Edem Affram & Another -vrs- Bernard Yaw Owusu -twumasi & Another [2021] GHACA 5 (29 April 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - S. DZAMEFE, JA (PRESIDING) L. L. MENSAH, JA OBENG-MANU JNR JA Civil Appeal Suit No: H1/24/20/20 29TH APRIL, 2021 1. EDEM AFFRAM - PLAINTIFF/RESPONDENT 313 TRASACCO VALLEY ADJIRINGANOR, ACCRA 2. NANA OBOUR-NIMAKO H/NO 302, LOMNAVA SOWUTUOM, ACCRA VRS. 1. BERNARD YAW OWUSU-TWUMASI - DEFENDANTS/APPELLANTS 2. OAK HOUSE COMPANY LTD 3. OAK HOUSE GROUP LTD BOTH OF H/NO. 302, NORTH KANESHIE OFANKOR, ACCRA JUDGMENT DZAMEFE, JA This is an appeal from the judgment of the High Court Accra, dated 21st January 2019. The plaintiff/respondent hereinafter simply referred as the plaintiff issued this writ against the defendant/appellant also referred to as the defendant at the High Court for the following claims: a. A declaration that plaintiff is a shareholder of 2nd defendant company. b. A declaration that plaintiff holds forty-five (45%) shares in 2nd defendant company. c. A declaration that any purported change in the shareholding structure of 2nd defendant company is void and of no legal effect. d. An order directed at 1st defendant to render accounts for the said land acquired for their common use. e. Cost including legal costs. f. Any other orders that the court may deem fit. The plaintiff in his accompanying statement of claim averred that he is a Ghanaian ordinarily resident in Ghana and the United Kingdom and a director and majority shareholder of the 2nd defendant company. That the 1st defendant is a shareholder and the directing mind of 2nd defendant company a company registered under the laws of Ghana and engaged in, among other businesses, such as private investigation. 3rd defendant is a company registered under the laws of Ghana and engaged in among other business, the businesses of debt recovery and Credit Assessment and Reporting. It is the plaintiffs’ case that sometime in November, 2004 he and the 1st defendant, as friends, incorporated 2nd defendant company with he as majority shareholder owning 43% shares, 1st defendant owning 25%, Nana Obuor-Nimako owning 25% shares and Kwaku Dziedzorm Kuenyehia (later to be known as Kimathi Kuenyehia) owing 7% shares. Plaintiff says at all material times he was resident in the UK and was initially communicating constantly with the 1st defendant in respect to the upkeep and running of the 2nd defendant company. Plaintiff avers that due to circumstances beyond his control he was unable to come to Ghana and therefore had to rely on 1st defendant for information regarding the running of the 2nd defendant company. It is his contention that 1st defendant used his absence and inability to come to Ghana as an excuse to alienate him from the running of the 2nd defendant company. That 1st defendant constantly refused plaintiffs persistent requests for information and data on the affairs of 2nd company and 1st defendant deliberately refused him access to the Board of Directors as well. Plaintiff contends further that 1st defendant’s attitude towards him changed from their normal friendly conversation to a very combative and confrontational style. That the 1st defendant started making excuses to avoid communication with him and eventually ended all communication with him. Plaintiff avers further that due to his absence from Ghana, the 1st defendant managed the day-to-day affairs of the 2nd defendant company and for all these times that he did, no dividends have been paid to him although the 1st defendant at all material times knew his whereabouts. That he, the plaintiff has never received any notice to attend any meeting of the company or any documents concerning the affairs and operations of the 2nd defendant company. Plaintiff said sometime in 2014, he discovered that 1st defendant had caused a re- registration to be done of 2nd defendant company and he discovered that through the re- registration 1st defendant fraudulently altered the shareholding structure of 2nd defendant company to affect his shareholding without his knowledge. He listed the particulars of the fraud as follows: a. That unknown to plaintiff, 1st defendant without following due process fraudulently removed plaintiff as director of 2nd defendant company. b. 1st defendant has fraudulently altered the shareholding structure of the company to remove plaintiffs as a shareholder without following due process. c. That according to the new shareholding structure, plaintiff is mysteriously no longer a director or shareholder of 2nd defendant company. d. That 1st defendant fraudulently transferred plaintiff’s shares to 1st defendant without his consent and or due process. Wherefore the plaintiff claims against the defendants jointly and severally as follows; - a. A declaration that plaintiff is a shareholder of 2nd Defendant Company. b. A declaration that plaintiff holds forty-three percent (43%) shares in 2nd Defendant Company. c. A declaration that any purported change in the shareholding structure of 2nd Defendant Company is void and of no legal effect. d. A declaration that 1st defendant’s action of altering the shareholding structure of 2nd Defendant Company without following due process was fraudulent. e. A further declaration that the transfer of the shares and assets of 2nd Defendant Company to Oak House Group Limited by 1st defendant is void and of no effect. f. An order of accounts into the books and finances of 2nd Defendant Company from incorporation until date of judgment. g. An order directed at 1st defendant to render accounts for the said lands acquired for their common use. h. Costs including solicitor’s fees. i. Any other reliefs that the court may deem fit. STATEMENT OF DEFENCE In his statement of defence, 1st defendant averred that 2nd defendant company is engaged in the sole business of private investigations, incorporated by 1st defendant, 1st plaintiff as well as two others. It is the defendant’s case that due to their deep friendship he and the plaintiff’s relationship has never been governed by written instructions, notifications and decisions. They have always relied and acted on ‚word of mouth‛ and utmost good faith. 1st defendant avers that he executed the registration of the 2nd defendant company with four shareholders. The 1st plaintiff was allotted 43% shares, 1st defendant having 25%, 2nd plaintiff had 25% shares and 7% offered to one Kimathi Kuenyehia. That at all material times during the application and registration of the 2nd defendant company 1st plaintiff was resident in the UK and due to their relationship, he 1st defendant had to sign 1st plaintiff’s column of signatures on the registration documents, an act which 1st plaintiff was fully aware of and agreed to. 1st defendant avers further that, the number of shares issued to the 1st plaintiff was entirely at his discretion and he signed for the 1st plaintiff without any formal instruction or instrument authorizing the 1st defendant to do same. That he allotted 43% shares to the 1st plaintiff purely based on the relationship between them and also to enable the two of them hold the majority of the shares together. It is the 1st defendant’s contention that he and the 1st plaintiff have been business partners since year 2000 and between them have formed several companies including the 2nd defendant company. The first of the companies was Cedem Travel Services with each of them holding 50% shares. Also, Concorde Security Company incorporated in the UK. The shares of Concorde were held in trust for the 1st plaintiff and 1st defendant by one Ruby Amoh and the third company is the 2nd defendant company. Others are Cedem Construction and Supply Limited and Business Express Limited. 1st defendant avers further that in course of time, Cedem Travel Services became less lucrative so they both decided to use funds accumulated from Cedem to buy lands for real estate in Ghana. Also, some funds from Cedem were transferred to 1st plaintiff to incorporate Concorde Security Company. 1st plaintiff being an illegal immigrant then in the UK and 1st defendant resident in Ghana, both of them agreed to entrust the shares of Concorde to the said Ruby Amoh as mentioned earlier Cedem company then wound up without any due process and the offices sub-letted. It is his contention that due to the success of Concorde in the UK, they both decided to set up a security company in Ghana to carry out the business of private investigations, hence the incorporation of the 2nd defendant company. According to the 1st defendant, 2nd defendant company was not doing well as expected so they decided to form Business Express Limited, a courier company to support the 2nd defendant company hence the incorporation of Business Express Limited. Applying the same informalities, they both are used to, he allotted shares to the 1st plaintiff without him signing any documents. He said Business Express could not survive to salvage the 2nd defendant company and Business Express was wound up. The 1st defendant says at a point in time in 2006 the 1st plaintiff suggested to the 1st defendant that shares in Concorde Security held by Ruby Amoh in trust for them be transferred to his wife but this he rejected saying it can only be done on condition that 1st plaintiff’s said wife held same in trust for both of them. He explained further that he objected to the idea of the shares going to the 1st plaintiff’s wife because she had triple identity. She was known as Akosua Foriwaa Agyekum, Dela Affram and Dela Gray coupled with the fact that she had in concert with 1st plaintiff perpetrated a fake marriage with fake identity to defraud the Registrar of Marriages in Ghana, the British High Commission and the British Immigration Service in the United Kingdom. 1st defendant said further that he once witnessed a marriage ceremony between the lady and one Roland Anyomisi Gray, a British Citizen, believing she was the 1st plaintiff’s biological sister only to realize she was rather the wife. He the 1st defendant even signed the witness column of the marriage certificate dated 4th July 2006, only to find out later that the said marriage to Roland Gray was to circumvent the immigration laws of the UK. It is the case of the 1st defendant that following his opposition to the 1st plaintiff’s request coupled with the challenges of the 2nd defendant company, 1st plaintiff suggested he was taking over full ownership of Concorde Security Company in the UK and that the 1st defendant should also take full control of the 2nd defendant Company in Ghana. This proposal was not written but by word of mouth. 