IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
GHANA ORGANIC AGRICULTURAL NETWORK - (Plaintiff)
TIMOTHY K. ABORAH & ORS - (Defendant)
DATE: 9TH JULY, 2015
SUIT NO: OCC/2/13
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ISAAC KANKAM FOR PLAINTIFF
KWAME WIREDU FOR DEFENDANTS
By its amended writ of summons and statement of claim filed on 31/05/2013, the Plaintiff herein, sued per its Director Secretary for the reliefs as set down below:
1. An Order of the Court for the offices of the Plaintiff Company to be opened to its Directors.
2. An Order of the Court declaring the 1st and 3rd Defendants as not being Executive Officers of the Plaintiff Company.
3. An Order of the Court declaring the conduct of the Defendants as illegal.
4. An order of the Court declaring the Plaintiff Company as owners of their office premises situate at Cadbury Hall, Kumasi.
It is the Plaintiff's case that Ghana Organic Agriculture Network (G.O.A.N.), made up of farming groups as well as individual farmers, was formed by its directors namely, Joseph Adu Gyamfi, Asare Boahen, Paul Arthur and Appiah Kubi. These directors registered the Organization with Joseph Adu Gyamfi as its Secretary. At an Annual General Meeting in 1999, the 1st and 2nd Defendants were elected as executive officers to serve a two year term ending 2001 in consonance with the organization's constitution. It is also the Plaintiff's case that although the tenure of the 1st and 2nd Defendants elapsed in the year 2001, they continue to be in office and have connived with the 3rd and 4th Defendants and have withdrawn all monies in the Plaintiff's accounts in SG-SSB and Agricultural Development Bank. Besides, the Defendants have removed the directional sign board ; locked up all the doors to the office and thereby preventing other officers from using the office. Since the year 1996, Mr. Adu Gyamfi says he has personally done all renewals at the Registrar General's Office on behalf of the Plaintiff herein. Presently, the Plaintiff says that the Defendants are no longer officers of the Organization.
In their statement of defence, the Defendants averred that the Plaintiff organization is made up of Community Based Organizations, Farmer Organizations, N.G.O.'s, Individuals and other organizations interested in the promotion of Organic Agriculture. Indeed, this averment was admitted by the Plaintiff in its Reply.
On their part, the Defendants deny that Joseph Adu Gyamfi is a director of G.O.A.N. in view of the fact that the organization has an Executive Committee but not Directors. It is their case that Joseph Adu Gyamfi is not an Executive Committee Member but he belongs to a farmer group which is a member of the Plaintiff Organization. The Defendants say that they are still officers of the Plaintiff Organization. The Plaintiff's assertion that officers are to be elected at the Organization’s AGM every two years was also denied. The Defendants version is that elections are held every two years at the Organization's National delegates Conference vide article X1 (A) of their Constitution. Again, the Defendants refuted the allegations of Company Renewals done by Joseph Adu Gyamfi, stating that the renewals of NGO's is not done every year. Concluding, the Defendants stated that they have not locked up the offices of the Organization and have not removed any directional sign board.
The issues to be tried are stated below:
Whether or not Joseph Adu Gyamfi is the Director of the Ghana Organic Agriculture Network, an NGO?
Whether or not the said NGO has Directors
Whether or not the 1st and 2nd Defendants are legally in office as Executive Members?
Whether or not the NGO was required under law to renew its registration periodically?
Whether or not the Plaintiff is entitled to his claims?
Before delving into these issues, certain matters which go to the root of this case need to be determined. First, is Joseph Adu Gyamfi in his capacity as a Director /Secretary of G.O.A.N. properly before this court ? Or, By what means can a Company seek redress or initiate proceedings in Court?
In the case of Bank of West Africa Ltd v Appenteng & Ors (1972) 1 GLR 153, the Court held that a company as a legal entity has the right to sue in respect of a wrong done the Company but not the shareholders. G.O.A.N. does not have shareholders so that portion is inapplicable here. How does a company act? By virtue of section 137(1) of the Companies Act, 1963 Act 179, a Company can act through its members in general meeting or its board of directors or through officers or agents, appointed by, or under the authority derived from the members in general meeting or the board of directors. The Plaintiff in the instant suit has come to court per its Director/Secretary. It is my candid opinion that a Director of a Company is a proper person to initiate an action in the name of a Company when the circumstances show that he is acting in the best interest of the company as a whole "so as to preserve its assets, further its business, and promote the purposes for which it was formed" in terms of section 203(2) of Act 179. So, on the face of the amended writ of summons and statement of claim, the action is properly before the court.
