KUMASI - A.D 2015
CHIEF ALI & 2 ORS - (Defendant)

SUIT NO:  RPC/81/13

Denhan International (Ghana) Limited instituted the present action against the Defendants herein for these reliefs as set out on its writ of summons filed on 21/03/2013:

a) A declaration that the truck with Registration No. AW 1035 Y is the property of the Plaintiff Company;

b) Recovery of the sum of GH¢107,336.51 from the third Defendant made up as follows:

GH¢29,548.13 which the 3rd Defendant unlawfully authorized his wife to use the Plaintiff Company's ATM card to withdraw without any authorization from Plaintiff;

GH¢54,888.38 which Agyapaddo Construction Works paid to 3rd Defendant personally as proceeds/income accruing from Plaintiff's truck with Registration No. AW 1035Y and GH¢ 22,900.00 which the 3rd Defendant unlawfully withdrew from the Plaintiff's accounts after he had been suspended as director of the plaintiff's company.

c) Interest on the sum of GH¢107,336.51 at the prevailing Bank rate from December 2012, till date of final payment.

d) Recovery of GH¢588,323.75 from the 3rd defendant which said sum were unaccounted for withdrawals made by the 3rd Defendant from the Plaintiff's account between 2011 and 2012.

e) An order cancelling the names (if any) of the defendants on the Plaintiff's truck with Registration number AW 1035 Y.

f) A declaration that the following properties are the properties of plaintiff: two excavators; 2 trucks and 5 flat beds and recovery of possession of the said properties from the 2nd Defendant.

g) General Damages for fraud against the 3rd Defendant for breach of his fiduciary relationship as director of Plaintiff company.

h) Any other relief appropriate in the circumstance of this case.


A gist of the Plaintiff's case is that the 3rd Defendant who used to be its Managing Director, fraudulently misrepresented to the Plaintiff Company that its vehicle with registration number AW 1035 Y purchased in the year 2006 had been sold to one Godfred Asante and subsequently to the 1st Defendant. As required by law, the Plaintiff stated the particulars of fraud as follows:

a) The investigation conducted by Plaintiff's official revealed that the aforementioned truck has been purportedly sold out to one Godfred Asante.

b) Although the said truck was alleged to have been sold out by the 3rd Defendant, the same truck was being treated as the property of the Plaintiff Company.

c) The driver of the truck at all time material was being paid from the funds of the Plaintiff and so were the cost of all the expenses including tires.

d) That after the alleged sale of the truck, the said truck continued to work and the income accruing from the truck in respect of the works done at A.J. Fanj construction limited were paid to Plaintiff but that of other entities like Agyapaddo Construction Works Limited amounting to GH¢ 54,888.38 was personally paid to 3rd Defendant.

e) The alleged sale notwithstanding having taken place in somewhere January 2011, the insurance premium covering the truck were all paid by the Plaintiff until 28th April, 2012 when the 2nd Defendant was alleged to have started payment of the insurance premium in an unexplained circumstance.

f) That the 3rd defendant told officials of the Plaintiff company at a meeting held on 14/11/12 that it was the 1st defendant who pays for the insurance premium covering the truck.

g) That upon subsequent enquiries by an official of the Plaintiff from the 1st Defendant as to who pays the insurance premium covering the truck, the 1st Defendant said it was rather the 3rd Defendant who pays the insurance premium but not him (1st Defendant) and that the 1st Defendant had never dealt with any insurance company with respect to the truck.

h) That a check at MET INSURANCE however indicates that it was the 2nd Defendant that had paid the insurance on the truck from 29/04/12 to 28/04/13.

i) That prior to the meeting with officials of the Plaintiff (supra), the 1st Defendant had contacted officials of MET INSURANCE to change the insurance on the truck into his name which said attempt was rejected/refused by officials of MET INSURANCE.

j) That the finance and Administration manager and the accounting officer of the Plaintiff Company were not a party to the alleged sale of the truck and that there was no evidence of any written document or any amount having been paid into the Plaintiff's accounts in respect of the said truck as evidence of the alleged sale.

k) That as far as the records of Agyapaddo construction works limited is/was concerned, as early as August 2012, the 3rd defendant personally owned the truck and was therefore personally paid GH¢54,888.38 as an alleged owner of the truck.

l) The Plaintiff says the 3rd Defendant failed/refused to reveal to any official of the

Plaintiff that the insurance on the truck had been changed into 2nd Defendant's name and so was the alleged sale.