1st defendant avers that he reluctantly agreed to the 1st plaintiff’s proposal. Both of them effected the relevant changes to the shareholding structure of Concorde Security Company and 2nd defendant company respectively. The 1st defendant subsequently acquired the shares of 2nd plaintiff after he (2nd plaintiff) had written to the Board of the 2nd defendant company for the refund of his capital contribution to the 2nd defendant company.1st Defendant consequently became the majority shareholder of 2nd Defendant Company with 93% of the issued shares - [ paragraph 27 page 117 ROA] 1st defendant avers further that following the sharing of the two companies between the two of them, the relationship between them became ‚on & off‛. His telephone calls to 1st plaintiff were neither answered nor returned and by the year 2010, communication between the two of them had altogether ceased. That thereafter, the 1st plaintiff never showed any interest nor participated in the running and management of the 2nd defendant company and therefore would not know its directors. It is the 1st defendant’s case that the 1st plaintiff since 2010 had visited Ghana at least once every year but never bothered to visit 2nd defendant company to acquaint himself with the key employees and operations and also to familiarize himself with the Board of Directors. This attitude of 1st plaintiff, according to 1st defendant is his admission of the fact that he has no interest in the 2nd defendant company. 1st defendant further states that as recent as 2013 & 2014 the 1st plaintiff visited him in his house and office to break the stalemate between them and was heartily received. The 1st plaintiff throughout their conversation never raised any issue regarding the 2nd defendant company but just general conversation. The 1st defendant said that visit gave the 1st plaintiff the opportunity to enquire about the Board of Directors, senior management and strategy of 2nd defendant company but he failed to do so. 1st defendant denies the 1st plaintiffs assertion that monies generated through the operations of Cedem Travel and Tours and 1st plaintiff’s personal money were used to set up the 2nd defendant company. That 2nd defendant company since its incorporation has not been successful but the 1st defendant being a Lawyer by Profession and a Financier was successful in other ventures hence 1st plaintiff’s envy and this suit. That the 1st plaintiff wants to reap where he has not sown. It is the defendant’s submission that the 1st plaintiff ceased to be a member of the 2nd defendant company when his proposal to relinquish his interest in 2nd defendant to the 1st defendant was accepted and therefore in so doing he has lost his right to act as a director or appoint same to attend shareholder’s meetings or be served notices of any kind just as he 1st defendant has also lost similar rights in Concorde Security Company without any due process as agreed between the plaintiffs and the 1st defendant. In answer to 1st plaintiff’s allegation of re-registration of 2nd defendant company, 1st defendant said it was done as a result of a Government directive and not just by him. He denied any allegation of fraud attributed to him in the statement of claim by 1st plaintiff and that he and the directors of the 2nd defendant company followed due process in dealings with the 2nd defendant company. It is 1st defendant’s case that at the time of the separation, Concorde was doing so well which enabled 1st plaintiff acquire landed properties in the UK and Trassacco valley in Accra, Ghana. 1st defendant avers also that at the time the 3rd defendant company was registered 1st plaintiff had no shares in the 2nd defendant company. Further that, 1st plaintiff is not a shareholder of 2nd defendant company since he has long relinquished his shares in the company. The 1st defendant further avers that out of the proceeds from Cedem Travel Services, they both decided to acquire eight (8) plots of land at Adjiringano, East Legon which same was acquired. Based on their friendship and trust, all those lands were acquired in his name but in trust for both of them. Due to some litigation which they encountered on the land, they both agreed to sell four plots of the land and also agreed the 1st defendant used the proceeds to roof his building under construction since 1st plaintiff had acquired a house for himself in the UK. Both of them bought double plots each and a further three (3) plots for both of them from which the 1st plaintiff gave a plot to one to one of his employees in the UK who is developing same now. They realized later that their vendor was involved in double sale and so could not transfer clear title to both of them. They lost the other plots of land through this which resulted into a law suit against the vendor Margret Abbey for which he had judgment but are faced with challenges in enforcing the said judgment. It also his case that the 2nd plaintiff had no hand in the incorporation and formation of 2nd defendant company because he was then a police officer in active service. Further the 2nd plaintiff using his personal car to attend 2nd defendant’s meetings as director or shareholder was not anything out of the ordinary just as he and other directors did. That he and 2nd plaintiff approved and convinced Nana Owusu Nsiah to join the 2nd defendant Company. Furthermore, he, (1st defendant) through one Dr. Kwabena Duffuor approached Mr. Peter Nanfuri (Former IGP) to join 2nd defendant company but never through the effort of the 2nd plaintiff as alleged. The 1st defendant says further that the total amount of money contributed by 2nd plaintiff to 2nd defendant company was Gh¢2000 representing 20% and additional 5% equity shares given to him to make it 25% total shares. He said the 2nd plaintiff on his own wrote to the Chairman of the Board of 2nd defendant Company requesting for refund of his capital contribution in the 2nd defendant company and also resigned as a director. The board agreed to his request and he was fully paid Gh¢3000. That 2nd plaintiff then executed a Deed of Transfer of shares, ceding his shares back to the 2nd defendant company, which was duly stamped at the Lands Valuation Board with the knowledge of the other directors of the 2nd defendant company in the persons of Messrs. Peter Nanfuri, William Panford Bray and Joseph Boye Clottey. That the 2nd plaintiff on his own volition resigned from the 2nd defendant company, nobody prevented him from attending meetings of 2nd defendant company. Wherefore 1st defendant says the plaintiffs are not entitled to their claims as they have no basis in law or equity and same be dismissed in limina. ISSUES FOR TRIAL 1. Whether or not the 1st plaintiff is a shareholder of 2nd defendant company. 2. Whether or not the 1st plaintiff owns 43% shares in 2nd defendant company. 3. Whether or not plaintiff at various stages remitted money to 2nd defendant company through 1st defendant for the running of the 2nd defendant company. 4. Whether or not 1st defendant can unilaterally divest 1st plaintiff of his shareholding in the 2nd defendant company without following due process. 5. Whether or not 1st defendant can on his own volition and without the strict procedure under the Company’s Act, Act 179 alter the shareholding of the 2nd defendant. 6. Whether or not 1st defendant committed fraud when he altered the shareholding structure of the 2nd defendant company to affect the shareholding of 1st plaintiff without due process. 7. Whether or not the removal of 1st plaintiff as a director of 2nd defendant by 1st defendant is valid in law. 8. Whether or not any asset held and controlled by the said Oak House Group Ltd is being held in constructive trust for the 2nd defendant. 9. Whether or not 1st defendant used £10,000 which 1st plaintiff remitted to 1st defendant to purchase ten plots of land, for the common use of 1st plaintiff and the 1st defendant. 10. Whether or not 1st defendant has used part of the land and sold the remainder for his personal use and without giving any of the parcels of the land to the plaintiff. JUDGMENT The trial High Court combined issues 1,2 &3 together as to the shareholding structure of 2nd defendant company. The High Court said there is evidence undisputed that 1st plaintiff had 43%, 2nd plaintiff 25%, 1st defendant 25% and the remaining 7% to Kimathi Kuenyehia. The trial judge however rejected the evidence from the 1st defendant that he gave the 43% to 1st plaintiff gratis saying ‚by Section 36 of the Companies Act, Act 179, the Register of members shall be prima facie evidence of matters stated therein and exhibit ‚A‛ at the time of incorporation notices (sic) that 1st plaintiff had been issued 43,000,000 shares and with Section 42 and 45 of Act 179 requiring that shares shall be paid for by members in cash, I proceed on the presumption of omnia praesumuntur rite esse acta solemnitur rule under Section 37 of the Evidence Act, NRCD 323. That is the presumption of regularity as far as the performance and compliance with the requirement of the Act 179 was concerned and that 1st plaintiff fully paid for his shares but not an act of grace from 1st defendant that was extended to 1st plaintiff. That the Registrar General would not have issued exhibit ‚A‛ if he was not satisfied that the requirement for payment of shares in cash under Act 179 had not been complied with [page 428 ROA]. The learned trial judge said ‚1st defendant made this assertion without any evidence to back same‛- [page 429 of ROA] The trial judge found that there is overwhelming evidence on record that shows that 1st plaintiff (Edem Affram) contributed immensely in both (sic) cash and kind towards the incorporation of 2nd defendant company and was its colossus financier. The court found that 1st plaintiff legitimately acquired 43% shares and paid for same and that his acquisition of the shares in 2nd defendant was not an act of kindness or favour for 1st defendant at all - [page 431 ROA] As to the act of removal of 1st plaintiff as director and shareholder of 2nd defendant company, the trial court referred to Section 30(5) of the Company’s Act 179 which states as follows; - ‚Membership of a company with shares shall continue until a valid transfer of all the shares held by the member in 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 registration, or until the member dies‛. [page 432 ROA] The trial court however made no finding on this issue. It said the 1st defendant explained the situation in his evidence by saying that it was eventually agreed between them that 1st plaintiff will take the Concorde Security in the UK while he 1st defendant also assume ownership of 2nd defendant company in Ghana. This is the explanation provided by the 1st defendant as to how 1st plaintiff became divested of his shares in 2nd defendant – [page 433 ROA]. The trial court dismissed the claim that the funding of Concorde Security emanating from Cedem Travels and said it remained a wild allegation with no substance to back it. According to the trial court, it came to this conclusion because there was no evidence of the financial viability of Cedem Travel and Tours failed to show the extent of its financial success. No evidence in the form of a declaration of dividend by Cedem Travel and Tours was filed. Finally, no evidence of a resolution that any dividend realized from Cedem was to be used to fund Concorde Security. - [page 435 ROA] On the issue of share transfers in Oak House Company by the 1st plaintiff to the 1st defendant, the trial court held that ‚1st defendant cannot transfer the shares of a shareholder to himself and sign on behalf of the that shareholder and himself as transferor and transferee in the face of strong claim by 1st plaintiff that he never