AGYEMANG-DUAH AND ANOTHER VRS. WATCH & DINE LTD AND OTHERS (P/OCC/16/2019) [2024] GHAHC 512 (8 November 2024)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON FRIDAY 8TH DAY OF NOVEMBER, 2024 BEFORE HIS LORDSHIP, JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE -------------------------------------------------------------------------------------------------------------- SUIT NO. P/OCC/16/2019 1. GLORIE OSAFO AGYEMANG-DUAH - PLAINTIFFS 2. OSEI AGYEMANG-DUAH All of Abrepo – Kumasi. VRS 1. WATCH & DINE LTD. - DEFENDANTS Kumasi City Mall. 2. KWABENA OBENG Baatsona – Accra. 3. NANA OBENG BRENTUO Baatsona – Accra. 4. AKOSUA ADUTWUMWAA OBENG Domeabra – Asante Atwim. 5. STEPHEN KOFI OPOKU Kumasi. ------------------------------------------------------------------------------------------------------- TIME: 10:07AM. JUDGMENT (CORRECTED ON 2ND DECEMBER, 2024, AT PAGES 32 AND 38): Introduction: The 1st Plaintiff in this suit, claims that, she is entitled both in law and fact, to be paid all service charges pertaining in the Civil Engineering Industry, for the work done, from 4th April, 2017, to 28th February, 2018, in relation to the designing and construction of the 1st Defendant. The 1st Plaintiff, further wants the Court, to lift the veil of incorporation of the 1st Defendant, with a view, to making the 2nd Defendant, personally liable for the indebtedness due and owed her by the 1st Defendant and which has remained unpaid, according to her, inspite of several demands. From these two claims of the 1st Plaintiff, it is not difficult, to find that, she has anchored them on Contract. She makes the Court immediately understands that, she alleges the existence of a Contract, entered into, between her and the 1st Defendant. That, by the tenor of the claim for the veil of incorporation to be lifted, to make the 2nd Defendant personally liable, for the indebtedness due and owed her by the 1st Defendant, the 1st Plaintiff charges 1st Defendant, with breaching the said Contract between them for the designing and construction of the 1st Defendant. To do justice to the 1st Plaintiff therefore, she must provide to this Court, an admissible evidence of the existence of the Contract between her and the 1st Defendant and a further evidence that, she performed her side of the Contract whilst the 1st Defendant breached the Contract. Again, the Court will examine the existence, if any of a Contract between 1st Plaintiff and 1st Defendant in relation to the 15% shares claimed by 1st Plaintiff. The 1st Plaintiff wants the Court, to compel the 1st Defendant, to pay the full value of her fifteen percent (15%) shares in the 1st Defendant, which according to her, 2nd Defendant, has deprived her of, since 6th April, 2018. It is not in issue that, the Company Law applicable at the time of the incorporation of the 1st Defendant is Act 179. Section 14 of the Act provides for the formation of Companies. That, the promoter, shall deliver to the Registrar for registration, the regulations of the Company. On registration of the regulations, the Registrar shall certify under her seal, that, the Company is incorporated. Thus the Regulations of 1st Defendant further, according to Section 21 of Act 179, have the following effects when registered, namely a Contract under Seal between: 1. The Company and its Members. 2. The Company and its Officers. 3. The Members and the Officers of the Company. 4. The Members of the Company inter se and the Officers of the Company inter se. From the claim of the 1st Plaintiff in respect of the payment of her 15% shares in the 1st Defendant, the Court finds same anchored on a Contract between 1st Defendant and the 1st Plaintiff within the meaning of Section 21 of Act 179. Apart from the reliefs herein before touched upon, there are others. The 1st Plaintiff, wants the Court to declare that, 2nd Defendant is personally liable for all damages, losses and other pecuniary liabilities allegedly suffered by her alongside 2nd Plaintiff, by reason of an alleged repeated pattern of utter disregard for the rules governing the running and operation of the 2nd Defendant. The 1st Plaintiff has the burden to proof the allegation she has made against the 2nd Defendant. It is for good reason that, the Court has delineated the heads of claims of the 1st Plaintiff so as to make it easier to make findings of fact in relation to same and determine the said claims according to law as distinct from those of the 2nd Plaintiff. In the case of the 2nd Plaintiff, he wants the Court, to declare that, the 2nd Defendant has perpetrated fraud at the Registered General Department and concealed same, in his dealings with the 1st Defendant in general. That, the alleged fraud, according to 2nd Plaintiff, has culminated in the alteration of the share structure of the 1st Defendant, calculated to overreach him. That further, same entitles him to general, special, punitive and exemplary damages by reason of the said fraud. The Court finds the import of the above claim of the 2nd Plaintiff, turning on two matters namely: 1. That the dealings of 2nd Defendant has brought about a fraudulent alteration of the share structure of the 1st Defendant. 2. That, the said act of fraud was calculated to overreach him. What the Court understands this claim to mean, is that, the alleged fraud according to 2nd Plaintiff, was not perpetrated against him but the 1st Defendant. That however, in so doing, the 2nd Defendant calculated same to overreach him. The 2nd Plaintiff, must proof that, 2nd Defendant committed fraud and with a sole purpose of overreaching him, the 2nd Plaintiff and further that, he is entitled to damages as a result. Like the 1st Plaintiff, the 2nd Plaintiff wants to recover the full value of 15% shares he says, belongs to him in the 1st Defendant’s Company. Further, he wants the Court to declare the appointments of 3rd and 4th Defendants as officers of 1st Defendant, allegedly by the 2nd Defendant wrongful, illegal and not sanctioned by corporate practices and same null and void. Finally, he wants the Court to declare that, the conduct of 2nd Defendant in allegedly diverting corporate funds, into the account of a different corporate entity, owned or run by the 2nd Defendant is wrongful, unlawful and contrary to corporate practices. The Defendants have counter-claimed against the Plaintiffs. They also want this Court to restrain the Plaintiffs from interfering with them, the Defendants and also, the employees of the 1st Defendant Company, by preventing them from the conduct of their duties, at the 1st Defendant Company. The Defendants further wants the Court to declare that, 2nd Plaintiff has breached his fiduciary duty to the 1st Defendant Company and also that, the 1st Plaintiff is not a Director of 1st Defendant. The Defendants makes a claim for an Order, for the shares of Plaintiffs, to be valued and bought out. The Defendants further seeks an Order directed at the Companies Registry for the rectification of an alleged forged signatures on 1st Defendant’s incorporation documents as well as an Order for the Plaintiffs, to render accounts to 1st Defendant Company and refund, all amounts embezzled with Interest on the alleged embezzled amounts. That, the Plaintiffs be ordered to pay for all revenue lost from 7th May, 2019, to date of Judgment and specific as well as general damages. In their Written Address, the Defendants informs the Court at page 37 that, they wish to specifically and categorically abandoned their relief (d) which is for an Order for the valuation of and buy-out of Plaintiffs shares. The said relief is therefore struck out as abandoned. Concluding on the introduction to this Judgment, the Court will keep in mind whether the Plaintiffs and the Defendants have locus standi to bring their respective Claims and Counter-Claims. Background: On 6th May, 2019, about five years ago, the Plaintiffs, commenced the instant action against the Defendants jointly and severally for the reliefs stated in their Writ of Summons. The Defendants upon entering Appearance to the Writ of Summons, filed a Statement of Defence and further counter-claimed for reliefs against the Plaintiffs. The Plaintiffs joined issue generally with the Defendants on their Statement of Defence. Upon the breakdown of Pre-Trial Settlement, as many as fourteen (14) issues were set down to be tried. They are as follows: 1. Whether or not the processes filed are nullity? 2. Whether or not 1st Plaintiff is entitled to be paid all service charges pertaining in the Civil Engineering Industry for work done from 4th April, 2017 to 8th February, 2018 in relation to the designing and construction of 1st Defendant. 3. Whether or not the veil of incorporation of the 1st Defendant should be lifted to find out if the 2nd Defendant could be personally liable for the indebtedness due and owed the 1st Plaintiff by the 1st Defendant? 4. Whether or not the 1st Plaintiff has been deprived of the benefit of her 15% shares since 6th April, 2018? 5. Whether or not the 1st Plaintiff is entitled to be paid the full value of her 15% shares held in the 1st Defendant? 6. Whether or not the 2nd Plaintiff is entitled to the full value of the 15% shares held in the 1st Defendant Company? 7. Whether or not the appointment of the 3rd and 4th Defendants as officers of the 1st Defendant by the 2nd Defendant is wrongful and or illegal? 8. Whether or not the conduct of the 5th Defendant in diverting corporate funds into the account of an entity other than 1st Defendant upon the instruction of the 2nd Defendant is wrongful and or unlawful? 