COURT OF APPEAL, ACCRA
Date: 28 JULY 1975
AZU CRABBE CJ SOWAH AND ANIN JJA
CASES REFERRED TO
(1) Becke v. Smith (1836) 2 M. &. W. 191; 6 L.J.Ex. 54; 150 E.R. 724.
(2) Sussex Peerage Case (1844) 11 C1. & F. 85; 8 Jur. 793; 8 E.R. 1034.
(3) Markt & Co., Ltd v. Knight S. S. Co., Ltd. [1910] 2 K.B. 1021; 79 L.J. K.B. 939; 103 L.T. 369; 11 Asp.M.L.C. 460, C.A.
(4) Bedford (Duke) v. Ellis [1901] A.C.1; 70 L.J.Ch. 102; 83 L.T. 686; 17 T.L.R. 139, H.L.
(5) De Hart v. Stevenson (1876) 1 Q.B.D. 313; 45 L.J.Q.B. 575; 24 W.R. 367.
(6) Harrison v. Abergavenny (Marquis) (1886) 57 L.T. 360; 3 T.L.R. 653, C.A.
(7) Marrs v. Thompson (1902) 86 L.T. 759; 18 T.L.R. 565.
(8) Tottenham, In re; Tottenham v. Tottenham [1896] 1 Ch. 628; 65 L.J.Ch. 549; 74 L.T. 376; 44 W.R. 539.
(9) Worraker v. Pryer (1876) 2 Ch.D. 109; 45 L.J.Ch. 273; 24 W.R. 269.
(10) Gbogbolulu v. Hodo (1947) 7 W.A.C.A. 164.
(11) Dove v. Wuta Ofei [1966] G.L.R. 299, S.C.
(12) Mallet v. Braun [1975] 1 G.L.R. 78.
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(13) Lawrance v. Lord Norreys (1890) 15 App.Cas. 210; 59 L.J.Ch. 681; 62 L.T. 706; 54 J.P. 708; 38 W.R. 753; 6 T.L.R. 285, H.L
(14) Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. [1899] 1 Q.B. 86; 68 L.J.Q.B. 34; 79 L.T. 429; 15 T.L.R. 29; 43 S.J. 41, C.A.
(15) Barton, Thompson & Co., Ltd. v. Stapling Machines Co. [1966] 1 Ch. 499; [1966] 2 W.L.R. 1429; [1966] 2 All E.R. 222; 110 S.J. 313.
(16) Moore v. Lawson (1915) 31 T.L.R. 418, C.A.
(17) Peru (Republic) v. Peruvian Guano Co. (1887) 36 Ch.D. 489; 56 L.J.Ch. 1081; 57 L.T. 337; 36 W.R. 217; 3 T.L.R. 848.
(18) Attorney-General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch. 274; 62 L.J.Ch. 271; 67 L.T. 810; 2 R. 84, C.A.
(19) Dawkins v. Antrobus (1881) 17 Ch.D. 615; 44 L.T. 557; 29 W.R. 511, C.A.
(20) Harington v. Sendall [1903] 1 Ch. 921; 72 L.J.Ch. 396; 88 L.T. 323; 19 T.L.R. 302; 51 W.R. 463; 47 S.J. 337.
(21) Thellusson v. Valentia (Viscount) [1907] 2 Ch. 1; 76 L.J.Ch. 465; 96 L.T. 657; 23 T.L.R. 455, C.A.
(22) Morgan v. Driscoll (1922) 38 T.L.R. 251.
(23) Dyson v. Attorney-General [1911] 1 K.B. 410; 81 L.J.K.B. 217; 105 L.T. 753; 27 T.L.R. 143; 55 S.J. 168, C.A.
(24) Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871; 109 S.J. 496, C.A.
NATURE OF PROCEEDINGS
APPEAL against a ruling of the High Court, Accra, in which the appellants’ application for interim injunction was dismissed on the ground that the first appellant being a voluntary association and not having been incorporated under the Trustees (Incorporation) Act, 1962 (Act 106), had no capacity to sue. The facts are fully stated in the judgment of Azu Crabbe C.J.
COUNSEL
W. Adumua-Bossman for the appellants.
Joe Reindorf for the respondents.
JUDGMENT OF AZU CRABBE C.J.
