LA DADEKOTOPON YOUTH ASSOCIATION vs. NII KPOBI TETTEY TSURU III & 19 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: AMADU JSC (PRESIDING)

KULENDI JSC

GAEWU JSC

KWOFIE JSC

BARTELS-KODWO (MRS.) JSC

CIVIL APPEAL

NO. J4/23/2024

4TH NOVEMBER ,2026

LA DADEKOTOPON YOUTH …………. PLAINTIFF/RESPONDENT/

ASSOCIATION APPLICANT/RESPONDENT

VRS

NII KPOBI TETTEY TSURU III DEFENDANTS/

& 19 ORS. APPELLANTS/

(SUBSTITUTED BY NII OBODAI ADAI IV RESPONDENTS/

ON BEHALF OF LA STOOL) RESPONDENTS

EDMUND JOSEPH OBODAI ………… 10TH DEFENDANT/ APPELLANT

MENSAH & 19 ORS. RESPONDENT/ APPELLANT

1. GHANA TOURISM DEVELOPMENT INTERESTED

COMPANY PARTIES

2. LA TRADITIONAL COUNCIL

JUDGMENT

TANKO AMADU JSC:

Introduction

This is an interlocutory appeal against the ruling of the Court of Appeal dated 23rd October 2023. By that decision, the Court of Appeal, in the course of superintending compliance with its own judgment of 21st July 2022, adopted the three names submitted on behalf of the Plaintiff/Respondent Association as that Association’s representatives on the nine-member Management Committee which the same court had earlier ordered to be constituted for the management of the La Pleasure Beach.

The Appellant is Edmund Joseph Obodai Mensah, the 10th Defendant. He was one of the twenty (10) Defendants whose appeal against the judgment of the High Court was dismissed by the Court of Appeal on 21st July 2022. He is not a member of the La Dadekotopon Youth Association. He nonetheless invites this Court to set aside the Court of Appeal’s selection of the Association’s own representatives, and to substitute for them the nominees of a faction of that Association whom he prefers.

The Background

The La Pleasure Beach at La in Accra has been the subject of contention for the better part of a quarter of a century. In 2001, the youth of La took issue with the manner in which the beach was being run by the Ghana Tourist Development Corporation, on the complaint that, little or no benefit was accruing to the people of La. In April 2002, a Memorandum of Understanding was executed between the Ministry of Tourism and the La Traditional Council providing for the establishment of a management committee, composed of representatives of the people of La and of the Ghana Tourist Development Company to run the facility.

The Memorandum was not honoured. On the Plaintiff/Respondent Association’s case, the management of the beach continued unilaterally in other hands, without accounting to the people of La. On 15th June 2012, the Association commenced Suit No. BMISC/832/2012 in the High Court, Accra, against the 1st to 20th Defendants, claiming, among other reliefs, a declaration of its right as the Umbrella Association of the La Youth to see to the proper management of the beach, an account of revenue generated between 2003 and 30th November 2011, and an order constituting an interim management committee, and an injunction.

During the pendency of the suit, the High Court constituted a three-member Interim Management Committee drawn from the Plaintiff Association, the La Traditional Council and the Ghana Tourist Board, to manage the beach in the spirit of the Memorandum of Understanding. On 21st October 2014, the High Court delivered judgment for the Plaintiff (Respondent herein) and directed that, the Interim Management Committee continue in the stewardship of the beach unless reasonable cause were shown to the contrary.

The Defendants appealed. Their grounds included that, the Trial Judge had erred in holding that, the Plaintiff had capacity to bring the action and further that the Trial Judge that, he had erred in holding that, the Plaintiff’s sole witness had the mandate to testify on behalf of the Plaintiff. That sole witness was Mr. Stanley Anyetei Nunoo. On 21st July 2022 the Court of Appeal dismissed the appeal in its entirety. It did, however dissolve the Interim Management Committee and ordered the constitution within six months, of a nine-member Management Committee comprising three representatives each from the La Dadekotopon Youth Association, the La Traditional Council and the Ghana Tourist Development Company. There has been no appeal to this Court against that judgment.

