OSEI VRS. OFFICE OF THE REGISTRAR OF COMPANIES AND OTHERS (OCC/41/2021) [2025] GHAHC 54 (26 February 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD AT KUMASI ON WEDNESDAY THE 26TH DAY OF FEBRUARY 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE --------------------------------------------------------------------------------------------------------------- SUIT NO. OCC/41/2021 LARBI OSEI @ NANCY LARBY SARPONG - PLAINTIFF C/o Plot 2A West Nhyiaeso Ahodwo – Kumasi VRS 1. THE OFFICE OF THE REGISTRAR - DEFENDANTS OF COMPANIES 2. MARY KUSI 3. SAMUEL OSEI Both of Plot 56 Block "E" Ahenema Kokoben – Kumasi ---------------------------------------------------------------------------------------------------- TIME: 09:25AM. JUDGMENT: The purpose of incorporating a limited liability company with shares, is to further a business or commercial purpose. It is not for the purpose of litigation. Unfortunately, this is not the story of a company known as Modtintac Company Ltd. It is not in dispute that, this Company, was incorporated under the Companies Act, Act 179, on 1st February, 2011 and commenced business on 2nd February, 2011. It appears that, all was going well with the Company until the death of one person. This person is known as James Yaw Osei, sometime in this proceedings also referred to as James Osei Yaw. It is not in dispute that, the said James Yaw Osei is dead. He died per evidence before the Court on 20th October, 2016. This litigation, is centred around the aftermath of the death of James Yaw Osei and the Company, Modtintac Company Ltd. The Plaintiff’s Case in a nutshell. She filed her original Writ and Statement of Claim on 30th December, 2020. The Writ and Statement of Claim was amended by an Order dated 27th May, 2024, joining one Sniper Ato Wright as 4th Defendant in this suit. The Plaintiff is in Court, claiming to be a shareholder in the Company in issue. She says, she owns 20% of the issued shares of Modtintac Company Ltd with James Osei Yaw (deceased) and one Adu Agyei, holding 60% and 20% between the two of them respectively. According to her, she and the other two shareholders are also the Directors of this Company with Adu Agyei doubling as Director and Secretary. It is the Plaintiff’s case that, ever since the Company was incorporated, there has not been any changes in the shareholding, directorship and secretaryship. 2 She asserts that, 1st Defendant issued a Search Report to Anaglate & Associates, a Firm of Lawyers, acting for the 2nd and 3rd Defendants, indicating that, James Osei Yaw is the sole shareholder of Modtintac Company Ltd and further that, the Directors of the Company are the said James Yaw Osei and one Sniper Ato Wright. When this Report came to her knowledge, according to Plaintiff, she wrote through her Lawyers to the 1st Defendant, requesting for documents in respect of the changes in the shareholding structure as well as directorship of the Company. The 1st Defendant, according to Plaintiff, replied indicating that, it had no records, evidencing any transfer of shares or changes in the directorship of the Company, neither had there been any letter requesting for same. She therefore, by another letter, demanded that, the 1st Defendant reverses the purported changes as regards the status of shareholding and the positions of Directors and Secretary, for being unlawfully altered but the 1st Defendant refused, failed and/or neglected, according to her to reverse the said changes in the record. By reason of the foregoing, the Plaintiff wants a declaration from this Court, that she is a shareholder with 20% shares in Modtintac Company Ltd and also a Director of the said Company, with James Osei Yaw and Adu Agyei, also having 60% and 20% shares respectively. 3 She seeks a further declaration that, only 60% of the issued shares of Modtintac Company Ltd, form part of the Estate of James Osei Yaw and an Order directed at the 1st Defendant to effect changes in its office record to reflect the afore-said shareholding structure and directorship of Modtintac Company Ltd. The case of 1st Defendant in a nutshell. According to the 1st Defendant, the Plaintiff together with James Osei Yaw (deceased) and one Adu Agyei, incorporated Modtintac Company Ltd on 1st February, 2011, with a shareholding structure of 20%, 60% and 20% respectively. With respect to the Plaintiff’s assertion that, ever since the Company was incorporated, there had not been any changes in respect of the shareholding, directorship and secretary, the 1st Defendant, pleaded that, it will be very difficult, at this stage, to tell, if there had been any changes made, since the incorporation of the Company. It however, stated that, it issued the Search Report although, the file of the Company could not be traced. The case of 2nd and 3rd Defendants in a nutshell. 