NUNGUA KROWOR CO-OPERATIVE FISHING & MARKETING SOCIETY VRS. AMPAH-NUNOO AND OTHERS (LD/0224/2023) [2023] GHAHC 592 (23 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON THURSDAY THE 23RD DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP JUSTICE NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. LD/0224/2023 NUNGUA KROWOR CO-OPERATIVE - PLAINTIFF/RESPONDENT FISHING & MARKETING SOCIETY VRS 1. SARAH AMPAH-NUNOO 2. THERESA OWUSU AGYEMAN - DEFENDANTS/APPLICANTS 3. ABIGAIL KWENORKOR ABLIE 4. MR. CHARLES MINTAH 5. MRS. GRACE MINTAH R U L I N G INTRODUCTION By a Writ and Statement of claim filed on 10th February 2023, the Plaintiff instituted an action against five Defendants for inter alia declaration of title to a parcel of land situate at Nungua and stated to be approximately 1.85 acres, an order to eject the Defendants, recovery of possession and perpetual injunction. SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 1 of 14 The 4th and 5th Defendants entered appearance on 14th August 2023 and filed a Statement of Defence and Counterclaim on 28th August 2023. On 6th September 2023, the 4th and 5th Defendants as Applicants filed the instant application pursuant to “Order 11 Rule 18 (d) of C. I. 47” seeking an order of the Court to dismiss the suit. APPLICANTS’ CASE It is the case of the 4th and 5th Defendants, hereafter referred to as “Applicants” that a search conducted at the Registrar of Companies revealed that the Plaintiff, hereafter also referred to as “Respondent” is a non – existent body. A copy of the report of the search dated 17th August 2023 is attached to the affidavit in support of the application and marked as Exhibit CM1. For this reason, the Applicants prayed that the suit should be struck out as incompetent. RESPONDENT’S OPPOSITION The Plaintiff, hereafter referred to as “Respondent” opposed the application by an affidavit in opposition filed on 25th September 2023 and denied the claim of the Applicants that it is non-existent. It is the case of the Respondent that it is registered as a Co-operative Society under the Co-operative Society Act, 1968. In support of this claim, the Respondent relied on a Certificate of Incorporation dated 17th November 2011 and marked as Exhibit SD. SUPPLEMENTARY AFFIDAVIT OF THE APPLICANTS IN ANSWER TO THE RESPONDENT’S AFFIDAVIT IN OPPOSITION In answer to the Respondent’s opposition, the Applicants filed a Supplementary affidavit in support of their application on 11th October 2023 in which they stated that the name of the Respondent as stated on the Certificate of Incorporation - Exhibit SD, is “Nungua Krowor Co-operative Fishing and Marketing Society Limited” and not “Nungua Krowor Co-operative Fishing and Marketing Society” as stated on the Writ and Statement of Claim. (Emphasis added) SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 2 of 14 The Applicants stated that the law regulating co-operatives is different from that regulating limited liability companies. The Applicants added that the Respondent cannot commence proceedings in one name and rely on a certificate of incorporation bearing another name as evidence of its existence, as this is not permitted by law. SUMMARY OF SUBMISSIONS BY COUNSEL FOR THE PARTIES In his written submissions filed on 10th November 2023, Counsel for the Applicants stated that there is no evidence before the Court that the name of the entity registered as Nungua Krowor Co-operative Fishing and Marketing Society Limited has been amended to Nungua Krowor Co-operative Fishing and Marketing Society. Counsel submitted that there is therefore no evidence before the Court that the Respondent exists as a legal person or a corporate body and prayed that the action should be dismissed as an abuse of process of Court. Counsel for the Respondent on the other hand relied on the decision of the Supreme Court in the case of Obeng & Others vrs Assemblies of God Church, Ghana [2010] SCGLR 300 at pages 323 – 324 and stated that as held per Dotse JSC, the Courts exist to do substantial justice and it would be manifestly unjust in this case to non-suit the Respondent which is a registered body under the Co-operative Society Act, 1968 for the reason that the word “Limited” was omitted on the writ of summons and statement of claim. Counsel for the Respondent added that the present application is intended to stall the case so that the Court will not go into the real issues in controversy. ISSUE FOR DETERMINATION Whether or not the action should be