EVANS KWAKU AYERTEY, MICHAEL OPARE, EMMANUEL OTENG AND GEORGE LARBI vs. SAMUEL KWADWO ADDO, NANA OWUSU ANSAH AND OWUSU NANAHENE [2020]DLCA8843

EVANS KWAKU AYERTEY, MICHAEL OPARE, EMMANUEL OTENG AND GEORGE LARBI vs. SAMUEL... [2020]DLCA8843

Date	2020-04-29
Suit No.	CIVIL APPEAL: NO: H1/29/2018
Citation No.	[2020]DLCA8843

SOWAH J.A. (PRESIDING)

SUURBAAREH J.A.

MENSAH-HOMIAH J.A.

ASURO NAPARI FOR PLAINTIFFS/APPELLANTS

MARTIN AMOYAW FOR DEFENDANTS/RESPONDENTS

[2020]DLCA8843
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													<main id="main" class="content" style="min-height: 60rem" >EVANS KWAKU AYERTEY, MICHAEL OPARE,
EMMANUEL OTENG AND GEORGE LARBI<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>SAMUEL KWADWO ADDO, NANA OWUSU ANSAH AND
OWUSU NANAHENE<o:p></o:p>(DEFENDANTS/ RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

CIVIL APPEAL: NO:
H1/29/2018&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; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 29th April, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASURO
NAPARI FOR 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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MARTIN AMOYAW FOR DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>SOWAH
J.A. (PRESIDING), SUURBAAREH J.A., MENSAH-HOMIAH J.A. <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;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>SOWAH, (J.A):<o:p></o:p>Background to case<o:p></o:p>This
is a dispute between two factions of the GPRTU. <o:p></o:p>Prior
to the institution of the action that has culminated in this appeal, a
protracted dispute in respect of the rendering of accounts by the executives of
the Koforidua-Akropong-Larteh branch caused the 1st and 2nd
plaintiffs/appellants herein and 3 others to sue at the Koforidua High Court
for an order of accounts and an injunction to restrain the 2nd defendant in
that suit from organizing an election in the branch until the 1st defendant had
rendered accounts. [The defendants in that suit are the same defendants/respondents
herein]. Bentil J delivered judgment in that suit on 23rd June 2005
in favour of the defendants. In his conclusion, Bentil J noted that the
plaintiff's had been advised by the TUC to pay their dues to the Regional
Secretariat pending resolution of the problems at the branch. It was the judge’s
view that as long as the plaintiff’s complied with this advice they had
capacity to institute the action. He went on further to say that “Those
who did not make the payment to the Regional Secretariat are to re-apply to the
Branch Union to be re-admitted as members”. See the judgment at pages
86-94 of the record of appeal.<o:p></o:p>Dissatisfied
with the judgment, the plaintiff's appealed to the Court of Appeal which
allowed the appeal, set aside the judgment of the court below and made fresh
orders for audited accounts and a referee to be appointed who was to report to
the court below and final orders made accordingly.<o:p></o:p>Pursuant
to these directives by the Court of Appeal, the trial court on 8th
July 2009 appointed an auditor to report on the audited accounts of the Branch
from 1998 to June 2005. Thereafter on 17th October 2014 a Ruling was
delivered by the court Coram Kosi Kaglo J in which judgment was entered for the
1st, 3rd, 4th and 5th plaintiffs’
against the defendants and the 2nd plaintiff (who the court suo motu
joined as defendant) to refund certain monies. The said Ruling is at pages 134
to 136 of the record of appeal.<o:p></o:p>Facts of present case<o:p></o:p>The plaintiffs/appellants
issued the writ herein on 2nd April 2015, claiming to be members of
the GPRTU Koforidua-Akropong-Larteh branch, and suing in a representative
capacity for other members of the Union. They sought a declaration that the
defendants having been found liable for mis-using Union funds [per Kaglo J’s
judgment] were not eligible to stand in impending elections; an order directed
at the defendants to vacate office forthwith and an order restraining the
defendants or their agents from unilaterally disqualifying the plaintiff's from
being members of the branch and from loading passengers from the unions loading
point at the Lorry Station. <o:p></o:p>In
their statement of defence, the defendants averred that by the GPRTU
Constitution, the plaintiff's had ceased to be members of the union since 2002
and applied to the trial court to determine the capacity of the plaintiff's to
institute the action as a preliminary point. The defendants’ prayer was
repeated in a motion filed on 13th January 2016 [at page 65-67] for
a preliminary trial to be conducted on the issue whether the plaintiffs’ were
members of the Branch before considering plaintiff's application for an order
of interim injunction to restrain the defendants from conducting Branch elections.
<o:p></o:p>The
Ruling on the issue of the plaintiffs’ capacity, which was delivered on 4th
May 2017, is the subject matter of this appeal. The trial judge was of the view
that the plaintiff's had failed to discharge the burden placed on them to prove
that they were members of the Union. She thus agreed with the defendants that
the plaintiff's did not have the capacity to sue and declared the writ a
nullity.<o:p></o:p>Grounds of appeal <o:p></o:p>In
the plaintiffs/appellants’ Notice of Appeal filed on 1st May 2017,
they are seeking Orders from this court to set aside the Ruling on capacity and
for the full case to be heard. <o:p></o:p>There
are two substantive grounds of appeal as no additional grounds were filed. The
grounds of appeal which were argued together by counsel for the
plaintiff's/appellants in his written submissions are:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That the Ruling is against the weight of
evidence.<o:p></o:p>