YAW SUNKWA vs. MR. KWADWO BOATENG & ANOR CIVIL APPEAL NO. J4/22/2025

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)

KULENDI JSC

ADJEI-FRIMPONG JSC

ADJEI JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO. J4/22/2025

3RD JUNE, 2026

YAW SUNKWA …………. PLAINTIFF/APPELLANT/APPELLANT

VRS

1. MR. KWADWO BOATENG DEFENDANTS/ RESPONDENTS/

2. KWAME BOAHEN RESPONDENTS

JUDGMENT

MAJORITY OPINION

KULENDI JSC:

INTRODUCTION

This is an appeal against the judgment of the Court of Appeal dated 9th May, 2024 by which the Learned Justices of the Court of Appeal dismissed an appeal lodged by the Plaintiff/Appellant/Appellant (hereinafter called the Appellant) and wholly affirmed the judgment of the High Court dated 8th June, 2021 in favour of the 2nd Defendant/Respondent/Respondent (hereinafter called the 2nd Respondent).

APPELLANTS CASE:

The Appellant commenced an action before the High Court, Kumasi on 11th July, 2016 against 2F International Limited and Kwadwo Boateng for the following reliefs:

a) A declaration that the property Plot No. 10 Block R Asuyeboah, Kumasi was allocated to the Late Nana Kofi Sarpong(deceased) upon the distribution of the assets of Sarpong Brothers & Sons Limited and found part of his estate at the time of his death.

b) A declaration that the purported sale of the said property by the Liquidator of Kofi Sarpong Brothers & Sons Limited to the 1st Defendant was fraudulent and therefore null and void and of no legal effect.

c) An order for the delivery up and cancellation of the Deed of Assignment made between the Liquidator and the 1st Defendant by which the Liquidator purported to assign the property to the 1st Defendant.

d) Costs on a full indemnity basis.

The antecedents upon which the Appellant, who sued as one the Executors of the Estate of the Late Nana Kofi Sarpong, grounded the above reliefs are that, during the lifetime of the the late Nana Kofi Sarpong, the deceased was the Managing director and principal shareholder of the company called Kofi Sarpong Brothers & Sons Limited. Apart from the deceased, the other shareholders were given shares gratuitously by the deceased and never paid for the said shares. Sometime in 2006, the members of the company liquidated the company and distributed its assets in accordance with their shareholding. The necessary resolutions were passed to appoint Nana Akuamoah Boateng as the liquidator. He accepted the appointment and undertook the assignment of liquidating the company. Having found that the company was solvent, the liquidator undertook a distribution of the assets of the company among the members. Properties known as plot numbers 8,9 and 10 Block R Asuyeboah, Kumasi were allocated to the deceased and duly captured in the final report of the liquidator. After the distribution, the company requested the deceased to pay an amount of GHS 345,820,000 as end of service and severance benefit for the workers of the company. Unhappy about the said decision, the deceased issued a writ in Suit no.: C2/156/08 entitled Nana Kofi Sarpong & Anor vrs. Akuamoah-Boateng Consulting Services, which was dismissed on 11th November, 2009. After the dismissal, an appeal was lodged against the said decision but the parties subsequently filed a compromised judgment on 11th November, 2008 at the Kumasi High Court. By the terms of the said compromised judgment, the deceased undertook to pay, and did pay GHS 21,600.00 to the liquidator to settle the end of service and severance benefit of the Company’s employees. In spite of the payment which was made pursuant to the compromised judgment, the liquidator purported to sell Plot 4 Block R to raise money to pay the employees. The sale of Plot 4 block R is the subject matter of a separate court action. Appellant averred that to his surprise, the 1st Defendant claims to have bought Plot 10 Block R from the liquidator (who is now deceased).

The Appellant contends that any such purported purchase or transaction was fraudulent.

An appearance was entered on behalf of the 1st Respondent on 27th July 2016, after which, Kwame Boahen (the 2nd Respondent) applied to be joined to the suit. By an order for joinder dated 24th October, 2016, the said Kwame Boahen was joined to the suit as 3rd Defendant and the was Writ amended on 12th December, 2016 to reflect same. On 11th October, 2016, the 1st Defendant filed a statement of defence essentially denying any proprietary interest in the property in dispute. The 1st Defendant further averred that it was one Kwame Boahen who was the proper person to be sued as having purchased the said property.

The Appellant then discontinued the suit against the 1st Defendant company by the filing of a Notice of Discontinuance on 13th December, 2016. Thereby, leaving the suit to be between the Appellant and the 2nd and 3rd Defendant, the Respondents herein.

2ND RESPONDENT’S CASE:

In a Statement of Defence and Counterclaim filed by the 2nd Respondent, he averred that he bought the property in dispute from the liquidator in consideration of his outstanding credit with the liquidated company as a shareholder and the payment of additional sums. He stated that he was the Managing Director of the liquidated company from 1985 until his resignation in 1995. The shareholders agreed to liquidate the company and in pursuance of the said agreement appointed Amponsah Bonsu and Co. as liquidator but later, the late Nana Kofi Sarpong unilaterally imposed Akuamoah Boateng Consulting Services on the shareholders. It was the said Akuamaoh Boateng Consulting Services that undertook the liquidation of the Company. The final report of the liquidator was not accepted because the late Nana Kofi Sarpong failed to disclose all the properties of the company. Consequently, the properties intended to be assigned to the deceased were not assigned to him, owing to his failure to disclose certain properties of the Company. It was resolved that until the said disclosures were made, no properties were to be assigned to him. The liquidator was asked to amend the list of assets since the deceased had concealed some of the properties including some company accounts with about four(4) banks. The shareholders resolved that the deceased should keep those properties assigned to him but pay the requisite value to the liquidator to form part of the distribution to the shareholders. If he was unable to pay, the properties should be handed over to the liquidator for distribution. In a letter dated 27th October, 2007, the liquidator demanded that the deceased pay GHS 40,00.00 being part of the asset he had failed to account for, but he paid only GHS 5,500.00.

The liquidator also informed the deceased that Plot No.4 Block R had been assigned to the 1st Defendant. The deceased had also withdrawn GHS 21,600.00 from the Company’s account which was also demanded by the liquidator in the 27th October, 2007 letter. The 2nd Responded contended that he had paid for the land in dispute. It was also contended that Suit No. C2/156/08 was merely dismissed against the liquidator but did not settle other matters.

It was further contended that the value of Plot No.10 Block R was GHS 120,000.00 while the entitlement of the 2nd Respondent and his mother under the liquidation report was GHS93,000.00. As the Company was unable to raise the said amount, the 2nd Respondent and his mother were required to pay the difference in order for Plot No. 10, Block R to be assigned to them.

It was stated that the deceased had sold other properties belonging to the company and had failed to render account for same. He also failed to account for properties in Ghana, Togo and Nigeria for which reason the liquidator insisted that no assets will be assigned to the deceased until such full disclosures.

HIGH COURT JUDGMENT:

Directions were taken in this matter on 7th July, 2019. Trial commenced on 23rd May 2018, with the Plaintiff testifying in person and calling an additional witness (PW1). The 2nd Respondent also testified in person and called an additional witness.

On 8th June, 2021, the High Court gave judgment in respect of the suit and held in part as follows:

“ It is therefore safe at this point to conclude that once the disputed property had only been allocated to the Testator and he had not paid for it and there was the need to pay for the entitlements of the company workers from the proceeds of the sale of the disputed property, the Assignment of the disputed property by the liquidator to the 2nd Defendant was not fraudulent but valid in law.

There is nothing on record that indicated that the liquidator used the proceeds of the sale for his personal benefit but he rather used the proceeds to pay for the end of service and severance entitlements of the workers of the company.

On the totality of the evidence adduced by both parties the Court is of the opinion that:

1. Property Plot No.10 Block R Asuoyeboah formed part of the properties allocated to Nana Kofi Sarpong (deceased) by the Liquidator Nana Akuamoah Boateng (deceased) upon the distribution of assets of the Company Kofi Sarpong Brothers and Sons Limited as a result of the liquidation of the Company.

2. There was no consent judgment between the deceased Kofi Sarpong and the liquidator concerning the end of service and severance benefit of the workers as such nothing was binding the 2nd Defendant.

3. The 2nd Defendant did not commit any fraud when he paid for the Property Plot 10 Block R Asuoyeboah because title had not passed to the deceased Testator and the Liquidator needed the proceeds of the sale to pay for end of service and severance benefits of the workers of the Company.

4. The purported transfer of the property to the Defendant was valid.

5. Plaintiff is not entitled to his claims.

The evidence on record rather supports the fact that the 2nd Defendant has been able to prove his counterclaim against the Plaintiff.

The Plaintiffs case has failed and judgement is entered for the 2nd Defendant in respect of his counterclaim. a. Title to Plot No. 10 Block R Asuoyeboah Kumasi is vested in the 2nd Defendant Kwame Boahen. b. 2nd Defendant is to recover possession of property Plot No. 10 Block R Asuoyeboah Kumasi from the Plaintiff. c. Plaintiff is to render account for all rents collected from tenants in respect of the subject property from 2012 till date of final judgment which is 8/6/21. d. There is no order as to cost as an estate matter.”

Dissatisfied with the judgment of the High court, the Appellant appealed against the decision to the Court of Appeal. By filing a Notice of Appeal and canvassing two grounds of Appeal, namely;

That the judgment is against the weight of evidence

That the learned trial judge did not properly consider the case of the appellant.

