ACCRA - A.D 2018
RIAD HOZAIFEH - (Plaintiff)
SCANCOM (GHANA) LTD - (Defendant)

DATE:  24 TH MAY 2018
SUIT NO:  OCC/35/15


Oral Contracts entered into on behalf of limited liability companies

Persons claiming to act as company’s agent

Whether or not action was statute-barred?


In his Amended Writ and Statement of Claim filed on 27th November 2015, the Plaintiff claimed against the Defendant the following reliefs:

a. General Damages for breach of contract resulting from the Defendant’s failure to pay the annual sum of $200,000.00; monthly payment/allowance of $5,000.00 and the shutting down of Plaintiff’s unrestricted and free use of all facilities and packages of the phone numbers assigned to the Plaintiff.

b. Special Damages of $3,400,000.00 being the arrears or outstanding payment owed and due the Plaintiff from 1998 to date

c. Special Damages of $330,000.00 being the total outstanding monthly payment from the second half of 2009 (July 2009) till February 2015.

d. An order directed at the Defendant to continue to pay the Plaintiff all the sums agreed upon under the agreement for Plaintiff’s life or in the alternative to pay the Plaintiff 20% of the present value of the Defendant Company.

e. An order directing the Defendant Company to restore to the Plaintiff unrestricted use of the phone numbers assigned to the Plaintiff on the Defendant Company’s network. f. Interest at the prevailing Bank of Ghana rate on (a) and (b) from the date of the issuance of this writ till date of final payment.

g. Costs including cost of legal representation assessed at 10% of total damages awarded.


It was the Plaintiff’s case as set forth in his Statement of Claim that sometime in 1996, he had been approached by one Subhi Accad acting on behalf of Investcom LLC, the then majority shareholder of the Defendant Company to intervene on its behalf for the reissuance of its communications licence which had been revoked by the Ministry of Communications. Subhi Accad had informed the Plaintiff that he had the authority of Taha Mikati, Najib Mikati and Azmi Mikati in their capacities as Chairman, Vice President and Chief Executive Officer of Investcom LLC to enlist his assistance in the matter. According to the Plaintiff, his intervention with the then Minister of Communications, Hon. Edward Salia proved successful and the licence was restored within 4 months after his intercession.


In consideration for his efforts in getting the licence restored, the Plaintiff averred that the Defendant Company through its agents informed him that he had been assigned 20% shares in the Company. However, these shares had been issued not in his own name, but in the name of one Richmond Aggrey. Since he did not know the said Richmond Aggrey, he protested and advised the Defendant to retrieve these shares. Consequently, a meeting was convened at Golden Tulip Hotel in Accra where the appropriate remuneration for his efforts was discussed. It was his case that at that meeting, an annual sum of $200,000.00 representing 20% of the Defendant’s net worth at the time and a monthly sum of $5,000.00 was agreed upon. In addition to this, he was to be assigned the unrestricted use of 5 phone numbers on the Defendant’s network. The Plaintiff stated that he had had the unrestricted use of these 5 lines until 2012. He also contended that he had in furtherance of the agreement received from the Defendant the annual sum of $200,000.00 for a period of 2 years.


He also continued to receive the monthly sum of $5,000.00 until 2009 when the Defendant ceased payment. He said he approached the Defendant’s agents, i.e. Azmi and Najib Mikati for payment of the annual payment of $200,000.00 which was supposed to be paid for life, and was told that Taha Mikati had not given authority for the money to be paid as he was undergoing a surgical operation. In respect of the $5,000.00 monthly payment, an amount of $30,000.00 was paid into his account in Lebanon. Upon the intervention of an attorney, another amount of $25,000.00 was paid to him in July 2013. The annual amount of $200,000.00 having been determined to be statute-barred, he maintained that he was still entitled to the monthly amount of $5,000.00 which he contended the Defendant used to pay in 2 equal biannual installments of $30,000.00 each until 2009 when these payments ceased. The Defendant in its defence while admitting that at some point in 1996, its authorization to provide GSM cellular mobile telephone service in Ghana was withdrawn, denied ever contracting the Plaintiff to negotiate on its behalf with the view to having its licence restored.


It was the Defendant’s version of events that its GSM authorization which had been revoked on 3rd April 1996 was restored on 30th May 1996 after a meeting held with the

Minister of Communications on 16th May 1996. At that meeting, it said it was represented by Messrs Trygve Tamburstuen, Ole Husvik and David Hesse and not the Plaintiff. The Defendant also denied ever instructing Subhi Accad or anyone else to enlist the Plaintiff’s assistance to intercede with the Minister of Communications on its behalf with a bid to having its licence restored. The Defendant further stated that some of its officers who were Lebanese met the Plaintiff also a fellow Lebanese who represented to them that he required some protocol lines for some prominent political persons and that these should be allocated to him so as to make the real users of the lines unknown to the Defendant’s staff.


 It explained that this was how the lines came to be allocated to the Plaintiff and denied the contention that it was a reward for work done for the Company. The Defendant also denied ever paying any sums of money to the Plaintiff and contended that his action and claims were statute barred.

