1^st Plaintiffs claim against the Defendants in an amended writ of summons the following reliefs:

a. A declaration that 1^st Plaintiff is a shareholders of 2^nd Defendant company

b. A declaration that 1^st Plaintiff holds 43% shares in 2^nd Defendant company

c. A declaration that any purported change in the shareholding structure of 2^nd Defendant company is void and of no legal effect

d. A declaration that 1^st Defendant’s action of altering the shareholding structure of 2^nd Defendant company without following due process was fraudulent.

e. A further declaration that the transfer of the shares and assets of 2^nd Defendant company to Oak House Group Ltd, the 3^rd Defendant company, by 1^st Defendant is void and of no effect

f. An order of accounts into the books and finances of 2^nd Defendant company from incorporation until date of judgment.

g. An order directed at 1^st Defendant to render accounts for the said lands acquired for their common use.

h. Cost including solicitors fees

i. Any other reliefs that the court may deem fit.

With the joinder of the 2^nd Plaintiff to the action there was a further amendment to the writ for the 2^nd Plaintiff to also ask the following: 

j. A declaration that 2^nd Plaintiff is a shareholder in 2^nd Defendant company with shareholding of 25% shares.

k. An order for account of the affairs of 2^nd Defendant company

l. An order that 2^nd Plaintiff should be paid for his services as a promoter and director of 2^nd Defendant company on quantum meruit basis

1^ST PLAINTIFF’S CASE

In its amended writ and statement of claim filed on the 5^th of May, 2016, 1^st Plaintiff claim to a director and majority shareholder of 2^nd Defendant company but ordinarily resident outside the jurisdiction with 1^st Defendant being also a shareholder and a directing mind of 2^nd Defendant. That 1^st Defendant being a longtime friend, both incorporated 2^nd Defendant in 2004 with 43% of shares to Plaintiff, 25% to 1^st Defendant, 25% to 2^nd Plaintiff and 7% shares to Kimathi Kuenyehia. To 1^st  Plaintiff he was most of time not in Ghana and relied on 1^st Defendant for the running of the business whilst he provided support in terms of money and logistics for the running of the company. That his absence from Ghana was exploited by 1^st Defendant who denied him critical information and data on 2^nd Defendant and eventually alienated him from the business.

1^st Plaintiff avers that with the development of a confrontational attitude by 1^st Defendant towards him, no dividend had been paid him nor ever received any notice of any meeting of the company notwithstanding his injection of significant resources into 2^nd Defendant from its promotion to date.1^st Plaintiff states that he only discovered that 1^st Defendant had caused a re-registration of 2^nd Defendant company and succeeded in changing the shareholding structure of the company and accuse 1^st Defendant of fraud in that respect. That with the new structure, 1^st Plaintiff claim that he is no longer a director or a shareholder of the 2^nd Defendant Company with 1^st Defendant deliberately avoiding him to discuss his fraudulent conduct of the change of the structure of directorship and shares of 2^nd Defendant.

1^st Plaintiff contend that 1^st Defendant has incorporated the 3^rd Defendant Company and transferred all of the shares in 2^nd Defendant company to 3^rd Defendant company. He advances that the transaction between the 2^nd and 3^rd Defendant is void and any assets held by 3^rd Defendant Company is only held in trust for the 2^nd Defendant as he had never consented to any transfer of his shares. 1^st Plaintiff finally accuse 1^st Defendant of having sold ten plots of land he paid for their acquisition at Adjirigano and hence the various claims he seeks per the writ filed.

2^ND PLAINTIFF’S CASE

2^nd Plaintiff claim to be a retired Commissioner of Police and contend to be a director of 2^nd Defendant with 25% shares. That 1^st Defendant as the managing director of 2^nd Defendant has deprived him of his shares in the 2^nd Defendant company.

THE CASE OF THE DEFENDANTS

Defendants have denied the essential averments contained in the claims of the Plaintiffs. 1^st Defendant concede that he incorporated 2^nd Defendant with 1^st Plaintiff and due to their long friendship matters between them had not adhered to formal requirements nor by any written agreements as they acted on good faith. He concede that at incorporation of 2^nd Defendant, 1^st Plaintiff was allotted 43% shares, 2^nd Plaintiff 25%, 7% shares to Kimathi Kuenyehia and 25% shares to himself.

