Anane and Others Vrs Kumasi Metropolitan Assembly and Another (H1/31/2004) [2004] GHACA 21 (29 October 2004);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA-GHANA, A.D. 2004.
Coram: - Omari-Sasu, J.A. [Presiding]
J. B. Akamba, J.A.
Tweneboa-Kodua, J.A.
H1/31/2004
29th October, 2004.
GLADYS ANANE ADDO & 9 ORS. : PLAINTIFF/RESPONDENT.
- VRS. -
- KUMASI METROPOLITAN ASSEMBLY 1ST DEFENDANT/RESPT.
- KEJETIA TRADERS ASSOCIATION 2ND DEFENDANT/APPELLANT
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J U D G M E N T
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TWENEBOA-KODUA, J.A.: - In the judgment of the High Court, Kumasi, on appeal, the plaintiffs as respondents herein, recovered on their claim, reliefs as follows : -
- A declaration that the 1st Defendant is the sole body recognized by law to
allocate shops and stalls, particularly those at Kejetia, the ownership of
which is vested in the 1st defendant..
- A declaration that it is illegal and unlawful for the 2nd defendant to allocate
shops and stalls constructed at Kejetia.
3 A declaration that the persons, significantly including the plaintiffs, described
as licensees for the shops and stalls at Kejetia be given the first option in the allocation of the aforesaid shops and/or stalls which were pre-financed
by them.
- An order for accounts.
- An order of perpetual injunction restraining the defendants, their agents,
servants and any person claiming through them from illegally and unlawfully
alienating the same to prospective owners without giving the first option to the said original licensees.
The 1st defendant/respondent was on its part adjudged to recover on its counterclaim as follows :
- A declaration that the 1st Defendant is a statutory body clothed with authority
to construct, manage and control all public markets in the Metropolis.
- Perpetual injunction restraining the 2nd defendants themselves and their
agents from holding themselves out and usurping the lawful functions of the 1st defendant Assembly.
Dissatisfied with it, the 2nd defendant as appellant, is impugning the judgment herein on 12 [twelve] main and hardly ambiguous grounds as follows :
- The learned Judge erred in giving judgment on the counterclaim when there was no statement of defence and counterclaim filed in this suit by the 1st defendant in law.
- The learned Judge erred in stating that an issue was joined as
between the plaintiff and the 1st defendant and or between the 1st
defendant and the 2nd defendant in respect of the counterclaim.
- The learned Judge erred in holding that the 6th plaintiff was a
member of 2nd defendant association when there is no evidence on
record in this behalf.
- That learned trial Judge misdirected himself on the invocation of Order 33 rule 3 of L.N. 140 A.
- The finding by the learned trial Judge that there was no proper
accounting by the 2nd defendant is not supported by any evidence.
- The order made by the learned trial Judge that accounts shall be
prepared by the 2nd defendant after the trial and judgment and same
shall be audited by the serious Fraud Office is wrong in law.
- The learned trial Judge failed to consider adequately or at all the effects of the agreement made between the 1st and 2nd defendants
as well as the correspondence between them.
- The learned trial Judge erred in holding that the Local Government
Bye Law L.I. 1614, was applicable to this suit.
- The finding that the 1st plaintiff was entitled to be allocated a shop is not supported by evidence on record.
- The judgment dated October 25, 2002 is wrong in so far as it does
not state the reliefs to which it is applicable.
- The learned Judge erred in giving judgment to all the plaintiffs
[except the 10th plaintiff] when they had not called any evidence
entitling them to a judgment.
The written submission filed for the appellant carried the argument or exposition of two additional grounds of appeal [See page 14 beginning from paragraph 4 and page 15 from paragraph 4 as well]
The argument is only a part of the appellant’s written submission or Statement of Case filed “pursuant to leave granted on 28 January 2004”. It is clear the leave was necessary because the appellant was out of time in filing the said submission or statement.
It is also clear that the leave explained above was not granted to enable the appellant to urge or canvass the additional grounds outside the Notice of Appeal.