In a unanimous decision, the Court of Appeal on 9th May, 2024 dismissed the Appeal as wholly unmeritorious.

Still dissatisfied with the judgment of the Court of Appeal, the Appellant has lodged a further Appeal to this Court. The Notice of Appeal was filed on 1st June, 2024 and canvassed the following two grounds in protest of the judgment:

The judgment of the Court of Appeal was against the weight of the evidence

That the procedure or process of the liquidator to auction the property was tainted with fraud and which said fraud resulted in substantial miscarriage of justice.

Particulars of fraud i. No adherence and noncompliance with the law governing auction sale.

RESOLUTION:

We shall address the grounds of appeal seriatim. The first ground of appeal is the omnibus ground. Under this ground of appeal, we are called to evaluate the entire evidence on record. We are mindful of the fact that this is a second Appellate Court and the judgment that is the subject matter of the present appeal is a concurrent judgment.

We shall address the grounds of appeal seriatim. The first ground of appeal is the omnibus ground. Under this ground of appeal, we are called to evaluate the entire evidence on record. We are mindful of the fact that this is a second Appellate Court and the judgment that is the subject matter of the present appeal is a concurrent judgment.

Both the High Court and the Court of Appeal were ad idem, that on the basis of the evidence led the Appellant’s case was one without merit and that the 2nd Respondent had succeeded in proving his counterclaim. It is only after a determination that there has been an error in the appreciation and application of the evidence led or a misapplication of a principle of evidence or proposition of law that we may interfere with the findings so far made. Even so, the nature of the error or misapplication must be such that when corrected, the judgment or findings would not stand and will warrant a different conclusion.

This position of the law has been stated in a plethora of cases including the cases of Achoro vs Akanfela (1996-19970) SCGLR 209. In a judgment of this Court dated 6th JUne, 2018, in Civil Appeal No. j4/23/2016 and titled Gen. Emmanuel A. Erskine & Anor vs Victoria Okpoti & Anor, this Court held, concerning the above principles as follows;

“We are settled in our minds of the legal principles that a second appellate court such as the Supreme Court must be slow in departing from the concurrent findings of fact by the lower Court. However, when the said findings of the lower Courts are perverse or inconsistent with the record of appeal, then an appellate court can depart from these findings.”

In the case of Osei vrs Korgan (2013-2014) 1 SGCLR 221, @ 227, Ansah JSC in relying on the case of Koglex Ltd (N0.2) vrs Field (No. 2) summarised the principles under which this Court may disturb such concurrent findings of lower courts as follows;

“The principles upon which an appellate court will set aside findings of fact by a trial court are well known and summarized in KOGLEX LTD NO. 2 VRS FIELD NO. 2[2000] SCGLR as follows;

1. Whether the said findings of the trial court are clearly unsupported by the evidence on record or where the reasons in support of the findings are unsatisfactory; SEE KYIAFI VRS WONO [1967] GLR 463 at 466

2. Improper application of a principle of evidence.

3. Where the trial court has failed to draw an irresistible conclusion from the evidence – SEE FOFIE VRS ZANYO [1992] 2 GLR 475 at 490

4. Where the findings are based on a wrong proposition of law.

5. Where the finding is so based on an erroneous proposition of law that if that proposition is corrected; the finding disappears.

6. Where the finding is inconsistent with the crucial documentary evidence on record, etc.”

In assessing the evidence on record this Court will not be fixated on any single evidence but the totality of the evidence led and the appropriate weight they carried. From the evidence adduced at trial, it is evident that it was the late Nana Kofi Sarpong (Deceased) who appointed the liquidator to liquidate the company in November, 2006. Although the liquidator filed a report and indicated in the said report that certain properties were to be transferred to the deceased, it was not disputed that the liquidator failed to assign or transfer interest in those properties to the deceased. It was the case of the respondent that the deceased failed to disclose some of the properties of the company for the purpose of liquidation. This was not controverted by the Appellant in his testimony. On 23rd May, 2018 during cross-examination, the following was asked;

Q: I put it to you that the liquidator did not assign Kofi Sarpong’s portion to him because he concealed some of the properties of the company.

A: For that I do not know. I am only here for the Will.

Q: This answer you have just given to the Court is an afterthought

A; I am speaking the truth. I was not part of the distribution. I am only going by the Will.

…

Q: I am further putting it to you that due to his failure to disclose all the properties of the Company, his portion was not assigned to him

A: I am just an executor so i am not privy to all those information

From the above, it is evident that the Appellant did not deny the fact that while there may have been an initial indication in the liquidator’s report that the property in dispute was to be assigned to the Deceased, the said property was nonetheless never assigned or transferred to the Deceased for his failure to disclose properties of the company or his decision to conceal the said properties.

During cross-examination, the Appellant testified that he did not know anything concerning the fact that the liquidator made a demand on the deceased for the sale of four building plots of the company that he had made and for his unlawful withdrawal of money from NIB and SGSSB.

He could equally not speak to nor did he deny that the liquidator asked the Deceased to account for the cocoa freight and had made several demands on the Deceased to render accounts for properties that he had either misappropriated or concealed, including letters dated 11th April, 2007, 22nd October, 2007 and 24 August 2010. The allegation that these letters were served on the Deceased and that the Deceased failed or refused to respond to them was also not controverted by the Appellant during cross examination.

It was further put to the Appellant during cross examination that the monies and properties the Deceased concealed were taken into account in the distribution of properties to the shareholders. The accounts of how the Respondent came to own the property and the fact that he paid for the value of the property was also not controverted in cross examination.

Also, during cross examination of the Appellant, a crucial point that the Deceased knew that the disputed properties were never assigned to him and yet went ahead to make same a subject matter of his will, was also not controverted. During cross-examination of the Appellant on 13th November, 2018 the following ensued;

“ Q: I am putting it to you that before the execution of the Will your brother knew that Plot Nos. 8, 9, and 10 R had been assigned by the liquidator to the 2nd Defendant at Asuoyeboah.

A. I don’t know anything about it.

Q. I am also putting it to you that the liquidator assigned the disputed properties to 2nd defendant because your brother concealed some of the company’s properties from the liquidator.

A. I don’t know anything about this.”

PW1 who was the secretary of the company and who testified on behalf of the Appellant gave a testimony that was corroborative of the respondent’s case.

It is important to state that the Appellant relies heavily on Exhibit F which was tendered at trial. Apart from the fact that the said Exhibit F lists the property in dispute as one allocated to the Deceased the same Exhibit F states that the Deceased was to pay for the end of service benefits of the workers of the company. It thus appears therefore that part of the consideration for the allocation of the property in dispute to the deceased, was the payment of the end of service and severance benefits of the company workers. Therefore, the failure of the Deceased to honour his obligation and to perform the consideration for the transfer justified the refusal of the liquidator to actually assign or transfer property in house No. 10 Block R, among others, to the Deceased.

Of supporting evidentiary value is the letter of 29th May, 2007 tendered at trial as Exhibit 2. The said letter written by the liquidator and addressed to the lawyers for the Deceased stated in part as follows;

“Nana Koft Sarpong, using his former status as Chairman of the non-existent company, fraudulently withdrew $216,467,812.50 from the company’s current account at the National Investment Bank Limited, Kumasi. He had earlier on pockéted 4400 Million being proceeds from the sale of the company’s four plots at Asuyeboah, Kumasi.

We, not very much willing to embarrass him, asked him to refund the $400 Million so that we could pay the “End -of -Service Benefits” to the ex-employees of the company. It was when he refused that we reported the matter to the Regional C.I.D. Ghana Police, Kumasi.

5. It was when we briefed him on the issues involved, that he promised to refund the $400 Million, and in fact, paid $100 Million on the 26th April, 2007, the amount which we have disbursed to the ex-employees as bonus payment on account of the benefits. Nana Sappung promised to pay the remaining 2300 Million by installments in May, June and July, 2007.

6. We told him we are unable to stop the Police action, but could only suspend it, pending he, refunding the $300 Million as promised.

We wish to conclude that we have never asked him to use his resources for the purpose. We have legally asked him to refund the money he fraudulently appointed.

As decided, we shall be looking forward for the f100 Million by the close of 18, May, 2007. If he fails, we shall only ask the Police to prosecute him.”

Also on 24th August, 2010, the following letter was written by the liquidator to the Deceased;

“You are no doubt aware that we are the official liquidators for the above named company.

We are in the process of forwarding our final report to the Registrar – General. But the Minority Shareholders have some concerns which need to be addressed immediately. These concerns are as detailed below:

You failed to disclose the companies assets in Lome and Takoradi to the Valuer, Messrs Goldstreet Real Estate Consult:,

2. You failed to disclose the payments you collected against Logs sold to Messrs Scanstyle Min Limited; in 1997. 1998 and 1999.

3. You failed to account for the plots you sold for GIH$40.000.00

Summary of the above undisclosed items is as follows:”

There is also an 11th April, 2007 letter tendered in evidence as Exhibit 2c written by the liquidator to the Deceased reminding him of his indebtedness to the company.

