Effect of incorporating the trustees of an association
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.
Legal status of an unincorporated association and its property
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.