gave such instructions. It is for 1st defendant to prove that 1st plaintiff gave him such instructions‛- [Page 442 of ROA] The trial court also held that 1st defendant in transferring the plaintiffs shares in Oak House into his own name and also removing 1st plaintiffs name as a director of the company is fraudulent. That the 1st plaintiff succeeds on his claim of fraud against the 1st defendant - [page 445 ROA]. Based on the holding above, the trial court cancelled the deed of transfer of shares by 1st defendant in 2nd defendant company to 3rd defendant company and ordered those shares back to the 2nd defendant company - [page 446 ROA]. The trial court further ordered the preparation of financial statements of 2nd and 3rd defendant companies and all their financial dealings since incorporation. The court said so because there was no evidence before it showing its profit and loss account. That there is no evidence before the court that the 1st defendant has run 2nd defendant company as a company but as his personal property. The court further ordered stock to be taken of all the assets including those that have been dissipated and for a total valuation of the 2nd and 3rd defendants to be known. The court said it is when this is done that the true financial position and the value of both companies will be known from the shares of 1st plaintiff that was dishonestly appropriated from 2nd defendant company to 3rd defendant company can be reverted as nothing can stand on fraud and not fall - [page 446 ROA] LANDS The 1st plaintiff alleged he went for a bank loan of Ten Thousand British Pounds sterling (£10,000) sent to 1st defendant for the purchase of 10 plots of land at Adjiriganor, East Legon, Accra. 1st defendant said 8 plots were acquired using the resources from Cedem Travel Services but agreed he held the lands in trust for both of them. The trial court held ‚though plaintiff did not show any statement of a loan taken or a remittance made to the 1st defendant, I am more likely to disbelieve the funds coming from Cedem Travel Services as the evidence as found is that the 1st plaintiff was the financier and the ‚guy with the money‛ - [page 448-9 of ROA] The court held further that exhibit ‚16‛ the court documents on some land litigation was not in respect of the 10.5 plots of land but for the cost of the 31/2 plots 1st defendant sought to recover. At the end the court ordered the 1st plaintiff to recover from the 1st defendant the value of 5 plots of land from the 1st defendant as per the valuation report, exhibit ‚J‛ - [page 451 ROA]. 2nd Plaintiff: - The court held that the purported transfer or sale of the shares of 2nd plaintiff was void as not having complied with the law even though he wrote for a refund of his capital – [page 454 ROA]. The court ordered the 2nd plaintiff to pay back any money he received together with interest to the 2nd defendant company after account has been taken of the 2nd defendant company since its inception to date. The trial court said ‚in conclusion, plaintiffs succeed in their claims save for the order 1st plaintiff sought for the shares of 3rd defendant to be held in constructive trust which has been varied. I have also further ordered 1st defendant to return the passport of the wife of 1st plaintiff in his custody which he has been using to blackmail 1st plaintiff‛- [ Page 454 ROA]. Cost of Gh¢40,000 was awarded against the 1st defendant. The 1st defendant was dissatisfied with this judgment hence this appeal. GROUNDS OF APPEAL 1. The trial court erred in law when it granted 1st plaintiff, the relief of the recovery of USD950.000.00 being the alleged value of five (5) plots of land at Adjiriganor, Accra and which said relief had not been endorsed on 1st plaintiff’s writ of summons. 2. The trial court erred in law when it held that 2nd plaintiff is still a shareholder of 2nd defendant despite the voluntary transfer of shares and recovery of capital contribution subscription by the 2nd plaintiff. 3. The trial court erred in law and fact when it held that 1st plaintiff is still a shareholder of 2nd defendant. 4. The award of Gh¢40,000 as costs in favour of the 1st plaintiff against the 1st defendant in harsh and excessive in the circumstances. 5. The judgment is against weight of evidence. 6. Further grounds of appeal will be filled upon receipt of the Record of proceedings. Relief sought: The part of the judgment as set out above be set aside against the appellant. SUBMISSIONS Counsel for the appellant in his submission said 1st plaintiff and 1st defendant were at all times material to this suit well acquainted with one another at a very personal level. This relationship between them was quite fraternal. The fraternal relationship between 1st plaintiff and 1st defendant apart, they also had a business relationship. This resulted in the establishment of businesses operated through registered corporate entities. One of the corporate institutions so established by 1st plaintiff and 1st defendant is a private security company in the United Kingdom known as Concorde Security Ltd. The shares of this company were held in trust for and on their behalf by a certain Ruby Amoh who is 1st plaintiff’s auntie. Counsel submits that both parties were in the UK when Concorde was incorporated. When 1st defendant returned to Ghana the 2nd defendant company was established. Counsel said because of the fraternal relationship between both parties, 2nd defendant company was not established by any formal deed or agreement between 1st plaintiff and 1st defendant. Upon establishment however, their business relationship was regulated by the statutory rules for the operation of corporate entities. Counsel submits it is important to reiterate the fact that the relationship between 1st plaintiff and 1st defendant was to a great extent carried out with informality hence 1st defendant signed relevant portions of 2nd defendant incorporation documents required to be signed by 1st plaintiff for and on his behalf without any formal authorization such as a power of attorney. Counsel contends that despite the shareholding structure of 2nd defendant company, it was 1st defendant who had absolute control and discretion with regards to its operations. 1st defendant managed 2nd defendant business singularly and was indeed its alter ego and directing mind. That 1st defendant’s total control of 2nd defendant’s businesses was with 1st plaintiff’s approval and consent. It is his submission that at a point both 1st plaintiff and 1st defendant came to an agreement that 1st plaintiff maintain absolute control and management of Concorde Security Ltd in the UK, whereas 1st defendant continue to exercise absolute control and discretion over 2nd defendant in Ghana. Further they agreed 1st plaintiff will relinquish his shares in 2nd defendant to 1st defendant. This agreement was documented and a share transfer agreement executed between 1st plaintiff and 1st defendant by which 1st plaintiff transferred his shares in 2nd defendant to 1st defendant. It is his case that in this case as well, 1st defendant signed for both of them, that is as transferor and transferee as done in the incorporation. Counsel posited that it is established that the shares, the subject matter of the transaction were acquired by 1st plaintiff in the same way they were transferred to 1st defendant. GROUND 1 That the trial High Court erred in law when it held that the acquisition of 2nd plaintiffs shares by 2nd defendant itself is void. In the particulars of the error of law, counsel for the appellant submits that contrary to the conclusion reached by the court below, a company can acquire its own shares upon a voluntary transfer of the shares by the existing holder to the company itself. He contends that irregularities in the manner in which the shares of a company are transferred only render the transfer voidable and not void ab initio as held by the trial court. 3. The court below delivered itself on this point; - ‚…The monies paid 2nd plaintiff from the face of exhibit ‘5’ was a cheque of 2nd defendant company. That means no one bought the shares of 2nd plaintiff but the second 2nd defendant paid for it. There is also no evidence that a share certificate has been issued in compliance with Section 53 of Act 179 to anyone. Section 56(d) prohibits this kind of transaction when it states that; 1. Except as hereinafter mentioned, a company shall not (d) Acquire, by way of purchase or otherwise, any of these issued shares or any shares of its holding company‛ 4. The court below explained that; ‚the exceptions made under the law are, (1) when the company limited by shares converts to a company limited by guarantee. (2) where under Section 59, there is issuance of preference shares, (3) where there is voluntary transfer to it or nominees of it, may purchase its shares where there is a credit balance on the share deals account. Indeed, the law void such transactions. There is no evidence that 1st defendant was the one who purchased the shares because the money did not come from his personal account. In the end I am bound by section 56 of Act 179 and declare any purported transfer or sale of share of 2nd plaintiff void as not having complied with the law even though he wrote for a refund of his capital‛. Consequent upon the above finding, the court below ordered ‚2nd plaintiff to pay any amount he received together with interest back to the company‛ *2nd defendant] The holding by the court below, reproduced above can be reduced to two main propositions; - i. Section 56(d) of Act 179 forbids a company from acquiring shares from an existing shareholder. ii. By law a company cannot acquire its own shares upon a voluntary transfer of the shares held by an existing holder to the company itself. Counsel contends that this conclusion by the trial court cannot be supported by the law, particularly the Companies Act, 1963 (Act 179) because a company can acquire its own shares upon a voluntary transfer of the shares by its existing holder to the company itself. Counsel submits the general position of the law on the sale and acquisition of shares is that, a company is prohibited from acquiring its own shares. This is provided is Section 56(1) (c) and (d) of Act 179. The Section states: - ‚Except as provided in this section, a company shall not: - (c) Provide a financial assistance, directly or indirectly for the subscription or purchase of its shares or the shares of its holding company, or (d) acquire, by way of purchase or otherwise, any of its issued shares or any shares of its holding company‛. He posited that despite this general prohibition Act 179 provides exceptions to the rule. Section 59 of Act 179 detail the circumstances upon which a company may acquire its own shares. Section 59 (1) (c) of the Act. headed ‚Acquisition by company of its own shares‛ states: - ‚Despite Section 56, a company may, if authorized by its regulations and subject to compliance with Section 60-63, (c) Acquire its own shares by a voluntary transfer to it or to nominees for it. Counsel contends that a reading of Section 59 will leave the court in no doubt whatsoever that a company may acquire its own shares upon a ‚voluntary transfer‛ of the shares to it by any person including its shareholders. The shares so voluntarily transferred to the company by the shareholder may then be purchased by the company with its funds. Counsel submits that the evidence on record is that 2nd plaintiff was not unduly pressured nor coerced to transfer his shares to 2nd defendant. That 2nd plaintiff willingly divested himself of his shares in 2nd defendant and for reimbursement of his capital. The evidence before this court on this issue is that by a letter dated September 28, 2007, - Exhibit ‚4‛ addressed to the 2nd defendant’s Board Chairman, Peter Nanfuri (The IGP) 2nd plaintiff demanded his capital contribution and resigned as one of the 2nd defendant’s directors. 