HGS LIMITED VRS. BONSU AND ANOTHER (OCC/40/2022) [2025] GHAHC 52 (21 May 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD AT KUMASI ON WEDNESDAY THE 21ST DAY OF MAY 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------- SUIT NO. OCC/40/2022 HGS LIMITED - PLAINTIFF 34 Steel Works Road Tema Industrial Area Tema VRS 1. ERNEST KOJO BONSU - DEFENDANTS H/No. Plot No. 1 & 2 Achiase – Kumasi 2. E. K. BONSU LIMITED Post Office Box SE 459 Kumasi ------------------------------------------------------------------------------------------------------- TIME: 11:02AM. JUDGMENT: From a combined reading, of the Amended Writ of Summons and Amended Statement of Claim, filed on 7th November, 2024, the Plaintiff, claim two substantive, declaratory reliefs, against 1st and 2nd Defendants, jointly and severally. 1 The first of the declarations sought, is that, the 1st Defendant is severally and jointly with and through, the 2nd Defendant Company, interested, in a business, that competes with that of the Plaintiff Company, in breach of his, fiduciary duties under Section 190(1) and Section 192(1)(b) of the Companies Act, 2019 (Act 992). Per the second declaration, the Plaintiff alleges that, the Defendants have used to their advantage, confidential information and/or special knowledge, obtained by the 1st Defendant, in his capacity as a director of the Plaintiff Company, in breach of Section 192(1)(a) of the Companies Act 2019 (Act 992). From the above-reliefs, the pith of the Plaintiff’s case rest on the Companies Act, Act 992 and specifically, according to it, Sections 190(1) and 192(1)(a) and (b). Section 190(1) provides for duties of directors inter alia: “A director of a company stands in a fiduciary relationship towards the company and shall observe the utmost good faith towards the company in a transaction with or on behalf of the company.” Section 192(1)(a) and (b) provides: “(1) Despite a provision in the constitution of a company to the contrary, a director shall not, without the consent of the company in accordance with Section 193, place that director in a position in which the duties of the director to the company conflicts or may conflicts with the personal interest or the duties to other persons, and in particular, without that consent, a director shall not, (a) use to the advantage of that director any money or property of the company or use, otherwise than in accordance with Section 198, any confidential information or special knowledge obtained by that director in the capacity of director; 2 (b) be interested directly or indirectly, otherwise than merely as a shareholder or debenture holder in a public company, in a business which competes with that of the company;” The above-quoted provisions, provide for the duties of directors and conflict of duty and interest of directors. The question, arising from the provisions, therefore is: Has the 1st and 2nd Defendants, jointly and severally, breached the provisions in Section 190(1) and Section 192(1)(a) and (b) in relation to the Plaintiff, to warrant it, to drag before this Honourable Court, these Defendants, for both the substantive reliefs and their ancillaries? He who avers must proof. It is the Plaintiff, who is alleging, against the Defendants, a breach of duty under Section 190(1) and conflict of duty and interest under Section 192(1)(a) and (b). This Court, allocates to the Plaintiff, the burden of producing evidence in accordance with Section 17 of the Evidence Act, 1975, NRCD 323. The Section provides as follows: “(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.” The statutory definition of the burden of producing evidence is per Section 11(1) of NRCD 323 as follows: 3 “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” The Plaintiff, whilst discharging the above Section 11(1) statutory obligation, must also establish a requisite degree of belief, concerning the facts, in the mind of this Court, in accordance with Section 10(1) of NRCD 323. The evidence adduced in proof of the Plaintiff's case, visa vis the Issues. The Plaintiff’s evidence, adduced, was through its representative, one Eugene Osei Bremang, per his Witness Statement and its Supplementary, both filed on 12th December, 2023 and 18th January, 2024. He was cross-examined by Counsel for Defendants. The Plaintiff, called two Witnesses, who testified as PW1 and PW2. Golden Star Resources Ltd was subpoenaed and testified per its representative, one John Akatse and tendered documents in evidence. He was cross-examined by Counsel for Defendants. The further evidence adduced by the Plaintiff was per the Witness Statement of