The issues forwarded to this court for trial were:

1. Whether or not the Plaintiff’s claims are statute-barred?

2. Whether or not Mr. Subhi Accad, acting for and on behalf of the Defendant Company approached Plaintiff in 1996 with a request for assistance in securing a restoration of Defendant’s operating license which had been revoked by the Minister of Communication?

3. Whether or not the Defendant ever agreed to or did allot 20% of its shares to the Plaintiff whether holding by himself or through a 3rd party?

4. Whether or not the Defendant agreed to pay to the Plaintiff the sum of US$200,000.00 per annum for Plaintiff’s life being payment representing value of 20% of the shares of the Defendant?

5. Whether or not the Plaintiff was entitled to an unlimited access to and usage of 5 phone numbers (0244222222; 0244311313; 0244310353; 0244312076 and 0244311111) on Defendant Company’s network?

6. Whether or not the Defendant agreed to pay the sum of US$5,000.00 per month to the Plaintiff?

7. Whether or not the Defendant made any payments of US$200,000.00 per year as well as US$5,000.00 per month to the Plaintiff being remuneration for any role Plaintiff played in securing the Defendant’s GSM?

8. Whether or not the Plaintiff is entitled to its claims or any claims at all?

9. Any other issues arising on the pleadings.


The court first asked the parties to address it on a preliminary issue: i.e. Whether or not the Plaintiff’s claims were statute-barred? The court delivered a ruling in which it stated inter alia:

The court notes from the pleadings and the reliefs sought that the Plaintiff’s claim is in 3 strands. These are firstly, claims arising from the sum of $200,000.00. The Plaintiff seeks here, general damages for breach of contract. He also seeks special damages of $3,400,000.00 being arrears due from 1998 to date. These claims are obviously statute barred as they relate to sums for which a cause of action arose as far back as 19 years ago. There is no evidence in writing that the said debt had been acknowledged. There is also no evidence that there was an accrual of the cause of action by the Defendant making certain payments.

The second claim made is for special damages of $330,000.00 being the total outstanding monthly payment from the second half of 2009 (July) till February 2015. According to the Plaintiff in paragraph 30 of his Statement of Claim:

Plaintiff states that the Defendant however continued to pay the monthly sum of US$5,000.00 in two equal biannual installments of US$ 30,000.00 each until 2009 when the Defendant ceased making any payments altogether.

This means the cause of action on this limb of the contract arose in July 2009 when the Defendant is said to have stopped payment. See the case of GCB (No. 1) v. Boateng (2013-2014) 1 SCGLR 743. The writ was filed in April 2015. This claim is within the 6 year limitation period and is therefore not statute barred.

The third strand of the Plaintiff’s claim is in relation to the use of certain mobile phone numbers. He has therefore sued for an order directing the Defendant Company to restore to the Plaintiff unrestricted use of the phone numbers assigned to the Plaintiff on the Defendant Company’s network. It is his contention that the Defendant curtailed his unrestricted usage of the mobile phone services on its network when his roaming facilities were shut down in 2012. His access to free mobile services was also curtailed in February 2014. These claims also fall within the period of limitation and are not statute barred.


From the ruling, issues 1 and 4 have been disposed off. The court will now consider whether or not Mr. Subhi Accad, acting for and on behalf of the Defendant Company approached Plaintiff in 1996 with a request for assistance in securing a restoration of Defendant’s operating license which had been revoked by the Minister of Communication?

The Plaintiff told the court that sometime in 1996, Mr. Subhi Accad who was a Director and a shareholder of the Defendant Company sought his assistance to negotiate with the Minister of Communications for the re-issuance of the Defendant’s communication license which had been revoked. It was his case that the Defendant had been ordered in a letter to commence a winding up process and to leave the country with immediate effect. He testified that due to his intervention, the order to wind up was revoked and within a period of 4 months the operating license was reissued. Mr. Accad who gave evidence as PW2 told the court he approached the Plaintiff on the authority of the chairman and other directors of the Investcom Holdings Ltd, a majority shareholder of the Defendant Company to request his assistance in getting the Ministry of Communication to reissue the Defendant’s operating license which had been withdrawn. According to him, the Plaintiff was known as an astute expediter and was well placed to carry out this task. It was his evidence in paragraph 4 of his witness statement thus:

Defendant on its own had tried on many occasions to get the Ministry of Communications to rescind its decisions on the Defendant but these did not achieve any positive results. There was the need therefore to fall on Plaintiff who had been known to be an astute expediter and kind person to assist the Defendant in this regard …


The Defendant on its part has denied ever authorizing PW2 to request the Plaintiff’s help in the restoration of their revoked licence. In its witness statement filed on 2nd June 2017 at paragraph 4, it stated:

From the records, the Defendant’s authorization to provide GSM cellular mobile telephone services was withdrawn by the then Minister for Transport and Communication around 3rd April 1996 and restored by the said Minister in a letter dated 30th May 1996 subject to restructuring Defendant’s shareholding by including Ghanaian shareholders as well as Defendant’s ability to implement its programme of deploying the authorized telephone services.