The action out of which this appeal arises was instituted in the High Court, Accra, on 27 August 1974, by the filing of a writ entitled:
“Between
Ghana Muslims Representative Council, Accra First plaintiff
—And—
Alhaji Shardow Kudos Alhaji Mohammed Lamptey Dauda Otoo
[p.251] of [1975] 2 GLR 246 Issifu Koney
Ibrahim Darpoh Second plaintiffs
Dr. Mohammed Alhassan
Abdul Wahab Balogun
Alhaji Abudlai Williams v.
1. Alhaji Major Edward Braimah Salifu c/o New Times Corporation, Feo Oyo, Kaneshie/Accra.
2. Bashiru Kwaw-Swanzy, Accra
3. Mr. Sule Raji, Graphic Corporation, Accra.
4. Alhaji Abu Jaja, Osu, Ghana Commercial Bank
5. Major Awudu, Brigade Headquarters, Teshie.
6. Captain Mohammed Essah, Pay Office, Burma Camp.
7. Alhaji Ibrahim Amartey, Kaneshie Defendants
8. Mr. Muhammed Awal, Castle Road, Adabraka/Accra.
9. Alhaji Braimah Suka, Shell Company, High Street, Accra.
10. Alhaji Isaka, Kotobabi.
11. Mohamoud Sally, Cow Lane, Accra.
12. Mr. M. B. Suka, Accra New Town.”
The plaintiffs’ claim as endorsed on the writ was against all the defendants personally for: (i) a declaration that they are the rightful officers of the Ghana Muslims Representative Council and the only persons entitled and authorised to use the name “Ghana Muslims Representative Council” and that the defendants’ description of themselves as officiating for and representing the Ghana Muslims Representative Council is unconstitutional and void; (ii) a permanent injunction to restrain the defendants from describing themselves as representatives of the Ghana Muslims Representative Council or engaging in any financial transaction on behalf of the Ghana Muslims Representative Council; and (iii) an order for the refund of any moneys collected by any of the defendants purporting to be on behalf of the Ghana Muslims Representative Council.
In paragraph (1) of the statement of claim filed on 9 September 1974, it was alleged that: “The second plaintiffs in this case are the officers and members of the national executive of the first plaintiff council and the accredited representatives of the first plaintiffs.” It was also alleged in the statement of claim that after the inauguration of the Ghana Muslims Representative Council (described as the first plaintiff in this case) on 22 March 1973, the individuals who are collectively described as the second plaintiffs became members of the executive committee of the council, and by virtue of paragraph (7) of the constitution were elected to hold
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respectively the office of president, first vice-president, second vice-president, secretary-general, deputy secretary-general, treasurer, financial secretary and adviser on religious affairs. Finally, it was averred in paragraph (6) of the statement of claim as follows: “Wherefore the plaintiffs have issued this writ to assert their rights as representatives of the council to whose members they are responsible and accountable.”
Other matters of fact alleged in the statement of claim, in so far as these appear to be relevant, may be briefly summarised:
(i) On 1 July 1974, the first defendant publicly and without authority declared the executive committee of the first plaintiff council dissolved and announced the reconstitution of a new executive committee with the second to twelfth defendants as officers.
(ii) The first defendant was elected chairman of a pilgrimage committee of the council, and in that capacity he received various sums totalling 3,886.00 on behalf of the council which he has not accounted for.
(iii) That the first and fifth defendants had, through acts of intimidation, forced some members of the first plaintiff council to hand over important documents to them (the first and the fifth defendants).
(iv) That the defendants are seeking forcibly to impose themselves on the members of the first plaintiff council.
(v) That the present actions of the defendants are aimed at ensuring that they alone are the accredited recipients of funds expected from various Arab countries for the propagation of Islamic religious activities in Ghana. Perhaps, one important reason why the plaintiffs are seeking the protection of the court is that alleged in paragraph (14) of the statement of claim as follows:
“The first and the fifth defendants and other defendants have sought to use their influence in the Armed Forces to intimidate the plaintiffs and to compel them to abandon their functions as elected representatives of the three main bodies constituting the Ghana Muslims Representative Council so that they can assume these functions for their selfish ends.”
Shortly after the filing of the statement of claim, the plaintiffs brought an application for an order of interim injunction to restrain the defendants from acting as representatives of the first plaintiff council. The application was supported by an affidavit substantially stating the facts as alleged in the statement of claim. This application was resisted by the defendants, and in an affidavit deposed to by the seventh defendant on behalf of himself and all the other defendants, it became clear that there had been rivalry for power within the Ghana Muslims Representative Council. Thus, in the affidavit of the seventh defendant it is alleged inter alia as follows:
“(16) The Ghana Muslims Representative Council is an association which is registered under the Trustees (Incorporation) Act, 1962 (Act 106), as the ‘Registered trustees of the Ghana Muslims Representative Council.’
