|
Execution - Attachment -
Post-judgment proceedings -
Claim of interest in respect of
certain properties -
Ownership of properties -
Contract to transfer the shares
- Section 3 - Mortgages Act,
1972, NRCD 72 - Order 44 Rules
12 and 13 - High Court Rules,
2004, C. I. 47 - Section 72 of
PNDCL 152 - Land Title
Registration Law - section 32 of
Act 689 - Stamp Act - section
37(1) - Evidence Act, 1975,
NRCD 323
HEADNOTES
The facts of this application
are quite straightforward. The
Anator Holding Company Limited
and its subsidiary Anator Quarry
Company Limited, called the
Companies or 2nd Claimants, as
the case may be, put in a claim
of interest in respect of
certain properties which have
been attached in execution of a
judgment rendered by this court
in July 2014 in Suit number
J7/10/2014 reported as Amidu
(No. 3) v. Attorney-General;
Waterville Holdings (BVI) Ltd &
Woyome (No. 2) (2013-2014) 1
SCGLR 606. Their claim is also
founded on a claim of interest
by the UT Bank in some of the
assets, which claim is also
before this court in
post-judgment proceedings
arising from the action cited
above. The execution is at the
instance of the 1st defendant,
described as the judgment
creditor, who is the beneficiary
of the judgment given in favour
of the plaintiff in the said
suit. The 2nd Claimants assert
that the buildings attached in
execution are owned by their
Executive Chairman, Mr. Alfred
Agbesi Woyome, the 3rd
Defendant, who is the judgment
debtor. They also claim that the
movable assets comprising Plant
and Machinery of the quarry
situate at Mafi Tswala in the
Adidome District of the Volta
Region are owned by them and not
the judgment debtor. They
proceeded to claim that these
assets, movable as well as
immovable, were used as
collateral to secure a loan
facility from the UT Bank.
HELD
From the foregoing, I am able to
decide that both on the facts
and the law, there has been no
transfer of shares of the
companies. Consequently, since
the judgment debtor owns these
companies 100% and since the
assets of the companies are
unencumbered, the mortgage
having failed, I order the
execution process to go on in
respect of House number 327/7,
Kpehe, Accra as well as the
plant and machinery including
the quarry situate at Mafi
Tswala. I dismiss the
application accordingly.
STATUTES REFERRED TO IN JUDGMENT
High Court Rules, 2004, C. I. 47
Mortgages Act, 1972, NRCD 72
Lands Registry Act, 1962, (Act
122)
Land Title Registration Law
1986PNDCL 152
Stamp Duty Act 3005 Act 689
Companies Act, 1963, (Act 179)
Evidence Act, 1975, NRCD 323
CASES REFERRED TO IN JUDGMENT
Lizori Ltd v. Mrs. Boye
(2013-2014) 2 SCGLR 889)
LYLE AND SCOTT LTD. V. SCOTT'S
TRUSTEES (1959) 2 All ER 661 at
668 HL
BOOKS REFERRED TO IN JUDGMENT
Phipson on Evidence, 15th
Edition, paragraph 30-09 at page
740,
DELIVERING THE LEADING JUDGMENT
BENIN, JSC
COUNSEL
A. A. ACKUAKU JUNIOR FOR THE 1ST
CLAIMANT WITH HIM GODFRED ANIM
NYARKO
AGYEI LARTEY FOR 2ND
CLAIMANT
OSAFO BUABENG FOR 3RD DEFENDANT/JUDGEMENT
/ DEBTOR WITH HIM
BENEDICTA ANTWI.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY GENERAL FOR 1ST
DEFENDANT/JUDGEMENT /CREDITOR
WITH HIM MRS HELEN ZIWU
(SOLICITOR GENERAL) MRS STELLA
BADU, (C.S.A), MS YVONNE
BANNERMAN, (S.S.A) AND MRS
AURIELLE ASARE BOATENG, (A.S.A).
BENIN, JSC:-
BENIN, JSC:- The facts of this
application are quite
straightforward. The Anator
Holding Company Limited and its
subsidiary Anator Quarry Company
Limited, called the Companies or
2nd Claimants, as the case may
be, put in a claim of interest
in respect of certain properties
which have been attached in
execution of a judgment rendered
by this court in July 2014 in
Suit number J7/10/2014 reported
as Amidu (No. 3) v.
Attorney-General; Waterville
Holdings (BVI) Ltd & Woyome (No.
2) (2013-2014) 1 SCGLR 606.