dismissed. SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 3 of 14 APPLICABLE LAW, ANALYSIS AND OPINION On the motion paper, the Applicants stated that the present application is filed pursuant to “Order 11 Rule 18(d) of C. I. 47”. The Court however notes that there is no Order 11 Rule 18(d) of C. I. 47 but rather Order 11 Rule 18(1)(d) of C. I. 47. WRONG RULE OF PROCEDURE CITED IN SUPPORT OF THE MOTION In the case of Michael Ankomah- Nimfa vs James Gyakye Quayson & 2 Others, [Unreported; Writ No. J1/11/2022, 13th April, 2022; SC], the Supreme Court speaking through Kulendi JSC referred to its previous decision in the case of Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224 and their judgment in Republic vrs. High Court Accra (Commercial Division), Ex Parte Environ Solution Ltd & Others[Unreported, Suit No.: J5/20/2019, dated 29 April, 2020] and reasoned thus: “… The citation on court processes of the correct law on the strength of which the process has been filed is a practice that is insisted upon by judges because it enables the court to understand precisely the legal basis of the case the party is making and for the opponent to understand fully the case she is required to answer. This is a useful practice that advances the requirements of fair hearing. That notwithstanding, stating the correct statute on court processes is not a strict rule of procedure failure to comply with which can nullify a court process. It is more of a practice for the convenience of proceedings than a rule. Courts have a duty to do substantial justice to the parties in every case so a court is not disabled from hearing a party on the only ground that she cited the wrong statute on her process. The court is required to consider the substance of the case presented through the process and if it alludes to a legal right that can avail the party, the court will deal with the merits of the matter.” (Emphasis added) The Court finds that the affidavits filed in support of the present application allude to a legal right that can avail the Applicant. Relying on the above-cited authority, this Court SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 4 of 14 thus overlooked the error or wrong procedural Rule stated on the face of the motion paper and considered the substance of the case presented by the Applicants in the affidavits in support of the application. SCOPE AND AMBIT OF THE RULE IN ORDER 11 RULE 18 (1)(d) of C. I. 47 Order 11 Rule 18(1)(d) of C. I. 47 provides thus: (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (Emphasis added) A plethora of decided cases have long settled and delineated the scope and ambit of this rule. In the case of Gbenartey & Giles v Netas Properties & Investments [2015-16] 1 SCGLR 605, the court per Anin Yeboah JSC, (as he then was) stated at page 619 of the report as follows: “It follows therefore that the procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that it is beyond doubt that the case is unarguably frivolous and vexatious; and even legitimate amendments could not cure the defect.” (Emphasis added) In Okofoh Estate v Modern Signs [1995-96] GLR 310, the Supreme Court referred to Halsbury Laws of England (4th ed) which explains that: SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 5 of 14 “…under its inherent jurisdiction the court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process which must fail or which the plaintiff cannot prove and which is without a solid basis...” (Emphasis added) Per Order 11 Rule 18 (1) (d) of C. I. 47 and the authorities on the matter cited above, this Court finds that a successful application made pursuant to Order 11 Rule 18(1) (d) of C. I. 47, may therefore result in: o striking out of the pleadings or anything in the pleading, o a stay of an action, or o a dismissal of an action, or o judgment entered accordingly. It is essentially the case of the Applicants that the present action is without a solid basis and clearly unsustainable because the Respondent does not have the capacity to institute the action. In his written submissions, Counsel for the Applicants prayed that the suit should be “dismissed”. CAPACITY TO INSTITUTE AN ACTION In the case of Standard Bank Offshore Trust Company Ltd vrs National Investment Bank Limited & 2 others [2017-2018] 1 SCLRG (Adaare) at page 707 also reported as National Investment Bank Ltd & Others (No 1) vrs. Standard Bank Offshore Trust Co Ltd (No 1) [2017 – 2020] 2 SCGLR 28, a legal objection was raised by the Appellant to the capacity of the Respondent. At page 