Areeba ruling

AN Accra Commercial Court has dismissed an application filed by David Andreas Hesse, a director/shareholder of Scancom Ltd, seeking an order of interlocutory injunction to restrain the company from holding its shareholders’ meeting.
According to the plaintiff, the intended meeting was in breach of the Shareholders Agreement and the law because it was aimed at removing him as a director of the company.
The court, however, ruled that the plaintiff did not need to be on the board of Scancom Ltd for his interest to be established, arguing that a shareholder and a director were two distinct positions.
Following the court ruling, the shareholders’ meeting, which had been on hold since November 24, last year, can now conveniently take place.
No costs were awarded because Scancom Ltd and Investcom Consortium Holdings SA, the defendants, did not ask for costs and, therefore, the substantive case will have to take its normal course.
The court, presided over by Mrs Justice Cecilia H. Sowah, ruled that it would not disturb the shareholders, provided they gave a proper notice of removal to the plaintiff.
It said if the plaintiff was able to establish his claim in the substantive case, he would be adequately compensated at the end of the trial.
The plaintiff represented himself, while Mr Benson Nutsupi and Mr Larry Otoo represented Scancom Ltd and Investcom Holdings SA, respectively.
In the substantive case, Mr Hesse has sued the defendants, seeking an order to reverse the alleged capital increase, the alleged dilution of his shares from six per cent to two per cent and the alleged transfer of his shares to Investcom Consortium.
He is also seeking an order to restore his six per cent shares in Scancom Ltd or in the alternative an order directed at the company to purchase his shares in Scancom Ltd after a valuation of Scancom Ltd by independent auditors.
Furthermore, Mr Hesse is seeking an order to restore 3.4 per cent shares of Scan Construction Ltd in Scancom Ltd or an alternative order that 914,600 of the ordinary shares of Scancom Ltd, representing his 25 per cent interest in Scan Construction Ltd, be restored to him.
He is also seeking an order that the parties go into account to determine the amount of dividends due him on his shares and an order directed at the defendants to pay such amount to him.
The defendants filed two separate applications asking for a stay of proceedings pending arbitration but they were dismissed by the court because the disadvantage to the plaintiff, who was an individual fighting arbitration proceedings in London and a separate action against Scancom Ltd in another forum, far outweighed the advantages to the defendants if stay was granted.
According to the court, Investcom’s application was premised on Ghana’s Arbitration Act 1961, Act 38, especially Section 40, and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on June 10, 1958.
It stated that counsel for Investcom submitted that so long as the agreement had not been shown to be void, inoperative or incapable of being performed, then the court was obliged to stay proceedings so that respect was given to the mode agreed by the parties.
In respect of Scancom Ltd, the court concluded that the company, not being a party to the Shareholders Agreement, had no locus in filing an application for stay.
The plaintiff raised the issue whether the UK was a country recognised or declared by the President of Ghana to be a reciprocating party to the UN Convention and, if not, whether an application which proposed London as the forum for the arbitration could be granted when the law applicable was Ghanaian law.
The court held that the countries recognised by the President of Ghana to be parties to the UN Convention did not include the UK, as the law stood currently, and in effect an arbitrary award obtained in the UK could not be enforced in Ghana.
It said the particulars of the matters pleaded satisfied the requirements of the law and were sufficient to justify a refusal of stay in order that it would try those serious issues.
It was of the view that the plaintiff had more than discharged the burden on him to show cause why effect should not be given to the agreement to submit to arbitration in London.