)
Whether or not the current
action is at the instance of the
Executive Council.
e)
Whether or not the 2nd
plaintiff ought to account to
the members of the defendant and
other members of Professional
Musical Spinners Association of
Ghana (PROMSAG) in respect of
royalties he has received.
f)
Whether or not it is the
executive council of the 1st
plaintiff which has the capacity
to commence legal action for and
on behalf the 1st
plaintiff.
g)
Whether or not the present
action has been instituted by
the executive council of the 1st
plaintiff for and on behalf of
the 1st plaintiff.
h)
Whether or not this action has
been fraudulently initiated in 1st
plaintiff’s name.
i)
Any other issues arising from
the pleadings.
The first issue is whether the 2nd
plaintiff is legally the
National Chairman of PROMSAG.
The bone of contention between
the parties is that while the
defendants rely on the
constitution of the association
to say that the 2nd
plaintiff cannot be the chairman
for he was not elected into that
office by the association, the 2nd
plaintiff says the provisions of
the constitution have not been
applied in practice and he was
appointed Chairman by the
association with the knowledge
and consent of members of the
association and he has been
acting as such.
Article 3(1) of the
association’s constitution
(Exhibit A) provides as follows:
“There will be election after
every year, at a delegate
conference or General Meeting
for a post of National Chairman
…”
The 2nd plaintiff
admits that he was not elected
in accordance with Article 3(1)
of the constitution. He was
appointed to the office by the
association and this has been
acknowledged and consented to by
the entire membership thus
giving him legitimacy. The
plaintiffs tendered Exhibit H in
support of the 2nd
plaintiff’s case. Exhibit H is a
letter dated 09-10-2006 from the
outgoing Chairman, Mr. E. T.
Boison, to the association
bankers, Social Security Bank,
introducing the 2nd
plaintiff as the new Chairman of
PROMSAG. It states in paragraph
1 as follows:
“I wish to introduce to the Bank
Hon. Nii Amarh Ashitey,
newly appointed National
Chairman of the Professional
Musical Spinners Association of
Ghana (PROMSAG).” (my emphasis).
The legality of the 2nd
plaintiff’s position in PROMSAG
is confirmed by the 4th
defendant by letter dated
03-07-2006 to the General
Secretary of the association
(Exhibit J) by which the Accra
group accepted the 2nd
plaintiff’s appointment as
National Chairman. In paragraph
1 of the said letter, it is
stated as follows:
“On my behalf and the entire
spinning groups in Accra
(Greater Accra Region), I write
to accept and congratulate your
office with the
appointment of HON. NII
AMARH ASHITEY as the new
Chairman of PROMSAG …
We therefore accept
his leadership as chairman of
PROMSAG.” (my emphasis).
It, therefore, lies foul in the
mouths of the defendants who are
the purportedly elected
executives of the Greater Accra
branch of PROMSAG to challenge
the legality of the 2nd
plaintiff’s position as the
National Chairman of PROMSAG. In
fact, they are estopped from
challenging the 2nd
plaintiff’s position.
Counsel for the defendants
acknowledged this principle of
estoppel as regards the facts of
this case but denies its
applicability in this case. He
submits as follows:
“It is the law that in
constitutional matters such as
the one between the parties,
doctrine of estoppel cannot be
held to validate acts which are
against the express provisions
of that constitution.”
Counsel relies on the case of
Tuffour vrs. Attorney-General
[1980] GLR 637 in
support of his submission.
Indeed, in Tuffour vrs.
Attorney-General supra,
it was held by the Court of
Appeal at page 656 thus:
“… This court does not think
that any act or conduct which is
contrary to the express or
implied provisions of the
constitution can be validated by
equitable doctrines of
estoppel.”
Tuffour vrs. Attorney-General,
supra was decided in respect of
the 1979 Constitution of the
Republic of Ghana, a national
constitution. A national
constitution embodies the will
and spirit of the people of the
nation. The provisions therein
cannot be side-stepped by any
other principle of law or
equity. In my view, the
constitution of a voluntary
association cannot in anyway be
compared to a national
constitution. Members of the
association are entitled by
consent to abandon its
provisions and practice what is
convenient for them. This is
what happened in the case of
PROMSAG. Instead of electing a
National Chairman, they decided
that the outgoing chairman
should appoint somebody. Thus
Mr. E. T. Boison, who served as
the National Chairman from 1999
to 2006, appointed the 2nd
plaintiff to take over from him
and this was consented to by the
members of the association.
Furthermore, by Article 3 of the
Constitution, elections are to
be conducted yearly and one can
only hold the office of National
Chairman for two consecutive
terms. However, in practice, Mr.