Indeed the appellant did not take any step to apply for leave to enable it to rely on additional grounds. A close examination of the Record of Appeal yielded no evidence of that.
It is therefore amusing that Counsel for the appellant embodied the argument on the said two additional grounds thus committing a scarlet sin against Rule 8 [7] of the Court of Appeal Rules, 1997 [C.I.19]. The two additional grounds cannot be entertained and are accordingly disallowed. The foregoing must make for the preliminaries of the judgment herein. I think it requires a brief summary of facts at the background of the litigation herein.
There is a consensus that the plaintiffs/respondents are traders, so licensed, at Kejetia in Kumasi. They are said to have pursued their calling for a period between 15 to 30 years each. They claim to be members of the [2nd defendant] appellant association, duly registered as a company under the law.
In the process of the rehabilitation of Kumasi Kejetia, the entire membership of the appellant company agreed to be resettled at some price, that is to say, they were to pre-finance the construction of the shops and stalls at Kejetia, Kumasi. The plaintiffs/respondents, among others, paid more than ¢8,000,000 [eight million cedis] each for the project.
After the rehabilitation, the allocation of shops and stalls was bedevilled by illegality, graft and incompetence. The appellant company assumed authority to allocate the stores and stalls: people who had neither contributed to pre-finance the project nor subscribed to the membership of the appellant association were favoured at the expense of respondents [i.e. the plaintiffs] among other accredited members.
The 1st defendant/respondent herein was accused of the abdication of its lawful duty of distributing the stores and market stalls. Furthermore the appellant company was accused of failing to render account of the huge contributions made by the plaintiffs/respondents and their colleague members of the appellant company.
The dispute against the foregoing backdrop culminated in the action in the court below.
The appellants sought to impeach the judgment of the court below on technical grounds. In the first two grounds of appeal were laid the technical offences that the 1st defendant/respondent [the Kumasi Metropolitan Assembly] was said to have committed. The offences were breaches of the rules of procedure.
The evidence offered by the 1st defendant/respondent was vitiated by the wrong procedure and therefore the judgment that relied on it was wrongful in law, Counsel for the appellant so submitted. Counsel for the appellants ingeniously formulated the two grounds as follows : -
“1. The learned Judge erred in giving judgment on the counterclaim when
there was no statement of defence and counterclaim filed in this suit
by the 1st defendant in law.
- The Learned Judge erred in stating that an issue was joined between the
plaintiffs and the 1st defendant and or between the 1st defendant and the
2nd defendant in respect of the counterclaim.”
Counsel submitted that the 1st defendant [a respondent herein] filed his statement of defence out of time. His case is that this respondent filed his process after the
directions had been given on summons; it was filed without leave or an extension of the time to do so. It is counsel’s contention that issues were not joined as between the 1st defendant, in its part, and the rest of the parties in their various parts.
Counsel for the appellants submitted that matters carried by the statement of defence and the counterclaim in question intruded into the judgment on appeal and seriously contaminated it and made it unacceptable.
Counsel was therefore clear in his mind that the trial Judge erred in law in giving a favorable judgment on a statement of defence and counterclaim that flouted the rules of procedure.
Both counsel for the respondents did not find any irregularity in the pleadings by the 1st defendant/respondent unpardonable.
Counsel for the plaintiffs/respondents took notice of the fact that the other respondent in the case did file a statement of defence and counterclaim out of time; he was emphatic that it was done eight clear days before the directions on summons were given by the court.
According to counsel for the 1st defendant/respondent, service of the requisite court processes was not delivered on this party and it took a whole court order for this to be done. Counsel submitted that the appellants did not raise any objection to the order. They did not raise an objection to the belated filing of the statement of defence and counterclaim during the trial either.
Counsel for the respondents took the view that the default of the 1st defendant/respondent was essentially a non-compliance with the rules of procedure that did not render the proceedings void. Besides counsel took the view that the non-compliance amounted to an irregularity, which the appellants waived by the steps, they adopted in the court below. Counsel for the 1st defendant/respondent put the entire phenomenon or circumstances of the case in the perspective of Order 70 rules 1 and 2 of the High Court Rules 1954 [LN 140A].