9. Whether or not the Plaintiffs forged the 2nd Defendant’s signature in the 1st Defendant’s incorporation documents? 10. Whether or not the Plaintiffs have by their action before the institution of the suit and their subsequent actions harassed and embarrassed the Defendants? 11. Whether or not the 2nd Plaintiff has breached his fiduciary duty to the 1st Defendant? 12. Whether or not the Plaintiff embezzled funds from the 1st Defendant? 13. Whether or not the Plaintiffs are entitled to their claims? 14. Whether or not the Defendants are entitled to their counterclaim? The 1st Plaintiff testified in person and called one Witness which is the Office of the Registrar of Companies as PW1. The 2nd Plaintiff also testified in person. He did not call a Witness. In the case of Defendants, the 2nd Defendant testified in person for himself and on behalf of the 1st Defendant. The 3rd Defendant, Nana Obeng Brentuo testified in person. The 4th and 5th Defendants did not testify at all. At the closed of the trial, the parties filed Written Address per their respective Lawyers. The Issues tried, their evaluation and Application of the Law: The Court set down for trial Issue One as: Whether or not the processes filed are a nullity. The Defendants in their Written Address did not find it worthwhile to deal with Issue One which allegation was raised by them. In their Written Address however, the Defendants stated as follows: “The gravamen of the Plaintiff’s case as contained in the Pleadings are: 1. An allegation of the Appointment of Directors and a Secretary by the 2nd Defendant without the Consent of the Plaintiff. 2. An allegation that the 5th Defendant who is the accountant of the 1st Defendant diverted corporate funds into the account of a different corporate entity owned/run by the 2nd Defendant allegedly upon the instruction of the 2nd Defendant. 3. An allegation that the 2nd Defendant used funds belonging to the 1st Defendant for the construction of the 2nd Defendant’s private property. 4. And that the 1st Defendant has failed to pay the 1st Plaintiff for some works she did during the construction of the operational premises of the 1st Defendant. My Lord, the above allegations though unproved in the trial, are allegations relating to wrongs allegedly done to the Company and for which the 1st Defendant is solely vested with the right to sue in the light of the rule in Foss v Harbottle (supra). Its therefore submitted that the Plaintiffs do not have the capacity to commence the present suit in the first place.” The question is, was the issue of capacity raised as an Issue for determination or that was what informed the Defendants, in their claim that, the processes of the Plaintiffs are a nullity? Anyway, it is trite that, capacity goes to jurisdiction. Therefore, as fundamental as it is, even if it is not raised as an Issue set down for trial, same cannot be ignored and same must be determined before the action can proceed. See Asante-Appiah v Amponsah alias Mansa [2009] SCGLR 90 @ 95. Order 2 r 4 provides that, the Capacity in which a Plaintiff sues or the Capacity in which the Defendant is sued must be stated on the face of the Writ of Summons. The Order provides as follows: “(1) Before a Writ is filed, it shall be indorsed (a) Where the Plaintiff sues in a representative capacity, with a statement of the capacity in which the Plaintiff sued; or (b) Where a Defendant is sued in a representative capacity, with a statement of the capacity, in which the Defendant is sued.” From the above provision of the Rules of this Court, the Plaintiffs, if they are suing the Defendants in a representative capacity are required to state so on Writ. It is clear from the face of the Writ and the Statement of Claim read together that, the suit has not been initiated by Plaintiffs, on behalf of another person at law, apart from themselves. So, why are the Defendants, per Counsel, raising an issue with the capacity of the Plaintiffs? The answer to this question, is not far-fetched. In his dissenting opinion in the case of: Board of Governors, Achimota School Vrs Nii Ako Nortei II & 2 Ors, Civil Appeal, No. J4/09/2019 dated 20th May, 2020, Pwamang JSC answered the question posed above as follows: “At times locus standi is confused with capacity but they are of different juridical backgrounds though the underlying policy reasons are the same. Capacity relates to the legal personality of a party to proceedings and becomes an issue when a party is proceeding not for her personal benefit but under a stated legal or representative capacity. In such situations, the law insists that, the person must prove that capacity.” Clearly, some Lawyers confuse capacity with locus standi. When they mean to raise an issue of locus standi, they refer to same as capacity. This Court, wish to stress that, capacity comes in, when a party is bringing an action not for his personal benefit or interest but on behalf of another person as clothed by law, for example, as a personal representative of a deceased person, either as an Executor/Executrix in the case of testacy or an Administrator/Administratrix as in intestacy. In the case of locus standi, the party needs only to show that, the subject matter of the suit concerns him personally and that, he has personal interest in same. He therefore sues in his own right to protect his interest for himself and not for someone else. The Court dismisses the Issue of Capacity raised by the Defendants per Counsel as same is misconceived. The Plaintiffs are in Court per the Writ of Summons for their personal interest. The processes filed by the Plaintiffs are not nullity based on any perceived want of capacity to initiate this action. In concluding on this subject, the Court finds reliefs (a), (d), (e), (g) and (h) to be declarations sought by the Plaintiffs. These cannot be impeached on the authority of Foss v Harbottle. Declaratory Reliefs are In Rem and whenever they are sought, the Court only makes a pronouncement as to the status of what it relates. A party is therefore not proscribed from seeking to know the status of anything or a declaration of same for that matter. Issue One is dismissed against the Defendants. Issues Two and Three: 2. Whether or not 1st Plaintiff is entitled to be paid all service charges pertaining in the Civil Engineering Industry for work done from 4th April, 2017 to do 8th February, 2018 in relation to the designing and construction of 1st Defendant. 3. Whether or not the veil of incorporation of the 1st Defendant should be lifted to find out if the 2nd Defendant could be personally liable for the indebtedness due and owed the 1st Plaintiff by the 1st Defendant? The facts under pining the above Issues were raised by the 1st Plaintiff. She claimed that, she is a Civil Engineer and at all times material, the person who designed and constructed the works culminating in the edifice used by the 1st Defendant for the conduct of its business at the Kumasi City Mall. According to her, the Professional Cost of the service she rendered is USD127,115.50 which till date, has remained unpaid at the behest of the 2nd Defendant, although, it was agreed that, same would be paid based on the progress of the business. 1st Plaintiff thus, expressed an intension to tender a Demand Notice sent to the 2nd Defendant to request the payment of the said amount. 1st Plaintiff further stated that, she undertook the said work between 4th April, 2017 and 28th February, 2018, during which period she dedicated herself exclusively to the task, thus losing an income of about GH₡77,000.00 in the process. These allegations of facts were made by the 1st Plaintiff at paragraphs 1, 2 and 3 of her joint Statement of Claim. Per their Statement of Defence, the Defendants averred that, the 1st Plaintiff held herself out as a Civil Engineer, the basis of which she was made responsible for designing and supervising the setting up of 1st Defendant in a shop space, let by Kumasi City Mall. According to the Defendants further, the 1st Plaintiff failed to properly and competently discharge her responsibilities which led to an increase in the original cost of the project from USD550,000.00 to USD1,151,314.27. They added that, 1st Plaintiff’s inability to discharge her responsibilities caused 2nd Plaintiff to resign from his job as a Pharmacist to assist 1st Plaintiff supervise the project. The Defendants denied that, the Professional Cost of the service 1st Plaintiff rendered is USD127,115.50 and contended that, there was no agreement to pay her the alleged Professional Cost of any services she rendered based on the progress of any business. According to the Defendants, sometime in 2019, A Demand Notice from 1st Plaintiff was brought to 1st Defendant Board’s attention during a meeting of the Directors. The Defendants contended that, the Directors of 1st Defendant did not approve payment of the said Demand Notice because there was no basis for the demand and that, at all material times, 1st Plaintiff was also running her own business, which is the sale of building materials. That she even supplied materials required to set up 1st Defendant from her shop and charged and was paid market value price for same. The sub-issue arising in relation to these main Issues Two and Three, presently under interrogation, is whether the 1st Plaintiff, as a Civil Engineer designed and constructed the works that culminated in the edifice of the 1st Defendant. From the Defendants own showing in pleading, they say that, the 1st Plaintiff was made responsible for designing and supervising the setting up of 1st Defendant. They however further say that, she failed to properly and