N THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL SITTING AT ACCRA
ON THE 23RD DAY OF APRIL, 2004
SUIT NO. CA. 96/2002
CORAM:
TWUMASI, JA
FARKYE, JA
TWENEBOAH-KODUA, JA
NICHOLAS BERNARD ASARE ] … PLT/APPELLANT
VRS.
DUPAUL WOOD TREATMENT GH] .. DEFTS/RESPONDENTS
J U D G M E N T
TWUMASI, JA:- The appellant filed an originating notice of motion before
the High Court, Sekondi, praying the court for a variety of reliefs under
Sections 35, 217 and 218 respectively, of the Companies Code 1963
(Act 179). He had three main grievances. First he accused the respondents,
a company called Dupaul (for short) as the 1st respondent and the Managing
Director as the second respondent of treating him as though he was not a
member of the company.
Secondly, he accused them of doing acts calculated to deprive him of the
benefits/profits of the company. Thirdly, he sought relief under Section 218
which grants relief against oppression. For easy reference,I consider it
appropriate to reproduce the reliefs he sought as follows:Declaration
1. That the applicant is a shareholder and member of the 1st
Respondent company and holds 50% of its issued share capital.
2. That the systematic reduction by the 2nd Respondent in the
number of shares held by the applicant was an unjustified
expropriation of the applicant’s shareholding and a fraud on him.
- 2 3. That the purported removal of the applicant as a director of
the 1st Respondent company by the 2nd Respondent was unlawful
and so void as the same was contrary to Section 185(2) of the
Companies Code 1963 (Act 179) .
4. That the affairs of the 1st Respondent company are being
Conducted and the powers are being exercised in a manner
oppressive to the applicant or in disregard of his legitimate
interests as a shareholder of the company.”
Orders
5. That the applicant’s name be entered in the Register of members
of the 1st Respondent company pursuant to Section 35 of the
Companies Code 1963 (Act 179).
6. That the applicant be paid all his director’s fees and allowances
which were discontinued as a result of his purported removed as
a director of the company.
7. That 1st or 2nd Respondent be ordered to purchase the applicant’s
shares and future prospects at a fair valuation.
8. Any other order(s) as to this Court may seem fit.”
At the end of the trial the learned trial judge gave a split decision. He
entered judgment in favour of the appellant in respect of two of the reliefs
he sought and refused the rest. Upon what could by all accounts be regarded
as an eclectic analysis of the evidence adduced by the parties, the learned
trial judge delivered himself in the following terms (see page 201 of the
record of appeal):“I therefore refuse the first declaration sought by him.
Neither do I think he is entitled to a declaration that the
reduction of his shares by the second Respondent is
unjustified expropriation and fraud on him. He acquiesced
in the act by signing his name against what was allotted to
him. I am also unable to grant him a declaration that he has
-
3 -
been oppressed in the manner in which the affairs of the
Company are being conducted or the powers of the directors
are being exercised.”
After delivering these positive findings against the Appellant the learned
trial judge on the same page continued his judgment in the following terms:“I think on the evidence before me the applicant is still a
director of the company and should be held as such.
A declaration to that effect is hereby being made and I also order
that all his fees in arrears as a director are to be computed and paid
to him.”
Continuing his judgment at page 202 of the record, the learned trial judge
stated as follows:“As the evidence shows the applicant has not paid any amount
for the shares, nor has any agreement been reached by and with
him for such payment. Also as it is not known what amount
remains payable on such shares, it will be difficult to implement
any order by this court that the name of the applicant be entered
on the register of members of the company. It will be impossible
such a statement to be made as demanded by Section 35(C) of
the Code ie. when such entries are being made. I am therefore
unable to make that order. Neither will an order be made that
the applicant be bought out for the reason that he did not
succeed in my view in making a case of oppression against
him as a member of the company. Aside of that he has not
contributed a pesewa for a share and it will be difficult to
understand why he should be bought out.”
In the concluding paragraphs of the judgment the learned trial judge found
as a fact that the company had not declared dividends for all the many years
it had been operating and, accordingly, he ordered that the company’s
accounts be expeditiously audited and dividends paid to persons entitled
- 4
-
entitled thereto. Specifically he did not mention the name of the appellant as
one of those so entitled to any dividends.
