MRS. CHARITY TUFFOUR vs. PERINA TWUM & ORS. [2018]DLHC3738

Date	2018-02-06
Suit No.	SUIT NO.OCC/172/15
Citation No.	[2018]DLHC3738

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

SULLEY SAMBIAN FOR PLAINTIFF.

SAMUEL A. AGYEI FOR DEFENDANTS

[2018]DLHC3738
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MRS. CHARITY TUFFOUR<o:p></o:p>vs.<o:p></o:p>PERINA TWUM &amp; ORS.<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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.OCC/172/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 6TH FEBRUARY, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>SULLEY SAMBIAN FOR PLAINTIFF.<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">

SAMUEL
A. AGYEI FOR DEFENDANTS <o:p></o:p>

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

RULING<o:p></o:p>

</div>This
court has been called upon to determine whether the 1st and 2nd
Defendants are proper parties to the instant suit. The Plaintiff has alleged in
his amended statement of claim filed on 16/02/17 that these Defendants who are
a teacher and banker respectively, advised her to invest money in their Micro
Finance Business. She did so, and was given an investment certificate bearing
the name of the 3rd Defendant Company, but upon maturity, they were
unable to re-pay the money.&nbsp; <o:p></o:p>In
her statement of defence, the 1st Defendant alleged that the
Plaintiff invested her money in Uni-Gold Microfinance Company Limited of which
she is the Manageress.&nbsp; The 2nd
Defendant also averred that she informally told the Plaintiff who is her
neighbor about the 1st Defendant’s business where she could invest
her money. In effect, the 1st and 2nd Defendants are
saying that the Plaintiff dealt with a limited Liability Company, now the 3rd
Defendant herein, and there was no dealing in their individual capacities. <o:p></o:p>The
lawyers for the parties were ordered to file their submissions on this
preliminary legal point. Counsel for the Defendants filed his submissions on
04/01/18; the Plaintiff’s lawyer was granted an extension of time within which
to file his submissions, but as at 9am on 05/02/18, he had not filed the same.<o:p></o:p>In
the written submissions of counsel for the Defendants, reference was made to
the investment certificate issued to the Plaintiff and the certificate of
incorporation of the 3rd Defendant, copies of these documents were
annexed and marked as exhibits ‘1’ and ‘2’.<o:p></o:p>It
must be emphasized that the practice of attaching documents to written
submissions amounts to adducing evidence through the back door which is
improper and procedurally wrong. Therefore, this court will not consider
exhibits ‘1’ and ‘2’, in determining the preliminary issue. <o:p></o:p>It
was submitted on behalf of the 1st and 2nd Defendants,
that upon incorporation, the 3rd Defendant assumed a separate and
legal personality distinct from the people who formed it, or the people who are
behind it. Therefore, the officers of the company cannot be personally liable
for the acts of the company.&nbsp; Morkor
v Kuma (1998-99) SCGLR 620; Salomon v Salomon (1897) AC 22, HL
cited. Sections 24 and 137(1) of the Companies Act, 1963, Act 179 also referred
to. <o:p></o:p>Counsel
for the Defendants has rightly stated the principle of separate legal existence
of incorporated companies. This cardinal principle which dates back to the
celebrated case of Salomon v Salomon, referred to supra, was applied in Soonboon
Seo v. Gateway Worship Centre (2009) SCGLR 278. In holding
(4) thereof, the court stated:<o:p></o:p>It is clear from the record of appeal,
that the Second-Plaintiff church is a company limited by guarantee and
incorporated under the Companies Act, 1963 (Act 179). As a result, pursuant to
section 24 of the Companies Act, 1963, it has all the powers of a natural
person of full capacity. As such, it is a fully- fledged legal entity, with a
personality separate from the natural persons forming it, and with capacity to
sue and be sued in its own name. In law, members of a company have no direct
proprietary rights over its assets, the company being the sole owner of its
assets. Since it is patent from the record that the subject matter of the
action was being claimed as the church’s asset rather than the joint property
of the church and the first Plaintiff, there was no reason why the first
Plaintiff should have been included as a co-claimant. From the record, the
first Plaintiff really has no business in the suit, since he does not make any
claim of interest in the subject-matter of the suit. The second plaintiff
church is capable of handling its own litigation and the first Plaintiff is an
unnecessary party. Consequently, the first plaintiff would be struck out as a
party …”<o:p></o:p>Similarly,
in the Morkor v Kumah case, referred to, supra, the court explained
that a member, director or even a chief executive cannot be sued except where
personal liability is established against that person or the veil of
incorporation is lifted.&nbsp; In holding (3)
thereof, this was what the court stated:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Since
the appellant had been jointly sued with the first Defendant, a Limited
</main>