KUFFOUR AND ANOTHER VRS. BULLIONLINK GH LTD AND OTHERS (MISC/07/2025) [2025] GHAHC 58 (29 January 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD AT KUMASI ON WEDNESDAY THE 29TH DAY OF JANUARY 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------------- SUIT NO. MISC/07/2025 1. PATRICK KUFFOUR - APPLICANTS H/NO. PLOT 50 BLOCK 8 KOTEI – KUMASI 2. KWADWO KOOMSON H/NO. PLOT 10 BLOCK D DEDUAKO – KUMASI VRS 1. BULLIONLINK GH LTD - RESPONDENTS GPS: AK 181-9380 - KUMASI 2. PARVEEN SINGH KUMAR ANYINAM EASTERN REGION 3. BHUNESHWAR RAY ANYINAM EASTERN REGION 4. STEVEN ASARE KUMASI 1 5. PATEINCE KUMAH KUMASI ------------------------------------------------------------------------------------------------------ TIME: 2:21PM. JUDGMENT: On 20th November, 2024, the Applicants originated the instant suit by way of a Motion on Notice under Section 219 of the Companies Act, 2019, (Act 992). Section 219 provides a remedy against oppression. Remedy under this Section can be sought according to Sub-Section 1 by a member or debenture holder. In this particular instance, the Applicants are one Patrick Kuffour and Kwadwo Koomson. Per paragraph 6 of their Affidavit in Support, they alleged that, they are both owners of 396,000 shares each. Thus, they claim to be shareholders of 1st Respondent Company. Section 33 of Act 992 provides for the subscribers to the Constitution of a Company to become members of the Company and upon incorporation their names are entered as members in the register of members. Exhibit “PAK(1) provides at page 10 of 11 and 11 of 11, commonly referred to as the subscribers column that, Patrick Amoako Kuffour and Kojo Koomson are subscribers to the constitution of 1st Respondent. Per Section 33 of Act 992 they are members of the 1st Respondent. Since Section 219 enables members to apply to the Court for an Order under this Section, it means that, the Applicants have capacity to mount the instant suit. 2 The Respondents per Counsel have raised the issue of capacity against the Applicants. According to Counsel, the 1st Applicant lacks capacity to bring the suit because the action ought to have been brought by the Company itself as according to him, the complains affects the Company directly. That further, the 1st Applicant is not the Company Secretary at the time this action was instituted and cannot bring the action even though, he is shareholder. This objection is a misconception of Section 219(1) as a person does not have to be a secretary as a condition precedent to mount the suit under the said Section. Under the Section, as already stated, those who can bring the action are members and debenture holders. So, in so far as the Applicants are members of the 1st Respondent Company, they have capacity to bring the action as members. So, the issue of capacity raised by Learned Counsel for Respondents is meritless and same is dismissed. So, what complaint can the Applicants raised in the instant suit per Section 219 of Act 992? According to Section 219(1)(a), the complaint must be that, the affairs of the Company and in this case, the 1st Respondent Company are being conducted in a manner or the powers of the directors are being exercised in a manner oppressive to one or more of the members or in disregard of their property interest as members, shareholders, officers or debenture holders. This conduct underlying the complaint must be hash, burdensome or severe to be considered oppressive. In the case of Mahama v Soli & Anor. [1977] GLR 215, CA, the word “oppressive” was construed in its ordinary sense as burdensome, hash and wrongful. 3 In the peculiar circumstance of this Application, the Applicants complain that, the affairs of Bullionlink Ghana Ltd have been conducted by the 2nd, 3rd and 4th Respondents in a manner oppressive to them or in disregard of their property interest. The Applicants complain further under Section 219(1)(b) in relation to prejudice to them. So, what acts of the 2nd, 3rd and 4th Respondents are oppressive to the Applicants and in disregard of their proper interest and prejudicial. This is a question of fact to be established by the Applicants. They deposed to allegations of such facts in their Affidavit in Support of the Application at paragraphs 10, 11, 12, 13, 14, 15,16, 17,18, 19, 20, 21, 22, 23, 24 and 25. A summary of those allegations are as follows: That 2nd Respondent was selling gold of the 1st Respondent Company without accounting to them Applicants and other Directors. That 2nd Respondent unilaterally appointed the 3rd Respondent as a Director of the 1st Respondent Company and had his details registered at the Office of the Registrar of Companies. That the 2nd and 3rd Respondents went behind the Applicants to the Registrar of Companies to remove 1st Applicant’s name as the Company’s Secretary. That the 2nd and 3rd Respondents submitted a forged letter to the Registrar of Companies mispresenting to the office that a board meeting was held on 17th June, 2024, at which meeting, 1st Respondent removed 1st Applicant as the Company’s Secretary and appointed the 5th Respondent as the new Company Secretary. 