TATIANA BOYA v. MARIO DE CATALDO & Other
2024
SUPREME COURT
GHANA
CORAM
- BAFFOE-BONNIE JSC (PRESIDING)
- OWUSU (MS.) JSC
- KULENDI JSC
- ACKAH-YENSU (MS.) JSC
- ASIEDU JSC
Areas of Law
- Corporate Law
- Evidence Law
- Civil Procedure
2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Kulendi JSC, allowed a second appeal by the Plaintiff against concurrent decisions of the High Court and Court of Appeal concerning Cottage Italia Industries (Gh) Ltd. The Plaintiff asserted she was director and majority shareholder based on transfer deeds from December 2006 and June 2010, and sought recognition and protection against unilateral actions by the 1st Defendant, an Italy-resident director who allegedly siphoned company funds. The 1st Defendant admitted executing the transfers but claimed they were a facade for immigration and political insulation due to perceived NDC/NPP political dynamics, and alleged a collateral trust arrangement. Applying the Evidence Act and Companies Act, the Court held documentary admissions conclusively established the Plaintiff’s status, found non-registration and consideration objections immaterial inter partes, rejected reliance on misrepresentation as a defense, and granted declarations of 59% shareholding, injunctions against unilateral dealings, and an accounting order, with costs against the 1st Defendant.
KULENDI JSC:
INTRODUCTION
1. For the purposes of convenience, the parties in this Appeal shall retain their original
designations as Plaintiff, 1st Defendant and 2nd Defendant, as the case may be.
The instant appeal is at the instance of the Plaintiff. The Plaintiff is contesting the
concurrent judgment of the Court of Appeal dated 30th September, 2013 by which the learned Justices of the Court of Appeal upheld a judgment of the High Court
which dismissed the Plaintiff’s claim of beneficial interest as a shareholder in the
2nd Defendant.
BACKGROUND
2. The antecedent contention which necessitated the disputations before the High
Court and as can be gleaned from the respective pleadings of the parties are as
follows:
3. The Plaintiff by an Amended Writ of Summons and Statement of Claim filed on the
25th January, 2013 averred that she is the Managing Director, majority shareholder
and the registered secretary to the board of directors of the 2nd Defendant
Company. She contends that at all times material, she was cohabiting with the 1st
Defendant whilst also managing and in charge of the local running of the 2nd
Defendant, including arranging for contracts in Ghana, the African region and
related business transactions. According to the Plaintiff, the 1st Defendant, on the
other hand, was resident in Italy and supplied goods ordered by 2nd Defendant
while also visiting Ghana from time to time.
4. Per a deed of transfer dated 13th December, 2006 and stamped as LVB 5440A/9,
1st Defendant transferred 3,134,734.400 of 2nd Defendant’s shares valued at GH¢
31,347,344 to the Plaintiff. On 8th June, 2010, per another deed of transfer, 1st
Defendant transferred to the Plaintiff an additional 153,601.99 shares of 2nd
Defendant valued at GH¢ 153,601.99 out of 1st Defendant’s shares. This made the
Plaintiff the majority shareholder of 2nd Defendant.
5. The Plaintiff alleges that despite the on-going business of the 2nd Defendant and
the proceeds accrued thereto, the bank accounts of the 2nd Defendant was always
near empty as 1st Defendant regularly transferred all monies to his home country,
Italy, where he is ordinarily resident. Objections raised to the money siphoning by
the 1st Defendant went unheeded. Frustrated, Plaintiff in September 2011 asked
that all assets of the 2nd Defendant be shared between the parties. 1st Defendant aggrieved by Plaintiff’s request, demanded for all title documents covering the
assets of 2nd Defendant.