KALMONI v. TACKIE [1961] GLR 446

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 30TH JUNE, 1961

BEFORE: OLLENNU J.

NATURE OF PROCEEDINGS

ACTION for dissolution of partnership and an order for accounts.

COUNSEL

J. B. Quashie-Idun (with him E. N. P. Sowah) for the plaintiff.

A. Casely-Hayford for the defendant.

JUDGMENT OF OLLENNU J.

The plaintiff and the defendant are wife and husband married in accordance with Islamic law. By an agreement dated the 1st December, 1958, they formed a partnership trading under the name and style of

[p.447] of [1961] GLR 446

Express Grocery. Differences have arisen between them, and they are now living apart. The plaintiff, being dissatisfied with the management of the business and the manner in which she alleged the defendant applied the profits from the business which should come to her, felt compelled to call for accounts and to request dissolution of the partnership. She has now sued claiming dissolution of the partnership and an order for payment to her of any amount which may be found due to her upon the accounts. The accounts have been taken by consent of both parties and the amount due to either party has been agreed by them or their counsel. But the defendant resisted the claim for dissolution on two main grounds, namely, (i) that according to the partnership agreement exhibit A, the only condition upon which the partnership could be dissolved is the death of one of the partners, and (ii) that the fact that the partners are husband and wife shows that the intention of the parties is that the partnership shall continue indefinitely and cannot be dissolved so long as the two partners are both alive. This submission is untenable. Where no fixed term has been agreed upon for duration of a partnership, the partnership is a partnership at will, and may be determined at any time by one partner giving notice of his intention so to do to the other partner or partners: see Lindley on Partnership (11th ed.), page 179. Moreover a court may dissolve a partnership upon the application of any partner on any one of six different grounds, the sixth being: “Where any circumstances have arisen which in the opinion of the Court, make it just and equitable that the partnership be dissolved”. (See Lindley on Partnership, (11th ed.), pages 673-4; and also Underhill on Partnership, (6th ed.), page 112).

The most important element in partnership is the willingness of the parties to work together or pool their resources together, financial or otherwise, in doing business. That willingness to work together or pool resources together to operate a business is based upon mutual trust and confidence. The moment that mutual trust or confidence is lost, the main foundations of the partnership are gone. In such circumstances it is only just and equitable that the court should decree dissolution of the partnership.

In my opinion that is exactly the situation in this case. Rightly or wrongly, the plaintiff has come to feel that the defendant is misusing the share of the profits which should come to her, and is taking undue advantage of her. She no longer trusts the defendant and will not continue in partnership with him. She is very firm in her determination that the partnership should not continue. In such a case it is the duty of the court to decree a dissolution of the partnership, and make an order for distribution of the assets of the partnership in the proportion set out in the partnership agreement; in this case in thenproportion of 25 per cent and 75 per cent as provided in exhibit A. Among the partnership assets is the leasehold interest in a store situate at Club Road, Accra. The landlord of that store was the plaintiff’s father. The evidence of the defendant himself shows that he had offered to [p.448] of [1961] GLR 446 take the lease of that store, but the landlord, M. S. Kalmoni, the father of the plaintiff would not let itbto him. He, however, let it to his daughter the plaintiff. This oral evidence of the defendant is confirmed by copy of the lease dated the 27th October, 1957, tendered in evidence by the defendant and marked exhibit 1. I accept the evidence that the plaintiff is the tenant of that store. It necessarilynfollows that in the distribution of the assets of the partnership that store should form part of the assets which should go to the plaintiff. There will be judgment for the plaintiff for an order for:

(1) the dissolution of the partnership between her and the defendant;

(2) the payment to her of the sum of £G2,000 agreed between the parties as due to her upon the accounts as found by the accountant; and

(3) the distribution of the partnership assets and the delivery to the plaintiff of her share of the said assets as provided under the partnership agreement exhibit A, i.e. 25 per cent thereof, in addition to the £G2,000, and the store situate at Club Road, Accra, of which the plaintiff is the tenant and which should not form part of the assets to be distributed.

The plaintiff’s costs are fixed at 50 guineas.

DECISION

Judgment for plaintiff.