4 The two of them, by their joint Statement of Defence denied that, the Plaintiff, James Osei Yaw and Adu Agyei incorporated Modtintac Company Ltd with a share structure of 20%, 60% and 20% respectively. They also denied that, the Plaintiff, James Osei Yaw and Adu Agyei were also the Directors of the Company with Adu Agyei as the Secretary. According to them, they are the Administrators of the Estate of the Late James Osei Yaw and further that, they were granted Letters of Administration by the High Court, Kumasi on 24th January, 2014. That on being appointed as Administrators, they sought to take custody of and account for all properties, belonging to the Late James Osei Yaw and pursuant to their said appointment, wrote to 1st Defendant, to enquire into the entity known as Modtintac Company Ltd. According to them, the 1st Defendant, responding to their enquiry on 5th December, 2018, informed them that, Modtintac Company Ltd is solely owned by the Late James Osei Yaw with 100% shares of the Company and that, documents available to them from 1st Defendant, confirmed that, James Osei Yaw was the only shareholder of the Company and also that, Plaintiff is not a shareholder of the Company. These two Defendants averred that, the 1st Defendant also confirmed that, the Directors of the Company were James Osei Yaw and Sniper Ato Wright with the latter being a Secretary of the entity. 5 They contended that, Modtintac Company Ltd was founded, promoted, incorporated and solely financed by James Osei Yaw with absolutely no role whatsoever, being played by the Plaintiff or anyone else and that, their attempt to take custody of the Company, has been frustrated by Plaintiff and Sniper Ato Wright. On these allegations of the 2nd and 3rd Defendants, they counter-claimed for declaration that, the entity by name Modtintac Company Ltd was incorporated solely by the Late James Osei Yaw and who is the sole shareholder of all its issued shares. Reply and Defence to 2nd and 3rd Defendants Statement of Defence and Counter-Claim. The Plaintiff joined Issues generally with 2nd and 3rd Defendants. In essence, the Plaintiff maintained her case through her Reply. She also contended by way of a Statement of Defence to the Counter-Claim, that 2nd and 3rd Defendants are not entitled to their Counter-Claim. Issues certified to be tried. Settlement broke down. The underlisted Issues were certified to be tried as follows: 1. Whether or not James Osei Yaw, the Plaintiff and Adu Agyei were the shareholders of Modtintac Company Ltd at the time of its incorporation with 60%, 20% and 20% shares respectively. 2. Whether or not the Plaintiff and/or Adu Agyei have validly transferred their shares in Modtintac Company Ltd to James Yaw Osei (deceased) thereby making the said James Yaw Osei the sole shareholder of the Company. 6 3. Whether or not James Yaw Osei and Sniper Ato Wright are the current Directors of the Modtintac Company Ltd. 4. Whether or not the change in directorship and secretaryship of Modtintac Company Ltd was lawfully done. 5. Whether or not James Yaw Osei was dead at the time of the said changes in shareholding, directorship and secretaryship of Modtintac Company Ltd. 6. Whether or not Plaintiff is entitled to her claim. 7. Whether or not the 2nd and 3rd Defendants are entitled to their Counter- Claim. The Burden of Proof/Issues for Determination/Evaluation of Evidence. It is trite in the Law of evidence that, he who avers must proof. From the Issues, it is the Plaintiff who positively asserts the facts underpinning Issues (1), (2), (4) and (5). The burden is therefore on her to proof the underlying allegations of facts in accordance with Sections 10 and 11 of the Evidence Act NRCD 323. The Plaintiff must introduce sufficient evidence in support of the positive allegations she has made concerning those Issues as well as establish a requisite degree of believe concerning her allegations of fact in the mind of this Court. Issues (1), (2), (4) and (5) shall be discuss together. 7 1. Whether or not James Osei Yaw, the Plaintiff and Adu Agyei were the shareholders of Modtintac Company Ltd at the time of its incorporation with 60%, 20% and 20% shares respectively. 2. Whether or not the Plaintiff and/or Adu Agyei have validly transferred their shares in Modtintac Company Ltd to James Yaw Osei (deceased) thereby making the said James Yaw Osei the sole shareholder of the Company. 