Their claim is also founded on a
claim of interest by the UT Bank
in some of the assets, which
claim is also before this court
in post-judgment proceedings
arising from the action cited
above. The execution is at the
instance of the 1st defendant,
described as the judgment
creditor, who is the beneficiary
of the judgment given in favour
of the plaintiff in the said
suit. The 2nd Claimants assert
that the buildings attached in
execution are owned by their
Executive Chairman, Mr. Alfred
Agbesi Woyome, the 3rd
Defendant, who is the judgment
debtor. They also claim that the
movable assets comprising Plant
and Machinery of the quarry
situate at Mafi Tswala in the
Adidome District of the Volta
Region are owned by them and not
the judgment debtor. They
proceeded to claim that these
assets, movable as well as
immovable, were used as
collateral to secure a loan
facility from the UT Bank. They
served copy of the notice of the
claim on the UT Bank, describing
the Bank as the 1st claimant,
whilst they are the 2nd
Claimants.
In paragraph 4 of the
supplementary affidavit, deposed
to by Mr. Siade Puplampu, and
filed on 14th December 2018, the
real reason for the claim was
stated that those properties are
subject of collateral security
for loans contracted by the
companies with the UT Bank and
“until such liabilities are
discharged those assets or
collaterals remain encumbered.”
I must state from the onset that
the said Siade Puplampu deposed
to four separate affidavits in
this matter on behalf of the
companies. In all four
affidavits he deposed that he
has “the authority of the Board
of Directors of Anator Holding
Company Limited and Anator
Quarry Company Limited, Joint
Claimants herein” to depose to
each affidavit. He described
himself as the Administrative
Officer of the Companies. These
affidavits are:
(1) Affidavit of interest of the
Companies, filed on 22nd
November 2018.
(2) Supplementary affidavit of
interest of the Companies, filed
on 14th December
2018.
(3) Affidavit in support of
motion on notice for leave to
file further supplementary
evidence of interest by the
companies, filed on 8th
January, 2019.
(4) Further supplementary
affidavit of interest, filed on
14th June, 2019.
They show the extent of his
knowledge and authorization
given him to speak on behalf of
the companies. And from exhibits
1, 2 and 4 attached to his
affidavit filed on 14th
June 2019, there are four
directors of these two companies
and they include the judgment
debtor and one Stephen Kwashie
Woyome, who is said to be the
owner of Anator Holding LLC.
The judgment creditor filed a
notice disputing the claims. The
UT bank did not contest the
claim at all, despite the fact
that they were made party to the
application and were offered the
opportunity to be heard. They
were served with all processes
filed in the proceedings,
according to court registry
records.
Objection by judgment creditor
Let me start by dealing with
what appears to be an objection
to the inclusion of the
immovable properties owned by
the judgment debtor, in the
affidavit filed by the 2nd
Claimants. The reason proffered
by the judgment creditor was
that in the Notice of Claim, the
2nd Claimants laid claim of
ownership to only the quarry
plant and machinery, and nothing
more. Consequently, it is their
view that the claim should be
confined to the quarry and not
extended to include the
immovable assets. The 2nd
Claimants did not address this
issue at all, so the court did
not receive any assistance from
them in dealing with this
particular question, whether a
claimant must be confined to
only the property or properties
he mentions in his Notice of
Claim.
I have examined this objection
in the light of and come to
the conclusion that the
objection, though genuine and
worth the effort, is,
nonetheless, untenable. Rules 12
and 13 of Order 44 provide in
material terms as follows:
12(1) A person who makes a claim
to or in respect of a property
taken or intended to be taken in
execution under process of the
Court, or to the proceeds or
value of any such property,
shall give notice of the claim
to the Registrar and shall
include in the notice a
statement of the person's
address for service.
(2) On receipt of claim made
under subrule (1), the Registrar
shall forthwith give notice of
it to to the execution creditor
who shall within four days after
receiving the notice, give
notice to the Registrar
informing the Registrar whether
the execution creditor admits or
disputes the claim.
(3) Where
(a) the Registrar receives a
notice from the execution
creditor under sub-rule (2)
disputing a claim, or the
execution creditor fails to give
the required notice within the
period mentioned in that
sub-rule, and
(b) the claim made under
sub-rule (1) is not withdrawn,
the Registrar may apply to the
Court for relief.
(4) An application for relief by
the Registrar under this rule
shall be made ex parte to the
Court seeking an order that the
claimant and the execution
creditor shall appear before the
Court on a date specified in the
order for the issue between them
to be determined.
(5) Where the Registrar receives
a notice from an execution
creditor under subrule (2)
admitting a claim, the Registrar
shall forthwith withdraw from
possession of the property
claimed and having withdrawn the
Registrar may apply to the Court
for an order restraining the
bringing of an action against
the Registrar in respect of the
Registrar having taken
possession of that property.
