OWUSU KYENKYENHENE vs. J. K. ADU [2003]DLSC2392

Date	2003-03-05
Suit No.	CIVIL APPEAL NO. 16/2001
Citation No.	[2003]DLSC2392

ACQUAH J.S.C. (PRESIDING)

ATUGUBA J.S.C

ADZOE J.S.C

BADDOO J.S.C

DR. TWUM J.S.C

MR. KOFI ADDO FOR APPELLANT.

MR. FRANCIS KOFFIE FOR RESPONDENT.

[2003]DLSC2392
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >OWUSU KYENKYENHENE<o:p></o:p>vs.<o:p></o:p>J. K. ADU<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 16/2001<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">

DATE:
5TH MARCH, 2003.<o:p></o:p>

MR.
FRANCIS KOFFIE FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ACQUAH,
J.S.C. (PRESIDING), ATUGUBA, J.S.C., ADZOE, J.S.C., BADDOO, J.S.C., DR. TWUM,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ADZOE,
J.S.C.<o:p></o:p>This
is an appeal against the unanimous judgment of the Court of Appeal dated 14th
December, 2000 affirming an award made by the trial High Court at Kumasi on
22nd January, 1999. This High Court Judge made the award pursuant to his own
previous order for the valuation and sharing of the assets and liabilities of a
school owned jointly by the parties. The appellant contends that the properties
of the school had not been “professionally or otherwise valued” before the
award was made by the High Court and that the Court of Appeal was wrong in
affirming the said award.<o:p></o:p>The
dispute between the parties was primarily about the ownership of a school
established in Kwadaso, Kumasi, in the Ashanti Region and called the Minnesota
International School. It was originally established by four men in 1982. In
1984, two of the four founders decided to quit, and the parties herein were
left to run the school as joint owners. The plaintiff in the suit is the
appellant before us and the defendant is the respondent. I shall hereafter
refer to them as Appellant and Respondent. They were the two left behind to run
the school. They entered into a partnership agreement and registered the school
in their joint names as owners.<o:p></o:p>The
appellant became the Headmaster of the school, and the Respondent took the
office of Financial/Administrative manager, up to 1992.<o:p></o:p>Troubles
started in about 1992 when, according to the appellant, the respondent refused
to render accounts and claimed to be the sole owner of the school.<o:p></o:p>When
matters came to a head, the appellant sued the respondent on 10th May, 1994 at
the High Court in Kumasi, claiming a “declaration that the plaintiff and the
defendant jointly own” the school.<o:p></o:p>The
trial High Court Judge gave judgment for the appellant and held that the
parties jointly owned the school and that they owned it “in equal shares based
on the capital contribution of ¢50,000.00 each” as provided in the partnership
agreement. Exercising his discretion under Order 63, rule 6 of the High Court
(Civil Procedure Rules, the learned judge made the following order:<o:p></o:p>“Furthermore,
I hold that the assets and liabilities of the parties were to be shared in
equal proportions.<o:p></o:p>From
the evidence above it is quite clear to me that the parties cannot continue to
operate as a partnership at will and order that the partnership be wound-up and
the assets and liabilities of the partnership shared as provided for under
clause 8 of Exhibit I”.<o:p></o:p>Exhibit
I is the partnership agreement. In order to ensure a fair sharing of the and
liabilities the learned High Court judge further made an order that:<o:p></o:p>"The parties are to appoint
competent experts to evaluate the assets and liabilities and same be
distributed to the parties in equal shares under the supervision of the
court".<o:p></o:p>There
is no evidence in the record of proceedings that any valuation of the
"assets and liabilities" of the school was ever made by
"competent experts" appointed by the parties as envisaged by the
court's order.<o:p></o:p>A
valuation properly so-called demands of the valuer to find out the reasonable
value of the tangible assets involved in the exercise. There must be clear
evidence that each property was valued at a price which it would have fetched at
the time of the valuation on a sale in the open market between a notional buyer
and a notional seller; the open market in the present case may be confined to
Kumasi or the Ashanti Region since the properties are in Kumasi. In a case like
the one before us where a valuation is needed for the particular purpose of
having the total value of the assets shared equally between the parties, I
consider that any valuation must be transparent and prima facie fair.<o:p></o:p>In
the instant case, however, there is absolutely no evidence of a valuation. The
school's Accountants, Messrs M.A. Darko &amp; Co. filed before the court on
29th September, 1998, what purported to be financial statements of the school,
which statements are clearly not valuation reports. Prior to the financial
statements Nii Quaye-Mensah &amp; Associates on 17th November, 1997 had also
filed what they themselves labelled an "Inventory". This
"Inventory" merely listed certain properties allegedly owned by the
school and did not place any value on them.<o:p></o:p>The
appellant even took objection to the "Inventory" for reasons that (i)
it did not reflect the school's accounts, (ii) it included the defendant's own
Peugeot Pick-up which was not the property of the school and (iii) that it did
not include text-books and science equipments of the school. This protest by
the plaintiff was contained in an affidavit filed before the court on 18th
November, 1997.<o:p></o:p>Before
the 20th of November, 1997, the Registrar-General had been appointed as the
Trustee and official Liquidator. On 17th November, 1997, one Mr. Joseph
Tamakloe, an officer of the Registrar-General's Department, acting on behalf</main>