In Exhibit 3 dated 22nd October, 2007, the Deceased was reminded of his indebtedness to the liquidated company by the liquidator in the following words;

“Apart from having satisfied your claim of $16,440,500(GH¢ 1,644,050.00); You legally withdrew $216,000,000 from the Company’s Account at NationalInvestment Bank Limited, Kumasi, and also sold 4(Four) Building Plots at Asuyeboa, Kumasi for $400,000,000, all totalling $616,000,000 (GH$61,600.00).We, as Official Liquidators of Messrs Rofi Sarpong Brothers and Sons Limited, on humanitarian grounds, agreed with you to pay $400,000,000 (GH$40,000.00) within the period of four months(From May to August, 2007)so that we could apply in paying the “End-of-Service Benefits” to the Ex-Workers. Since then you have paid onlý $55,000, 000(GH$5,500.00) and have refused to pay the balance of $345,000,000(GH$34,500.000).

We have therefore decided as follows:-

We have sold the Company’s Plot 4, “R”, (Workshop) at Asuyeboa to **geests 2F International Company Limited, and

2. We are in the process of selling Plot 40, BLK. III, Asuyeboa. the proceeds would be applied in settling all the Company’s outstanding liabilities

Any surplus thereafter shall be shared to the Ex-Directors in accordance with their shareholdings.

Be kindly informed that you are indebted to the Company as detailed below:- Balance of proceeds from sale of 4 (Four) Plots Amount Illegally withdrew form NIB. Ltd.”

These pieces of evidence tendered at trial and uncontroverted dealt a blow to the Appellant’s case whilst assisting the 2nd Respondent build a more probable case in favour of his counterclaim.

It is at this moment important to state that when a liquidator is appointed to liquidate a company, he holds for the time being, property and the assets of the company and is at liberty to dispose off in satisfaction of debts or in pursuance of his duties with the company.

Section 16 (4) of the Bodies Corporate (official liquidation) Act 1963 (Act 180) states as follows;

“The liquidator may, at any time after the commencement of a winding up, require any member or contributory and any trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender or transfer forthwith, or within such reasonable time as the liquidator may direct, to the liquidator any money, property or books and papers in his hands to which the company is prima facie entitled”

Therefore, the liquidator was within his statutory remits to demand accountability from the Deceased failing which he re-engineered the allocation of properties in order to raise funds to cater for the end of service and severance benefits of the workmen among others.

The records point out that at no point in time did the liquidator transfer the property in dispute to the Deceased. If he was entitled to a transfer the Deceased could have protested the refusal of the liquidator to transfer the property to him. The mere fact that the property was listed in the records does little to advance the Appellant’s case. This is because title had not passed to him as at the time of the will and therefore he could not have also made the property a subject matter of a devise in his will. So far as no valid transfer was made by the liquidator and that the initial thoughts remained in the report of the liquidator, same could be the subject matter of a valid transfer to a party other than the deceased.

On the second ground raised, we note that the letters written by the liquidator to the Deceased were all written during the lifetime of the Deceased. While the evidence on record shows that the Deceased died on 4th July, 2011, the letters, specifically Exhibit 2 series, were dated April 2007, and 22nd October, 2007.

Therefore, having protested during the lifetime of the Deceased, it cannot be said that the decision of the liquidator breaches any known principle of audi alteram partem and it is farfetched to argue that because the said Nana Kofi Sarpong died in 2011, the decision to assign the land in dispute to the Respondent is unfair.

The Liquidator repeatedly demanded that the Deceased repay the Company’s debts, including amounts arising from properties he had failed to disclose or had fraudulently sold. Letters issued in April 2007, October 2007, and August 2010 (Exhibit 2 Series) itemized these debts and warned the Deceased of the consequences of non-payment. The Deceased was aware of his indebtedness as gleaned from Exhibit F. While certain properties were initially allocated to the Deceased in the Final Liquidator’s Report (Exhibit F), legal title to these assets remained vested in the Liquidator. As the Deceased failed to discharge his debt, the Liquidator proceeded to sell certain properties initially allocated to the Deceased in order to defray the Company’s debts. It is important to note that although the disputed property had been allocated to the Deceased, it had not been formally assigned to him. Legal title to the property therefore remained vested in the Liquidator.

Questions may arise as to whether the Liquidator had the requisite powers to act in this manner. Upon the passing of a special resolution for the liquidation of a company, the directors and shareholders are divested of their powers and functions, which, pursuant to section 14 of the Bodies Corporate (Official Liquidation) Act, 1963 (Act 180), become vested in the Liquidator (see Pioneer Construction Products Ltd v Faddool [1974] 1 GLR 76; Union Maritime et Commerciale v Rabensteiner & Anor [1968] GLR 504). During the liquidation process, the Company’s properties remain vested in the Company but are placed under the custody and control of the Liquidator (see sections 16(1), (2), and (3), Act 180).

In the instant case, the Liquidator, through Exhibit F, initially allotted the subject property to the Testator. The Appellant’s Counsel incorrectly contends that such an allocation was irrevocable. In reality, since the property had not been formally assigned and legal title remained with the Liquidator, the Testator could not validly will it. Consequently, upon the Testator’s failure to settle his debt to the Company, the Liquidator acted within his powers in selling the property to the 2nd Respondent.

There is no error in these findings. The Liquidator was fully empowered to take all necessary steps, including re-allocating or reassigning distributed assets, to ensure equitable treatment of shareholders.

In this case, the Liquidator acted within his statutory powers to protect the interests of the Company and its shareholders, ensuring that no shareholder benefited from the Testator’s conduct and that all assets were properly accounted for in proportion to shareholding.

CONCLUSION:

It is on the basis of the foregoing considerations that this Court on 3rd June, 2026 by a majority of 3:2, accordingly dismissed the Appeal as being without merit and awarded cost of Fifty Thousand Ghana Cedis (GHS 50,000.00) against the Appellant, in favour of the 2nd Respondent.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

ADJEI, JSC:

I had the benefit of glancing through the opinion of my respected brother, Justice Yonny Kulendi, and I agree with the conclusion. However, I wish to express my opinion on both grounds of appeal filed by the Appellant against the judgment of the Court of Appeal, Kumasi, delivered on 9th May, 2024. I will not restate the facts of the case, as my brother Justice Yonny Kulendi has captured all the relevant facts in the majority opinion. There are only two grounds of appeal, and I will discuss both together, as they hinge on whether a mere allocation by a liquidator to a shareholder transfers ownership of the property from the company to the shareholder. The trite position in company law, which was extensively discussed in the case of Re London and Globe Finance Corporation Ltd [1903] I Ch 728, is that a mere allocation or resolution to distribute both movable and immovable properties does not transfer ownership from the company to the shareholders, unless formal delivery is made. Transfer formalities, including registration, are completed. The reason is that until the transfer of the property is complete, legal ownership vests in the company, and the liquidator can recover the property. In contrast to a situation where the property has been fully transferred and cannot be recovered without a clawback or contributory action, the liquidator cannot redraw as of right.

The Appellant who is the executor of the late Nana Kofi Sarpong, has strenuously submitted that property No. 10 Block R Asuoyeboa was allocated to the late Nana Kofi Sarpong by the Liquidator, and that, in turn devised the same in his last Will and testament, and was illegal for the Liquidator to have taken it away without reference to him in his capacity as the testator for the deceased. The property could be withdrawn by the liquidator at any time before it is vested, notwithstanding that the testator is alive or dead. In the instant appeal, Nana Kofi Sarpong had died by the time the allocation was withdrawn, and it was properly withdrawn in accordance with the law. If the deceased were alive, he could not have resisted it, and his executors cannot resist it either, because it had not become the property of the deceased.

The High Court Judge resolved the issues of the alleged violations by the Liquidator regarding the recalling of the disputed property which took place in 2012 under the Companies Act, 2019 (Act 992) and the Corporate Insolvency and Restructuring Act, 2020 (Act 1015) which came into force on 2nd August, 2019 and 1st May, 2020 to repeal the Companies Act, 1963 (Act 179), and the Bodies Corporate (Official Liquidation) Act, 1963 respectively. The trite position of law is that the determination of an act of a person made under an enactment as to its legality is measured against the enabling enactment under which the right was exercised, or the violation occurred, whether it is repealed or not, and not under the subsequent enactment, except where the violation continues under the new enactment. Article 107 of the Constitution of Ghana, 1992 provides that all laws made by Parliament shall have prospective effect and not be retroactive. Still, the common law exceptions, which are universally applicable and accord with the Constitution of Ghana, 1992, are declaratory laws, laws on evidence, procedural laws, or where existing laws have been revised and consolidated under the principal enactment. The case of Fenuku and Another v John Teye and Another [2001-2002] SCGLR 985 discussed and adopted exceptions to retroactive legislation. The exceptions are declaratory, evidence, and procedural laws. When laws are revised in a modern language and consolidated with their amendments, they replace the existing law without making any substantive change, but only present the entire material in a newly organised structure and in language that is both internally consistent and modern. See Greenberg D (ed), Craies on Legislation (10th ed, Sweet & Maxwell, 2012) at [1.9.1].

The Liquidator withdrew the property in dispute under the repealed Companies Act, 1963 and the Bodies Corporate (Official Liquidation) Act, 1963 and the two are the appropriate laws to be used to determine the legality of the act of the Liquidator in withdrawing one of the immovable properties he allocated to the late Nana Kofi Sarpong.

The repealed section 14 of the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) on the powers of the liquidator at the commencement of winding-up provides thus:

“On the commencement of a winding-up, the functions of the directors of the company shall vest, without further authority under this section, in the liquidator except in so far as the liquidator sanctions the continuance of those functions.”