one Stephen Karl Timms, filed on 29th January, 2024. He was also cross-examined by Counsel for Defendants. It needs mention that, the Defendants only testified, in their defence, to the allegations brought against them, by the Plaintiff. They did not sue the Plaintiff by way of a Counter-Claim. The 1st Defendant, one Ernest Kojo Bonsu, testified for himself and on behalf of the 2nd Defendant, E K Bonsu Ltd, per his Witness Statement and its Supplement both 4 filed on 20th December, 2023 and 8th November, 2024, respectively. He was cross- examined by Counsel for Plaintiff. Defendants did not call any Witness. Upon the breakdown of pre-trial settlement, as many as twelve Issues were set down for trial as follows: i) Whether or not the 2nd Defendant owes the Plaintiff a duty to account for the profit made by it in respect of its contract for hydraulic hose and fitting fabrication services and operation of the same with Golden Star Resources Limited Mine Site at Wassa. ii) Whether or not the Plaintiff has a vested exclusive and permanent right to a contract with Golden Star Resources Limited for the fabrication of hydraulic hose and fitting services. iii) Whether or not the Plaintiff is entitled to the 2nd Defendant’s profits from its contract with Golden Star Resources Limited at the Mine Site at Wassa Achempim. iv) Whether or not at all material times the 1st Defendant was the Managing Director of the 2nd Defendant Company and beneficial owner of the 2nd Defendant. v) Whether or not the 1st Defendant has breached any of his judiciary duties owed to the Plaintiff Company pursuant to Section 190 – 192 of the Companies Act, 2019. vi) Whether or not the 1st Defendant as a trustee of the assets of the Plaintiff Company has breached his duty to preserve the assets of and further the 5 business of the Plaintiff Company." Whether or not the 1st Defendant has dishonestly and unlawfully formed a scheme of competition against the Plaintiff Company." Whether or not the Defendants have used confidential information, knowledge of working systems and trade secrets acquired by the 1st Defendant in his capacity as a Director of the Plaintiff Company and/or otherwise surreptitiously and unlawfully acquired from the Plaintiff Company, to unlawfully compete with the Plaintiff Company at the Golden Star Resources Limited Mine Site at Wassa, in the Western Region and/or elsewhere in the republic of Ghana. vii) Whether or not the 1st Defendant has acted mala fide and against the interests of the Plaintiff Company." Whether or not the Plaintiff Company has suffered loss and damage. viii) Any other Issues arising from the pleadings herein. ix) Whether or not the Plaintiff is entitled to the reliefs it seeks. In delivering this Judgment, this Court, is of the opinion that, Issue (v) is fundamental to the resolution of this dispute. The rest of the Issues will be discussed upon the interrogation of Issue (v). 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 6 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 proceeds to determine the Issue: Whether or not the 1st Defendant has breached any of his fiduciary duties owed to the Plaintiff Company pursuant to Sections 190(1) and 192(1)(a) and (b) of Act 992. In his book, Modern Principles of Company Law in Ghana, by Ferdinand D. Adadzi, the learned and distinguished author, has this to say on duties of directors at page 642 – 643: “Directors are appointed by the members of the company or any other person named in the registered constitution of the company. However, once appointed, the directors owe duties to the company and not the person who appointed them. The directors, therefore, owe a duty to only one person when appointed. That is the company and not the shareholders or members of the company or any other person. The relationship created is not a relationship with the appointor but a relationship between the directors and the company…” The learned author, in that self-same pages, continued: “The relationship between a director and a company is a fiduciary relationship. A fiduciary relationship refers to a relationship of trust and confidence where one person, called the fiduciary, who acts for or on behalf of another person, called the beneficiary, is required to act in the interest of the beneficiary.” 