That at the time of incorporation 1^st Plaintiff was in the United Kingdom and he had to sign 1^st Plaintiff’s column of signature of the registration documents on his behalf for which 1^st Plaintiff fully concurred. To 1^st Defendant he formed several companies with 1^st Plaintiff including Cedem Travel Services, Cedem Construction and Supply Ltd, Business Express Ltd and also Concorde Security in the United Kingdom with the shares of Concorde Security having been held in trust for 1^st Plaintiff and 1^st Defendant by one Ruby Amoh.

1^st Defendant further avers in the pleadings of the Defendants that it was the funds from the Cedem Travels Services, that was divested to buy the lands for real estate with some also used to incorporate Concorde Security in the UK with the shares having been entrusted to Ruby Amoh. And with the success of Concorde Security it encouraged them to set up 2^nd Defendant Company to go into private investigations. That 2^nd Defendant faced initial challenges and at the suggestion of 1^st Plaintiff, the shares in Concorde Security was transferred to 1^st Plaintiff’s wife to hold in trust for the two of them even though he protested and demanded a trust deed all to no avail.

Eventually it was agreed that 1^st Plaintiff takes full charge of Concorde Security with 1^st Defendant also fully owning 2^nd Defendant Company in Ghana and that all these were agreed by word of mouth. And it was out of this arrangement that he fully became owner of all the shares of 2^nd Defendant for which he also wrote to the Board of Directors to refund the capital of 2^nd Plaintiff to him. And that is how come 1^st Plaintiff did not show any interest at all in the running of 2^nd Defendant Company. That whatever re-registration of 2^nd Defendant Company was done was as a result of government directive and deny any allegation of fraud in the re-registration as everything was done in accordance with law.

1^st Defendant again contend that it was eight and not ten plots that were acquired and out of the eight plots of land acquired using the proceeds from Cedem Travel Services, as a result of litigation on the lands, four of the lands were sold and 1^st Plaintiff told 1^st Defendant to use the money to roof the latter’s house with the 1^st Plaintiff giving some to one his employees in UK to develop whiles the rest were embroiled in litigation.

In responding to the allegations of 2^nd Plaintiff, 1^st Defendant claim that 2^nd Plaintiff on his own accord wrote to request for a refund of his capital in 2^nd Defendant and also resigned as a director for which he was fully paid an amount of Gh¢3,000.00 that 2^nd Plaintiff also executed a deed of transfer of shares and has also accordingly ceased to be a shareholder of 2^nd Defendant company and call for the dismissal of the claims of the Plaintiffs.

ISUES FOR TRIAL

With the pre-trial conference unable to amicably resolve the matter the following five issues were agreed as the issues for trial:

1. Whether or not the Plaintiff is a shareholder of 2^nd Defendant’s company

2. Whether or Plaintiff owns 43% shares in 2^nd Defendant company

3. Whether or not Plaintiff at various stages remitted money to 2^nd Defendant through 1^st Defendant for the running of the 2^nd Defendant

4. Whether or not the 1^st Defendant can unilaterally divest Plaintiff of his shareholding in the 2^nd Defendant without following due process

5. Whether or not 1^st Defendant can on his own volition and without the strict procedure under the Company’s Act, Act 179 alter the shareholding of the 2^nd Defendant.

6. Whether or not 1^st Defendant committed fraud when he altered the shareholding structure of the 2^nd Defendant to affect the shareholding of Plaintiff without due process

7. Whether or not the removal of Plaintiff as a director of 2^nd Defendant by 1^st Defendant is valid in law.

8. Whether or not any asset held and controlled by the said Oak House Group Ltd is being held in constructive trust for the 2^nd Defendant.

9. Whether or not 1^st Defendant used £10,000 which Plaintiff remitted to 1^st Defendant to purchase ten plots of land, for the common use of 1^st Plaintiff and 1^st Defendant.

10. Whether or not 1^st Defendant has used part of the land and sold the remainder for his personal use and without giving any of the parcels of the land to the Plaintiff.

