FOOD AFRIC GH LTD vs. AFRICAN INVESTMENT & MANUFACTURING GH. LTD [2017]DLHC3473

Date	2017-11-20
Suit No.	SUIT NO.MISC/0101/17
Citation No.	[2017]DLHC3473

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2017]DLHC3473
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">FOOD
AFRIC GH LTD<o:p></o:p></a>vs.<o:p></o:p>AFRICAN INVESTMENT &amp; MANUFACTURING GH. LTD<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), 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">

SUIT
NO.MISC/0101/17&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: 20TH NOVEMBER, 2017<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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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<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;
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RULING<o:p></o:p>

</div>The Applicant company claiming to be a 49% shareholder
in the Respondent, by an originating motion on notice under section 218 of the
Companies Act, Act 179 prays for an order in respect of the affairs of the
company and in particular the following:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">A declaration that the affairs of the Respondent
 are being conducted in a manner which is burdensome, harsh and wrongful.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">An order for the Directors of the Company to
 account for finances of the Company since 2008<o:p></o:p></li>
</ol>Or in the alternative <o:p></o:p>An order for an independent auditor to be appointed to
audit the finances of the Company from 2008<o:p></o:p>And for any order which the court may deem fit.<o:p></o:p>Applicant provides the basis for the application he
launched under section 218 of Act 179 in the affidavit that accompanied the
application and deposed to by one Ziad Ezzedine as follows: that Respondent has
two shareholders being Pierre Aim with 51% and Applicant with 49% shares and
complains that since the Respondent started operating there has not been any
meeting of the shareholders of the company. Two that there has not been any
audited reports of the company that has been presented to the shareholders for
discussion and approval and no financial statement has ever been made available
to the Applicant. The third complaint of Applicant is to the effect that it
requisitioned an extra ordinary general meeting of the company but the letter
calling for such meeting was not even received by the receptionist of
Respondent upon instructions of the Directors of the company. To Applicant the
directors have demonstrated that they will not call for the extra ordinary
general meeting to account to shareholders unless compelled by the court.<o:p></o:p><o:p>&nbsp;</o:p>Respondent has flatly denied the averments contained
in the affidavit in support of the application and raised a number of factual
and legal issues for consideration. First Respondent questions the capacity of
the deponent to the application contending that the affidavit in support of the
application is incurably defective. On the issue of capacity the Respondent
also raises issue even with the capacity of the Applicant to launch this
application. <o:p></o:p><o:p>&nbsp;</o:p>On the substantive complaint of Applicant, the
Respondent contend that Applicant agreed to dispose of his shares in Respondent
Company to EB Africa Investment (EBAI) with a written resolution of
shareholders dated 25th September, 2015. That it was further
resolved that one Emmanuel Aim was to be appointed as a director immediately
EBAI acquired 38% shares in the company and the Applicant’s own representative
Foud Ezzedine was to resign as a director of Respondent’s company. <o:p></o:p><o:p>&nbsp;</o:p>Respondent further states that pursuant to the
resolution there has been a Share Transfer Agreement dated 6th
November, 2015 wherein Applicant acting per its own authorized representative
Foud Ezzedine transferred 38% of Applicant’s shares to EBAI and Applicant
cannot claim that it was still the owner of 49% shares in Respondent. <o:p></o:p><o:p>&nbsp;</o:p>Foud Ezzedine has subsequently resigned in fulfillment
of the condition of the share transfer agreement with Emmanuel Aim appointed in
its place and the changes submitted to the Registrar of Companies, and same
registered. Respondent further deny the claim that audited financial reports
have not been prepared as reports have been prepared for years 2008- 2016 with
Applicant’s representative Foud Ezzedine, who was the financial controller
having signed all the previous audited financial reports. Accordingly
Respondent prays for the dismissal of the application as having been brought
only to exert pressure on Respondent with intent to achieve a collateral
purpose.<o:p></o:p><o:p>&nbsp;</o:p>CAPACITY<o:p></o:p>I cannot proceed to resolve the i</main>