The Plaintiff alleged that truck with registration number AW 1035 Y is its property and ought to be declared as such by the court and all income accruing from the said truck be retrieved and paid into the Plaintiff's account. The Plaintiff prayed the court to compel the 3rd Defendant to refund the sum of GH¢107, 336.51 and a further GH¢ 588, 323.75 allegedly misappropriated by the 3rd Defendant.


As regards the 2nd Defendant, the Plaintiff alleged that it acquired its assets with monies which the 3rd Defendant siphoned from the 1st Defendant Company and urged the court to declare those assets as assets of the Plaintiff company.


A lawyer filed a defence on behalf of all the Defendants on 29/05/13 but withdrew his services in the course of the trial. The 3rd Defendant averred that he acquired the Plaintiff Company on or about 2006/2007 as a sole director and shareholder but sold out 20% shares each to Denhan Property

Services Ltd., Farah Raymond and David Risvegli about two years later. Following the 3rd Raymond, Defendant's promise to transfer shares to David and Raymond the two offered him a loan of eight hundred thousand US dollars ( $ 800,000.00), premised on the 3rd Defendant's undertaking to transfer share to them and for the loan to be deemed as invested in the Company. It is also the 3rd Defendant’s case that at the time of his so-called suspension, there were spare parts worth GH¢ 200,000.00 in the


Plaintiff's warehouse. On the Financial position of the Plaintiff, the 3rd Defendant alleged that he has clear accounts for the years 2008, 2009 and 2010 where profits between GH¢ 3,000,000.00 and GH¢4,000,000.00 were posted and re-invested. But, for the year 2011, Farah Raymond and David Risevegli caused the accounts to be prepared without his knowledge. He also alleged that per the terms of his employment, he was entitled to a monthly allowance of GH¢1000.00 covering driver, security and houseboy; he was also entitled to travel to Europe (Belgium) two to three times a year to visit his family but he was denied these facilities.


Per the statement of defence, the defendants averred that it was the 3rd Defendant’s personal money that was used to purchase vehicle numbered Aw 1035 Y at a time when he was the only shareholder and he therefore registered the vehicle in his own name. In response to the sale of the vehicle, the defendants averred that the 3rd defendant sold it in his capacity as Managing Director in the year 2007 but it reflected in the company's accounts in 2011. The 1st Defendant also alleged that he bought the said vehicle in the year 2007 at the price of GH¢80,000.00 which he paid to the 3rd Defendant in three installments; that a purchase agreement was prepared to cover the transaction and the 3rd Defendant prepared a form C for him; that the 3rd Defendant handed over to him all documents covering the deal, but due to procrastination on the part of the 3rd Defendant, no formal change of ownership was ever effected at the Driver and Vehicle Licensing Authority ( DVLA). The 1st Defendant also pleaded that he agreed with the Plaintiff, represented by the 3rd Defendant, that the vehicle remain within the pool of vehicles of the plaintiff company and cart limestone as and when necessary for A.J. Fanj Company.


In furtherance of the said agreement, the 1st Defendant averred that the 3rd Defendant was to be responsible for monthly maintenance of the truck, chop money/monthly salary of the driver, insurance expenses and the like and all such expenses were to be deducted from the earnings of the truck. Still on the assets of the Plaintiff Company, the Defendants averred that in the year 2008, A.J.


Fanj Company Ltd sold fifteen (15) double-axle man Diesel Trucks on credit to the 3rd Defendant but they were all captured in the books of the Plaintiff company as its assets notwithstanding the fact that some of the vehicles were registered in his personal name.


On the formation of the 2nd Defendant Company, the 3rd Defendant claimed that in consultation with other directors, he partnered his brother to form that company, obtained a loan from GT Bank and got financial assistance from some friends to acquire assets of the 2nd Defendant. He listed these assets as one truck, three flat beds and one excavator.


After his purported suspension from the Plaintiff Company, the 3rd Defendant's case is that the Plaintiff, represented by Farah Raymond and David Risvegli, opened a different Bank account without reference to him and contacted the Plaintiff's chartered accountant to falsify accounts of the


Plaintiff company for the year 2011 when the 3rd Defendant was in charge of the day-today running of the Plaintiff Company, but failed. He further alleged that he was denied the opportunity to do a proper handing over.