13. Powers of Court hearing
application for relief.
(1) Where the hearing of
proceedings pursuant to an order
made under rule 12(4) all the
persons by whom adverse claims
to the property in dispute, in
this rule referred to as ‘the
Claimants’ appear, the Court may
(a) summarily determine the
question in issue between the
Claimants and execution creditor
and make an order accordingly on
such terms as may be just.
(b) order that any issue between
the claimant and execution
creditor be stated and tried and
may direct which of them is to
be plaintiff and which
defendant.
Scope of the applicable rules
Rule 12 requires a claimant to
file his claim by way of notice,
and it also requires the court
to make a determination if the
execution creditor disputes the
claim. It is reasonable to say
that the court cannot make a
determination just by looking at
the notice of claim, it requires
some form of evidence, by
affidavit (if it opts to do a
summary hearing under rule
13(1)(a) or viva voce evidence
if it directs a triable issue
and thus decides to conduct a
full-blown trial in complex
cases, under rule 13(1)(b).
Consequently, the court is duty
bound to have regard to both the
notice and affidavit of interest
filed by a claimant in making a
determination of his claim.
Thus, where a claimant fails to
disclose his right to, or
interest in, some property in
the notice of claim but does so
in the affidavit of interest, it
is not a fatal mistake or
omission, and could be cured
applying the provisions of Order
81 of C. I. 47. The reasons are
two-fold: (1) that the judgment
creditor has sufficient notice
and the opportunity to react to
the affidavit of interest by
claimant before the court takes
a decision under rule 13; (2) to
avoid multiplicity of such
claims. Admittedly, it is
advisable for a claimant to
disclose whatever interest he
has in the Notice of Claim to
enable the execution creditor
admit or dispute the claim; yet
failure to do so, as already
stated, is not fatal in the
light of the reasons given
herein. I reject the objection
accordingly and proceed to
consider the claim on its
merits.
Ownership of properties numbered
260 and 267 at Trassaco Valley
The affidavit deposed to by
Siade Puplampu, on behalf of the
companies, affirms the judgment
creditor's position that the
judgment debtor was the owner of
properties numbered 260 and 267,
situated at the Trassaco Valley,
Adjiriganor, Accra. That the
judgment debtor had not at any
time encumbered these properties
prior to his releasing them to
the companies to secure the loan
facility from the UT Bank, 1st
Claimant. I accept this evidence
which affirms the judgment
creditor's position and find as
a fact that the judgment debtor
is the owner of these two
houses, numbered 260 and 267,
Trassaco Valley, Adjiriganor,
Accra. The evidence of Siade
Puplampu also affirms the
judgment debtor's ownership of
House number 327/7, Kpehe,
Accra, and I find this as a
fact.
These findings have been
facilitated by the failure of
the UT Bank to resist the
obvious adverse claim of
interest put in by the Companies
on behalf of the judgment debtor
which he duly authorized as a
director of the companies.
A mortgage deed is by law a
registrable instrument, by
virtue of section 3(2) and (4)
of the Mortgages Act, 1972, NRCD
72. Section 3 of this Act sets
out what the requirements should
be for the mortgage instrument
to be registrable under the
Lands Registry Act, 1962, (Act
122). Among others, the
requirements are:
(a) the name and address of each
mortgagor and of each mortgagee;
(b) the nature of the
mortgagor's interest in the
property which is mortgaged and
the extent to which that
interest is subject to the
mortgage;
(c) identity of the mortgaged
property by reference to its
location and boundaries ....
As a condition for the release
of the loan, the mortgage deed
required the borrower to produce
to the lender a copy of the
company resolution authorizing
the borrowing, among other
documents. The parties agreed in
the mortgage deed as follows:
“The facility shall become
available for draw down upon
receipt of the following
documents in all respects
satisfactory to UT Bank:
1. Receipt of formal letter of
request for the consolidation of
all the facilities......
3. Execution of legal Mortgage
over two residential properties
at Adjiriganor Trassaco Valley
Residential area...........
7. Receipt of board resolution
authorizing the
consolidation......”
The UT Bank had earlier filed an
affidavit of interest in respect
of this very execution process
and relied on this same mortgage
deed. I must mention that it is
this same mortgage deed that
Anator Holding Company Ltd. and
its subsidiary Anator Quarry Ltd
are relying on per their
affidavit of interest, deposed
to by Siade Puplampu,
Administrative Officer. It was
copied to the Claimant bank and
they were served on 23 November
2018, according to court
Registry records. To my mind it
constituted notice to be heard
on this matter, which was in
their own interest to react to
it, as they are the other
contracting party to the
mortgage, and more importantly
because of the adverse claim to
these two houses. The mortgage
deed is at the center of these
two proceedings wherein the
Claimant bank is the lever on
which they hinge. Consequently,
it behoved the Claimant bank to
tell the court their position in
respect of the affidavit
depositions by Anator companies.
