SAM JONAH vs. RICHMOND AGGREY, YONI KULENDI AND KULENDI @ LAW [2013]DLSC2756

Date	2013-07-19
Suit No.	CIVIL APPEAL NO. J4/10/2013
Citation No.	[2013]DLSC2756

J.DOTSE JSC (PRESIDING)

ANIN-YEBOAH JSC

P.BAFFOE-BONNIE JSC

V. AKOTO-BAMFO (MRS) JSC

A. A. BENIN JSC

KIZITO BEYUO FOR THE PLAINTIFF /APPELLANT/APPELLANT.

THADDEUS SORY FOR THE 2ND AND 3RD DEFENDANTS/RESPONDENTS/ RESPONDENTS.

[2013]DLSC2756
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													<main id="main" class="content" style="min-height: 60rem" >SAM JONAH<o:p></o:p>vs.<o:p></o:p>RICHMOND AGGREY, YONI
KULENDI AND KULENDI @ LAW<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J4/10/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 19TH JULY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KIZITO BEYUO FOR THE PLAINTIFF
/APPELLANT/APPELLANT.<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">

J.DOTSE
JSC (PRESIDING), ANIN-YEBOAH JSC, P.BAFFOE-BONNIE JSC, V. AKOTO-BAMFO (MRS) JSC,
A. A. BENIN JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JUDGEMENT
<o:p></o:p>

</div><o:p>&nbsp;</o:p>ANIN
YEBOAH JSC:
<o:p></o:p>This appeal is before us from a judgment of the
Court of Appeal, Accra which affirmed the judgment of the High Court,
(Commercial Division), Accra. The facts of this appeal appear not to be in any
controversy whatsoever as from the record of proceedings before us the case at
the trial High Court did not progress beyond the close of pleadings. The case
was summarily dismissed on the grounds that the statement of claim did not
disclose any reasonable cause of action against the respondents herein.<o:p></o:p>Now the facts as presented by the Court of Appeal.
The Plaintiff/Appellant/Appellant who for sake of brevity shall henceforth be
referred to as the appellant issued a writ of summons against 2nd
and 3rd Defendant/Respondent/Respondent herein who shall in these
proceedings be referred to as the respondent.<o:p></o:p>On the 9/07/2009, the appellant herein by a motion
ex parte sought leave to issue writ of summons and serve notice thereof out of
the jurisdiction. <o:p></o:p>The motion was granted by the High Court, Accra
(Commercial Division) as the trial High Court was satisfied that the first
defendant was residing in the United States of America. The two defendants who
were at the material time resident in Ghana were Yoni Kulendi a practicing
Lawyer of repute and Kulendi @ Law, a law firm as the second and third
defendant respectively. In the statement of claim that accompanied the writ of
summons, the respondent herein pleaded among other things that in May 1997 he
entered into a Share Sale and Purchase Agreement in Accra which was dated May
1997 with the first Defendant one Richmond Aggrey.<o:p></o:p>In the said agreement the recitals stated that the
said Richmond Aggreey owned twenty percent ordinary shares in a company known
as Scancom Ghana Limited which was a registered mobile phone company operating
in Ghana. The majority shareholders of Scancom Ghana Limited was Investcom
Holdings SA, (Investcom) a company registered in the Lebanon which held sixty-
seven percent shares. In the said Share Sale Agreement, the first defendant at
the trial court that had agreed to place his shares in Scancom in the legal
custody of an offshore company in Cayman Island, Grand View Management Limited
(the custodian) for the purpose that the first defendant and Investcom were
advanced in establishing a telecommunications joint venture Spacetel Srpska, in
respect of which the first defendant needed about Three million United States
Dollars (US$3,000,000.00) and a further sum of Seven Hundred and Fifty Thousand
United States Dollars (US$750,000) in consideration of twenty-five percent of
the first Defendant 20% shareholding in Scancom and for 50% of the Defendant’s
share in the Joint Venture, and in consideration of the payment, the first
defendants undertook to transfer to the plaintiff 25% share in Scancom (the
Trust shares) held in its custody. The first defendant further undertook to
transfer 50% of his shareholding in the Joint Venture to the Plaintiff.<o:p></o:p>Based on the above transactions the Appellant
contended in his statement of claim that he was the beneficial owner under the
Trust Shares. It was further pleaded in the statement of claim that on or about
5/7/2006, the first defendant Richmod Aggrey commenced an action at the High
Court, Accra (Commercial Division) against Investcom Scancom and Grand View Management
Limited (the Custodian) as first, second and third Defendant respectively. The
action sought inter alia, various orders including an order to restore the said
Richmond Aggrey as a shareholder and director of Scancom the auxiliary relief
of perpetual injunction to restrain Investcom, Scancom and the Custodian from
dealing with stock of Scancom in such manner as would adversely affect the
interest of Richmond Aggrey first defendant in these proceedings, and further
Scancom pay to the said Richmond Aggrey his true share of dividends declared in
2000, 2001, 2002, 2003, 2004 and 2005 financial years with interest and an order
rectifying the register of Scancom to include the said Richmond Aggrey’s name
from the register of members of Scancom. In the said action, Investcom in a
Statement of defence denied that the said Richmond Aggrey ever owned shares in
Scancom.<o:p></o:p>In these proceedings at the High Court</main>