MOHAMMED & ANOTHER VRS GHANA NATIONAL ASSOCIATION OF GARMENT MAKERS & 3 OTHERS. (NR/TL/HC/E3/1/2021) [2024] GHAHC 351 (28 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE D. 2023 SUIT No.NR/TL/HC/E3/1/2021 BETWEEN ABDUL RAHAMAN AWAL MOHAMMED & ANOR. VERSUS GHANA NATIONAL ASSOCIATION OF GARMENT MAKERS & 3 ORS. =================================================================== JUDGMENT THE PLAINTIFFS herein sued the DEFENDANTS for the following reliefs listed below:- A declaration that the purported suspension of the plaintiffs by the 1st defendant acting per the 2nd defendant and a non-existent council of elders is null and void. A declaration that the plaintiffs are still the Northern Regional Chairman and Training Coordinator respectively of the 1st defendant association. A declaration that the purported reinstatement of the 4th defendant by the 2nd defendant is illegal and unconstitutional and thus null and void. A declaration that the 4th defendant was validly suspended from office as Northern Regional Vice Chairman of the 1st defendant association. Cost including solicitor’s fees. The defendants filed their statement of defense and a counter claim that the plaintiffs continued to hold themselves out after being lawfully suspended by the 1st defendant association and second that plaintiffs should be restrained from continuing to hold themselves out as members and officers of the 1st defendant association. CASE FOR THE PLAINTIFFS The summary of the case for the plaintiffs is that they are dues paying northern regional chairman and training coordinator of the 1st defendant association based here in Tamale and this association was formed out of a defunct Ghana National Association of Tailors and Dressmakers and as founding members in the then three northern regions of the north, Upper East, Upper West and Northern regions. As founding members the plaintiffs claim to be duly and fully paid up dues members and served the 1st defendant with passion, dedication and commitment at all material times and had never been queried, suspended or warned verbally or in writing for disobeying the norms, rules or regulations of the association. Narrating further, the plaintiffs asseverate that in the course of duty and acting in their capacity as executives of the association in the northern region in consultation with and with the consent and concurrence of the other regional executives, recommended to the National Executive Council for the suspension of the 4th defendant ABDUL RASHID ABUBAKAR YAKORO as the NR Vice Chairman for reasons well stated and this led to the suspension of the 4th defendant. The 2nd defendant, plaintiffs assert, purporting to act in his capacity as the National President of the 1st defendant association however unilaterally and unconstitutionally revoked the legal suspension of the 4th defendant to the utter dismay of the plaintiffs and well-meaning members of the defendant association and despite passionate reminders to the 2nd defendant to revoke his act of unconstitutionality, the 2nd defendant chose to turn a deaf ear on all such appeals. Following the above act of the 2nd defendant, the plaintiffs say they received a letter dated 2nd October, 2020 from the president purporting to suspend the plaintiffs as Northern Regional Chairman and Training coordinator respectively citing certain acts as purportedly done by the plaintiffs and this decision they say is unconstitutional as neither the 2nd defendant nor the non- existing council of elders who jointly signed the plaintiffs suspension letter do not have any constitutional power or authority to suspend any regional executive of the association from their post. Again they the plaintiffs say that by the clear provisions of the article 4 (B) (iii) of the 1st defendant’s constitution it is the duty of the regional executive committees to recommend to the national executive committee for approval to replace an executive member in the event of death, or resignation, and also to suspend a member for acts detrimental to the interest of the association. Also without such a recommendation therefore the NEC nor the non-existing council of elders could not have acted legitimately to suspend the plaintiffs as regional executives. What is even worrying the plaintiffs stated is the fact that they were not given an opportunity to be heard on the allegations leveled against them which they describe as false and that the 2nd defendant is simply pursuing a personal vendetta against them under the guise of fabrication of constitutional breaches. Finally the plaintiffs conclude by saying that not even a letter by their solicitors appealing to the 1st and 2nd defendants to reconsider and reverse the unwarranted and unconstitutional purported decision suspending them as the NRC and TC could cause the 1st and 2nd defendants to rethink their action. ISSUES RAISED BY THE PLEADINGS FOR DETERMINATION Whether or not the purported suspension of the plaintiffs by the 1st defendant acting per the 2nd defendant and a non-existent council of elders is null and void; Whether or not the plaintiffs are still the Northern regional chairman and training coordinator respectively of the 1st defendant association, in the event that their suspension was null and void; Whether or not the purported reinstatement of the 4th defendant by the 2nd defendant purportedly acting for and on behalf of the 1st defendant is illegal and unconstitutional and thus null and void; Whether or not the 4th defendant was validly suspended from office as Northern regional vice chairman of the 1st defendant association; Whether or not the plaintiffs are entitled to their claim; Whether or not the defendants are entitled to their counter claim; Any other issues raised by the pleadings. EVIDENTIAL PROOF OF PARTIES’ RIVAL CLAIM/COUNTER CLAIM The law of evidence is well settled that any person or party who makes a case against another is required to show proof or demonstrate how the case or claim he or she