Second, the controversy between the names “Ghana Organic Agriculture Network" and “Ghana Organic Agricultural Network must be settled.
I notice that exhibit 4e has on it "Ghana Organic Agricultural Network" even though that document is linked to the certificate of incorporation which the Plaintiff tendered as exhibit A and Defendant also tendered as exhibit 2. Exhibits A and 2 are also the same as exhibit 4 tendered by DW1 who is an officer from the Registrar General's Department. They all make reference to Ghana Organic Agriculture Network. All the annual returns filed at the Registrar General's Department under the registration number of Ghana Organic Agriculture Network , i.e. G- 348, spanning from 1996 to 2012 described the Company as Ghana Organic Agricultural Network. Indeed, the initial title of this suit was Ghana "Organic Agricultural Network" until an amendment was effected to read "Ghana Organic Agriculture Network". It is my considered opinion that the " Agricultural" appearing in some of the documents of the Plaintiff Organization is a typographical or error in writing but in substance and reality, there is only one company registered as Ghana Organic Agriculture Network in 1995 with registration number G-348. It will be helpful if steps are taken in future to rectify these errors at the Registrar General's Department.
I intend to resolve issues two and three together. That is whether or not the Plaintiff NGO has directors; and, if so, whether Joseph Adu Gyamfi is a director?
Both parties agree in their pleadings that "G.O.A.N." is a Non-Governmental Organization (N.G.O.). Joseph Adu Gyamfi who instituted this action on behalf of the Plaintiff testified that the Plaintiff is a registered organization Limited by Guarantee. In support of this assertion, he tendered in evidence the certificate of Incorporation of the organization (exhibit A); Certificate to commence Business (exhibit D); Returns of particulars of Company Form 3 (exhibit B) and Receipts evidencing payments for renewals for 17 years (exhibits C and C1). He explained that he renewed the certificate of incorporation after 17 years in his capacity as director and secretary. He gave further details about the registration by stating that Joseph Adu Gyamfi, Asare Boahen, Paul Arthur and Appiah Kubi were the first directors when the organization was registered in the year 1995.
The 1st Defendant also gave evidence and confirmed that the Organization came into existence on 29/09/1995 and registered at the Registrar General’s Department in Accra. On the same day, he said the organization was issued with a certificate of incorporation (exhibit 2). Further, he testified that a Certificate of Incorporation is not renewable as far as N.G.O's are concerned. Concerning the Certificate of Incorporation (exhibit B), tendered by the Plaintiff, he said in cross-examination by Counsel for Plaintiff thus:
Q. Look at exhibit B. It is the Form 3 which accompanied the registration of Ghana Organic Agriculture Network.
A. I now say that there is a difference between exhibit B and what i have.
We do not have the names on exhibit B as the people who are directors of G.O.A.N. Exhibit B is either fictitious or they might have changed what we have in the office. Our association is Ghana organic Agriculture Network but exhibit B is Agricultural Network. We do not know the directors on exhibit B apart from Adu Gyamfi who is a member of our association."
Q. Are you saying by your answer that exhibit B reads "Agricultural"?
A. It states Ghana Organic Agricultural but the letters 'al' have been altered to read 'e'.
Q. You told the court you have an original copy on your file?
A. Yes. ...
At this point, a Form 3 bearing the names Joseph Adu Gyamfi, Asare Boahen, Paul Arthur and Appiah Kubi were tendered through the 1st Defendant as exhibit N and the cross-examination continued in this manner:
Q. Look at exhibit N and tell the court what has been written in the middle in deep ink?
Q. And under the directors do we have some names?
A. Joseph Adu Gyamfi
Q. By Joseph Adu Gyamfi you are referring to the representative of the Plaintiff here?
A. He is
Q. What other names appear?
A. Asare Boahen, Paul Arthur and Appiah Kubi.
Q. Look at exhibit which you say has been altered . Mention the names of the Directors thereon?
A. Joseph Adu Gyamfi, Asare Boahen, Paul Arthur and Appiah Kubi.
Q. Because the business was registered under the Companies Code, there ought to be directors
A. I do not accept this because what we have in our constitution is executives and that is what we registered.
If there was something wrong, Registrar General would have told us...
Q. Exhibit B does not have your name as one of the directors?
A. My name is not here but i am still an executive member. We do not have directors as far as Ghana Organic
Agriculture Network is concerned.