Therefore, the 3rd Defendant counterclaimed against the Plaintiff Company as follows:

a) A declaration that the 3rd Defendant's purported suspension as Managing Director of the Plaintiff company is wrongful and therefore null and void.

b) Recovery of all of 3rd Defendant's monthly salaries/entitlements of GH¢5000.00, including interest thereon at the current bank rate, from November 2012 until date of final payment.

c) Recovery of GH¢1000.00 being monthly allowance for driver, security and houseboy including interest thereon at the current bank rate from November, 2012, until date of final judgment or payment

d) Recovery of GH¢3000.00 being allowance due Plaintiff since November, 2012, for every period of leave that he would have spent with his family in Belgium.

e) An order for accounts for all the period that Farah Raymond and David Risvegli have been running the Plaintiff Company i.e. from November 2012, until date of final judgment.


The 1st and 3rd Defendants also counterclaimed for a declaration that truck with registration number AW 1035 Y is the property of the 1st Defendant since he validly purchased same.

By way of Reply, the Plaintiff averred that Denhan International Ghana was initially incorporated by one Abubakar Mohamed who was a director and 100% shareholder for and on behalf of Denhan International.            He  later  transferred  the  shares  to  the  3rd  Defendant  without  any  monetary consideration. Later, when Farah Raymond became aware of the share structure, he requested 3rd Defendant to change the share structure made up as follows: (a) Denhan Property Services Limited - 30%, (b) Farah Raymond - 20% , (c) David Risvegli- 20% and Mauro Rossi - 20 % which the 3rd Defendant did without any monetary consideration. The Plaintiff also denied the 3rd Defendant's assertions on agreed salary, allowances and other entitlements and maintained that his suspension was lawful. In defence to the Counterclaims, the Plaintiff denied all the averments therein and contended that the 3rd Defendant breached his fiduciary relationship as the Managing Director of the Plaintiff Company.


The pleadings were so lengthy and it comes as no surprise that twelve (12) issues were set down for the trial, namely:

1. Whether or not the truck with registration number AW 1035 Y belonged to the Plaintiff or was rather purchased by 3rd Defendant in his own private capacity?

2. Whether or not the 3rd Defendant had fraudulently converted the vehicle to his own use?

3. Whether or not any other vehicle was purchased in either 1st or 3rd Defendant's personal names?

4. Whether or not any vehicles not belonging to the Plaintiff Company remained within the Plaintiff company's pool of vehicles?

5. Whether or not 2nd Defendant was responsible for the maintenance of the said vehicles in the pool as well as other sundry expenses including insurance premium payments?

6. Whether any of the Defendants have perpetrated fraud on the Plaintiff?

7. Whether or not 3rd Defendant unlawfully withdrew an amount of GH¢22,910.00 from the Plaintiff's account?

8. Whether or not the 2nd Defendant Company was unlawfully set up by the 3rd Defendant?

9. Whether or not the 3rd Defendant's suspension from the Plaintiff's company was wrongful?

10. Whether or not the 3rd Defendant is entitled to a recovery of GH¢5000.00 being monthly salary/entitlements?

11. Whether or not the Plaintiff is entitled to its claims?

Whether or not the 1st and 3rd Defendants are entitled to their counterclaims?


In all civil suits, the burden of proof lies on the party who has made positive allegations or assertions and which have been denied by his opponent. This was stated in the 1959 case of Majolagbi v Larbi and further expounded by Kpegah JA ( as he then was) in Zambrama v Segbedzi (1991) 2 GLR 221 CA. It has also been applied in cases such as Adwubeng v Domfeh (1996-97) SCGLR 660; Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis ( 2007-2008) SCGLR 580; and Continental Plastics v IMC Industries- Technik GMBH ( 2009) SCGLR 298 at 307. In all these authorities, the required standard of proof was stated as "proof by the preponderance of the probabilities" as contained in sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323


In the instant case, the Plaintiff bears the legal burden as well as the evidential burden of proof in respect of the 1st , 2nd , 6th , 7th , 8th        and 11th issues set down for trial. However, the evidential burden in respect of the 3rd , 4th , 5th  , 9th , 10th and 12th  issues rest on the Defendants, as the case may be, in view of the assertions made in their joint statement of defence.


I find it necessary to resolve the 1st, 2nd and 6th issues simultaneously. The need to do so arises from the fact that all these issues are centered on truck with registration number AW 1035- Y, specifically its acquisition, ownership, possession and fraud allegedly perpetrated by any of the Defendants.