alleges commenced and the other party is also to dispute the claim by adducing contrary factual evidence in order to shift the overall veracity of the case or claim being adjudged the victorious party with supporting material items which agree with the claim or counter claim. In support of the defendants’ counter claim their counsel set out the general position of law aptly stated by KPEGAH J.A. (as he then was) in the case of ZABRAMA V SEGBEDZI (1991) 2 GLR at 246 thus: “A person who makes an averment which is denied by the opponent has the burden to establish that his averment or assertion is true, and he does not discharge this burden unless he leads credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. Coincidentally the plaintiffs’ counsel also cited the case precedent above and added a further case of ADWUBENG V DOMFEH (1996-1997) 660 where the Supreme Court held that sections 11 (4) and 12 of the Evidence Act (NRCD 323) have clearly provided that the standard of proof in all civil cases was proof by preponderance of the probabilities no exceptions made. The plaintiff herein tendered exhibits A to H to lay the foundation of his claim of the illegality and unconstitutionality of their suspension by the 1st defendant association purportedly acting per the 2nd defendant and therefore submit as null and void from their ordinary layman’s interpretation of their association’s constitution. On the other hand, the defendants tendered exhibits 1 to 4 in support of their contention that the suspension of the plaintiffs was within the president’s implementing authority and then also the reinstatement of the 4th defendant was for the interest of their association after they allowed his suspension up to 2021 and more so he acting on the advice of the elders who directed the 4th defendant to write an apology letter which he wrote and formed the basis of the revocation of his suspension. EVALUATION OF THE EVIDENCE OF PLAINTIFFS The 1st plaintiff swore on oath and told the court that the letter written to him by the 2nd defendant did not state his crime in one breath and then under cross examination admitted there were about eight reasons assigned for his suspension which he insisted he challenged it as he had not done what was in that exhibit G which he earlier said was at the instance of the president and a non-existent council of elders by the provisions of their constitution. In Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 882 at 900 Ansah JSC explained the above provision in these words:- …it is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produce sufficient evidence to make out his case on the preponderance of probabilities, as defined in section 12(2) of the evidence act 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree 1975 on the burden of prove is that in assessing the balance of probabilities, all the evidence be it that of plaintiff or the defendant must be considered and the party in whose favour the evidence tilts is the person whose case is the more probable of the viral versions and deserving of a favourable verdict. In Bisi v Tabiri alias Asare [1987-88] 1 GLR 360, the Supreme Court had this to say on the burden of proof:- ‘’The standard of proof required of a plaintiff in civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognized that where there were two choice it was sufficient if the choice selected was more probable than the choice rejected…”. My Lord, Georgina Wood CJ (as she then was) in Continental Plastics Engineering Co Ltd vrs IMC Industries -Technik GMBH SCGLR 298 at 307 cited the view of Kpegah JA as he then was in Zambrama vrs Segbedzi (supra) as follows: ‘’I will therefore venture to state the position to be: a person who makes an averment or an assertion, which is denied by his opponent has the burden unless he leads admissible and credible evidence from which facts or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden. In this case, both Plaintiffs and Defendants have the burden of proving their respective cases since the Defendants counterclaimed after the Plaintiffs had made their claim. EVALUATION OF EVIDENCE My Lord respectively in making our submission we shall turn to address the court on the issues set down for determination. We therefore crave your indulgence to make submissions on I and II together. These issues are:- 1. Whether or not the purported suspension of the Plaintiffs by the 1st Defendant acting per the 2nd Defendant and a non-existent council of elders is null void. 2. Whether or not the Plaintiffs are still the Northern Regional Chairman and Training Coordination respectively of the 1st Defendant Association, in the event that their suspension was null and void. My Lord the constitution of the 1st Defendant Association clearly states under Article 4(B) III as follows:- “The general administrative authority of the association in a region is vested in the regional executives committee. They have the obligation to recommend to the NEC for approval to replace an executive member in the event of death, or resignation, also to suspend a member for acts detrimental to the interest of the Association.” From what is clearly stated in the constitution provision of the 1st Defendant Association it is clear that for an executive member to be suspended, a recommendation will have to come from the Regional Executive committee of the affected executive member. It is only upon this recommendation that the NEC can then approve the recommendation. NEC cannot suo moto proceed to suspend any executive member. My Lord we submit that the Plaintiffs are not the only members of the Regional Executive Committee of the 1st Defendant Association. Article 2(B)ii of 1st Defendant Association’s Constitution enumerates the executive committee of a Regional Branch as follows:- 1. Chairman 2. Vice Chairman 3. Treasurer 4. Training Coordinator 5. Seven (7) other zonal chairpersons 6. Secretary and Organiser (Non-voting staff). My Lord the Plaintiffs are just two