The Liquidator allocated the properties to the shareholders without conveyance to transfer the immovable properties that were involved in the distribution. The question to resolve in this appeal is whether or not the mere allocation of the properties to the shareholders constitutes a transfer of title. At common law, a mere resolution or allocation does not transfer title to a chattel or movable or immovable property. Title passes only on delivery, or on execution of a deed of transfer where required. Therefore, where the liquidator discovers additional liabilities before the transfer is completed, the liquidator can take possession of and sell the assets for the benefit of the creditors if liquidation remains the property of the company. The shareholders have only an equitable right to have the allocation carried out, and that equitable right is subject to the company’s prior obligations to pay its debts. The case of Re Hallett’s Estate (1880) 13 Ch D 696 provides that if property remains in the company’s control, the liquidator may recover it for the estate, as a mere allocation of a property does not divest the company of title. The relevant part of the case states thus:

“An allotment of shares or an allocation of assets which is not completed by transfer gives the allottee only a contractual right provable in winding-up. It does not give him any proprietary right in the assets as against the liquidator.”

The above quotation means that if the company distributes land or shares and does not complete the transfer, the shareholder has no proprietary right in the property, and the liquidator can take it back as company property. Therefore, in the case at point, when the property was not transferred, but a mere distribution was made without a registered conveyance in favour of Nana Kofi Sarpong, he had only a provable debt, not ownership, and the liquidator can recover the asset without a clawback. The above quotation was approved in the case of Re London and Globe Finance Corp Ltd (1903) 1 Ch 728 per Romer J.

In the case of Asher v Whitlock (1865) LR 1 QB 1, it is also provided that possession of land gives a good title to everyone except the person with a better title. In effect, where the company holds the legal title, the liquidator can recover possession from a shareholder who only has possession. In Ghana, the trite position of law is that unregistered dealings in land do not pass title. The evidence on record shows that the land in dispute was not conveyed and registered in favour of the late Nana Kofi Sarpong, and the Liquidator could recover the same without seeking a remedy from the court.

In the case of Macaura v Northern Assurance Co Ltd AC [1925] 619, it is confirmed that until conveyance is executed and registered, the land belongs to the company, not the shareholder, and the shareholder has no insurable interest in it. The case of Armoury v Delamire (1772) 1 Strange 505 also supports the position that possession without legal title does not protect the shareholder once the liquidator asserts the company’s ownership.

Section 35 of the Evidence Act, 1975, NRCD 323, provides thus:

“The owner of legal title to property is presumed to be the owner of the full beneficial title”.

The above presumption is the same as the common law presumption that a person who is the owner of the legal title to property is the owner of the full beneficial title to that property. In the case at hand, the liquidator was both the owner of the legal title and the owner of the full beneficial title to the property, and a mere allocation cannot affect his dual interest in the property.

The principle of clawback does not arise until the transfer is complete and registered in favour of the shareholder; where the property is duly registered and transferred to the shareholder by the liquidator, title passes to the shareholder. The liquidator cannot recover it without resorting to the court. Where title has passed from the liquidator to a shareholder, the liquidator must rely on the common law or contributory liability principle from Re Anglo – Moravian Hungarian Juridical Co (1887) 3 Ch 130 which provides that if debts remain unpaid, the court will settle the list of contributors and order the member to contribute an amount equal to the value of what they received, to the extent needed to pay and costs.

From the totality of the evidence on record, the Liquidator did not issue a conveyance duly executed to the late Nana Kofi Sarpong, and the claw-back principle, which requires court intervention, did not arise. The enabling enactment, then, on the registration of instruments and the effect of registration was the Land Registry Act, 1960 (Act 122). Section 24 of the Land Registry Act, Act 122, provides thus:

“(1) Subject to subsection (2), an instrument other than a Will or a judge’s certificate, first executed after the commencement of this Act, shall not have effect until it is registered.”

The legal effect of an unregistered instrument affecting land has been discussed in several cases, including Amuzu v Oklikah [1998-99] SCGLR 141, where the Supreme Court held that an unregistered instrument affecting land shall not have effect, and cannot convey legal title until it is registered. The allocation made by the Liquidator to the late Nana Kofi Sarpong was not registered and did not convey legal title to him.

The Liquidator acted within the law, and the issue of fraud against him is without legal basis. Having concluded that all the grounds of appeal hinge on the recovery of the disputed land from Nana Kofi Sarpong, which was made in accordance with the law, the appeal has no merit and fails in its entirety.

(SGD.) D. ADJEI

(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINION

ADJEI-FRIMPONG JSC:

My Lords, I am not convinced that my respected brethren of the majority are right on their decision in this case. What follows therefore is my dissenting opinion. The case turns on the powers of a Liquidator to distribute assets of a company involved in private liquidation. The facts underlying the suit unless otherwise noted, are generally undisputed.

The late Nana Kofi Sarpong (“The Testator”) was the founder and majority shareholder of Nana Kofi Sarpong Brothers & Sons Limited (“The Company”). The company held a number of assets including the subject matter of this suit Plot No. 10 Block R, Asuoyeboah-Kumasi.

In 2006, the shareholders of the Company resolved to wind it up by voluntary private liquidation. For this purpose, an entity called Nana Akuamoah Boateng Consulting Services was appointed as the private liquidator. The liquidator undertook valuation, realized assets, and prepared a Final Liquidator’s Report which was tendered at the trial as Exhibit F.

In Exhibit F, the Liquidator listed the assets and liabilities of the company, stated the net assets for distribution and allocated specific properties to members proportionate to their shareholding. The subject property, Plot No 10 Block R Asuoyeboah-Kumasi was expressly allocated to the Testator as part of his entitlement on distribution.

After the distribution, the Liquidator made a demand on the Testator to pay a sum of ¢345,820,000 (old cedis) to pay off end-of-service and severance benefits of ex-employees of the Company. A dispute over the demand resulted in a suit between the Testator and the Liquidator in the High Court intituled NANA KOFI SARPONG & ANOR VRS AKUAMOAH BOATENG CONSULTING SERVICES. The testator lost the suit at the trial but the parties at the appellate level went into an amicable settlement. The terms of settlement included payment of a sum of GH¢21,000.00 by the Testator to the Liquidator to be applied to pay severance and end of service benefits of the workers of the Company. It appears the Testator paid part of the amount. In any event, the Liquidator sold another property, Plot No. 4 Block R which had also been distributed upon the Testator to raise money to pay off workers’ benefits. This transaction was being challenged in a separate lawsuit. I shall refer to the suit where necessary in this delivery.

The Testator died on July 4, 2011. In his last will, he made a devise of the subject property No. 10 Block R for which probate was eventually obtained by the Plaintiff and 1st Defendant, the executors of the Will.

According to the Plaintiff, while taking steps at the Lands Commission to vest the subject property in the estate, he had notice that the Liquidator had purported to assign same to the 2nd Defendant by a deed of assignment dated 7th February 2012, i.e., several months after the Testator’s death. A formal complaint was lodged with the police against the Liquidator and the 2nd Defendant. The matter seemed not have been resolved until the death of the Liquidator himself. The 2nd Defendant later served notice on tenants in the property to vacate.

Contending that the subject property belonged to the estate of the Testator and that the purported transaction between the Liquidator and 2nd Defendant was actuated by fraud, the Plaintiff brought the instant suit. He joined the 1st Defendant (co-executor) in the action because he failed to join him to sue to recover the property for the estate. His reliefs were as follows:

A declaration that the property Plot No. 10 Block R AsuoYeboah-Kumasi was allocated to the Late Nana Kofi Sarpong (Deceased) upon the distribution of the assets of Kofi Sarpong Brothers & Sons Limited and formed part of his estates at the time of his death.

A further declaration that the purported sale of then said property by the Liquidator of Kofi Sarpong Brothers & Sons Limited to the 2nd Defendant was fraudulent and therefore null and void and of no legal effect.

An order for the delivery up and cancellation of the Deed of Assignment made between the Liquidator and the 1st Defendant by which the Liquidator purported to assign the property to the 2nd Defendant.

Costs on a full indemnity basis.

To bring clarity to the record, The Plaintiff initially commenced the suit against a company called 2F International Limited (2F International) and Kwadwo Boateng, the co-executor, as 1st and 2nd Defendants respectively. 2F International filed processes in which it disclaimed the property, indicating that it was rather Kwame Boahen who took assignment of it from the Liquidator. Kwame Boahen successfully applied to join the suit as 3rd Defendant. Following that, the Plaintiff discontinued the suit against 2F International. By an order of the trial Court dated 13th May 2017, the title of the suit was amended to make Kwadwo Boateng and Kwame Boahen the 1st and 2nd Defendants respectively. (See page 38, Vol.1 ROA).

The 1st Defendant failed to contest the matter leaving the battle line drawn between the Plaintiff and the 2nd Defendant who counterclaimed against the Plaintiff for a declaration that title to Plot No. 10 Block R Asuoyeboah was vested in him. He further sought recovery of possession and an order to account for rent from tenants from 2012 till date of final judgment.