As the apex court wherein
ultimate justice is required to
be done, the court cannot shut
its eyes to such important piece
of evidence which has a direct
bearing on the case on hand,
when its attention has been
drawn to it. Parties have a duty
to assist the court to bring
finality to the matter.
The Bank was joined as the 1st
Claimant whilst the Anator
companies were the second
claimants. And they were a
necessary party since they and
the Anator companies were the
contracting parties to the
mortgage deed. I think they
ought to have been joined as an
interested party and not as
claimant, since a person cannot
be compelled to commence an
action. But this does not amount
to a miscarriage of justice, as
the title could be amended to
reflect their correct position
in the process. What is
important is that they were
served to appear which
invitation they spurned. I fail
to appreciate why they did not
contest the adverse claim by the
judgment debtor.
It is stated for emphasis that
even during execution
proceedings, every person,
whether a party in the original
action or not, but who stands to
be adversely affected by the
execution, must be heard by the
court if he so wishes. That
justifies the Anator Companies’
joinder of the UT Bank as a
party to their notice of claim
since they had mortgaged their
property with the Bank, and the
latter is relying on the same
mortgage deed in its claim
against the judgment creditor.
The court is also able to come
to this conclusion because the
mortgage deed required the
Anator companies, as the
borrower, to present a board
resolution authorizing the
consolidation of the loans.
Besides, it is a legal
requirement under the Mortgages
Act that the deed must state the
mortgagor's interest in the
property as well as its clear
identity and precise location.
Further, since the landed
properties did not belong to
Anator companies as the
borrowers, the consent of the
real owner was required to
support the loan application.
All these relevant pieces of
information which would
facilitate the loan and satisfy
the legal requirements are
contained in the affidavit under
reference. Consequently, any
reference to this affidavit is
legitimate and material as it
relates solely to the mortgage
deed in question.
Is the failure of the UT bank to
take part in the claim by Anator
companies to be construed as an
admission? The legal position,
as stated by the authors of
Phipson on Evidence, 15th
Edition, paragraph 30-09 at page
740, is that “statements made in
a party’s presence in the course
of judicial proceedings are not
generally receivable against him
merely on the ground that he did
not deny them, for the
regularity of such proceedings
prevents the free interpretation
allowed in ordinary
intercourse.”
However, this is not an
invariable rule for, as the
learned authors explained in the
same paragraph, “…..cases may
occur in which the refusal of a
party to repel a charge made in
a court of justice, or to
cross-examine or contradict a
witness or to reply to an
affidavit, may afford a strong
presumption that the imputation
made against him are correct.”
The material depositions made in
the affidavit of Siade Puplampu
on behalf of the Anator
companies are these:
“15. That on 29th October, 2013,
UT Bank granted yet another
facility to Anator Holding
Company Limited as additional
working capital to purchase
equipment for Quarry
operation..........
16. That as security for the
payment of the facilities
granted to Anator Holding
Company Limited, 3rd Defendant
Judgment/Debtor in a Statutory
Declaration agreed and released
the property known as 372/17 off
Comcam Crescent........Accra to
Anator Holding Company Limited
to be used as collateral
security for the loan facility
from UT Bank ...........A copy
of the Statutory Declaration
dated 30th day of October 2013
is annexed as exhibit AHCL 11.
17. That Claimant, UT Bank
Limited (in
receivership).........filed a
witness statement through one
Eric Nana Nipa..............that
the properties belonging to
the.........judgment debtor
attached in execution of the
judgment of this Honourable
Court, to wit: (a) two
residential properties at
Trassaco Valley Phase 2, plots
numbered 260 and 267; (b) Hse
no. 327/7;Kpehe, Accra Newtown,
Accra; (c) moveable assets of
Anator Quarry Company Limited.
18. That on 15th January, 2014,
Anator Holding Company Limited
in a letter captioned
consolation (sic) of loan
facilities for Anator Quarry
Company Limited addressed to the
Managing Director of UT Bank
Ltd., Anator Holding Company
resolved to deal with the loan
facility granted to it and 3rd
Defendant by consolidating all
the loan facilities and transfer
to Anator Quarry Company
Limited. A copy of the letter
together with extract from the
minutes of meetings of the Board
of Directors of Anator Holding
Company held on 3rd January 2014
held at its head office in East
Legon, Accra is hereby attached
as exhibit AHCL 12.