A representative of the Plaintiff Company, Farah Raymond, who also described himself as a director of the said company testified on its behalf. He said in evidence that truck with registration number AW 1035 Y was purchased by the Plaintiff Company from A.J. Fanj Co. Ltd. However, it came to his notice in January, 2011 that the 3rd  Defendant had sold the truck to the 1st Defendant and indeed, the 3rd Defendant confirmed this sale at a meeting with staff but he gave conflicting accounts as regards the alleged sale. Through investigations, Farah Raymond said it was revealed that this truck was treated as any other truck of the Plaintiff Company in terms of record keeping and maintenance. He gave a couple of examples thus: (i) the insurance premium in respect of the truck was paid by the Plaintiff Company until 29/04/2012 when the policy strangely changed from Denhan International to Trucks Ghana Ltd; (ii) Vehicle maintenance on the truck and drivers wages were all paid by the Plaintiff. He supported this oral evidence with documentary proof, i.e. exhibit A, the exhibit B series and exhibit F. Continuing, Farah Raymond said this truck worked for two entities, namely, AJ. Fanj and Agyapaddo Construction Ltd. He was quick to point out that whereas A.J. Fanj made payments to the Plaintiff Company, Agyapaddo made payments to the tune of GH¢ 54, 888.00 to the 3rd Defendant as confirmed by the Plaintiff's exhibit D series. He went on to say that the 1st Defendant went to the insurers of this truck ,MET, and attempted to have his name put in the policy as owner of the truck but failed. He supported this assertion by tendering exhibit E.


In cross-examination, Farah Raymond admitted that he directed the 3rd Defendant to sell certain trucks to pay off the Plaintiff's Debts but he was certain that truck with registration number AW 1035-Y was not part. His evidence in respect of the truck in issue was corroborated by another director of the Plaintiff Company, David Risvegli, who testified as PW1. He also indicated that per their records, this truck was working for the Plaintiff Company and at the same time it had been sold to the 1st Defendant. Both Farah Raymond and PW1 were emphatic that the 2nd Defendant Company, Trucks Ghana Limited, which was set up by the 3rd Defendant and his brother could not have acquired such assets. In further proof, PW1 stressed that he personally brought 3rd Defendant to Ghana and 3rd Defendant's brother who is described as a director of the 2nd Defendant was merely following the 3rd

Defendant and was not in any gainful employment. In sum, the witness’ position is that the 3rd Defendant was not in any good financial standing at the time he was working for the Plaintiff Company to enable him acquire substantial assets for the 2nd Defendant Company.


A detective Corporal who investigated an alleged stealing case against Mauro Rossi ( 3rd Defendant herein) tendered in evidence an investigation cautioned statement volunteered by suspect Mauro Rossi in which he admitted that he had not sold truck numbered AW 1035- Y as at the time of his statement. The statement was admitted as exhibit U. Even though the 1st Defendant was in court at the time these witnesses testified, he declined to cross-examine them.


Surprisingly, the 1st Defendant mounted the witness box and gave a rather terse but important testimony as indicated below:


"... I do not know anything about vehicle with Registration number AW 1035 - Y. I know why I have been sued. I filed a document on 30/05/2014 and i would like to tendered it in evidence (exhibit 4). Mauro Rossi owes me money and upon pressing him for my money, he told me he was going to invest the money in a truck at Denhan International. Upon pressuring him, he brought me documents of the truck which was bearing his name. He did not give me any money out of that up to date. I personally have never seen this truck before or know where it is. That is all I have to say."


The court's record shows that after counsel for the Defendants had extensively cross-examined Farah Raymond, he filed a frivolous application for injunction which was thrown out. Thereafter, he withdrew his services and the Defendants stopped coming to court. By an order of this court dated

10/02/2015, hearing notices were served on the Defendants by substituted service after which the 1st


Defendant emerged, but the 2nd and 3rd Defendants never showed up in court for the trial to continue. In the circumstance, the case proceeded without them.