7 Per Section 190(1), it is a director of a company who stands in a fiduciary relationship towards the Company. The question is, whether the 1st Defendant is a Director of HGS LIMITED, the Plaintiff, so as to be held as a fiduciary of the Company. According to paragraphs 3 and 4 of the Amended Statement of Claim, the 1st Defendant, is a Director in the Plaintiff Company. This assertion, of the Plaintiff Company, was not denied, by the Defendants, in their Statement of Defence. They are therefore, deemed, to have admitted that, 1st Defendant is a director in the Plaintiff Company. The Plaintiff tendered Exhibit “A” in proof that, Ernest Kojo Bonsu is a director in the Plaintiff Company. Further, Exhibit “4” tendered by the Defendants, is evidence that, Mr. Ernest Kojo Bonsu was appointed, director in the Plaintiff Company, effective 4th April, 2011. Since, a director of a company stands in a fiduciary relationship towards the company, this Court, per the evidence before it, finds that, Ernest Kojo Bonsu, a director of the Plaintiff Company, stands in a fiduciary relationship towards the Plaintiff. Per Section 190(1), a director of a company, shall observe the utmost good faith towards the company in a transaction with or on behalf of the company. At page 646 – 647, the learned author of “Modern Principles of Company Law in Ghana”, throws light on the duty to act with utmost good faith inter alia: “Directors are required to act in the best interest of the company and in so doing, must act not only in good faith but with utmost good faith. Good faith means, 8 acting honestly and sincerely. The Act, therefore, requires the directors to act with the highest standard of honestly towards the company or when acting on behalf of the company. The opposite of good faith is bad faith. A director will be in breach of the duty imposed on the director when the act done by thee director towards the company or on behalf of a company is done in bad faith. That is, the act is not in the interest of the company but in the interest of the director or another person other than the Company.” The Plaintiff alleges further breach against the 1st Defendant under Section 192(1) and that is a duty to avoid conflict of duty and interest. The learned author says of the duty of a director to avoid conflict of duty and interest at page 665 of his book inter alia: “a critical duty imposed on each director is not to place himself in a position where his duties to the company conflict with his personal interest or duty he owes to another person. A director must therefore avoid a conflict of interest situation where his personal interest conflicts with the interest of company. In addition, the director must not place himself in the situation where the duty he owes to another person conflicts to the duties he owes to the company. The Act requires the director to act in all instances in the best interest of the company. Where there is an opposing interest or the duty owed to the company conflicts with the duty owed to another person, the director will be deemed to be in a conflict of interest or duty situation respectively.” The Court has just found, that the 1st Defendant, is a director of the Plaintiff Company and stands in a fiduciary relationship towards it. The question therefore is: What acts, has the 1st Defendant done, as a fiduciary of Plaintiff, to warrant, an allegation of breach of Section 192(1) of Act 992 against him? This is what the Plaintiff alleges, against the 1st Defendant, at paragraphs 11, 12 and 13 of the Amended Statement of Claim: 9 “11. The 1st defendant has dishonestly and unlawfully formed a scheme of competition against the plaintiff-company. 12. Pursuant to this scheme of competition aforementioned the 1st defendant, through the 2nd defendant-company, has established a business which competes with that of the plaintiff-company in every material particular. 13. In pursuant of this scheme of competition and using confidential information, knowledge of working systems, and trade secrets acquired by the 1st defendant in his capacity as a director of the plaintiff-company, and/or otherwise surreptitiously and unlawfully acquired from the plaintiff- company, the defendant have bid for contracts that the plaintiff-company is bidding for and has won such a contract at the Golden Star Resources Limited mine site at Wassa, in the Western Region of the Republic of Ghana to do exactly what the plaintiff-company is doing at the same site.” What is the response to the above-allegations that, 1st Defendant has established, a business, which competes, with that of the Plaintiff Company, in every material particular? Further, what is the response to the allegation that, 1st Defendant in his capacity as a director, of the Plaintiff Company, have bid for contracts, that the Plaintiff Company is bidding, for, and has won such a contract, at the Golden Star Resources Limited, mine site at Wassa, in