19. That thereafter
the...........judgment debtor in
a Statutory Declaration dated
16th day of January, 2014 agreed
to release and released
properties known as No. 260 and
267 at Trassaco Valley,
Adjiriganor to Anator Quarry
Company to be used as security
for the consolidated loan
facility from UT Bank Ltd.
20. That for all intents and
purposes the 3rd Defendant
ceased to hold any interest in
the above-mentioned properties
so long as the properties remain
in the hands of Anator Quarry
Company Limited. A copy of the
Statutory Declaration dated 16th
January 2014 is hereby attached
and marked as exhibit AHCL 13.”
This affidavit is very revealing
in terms of the dealings between
the Claimant bank and the Anator
companies. It states very
succinctly that the judgment
debtor owns properties numbered
260 and 267 situate at the
Trassaco Valley, inter alia. It
disclosed the course of doing
business between the parties
notably that the borrower
provides a statutory declaration
confirming ownership of the
properties to be secured for the
loan, before the Claimant
releases the facility. Thus, the
Claimant had possession of the
Statutory Declaration, exhibit
ACHL 13 before agreeing to
consolidate the loans.
For its full force and effect, I
will reproduce the judgment
debtor's statutory declaration
dated 16th January 2014. It
reads:
“IN THE SUPERIOR COURT OF
JUDICATURE
HIGH COURT OF JUSTICE, ACCRA.
GHANA. A.D. 2014
STATUTORY DECLARATIONS ACT 389
OF 1971
IN THE MATTER OF STATUTORY
DECLARATION BY ALFRED AGBESI
WOYOME GIVING HIS CONSENT FOR
THE USE OF HIS PROPERTIES, NO.
260 AND 267 AT TRASSACO VALLEY
ADJIRIGANO ACCRA, AS COLLATERAL
SECURITY FOR A CONSOLIDATED LOAN
FACILITY FROM UT BANK.
I, ALFRED AGBESI WOYOME of PMB
100 GPO ACCRA
in the Greater Accra Region of
the Republic of Ghana, do hereby
solemnly and sincerely declare
as follows: -
1. That I am the declarant
herein and a Ghanaian by birth
and Nationality.
2. That I am the owner of
properties known as Plot no. 260
and 267 at Trassaco Valley
Estates Adjirigano, Accra.
3. That I have agreed and
released my said property to
Anator Quarry Company Limited to
be used as collateral security
for the consolidated loan
facility from UT Bank Limited,
Airport City Branch, Accra.
4. That the said property has
not been mortgaged or involved
in any financial transaction
whatsoever and can therefore be
used for its intended purpose.
5. That I shall hold trust for
my said property until such time
Anator Quarry Company Limited is
able to fully liquidate its
repayment obligation to UT Bank
Limited, Airport City Branch,
Accra.
6. That UT Bank Limited is at
liberty to confiscate my
property (ies) should Anator
Quarry Company Limited renege on
its repayment obligations.
7. Wherefore, I make this solemn
declaration conscientiously
believing same to be true and
correct in accordance with
Statutory Declaration Act 389 of
1971.
This statutory declaration which
was given to the 1st Claimant as
collateral exposed the dealings
between the 1st Claimant and the
judgment debtor in respect of
properties numbered 260 and 267.
Even when common sense is
brought to bear on these
dealings, it will dictate that
the 1st Claimant would not
accept their own properties to
be used as collateral by a
borrower to secure a loan from
them. Why then did the Bank not
challenge these affidavit
depositions by the companies?
Their stoic silence, in the face
of all the opportunities they
had to react, raises a very
strong presumption that they had
no answer to offer. The evidence
supports the judgment creditor’s
position that the two houses
were not sold. The court cannot
be used as an instrument of
fraud. In one breadth, the 1st
Claimant is saying the
properties have been sold, and
in another breadth, the judgment
debtor says the properties have
been mortgaged. The aim is clear
to me that whichever story the
court chooses to believe, the
properties are saved. But which
of them was speaking the truth?
None, I find. What the court
believes and is convinced about
is that the properties numbered
260 and 267, situate at Trassaco
Valley were neither sold nor
used as collateral, both claims
were a sham.
Registration and Stamping of
documents
In this matter the mortgage
document suffers from lack of
registration. Indeed section
25(1) of Act 773 specifically
requires, inter alia, the
borrower, in this case the
Companies, to register the deed
within twenty-eight days of its
creation. Section 72 of PNDCL
152 also requires registration
of a mortgage before effect
could be given to it. The
Companies failed to comply with
these statutory provisions.