I have assessed all the evidence adduced in respect of the three issues now under consideration. Since the 2nd and 3rd Defendants elected not to participate any further in the trial, the only evidence as regards ownership of the truck in issue is that of the Plaintiff and its witnesses as well as the evidence 1st Defendant. And perhaps, the cross-examination conducted on behalf of the Defendants at a time they had legal representation. Per the evidence of Farah Raymond and PW1, the Plaintiff Company used its money for the setting up and acquisition of the assets of the said company but the 3rd Defendant was given a free hand to see to its day to day affairs, including purchases and disposal of assets. I have perused the exhibit B series which are invoices raised by mbg Ltd, agents of MAN Ltd and receipts evidencing payments in respect of those invoices. All these transactions relate to a vehicle described as MAN TGA 40 480 with Registration number AW 1035 - Y. The transactions were between mbg Ltd as agents of MAN Ltd and Denhan International Ghana Ltd. All payments were received from Denhan International Ghana Ltd by cheque as indicated in the exhibits B series. However, the compilations evidenced by exhibit F, though relevant, are of negligible probative value as far as the issues under consideration are concerned. Why will Denhan Ghana Ltd spend so much money in repairing or maintaining a truck which does not belong to that company and even keep records of the same? To me, it does not make economic and business sense! The Plaintiff's claim of ownership of this truck is more probable than not. As to be expected, the 3rd Defendant admitted in exhibit U which he voluntarily gave to PW2 as follows:


... The Company Denhan International was set up in Ghana in 2007 and I was the director of it. Complainant Farah Raymond was a shareholder and was holding between twenty and twenty-five percent shares. The car, that is, truck with Registration Number AW 1035 - Y was bought by the company but that time I was the only one managing the company so I used my name for its document and is still in my name..."


The above admission supports the Plaintiff Company's evidence that it is the owner of the truck in issue. At all times material, the 3rd Defendant knew that the purchase money of the truck in issue was provided by the Plaintiff but he fraudulently misrepresented to the whole world that he was the owner of this truck. No wonder he disappeared into thin air after volunteering the above statement to PW2.


Again, the 1st Defendant who also asserted ownership of the same truck, set up an entirely different case in court as per his evidence-in-chief quoted above. What is the legal effect ? A couple of judicial precedents will demonstrate the legal implications of the 1st Defendant's dramatic turn. Indeed, in the case of Yaa Semanhyia & Ors v Elizabeth Bih & Ors (2006) 5 M.L.R.G. 184 at 195, Dotse JA ( as he then was) stated:


" It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must fail and or bear the consequences."


Mensa Boison JA in Appiah v Takyi (1982-83) 1 GLR 7 also took the view that:


" where there is a departure from pleadings at trial by one party whereas he other's evidence accords with his pleadings, the latter's is, as a rule, preferable."


In effect, the 1st Defendant whose evidence is a complete departure from his pleaded case stands to lose on these issues.


On the totality of the evidence adduced on these issues, I find that the 3rd Defendant used monies belonging to Denhan International (Gh) Ltd to purchase truck with registration number AW 1035 -


Y. Since the 3rd  Defendant did not provide the purchase money for this truck, he definitely cannot be the owner either at law or in equity. In other words the 3rd Defendant cannot be the legal or equitable owner of truck with registration number AW 1035 - Y since this vehicle ought to have been acquired in the name of the Plaintiff Company.


Throughout the pleadings, the 1st Defendant stance has been that he is the owner of this truck which

he purchased from the 3rd Defendant. In a rather dramatic twist, he contradicted his own case by denying the alleged sale and ownership of this truck. I must say that in the light of the Supreme Court


Decision in Fynn v Fynn (2013/2014) SCGLR 727 at 730 (holding 2), that admission binds the 1st Defendant only. That notwithstanding, it can be reasonably inferred from the evidence of Farah Raymond, David Risvegli (PW1) and the police investigator (PW2) that any purported sale or transfer of the vehicle in issue to any other person or to the 1st Defendant herein was a sham. The alleged sale never took place and there could not have been any agreement as to the management of this truck by the Plaintiff Company on behalf of a non- existing purchaser! The Plaintiff has also established that neither the 1st nor 3rd Defendants paid for the insurance premiums on the vehicle and even though premium was paid by the 2nd Defendant between April 2012 and April, 2013 in respect of this truck, the 2nd Defendant did not have any insurable interest in the same.


From the evidence on record, the particulars of fraud given by the Plaintiff have been proven by cogent evidence. I hold that the 1st and 3rd Defendants actually perpetrated fraud on the Plaintiff as regards the ownership, maintenance and proceeds from the use of Truck with registration number AW 1035 - Y. As was held in Mass Projects Ltd (No 2) v Standard Chartered Bank & Yoo Mart Ltd ( No 2) 2013/2014 (SCGLR) 309 at page 310, " ... fraud vitiates every conduct, and an allegation of fraud , if proven and sustained, would wipe and sweep away everything in its trail as if the thing had never existed". Given the fraudulent manner through which the 3rd Defendant acquired the truck in issue, I order that legal title of truck with registration number Aw 1035- Y must be transferred to the Plaintiff Company who is also entitled to take possession of the same.