The appellant’s Counsel argued together grounds 2, 3 and 4 of the
original grounds of appeal which were as follows:“(ii) The learned trial judge erred in law when he held that
the appellant was an allottee of shares when in fact he
was a subscriber to the Regulations.
(iii) The learned trial judge further erred in law by failing to order
that the appellant’s name be entered in the Register of members
under Section 35 of the Companies Code even though he himself
had found that the appellant had subscribed to the Company’s
regulations.
(iv)
The learned trial judge misdirected himself on the facts when he
held that the appellant had admitted that he had not paid a
pesewa for his shares.”
The facts of the case show that the company “DUPAUL WOOD
TREATMENT LTD.” was established by the appellant and the second respondent
with 50% share structure for each of them. The two of them signed the
Regulations, as subscribers. Later on, newly drafted Regulations were signed by
both persons jointly with others whereby the share structure was changed to
60% for the 2nd respondent and 10% for the appellant and the rest of the shares
for the other shareholders. The appellant complained that he had been unfairly
treated by the change .
Other grievances were that his name had not been registered or entered in
the Registrar of members of the company and also had been removed from office
as director. The gravamen of the case made against the appellant was that since
the establishment of the company he had not paid anything in cash for a single
share, nor had he made any contribution towards the establishment of the
company and, for that reason, he was not qualified to be registered or have his
name entered in the company’s register. The learned trial judge made this fact
-
5 -
the kinpin of his grounds for denying the appellant the right he contended
for throughout the proceedings to have his name entered in the company’s
register. The learned trial judge had held at page 187 of the record that in the
evidence before him he had no quarrel with the contention by the appellant
that he was a member of the company by reason of the fact that he was a
subscriber to the company’s regulations and also that he had been allotted
shares in the said company.
The learned trial judge, however, omitted to make a finding on the claim
made by the appellant that he had made certain pre-incorporation expenses in
the region of ¢500,000.00 which he claimed had been capitalised. This claim
became a glaring issue in view of the denial by the respondents of the claim.
In the legal submissions in this court, the appellant’s Counsel strongly argued that
these expenses constituted a substantial contribution. In his statement of case:
Counsel for the appellant stated:“The appellant claimed that he owned 50% of the shares
of the company by signing the Regulations. Further under
cross-examination he said that he had paid over ¢500,000.00
way of preliminary expenses between 1977 and 1993. The
respondents said he owned less. It was the duty of the trial
judge to have resolved those primary issues of fact.”
In their response the counsel for the respondents denied that the appellant
had incurred the ¢500,000.00, because the appellant did not produce documentary
evidence to prove the expenses. They further argued that the appellant had not
paid any cash for a single share in the company.
As substantial contribution, I agree with the Counsel for the respondents that
expenses, if any, made before the establishment of the company are payable if
claimed but do not constitute payment of shares.
At pages 263 and 264 of “Modern Company Law” 2nd
Edition Professor Gower states the following:-
- 6 “Until a company is formed it cannot enter into a valid contract and
the promoter therefore has to expend the money without any
guarantee that he will be re paid. In practice, however, recovery of
preliminary expenses and registration fees does not normally
present any difficulty. The articles will contain a provision
authorising the directors to pay them…………….If, as is generally
the case, the promoter is one of the directors, he can be reasonably
confident that his expenses will be paid.”
I fully endorse the opinion of the learned author, Professor Gower and hold
that the ¢500,000.00 assuming it was paid could not constitute payment of shares,
although the appellant could take proper legal steps to recover same from the
company. That issue therefore need not detain us any longer. What then was
the appellant’s real status in the scheme of shareholding in the company at the
time he filed his petition? Does the fact which is admitted by the appellant,
that he has not paid physical cash for any share held or allotted to him denude
him of his position as a shareholder in the company? The learned trial judge’s
view has been quoted hereinbefore and I need not repeat it. Suffice it to say that
he and the respondents held the view that payment of the share in cash or in kind
was a sine qua non for success of the appellant’s claim to have his name entered
in the company’s register and also to be bought out. For his part Counsel for the
appellant contended that so long as the appellant had subscribed to the regulations
and had been allotted shares he continued to lawfully to hold himself as a
shareholder whether he had paid for the shares or not, until he had been unable
to respond to a lawful call upon him by the company to pay such shares, when
he would be liable to forfeit the shares, or when the shares had been
lawfully transferred, vital steps which had not yet been taken against the
appellant.