E. T. Boison was in office
continuously from 1999 to 2006
when he handed over to the 2nd
plaintiff. The 2nd
plaintiff has since 2006 been in
office.
The 2nd plaintiff is
thus the legally constituted
National Chairman of PROMSAG.
The second issue is whether the
defendants are the executive
members of PROMSAG, Greater
Accra Region. The constitution
of PROMSAG has not made
provisions for district and
regional elections. And, as I
indicated earlier, the quest for
unity among all musical spinners
turned out to be a mirage. This
is inferred from the Memorandum
of Understanding arrived at by
the Interim Management Committee
(IMC) on 18-02-2008 (Exhibit D).
In the said memorandum, it is
stated thus:
“At the Interim Management
Committee (IMC) meeting held at
the office of MUSIGA on Monday,
18th February ’08,
all members consented to the
waited Re-union and had the
‘peace pipe smoked’.
It was hereby resolved that the
office holders at PROMSAG headed
by Mr. Nii Armah Ashitey shall
remain unchanged until all is
set for a new election.”
The above Memorandum of
Understanding was signed by the
2nd plaintiff, the 1st,
2nd 4th
and 6th defendants
among others.
Pursuant to the Memorandum of
Understanding a committee
comprising of the 1st
defendant, Richard Okaidja and
Richard Mensah (PROMSAG
Clerk/recorder) was empowered by
the IMC on 31-07-2008 to make
proposals for regional election
for Greater Accra Spinners
(Exhibits B and E). The terms of
reference of the said committee
are very revealing and they are
as follows:
“1. To work out sound modalities
leading to regional elections of
executives within the Greater
Accra Region.
2. To the study of the
constitution by members and its
possible amendments.”
The committee came out with a
number of findings which are
equally revealing. The findings
are as follows:
“The committee at its first
sitting found it unwise, the
appointment of executives to
head various districts, regions
and national associations of
spinners in the country instead
of conducting elections.
Members of the committee
advocated for elections to be
held in the districts as early
as possible to pave the way for
regional elections where
necessary.
One month duration to elect
district executives in the
Greater Accra Region was
suggested.”
The above findings of the
committee also confirm the
practice of appointment of
executives instead of following
what is stated in Article 3 of
the constitution. In other
words, the operations of PROMSAG
have been carried out by the
consent of members and not what
is stated in the constitution.
The committee finds the practice
of the appointments of
executives unwise and recommends
that it should be by election
starting from the district to
the national which had never
been the case ever since PROMSAG
came into existence.
The committee also made the
recommendations in respect of
the eligibility of candidates,
voters and the manner in which
the elections are to be
conducted. Of significant note
is that PROMSAG head office
should provide voting materials
for the elections and that COSGA
should be invited as observers.
The committee, further, made
recommendations that the Greater
Accra Regional Executive
committee should comprise of
eight (8) members namely the
Chairman, the 1st
Vice-chairman, the 2nd
Vice-chairman, the PRO& TASK
FORCE leader, the General
Secretary, the Treasurer, the
Organiser and two trustees.
Finally, the committee
recommended that a date be fixed
for a meeting at either Legion
Hall or La Fair Gardens inviting
executives within the district
in the Greater Accra region to
abreast them with all decisions
arrived at during their
deliberations.
There is evidence that PROMSAG
organised the above recommended
meeting on 24-09-2008 at La Fair
Gardens. Thereafter, the General
Secretary of PROMSAG, Mr. Albert
Mensah, by letter dated 20th
October, 2008, reminded all
District Chairmen of PROMSAG in
the Greater Accra region to
abide by the conditionalities
accepted at the meeting at La
Fair Gardens. In particular, the
districts were requested to
submit the list of members who
have updated their payments of
dues at the district level to
the head office before elections
for scrutiny (Exhibit F).
The General Secretary, by the
same letter of 20th
October, 2008, reminded the
District Chairmen that the 29th
October, 2008 was the final date
of all district elections in the
Greater Accra Region to pave way
for the regional election on the
26th November, 2008.
Thus, the IMC PROMSAG committee
drew a road map that would
enable elections to be held from
the district through the
regional to the national for
executives of PROMSAG instead of
the hitherto appointments. This
then brings up the issue whether
due process was followed in
electing the Greater Accra
PROMSAG executives. It is the
defendants who assert that they
were duly elected as the Greater
Accra branch executives of
PROMSAG. The plaintiffs deny
this assertion. By section 14 of
the Evidence Act, 1975 (NRCD
323), the defendants have the
burden to persuade the court as
to the existence of their
assertion that they were duly
elected.