TRIAL

Plaintiffs testified in persons. One Edward Opata was called as Pw1. Pw2 was subpoed witness from the Registrar of Companies in the person of Vincent Darko. The last prosecution witness was in the person of Kimathi Kuenyehia. In all Plaintiffs tendered Exhibits ‘A’ to ‘J’ with the salient ones being, the Regulations of 2^nd Defendant at its incorporation as Ex ‘A’, an email exchange between 1^st Plaintiff and his lawyer as Ex ‘B’, Registrar General’s documents as Ex ‘D’. A deed of transfer of the shares of 2^nd Defendant to 3^rd Defendant effected by 1^st Defendant as Ex ‘G’. A valuation report on lands at Agyiragano as Ex ‘J’.

Defendants on the other hand testified through 1^st Defendant, Joseph Boye Clottey and Henry Myles Mills as DW1 and Dw2 respectively. Even though witness statements had been filed on behalf of William Panford Bray and former Inspector General of Police, Peter Nanfuri and same had been admitted during case management conference, as the said witnesses were not made available to swear an oath and testify and be cross examined, same is expunged from the records.

In all the Defendants tendered as much as seventeen Exhibits with the principal ones being a letter of resignation of 2^nd Plaintiff from 2^nd Defendant as Ex ‘8’, a notarized affidavit of the returns of Concorde Security as Ex ‘11’, a deed of transfer as Ex ‘12’, a writ and statement about the lands in Adjirigano as Ex 14 and 15.

THE EVIDENCE AND THE LAW

From the issues set down at the directions issues 1, 2, and 3 can conveniently be resolved together. The essence of the claim of 1^st Plaintiff is that he is a 43% shareholder of 2^nd Defendant Company having contributed in cash and kind to the incorporation of 2^nd Defendant, even though he was living in the UK at the time. In paragraphs 13, 14, 15, 16 and 17 of the evidence in chief of the 1^st Plaintiff, which was given in the form of Witness Statement, he detailed the level of his contribution towards the incorporation and the running of the daily affairs of 2^nd Defendant. And these includes £30,000 that he claim to have cumulatively remitted, 10 brand new dell computers, sending of krypto security phones worth £6,000 and remittances for two brand new Renault clio vehicles. Ex ‘A’ being the Regulations of 2^nd Defendant at the time of its incorporation on the 18^th of November, 2004 shows 1^st Plaintiff as the holder of 43% shares as well as being a director of the company. 2^nd Plaintiff appears as owning 25% shares, 1^st Defendant also with 25% and the remaining 7% to then secretary, Kimathi Kuenyehia.

1^st Defendant does not dispute the ownership of 43% of 2^nd Defendant at incorporation by 1^st Plaintiff but only claim that the said 43% ownership emanated out of his own gratis and favour to 1^st Plaintiff due to their long standing friendship. As by section 36 of the Company’s Act, Act 179 the register of members shall be prima evidence of the matters stated therein and Ex ‘A’ at the time of incorporation notes that 1^st Plaintiff had been issued 43,000,000 shares and with section 42 and 45 of Act 179 requiring that shares shall be paid for by a member in cash, I proceed on the presumption of omnia praesumuntur rite esse acta solemnitur rule under section 37 of the Evidence Act, NRCD 323, that there is presumption of regularity as far as the performance and compliance with the requirements of the Act 179 was concerned and that 1^st Plaintiff fully paid for his shares but not an act of grace from 1^st Defendant that was extended to 1^st Plaintiff. That the Registrar General would not have issued Ex ‘A’ if he was not satisfied that the requirement for payment of shares in cash under Act 179 had not been complied with.

Again I find umbrage under section 162 of the same Evidence Act which states as follows:

“A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorised by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity or which is a public record, report, statement or data compilation if—

(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and

(b) the copy is certified to be correct by the custodian or other person authorised to make the certification, provided that the certification must be authenticated”.

And therefore, if that presumption is to be displaced, then the onus is on 1^st Defendant that is asserting the contrary to prove that 1^st Plaintiff did not pay for his shares in cash as required by the Company’s Act but was rather ad gratis to him and Ex ‘A’ that officially recorded same is not in fact what it is. 1^st Defendant made this assertion without any evidence to back same. On the other hand, the evidence of then Secretary, Kimathi Kuenyehia, Pw3 was very instructive in demonstrating the level of contribution of 1^st Plaintiff to the set up and running of 2^nd Defendant company. For the following were his answers when he was questioned:

“Q: Can you tell this honourable court, the contributions that Mr. Edem Afram made towards the incorporation of Oak House Co Ltd.