From the evidence, it is an undisputed fact that in 1996, the Defendant’s licence had been revoked by the Ministry of Communications. It is also not in dispute that the licence was subsequently restored. What is in dispute is how the licence was restored and upon whose instrumentality. Whilst the Plaintiff and his witnesses are adamant that it was due to the Plaintiff’s instrumentality that this happened, the Defendant is equally emphatic that 3 persons which did not include the Plaintiff, negotiated with the Minister on its behalf and after these negotiations were successful, the licence was restored. But when in 1996 was the licence revoked and when was it restored? In cross-examination of Plaintiff on 17th October 2017, the following information was elicited:

Q: You said you intervened on behalf of the Defendant. When was this?

A: I was invited by one gentleman Subhi Accad of Auto Parts. He called me to his office and gave me a letter which was written from the Ministry of Communications in 1996.

Q: When in 1996?

A: I cannot remember.

Q: And you said you worked on the request for how many months?

A: I assigned the matter to a friend of mine by name Bashir Maous to accompany Subhi Accad to the then Honourable Minister Salia. I do not go to the Ministries to solve cases. I have people who do that.

Q: And you said you worked on the request for how many months?

A: I don’t remember.

Q: Did you state any number of months in your witness statement?

A: If I can recollect, probably about 4 months. … it has been many years in this case.

Q: Please refer to your witness statement and tell this court how many months you claimed you worked on the instructions.

A: My Lord, approximately within 4 months.


The Plaintiff gave evidence and produced 3 witnesses.

Bashir Maouas who gave evidence as PW1 stated in paragraphs 3, 4 and 5 of his witness statement thus:

Sometime in 1996, I accompanied the Plaintiff herein on many occasions to meet with the then Minister of Communications, Hon. Mr. Edward Salia (late) to discuss and plead on behalf of Scancom in connection with Scancom’s revoked operating licence and an order which had been issued by the Ministry of Communications upon it to stop operations and leave the country.

I did much leg work on the instructions and on behalf of the Plaintiff to the Ministry of Communications until our plea and demands were met by the Ministry of Communications and the operating licence of Scancom was reissued.

I sincerely believe that, but for the enormous effort of the Plaintiff to rescue the situation, the operating licence of Scancom would not have been reissued and by now there would not be any business for the Defendant in this country.


PW2, Subhi Accad told the Court that it was he who approached the Plaintiff on behalf of the Chairman and other Directors of the Defendant Company and requested him to use his best efforts to get the revoked licence restored. The following information was also elicited from him in cross-examination on 14th November 2017:

Q: And you said in your witness statement that the Plaintiff worked for 4 months to restore the licence.

A: I don’t recall but around 4 months.

Q: So what work did the Plaintiff do in the 4 months?

A: He put us in touch with the Minister of Transport and Communication. He asked a second party to take me there, Bashir and he mentioned that he had been spoken to and that he should receive us to discuss with the Minister the re-instating of the licence. When he received us, he could not get to a solution, so I informed the Plaintiff that we did not have any headway after the very first meeting. After several visits and several complaints without getting any headway every time informing the Plaintiff, he then went for a short while and asked me again to see the Minister who then informed us that the licence has been reinstated and that we should deal with Aggrey.


The Defendant gave evidence via its representative and did not call any other witness. Its representative described herself as the Senior Manager, Commercial Legal & Company Secretary. She told the court she had worked for the Defendant for 12 years and was giving evidence based on the information she had found in the Defendant’s corporate files. The Plaintiff and his witnesses did not produce any documentary evidence in support of their contention that the Defendant had authorized PW2 to approach the Plaintiff on its behalf. They also never produced any documentary evidence on when and why the Defendant’s licence was revoked and as to how the licence was restored. They however maintained in their oral evidence that the Plaintiff did cause its restoration. Although PW2 said PW1 arranged a meeting with the Minister, they did not make any headway and he had to report his lack of success to the Plaintiff. What was the Plaintiff’s role in the matter? What actually did he do to get the Minister to restore the Defendant’s authorization to provide GSM services?


When asked in cross-examination on 17th October on the hard work he was said to have done in order to achieve the restoration of the licence, this is what the Plaintiff had to say:

Q: What work did you claim you did in the 4 months?

A: According to Subhi Accad he told me that the Spacefon owners Mikatis have exhausted every avenue to have that letter rectified or withdrawn. Therefore he is appealing to me to have it rectified. I did speak on phone to the then Minister of Communication, Mr. Salia and he assured me that he would work on it and that I should ask them to come to his office. So I did assign it to Bashir Maous who accompanied Subhi Accad. I was not there, until one day Mr. Bashir Maous told me that the Minister of Communication did issue a letter revoking his letter.

Q: How many times did you call the Minister?

A: I called the Minister a couple of times.