The La Traditional Council and the Ghana Tourist Development Company promptly nominated their representatives. The Association did not. Instead, what emerged was a contest within the Association , or, more accurately, a contest as to who the Association was. Three groups came forward, described in the Appellant’s own statement of case as Group A (Torto Obodai Nabi Adjah, Jonas Obodai Torto and Shadrack Torto and their affiliates), Group B (Stanley Anyetei Nunoo and his affiliates) and Group C (Daniel Marley Nai and his affiliates).

On 16th March 2023, on an application by the Association for extension of time within which the Interim Management Committee might hand over, the Court of Appeal (court below) granted “an extension of time within which the La Dadekotopon Youth Association will come together and nominate representatives to the Registrar of this Court” within fourteen (14) days. The court below urged the factions to come together and produce an agreed slate of three. They did not. Group A put forward Torto Obodai Nabi Adjah; Group C put forward Daniel Marley Nai; and counsel who had acted for the Association from the High Court onwards submitted a slate of three names – Stanley Anyetei Nunoo, Emmanuel Nii Tagoe and Alfred Martey. It was upon that state of affairs that the Court of Appeal delivered the ruling now appealed against.

The Ruling appealed against

The ruling of 23rd October 2023 is short. The Court of Appeal, faced with three competing slates, adopted the three names filed by counsel for the Plaintiff Association. Its reasoned that, Mr. Nunoo had always represented the Association, together with the same counsel, from the High Court through to the Court of Appeal, and that the submission emanating from that counsel was therefore the one to be accepted.

It must be observed that, the ruling of the Court of Appeal is not a judgment following a trial. It is not a determination of the membership of the La Dadekotopon Youth Association. Neither is it the composition of its Executive Council, nor of the validity of any entry in the register kept by the Registrar of Companies. It is an order made in aid of the execution of the Court of Appeal’s own judgment of 21st July 2022. It was a judgment which that court was constitutionally obliged to see carried into effect and it is constitutionally grounded under Article 126(4) of the Constitution which provides that:

“In the exercise of the judicial power conferred on the Judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts.”

The ruling was, in substance and in form, an interlocutory case-management order of that character, made on the processes before the court below. No witness was called nor evidence was taken. Nothing was tried.

THE GROUNDS OF APPEAL AND THE ARGUMENTS

By a Notice of Appeal filed on 27th October 2023 the Appellant advanced two grounds:

That the ruling is against the weight of evidence.

B. That the Court erred when it adopted only the nominations filed by counsel for the Plaintiff and appointed Stanley Anyetei Nunoo, Emmanuel Nii Tagoe and Alfred Martey as representatives on the Management Committee for and on behalf of La Dadekotopon Youth Association.

Counsel for the Appellant argued the two grounds together. According to Counsel, the La Dadekotopon Youth Association is a Company Limited by guarantee incorporated under the Companies Act. Accordingly, only its members and the members of its Executive Council may take decisions for it, including the decision whom to nominate. Messrs. Nunoo, Tagoe and Martey are neither members nor subscribers nor Executive Council members. Mr. Nunoo, indeed, is a stranger who seized the beach, sued in the Association’s name to legitimise that seizure, ran the beach alone for a decade without accounting, and then, after the Court of Appeal’s judgment, surreptitiously forged the signatures of Jonas Obodai Torto and Shadrack Torto and caused his own name to be inserted in the records of the Registrar of Companies as an Executive Council member.

The Court of Appeal, it is contended by the Appellant, disregarded both the law governing incorporated bodies and its own earlier direction that the factions each nominate an individual, and preferred a slate emanating from persons with no authority to produce one.