The gravamen of the defence was that upon the distribution of the properties by the Liquidator as contained in Exhibit F, it was discovered that the Testator had failed to disclose a number of properties of the Company in his custody. These included landed properties in Takoradi and Lome-Togo as well as Company accounts with the National Investment Bank, Adum, SG-SSB Bank Accra Industrial Area Branch, GCB Bank Kumasi main and the Merchant Bank now UMB, Kumasi. The shareholders therefore resolved that until the Testator made a full disclosure of the properties no property shall be assigned to him by the Liquidator. The shareholders also requested the Liquidator to amend the list of assets to include the undisclosed ones. Additionally, the shareholders resolved that the Testator, if he so desired could keep the properties and pay for them else, those properties be handed over to the Liquidator to be redistributed. The Liquidator in a letter dated 22nd October 2007 wrote to the Testator to pay a total amount of Gh¢40,000 being part of the assets he had failed to account for. Out of that amount, the Testator paid only GH¢5,500 leaving a balance of GHC34,500. The said amount was to be used to pay the end of service benefits of employees. In the same letter, the Liquidator informed the Testator that Plot No. 4 Block R Asuoyeboah-Kumasi had been assigned to the 2F International (Gh) Limited.

The 2nd Defendant denies perpetrating fraud in the assignment of the subject property to him. He averred that he and his mother as shareholders were not paid their full entitlement upon the distribution. The amount due them was GH¢93,000.00. The value of the subject property was GH¢120,000. The Liquidator therefore asked them to pay the difference of GH¢27,000 to enable the property to be assigned to them. This he paid, and the property was assigned to him.

It was his case that the Testator in his last will devised properties that had not been assigned to him and had also sold properties belonging to the Company. He had failed to account for them, and his executors also failed to do so upon request made to them. There was therefore nothing wrong with his title to the subject property.

After a full trial, the learned trial Judge dismissed the Plaintiff’s claim and upheld the 2nd Defendant’s counterclaim. The learned Judge made the following findings and final orders as can be found at pages 250-251 of Vol.1 of the ROA:

“1. Property Plot No. 10 Block R Asuoyeboah formed part of the properties allocated to Nana Kofi Sarpong (deceased) by the Liquidator Nana Akuamoah Boateng (deceased) upon the distribution of assets of the Company Kofi Sarpong Brothers and Sons Limited as a result of the liquidation of the Company.

2. There was no consent judgment between the deceased Kofi Sarpong and the Liquidator concerning the end of service and severance benefit of the workers as such nothing was binding the 2nd Defendant.

3. The 2nd Defendant did not commit any fraud when he paid for the property Plot No 10 Block R Asuoyeboah because title had not passed to the deceased Testator and the Liquidator needed proceeds the sale to pay for the end of service and severance benefits of the workers of the Company.

4. The purported transfer of the property to the Defendant was valid.

5. The Plaintiff is not entitled to his claims.

The evidence on record rather supports the fact that the 2nd Defendant has been able to prove his counterclaim against the Plaintiff.

The Plaintiff’s case has failed, and judgment is entered for the 2nd Defendant in respect of his counterclaim.

Title to Plot No.10 Block R Asuoyeboah Kumasi is vested in the 2nd Defendant Kwame Boahen.

2nd Defendant is to recover possession of property Plot No. 10 Block R Asuoyeboah Kumasi from the Plaintiff.

Plaintiff is to render account of all rents collected from tenants in respect of the subject property from 2012 till date of final judgment which is 8/6/21.

There is no order as to costs as an estate matter.”

The Plaintiff’ appeal to the Court of appeal was unsuccessful. The learned Justices within the context of the grounds of appeal addressed the following five (5) matters:

The nature and effect of the allocation of the assets by the Liquidator in the Final Liquidation Report-Exhibit F.

Whether or not the Testator was indebted to the company of which he was made aware.

Whether or not the Testator could devise the subject property in his Will.

Whether or not the Liquidator could assign the subject property to the Respondent after allocating it to the Testator.

Whether or not the assignment by the Liquidator to the Respondent amounted to fraud.

In the end, their Lordships came to the following conclusions:

Liquidation of a company is a process and not an event. There are therefore no irrevocable steps which cannot be reviewed where the circumstances so require. The presentation of the “Liquidators Final Report” (Exhibit F) which was yet to be submitted to the Registrar-General did not foreclose a review and adjustment of the allocation of assets made therein.

The Liquidator’s Final Report (Exhibit F) has two parts. The first part is on the distribution of the assets to the shareholders. The second part, equally important, is the statement of the debt owed the liquidated company by the Testator. Since the Testator owed the company in terms of the four plots of the company illegally sold by him, he was indebted to the company as evinced in Exhibit F, which the Appellant never disputed. To be indebted is simply to owe a sum of money. The submission of counsel for the Appellant to the contrary had no merit.

The law permits a Testator to devise only his self-acquired property. Due to ignorance or mischief, some testators devise properties they have no legal title to, or equitable interest in. The law could not have physically restrained the Testator from devising properties not his self-acquired. It is after the demise of a testator that the bona fides of devises in his Will are examined.

The Liquidator had power, based on changed circumstances, to adjust or calibrate his decisions, especially on the distribution of the assets. That became imperative when a condition for the allocation of assets to the Testator, being payment for the four plots he illegally sold, had not been fully complied with. The Testator had no right to sell assets of the company, refuse to refund the money accrued therefrom, and insist on having the full package of the assets allocated to him. In the face the defiance of the Liquidator’s directive by the Testator, he (Liquidator) had the legal right to assign the subject land to the Respondent.

The Appellant’s charge of fraud against the assignment to the Respondent stood unproven and unjustified. Even though the Respondent is the son of the Testator, their relationship was businesslike and not that of father and son. The Respondent was assigned the subject property as part of the adjustment or calibration of the distribution. That was why his consideration was his shares and a sum of GH¢27,000.00 he added as a top up. The assignment was transparent and legal.

From the foregoing, we found no merit in the appeal. The appeal is dismissed, and the judgment of the trial court dated 8 June 2021, granting the counterclaim of the Respondent is hereby affirmed. We make no order as costs.

The further appeal in this Court is on the following grounds:

That the judgment of the Court of Appeal was against the weight of evidence.

That the procedure or process adopted by the Liquidator to auction the property under reference was heavily tainted with fraud, and which said fraudulent conduct resulted in substantial miscarriage of justice to the Plaintiff/Appellant/Appellant.

PARTICULARS OF FRAUD

No adherence and non-compliance with the laws governing AUCTION SALE.

On my review of the record of proceedings, I do not find any legal foundation for the second ground of appeal and the particulars stated thereunder. The point about auction sale and its governing law have not appeared anywhere in the trajectory of the litigation. As a matter of fact, the subject property was not sold by auction. It was sold and assigned to the 2nd Defendant by the Liquidator as shown in Exhibit C. The assignment was said to be on the basis of a payment of a sum of GH¢27,000 representing the difference between the value of the subject property (GH¢120,000) and the supposed entitlements of the 2nd Defendant and her mother (GH¢93,000). This transaction which the Plaintiff seeks to impugn did not result from an auction sale. The subject of auction in this appeal is a complete foreign advent. Indeed, in the Plaintiff’s statement of case, the point about an auction sale was covertly avoided. As I observe, the kernel of the Plaintiff’s argument under the 2nd ground of appeal is contained in the following submission of Counsel:

“Your Lordships, the 2nd Defendant was not an outsider who could claim innocence. He was a shareholder and former director who, from the governance seat he occupied, knew that Exhibit F had allocated Plot No.10 Block R to the Testator. That knowledge is not speculative; it flows naturally from his role, from the company’s own records and from the very structure of the distribution reflected in Exhibit F. Against this backdrop, he moved to procure a post-death assignment on 7th February 2012, caused it to be registered, and promptly issued vacate notices to the tenants. The timing, the context and manner of the acquisition are the classic hallmarks of inequity and fraud.”

By reason that the point about auction is groundless, the 2nd ground of appeal is rendered incompetent on account that it does not disclose a reasonable ground of appeal in terms of Rule 6(5) of the Rules of this Court (C.I. 16 as amended). Consequently, I strike out the ground. This leaves me with the omnibus ground of appeal which as is well understood, is a call to review the entire record to determine the justifiability of the findings and conclusions of the court below.

Summary of the Plaintiff’s argument on Ground (a)

Counsel for the Plaintiff contends that both the trial Court and the first appellate Court failed to properly evaluate the oral and documentary evidence on record, leading to conclusions opposite to what the evidence actually depicts. This, he submits is an error which this second appellate Court must correct by setting aside their concurrent findings. OSEI (SUBSTITUTED BY GILARD) VRS KORANG [2013-2014]1 SCGLR 221; KOGLEX VRS FIELD LTD NO.2 [2000] SCGLR 175; KYAFI VRS WONO [1967] GLR 463; FOFIE V ZANYO [1992} GLR 475 cited.

Referring to specific documentary evidence, Counsel points out the whole case revolved around Exhibits F (Final Liquidator’s Report) Exhibit 2 series (made of letters dated 11/04/2007; 29/05/2007, 22/10/2007 and 28/08/2010) by which the Liquidator made various restitution demands on the Testator and Exhibit 6 (The Deed of Assignment of Plot No 10 Block R, Asuoyeboah Kumasi between the Liquidator and the 2nd Defendant.

On Exhibit 2 series Counsel contends that on their plain meaning, the letters (a) targeted four other plots allegedly sold by the Testator and cash withdrawals from NIB/SG SSB (b) demand refunds/returns to raise money for End of service benefits (c) mention disposals connected with Plot No.4 and (c) crucially did not say “pay consideration for plot No. 10 to perfect title”. Indeed, one letter declared “We have settled all claims against the company”

Counsel contends that on the face of these letters, a finding of the two lower courts that the letters required payment for the subject Plot was unsupported. According to Counsel, the letters and the compromise on the 2009 suit between the Liquidator and the Testator were largely about Plot No 4 and staff benefits. Therefore, the use of events of Plot No 4 to justify the dispossession of Plot 10 was non sequitur and a classic case of mixed facts.

