QUANSAH vs. TETTEH AND ANOTHER [1993]DLCA4890

Date	1993-06-03
Suit No.	[1992-93] 2 G B R 910 – 914
Citation No.	[1993]DLCA4890

ESSIEM JA

AMUAH JA

LUTTERODT JA

E B ODURO FOR THE APPELLANT.

L OTOO FOR THE RESPONDENT.

[1993]DLCA4890
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													<main id="main" class="content" style="min-height: 60rem" >QUANSAH<o:p></o:p>vs.<o:p></o:p>TETTEH AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93] 2 G B R 910 – 914&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 3RD JUNE 1993<o:p></o:p>

L
OTOO 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">

</div>LUTTERODT JA. <o:p></o:p>On
5 May 1992, the plaintiff-appellant through her solicitors issued a writ
against the two defendants for the following reliefs:<o:p></o:p>“(a) A declaration that plaintiff is a
shareholder of the 2nd defendant company;<o:p></o:p>(b) A declaration that the purported
re-distribution of shares reducing plaintiff’s shares from 500 to 100 was
irregularly and fraudulently done and accordingly null and void and of no legal
effect;<o:p></o:p>(c) An order setting aside the purported
reduction of plaintiff’s shares in the 2nd defendant company from 500 to 100.<o:p></o:p>(d) An order for the valuation of the
2nd defendant company, for plaintiff to be paid off the value of her shares in
the said company.”<o:p></o:p>On
being served with the writ, the defendants caused their solicitors firstly, to
enter conditional appearance on their behalf and followed it with a motion for
the transfer of the suit from Cape Coast to Accra. The main ground on which the
application was founded was that both defendants resided and carried on
business in Accra. Additionally, it was said of the 2nd defendant that it had
its registered offices in Accra. Their complaint therefore was that the action
had been commenced in the wrong forum.<o:p></o:p>The
plaintiff-appellant vehemently opposed the application and deposed to the fact
that contrary to the defendants’ contention, none of them either lived or
carried on business in Accra. Furthermore, she alleged that the 2nd defendant’s
registered offices were not in Accra. The learned trial judge nevertheless
upheld the objection and ruled that the case ought to be heard in Accra.
Consequently he adjourned the matter sine die and conveyed his findings to the
Chief Justice to enable him effect the necessary transfer. It is against these
findings that the plaintiff has appealed to this court on two grounds, which
are closely allied to each other, one of them being the well-known omnibus
ground, “the ruling is against the weight of evidence”.<o:p></o:p>I
shall deal with the first ground of appeal which reads as follows:<o:p></o:p>“The trial judge erred in finding that
the 1st defendant was resident in Accra whilst the 2nd defendant carried on its
business and had its registered office in Accra in the light of the records of
the Registrar-General’s department before the trial court.”<o:p></o:p>Before
I do so however I should like to comment on a step taken by the respondents’
counsel in these proceedings. He was not in court when this appeal came up for
hearing. He was however, upon an application brought by him on the date judgment
was to be delivered, granted leave to submit his reply to appellant’s counsel’s
argument in writing.&nbsp; One of the things
that he did was to attach the writ of summons and a letter as exhibits A and B,
which never formed part of the record in the court below.<o:p></o:p>This
court, being a court of record, the parties are bound only by the evidence both
oral and documentary tendered at the trial court. It is therefore manifestly
wrong for the respondents’ counsel to attempt to smuggle into the record
documents which were never tendered at the trial and which therefore never
formed part of the issues the court was called upon to try. In the
circumstances, I never took them into account in considering counsel’s
argument.<o:p></o:p>The
argument of the appellant’s counsel on the ground quoted above is that at the
trial they never admitted that the 1st defendant lives in Accra or even that
Accra is the principal place of business of either defendant.<o:p></o:p>It
was submitted that in view of the weightier evidence led by the plaintiff-appellant
in contradistinction to the defendants-respondents’ bare assertion supported by
a mere letter-headed sheet, the learned judge erred in holding that the 1st
defendant was resident and carried on business in Accra and the 2nd defendant
had its registered offices and carried on business in Accra.<o:p></o:p>I
think in fairness to the learned judge that at the hearing of the motion, he
appreciated the matters in controversy between the parties. This is why he was
quick to point out that the appellant had denied the defendants’ contention
that they lived in Accra. In actual fact, her affidavit in opposition clearly
showed that she disputed the&nbsp; allegation.<o:p></o:p>It
is rather unfortunate that elsewhere in his judgment the learned trial judge
said the following:<o:p></o:p>“The plaintiff has not disputed that
in actual fact the 1st defendant does not reside in Cape Coast and it appeared
certain that the plaintiff admits the first defendant lives in Accra but was
only arguing on the basis of the company’s regulations.”<o:p></o:p>I
think what led to these unfortunate errors is the tenor in which the
depositions were couched. I refer particularly to paragraphs 3 and 4 which read
as follows:<o:p></o:p>“(3) That I am opposed t</main>