For the Respondent, counsel submitted that, the Appellant is a defeated adversary and a stranger to the Association. That the question of Mr. Nunoo’s mandate to act and testify for the Association was litigated and lost in the substantive appeal and cannot be reopened and further that, the Association itself has never at any stage disowned Mr. Nunoo nor the counsel who has acted for it since 2012. The Respondent further argued that, the allegation of forgery is an assertion unsupported by evidence which could not in any event be tried on affidavit; and that it would be a travesty for the court to place upon the Association’s slate a person who gave evidence for the Defendants at the trial. The Respondent invited us to dismiss the appeal.

Ground A: that the Ruling is against the weight of evidence

This ground is misconceived and we strike it out. The omnibus ground is a creature of the trial. It presupposes a record of evidence. That is, testimony given, documents tendered, findings of fact made which an appellate court, rehearing the cause, may re-examine. That is the whole burden of the holding in TUAKWA VS. BOSOM [2001–2002] SCGLR 61 at 65 upon which the Appellant relies, where Sophia Akuffo JSC (as she then was) said it is incumbent upon an appellate court, in a civil cases,

“to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”

The same is true of DJIN VS. MUSAH BAAKO [2007–2008] SCGLR 686 at 687, where this Court held that, an Appellant taking the omnibus ground is asserting that there were pieces of evidence on the record which, if applied in his favour, could have changed the decision, or which were wrongly applied against him, and that the onus lies on him to demonstrate the lapses. See also ABBEY AND OTHERS VS. ANTWI VS. [2010] SCGLR 17 at 34.

Every one of those authorities speaks of “the trial”, of “testimonies”, of “the trial judge”. None of them has any application here, for the elementary reason that, there was no trial, no testimony and no Trial Judge. The ruling of 23rd October 2023 was made on a motion, on the papers, in aid of execution. There was no evidential substratum for the ground to be anchored upon.

The point is not new in the settled jurisprudence of this court. In FENU AND OTHERS VS. ATTORNEY-GENERAL AND OTHERS [2019] 130 GMJ 179, this Court said:

“The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases. In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvased at all.”

The Court there held the omnibus ground argued by (the Appellant therein) to be “clearly misconceived” and struck it out, the application below having been determined on affidavit evidence with no disputed factual matters calling for findings. That is precisely what the instant case is.

We are conscious of OWUSU-DOMENA VS. AMOAH [2015–2016] 1 SCGLR 790 at 799, where Benin JSC corrected the misapprehension that the omnibus ground confines an Appellant to matters of fact, and held that; “both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. That decision widens the content of the ground where a record of evidence exists; it does not create a record where none exists. Ground A fails and is accordingly struck out.

Ground B: the adoption of the

Respondent’s nominees

(i) The standard by which we review the order

The order of 23rd October 2023 was an exercise of discretion. The Court of Appeal had ordered a nine-member committee. It had given the Association a further fourteen (14) days to produce three names. In giving effect to that order, three competing slates arrived; the court had to choose, or the judgment it had given fifteen (15) months earlier would remain a dead letter. Choosing between them was a discretionary act performed under Article 126(4) of the 1992 Constitution.

This Court does not sit to substitute its own discretion for that of the court below. In CRENTSIL VS. CRENTSIL [1962] 2 GLR 171 at 175 it was held that it is “a rule of law deeply rooted and well established that the Court of Appeal will not interfere with the exercise of the court’s discretion save in exceptional circumstances”. In BALLMOOS VS. MENSAH [1984–86] 1 GLR 724 it was explained that such an appeal is “not from the discretion of the Trial Court to the discretion of the appellate court”, and that it will succeed only where the discretion was exercised on wrong or inadequate materials or the court having acted under a misapprehension of fact by giving weight to irrelevant or unproved matters or omitting relevant matters. To the same effect are OWUSU VS. OWUSU-ANSAH [2007–2008] SCGLR 870, SAPPOR VS. WIGATAP LTD. [2007–2008] SCGLR 676 AND KYENKYENHENE VS. ADU [2003–2004] 1 SCGLR 142, the last case holding that, such a decision may be reversed only where it is arbitrary, capricious and uninformed. Article 296(a) and (b) of the Constitution provides the constitutional measure. The discretion must be exercised fairly and candidly, and must not be arbitrary, capricious or biased.