the Western Region of the Republic of Ghana, to do exactly what the Plaintiff Company is doing, at the same site. 10 These allegations supra, at paragraphs 11, 12 and 13 of the Amended Statement of Claim were vehemently denied, by the Defendants, at paragraph 11 of their Statement of Defence and put the Plaintiff to strict proof of those allegations. Evidence before the Court in proof that 1st Defendant has established a business which competes with that of the Plaintiff Company. Exhibit “1(a)” is the evidence of a business name, that existed, under the name or style of E K Bonsu Enterprise, with Registration Number BN-38,918B. This business name had as its nature of business these underlisted. 1. Transport Services, Roads and Building Construction. 2. Civil and Electrical Engineering. 3. Painting, Renovation & Plumbing Words. 4. General Merchants, Importers and Exporters of General Goods. 5. Suppliers and Dealers in Motor Spare Parts. Exhibit "1(a)", is the evidence that, E K Bonsu Enterprise Ltd, was incorporated, to acquire and take over, the business name, E K Bonsu Enterprise and all or any of the assets and liabilities of the proprietor of that business. This Court finds as a fact that, the 1st Defendant, is the proprietor, of the business name, E K Bonsu Enterprise and whose assets and liabilities were acquired and taken over, together with the authorised business of the said business name. Exhibits “1(b)” and “1(c)” is the evidence that, the 2nd Defendant, was incorporated on 7th February, 2005 and commenced business on 10th February, 2005. Exhibit “A” is the evidence that, the nature of the business of Plaintiff are as follows: “). Manufactures of Hydraulic and Pheumatic Hoes Fitting and Greasing Systems for Mining Companies. 11 2) To Manufactures Small Mining Components Items. 3) To design and provide services and solutions including specialist repairs for Hydraulic and Greasing Systems for Mobile and Static Plants.” A juxtaposition of Exhibits “1(a)” and ”A” will show that, the authorised business of the 2nd Defendant and the authorised business of the Plaintiff are distinct in material particular. They have nothing in common by way of each other’s business. Exhibit “2” before this Court, is evidence that, the authorised business of the 2nd Defendant, was amended to include the business of: 1) Sale and Servicing of Fire Suppression. 2) Auto Lubrication and Hydraulic Systems and Fittings. The above-business of the 2nd Defendant in Exhibit “2”, compared with the Plaintiff’s business, in Exhibit “A”, shows distinctness in their material particular. The business, Sale and Servicing of Fire Suppression of 2nd Defendant is not contained in Exhibit "A" of the Plaintiff’s authorised business. The business of Auto Lubrication of the 2nd Defendant’s authorised business, is not contained in Exhibit "A" of the Plaintiff. Hydraulic Systems and Fittings, juxtaposed with Hydraulic and Pheumatic Hoes Fitting appear distinct with the latter of the Plaintiff's authorised business. On the basis of the foregoing, it is the considered view, of this Court that, the claim that, 1st Defendant, through the 2nd Defendant, has established a business, which competes with that of the Plaintiff Company in every material particular, is not 12 supported by Exhibits “1(a)”, “2” and “A” all read together in terms the authorised businesses. This Court, struggles, in terms of law, what the Plaintiff means, by 1st Defendant, having established a business, through the 2nd Defendant? Prior, to the incorporation of a company, certain persons under Section 10(1) of Act 992, may play the role of promoters. Since 1st Defendant, was the sole proprietor of a business name, which was converted into 2nd Defendant Company, this Court, without doubt, finds that, 1st Defendant, was a promoter, in the formation of the 2nd Defendant. The 1st Defendant, as a promoter, for the incorporation of 2nd Defendant, cannot be held, to have been engaged or interested in the formation of 2nd Defendant, to compete with the Plaintiff Company. This is because, the authorised business of the 2nd Defendant, at its incorporation in the year 2005, had nothing to do with, the Plaintiff Company, as aforesaid. Therefore, the claim that, 1st Defendant formed the business of the 2nd Defendant, to compete with that of the Plaintiff, is rejected, for being unfounded, by the evidence before this Court and at law. The alleged bidding for Contracts and wining such Contracts at the Golden Star Resources Limited mine site at Wassa to do exactly what the Plaintiff Company is doing at the same site. The Plaintiff sought