The next set of issues for determination are issues 3,4, and 5.  Issues 3 and 4 are whether or not any other vehicle was purchased in either 1st or 3rd Defendant's personal names and whether or not any vehicles not belonging to the Plaintiff Company remained within the Plaintiff Company's pool of vehicles. Going by the well-established principles of proof in civil suits, the evidential burden on these issues rest on the 1st  and 3rd  Defendants. As the evidence of the 1st Defendant shows, none of the Plaintiff's vehicles was purchased in his personal name. The 3rd Defendant refused to appear in court to give evidence in support of the assertions which have culminated in these issues. At the time they had legal representation, their lawyer merely suggested or put to the Plaintiff's representative that other vehicles were purchased in the name of the 2nd and 3rd Defendants but remained within the Plaintiff Company's pool of vehicles. These suggestions were denied when the Plaintiff's representative was cross-examined. Therefore, the burden of proof remained on the defendants as demonstrated in Hilodjie v George (2005/2006) SCGLR 974 at 995 per Wood JSC ( as she then was).


From the evidence before me, i find that no vehicle was purchased in the 1st Defendant's personal name and any purported transfer of title to him was fraudulent. I also find that IVECO TRAAKER A/HEAD with chassis Number WJMS2NRSOOCI23138 and registration number AE 1022-12 was initially registered in the name of the 3rd Defendant but he transferred title to the 2nd Defendant, Trucks GH Ltd as per exhibit X. On the basis of the evidence before me, this truck was also purchased by the 3rd Defendant with monies he siphoned from the Plaintiff Company. As such, Trucks GH Ltd must transfer legal ownership of the truck with Registration number AE 1022-12 to the Plaintiff Company. The Plaintiff Company is also at liberty to recover possession of the said truck.


I now move to issue 7, i.e. whether or not the 3rd Defendant unlawfully withdrew an amount of GH¢22,910.00 from the Plaintiff's account? This issue arises from paragraph 9 of the Plaintiff's statement of claim which reads:


The Plaintiff says upon the suspension of the 3rd Defendant however he surreptitiously went behind the officials of plaintiff and withdrew a total of GHS 22,900 from the Plaintiff's account in November, 2012, without lawful authority.


In paragraph 16 of the statement of defence of the Defendants, the 3rd Defendant made the following admission:


The 3rd Defendant admits paragraph 9 of the statement of claim to the extent that he withdrew twenty-two thousand nine hundred Ghana Cedis (GH¢22,900.00) from the Plaintiff company account but denies having done so "surreptitiously" or without lawful authority.


From the foregoing, the fact of withdrawal of GH¢22,900 is no longer in issue. What the court must resolve is whether or not the 3rd Defendant withdrew the money unlawfully. The evidential burden on this rests on the Plaintiff. This burden was discharged by Farah Raymond and David Risvegli (PW1) whose evidence clearly shows that at the time these withdrawals were made, the 3rd Defendant (Mauro Rossi) had been suspended by the majority shareholders of the company but he still went ahead to withdraw the said amount without the consent of the Plaintiff Company. In the absence of any evidence to the contrary, I find that the withdrawals totaling GH¢ 22,900.00 made by the 3rd Defendant without the consent of the Plaintiff when he knew of his suspension from the Plaintiff Company is unlawful.


This brings on board the 9th issue as to whether or not the 3rd Defendant's suspension from the Plaintiff Company was wrongful?


From the pleadings, the 3rd Defendant is the person who is challenging his suspension and the proof thereof rests on him. He simply chose not to come to court irrespective of service of numerous hearing notices. Thus, the evidential burden did not shift onto the Plaintiff who disagrees with that assertion.


That notwithstanding, the Plaintiff's representative and PW1 who are majority shareholders of the Plaintiff Company introduced some relevant evidence which cannot ignored. These majority shareholders told the court that they voted to suspend the 3rd  Defendant as the Plaintiff's Managing Director on 14/11/2012. In the absence of any credible evidence against the suspension of the 3rd Defendant as Managing Director of the Plaintiff Company, I accept the Plaintiff's version that the said suspension was lawful.


Another important issue which the court must determine is whether or not  the 2nd Defendant

Company was unlawfully set up by the 3rd Defendant? Before determining this issue, there is the need to state who qualifies to form a company in Ghana. It is provided under section 8 of the Companies Act 1963 Act 179 as follows:


8.  Right to form a company

Any one or more persons may form an incorporated company by complying with this Act in respect of registration.