2nd plaintiff Nana Obour-Nimako was a police officer of the Ghana Police Service and also once a shareholder and director of 2nd defendant Company. He is a retired Assistant Commissioner of Police. He served the Police Service for 35 years and retired on 23rd July 2007. In his cross examination he stated he was a founding member and director of the 2nd defendant Company, Oak House. He served the 2nd defendant company as director with others directors like Mr. Peter Nanfuri and Nana Owusu Nsiah, both former Inspectors General of Police (IGP) of Ghana. He said 1st defendant was also a director of 2nd defendant company. His evidence is that when the company was formed it had no office so all meetings were held in his house until the company secured an office at the Trust Towers, Accra. It is his case that after the 2nd defendant company was inaugurated without his knowledge, the 1st defendant told him his educational qualification is low and therefore could not hold any office in the company so should resign. According to him, he informed Nana Owusu Nsiah who also told him he had advised him but did not take it, so he had to resign. The 2nd plaintiff did admit he authored exhibit ‘8’ which is headed ‚Resignation from the Board of Directors of Oak House Company Ltd‛ which he signed – [page 320 of ROA]. The following cross examination of the 2nd plaintiff by the Counsel for the defendants speaks for itself; - Q - This signature was signed by yourself willingly, is that correct A Q A Q A Q - - - - - - Yes, my lord – [page 320 ROA] Shortly after the resignation you wrote a later dated 28th September 2007 to the chairman of the company Mr. Peter Nanfuri demanding from the company, the contribution you made, which made you a member of the company. Yes, it is correct Exhibit 4 attached …. is a letter you signed, requesting for your capital contribution of Gh¢20 million at the time, now Gh¢2000 Yes, my lord This letter was addressed to the chairman and fellow director Mr. Nanfuri A - Yes, my lord From the evidence, the resignation letter and that demanding the refund were addressed to the chairman of the Board and not 1st defendant. Pursuant to that exhibit ‚4‛, on the 16th of October 2007, the 2nd plaintiff was paid the sum of Gh¢30,000. The following will attest to that fact. Q - Please take a look at exhibit 5, it is a Unibank cheque bearing your name, is that not, correct? A Q - - It is correct So not only were you refunded your capital contribution but you were paid an extra sum of thousand Ghana cedis, is that correct. A - It’s not correct At this point, it was clear the witness was not being truthful to the court. The cheque he admitted taking bore the sum of Gh¢3000 yet he denied being paid Gh¢3000. This dents the credibility of the 2nd plaintiff. We should not lose sight of the fact that this is a plaintiff who is alleging and therefore must prove and not the other way round since the defendants filed no counterclaim. A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true, and he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred. Failure of which the assertion is not true‛ – Memuna Amoudy vs. Kofi Antwi [2006] 2 MLG 183 (CA). The 2nd plaintiff alleged he was still a shareholder in the 2nd defendant company because the Barclays Bank called and told him they are still using his signature. He however failed to lead any evidence to establish that allegation. He failed to call any witness from Barclays Bank nor any report to confirm his allegation. In exhibit 8, 2nd plaintiff himself wrote ‚I also therefore cease to be a signatory to all the bank accounts and this he admitted‛. There are a plethora of authorities in our law that a party whose pleading raises an issue essential to the success of the case assumes the burden of proving such an issue, it was incumbent on the party to have produced admissible and credible evidence so as to avoid a ruling against him and the absence of that proof will attract or earn such a ruling. – see Ababio vrs Akwasi II [1994/5] GBR III 174 It is the case of the 2nd plaintiff that he was forced or coerced by the 1st defendant to resign from the company. This was vehemently denied by the 1st defendant. It was therefore incumbent on 2nd plaintiff to call further evidence to prove this averment which was denied by the 1st defendant. See also the following cases; - 1. Majolagbe vrs. Larbi & Ors [1959] GLR 190 2. Faroe Atlantic vrs. AG [2006] 1 GMLR 1 3. Segbedzi vrs. Zabrama [1998] 2 GLR 221 (CA) A party who alleges must establish the assertion especially when the opponent denies same. Based on the admission so far made by the 2nd plaintiff, it is clear to this court that there was a valid transfer of 2nd plaintiff’s shares in the company. It was voluntary. The documentary evidence before the court pertaining to the transfer of 2nd plaintiff’s shares differs from his oral evidence before the court. In such circumstances, we are admonished to lean favourably towards the documentary evidence. i. Hayford vrs. Egyire [1984-6] GLR 682 ii. Ofori Agyekum vs. Akua Bio - Unreported Civil Appeal No. JA/59/2014 dated 13th April, 2016 (CA) The common law position is that he who asserts a matter must prove it, but he who denies it need not disprove. – ‚ei qui affirmat, ‘non ei qui negat, incumbit probatio‛ – see Fynhout Production Limited vs. Kwayie Manor [1971] 1 GLR. Section 14 of NRCD 323 buttresses this point that a party has the burden of persuasion as to each fact’s existence or non-existence to the claim or defence of the party asserting – Bank of West Africa Limited vs. Ackum [1963] 1 GLR 176. Generally, the plaintiff in civil suit is required to produce sufficient evidence to make out his claim on a preponderance of probabilities as defined in Section 12 (2) of the Evidence Act [1973[ (NRCD) 323. In assessing the balance of probabilities all the evidence be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the most possible of the rival versions and is deserving of a favourable verdict. – Takoradi Floor Mills vs. Samir Farms [2005/6] SCGLR 882. This court is not debarred however from coming to its own conclusions on the facts and where a judgment has been appealed from on the ground of the weight of evidence, the appellate court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shirking from overruling it if on full consideration it comes to the conclusion that the judgment was wrong. – Kofi vs. Kamansah [1884-6] 1 GLR 116 at 121 (CA). According to Section 14 of the Evidence Act, 1975 (NRCD 323) he who alleges must prove. Section 11 (1) & (4) of NRCD 323 is also to the effect that the duty or burden of producing evidence is on the party against whom a ruling on the issue would be given if he failed to lead sufficient evidence. The effect of Sections 11-14 of the Evidence Act was summed up by Brobbey JSC in the case of In Re Ashalley Botwe Lands: Adjetey Agbosu & Ors vrs Kotey & Ano [2003/4] SC GLR 420 at 425 as follows; - ‚The effect of Section 11 (1) & (14) and similar sections in the Evidence Decree 1975 may be described as follows; - A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he had no such fact or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose‛ This position of the law was re-affirmed by the Supreme Court per Sophia Adiniyira JSC in the case of Ackah-vrs Pergah Transport Ltd & Ors [2011] 31 GMJ 174 thus ‚it is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issues that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of act such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of fact is more probable than its non-existence. This is the requirement of law on evidence under Section 10(1) and 2 & 11(1) & (4) of the Evidence Act 1975 NRCD 323.‛ This court is of the view that the 2nd appellant failed to lead positive and cogent evidence to establish his assertion that he was coerced into resigning from the company as held by the trial court. He voluntarily resigned from the company and demanded his refund which was duly paid to him, and we so hold. The next question to consider is whether the 2nd defendant company can buy 2nd plaintiff’s share. Before we attempt to answer this question, I will like to remind all that, at the time the instant appeal was instituted, the new Companies Act 2019, Act 992 was not promulgated into law and therefore the case was tried under the old Act, 179, 1963. In company law practice, private companies can decide to purchase their own shares from shareholders. A common situation is when an existing shareholder wants to sell some or all of his shares and the other shareholders are unwilling or unable to purchase them. In the instant appeal, it is uncontroverted that 2nd plaintiff voluntarily wrote to the chairman of the company to transfer his shares and since no other shareholder showed any interest in buying same, the company agreed and decided to purchase same, which is allowed. From the evidence before this court, it is the company that bought his shares and paid him, then a cheque issued on Unibank and not by 1st defendant personally. Thereafter he ceased to be a shareholder and a director of the company as required by he himself. These pieces of evidence on 2nd plaintiff’s withdrawal and transfer of his shares were corroborated by the Board Members of the 2nd defendant company particularly by the chairman Peter Nanfuri, Joseph Boye Clottey in their witness statements and 1st defendant in his evidence in court. The trial High Court in this issue held that Section 56 (a) of Act 179 forbids a company from acquiring shares from an existing shareholder and also by law a company cannot acquire its own shares upon a voluntary transfer of the shares held by an existing holder to the company itself. Section 56 (c) and (d) of Act 179 gives the exceptions to the rule relied on by the trial Judge. It states: - ‚Except as provided in that section, a company shall not; c. Provide a financial assistance, directly or indirectly for the subscription or purchase of the shares or the shares of its holding company or d. Acquire by way of purchase or otherwise, any of its issued shares or any share of its ……….