to proof the above-allegation. It did so through PW1. He tendered Exhibits “SWD” and “SWD(1)” captioned at their cover page inter alia respectively: 13 “ PROPOSAL PROVISION OF ONSITE SERVICES: • Fire Suppression Systems • Hydraulic Hoses and Fittings • Auto Lubrication Systems FROM E K BONSU LIMITED (EKBL) TO GOLDEN STAR WASSA LIMITED --------------------------------------------------- Dated November 8, 2021 ---------------------------------------------------” “ PROPOSAL PROVISION OF ONSITE SERVICES: • Fire Suppression Systems • Hydraulic Hoses and Fittings • Auto Lubrication Systems FROM E K BONSU LIMITED (EKBL) 14 TO GOLDEN STAR WASSA LIMITED --------------------------------------------------- Dated January 25, 2022 ---------------------------------------------------” Counsel for Defendants subjected Exhibits “SWD” and “SWD(1)” to cross- examination. This is what PW1 told this Court on 25th June, 2024, under cross- examination regarding these two Exhibits” “Q: Can you please take a look at Exhibits “SW(D) and SW(D1)”, it is noticeable that, they are mere proposals. Were any Contracts signed in respect of the manufacture and/or supply of hydraulic and pneumatic hose and fittings and/or greasing systems? A: No.” The answer to the question, whether any contracts were signed in respect of Exhibits “SWD” and "SWD(1)" is in the negative. It means, those proposals, did not ripened into contracts. This notwithstanding, this Court sees Exhibits “SWD" and "SWD(1)" as an intended, commencement, of the business relationship, between the 2nd Defendant and Golden Star Resources Ltd. The evidence, before this Court, showed that, 2nd Defendant and Golden Star Resources Ltd entered into an agreement, for the supply of Hoses and Fittings, in the year 2022. This Court finds support, for this conclusion, from the evidence of PW1. 15 PW1, the Representative of Golden Star Resources Limited, has to this to say, on 25th June, 2024, in his Evidence-In-Chief: “Q: How do you know the Plaintiff and the Defendant? A: They both provide services to Golden Star. Q: What services do they both provide? A: E. K. Bonsu Ltd supplies us with Toyota Parts and they also provide us with Hoses and Fittings. HGS supplies us with Hoses and Fittings.” PW1’s testimony, supra, stood unchallenged. The Defendants indeed, corroborated the evidence of PW1 that, both the 2nd Defendant and the Plaintiff supply Golden Star Resources Ltd with Hoses and Fittings. This is what 1st Defendant said on 11th December, 2024, under cross-examination by Counsel for Plaintiff inter alia: “Q: Prior to 2022, what business did the 2nd Defendant do with Golden Star Resources Ltd? A: Supply of vehicles in addition to the spare parts as well as providing vehicle maintenance and providing servicing on their dump trucks. Q: So, prior to 2022, 2nd Defendant did not fabricate or supply and service, fire suppression, auto lubrication and hydraulic systems and fittings to Golden Star Resources Ltd or anyone else. Is that not correct? A: Yes, My Lord. Q: So, I will suggest to you that, this new business is the same business as that of the Plaintiff Company. A: Yes, My Lord.” 16 From the testimony, of 1st Defendant, before the year 2022, the 2nd Defendant did not do any business with Golden Star Resources Ltd that, Plaintiff was also doing, with the said Company. It was in 2022 that, 2nd Defendant did business with Golden Star Resources Ltd which the Plaintiff was already engaged in with Golden Star Resources Ltd. Listen to PW1 in his Evidence-In-Chief on the self-same 25th June, 2024: “Q: Was HGS Ltd supplying Hoses and Fittings before E K Bonsu Ltd? A: Yes.” Exhibits “SWC Series” minus “SWC(40)” provides clear evidence of supply of Hose and Fittings by 2nd Defendant to Golden Star Resources Ltd. These Exhibits were not challenged, specifically as to their evidence of the supply of Hoses and Fittings, by 2nd Defendant to Golden Star Resources Ltd. The evidence before this Court, does not disclose that, 2nd Defendant supplied Hose and Fittings through a bid. However, what is undisputed is that, it did supply Hose and Fittings to Golden Star Resources Limited in the year 2022. This evidence reenforces, the conclusion that, at the date of incorporation in 2005, 2nd Defendant did not do any business with Golden Star Resources Ltd, which same business, the Plaintiff also did with Golden Star Resources Ltd. This dispels, beyond doubt, that, in the year 2005, 1st Defendant formed 2nd Defendant to compete with the business of Plaintiff, at the Wassa Mine Site of Golden Star Resources Limited. Did 1st Defendant, in his capacity as