Besides, none of the letters supported the erroneous finding of fact that the Liquidator reassigned Plot No 10 to the 2nd Defendant to defray a debt owed by the Company. Counsel submits that where the Liquidator disposed of assets to settle liabilities of the Company, he stated so explicitly as in relation to Plot No 4 to 2F International. No such statement is found in any of the letters in connection with the assignment of Plot No 10. Using those letters to justify the eventual 2012 assignment converts statements about one asset into authority to alienate another. This distinction matters for natural justice and substance. No record discloses a hearing afforded to the estate. It is contended that any act purporting to divest the estate of property after death required at the very least prior notice to the personal representatives and a fair opportunity to be heard. The audi alteram partem rule was a valid pre-condition to valid deprivation which was not met in this case.

Counsel further argues that the letters in Exhibit 2 series were written between 2007-2010. The impugned assignment of Plot No.10 occurred in 2012 after the death of the Testator and before probate. Even if the 2007-2010 letters could be read as notice of financial complaints, they could not operate as notice of a specific decision to be taken to divest Plot No. 10 and transfer it to a different member. Nothing in the letters told the Testator or later his estate that Plot No 10 would be taken away if refunds were not made.

Additionally, there was no proof of the very payment the lower courts treated as the linchpin of the transfer. No receipt, voucher, or entry into the records of the Company or the Liquidator’s cash book to show the alleged payment of GH¢27,000. The 2nd Defendant also failed to tender any letter to show that he was to be assigned the subject property if he paid GH¢27,000. The only mention of the payment of GH¢27,000 as a “top up” appeared in the deed of assignment itself as recital which was self-serving not amounting to proof of consideration in the absence of contemporaneous documentary or testimonial evidence.

Counsel again faults the two lower Courts for treating a complete allocation of the subject Plot in Exhibit F as a revocable interim, discounting the legal and evidential significance of Exhibit F as a culmination of the distribution. Exhibit F was not an ambiguous memo; it listed the net assets and places the subject property in the Testator’s column. To conclude that the same Liquidator could later re-allot that very asset to a different member without reconciling the text of Exhibit F was a perverse finding. He further submits that the Plaintiff attested to a clean chain: Exhibit F allocates Plot No. 10 to the Testator; the Will and probate follow; the estate took steps to perfect. To overcome the chain, the 2nd Defendant needed positive evidence that Plot No 10 was made conditional or later lawfully diverted. The letters used to fulfill the gap did not contain the missing term.

Summary of the Defendant’s response.

The Defendant’s response may be put in the following outline:

At the time the Liquidator prepared Exhibit F, he Liquidator) did not have full record of the assets of the Company. Post Exhibit F, he discovered that some assets were not disclosed by the Testator. Upon this it became necessary to redistribute the estate. Exhibit F therefore became a “redundant document” and not a “Final Liquidation Report”.

The Testator engaged in fraudulent acts by withdrawing various amounts of money from the accounts of the Company by hiding assets of the Company from the Liquidator. The fraud committed by the Testator vitiated the distribution in Exhibit F.

The Testator had been warned several times by Exhibit 2 series to return assets and monies of the Company which he failed to do. The Liquidator had the right to redo Exhibit F to do justice to all shareholders.

At the time of the redistribution, the Liquidator had not given legal ownership of the properties of the Company to the beneficiaries. It was therefore less difficult to temper with the distribution in Exhibit F.

There is record of the Liquidator’s acknowledgment of the payment made by the 2nd Defendant. The process of the assignment to the 2nd Defendant was to vitiated anyway and that he took the property upon a legitimate transaction.

Resolution

There could be no doubt that after the preparation of Exhibit F, the Liquidator was still within his authority based on changed circumstances, to adjust or calibrate his decisions on the distribution of the assets. As the learned Justices of the court below observed, liquidation was a process and not a single event. The Liquidator was to act in the best interest of the Company even in the process of the liquidation. As Liquidator, he was in a fiduciary relationship with the Company in terms of Section 253 of the repealed Companies Act (Act 179) which provided thus: “253. A liquidator appointed for the purpose of a private liquidation shall be deemed to be in a fiduciary relationship to the company as if he were a director of the company and accordingly the provisions of sections 203 to 216 of the Coe shall, mutatis mutandis, apply.” Of particular interest will be the duty under Section 203, to act at all times in what he believes to be in the best interests of the company which includes the interests of employees and members as well as the preservation of its assets. See ADOMAKO VRS ENTERPRISE INSURANCE CO LTD & CONSORTIUM HOUSE LTD. [2011]1 SCGLR 247 at 268-269.

But then, the Plaintiff is not challenging the power of the Liquidator per se, to adjust or calibrate the distribution made in Exhibit F. He challenges the timing and manner the Liquidator went about the transaction leading to the transfer of the property to the 2nd Defendant.

It is to be noted that at all material times after the allocation of the property to the Testator, the Testator was in possession of the property. Evidence of this is seen in the probate granted in respect of his Will where the property is described as his last place of abode. (Page 52, Vol.1 ROA). Indeed, his tenants were in possession years after his death explaining why the 2nd Defendant had to serve notice on them to vacate the place. See Exhibit E, Page 58 Vol.1 ROA.

The fact that there was no formal assignment of the property to the Testator did not mean he did not have any interest capable of being devised in his last Will. Whilst the assignment could have vested the Testator with a legal title, in law, it is not only a legal title existing at the time of making a Will that is devisable. Equitable interest such as that acquired by making part payment under a contract for the acquisition of property is devisable. It must be pointed out that the allocation of the property to the Testator was not for free. It was in consideration of his equities in the Company as shareholder. It is common learning that assets distributed to shareholders in the process of liquidation are in consideration of their shares in the Company. As residual claimants, it is the distribution to them in exchange of their equities that leads to the eventual dissolution of the Company and extinction of their shares. Therefore, the Testator, like any other shareholder had an equitable interest in the property allocated even prior to a formal assignment.

Again, one may devise a property to which he will be entitled at the time of his death or even thereafter. This is clear from Section 1(1) of the Wills Act which states:

“1(1) A person of or above the age of eighteen years may in writing and in accordance with this Act, make will disposing of the property

Of that person, or

To which that person will be entitled at the time of his death, or

To which that person may be entitled after death.

It seems to me therefore that any conclusion that the property was not devisable because the Liquidator did not assign it to the Testator at the time of making the Will is flawed in law. In another sense, the case represents at best, a situation where the Testator had taken the property subject to the claims which the Liquidator was making against him. This, by no means can be taken to mean that the Testator had no interest in the property at all.

It is uncontested that the property had been allocated to him at the time of his death and that he was in possession of same. In my well-considered opinion even if there was no formal assignment, the combined effect of the allocation in Exhibit F and the Testator’s possession of the property gave rise not only to equitable ownership but presumptive ownership. Section 48(2) of the Evidence Act states that a person who exercises acts of ownership over property is presumed to be the owner of it. It was on the strength of this ownership that the devise of the property in the Will of the Testator derives its validity. This specie of ownership unless properly rebutted by due process of law could not be divested by the Liquidator. I shall come to the subject of due process.

Now, the sheet anchor of the 2nd Defendant’s case is Exhibit 2 series in which the Liquidator made demands on the Testator to remedy the various misconducts perpetrated by him. Let me reproduce these letters here for a fuller appreciation of their contents and effects.

In Exhibit 2A the Liquidator on 29th May 2007, wrote to the Testator through his lawyers as follows:

“Dear Sir

RE-MESSRS KOFI SARPONG BROTHERS AND SONS LIMITED (IN LIQUIDATION)

Following the receipt of yours dated the 24th May 2007 on the above subject and our meeting on the 28th May 2007, we wish to inform you in writing as follows:

The Company was dissolved on the 21st November, 2006.

Every ex-director, including Nana Kofi Sarpong has been paid all his entitlements.

Nana Kofi Sarpong, using his former status as Chairman of the non-existent Company, fraudulently withdrew ¢216,467,812.50 from the company’s current account at the National Investment Bank Limited, Kumasi. He has earlier on pocketed ¢400 Million being proceeds from the sale of the Company’s four plots at Asuyeboah, Kumasi.

We, not very much willing to embarrass him, asked him to refund the c 400Million so that we could pay the “End-of-Service Benefits” to the ex-employees of the Company. It was when he refused that we reported the matter to the Regional C.I.D., Ghana Police, Kumasi.

It was when we have briefed him on the issues involved, that he promised to refund the ¢400 Million, and in fact, paid ¢100 Million on the 26th April 2007, the amount which we have disbursed to the ex-employees as payment on account of the benefits. Nana Sarpong promised to pay the remaining ¢300,000 Million by installments in May, June and July 2007.

We told him we are unable to stop the police action, but could only suspend it, pending he, refunding the ¢300 Million as promised.