Q: Did you call him more than once?

A: Maybe on different issues.

Q: Did you call him in respect of this your ‘hard work’ more than once?

A: My Lord, I have stated I have spoken to Salia, he is the Minister and I am an officer. I cannot recollect if I speak to Salia specifically on this issue of Spacefon.

Q: When you said in paragraph 7 of your witness statement that “you worked hard to get the Communications Minister to re-issue the Defendant’s licence” you mean the phone call you made to Salia. Is that the case?

A: No. My Lord. This is English. …

Q: What does the ‘hard work’ in English mean?

A: It varies.

Q: With you in respect of this matter, your “hard work” is the phone call to the Honourable Salia.

A: …. the word ‘hard work’ is the magnitude of the case. You cannot just say I just made the call to the Minister, you have to pull strings, and you have to talk.

Q: When you say pull strings, what do you mean?

A: This is a layman’s language to say you pulled strings of an issue. If that is the question, I was asked by a friend that this company has been asked to wind up its operations and leave Ghana and by my intervention to the Minister, things were rectified.

Q: Did you have any negotiations with the Minister?

A: Yes, I did.

Q: What negotiations did you have?

A: I asked the Minister to revoke his letter cancelling their license and the Minister assured me he would do that and let them come forward, he would do that.

Q: So do I understand you to mean that your alleged request to the Minister to revoke the revocation and he saying let them come forward, is that the negotiation?

A: …. I asked them to come forward to see me and I assigned Mr. Bashir to accompany them to the Minister. So as long as I am concerned I have done what I have to do. I have spoken to the Minister and he assured me he would work on it in good faith.


While it may be true that PW2 did approach the Plaintiff on the licence issue, there is no evidence either by a Board Resolution authorizing PW2 to do so or by the minutes of a meeting detailing Plaintiff to act on the Defendant’s behalf. So did the Plaintiff act informally in this matter? And if he did, what formed the nature of his intervention? Did the Minister tell him the reason for the revocation and what actually caused the Minister to rescind the revocation of the licence and its eventual restoration? And was it possible that an Executive action by the Minister could be revoked by a phone call from someone no matter how highly placed?


PW1 in his evidence said he accompanied the Scancom Team to meet with the Minister.

He mentioned them as being Messrs. Accad (PW2), Ramadan and Oweida. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA and re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, the court stated:

The correct proposition is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.


And as per Re: Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors (2003/2004) SCGLR 420, the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and/or denied. The Court speaking through Brobbey JSC @ p. 465 had this to say:

A litigant who is a Defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires that the determination to be made in his favour then he has the duty to help his own cause or case by adducing evidence before the court such facts or evidence that will induce the determination to be made in his favour. A logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of evidence before the court which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the evidence on record, the Plaintiff my win, the Defendant may lose. Such loss may be brought about by default on the part of the Defendant. in the light of the statutory provisions literally relying on the common law principle that the Defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve to the best interest of the litigant even if he is a Defendant.


The Defendant in giving evidence produced Exhibit 2 addressed to it from the Ministry of Transport and Communications dated 30th May 1996. The contents are:

Dear Sir,


Reference our meeting held on 16th May 1996 at which SCANCOM Ltd was represented by:

i. Mr. Trygve Tamburstuen

ii. Mr. Ole Husvik

iii. Mr. David Hesse

It is hereby confirmed that the authorization for SCANCOM Ltd to provide GSM cellular mobile telephone service throughout Ghana which was withdrawn by letter No.

SCR.7063/SF.12/Vol.4 of 3rd April, 1996 is hereby restored subject to:

a) The restructuring of SCANCOM Ltd shareholding as discussed;

b) The ability of SCANCOM to keep to the implementation programme reference your letter dated 22nd March 1996.


This letter was signed by the Minister, Hon. Edward Salia.

Exhibit 4 is a copy of the Minutes of Meeting of Shareholders of SCANCOM LIMITED held in Paris on 18th June 1996. Clause 2 which was captioned NEW SHAREHOLDING STRUCTURE stated:

 The Chairman stated that after various discussions and meetings with the Minister for Transport and Communications, it had been agreed that the company’s GSM license which had been withdrawn on 3rd April 1996, has been restored to it, subject to restructuring the shareholding in Scancom Ltd as discussed at their meetings. The Chairman further stated that all three groups of shareholders have agreed that share transfers be effected with a view to restructuring the Company as hereunder:

I. INVESTCOM CONSORTIUM HOLDING SA and AUTO PARTS LTD as joint holders of 67% of the company. this would mean that Investcom Consortium Holding SA will transfer 13% held by it to Mr. Richmond Aggrey, a new shareholder while transferring the remaining 67% held by it in favour of itself and of Auto Parts Ltd, as joint holders thereof.

II. TELE 2 NORNETT A/S, of Norway as holder of 10.2% of the total shares of the company will retain 3.6% of the total shares held by it and transfer its remaining 6.6% in favour of the said Richmond Aggrey.