The question for us, therefore, is not whether we would have chosen the same three names. It is whether the Court of Appeal acted arbitrarily, capriciously, on a wrong principle, or on materials incapable of supporting the choice it made. To that question, the Appellant must supply an affirmative answer.

(ii) The Appellant has no standing to litigate the internal affairs of his opponent

25). The most striking feature of this appeal is the identity of the Appellant. The complaint is that the wrong persons have been put forward as the representatives of the La Dadekotopon Youth Association. That complaint is made by a Defendant who fought the Association for a decade, lost at first instance, lost on appeal, and who tells us at paragraph 51 of his statement of case that, he is not a member of that Association. The Association itself does not complain. Its Executive Council whose cause the Appellant purports to champion, has not appealed. Not one of the persons said to be the true Executive Council members – Jonas Obodai Torto, Torto Obodai Nabi Adjah, Shadrack Torto is before us.

26). A litigant does not acquire, by the fact of being sued by an association, a right to determine who that association is or who may speak for it. That principle is not novel. It underlies the rule in FOSS VS. HARBOTTLE (1843) 2 HARE 461; 67 ER 189, which the Court of Appeal applied in PINAMANG VS. ABROKWA [1991] 2 GLR 384, holding that the rule “must be observed by the Trial Court and it must not inquire into matters of internal management”, and adopting the requirement that the matters complained of must affect the complainant “in his or their character as a member or members of the company”. If a member’s standing to agitate the internal management of his own company is circumscribed, a stranger’s is non-existent.

27). The statutory scheme points the same way. The Companies Act, 2019 (Act 992) confers the remedies apt to the Appellant’s complaint upon members alone. Section 218(1) empowers the Court, “on the application of a member”, to restrain by injunction an act or transaction that is illegal or beyond the company’s power, or that infringes its constitution, or to declare such an act or resolution void. Section 219(1) permits an application for relief against oppression by “[a] member or debenture holder of a company or, in a case falling within Section 234, the Registrar”. A person who is neither a member nor a debenture holder (and the Appellant herein asserts that, he is neither) falls outside both. If it be said that Mr. Nunoo has procured a false entry in the register at the Registrar of Companies, the persons whose signatures were allegedly forged are the persons injured, and the Act and the general law furnish them with remedies which, we are told, they are already pursuing in a pending High Court action. Those proceedings are the proper forum. This appeal is not.

28). Further, the Appellant’s own preferred candidate is instructive. His statement of case tells us that Group A nominated Torto Obodai Nabi Adjah. The Respondent tells us, and it is not denied, that Torto Obodai Nabi Adjah testified for the Defendants at the trial and has consistently given evidence against the Association. A court asked to place upon an association’s slate a witness who testified against that association, at the instance of the party who called him, would need very good reason to accede. The Court of Appeal declined. It can hardly be faulted for that.

(iii) The mandate of Mr. Nunoo to act for the

Association is res judicata

29). The proposition at the heart of this appeal that Mr. Stanley Anyetei Nunoo has no authority to act for the La Dadekotopon Youth Association was litigated between these very parties and decided against the Appellant in the substantive appeal.

30). Grounds (d) and (e) of the Defendants’ grounds of appeal against the High Court judgment were, respectively, that the Trial Judge erred in holding that the Plaintiff had capacity to bring the action, and that he erred in holding that the Plaintiff’s sole witness had the mandate to testify on behalf of the Plaintiff. The Plaintiff’s sole witness was Mr. Nunoo. On 21st July 2022, the Court of Appeal dismissed the appeal, and with it those grounds. The Appellant was one of the twenty Appellants. He did not appeal that judgment to this Court. It is final and it binds him.