It must be stressed in fairness to the learned trial judge that he was not
unmindful of, but in fact appreciative, of the law on the subject matter of
corporate shares as borne out in his judgment at page 187 of the record of
- 7 appeal where he stated thus:“There is no doubt raised that he is a member of the company
for the reasons that he is a subscriber to the regulations of the
company and also that he has been allotted shares in the
company which is one limited by shares and that so far he is
yet to forfeit any of them for non-payment on any calls made
on him. I must make it clear that the number of shares held by
the applicant is in dispute and will soon be resolved in this
judgment.”
The evidence shows that the appellant originally held 50% shares as the 2nd
Respondent. No dispute whatsoever about that (See paragraph 6 of appellants
affidavit at page 6 of the record which was admitted by the 2nd respondent in
in paragraph 11 of affidavit in opposition at p. 31 of the record of appeal). Then
at page 196 of the record the learned trial judge made positive findings of fact
to the effect that the 2nd respondent systematically reduced the appellant’s shares
from 50% to 10% as at 1 May 1980 and the applicant has not protested this state
of affairs for several years. The learned judge quotes the appellant as saying in a
letter he tendered as follows:“Due to circumstances beyond my control and because
of family ties I reluctantly accepted the current 10%
share that I hold.”
The sentiments expressed by the learned trial judge that the appellant
never protested against the treatment meted to him seem to me to be in serious
conflict with the true feelings of the appellant which in reality were that of a
man who felt he was being suppressed by another person in a stronger
position as against a miserable man who had no means to fight for his rights.
Little wonder that the appellant used this trend of affairs as one of th
grievances for his petition against oppression under S. 218 of the
Companies Code which I shall soon deal with. Now back to the question
about payment for shares allotted to the appellant. It is clear from the
- 8 judgment at page 195 of the record that the learned trial judge held that
since the evidence showed that the appellant had not paid for the shares
to him, he could not qualify to be a shareholder of the company. Note that
the learned trial judge had not stated that there was evidence that the
company had made any call upon the appellant to pay for his shares. The
learned trial judge cited an English case, Oregun Gold Mining Co. of
India Ltd. Vrs Roger (1892) AC 125 and stated that the law was that an
allottee of the shares must pay for them in full. He then quoted Section 42
of the Companies Code, 1963 (Act 179) thus:“42(1) Except on a capitalisation issue, pursuant to
subsection 1 of Section 74 of this Code, shares shall
not be issued, offering them for valuable rights
consideration, paid or payable to the company and
unless otherwise agreed, shares shall be paid for in cash.”
Properly construed, this section cannot be interpreted as laying down any
inflexible rule that non-payment of shares allotted automatically deprives a
member or shareholder of a company of his rights as such members of
shareholder. All it says is that if such a member or shareholder decides to
discharge his obligation to pay for his or her shares, he or she should pay them in
cash. At page 67 of his famous book “Modern Company Law” Professor Gower
states the following:“In the case of a company limited by shares each member
is liable to contribute when called upon to do so the full
nominal value (in money or money’s worth) of the shares
held by him in so far as this has not already been paid by
him or any prior holder of those shares.”
Section 42(1) of the Company’s Code (supra) is in the same terms except that in
this country, shares shall be paid for in cash, not in kind, that is money’s worth.
The learned trial judge himself has stated it clearly in the passage of his judgment
at page 187 of the record, which I have already quoted above, that unless a special
- 9 call has been made upon members of a Company to pay for their shares, upon pain
of forfeiture of such shares, such members or shareholders their status as such members
or shareholders. Hence my surprise that in the same breath the learned trial
judge in the absence of evidence of any call upon appellant to pay cash for his shares,
should arrive at the decision he reached that the appellant was not entitled to have his
name entered in the register of the
Company. Section 30(1) of the Companies Code, 1963 (Act 179) reads
as follows:“30(1) The subscribers to the Regulations shall be deemed to be
members of the company and on its registration shall be entered
as members in the register of members referred to in section 32 of
this Code.