out of the fourteen Regional Executive Committee members. It is therefore untenable to submit that it was not possible for the Regional Executive Committee to have recommend the suspension of the two Plaintiffs as Regional Chairman and Training Coordinator if the due process of the 1st Defendant’s Constitution were to be followed. My Lord by a letter dated the 2nd day of October, 2020, and signed by the National President of the 1st Defendant Association Alhaji Mohammed Omar and also cosigned by one Nene John Awayitey claiming to be Chairman of a non-existence Council of Elders of this we shall duly turn to, the Plaintiffs were purportedly suspended from their positions as Northern Regional Chairman and Northern Regional Training Coordinator of the 1st Defendant Association. Due process was not followed in accordance with the constitution of the 1st Defendant Association. Where due process is not followed, an entire action taken crumpling down. In the case of Francis Owusu -Mensah and Stephen O. Adjapong vrs National Board for professional Technical Examinations (NAPTEX), Prof Paul N Buatsi and Mr. Francis W.Y Tagbor [2018] DLSC 480, Justice Anin Yeboah, JSC as he then was speaking on behalf of the Supreme Court had this to say about failure to follow due process:- “We think that with the above accurate statement of the law by Court of Appeal, it should have intervened to quash the letter terminating the appointments of the appellants when the respondents woefully failed to take the appellants through due process as required by the provisions of the Constitution. Failure of the Court of Appeal to Intervene when there was obvious violation of Article 191 and 23 of the 1992 Constitution should be deemed as an error for the allowance of the appeal.” Again, in the celebrated case of Tuffour v Attorney- General [1980] GLR 637 at 655-656, the Court of Appeal at the time sitting as Supreme Court had this to say:- “Neither the Chief Justice nor any other person in authority can clothe himself with conduct which the Constitution has not mandated. To Illustrate this point, if the Judicial Council should write a letter of dismissal to a judge of the Superior Court of Judicature and that judge either through misinterpretation of the constitution or indifference signifies acceptance of his dismissal, can it be said that he is estopped by conduct or election from challenging the validity of the dismissal? This court certainly thinks not. This court does not think that any act or conduct which is contrary to the express or implied provisions of the Constitution can be validated by equitable doctrines of estoppel. No person can make unlawful what the Constitution says is lawful. The conduct must be conformed to due process of law as laid down in the fundamental law of the land or it is unlawful and invalid.” My Lord respectively from the authorities it is evident that a failure to follow due process especially as clearly spelt out by the constitution of the 1st Defendant Association simply means a void action has been taken. Assuming without admitting that the plaintiffs did indeed do any of the acts for which the suspension letter was issued, they were not given the opportunity to be heard on the matter and this counsel submits was in clear violation of the fair rule. See the case of AWUNI V WEST AFRICAN EXAMS COUNCIL [2003- 2004] 1 SCGLR 471. Counsel again submits that even if a meeting was held to decide on the fate of the plaintiffs, it was improperly constituted and because the suspension letter was cosigned by two signatories, namely the national president, Alhaji Mohammed Omar and the chairman of the group known as the council of elders which is alien to their constitution. Q. Take a look at Exhibit “6” of the constitution of the 1st defendant association. Kindly point to us which provision creates the council of elders of the association? A. Members of the Association call them council of elders but the constitution calls them advisory board. It is our submission that council of elders and the advisory board can never be one and the same. It is either advisory board or it is a council of elders and what the constitution knows is an advisory board. Indeed, article 16 (b) of the constitution states: ‘there shall be established as ADVISORY council comprising all credible former national presidents and regional chairpersons whose rich experience and advice may be needed from time to time to promote the interest of the association’. Again, counsel submits that provided without admitting that the advisory board and the council of elders are one and the same as the 2nd defendant would want us to believe, the constitution is however clear as to their role; they are simply expected to bring their rich experience and advice to bear when needed. How is it then that a person whose role is simply advisory is seen as a cosignatory purporting to suspend executives? Has the role of the advisory board changed all of a sudden? It is the submission of counsel that the action of the 2nd defendant on behalf of the 1st defendant is void as due process was not followed and the failure to follow due process only leads to one conclusion, a nullity of whatever action that might have been taken as a result of the failure of the due process. The plaintiffs through their counsel adduce that issue ii on whether or not the plaintiffs are still the NRC and RG CDTR respectively of the 1st defendant association, in the event that their suspension was null and void can be answered in the affirmative flowing from the analysis above. Since the purported suspension was a nullity, it simply means that the plaintiffs remain NRC and TRG CDTR respectively. In the next submission counsel combined issues iii and iv together. My Lord respectfully, kindly indulge me as I seek to discuss issues iii and iv together. These issues are:- iii. Whether or not the purported reinstatement of the 4th Defendant by the 2nd Defendant purportedly acting for an on behalf of