On that basis, the 3rd Defendant had a right to form the 2nd Defendant Company provided he complied with the provisions of the Company's Act. No evidence was adduced by the Plaintiff to prove that the directors of the 2nd Defendant Company failed to comply with any provision of the Company's Act as regards the formation of Companies. The Regulations of the 2nd Defendant Company were also not brought to the notice of this court for its objectives to be ascertained. But, if it's objects were illegal, the Registrar of Companies would obviously not have registered it. However, the evidence adduced on behalf of the Plaintiff Company, particularly, that of PW1 lead to the irresistible conclusion that after the 2nd Defendant Company had been set up, the 3rd Defendant siphoned monies belonging to the Plaintiff Company to acquire assets in the name of the 2nd Defendant Company. As of the time PW1 was testifying, the 3rd Defendant had returned a substantial part of those assets to the Plaintiff Company. PW1 gave these assets as 5 flat beds, one truck and copies of title documents to an excavator and another truck. I conclude that the 3rd Defendant whilst in the employment of the Plaintiff Company deliberately set up the 2nd Defendant Company and succeeded in using monies belonging to the Plaintiff Company to acquire all the assets of the 2nd Defendant Company.


Is the Plaintiff Company entitled to its claims as endorsed on the writ of summons? I will start with the claim for recovery of GH¢ 107,336.51 which has three components, namely, (i) cheques issued by Agyapaddo Construction Ltd, (ii)ATM withdrawals abroad and (iii) withdrawals made by the 3rd Defendant in Ghana. The cheques issued by Agyapaddo Construction works Ltd (exhibit D series) in the name of Mauro Rossi, the exhibit C series (analysis of the payments) and the oral evidence of Farah Raymond are sufficient proof of the fact that a total amount of GH¢ 54, 888.38 meant for the Plaintiff Company was received by the 3rd            Defendant in his personal capacity and he failed to account for the same to the Plaintiff. I have already found in the course of this judgment that the 3rd


Defendant unlawfully withdrew an amount of GH¢22,900.00 from the Plaintiff's account after his suspension as Managing Director of the said Company as in exhibit Q. That is the second component.


The monies said to have been withdrawn by the 3rd Defendant's spouse using an ATM card of the

Plaintiff Company which was under the control of the 3rd defendant is next. The Plaintiff's exhibit P1 depicts that these monies were withdrawn at locations in Europe and that frequent withdrawals were made at a place called Meise in Belgium. A Google Map showing the location of Meise where the transactions took place was put in evidence as exhibit P1. The evidence shows that during the same period, 3rd Defendant was making withdrawals from the Plaintiff's bank accounts in Ghana. Since the 3rd Defendant's spouse had no authorization from the Plaintiff to withdraw monies from its accounts, all such withdrawals, whether or not with the consent of the 3rd Defendant were unlawful. All these happened under the watch of the 3rd Defendant who stood in a fiduciary relationship with the Plaintiff Company. This is a serious breach of the 3rd Defendant's fiduciary relationship. Under the circumstance, I will allow the Plaintiff to recover all the ATM withdrawals amounting to GH¢ 29, 252.77 as in the exhibit P series from the 3rd Defendant. The Plaintiff is therefore entitled to recover the sum of GH¢107,041.15 from the 3rd Defendant.


Certainly, the 3rd Defendant has denied the Plaintiff Company of the use of this money and he is required to pay interest on the amount. See Akoto v Gyamfi Addo (2005-2006) SCGLR 1018. The transactions culminating in this debt occurred at different times in the year 2012. I will therefore order the 3rd Defendant to pay interest on the sum of GH¢107, 041.15 at the prevailing bank Rate from December, 2012 to the date of delivery of judgment. The 3rd Defendant is further ordered to pay post judgment interest on the said amount at the prevailing bank rate from the date of delivery of judgment till date of final payment. For the avoidance of doubt, the 91 days Treasury Bills Rate of the Bank of Ghana is to be used as the Prevailing Bank Rate.