Director of the Plaintiff Company, used confidential information, knowledge of working systems and trade secrets, he allegedly acquired in his capacity as Director of Plaintiff or otherwise, surreptitiously 17 and unlawfully acquired from Plaintiff, in favour of 2nd Defendant in its business with Golden Star Resources Ltd? Aside of the oral testimony of Plaintiff’s Representative on the above-allegation, no sufficient evidence such as will establish a requisite degree of believe concerning the allegation was placed before the Court to come to a conclusion that, the said allegation is more probable than not. This Court therefore, rejects the claim of 1st Defendant, using confidential information, knowledge of working systems and trade secrets in his capacity as Director of the Plaintiff Company in favour of 2nd Defendant on the supply of Hose and Fittings. The Plaintiff did not establish a nexus between 1st Defendant’s directorship of the Plaintiff Company and the allegation of the use by him of confidential information, knowledge of working systems and trade secrets for 2nd Defendant’s business with Golden Star Resources Ltd, in the year 2022. What this Court rather finds is that, the 1st Defendant, placed himself in a conflict of interest position. This conflict of interest arose from his position as a Director of the Plaintiff Company and also as a Director in the 2nd Defendant Company, two separate companies engaged in the supply of Hose and Fittings to the same customer, Golden Star Resources Ltd. The question is: In the situation, of 1st Defendant, being an officer in the two Companies, could he, honestly, say to himself that, he was at all times, of his directorship, dealing, with the Plaintiff in utmost good faith and/or acted in the best interest of the Plaintiff Company? 18 This Court, doubts that, the 1st Defendant dealt with Plaintiff in accordance with the obligation upon him, to act with utmost good faith and in the best interest of Plaintiff. This Court came to this conclusion because, the 1st Defendant, cannot be promoting the business interest of the Plaintiff Company, as its director, whiles at the same time, promoting the business interest of the 2nd Defendant, also as its director, in the supply of the same product, hose and fitting, to their common or same customer, when the objective of both Companies, is profit making and not loss making. This Court finds from the evidence before it that, the 1st Defendant, failed to make disclosure to the Plaintiff that, 2nd Defendant, in which he was a Director, was supplying to Golden Star Resources Ltd, hose and fittings. Had 1st Defendant made the Plaintiff aware of this, he would have complied with Section 193, 194 and 195 of Act 992 but that was not the case. The 1st Defendant testified at paragraphs 9 and 10 of his Witness Statement as follows: “9. E K Bonsu Limited began supplying spare parts to the newly formed HGS Limited, where Stephen Karl Timms also serves as a director. 10. Also, E K Bonsu Limited has provided technical know-how to HGS Limited as evidenced by email correspondences between HGS Limited and the Defendants herein. Therefore, it cannot be the case that E K Bonsu Limited is unknown to HGS Limited … “ In support of the above-testimony, 1st Defendant tendered Exhibit “3 Series” being minutes of meetings and mail correspondence to show Plaintiff’s knowledge of the existence of E K Bonsu Ltd. 19 Indeed, Exhibit “3 Series” provides evidence of Plaintiff's knowledge of the existence of 2nd Defendant Company. Of utmost importance, however, is that, Exhibit “3 Series”, does not provide evidence that, at all material time, in the year 2022, Plaintiff had knowledge that, 2nd Defendant intended and had actually entered into an agreement with Golden Star Resources Ltd to supply Hose and Fittings that Plaintiff itself was also supplying to the same Company. This Court, therefore finds that, the claim that E K Bonsu Ltd is known to HGS Limited by Exhibit “3 Series” is not supportive of Plaintiff’s knowledge that, E K Bonsu Ltd and Plaintiff were both supplying Hose and Fittings, in 2022, to Golden Star Resources Limited, which was not the case in the 2009, when E K Bonsu Ltd was incorporated. On the face of Exhibit “3 Series”, same were authored in the year 2009, when 2nd Defendant was not supplying or had not ever supplied Hose and Fittings or dealt in the same business as Plaintiff does with Golden Star Resources Ltd. Exhibit "3 Series" does not therefore, provide compliance by the Defendants with Sections 193, 194 and 195 of (Act 992). Indeed, as at 2009, of Exhibit "3 Series", 1st Defendant who became a Director in the Plaintiff Company in April, 2011, was not a Director nor even a shareholder in the Plaintiff Company. Exhibit "3 Series" therefore, has no evidential value to the compliance, statutorily, of these Sections. This Court finds that, the conduct of 1st Defendant supra, constitute a breach of fiduciary duty to the Plaintiff. Having concluded Issue (v) and held that, 1st Defendant has breached his fiduciary duty owe to the Plaintiff Company, this Court proceeds to deal with Issues surrounding 2nd Defendant since Plaintiff’s claim is jointly and severally against the Defendants. 