III. SCAN CONSTRUCTION LTD as holders of 9.8% of the total issued shares of the company will retain 3.4% and transfer 6% to Mr. David Hesse, Accra Legal Practitioner and the remaining 0.4% to the said Mr. Richmond Aggrey who thereby becomes holder of 20% of the total issued shares of the Company

The shareholders of Scancom Ltd effective from June 18, 1996 are therefore as following:












The Secretary was instructed to ensure that the appropriate share transfers were effected and Share Certificates issued in favour of all shareholders after signature by the Managing Director and Secretary of Scancom Ltd. In Republic v. Nana Akuamoah Boateng II; Ex Parte Dansoa and Anor (1982/83) GLR 913, the court at p. 917 stated as follows:

In addition to the sworn testimony, there were documents made contemporaneously with the events and there is little doubt that where there is conflict in the evidence of witnesses based often on faulty recollection, these documents become extremely helpful.


The sworn testimony on record shows that the Defendant’s license was revoked in 1996. The Plaintiff does not remember which month in 1996 this was. The Defendant has produced Exhibits 2 and 3 which show that the licence was revoked on 3rd April 1996 and restored on 30th May 1996 subject to certain conditions. Exhibits 2 and 3 appear to be documents made contemporaneously and coincide with the events of the revocation and restoration of the licence in 1996. Neither the Plaintiff nor any of his witnesses tendered the revocation and restoration letters they had alluded to in their evidence. The only conclusion the court can come to is that Exhibits 2 and 3 were the letters which referred to the revocation and the restoration of the license as they were contemporaneous with the matter. The Plaintiff has stated that he had no knowledge of the events stated in Exhibits 2 and 3 and that must have been another event quite apart from the events he has testified in relation to. The evidence on record in Exhibits 2 and 3 relate to the revocation and restoration of the Defendant’s GSM License. On the other hand, the Plaintiff’s contentions that he negotiated with the Minister and that he was instrumental in the restoration of the Defendant’s license are not borne out by the documentary evidence on record as he was not mentioned as one of the team members who represented the Defendant at the meeting with the Minister.


The members of the Scancom Team as mentioned by PW1 being Messrs Accad, Oweida and Ramadan also did not feature in Exhibit 2 as having met the Minister. So even if the Plaintiff had acted on the Defendant’s behalf, no record was made of it in Exhibit 3 which was a copy of the minutes of the shareholders’ meeting. Exhibit 2 which was the Minister’s letter referring to the representatives of the Defendant Company at the meeting did not mention either the Plaintiff or the persons mentioned by PW1 as being part of the Defendant’s team. For all intents and purposes, the Defendant was required to take certain actions such as amending its shareholding to include Ghanaian shareholders and in return for that, the license was restored. The rescinding of the revocation was conditional on the Defendant amending its shareholding to include Messrs Aggrey and Hesse as Ghanaian shareholders. The court, in the face of the documentary evidence, would lean favourably toward the Defendant’s documentary evidence which would take precedence over the Plaintiff’s and his witnesses’ oral evidence. See the case of Fosua & Adu-Poku v. Dufie (dec’d) & Adu Poku Mensah (2009) SCGLR 310 where the court held that documentary evidence should prevail against oral evidence. The Court therefore finds that Exhibits 2 and 3 are corroborative of the Defendant’s evidence that the licence to operate in Ghana was restored on condition that its shareholding structure would be restructured.


As PW2 said, the Minister told him that the licence had been restored and that “we should go and deal with Aggrey.” This leads up to the issue of: Whether or not the Defendant ever agreed to or did allot 20% of its shares to the Plaintiff whether holding by himself or through a 3rd party?

Exhibit 3, the minutes of the Shareholders’ meeting indicate that 20% shareholding was issued to Richmond Aggrey. He was also appointed as one of the 3 additional directors of the Defendant Company. There was no mention of the Plaintiff at all in the new shareholding arrangement. The Plaintiff himself has testified that he did not know the said Richmond Aggrey and had suggested that the shares be retrieved. So if the shares were allocated to Richmond Aggrey on the Minister’s recommendation, how could these same shares have been allocated to the Plaintiff? Exhibits 3 and 4 indicate that 20% of the shareholding was allotted to Mr. Richmond Aggrey and not to the Plaintiff. Exhibit 5 is a writ of summons in which the said Richmond Aggrey had sued 3 parties including the Defendant herein praying for among other reliefs, a declaration that he was a member of the Defendant being a 20% shareholder. In Exhibit 6 which was the Defendant’s Statement of Defence to Mr. Richmond Aggrey’s suit, paragraph 7 stated thus:

The 2nd Defendant says that pursuant to an amendment to the Shareholders Agreement in June 1996 the Plaintiff and Mr. David Hesse became shareholders with 20% and 6% shareholding respectively, following advice that it was the policy of the government of the day that there should be some Ghanaian participation in the shareholding of companies seeking to operate in the telecommunications sector.