Thus, for reason of lack of
registration I reject the
mortgage deed as ineffectual to
convey any interest. The
mortgage deed also fails for
lack of stamping under section
32 of Act 689, (as decided in
Lizori Ltd v. Mrs. Boye
(2013-2014) 2 SCGLR 889),
rendering it ineffectual. Thus,
whatever interest the 2nd
Claimants claimed through this
deed has completely failed, I so
hold.
But from the undisputed
evidence, I find as a fact that
the judgment debtor owns house
number 327/7, Kpehe, Accra.
Ownership of the movable assets
The Claimants did not place
reliance solely on the mortgage
documents. They tendered other
evidence to show that the quarry
and its plant and machinery
situate at Mafi Tswala, are
owned by the companies. They
also tendered evidence to show
that the judgment debtor is not
hundred percent owner of these
companies. Indeed, they say he
has transferred all his interest
in the companies to another
person, called Anator Holding
LLC of the USA.
In respect of the movable
assets, namely the quarry plant
and machinery, there is no
dispute that they are owned by
the companies. The bone of
contention is the ownership of
the companies. It is the case of
the judgment/creditor that the
2nd Claimants have stated that
the judgment/debtor owns 100%
shares in the companies, which
enabled him to permit the
companies' assets to be used as
collateral for the loan
facility. It thus lies ill in
their mouth to say the entire
shares have been transferred to
another person.
For their part, the companies
tendered a resolution of the
Board of Directors of Anator
Holding Company approving the
transfer of all the shares in
this company to Anator Holding
LLC of the USA owned by one
Stephen K. Woyome.
This matter is being heard
summarily because parties relied
solely on the affidavit
evidence; Rule 13(1)(a) of Order
44 of C. I. 47 permits this
procedure.
The only question to answer is
this: who owns the shares in
Anator Holding Company Ltd? I
intend to discuss this question
first with regard to the facts
and then on the law. Company law
in this country is largely
governed by the provisions of
the Companies Act, 1963, (Act
179), and to some extent by the
Regulations of a registered
company. I was therefore
expecting counsel in the case to
address the court on whether or
not there was transfer or valid
transfer of shares from the
original owner Alfred Agbesi
Woyome to the new owner Anator
Holding LLC, having regard to
the law and the Regulations of
the Anator Holding Company Ltd.
The facts.
The Board resolution earlier
referred to forms part of
exhibit AHCL 19 and it reads:
“BOARD RESOLUTION
EXTRACT FROM THE MINUTES OF THE
MEETING OF THE BOARD OF
DIRECTORS
The following appears as an
extract from the Minutes of the
meeting of the Board of
Directors of Anator Holding
Company Limited held on Friday,
the 3rd day of January 2014.
100% TRANSFER OF THE ORDINARY
SHARES OF ANATOR HOLDING COMPANY
LIMITED TO ANATOR HOLDING LLC
It was resolved that the Board
of Directors had no objection to
the 100% transfer of the
ordinary shares of Anator
Holding Company Limited to
Anator Holding LLC”
It was signed jointly by the
Executive Board Chairman and
Company Secretary/ Director.
It was on the strength of this
resolution, which on the face of
it was affirming a prior
transaction, that the Companies
are resisting the attachment of
the companies' assets on ground
that the judgment debtor does
not own the companies, and for
that matter their assets.
The judgment creditor appeared
handicapped as they were not
privy to these purely internal
business dealings of the
companies. Hence even though
they insisted that the companies
are still owned by the judgment
debtor, their assertion was not
based on any facts of their own.
But the law permits a party to
rely on any admissible evidence
on the record provided the
person against whom it is used,
has had the opportunity to be
heard thereon. The court will
therefore consider the totality
of the evidence on record in
arriving at its decision.
The Board resolution does not
disclose when and in what manner
and for what consideration the
shares were transferred. I
therefore have to examine the
other documents tendered on
behalf of the companies by Siade
Puplampu. These documents are
contained in the affidavit to
adduce supplementary evidence
filed on 14th June
2019. According to paragraph 4
of the said affidavit, the
documents were obtained through
a search they conducted at the
office of the Registrar-General.
In this country, matters
pertaining to company
registration and related matters
are the core business of the
office of the Registrar-General,
hence the court can safely apply
section 37(1) of the Evidence
Act, 1975, NRCD 323 and conclude
that these documents are
authentic and contain accurate
information in respect of the
Companies as at the date they
bear. These documents are:
(i) the Regulations of Anator
Holding Company Limited, exhibit
1;
(ii) the Regulations of Anator
Quarry Company Limited, exhibit
2;
(iii) Re-registration profile of
Anator Holding Company Limited,
exhibit 3; and finally,
(iv) Re-registration profile of
Anator Quarry Company Limited,
exhibit 4.
