PETER OSEI ASSIBEY vs. ADEHYEMAN GARDENS LTD & OR [2004]DLSC2400

Date	2004-12-01
Suit No.	CIVIL APPEAL NO. J4/24/2004
Citation No.	[2004]DLSC2400

ATUGUBA J.S.C. (PRESIDING)

MISS AKUFFO J.S.C

MRS. WOOD J.S.C

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C.

FRANK YANKEY FOR PLAINTIFF/RESPONDENT/RESPONDENT.

TANKO AMADU FOR DEFENDANTS/RESPONDENTS/APPELLANT.

[2004]DLSC2400
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													<main id="main" class="content" style="min-height: 60rem" >PETER OSEI ASSIBEY<o:p></o:p>vs.<o:p></o:p>ADEHYEMAN GARDENS LTD &amp; OR<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/24/2004<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: 1ST DECEMBER, 2004.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANK
YANKEY FOR PLAINTIFF/RESPONDENT/RESPONDENT.<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">

TANKO
AMADU FOR DEFENDANTS/RESPONDENTS/APPELLANT.<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">

ATUGUBA,
J.S.C. (PRESIDING), MISS AKUFFO, J.S.C., MRS. WOOD, J.S.C., DR. DATE-BAH,
J.S.C., PROF. OCRAN, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;SOPHIA A. B. AKUFFO, J.S.C. <o:p></o:p>&nbsp;In this judgement the
Plaintiff/Appellant/Respondent herein will be referred to as ‘the Respondent’,
and the Defendants/Respondents/Appellants will be referred to as ‘the
Appellants’. The 1st Appellant will also be referred to as ‘the Company’. <o:p></o:p>The
brief facts underlying this appeal are that the Company was incorporated
sometime in April 1991 as a limited liability company with 1,000,000 shares of
no par value. Exhibit 1, the Regulations of the Company, shows that the
subscribers to the Company were the 2nd Appellant, who subscribed to 600,000
shares for which the consideration payable in cash was ¢600,000.00, and Nana
Osei Afriyie and the Respondent, each of whom subscribed to 200,000 shares for
which the consideration payable in cash, in each case, was ¢200,000.00.
According to Exhibit 1, the first Directors of the Company were the three
subscribers and one D. Patrick Ewusi Sekyi. <o:p></o:p>Sometime
after the Company commenced its operations, problems developed between the 2nd
Appellant and the Respondent the nub of which was that, whilst the Respondent
claimed that he was a fully paid-up member of the Company and entitled to
participate in the day to day running of the Company, the 2nd Appellant
insisted that the Respondent had not paid for any of his shares. Matters came
to a head when, by a letter dated 1st November, 1995 (Exhibit Q), the
solicitors for the Company informed the Respondent that he (the Respondent) was
only a ‘nominal shareholder’ of the Company. The letter also purported to offer
to the Respondent 20% shares in the Company, in consideration of which he must
pay an unspecified sum of money that he was to ascertain by contacting the
office of the Managing Director within 14 days, failing which the shares would
be offered to someone else. This letter was immediately followed by another
communication from the 2nd Appellant, dated 3rd November 1995 (Exhibit R),
referring to the solicitors’ letter and informing the Respondent that,
according to the Company’s auditor’s report, the net value of the Company’s
assets was ¢237,051,291.00. The letter also informed the Respondent that, ‘as a
nominal shareholder’, he had not paid for his shares and, in order to become a
fully-fledged shareholder, he must pay an amount of ¢47,410,258.20, being 20%
of the current net value of the company’s assets. The Respondent referred the
matter to his solicitors. <o:p></o:p>The
record shows further, per Exhibit 3, that on 31st October 1995, the 2nd
Appellant filed at the Companies Registry a form of Notification of Change of
Directors which notified the Registrar of Companies of the appointment of 5 new
Directors. No shareholders’ resolution was exhibited and there is no other
evidence that these appointments were made by the shareholders in general
meeting, as required by sections 181 and 272 of the Code and regulation 59 of
the Company’s Regulations. <o:p></o:p>On
10th June 1996, the Respondent issued a Writ of Summons in the High Court
against the Appellants, claiming the following reliefs:-<o:p></o:p>“A
declaration that the Plaintiff is a paid-up member or shareholder of the said
Limited Liability Company and holds 20% of the total shares of the said company
for which shares the Plaintiff has more than fully paid for.<o:p></o:p>“A
declaration that the call or demand by the defendants that the plaintiff pay
the further sum of ¢47,410,258.20 for the Plaintiff’s said shares is totally
illegal and has no legal or other justification or foundation whatsoever.<o:p></o:p>“A
declaration that the purported treatment or declaration of the Plaintiff as an
alleged nominal member or shareholder of the company by the Defendants and the
Defendants’ threat to exclude or expel the plaintiff from the said company on
the aforesaid score or grounds is illegal, oppressive and without any legal or
other justification whatsoever.<o:p></o:p>“An
Order of Injunction restraining the defendants from carrying out their said
illegal or oppressive action against the Plaintiff, and<o:p></o:p>“Any further or other reliefs or
orders as shall be just in the circumstances of this case, and in terms of
Order 63 Rule 6 of the High Court (Civil Procedure) Rules.”&nbsp; <o:p></o:p>In
view of the rather narrow scope of the issues arising in this appeal, we do not
deem it necessary to set out the details of the pleadings; suffice it to say
that although, in the Summons for Directions, 6 issues we set down for trial,
the parties, during the course of the trial, focused on issue 4 and, therefore,
the learned High Court Judge, in his judgement concentrated (correctly in my
view) primarily on this issue. Issue 4, as set down, was as follows:-<o:p></o:p>“Whether or not the Plaintiff is a
fully paid-up member/shareholder of the 1st Defendant Company and also a
director of the 1st defendant company.”&nbsp;&nbsp;
<o:p></o:p>In
his judgement, delivered on 2nd September 2002, the trial Judge concluded
that:-<o:p></o:p>“On a careful perusal and scrutiny of
the entire evidence on the record, and the documents tendered herein, I am
satisfied tha</main>