The Defendants subpoenaed the Registrar General, and his representative by name Martha Clara Moore testified in court. The following part of her evidence is very important :
" I am here on a subpoena to give evidence on behalf of the Defendants. The Organization is Ghana Organic Agriculture Network. I have two certificates here. The first one Was registered in 1995, and the second, 2012, i.e. September 2012. They bear the same name, Ghana Organic Agriculture Network as well as the same registration number which is G- 348. The current one is the certificate to commence business whilst that of 1995 is certificate of incorporation. I only have the Regulations of a company limited by guarantee which they filed.
There was no constitution from the organization on the file. In respect of the directors, there has been an amendment. They filed form 17 to appoint certain people. There is also another document which is used for fresh registration i.e. Form 3. It also bears three of the new names on the form
According to DW1, it was Joseph Adu Gyamfi who initiated the amendment in the year 2012. The witness said she observed an unusual trend on the file and under cross-examination, she explained that a Form 17 is used for amendments but in the 2012 amendment initiated by Joseph Adu Gyamfi, a Form 3 which is usually used for fresh registrations was filed.
Other documents tendered by DW1 include the Regulations of "Ghana Organic Agricultural Network" dated 29/09/1995 (exhibit 4 e and Annual Returns of Ghana Organic Agricultural Network (exhibit 5 series).
By clause 5(1) of exhibit 4e, the Board of Directors of the Association are to be known as the Executive Council and the first members of the Executive Council are: Joseph Adu Gyamfi, Kofi Agyirey-Kwakye, George Kwame Ofosu and Godsway Mac Bright.
On the two issues under consideration, Counsel for the Plaintiff argued that from exhibit D, and the evidence of DW1, the Plaintiff Organization was registered at the Registrar General's Department in compliance with sections 27 and 28 of the Companies Act and there is no doubt about the Plaintiff having directors. Counsel submitted that the Defendants failed to introduce any convincing evidence to discredit the plaintiff's case that by virtue of exhibits A and B, Joseph Adu Gyamfi has at all times material remained a Director of the Plaintiff organization. Referring to sections 184 and 185 of the Companies Act, 1963 Act 179, Counsel outlined the grounds for the removal of directors. He crowned his arguments with the case of Pinamang v Abrokwa (1991) 2 GLR 398 . Concluding, Counsel stressed that Joseph Adu Gyamfi has not been removed in accordance with the laid down procedure in the Companies Act and he remains a director of the Plaintiff Organization or Company and that he has brought this action in that capacity and in the best interest of the company as a whole so as to preserve the assets of the Company. Section 203(2) of Act 179 was also cited by Counsel.
It stands undisputed from the pleadings and the evidence on record that Ghana Organic Agriculture Network was registered in the year 1995 as a company Limited by Guarantee under the Companies Act, Act 179, after it had submitted its regulations as in exhibit 4e. It is mandatory for all companies registered after the commencement of Act 179 to have at least two (2) directors as stated under section 180 of the Act. Subject to this, the number of directors shall be fixed in accordance with the Company's Regulations. By section 181(2), the first directors of a company shall be named in the Company's Regulations and can be removed in accordance with the relevant provisions of the Act. The appointment and removal of directors of private companies are governed by section 272 of Act 179 thus:
(1) The appointment and removal of directors of a private company shall, subject to sections 180 to 185, be regulated by the company's Regulations.
(2) In the absence of a contrary provision in the
Company's Regulations, each of the existing Directors shall continue to hold office until the director vacates office under section 184 or is removed from office under section 186; and the Company may at any time by ordinary resolution fill a vacancy in the number of directors and may at any time by ordinary resolution increase the number of directors, but the total number of directors shall not exceed the maximum prescribed by the Regulation".
In the instant case, there is no provision in the G.O.A.N. Regulation that controls the appointment and removal of directors. Also, there is no credible evidence of an ordinary resolution passed to remove the directors even though the evidence shows that only Joseph Adu Gyamfi has been active. In the circumstance, the provisions of section 272 of Act 179 are applicable.