‛ With all due respect to the learned trial Judge, there are exceptions to the rule but which he failed to take into consideration. Section 59 of Act 179 details the circumstances upon which a company may acquire its own shares. Section 59 (1) (c) of Act 179 states: 58(1) Despite Section 56, a company may, if authorized by its regulation and subject to compliance with Section 60 and 63. (c) Acquire its own shares by a voluntary transfer to it or to nominees for it. There is no evidence on record from the 2nd plaintiff that the 2nd defendant company failed to follow the law as prescribed from acquiring its own shares. As said earlier, its uncontroverted that the 2nd plaintiff voluntarily transferred his shares back to the company and the company did a buyback. A company may acquire its own shares upon a voluntary transfer of the shares to it by any person including its shareholder as in the instant appeal. There is no evidence before this court that the 2nd plaintiff was unduly pressured or coerced to transfer his shares to the 2nd defendant. He willingly resigned from the Board of 2nd defendant and divested himself of his shares in 2nd defendant and asked for refund of his capital. See Exhibit ‘8’. It was incumbent on 2nd plaintiff to provide credible evidence to buttress his allegations of coercion which he woefully failed to do, and thus failed to establish his assertions. 2nd plaintiff alleged he reported the alleged duress to a fellow director Mr. Owusu Nsiah who he said advised him on it but he failed to call Owusu Nsiah to corroborate this assertion. This is tantamount to failure to call a material witness and therefore fatal to the success of his case. The law is settled that a material witness whose evidence would have assisted the court immeasurably if not called clearly dealt a big blow to the parties’ alleging’s case. See: - i. ii. Oppong vs. Anarfi [2011]1 SCGLR 556 per Akoto Bamfo JSC Abed Nortey vs. African Institute of Journalism [2013-14] 1 SCGLR 698 The trial court said there were no minutes of any meeting by the Board in compliance of Section 177 of Act 179 where a decision was taken to purchase 2nd plaintiff’s shares. The court held ‚in the evidence, I am bound by Section 56 of Act 179 and declare any purported transfer or sale of the shares of 2nd plaintiff void or not having complied with the law even though he wrote for a refund of his capital” (emphasis mine). With all respect to the learned Judge, since the trial court itself held that the 2nd plaintiff voluntarily wrote for resignation and refund of his capital, Exhibits ‘4’ and ‘5’, in the absence of a Board meeting minutes the company’s compliance with his request even if it flouts the Act, does not make the transfer void ab initio but voidable. Granted that 2nd plaintiff’s shares were acquired by 2nd defendant in contravention of Section 56 (1) (d), the said acquisition is only voidable under Section 56 (4) (i) (6) (ii) which may only be set aside upon timeous intervention. I dare say Section 56 (4) (i) is meant to protect innocent and genuine purchases and sellers of share without knowledge of the breach by the company. 2nd plaintiff with the greatest respect is a founder, director and a shareholder of the 2nd defendant company. He was in management and should know better. Did he find out whether there was any breach when he collected the ¢3,000 Unibank cheque for his shares? The law aids the diligent and not the indolent. He joined this case in 2016, that is 9 years after he collected his capital and now complaining he was coerced to resign. He could even resign as a director but still keep his shares intact in the company but he chose to transfer same and be paid which was what happened. He wrote Exhibit ‚8‛. Justice is fairness. With the greatest respect to the learned trial Judge, that order pertaining to 2nd plaintiff is unfair and unjustifiable and same cannot be sustained. 2nd plaintiff himself set the process into motion by a voluntary surrender and therefore fall within the exceptions to Sections 56 of Act 179. Did he inquire whether there was a Board meeting when he took the cheque? The trial court’s order that 2nd plaintiff to pay any amount he received together with interest back to the company after account has been taken of the 2nd defendant since its inception to date to know how the affairs including the finance of 2nd defendant had been managed over the years is difficult to understand. 2nd plaintiff resigned in 2007 and received his share capital of ¢3000. This case was instituted in 2015, eight years after 2nd plaintiff collected his money. The trial court in its order never specified the mode in which 2nd plaintiff was to calculate the interest of the ¢3000 paid him in 2007. It is to be calculated as bank interest? That order of the trial High Court is unjustified and unfair. 2nd plaintiff cannot eat his cake and still have it. He opted to pull out of the company and had a ¢1000 dividend paid in addition to his capital of ¢2000. Assuming the company had collapsed or gone bankrupt and was to be liquidated since it’s a limited liability company, was he going to accept any liability? No. In the same vein, if it is the others who held or made the company profitable, why will the court order him to pay back his ¢3000 and may be get ¢100,000 after 9 years? This court is of the view that the order by the trial High Court was wrong and unfair, and unjustifiable. That ground of appeal succeeds and the order of the High Court is hereby set aside. Ground 2: That the trial court erred in law when it held that a transfer of shares acquired by 2nd defendant to 1st defendant is void because no share certificate had been issued to 1st defendant in accordance with the provisions of section 53 of the Companies Act 1965, Act 179. The trial court in the judgment held: ‚The monies paid 2nd plaintiff from the face of Exhibit 5 was a cheque of 2nd defendant company. That means, no one bought the shares of 2nd plaintiff but 2nd defendant paid for it. There is also no evidence that a share certificate has been issued in compliance with Section 53 of Act 179 to anyone‛ – [page 453 ROA] The trial court held further that there is no evidence that 1st defendant was the one who purchased the shares because the money did not come from his personal account – [Page 454 of ROA]. It is counsel’s submission that the existence of share certificate is not a condition sine qua non to the validity or otherwise of the acquisition of a company’s shares. A share certificate merely raises a rebuttable presumption of ownership and not conclusive of ownership of shares. This, counsel said, is evident from Section 54 of Act 179 which provides: - 54, Effect of Share Certificates: ‚(1) Statements made in a share certificate under the common seal of the company are prima facie evidence of the title to the shares of the person named in the certificate.‛ Counsel referred this court to the Supreme Court case of Adehyeman Garden Limited & Anor vrs. Assibey [2003-2005] 1 GLR 391 to buttress his point. The apex court in that case speaking through Her Ladyship Akuffo JSC (as she then was) held: - ‚Moreover, under Section 54 of Act 179, the function of a share certificate is to serve as ‚prima facie evidence of the title to the shares of the person named therein‛. This means that other evidence may be adduced by a person claiming to be a shareholder to establish this shareholding. Therefore, the mere fact that a person claiming to be a shareholder of a company has not been issued with any share certificate is not material to that person’s legal status as a member and shareholder‛. It is his contention that since there is no denial that 1st defendant acquired 2nd defendant’s shares, as per Exhibit ‚D‛ (page 211 ROA), there is no rule of law which vitiates the acquisition on the ground that 2nd defendant was not issued with a share certificate to prove the acquisition. 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 amendments 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 – Martin Alamisi Amidu vrs The Attorney General etc. [2019] DL SC 6497 per Benin JSC. The apex court in Amidu (supra) held the procedure for the valid transfer of shares provides the requirement of an agreement 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 transferred 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. Counsel submits that per exhibit ‘D’, it is uncontroverted that 2nd plaintiff had transferred his 25% shares in 2nd defendant to 1st defendant. He said a reading of Exhibit ‚D‛ which is 2nd defendant’s regulations, show that 1st defendant holds 93% shares in 2nd defendant which includes the shares previously held by 2nd plaintiff. Exhibit ‚D‛ was tendered by the 1st plaintiff himself and this was admitted into evidence by the court. It was not controverted nor objected to as obtained fraudulently and therefore this court takes it as the true state of affairs then at the trial. This is an official document, a certified true copy coming from the Registrar General’s Department and more so, tendered by the plaintiff. The law is clear such official documents are presumed to be the true state of affairs until proven otherwise. Until the contrary is proved, exhibit ‘D’ is deemed to be prima facie evidence that the procedures were duly complied with, approved as such by the Registrar General and entered into its official records. The justice to be dispensed by courts is justice within the law and not one on sympathy. Judicial sympathy however plausible, can never be elevated to become a principle of law – Frimpong & Anor. vrs. Nyarko [1988/89] SCGLR 734 per Wiredu JSC (as he then was). Furthermore, the function of a court in a civil suit at common law is to decide cases on the evidence that the parties themselves think fit to call before it. – Addai vrs. Donkor [1972] 1 GLR 209 – CA. That being the case, the fact that a share certificate was not issued to the 1st defendant is not material to his legal status as a member and shareholder per the Supreme Court holding in Adehyeman (supra). That ground of appeal succeeds. Ground 3: That the trial court erred in law when it ordered the recovery of the value of the five (5) plots of land from 1st defendant as per the valuation report. It is counsel’s contention that the trial Judge erred by ordering the recovery of the value of the five (5) plots of the land from the 1st defendant per 1st plaintiff’s valuation report. Counsel submits that the 1st plaintiff never claimed this relief and the court has no jurisdiction to grant reliefs to which the court believes the party is entitled but which the party did not claim. Counsel contends that in the amended writ of summons, 1st plaintiff prayed the court for an order directed at 1st defendant to render accounts for the said lands acquired for their common use. Counsel buttressed his point with the Supreme Court ruling per Baffoe Bonnie JSC that “A Judge who makes an order for a relief that was not sought can be held to have exercised a jurisdictional irregularity‛ – see Nyamaah vrs. Amponsah [2009] SCGLR 362. Counsel submits that the issue before the court to determine was about accounts but which relief the trial court abandoned even though it was not struck out. It is counsel’s contention that the grant by the trial court to 1st plaintiff of a relief not claimed by 1st plaintiff, offends a cardinal rule of our jurisprudence. The rule states; ‚a court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that which the party himself puts forward, whether he be the plaintiff or the defendant. This acceptance in favour of a party of a case different from and inconsistent with that which he himself has put forward in his writ and pleadings has been consistently held to be unjustifiable and fundamentally wrong.