FRED AFFUL & CO. LOSE COURT OF APPEAL CASE AGAINST EAST DADEKOTOPON DEVELOPMENT TRUST LED BY ITS CHAIRMAN, NII KWADE OKROPONG I
The Court of Appeal on 16th December, 2021 dealt a severe blow to Fred Afful aka. Fredmann Afful, aka. Nii Obour Fred Afful and his cohorts who have been holding themselves out as Trustees of EAST DADEKOTOPON DEVELOPMENT TRUST and alienating the Trust lands.
It may be recalled that on Thursday April 20,2017 the La Mantse Nii Kpobi
Tettey Tsuru III and some two persons Nii Adjei Kofeh IV and Nii Benjamin Kojo Yemoh holding themselves out as members of the La Traditional Council and Settlors of the East Dadekotopon Development Trust published in the Daily Graphic that since 2006 no Trustees had been appointed to the Trust and so they had appointed some eight (8) persons as the new Trustees of the East Dadekotopon Development Trust (EDDT) with effect from March 2017.
Upon the publication Nii Adjei Boahen II, the Nmati Abonase Mantse (who led the Nmati Abonase Quarter in Suit No. L 353/97 that led to the formation of the East Dadekotopon Development Trust and the Chief who executed the Trust Deed of 10th April, 2002 on behalf of the Nmati Abonase Quarter) caused a Rejoinder to be published in the Daily Graphic of May 23, 2017 denying the false publication by the La Traditional Council and confirming that the Trust had a duly constituted Board of Trustees led by Nii Kwade Okropong I, it’s Chairman.
Other major stakeholders in the Trust such as the Kowe Quarter and the Abese Quarter of La (the two Quarters that by custom provide the occupant of the La Stool) all came out denying and denouncing the false publication by the La Traditional Council and confirming that there was indeed a Board of Trustees led by Nii Kwade Okropong I. Indeed, even Nii Benjamin Kojo Yemoh who was alleged to be a signatory to the said false publication came out in the Daily Graphic of 21st April, 2017 distancing himself from the said publication.
On 28th April, 2017 the Trust led by its Chairman Nii Kwade Okropong I and the incumbent Trustees sued the La Traditional Council and the three (3) personalities that claimed to have appointed new Trustees, as well as the eight (8) persons they alleged to have been appointed, in the High Court, Accra in Suit No. LD/0487/2017 titled:
“East Dadekotopon Development Trust … Plaintiff
No.7 Otswe Street
Ako Adjei Park
La-Accra Vs
1. La Traditional Council
2. Nii B. K. Yemo
3. Nii Adjei Koofeh Iv
4. Nii Kpobi Tettey Tsuru Iii
5. Samuel Sowah Oblejuma
6. Jerry Oddoye
7. Israel Gonti Adjei … Defendants 8. Enoch Addo Sowah
9. Joseph Nii Odoi Mensah
10. Andrew Nii Odoi Yemo
11. Nii Obuor Fred Afful
12. Robert Okpoti Mensah
13. Lands Commission “
In the Suit, The East Dadekotopon Development Trust (EDDT) claimed the following reliefs among others;
“ (i) A declaration that the La Traditional Council has no lawful authority to appoint the Trustees of the East Dadekotopon Development Trust.
A declaration that the purported appointment of the 5th to 12th Defendants as Trustees of the East Dadekotopon Development Trust as published by the 1st Defendant in the Daily Graphic of Thursday, April 20th, 2017 is null and void and of no effect whatsoever.
An order directed at the Defendants from holding themselves out as Trustees or the lawful authority to deal with the East Dadekotopon Development Trust lands situate behind the Ghana International Trade Fair in any way.
An order declaring void any contract, lease or title documents executed by the Defendants in respect of the said Trust lands, etc.
On 8th June, 2017, Lawyer Amarkai Amarteifio, the lawyer for the 1st, 4th to 12th Defendants filed a Motion for an order striking out the pleadings in the Plaintiff’s Statement of Claim and dismissing the action. The Trust filed an affidavit in opposition challenging the competence of the motion and vehemently denying the allegations of the Plaintiffs. On 21st June, 2017, the 3rd Defendant Nii Adjei Kofeh IV, filed his defence to the action, through his lawyer, Paul K. Opoku in which he admitted some of the allegations of the Trust, denied others and made counter allegations against the Trust.
In a Ruling of the High Court delivered on 31st July, 2017, His Lordship Amo Yartey J. held that the Plaintiff Trust lacks the capacity to institute the suit and therefore dismissed the action without going into the merits of the case.
Being dissatisfied with the decision of Amo Yartey J, the Trust appealed to the Court of Appeal on 11th August, 2017 on a number of grounds which stated, among others, that:
“(i) In view of the documentary evidence on record that the plaintiff Trust has been duly incorporated under Act 106 with perpetual succession and the right to sue and be sued in its corporate name the learned judge committed an elementary and fundamental error of law by holding that the plaintiff has no capacity to bring the action.
The learned judge committed a grievous error of law when he bluntly
refused to follow the decision of the Supreme Court on the capacity of the
Trust to sue and be sued in its corporate name as determined in the case
of the Republic vs. Court of Appeal Ex Parte East Dadekotopon
Development Trust, the Director of Survey (Interested Party) – Suit No.
J5/39/2015 (unreported).