As recently as 2006, Richmond Aggrey had laid claim to the 20% shares having been allocated same in June 1996. In Okudzeto Ablakwa (No. 2) v. Attorney General & Another (2012) 2 SCGLR 845, the

Court held at p. 867:

if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17(b) which emphasizes on the party on whom lies the duty to start leading evidence.


The Plaintiff has testified that he attended a meeting with some of the Defendant’s Directors on or about 1998 at Golden Tulip whilst waiting for the Defendant to retrieve its shares from Richmond Aggrey. However, there is evidence in Exhibits 7 and 9 i.e.

Minutes of Board Meetings of 2nd May 1998 and 27th September 1997 that Mr. Aggrey had attended board meetings. There is also evidence in Exhibit 8 that his proxy was held by

Mr. Jamal Ramadan on 26th November 1998. In cross-examination of PW2 on 7th December 2017, he was asked:

Q: The 20% shares issued to Richmond Aggrey was on the recommendation of the Minister of Transport, Mr. Edward Salia. That is correct?

A: It is correct.


If the shares were issued to Richmond Aggrey on the recommendation of the Minister, how could the same shares have been issued to him to hold in trust or otherwise for the Plaintiff?

The Plaintiff has not been able to substantiate his claim that those shares in Richmond Aggrey’s name were originally meant for him. In the case of Atadji v. Ladzekpo (1981) GLR 219 the court held that whenever the testimony of a party on a crucial issue is in conflict with the testimony of his own witness on that same issue it is not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contains the conflicting evidence on the issue. See also the case of Manu v. Nsiah (2005/2006) SCGLR 25 where the court stated that the well established rule was that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible impossible or unacceptable. PW2’s evidence on this score is at variance with the Plaintiff’s evidence and rather corroborates the evidence proffered by the Defence. Section 7(1) of the Evidence Act, 1975 NRCD 323 has it thus:

“Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.”


Furthermore, as at 2006, Mr. Aggrey was still laying claim to shares he had in the Defendant Company in respect of which he had instituted suit. To the extent that it was Richmond Aggrey who went to court to ventilate his rights regarding his 20% shareholding interest in the Defendant Company, it could only be inferred that he was the one to whom these shares were allotted and not to a 3rd party, in this case, the Plaintiff. The next issue involves the monetary claims made by the Plaintiff. These are:

Whether or not the Defendant agreed to pay the sum of US$5,000.00 per month to the Plaintiff and Whether or not the Defendant made any payments of US$5,000.00 per month to the Plaintiff being remuneration for any role Plaintiff played in securing the Defendant’s GSM.

These issues are raised against the backdrop of a meeting said to have been held at Golden Tulip Hotel at which Plaintiff, PW2 and PW3 were present. Also said to have been present were Messrs Taha Mikati and Ramadan of Investcom LLC and Mr. Ahmed Farroukh Managing Director of the Defendant Company.

The following information was elicited from PW2 in cross-examination on 7th December 2017:

Q: … there are no records of $5,000 a month payment in the minutes of the Board of Directors of Scancom Ltd of which you were a member. Is that correct?

A: Well, it is correct that I was a member of the Board of Directors. And it is correct that I was representing Auto Parts as joint shareholder with Investcom and the fact is there could not be records in the minutes because the meeting regarding the $5000 was never held in the presence of the members of the board. As I mentioned earlier, the meeting was held at a hotel privately with some members present.

Q: So payment of $5,000 per month was never an agenda item listed on any of the board minutes of Scancom Ltd.

A: That is correct.

Q: It is also true that as a Director you have never seen in the accounts of Scancom reference to $5,000 paid to the Plaintiff every month.

A: I have never seen but it is correct. Regarding the $5,000, just to be clear, I was there during the private negotiations but after that I was never exposed to anything within Scancom in relation to the $5,000 payments.

Q: You as a Director was never involved in any way whatsoever in regards to pay $5,000 per month to the Plaintiff if it was ever paid. You were not involved.

A: I was never involved after the negotiations.

Q: There was also no notice sent out to Directors of Scancom Ltd about the alleged Golden Tulip meeting. That is correct.

A: Some members were present at the Golden Tulip meeting which is not alleged. The meeting took place.

Q: No notice was given for the alleged meeting at Golden Tulip?

A: As I remember it is a private meeting and I don’t recall any reference in any of the board meeting after that. I did mention as well the last time that my involvement directly with Scancom started reducing because of how I was treated by the shareholders …

Q: The alleged meeting at Golden Tulip, how many persons were there?

A: I think we were about 6.

Q: I am putting it to you that this your alleged meeting had nothing to do with Scancom Ltd.

A: The alleged meeting as you put it was not officially in the name of Scancom.

Q: What language was spoken at your alleged meeting?

A: It was mostly in Arabic but there was as well some English. So it was mixed.

Q: But there was no written record in English language of this meeting?

A: As I recall there was not written records.


Section 137 (1) of the Companies Act, 1963 (Act 179) states:

A company shall act through its members in general meeting or its board of directors or through officers or agents appointed by, or under authority derived from the members in general meeting or the board of directors.