‛ See Dam vrs. Addo [1962] 2 GLR 200 Counsel for the appellant in his submission stated that; - The court’s jurisdiction is invoked by the writ of summons and statement of claim. The case and reliefs sought by a party in court are set out in these processes. Pleadings constitute the basis of the claim of a party and specifies the reliefs the party seeks. Pleadings are therefore as binding on the parties as they are on the court. This is the effect of the decision of the Supreme Court in the case of Hannah Kwarteng (substituted by Kwadwo Oppong) vrs. Adwoa Tiwaa & Adwoa Fosuaa (substituted by Diana Mensah) [2017/18] 1 SC 595. In the case just cited, the Supreme Court speaking through Gbadegbe JSC held that: - ‚It is an elementary rule of law that in actions commenced by writ, parties file their pleadings and are bound by their pleadings and would not be permitted to set up a case contrary to and inconsistent with their pleadings. Pleadings bind not only the parties but the court itself and its influence on the case prevails throughout the proceedings from the trial court to the final court‛. See: - J. K. Agyarbeng & 62 Others vrs SG – SSB [2015/16] 2 SC GLR 1612 Counsel submit that the discernible rule of law from the cases just cited is that, where a party makes a claim for a particular remedy, in the absence of an alternative claim, the court cannot grant him an alternative relief or a relief which is not expressly claimed for by the party but which the court believes is better suited for the party. To do so implies that the court is substituting for a party a relief not claimed by the party with that which the party expressly claims. Counsel submits further that the valuation report which the trial court took in consideration reflected the value of another land situate at Adjirigano and not the actual land for which 1st plaintiff sought accounts. Statement of claim number ‘g’, states ‚An order directed at 1st defendant to render accounts for the said lands acquired for their common use‛ - [page of 53 ROA]. 1st plaintiff in his witness statement paragraph 51 stated: - “1st defendant and I had agreed to purchase some parcels of land at Adjirigano to share equally. As a result, I took a loan of £10,000 from a bank in the UK and remitted same to the 1st defendant for the acquisition of the land” – [page 196 ROA]. Paragraph 52 – 1st defendant later informed me that he had acquired ten (10) plots of land measuring 100 feet by 70 feet each at Adjirigano near the Islamic University and opposite Trassaco valley. Paragraph 53 – later on when I demanded from the 1st defendant to send me documents for my share of the said ten (10) plots, 1st defendant narrated a story about how two (2) of the said plots of land had been forcibly taken by a Nigerian man. Even though I had my reservations about the story, I had no means of verifying it and therefore agreed to accept the new figure of eight (8) plots which were to be shared equally between the 1st defendant and I. Paragraph 54 – Initially, 1st defendant informed me that he acquired the said lands in our joint names. Unknown to me however, 1st defendant acquired the lands in his sole name contrary to the agreement I had with 1st defendant. I found out the land had been purchased in the sole name of 1st defendant when he finally sent me a copy of a site plan for one plot of one measuring 100 feet by 70 feet more or less Paragraph 55 – When I demanded further that the 1st defendant should give my share of the now 8 plots, 1st defendant now came up with another story claiming that 4 plots of the said land had been embroiled in litigation and he had lost those 4 plots. He later claimed that I had told him to sell the remaining plots which according him were the only ones unencumbered and to use the proceeds to complete his personal house. Paragraph 56 – 1st defendant made this claim of 4 plots of land for his personal use because I said since I had already acquired my personal house in the United Kingdom, he should also use the proceeds of the 4 plots to complete his personal house Paragraph 57 – I vehemently deny that I greed that 1st defendant should sell 4 plots of land and use the proceeds thereof to complete his personal house because I had acquired my own house in the United Kingdom. This story is a complete fabrication because I bought my house in the United Kingdom in September 2007, six whole years after 1st defendant claims I consented to the sale of four plots of land to roof 1st defendant’s building because I had acquired a house in the United Kingdom. Attached and marked exhibit ‚L‛ is evidence of my house which I purchased in the UK. Paragraph 58 – My lord, I will say that I am entitled to 5 plots of the 10 plots of land that the 1st defendant purchased for our common use since the 1st defendant has appropriated all the said lands to himself. I am asking this honourable court to award me the current market value of the 5 plots of land in the area where the said plots of land were purchased. According to the evidence before us, from 1st plaintiff’s witness statement, he used to send money from the UK to 1st defendant by money transfers and through friends and acquaintances – [paragraph 11 – 13 page 192]. The learned trial Judge in the judgment held; ‚though plaintiff did not show any statement of a loan taken or a remittance made to 1st defendant, I am more likely to disbelieve the funds coming from Cedem Travel Services as the evidence as found is that 1st plaintiff was the financier and the guy with the money‛ – [page 448-9]. The general principle of law is that it is the duty of a plaintiff to prove his case, that is he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when in a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins; if not, he loses on that particular issue. There are a plethora of authorities that proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way for example by producing document, description of things, reference to the facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses, he proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers was true – see; i. ii. Ababio vs. Akwasi III (supra) Khoury & Ano. vs. Richter [1958] WACA iii. Majolagbe v Larbi & 2 Ors [1959] GLR 190 – Ollenu J. The 1st plaintiff case is that the took a loan of £10,000 from a bank in the UK which he remitted to 1st defendant to purchase those lands. This assertion the 1st defendant denied in his statement, that though he bought the lands for both of them and keeping them in trust for both of them, the source of funding was different. The burden therefore shifted unto the 1st plaintiff to lead evidence to establish he took that loan and remitted same to 1st defendant for the purpose of purchasing those lands. 1st plaintiff in his witness statement said he transferred monies on several occasions to 1st defendant through money transfers, through friends and acquaintances. 1st plaintiff woefully failed to tender any document from the transfer company in the UK to confirm his assertion. His explanation is that he went to the company but was told it was over six (6) years so all evidence on the transfer were destroyed as done in the UK. He also failed to call any of the friends and acquaintances to testify to confirm his alleged transfers. The trial court itself held as a matter of fact that the 1st plaintiff did not show any evidence of a loan taken or a remittance made to the 1st defendant – [Page 448 ROA]. With this finding by the trial High Court, we wonder why the learned Judge decided to believe the 1st plaintiff that he in fact made those transfers to 1st defendant. He said though there is no evidence of those remittances, ‚the evidence as found is that 1st plaintiff was the financier and the guy with the money.‛ – [Page 448-9 ROA]. With all due respect to the trial Judge, the 1st plaintiff could be the financier and the guy with the money but unfortunately, in this instance, he failed to lead any cogent and positive evidence as required by law to establish his assertion that he took £10,000 and transferred same to the 1st defendant to purchase their lands. The rule of the game of civil litigation is evidence. Once that evidence is not legally established then the assertion on that particular issue by the party is not established. After all you cannot put something on nothing and expect it to stand. His explanation that the transfer company cannot find their receipts is unacceptable because he could have produced his own copies of transfer receipts given him by the company. The trial Judge’s conclusion on the issue was not formed out of the evidence before him. Further, the claim is for 1st defendant to account for the lands he bought at Adjirigano. The defendant tendered exhibits 14 – 18 to establish that he indeed bought the lands, though from different source of funding and the problems encountered after the purchase. He tendered receipts from the vendor, Margaret Abbey, the documents on the issues in court and the judgments he obtained. 1st defendant even testified that one of such plots he bought, the 1st plaintiff himself gave one out to one of his Concorde, UK, employees who is developing same as at the time of the trial. I guess this satisfies the claim to render accounts of those lands. The trial High Court in its judgment ordered that ‚1st plaintiff to recover from 1st defendant the value of five (5) plots of land from 1st defendant as per the valuation report.