IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
GBEVE SAMUEL AND ANOTHER - (Plaintiff)
NATIONAL PENSIONERS ASSOCIATION (SSNIT) - (Defendant)
DATE: 12 TH JULY, 2018
SUIT NO: E12/9/2017
JUDGES: (SGD) N. C. A. AGBEVOR JUSTICE OF THE APPEAL COURT
MR. AGBAKPE FOR PLAINTIFFS
MR. EKOW DADSON FOR DEFENDANTS
The Plaintiffs issued this writ for:
i. An order of this Court directed at the 2nd Defendant to stop any further deduction from the Plaintiffs' allowance for the purpose of Pensions Medical Scheme.
ii. An order of this Court directed at the 1st Defendant to refund all moneys collected from the Plaintiffs for the purpose of Pensions Medical Scheme.
iii. Cost including legal fees.
Plaintiffs claim they are pensioners on the Social Security and National Insurance Trust (SSNIT) living in the Central Tongu umbrella body coordinating the affairs of SSNIT pensioners throughout the country and 2nd Defendant a statutory body. Plaintiffs are members of the Defendants association and that all members of Defendant association in Adidome have subscribed to the National Health Insurance Scheme. It is Plaintiffs case that they received their monthly pensions for SSNIT (2nd Defendant) who they authorized to deduction GH¢1.00 each month to the paid to 1st Defendant association. In 2013 1st Defendant proposed to set up a Pensions Medical Scheme to be funded by deductions from member's monthly allowances. Plaintiffs claim they opposed the said deductions which they said they will not subscribe to. However, since 2013 the 2nd Defendant has been deducting GH¢4.00 from their pensions each month and paying to the 1st Defendant for the Pensions Medical Scheme, which Plaintiff refused to be members of. It is their case that despite several protestations the Defendants still deduct the monthly dues hence this writ. In the defence of 2nd Defendant they admit deduction of GH€4.00 “as additional dues from each member since February 2014” to refund a medical scheme for the members of the 1st Defendant. Second (2nd) Defendant says that since the agreement to deduct these dues, it has not received any advice to stop the deductions from the pensions of members of Adidome branch.
Counsel for 1st Defendant filed a conditional appearance praying this Court to dismiss Plaintiffs suit on ground that the action was commenced in the wrong forum. Counsel for 1st Defendant then filed a motion on notice to strike out Plaintiffs writ under Order 2 and 3 on grounds that:
a) The writ of summons is fundamentally defective and or void.
b) The action was commenced at the wrong forum
c) Plaintiffs lacked capacity to commence the action.
The Court thus proceeded to receive the written submissions of both Counsel.
Counsel for Plaintiffs Mr. Emile Agbakpe submitted that Plaintiffs are members of the National Pensioners Association (NPA) of Adidome with its umbrella body (NPA) SSNIT Pensioners deducting various sums from Plaintiffs pension under the guise of establishing a health Insurance Policy for them. The Plaintiffs, he submitted opposed this arrangement because the National Health Insurance Policy was already in place which was brought to the attention of the Defendants. This was reason for the instant action. On the issue of the writ being fundamentally defective Counsel submit that applicants failed to convince the Court without giving reasons.
On the second ground that the writ was commenced in the wrong form Counsel referred to Order 3
Rule (1)5 of C.1. 47 that:
“All other causes or matters shall be commenced in the region in which the Defendant resides or carries on business".
He contended that it would be a travesty of justice to accept that the case is in the wrong forum when Defendants admit they carry on business in Ho and other parts of the Volta Region. Counsel drew an analogy with the existence of the Attorney General's Office, the Ghana Police Service and other state institutions could only be sued in Accra citing the case VOLDEN VRS. GOLDFILDS (1999/2000) 1 GLR 462. On capacity of Plaintiffs’ Counsel stated the Plaintiffs are suing in two capacities - for themselves and for and on behalf of Adidome Pensioners Association of (SSNIT). Counsel further submitted every natural person has the right to sue for himself if his rights are violated. In the submissions on behalf Applicant/1st Defendant to dismiss the writ on legal grounds Counsel contended that the grounds got o the root of summons. On capacity of Plaintiffs to institute this action, Counsel says Plaintiffs lack capacity to commence this action. Where the capacity is challenged Counsel submitted the party claiming the capacity shall prove that capacity citing the cases of:
a) FOSUA & ADU POKU VRS. DUFIE (DCD) AND ADU POKU MENSAH (2009) SCGLR 310
b) ASANTE APPIAH VRS. AMPONSAH ALIAS YAA MANSAH (2009) SCGLKR 90.
Counsel submitted the Plaintiffs failed to describe the nature of their capacity or authority in the body of the statement of claim and this rendered the statement of claim void and must be struck out. According to Counsel Plaintiffs claim they hold a power of attorney marked “Exhibit A” which is defective on the basis that:
The Adidome SSNIT PENSIONERS ASSOCIATION does not exist
The power of attorney does not clothe Plaintiffs to litigate on behalf of the donors
The power of attorney has not been attested to by witnesses
The power of attorney purports to give power to only one person.
