ASAFU-ADJAYE AND OTHERS vs. AGYEKUM [1985]DLCA841

Date	1985-07-25
Suit No.
Citation No.	[1985]DLCA841

EDUSEI JA

EDWARD WIREDU JA

OSEI-HWERE J.A.

J. K. AGYEMAN (WITH HIM AGYEMAN BEMPAH) FOR THE APPELLANTS.

K. OHENE-AMPOFO FOR THE RESPONDENT.

[1985]DLCA841
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ASAFU-ADJAYE AND OTHERS <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 382<o:p></o:p>

DATE:
25 JULY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. K. AGYEMAN (WITH HIM AGYEMAN BEMPAH) FOR THE
APPELLANTS. <o:p></o:p>

K. OHENE-AMPOFO FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

EDUSEI, EDWARD WIREDU AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere J.A.
delivered the judgment of the court. The genesis of Asakum Engineering and
Construction Co. Ltd. remains a matter for speculation before us, just as it
was before the court below. For the applicant-respondent (hereinafter referred
to as the respondent) deposed in his affidavit that he is a founding member of
the said company and that he has been a director and shareholder ever since its
incorporation. This is not wholly accepted by the respondent-appellants
(hereinafter referred to as the appellants). In the affidavit filed on their
behalf they say that except for his being one of the first directors of the
company the respondent was neither a founding member nor a shareholder at its
inception but that after the company had commenced business he became a member
and was allotted 500 shares. According to the same affidavit, at the inception
of the company on 27 November 1971 there were only two member shareholders,
namely the first and third appellants, with 500 shares each, and both of them
together with the respondent were the first directors.<o:p></o:p><o:p>&nbsp;</o:p>The
answers to these conflicting claims could have been supplied by the company’s
regulations. But these were never placed before the court. However, the
company’s annual returns for 1974 shows that the members are the first and
third appellants as well as the respondent, each holding 500 shares. The
directors named are the first appellant, the fourth appellant and the
respondent. The 1979 annual returns which were also placed before the court
show a dramatic change in the membership of the company and the shareholding.
The first appellant was stated to hold 11,000 shares; the third appellant 1,000
shares; the respondent 3,000 shares; the sixth appellant (but properly speaking
a non-appellant as he was never served with the respondent’s motion and
therefore took no part in the proceedings) 3,000 shares; the fifth appellant
(also a non-appellant) 1,000 shares; and the second appellant, 1,000 shares.
The directorship of the company, at the same time, was augmented by the addition
of the sixth appellant.<o:p></o:p><o:p>&nbsp;</o:p>Sometime
in 1979 the respondent became an executive director of the company and was put
in charge of their Weija Irrigation Project contract whilst the managing
director (the first appellant) held direct responsibility for their Weija New
Water Treatment Works contracts W/4/CE and W/4/L. Both the respondent and the
first appellant, we were told, are engineers with individual specialisations.
There were misunderstandings between the two concerning the management and
operations of the company which exploded in an open confrontation in 1983. The
respondent, on his part, gave full vent to his grievances in the letter he
wrote in August 1983 which he addressed to the managing director (exhibit A).
On 30th November 1983, a notice was circulated calling for a shareholders’
meeting on Friday, 6 January 1984. An item on the agenda was to pass a
resolution removing the respondent as a director. This fuelled the dispute and
excited the respondent to rush to court for redress. Wherefore the respondent
brought his motion under sections 217 and 218 of the Companies Code, 1963 (Act
179), praying the court below for:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) an
order of injunction restraining the said company, its directors, Mr. George
Kofi Asafu-Adjaye (managing director), Mr. James Bafour Boakye Asafu-Adjaye,
Mrs. Mary Anobea Asafu-Adjaye, Mr. E.P. Kyei, Mr. Boafo Ohene Asante and
alleged secretary, Mrs. Juliana Theophilia Asafu-Adjaye, from holding
shareholders’ meeting proposed for 6 January 1984, or any meeting; and (2) an order
declaring that the affairs of the said company are being conducted in a manner
oppressive to the applicant and other shareholders of the said company and for
any further order or orders as to the court may seem fit.”<o:p></o:p><o:p>&nbsp;</o:p>The gist
of the respondent’s complaints adumbrated in his supporting affidavit is that
(a) the company had held only one meeting since its inception; (b) the
company’s affairs were not run on business lines; (c) </main>