47- 48 of the report, the Supreme Court held speaking through His Lordship Benin JSC that: “In an article titled In Locus Standi – A commentary on the law of standing in Canada (Toronto: Carswell, 1986), Prof Thomas Cromwell who later became a judge of the Supreme Court pf Canada, wrote at page 3 that: ‘Capacity has been defined as the power to acquire and exercise legal rights. In the context of the capacity of parties to sue and be sued, to say that a party lacks such capacity is to acknowledge SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 6 of 14 the existence of some procedural bar to that party’s participation in the proceedings – one that is personal to a party…and imposed by law for one or more of various reasons…it concerns the right to initiate or defend legal proceedings generally.’ The Supreme Court also cited the case of Province of New Brunswick v Morgentaler 2009 NBCA 26 at 43 and the case of Dallas Fort Worth International Airport v Cox 261 SW 3d 378 (Court of Appeals of Texas at Dallas, 2008) and stated that: “…a party has capacity when it has legal authority to act…” The Supreme Court emphasized that: “The capacity to sue must be present before the writ is issued; such authority must appear in the endorsement and/ or statement of claim accompanying the writ; it cannot be acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A writ that does not meet the requirement of capacity is null and void. Nullity can be raised at any time in the course of the proceedings, even on second or third appeal.” (Emphasis added) The Supreme Court held that: “A person’s capacity to sue, whether under a statute or rule of practice, should be found to be present and valid before the issuance of a writ of summons, else the writ was a nullity. In the case of a company, its authority to bring a lawsuit is one of capacity and not standing”. (Emphasis added) It is the Respondent’s case relying on the Certificate of incorporation marked as Exhibit SD that it was registered under the Co-operative Society Act, 1968 on 17th November 2011 and it therefore existed before the suit was instituted. LAW REGULATING CO-OPERATIVES SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 7 of 14 The Applicants stated in the affidavit in support of the application that the law regulating limited liability companies is different from the law regulating cooperatives. However, no arguments were made in respect of this matter in the written submissions filed by Counsel for the Applicants. The Court notes that the law regulating co-operatives is the Co-Operative Societies Decree, 1968 (NLCD 252), as amended by Co-Operative Societies (Amendment) Decree, 1968, (NLCD 292) and the Co-Operative Societies (Amendment) Act 1986, (PNDCL 158). It provides in paragraphs 2 and 6 as follows: Paragraph 2—Societies which May be Registered. Subject to the provisions of this Decree, any society which has as its object the promotion of the economic interest of its members in accordance with co-operative principles, may be registered under this Decree with or without limited liability. Paragraph 6—Registered Societies to be Bodies Corporate. (1) A society registered under the provisions of this Decree shall be a body corporate with perpetual succession and may sue and be sued by the corporate name under which it is registered. (2) A registered society shall have a common seal to be approved by the Registrar. A registered society shall have power to hold movable and immovable property of every description and may enter into contracts and do all things necessary for the purposes of its constitution. (Emphasis added) The Court therefore considers that by the applicable law, the Respondent could properly have been registered as a society with limited liability or a society without limited liability under the Co-operative Societies Decree of 1968 as amended. The Court further considers that by the applicable law, the Respondent whether registered with limited liability or without limited liability is a body corporate with perpetual succession and may sue and be sued by the corporate name under which it is registered. SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 8 of 14 Under these circumstances and for the purposes of the instant application, the Court is thus of the considered opinion that a challenge raised by the Applicants that the law regulating co-operative societies is different from the law regulating Limited liability companies is of little moment. WHETHER OR NOT THE RESPONDENT IS THE