Section 137 (3) also states:

Except as otherwise provided in the Company’s Regulations the business of the company shall be managed by the board of directors who may exercise the powers of the company that are not by this Act or the Regulations required to be exercised by the members in general meeting.


The Plaintiff has stated that he was present at a meeting at Golden Tulip where remuneration for the services he had rendered to the Defendant Company was discussed. PW2 has however admitted in cross-examination that the meeting held at Golden Tulip was not officially in the Defendant’s name and that it was a private meeting. So what was the significance of this? If the meeting was not in the Defendant’s name then on whose behalf and at whose behest had the meeting been called? Obviously, a company being an artificial person would act through individuals. One is therefore reminded of Bolton Engineering Co. Ltd v. TJ Graham & Sons Ltd (1957) 1 QB 159 where Lord Denning stated as follows:

A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot represent the mind and will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated as such.


In the case of Appenteng & Others v. Bank of West Africa & Others (1961) GLR 199, the court held that a company was a separate legal personality quite apart from its members. The members, the court said, were not even collectively the company. The company was not an agent of either of its members. The directors of the company were the company’s agents. So on whose behalf were Messrs Mikati, Ramadan and Faroukh acting? PW2 has said the meeting was not officially in the Defendant’s name and that the meeting was not in the presence of the Board of Directors. No notices were sent out and as described, it was a private meeting. See the case of PS Investment Ltd v. CEREDEC (2012) 1 SCGLR 611@ 646 where the court held:

“it is a well established principle of agency law that contracts entered into by an agent are binding on the principal, so long as the agent acted intra vires.”


The evidence given by PW2 elicited some interesting details. Firstly, no official notice was given to the Directors of the Defendant Company inviting them to the meeting at Golden Tulip. Secondly, there were no minutes taken of the meeting. Therefore there were no official records of what had allegedly transpired. Thirdly, this meeting regarding the $5000 or any form of remuneration was never held in the presence of the members of the board. Indeed as the witness said, it was a private meeting. The Plaintiff’s Counsel has argued in his closing address that the mere fact that a cause of action is based on an oral agreement did not render the claim unenforceable. He has argued that the evidence in this case is cogent, clear and forcible as to leave no reasonable doubt that there was an oral agreement for the Plaintiff to be paid the sums that he has sued for. But were those who met the Plaintiff at Golden Tulip acting for and on behalf of the Defendant Company? And how would Directors at a private meeting at which no minutes were taken and no resolutions passed be in a position to take decisions which would be binding on a company especially since the Plaintiff averred that the payments were to be for his lifetime?


The persons who held the meeting were not acting in the ordinary course of the Defendant’s business which was to do with telecommunications. The contract allegedly entered into with the Plaintiff was an extraordinary one especially when it did not involve a one off payment to him but payments to be made for the Plaintiff’s life i.e. in perpetuity. On 25th October 2017 the question was put to the Plaintiff thus:

Q: I am putting it to you that Scancom never paid you any money for 3 years, from 1999, 2000 and 2001. They never paid you any money.

A: My Lord, they did pay me. Azmi Mikati, son of Taha Mikati told me that his father Taha Mikati is on admission at the hospital for kidney transplant. Therefore his father did not instruct him to continue paying.


It is in this court’s considered view that the persons who called the meeting did not do so in the Defendant’s name. They did so in their own private capacity. Had the liability been that of the Company, the hospitalization or otherwise of Taha Mikati should have made no difference to the payments as it would have been the Defendant’s liability to pay and not an individual. The Plaintiff did not show payments made to him from 1996 to 2007. Whether or not those payments were made was not evident. Plaintiff has asked for special damages of $330,000.00 being outstanding monthly payment from July 2009 till February 2015. He has told the court that the Defendant had paid certain sums of money into his account in Lebanon. He has tendered Exhibit A which is a statement of account dating from 1st January 2007 till 13th April 2017 from Bank Audi in his name. The statement indicates cash payments of $30,000.00 He has also tendered Exhibits B-K in evidence as corroboration of his contentions that these cash payments were made. The Defence also tendered the Exhibit 12 series through him. The Exhibits tendered are as follows:


Amount Deposited

Date of Deposit






























The Exhibit 12 series are also as follows:



Amount Deposited

Date of Deposit

















Aside of Exhibits D and K which were payments from one Nader Sharifeh, none of the other payments indicated who the depositors were. According to the Plaintiff, it was when he complained to an attorney that the Defendant made the payment in Exhibit K. However, none of the payments have been made using the Defendant’s name and these were mostly cash payments.  There are also 2 payments of $30,000.00 made on 8th February 2010 and 20th September 2010, a time at which the Defendant Company was said to have stopped making payments and for which the Plaintiff had instituted suit. Who then made these payments? In Exhibit 12 C there was a cheque payment. The credit advice was Checks drawn on us. This is the banking parlance for in house cheques. The court at this point is unable to make the connection between the Defendant which is resident in Ghana and these cash payments and the cheque payment drawn on us and made to Plaintiff’s bank account in Lebanon. As a result, the court cannot make a categorical finding of fact that these payments were made by the Defendant or on its behalf as there is no correlation between these payments and the Defendant. In other words, there is nothing to show that the Defendant either by itself or through its agents made the payments. In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

See also Section 12(1) of the Evidence Act which provides as follows:

Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

Section 12(2):

Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence


Whether or not the Plaintiff was entitled to an unlimited access to and usage of 5 phone numbers (0244222222; 0244311313; 0244311111; 0244310353; 0244312076) on Defendant Company’s network?

