C F C CONSTRUCTION COMPANY (WA) LTD vs. RAMSOM DIVINE ATTITSOGBE [2006]DLSC2419

Date	2006-03-08
Suit No.
Citation No.	[2006]DLSC2419

AKUFFO (MS) J.S.C. (PRESIDING)

DR. TWUM J.S.C

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C

ANINAKWA J.S.C.

NO APPEARANCE FOR RESPONDENT.

MR. HUKPORTIE FOR THE APPELLANT

[2006]DLSC2419
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													<main id="main" class="content" style="min-height: 60rem" >C F C CONSTRUCTION COMPANY (WA) LTD<o:p></o:p>vs.<o:p></o:p>RAMSOM DIVINE ATTITSOGBE<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/21/2004<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: 8TH MARCH 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NO
APPEARANCE FOR 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">

MR.
HUKPORTIE FOR THE APPELLANT<o:p></o:p>

</div>CORAM:&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">

AKUFFO
(MS), J.S.C. (PRESIDING), DR. TWUM, J.S.C., DR. DATE-BAH, J.S.C., PROF. OCRAN,
J.S.C., ANINAKWA, 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;DR. DATE-BAH, J.S.C:&nbsp; This is the unanimous judgment of the Court.
This case raises issues regarding inequality in bargaining power and the legal
consequences flowing from such inequality. The second plaintiff is the widow of
the original owner of the first plaintiff.&nbsp;&nbsp;&nbsp;
She claimed to be currently the sole shareholder and a director of the first
plaintiff, a construction company.&nbsp; By
April 1986, she was “old and weak” by the admission of the defendant (in his
counterclaim).&nbsp; The evidence at the trial
showed that she was 76 years old in 1986.&nbsp;
The defendant contended that he also owned shares in the first plaintiff
and had been duly appointed, and remained, a director of the first
plaintiff.&nbsp; The testimony of the second
plaintiff revealed that she first met the defendant when he came to visit her
husband, a friend of his, in hospital during his terminal illness.&nbsp; After her husband’s death, the defendant
offered his services as one who could generate business for the first
plaintiff.&nbsp; This paved the way to his
involvement in the business of the first plaintiff.<o:p></o:p>&nbsp;The plaintiffs commenced this action on 31st
October 1991 with a writ endorsed with claims for:<o:p></o:p>1. “A Declaration that the Defendant
has been removed as a Director of the 1st Plaintiff-Company in accordance with
the Companies Code, 1962 (Act 179).<o:p></o:p>2. Another Declaration that the
Defendant is not a shareholder of the 1st Plaintiff Company.<o:p></o:p>3. An order upon the Defendant to
account for amounts received by the Defendant on behalf of the 1st
Plaintiff-Company and all properties of the 1st Plaintiff-Company in the
Defendant’s possession.<o:p></o:p>4. An order of perpetual injunction
restraining the Defendant, his personal representatives or any person
whatsoever claiming through or under him from holding himself out to the
general public or acting as a Director of the 1st Plaintiff-Company.”<o:p></o:p>&nbsp;The Statement of Claim filed with the writ was,
with the leave of the learned trial judge granted on 25th February, 1993,
amended.&nbsp; The amended Statement of Claim
admitted that the Defendant was until 13th September 1991 a director of the
first Plaintiff.&nbsp; It, however, averred
that on or about 31st July 1991, the second plaintiff set in motion a process
which led to the convening of an Extraordinary General Meeting of all the
Directors and members of the first Plaintiff for 13th September 1991.&nbsp; The Statement of Claim asserted that on or
about 13th September 1991, an Extraordinary General Meeting of the first
Plaintiff took place at which the Defendant was removed as a Director of the
first Plaintiff.&nbsp; The Plaintiffs averred
that on or about 30th September 1991, they instructed their solicitor to demand
from the Defendant all properties of the first Plaintiff in his possession and
to warn him to desist from holding himself out as a director of the first
Plaintiff.&nbsp; The Defendant, in response,
wrote to the Plaintiffs’ solicitor challenging the basis of the instructions
given by the Plaintiffs and refusing to comply with the instructions.&nbsp; Finally, the Plaintiffs pleaded that the
Defendant had exerted undue influence over the second plaintiff to sign
documents in his favour and that he had committed various fraudulent acts as a
director of the first Plaintiff.<o:p></o:p>&nbsp;The following particulars of fraud were
pleaded:<o:p></o:p>&nbsp;“(1) The Defendant has forged various cheques
on the account of the 1st Plaintiff which is the subject-matter of
investigations by the Police.<o:p></o:p>&nbsp;(2) The Defendant has received sums of money
on behalf of the 1st Plaintiff which he has not lodged in the 1st Plaintiff’s
account.<o:p></o:p>&nbsp;(3) The Defendant has in his possession Share
Certificates purported to have been signed by the 2nd Plaintiff.”<o:p></o:p>&nbsp;<o:p></o:p>In
response to the Plaintiffs’ averments, the Defendant’s defence was that he
remained a director of the first Plaintiff and that he had never been validly
removed as a director in accordance with section 185(2) of the Companies Code
1963 (Act 179).&nbsp; He also averred that
share certificates evidencing his ownership of shares in the first Plaintiff
had been issued to him.&nbsp; He
counterclaimed that “by a power of attorney dated 7th April 1986 he was
mandated to run the affairs of 1st Plaintiffs as acting Managing Director since
2nd Plaintiff is old and weak and could not manage the 1st Plaintiffs.”&nbsp; He averred that by virtue of the powers
vested in him, he managed the affairs of the first Plaintiff from 1st June 1986
up to 31st October 1991, as Managing Director.&nbsp;
As a result of the services thus rendered to the first Plaintiff, he
claimed that various sums were owed him by the Plaintiffs, which he
particularised as follows:<o:p></o:p>&nbsp; CEDIS<o:p></o:p>(a)
Director’s allowance from 1/6/86 to 31/10/91 &nbsp;&nbsp;&nbsp;….&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</main>