SAME AS NUNGUA KROWOR CO-OPERATIVE FISHING & MARKETING SOCIETY LIMITED The only matter remaining for determination is therefore whether or not the Respondent is the same as Nungua Krowor Co-operative Fishing and Marketing Society Limited which by Exhibit SD was registered before the instant action was instituted and can sue and be sued in its own name by law. It is the case of the Applicants that there is no evidence before this Court that the entity registered and stated in Exhibit SD as “Nungua Krowor Co-operative Fishing and Marketing Society Limited” is the same as the Respondent, “Nungua Krowor Co-operative Fishing and Marketing Society”. In answer, Counsel for the Respondent submitted that the Court should do substantial justice by holding that the Respondent omitted the word “Limited” in the name stated on the Writ and Statement of Claim. This Court has considered the decision of the Supreme Court in the case of Obeng & Others vrs Assemblies of God Church, Ghana [2010] SCGLR 300 cited by Counsel for the Respondent in urging the Court to find in the interest of justice that the Respondent is the same as the entity registered as “Nungua Krowor Co-operative Fishing and Marketing Society Limited” and arrive at the conclusion that it has capacity to institute the instant action. The circumstances leading to the appeal filed in the Supreme Court in the case of Obeng & Others vrs Assemblies of God Church, Ghana (supra) as provided by the Supreme SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 9 of 14 Court at pages 312 to 314 of the report are that after a trial which spanned 1993 to 2001, judgment was given in favour of the Plaintiffs by the trial judge. Aggrieved by the decision of the trial Court in favour of the Plaintiffs, the Defendants appealed against the decision and the Plaintiffs who accepted the decision in their favour applied to the Court of Appeal for a variation of the judgment. The Court of appeal dismissed the appeal and affirmed the judgment of the trial High Court with express variation. The Defendants appealed against the decision of the Court of Appeal to the Supreme Court. One of the grounds of appeal filed by the Defendants in the Supreme Court was that the Court of Appeal erred when it amended the capacity in which the Plaintiffs brought the action. At page 317 of the report, the Supreme Court stated that the issue raised by this ground of appeal for its determination was whether the Plaintiffs lacked capacity to institute the suit against the Defendant, or put in other words, whether or not the amendment of the capacity of the plaintiffs by the Court of Appeal was proper. The Supreme Court found as a fact and stated at page 323 of the report that the Plaintiffs commenced the action as “Assemblies of God Church, Ghana per the Executive Presbytery, Headquarters Building H/No C500/J Avenor, Accra.” The Court also found and stated that this title was not different from the address that the Defendants used in their letter, Exhibit BB, to the Plaintiffs. The Court thus found and stated that “This meant that the defendants themselves were dealing with an Executive Presbytery of the Assemblies of God Church, Ghana.” The Court also considered the relevant law under which religious organizations such as the Plaintiffs could be registered, the Religious Bodies (Registration) Law, 1989 (PNDCL 221) and stated at page 324 of the report that “on the facts”, the Plaintiff Church had been registered as a corporate entity under the Religious Bodies (Registration) Law, 1989 (PNDCL 221). The Supreme Court thus held that the Plaintiffs cannot be denied the capacity they already have. SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 10 of 14 The Supreme Court referred to cases such as Ghana Ports and Harbours Authority v Issoufou [1993-94] 1 GLR 24, SC and held that there is ample legal support for the amendment of the capacity of the Plaintiffs by the Court of Appeal and dismissed the ground of appeal challenging the amendment of the Court of Appeal of the capacity of the Plaintiffs. This Court therefore notes that the challenge to capacity raised in the case of Obeng & Others vrs Assemblies of God Church, Ghana was raised after a trial. In the present case, the suit is at pleadings stage, only the Applicants have filed a defence and counterclaim to the suit. The other Defendants who were served with the Writ and Statement of Claim by substituted service have not entered appearance or filed a defence. This Court further notes that the