the 1st Defendant is illegal and unconstitutional and thus null and void. 1v. Whether or not that the 4th Defendant was validly suspended from office as Northern Regional Vice Chairman of the 1st Defendant Association. Respectfully my Lord, the constitution of the 1st Defendant Association provides for suspension of a member executive. Indeed, Article 4(B)(iii) quoted extensively supra provides for this. When the misconduct of the 4th Defendant was determined by the executives of the 1st Defendant Association in the Northern Region, they duly followed the requirements of constitution of the 1st Defendant Association by making a recommendation to NEC evidenced by the letter marked Exhibit “C”. NEC acted upon that recommendation and sanctioned the suspension of the 4th Defendant evidenced by the letter marked Exhibit “D”. It is our humble submission that due process was therefore followed. The constitution of the 1st Defendant Association is however silent on the reinstatement of a suspended executive member. Judicial notice can also be taken of the fact that the letter suspending the 4th Defendant did not indicate the duration for the suspension. It follows therefore that for a suspended member to be reinstated it will take a decision from the highest decision making body of the 1st Defendant Association, in this case NEC. My Lord, however, NEC never took a decision on the reinstatement of the 4th Defendant. This action was simply a unilateral decision of the 2nd Defendant. There is no scintilla of evidence before this Honourable court indicating that there was any such meeting of NEC in which a decision was taken as regards the 4th Defendant. Under cross-examination when counsel for the Plaintiffs drew the attention of the 2nd Defendant that he had no such evidence, this was what he had to say. Q: You claim you had a National Council meeting however you have not exhibited any minutes of such a meeting where the decision to suspend the 4th Defendant was taken? A: Yes my Lord there is minutes regarding that Q: Is the minutes you are referring to before this court as evidence? A: No my Lord because I did not know I had to present it. My Lord it is trike law that, where a party claims to have a document but fails to tender it, the inference is that no such document existed or it if existed at all, it does not contain the assertion made by the party. See the cases of Bouslako Co. Ltd. v. Cocoa Marketing Board [1982-83] 2GLR 824 at page 839 and Korley v. Bruce [1962] 1 GLR 7 and KOJO ASMAH V. ADJEI KWATENG [2019] JELR 108425 (HC) High Court, SUIT NO: SOL/81/2014 Judgment delivered on 30 May 2019. We submit that Defendants had no proof of any minutes of a council, meeting approving the decision to suspend Plaintiffs and the reinstatement of the 4th Defendant. Respectfully my Lord it is our submission that in answer to issues iii, we say that the purported reinstatement of the 4th Defendant was void and so to our minds he remains suspended and cannot therefore hold himself out there as an executive of the 3rd Defendant Association. In answer to issue iv, we say that since due process was followed in the suspension of the 4th Defendant it follows therefore that he was lawfully suspended and remains suspended until he is duly reinstated by NEC. My Lord respectfully, flowing from the arguments canvassed supra in favour of the Plaintiffs, it is the case that issue v can also be answered in the affirmative by saying that the Plaintiffs are entitled to all the reliefs they seek from this Honourable court. We therefore respectfully submit my Lord, that the Plaintiffs where wrongfully suspended from their positions as Northern Regional chairman and Regional Training Coordinator respectively. We also hold that the 4th Defendant was properly suspended but was however unlawfully reinstated by the 2nd Defendant. In conclusion we are of the firm hope that the Plaintiffs have successfully proved their case on the balance of preponderance and are thus entitle to all the reliefs as per the Writ of summons and the Statement of Claim. DEFENDANTS It was also held in the case of Ababio v. Akwasi III [1994-95] pt ii GBLR 774 by the supreme Court that, the burden of proof lies on a party who has raised issue essential to the success of his case and that the burden shifts only when the Plaintiff leads evidence in proof of his claim. See also section 14 of the Evidence Act, 1975 [NRCD 323]. My Lord, the burden is on the Plaintiff to prove his case by admissible and credible evidence. The Defendants carry no burden of proof. However weak their case may be, it would not strengthen the case of the Plaintiff. See part of holding (1) of the case of Barima Gyamfi and another v. Ama Badu [1963] 2 GLR 596. The Supreme court held that:- “In a claim made by a plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendant’s evidence may be, it cannot avail the plaintiff” Further, it is a legal principle that the Plaintiff must rely entirely on the strength of his own case and not on the weakness in the defence of his opponent. This general principle was re-echoed by Amua Saki J.A. (as he then was) in the case of Asare and Others v Appan II [1984-86] GLR 599. It is submitted that the Plaintiff has not been able to discharge the burden of proof to entitle them to the reliefs they are seeking. On the contrary, the Defendants have led admissible and credible evidence to justify their counter- claim. ISSUES FOR DETERMINATION My Lord, I propose to consider the following issues as I believe they are germane to resolving all matters in controversy in this suit in the context of the evidence led before this Court. a) Whether or not the purported suspension of the Plaintiffs by the 1st Defendant acting per the 2nd Defendant and a non-existent council of elders is null and void b) Whether or not the purported reinstatement of the 4th Defendant by the 2nd Defendant purported acting for and on behalf of the 1st Defendant is illegal and unconstitutional and thus null