In the light of the serious and controversial issues raised by the parties in the pleadings and processes filed the learned judge committed a fundamental error of law by dismissing the action in limine”.
In the judgment delivered by the Court of Appeal on 16th December, 2021 (Suit No. H1/79/2021), the Honourable Justices of Appeal namely, Senyo Dzamefe J A (Presiding), P. Bright Mensah J A and Jennifer Dodoo J A, upheld the appeal of the Trust and set aside the decision of Amo Yartey J dated 31″ July 2017 as a nullity in law.
In coming to the above conclusion, the Court held among others, as follows:
“Our conclusion is that the learned trial judge certainly did not adopt the best practice or the appropriate approach when it dealt with the application. In consequence, he fell into a serious error of law when the trial judge summarily dismissed the claim of the appellant. To begin with, instead of the learned trial judge adopting the well-established principles as stated supra, he regrettably chose to raise the issue of capacity of the plaintiff suo motu, and summarily dismissed the claim when the application placed before him was anchored on Order 11 r 18 (1) of CI 47. In other words, the learned trial judge pursued a course of procedure that denied a party to the cause the right to be heard See: Pobee, Tufuhene Elect of Apam v Yoyoo [supra].
We need to add that the process by which an issue of capacity of a party may be raised for consideration and determination is quite different from the process and the perimeters set out in Order 11 r 18 (1) of C I 47.
The lower court pursuing a course of procedure the parties never anticipated, the effect was that it did not give the appellant the opportunity to be heard on the issue of its capacity to sue. Without giving hearing to the appellant before summarily dismissing the claim, the lower court was in serious breach of the rules of natural justice, the audi alteram partem rule. On the authority of R v Bolgatanga High Court; Exparte Hawa Yakubu [2001-2002] SCGLR 53 the decision of the lower court that has culminated in the instant appeal is a nullity and a fertile ground to be upset on appeal.
Next, the lower court brazenly refused to apply the well-established principle of stare decisis to the case.
The main fulcrum around which the lower court based its decision to dismiss the suit was that the East Dadekotopon Development Trust has to be incorporated every four [4] years or that its mandate has to be renewed every four years to enable it continue in existence or sue and be sued. However, this is not borne out of the record. In any event, the issue whether or not the East Dadekotopon Development Trust can sue and be sued had earlier in time been settled by the Supreme Court in a ruling in the case, The Republic v Court of Appeal; Exparte East Dadekotopon Development Trust, [Civ. App. No. J5/39/2015 delivered 30/07/2015 (unreported). Being a question of law, the High Court was bound to follow it and apply it to the instant case. For, per Article 129 (3) of the 1992 Constitution, the decision of the Supreme Court was binding on the High Court. Insofar the case turned on interpretation on Ss.1 and 4 of the Trustees (Incorporation) Act, 1962 [Act 106] the decision of the Supreme Court handed down in The Republic v Court of Appeal; Exparte East Dadekotopon Development Trust [supra] was a question of law that the lower court had no discretion in the matter but to apply it. It was therefore palpably wrong for the lower court to have refused to apply it to the facts of the case before it. Regrettably, it rather decided to follow the decisions of the High Court, a court of co-ordinate jurisdiction which was only of, a persuasive nature, to hold that the appellant has no capacity to sue. That was indeed a serious foundational error the lower court committed.
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Having regard to serious issues raised in the pleadings that could be resolved only by viva voca evidence, we uphold the submissions that the learned judge committed a fundamental error of law when it granted the application and dismissed the case in limine. See: Lartey & Lartey v Beany [1987-88] 1 GLR 590”.
The Court of Appeal concluded its judgment in the following manner:
“Overall, we are of the considered opinion the appellant has made sufficient case invoking our jurisdiction to interfere with the exercise of judicial discretion the lower court in the instant appeal. The appeal succeeds. Consequently, we allow the appeal, set aside the ruling of the High Court [Land Court], Accra and all its consequential orders delivered in this case.
Justice, they say, must not only be done but must be seen to be done.
Given the circumstances under which the application was handled and the costs the lower court awarded, we think to do substantial justice in the matter we recommend to the Honourable Chief Justice to exercise his prerogative powers to cause the case to be transferred from that particular court and put it before another court, which we hereby do. Appellant’s costs assessed at Ghc10,000”.
Meanwhile information and documents in the possession of the victorious Trustees show that since the delivery of the Amo Yartey Ruling of 31st July, 2017, the Trust lands have been recklessly dissipated through the unlawful alienation of public roads, parks and reservations in the carefully planned and approved layout of the Trust estate. The Trust lands have also been unlawfully and clandestinely cheaply alienated to some public servants and politically exposed persons with the hope of getting their support and protection and escaping accountability. In some cases the prime Trust lands have even been fraudulently exchanged with second hand vehicles by persons who have never even owned a bicycle! In all these the incomes have been diverted into private pockets and NOT EVEN ONE CEDI paid into the Trust Accounts at the La Community Bank!
The GENERAL PUBLIC, especially, beneficiaries and victims of these fraudulent transactions are therefore advised to obtain copies of the Court of Appeal judgement of 16th December, 2021 and advise themselves accordingly.
NII KWADE OKROPONG I EMMANUEL ODOI YEMO
CHAIRMAN EXECUTIVE SECRETARY
