OLEGOR AND OTHERS VRS. ASETENAPA CO-OPERATIVE COCOA FARMING AND MARKETING SOCIETY LTD AND OTHERS (C2/17/2024) [2024] GHAHC 487 (13 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) SITTING AT KOFORIDUA ON THURSDAY, THE 13TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP NANA YAW GYAMFI FRIMPONG, J. SUIT NO. C2/17/2024 ABDUL-KARIM OLEGOR & 5 ORS. PLAINTIFFS/RESPONDENTS ALL OF SUHUM, EASTERN REGION H/NO. M. 145 FISHPOND NEW ACHIMOTA, ACCRA VRS. ASETENAPA CO-OPERATIVE COCOA DEFENDANTS/APPLICANTS FARMING AND MARKETING SOCIETY LTD AND 2 OTHERS JUDGMENT INTRODUCTION The main issue in this application is whether Plaintiffs complied with Section 45 (1) of the CO-OPERATIVE SOCIETIES ACT, 1968 (NLCD. 252). In this ruling, the Plaintiffs shall be referred to as Respondents and the Defendants as the Applicants. BACKGROUND Prior to the institution of this action, the Respondents and five (5) others were members of the Asetenapa Co-Operative Cocoa Farming and Marketing Society Ltd., (the 1st 1 Defendant/Respondent herein) until by a letter dated 25th October, 2023 they were suspended indefinitely from the Association. To confirm the suspension, Applicants wrote a letter the same day to the 1st Respondent asking him to hand over a tricycle belonging to the Association which was in his possession. The basis for the suspension are some complaints Respondents levelled against the 1st & 3rd Applicants in respect of decisions taken on behalf of the 1st Applicant which Respondents considered as oppressive because they were in violation of the Constitution and the bye-laws of the 1st Applicant. These complaints included changing the decision of the Executive Board of the 1st Applicant to award a contract of constructing a 6-Unit Classroom Block for the New Alema Community to Silverbird Construction Limited instead of Emmawood Company Limited; conducting General Elections against an agreement at the ADR at the Legal Aid Commission, Koforidua not to do so until allegations against 1st & 3rd Applicants were resolved. Not satisfied with these developments, Plaintiffs and four (4) other members petitioned the Registrar of the National Co-operative to investigate those allegations they have levelled against the 1st & 3rd Applicants but according to them, they got no response from the Registrar after a long wait which prompted the instant action that has resulted in this application. FACTS The facts in the instant application are that the Respondents after exhausting the internal mechanism of the 1st Applicant to resolve the complaints have failed, petitioned the Registrar of the National Co-operative to resolve the matter in compliance with Section 45 (1) of the CO-OPERATIVE SOCIETIES ACT, 1968 (NLCD 252). According to the Applicants, while waiting for the outcome of their petition, the Respondents instituted the instant action which violates the law because having referred 2 the matter to the Registrar of the National Co-operative for investigations, they were bound to wait for the outcome of the investigation before they could institute any action in Court to seek the remedies endorsed on their writ of summons. Applicants are therefore saying that not having exhausted this procedural requirement, which is a condition precedent, Respondents’ action is premature and should be dismissed as averred in paragraph 11 the affidavit in support of this application as follows: Paragraph 11 “That I am further advised by Counsel and I verily believe the same to be true that “Plaintiffs/Respondents ought to exhaust the procedure for settlement of disputes contained in (N.L.C.D. 252) before they can proceed with this matter.” In effect, the Applicants are saying that, not having complied with this condition precedent, Respondents’ action cannot invoke the jurisdiction of the Court so they were not entitled to come to Court to seek redress for their complaints. The Respondents on the other hand in opposing the application are saying that the petition is no longer pending before the Registrar. From the facts of this application, it is clear that the parties do not disagree that there are real disputes between the Respondents and 1st & 3rd Applicants on one hand and the 1st Applicant on the other, and that the issues involved and having regard to the reliefs being sought by the Plaintiffs in the substantive case come within the definition of Section 45 (1) (a), (b) & (c) of N.L.C.D. 252. Section 45 of NLCD 252 with the Heading, Settlement of disputes which provides: (1) A dispute touching the business of a registered society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society, shall be referred to the Registrar for decision by the Registrar, where it arises 3 (a) between a member, past member or a person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or a servant of the society, (b) between the society or its committee and an officer, agent or a servant, or past officer, agent or servant or a nominee, successor or legal representative of a deceased officer, deceased agent, or deceased servant of the society, or (c) between the society and any other registered society. The Applicants do not also deny that the Respondents as members of the 1st Applicant have referred the matter to the Registrar of the Co-operative Societies to be resolved in accordance with the 45(1) of NLCD 252. In fact, paragraphs 