The Plaintiff has stated in paragraphs 22-24 as follows:

Plaintiff says that in addition it was also agreed that when the Defendant Company commenced its operations, he was to be allocated and/or assigned the unrestricted use for his life, 5 phone numbers on the Defendant Company’s network.

Plaintiff says that in confirmation of the averments in paragraph 22 above, Defendant Company allocated and or assigned to the Plaintiff the following phone numbers ….

Plaintiff avers that until 2012 he together with his family and close friends had unrestricted use of the said phone numbers at no cost to them because of the agreement reached by the parties.

The Defendant in paragraphs 17-19 of its Defence stated:

The Defendant denies that all the said telephone lines were allocated to the Plaintiff for his personal use or that they were allocated to the Plaintiff pursuant to any agreement with the Defendant or as any form of payment or reward for any services rendered by the Plaintiff to the Defendant.

The Defendant maintains that the only line allocated to the Plaintiff for his personal use was 0244222222 while the lines 0244311111 and 0244311313 were for the use of two very prominent persons in Ghana at the time, and according to the Plaintiff the same applied to the lines 0244312076 and 0244310353.


The Plaintiff has told the court that part of the package he was given for his assistance to the Defendant was unfettered access to and usage of the 5 phone numbers mentioned above. In cross-examination of the Plaintiff however, it was revealed that the lines the Plaintiff referred to apart from 0244222222 were not used by him directly or by his family members as pleaded in his Statement of Claim. They were used by persons in the Office of the President including some officials belonging to National Security. He has told the court that he used to work in the Office of the President. Has the plaintiff adduced sufficient evidence in accordance with the Evidence Act? Is the evidence sufficient to the extent that a reasonable mind could hold that the existence of a fact in issue was more probable than its non-existence? Of the 2 rival versions, the Defendant’s is more credible as the Plaintiff could not prove that the phone lines were used by his close family members. From Exhibit 11, some of the lines allocated to him based on an arrangement with the Defendant were subsequently passed on to some other prominent people connected with the Office of the President. The Plaintiff has also stated that he gave one of the lines to an official connected with National Security.


I am mindful of the case of Acquie v. Tijani (2012) 2 SCGLR 1252 where the court held that the law does not require a party to prove his case with absolute certainty in civil proceedings. A court must however satisfy itself that the evidence led on a particular issue is proved in accordance with the requisite standards required by law. The court quoting from Hawkins v.Powells Tillery Steam Coal co. ltd (1911) KB 988 @ 996 said:

When it is said that a person who comes to the Court for relief must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proved in this world with absolute certainty. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. That may be done either by direct evidence or by inference from facts. But the matter must not be left to rest in surmise, conjecture or guess.


In the case of Duagbor v. Akyea Djamson (1984-86) GLR 697 the court held that where the evidence is unsatisfactory the judgment should be in the Defendant's favour on the ground that it is the Plaintiff who seeks relief but has failed to prove that he is entitled to what he claims. The court cannot state with any degree of certainty that the lines were given to the Plaintiff for work he had done for the Defendant. It was more probable that due to the position he held at the time, these lines were given to him for the use of officials at the Office of the President where he used to work. It is well established that the call for proof on the preponderance of probabilities does not require an inflexible proof either beyond reasonable doubt or with mathematical exactitude or precision as would fit a jigsaw puzzle. Preponderance of probability connoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. (See Bisi v. Tabiri alias Asare (1987/88) GLR 360) Of the two rival versions before the court, the Plaintiff has not proven on a preponderance of probabilities that he is entitled to judgment. The court is therefore unable to order the restoration of the phone lines to him as allocation of phone lines are at the behest of the Defendant and they cannot be forced into benevolence when it does not suit their purpose. The obligation on parties invoking the jurisdiction of the court is neatly captured in

Sections 10(1), 11(1) and 11(4) of the Evidence Act (1975) NRCD 323:

Section 10(1)

For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

Section 11(1)

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

Section 11(4)

In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.


In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:

in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.


And as Adade JSC put it succinctly in Nartey v. Mechanical Lloyd Assembly Plant Ltd (1987/88) 2 GLR 314 at 344:

A person who comes to court no matter what the claim is must be able to make a case for the court to consider otherwise he fails.


The Plaintiff’s case fails in its entirety and he is deemed not entitled to his reliefs.

Costs of GH¢20,000.00 is awarded against Plaintiff.