A. My Lord, to the best of my knowledge, Edem sent a lot of money, to be frank. At the time we were in a unique position. I was a student, and I did not have any money to contribute to the business. Edem had been running a very successful company in the UK, he was the guy with the money.

Q. These monies that you talk about, were they sent to you?

A. No 

Q. So as far as you are concerned these monies were sent to who?

A: They were sent to 1^st Defendant

Q: And what was the purpose of these remittances 

A. It was to fund the business

Q. What business

A: Oak House, the 2^nd Defendant.

The above piece of evidence from a former Secretary was not controverted at all when he was cross examined by Sorbordjor Esq. The evidence of Kimathi Kuenyehia appeared to be more credible as there was further corroboration found in the evidence of Pw1, Edward Opata that 1^st Defendant used to tell him of the remittances made by 1^st Plaintiff towards the running of the business. See page 4 of the cross examination of Edward Opata on the 10^th of April, 2018.

On the other hand the witnesses called by 1^st Defendant, being Joseph Boye Clottey, Dw1 and Henry Myles Mills, DW2 all claimed that they only heard of the name of 1^st Plaintiff but had never seen him before. In other words, they had no personal knowledge of the remittances and contribution of 1^st Plaintiff. It is trite that a witness testify to matters within his personal knowledge, information and belief and that appears to be the prime qualification for a witness. See section 60 of the Evidence Act, NRCD 323.

I find as a fact that the overwhelming evidence on record shows that Edem Affram contributed immensely in both cash and kind towards the incorporation of 2^nd Defendant company and was the colossus financier of 2^nd Defendant. I find that he legitimately acquired 43% shares and paid for same and that his acquisition of the shares in 2^nd Defendant was not an act of kindness or favour from 1^st Defendant at all.

THE ACT OF REMOVAL OF 1^ST DEFENDANT AS DIRECTOR AND SHAREHOLDER OF 2^ND DEFENDANT

I move to the resolution of issues 4, 5, 6 and 7 which are all in respect of the conduct of 1^st Defendant in the removal of 1^st Plaintiff as a director and a 43% shareholder of 2^nd Defendant and the act of transferring 93% shares of 2^nd Defendant to 3^rd Defendant. With this 1^st Plaintiff has accused 1^st Defendant of fraud as he claim that he had no knowledge that he had been divested of his shares in in 2^nd Defendant company and as far as he is concerned he is still a shareholder. He also deny having instructed 1^st Defendant or any other person to transfer his shares in Oak House Ltd.

Per section 30 (5) of the Company’s Act, Act 179 which states as follows:

“Membership of a company with shares shall continue until a valid transfer of all the shares held by the member is registered by the company, or until all such shares are transmitted by operation of law to another person or forfeited for non-payment of calls under a provision in the Regulations, or until the member dies”.

As far as the law is concerned for a person’s membership of a company can only be terminated by one, a valid transfer of shares which is registered by the company, two by operation of law, three by forfeiture of shares for non-payment and last by death. 1^st Plaintiff is alive and transfer by operation of death will does not apply. It has not been contended that 1^st Plaintiff has forfeited his shares for non-payment when the evidence as found supra is that he was the financier and the guy with the big pocket for the running of 2^nd Defendant. There has not been operation of law to divest 1^st Plaintiff of his shares. By operation of law is meant an act of nationalisation of the company when a receiver or trustee in bankruptcy assumes carriage of the shares of a shareholder. See section 99 of the Company’s Act, Act 179.

So I ask has there been a valid transfer of shares of 1^st Plaintiff to 1^st Defendant. But first it may be very instructive to posit the response of the 1^st Defendant to this serious claims made against him in person. According to 1^st Defendant in his pleadings and in his evidence in chief he claim that he established a number of companies with 1^st Plaintiff. Some being Concorde Security in the UK, Cedem Travel and Tours among many others. He further claim that the resources and monies realised from Cedem Travel and Tours was used to establish Concorde Security in UK.