4 That the 2nd and 3rd Respondents have forcibly taken away Excavators belonging to 1st Respondent and using the machines for their personal benefits. That the 2nd and 3rd Respondents have connived and transferred ownership of some of the Excavators into the name of 3rd Respondent and also selling some of them. The pertinent question is whether or not the above summarised allegations of facts of the Applicants have any iota of evidence to back them. The Court proceeds to interrogate the above allegations made by the Applicants. The claim of the 2nd Respondent selling gold belonging to the 1st Respondent without accounting for same to the Applicants. Exhibit "PAK(3 Series)", has been provided by the Applicants to back this allegation under interrogation now. According to them, they support this allegation with copies of some invoices for the sale of gold by the Company. The Court has examined the said invoices. They factually show the sale of gold by Bullionlink Gh Ltd, the 1st Respondent herein. The Exhibits however, does not provide evidence that, the 2nd Respondent sold the gold and further that, he did not account to the Applicants and other Directors for the alleged sold of gold. According to the Blacks Law Dictionary, 11th Edition, an invoice is an itemized list of goods or services furnished by a seller to a buyer usually specifying the price and terms of sale. 5 The Court after examining the invoices does not find that, the sale of gold was a personal private act of the 2nd Respondent. The Exhibits does not show even an authorised signatory. Thus 2nd Respondent’s name or signature does not appear on Exhibit “PAK Series”. The rule of the game of evidence is proof. The Applicants can be heard to say that, 2nd Respondent was selling the gold without accounting to them but here we are, they have failed to show proof of their assertion. In any event, what do the Applicants mean when they say that, 2nd Respondent was not accounting to them. They have not shown in what relationship they are to be accounted to by the 2nd Respondent for activities of the 1st Respondent Company that has to do with operations and management. The duties of a Company Secretary includes those statutorily outlined under Section 212 of Act 992 and same does envisage that, a Company Secretary has a day to day operational and managerial responsibilities requiring that other persons must account to them. The Court finds no merit under this claim deposed to at paragraphs 10 and 11 of the Affidavit in Support. Accordingly, this head of unproved allegation cannot constitute act of oppression as the Applicants wants the Court to believe. Unilateral Appointment of 3rd Respondent as a Director of the 1st Respondent and registration of his details at the Registrar of Companies. At paragraph 12 of the Affidavit in Support, this is what the 1st Applicant deposed: 6 “Along the line, the 2nd Respondent unilaterally appointed the 3rd Respondent as a director of the company and had his details registered at the Office of the Registrar of Companies.” The said 3rd Respondent is one Bhuneshwar Ray. Exhibit “PAK(1)” indeed, shows that, this person was not one of the named first Directors of the 1st Defendant at incorporation. Exhibit “PAK(8)” shows that, he was subsequently appointed as one of the Company Officers or Directors. There is nothing more by way of evidence to show that, his appointment was in breach of the 1st Defendant’s Constitution, Exhibit “PAK(1)” or Act 992. So, the claim that, 3rd Respondent’s act was a unilateral act of the 2nd Respondent is not supported by any shred of evidence. The Court cannot be left by the Applicants to conjecture or imagine the unilateralness alleged by them. In these circumstances, the Court finds the allegation under this head as baseless and meritless and same is dismissed. The same head of unproved allegation cannot constitute oppression of the Applicants by the Respondents. That the 2nd and 3rd Respondents went behind the Applicants to the Registrar of Companies to remove 1st Applicant’s name as the Company’s Secretary. At paragraph 14 of the Affidavit in Support, this is what 1st Applicant deposed: “That in a dubious ploy to cheat the Applicants and deprive us of our interest in the Company, the 2nd and 3rd Respondents went behind us to the Registrar of Companies to remove my name as the Company’s Secretary without any notice.” 