Counsel for the respondents have accordingly invited the court to discount the first two grounds of appeal for being destitute of merit. I have carefully examined the record of appeal and I have found as the truth that the 1st defendant/respondent filed a statement of
defence and counterclaim on 12 July 2001. It was eight days prior to the directions given by the court on summons.
Of course the appellant did not raise an eyebrow, but how could the appellant company, when it stood to suffer no consequence of that improper compliance with the rules? I think the proceedings in the court below were not rendered void by reason of the improper compliance amounting to non-compliance with the rules. I feel fortified in this view, for the trial judge did not consider it expedient to “so direct” within the meaning of Order 70 rule 1 of LN 140A.
It appears to me too late for the appellants to complain about any irregularity, if at all, arising from the non-compliance. The appellant company took many fresh steps after the significant and conspicuous default by the respondent Kumasi Metropolitan Assembly with respect to its non-compliance or improper compliance with the rules [see Order 70 rule 2 of LN 140A]
Against the foregoing background I feel no inhibition in concluding that the 1st defendant/respondent’s “statement of defence and counterclaim” was proper before the court and without defect.
I find it reasonable to think that the court below was seised of the case of the 1st defendant/respondent KMA, as contained in its pleadings. It is true that the respondent filed no additional issues; it is reasonable to presume that the court's directions given on 20 July 2001 covered the issues arising on the respondent KMA's pleadings before the Court. It is therefore technically reasonable and legitimate to say issues arising on the 1st defendant/respondent’s statement of defence and counterclaim were duly joined at the stage of summons for directions in the court below. In the result this court finds the judgment of the court given on the respondent KMA’s counterclaim free from any error or fault. The two grounds under review must fail and are accordingly dismissed.
Counsel for the appellant company next took the grounds 4,5 and 6 together and urged arguments on them. He then had recourse to order 33 of L.N. 140A as amended by Rule 2 [c] of High Court [Civil Procedure] [Amendment] [No.2] Rules, 1997, [L.I.1129].
The effect of the amendment is that the title to the Order 33 is substituted for. The new title reads: Accounts and Inquires. As well, a substitution is made for the entire rule 1 of the amended Order.
Counsel quoted the substituted rule 1 of Order 33 in extenso. Counsel then limited himself to the provision of the substituted rule 1 and argued the accounts aspect of the appeal against the provisions of the rule 1. He seriously impugned the judgment and condemned the judge for not adverting his mind to the amendment.
In his fertile imagination, Counsel conjured up the problems that would attend the orders made in the judgment on appeal.
Counsel found the order for account to be wrong because it was founded, among other things, on Exhibit ‘C’, a report of a probe, which was, according to counsel, wrongly admitted in evidence.
In his reaction to this limb of the appeal, counsel for the plaintiffs/respondents drew attention to the fact that the trial Court operated under Rule 3 of order 33 of L.N. 140A. That rule was not affected by the amendment brought by L. I. 1129. That rule is extant and valid. Counsel submitted that it was properly applied by the Court. The order for account made by the trial judge should not be disturbed, Counsel submitted.
Undoubtedly counsel for the appellant clearly misdirected himself in thinking that Rule 1 of order 33 of L.I. 1129 is all that the Rules for order for accounts provide.
The Court below applied Rule 3 of Order 33 of L.I. 140A and the rule reads:
“The Court or a Judge may, either by the judgment or order directing an account
to be taken or by any subsequent order, give special direction with regard to the
mode in which the account is to be taken or vouched, and in particular may
direct that in taking the account, the books of account in which the accounts
in question have been kept shall be taken as prima facie evidence of the truth
of the matters herein contained, with liberty to the parties interested to take
such objections thereto as they may be advised!”