1^st Defendant then contend that the shares in the said UK company was registered in the name of one Ruby Amoh being a relative of 1^st Plaintiff as the latter was an illegal immigrant in UK despite his vehement protest against such registration. All this came about due to the informal manner they had handled matters as close friends and at a point in time 1^st Plaintiff had intended for the shares in Concorde Security to be transferred to 1^st Plaintiff’s wife which he protested. That eventually it was mutually agreed between them that 1^st Plaintiff will take the Concorde Security in UK whilst he also assume ownership of 2^nd Defendant company in Ghana. And that is the explanation provided by 1^st Defendant as to how 1^st Plaintiff became divested of his shares in 2^nd Defendant.

1^st Plaintiff has denied all these as contrived by 1^st Defendant and as it is the rule that a party cannot prove a negative, 1^st Plaintiff cannot be expected to prove an assertion being made by an opponent which he has in any way denied. As it was been held in the decision of the Supreme Court in the case of Supreme Court in KLAH v PHOENIX INSURANCE CO LTD. [2012] 2 SCGLR 139 @ holding 2 that:

“The pleadings of a party would constitute allegation and not evidence. Thus where an averment in a statement of claim has been positively denied, it would be incumbent upon the party asserting those averment to substantiate them by leading evidence in compliance with the cardinal rule of pleadings under Rule 7(1) of Order 11 of the HCCPR, 2004, CI 47, namely that the material facts relied upon by a party for his claim but not the evidence by which those facts were to be proved should be contained in the statement of claim”

How did 1^st Defendant who made these claims in his amended statement of defence prove them? In analysing the claims made, I will be taking them gradatim ad seriatim (that is step by step). First no evidence of the financial viability of Cedem Travel and Tours was filed to show the extent of its financial success. No evidence in the form of declaration of dividend by Cedem Travels and Tours was filed. No evidence of a resolution that any dividend realised from Cedem was to be used to fund Concorde Security. The claim of the funding of Concorde Security emanating from Cedem Travels remained a wild allegation with no substance to back it and I dismiss that as totally untrue.

Second, is the claim that 1^st Defendant in furtherance of 1^st Plaintiff taking over Concorde Security for him to take over Oak House Ltd he instructed the drawing up of a shareholder’s agreement which 1^st Plaintiff agreed to. Pw3, Kimathi Kuenyehia, was the one mentioned as having been given that instructions. The discussions for such agreement is captured in Ex ‘18’. In Ex ‘18’, Pw3 only referred to the instructions given by 1^st Defendant and demanded for further details about Edem Affram and Concorde Security. There is no evidence that the information requested by Pw3 ever came. And when Pw3 testified on the 26^th of October, 2018, he stated that he knew that Concorde Security belonged to 1^st Plaintiff and one Patrick.

Regarding Ex ‘18’ and any discussions on Concorde Security this is what transpired:

Q: So based on what you will recall, these discussions about an agreement was about what?

A. Actually it was Bernard [1^st Defendant] who informed me that he had reached some agreement with Edem that Edem would take the UK part of the business and Bernard would take the Ghana part of the business.

Q. But you never had any discussion with Edem about this? 

A. No I did not”.

If there had to be any credible shareholder agreement regarding any claim of a person’s interest in a company, it needed not to have been an ex parte communication as Kimathi Kuenyehia, Pw3 confirmed he had with 1^st Defendant only, but not 1^st Plaintiff and the claim of having had such ex parte discussions initiated by 1^st Defendant alone with Kimathi Kuenyehia without 1^st Plaintiff not having been put on the known, I find to have deliberately been contrived by 1^st Defendant in furtherance of his intention to appropriate all the shares of 1^st Plaintiff in 2^nd Defendant to himself. This finding will not stand alone but find other corroborative and credible holdings in the other analysis infra.

