LT. CDR. PERRY TETTEH AND 2 OTHERS vs. ECKANKAR GHANA SATSANG SOCIETY [2013]DLCA4957

Date	2013-07-18
Suit No.	CIVIL APPEAL NO.H1/210/2013
Citation No.	[2013]DLCA4957

MARIAMA OWUSU JA (PRESIDING)

MARFUL-SAU JA

SAEED-GYAN JA

RAPHEAL ALIJINA FOR THE PLAINTIFFS/ APPELLANTS

GODWIN DZOKOTO WITH HENRY GYABENG FOR DEFENDANT/RESPONDENT

[2013]DLCA4957
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													<main id="main" class="content" style="min-height: 60rem" >LT. CDR. PERRY TETTEH AND 2 OTHERS<o:p></o:p>(PLAINTIFFS/
APPELLANTS)<o:p></o:p>vs.<o:p></o:p>ECKANKAR GHANA SATSANG SOCIETY<o:p></o:p>(DEFENDANT/
RESPONDENT)<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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CIVIL APPEAL
NO.H1/210/2013&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;18TH JULY 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>RAPHEAL ALIJINA FOR THE PLAINTIFFS/ APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>MARIAMA OWUSU JA (PRESIDING), MARFUL-SAU JA, SAEED-GYAN
JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA:-The fundamental issue raised in this appeal is whether or not the
plaintiff/ appellants (hereinafter called appellants) had the capacity to
institute the action leading to this appeal. The trial High Court had on the 24th
October 2012 dismissed appellants’ action on grounds that they lacked the
requisite capacity to initiate the action. Dissatisfied with the said ruling the
appellants filed a notice of appeal on the 30th of October 2012. In the said
notice the appellant’s formulated one ground of appeal, namely that the learned
High Court Judge erred in law by dismissing the suit for want of capacity.<o:p></o:p>The
appellants issued a writ accompanied with a statement of claim against the
defendants/ respondents (hereinafter called respondents) claiming various relie
fs. Upon service, the respondents filed a motion praying that the writ be
struck out and the suit dismissed. The trial High Court heard the motion on its
merits and dismissed the suit. At page 27 of the record of appeal, the trial
court ruled thus:-<o:p></o:p>‘’The plaintiff’s writ of
summons and statement of claim is accordingly dismissed as they lack the
capacity to bring the action.’’<o:p></o:p>The
appellants by paragraph 1 of their statement of claim averred as follows:-<o:p></o:p>‘’1. The plaintiffs are
Executives of a branch of Eckankar Ghana Accra West, a branch of the central
organization known and described as Eckankar Ghana Satsang Society registered
under the laws of Ghana and bring this action on behalf of themselves and the
entire membership of Eckankar Ghana Accra West.’’<o:p></o:p>The
argument put up by the respondents was that Eckankar Ghana Accra West for which
the appellants claimed to be the Executives did not exist as a legal entity or
a juristic person, that can sue and be sued and for that matter the appellants
were not clothed with capacity to sue. They argued that Eckankar Ghana Accra
West had been merged with another branch and therefore did not exist and could
not have Executives.<o:p></o:p>The
appellants on the other hand argued that they instituted the action in their
individual rights and also on behalf of the members of Eckankar Ghana Accra
West. They therefore contended that even if Eckankar Ghana Accra West did not
exist they have the right, as individuals to initiate the action against the
first respondent, who was the accredited body in charge of Eckankar in Ghana.<o:p></o:p>Now,
before I tackle the fundamental issue raised in the appeal, I need to address a
problem I find with appellants’ action. In this appeal the appellants seemed
not to dispute the fact that Eckankar Ghana Accra West had been merged with the
Accra Central local area to form the Accra Local Area. Indeed there is ample
evidence on record showing that the said Eckankar Ghana Accra West ceased to
exist as a branch from October 2006. At page 18 to 20 of the record of appeal
is exhibit ECIC 4, being handing over notes pursuant to the merger. From this evidence
I do not even understand why the appellants’ aware of the fact of the merger
would cause a writ to be issued in August 2012, describing themselves as
Executive of Eckankar Ghana Accra West, an entity they knew had been merged and
no longer existed. I shall revisit this problem after I have dealt with the
issue of appellants’ capacity.<o:p></o:p>At
paragraph 1 of the statement of claim appellants described themselves as
Executives of Eckankar Ghana Accra West and that the action has been commenced
on their behalf and that of the entire members of the Accra West branch.
Learned Counsel for the appellants has argued strongly that by paragraph 1 of
the statement of claim the appellants initiated the action in their individual
rights and then on behalf of the members of the Accra West branch. According to
learned counsel the phrase’’ bring this action on behalf of themselves and the
entire membership of Eckankar Ghana Accra West’’ means the appellants were
suing in their individual capacities as members of the branch.<o:p></o:p>I
do not agree with counsel for appellants on his interpretation of the averment
in paragraph 1 of the statement of claim, in which the appellants described the
capacity in which they were instituting the action. The appellants to my mind
were saying that they being the Executives of Eckankar Ghana Accra West bring
the action on their behalf as Executives and on behalf of the entire membership
of Eckankar Ghana Accra West. My understanding of the phrase’’ on behalf of
themselves and the entire membership of Eckankar Ghana Accra West,’’ is that
the appellants were referring to themselves as the Executives of Eckankar Ghana
Accra West and not their individual rights. My position is buttressed by
subsequent paragraphs of the statement of claim.<o:p></o:p>At
paragraph 2 of the statement of cl</main>