November 28, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, coram A. B. Poku-Acheampong J.A. (author), with A. M. Domakyaareh J.A. and S. K. A. Asiedu J.A. agreeing, affirmed a Kumasi Circuit Courts dismissal of Ash-Town Presby Co-operative Credit Unions suit against its former Manager and the executor of its late Treasurers estate. The Union had sought recovery of GH2,574.89 and interest, alleging an audit revealed unlodged funds and a subsequent promise to repay. On appeal, the Court held that Section 45 of the Cooperative Societies Act, 1968 (NLCD 252) requires disputes touching the business of a registered society to be referred first to the Registrar. It found the 1st Defendant, though pro bono, was a nominee within Section 45(1)(b), and no exceptional circumstances justified bypassing the statutory domestic forum. The court further rejected the constitutional referral argument because Section 45(7) had been omitted by Statute Law Revision and adopted by Parliament. Consequently, the jurisdictional objection prevailed, and the appeal failed.
POKU-ACHEAMPONG, J.A.:
This is an appeal against a judgment of a Kumasi Circuit Court dated 20th November 2019.
Background:
The Plaintiff a Credit Union formed by the Ash-Town Presbyterian Church, Kumasi and known as Ash-Town Presby Co-operative Credit Union was in the business of providing financial services to its registered members including collecting savings and granting loans.
On 19/10/2017 the Plaintiff issued a writ against the Defendants jointly and severally claiming the following reliefs:
1. Recovery of the sum of Seventy One Thousand, Five Hundred and Seventy Four Ghana Cedis, Eighty Nine Pesewas (GH¢71, 574.89)
2. Interest on the above sum from 26/06/17 till date of final payment.
Case of the Plaintiff
The Plaintiff’s case is that the 1st Defendant was the Manager in charge of its business operations in Kumasi. The 2nd Defendant was the executor of the estate of Kofi Koduah, deceased, who during his lifetime was the Treasurer of Plaintiff’s Credit Union.
According to the Plaintiff a major function of the Defendants as Manager and Treasurer of the Cooperative Credit Union was to receive monies from members of the Union and deposit such monies received into the Plaintiff’s account with its bankers.
Plaintiff avers that an audit of its accounts for the 2015-2016 financial year revealed that the 1st Defendant and the late Kofi Koduah had failed to lodge an amount of GH¢71,574.89 into the Plaintiff’s account with the bank.
The two were queried about the said amount and according to Plaintiff they admitted liability for the shortfall and undertook to pay the amount to Plaintiff.
Plaintiff’s case is that the two were then asked to submit to the Plaintiff’s Board of Directors a payment plan. They failed to do this and also failed to honour their promise to repay the amount.
After several demands and efforts to recover the said amount had been unsuccessful the Plaintiff instituted this action.
1st Defendant’s case
The 1st Defendant denied the claim of the Plaintiff. His case was that as a member of the church with accounting background he was prevailed upon by a former Minister (Pastor) of the church to assist the operations of the Credit Union. He was thus offering voluntary services to the credit union. He offered pro bono services to the Union as a nominee of the church to the Union. He was never engaged as a formal employee or a paid employee of the Credit Union.
He offered policy advice and guidance to the Credit Union and never