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(17) I am advised by counsel, and I verily believe the same to be true, that by virtue of such registration the trustees of the Ghana Muslims Representative Council became a corporate body with a capacity to sue and be sued.
(18) The current trustees of the council are the following persons, all defendants in this action:
(a) Major Brimah Salifu
(b) Bashiru E. Kwaw-Swanzy
(c) Suleiman Kofi Raji
(d) Sani Abdulai Abu-Jajah
(e) Alahaji Muhammad Issaka
(f) Muhammad Anwal
(g) Ibrahim Amartey
(h) Major Rahman Awudu.”
It seems clear, therefore, that the first, second, third, fourth, fifth, seventh, eighth and tenth defendants are the trustees incorporated under the Trustees (Incorporation) Act, 1962 (Act 106). And it follows, by virtue of section 2 of the Act that “all land of whatever nature and tenure soever, belonging to or held by any person or persons in trust” for the Ghana Muslims Representative Council shall vest in the first, second, third, fourth, fifth, seventh, eighth and tenth defendants. Section 5 of the Act also provides that:
“A certificate of incorporation so granted shall be conclusive evidence that all the preliminary requisitions herein contained and required in respect of incorporation have been complied with, and the date of incorporation shall be the date specified in the certificate.”
The main grounds upon which the defendants resisted the plaintiff s application were:
(i) That the first plaintiff council had no capacity to sue;
(ii) That the second plaintiffs’ writ and pleadings did not disclose a good or reasonable cause of action; and
(iii) That the plaintiffs’ writ offended against the provisions of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).
In the affidavit of the seventh defendant the statements of fact alleged in the plaintiffs’ affidavit charging the defendants with misconduct and improper motive were expressly denied.
After hearing arguments by counsel for the parties, the learned judge of the court below made a ruling, which he prefaced with the following observations:
“By law, a voluntary association or body established for any religious, educational, literary, scientific, social or charitable purpose such as the Ghana Muslims Representative Council must be incorporated to enable it to hold land and to have perpetual succession: see Act 106.”
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The learned judge then proceeded to make the following holdings: (1) That the Ghana Muslims Representative Council, an association of muslims, must be incorporated by virtue of Act 106 in order to clothe it with perpetual succession and to enable it to hold land and sue or be sued through its registered trustees. (2) That the Ghana Muslims Representative Council has not been incorporated as the law requires, and therefore it is not clothed with jurisdiction to sue and be sued. Consequently, the second plaintiffs who claim to represent the first plaintiff cannot be in a better position. The learned judge finally expressed his definite conclusions in the following two passages of his ruling:
“The first plaintiff is not a person and not being a body corporate or politic cannot sue. It is an association which by law can sue only by its trustees and the second plaintiffs cannot be said to be trustees within the definition of Act 106 since the first plaintiff is not incorporated. If the second plaintiffs say they are the executive and national officers of the first plaintiff before its incorporation and they were removed unilaterally and without just cause or in breach of the rules of natural justice it is open to counsel to consider whether any of the court’s prerogative orders can be applied for.
As to the interim injunction, the first plaintiff and the second plaintiffs have not established a prima facie case in the absence of incorporation and even if I had overruled the submission of counsel for the defendants, I would nevertheless have refused the order sought.”
Against this ruling the plaintiffs have appealed to this court, and the two main grounds of this appeal are: (i) that the learned judge’s construction of the Trustees (Incorporation) Act, 1962 (Act 106), and section 1 thereof in particular is utterly wrong; and (ii) that in consequence of this misconstruction the conclusions of the learned judge as expressed in the passage quoted earlier in this judgment are also erroneous.
Arguing the first ground of appeal Mr. Adumua-Bossman, counsel for the plaintiffs, referred to the preamble to the Act and submitted that it is only the trustees who are required to be incorporated, and that section 1 only gives power or liberty to apply for incorporation. Section 8 gives the commissioner to whom functions under the Act are assigned the power to make an instrument requiring the trustees of any association or body to apply for incorporation under section 1. Mr. Adumua-Bossman further submitted that the whole tenor of the Act is that it is only when the association is interested in land that the trustees are required to be incorporated. As I understood the argument of Mr. Joe Reindorf, counsel for the defendants, he did not appear to support that part of the ruling of the learned judge based on the construction of Act 106. He appeared to support the ruling on other grounds.