competently discharge her responsibilities. From the pleadings, the averment that, the 1st Plaintiff was made responsible for the design and supervision in respect of the setting up of 1st Defendant constitute an admission of the 1st Plaintiff’s averment of being the person who designed and constructed the works, culminating in the edifice used by the 1st Defendant for the conduct of its business at the Kumasi City Mall. As to whether, the design and supervision was improperly and incompetently discharged by 1st Plaintiff, is an issue for the Defendants, to proof as same has been denied at paragraph 2 of Plaintiff’s Reply. The fact is that, same does not derogate from Defendants admission that, 1st Plaintiff designed and/or constructed and supervised 1st Defendant’s edifice in which it conducted its business at the Kumasi City Mall. From the foregoing, the Court relieves the 1st Plaintiff from the burden to proof that, she performed the task pleaded at paragraph 1 of the joint Statement of Claim in accordance with Sections 10(1) and 11(1) of the Evidence Act, NRCD 323. The 1st Plaintiff however, claims that, she is a Civil Engineer. According to the Defendants, she held herself out as a Civil Engineer. Is the 1st Plaintiff a Civil Engineer? This question is pertinent because according to the Defendants, it was on the basis of this claim by 1st Plaintiff that she was made responsible for the design and supervision of the setting up of 1st Defendant in a shop space let by Kumasi City Mall. On this, the 1st Plaintiff, is to introduce sufficient evidence on same to avoid a ruling against her and not just that, but further to establish a requisite degree of belief on her alleged professional status in the mind of this Court. In her Evidence-In-Chief, she testified at paragraph 13 as follows: “That being a Civil Engineer, I acted at all material times as the lead Project Engineer. I annex my proof of being a Civil Engineer. I further annex evidence of my Change of Name from my maiden to marital name and mark same as Exhibits “1P(B) and “1P(C) respectively.” On 2nd June, 2021, the record of proceedings showed as follows: “1ST PLAINTIFF OPENS HER CASE S. O. B IN ENGLISH Q: Please give your full name to the Court? A: Glorie Osafo Agyemang Duah Q: What is your occupation? A: I am a Civil Engineer. Q: In this proceedings you are also the 1st Plaintiff, is that correct? A: Yes, I am the 1st Plaintiff. Q: And you filed this corrected witness statement dated 12th of May, 2021? A: That is correct. Q: Please identify your signature on the said document? A: Yes, that is my signature. Q: You want to tender this document as well as its annexure in evidence is that correct? A: Yes, that is correct. BY COURT: The Witness Statement of the 1st Plaintiff filed as corrected on 12th May, 2021 together with the attached Exhibits are hereby adopted as the Evidence-In-Chief of the 1st Plaintiff.” From the above proceedings, the following emerges: 1. That, the person who mounted the Witness Box and testified as the 1st Plaintiff is Glorie Osafo Agyemang Duah. 2. That she is a Civil Engineer. 3. That she tendered in evidence without objection Exhibits “1P(B)” and “1P(C)” being evidence from Coventry University of an Award to Belinda Osafo- Ampadu, the degree of Bachelor of Engineering with Honors Upper Second Class in Civil and Structural Engineering in July, 2010 and also Ghana Gazette Notification of Wednesday, 19th April, 2017, evidencing that, the name stated on Exhibit “1P(B)” refers to the same person known as Mrs Glorie Osafo Agyemang Duah. This evidence stood unchallenged when in accordance with Section 6 of the Evidence Act NRCD 323, the Defendants had the opportunity to object to the admissibility of the above testimonial and documentary evidence of the 1st Plaintiff. It is the finding of the Court that, the 1st Plaintiff is a Civil Engineer. By reason of the Defendants averment, of her being made responsible for designing and supervising the setting up of 1st Defendant and her own proof of being a Civil Engineer, the Court further finds that, she undertook the said works in her professional capacity. The Court by reasons of the foregoing resolves Issues Two in favour of 1st Plaintiff but in the following terms that, she is entitled to be paid for her Professional Services she rendered in the construction of the 1st Defendant’s edifice from 4th April, 2017 to 8th April, 2018. The next Issue is whether the Professional Cost of the service rendered by 1st Plaintiff is USD127,115.50? According to the 1st Plaintiff, she made a demand for the above amount. The Defendants admits at paragraph 12 of their Statement of Defence that, sometime in 2019, 1st Plaintiff made a demand to the Board of the 1st Defendant, in a meeting but payment was not approved because there was no basis for the demand. The question is: Was there a basis for the claim of the Professional Cost submitted for payment to the Board of 1st Defendant in the sum of USD127,115.50. In her Evidence-In-Chief, this is the testimony of 1st Plaintiff at paragraph 15 of her Witness Statement: “That in the Civil Engineering Industry, the work I did would attract a total fee of USD127,115.50. I annex relevant invoice as evidence and mark same as Exhibit “1P(E)”. From this testimony, the 1st Plaintiff does not state categorically that, the said amount of fees, that is, USD127,115.50 was contractually agreed between herself and 1st Defendant. She is heard to say that, that is the amount the Civil Engineering Industry attracts for the work she did. The following transpired on 17th June, 2021, when she was further cross-examined by Counsel for Defendants: “Q: The project cost that was contained in the project proposal, did it include the cost of hiring an architect? A: No, it did not include the cost of hiring an architect. Q: The project proposal, did it include your charges as Supervisor of the project? A: No, it did not include my charges as a Supervisor. What was included was a total sum for the construction of the project. To be specific the proposal included cost of construction items, and working capital for two months.” From the 1st Plaintiff’s own showing, the project cost did not include the cost of hiring an architect. She was emphatic that the project proposal did not include her charges as a Supervisor. The Court finds therefore that, there was no agreement for the 1st Plaintiff to be paid USD127,115.50 as her professional fee or charge. It is therefore the humble view of the Court that, the 1st Plaintiff ought not to have imposed her Professional Fees or charge on the 1st Defendant without a prior express agreement of the Company with her, before she undertook the professional work. The 1st Defendant was therefore, in its right, in taken the position it did by not approving payment of the amount claimed by 1st Plaintiff per her Demand Notice. The Court, however, is of the opinion that, having made a finding that, 1st Plaintiff is entitled to be remunerated for her Professional Services, it will not declare that, she is entitled to the amount of USD127,115.50 but that she is entitled to payment for the work she did on the basis of quantum meruit. In his work titled “LEGAL REFERENCE BOOK”, the Learned Author, Derick Adu-Gyamfi stated at chapter 11, page 221, on the Law governing the principle of quantum meruit as follows: “The insistence on the existence of contract as sine qua non for remuneration on quatum meruit has been declared outmode and denial of justice founded on a very narrow view of modern action for quantum meruit. An action on quantum meruit which had to be based on contract, is now firmly rooted in the area of quasi contract. What the court does is to look at all the surrounding facts and ‘to ascertain from them whether or not a promise to pay should be implied irrespective of views or intention of the parties at the time when the work was done or services rendered. The court would imply that the recipient of the services would pay a reasonable sum.’ See Hammond v Ainoonson [1974] 1 GLR 176; Lacey v Davies [1957] 2 All ER 712; Way v Latilla [1937] 3 All ER 759. In all these cases there were no contracts yet the nature of the relationship of the parties and the fact of services rendered and accepted, brought the operation of the relief of quantum meruit into effect.” See Kobaku Associate v Owusu [2006] 2 MLRG 228 CA [at page 252–253] Per Heward Mills, J; Skanka Jensen International v Klimatechnik Engineering Ltd. [2003-2004] SCGLR 698; Quarcoopme v Senyo Electricals [2009] 6 GMJ 58 SC.” So, on the authorities, even where there was no contract and yet there is evidence, judging from the relationship between the parties that, some services or works were performed by one party in favour of the other, the relief of quantum meruit will be brought into operation or effect. In other words, the Court looks at all the surrounding facts in determining quantum meruit. This is a project that, from the evidence before the Court, involved a huge capital injection amounting to over a million US Dollars. Such a project of a huge financial outlay, no doubt elicits cost in Professional Fee for the design and construction of the edifice. 