and void. EVIDENCE OF PLAINTIFF The Plaintiffs testified through the 1st Plaintiff who tendered in Exhibits A to H and PW1 who did not tender any exhibit. EVIDENCE OF DEFENDANTS The Defendant gave evidence by calling the 2nd Defendant who is the National President of the Association who also tendered in some exhibits. They also called the 4th Defendant to give evidence. My Lord we proceed to examine the issues. ISSUE (A) a) Whether or not the purported suspension of the Plaintiffs by the 1st Defendant acting per the 2nd Defendant and a non-existent council of elders is null and void. The defendants presented 2nd Defendant, Alhaji Mohammed Omas who is the National President of the Association. He tendered in Exhibit 5 which is a letter dated 2nd October, 2020 suspending the Plaintiffs from their respective positions in the association. The letter was signed by 2nd Defendant for an on behalf of the National Executive Council and co-signed by Nene John Awayitey (chairman of the council of Elders) for and on behalf of the Council of Elders. Paragraphs 5,6,7 and 8 of 2nd Defendant’s evidence-in-chief is reproduced below:- Paragraph 5 “I say that the Plaintiff’s forged the membership certificates of the 1st Defendant association with the scanned signature of the former president of the 1st Defendant, David Sebgefia and issued to members” Paragraph 6 “I say that it was on the basis of this illicit activities that the National Executives including my coordinator and the chairman of National Council of Elders invited the Plaintiffs via phone to appear before the National Executives to answer” Paragraph 7 “I say the Plaintiff refused to appear and rather resorted to insults of the leadership of the 1st Defendant Association” Paragraph 8 “I say that based on their refusal and the insulting conduct of the Plaintiffs that they were suspended as Regional chairman and the Regional Coordinating Director of the Association by the 1st Defendant Association” The following ensued when 2nd Defendant was being cross-examined: Q: And because the Plaintiff protested your illegal decision to reinstate the 4th Defendant, you wrote Exhibit G purposely to have suspended the Plaintiff as Regional Executives” A: No my Lord Q: Take a look at Exhibit 6 of your own Executive Council Constitution of the 1st Defendant Association. Kindly point to us which provision in the constitution creates council of Elders of the Association. A: Members of the Association call all of them Council of elders but the constitution calls them Advisory Board Q: Are you telling this honourable court that the Council of Elders and the Advisory Council are the same body? A: Yes my Lord, according to the constitution. My Lord, Article 16 clause B of the constitution of the association states that “There shall be established as ADVISORY council comprising all credible former national presidents and former regional chairpersons whose rich experience and advice may be needed from time to time to promote the interest of the association”. The clause makes the clear provision for the establishment of an advisory council and the association in implementing the provision establishes a body comprised of all credible former national presidents and former regional chairpersons just that they chose to call them the Council of Elders. The name Council of elders does not make it any different from the advisory board the constitution speaks of and for all intents and purposes, they are one and the same body. My Lord, the Plaintiffs were also given a fair opportunity to be heard when they were invited by the National Executives including the President, the Coordinator and the Chairman of the National Council of Elders to answer but they refused to appear and rather resorted to insults. It is trite learning with a plethora of cases that a person who had an opportunity to be heard but deliberately spurned it to satisfy his decision to boycott proceedings, could not later complain of any procedural irregularity as the party would be deemed to have waived any irregularity. In the REPUBLIC VRS HIGH COURT (HUMAN RIGHTS DEVISION) ACCRA, EX-PARTE AKITA (MANCELL EGALA & ATTORNEY-GENERAL INTERESTED PARTY) [2010] CGLR 372 AT 383 BROBBEY JSC it was held that “The argument that he was not heard on the motion should be summarily dismissed. This is because he was aware that the proceedings were to take place before the trial judge but he himself walked out of the proceedings because he was convinced that the court no longer had jurisdiction to proceed with the case. If he were minded to be heard, he could have been heard even if that meant going to the court to protest against the court continuing with the hearing. A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have proceeded without hearing him and then plead in aid the audi alteram pertem rule.” My Lord, it is submitted that due process was followed when the Plaintiffs were suspended from their respective positions. Plaintiffs cannot merely allege that they were not heard and that no National Executive Council meeting was held before they were suspended. They are required to lead admissible and credible evidence in proof of this averment as was held in the case of Majolagbe v Larbi [1959] GLR 190 that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness-box and reciting the averment on oath without adducing corroborative evidence. The corroborative evidence must be credible as was explained in Sabrama v Segbedzi (Supra) Plaintiffs tried to corroborate their claim by bringing PW1 to testify. We submit that both 1st Plaintiff and PW1 are not credible witnesses. My Lord, the law on the credibility of witnesses testifying in court can be found in Section 80(1&2) of the Evidence Act, NRCD 323 which is as below:- Attacking or supporting credibility (1) Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider a matter which is relevant to prove or disapprove the truthfulness of the testimony of the witness at the trial (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to (a) the demeanour of the witness; (b) the substance of the testimony; (c) the existence of non-existence of a fact testified to by the witness (d) the capacity and opportunity of the witness to perceive recollect or relate a matter about which the witness testifies; (e) the existence or non-existence of bias, interest or any other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness My Lord, in the case of Mensah V Donkor [1980] GLR 825 at page 830 where some of the impressions created by witnesses and their effects on the judge were stated as follows:- “The demeanor which actuated the impression must be expressed. It must be stated whether the witness was over-zealous on behalf of his party, exaggerating the circumstances, assuming an air of bluster and defiance ; answering without waiting to hear the question; forgetting facts where he would be open to contradictions; minutely remembering others which he knows cannot be disputed; reluctant in giving adverse testimony; replying evasively; pretending not to hear the question for the purposes of gaining time to consider the effect of his answer etc” 1st Plaintiff demonstrated that he was not a credible witness when the following ensued:- Q: Why were you suspended? A: According to the letter, there was no mention of any crime in it and the only quotation in the letter cannot be traced to the constitution. Q: Now per your Exhibit G a letter dated 2nd October, 2020, have a look at it. It stated several reasons why you were suspended and not one? A: The 1st award of certificates is the responsibility of the Regional Chairman. 2nd not paying national percentage to COTVET training examination. Those monies are paid to coordinators and I am one of them for coordinating and not paid to the national body. 3rd signing of Memorandum of Understanding outside institution stakeholders without any clearance from National Executives Committee which I have not done so they can prove it. Q: So then you were not being truthful when you said you were suspended because of one reason and not several? A: No, because this was a response to an earlier letter written by the Regional Executive Committee, the highest decision-making body in the region. From the beginning of the dialogue above, it is inconceivable that 1st Plaintiff would say the his letter of suspension which he himself Exhibited as Exhibit G did not mention his crime in it. When pressed further he read out the reasons for his suspension which totaled 8 offensive conducts. When confronted, he tries to be elusive by claiming that it was a response to an earlier letter written by the Regional Executive Committee when there is in actual fact only one suspension letter in evidence marked as Exhibit G. 1st Plaintiff further dented his credibility when the following ensued on page 5 of the ROP during his cross-examination: - Q: Now, you have never stood for any election in the association is that true? A: I was voted into office in 2016 after the formation of the Association in 2014. Q: You see you were appointed in 2014 as Regional Chairman for a tenure of 4 years A: I disagree Q: And when your tenure of 4 years expired, you refused to organize an election and caused agitation among members in the region? A: I disagree Q: In fact since you were appointed, no elections have been held for the Northern Region chairman? A: It was done in 2016 at Northern Cultural Centre Tamale. Q: You see no such elections have been held since your appointment? A: It was supervised by two former presidents Rev. Anquandah and David Segbefia Q: If there was any such thing it was an appointment and not an election A: It was an election and that is how it was done at the zonal and lower levels per the same procedure Q: If there was an election who did you contest with? A: it was an infant association and that was unanimously done cut out of the dressmakers association Q: So you now agree with me that there was no election? A: I disagree Q: Can you stand alone for an election? A: Yes my Lord if you do not have a contestant Q: So if you do not have a contestant, between you and whom are the electorate to elect? A: There was no electorate as a nobody was competent to stand and all the others went through this process. Then on Page 8 of the ROP. Q: Was it not in 2016 you were appointed chairman as you claim? A: I was voted into office in 2016 Q: But you earlier on agreed with me that there were no other contesting candidates or electorate, how then were you voted into office? A: The four candidates went unopposed i.e. Regional Manager, Vice Regional Manager, Treasurer and Training Officer and seven other people were appointed to make up the Regional Executive Committee and they were sworn in by the 1st President and the last Togbe Segbefia. Q: I am suggesting to you that if a candidate goes unopposed there is no election? A: The procedure they used in Tamale in 2016 was the same. It was an election. My Lord from the above, it is obvious that since the 1st Plaintiff was appointed as Northern Regional chairman, no elections have been held. It is preposterous for 1st Plaintiff to still insist that elections were held for his position although he admits there were no other contestants and no electorate. My Lord, it is submitted that 1st Plaintiff was over zealous and untruthful when he claimed that elections were held when he knew otherwise. PW1 on the other hand had this to say during his cross-examination on page 13 of the ROP:- Q: Apart from yourself, how many other executives do you have? A: We were three elected by the National Office. Q: I am suggesting to you that there are eleven national executives of the Association? A: Yes it is eleven, but before a meeting is convened the three of us have to meet. Q: And out of the eleven national executives, you are the only national executive who is here to testify against the Association? A: I am not the only national executive who is here to testify. Q: Which other