Supreme Court had evidence before it to arrive at its conclusion in the case of Obeng & Others vrs Assemblies of God Church, Ghana because the challenge to capacity was raised after trial. The Supreme Court “took a close look” at a number of exhibits before the Court to “access their full effect and impact” and made findings of fact upon which it held that the Plaintiffs in that case cannot be denied the capacity they already have. In the present case, however, there is no evidence before the Court to enable the Court arrive at a conclusion that the Respondent is the same as the entity registered as “Nungua Krowor Co-operative Fishing and Marketing Society Limited”. In responding to the present application, the Respondent had every opportunity to present evidence to lead the Court to arrive at a conclusion that it is the same as the entity registered as Nungua Krowor Co-operative Fishing and Marketing Society Limited, but no such evidence has been presented by the Respondent. SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 11 of 14 As submitted by Counsel for the Applicants in his written submission, there is thus no evidence before the Court to enable it arrive at the conclusion that the Respondent is the same as Nungua Krowor Co-operative Fishing and Marketing Society Limited, that it was registered before the action was instituted, and that it is a legal entity capable of maintaining the instant action. Whilst it may well be that the Respondent is the same as “Nungua Krowor Co-operative Fishing and Marketing Society Limited”, and whilst it may be as submitted by Counsel for the Respondent that in stating the name of the Respondent on the Writ and Statement of Claim, the word “Limited” was omitted, the Court is of the considered opinion that the matter of the capacity of the Respondent to institute the action should not be left to conjecture. Had there been evidence before this Court that the Respondent was registered in the year 2011 and is the same as Nungua Krowor Co-operative Fishing Marketing Society Limited, it would have been possible for the Court to conclude that at the time the Writ and Statement of Claim were filed in this case, the Respondent was already registered and therefore has capacity to institute the instant action. The Court could have stayed the action and directed that the Writ and Statement of Claim be amended after which the suit may proceed. In the circumstances of this case however, and regrettably, there is no evidence upon which the Court can hold that the Respondent is a registered entity which can sue and be sued. CONCLUSION SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 12 of 14 The application filed by the 4th and 5th Defendant as Applicants on 6th September 2023, seeking an order of the Court to dismiss the instant suit is granted. The Writ and Statement of Claim are struck out and the suit is dismissed. Costs of GHS 2,000 is awarded against the Respondent in favour of the Applicants, having regard to Order 74 of C. I 47. SGD (JUSTICE OF THE HIGH COURT) NABEELA NAEEMA WAHAB J. (MS.) COUNSEL IRENE MARIA ALLOTEY-ANNAN FOR PLAINTIFF/ - PRESENT RESPONDENT LIVINGSTONE DEY FOR 4TH AND 5TH DEFENDANTS/ - PRESENT APPLICANTS CASES REFERRED TO: 1. Obeng & Others vrs Assemblies of God Church, Ghana [2010] SCGLR 300 at pages 323 – 324 2. Michael Ankomah- Nimfa vs James Gyakye Quayson & 2 Others, [Unreported; Writ No. J1/11/2022, 13th April, 2022; SC] SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 13 of 14 3. 4. 5. 6. 7. Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224 Republic vrs. High Court Accra (Commercial Division), Ex Parte Environ Solution Ltd & Others[Unreported, Suit No.: J5/20/2019, dated 29 April, 2020] Gbenartey & Giles v Netas Properties & Investments [2015-16] 1 SCGLR 605 Okofoh Estate v Modern Signs [1995-96] GLR 310 Standard Bank Offshore Trust Company Ltd vrs National Investment Bank Limited & 2 others [2017-2018] 1 SCLRG (Adaare) at page 707 8. National Investment Bank Ltd & Others (No 1) vrs. Standard Bank Offshore Trust Co Ltd (No 1) [2017 – 2020] 2 SCGLR 28 9. Province of New Brunswick v Morgentaler 2009 NBCA 26 at 43 10. Dallas Fort Worth International Airport v Cox 261 SW 3d 378 (Court of Appeals of Texas at Dallas, 2008) 11. Obeng & Others vrs Assemblies of God Church, Ghana [2010] SCGLR 300 12. Ghana Ports and Harbours Authority v Issoufou [1993-94] 1 GLR 24, SC SUIT NO: LD/0224/2023 – Nungua Krowor Co-operative Fishing & Marketing Society vrs Sarah Ampah-Nunoo & 4 Ors Page 14 of 14