1st Plaintiff wants a recovery of USD127,115.50. The Court on quantum meruit basis will award as Professional Fee for the services 1st Plaintiff provided, at 70% of the USD127,115.50, that is denied her by the Court. The amount shall be USD88,980.85. The Court have already stated that, in the Writ the relief for 1st Plaintiff’s Professional Fee was sought by way of declaration. This type of declaration although In Rem is not about a Third Party or another person other than 1st Plaintiff’s interest. Had the Professional Fee been sought for and on behalf, for example, 1st Defendant Company, no Order for payment to someone other than 1st Plaintiff will be entertained. The case of Hanna Assi (No. 2) v Gihoc Refrigeration & Household Products Ltd (No. 2) SC Review Suit No. CM7/2/2006 dated 4th April, 2007, teaches the learning that, a Court can grant in deserving cases, from the evidence adduced, before the Court, a relief not sought for by a party. From the evidence before the Court, the claim for Professional Fee by 1st Plaintiff is borne out by the evidence, even though, in the Writ, she did not seek the amount for the said fees therein. At paragraph 35 of the Statement of Claim, it is stated that, the Plaintiffs seek the reliefs endorsed on their Writ of Summons. The Court on the basis of the Hanna Assi case finds that the 1st Plaintiff is entitled as Professional Fee or charges, for the design and constructions works culminating in the edifice, used by the 1st Defendant, for the conduct of its business at the Kumasi City Mall in the sum of USD88,980.85. Lifting the Veil of Incorporation. Should the Court lift the veil of incorporation of the 1st Defendant to make 2nd Defendant personally liable for the indebtedness herein found, in the sum of USD88,980.85. otherwise payable by the 1st Defendant. To answer this question, the Court, would have to find, how the 1st Plaintiff came to rest the indebtedness due and owed to her by the 1st Defendant, on the lifting of 1st Defendant’s veil of incorporation. The Court shall look to the pleadings of 1st Plaintiff, to find whether there are any pleaded assertions supporting her clamour for the veil covering 1st Defendant to be lifted and if justifiably so. In his book, Civil Procure in Nigeria, 2nd Edition, this is what the Learned Author, Fidelis Nwadialo said on the nature and general principles of pleadings at pages 306 and 307, inter alia as follows: The Learned Author at page 306 stated inter alia: “Evidence is said to go to no issue if the fact it is intended to prove is not pleaded. A party must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference that, the other party did not object to the evidence or that, the judge did not reject it.” He continued as follows: “Evidence of a fact not pleaded goes to no issue and is irrelevant. If a party extracts in the course of cross-examination, evidence which if accepted, could decide the issue between the parties, then, if he wishes to use it, he should first amend his pleadings to include the facts proved by such evidence.” In the joint Statement of Claim, the averments relative to the 1st Plaintiff, as her case therein before the Court, spans paragraphs 1 to 7. Apart from stating at paragraphs 1, 2, 3 and 6, facts relative to the work she undertook as an Architect for 1st Defendant, she has not pleaded anywhere facts upon which Issue Three underpins. The Court is at sea how a matter, that is the lifting of 1st Defendant’s veil of incorporation, not pleaded could fall for joinder of issue and as Issue Three for trial and determination. A look at the corrected Witness Statement of the 1st Plaintiff from paragraphs 1 to 20 has no testimony relative to the lifting of the veil of incorporation of 1st Defendant. Issue Three itself is still borne for being speculative. That issue is that, the veil of incorporation of the 1st Defendant should be lifted not to make 2nd Defendant personally liable for 1st Defendant’s indebtedness but should be lifted to find out if the 2nd Defendant could be personally liable. The Court cannot be invited per Issue Three to go fishing in order to find out just in case or if or per chance, 2nd Defendant could be personally liable for the indebtedness owed to 1st Plaintiff by 1st Defendant. In the case of Fattal v Wolley [2013 -2014] 2 SCGLR, 1070, the Apex Court of our Land, speaking through Her Ladyship, Georgina T. Wood (JSC) (as she then was) held: “…admittedly, it is indeed sound basic learning that, Courts cannot be tied down to only the issues identified and agreed upon by the parties at Pre- Trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant or even not germane to the action under trial, there is no duty cast on the Court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at the trial from either the pleading or the evidence, the Court cannot refuse to address it on the ground that, it is not included in the agreed issues.” This Court on the authority of Fattal v Wolley, finds Issue Three irrelevant and not germane to the 1st Plaintiff’s case having regard to her pleadings. This Court cannot therefore make any Order lifting 1st Defendant’s Veil of Incorporation to make 2nd Defendant liable to pay the amount of USD88,980.85 being the Professional Fee of 1st Plaintiff. This amount of USD88,980.85 or its Cedi equivalent is ordered to be paid by 1st Defendant to 1st Plaintiff. The Court shall now turn to Issues Four and Five. 4. Whether or not the 1st Plaintiff has been deprived of the benefit of her 15% shares since 6th April, 2018? 5. Whether or not the 1st Plaintiff is entitled to be paid the full value of her 15% shares held in the 1st Defendant? The 1st Plaintiff pleaded the factual basis for the alleged deprivation of the benefit of her shares at paragraphs 4 and 7 of the joint Statement of Claim. According to the said paragraphs, she was giving 15% of shares in the 1st Defendant which according her, the 2nd Defendant, later, fraudulent reduced to 7.5%, without her knowledge, authority and consent. That, she is entitled to the full monetary value of her 15% share in the 1st Defendant and respectfully pray the Honourable Court to order the Defendants to settle the outstanding indebtedness. These claims of 1st Plaintiff at paragraphs 4 and 7 of the Statement of Claim have been denied by the Defendants. According to them, the shares allotted to 1st Plaintiff upon incorporation, have not been reduced and remain the same. They further state that, 1st Plaintiff still owns 15% shares in 1st Defendant, allotted to her and is not entitled to payment for same. These denials of 1st Plaintiff's averments is contained in paragraphs 15 and 20 of the Statement of Defence. The question is, does 1st Plaintiff still owns 15% of the shares in 1st Defendant allotted to her or 2nd Defendant has fraudulently reduced same to 7.5% without her knowledge, authority and consent? The 1st Plaintiff is invited to provide evidence to clearly show to this Court that, her 15% shares is now 7.5% and it became so by the fraudulent act of 2nd Defendant. In her evidence-in-chief, per her Witness Statement and made up of 20 paragraphs, the only case the 1st Plaintiff testified relative to Issue Four is paragraph 7 of her Witness Statement. According to her, it was agreed that, the 2nd Plaintiff should have a 15% shareholding and she, the 1st Plaintiff, also to hold 15% of the shares and 70% to be held by the 2nd Defendant. Nothing more was testified by her about the reduction of her shares from 15% to 7.5% as alleged at paragraph 4 of the Statement of Claim. An examination of the Exhibits tendered by her, did not include any documentary evidence that, her shares has been reduced to 7.5% in the 1st Defendant Company. The theory of the Defendants case advanced through the mouth of the 1st Plaintiff, although unsuccessfully, indicates that, an attempt was made for the Plaintiffs to agree to a reduction of Plaintiffs shares by reason that, the Plaintiffs were unable to pay for their equity shares. The fact remained however that, that intended agreement did not see the light of day. This is what transpired of 1st Plaintiff under Cross-Examination on 14th October, 2021, by Counsel for Defendants: “Q: You remain a Shareholder of the 1st Defendant as you sit in the box today, is this correct? A: Yes, that is correct. I am still a shareholder of the 1st Defendant because myself and the 2nd Plaintiff sent a caveat to the Registrar General Department correcting fraudulent activity that took place on the 1st Defendant Registration. Q: I am putting it to you that the 2nd Defendant has never undertaken any fraudulent activity on the 1st Defendant’s registration as you allege in your previous answer? A: That is not correct. Q: You will agree with me that your Shareholding in the 1st Defendant was also subject to you and the 2nd Plaintiff paying an equity contribution of 10% of the total cost of the project? A: That is not correct. Q: In 2018, the 2nd Defendant sent a Shareholders Agreement to you requesting that you agree to a reduction of your shares. Is this correct? A: That is correct. Q: The reason he requested for a reduction of your shares was that you were unable to pay your share of the equity of the 1st Defendant. Is that not so? A: That is not correct. Q: I am putting it to you that the 2nd Defendant requested that you surrender 50% of your shares if you were not in the position to contribute your equity for the total cost of the project? A: That is not correct. Q: I am putting it to you that since you refused to co-operate with the 2nd Defendant, he made enquiries at the Registrar General’s Department to ascertain what his options were in the circumstance. A: That is not correct. The 2nd Defendant attempted to alter our shares only when the business was three months old. This attempt came to highlight first of all when we received text messages from the Registrar General’s Department and also one lady called Mary who handed the documents to us. When the 2nd Defendant discovered that his secret activities have