national executive is here to testify? A: No one my Lord From the beginning of the dialogue above, it is inconceivable that PW1 claims that apart from himself there are only three other national executives. He later on makes a U-turn to agree that there were indeed eleven national executives. When pressed further he over zealously claims he is not the only national executive testifying against the association yet when asked to name such other executives, he is unable to do so. As submitted above, we invite you lordship to hold that Plaintiffs evidence is so discredited that they have not been able to prove that their suspension did not follow due process and was therefore null and void. ISSUE (B) a) Whether or not the purported reinstatement of the 4th Defendant by the 2nd Defendant purportedly acting for and on behalf of the 1st Defendant is illegal and unconstitutional and thus null and void. My Lord, the Constitution of the 1st Defendant association does not provide for the reinstatement of a suspended executive member. Therefore, the National Executive Committee being the highest decision-making body should have the mandate to reinstate a suspended executive member. Exhibit E which is a letter dated 9th June 2020 reinstating the 4th Defendant was signed by the 2nd Defendant for an on behalf of the National Executive Committee. The following ensued during the cross-examination of 2nd Defendant at Pages 18 and 19 of the ROP:- Q: Take a look at Exhibit E, you personally wrote and signed is that correct? A: Yes my Lord, because I am implementing authority for the council Q: You will agree with me that you have no evidence that the National Executive Council meeting was held to consider its decision of reversal of its suspension of the 4th Defendant? A: Yes, there was a National Executive Council meeting before that decision was taken and in addition I take advise from my predecessors and they gave me the go ahead to reconcile the two parties in the Northern Region and they prepared that 4th Defendant should write an apology letter and after that we should reinstate him which he did write and 1st Plaintiff was present at that council where the letter was presented. Then the 1st Plaintiff and other council members. Page 19 Q: Again you did not receive any letter from the Plaintiffs as Regional Executives recommending the suspension of the 4th Defendant? A: Yes my Lord, Article 4 and 5 f our constitution makes it clear that the autonomous body of the association is the congress and the implementing body of the National Executive Council which I am the leader of the Committee. The following ensued during the cross-examination of 4th Defendant at Pages 22 of the ROP:- Q: Are you aware that to be reinstated as an executive of the 3rd Defendant association you need the approval of the 1st Defendant Association (National Executive Council)? A: Yes I am aware Q: I put it to you that 2nd Defendant in this matter acted on his own without the National Executive Committee in appointing or reinstating you to your previous position? A: I disagree We respectfully invite your Lordship to hold that per the evidence adduced during trial, and for the fact that the Constitution is silent on the reinstatement of a suspended member, the letter of the 2nd Defendant dated 9th June 2020 reinstating the 4th Defendant was valid and of full effect. CONCLUSION It is our submission that on a balance of probabilities, the Defendants have made out their case vis-a-vis the Plaintiff who have failed to discharge the burden of proof placed on them to establish their claims. In the result, their action ought to be dismissed. The Defendants on the other hand are entitled to their counter-claim. IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT TAMALE ON MONDAY THE 10TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE EMMANUEL BART-PLANG BREW SUIT NO. NR/TL/E3/1/21 ABDUL RAHAMAN AWAL MOHAMMED & ANOR. VERSUS GHANA NATIONAL ASSOCIATION OF GARMENT MAKERS & 3 ORS. ===================================================================== ===== TIME: 9:29AM PARTIES: Plaintiffs/Applicants present Defendants/Respondents absent COUNSEL: Fr. Anthony Santah Witn Emmanuel Wadekuu Holding Brief For Sylvester Isang For Applicants Salisu Be Awuribe Issifu for Rashid Muhammed Mumuni for Respondents COUNSEL FOR APPLICANTS: My Lord before you is a motion on notice for stay of execution pending appeal. My Lord respectfully this court gave judgment in respect of this matter on the 16th day of April, 2024. The applicants are dissatisfied with the said judgment of the court and has since filed a notice of appeal against the judgment. My Lord we are of the opinion that if we do not stay execution of judgment, the respondents who has the opportunity to go into execution may carry out acts that would lead to the applicant’s suffering injustice an in-repairable damages. Respectfully my Lord we will not want an eventual judgment of the court of appeal to be rendered nugatory should the appeal succeed. It is our wish and proposal that instead of allowing the respondents to go ahead to have the elections conducted an interim committee can be put in plays to stair the affairs of the association in the time being pending the appeal because during the pendency of the appeal should the elections be allowed to be conducted the position of the appellants in the association might go forever by the time the appeal is heard. We think that putting in place an interim management committee will not cause or occasion any hardship or sufferings on the part of the respondents. My Lord we believe that our chances of the appeal is high and in the circumstance we pray that our application this morning is granted. Respectfully we submit. COUNSEL FOR RESPONDENTS: My Lord we are vehemently opposed to this application which is acting to commentary after match. My Lord this very competent court gave judgment in favour of the respondents. One of the key elements in the said judgment was the