4. Whether or not the change in directorship and secretaryship of Modtintac company Ltd was lawfully done. 5. Whether or not James Yaw Osei was dead at the time of the said changes in shareholding, directorship and secretaryship of Modtintac Company Ltd. In proof of Issue One, the Plaintiff testified that, James Osei Yaw, herself and Adu Agyei were the shareholders of the Company at the time of incorporation. She testified further that, the Company was incorporated with ten thousand (10,000) issued shares shared among the three of them. That James Osei Yaw kept the original Incorporation documents of the Company and was given Certified True Copies which she tendered as Exhibit “A”. She further testified that, James Osei Yaw had 6,000 shares, she 2,000 shares and Adu Agyei also 2,000 shares giving a shareholding structure of 60%, 20% and 20% respectively. 8 The Plaintiff tendered the Certificate of Incorporation of Modtintac Company Ltd issued on 1st February, 2011 and Certificate to Commence Business issued on 2nd February, 2011, together with the subscribers column of the Companies Regulations. The Plaintiff called the said Adu Agyei as a Witness and herein known as PW1. His Evidence-In-Chief, essentially corroborated the case of the Plaintiff as far as Issue One under interrogation is concerned. The evidence proffered by the subpoenaed Witnesses of the Plaintiff, who are Registrars of the High Court were irrelevant to Issue One. Both the Plaintiff and PW1 were subjected to Cross-Examination by Counsel for 1st, 2nd and 3rd Defendants. After a careful evaluation of the evidence of the Plaintiff in support of her case on Issue One, the Court finds as follows: 1. That Modtintac Company Ltd was incorporated on 1st February, 2011 and Certificate to Commence Business issued to it on 2nd February, 2011, 2. That on 1st February, 2011, when Modtintac Company Ltd was incorporated, the subscribers to its regulations were as follows: James Yaw Osei - 6,000 shares valued at GH₡6,000.00 Larbi Osei - 2,000 shares valued at GH₡2,000.00 Adu Agyei - 2,000 shares valued at GH₡2,000.00. 9 In their testimony, 2nd and 3rd Defendants stated at paragraph 16 of their Witness Statement that, at the incorporation of this entity, the Plaintiff and the said Adu Agyei were not shareholders. Their contention was grounded on Exhibit “2(b), a letter from 1st Defendant, Exhibits “2(c) and “2(d)”, the Companies Profile and the Constitution of the Companies respectively. The Court has examined the said Exhibits “2(c)” and “2(d)” and finds that, Exhibit “2(c)” does not provide the share structure of the Company as at the date of its incorporation but the shareholding structure as at 18th June, 2019. In the case of Exhibit “2(d)”, same is not evidence of the original Regulations of Modtintac Company Ltd as at 1st February, 2011, when it was incorporated. Exhibit "2(d)" is an adopted Regulations which means that, it was made subsequent to the original Regulations at the time of incorporation of the Company. The Court therefore rejects page 9 of 9 of the said Exhibit “2(d)” as evidence of the subscribers of the Regulations and/or shareholders of the Company, being James Osei Yaw with 100% shares of the Company. As far as Exhibit “2(d)” is concerned, it provides a false testimony of itself as evidence of the shareholding of the Company as at the date of incorporation. Similarly, the Court rejects the adopted Regulations of Exhibit “K Series” of the 1st Defendant as a falsehood of the shareholding structure as at 1st February, 2011. 10 The said adopted regulation of the 1st Defendant was certified as a true copy on 28th June, 2022. This document is an afterthought of it being evidence of the facts of James Yaw Osei as a sole shareholder of Modtintac Company Ltd. The said adopted regulation is a lie about itself because it purported to be certified by a Registrar of Business Name. A Company’s Certification in terms of its true copy can only be done by the Registrar of Companies and not the Registrar of Business Names. These statutory positions or offices are provided for under different statutes namely, the Companies Act, (Act 179) and the Registration of Business Names Act, (Act 151) respectively. A document of a Limited Liability Company cannot be stamped as a true copy with a business name stump and vice versa even if both are held by the same public officer. In any event, the 1st Defendant pleaded at paragraph 3 of its Statement of Defence that, the Plaintiff together with James Osei Yaw (deceased) and one Adu Agyei, incorporated Modtintac Company Ltd as a Limited Liability Company on the 1st day of February, 2011, with a