come to the light he quickly sent us shareholders agreement and pressured the Plaintiffs to sign.” From 1st Plaintiff’s own showing, what she alleges against 2nd Defendant, was an attempt to alter their shares but not that, the shares have in fact and indeed been altered or reduced. Her testimony is not emphatic that, she is now a 7.5% Shareholder instead of 15% Shareholder. Further, she admits that, in 2018, 2nd Defendant sent to her a Shareholders Agreement on the reduction of shares. The Court struggles to find how, a document which was transparently furnished the 1st Plaintiff by 2nd Defendant, which subject was about shares and its proposed reduction or variation becomes an act of fraud, as claimed by 1st Plaintiff. The 1st Plaintiff on Issue Four has failed to introduce sufficient evidence on the said Issue, the burden which is upon her, to avoid a ruling against her on the Issue. Further, she has failed to establish a requisite degree of belief concerning Issue Four in the mind of this Court. Accordingly, Issue Four is resolved against 1st Plaintiff. In terms of Issue Five, 1st Plaintiff did not plead the factual basis for her claim for the full value of her 15% share held in the 1st Defendant Company. This notwithstanding, the Court gleans that, her claim for the recovery of her 15% shares, was based on the non-existence and infactual reduction of her share to 7.5%. The question is, if what the Court gleans, to be the non-existent reduction of her shares, do not exist, then what justification lies for the grant of Issue Five in favour of 1st Plaintiff for the full monetary value of her 15% shares? Lord Denning in his off quoted Dictum in Macfoy v UAC [1961] 3 ALL ER 1169, 1172 stated thus inter alia: “…You cannot put something on nothing and expect it to stay there. It will collapse.” The Court categorically puts beyond doubt that, 1st Plaintiff still owns in 1st Defendant Company, 15% shares and same have not been altered or reduced whatsoever. She therefore, has no basis to claim that, she has been deprived of the benefit of her 15% shares since 6th April, 2018 and to found a recovery of the monetary value of the shares thereof. The allegation made by 1st Plaintiff at paragraph 4 of the Statement of Claim of 2nd Defendant having fraudulently reduced her shares to 7.5% without her knowledge, authority and consent is hollow and without a shred of evidence. The judicial edifice was not constructed to lend ready ear to every cry of fraud. If charges of fraud are not examined closely, the stratagem would be to subvert the very administration of justice as echoed by Justice Francois in Dodzetepe v Hahormene III [1987 – 88] 2 GLR, 681 cited with approval by the Supreme Court in Osei Ansong & Anor v Ghana Airports Company Ltd [2013 – 2014] 1 SCGLR, 25. Issue Five is therefore for the above reasons, resolved against 1st Plaintiff. The Court shall next move to Issue Six: 6. Whether or not the 2nd Plaintiff is entitled to the full value of the 15% shares held in the 1st Defendant Company? As stated elsewhere in this delivery, Issues are decided by and in pleadings and pleadings deal mainly with facts. Did the 2nd Plaintiff plead facts to warrant Issues Six? In perusing, 2nd Plaintiff’s averments, the exact basis why he sought relief (f) which is recovery of the full value of his 15% shares in the 1st Defendant Company is not so clear. From paragraph 12 of the Statement of Claim, 2nd Plaintiff do not state that, he has been deprived of his 15% shares or the said number of shares had been altered or reduced. In the view of the Court, an allegation of an attempt to change the agreed shareholding structure of the 1st Defendant does not amount to a change of the shareholding structure as claimed in paragraph 12(c). The 2nd Plaintiff avers at paragraph 17 of the Statement of Claim that, his shareholding of 15% was reduced to 7.5% in a manner not sanctioned by law. Notwithstanding, this categorical statement that, his shares was reduced, he testified, in the Witness Box, at paragraph 18 of his Witness Statement contra as follows: “That in April, 2018, the 2nd Defendant attempted to alter the share percentage of the Plaintiffs from 15% each to 7.5% without the knowledge, consent and authority of the Plaintiffs and in connivance with a retiree of the Registrar General Department. I annex Form 3 emanating from the Registrar General Department as well as a direction written in the hand writing of the 2nd Defendant to a retiree of the Registrar General Department evidencing the fraud 2nd Defendant has perpetrated and marked same as Exhibit “2PH” and “2PH(1)” respectively. The Defendants in pleading averred that, Plaintiffs and 2nd Defendant were in discussions to change 1st Defendant’s shareholding structure and execute a Shareholder’s Agreement, which change was necessitated by the fact that, Plaintiffs failed to pay the agreed 10% of the project cost or make financial contribution to the project. The Defendants averred further that, 1st Defendant's shareholding structure remains (i) 2nd Defendant, 700 shares, 70% shares, (ii) 1st Plaintiff, 150 shares, 15% shares and (iii) 2nd Plaintiff, 150 shares, 15% shares. The Defendants reiterated at paragraph 62 of their Defence that, Plaintiffs continue to hold 15% each of 1st Defendant's shares and cannot keep these shares and also demand to be paid their value. The 2nd Plaintiff indeed, tendered Exhibits “2PH” and “2PH(1)” but both do not disclose a reduction or change in 2nd Plaintiff’s 15% shares to 7.5% shares. It is the finding of the Court that, the evidence does not disclose a reduction or variation of 2nd Plaintiff’s 15% shares whatsoever. The Court finds as a fact that, 2nd Plaintiff still holds 15% shares just like the 1st Plaintiff in 1st Defendant Company. The Court finds no basis to make an Order for the 2nd Plaintiff just like the 1st Plaintiff, to recover the full value of his 15% shares in the 1st Defendant Company. Issues Six is resolved against 2nd Plaintiff. The Court shall interrogate Issues Seven and Eight together. 7. Whether or not the appointment of the 3rd and 4th Defendants as officers of the 1st Defendant by the 2nd Defendant is wrongful and or illegal? 8. Whether or not the conduct of the 5th Defendant in diverting corporate funds into the account of an entity other than 1st Defendant upon the instruction of the 2nd Defendant is wrongful and or unlawful? Issue Seven underlies relief (g) of Plaintiff’s reliefs in terms of it being a prayer in the nature of a declaration. The relief is In Rem. As stated elsewhere in this delivery, Plaintiffs do not have to show locus standi. It has been alleged by 2nd Plaintiff that, with the view to annexing the total running and management of the 1st Defendant, the 2nd Defendant sought to impose family members and other persons without regard to due process. It was averred that, in pursuance of this, the 3rd and 4th Defendants as well as one Kwadwo Agyemang were illegally foisted on the 1st Defendant and giving important roles aimed at undermining the Managing Director of 1st Defendant. This averment is contained in paragraphs 14 and 15 of the Statement of Claim. The Defendants denied paragraph 14 of the Statement of Claim and stated that, 3rd and 4th Defendants were duly appointed as Managing Director and Executive Director of 1st Defendant. They denied further that, 3rd and 4th Defendants were appointed to undermine 2nd Plaintiff and stated that, even before his appointment as Managing Director was terminated, by a Board Resolution, on 28th March, 2019, 2nd Plaintiff was frequently absent from work without explanation or permission and was mismanaging 1st Defendant. They denied paragraph 15 of the Statement of Claim and stated that, they do not know any Akwasi Amponsah. This pleadings from 2nd Plaintiff and Defendants necessitated the joinder of Issue on their pleadings. The Issue turns on 3rd and 4th Defendants as Officers of the 1st Defendant. The first schedule of the Companies Act, (Act 179) provides under Section 2 as follows: “In this Act, unless the context otherwise requires, the expressions defined in the First Schedule have the meanings assigned in that Schedule.” “Officer” under the schedule is defined as: “in relation to a body corporate, means any director, secretary or employee of that body corporate and a receiver and manager of a part of the undertaking of that body corporate appointed under a power contained in an instrument, and a liquidator of a company appointed in a members’ voluntary winding up.” Under the Act, an officer therefore includes any director, secretary or employee of a body corporate. A director for the purpose of Act 179 means those persons, by whatever name called, who are appointed to direct and administer the business of the company. A director under Section 179 also includes, a person, who is not a duly appointed director of a company, who holds out as a director or knowingly allows himself to be held out as a director of that company or on whose directions the duly appointed directors are accustomed to act. Such a defacto director under the Act is subject, to the same duties and liabilities as if that person, were a duly appointed director of a company. It has been stated at paragraph 39 of the Statement of Defence that, 3rd and 4th Defendants were duly appointed as Managing Director and Executive Director of 1st Defendant. A managing director and/or an executive director is a director who in addition to being a director holds an executive position of a company. Are the 3rd and 4th Defendants named in the Regulations of the 1st Defendant as First