IN THE SUPERIOR COURT OF IUDICATURE, IN THE HIGH COURT OF IUSTICE ACCRA, COMMERCIAL DIVISION, HELD ON THURSDAY THE 26Th DAY OF IANUARY, 2012 BEFORE HIS LORDSHIP IUSTICE RICHARD ADIEI¬FRIMPONG
SUIT NO. MISC/0512011
IN THE MATTER OF KOSA BEACH RESORT LTD AND ANNINOPA LTD
r. aYisJ
IN THE MATTER OF THE BODIES CORPORATE (OFFICIAL LIQUIDATOR)
ACT, 1963 (ACT 180)
BETWEEN
 

 
VRS
 

 

COUNSEL: MARIETTA BREW APPIAH OPPONG FOR PETITIONERS --PRESENT FREDERICK I3OAMAI I FOR RESPONDENTS PRESENT
Company Law - Winding up - Voluntary - