First the matters complained of must affect the person or persons alleged to have been oppressed in his or their character as a member or members of the company. Harsh or unfair treatment of the petitioner in some other capacity, as for instance a director or a creditor of the company, or as a person doing business or having dealings with the company, or in relation to his personal affairs apart from the company, cannot entitle him to any relief under section 210.
It is established by the decided cases that failure on the part of an applicant to bring his complaint as well as himself within any of the categories spelt out above is fatal to his application in the sense that the application is incompetent and misconceived.
The petitioner has to show that the affairs of the company are being conducted in a manner oppressive to some part of the members (including himself). This has been interpreted as meaning that there must have been a course of oppressive conduct and one isolated act, even if oppressive will not suffice ... Further, a series of oppressive acts will not be sufficient unless they constitute a chain of events which continue right up to the presentation of the petition.” It will be seen that to bring an application under section 218 of Act 179 the applicant must adduce evidence seeking to show a chain of events and occurrences of harsh and burdensome conduct which continued up to the date of the presentation of the petition.
In In re West Coast Dyeing Industry Ltd. (supra), Osei-Hwere J.A. (as he then was) observed as follows: “The term ‘officers’ in [section 218(1)(a)] if read in the context of the whole section makes it clear that the oppression complained of must be in disregard of the interests of the member or members as officers of the company to bring the section into play.” In my opinion, Abrokwa failed to bring his complaints against Pinamang within the ambit of section 218 of Act 179. In the light of the nature of the complaints he made, his right was to resort to the remedies provided under section 216 of Act 179.
The first observation I wish to make is that Act 179 specifically provided for the procedure and the mode for the removal of a director of a limited liability company under section 185. Prima facie, to remove a director of a company from the office of a director, the procedure spelt out under section 185 of Act 179 must be followed by the company. It seems to me that the applicants must satisfy the court that resort to section 218 of Act 179 had become necessary as a final and last resort. In other words, the affidavits of the applicants must on the face of it show that the applicants resorted to section 185 without avail and without success. That as a last resort, the almighty power of the court must of necessity be called in aid of the applicants. There was no evidence to show that the applicants had unsuccessfully attempted to remove the named director chairman pursuant to section 185 of Act 179. It is only after this unsuccessful exercise pursuant to section 185 of Act 179 that resort to section 218 of Act 179 could be justified. The lower court, in my opinion, had no jurisdiction to hear and determine the relief sought under head (b) of the reliefs. The complaint made under head (b) is not one envisaged by section 218 of Act 179 and should have been refused and dismissed in limine by the learned trial judge.
Sections 213, 218 and 219: remedy for misconduct of directors
I do not, however, with great respect to him, agree that the conduct of Pinamang and Abrokwa was evidence which proved “oppression” within the meaning and intendment of section 218 of Act 179. The conduct complained of which the learned trial judge found overwhelmingly proved by the evidence before him showed very clearly that Pinamang and Abrokwa each wilfully and recklessly breached section 213 of Act 179. In those circumstances the remedy open to the applicants was to resort to section 219 of Act 179, and not to apply to the High Court pursuant to section 218 of Act 179 for the reliefs claimed in the application. The learned trial judge in hearing and determining the application under section 218 of Act 179 misdirected himself on the relevant and applicable law.