Exhibits 1 and 3 have several
common features on one hand and
so do exhibits 2 and 4, on the
other.
In exhibit 1 the following are
listed as the Directors of
Anator Holding Company Limited:
Joseph Tackie, Stephen Kwashie
Woyome, Alfred Agbesi Woyome and
Michael Kofi Amedi. It states
the number of ordinary shares as
400,000,000, all of which are
owned by Alfred Agbesi Woyome,
judgment-debtor herein. It bears
the date 2 June 2014. Exhibit 3
which is the re-registration
profile in respect of this same
company names Joseph Tackie,
Alfred Agbesi Woyome, Stephen
Kwashie Woyome and Michael Kofi
Amedi as the Directors. The
number of ordinary shares also
remained unchanged as well as
the owner. All the 400,000,000
paid up shares stand in the name
of the judgment debtor. It bears
the date 3 January 2019.
It is clear from these exhibits
that even after the Board
resolution which authorized the
transfer of the shares in this
company on 3 January 2014,
nothing has been done to effect
the change, five years down the
line. Exhibits 1 and 3 are both
later in time to the Board
Resolution. If indeed the
transfer had taken place as at 3
January 2014 when the Board
Resolution was passed, the
transfer would have reflected in
the documents tendered as
exhibits 1 to 4, which they got
from the Registrar- General. And
as earlier stated, there is no
evidence as to when and how and
for what consideration these
shares were transferred, prior
to the Board resolution. Thus,
it is safe for the court to find
as a fact that there was no
transfer of shares in Anator
Holding Company Limited owned
100% by Alfred Agbesi Woyome to
Anator Holding LLC.
What of Anator Quarry Company
Limited? Exhibit 2 lists Joseph
Tackie and Alfred Agbesi Woyome
as the two Directors. It states
that all the shares in this
company are owned by Anator
Holding Company Limited. It
bears the date 4th
June 2014. In exhibit 4 the
owner of all paid up shares
remains the same as in exhibit
2. But the named Directors are
increased to four with the
addition of Stephen Kwashie
Woyome and Michael Kofi Amedi.
It bears the date 3rd
January 2019. The same
conclusion is reached in the
instance as ownership has never
changed hands. All its shares
are owned by the parent company.
The applicable law.
Company shares are movable
assets, and their ownership is
required to be documented. They
cannot therefore be transferred
orally, neither can they be
validly transferred without a
record of it in the company's
register. The transfer is to be
entered at the office of the
Registrar-General. The latter is
involved because a transfer of
shares will of necessity involve
a rectification or amendment of
the company's regulations to
include the transferee of the
shares, after the company has
registered the transfer and
issued share certificate to the
transferee; and these changes
are to reflect in the company's
profile at the office of the
Registrar-General.
The legal requirements are
contained in the Companies’
regulations, exhibits 1 and 3
and more importantly in Act 179;
sections 30, 32, 53 and 98.
For their full force and effect,
I reproduce the material
portions of these provisions of
Act 179 at this stage:
Section 30
(4) In the case of a company
with shares each member shall be
a shareholder 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
provision in the Regulations, or
until the member dies.
Section 32
(1) Every company shall keep in
Ghana a register of its members
and shall enter therein the
following particulars, that is
to say:
(a) the names and addresses of
its members and, in the case of
a company having shares, a
statement of the shares held by
each member distinguishing each
share by a number so long as the
share has a number, and of the
amount paid or agreed to be
considered as paid on the shares
of each member and of the
amount, if any, remaining
payable on such shares;
(b) the date on which each
person was entered in the
register as a member;
(c) the date on which any person
ceased to be a member.
(2) The entry required under
paragraph (a) or (b) of
subsection 1 of this section
shall be made within
twenty-eight days of the
conclusion of the agreement with
the company to become a member
or, in the case of a subscriber,
within twenty-eight days of the
registration of the company.
(3) The entry required under
paragraph (c) of subsection 1 of
this section shall be made
within twenty-eight days of the
date when the person concerned
ceased to be a
member..............
Section 53 Issue of share
certificate
(1) Every company shall, within
two months after the issue of
any of its shares or after the
registration of the transfer of
any share, deliver to the
registered holder thereof a
certificate under the common
seal of the company, stating
(a) the number and class of
shares held by him, and the
definitive numbers thereof, if
any;
(b) the amount paid on such
shares and the amount, of any,
remaining unpaid;
(c) the name and address of the
registered holder.