shareholding structure of 20%, 60% and 20% respectively. The 1st Defendant is the statutory body responsible for the registration of Companies and Business in Ghana. It is therefore, the custodian of the records of all incorporated 11 Companies including Modtintac Company Ltd. It is therefore the 1st Defendant which is in possession of the original incorporation documents of Modtintac Company Ltd bearing its shareholding structure. The Court finds paragraph 3 of 1st Defendant’s Statement of Defence as being an admission of the case of the Plaintiff of the matters contained therein. The Court therefore finds Issue One in favour of the Plaintiff and holds that, James Osei Yaw, the Plaintiff and Adu Agyei were the shareholders of Modtintac Company Ltd at the time of incorporation with 60%, 20% and 20% shares respectively. The Court accordingly grants Plaintiff’s relief (1). Issue Two is whether or not the Plaintiff and/or Adu Agyei have validly transferred their shares in Modtintac Company Ltd to James Yaw Osei (deceased) and thereby making the said James Yaw Osei the sole shareholder of the Company and further Issue Five whether or not James Yaw Osei was dead at the time of changes in shareholding, directorship and secretaryship of Modtintac Company Ltd. The Court had taken a look at Exhibit “2(a)” of the 2nd and 3rd Defendants. That Exhibit is Letters of Administration of the personal properties of James Yaw Osei. The Exhibit shows on its face that, James Osei Yaw died on 20th October, 2016. Exhibit “K Series” in terms of the adopted regulations provides that, James Yaw Osei is the sole shareholder of Modtintac Company Ltd. Having found already that, at incorporation, the shareholders of Company were the Plaintiff with 20% shares, 12 James Yaw Osei with 60% shares and Adu Agyei with 20% shares respectively, how did the adopted regulations came to have James Yaw Osei as the sole shareholder? The answer is not difficult to find at all. The adopted regulations found in Exhibit “K Series” and Exhibit “2(c)” provides dates of its existence as a public record. The dates are 28th June, 2022 and 18th June, 2019. Since according to Exhibit “2(a)”, James Yaw Osei died in the year 2016, how could the same James Yaw Osei who at incorporation of the Company had 60% shares of Modtintac Company Ltd, was able to acquire the shares of the Plaintiff together with the shares of Adu Agyei to become 100% shareholder in the year 2022 and 2019 according to Exhibit “K Series” and Exhibit “2(c)”. The Court would have thought that, this was a miracle but no, it is not but rather an act not only steeped in unlawfulness but a very good example of fraud. It is so because, a dead James Yaw Osei cannot in his death resurrect to acquire shares which belonged to Plaintiff and Adu Agyei and have records at the 1st Defendant’s Office amended to reflect same. It is important to mention that, Sniper Ato Wright who was joined to the instant suit and duly served with the Amended Writ and Amended Statement of Claim did not appear to contest the suit. However, he in Exhibit “2(c)”, gave his telephone contact 13 number to the 1st Defendant as 0276987123 together with that of the dead man, James Yaw Osei. The Court finds that, if in 2019, Exhibit “2(c)” provided the telephone numbers of James Yaw Osei and Sniper Ato Wright to the 1st Defendant, when James Yaw Osei was long dead in 2016, then it is Sniper Ato Wright, who know evidence exist that, he is also dead as at 2019, is the one and the living being who provided his own telephone number to the 1st Defendant. The Court reasons from the foregoing analysis that, the fraud and unlawful changes in the share structure of Modtintac Company Ltd was the act of Sniper Ato Wright in the Office of the 1st Defendant. The Court resolves Issues Two and Five in favour of the Plaintiff. In terms of Issue Four, on whether or not the change in directorship and secretaryship of Modtintac Company Ltd was lawfully done, the evidence before the Court per Exhibit “A Series” namely, the regulations of Modtintac Company Ltd shows that, at incorporation, the first Directors of the Company were James Yaw Osei, Larbi Osei and Adu Agyei. Further, the Returns of Particulars of the Company under Section 27(1) of the Companies Code, then, provides the Directors of Modtintac Company Ltd as James Yaw Osei, Larbi Osei and Adu Agyei with the said Adu Agyei also being the Secretary of the Company. 