‛. The valuation report was tendered as Exhibit ‚J‛. This was a valuation report ordered by the 1st plaintiff and prepared for him by a valuation company by name Bernicon Surveys – [page 224 of ROA]. Before the commencement of the trial, the 1st plaintiff listed all his documents in the ‚Notice of Discovery of Documents‛. The documents he will rely on in the trial is listed [page 177-8 ROA]. i. A copy of the regulations of the 2nd defendant company) Oak House Company Limited. ii. A copy of the passport of one Akosua Fonwaa Agyekum. iii. A copy of the certificate of marriage between one Dela Affram and Roland Anyormisi Gray. iv. A copy of the letter 28th September, 2007 written by the 2nd plaintiff (Nana Obuor Nimako) to the chairman of the Board of Directors of the 2nd Defendant Company requesting or his capital contribution to be returned. v. A copy of a Unibank cheque with the face value of Gh¢3,000 dated 16th October, 2007 and payable to Nana Obuor-Nimako. vi. A statement of Account of the 2nd defendant company in respect of account number:0210101812418. vii. A copy of the letter of resignation from the Board of Directors of 2nd Defendant Company by 2nd plaintiff. viii. A copy of the letter from 2nd defendant Company of the Branch Manager, Barclays Bank. Achimota Branch, Accra informing the latter of a change of signatory to account number:1294941 ix. A copy of a notarized affidavit of a Private Investigator, Ian Douglas Withers, on the affairs of Concorde Security. x. A copy of a letter from Panacea Solicitors, U. K. Solicitors acting from and on behalf 1st defendant, to DCP Security Services Limited. xi. A copy of a letter from 42 Bedford Row, U. K. Solicitors acting for and on behalf of 1st plaintiff to U. K. Solicitors of 1st defendant. This list never included any valuation report from the plaintiff. However, a valuation report was tendered and admitted into evidence as Exhibit ‘J’ by the *plaintiff. From the record of appeal, the pre-trial check list of 1st and 2nd plaintiff according to Ord 32 r 7A (2) was satisfied [page 227-8 ROA] On documents, the following questions were asked; - 5 (a) Have all orders in relation to discovery been complied with? No such orders have been made (b) if not, what orders are outstanding? None (c) Do you intend to apply for any further orders relating to discovery? No (d) If so, what and when? N/A The valuation report, exhibit ‚J‛, was never listed as one of the documents the plaintiff intends to rely on, however it found its way into the records as exhibit ‘J’. looking at the index page of the record of appeal, number 28 states ‚witness statement of 1st plaintiff Edem Affram with exhibits A-J attached i.e. - [page 190-225 ROA] This court is at a loss as to how exhibit ‘J’ got in as an exhibit since it was not listed in the notice of discovery of documents nor the pre-trial check list. Be it as it may it is tendered into evidence, and marked as exhibit ‘J’. With the greatest respect to the learned trial Judge, this report was generated and tendered by one party and therefore self-serving. The court should have ordered both parties to present their various reports, or ask both parties to appoint one valuer or the court could appoint a valuer suo motu. The court failed to do any of these but decided to rely on the valuation presented by one party. The court failed to have a second opinion but fully accepted in ditto the figures presented by the report as the true cost of lands at Adjirigano. We are not oblivious of the fact that the court is not bound by expert opinions but that it was not fair to accept the 1st plaintiff’s valuation reports tendered hook, line and sinker. The court could have ordered the Land Valuation Division or the Lands Commission or some other land related institution to do an independent job for it for a fair assessment, assuming it was even needed. The essence of the notice of discovery and pre-trial check list of documents was to give fair notice to the party to be aware of the various documents that the opponent will rely on to enable him prepare accordingly. Per the record of appeal, that valuation report was not listed. We guess that was why the 1st defendant never responded nor mentioned that report in his case. We think the court’s order that the 1st plaintiff recovers from 1st defendant the value of five (5) plots of land as per the valuation report was unfair since that report is a self- serving report. The 1st defendant gave accounts of the lands he purchased and what he encountered, litigation in court over some of them and even losing some. In civil cases, all the defendant need do on an issue raised by the plaintiff is to lead evidence to support his case to tilt the scales into his favour on the issue which I guess 1st defendant did. We are of the view that the trial court erred by granting the 1st plaintiff a relief he never asked for in his writ or claims. He asked 1st defendant to render accounts for the lands he bought for them. The court however ordered in favour of 1st plaintiff recovery of the cost of five (5) plots of land from 1st defendant even though 1st defendant rendered account of the lands. That is even assuming he used the alleged £10,000 transferred to him by the 1st plaintiff. Relief not endorsed This court is not oblivious of the fact that under C. I.47 the High Court has authority to make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not (emphasis mine) We think what the law is saying is if a party is entitled to a relief or order which he failed to expressly ask for, the court suo motu can make it up. The emphasis is if the party is entitled to that benefit, for example a party pleads for damages. Even though the party may not ask for any monetary compensation, the court, if the reliefs are established, can award the party that monetary compensation because he is entitled to that benefit. This is what the law envisages. Not when you make an allegation you could not establish. I said earlier the courts are to follow the law and not judicial sympathy. – Butt vrs Chapel Hill Property Ltd & Anor [2003/4] SC GLR 636 – Per Date-Bah, JSC. Even if the trial High Court decided to exercise its own discretion in granting some orders in favour of a party that discretion must not be exercised on wrong or, inadequate materials. If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, this court can interfere to have such orders set aside – Asibey III vrs Ayisi [1973] 1 GLR 102 CA, (ii) Agyei vrs Similao [2012] 1 SC GLR 127. 1st plaintiff could not establish the £10,000 transfer to the 1st defendant to purchase those lands so we believe 1st defendant that the source of funds was not the £10,000. We hold that, the order of the trial court for 1st plaintiff to recover the cost of five (5) plots, when he failed to establish that he financed the purchase and secondly, the value based on his valuation report were not fair nor justifiable. The law is well settled that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court – Takoradi Flour Mills vs. Samir (supra) One may ask why the 1st defendant failed to raise an objection when the valuation report was tendered into evidence? Does that mean he accepted those facts deposed to thereon? The valuation report was attached to the 1st plaintiff’s witness statement. At the case management conference, this valuation report was not objected to. An objection at this stage would not have been proper. The Supreme Court has held in the case of Civil Motion No J5/05/2021 dated 10th February, 2021 entitled The Republic vs High Court (Commercial Division, Accra) Ex Parte Kwabena Duffuor, Attorney- General and 8 Other interested Parties that the trial judge can only admit documents into evidence when the witness tendering same has been sworn on oath in the witness box not at the case management conference when the witness was not present and has not yet been sworn. By this procedure, 1st plaintiff himself will be sworn on oath and cross-examined on his witness statement. Since he did not prepare the valuation report, it was incumbent on him to have called the author who is a material witness to testify and be cross-examined as to how he arrived at those figures. The 1st plaintiff failed to call the author who is a material witness whose testimony will have aided the court to arrive at the good decision. That failure is fatal to his case especially on the prices of the lands. With all due respect to the trial Judge, the 1st defendant denied those averments by the 1st plaintiff. Since 1st defendant filed no counterclaim, he was not under any obligation to call the valuer to testify. That valuer was a material witness for the 1st plaintiff to call The trial court, if it so wished, to rely on the report could have hinted the plaintiff but it failed to do so and by that failure, the court cannot rely on that valuation report in its judgment since it was not proven. That report therefore lacks any evidential value and deserves no weight to be attached to it. There is evidence before us that the 1st defendant after he purchased those lands, informed the 1st plaintiff about them. Paragraph 51 – 57 of the 1st plaintiff’s witness statement which are not controverted is evidence of information and correspondence between 1st plaintiff and 1st defendant on those lands. 1st plaintiff was therefore not in the dark about the issues on those lands purchased. Counsel for the 1st defendant contends that the court suo motu changed the case of the 1st plaintiff as I said earlier. The amended statement of claim ‘g’ was for an order directed at 1st defendant to render accounts for the land acquired for their common use. – [page 53 of ROA] Paragraph 58 of the 1st plaintiff’s witness statement says: - ‚My Lord, I will say that I am entitled to 5, plots of the 10 plots of land the 1st defendant purchased for our common use. Since the 1st defendant has appropriated all the said lands to himself, I am asking this honourable court to award me the current market value of the 5 plots of land in the area where the said plots of land were purchased.‛ Attached as Exhibit ‘M’ is a valuation of a comparable land in the area where 1st defendant purchased the 10 plots of land for 1st their common use – [page 197 of ROA] 1st plaintiff’s claim ‘g’ for accounts to be rendered is different from his request for the court awarding him the cost of five (5) plots he thinks he deserved. There was even no finding by the trial court that the 1st plaintiff is entitled to five (5) plots of the said lands. 1st plaintiff dictated the number of plots he thinks he deserved and also the price for each plot and surprisingly the trial court accepted them and went on to make an order to that effect. The law is that whenever the evidence led on an issue is conflicting, the trial court should make up its mind whether to accept one version or the other but reasons should always be stated for the preference see: In Re Aryeetey (Decd’); Aryeetey vs. Okwabi *1987’8+ 2 GLR 444 – CA In the instant appeal, the trial Judge found as a fact that 1st plaintiff could not prove that he took a loan of £10,000 which he sent to 1st defendant to purchase the lands, a claim denied by 1st defendant. The trial Judge’s only reason he offered for believing the 1st plaintiff’s version was that ‚1st plaintiff was the financier and the guy with the money‛ – [Page 448 – 9 of ROA] We do not think that was good reason enough to believe the 1st plaintiff’s version on the issue of the lands purchased. That ground of appeal succeeds and we hereby set aside that order of the trial High Court. GROUND 4 That the trial court erred when it ordered 1st defendant to return 1ST plaintiff’s wife’s passport to 1st plaintiff. Counsel for the appellant submits that this issue was not claimed by any of the parties to the suit. That the order was made for the benefit of a person who is not a party to the proceedings. Counsel contends that there is no evidence before the court that 1st plaintiff had the wife’s authority to prosecute any claim for the return of her passport to her. 1st plaintiff had no power of attorney so to do. There is no evidence in the proceedings before us establishing as a fact that 1st defendant is keeping 1st plaintiff’s wife’s passport. What we see in Exhibit ‘2’ are the particulars of a page of the 1st plaintiff’s wife’s passport. The trial Judge held that ‚The alleged conduct of the wife of 1st plaintiff was not an issue at all before me and I think the sole purpose for throwing in such matters was to blackmail the 1st plaintiff as if to say ‚well, if you want to pursue me in court for what is legitimately yours, then I will dirty you. That is a conduct unseemly of 1st defendant who claims to be a lawyer and is symptomatic of a desperate man being drowned and prepared to hold on to straw‛ – [page 493 ROA] The court went on, Exhibit ‘2’ and ‘3’ that is the marriage certificate and the page in the passport had no bearing at all on the case and should not have been admitted. That the court exercised its discretion and excluded the two Exhibits, ‘2’ and ‘3’ as inadmissible for being scandalous and irrelevant – [page 494 of ROA]. In fact, there is no evidence led by the 1st plaintiff in the trial as to how the wife’s passport got to the 1st defendant. Yes, we agree with the trial Judge that at the request of a party or the court suo motu, has the discretion to exclude the admission of evidence that shoul0d not by the rules of evidence have been admitted. But then, if the court had the intention of ordering the 1st defendant to return the 1st plaintiff’s wife’s passport to her though it was not a relief but because of the relief ‘i’ that says ‚Any other reliefs the court may deem fit, we wonder why the trial court suo motu rejected the passport page exhibited as Exhibit ‘3’ as scandalous and irrelevant. If the alleged conduct of 1st plaintiff’s wife was not an issue before the court as declared, why order that her passport be returned to her within 7 days? The 1st defendant in his evidence said a lot about a lady Ruby Amoh who at one time was holding Concorde Security Company in London in trust for them because of immigration issues. 