With all due respect to the learned judge, I think that the opening statement of his ruling that by law a voluntary association or body established for any religious purpose such as the Ghana Muslims Representative Council must be incorporated to enable it to hold land and to have
[p.255] of [1975] 2 GLR 246
perpetual succession is fundamentally wrong. It is, therefore, necessary for me to examine the provisions of the Act in order to ascertain the true intention of the legislature. It is often said that the preamble is the key to an Act of Parliament and section 2 of the Interpretation Act, 1960 (C.A.4.), lays it down that the “long title and preamble form part of an Act intended to assist in explaining the purport and object of the Act.”
The title of Act 106 itself leaves no room for doubt that it is an Act relating to the incorporation of trustees. And it is expressed in the preamble that the object of the Act is
“to re-enact and apply to the whole of Ghana the law enabling trustees of voluntary associations and bodies established for any religious, educational, literary, scientific, sports, social, or charitable purpose to be incorporated, to hold land and to have perpetual succession.”
The whole purpose of the Act is to vest in the trustees of voluntary and allied associations the lands owned by such associations, and sections 1, 2, 3, 4 and 8 prescribe the method by which the incorporation of the trustees can be effected. Section 9 provides that:
“After the incorporation of the trustees of any association or body pursuant to this Act, every donation, gift, and disposition of land, theretofore lawfully made (but not having actually taken effect), or thereafter lawfully made, by deed, will, or otherwise to or in favour of that body or association, or the trustees thereof, or otherwise for the purposes thereof, shall take effect as if the same had been made to, or in favour of, the corporate body or otherwise for the like purposes.”
In construing a statute the primary duty of the court is to ascertain the general purport of that legislation from the words actually used in the statute. This is what is called the golden rule of statute interpretation formulated by Park B. in his oft-quoted dictum in Becke v. Smith (1836) 2 M. & W. 191 at p. 195:
“It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language maybe varied or modified, so as to avoid such inconvenience, but no further.”
In the Sussex Peerage Case (1844) 11 C1. & F. 85 at p. 143, Tindal C.J. also declared:
“the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.
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But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer (Stowel v. Lord Zouch, Plowden, 369) is ‘a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress’.”
In applying this “golden rule” in the construction of Act 106, the words in the Act leave one in no doubt whatsoever that the object is to enable voluntary associations and other like bodies to appoint trustees to whom the lands of the association or the body may be vested for the benefit of all its members. There is no provision in the whole of the Act which suggests, even remotely, that the voluntary associations or bodies themselves must be incorporated.
It is a principle of the common law that property can be vested only in definite persons, and where a body of persons desire to hold and enjoy land, there are two methods by which this can be done: (a) an Act of Parliament or a charter must be procured to turn the indefinite body of persons into a definite, albeit an artificial, person, called a corporation, or (b) the land must be vested in trustees upon trust to hold and manage the land for the benefit of the proposed beneficiaries. In the eye of the law a corporation is a separate person distinct from the members of which it is formed and is capable of acquiring, holding and alienating land. An unincorporated association, like a members’ club, on the other hand, has no legal existence apart from the members from time to time of which it is composed, and a distinction is drawn between the association’s property and the separate property of the members. The members for the time are jointly entitled to all the property and funds of the association, and the property is usually vested in trustees. In my view, the clear intention of Act 106 is to give statutory force to this common law principle with respect to voluntary associations and bodies formed anywhere in Ghana. Under the Act, therefore, it is the trustees only who are constituted as a body corporate in which, under section 2 of the Act, the lands of the unincorporated association may be vested in trust for the members. It is clear in the Act that the trustees become incorporated only for the purpose of holding land for the benefit of the unincorporated association. Counsel for the defendants, Mr. Joe Reindorf, quite properly concedes that this is the true legal position. It follows, therefore, in my judgment, that the conclusion of the learned judge that the second plaintiffs lacked capacity to sue solely on the ground that the Ghana Muslims Representative Council, as originally constituted, had not been incorporated under Act 106 is, with all due respect, wrong.
During his argument before us in this appeal, it was conceded by Mr. Adumua-Bossman also that the learned judge was right in his conclusion that the first plaintiff has no legal existence, and therefore, it had not the capacity to sue and be sued. In law, a voluntary association is a sum of individuals, without any collective capacity to sue or be sued as such. But all the members may join to sue as plaintiffs, and this is permissible under
[p.257] of [1975] 2 GLR 246
Order 16, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides that:
“All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that, if upon the application of any defendant it shall appear joinder may embarrass or delay the trial of the action, the Court or a Judge may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.”