These provisions in addition to
section 98(2) provide the
requirements and what steps to
follow in creating a valid
transfer of shares. An agreement
is reached between the
transferor and transferee on the
number of shares and what
consideration to pay. These
terms must be reduced into
writing, called an instrument.
This is communicated to the
company which must approve. The
company then registers the
shares transfer in its register.
It then issues a share
certificate to the new holder.
These particulars are then
notified to the
Registrar-General for approval
and entry into the official
records, aptly described by the
then Acting Registrar-General,
Mrs. Jemima Oware, as validation
and consummation of the process
of transfer of shares, by her
office. This was in an interview
she granted the Editor of Joy
Business on 30 September 2016,
published by Myjoyonline.com/Joy
Business. She explained in
detail all the legal
requirements for transferring
shares.
The procedure here is no
different from the English
practice. In the case of LYLE
AND SCOTT LTD. V. SCOTT'S
TRUSTEES (1959) 2 All ER 661 at
668 HL, also reported in
(1959) AC 763 at 778, Lord
Reid said that “transferring a
share involves a series of
steps, first an agreement to
sell, then the execution of a
deed of transfer and finally the
registration of the transfer.”
Thus, transferring a share is
not one-time event, but it is a
process.
Proof of transfer
The 2nd Claimants appeared to
have overlooked the relevance
and importance of the company's
register and a shares
certificate in proof of transfer
of shares. The relevance and
importance of the company's
register is stated in Section 36
of Act 179 which provides that
“the register of members shall
be prima facie evidence of any
matters by this code directed or
authorized to be inserted
therein.”
The relevance and importance of
a share certificate is stated in
section 54(1) of Act 179. It
provides that 'Statements made
in a share certificate under the
common seal of the company shall
be prima facie evidence of the
title to the shares of the
person named therein as the
registered holder and of the
amounts paid and payable
thereon'
These provisions provide the
best evidence of transfer of
shares that a company can
produce in court, besides the
instrument of transfer.
Effect of lack of contract of
transfer
Section 98(2) provides a
ready-made answer. It reads
thus: Notwithstanding anything
contained in the Regulations of
a company or in any contract, it
shall not be lawful for the
company to register a transfer
of shares.....unless a proper
instrument of transfer duly
stamped, if chargeable to stamp
duty, has been delivered to the
company.
The register and share
certificate provide prima facie
evidence of what they state,
thereby shifting the burden of
proof on the other party to
rebut the evidence. And without
an agreement, it is illegal to
register a transfer of shares.
Analysis
In this case it is certain that
there was no written contract to
transfer the shares, no
consideration was provided, no
share certificate was issued.
And once there was no instrument
of transfer of shares, there
could legally not be any
registration of the shares to
the transferee in the company's
register. Consequently, there
could be no notification of the
transfer to the
Registrar-General, hence
exhibits 1 to 4 do not reflect
any such transfer. The Board
Resolution approving the
transfer, has no probative value
standing on its own, I so hold.
The result is that on grounds of
law there has been no transfer
of the shares in Anator Holding
Company Limited to Anator
Holding LLC. By law, viz,
section 98(1) of Act 179, the
judgment debtor remains the
holder of all the shares in
Anator Holding Company Limited,
and by operation of law, the
owner of the shares in Anator
Quarry Company Limited as well.
Conclusion
From the foregoing, I am able to
decide that both on the facts
and the law, there has been no
transfer of shares of the
companies. Consequently, since
the judgment debtor owns these
companies 100% and since the
assets of the companies are
unencumbered, the mortgage
having failed, I order the
execution process to go on in
respect of House number 327/7,
Kpehe, Accra as well as the
plant and machinery including
the quarry situate at Mafi
Tswala. I dismiss the
application accordingly.
(SGD) A.A.
BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
A. A. ACKUAKU JUNIOR FOR THE 1ST
CLAIMANT WITH HIM GODFRED ANIM
NYARKO
AGYEI LARTEY FOR 2ND
CLAIMANT
OSAFO BUABENG FOR 3RD DEFENDANT/JUDGEMENT
/ DEBTOR WITH HIM
BENEDICTA ANTWI.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY GENERAL FOR 1ST
DEFENDANT/JUDGEMENT /CREDITOR
WITH HIM MRS HELEN ZIWU
(SOLICITOR GENERAL) MRS STELLA
BADU, (C.S.A), MS YVONNE
BANNERMAN, (S.S.A) AND MRS
AURIELLE ASARE BOATENG, (A.S.A).
|