7 The deponent further stated at paragraph 15 of the Affidavit in Support as follows: “That even though, no board meeting or members meeting whatsoever was held, the 2nd and 3rd Respondents submitted a forged letter to the Registrar of Companies representing to the office that, a board meeting was held on 17th June, 2024, at which meeting, the Company removed me as the Company’s Secretary and appointed the 5th Respondent as the new Company’s Secretary. I have received copies of the said forged letter and the purported board resolution submitted to the Office of the Registrar of Companies and I have attached same as Exhibits “PAK(4)” and “PAK(5).” At paragraph 16 of the Affidavit in Support, it was deposed further: “That, strangely, the documents submitted by 2nd, 3rd and 5th Respondents to the Office of Registrar of Companies included the letter appointing 5th Defendant as the Company’s Secretary and this letter had my forged signature as the author of the said appointment letter. I will tender a copy as Exhibit “PAK(6)”. It was stated again at paragraph 17 of the Affidavit in Support thus: “That, what is more unbelievable is that, despite the document submitted by the 2nd, 3rd and 5th Respondents to the Registrar’s Office indicating that, the board had resolved to remove me as secretary, the same document included a forged letter purporting to be my letter of resignation. I will tender a copy as Exhibit “PAK(7)”. 8 What the Court hears the deponent to be saying is that, he was removed from his position as Company’s Secretary and substituted by the 5th Respondent. That there was no board meeting held at which he was removed and yet, a letter was forged purporting to be his resignation letter and also a resolution of the board. The Court has examined critically the documents tendered in support of this head of allegation. In the sequence of events, Exhibit “PAK(7)” dated 14th of June, 2024, states that, Patrick Amoako Kuffour wrote to the Board of Directors of the 1st Respondent Company to formally inform the Board about his resignation as the Secretary from the Company. This means that, the resignation of the 1st Applicant was on 14th June, 2024, under his own hand. Notwithstanding, the 14th June, 2024, resignation, Exhibit “PAK(4)” states that, the 1st Respondent Company informed the Office of the Registrar of Companies by a letter dated 17th June, 2024, that, a board meeting was held on 17th June, 2024, at which it was resolved that, the consent of the board be sought for the removal of Patrick Amoako Kuffour from his position as the Company’s Secretary and in his place, Mrs Patience Kumah be appointed as the new Secretary of the Company. There is a paradox here. Patrick Amoako Kuffour who per Exhibit “PAK(7)” had resigned his position as Secretary on 14th June, 2024, is said in Exhibit “PAK(4)” to also have been removed by a 17th June, 2024, Board Resolution. The Court cannot reconcile this for a person who has resigned and thus has vacated the secretaryship of the Company cannot be again removed from that same position. What is more, a signature of the said Patrick Amoako Kuffour appears in Exhibit "PAK(4)" showing that, as at the date, 17th June, 2024, he was still Secretary of the Board. 9 Exhibit “PAK(5)” also shows that, Patrick Amoako Kuffour who has resigned on 14th June, 2024, remained as Company Secretary and sat in a meeting of the Board to pass a resolution for his removal and appointment of Mrs Patience Kumah, the 5th Respondent as the new Company’s Secretary. Again, Patrick Amoako Kuffour who has resigned on 14th Jue, 2024, is stated to have signed a letter as Board Secretary, offering appointment to Mrs Patience Kumah as Company’s Secretary. This Court finds it improbable that, the 1st Applicant after resigning on 14th June, 2024, in his position as Company’s Secretary will continue to hold the position he has resigned from and be part of a Board Resolution passed subsequently on 17th June, 2024 and also sign Exhibits “PAK(4)”, “PAK(5)” and “PAK(6)’. It has been contended by the 1st Applicant that, he never signed his own resignation, Exhibit “PAK(7)” dated 14th June, 2024. By a combined reading of Exhibits “PAK(4)”, “PAK(5)”, “PAK(6)” and “PAK(7)" and their evaluation, the Court finds the alleged resignation of the 1st Applicant improbable than probable. That, his said removal juxtaposed with his said resignation makes these Exhibits contrived and a mockery of themselves. The Court therefore finds that, the 1st Applicant did not resign his position as Company’s Secretary. The Court having found these Exhibits contrived and a mockery of themselves further finds that, no meeting was held on 17th June, 2024, at which a resolution was passed. 10 The Court finds that, the 1st Applicant, Patrick Kuffour also known Patrick Amoako Kuffour is still 1st Respondent’s Company Secretary. That, the purported appointment of the 5th Respondent as Company’s Secretary is not sanctioned by the Constitution of the 1st Respondent and Act 992 and is void. This head of allegation having been proved constitute a burdensome, hash and wrongful conduct amounting to oppression of 1st Applicant. It is admitted that, the act also constituting oppression as immediately before found by this Court is not in respect of the position of the 1st Applicant as a member but a Secretary, same nonetheless constitute oppression on him. In the case of Aboagye v Tetevi & Ors. [1976] 1 GLR, 217 HC, the Court per Edusei J held that, where the powers of the directors were being exercised in disregard of the interests of an officer of the company, such an officer who was a member could equally proceed under Section 218 of the then Act 179. The Court stated further that, a member or a shareholder who was also a director or a secretary or employee could bring an Application under Section 218 to protect his interest in the Company. The 1st Applicant being the Company Secretary is statutorily also an Officer of the said Company or 1st Respondent. In the view of this Court, if the membership and secretaryship of the 1st Applicant in the 1st Respondent Company resides in him in a dual capacity, it cannot be reasonably said that, even though, the acts of oppression against him affects him as a Secretary and not as a member, that act cannot be wrongful in an oppressive manner. 