In respect of the recovery of the sum of GH¢588, 323.75 said to have been siphoned from the Plaintiff Company, the evidence of PW1 is to the effect that the 3rd Defendant told him he used the money to acquire the assets of the 2nd Defendant which he listed as two excavators, two trucks and 5 flat beds. According to PW1, the 5 flat beds and one truck have been recovered from the 3rd Defendant. The outstanding assets to be recovered are truck with registration number AE 1022 - 12 and two excavators. One of the excavators has been described in exhibit Y as KOMATSU PC240 LNC 6K which was imported in the name of Trucks GH Ltd. details of the second excavator are unknown. It is the duty of the Plaintiff to trace the second excavator and to recover possession of the same since no evidence has been led as regards the value to enable the court to make a monetary award. No evidence whatsoever was introduced in respect of the current market value of the assets recovered from the 2nd and 3rd Defendants. If that had been done, the court would have been in a position to ascertain the total value of these assets as against the sum of GH¢ 588, 323.75 which the Plaintiff is claiming. The Plaintiff failed in that duty.


In the circumstance, it will be unjust to allow the Plaintiff to recover the monies used in acquiring these assets from the 3rd Defendant . This is because the assets so acquired using the Plaintiff's monies have been substantially recovered by the Plaintiff. As to the time these assets were recovered and whether the Plaintiff has made use of the same, that information was suppressed. It is unclear whether legal title of these assets registered in the name of the 2nd Defendant and /or the 3rd Defendant have passed to the Plaintiff who is now in possession. Appropriate orders will be made to that effect at the end of this judgment.


The 1st & 3rd Defendants as well as the 2nd Defendant acting through the 3rd Defendant have indeed perpetrated fraud on the Plaintiff Company, albeit at varying degrees. This suit could have been avoided if all the Defendants had been candid. The Plaintiff Company has been financially over burdened by virtue of the fraudulent actions of the Defendants. The Plaintiff is not in a position to know how much the Defendants profited from their ill-gotten gains before handing over some of the assets to the Plaintiff Company. If the Plaintiff Company had invested all the monies siphoned, it would have made considerable returns. The Plaintiff Company has indeed suffered an extreme financial inconvenience as a result of the fraudulent acts of the Defendants and ought to be compensated. The Supreme Court held in the case of Delmas Agency (GH) Ltd v Food Distributors International Ltd ( 2007/2008) 2 SCGLR 748 at 760 thus:


“General damages is such as the law will presume to be the natural or probable consequences of the defendant's act. It arises by inference of law and therefore need not be proved by evidence..."


Per the reliefs sought by the Plaintiff, damages for fraud was sought against the 3rd Defendant only. However, on the totality of the evidence before me, I have found that all the defendants did act fraudulently. Under the omnibus relief sought by the Plaintiff, I hereby award punitive damages against the fraudulent Defendants and in favour of the Plaintiff as follows: 1st Defendant - GH¢ 30,000.00; 2nd Defendant - GH¢ 70,000.00 and 3rd Defendant GH¢ 100,000.00.

Judgment is entered in favour of the Plaintiff company against the Defendants as follows:

1st Defendant - Punitive Damages of GH¢30,000.00.

2nd Defendant- Punitive Damages of GH¢ 70,000.00.

3rd Defendant - the sum of GH¢ 107, 041.15 plus interest at the Bank of Ghana Treasury Bill Rate and Punitive Damages of GH¢ 100,000.00.


I also declare Denhan International (GH) Ltd as legal owners of the following assets and they are entitled to recover possession of the same:

i. Truck with Registration number AW 1035- Y;

ii. Truck with Registration number AE 1022-12;

iii. The 5 flat beds currently in the possession of the Plaintiff Company;

iv. KOMATSU PC240 LNC 6K excavator and one other excavator bearing the name of Trucks (GH) Ltd to be traced by the Plaintiff Company;

v. Any other truck registered in the name of Trucks (GH) Ltd.


I further order the Driver Vehicle Licensing Authority (DVLA) office(s) where these Trucks were registered to transfer ownership to Denhan International (GH) Ltd. In the event that any of these motorized assets were not registered, they are to be registered in the name of Denhan International (GH) Ltd.


The Defendants Counterclaims are dismissed as unmeritorious.


It is said that cost follows the event. The Plaintiff's representative who gave evidence-in-chief on its behalf had to travel from the United Kingdom to attend court on several occasions. The case suffered numerous adjournments at the instance of the Defendants. In short, the Defendants conduct did make the litigation very expensive to the Plaintiff Company in terms of time, money and the associated risks in travelling to attend court sessions! Having taken into consideration the provisions of Order 74 of C.I. 47 on costs, I hereby award cost of GH¢10,000.00 against each Defendant in favour of the Plaintiff Company.