Directors in accordance with Section 16(2)(d) of Act 179 or by an appointment under Section 181(1) and (3)? The evidence before the Court per Exhibit “2D1” (1st Defendant’s Regulations) is that, the 3rd and 4th Defendants namely, Nana Obeng Brentuo and Akosua Adutwumwaa Obeng are not named in the 1st Defendant’s Regulations as first directors within the meaning of Section 181(2). The question is, were they appointed in accordance with the Regulations of 1st Defendant, that is Exhibit “2D1”? Regulation 59 of 1st Defendant's Regulations, Exhibit “2D1” tendered without objection, provides that, the appointment of directors of 1st Defendant, shall be regulated by Section 181 and 272 of the Act. It is pertinent in resolving Issue Seven to note, as provided under Section 139 that, an Act of the members in general meeting, the board of directors, or a managing director, while carrying on in the usual way, the business of the company shall be treated as the Act of the Company itself. The further question is whether or not the appointment of 3rd and 4th Defendants are Act of the 1st Defendant? For the answer to be in the positive, the appointment should be by members in general meeting or the board of directors or a managing director while carrying on in the usual way, the business of the company. Section 181(1) provides that, a person shall not be appointed a director of a company unless that person has, prior to the appointment, consented in writing to be appointed. On Issue Seven, still under interrogation, the 2nd Plaintiff says that, 3rd and 4th Defendants were illegally foisted. The Defendants also says that, they were duly appointed. The burden of proof rest on 2nd Plaintiff as it is trite that, he who avers must proof. The 2nd Plaintiff in the Witness Box testified at paragraph 43 of his Witness Statement as follows: “That 2nd Defendant made the following appointments, unilaterally without the knowledge or consent of the Plaintiffs, 3rd Defendant as Managing Director and Director, 4th Defendant as a Director, Trustee Services Ltd as Company Secretary, Amos Antwi, as the Company Lawyer. I annex two emails both dated 3rd January, 2019, as well as an email dated 29th March, 2019. I also annex Form 17 and the Minutes of a purported meeting held on the 19th of March, 2019. I further annex purported appointment of Trustees Services Ltd and the acceptance of the appointment as evidence and mark same as Exhibits “2PN”, “2PN(1)”, “2PN(2)”, “2PN(3)”, “2PN(4)” and “2PN(5)” respectively.” Perusing through the Exhibits tendered supra, Exhibits “2PN(3)” and “2PN(4)” is of significance. “2PN3” is a Notification of Change of Directors or Secretary or in their particulars pursuant to Section 197(3) of Act 179. Exhibit “2PN(3)” has on it stated as Form 17. Exhibit “2PN(4)” is stated to be Minutes of Extraordinary General Meeting (EGM) of the Shareholders of Watch & Dine Ltd, held on Tuesday, 19th March, 2019, at 11:00am (GMT) at Golden Tulip Hotel, Kumasi City, Kumasi. Exhibit “2PN4” includes a letter stated to be a consent to be appointed as Director of Watch & Dine Ltd by Akosua Adutwumwaa Obeng and a similar letter by Nana Obeng Brentuo. Exhibit “2PN3” as evidence of the appointment of the 3rd and 4th Defendants were not challenged under Cross-Examination of the 2nd Plaintiff. Still, the question needs to be answered whether the appointment of the 3rd and 4th Defendants as Officers of the 1st Defendant by the 2nd Defendant is wrongful and/or illegal. Exhibit “2PN4” needs to be captured in extenso: “WATCH & DINE LIMITED (THE COMPANY”) MINUTES OF EXTRAORDINARY GENERAL MEETING (“EGM”) OF THE SHAREHOLDERS OF WATCH & DINE HELD ON TUESDAY, 19TH MARCH 2019 AT 11:00 AM (GMT) AT GOLDEN TULIP HOTEL, KUMASI CITY, KUMASI. MEMBERS PRESENT Kwabena Obeng Member & Director (Chairman) ABSENT Osei Agyemang-Duah Member & Director Glorie Osafo Agyemang-Duah Member IN ATTENCE Ebenezer Fosu Daniel Imadi firm/Consultant) Robert Ofori & Partners (Company’s Auditors) Bentsi Enchil, Latsa & Ankomah Law Amos Kwabena Antwi External Counsel for the Company Akosua Obeng Nana Obeng Brentuo Director Director 1. OPENING Mr Obeng opened the meeting at 11:00 am and presided as Chairman. The Notice & Agenda of the meeting were taken as read. It was noted that Kwabena Obeng being a majority shareholder of the Company, had followed due process to convene this (EGM) persons entitled to notice were duly notified. 2. APPOINTMENT OF DIRECTORS OF THE COMPANY It was noted that Nana Obeng Brantuo and Akosua Obeng had duly consented in writing to be appointed as directors of the Company. The following resolutions were thereafter passed: i) That Nana Obeng Brentuo and Akosua Obeng be appointed as directors of the Company with effect from 19th March 2019; and 3. CLOSE OF MEETING The meeting came to a close of 11:10 am (GMT): (SGD.) (SGD.) ……………………………… ………………… “ This meeting, captured on Exhibit “2PN(4)” commenced at 11:00am and ended at 11:10am. This is a ten minutes meeting at Golden Tulip Hotel, Kumasi. It is an Extraordinary General Meeting, meaning that, those who were required to attend are members of the 1st Defendant. Per Section 30 of Act 179, members are subscribers to the Regulations, any other person who agrees with the Company to become a member of the Company and a shareholder. The evidence before this Court, is undisputed that, members of 1st Defendant are the 1st and 2nd Plaintiffs and also the 2nd Defendant only. It is they who are to constitute the EGM stated to have been held on 19th March, 2019, for ten minutes at Golden Tulip Hotel, Kumasi. 1st and 2nd Plaintiffs are stated to be absent and the Exhibit states that, 2nd Defendant had followed due process to convene this EGM and further that, persons entitled to notice were duly notified. The meeting suggest therefore that, 1st and 2nd Plaintiffs as members of 1st Defendant were duly notified. EGM is provided for under Section 150 of Act 179. Under its Sub-Section 3, an EGM such as was stated to have taken place per Exhibit “2PN4”, may be requisitioned in accordance with Section 271. In consonance with Section 271, the Directors of 1st Defendant are mandated to be the one to convene the 1st Defendant’s EGM scheduled for 19th March, 2019, on the requisition of two or more members of the 1st Defendant or a single member with not less than one-tenth of 1st Defendant’s shares. There is no evidence of a requisition made by the 2nd Defendant to the Directors of 1st Defendant. The 2nd Defendant of course, cannot make a requisition to himself as a Director but can make a requisition to the other Director in the person of 2nd Plaintiff. From the dictates of Section 271 of Act 179, the 2nd Plaintiff ought to have had notice of the EGM at the requisition of the 2nd Defendant. It is when the 2nd Plaintiff have been so notified of the EGM and has failed, within seven days from the date of receipt of the requisition, to convene the EGM that, 2nd Defendant could proceed to duly convene the EGM not later than twenty-eight days of the receipt of the requisition or by 2nd Defendant himself, after the expiration of four months from that date. There is no evidence of the compliance of Section 271 in respect of the said EGM. The 2nd Defendant did not tender any evidence of a requisition sent to 2nd Plaintiff with its contents satisfying the statutory dictates of Section 271. This Court further finds from Exhibit “2PN” that, apart from 2nd Defendant himself, there were no members of the 1st Defendant present at the meeting. The Court rejects the claim of the Defendants that, the other members of 1st Defendant Company were notified of the EGM as same is spurious. Exhibit "2PN(4)" states that, the meeting was to appoint the 3rd and 4th Defendants as Directors. However, at the opening of the meeting at 11:00am, the 3rd and 4th Defendants were recorded in the capacities of Directors of the 1st Defendant even before they were appointed at that meeting. A resolution is also stated to have been passed at the meeting. Per Section 168 of Act 179, a resolution is ordinary when passed by a simple majority of votes cast by the members of the 1st Defendant at the General Meeting and it is special when passed by not less than three-fourths of the votes cast by the members of the 1st Defendant at the General Meeting of which notice specifying the intention to propose the resolution as special, has been duly given. It is the finding of this Court that, the purported meeting breached statute that is, Sections 168 as 1st and 2nd Plaintiffs as members were not notified by any requisition and also Section 271 of Act 179 by non-compliance of its statutory dictates. The non-compliance of statute as found by the Court, is illegal and unlawful. Issue Seven is resolved in favour of 2nd Plaintiff against Defendants. This Court per relief (g) has been prayed by the Plaintiffs to only make a declaration in relation to the said Issue Seven without more. The Court so declares, the Appointment of 3rd and 4th Defendants as Officers of the 1st Defendant by 2nd Defendant wrongful and illegal. The Court cannot make any further Order as that claim for an Order for example, for the removal of 3rd and 4th Defendants as Officers of the 1st Defendant can only be claimed by 1st Defendant itself and not the Plaintiffs in personam. The Court now turns to find out whether a said conduct of the 5th Defendant in an alleged diverting of corporate funds into the account of an entity other than 1st Defendant upon the instruction of the 2nd Defendant is wrongful and/or unlawful. It is the 2nd Plaintiff who made this allegation against the 2nd