<p class="mb-5" id="contentDlCitation" hidden>[2004]DLHC7380</p> <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" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; color:#00B0F0">AHMED ASUNKAR.<i><o:p></o:p></i></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:6.0pt;text-align:center; line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; color:#00B0F0">MR. MOHAMMED OSMAN ZANYA, MRS. RAHINATU OSMAN AND OZANYA LIMITED<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">[HIGH COURT (AUTOMATED FAST TRACK), ACCRA]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt; padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><b><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">FTC 36/2003 </span></b><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif""> DATE: 28<sup>TH</sup> JANUARY 2004<o:p></o:p></span></p> </div><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: 115%"><b><span style="font-size:12.0pt; line-height:115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: 115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">VICTOR OFOE, J. SITTING AS JUSTICE OF THE HIGH COURT<o:p></o:p></span></p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt; border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none; padding:1.0pt 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">JUDGMENT<o:p></o:p></span></b></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The 1st defendant got the plaintiff, then living in Japan, to remit to him certain monies meant to be plaintiff's share in the 3rd defendant's company. It turned out that the plaintiff was not known in the 3rd defendant's company at all either as a shareholder or director. Apart from these monies plaintiff sent a further $6000 to the 1st defendant for construction of a house for the plaintiff. This according to plaintiff was also not to be. The plaintiff is therefore in Court claiming as per his writ of summons. I will quote the reliefs sought:— <o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">1 An Order for the recovery of the sum of U$49,700 or its equivalent in cedis being monies had and received for consideration which totally failed. <o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">2. Interest on the said amount from the respective dates of payment at the prevailing commercial bank rate till date of payment. <o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">3. An Order directing the 1st defendant to account for the use of the sum of $6000 paid to him for the commencement if construction works on plaintiffs dwelling house" <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">What is plaintiff's case on the pleadings? It is that 1st defendant is a husband of 2nd defendant and during the period of stay of the plaintiff in Japan 1st Defendant also lived and worked in Japan. The 3rd defendant company is a limited liability company having the 1st and 2nd defendants as Directors holding 500,000 shares each. The company was incorporated in 1993. Somewhere in 1994 he met the 1st defendant who told him he has plans to invest in a nail factory under an already existing company, Zanguma Limited now the 3rd defendant. After discussions in the said business it was agreed he should pay certain monies representing his capital contribution that shall qualify the plaintiff as a Director and shareholder of the said company. Arising out of this understanding he paid various sums to the 1st defendant totally U$49,700 either directly to the 1st defendant name as beneficiary or in the names of 2nd defendant and one Hayford Gyabaa-Aboagye all to the benefit of 1st and 3rd defendants. It is the case of the plaintiff that whatever monies he sent either to the 2nd defendant or the said Gyabaa-Aboagye were on the instructions of the 1st defendant. Even though the 1st Defendant by a letter of the 17th March, 1997 assured the plaintiff that the necessary changes in shareholding would be made to reflect Plaintiff's 50% shareholding of the 3rd Defendant Company, nothing of the nature was done. And even though Plaintiff's name was never added as a Director of the 1st Defendant Company, letters written by the 1st Defendant to the Plaintiff showed Plaintiff's name at the bottom column of the letterhead intended to deceive Plaintiff unto believing that he was a Director of 3rd Defendant Company. Plaintiff therefore considers all the representations made to him by the 1st Defendant as false and deceitful only to lure him to pay the $49,700 in a project the Plaintiff was not intended to have a share whatsoever. As regards to $6,000 paid to the 1st Defendant for the commencement of a dwelling house, on his return Plaintiff realize that only a foundation had been done without platform. 1st Defendant should be ordered to account for the $6000 since the work so far done on this land can be quantified. Plaintiff's pleadings concluded that out of this amount paid to the 1st Defendant, 1st Defendant had so far admitted $35,000. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The Defendant offered by the Defendant is that it is true that Plaintiff made certain remittances but they were only 10 remittances and meant for the benefit of the 3rd Defendant Company's investment for which the Plaintiff expected some investment. 1st Defendant never benefited anyway from these investments. As regards the change to be effected at the Registrar General's Department to include Plaintiff name as a 50% shareholder, this was to be done on Plaintiff's arrival in Ghana but on Plaintiffs arrival and seeing that the factory had gone out of production he decided to resile from the deal and demanded his refund. According to Defendant, Plaintiff was aware that even though his name reflected on the letterhead this was to be formalized on his return. To the Defendant, the Plaintiff contributed in the running of the company even though in Japan. He is therefore a shadow Director and a Creditor of the Company and know of the financial difficulties of the company. Defendants contend further that even though the Plaintiff name does not show as a shareholder of the 3rd Defendant company he is a fully paid up member and a creditor and all that is left is for the change to be effected at the Registrar General's Department. Plaintiff has transacted business with the 3rd Defendant Company and not the 1st and 2nd Defendant who are only Directors of the company. If Plaintiff is no more interested in the company he as a creditor of the company can recover his investment. Defendants case on the pleadings continue that it is not even all the remittances that were meant as investment in the 3rd Defendant Company. Some were for relatives of the Plaintiff and not for investment in the 3rd Defendant Company. What are some of these remittances meant for Plaintiff relatives use? Defendant pleads them from paragraph 15 to 20 of their defence. These are $1200 was paid to the Plaintiff's mother for the Hajj pilgrimage. 1st and 2nd Defendant on the instruction of the Plaintiff fed, clothed, accommodated and educated Plaintiff's sister at a total cost of $16,000. Defendant denies having admitted any amount of $35,000. On the $6000 meant for the beginning of the construction of dwelling house Defendant by their paragraph 27 of the Plaintiff averred that the amount in cedis came to ¢8,806,380 at a conversion rate of ¢1,467.73 per $1. Files on the project has been taken away by the plaintiff amongst other files and he has refused to return them. Defendants are therefore also counterclaiming for <o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">"(a) Recovery of an amount of $16,000 on it equivalent in cedis at the prevailing rate of exchange being outstanding arrest of rents, cost transport, school fees, stationery and clothing etc. from Amina the sister of Plaintiff and other amounts paid to relatives of the Plaintiff for and on behalf of and upon instructions from the Plaintiff while he was in Japan. <o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">(b) Interest on the said amount of $16,000 at the prevailing commercial bank lending rate with effect from January 1996 up to an inclusive date of repayment. <o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Plaintiff offered a reply to the defence. Plaintiff contends that all documents with Defendants made available to him for his study he returned to the</main>