20 Whether or not 2nd Defendant owes the Plaintiff a duty to account for the profit made by it in respect of its contracts for hydraulic hose and fitting fabrication services and operation of the same with Golden Star Resources Ltd mine site at Wassa. At law, it is pedestrian knowledge that, a company such as the 2nd Defendant is a corporate body or an artificial legal person, separate and distinct from its officers or directors and shareholders. See the oft cited case of Salomon v Salomon & Co Ltd [1895 – 99] All ER, 33. See also Morkor v Kuma (East Coast Fisheries) [1998 – 1999] SCGLR, 620 @ 632. In this suit, 2nd Defendant finds itself embroiled in the conflict between the Plaintiff and the 2nd Defendant because, 1st Defendant’s is one of its Directors, who is also a Director in the Plaintiff Company. 2nd Defendant does business with Golden Star Resources Ltd, a Company Plaintiff also deals with. The question specifically is: What is Plaintiff’s cause of action, at law, against the 2nd Defendant? Is the 2nd Defendant Company liable to the Plaintiff for the business, it is doing with Golden Star Resources Ltd, when at law, it can enter into a contract, on its own, to further its business. Just as in all cases, before a Court of competent jurisdiction, the pleadings of a party constitute, the primary source, of the facts that, underlies its cause of action. This Court, from the pleadings of the Plaintiff, do not find any cause of action, against the 2nd Defendant. 2nd Defendant, ought not to have been made a party to this suit. The cause of action of the Plaintiff in this suit is against the 1st Defendant and only 1st Defendant. 1st Defendant, Ernest Kojo Bonsu is not the 2nd Defendant, E. K. Bonsu Ltd and E K 21 Bonsu Limited is not Ernest Kojo Bonsu, according to the trite legal position, espoused in the celebrated case of Salomon v Salomon supra. To establish, a cause of action against 2nd Defendant, the Plaintiff ought to show a civil wrong done to it, for which remedy will lie. The Court finds no cause of action arising from the pleadings of the Plaintiff against 2nd Defendant. Consequently, Issues (i), whether or not the 2nd Defendant owes the Plaintiff a duty to account for the profit made by it in respect of its contracts for Hydraulic Hose and Fitting, Fabrication Services and Operation of the same with Golden Star Resources Ltd mine site at Wassa goes to no Issue. Issue (iii), whether or not the Plaintiff is entitled to the 2nd Defendant’s profits from its contract with Golden Star Resources Limited at the Mine Site at Wassa Achempim, also goes to not Issue. Issue (iv), whether or not at all material times the 1st Defendant was the Managing Director of the 2nd Defendant Company and beneficial owner is subsumed in this Judgment under the interrogation of Issue (v). Issue (vi), whether or not the 1st Defendant, as a trustee of the assets of the Plaintiff Company has breached his duty to preserve the assets of and further the business of the Plaintiff Company is no longer germane to be interrogated having regard to the extensive discussion of Issue (v). In terms of Issues (vii), whether or not the 1st Defendant has dishonestly and unlawfully formed a scheme of competition against the Plaintiff Company, the Plaintiff did not provide a scintilla of evidence in support of the allegations underpinning same. 22 Also in terms of Issue viii), whether or not the Defendants have used confidential information, knowledge of working systems and trade secrets acquired by the 1st Defendant in his capacity as a Director of the Plaintiff Company and/or otherwise surreptitiously and unlawfully acquired from Plaintiff Company, to unlawfully compete with the Plaintiff Company at the Golden Star Resources Mine Site at Wassa in the Western Region and/or elsewhere in the Republic of Ghana, the Plaintiff, again, did not provide a scintilla of evidence in support of the allegations underpinning same. Issue (ix) on whether or not the 1st Defendant has acted mala fide