11 The Court therefore reasons that, 1st Applicant has been oppressed even though, that act of oppression was visited upon him by the Respondents as Secretary and not as a shareholder or member. The final matters are: That the 2nd and 3rd Respondents have forcibly taken away Excavators belonging to 1st Respondent and using the machines for their personal benefits. AND That the 2nd and 3rd Respondents have connived and transferred ownership of some of the Excavators into the name of 3rd Respondent and also selling some of them. The question is whether 2nd and 3rd Respondents have transferred the ownership of some of 1st Respondent’s Excavators into 3rd Respondent's name as alleged. Exhibit "PAK(2 Series)” is evidence that, Ditya Ghana Ltd transferred ownership of an Excavator with registration number GE 9478 – 23 to Bullionlink, the 1st Respondent. There is also evidence of ownership of a Hydraulic Excavator with registration number GE 9392 – 23 in the 1st Respondent and a further ownership of an Excavator with registration number GE 9390 – 23 again in the 1st Respondent. The Applicants fails to show which of Exhibits “PAK(2 Series) " demonstrates transfer of some Excavators from 1st Respondent, Bullionlink Gh Ltd to 3rd Respondent as alleged. The Court finds no evidence of transfer of any Excavator into the name of 3rd Respondent. The Court has further had regard to the Affidavit Evidence and its evaluation and finds no evidence that, the 2nd and 3rd Respondents have forcibly 12 taken away Excavators belonging to 1st Respondent and using the machines for their personal benefits. The Court was not provided with any proof whatsoever by the Applicants of their claim that, 2nd and 3rd Respondents are selling some of the Excavators and dismisses this allegation. The Court cannot find any acts of oppression on the Applicants under this unproved allegations against the Respondents. From the foregoing, it is only the said removal/resignation of the 1st Applicant as Company’s Secretary that has been proved. All the other allegations remain a bald assertions and unproved and each of them are dismissed. The remedies sought by the Applicants/Orders herein made. 1) The Court grants relief (2) by an Order reversing the purported removal of the 1st Applicant as Company Secretary. 2) The Court grants relief (3) and makes an Order cancelling the purported appointment of 5th Respondent as Company Secretary and a further Order for the removal of her name being Mrs Patience Kumah from the records of the 1st Respondent Company, Bullionlink Ghana Ltd. 3) Relief (4), (5), (6) and (7) are dismissed. 4) In terms of relief (8), the Applicants pray for an Order compelling the 1st Respondent to purchase their shares. The Court takes the view that, in the case of the 1st Applicant, his decision is based on the oppressive conduct found by this Court against him by the Respondents as Company Secretary. The Court obliges him, the prayer and Orders that, the 1st Respondent purchases his shares upon a valuation of the Company’s worth in terms of its assets and 13 liabilities. This relief only makes the 1st Applicant cease to be a shareholder or member of the 1st Respondent upon the purchase of his shares without more. Still in terms of relief (8), no oppressive conduct was found on the evidence by the Respondents against the 2nd Applicant. He did not himself proof that, any particular acts of the Respondents is oppressive of him. He is therefore not entitled to Section 219 relief and accordingly, the prayer for 1st Respondent to purchase his shares is refused. 5) The Court grants relief (9) and makes an Order for the payment of the remuneration to 1st Applicant as Secretary of the Company as outstanding during the length of time or period when he was unlawfully removed as Company Secretary and replaced with the 5th Respondent. The Court in terms of relief (1) declares that, the affairs of the 1st Respondent, Bullionlink Ghana Ltd have been conducted by 2nd, 3rd and 4th Respondents in a manner oppressive to the 1st Applicant only as Company Secretary and in disregard of his proper interest thereof and same prejudicial to him. The Application succeeds in favour only the 1st Applicant in terms of reliefs (1), (2), (3), (8) and (9). 14 The Application in respect of all the allegations by the 2nd Applicant is dismissed. There is no Order as to costs. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Abena Fremah Duodu holding the brief of Stephen Ofori for the Applicants. Frank Boahen with Celestine Yeboah-Asuamah holding the brief of Kwame Antwi Afriyie for the Respondents. 15