1st defendant also stated at a point, 1st defendant wanted them to take the Concorde shares from Ruby Amoh to his wife to hold in trust for them – page 142 paragraph 18. 1st defendant said he proposed that they draft a shareholder’s agreement that both of them had equal shares in Concorde before he will agree to that arrangement but 1st plaintiff refused. 1st defendant said he refused this proposal by the 1st plaintiff because his wife had ‚triple identity‛. She was known variously as Akosua Foriwaa Agyekum, Dela Affram and Dela Gray. 1st defendant in his witness statement said he once accompanied the 1st plaintiff to the Registrar Generals Department to sign as witness to a wedding between this same Dela Gray to one Richard Anyormisi Gray thinking she was 1st plaintiff’s sister, but only to know later that she was in fact 1st plaintiff’s wife. That they contracted that marriage to defraud the British. The 1st defendant said all these and tendered Exhibit ‘2’ and ‘3’ to establish the reasons why 1st plaintiff suggested that he 1st plaintiff was taking over full ownership of Concorde Security Company and that he 1st defendant should also take full ownership of 2nd defendant company – [Page 143 of ROA]. With the greatest respect to the trial Judge, there were relevant issue which would have helped the court to understand the 1st defendant’s allegation that they both agreed to take full control of Concorde and 2nd defendant in UK and Ghana respectively, a very vital issue in this whole suit. Without challenging the court’s discretionary powers, once it decided those issues were scandalous and irrelevant, then it had no business making orders on irrelevant issues such as returning 1st plaintiff’s wife’s passport to her within 7 days. If the court had not rejected those exhibits as irrelevant, it could have sought refuge under relief (i) ‚any other relief to court deems fit‛ to make that order. An appeal against the exercise of the courts discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal - a. Ballmoos vrs Mensah [1984-6] GLR 724 CA b. Agyei vrs Similao [2012] 1 SC GLR 127 c. Blunt vrs Blunt [1943] AC 517 at 518 (HO2) From the evidence before us, there is nothing to show the 1st plaintiff’s wife’s passport is with the 1st defendant and how it got to him. Without that evidence, the trial court erred in making that order. Looking at 1st plaintiff’s witness statement, he himself said his old passport was with 1st plaintiff which he later testified with as Exhibit ‘2’, Legon Police Station – [Page 196 paragraph 46 and 47]. The 1st plaintiff himself never testified nor said anything about the wife’s passport being with the 1st defendant but rather his own old passport. The trial court erred in making that order since there was no evidence before it as to whether 1st defendant had the wife’s passport or not. 1st plaintiff himself spoke about his own passport and not his wife’s. That ground of appeal succeeds and that order for 1st defendant to return 1st plaintiff’s wife’s passport to her is hereby set aside since it was not established. Ground 5 That the 1st defendant fraudulently acquired 1st plaintiff’s shares and also fraudulently, removed him as 2nd defendant’s director. It is the appellant’s contention that the trial court’s finding on the point of fraud is against the weight of evidence. Counsel submits the 1st plaintiff’s pleading of fraud raised no reasonable ground of fraud against the 1st defendant. He said the position of the law is that a party who pleads fraud cannot simply plead the technical word ‚fraud‛ and rest on his oars. The ground alleged must be particularized. Counsel submits further that by the rules, the party pleading fraud must set out the facts, matters and circumstances relied upon to show that the party against whom the fraud is asserted had or was actuated by a fraudulent intention. The fraudulent conduct must be distinctly alleged and subsequently distinctly proved at the trial. 1st plaintiff’s claim, ‘d’ is ‚A declaration that 1st defendant’s action of altering the shareholding structure of 2nd defendant’s company without following due process was fraudulent‛ – paragraph 35 of 1st plaintiff’s witness statement states: - ‚The 1st defendant has displayed greed by fraudulently manipulating everything right from the registration process to eventually assuming control over 2nd defendant. 1st defendant is seeking to reap from shares he does not own. Investing in shares can only be demonstrated in terms of how many shares one owns. To that extent, 1st defendant decided to sow just few seeds and later wanted to harvest more fruits through unlawful deceitful means‛ – [Page 194 of ROA] This is the only thing the 1st plaintiff said as to ‘fraud’ against the 1st defendant in his witness statement. The requirement of Order 11 r 12 of the High Court (Civil Procedure) Rule, 2004, C. I. 47 regarding particulars of fraud is intended to have the acts said to be fraudulent stated fairly and precisely with full particulars to enable the defendant to know the actual case that is made against him in order to respond thereto. From the evidence before us, there are no particulars of the fraud alleged against the 1st defendant to enable him know the actual case that is made against him in order to respond thereto. The law is that where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed – i. Boyefio vs. NTHC Properties Limited [1996/7] SCGLR 531 ii. Tulartey vs. Ababio [1962] 1 GLR 44 – SC Fraud is criminal and therefore the degree of proof is higher, and that is proof beyond reasonable doubts. The party who alleges same is under a legal obligation to particularise the facts of the alleged fraud and then to establish same beyond all reasonable doubts. In the instant appeal, the 1st plaintiff by merely alleging fraud against 1st defendant and not leading any positive nor cogent evidence to establish same had not discharged the burden placed on him. Merely pleading and alleging that the 1st defendant’s conduct was fraudulent, we think is not enough to establish fraud. The evidence before this court is that there was a government directive that all companies must be re-registered for regularization purposes. The 1st defendant explained that in course of complying with that directive and knowing that they have both agreed to take over Concorde and 2nd defendant respectively, he transferred all shares of 1st plaintiff into his name. About Kimathi’s shares, 1st defendant did admit the secretary must have made some mistakes by not writing his name. 1st defendant told the court 1st plaintiff never gave him any instructions to do so but he did based on that belief that he was no longer a shareholder in 2nd defendant. He went further to explain that just as he signed 1st plaintiff’s signature when he was registering 2nd defendant and also allotting him shares and 1st plaintiff never complained but blessed it, in the same manner, he did when he transferred the 43% back to himself, in that belief that he the 1st defendant was fully in control of 2nd defendant. However, good or bad, this explanation may sound, the question the court is interested in is whether it is reasonably probable. That is the defence expected of a party accused of committing a crime. We are of the opinion that even though there was no particularization, the 1st defendant’s explanation is reasonably probable and creates a doubt in our minds and therefore disposes of that allegation of fraud against him. The 1st plaintiff’s pleadings did not disclose any cause of action based on fraud by the 1st defendant, nor has he established fraud against the 1st defendant beyond reasonable doubts as required by law. We believe there are doubts as to whether he had the intent to defraud the 1st plaintiff. This court is not oblivious of the position of the law that even if fraud is not pleaded nor particularized but it is apparent on the face of the record, the court has power to hold so – Joana Nyarko vrs Maxwell Tetteh, J4/27/19 dated 11th December 2019 (unreported) SC per Kotey JSC. In the instant appeal though the particulars were not there, which flouts the procedure, assuming it was established, this court could go ahead to hold there was the intent to defraud. However, we do not think the intent by 1st defendant to defraud 1st plaintiff was established nor was it apparent on the face of the record – Amuzu vrs. Oklikah [1988-9] SC GLR 141. We agree with counsel of the appellant that to accede to the logic and reasoning of the trial court clearly leads to one inevitable conclusion that in the first place, 1st plaintiff was never a shareholder and it would be equally fraudulent for 1st defendant to have signed the regulation at the time of incorporating of 2nd defendant on behalf of 1st plaintiff. The point is that it is the subscriber who signs the regulations and 1st plaintiff having failed to sign the regulation is legally and factually not a subscriber. In the instant appeal, the intent by 1st defendant to defraud 1st plaintiff has not been established beyond reasonable doubt nor was it apparent on the face of the record. That relief is therefore not established. That ground of appeal succeed. In totality, this appeal succeeds and the judgment of the trial High Court and its consequential orders are hereby set aside. SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD L. L. MENSAH (JUSTICE OF APPEAL) SGD OBENG-MANU JNR (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL DR. KWEKU ANUSON WITH YAW KYERE AMPADU FOR PLAINTIFF/RESPONDENTS NANA BOAKYE MENSAH-BONSU FOR DEFENDANT/APPELLANT 55