DAN FOSU POKU v. OLIVER DURST & ANOTHER

TANKO AMADU J.A

(1) There are two substantive appeals arising from the judgment of the High Court (Commercial Division) Accra, dated 17th May 2018. In the two appeals aforesaid, the Plaintiff/Appellant herein and the 2nd Defendant/Appellant have in their respective appeals sought to impeach the judgment of the Trial High Court and have sought the same relief that the said judgment be set aside on the grounds set forth in the respective notices. The two appeals will be dealt with compositely in this judgment. The two Appellants hereinafter be referred to as 1st and 2nd Appellant respectively.

(2) There is another appeal on the record which arose from the ruling of the Trial High Court granting an order for stay of execution of its judgment dated 17th May 2018. That appeal is at the instance of the 1st Defendant/Appellant. For the avoidance of doubt the said appeal is not the subject matter of this judgment not having been referred to at all by counsel for the parties at the time the appeal against the substantive judgment was heard. Conceivably, parties in the substantive appeal did not find it necessary to proceed with the said interlocutory appeal since the substantive was ready for determination.

(3) At the Trial Court, the 1st Appellant had instituted action against the 1st Defendant hereafter referred to as the “Respondent” and the 2nd Appellant on the 4th day of January, 2012. By an Amended Statement of Claim filed on the 2nd day of July, 2013 the 1st Appellant claimed the following reliefs:

i. “A declaration that the 1st Defendant breached his fiduciary duties to the 2nd Defendant Company when he took some equipment belonging to the Company and got Maha to stop servicing of the machinery of the company, as well as unilaterally appropriating the assets of the 2nd Defendant Company and keeping same without accounting to the Board of Directors.

ii. An order for the 1st Defendant to account for the proceeds of the sale of the assets of the 2nd Defendant Company.

iii. An order for the payment of GH¢50,000.00 by the Defendant as compensation to the 2nd Defendant Company for the breach of his fiduciary duties.

iv. An order for the Plaintiff to pay out the 1st Defendant from the Company at a value to be determined by a court expert.

(4) The 1st Appellant asserts that, he is a shareholder and director of the 2nd Appellant Company and has mounted the action for himself and on behalf of all the other members of the company except the Respondent. The 2nd