In support of the claim that he 1^st Defendant is in fact and truly a member of Concorde Security UK he produced Ex ‘11’ which was procured for him by a private investigator. Exhibit ‘11’ which is Annual Returns shows that at incorporation and contrary to the claim that 1^st Defendant made that one Ruby Amoh held the shares and Edem Affram and 1^st Defendant did not feature, 1^st Plaintiff appear as a director of Concorde Security with Ruby Amoh whilst Edem Affram was company secretary. If by the logic of 1^st Defendant, 1^st Plaintiff as an illegal immigrant needed to protect himself against British immigration authorities, then by that same logic Edem Affram’a name should not have featured at all. And if 1^st Plaintiff’s name appeared, there was nothing that prevented the appearance of the name of 1^st Defendant’s name, at least as a director just like 1^st Plaintiff. In any case the Returns filed in 2005 shows Edem Affram as a former shareholder of Concorde Security which was incorporated in 2004, meaning that at incorporation 1^st Plaintiff owned shares in Concorde Security and this defeats the claim of 1^st Defendant about the immigration status of 1^st Plaintiff and the need to hide the ownership of shares of Concorde Security in the name of Ruby Amoh.

I hold and find that the holding and relinquishing of shares in a company and as matter of fact in a British company is not by word of mouth but by documentations duly filed. Ex ‘11’ rather attest against the stand of 1^st Defendant. The basis of this finding is rooted under section 40 of the Evidence Act where a presumption is created that the law of a foreign state is presumed to be the same as that of Ghana.

Again 1^st Defendant claim that upon incorporation of Concorde Security in the UK, its success led to the incorporation of 2^nd Defendant in Ghana by both of them and this was to support 1^st Defendant’s assertion that he being part of the success story of Concorde Security had relinquished his claim in favour of Oak House Ltd. Concorde Security was incorporated in October, 2004 whilst Oak House was incorporated on 18^th November, 2004, just a month separating them. What kind of success could have been recorded by a company established by a foreigner in UK within one month of operation to have been so financially successful to have inspired the incorporation of 2^nd Defendant company?

This claim made by 1^st Defendant I find not to hold water, unproved, not supported by any shred of evidence and with the greatest of respect, a classic cock and bull story.

SHARE TRASFER

There has been produced before the court Ex ‘D’ being a registration of Oak House Ltd wherein the directorship seems to have changed from what it was in Ex ‘A’. 1^st and 2^nd Plaintiffs names do not appear as directors. Instead Henry Myles Mills, William Panford Bray, Joseph Boye Clottey and 1^st

Defendant appear as directors. And for the shareholders, 1^st Defendant appear as holding the entire 100,000 shares in Oak House Ltd. The essence of what necessitated Ex ‘D’ should not be lost on us. Vincent Darko, Pw2, the Chief Executive Officer attached to the Registrar General’s Records Unit, gave the reason that in 2011, the government in collaboration with Registrar General’s Department, intended for companies to come and update their records in terms of current location, objects, resignation of directors etc. And therefore if prior to the re-registration the directorship or the shareholding structure had not changed, the re-registration was not supposed to be used as a Trojan horse to effect changes in the directorship and shareholding structure overnight which did not exist in accordance with Act 179.

1^st Defendant claim that in furtherance of Ex ‘D’ a share transfer agreement was produced to the Registrar of Companies before he became the owner of the shares. This came to light when 1^st Defendant came under cross examination on the 9^th of November, 2018 in the following:

Q. Mr. Owusu Twumasi, is Edem Affram as far as you are concerned, a shareholder at Oak House Ltd.

A. No My Lord. Edem Affram transferred his shares to me.

Q. So I am assuming there was a share transfer document that was executed, transferring the shares of Edem Affram to you.

A. Yes My Lord, a share transfer document was executed. A share transfer certificate was executed and duly stamped.

Q: Who prepared the transfer agreement?

A: My Lord, it was the Company Secretary, Henry Myles Mills.

Q. I am assuming that you … had instructed him to prepare the said share transfer agreement.

A. That is entirely correct.

Q: When was it prepared.

A: It was either in the latter part of 2006 or early part of 2007.

Q. So the 1^st Plaintiff Edem Affram did not give any instructions to Mr Myles Mills to prepare this share transfer agreement that you speak to.

A: That is Correct. And My Lord that has been the practice then between myself and Edem Afram”.

A copy of this alleged share transfer agreement between 1^st Plaintiff and 1^st Defendant was never tendered in court even though they claim to have filed same at the Registrar General’s Department. And 1^st Defendant claim that Registrar General could not locate this document. An incredible story!

