CHRISTOPHER A. MENSAH vs. G.K. OBIRI AND 2 ORS. [2000]DLCA6688

Date	2000-05-04
Suit No.	CIVIL APPEAL NO.: 6/98.
Citation No.	[2000]DLCA6688

BADDOO JA (PRESIDING)

ANSAH JA.

GBADEGBE JA.

DR. SETH OWUSU FOR THE APPELLANT

MR. AMARKAI AMERTEFIO FOR THE RESPONDENT

[2000]DLCA6688
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													<main id="main" class="content" style="min-height: 60rem" >CHRISTOPHER A. MENSAH<o:p></o:p>vs.<o:p></o:p>G.K. OBIRI AND 2 ORS.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO.: 6/98.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 4TH MAY
2000<o:p></o:p>

MR.
AMARKAI AMERTEFIO FOR THE RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>GBADEGBE, JA. <o:p></o:p>The
judgment of the court was read by Gbadegbe J.A. at the invitation of Baddoo J.
A. <o:p></o:p>My
lords, the question with which we are concerned in these proceedings in my view
turns upon the determination of a simple question which may be posed thus: Was
the Applicant/Respondent entitled to be allotted the l0% shares contained in a
special resolution by the 3rd Defendant/Appellant company dated 3rd August
1986? There is no doubt that this question essentially was the main plank of
the controversy at the trial with the other reliefs dependent upon its
resolution in that it raised the question whether the applicant (respondent
herein) was a member of the said company within the intendment of Section 30 of
the companies Code, Act 179? <o:p></o:p>At
the trial, while the applicant contended that he was, the respondent contended
to the contrary. At the end of the trial, the learned trial judge in his
delivery, the subject matter of these proceedings, made a determination in
favour of the respondent herein that he was entitled to the title in the said
shares and further ordered that the respondent issue him with a share
certificate in respect of the said shares. Following the said delivery,
appellant lodged on onslaught against the judgment by filing a notice of appeal
to this court on the following grounds: <o:p></o:p>(1)&nbsp; that the judgment was against the affidavit
evidence tendered by the parties. <o:p></o:p>(2)
The judge erred in law by giving judgment for the applicant/respondent when the
whole case was based on estoppel contrary to the well-established rule that no
cause of action can be founded on estoppel. <o:p></o:p>(3)
The learned trial judge wrongly shifted the burden of proof on the
respondent/appellant. <o:p></o:p>I
wish first of all to refer to the submission urged on us by the appellants
through their counsel on the issue of estoppel; I think that the said point
actually missed the real nature of the applicant's case. It would appear that
the use of the word estoppel was in relation to the denials of the appellants
of their own prior acts one which arises in the realms of evidence, the effect
of which is that a party is precluded from denying the bounden effect of his
prior acts. I think that although much time and effort was put in the
submissions on the said point, it is clear from a careful reading of the entire
proceedings that the action which originated before the trial court by means of
a notice of motion was not based on estoppel but rather the unequivocal acts of
the company the effect of which if I understand the respondent's case is that,
the appellant cannot having regard to the consequences which the law places on
them be enabled to reside therefrom. Accordingly, the point based on the said
estoppe is dismissed as a misconception. I hope that in dismissing the said
ground in comparatively few words, I shall not be taken to be disrespectful to
the arguments submitted to us on the same. <o:p></o:p>I
now turn to the main issue for determination in these proceedings and have come
to the view that the judgment of the trial judge, the subject matter of this
appeal was right in all the circumstances of the case. As stated earlier on,
the main point which fell before the trial court to decided was whether the
respondent herein was entitled to the shares allotted to him by the special
resolution of the company dated 3rd August 1986? In considering this question
in my opinion, it is important to consider the subsequent steps taken on the
said resolution. In particular the following acts may be noted. <o:p></o:p>(1)
the filing of CAM1, a copy of the special resolution registered under section
176 of the companies code, <o:p></o:p>(2)
the filing of Exhibit CAM2 under section 43 of the companies code by which the
alteration in the shareholding of the company was notified to the Registrar of
companies, <o:p></o:p>(3)
the filing of CAM 3, an alteration in the stated capital of the company under
section 66 of the companies code. <o:p></o:p>These
acts were all statutory steps taken under the companies code and filed before
the Registrar companies on 3rd August 1987 the regularity of which has not been
raised either in this court or the court below. In my thinking, by their
combined effect, the title of the respondent herein to the shares allotted to
him was completed and he was therefore at the date when he made a demand on the
respondents to have the share certificate issued to him right in so doing. As
can be discerned from the authorities on the issue of allotment and the same
subsequently entitling the allottee to the issue of the shares, what is
important is to look at the intention of the parties from the surrounding
circumstances of the case. Indeed in the Ghanaian case of Conte v. Kpeglo
[1964] GLR 643 311 Ollennu JSC (as he then was) quoting from SPITZEN v. CHINESE
CORPORATION LTD. (1889) 80 LT 347 @ 351 had this to say at 315: <o:p></o:p>"In the first place, I have to
consider what meaning is to be attached to these words (allotment and issue).
First of all, what is on allotment of shares? Brooding speaking, it is on
appropriation by the directors or the managing body of the company of shares to
a particular person. The legal effect of the appropriation depends on the
circumstances.&nbsp; Thus it may be an offer
of shares to the a</main>