F.M. A. ARYETTEY & ORS vs. GHANA COMMERCIAL BANK [2011]DLCA7017

Date	2011-11-17
Suit No.	CIVIL APPEAL NO. H1/170/2010
Citation No.	[2011]DLCA7017

APALOO JA [PRESIDING]

YAW APPAU JA

KORBIEH JA

DR. EKOW DANIELS FOR THE PLAINTIFF/APPELLANTS

MR. ANTHONY NORVOR FOR THE DEFENDANT/RESPONDENTS

[2011]DLCA7017
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													<main id="main" class="content" style="min-height: 60rem" >F.M. A. ARYETTEY &amp; ORS<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GHANA COMMERCIAL BANK<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/170/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 17TH
NOVEMBER, 2011<o:p></o:p>

</div>COUNSEL: <o:p></o:p>DR.
EKOW DANIELS FOR THE PLAINTIFF/APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. ANTHONY NORVOR FOR THE
DEFENDANT/RESPONDENTS. <o:p></o:p>

APALOO JA [PRESIDING], YAW APPAU JA, KORBIEH
JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>WOOD
G. (MRS) <o:p></o:p>There
has been a slight misdescription of the parties in these proceedings and I
think it is my duty to rectify the errors, however, inconsequential they may
be, F A Aryettey and others, were at the hearing of the substantive appeal, the
Plaintiffs/Respondents and not Defendant/Respondents as they have been
described in the motion paper and supporting affidavit. Similarly, the Ghana
Commercial Bank were the Defendant/ Appellants, not the Plaintiff/Appellants.
In these proceedings, however, I shall refer to them as Appellants and
Respondents respectively. The Respondents who at the time, were the Executive
Members of the Ghana Commercial Bank Pensioners Association instituted
representative proceedings on their own behalf and on behalf of seven hundred
and sixty-four other members of the Association. They sought primarily to
recover pension they maintain they are entitled to at their retirement from the
Bank. The Bank unfortunately resisted the claim and applied for full
particulars of those others on whose behalf they sued. This simple application
was however turned down by the trial judge who thought that among other things,
allowing the application would delay the trial unduly. On appeal, this court on
27th February 1997, however, reversed the decision of the Court below and
ordered these particulars to be furnished to the appellants within fourteen
days of the order and for the case to proceed to trial. Albeit, before another
Judge, for reasons other than his mere refusal to accede to the prayer. That
order was never complied with. After a period of almost nine months, one Beryl
Prah and J.E. Carr describing themselves as the new Chairperson and Secretary
respectively of the Association and using the name of the original respondents
have come to this Court by way of a motion, supported naturally by an affidavit
(in support) praying for an order of enlargement of time within which to comply
with our order of 27th February, 1997. The reasons for the application are
contained particularly in the paragraphs 5, 6, 7 and 10 of the affidavit
accompanying the motion. I will reproduce them. They read as follows:<o:p></o:p>&nbsp;“5” That instead of complying with the order,
Mr. Aryettey without the knowledge, approval and consent of the Association and
its members ignored it by filing a purported memorandum of settlement in the
High Court to the detriment of the members. Judgments of the Superior Courts
8429 Copyright © DataCenta Ltd. <o:p></o:p>“6”
— That we are advised by our Solicitors and verily believe the same to be true
that the so-called settlement and a copy of which is now produced to us and
shown to be marked BP 2 is not binding on us and of no effect and was entered
into contrary to S 324 of the Companies Code 1963 (Act 179). Nevertheless, it
received the approval of any court.<o:p></o:p>&nbsp;“7” — That consequently the members of the
Association protested against Mr. Aryettey's conduct and passed a resolution to
withdraw their retainer from their previous counsel, a copy of which is now
produced and shown to be marked as Ex. BP 3.<o:p></o:p>&nbsp;“10” — That at the last quarterly meeting of
the Ghana Commercial Bank Pensioners Association held on Saturday, 20th
September 1997 in Accra, the old Executive Members were voted out of office and
replaced by us.<o:p></o:p>&nbsp;“11” — We have now decided to comply with the
order of the Court of Appeal and therefore ask for extension of time within
which to furnish to the High Court to be nominated by the Chief Justice to take
over the case to be heard on its merits”. <o:p></o:p>Not
unsurprisingly, the Appellants have stoutly resisted the application arguing
that:—<o:p></o:p>&nbsp;1. At the time of signing the memorandum,
Aryettey had full authority of the Association to negotiate and sign the said
terms of settlements. <o:p></o:p>2.
The members approved of the said agreement and consequently collected their
entitlem</main>