31). In DAHABIEH VS. S.A. TURQUI & BROTHERS [2001–2002] SCGLR 498 at 507 this Court restated the rule that “if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot, thereafter, bring an action on the same claim or issue”. In ANYETEY CHANTEY VS. TEI KWABLAH KWEINOR, CIVIL APPEAL NO.J4/25/2019, [2020] GHASC 19, the Court adopted the classical statement of issue estoppel as “[a] doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one”, and held the Appellant there estopped per rem judicatam. See also IN RE SEKYEDUMASE STOOL; NYAME VS. KESE ALIAS KONTO [1998–99] SCGLR 476.

32). The present proceeding differs in form from the substantive appeal. It is interlocutory, and it concerns nomination rather than capacity to sue. But the issue is identical in substance, whether Mr. Nunoo may speak for the Association and the parties are the same. In our considered view, the Appellant is estopped.

(iv) The allegation of forgery

33). Paragraphs 41 and 52 of the Appellant’s statement of case allege that Mr. Nunoo “surreptitiously forged the signatures of Jonas Obodai Torto and Shadrack Torto” and inserted his own name in the records of the Registrar of Companies. That is an allegation of crime. It is made against a man who is not a party to this appeal and who has had no opportunity to answer it.

34). Section 13(1) of the Evidence Act, 1975 (NRCD 323) provides:

“In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”

35). In FENUKU AND ANOTHER VS. JOHN-TEYE AND ANOTHER [2001–2002] SCGLR 985 this Court applied that provision to an allegation of forgery in a civil trial and held that, it had not been established beyond reasonable doubt. It is elementary that a burden of that weight is not discharged by assertion in a statement of case. It requires particularised pleading and strict proof at a trial, with the accused person before the court and able to meet the charge. It cannot be discharged by mere assertion without evidential proof. Indeed, it cannot properly be embarked upon on a motion for extension of time. The Court of Appeal was right to decline to try it, and we to decline to do so.

36). There is, besides, an awkwardness in the Appellant’s position which he has not confronted. He relies upon the company profile filed in the Registrar of Companies as at 28th July 2022 to establish who the Executive Council members are. He then asks us to disregard the company profile of 27th September 2022 as a forgery. He cannot at once make the register his proof and his target. And it is worth noting that Section 39 of Act 992, which makes the register prima facie evidence of the matters it contains, is confined to the register of members. The Act contains no equivalent provision for the register of directors, and Section 149 expressly provides that no person is to be deemed to have knowledge of particulars by reason only of their registration. The evidential edifice the Appellant seeks to build upon these documents is, on any view, one that requires a trial and not a submission.

(v) The Company Law argument

37). Much of the Appellant’s statement of case is devoted to propositions of company law which are, so far as they go, unexceptionable and beside the point. It is true that directors stand in a fiduciary relationship to the company: Section 190(1) of Act 992 provides that; “[a] director of a company stands in a fiduciary relationship towards the company and shall observe the utmost good faith towards the company in a transaction with or on behalf of the company”, and Section 190(3) requires a director to act in accordance with the company’s constitution and to exercise powers only for the purposes for which they are conferred. It is true that the board of a company limited by guarantee is styled the Council. That provision appears at paragraph 5 of the Fourth Schedule to Act 992 – the Constitution for a Company Limited by Guarantee and is among the paragraphs made mandatory by Section 27(3)(b)(iii), not at paragraph 3, as counsel submitted.

38). But none of these advances the appeal an inch. That the Council of a company limited by guarantee is the organ competent to nominate its representatives says nothing about who the Council is; and who the Council was, and remains, disputed. The Court of Appeal was not determining that dispute. It was faced with an immediate practical necessity to give effect to its own judgment and it resolved it by reference to the only continuous and unchallenged thread in eleven years of litigation. The court took into consideration the lawyer who had appeared for the Association since 2012, and the officer through whom the Association had acted throughout. Whatever might be said of that choice as a permanent adjudication of the Association’s internal governance and it is not one, it was a rational and workable answer to the question actually before the court below.