Henry Myles Mills claim to have witnessed 1^st Defendant sign the share transfer agreement as a transferor and a transferee but also claim he cannot locate it as Company Secretary. There is Ex ’12’ and also Ex ‘G’ all purporting to be share transfer deeds, which I will comment on later for which Defendants could produce before the court but not their claim of a share transfer between 1^st Plaintiff and 1^st Defendant. Dw2 who is a lawyer failed to impress the court in the box. His voice was shaking and his frame was jittery. He sounded incoherent and when he had been in the box for less than thirty minutes he pleaded to be released on a spurious claim that he had to appear before another High Court. He wanted an escape route when the questions were too hot for him and was fumbling because of the untruths he was on the box to peddle.

And in any case, I thought that the story of 1^st Defendant had all along been that all matters between him and 1^st Plaintiff had been by a gentleman’s agreement without any paper trail as he noted Edem Affram was to take Concorde Security and he was to take Oak House. So what is this claim of a share transfer agreement? Simply because he wrote the name of 1^st Plaintiff on Ex ‘A’ 1^st, Defendant thought he could similarly appropriate the shares of 1^st Defendant. 1^st Defendant cannot transfer the shares of a shareholder to himself and sign on behalf of that shareholder and himself as transferor and transferee in the face of strong claim by 1^st Plaintiff that he never gave such instructions. It is for 1^st Defendant to prove that 1^st Plaintiff gave him such instructions.

Even 1^st Defendant cast doubt on his ownership of 100% shares as not being correct and impugn Ex ‘D’ that gives him all the shares in 2^nd Defendant. 1^st Defendant’s explanation is that it was a paralegal that gave him all the 100% shares and he also signed without reading it making him effectively having appropriated the shares of Kimathi Kuenyehia as well. How could 1^st Defendant now attribute appropriation of all the shares to the mistake of a paralegal?

It is in this respect that 1^st Plaintiff has indicted 1^st Defendant with fraudulent act of Transfer of the shares of 2^nd Defendant to 3^rd Defendant as seen in Ex 12. The particulars of fraud have been provided in paragraph 13 of the amended statement of claim filed on the 5^th of May, 2016 to include the following:

a. Unknown to Plaintiff 1^st Defendant without following due process fraudulently removed Plaintiff as director of 2^nd Defendant company

b. 1^st Defendant has fraudulently altered the shareholding structure, of the company to remove Plaintiff as a shareholder without following due process.

c. That according to the shareholding structure, Plaintiff is mysteriously no longer a director or a shareholder

d. That 1^st Defendant fraudulently transferred Plaintiff’s shares to 1^st Defendant without his consent and or due process.

In the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord McNaughton noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:

“fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”

Dr. Twum JSC in the case of BROWN v QUARSHIGAH [2003-2004] 2 SCGLR 930 and at 946 stated as follows:

‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’

The standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:

‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.

I have found supra that 1^st Plaintiff never gave any instructions for 1^st Defendant to appropriate his shares in 2^nd Defendant. And 1^st Defendant having done so is a dishonest appropriation, which is fraudulent. I have also found that the act of removal of 1^st Plaintiff as a director of 2^nd Defendant was also without any basis and done on the blind side of 1^st Plaintiff. A director of a company cannot be removed by an alleged word of mouth agreement. Where is the evidence that section 185 of Act 179 was duly complied with. Where is the evidence of the ordinary resolution that was passed by 2^nd Defendant at a general meeting to remove 1^st Plaintiff as a director? Where is the notice to remove 1^st Plaintiff as director of the meeting of the 2^nd Defendant? Where is the evidence that section 185(4) was complied with by 1^st Plaintiff being notified of the intention of the 2^nd Defendant to remove him as a director at its general meeting? That act is also an act of fraud perpetuated by 1^st Defendant, I so find and hold and 1^st Plaintiff again succeeds in his claim of fraud against 1^st Defendant in the removal of the former’s name as a director and 43% shareholder of 2^nd Defendant.

ASSETS AND SHARES HELD IN 3^RD DEFENDANT COMPANY

As a corollary to the above issues that have been resolved by the court, it has been stated as one of the issues for determination as to whether the assets of 3^rd Defendant company is being held in constructive trust for the 2^nd Defendant company. Ex ‘12’ is a purported deed of transfer from 1^st Defendant to 3^rd Defendant. Oak House Group Ltd wherein 1^st Defendant claim to own 9,300 shares in 2^nd Defendant company and transfers all those shares to 3^rd Defendant. This 9,300 shares represent 93% shares in 2^nd Defendant Company.

