PATRICIA MAUD ACQUAH (PLAINTIFF/RESPONDENT) vs. JUSTICE BAASAW AKROFUL & 3 ORS. (DEFENDANT/APPELLANT) [2012]DLCA7461

PATRICIA MAUD ACQUAH (PLAINTIFF/RESPONDENT) vs. JUSTICE BAASAW AKROFUL & 3 ORS.... [2012]DLCA7461

Date	2012-03-05
Suit No.	CIVIL APPEAL NO.: H1/63/2012
Citation No.	[2012]DLCA7461

DUOSE J.A. (PRESIDING)

ACQUAYE J.A.

AYEBI J.A.

[2012]DLCA7461
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													<main id="main" class="content" style="min-height: 60rem" >PATRICIA MAUD ACQUAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JUSTICE BAASAW AKROFUL &amp; 3 ORS.<o:p></o:p>(DEFENDANT/APPELLANT)<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL APPEAL NO.: H1/63/2012&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:3RD MAY,
2012<o:p></o:p>

</div>CORAM:<o:p></o:p>DUOSE
J.A. (PRESIDING), ACQUAYE J.A., AYEBI J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>ADINYIRA
Mrs. J.S.C. <o:p></o:p>I
have had the opportunity to read beforehand the judgment of my brother Apaloo
J.A. I concur with the decision that the appeal be allowed. I however wish to
make a few comments. <o:p></o:p>Counsel
for the respondents in his statement of case argued that the 1st respondent was
the sole shareholder at the time the shares were floated and he was only
required to give notice to the Registrar of Companies, which he did. He also
argued that the respondents could not have offered the shares to the appellant
when she was not then a shareholder. He argued that a strict adoption of the
decision in the Politis case would have collapsed the company. <o:p></o:p>The
problem raised in this appeal was similar to that of the Politis case, cited as Politis and Anr. v. Plastico Ltd. (No.2) [1967]
G.L.R. 17, the facts of which case has been given in detail in the judgment
just read. As much as I see the technicalities and dilemma faced by the
directors of the company as raised by counsel for the respondent, I however do
not agree with him that a strict adoption of the Politis case (No. 2) would
have collapsed the company. In this case as in the Politis case, no general
meeting to issue new shares could have been convened as the personal
representatives of the two deceased shareholders were not known then and as
such could not be notified, and even if they were known and were notified, they
could not have attended the meeting as their names were not entered in the
company's register as members. Although the appellant could not have attended
such a meeting, as she was not registered member, she was entitled to an offer
of any lawfully issued shares according to the proportion of the shareholdings
of her late husband. For, as a personal representative or in this case as the
sole beneficiary of her late husband's estate the appellant was entitled to the
same rights and remedies as if she was a registered member of the company,
except the right to attend and vote at meetings. See section 99 (3) of the
Companies Code of 1963. Act 179, (hereinafter Companies Code) which states:<o:p></o:p>&nbsp;"(3) A
person upon whom the ownership of a share or debenture devolves by reason of
his being the legal personal representative, receiver, or trustee in bankruptcy
of the holder, or by operation of law shall, prior to registration of himself
or a transferee, be entitled to the same dividends, interest and other
advantages as if he were the registered holder and, in the case of a share, to
the same rights and remedies as if he were a member of the company, except that
he shall not, before being registered as a member in respect of the share, be
entitled to attend and vote at any meeting of the company." <o:p></o:p>Furthermore,
Section 161 (1) of the Companies Code provides that:<o:p></o:p>&nbsp;"No
business shall be transacted at any general meeting unless a quorum of members
is present at the time when the meeting proceeds to discuss that business but
provided that a quorum is, then present the meeting may validly proceed with
that business notwithstanding that a quorum is not present throughout."<o:p></o:p>&nbsp;Since the 4th defendant was registered as a
three-member company, a two-member quorum is required as stipulated under
section 161(2) b of the Companies Code. Section 161 provides that:<o:p></o:p>&nbsp;"(2)
Unless otherwise provided in the company's Regulations, the following shall
constitute a quorum, that is to say,<o:p></o:p>&nbsp;(a) If the
company has only one member, that member present in person or, where proxies
are allowed, by proxy; allowed, by proxy, or one member so present holding
shares representing<o:p></o:p>&nbsp;(b) In any
other case two members present in person or, where proxies are more than fifty
per centum of the total voting rights of all the members having a right to vote
at the meeting. "<o:p></o:p>&nbsp;Since there was only one surviving shareholder
no valid general meeting could be held for lack of quorum. However this does
not mean the company was handicapped and a meeting could not have been held in
the circumstances. Section 162 of
the Companies Code make ample provision to cater for such situations where the
strict compliance of the provisions of the Code makes it impracticable to call
a meeting as required by law. It is therefore pertinent to spell out section
162. <o:p></o:p>"Section 162. (1) If for any reason it is
impracticable to call a meeting of a company in any manner in which meetings of
that company may be called, or to conduct the meeting of the company in the
manner prescribed by the Regulations of this Code, the Court may, on the
application of any director or member of the company, or of the Registrar,
order a meeting of the company to be called, held and conducted in such manner
as the Court thinks fit; and where any such order is made may give such
ancillary or consequential directions as it thinks expedient.<o:p></o:p>&nbsp;(2) Any
meeting called, held and conducted in accordance with an order under the foregoing
subsection shall, for all purposes, be deemed to be a meeting of the company
duly called, held and conducted." <o:p></o:p><</main>