In the case before me, the Plaintiff has established that Ghana Organic Agriculture Network was formed and registered in 1995. This is further confirmed by the evidence of the 1st Defendant who specifically gave the date as 29/09/1995. In line with the requirements of sections 16 to 23 of Act 179, the Plaintiff had its regulations registered as evidenced by the Defendant's exhibit 4e. Apart from exhibit 4e, the Plaintiff failed to bring any other Regulations of Ghana Organic Agriculture Network to the notice of this Court. Exhibit 4e is therefore binding on the company itself, the officers and members
By Clause 5 (1) of exhibit 4 e, the Board of Directors are to be known as the Executive Council. So in reality, the Executive Council Members are the Board of Directors of the Plaintiff Organization. I agree with Plaintiff's Counsel's submissions that without naming directors, Ghana Organic Agriculture Network could not have been registered as a Company under Act 179 in 1995. I find that the first members of the Executive Council, namely, Joseph Adu-Gyamfi, Kofi Agyirey-Kwakye, George Kwame Ofosu and Godsway Mac Bright, are the first Directors of G.O.A.N. The names mentioned in the evidence of the Plaintiff's Representative could not have been the names of the first Directors of G.O.A.N. to the extent that apart from Joseph Adu Gyamfi, the other names never featured in any of the documents filed at the Registrar General's Department at the time of first registration on 29/09/1995. Conversely, the Defendant's story that Joseph Adu Gyamfi is not a member of the Executive Council but was only co-opted to assist the executive is not credible in terms of the Defendant's own exhibit 4e and the same will not be relied on. In other words exhibit 4e is inconsistent with the Defendants own case. In terms of exhibit 4e, Joseph Adu Gyamfi was named as a director from the inception of the Organization on 29/09/1995 irrespective of how the directors were described. For under section 179 of the Act , “directors” means those persons, by whatever name called, who are appointed to direct and administer the business of the company.
I cannot proceed without commenting on exhibits B and N which Joseph Adu Gyamfi rely on to support his contention that he is a director of Ghana Organic Agriculture Network. I do not have any doubt about the name of Joseph Adu Gyamfi on these documents as a director because there is no credible and satisfactory proof that he has been validly removed as a director under the provisions of section 272 of Act 179. However, I have some reservations with respect to the other three persons whose names appear therein as Directors of GO.A.N., especially so when the Defendants have denied knowledge of such Directors. The Plaintiff's evidence is silent on this. He merely stated that the organization was first registered on 29/09/1995 and that an Extra Ordinary Meeting (EGM) was held on 22/10/; representatives of 51 groups were present and new executives were elected as per exhibit J. He added that by virtue of exhibit B, the directors of the organization are himself, Asare Boahen, Paul Arthur and Appiah Kubi. I have still not found a solution to this puzzle- i.e. how did Asare Boahen, Paul Arthur and Appiah Kubi become directors of G.O.A.N.? Assuming that the Extra Ordinary General Meeting (EGM) held on 22/10/2005 was valid, were those people appointed as the new Directors or better still, as the New Executive Council Members to replace those in exhibit 4e? Or, have the executive Council members in exhibit 4e been validly removed? I have not yet considered the validity of the EGM but on the face of exhibit J, specifically, page 7, the following people are said to be elected as Executive Committee Members:
1. Mr. Yaw Akoten- Assamoah - Chairman
2. Mr. Raymond Kwarteng - Vice Chairman
3. Mr. Eric Dwomoh - General Secretary
4. Rev. Amadie Agyapong - Assistant General Secretary.
5. Mr. Adu Gyamfi Joseph - Treasurer
6. Mr. Emmanuel Antwi - Member
7. Nana Kwaw Addo - Member
8. Madam Margaret Asare - Member
9. Madam Yaa Foriwaa - Member
10. Nana Yaw Agyei - member
11. Mr. Yiadom Boakye - Member.
The confusion continues. The Regulations of Ghana Organic Agriculture Network (exhibit 4e) talk about Executive Council Members who are the Board of Directors of the Company. There is no mention of Executive Committee in the said Regulation. However in the Constitution of the Organization which the parties seek to rely on, "Executive Committee" is used. It will be reasonable to presume from these established facts that the Plaintiff Organization intended to use the words "Council" and "Committee" interchangeably and that they should be given the same meaning.
Joseph Adu Gyamfi in his evidence sought to justify the change in the directors by relying on selections and appointments made at an EGM which was convened on 22/10/2005 as per the proceedings exhibited as J. It is necessary to determine whether the said EGM and the proceedings of the same are valid in order to arrive at a conclusion that G.O.A.N has duly appointed new Directors or New Executive Council Members. Even though the Regulations of the Plaintiff Company was a bit deficient in terms of its content, specifically non-compliance with section 9A of Table B, Part two of the second Schedule of Act 179, all the Annual returns filed at the Registrar General's department and tendered as exhibit 5 series bear a certificate that it is a private Company. This is irrespective of the fact that their membership exceeds 51. On that basis, i conclude that GOAN is a Private Company.