9 &10 of their affidavit in support of this application states the following: Paragraph 9 “Plaintiffs/Respondents have referred the said dispute to the Registrar of the Co-operative Societies and same is pending before him” paragraph 10 “That I am further advised by Counsel and I verily believe the same to be true that the Registrar of the Co-operative Societies is mandated by the provisions of the Co-operative Societies Act, 1968 (N.L.C.D. 252) to first determine the dispute between the parties.” The Applicants also admit that Respondents exhausted all the internal mechanisms provided in the bye-laws of the 1st Applicant before referring the matter to the Registrar. This is captured in Respondents’ Exhibit “COP 2” as follows: “After exhausting all our constitutional provisions on the said matter, the former still had the courage to petition the Registrar of the Co-operative whose directives held our operations to ransom till we briefed him about everything that had transpired, and a Special General Meeting was held on 24/08/2023, where the Financial Secretary was elected, and the leadership handed over to the new board members.” 4 The Respondents are however saying that, the Registrar could not resolve the matter and are also accusing him of being in collusion with the Applicants by giving them the green light to hold the meeting in which the Respondents and the five (5) other members were suspended. The main issue to be decided in this application is whether the petition the Respondents referred to the Registrar for his decision has been resolved so as to conclude that the matter or petition is no longer pending before the Registrar or the complaint is still before the Registrar. In paragraph 11 of their affidavit in opposition filed on 15th January, 2024, Respondents deposed to these facts: Paragraph 11 “In a memorandum accompanying an invitation to a Special General Meeting issued by the 1st Defendant/Applicant Company dated 19-10-23, to pass a resolution to remove some ten (10) members (including Plaintiffs/Respondents herein) indicated that the Registrar of the Co- operative Societies has given the 1st Defendant/Applicant the green light to call a Special AGM to pass a resolution to suspend and/or remove the Plaintiffs/Respondents from the 1st Defendant/Applicant Company. I have attached the letter of invitation to the Special AGM (see the highlighted portion and marked as Exhibit “COP 2”. From this deposition, it is clear that Respondents have canvassed three grounds, why to them, the matter or petition is no longer pending before the Registrar; 1. that though some members of the 1st Applicant petitioned the Registrar of the National Co-operative Societies, but, to use their own words, “they have not heard anything from him”, 2. the subsequent event after the matter has been referred to the Registrar and 3. the conduct of the Registrar are indications that the matter is no longer pending him. But before I deal with these grounds, let me address a legal point raised by Counsel for the Applicants in his submissions. According to Counsel, the Respondents did not 5 produce any evidence to substantiate their claim but relied on the evidence of the Applicants being paragraph 26 of the statement of defence and their Exhibit “COP 2”. Counsel has therefore submitted that Respondents are relying on the weakness of Applicants’ case rather than building their case on the strength on their own evidence and referred to the case of ODAMETEY v. CLOCUH AND ANOTHER [1989-90] 1 GLR 14. The position of the law was that a Plaintiff who seeks a declaration of title to land must succeed on the strength of his case and must not rely on the weakness of the case of the defendant. In the above cited case, Taylor, JSC. traced the history of this principle which was stated by Webber CJ. in the West African Court of Appeal on 18th June, 1935 deprecated in Kodilinye v. Odu (1935) 2 W.A.C.A. 336 when he said at page 337 as follows: “The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not rely on the weakness of the defendant’s case. If this onus is not discharged the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So, if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.” This position was followed by the Court of Appeal in the ODAMETEY v. CLOCUH per Edward Wiredu, J.A. (as he then was) who delivered the leading judgment based on which he dismissed the appeal. His lordship Taylor, JSC. criticised the continued mechanical application of this so-called principle in actions for declaration of title in the light of the coming into force of the Evidence Decree, 1975 (N.R.C.D. 323). 