To prove their assertion, the
defendants gave evidence through
the 4th defendant
that an election was conducted
by the Electoral Commission on
the 28th September,
2008 in which all the defendants
were elected into various
executive positions. The 4th
defendant tendered Exhibit 6 to
support this evidence.
Exhibit 6 is a letter dated 2nd
December, 2008 from the Ashiedu
Keteke District of the Electoral
Commission to the effect that an
election was held of the
executive members of PROMSAG on
27-11-2008 (not 28-09-2008) at
the Legion Hall near the Baiden
Powell Memorial Hall in Accra.
The letter stated that the
Electoral Commission was invited
by the PROMSAG election
committee to supervise the said
elections and that out of twelve
(12) associations presented to
the commission to cast their
votes, 8 associations were
present. Each association was to
nominate five (5) delegates to
represent them. The letter then
listed the 8 associations with
their representatives who were
present. It also stated that
nominations received for
positions to be contested on
were all unopposed so delegates
endorsed their elections into
office through acclamation.
During cross-examination, when
the 4th defendant was
confronted with the question
whether elections were conducted
at the district level he
answered in the affirmative and
mentioned only Nima, Accra New
Town and Ashiaman Districts in
which elections were conducted.
From the 4th
defendant’s evidence, the
Greater Accra elections were
conducted contrary to the
modalities and recommendations
of the committee the IMC set up
of which the 1st
defendant was a member. In the
first place, if it is even true
that elections were conducted in
three districts that would not
be enough to satisfy the
requirements that elections be
conducted in the 12 or 13
districts in the Greater Accra
region. In any case, I do not
believe this evidence for the 4th
defendant in both his
evidence-in-chief and answers in
cross-examination is an
untruthful witness.
Secondly, by the modalities for
the elections PROMSAG’s head
office was to provide voting
materials for the elections. It
is obvious from the evidence of
the 4th defendant
that that was not the case.
Thirdly, COSGA was to be invited
as observers which was not done.
Fourthly, the modalities provide
that three or five members from
the National Executives were to
vote at the elections which was
again not the case.
Finally, the elected executives
are to hold office for a four
year term but the executives
elected by the Greater Accra
PROMSAG on 27-11-2008 was to
hold office for one year.
Thus, the whole process leading
to the purported election and
the election itself were
contrary to the modalities and
recommendations of the committee
the PROMSAG IMC set up which
were endorsed by the members at
La Fair Gardens on 24-09-2008.
The said elections are therefore
null and void and the defendants
cannot be said to be the
executive members of PROMSAG,
Greater Accra Region.
The third issue is whether the
defendants constitute the
executive council of PROMSAG.
The executive council of PROMSAG
remains the one headed by the 2nd
plaintiff as its National
Chairman. No elections were
conducted to elect a new
executive council members. The
defendants cannot therefore be
the executive council of
PROMSAG.
The fourth issue is whether or
not the current action is at the
instance of the executive
council. The plaintiffs have
testified that they had a
meeting and decided to institute
this action. The 6th
defendant, an executive member,
chose not to attend that meeting
obviously because he was in
league with the other defendants
to stage a coup d’etat to topple
the current executive council
members. The executive council
took the decision to institute
the instant action led by its
National Chairman, the 2nd
plaintiff.
The fifth issue is whether the 2nd
plaintiff ought to render
account of royalties collected.
The defendants who want the 2nd
plaintiff to render accounts did
not lead any evidence to show
that the latter was the one
collecting royalties from
members. So, there is thus no
basis for asking the 2nd
plaintiff to render accounts.
The rest of the issues are
whether or not it is the
executive council of PROMSAG
which has the capacity to
commence legal action for and on
behalf of PROMSAG and duly did
so without fraud. Both parties
agree that it is the executive
council which should institute
the action and, as already held,
the executive council duly
instituted this action. There is
no fraud at all in the
institution of this action.
Accordingly, the plaintiffs have
proved their case and are
entitled to judgment as follows:
1.
A declaration that the purported
election of the defendants as
the Greater Accra Regional
Executives of the Professional
Musical Spinners Association of
Ghana (PROMSAG) is null and
void:
2.
2) A further declaration that
the conduct of the defendants in
requesting the 2nd
plaintiff to hand over the
National Office of PROMSAG to
the defendants is null and void.
There is no basis for the
defendants counterclaim and same
is hereby dismissed.
The plaintiffs are awarded cost
of GH˘4,500.00.
COUNSEL:
1. Mr. Von Fletcher for
Plaintiffs.
2. Mr. Robert Pappoe for
Defendants.
(SGD.) UUTER PAUL DERY
JUSTICE OF HIGH COURT
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