Under this rule, every member would have the full status of a plaintiff and would have to be individually named in the writ. Each plaintiff member would be entitled to appear and be separately represented, and liable to incur his own costs. This procedure may, however, be found to be inconvenient, where the association or the unincorporated body consists of large fluctuating numbers. Rule 9 of Order 16 of L.N.140A therefore, provides that:
“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.”
This form of procedure is known as “representative action,” and the difference between this form of proceeding and one brought under Order 16, r. 1 is explained in a passage in the judgment of Fletcher Moulton L.J. in Markt & Co., Ltd. v. Knight S.S. Co., Ltd. [1910] 2 K.B. 1021 at p. 1039, C.A. that:
“Nothing could be more striking than the contrast between the language of this rule [dealing with representative actions under Order 16 r. 91] and that of Order XVI., r. 1. The reason is obvious. In cases under r. 1 all the parties have the status and responsibilities of ordinary litigants, and the plaintiffs are such by their own consent. In representative actions it is wholly different. The plaintiff is the self-elected representative of the others. He has not to obtain their consent. It is true that consequently they are not liable for costs, but they will be bound by the estoppel created by the decision. The differences from the point of view of the defendant are equally striking. Those in whose behalf the action (so far as it is a representative action) is brought are not responsible for the costs, and are not subject to the ordinary liabilities of litigants in respect of discovery, &c.”
It is plain that the members of an unincorporated body can bring proceedings either under Order 16, r. 1 or under Order 16, r. 9 of L.N.140A
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and in my view the learned judge, with respect, fell into error when he held that the Ghana Muslims Representative Council “can sue only by its trustees.” Trustees may sue and be sued only where there is property vested in them on behalf of a large number of persons, whether members of an unincorporated society or not. Such trustees may sue and be sued as representing the property vested in them, without joining any of the beneficiaries whom the trustees represent: see Order 16, r. 8.
In my opinion, the second plaintiffs can in a proper form of proceedings vindicate or assert a right on behalf of or against a large and fluctuating body of persons, whether or not such persons have formed themselves into an unincorporated association. The most important condition that the second plaintiffs must satisfy is that they have “the same interest” in the cause or matter. Thus, in the case of Duke of Bedford v. Ellis [1901] A.C. 1, H.L. the plaintiffs, on behalf of themselves and all the other growers of fruit, flowers, vegetables, roots and herbs, with various preferential rights to stands in Covent Garden Market, sued the owner of the market, the Duke of Bedford, to enforce those rights. It was held that they had a sufficient common interest to maintain a representative action. In the course of his speech Lord Macnaghten said at p. 7:
“If the persons named as plaintiffs are members of a class having a common interest, and if the alleged rights of the class are being denied or ignored, it does not matter in the least that the nominal plaintiffs may have been wronged or inconvenienced in their individual capacity. They are none the better for that and none the worse. They would be competent representatives of the class if they had never been near the Duke; they are not incompetent because they may have been turned out of the market. In considering whether a representative action is maintainable, you have to consider what is common to the class, not what differentiates the cases of individual members.”
His Lordship then observed at p. 8:
“Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could ‘come at justice,’ to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense.”
Further in hi s speech, the noble and learned Lord again said at p.9: “There are, plenty of other cases which show that, in order to justify a person suing in a representative character, it is quite enough that he has a
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common interest with those whom he claims to represent.” See also De Hart v. Stevenson (1876) 1 Q.B.D. 313, Harrison v. The Marquis of Abergavenny (1886) 3 T.L.R. 653 and Marrs v. Thompson (1902) 86 L.T. 759. The law is that a body of persons having a common interest in a subject-matter may, when that interest is threatened or has been violated, be represented by one or more on behalf of the whole.
In this case, the second plaintiffs have alleged in paragraph (1) of their statement of claim that they are the officers and members of the national executive of the Ghana Muslims Representative Council, and they claim to be the accredited representatives of that council. And in paragraph (16) of the statement of claim the second plaintiffs have also expressed it very clearly that they are suing as the representatives of the members of that council. In my judgment, the second plaintiffs have shown by their statement of claim that they all have a common interest in the subject-matter of this suit and have indicated with sufficient clarity that they are seeking to enforce the rights of the members of the Ghana Muslims Representative Council in a representative action.