14 The directorship afore-mentioned changed, to only the names of James Yaw Osei and Sniper Ato Wright after the death of James Yaw Osei in 2016. The original statutory document of the purported change namely, the Form 17 in the custody of the 1st Defendant was not produced by the said custodian. This non-production attempted a concealment of the person who signed the Form 17 to furnish 1st Defendant with the names of James Yaw Osei and Sniper Ato Wright. The 2nd and 3rd Defendants did not produce any document before the Court showing that before 2016, when James Yaw Osei died he, the deceased and Sniper Ato Wright were the original Directors at incorporation in 2011 with Sniper Ato Wright doubling as Company Secretary. From the immediate preceding paragraph, it is clear that, no document could have been produced by 2nd and 3rd Defendants that, Sniper Ato Wright was appointed by the original Board of Directors as at 2016, appointed him as Director/Secretary or was so appointed by James Yaw Osei alone before his death. The Court is not oblivious of Section 181 of (Act 179), the then prevailing law that, a person cannot be appointed as a director unless that person has, prior to the appointment consented to be so appointed in writing. The 1st Defendant, the custodian of the Registration Records of this Company could not provide evidence of Sniper Ato Wright consenting to be appointed as a Director. 15 The Court is further, not oblivious of Section 139 of (Act 179) 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 Court is fortified in its mind that, it is the first Directors of Modtintac Company Ltd and after the death of James Yaw Osei, the remaining Directors, being the Plaintiff and Adu Agyei whose acts in general meeting or board of directors which constitutes the act of the Company. There is no evidence proffered particularly by 2nd and 3rd Defendants that, the Plaintiff and Adu Agyei consented at a meeting of the Company to be removed from their directorship or secretaryship position and replacement thereof by Sniper Ato Wright. The Court finds per Issue Four that, the change in directorship and secretaryship of Modtintac Company Ltd was not only unlawfully done but fraudulently done by Sniper Ato Wright who failed to appear in Court inspite of being served Notice of the instant action. The Court further finds that, James Yaw Osei was dead at the time of the said changes in shareholding, directorship and secretaryship of Modtintac Company Ltd. 16 From the entirety of the evidence before this Court, it is its finding that, the Plaintiff and Adu Agyei never transferred, whatsoever, their shares in Modtintac Company Ltd to James Yaw Osei (deceased) to make him a sole shareholder. The Court hold that, the current shareholders of the Company remains James Osei Yaw with 60% shares being held in trust for him by operation of Section 99 of (Act 179) then and now Section 102, by his legal personal representatives, the Plaintiff and Adu Agyei with 20% of the shares each respectively. The 1st Defendant is ordered to let the record of Modtintac Company Ltd in their custody reflect this share structure. With the Orders herein made on the findings from the evidence, Issue Three on whether or not James Yaw Osei and Sniper Ato Wright are the current directors of Modtintac Company Ltd has been dealt with. The 2nd and 3rd Defendants as stated earlier, counter-claimed for the Court to declare that, Modtintac Company Ltd was incorporated solely by the Late James Osei Yaw and who according to them is the sole shareholder of its issued shares. This declaration being sought has been answered in this delivery in the negative. The Counter-Claim is dismissed. The 1st Defendant did not counter-claim. 17 The Plaintiff is entitled to the following reliefs in these terms: 1. A declaration that, the Plaintiff is still a shareholder with 20% shares in Modtintac Company Ltd as well as Adu Agyei also having 20% shares in the Company. 2. A declaration that, only 60% shares of the issued shares of Modtintac Company Ltd forms part of the Estate of James Osei Yaw. 3. The Court declares that, Larbi Osei and Adu Agyei are the only current Directors with Adu Agyei doubling also as Secretary of Modtintac Company Ltd. 4. This Court orders the 1st Defendant to effect changes in its Office Records to reflect the afore-said shareholding structure and directorship/secretaryship of Modtintac Company Ltd within seven (7) working days from the date of Judgment. 18 5. Costs of GH₡10,000.00 against 2nd and 3rd Defendants in favour of Plaintiff. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Lena Nyamekye Agyemang holding the brief of Shadrack Obeng-Yeboah for the Plaintiff. Nana Ama Akyaa Prempeh for the 1st Defendant. S. Anaglate with Oduro Amoako Mensah for the 2nd and 3rd Defendants 19