It is provided under Section 150 (3) of Act 179 as follows:
Section 150 (3)
"An extra ordinary general meeting of a private company may be requisitioned in accordance with section 271 ..."
For the sake of emphasis, i will set out section 271 in extenso:
Section 271 REQUISITIONING EXTRAORDINARY GENERAL MEETINGS OF A PRIVATE COMPANY
(1) The directors of a private company, despite a provision in its Regulations, shall duly convene an extraordinary general meeting of the company on the requisition of
(a) two or more members of the company or a single member holding not less than one-tenth of the shares of the company, or
(b) in the case of a company limited by guarantee, one- tenth of the total voting rights of the members of the company.
(2) The requisition shall state the nature of the business to be transacted at the meeting and shall be signed by the requisitionists and sent to or deposited at the registered office of the company.
(3) If the directors do not, within seven days from the date of receipt of the requisition at the registered office of the company, proceed duly to convene a meeting for a date not later than twenty-eight days after the receipt of the requisition, the requisitionists or any of them may themselves convene a meeting but a meeting so convened shall not be held after the expiration of four months from that date.
(4) The reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company and the sum of money so repaid shall be retained by the company out of the fees or other remuneration of the directors who were in default.
(5) For the purposes of this section, the directors have not proceeded duly to convene a meeting if they do not, within seven days after the receipt of the requisition at the registered office, cause notices of the meeting to transact the business specified in the requisition to be given in accordance with sections 152 to 155.
Section 271 (1) (b) is applicable to G.O.A.N. since it is a private Company Limited by guarantee. In that case, was the right procedure followed with respect to the EGM held on 22/10/2015? To resolve this, i turn to the Plaintiff's exhibits H and H1. The contents of exhibit H are as follows:
REQUISITION OF EXTRA-ORDINARY GENERAL MEETING SECTION 271 OF THE COMPANIES CODE, 1963 (ACT 179)
WE,The undersigned members of GHANA ORGANIC AGRICULTURE NETWORK (GOAN) do call upon you as Directors of the Company to Convene an Extra-Ordinary General Meeting of the Company. The business to be transacted are:-
a) Consideration of the Accounts and Reports of the Directors and Auditors
b) The election of Directors.
c) To evaluate the performance of existing Directors
d) The fixing of the remuneration of the auditors.
DATED AT KUMASI THIS 2ND DAY OF AUGUST 2005.
BOARD OF TRUSTEES/DIRECTORS
1. JOSEPH ADU GYAMFI representing YOUTH FOR ENVIRONMENT DEVELOPMENT AND COOPERATION
2. DANIEL K. BOACHI YIADOM representing AMPOYOO KUROFROM FARMER
3. THEOPHILUS GYAMFI representing JAGTRA PRODUCTS CO.LTD.
4. NANA OWUSU representing DAWUMAN SUSTAINABLE AGRICULTURAL ASSOCIATION.
Exhibit H1 contains a notice of EGM dated 19/09/2005. It is addressed to all members of GOAN, the Executive Committee Chairman of GOAN and all Executive Committee Members. The business to be transacted at the said EGM are:
Consideration of the Directors report
Consideration of Auditors Reports
Election of Directors
Evaluation of the performance of existing Directors
Fixing of the remuneration of the auditors
Upon receipt of exhibit H, the executive committee wrote exhibit P dated 11/10/2005 to the members and it states in part as follows:
RE: EXTRA ORDINARY GENERAL MEETING OF THE GHANA ORGANIC AGRICULTURE NETWORK(GOAN)
We write with shock an invitation letter captioned as above, in which people who call themselves concerned members have written to you concerning the above mentioned meeting, scheduled to come off on the 22nd October, 2005 at 9am at the MOFA conference Hall in Kumasi.
We the members of the Executive Committee of GOAN want to state categorically to the effect that we have not called any meeting. Those who called the meeting have not been mandated to do that and have no constitutional right to call a general meeting of GOAN members.
The Executive Committee has the prerogative or right to convene any meeting of the network. There has not been any agreement between the solicitors involved in the litigation...
All well-wishing members of GOAN should ignore the invitation letter to the Extra Ordinary General Meeting because it is unconstitutional and must be declared null and void.
Members who attend the meeting, do not meet in the name of GOAN and do so at their own risk.