In a representative action it is necessary, both in the writ and in all subsequent pleadings, to state clearly that the parties are suing, or are being sued, in their representative capacity, on behalf of the members of a defined class: see Order 3, of L.N. 140A of 1954. In this case this has been done only in the statement of claim. The representative capacity should also be stated in the title of both the writ and the statement of claim, and not merely in the endorsement of the writ or the body of the pleading. This has not been done here. Where it appears at the trial in a representative action that the plaintiff has failed to state the representative capacity of the parties, the court will give leave to amend either the writ or subsequent pleadings by adding a statement that the plaintiff is suing on behalf of himself and all others of a defined class: see In re Tottenham; Tottenham v. Tottenham [1896] 1 Ch. 628 and Worraker v. Pryer (1876) 2 Ch.D. 109. Even at this late stage, I think that this court can order an amendment so that the writ and the pleadings may reflect the capacity in which the plaintiffs sued and the defendants were sued. For, as was said by the West African Court of Appeal in the case of Gbogbolulu v. Hodo (1947) 7 W.A.C.A. 164 at p. 165:
“It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities…As soon as any question arose as to the capacities of the respective parties it was, in our view, the duty of the Court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that that could be done without any hardship to either party.
This Court has full powers to take this course and since it appeared that no hardship would accrue to either party by the heading of the suit being amended, even at this late stage, so as to make clear the representative capacities of the parties, we ordered in the course of
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the hearing of the appeal that the title of the suit be altered to read as now appears as the heading of this judgment.”
See also Dove v. Wuta Ofei [1966] G.L.R. 299 at p, 317, S.C.
Although Mr. Joe Reindorf does not support the learned judge’s conclusions based on absence of incorporation he advanced two main grounds upon which the learned judge’s ruling can be sustained. Firstly, .he referred to Order 4, r. 1 of L.N. 140A and pointed out that the addresses of the second plaintiffs had not been endorsed on the writ in conformity with that rule, and he, therefore, submitted that the writ was a nullity. Speaking for myself, I find no merit in this point, since I find that the address of the second plaintiffs is sufficiently expressed in the writ through their solicitor: see Mallet v. Braun [1975] 1 G.L.R. 78.
Secondly, Mr. Reindorf submitted that the second plaintiffs have not shown that they have any cause of action against the defendants, for as Mr. Reindorf further contended, the second plaintiffs have no copyright in the name “Ghana Muslims Representative Council,” and, therefore, they cannot have any legal right to the exclusive use of that name.
The gist of the second plaintiffs’ case, as I understand it, is that they are the members and the accredited officers of an association, styled the Ghana Muslims Representative Council, having been elected in accordance with the constitution and rules of the association. The constitution was promulgated by three component bodies, namely, (a) the Ghana Muslim ,Community, (b) the Ghana Muslim Mission, and (c) the Supreme Council for Islamic Affairs. The council was inaugurated on 22 March 1973 by the then Commissioner for National Redemption Council Affairs, Lieutenant-Colonel Benni. The second plaintiffs complain that on 7 July 1974, the first defendant unconstitutionally proclaimed that the executive committee of the Ghana Muslims Representative Council had been dissolved and that a new executive committee, with the second to twelfth defendants as its officers, had been constituted. The second plaintiffs further complain that as a result of this unlawful act, the first to twelfth defendants had been doing things in the name of the Ghana Muslims Representative Council without authority, and that the first defendant, in particular, had collected sums totalling 3,886.00 in the name of the council and had not accounted for them. The second plaintiffs therefore seek the various reliefs, as per their writ, and the declaration they sought was against all the defendants, who had been usurping their functions under the pretence of being officers of the same association.
Although Mr. Reindorf did not indicate in his argument the rule under which he was inviting the court to uphold the dismissal of the plaintiffs’ claim, there are two methods by which the court can deal with Mr. Reindorf s second submission; first, under the inherent jurisdiction of the court; and secondly, under Order 25, r. 4 of the High Court (Civil Procedure) Rules, 1954. The practice in each case is well-settled. The practice under the first is clearly expressed by Lord Herschell in Lawrance v. Lord Norreys (1890) 15 App.Cas. 210 at p. 219, H.L. as follows:
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“It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved.”
