GOLD COAST SECURITIES LTD vs. RAOUL ABOU-CHEDID [2016]DLCA4827

Date	2016-05-26
Suit No.	CIVIL APPEAL NO: H1/229/2015
Citation No.	[2016]DLCA4827

V.D. OFOE J.A. (PRESIDING)

F.G. KORBIEH J.A.

L.L MENSAH J.A

[2016]DLCA4827
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													<main id="main" class="content" style="min-height: 60rem" >GOLD COAST SECURITIES LTD<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>RAOUL
ABOU-CHEDID<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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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CIVIL
APPEAL NO: H1/229/2015&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: 26TH
MAY, 2016<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</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:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A.<o:p></o:p>I have had the privilege of reading before-hand the
thought-provoking judgment just delivered by my learned brother, Ofoe, J.A. and
I agree completely with everything he has said. Of course I also agree with him
that this appeal should be dismissed as being unmeritorious. I however want to
high-light one or two areas of the reasons for dismissing the appeal that I
think needs elaboration. The facts have been sufficiently set out in the lead
judgment and so I need not repeat them here.<o:p></o:p><o:p>&nbsp;</o:p>One of the main contentions of the appellant is
that the trial judge was wrong in his judgment because there was no evidence on
the record to support the finding of fact that the parties had waived the
pre-condition in exhibit E (the share transfer agreement) to the effect that
the respondent (as transferor) would indorse the 2006 Audited Accounts and the
2007 Management Accounts as a confirmation of the state of affairs of the
company. According to counsel, the trial judge had therefore substituted a case
proprio motu, which was inconsistent with the case the respondent had put
forward himself. That being the case, he further argued, it was wrong for the
trial judge to order that the appellant pays US$700,000.00 to the respondent as
payment for the shares. One however has to look at clause 12(c) of exhibit E
critically to see what the effect of that pre-condition was meant to have. For
a better or more proper understanding of the provision in clause 12(c) I will
reproduce the full text of the provision.<o:p></o:p><o:p>&nbsp;</o:p>“The transferor shall endorse the 2006 Audited
Accounts and the 2007 Management Accounts as a confirmation of the state of
affairs of the company, and that no later disclosure of liabilities will be
accepted by the Transferee. Any later disclosure of liability will be debited
against the Transferor’s account.”<o:p></o:p><o:p>&nbsp;</o:p>The appellant’s argument seems to limit the
interpretation of this provision to only first two lines of the provision. It is
trite law that the provision must be read as a whole. It is quite clear that
this provision was put there to protect the appellant from future liability
claims the respondent might make against it. Its effect was that the respondent
could not later on bring up a liability claim against the company (and for that
matter the appellant). It was therefore not a pre-condition that affected the
transfer of the shares in any way and the failure of the respondent to endorse
the accounts could therefore not invalidate the transfer of shares. The
respondent failed to endorse the two accounts at his own risk, so to speak. In
any trial, the court or the judge is permitted to make inferences from
established facts. In section 18(2) of the Evidence Act, 1975 (NRCD 323) an
inference is defined as follows:<o:p></o:p>“An inference is a deduction of fact that may
logically and reasonably be drawn from another fact or group of facts found or
otherwise established in the action.”<o:p></o:p>There is clear evidence on record that despite the
failure of the respondent to endorse the two accounts, the parties had gone
ahead to sign the agreement and the share transfers had taken place. So the
trial judge was entitled to draw the inference that the parties had waived the
respondent’s obligation to endorse the two accounts. This implied that the
respondent stood to suffer f</main>