Clearly, the order for account in the judgment of the Court below fell within the four corners of the Rule 3 of order 33 [L.N. 140A]: it was an order by a judgment all right; it gave the Special Fraud Office [SFO] special assignment to conduct auditing of the books of the appellant Kejetia Traders Association, an accredited legal entity.
By implication, the Court reserved the right to make further order or orders for the full satisfaction of the court’s order for account.
The order for account was therefore not made in self-misdirection when the court invoked Order 33 rule 3 of L.N. 140A. The rule was applied to the situation satisfactorily.
The treasurer, one Obeng who testified for the appellant unabashedly admitted in cross-examination that there had never been a rendering of account since 1999. His oath was that some of the books kept had been misplaced or lost to natural disaster. From the record of appeal the witness’s testimony offered a gloomy picture, which called for investigation and account for the over a billion cedis collected from individuals years back.
The evidence on record supported the finding that there was no proper accounting by the appellant company and so the orders for auditing and accounting were properly made. The 4th, 5th and 6th grounds are therefore unsustainable and they are dismissed.
The 7th ground is sufficiently set out herein above. Counsel referred this court to certain documents on record. They are labelled as Appendices II and III of Exhibit ‘C’.
As well Exhibit ‘4’ [at page 213 of the record of appeal] has been referred to the court. I have carefully studied the documents and they hardly transferred the management and control role, under which is subsumed the allocation of stores and stalls at Kejetia, to the appellant. In no way did the said agreements make the 1st defendant/respondent abdicate or relinquish its role for the appellant to assume.
As well correspondence could not have done what the agreements were incompetent to do. They surely could not have repealed the Local Government Act. 1993 [Act 462] nor have revoked the Local Government Establishment Instrument [L.I. 1614] in order to vest the statutory power for the management and control, including the allocation of stores and stalls at Kejetia, in the appellant company.
The Court below could not have dealt with the agreements and correspondence referred herein any better than it did. The ground 7 herein lacks merit and is therefore firmly dismissed.
The ground 8 of appeal brought in very attractive argument, making ingenious distinction between public markets in Kumasi and the Kejetia Park [not being a market] so as to take the latter out of the focus of L.I. 1614.
The long argument failed because the Kejetia shops and stalls provide a market place like those other markets in the Kumasi Metropolis for the accredited members of the appellant company to undertake their calling.
In the result, no error afflicted the holding in the Court below to the effect that L.I.
1614 was applicable to the suit before that Court. The ground 8 also fails and is dismissed too.
In the Court below the 10 [ten] plaintiffs had sued the appellant as well as the 1st defendant/respondent claiming against them jointly and severally the reliefs endorsed on their writ of summons. All 10 plaintiffs/respondents filed a common statement of claim.
For the proof of their entire claim, the 1st , 6th and 10th plaintiffs/respondents gave evidence. The evidence satisfied the trial judge who saw and heard them and who also observed their demeanours and accorded them credibility. In the view of the learned trial judge, they attained the standard of proof required by law. [Sec.11[4] of NRCD.323]
They thereby discharged the burden of proof and were accordingly adjudged to recover their claim against the appellants, Kejetia traders Association. [Sec.12 [1] of NRCD. 323]
There can hardly therefore be a complaint so barren as the one informing the 11th ground of appeal, namely, the learned judge erred in giving judgment to all the plaintiffs [except the 10th plaintiff] when they had not called any evidence entitling them to a judgment.
Accordingly the ground is dismissed for want of merit. Similarly the complaint laid in ground 9 of appeal, to wit, the finding that the 1st plaintiff was entitled to be allocated a shop is not supported by evidence on record, is also destitute of merit. The first plaintiff satisfied the court below that she was a member of the Kejetia Traders Association [the appellant]. She amply demonstrated that she paid the subscription for pre-financing the rehabilitation or reconstruction project: she proved that she paid more than ¢8,000,000 [eight million cedis]
The finding by the Court below that the 1st plaintiff was entitled to be allocated a shop at Kejetia was faultless and firm. The ground 9 is therefore dismissed.
The judgment is also under attack on ground 10 because the reliefs thereunder were not clearly spelt out. That is a false claim.