elections of the executives of the association in the Region and immediately after judgment the one week period had passed by law and the respondents’ association went ahead and competently conducted elections and elected executives. The respondents were only served with this process belatedly after the executives were even sworn in and have assumed office. So a judgment/debtor/applicant who now comes back with the intend of staltifying a validly conducted elections by a competent authority which had a judgment in this very court. So my Lord, the said application is a strenuous effort to undo what this very court had granted. So my Lord there is nothing executory again to stay and you can only stay something that is yet to be executed. But my Lord if they are on appeal we will meet them squarely to give them a double dose for the judgment of this court is not on ….. but purporzuted in law. My Lord so we believe that they have nothing to suffer and there is no injury whatsoever and therefore we are opposed to that stay. We humbly submit my Lord. IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE SITTING AT TAMALE ON FRIDAY THE 28TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE EMMANUEL BART-PLANGE BREW SUIT NO. NR/TL/E3/1/21 ABDUL RAHAMAN AWAL MOHAMMED & ANOR. VERSUS GHANA NATIONAL ASSOCIATION OF GARMENT MAKERS & 3 ORS. ===================================================================== ===== R U L I N G This Application for Stay of Execution emanates from the Plaintiffs/Applicants seeking to stall the Defendants from the judgment in their favour to be enforced pending appeal. COUNSEL FOR APPLICANTS: My Lord before you is a motion on notice for stay of execution pending appeal. My Lord respectfully this court gave judgment in respect of this matter on the 16th day of April, 2024. The applicants are dissatisfied with the said judgment of the court and has since filed a notice of appeal against the judgment. My Lord we are of the opinion that if we do not stay execution of judgment, the respondents who has the opportunity to go into execution may carry out acts that would lead to the applicants suffering injustice and an irreparable damages. Respectfully my Lord we will not want an eventual judgment of the court of appeal to be rendered nugatory should the appeal succeed. It is our wish and proposal that instead of allowing the respondents to go ahead to have the elections conducted an interim committee can be put in place to steer the affairs of the association in the time being pending the appeal because during the pendency of the appeal should the elections be allowed to be conducted the position of the appellants in the association might go forever by the time the appeal is heard. We think that putting in place an interim management committee will not cause or occasion any hardship or sufferings on the part of the respondents. My Lord we believe that our chances of the appeal is high and in the circumstance we pray that our application this morning is granted. Respectfully we submit. COUNSEL FOR RESPONDENTS: My Lord we are vehemently opposed to this application which is acting to commentary after match. My Lord this very competent court gave judgment in favour of the respondents. One of the key elements in the said judgment was the elections of the executives of the association in the Region and immediately after judgment the one week period had passed by law and the respondents’ association went ahead and competently conducted elections and elected executives. The respondents were only served with this process belatedly after the executives were even sworn in and have assumed office. So a judgment/debtor/applicant who now comes back with the intent of stultifying a validly conducted elections by a competent authority which had a judgment in this very court. So my Lord, the said application is a strenuous effort to undo what this very court had granted. So my Lord there is nothing executory again to stay and you can only stay something that is yet to be executed. But my Lord if they are on appeal we will meet them squarely to give them a double dose for the judgment of this court is not a fluke but purporzuted in law. My Lord so we believe that they have nothing to suffer and there is no injury whatsoever and therefore we are opposed to that stay. We humbly submit my Lord. Regarding stay of execution applications, the learned author and legal practitioner S.Kwami Tetteh at Page 926 of his precious Civil Procedure: A Practical Approach says and I quote, “A judicial decision takes effect upon its delivery. It does not lose efficacy because it is appealable or appealed but remains final, conclusive and enables an action to be brought on it. It is therefore no defence to an action brought on a judgment that an appeal against the judgment is pending. An erroneous, not void, decision is voidable and enforceable by execution while the appeal is pending”. Execution of a judgment may be stayed by the operation of the Rules or by Court Order. NRD Corporation V. Haruna [1989-90] 1GLR 340 @ 344. Upon hearing both counsel for the parties the Motion for grant of Stay of Execution of the judgment sought by the Plaintiffs/Applicants is granted as prayed for upon terms that the Applicants request for an interim Management Committee is untenable to restrain the association vis a vis the interests of a thousand plus membership. My reasons for the grant upon deposit is premised on the fact that stay of execution is a discretionary order which must not deprive the successful party of the fruits of his victory. Again Plaintiffs’ mere dissatisfaction with the judgment delivered in favour of Defendants and filing notice of appeal are not material, and they can pursue their appeal expeditiously. Application granted but interim committee is untenable and not warranted. (SIGNED) EMMANUEL BART-PLANGE BREW (HIGH COURT JUDGE) COUNSEL: Sylvester Isang for Plaintiffs/Applicants Rashid Muhammed Mumuni for Defendants/Respondents