I have found that whatever appropriation of the shares of 1^st Plaintiff by 1^st Defendant was an act of fraud that no court of justice will allow it to stand. For fraud vitiates agreements, contracts and unpack what has been wrapped. Having appropriated shares beyond his original 25% from 2^nd Defendant, it stands to reason that 1^st Defendant had no locus to transfer what does not belong to him. This is the nemo dat quod non habet principle. 1^st Defendant did not own 93% in 2^nd Defendant and could not have transferred same. I think instead of holding that 1^st Defendant is holding those shares transferred which does not belong to him in trust, the act being fraudulent nothing can be founded on it. I rather cancel that deed of transfer and order transfer of those shares not being the shares of 1^st Defendant back to 2^nd Defendant.

How could this be done? 1^st Plaintiff has asked for accounts into the books of 2^nd Defendant. By the provisions of sections 124, 125 and 126 of Act 179, a company is supposed to prepare annual financial statement showing its profit and loss account. Has this ever been done? There is no evidence before me that 1^st Defendant has run 2^nd Defendant as a company but his personal property. I will order an account to be taken of 2^nd Defendant Company as well as 3^rd Defendant company of all its financial dealings since incorporation. Stock must also be taken of all the assets including those that have been dissipated and for a total valuation of the 2^nd and 3^rd Defendants to be known. It is when this is done that that the true financial position and the value of both companies will be known for the shares of 1^st Plaintiff that was honestly appropriated from 2^nd Defendant company to 3^rd Defendant company can be reverted as nothing can stand on fraud and not fall.

It is when this has been done that the future shareholding structure and management may be clarified as to whether the 1^st Plaintiff’s shares may be bought or not due to the current irreconcilable differences between the 1^st Plaintiff and the 1^st Defendant. This approach finds support in a number of cases such as UNION MORTGAGE BANK v SERBEY-YIADOM [1997-98] 1 GLR 1025, a judgment of Vida Akoto Bamfo J (as she then was); GOLDEN GATE SERVICES LTD v GHANA PORTS AND HARBOURS AUTHORITY, Suit No MISC/4/09 dated 17^th March, 2009 – Amadu tanko J. (as he then was).

EVIDENCE RECEIVED REGARDING THE WIFE OF 1^ST PLAINTIFF

Before dealing with the issues of the acquisition of lands and the claim of 2^nd Plaintiff, I cannot rest the above issues without commenting on the nature of the pleadings and evidence of 1^st Defendant.

1^st Defendant accused the wife of 1^st Plaintiff of fraud and tendered the particulars of the page of the passport of the woman as Ex ‘2’, as well as an alleged marriage certificate as Ex ‘3’ and spilled a great deal of ink in his amended statement of defence and witness statement dwelling on that.

The alleged conduct of the wife of 1^st Plaintiff was not an issue at all before me and I think the sole purpose for throwing in such matters was to blackmail the 1^st Plaintiff as if to say, “well if you want to pursue me in court for what is legitimately yours, then I will dirty you”. That is a conduct unseemly of 1^st Defendant who claim to be a lawyer and is symptomatic of a desperate man being drowned and prepared to hold on to a straw.

Exhibits ‘2’ and ‘3’ had no bearing at all in this case and should not have been admitted. At the request of a party or the court on its own motion, has the discretion to exclude the admission of evidence that should not by the rules of evidence have been admitted. See the case of JAXON-SMITH v KLM [2005-2006] SCGLR 438. In this case the court excluded some documents that were admitted during trial even on appeal as inadmissible. I exercise my discretion and exclude Exhibits ‘2’ and ‘3’ as admissible for being scandalous and irrelevant. Those will be remarked as Exhibits ‘R2’ and ‘R3’. I will also order 1^st Defendant to return the passport of the wife of 1^st Plaintiff in his custody within five days after the expiration of the seven days following the delivery of this judgment and upon filing of entry of judgment.

ACQUISITION OF LANDS FOR COMMON USE