6 His lordship then referred to the case of RICKETTS V. ADDO [1975] 2 GLR 158 where Amissah, JA. explained at pg. 166, the true ambit of the application of the principle as follows: “The burden of persuasion which a plaintiff has to satisfy in every civil case is no more than proof on a balance of probabilities. In a trial involving title to land like any other civil trial, therefore, if the defendant’s case is measured against the plaintiff’s and the plaintiff’s is found more probable, a determination which necessarily involves the balancing of the strength and weakness of the rival claims, the plaintiff’s case has to be accepted. In the assessment of claims, the judge will have to examine the weakness of the defence just as he has to examine the weakness of the plaintiff’s claim. The legitimacy of the exercise or of the plaintiff’s assistance to the Court in highlighting these weaknesses cannot be questioned.” His lordship again referred to the case of NARTEY V. MECHANICAL LLOYD ASSEMBLY PLANT LTD. [1987-88] 2 GLR. 314, S.C., Adade, J.S.C. where presiding over the Supreme Court was more explicit on the true province of the Kodilinye v. Odu principle. In a dictum with which His lordship said he entirely agree, said at 344 without confining the principle to declaration of title: “It is true that a person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he fails. But that is not to say that having succeeded in establishing some case, he cannot take advantage of conflicts, admissions and other weaknesses in the defendant’s case.” It can be seen from this case that not only does this principle acknowledge that the Plaintiff can rely on the weakness of the case of the Defendant, but it also extends it to all cases brought by a party to Court and not only declaration of title to land. His Lordship Taylor, JSC. then held in ODAMETEY v. CLOCUH holding (1) as follows “the present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief, then he could not rely 7 on the weakness in the defendant’s case to ask for relief. If, however, he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any weakness which tended to support the plaintiff’s claim, then in such a situation the plaintiff was entitled to rely on the weakness of the defendant’s case to strengthen his case... It was therefore wrong for the Court of Appeal to rely on the strength and weakness criteria mentioned in the Kodilinye principle without ascertaining whether the plaintiff did or did not make a case even if it was a weak one, having regard to the fact that it was only when a plaintiff failed completely to make a case that the principle would apply.” I am therefore, based on this exposition by the learned Justice of the Supreme Court on this principle of law, unable to agree with Counsel for the Applicants that the Court must not consider the response of the Respondents to the application because they have refereed to and relied on paragraph 26 of the statement of defence and their Exhibit “COP 2” of the Applicants. What Counsel is saying is that, in a Court of law, such as in our adversarial system of litigation, if a party introduces evidence into the case which strengthens the case of his opponent, that party is not entitled to rely on it because it came from his opponent since that would be relying on the weakness of his opponent. Coming back to the main issue, it can be seen from the deposition and Exhibit “COP 2”, their first reason for coming to Court is that they have not heard anything from Registrar after referring the matter to him. The Respondents however did not provide any evidence as the basis for their claim. Section 45(1) of (N.L.C.D. 252) which deals with referring disputes to the Registrar did not provide any time frame within which any dispute or disputes referred to him should be disposed of. Such provisions may have been provided in the bye-laws or Constitution of the 1st Applicant by virtue of S. 8 of the Act which deals with such matters. But not only did Respondents not attach a copy of the bye-laws or Constitution of the 1st Applicant, they were completely silent about any such time lines. The Respondents did not also provide any evidence that they wrote a reminder to the Registrar to enquire from him the state of their petition and as to why they were not hearing from him. 8 Subsection 4 (b) of Section 45 (1) empowers the Registrar to also refer a matter that has been referred to him to an arbiter to be appointed by him. The said Section provides: (4) The Registrar may, on receipt of a reference under subsection (1) (a) decide the dispute, or (b) refer it for disposal to an arbitrator appointed by the Registrar. Thus, since the Registrar can refer the matter to an arbiter, which would require time for the arbiter to reach a solution and get back to the Registrar, the Respondents should have at least, written a reminder to the Registrar to enquire from him the state of their petition as to why they were not hearing from him and not just sit down and later say because they could not hear from him, take it that the petition was no longer pending him. The second ground is the subsequent event after the matter has been referred to the Registrar. By subsequent event, Respondents are referring to Special General Meeting called by the 1st & 3rd Applicant where elections were conducted and a New Board Members inaugurated which are also mentioned in Exhibit “COP 2”. Again, the Respondents did not provide any evidence by the Bye-laws, Regulations or Constitution of the 1st Applicant to show that no such meetings or elections could not be held while a petition was pending before the Registrar. The third ground is a complaint about the conduct of the Registrar. As deposed in paragraph 11 of their affidavit in opposition, the Respondents said there was a memorandum accompanying the invitation to a Special General Meeting issued by the 1st Defendant/Applicant indicating that the Registrar of the Co-operative Societies gave the 1st Applicant the green light to call a Special AGM to pass a resolution to suspend Respondents. This