Counsel contends that because the Power of Attorney is incurably defective it could not have clothed the Plaintiffs with any form of capacity to institute and action as it only said "take the necessary steps for the refund of monies deducted” and therefore Plaintiff cannot imply any other power. It is also their case that the principal Adidome SSNIT Pensioners Association does not exist – see Exhibit EA1 because it has not been registered as a legal entity citing KOWUS MOTORS VRS. CHECK POINT GH LTD & ORS (2001) SCGLR 320 at 233 and Francios J. A. as he was in EDUSEI VRS. DINERS CLUB SUISSE S.A (1982-83) GLR 809 CA at 814. Counsel continued that the law was clear that an incorporated members club could not sue or be sued in a clubs' name - INTERIM EXECUTIVE COUNCIL VRS. INTERIM EXECUTIVE (COMMITTEE OF THE APOSTOLIC DIVINE CHURCH (1984-86) GLR 529 and in NAOS HOLDING INC. VRS. GHANA COMMERCIAL BANK (2005-6) GLR 407 at 412. The Court held that:
"Once its legal status was challenged and its corporate capacity was placed into issue, it was incumbent upon the Appellant to produce more cogent evidence of its existence............"
On forum Counsel is relying on ORDER 3 R 1(5) that the instant action ought to have commenced in the region in which they carry on business which is the Greater Accra Region and not where its branches do business.
Counsel submitted that the following authorities are binding on this Court in this case.
1. EDWARD ASANTE-APPIAH VRS. AMPOSAH ALIAS YAA MANSAH (2009) SCGLR 90
2. FRIMPONG AND ANO VRS ROMIE (2013) 58 GMJ 131 at 155.
Counsel for suit to be struck out.
The following facts are not in doubt in these pleadings:
Plaintiffs are pensioners living in the Adidome Central Tongu District.
They are pensioners on the Social Security and National Insurance Scheme receiving monthly pensions.
1st Defendant are an Association of all pensioners on SSNIT throughout the country.
2nd Defendant is the statutory body which determines and pays workers' pension.
There is a National Health Insurance Scheme of which Defendants are members.
That on behalf of the pensioners the 2nd Defendant makes a deduction of GH¢1.00 per month which it pays to the National Health Insurance Scheme.
Capacity of plaintiffs
There is no doubt that a party to an action ought to have and or prove his capacity in the case of the Plaintiff to institute the action. Where the capacity is challenged the said party must prove his capacity as a primary issue - see FOSUA AND ADU POKU VRS. DUFIE AND ADU POKU MENSAH (2009) SCGLR 310. It is Defendant's query that Plaintiff has failed to endorse and plead his capacity in the writ and this renders the writ void and same to be struck out. Defendants also contend that the plaintiffs are in Court as holders of a power of attorney to litigate in this action and the various queries against the power of attorney make it defective. This Court holds a different view on these:
First the writ reads in its title
“1. GBEVE SAMUEL
2. OLAS ANTHONY ABUSA
Suing for themselves and on behalf of Adidome
Pensioners Association (SSNIT)".
Plaintiffs describe themselves in paragraph 1 of their statement of claim as:
“The Plaintiffs are pensioners on the Social Security and National Insurance Trust (SSNIT) living in Central Tongu District".
These descriptions clearly identify the Plaintiffs as the persons instituting the action.In Order 4 Rule 3 of C. I. 47 it is provided
3(1) Subject to rule 4 of this Order two or more persons may be joined together in the same action as
Plaintiffs or as Defendants without leave of Court where:
(a) If separate actions were brought by or against each of them, some common question of law or fact would arise in all the actions and
(b) All rights to relief claimed in the action whether they are in respect of or arise out of the same transaction or series of transactions.
The Court may make such other order as may be just. (see Order 4 Rule 4). Plaintiff commenced the instant action as pensioners of SSNIT who have contributed to the SSNIT pension scheme.
In prosecuting this suit Plaintiffs have not come by a power of attorney until their affidavit in opposition to striking the suit for the:
Writ being fundamentally defective
Action commenced in the wrong forum
Plaintiffs lacked capacity to commence the action.
It is the opinion of the Court that this writ would not be functional even without a power of attorney.
The Court of Appeal in SAFO VRS. SACKEY (2011) 3GNJ 31 CA was of the opinion that the power of Attorney Act 1998 (Act 549) does not prescribe when and where not to appoint an agent by the use of a power of attorney and that “implied authority of the agent is a natural consequence of the express authority granted. It is implied from what is actually manifested to the agent by the principal. I will to distinguish this case from the SAFO case in that:
1. Sections 1(1)(2) of the Act requires that a power of attorney be signed by the donor, done and at least one or two witnesses. Here no donor has signed the power of attorney.
In the circumstances the power is defective and therefore void. Defendants also object to the forum in which this writ is issued. It is their case that Order 3 R 1(5) of C. I. 47 requires that “All other causes or matters shall be commenced in the Region in which the Defendant resides or carries on business”. They claim 1st and 2nd Defendants reside in Accra and both carry on business in Greater Accra Region and that is where the Plaintiff ought to have brought this action. They dispute that the fact that 1st Plaintiff has branches in each region the action can be brought in a region.
In objecting to this ground the Plaintiffs claim that since the Defendants operate through their agencies in the regions and that Defendants never denied this, the writ is properly before this Court in Ho. In Order 3 Rule 1(5) of C. I. 47 it is provided: -
"All other causes or matters shall be commenced in the region in which the Defendant resides or caries on business”.
Without importing absurdity in interpretation of this provision and avoiding and travesity of justice, this Court holds that the Plaintiff carries on business in the Volta Region and therefore the writ is property filed in High Court, Ho.
Having held that the writ is not properly before the Court for lack of capacity, the action is struck out.