(3) Every member shall have such rights duties and liabilities
as are by this Code and the Regulations of the company
conferred and imposed upon members
(4) In the case of a company with shares each member shall
be a shareholder of the company and shall hold at least
one share, and every holder of a share shall be a member
of the company
(5) Membership of a company with shares shall continue until a
valid transfer of all the shares held by the member is registered
by the company or until all such shares are transmitted by
operation of law to another person or forfeited for non-payment
of calls under a provisions in the Regulations, or until the
member dies.”
The foregoing statutory provisions clearly support the views expressed
by Professor Grover in his book. Also they have been judicially considered.
Thus in Luguterah vrs. Northern Engineering Co. Ltd. [1979] GLR 477 at
501 Taylor J (as he then was) stated and I agree:“It seem to me that having regard to the provisions of the
- 10 Code, entry in the register is at least some prima facie
evidence of the fact of membership and the extent of shareholding. The effect of the corresponding English Provisio
of Section 30 (1) of the Code was considered in Evans
case 1867 2 CR App. 427 and it was there held that as a
general proposition, registration ipso facto makes a
subscriber automatically a member of the company and
holder of the shares for which he has signed and in my
opinion the subscriber continues to be a shareholder and a
member even if the company makes default by emitting to
perform its statutory obligation of putting the subscriber’s
name in the register or allotting the shares to him.”
On the evidence before the trial court, it was clear that the appellant
was a shareholder and member of the company in terms of Section 30(1)
of the Companies Code: He was therefore entitled ex debito justitine to
have his name entered in the register of the company. The learned trial
judge therefore erred in refusing to make the order for such entry and he is
hereby over-ruled in that regard. Grounds (ii), (iii) and (iv) of the Original
grounds of appeal therefore succeed.
I now turn to the applicant’s complaint under Section 218 of the
Code. That section entitles any member or shareholder or a debentureholder to apply to the court for an order on the ground that the affairs
of the company are being conducted in a manner detrimental to his interest
as member. An applicant under Section 218 must also prove any harsh
or burdensome act against him: See Pinammang vrs. Abrokwa [1991]
2 GLR 384. In Asufu-Adjaye vrs. Agyekum [1984-86] 1 GLR 382
holding (3) the word oppressive in Section 218 of Act 179 was construed
to mean a conduct which was harsh, burdensome and wrongful affecting
the interest of a member or members of a Company. Thus in Billy vrs.
Kumor [1991] 1 GLR 522 Benin J (as he then was) held that it was
- 11 oppressive for the majority shareholders to have wrongfully dismissed
a member of the company who was an officer/member.
In the instant case the appellant originally held 50% shares
for a long time he headed the accounts department of the company and he
did a lot of service right from the establishment of the company but somewhere
along the line his fifty percent structure was reduced to 10% in a manner that was
harsh, burdensome and wrongful. His sad sentiments were expressed in a letter
which was tendered in evidence. He was removed from office while on a course
in the United States. All these acts in my view amounted to oppression within
the meaning of Section 218. It was clear that he was thrown out of the
management of the affairs of the company when that should not have been the
case because he was originally a shareholder director. What happened?
Curious isn’t it? I need not waste much breath to make a clear and positive
finding that there was more tan sufficient evidence to support a case of
oppression under Section 218 the most glaring of it being that for several
years dividends of the company were not declared for no apparent reason, and
the fact that the wife of the 2nd respondent played roles which conflicted with
the judiciary interest of the second respondent.
Such conduct in my view constitutes oppression under S. 218 as if affects
the best interests of the members of the company.
For the foregoing reasons I would allow the appeal.
P.K. TWUMASI
JUSTICE OF APPEAL
I agree.
I also agree.
S.T. FAAKYE
JUSTICE OF APPEAL
K. TWENEBOAH-KODUA
JUSTICE OF APPEAL
I agree.
JUSTICE OF APPEAL
I also agree
S.T. FAAKYE
K. TWENEBOA-KODUA
JUSTICE OF APPEAL