memorandum was however not attached to their affidavit to confirm what they are saying. This is important because Respondents are saying in paragraph 11 of their affidavit in opposition that by that memorandum, the Registrar instructed his 9 subordinates and agents to attend and supervise a Special Annual General Meeting the meeting; Paragraph 11 “That I am further advised by Counsel and I verily believe the same to be true that even if the matter was subjugating before the Registrar, his subsequent conduct prejudices the matter and same disqualifies him from further hearing the matter. Thus, whilst the matter was pending before the Registrar, he instructed his subordinates/Agents-Eastern Regional and Suhum municipal directors respectively, to attend a Special Annual General Meeting of the 1st Defendant/Applicant Company to suspend the Plaintiffs/Respondents from the Co-operative. I have attached a copy of the suspension letter and marked as Exhibit “COP 3” I have read the entire Act and I do not see any provisions to the effect that meetings of the 1st Applicant can only be called by the Registrar or at his directions. The Act, in Section 8 leaves those issues to be incorporated in the bye-laws of the 1st Respondent which per the evidence before this Court is S. 50 of 1st Respondent’s bye-laws. The Respondents did not submit a copy of the bye-laws so the Court is not in a position to know how meetings of the 1st Applicant are conducted, for instance, that, the Registrar is not supposed to have anything to with the meetings of the 1st Applicant by instructing his subordinates and agents to attend the meetings of the 1st Applicant as members or in whatever capacity. Clearly, Respondents have not been able to substantiate the allegations against the Registrar. But even if these allegations are true, it would go into the merit of the case as to whether the actions of the 1st & 3rd Applicants were legitimate but does not answer the question whether the petition is still pending before the Registrar. Besides, Exhibit “COP 2” is signed by one Agyenim Boateng, described as a Secretary, without stating whether he is a Secretary to the Registrar of Co-operatives Societies or Secretary to the 1st Respondent. Thus, Exhibit “COP 2” is not a conclusive proof that the Registrar of Co-operatives was the one who instigated that meeting. 10 As Counsel for the Applicants rightly puts it; “The Registrar is mandated to determine matters referred to him and so if he fails to do his duties provided by law, there are legal steps to be taken to compel him to do his work.” The Respondents have not been able to provide evidence that the complaints they referred to the Registrar have been determined and are therefore no longer pending before him. The Respondents may disapprove of the acts and conducts of the Registrar but that does not translate into a rejection of the petition by him. He may also be accused of dereliction of duty but as Counsel for the Applicants rightly said, there are legal remedies available to the Respondents to compel the Registrar to do his work under the Act. It is trite law that where the law or an agreement provides for a condition precedent to be complied with before a party can commence an action in the normal Courts, that condition cannot be ignored. The Respondents complied with this provision under 45(1) of NLCD 252 by referring the matter to the Registrar of Co-operatives Societies but in so as that matter was not determined and was still pending before him, it could not be said that that condition precedent has been complied with to entitle Respondents to commence this action. In the case of BCM GHANA LTD V ASHANTI GOLDFIELDS LTD [2005-06] SCGLR 602, Adinyirah, JSC said at page 611 as follows; “The Courts must strive to uphold dispute resolution clauses in agreement, which I consider to be sound business practice” In the case of THE REPUBLIC VRS HIGH COURT, TEMA EX-PARTE MY SHIPPING PVT LIMITED AND DEE JONES PETROLEUM & GAS LTD & 3 Ors. TROMOS SHIPPING CO. LTD (INTERESTED PARTIES) [2011] 1 SCGLR 237; His Lordship Annin Yeboah, JSC (as he then was) was of the view that the Applicant was right in invoking Section 40(1) of the Arbitration Act, Act 38 of 1961 to ask for stay of proceedings of the 11 action because Respondents failed to comply with an arbitration but dismissed the appeal that the objection was not raised timeously. In fact, in that case the Applicant raised the issue of the arbitration clause after application for directions had been taken. This means, the Courts have not hesitated to stay proceedings where a condition precedent has not been complied where the right conditions are met. CONCLUSION In the circumstance, I will conclude that once the Respondents by their petition have referred the matter to the Registrar, they ought to allow him to determine same or get a response that he was unable to resolve it in compliance with the law before they can institute an action before this Court for their complaints to be addressed in accordance with the law. I will set aside this writ but make no order as to cost having regard to the relation between the parties and the circumstance of this case. NANA YAW GYAMFI FRIMPONG, J. JUSTICE OF THE HIGH COURT COUNSEL: 1. D.C. HAMMOND, ESQ. FOR DEFENDANTS/APPLICANTS 2. COLLINS DANSO, ESQ. FOR THE PLAINTIFFS/RESPONDENTS 12