December 14, 2022
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Trasacco Estates Development Company Limited sued Independence Properties Limited in August 2021 for approximately $19.6 million under a January 2017 contract to design and complete a Hilton Garden Inn in Accra. With overlapping ownership and directors—Ernesto Taricone and Ian David Morris serving in both companies—Independence’s shareholder-director, Dr. Samuel Annor, sought leave to intervene, citing conflicts and inadequate defense, and objected to defense counsel’s capacity. The High Court found merit in the objection but ordered ratification, which was done; Annor appealed and sought a stay. When the trial judge ruled on stay before the motion was moved, Annor petitioned the Supreme Court for certiorari. The Supreme Court concluded the irregularity was not a fundamental error, found no breach of natural justice, emphasized inherent jurisdiction and proper certiorari grounds, dismissed the application, and directed the case back to the High Court for expeditious trial.
DOTSE JSC:-
FACTS
The brief facts of this matter are as follows:-
On the 3rd day of August, 2021, Trasacco Estates Development Company Limited (hereinafter called “the Plaintiff”) issued a writ No. CM/RPC/0840/21 against Independence Properties Limited (hereinafter called “the Defendant”) claiming a liquidated sum totaling about $19.6 million.
It was the Plaintiff’s case that by a Contract Agreement, (the contract) dated 9th January 2017, the Defendant engaged it to design, complete works, and remedy defects of a 297 key 4-star Hilton Garden Inn (the project) in a contractual development located at Independence Avenue, Accra.
However, when the money became due, the Defendant refused or neglected to settle the amounts outstanding, thereby causing serious hardship to the Plaintiff.
Now, while this appears to be a rather commonplace dispute between two commercial entities operating in the real estate industry, the nature of the shareholding and directorships of the parties is important to provide much needed context to this seemingly unremarkable dispute.
The membership of the Plaintiff company is provided as follows
-Cinzia Ines Morris, Ian David Morris & Ernesto Taricone hold a cumulative 70% of the issued shares of the company between them
-Agata Luciana Tarricone, a blood relation of Ernesto Taricone, holds the remaining 30% of the issued shares of the company
-Each shareholder also sits on the board of directors
i.Ernesto Taricone is famously known to be the Executive Chairperson and Chief Executive Officer
ii.Ian David Morris, once went by the title of Managing Director, according to Court records at the Court of Appeal
The membership of the Defendant company is provided as follows:-
-Cinzia Ines Morris, Ian David Morris & Ernesto Taricone hold a cumulative 60% of the issued shares of the company between them
-Dr. Samuel Annor holds the remaining 40%
-Each shareholder also sits on the board of directors of the company
-Ian David Morris holds the title of Managing Director of the company
So you have a situation in which some of the members of the Plaintiff company are also members of the Defendant Company, save the Applicant.
From the membership and the shareholding structure of the plaintiffs and the Defendants companies, there is a real danger that the named Directors/Shareholders therein can collude and compromise issues raised for determination.
For example, Ernesto Taricone and Ian David Morris own shares and are Directors