39). We would observe, finally, that there is an inconsistency in the Appellant’s own case which was never explained. At paragraph 33 of his statement of case, he asserts that, “Stanley Anyetei Nunoo, was not a non-member of the La Dadekotopon Youth Association”. At paragraph 36 he asserts the opposite. We say nothing more of it than that a case which contradicts itself on its central factual premise does not readily satisfy the burden of demonstrating that a court below acted arbitrarily.

(vi) The complaint that the Court of Appeal departed from its own earlier direction

40). The Appellant’s remaining complaint is that the Court of Appeal had directed each faction to nominate an individual, and then disregarded that direction. The record does not bear this out. What the Court of Appeal granted on 16th March 2023 was an extension of time within which “the La Dadekotopon Youth Association will come together and nominate representatives”. The direction was addressed to the Association and its object was consensus. It was an exhortation to the factions to agree, not a promise that each would be rewarded with a seat. When the exhortation failed, the court was left to decide and it decided upon same.

41). Nor is there anything in the submission that the court “disregarded the application before it” because the motion was one for extension of time for handover. The motion was part of the machinery by which the judgment of 21st July 2022 was to be executed. The obstacle to execution was the absence of the Association’s three nominees. A court seised of an application to extend time for a handover, which cannot occur until the receiving body exists, is plainly entitled under Article 126(4) to make the order necessary to bring that body into being. To have done otherwise would have been to grant an extension into a vacuum.

A concluding observation

42). We do not part with this matter without expressing our disquiet at what the record discloses. This litigation began in 2012 over a public amenity which, on the findings below, had not been properly accounted for since 2003. Judgment was given in 2014 and affirmed in 2022. Four (4) years on from the affirmation, the nine-member committee which the Court of Appeal ordered to be constituted within six months has still not begun its work, and the beach itself, on the Appellant’s own account, has been closed since shortly after February 2023. The people of La, in whose interest all sides profess to act, have had neither the amenity nor the accounting.

43). The order of 23rd October 2023 is an interim administrative measure taken to break that deadlock. It settles who shall sit on the Management Committee. It does not settle, and must not be read as settling, the membership of the La Dadekotopon Youth Association, the composition of its Council, the validity of any entry in the register kept by the Registrar of Companies, or any allegation of forgery. Those questions, if they are to be determined at all, fall to be determined in the proceedings already pending in the High Court, at the suit of persons who have standing to raise them. The Management Committee, once constituted, is of course accountable, and it is open to the Court of Appeal, on the application of a proper party, to review the composition of the Association’s representation should the High Court’s determination of those questions require it.

44). The nine-member Management Committee is to be constituted and to assume the management of the La Pleasure Beach forthwith. It has waited long enough.

CONCLUSION & DISPOSITION

45). For all the reasons hereinbefore set out, Ground A is struck out as misconceived and Ground B fails. The Appellant has neither demonstrated that, the Court of Appeal exercised its discretion on the wrong principle, nor on inadequate materials, nor arbitrarily. In our considered view, the Appellant lacks standing to litigate the internal affairs of an association of which he says he is not a member; and he is in any event estopped from reopening the mandate of the Association’s representative. That question was decided against him on 21st July 2022.

46). In the result, the appeal fails, and same is accordingly dismissed. The ruling of the Court of Appeal dated 23rd October 2023 is hereby wholly affirmed.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) J. BARTELS-KODWO (MRS.)

(JUSTICE OF THE SUPREME COURT)

COUNSEL

SIKA ABLA ADDO ESQ. FOR THE 10TH DEFENDANT/APPELLANT/

RESPONDENT/APPELLANT WITH EFUA ASAAH AMPADU ESQ.

M. B. SAHNOON ESQ. FOR THE PLAINTIFF/RESPONDENT/

APPLICANT/RESPONDENT WITH EDWARD SAKYI ESQ.