Defendant. So, is this a fact that, 5th Defendant diverted funds of the 1st Defendant into an account of another entity upon the instruction of the 2nd Defendant. If it is fact, is it wrongful and/or unlawful. The factual basis of this allegation can be found at paragraph 18 of the Statement of Claim whereat, this was said: “The 2nd Plaintiff says that sometime in 18th December, 2018 the 2nd Defendant unilaterally ordered the 5th Defendant to pay all income generated from the operation of the 1st Defendant which was previously kept in the requisite corporate accounts at either Adum Haper Branch of Ecobank or Adum Branch of Fidelity Bank into the account of an entity personally owned/run by the 2nd Defendant with a view to continue the fraudulent pattern of behaviour and with a view to under declaring the income and overreaching the Plaintiffs.” In providing his testimonial and documentary evidence to proof what he said supra, the 2nd Plaintiff per his Witness Statement testified about various acts of the use of funds of 1st Defendant and a said authorisation of 5th Defendant to move funds of 1st Defendant into an account of another entity. This is the testimony of the 2nd Plaintiff at paragraphs 35, 36, 37 and 42 of of his Witness Statement: “35) That from the 18th December 2018 till date, the 2nd defendant has continually diverted funds from 1st defendant into a privately owned account inaccessible to other shareholders (plaintiffs) without board resolution. I annex e-mails dated 16th and 24th April, 2019 as a well as relevant invoices and payment slips showing the said diversion of corporate funds and mark same as Exhibits 2PM, 2PM(1), 2PM(2), 2PM(3) and 2PM(4) respectively. 36) This unlawful act of diversion of funds was carried out by the 5th defendant, the accountant of the 1st defendant with the connivance and support of the 2nd defendant. This compelled me to terminate the appointment of the said 5th defendant but the 2nd defendant sent an e-mail saying that I had no authority so to do, I annex two e-mails both dated 2nd November, 2018, two e-mails dated 1st January, 2019, and a letter of termination dated 2nd January, 2019 and mark same as Exhibits 2PM(5), 2PM(6), 2PM(7), 2PM(8) and 2PM(9) respectively. 37) That the 2nd defendant has diverted funds from 1st defendant to his privately owned company (Steaman Group Ltd) to defraud the plaintiffs and make any proper accounting for the running of the 1st Defendant impossible. 42) That without resolution from the Board of Directors, the 5th defendant apparently acting at the direction of the 2nd defendant instructed Ecobank (bankers of the 1st defendant) to move all funds from the corporate account into an account privately owned by the 2nd defendant. I annex an e- mail dated 18th January, 2019 for the consideration of the Honourable Court and mark same as Exhibit 2PM(18). On 20th March, 2023, 2nd Plaintiff was cross-examined. However, same turned more on Exhibit 2PM(10) tendered by 2nd Plaintiff. The Defence of the Defendants in respect of the above allegations also was that, in order to prevent the 1st Defendant’s collapse from lack of funds to operate, they were compelled to keep 1st Defendant’s funds in a separate and dedicated account to enable 1st Defendant continue operations, until the issues with 2nd Plaintiff was resolved. The Defendants added that, all monies kept in this account are duly accounted for and were exclusively used for the 1st Defendant's purposes, which fact is confirmed, by a November, 2018, Internal Audit Report and by 1st Defendant's External Auditors, Robert Ofori & Partners. This is what 2nd Defendant said when he testified in-chief per paragraphs 41, 42, 45 and 46 of his Witness Statement: as follows: “41) It was however subsequently brought to my attention that the 2nd Plaintiff was signing cheques in excess of GHS5000 without my consent. Therefore changes had to be made to safeguard the 1st Defendant’s account. And thus it was required that either the 4th Defendant or I should co-sign before cheques in excess of GHS5000 were issued. 42) The 2nd Plaintiff was dissatisfied with these checks and balances, and therefore he deliberately tried to frustrate the running of the 1st Defendant’s by refusing to sign any cheque consequently hampering the 1st Defendant’s operations. In order to prevent the 1st Defendant from collapsing due to lack of funds to operate, the Defendants were compelled to keep the 1st Defendant’s funds in a separate and dedicated account to enable the 1st Defendant continue its operations, until the issues with the 2nd Plaintiff were resolve. 45) The 1st Defendant makes periodic payment to me in settlement of the loan grant. 46) I wish to add that all monies kept in this account were duly accounted for and were exclusively used for the 1st Defendant’s purposes and this fact is confirmed by Exhibit 6 and Exhibit 15.” The Court finds per Exhibit “2PM(6)”, evidence of authorisation for 5th Defendant to deposit funds of 1st Defendant into an account other than that of 1st Defendant. Exhibit “2PM(7)” affirms the deposit of funds of 1st Defendant into an account other than that of 1st Defendant. Exhibits "2PM(8)" and “2PM(9)” affirms the movement of funds of 1st Defendant, from its Ecobank Account to a none 1st Defendant’s Account. A combined reading of these Exhibits supra pitched against Exhibit “2PM(18) tendered without objection, provides evidence that, funds of 1st Defendant was moved from its Ecobank Account to an account of Steaman Group Ltd’s Account. This movement of funds from 1st Defendant’s Account to that of Steaman Group Ltd, is deprecated. The 1st Defendant’s funds for whatever reason that, purports to warrant its relocation from its domicile account cannot end up at any other account but another account of 1st Defendant. For such funds to be moved, it must also be sanctioned by 1st Defendant and not by the fiat of the 2nd Defendant to the 5th Defendant. The Court is fortified in this conclusion by the interplay of Exhibits “2PM(5)” and “2PM(6)” where 2nd Plaintiff raises issue with the 5th Defendant not depositing sales revenue into 1st Defendant’s Account at the end of business or banking day and 2nd Defendant's authorisation to 5th Defendant to pay such funds elsewhere other than that of 1st Defendant respectively. I reproduce the relevant part of Exhibits “2PM(5)” and “2PM(6)” on the conclusions of the Court respectively: This is what Exhibit “2PM(5)” says: “Hello Kofi I am sending you this mail in regards to the above. As the custodian of our account I expect you to have made deposit of all sales into the right account at the end of business or banking day. Refusal to do it/ deposit into the wrong account or handling of the company’s account will be in breach of your duties and considered as stealing. This will be brought to the attention of the police and necessary actions will be taken. Best” Exhibit “2PM(6)” reacted to the above thus: “Kofi has my authorization to deposit the cinema funds into a temporary account until current issues are resolved. All funds will be properly accounted for to shareholders and directors per company policy. Please desist from carrying out threats to staff and subverting my authority as the Chief Executive Officer who appoints the management team. Thanks. Kwabena Obeng President & C. E. O.” What is this entity known as Steaman Group Ltd. The proceedings of 20th May, 2024, is useful in answering this question inter alia as follows: “Q: Do you know the entity called Steaman? A: Yes. Q: Who owns Steaman? A: I am a shareholder. Q: Who is the Managing Director of Steaman Groups Ltd? A: My brother is. Q: What is the name of your brother? A: Q: A: Nana Obeng. Is he the same person who gave evidence in this case? Yes, My Lord. Q: When was Steaman established? A: I do not remember the date. Q: Which year was it established? A: I still do not have those dates. Q: Was it established before Watch & Dine or after? A: I do not remember.” From the 2nd Defendant own showing, he is a shareholder of Steaman Group Ltd. His brother is the Managing Director. Why would funds of 1st Defendant for any good reason, not be transferred into an account of any Company of which 2nd Defendant is not a shareholder and his brother is not a Managing Director. The Court finds a logical connection between 2nd Defendant's authorisation to 5th Defendant, 1st Defendant's Accountant, to move funds from the Ecobank Account of 1st Defendant into an account of Steaman Group Ltd whose Managing Director and shareholder are siblings and just not that, 3rd Defendant who testified in this proceedings and also purported to be a Director of 1st Defendant and 2nd Defendant as a shareholder. It is the further finding of this Court, that, per Exhibits “2PM(6)”, the authorization to 5th Defendant to pay corporate funds into an account not owned by 1st Defendant was not a decision of the Board of Directors, but a fiat of 2nd Defendant. The Court finds that, the conduct of the 5th Defendant in diverting corporate funds into the Account of Steaman Group Ltd other than 1st Defendant upon the instruction of the 2nd Defendant is hereby declared wrongful and/or unlawful. Issue Eight is resolved in favour of Plaintiffs. The Court will not order payment of 1st Defendant's moved funds to Steaman Group Ltd's Account as that relief, can only be prayed for by 1st Defendant but not Plaintiffs who sought only a declaration In Rem and not In Personam. The remaining Issues are Issues Nine, Ten, Eleven and Twelve and they are now discussed. Issue Nine is on whether the Plaintiffs forged the 2nd Defendant’s signature in the 1st Defendant Incorporation Documents? The following questions needs to be answered: 1. Was 2nd Defendant's signature forged on the Incorporation Documents of 1st Defendant? 