The court below gave a general verdict, so to speak, in the case at page 126 of the record of appeal when it said:
“Therefore judgment is entered in favour of the plaintiffs.” That pronouncement followed specific orders made by the court.
After stressing the financial misadministration that bedevilled the Kejetia reconstruction project, the court made an ‘order for accounts’ within the focus and intendment of rule 3 of Order 33 of L.N. 140A. The Court gave a special direction that the accounts be audited by the Special Fraud Office [SFO] also in consonance with the rule. This satisfied the 4th relief of the plaintiffs claim.
The Court below also ordered the 1st defendant/respondent [K.M.A] to ‘take over the responsibility of the reallocation of the market stores/stalls pre-financed by the KTA.’ As well it ordered the KMA [1ST defendant/respondent] to ‘take over the financial administration of the project..’
The foregoing orders were a vindication of the 1st defendant KMA’s exclusive right and authority to allocate the shops and stalls at Kejetia. By implication, the orders underscored the 1st defendants right to handle the allocation of the Kejetia shops and stalls and circumscribed any perceived right or authority of the appellants having regard to the allocation of Kejetia stores and market stalls. The first and second reliefs were thus satisfied.
Perpetual injunction was decreed in the judgment against the appellants and all claiming under/through them. The 5th relief sought in the claim was satisfied.
On balance, the court therefore did address all the reliefs endorsed on the writ and did implicitly and/or expressly grant them. The ground 10 of appeal set out in extenso supra is hollow in terms of merit. It is accordingly dismissed.
It comes in handy here, I think, to return to ground 5, which was lumped up with both grounds 4 and 6 and argued together by counsel for the appellant KTA, and to address it appropriately. This is necessary because whilst the other two grounds had more to do with the application of rules of procedure [Order 33 rule 1 and rule 3], the ground 5 was concerned with the evidence.
The ground, quoted in extenso, reads:
‘The finding by the learned trial judge that there was no proper accounting by the defendant is not supported by any evidence.’
The evidence on record offers an answer to the issue here. The 1st plaintiff/respondent swore that there was no rendering of account. [See page 42 lines 14-16 of the record of appeal.] In cross-examination, the 6th plaintiff/respondent underscored the point of non-accounting on oath. [see page 62 of the record of appeal].
Above all, in the evidence offered by one Obeng, the treasurer of the appellant Kejetia Traders Association, it was abundantly demonstrated that no proper account was rendered for the over 1 [one] billion cedis collected from the plaintiffs/respondents among other traders. The witness intimated that he rendered the account to the chairman of the association who was dead as of the time of his testimony. [See pages 93 to 107 of the record of appeal]. The witnesses also intimated that he surrendered the books he kept to the deceased chairman. Besides, the duplicates of receipts that he had in his custody had been destroyed by floods.
On the basis of the evidence foregoing, the judge could not have come to a better conclusion than ‘that there was no proper accounting by’ the appellant to the respondents. The 5th ground must therefore fail too. It is therefore dismissed as usual.
The 6th plaintiff/respondent swore in the Court below to her having been trading at Kejetia since 1964: she operated a pharmacy shop. She also swore that she contributed [¢12.05 million] twelve million five hundred thousand cedis to the Kejetia project. The payment was made to the treasurer of the appellant Association or company.
The witness produced receipts in support of her claim –Exhibit E.1 and E.2 on record. The foregoing evidence satisfied the court below with regard to the witness’s claim of membership of the Kejetia Traders Association, registered as a company
The conclusion by the Court that the 6th plaintiff/respondent was an accredited member of the appellant Association was well –informed and well founded. The learned judge’s holding that the 6th plaintiff/respondent was a member of the Kejetia Traders’
Association was faultless.
The 3rd ground set out above must also fail. It is accordingly dismissed too.
In the result, the entire appeal is found unsustainable. It is therefore disallowed.