Order 25, r. 4 reads:
“The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”
It seems obvious that Mr. Reindorf s appeal here is to rule 4. How is the power under this rule to be exercised ? It is clearly a matter in the judicial discretion of the judge, and a pleading will only be struck out under the rule in a plain and obvious case, where it is apparent that even if the facts are proved, the plaintiff is not entitled to the relief he seeks: Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. [1899] 1 Q.B. 86 at p. 91, C.A.; Barton, Thompson & Co., Ltd. v. Stapling Machines Co. [1966] 1 Ch. 499. The jurisdiction conferred by this rule, it has been said, is one, to be exercised with extreme caution: Moore v. Lawson (1915) 31 T.L.R. 418 at p. 419, C.A.
In explaining the old English Order 25, r. 4 (which is exactly the same in wording as our Order 25, r. 4) in Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D. 489, Chitty J. said at pp. 495-496:
“There is some difficulty in affixing a precise meaning to the term ‘reasonable cause of action’ used in Order XXV., rule 4. In point of law, and consequently in the view of a Court of justice, every cause of action is a reasonable cause. But obviously some meaning must be assigned to the term ‘reasonable.’ Demurrers are abolished, and it could not have been intended to abolish demurrers by the right hand and restore them by the left. So far as method of procedure was concerned, demurrers, certainly in the Court of Chancery, and in the Chancery Division at the time when these orders came into operation, were a cheap and expeditious mode of obtaining a decision; the mere substitution of a motion or summons for the demurrer would not be an adequate explanation of Order XXV. Having regard to the terms of rule 4, and to the decisions on it, I think that this rule is more favourable to the pleading objected to than the old procedure by demurrer. Under the new rule the pleading will not be struck out unless it is demurrable and something worse than demurrable. If, notwithstanding defects in the pleading, which would have been fatal on a demurrer, the Court sees that a
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case is presented the Court should, I think, decline to strike out that pleading; but when the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation.
What I have just stated is intended to be not an exhaustive explanation of the rule, but merely an indication in a general way of the limits of its meaning.”
In Attorney-General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch. 274, C.A. it was decided that an application under Order 25, r.4 to strike out pleadings or stay of proceedings on the ground that the pleadings disclosed no reasonable cause of action or defence, was not intended to take the place of demurrers, except in cases which were frivolous or vexatious or obviously not sustainable, and the court would not entertain such an application, if the pleadings raised an important issue of law. Delivering his judgment in that case, Lopes L.J. said at p. 277:
“I am clearly of opinion that this is not a case for this summary proceeding under Order XXV., rule 4. It is clear, beyond all doubt, that difficult questions are to be raised in this case. Applications under this rule were never intended to take the place of demurrers. The object of the rule was to get rid of frivolous actions. The words of the rule are, ‘action or defence for which there was no reasonable cause,’ by which I understand, no reasonable cause disclosed upon the face of the pleadings.”
A. L. Smith L.J. also observed at p. 278:
“I only want to make one remark about Order XXV., rule 4. It seems to me that when there is an application made to strike out a pleading, and you have to go to extrinsic evidence to shew that the pleading is bad, that rule does not apply. It is only when upon the face of it is shown that the pleading discloses no cause of action or defence, or that it is frivolous and vexatious, that the rule applies.”
In Ghana demurrer is abolished by Order 25, r.1 of the High Court (Civil Procedure) Rules, 1954, and proceedings in lieu of demurrer are governed by rules 2, 3, 4 and 5 of that Order. Rule 4 gives specific powers to the court to strike out pleadings where no reasonable cause of action is disclosed.
In paragraph (9) of their affidavit, the second plaintiffs alleged that the first defendant wrote to the bankers of the Ghana Muslims Representative Council and attempted to change the signatories to cheques drawn on the Ghana Muslims Representative Council’s account with a view to substituting new names without any authority of the council. This is admitted by the defendants, but it was contended that the first defendant did that in accordance with a resolution passed at a meeting of the council. The second plaintiffs further alleged that according to the constitution of the council, the executive committee could only be composed of electees
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of the three bodies constituting the council, and, therefore, the first defendant’s pronouncement, that he had recomposed the executive committee, was not only unconstitutional, but was without any basis whatsoever. But the defendants denied this, and maintained that the constitution of the council did not restrict membership to the “component bodies.” The second plaintiffs alleged in paragraph (14) of their affidavit that the defendants called a meeting in Kumasi without the knowledge of the national executive committee and proposed a reconstitution of the national executive committee, though not a single member of the executive was invited to attend the said meeting. By these acts, the second plaintiffs continued in paragraph (14), the defendants sought to impose themselves forcibly on the Ghana Muslims Representative Council. The defendants’ version of the events at Kumasi was that there was a national convention of all muslims in Ghana at Kumasi on 6 July 1974, which was attended by the seventh of the second plaintiffs. The defendants, therefore, by implication admitted the second plaintiffs’ assertion of the reconstitution of the council.