Mr. Timothy Aborah Mr. George K. Ofosu
Member, Executive Committee Member, Executive Committee.
It can be gathered from the contents of exhibit P that the Executive Committee Members failed to appreciate fully the provisions of section 271(1) (b) of Act 179. It is as if they intended to take away the members statutory rights therein to requisition an EGM. Certainly, the mandate of the Executive Committee members does not extend to forcibly taking away the rights of members to requisition an EGM under section 271 (1) (b) of Act 179. I would have thought that the Executive Committee will comment on the number of the requisitionists and whether they hold at least 10% of the voting rights. On the face of exhibit P, the Executive Committee did not challenge exhibit H on this basis irrespective of the fact that they have the list of members in their possession. In the circumstance, i find that exhibit H signed by representatives of four member groups of GOAN and stating the nature of the business to be transacted satisfies the provisions of section 271 of Act 179 as regards persons entitled to requisition for an EGM.
Pursuant to the service of exhibit H on the Executive Council (Committee) of GOAN, they were required to convene an EGM within seven days in consonance with sections 271(1) and (5) of Act 179. On the evidence presented by the Plaintiff, the Executive Council failed to convene an EGM in compliance with section 271(3) of Act 179. This failure on the part of the Executive Council paved the way for the requisitionists or any of them to convene a meeting and the meeting so convened shall not be held after the expiration of four months from the date of the requisition. Notice of the EGM was given to members in a letter dated 19/09/2005 (exhibit H1) and the meeting was held on 22/10/2005. This also satisfies the minimum 21 days notification under section 152 of Act 179. See Luguterah v Northern Engineering (1979) GLR 477.
Minutes of the EGM held on 22/10/2005 have been admitted in evidence as exhibit J. On the face of it, the meeting was attended by representatives of 51 farmer groups or organizations. The Plaintiff’s representative who gave evidence admitted under cross-examination on 01/08/2013 that the 51 people are less than 2/3 required to form a quorum as enshrined in their Constitution but was quick to add that the constitution was set aside at the said meeting. This is what transpired during cross-examination on the same date:
Q. How many members has your organization?
A. We were over 90 groups according to a letter I received which was recent.
Q. By your Constitution, an emergency meeting held must be by 2/3 of the members thereof?
A. That is correct.
Q. But your meeting was attended by only 51 members?
A. That is correct.
Q. You did not form a quorum?
A. We set aside the constitution because for more than six years there had not been an AGM. The meeting was called based on the Companies Code.
Quorum refers to the number of members required to be present at the meeting venue within a specified waiting period after the notified commencement time of the meeting before the meeting can properly commence. By the provisions of section 161(1) of Act 179, a business shall not be transacted at a general meeting unless a quorum of members is present at the time when the meeting proceeds to discuss that business. It is further provided under section 161 (4) of the Act as follows:
"... Unless otherwise provided in a Company's Regulations, if a quorum is not present within half an hour after the time appointed for the meeting, the meeting if convened on the requisition of members in accordance with section 271 or 297, shall be dissolved..."
I have perused the Regulations of G.O.A.N. which the Defendants put in evidence as exhibit 4e and there is no provision as regards quorum. However, by clause X (G) of the Plaintiff's Constitution (exhibit F), a half of paid up members including the chairman or his/her Vice or the General secretary shall form a quorum for all meetings. It is on record that Membership of the Plaintiff is about 90. Consequently, if it is shown that at least 45 groups whose members were present at the commencement of the 22/10/2005 EGM had fully paid their dues, then a quorum would have been formed in terms of clause X (G) of exhibit F. But, what was the situation then? It is clear from the evidence on record that a majority of the members present had not fully paid up their dues. Exhibit J is the proceedings of the EGM held on 22/10/2005. Under the heading "Election of New Executives" Mr. Franz Zemp of AGriFor Foundation drew members attention to a clause in G.O.A.N.'S constitution that members must pay their annual dues before they could take part in elections. The meeting is said to have deliberated upon this matter for some time and concluded that members did not pay their annual dues because of the unscrupulous manner the current executives were running the organization. One Reverend Agyapong moved that the meeting should suspend that section of the G.O.A.N. Constitution since the G.O.A.N. office had been closed by the current Executives and the Secretariat was not available to receive the payments. It is also stated therein that Mr. Hans Osei Acheampong of Dawuman Organization Farmers Association seconded the motion. Thereafter, the motion was put to vote and there was a unanimous support to suspend the payment of annual dues until a new administration has been put in place for the organization.