against the interest of the Plaintiff Company finds support in the interrogation of Issue (v) which upheld the said Issue (v) in its breach thereof. Before drawing down the curtain, the Defendants alleged in their Written Address that, Plaintiff is in breach of Regulation 9 of the Minerals and Mining (Local Content and Local Participations) Regulations, 2020 (L. I. 2431). In respect of the above-regulation, PW1 stated under cross-examination on 26th June, 2024, as follows: “Q: You would agree with me that, the fabrication and provision of the hydraulic hoses and fittings are technical and engineering services? A: Yes, I do.” It has been argued in their Written Address that, the Plaintiff’s Directors and Shareholders includes foreigners and the Company is not wholly Ghanaian owned for which reason, is has flouted the said Regulation. 23 This Court finds that, the point raised do not go to jurisdiction which can be raised at any time. This point was raised in material particular in the Written Address of the Defendants and was not set down as an Issue. Assuming without admitting that, Plaintiff is in breach of Regulation 9, the sanctions for same are prescribed by way of administrative penalties in Section 19 of that law. See the case of Mensah v Ahenfie Cloth Sellers Association [2010] SCGLR 680. In conclusion, this Court grants relief (a) in the following terms: a) A declaration that, the 1st Defendant is in breach of his fiduciary duties under Sections 190(1) and 192(1) without more. b) The Court refuses relief (b) for a declaration that, the Defendants have used to their advantage confidential information and/or special knowledge obtained by the 1st Defendant in his capacity as a director of the Plaintiff Company in breach of Section 192(1)(a) of (Act 992). c) The Court grants nominal damages under the head of general damages pursuant to Section 199(a) against 1st Defendant as compensation in favour of the Plaintiff. In the case of Tema Oil Refinery v African Automobile [2011] 2 SCGLR 907, the Court held that, nominal damages are such as the law will presume was suffered by the Plaintiff and are said to be at large meaning that, the quantum to be awarded is at the discretion of the Court. 24 The learning from the Tema Oil Refinery v African Automobile case, supra is that, it is the law that presumes nominal damages suffered by the Plaintiff and that quantum is at the discretion of the Court. The Court awards to Plaintiff against 1st Defendant nominal damages Fifty Thousand Ghana Cedis (Gh₡50,000.00) d) This Court refuses relief (d) for special damages of USD194,438.91 or its Cedi equivalent thereof against the 1st Defendant. e) The Court refuses relief ( e) for punitive damages against the 1st Defendant in the amount of Gh₡500,000.00. The special and punitive damages were not particularised and proved. f) This Court refuses relief (f) for an account of the profit made by the Defendants on or by reason of the contract award for hydraulic hose & fitting fabrication services and operation of the same at Golden Star Resources Limited mine site at Wassa Achempim in the Western Region and of the profit otherwise made by the Defendants in respect of their competing business for lack of no evidence against the 1st Defendant and cause of action against the 2nd Defendant. g) This Court refuses relief (g) for payment of all sums found due to the Plaintiff Company on taken account at relief (f) above for the reason that, relief (f) was not proofed against 1st Defendant and also for want of cause of action against 2nd Defendant. 25 h) In terms of relief (h) for Interest (to be assessed) at the commercial bank rate of interest on the sums claimed for such period as to the Court shall seem just, the Court refuses same for failure of Plaintiff to proof the special and punitive damages. i) This Court refuses reliefs (i) for an Order of Injunction to restrain the Defendants from operating the Contract at the Golden Star Resources Limited Mine Site at Wassa or otherwise operating a competing business whilst the 1st Defendant remains a Director of Plaintiff Company. j) This Court refuses relief (j) for an Order of Injunction restraining the 1st Defendant from being interested in, operating a competing business or establishing the same whilst he remains a Director of Plaintiff Company. There shall be no Order as to costs. (SGD.) H/L/ JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: J. M. S. Hayfron-Benjamin for the Plaintiff. Sheriff Ahmed Seini with Philomena Owusu Boateng led by Sandra Afriyie holding the brief of Kwaku Yeboah Appiah for the Defendants. 26 27