Since the parties in this case were agreed that there was only one constitution, the first question which the court must necessarily consider in a matter of this nature is whether the action of the first defendant was authorised by any rules of the constitution. The court will not interfere in the decision of the members of a club or an association professing to act under their rules, unless it can be shown that either that the rules are contrary to natural justice, or that what has been done is contrary to the rules, or that there has been mala fides or malice in arriving at that decision: see Dawkins v. Antrobus (1881) 17 Ch.D. 615, C.A. The courts have laid down that in the case of voluntary associations they will not tolerate any change in its constitution without there being an express provision in the rules for amendments or changes, unless all the members of the society consent. Thus, in Harington v. Sendall [1903] 1 Ch. 921, where by a resolution of the majority of the members of an unincorporated club it was sought to raise the subscription payable by members Joyce J. said at p. 926:
“But it is contended that there must be an inherent power in general meetings, by a numerical majority of the members for the time being present to alter the rules either in any manner they may think fit, or, at all events, within certain limits that have not been precisely defined. For this proposition, however, nothing that can really be called an authority has been cited. Indeed, so far as there can be said to be authority upon the subject, and, as I think, upon principle, there is no more inherent authority in the members of the club by a majority in general meeting to alter the rules against the wishes of a minority than there is in the members of any other society or association the constitution of which depends upon and is matter of contract—there being as there is here a written contract expressing
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the terms upon which the members associate together. In my opinion, there is no power in the majority of the members to alter those terms and the constitution of the club as they may think fit, when such a power forms no part of the written contract by which the members are bound.”
See also Thellusson v. Valentia [1907] 2 Ch. 1, C.A. and Morgan v. Driscoll (1922) 38 T.L.R. 251.
In this case, whether the first defendant had the power to do what he did, or whether some members of the Ghana Muslims Representative Council can by a resolution at a national convention reconstitute the national executive committee of the council, depends on the true construction of the terms of the rules of the constitution. This cannot be done until either a defence has been filed so that the court can deal with the case under Order 25, rr. 2 and 3 of L.N. 140A or unless the court has heard evidence. The court will not permit a plaintiff to be “driven from the judgment seat,” without considering his right to be heard, “excepting in cases where the cause of action is obviously and almost incontestably bad”: per Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410 at p. 419, C.A. And again, as the Lord Justice said later in the same case at p. 420 “an order of this kind ought not to be made where there is any reasonable ground for argument as to the maintainability of the action.”
Looking at the plaintiffs’ writ and the statement of claim, I am unable to hold that it is plain the plaintiffs have no reasonable cause of action. There is one last point to which I wish to refer. The only evidence before the learned judge was affidavit evidence, and if the only ground on which a statement of claim can be said to disclose no reasonable cause of action is, as Mr. Reindorf contends, that the action is unlikely to succeed, then affidavit evidence is inadmissible on an application to strike it out. As Sellers L.J. said in Wenlock v. Moloney [1965] 2 All E.R. 871 at p. 873, C.A.:
“If, as here, the only ground on which the action can be said to disclose no reasonable cause of action is that it is not one which is likely to succeed, then I doubt whether affidavit evidence was admissible. There have been cases where affidavits have been used to show that an action was vexatious or an abuse of the process of the court but not, as far as we have been informed, or as I know, where it has involved the trial of the whole action when facts and issues had been raised and were in dispute. To try the issues in this way is to usurp the function of the trial judge.”
For the above reasons, I conclude that the appeal should be allowed and the ruling appealed from, striking out the case of the second plaintiffs, be set aside, together with any order as to costs, and that the case should be remitted back to the court below to be continued in the normal way after proper amendments have been made upon application to the court. The
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defendants are to file their defence within fourteen days from today. All the parties are to pay their own costs both in this court and in the court below.
Court below to carry out.
JUDGMENT OF SOWAH J.A.
I agree.
JUDGMENT OF ANIN J.A.
I also agree.
DECISION
Appeal allowed.
Case remitted to court below to be continued after proper amendments. Parties to pay their own costs.
S. E. K.