K. TWENEBOA-KODUA
JUSTICE OF APPEAL
AKAMBA, J.A.: - I have had the privilege of a preview of the judgment read by my brother Tweneboa-Kodua and I entirely agree with the reasons and the conclusions arrived at. I fully endorse same as I have nothing useful to contribute. Accordingly I also affirm the decision of the High court and dismiss the appeal.
J. B. AKAMBA
JUSTICE OF APPEAL
OMARI-SASU, J.A.: - I have seen the decision of my two brethren concerning this appeal by the 2nd appellant in which the judgment of the trial High Court at Kumasi dated 25th October, 2002 is affirmed and the appeal is dismissed in its entirety.
On my part, however, I am of the view that the judgment of the court of first instance and the majority decision do not provide substantial justice in the matter having regard to the law applicable to the case.
I accordingly venture on my lonely voyage as follows:
FACTS OF THE CASE
The ten plaintiffs sued the two defendants jointly and severally because they claim they were made to pay various sums of money towards the pre-financing of the reconstruction of market stores/stalls in Kumasi and that the second Defendants received these moneys and used them but after the construction of the said market stores/stalls the plaintiffs were ignored in the allocation.
The law governing the construction of market stores/stalls in the Kumasi Metropolis is LOCAL GOVERNMENT [KUMASI METROPOLITAN ASSEMBLY] ESTABLISHMENT INSTRUMENT, 1995 – L.I. 1614.
S.3 OF L.I. 1614 STATES: -
[1] The assembly shall perform all the functions conferr-+ed on District assemblies by Local Government Act, 1993 [Act.462].
[2] Without prejudice to sub-paragraph [1] of this paragraph, the Assembly shall perform the functions set out in the second schedule to this instrument.”
The second schedule of L.I. 1614 assigns 88 functions to be performed by the
Metropolitan Assembly but for our purpose only two of the functions are relevant. These are
Nos. 37 and 39. They state:
No. 37 “ It shall be the duty of the Assembly to build, equip, open, close and maintain markets, prohibit the erection of stalls in places other than
markets and prevent the sale and purchase of goods or stocks near
established markets or elsewhere.”
Duty No. 39 States: -
“It shall be the duty of the assembly to regulate and control markets
including the fixing of and collection of stallages, rents and tolls”
A close examination of the above two duties of the metropolitan Assembly in
Kumasi shows the duties are imposed SOLELY on the Assembly and the duties
concern every aspect of construction maintenance, control allocation and fixing
of rents and tolls and market stores/stalls.
In our case for reasons best known to the Assembly it chose to permit an
agency known at KEJETIA TRADERS ASSOCIATION – the 2nd Defendant-
Appellant to build about 189 stores/stalls out of monies provided by its members after which construction the stores/stalls were allocated to certain persons to the exclusion of plaintiffs who had also made contributions to the said pre-financing exercise. The Metropolitan Assembly should have exercised control over the Kejetia traders Association when they were collecting moneys and erecting stores/stalls and allocating stores /stalls but they failed to exercise the said controls.
In the court below the identity of persons who benefited by the allocations was not completely known. The cost of the constructions was equally not known because the Assembly failed in its duty to exercise control over the agency it had permitted to perform the Assemblies Statutory duties on behalf of the Assembly.
The records of the 2nd Defendant-Appellants were not examined by the Assembly and it is now that court below has ordered Accounts of the appellant to be gone into.
From the record of proceedings and the law cited, it is patently clear that if anyone is to be held blameable and answerable for the misfortunes suffered by the plaintiffs it is the Kumasi Metropolitan assembly who permitted their statutory duty in question to be performed by an Agency they were not prepared to control.
It is strange the court below exonerated them from liability. I shall on my part set aside the Judgment of the court below and make the 1st Defendant liable to the plaintiffs claim. For these reasons the 2nd Defendant-Appellant succeeds in the appeal.
K. OMARI-SASU
JUSTICE OF APPEAL
COUNSEL:-
Mr. Dennis Adjei for Plaintiff/Respondent.
Mr. Dei Kwarteng for Defendant/Appellant.