A clause contained in any constitution can only be varied in accordance with laid down procedure. A decision to suspend a portion of the Constitution of GOAN is tantamount to changing what is expressly stated in the Constitution. It is provided in Clause XII (A) and (B) of the Plaintiff's own exhibit F that only fully paid up members shall have the right to propose an amendment of the Constitution to the Executive Committee. Even that, the proposal must be submitted three months before a general meeting. In the circumstances of this case, no such proposal was made as mandated by the G.O.A.N. constitution. Having failed to act in accordance with the provisions of the G.O.A.N. constitution, the purported “SUSPENSION" of the clause on payment of dues as a prerequisite for forming a quorum and proposing amendments is of no effect and the constitution stands in its original form. Since most of the 51 members present were not “fully paid up members", they could not have formed a quorum within the meaning of clause X (G) of exhibit F. It is clearly captured in exhibit H1 that the meeting was convened and notices were dispatched pursuant to section 271 of the Company's Code (Act). On that basis, the provisions of section 161(4) of Act 179 apply and the meting ought to have been dissolved (emphasis). Yet, the meeting was not dissolved! From the foregoing, i find that no EGM properly so called could have taken place on 22/10/2005. Whatever took place on 22/10/2005 and captured in exhibit J cannot be saved by virtue of Section 161(4) of Act 179. The said proceedings are therefore void abinitio and of no effect. Perhaps, if the members present had taken a cue from the comments made by Mr. Franz Zemp and paid proper attention to their constitution, they would have saved their faces from this avoidable embarrassment! I cannot close my eyes to the "CRISIS SITUATION IN GOAN". However, it is often said that "one cannot right a wrong with a wrong". So the proper thing ought to have been done in trying to resolve the G.O.A.N. crisis.
On the basis of the foregoing lengthy analysis, i come to a conclusion that new Directors or the new Executive Council Members of G.O.A.N. could not have been elected or appointed on 22/10/2005. That notwithstanding, Joseph Adu Gyamfi remains a Director or Executive Council Member of G.O.A.N. This conclusion accords with my earlier finding that Mr. Joseph Adu Gyamfi is an Executive Council member or of GOAN by virtue of his name appearing in the Regulations filed on 29/09/1995 (exhibit 4e). Unless that is changed in the event of his valid removal, he remains as such. Since the botched EGM of 22/10/2005, there is no credible evidence on record that any valid meeting has been convened at which new directors or new executive Council Members have been appointed. It appears from the evidence of DW1 that Joseph Adu Gyamfi sought to bamboozle the court with exhibits B and
DW1 introduced very convincing evidence to show that it was Joseph Adu Gyamfi who initiated the amendment contained in exhibit 5f and the result was that new directors were brought on board as per exhibits B and N. In the light of my finding that all what transpired at the purported EGM on 22/10/2005 is a nullity, Mr. Joseph Adu Gyamfi or any person purportedly elected or appointed at that meeting could not have initiated or authorized the initiation of such changes at the Registrar General's Department. GOAN itself has not by any ordinary resolution appointed new Executive members even though the tenure of the existing Directors elapsed two years from the date of their appointment. Thus, whatever Mr. Joseph Adu Gyamfi purported to do by completing the form 17 tendered as exhibit 5f which culminated in exhibits B and N was unauthorized. It was done illegally and has no effect.
With this, i move to determine the issue as to whether or not the 1st and 2nd Defendants are legally in office as Executive Officers. This can be resolved with ease. Per the constitution of G.O.A.N. (exhibit F), the election of executive members is to take place every two years. Per their own constitution, the executive shall be elected at a general meeting. On the basis of the evidence before me, the 1st and 2nd Defendants have exceeded their two year term of office since their re-election in the year 1999. On a strict interpretation of the G.O.A.N. Constitution, the 1st and 2nd Defendants cannot continue to hold themselves out as executive officers since their mandate has long expired. It is the duty of the existing Executive Council members or Directors to convene an Annual General Meeting (AGM) to elect new executive officers.