2. If yes, who forged it? The Registrar of Companies is the custodian of 1st Defendant documents of Incorporation. The said Registrar tendered them as Exhibit “RGD(2)” being Company Profile of 1st Defendant, “RGD(3)”, Regulations of 1st Defendant and “RGD(4)”, also Company Profile of 1st Defendant. “RGD(3)” provides evidence of those who are first Directors of 1st Defendant as those named in the Regulations in accordance with Section 16(2)(d) of Act 179 already referred to. They are OSEI AGYEMANG-DUAH AND KWABENA OBENG. It is also stated elsewhere herein that, the Regulations when registered incorporates the Company in accordance with Section 14(4) of Act 179. Since Exhibit “RGD(3)”, 1st Defendant's Regulations, also details the names of those who subscribed to the 1st Defendant's Shares, their names appear as Kwabena Obeng, Osei Agyemang-Duah and Glorie Osafo Agyemang Duah with their respective shareholding. The subscribers appends their signatures to evidence the subscription or the shares set opposite their names. See page 9 of 9 of Exhibit “RGD(3)”. Exhibit “2D1(A)”, stated on the Exhibit as Form 3, is a return of particulars of the 1st Defendant pursuant to Section 27(1) of Act 179. The filing of Exhibit “2D1(A)”and the Statutory Compliance of Section 28 of Act 179 is a prerequisite for the Registrar of Companies to issue 1st Defendant with a Certificate to Commence Business. Section 27(3) provides as follows: “The return shall be signed by two directors and by the secretary of the Company”. Exhibit "2D1(A)", the Form 3 for the issuance of the Certificate to Commence Business and which has two Statutory Signatures of directors and one Statutory Signature of the secretary can be signed in this case by 2nd Plaintiff and 2nd Defendant only as the first named directors in the Regulations of 1st Defendant. Exhibit "RGD(2)", at its Part One detailing 1st Defendant's information states the date of incorporation of the 1st Defendant to be 18th January, 2017 and the date of commencement of business to be the self-same 18th January, 2017. So, the two Certificates were issued the same day. This means Exhibit “RGD(3)”, 1st Defendant's Regulations and Exhibit “2D1(A)”, the Form 3 and a Form under Section 28 were all filed together and logically, makes sense, why the Registrar of Companies, issued the Certificate of Incorporation and a Certificate to Commence Business, both on the same 18th January, 2017. This further means that, for Exhibit “RGD(3) and Exhibit "2D1(A)" to be accepted by the Registrar of Companies and under its hand to issue the two separate Certificates on the same day, then the first named Directors in the Regulations being Osei Agyemang-Duah and Kwabena Obeng signed the subscribers column and in the case of the Form 3 signed as the only two Directors therein. The Court has examined the Form 3, Exhibit “2D1(A)” which must have only the names and signatures of the two first named Directors in the Regulations, Exhibit “RGD(3)”. The Form 3, Exhibit "2D1(A)" shows at column G, sub-headed: “Particulars of Directors of the Company” that, the names of the Directors of 1st Defendant are Kwabena Obeng and Osei Agyemang-Duah as already stated above. On this Exhibit at page 7 of 11 however, those whose names and signatures appear as the Directors are rather Osei Agyemang-Duah and Glorie Osafo Agyemang Duah. The name and signature of the 2nd Defendant does not appear as one of the Directors. The question is, how did Glorie Osafo Agyemang Duah, the 1st Plaintiff who is not one of the first named Directors of 1st Defendant, had her name and signature as a Director and the 2nd Defendant, who is one of the first named Directors rather does not have his name and signature at page 7 of 11? The irony is that, without 2nd Defendant's signature at the subscribers column of Exhibit "RGD(3)”, page 9 of 9 in original ink, the Regulations ought not be accepted for registration by the Registrar of Companies. So, if this Exhibit “RGD(3)” was filed in the Registry of the then, Registrar General Department, supposedly signed for acceptance together with Exhibit “2D1(A)” but without the signature of 2nd Defendant but rather the signature of the 1st Plaintiff, where 2nd Defendant ought have written his name and signed at page 7 of 11, then, 2nd Defendant did not sign any of the Incorporation Documents, that is, 1st Defendant's Regulations as a subscriber and the Form 3 as a Director. By reason that, instead of 2nd Defendant signing the Statutory Forms for incorporation of 1st Defendant as a Director, 1st Plaintiff signed same in his place and nonetheless same found to be in compliance with the statutory dictates for filing and issuance of Certificate of Incorporation and a Certificate to Commence Business. Who could have forged 2nd Defendant's signature? If 1st Plaintiff who is not one of the first named Directors at incorporation of 1st Defendant, has her name and signature at the column at page 7 of 11 in Exhibit “2D1(A)” that ought to be reserved for 2nd Defendant, then she can be held to have signed in an original ink, a purported name and signature of 2nd Defendant without which the Registrar will find the Registration Document not in Statutory Compliance, for acceptance and issue of the two Certificates. It must be noted that, Exhibit “2DA(A)” is a profile of 1st Defendant Company as distinct from the Statutory Forms for incorporation of 1st Defendant. It is therefore, the finding of the Court that, 2nd Defendant did not sign any of the Incorporation Documents of 1st Defendant personally as same was signed in the opinion of the Court by 1st Plaintiff. To make it impossible for this Honourable Court to find that, 2nd Defendant did not sign the subscribers column in an ink, the original Regulations, Exhibit “RGD(3)” was not tendered by PW1. The Court does not expect 1st Plaintiff and/or PW1 to have tendered that document or the original forms submitted for incorporation of 1st Defendant with signatures in ink. No wonder instead of the Statutory Forms submitted to initiate the incorporation of 1st Defendant, PW1 produced computer generated print out or profiles. PW1 tendered Exhibits “RGD(2)”, “RGD(4)” and “RGD(5)” showing that, in addition to the first two named Directors in the Regulations of the 1st Defendant, namely, Kwabena Obeng and Osei Agyemang-Duah, the 1st Plaintiff, Glorie Osafo Agyemang-Duah is a Director of 1st Defendant. Exhibits “RGD(2”), “RGD(4)” and “RGD(5)” are exposed as bearing false testimony of the 1st Plaintiff, Glorie Osafo Agyemang-Duah to be a Director on the date of incorporation of 1st Defendant by the tendering of Exhibit "RGD(3)”. The dates 23rd May, 2023, 8th May, 2023 and the same 8th May, 2023, that Exhibits “RGD(2)”, “RGD()” and “RGD(5)”, were printed respectively, does not provide when 1st Plaintiff was appointed as a Director of 1st Defendant. 1st Plaintiff cannot be appointed as a Director unless by a resolution of 1st Defendant and her acceptance of the appointment as an additional Director to the first named Directors in the Regulations, of the 1st Defendant. There is no evidence of any such appointment by the 1st Defendant, neither did the Office of the Registrar of Companies, (PW1) tendered an acceptance letter of her appointment in their records of the 1st Defendant. Therefore, how 1st Plaintiff managed to have her name in the records of PW1 can pass as the next of the wonders of the world, more so, when both PW1 and 1st Plaintiff did not produce any Form 17 to this Court bearing the appointment of 1st Plaintiff. The Court resolves Issue Nine in favour of the Defendants and declares that, 1st Plaintiff is not a Director of 1st Defendant and further that, 2nd Defendant’s signature in the 1st Defendant Incorporation Documents were forged and by 1st Plaintiff. The Court did not find any evidence to implicate 2nd Plaintiff in the finding of forgery. In respect of Issue Ten, the Court does not find same as a real Issue to warrant an interrogation and same is struck out. In the case of Issues Eleven and Twelve, the Court found no evidence against the Plaintiffs. Embezzlement of funds implies commission of a crime requiring proof in this Civil Suit beyond reasonable doubt. The Court never found such evidence led. On Issue Thirteen as to whether the Plaintiffs are entitled to their claims, the Court grants Plaintiffs relief (a) and orders 1st Defendant to pay 1st Plaintiff the sum of USD88,980.85 for her Professional Services. Relief (b) is dismissed. Reliefs (c), (d), (e) and (f) are dismissed. Reliefs (g) and (h) are granted. On Issue Fourteen as to whether the Defendants are entitled to their Counter-Claim. The Court dismisses reliefs (a) and (b) of the Counter-Claim. Relief (c) of the Counter-Claim is granted. In the case of relief (d), the Defendants abandoned same and notified the Court in their Written Address. Relief (e) is granted. The Court makes an Order for the Regulations of 1st Defendant Exhibit “2D1(A)” to be amended at the subscribers column at page 7 of 11 to bear 2nd Defendant’s signature in place of the original Regulation by 2nd Defendant for and on behalf of 1st Defendant. Reliefs (f), (g), (h), (i) and (j) of the Counter-Claim are dismissed. There shall be no Order as to costs. (SGD.) CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Kwasi Afrifa for the Plaintiffs. Nana Kwasi Boatey with Clinton Tonto, Eric Oduro-Nti and Kwabena Boateng Ameyaw for the Defendants. 53