MENSAH AND OTHERS vs. ADU AND OTHERS [1965]DLSC1831

Date	1965-03-22
Suit No.
Citation No.	[1965]DLSC1831

MILLS-ODOI JSC

OLLENNU JSC

SIRIBOE J.S.C.

VICTOR OWUSU FOR THE APPELLANTS.

S. K. K. SOTOMEY FOR THE RESPONDENTS.

[1965]DLSC1831
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>ADU AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] 1 GLR 198<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
22 MARCH 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

VICTOR OWUSU FOR THE APPELLANTS.<o:p></o:p>

S. K. K. SOTOMEY FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C,<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The appellants, plaintiffs in the
court below, claimed against the two defendants: <o:p></o:p>(a) An
order decreeing dissolution of a timber business known as the Nkwanta
Industrial Corporation; <o:p></o:p>(b) An
order for accounts of the said partnership and payment to them of any sum which
may be found due to them; <o:p></o:p>(c) Appointment
of a receiver and manager for the business of the said partnership pending
final winding up of the same; and <o:p></o:p>(d) An
order for injunction restraining all parties save such as may be receivers and
managers from interfering with the business of the said firm. They pleaded that
the firm, the Nkwanta Industrial Corporation, is a partnership formed
originally by the first two plaintiffs, the two defendants and one Kwaku Banin,
now deceased, and that after the death of the said Kwaku Banin, the three
plaintiffs and the two defendants together carried on a partnership business in
the same name. They further pleaded that the defendants had, without their, the
plaintiff’s consent, registered their names under the Registration of Business
Names Ordinance,1 as the sole proprietors of and partners in the said business,
and were denying the interest of the plaintiffs in the said partnership. The
defendants admitted that the business known as Nkwanta Industrial Corporation
is a partnership business, they however pleaded that they, the two defendants,
are the proprietors of and the sole partners in the said partnership, and were
therefore justified in registering their names as they did under the
Registration of Business Names Ordinance (supra) without seeking the consent of
the plaintiffs and without informing them either.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs and the defendants are all members of Duayaw-Nkwanta State Council.
Some time in June 1955 the said state council, upon the motion of the first
defendant, passed a resolution to embark upon a timber industry, and appointed
the first two plaintiffs, the two defendants and Kwaku Banin, to initiate
negotiations with the local council of the area to revoke all timber felling
agreements which the local council had entered into with companies and other
persons engaged in the industry and to grant to the state council exclusive
timber felling rights over all lands in the state. At its meeting in July 1955,
one of its members, a Mr. J. H. Gambrah, informed the state council that
commercial and industrial undertakings were not within the competency of either
the state council or the local council; whereupon the council abandoned the
idea; they, however, decided that “in view of the fact that neither the state
nor the local council could embark upon the timber business, any well-organised
body or company of persons who could transact such duties for the interest of
the state at large should be encouraged and permitted to embark upon it for and
on behalf of the Duayaw-Nkwanta State Council.” Pursuant to this decision, the state
council encouraged the five persons, namely, the first two plaintiffs, the two
defendants and the said Kwaku Banin to form the Nwanta Industrial Corporation
and to be its board of directors with the first defendant as managing director.
The council also lent them an amount of £G120, which they used as initial
capital to start the business. None of the five persons who started the
business made any cash contributions to the initial capital. There was an
understanding that out of their profits, the firm would give financial
assistance to the state council from time to time, and would also do such
things as the award of scholarships to deserving young persons in the state for
the general good and welfare of the state. In due time when the books of the
council were audited the loan which the council had given to the firm was
discovered; the auditor queried the same as ultra vires the council, and
advised the council to call for immediate repayment; in consequence of that
query and demand, the amount was refunded to the council.<o:p></o:p><o:p>&nbsp;</o:p>Some time
in 1957 differences arose between the plaintiffs and the said Kwaku Banin on
the one hand, and the two defendants on the other; the cause of the differences
was the award of a scholarship made by the defendants without the knowledge of
the other three, the two defendants contending that they were the only persons
who had supervised the management of the firm, and that the other three had
been dormant or sleeping partners. The defendants contended therefore that the
partnership had become their p</main>