We wish to conclude that we have never asked him to use his resources to for the purpose. We have legally asked him to refund the money fraudulently applied. As decided, we shall be looking forward for the c 100 Million by close of 31st May 2007. If he fails, we shall only ask the police to prosecute him. While appreciating your kind reception, we hope you will advise him accordingly…” (Page 112-113, Vol. 1 ROA)

In Exhibit 2C dated 24th August 2010 the Liquidator wrote the following:

“Dear Sir,

RE-MESSRS KOFI SARPONG BROTHERS AND SONS LIMITED (IN LIQUIDATION)

You are not doubt aware that we are the official liquidators for the above-named company. We are in the process of forwarding our final report to the Registrar-General. But the Minority Shareholders have some concerns which need to be addressed immediately. These concerns are as detailed below:

You failed to disclose the companies assets in Lome and Takoradi to the Valuer, Messrs Goldstreet Real Estate Consult.

You failed to disclose the payments you collected against Logs sold to Messrs Scanstyle Min Limited in 1997, 1998 and 1999.

You failed to account for the plots you sold for GHC 40,000.00

Summary of the above undisoclsed items is as follows:

(IN GHANA CEDIS). . .

You are hereby given two weeks from the date of this letter, to furnish us with the following pieces of information:

The Bank or Banks into which you deposited the amounts.

The Bank where you maintain the Account No. 2.

How these amounts were disbursed.

Failing, we shall share the amount of GHC 271,144.12 amongst the shareholders with the shares they hold in the company as follows:

Nana Kofi Sarpong (50%) 135,572.06

Mr Kwame Boahen (20%) 54,228.83

Mr Charles Kwasi Addai (10%) 27, 114.41

Madam Abena Twiaa (10%) 27,114.41

Madam Akosua Boatemaa 27,114.41

TOTAL GHC 271,114.12

Be kindly informed that we shall dutifully support the Minority Shareholders to claim the amounts due to them from you. Thank you…” (Page 114-115, Vol. 1 ROA)

The next letter dated 11th April 2007 states:

“Dear Nana,

RE-MESSRS K.S.B.S. LTD (IN LIQUIDATION)

You are no doubt aware that we were appointed the Official Liquidators for the above-named Company on 12th December, 2006 under your own signature as the then Chairman of the Company. Be further informed that as Liquidators, we have twelve months from the date of appointment to execute our duties. Our duties include collection of debts from the debtors, assessment of the value of the Assets of the Company and the settlement of the liabilities of the Company.

The Management of the Company is required by the provisions of the Companies Code, 1963 (Act 179) to have kept proper books of account but you failed to do so. However, you gave us official Valuation of the Assets of the Company upon which we relied and caried out the assignment.

You will agree with us that we have settled all claims against the Company. We have thereafter detected that you as the then Chairman unlawfully collected certain sums of money belonging to the Company. Some of the details are as under:-

Sale of 4 (four) Building plots for ¢400,000,000

Withdrawal of huge sums of money from the Company’s Account at National Investment Bank Limited, Kumasi and SG-SSB Bank Limited at North Kaneshie, Accra

Collection of Freight money from the Cocoa Board on the 12th February 2007 when you did not have the authority.

All these amount to fraud and stealing of the Company’s Assets which are in our charge. We request as follows:

Within Seven days from the date of this letter, kindly deposit all funds you have unlawfully applied for your own benefit., but belonging to the Company into the Account No. 6121010014093 in the name of Alexander Akuamoah-Boateng the undersigned to avoid any trouble. . .” (Page 116, Vol. 1 ROA).

Ther next letter dated 22nd October 2007 stated:

“Dear Sir

RE-YOUR FAILURE TO HONOUR YOUR PROMISE ¢400,000,000 (¢ 40,000.00)

Apart from having satisfied your claim of ¢16,440,500 (GH¢ 1,644,050.00) you illegally withdrew ¢216,000,000 from the Company’s Account at National Investment Bank Limited, Kumasi, and also sold (Four) Building Plots at Asuyeboa for ¢400,000,000 all totaling ¢616,000,000 (GHC 61,600.00).

We, as Official Liquidators of Messrs Kofi Sarpong Brothers and Sons Limited on humanitarian grounds, agreed with you to pay ¢400,000,000 (GH¢40,000) within a period of four month (from May to August, 2007) so that we could apply in paying the “End-of-Service Benefits” to the Ex-Workers. Since then, you have paid only ¢55,000,000 (GH¢5,500) and have refused to pay the balance of ¢345,000,000 (GH¢34,500.00).

We have therefore decided as follows:-

We have sold the Company’s Plot 4 “R” (Workshop) at Asuyeboa to Messrs 2F International Company Limited and

We are in the process of selling Plot 40, BLK III Asuyeboa.

The proceeds would be applied in settling all Company’s outstanding liabilities. Any surplus thereafter shall be shared to the Ex-directors in accordance with their shareholdings.

Be kindly informed that you are indebted to the Company as detailed below:

Balance of proceeds from sale of 4 (Four) plots 245,000,000

Amount illegally withdrew from N.I.B Ltd 216,000,000

Total 461,000,000

GH¢ 46,100.00

Be further informed that any surplus due to you would be applied in settling your debt. You have been duly informed…” (Page 117, Vol. 1, ROA).

It will be observed that whilst in the above letters, the Liquidator pointed out the alleged unlawful conducts of the Testator to him and justifiably so, demanded of him to right his wrongs, he was careful in each case, in pointing out what was to happen in the event the Testator defaulted. Let me, for precision, recapture what he put across. In the letter of 29th May 2007 (Exhibit 2A) the Liquidator warned:

“We wish to conclude that we have never asked him to use his resources for the purpose. We have legally asked him to refund the money fraudulently applied. As decided, we shall be looking forward for the c 100 Million by close of 31st May 2007. If he fails, we shall only ask the police to prosecute him. While appreciating your kind reception, we hope you will advise him accordingly…”

Then, in the letter of 24th August 2010, he concluded:

“Be kindly informed that we shall dutifully support the Minority Shareholders to claim the amounts due to them from you. Thank you…”

In the letter of 11th April 2007, he stated:

“All these amount to fraud and stealing of the Company’s Assets which are in our charge. We request as follows:

Within Seven days from the date of this letter, kindly deposit all funds you have unlawfully applied for your own benefit., but belonging to the Company into the Account No. 6121010014093 in the name of Alexander Akuamoah-Boateng the undersigned to avoid any trouble. . .”

Finally, the letter of 22nd October 2007 contained the following decision:

“We have therefore decided as follows:-

We have sold the Company’s Plot 4 “R” (Workshop) at Asuyeboa to Messrs 2F International Company Limited and

We are in the process of selling Plot 40, BLK III Asuyeboa.

The proceeds would be applied in settling all Company’s outstanding liabilities. Any surplus thereafter shall be shared to the Ex-directors in accordance with their shareholdings.

Be kindly informed that you are indebted to the Company as detailed below:

Balance of proceeds from sale of 4 (Four) plots 245,000,000

Amount illegally withdrew from N.I.B Ltd 216,000,000

Total 461,000,000

GHC 46,100.00

Be further informed that any surplus due to you would be applied in settling your debt. You have been duly informed…”

In none of the letters in Exhibit 2 series was reference made to Plot No 10, Block R Asuoyeboa. As a matter of fact, in the letter dated 22nd October 2010, which was the latest in time, reference was made to the sale of Plot No 4 “R” and the intended sale of Plot No 40 Block III Asuyeboa for the same purpose for which Plot 10 Block R was purported to have been sold (settling all company’s outstanding liabilities). It must be strange to relate that having taken over those two properties and sold Plot No 4 Block R for the purpose indicated, Plot No 10 should also fall to be sold for the same purpose. At any rate, it is for me, reasonable to suppose that if the Liquidator ever intended to also sell Plot 10 Block R, and apply the proceeds for the same purpose, fairness would require a similar correspondence to put the Testator on notice. This was compellingly so given that the property had been formally allocated to him in the process of the liquidation and there was evidence that he was in possession up to the time of his death. In any event, why did the Liquidator not sell the property in the Testator’s lifetime? Why wait till his death in 2011 before selling the property to the 2nd Defendant in 2012?

I must point out that the Liquidator’s statutory power to dispose of assets of a company in the process of liquidation is not absolute. It is to be exercised in accordance with due process. I agree, generally, a Liquidator wields very broad commercial and administrative discretion in the process of liquidation. Doubtlessly, much discretion is required in realizing, managing and disposing of assets of a Company during liquidation. However, this discretion, derived from statute by which he is appointed, and by which his acts are regulated, is subject to fairness and due process prescriptions particularly those contained in article 296 (a) and (b) of the Constitution. It is therein provided:

“Where in this Constitution or in any other law discretionary power is vested in any person or authority—

That discretionary power shall be deemed to imply a duty to be fair and candid;

The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”

In the proper exercise of the discretion, the personal representatives of the Testator on whom the property for the time being had devolved by operation of law were entitled to be notified and heard on the sale of the property by the Liquidator to the 2nd Defendant, especially so when there were tenants in possession at the instance of the estate at the time of the sale. Proceeding to sell the property in those circumstances was arbitrary, unfair and capricious. This Court ought not to lend approval to such a sale. It has been held that a court may interfere in the acts of a Liquidator where he had inter alia not exercised his discretion bona fide. See HAROLD PITMAN & CO VRS TOP BUSINESS (NOTTINGHAM LTD) [1984] BCLC 593; EDENNOTE LTD, RE. ENGLAND & WALES COURT OF APPEAL (Civ.) May 21, 1996.

The duty to act fairly and hear an interested party permeates every human transaction. It does not pertain to judicial or quasi-judicial decisions only and certainly not avoidable in exercise of statutory powers as obtained in the case of a Liquidator.

Lord Denning in his treatise “The discipline of the law” Oxford, South-East Asia Edition, page 93-94) refers to his own rendition in R V GAMING BOARD, EX PARTE BENAIM [1970]2 QB 417 on the subject of fairness as follows:

“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and extent. Everything depends on the subject matter. At one time it was said that the principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v Baldwin [1964] AC 40. At another time it was said that the principles do not apply to the grant or revocation of licences. That too is wrong. So let us sheer away from those distinctions and consider the task of this Gaming Board and what they should do. The best guidance is, I think, to be found by reference to the cases of immigrants. They have no right to come in, but they have a right to be heard. The principle in that regard was well laid down by Lord Paker CJ in Re HK (an infant): “. . . even if immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.”

The Liquidator in this case, may have had the highest grade of evidence of wrongdoing against the Testator, yet he was bound to act fairly on his decision to assign the property to the 2nd Defendant.

That a Liquidator cannot do anything at his whims and caprices can be seen in the provision of Section 255 of Act 179 which subjects him to the Court’s powers and accords him a right to apply to the Court for directions in course of the liquidation. The provision states:

“(3) The Court shall have the same powers in relation to the liquidator in a private liquidation as are by the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) conferred upon it in relation to official liquidations; and the liquidator may apply to the Court for directions in relation to any matter arising in connection with the performance of his functions or to exercise all or any of the powers which the Court might exercise if the company were being wound up under the said Act and, on any such application the Court may give such directions or make such order as the Court thinks just.”

The essence of this provision, I believe is to allow the Court to offer the liquidator ‘judicial aid’ in the discharge of his duties with a corresponding opportunity for a person to be affected by the Court’s direction to be heard. Had the liquidator applied his mind to this provision, he could have enforced the right of the Company against the Testator and after his death, his estate and the estate would have also had their day in Court. The sale of the property without any such remedies could not be justified in law.

Let me finally touch on the very transaction that resulted in the assignment of the property to the 2nd Defendant. The Plaintiff had claimed that the assignment of the property to the 2nd Defendant was actuated by fraud. The trial Court and the Court of Appeal did not find fraud proven in this case. The second ground of appeal before us which had alleged fraud was on particulars different from what was alleged in the trial. That ground of appeal has been struck out as not well grounded. On my review of the record, I agree with the lower courts that the allegation of fraud was not proven to the required standard. This notwithstanding, it will be seen that the lower courts entered judgment for the 2nd Defendant on his counterclaim. The counterclaim was for the following reliefs:

“a. A declaration that title to Plot No 10 Blk R Asuoyeboah is vested in 3rd [2nd] Defendant.

Recovery of possession of the said Plot from the Plaintiff

An order on the Plaintiff to account for rent received from the tenants from 2012 till date of final judgment.

These reliefs were grounded on the transaction between the Liquidator and the 2nd Defendant leading to the assignment of the property to him. The Plaintiff had denied the validity of the transaction. Indeed, on the pleadings, the parties joined issue on the transaction for which the following was set down as issue (4); Whether or not the purported transfer of title of plot No. 10 Block R to the defendant was valid. [Page 36, VOL.1 ROA].

The 2nd defendant assumed the onus of proof of the transaction that led to the assignment. His averments on the transaction as contained in paragraphs 20-21 of his statement of defence were as follows:

“20. In further answer to paragraph 21 of the Plaintiff’s statement of claim, the 3rd [2nd] states that after the distribution, the Company had not paid the 3rd defendant and his deceased mother their full entitlement as contained in the valuation report. The sum of money due to the 3rd [2nd] defendant and his mother was GH¢93,000.00.

21. The value of Plot No.10 Blk R was GH¢120,000.00 The late Akuamoah Boateng informed the 3rd defendant and his mother that the GH¢93,000.00 cannot be raised and if they desire, they should pay an amount of GH¢27,000.00 to enable the title of Plot No. 10 Blk R to be assigned to the 3rd [2nd] defendant. The 3rd [2nd] defendant thus paid GH¢27,000.00 to the Liquidator who subsequently assigned Plot No.10 Blk R to the 3rd [2nd] defendant/.”

In the trial, the 2nd Defendant adduced no evidence of payment. The only evidence sought to be relied on was a recital in the impugned deed of assignment, Exhibit C wherein it was stated:

“NOW THIS DEED OF ASSIGNMENT WITNESSETH AS FOLLOWS that in pursuance of the said agreement and in consideration of the assignee’s shares in the liquidated Kofi Sarpong Brothers and Sons Limited and additional sum of Twenty-Seven Thousand Ghana Cedis (Ghc 27000) paid by the Assignee unto the Assignor (the receipt) whereof the Assignor hereby acknowledges and admits) the Assignor hereby assigns unto the Assignee. . .”

This is the only evidence on record to prove payment of money. How could this recital amount to proof of payment of money under a transaction supposed to be regulated by statute? Counsel for the Plaintiff has submitted:

“Furthermore, Your Lordships, the 2nd Defendant also failed to prove the payment that, the courts below treated as the linchpin of his title. He produced no receipt, no voucher and no entry from any company or liquidator’s cash book to show a GH¢27,000 payment. He called no witness from the Liquidator’s office (or the Company) to attest to receipt of funds and disclosed no correspondence in which the Liquidator demanded GH¢27,000 FOR PLOT No. 10 or acknowledged that any such sum had been paid. The 2nd Defendant also failed to produce any letter suggesting that, he will be assigned the disputed property, of he pays the alleged Gh¢27,000.”

At its highest, the only mention of a “top up” appears as a self-serving recital which is not proof of consideration in the absence of contemporaneous documentary or testimonial evidence. In a transactional context, particularly one used to justify displacing an already-allocated asset, the best evidence would be simple and expected: a receipt or bank record and a confirming witness. None was provided. The unproven “top up” cannot cure the post-death, undisclosed assignment; it instead underscores the fragility of the 2nd Defendant’s case and removes factual premise on which the lower courts sought to justify the purported “adjustment”.”

I find merit in the above submission. The recital in the deed of assignment was not proof of payment. There must have been payment before the deed was engrossed if the account of the 2nd Defendant is a credible one. Proof of payment in transactions as here ought to be by receipt or a like instrument. The statutory rules regulating the liquidation of companies do not permit verbal transactions. There are strict provisions requiring the Liquidator to file documents evidencing all transactions. Section 256 of Act 179 had the following provisions:

The liquidator in a private liquidation shall keep proper records and books of account with respect to his acts and dealings and of the conduct of the winding up and of all receipts and payments by him and, so long as he carries on the business of the company, shall keep distinct account of his trading.

(3). So soon as the affairs of the company are fully wound up, the liquidator shall prepare and send to every member of the company final accounts of the winding up showing how the winding up has been conducted, he result of the trading during such time as the business of the company has been carries on, and how the property of the company has been disposed of, and thereupon shall convene a general meeting of the company for the purpose of laying before it such accounts and of giving an explanation thereof.”

The 2nd Defendant was a member of the Company. Apart from receipt of payment of GH¢27,000.00 he claims to have made to the Liquidator, he must have received accounts of the various transactions by the Liquidator including disposal of properties. In the teeth of these statutory provisions, a self-serving recital in the deed of assignment Exhibit C could not amount to proof of any payment. In the event, there was no proper evidence to show that the 2nd Defendant paid the alleged GH¢27,000 to the Liquidator, assuming the property was available in law to be sold. It was wrong for the two lower courts to conclude based on the recital in Exhibit C that the 2nd Defendant paid for the property. No proper evidence was adduced to support the conclusion.

In the final analysis, I hold that the property was lawfully devised by the Testator under his Will. The purported sale of same to the 2nd Defendant after the death of the Testator was not valid in law. The concurrent findings of the two lower courts were in erroneous in law. I therefore set them aside. See FRABINA LTD VRS SHELL GHANA LTD [2011]1 SCGLR 429; KOGLEX LTD (No.2) VRS FIELD [2000] SCGLR 175; OSEI (SUBSTITUTED BY) GILARD VRS KORANG [2013-2014]1 SCGLR 221 and GREGORY VRS NANA KWESI TANDOH IV [2010] SCGLR 971.

I allow the appeal, enter judgment for the Plaintiff on his claim as follows:

I declare that the property Plot No. 10 Block R AsuoYeboah-Kumasi was allocated to the Late Nana Kofi Sarpong (Deceased) upon the distribution of the assets of Kofi Sarpong Brothers & Sons Limited and formed part of his estates at the time of his death.

I further declare that the purported sale of the said property by the Liquidator of Kofi Sarpong Brothers & Sons Limited to the 2nd Defendant was unlawful and of no legal effect.

I, by the foregoing order the delivery up and cancellation of the Deed of Assignment made between the Liquidator and the 2nd Defendant by which the Liquidator purported to assign the property to the 2nd Defendant

I dismiss the 2nd Defendant’s counterclaim.

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS)

(JUSTICE OF THE SUPREME COURT)

COUNSEL

ELIAS ELIAS ASHKAR ESQ. FOR THE PLAINTIFF/APPELLANT/APPELLANT LED BY NANA OBIRI BOAHEN ESQ.

ALI GOMDAH ABDUL-SAMAD ESQ. FOR THE 2ND DEFENDANT/RESPONDENT/ RESPONDENT WITH NANA AKOSUAH AMOAKWAH ESQ.