The Court has also been invited to decide whether or not the Plaintiff NGO was required under law to renew its registration? Counsel for the Plaintiff in his written submissions emphasized that to the extent that Joseph Adu Gyamfi presented documents to the Registrar General's Department and they were duly renewed by that outfit, they are deemed regular. Counsel missed the point! What needed to addressed was whether there was the need for renewal of the Company's registration? This is a matter of law. After a company has been formed and registered in accordance with the provisions of sections 14 to 23 of Act 179, there is no requirement for a yearly renewal. What is of the essence is the issuance of the Certificate of Incorporation and the Certificate to Commence Business after filing the particulars required under section 27 of the Act. The Company may pass a resolution to change its name or amend its Regulations but that cannot be described as renewal of registration. What Joseph Adu Gyamfi sought to do in this case was to file particulars under section 27 of Act 179 for a certificate to commence Business to be issued to G.O.A.N. Whereas G.O.A.N. was issued with a certificate of Incorporation in the year 1995, Joseph Adu Gyamfi obtained the certificate to commence business in the year 2012. It is obvious that G.O.A.N. failed to satisfy the provisions of section 27(1) before commencing its business in the year 1995. After filing the particulars under section 27, Joseph Adu Gyamfi proceeded to file annual returns for a period of seventeen years and paid for the same as evidenced by exhibits C and C1. These annual returns were filed contrary to Section 122 of Act 179 which mandates the company to do so at least once a year. The filing of Annual returns which is mandatory for every company registered under the Companies Act cannot also be described as “renewal of registration". What Joseph Adu Gyamfi did was merely fulfilling G.O.A.N.'s statutory obligation to file its ANNUAL RETURNS and nothing more.
Is the Plaintiff entitled to the Reliefs sought? I have already found that the 1st and 2nd Defendants cannot hold themselves out as executive members of G.O.A.N. because their term of office has elapsed. Their continuous stay in office is contrary to the constitution of G.O.A.N. and therefore unlawful. It is trite law that a company has a separate legal existence from its members. No evidence was led in respect of how the office premises of G.O.A.N. situate at Cadbury hall, Kumasi was acquired. I therefore find that G.O.A.N. is entitled to hold any interest it has in that property in its own right to the exclusion of the members or directors. The members and Directors are however to be given access to the offices to transact business with G.O.A.N. As such, the Company must take steps to open up the offices. The offices cannot be left unmanned. So, the necessary administrative measures must be put in place for the smooth running of the Company. How is that possible in view of the evidence on record that the 3rd Defendant who was the administrative officer has resigned over non-payment of salaries and members have also not paid up their dues? These "housekeeping" issues must be resolved so that there will be a responsible person to see to the day to day business at the G.O.A.N. offices. As the evidence shows, the executive must be accountable to members so as to push them to pay up their dues.
The Plaintiff did lead oral evidence and tendered documentary proof to the effect that the 1st, 2nd and 4th Defendants have withdrawn various sums of money from the bank accounts of G.O.A.N. The outright denial of these withdrawals by the Defendants is outweighed by the exhibits K series which are statements of accounts from SG-SSB limited (now SG Bank). For example, in exhibit K, G.O.A.N.'s account was credited with an amount of 5, 133.00 Euros from the Avalon Foundation on 11/05/2012. A debit entry on exhibit K depicts that on 15/05/2012, the sum of 5, 140.00 Euros was withdrawn from that account. Also in exhibit K1, an amount of 3, 168.55 GBP was received from STG NEDERLANDS COMIT on 27/08/2012. The 4th Defendant's assertion that these monies were project specific may be true. Even that, members are entitled to know how the money was applied to the alleged specific projects but this has not been done.
In the best interest of G.O.AN., the 1st, 2nd and 4th Defendants are given a period of ninety days with effect from the date of this judgment to furnish members with accurate and detailed financial statements of G.OA.N. from 1999 to date and account for all monies received in the name of G.O.A.N. during their term of office and the period the 1st and 2nd defendants illegally held themselves out as executive members of G.O.A.N.
The 3rd Defendant who has duly resigned from the employment of G.O.A.N. and who never held any executive position was not a necessary party to this suit and accordingly, her name is struck out as a Defendant.
Accordingly, Judgment is entered against the 1st, 2nd and 4th Defendants in favour of the Plaintiff. They are to comply with the orders of this court as regards the preparation of financial statements of G.O.A.N. (from 1999 to date) within ninety (90) days from the date of this judgment and account for all monies received and disbursed in the name of G.O.A.N.
The Plaintiff has not applied to the court to order a meeting of the company under section 162 of Act 179 and I do not intend to order what has not been asked for. I must however stress that there is the need for G.O.A.N. to hold a general meeting to streamline its activities . That is the only way by which the company can come out of the never-ending crisis. The Company must also take steps to see to the cancellation of all processes or documents which Joseph Adu Gyamfi illegally filed at the Registrar Generals Department in the year 2012.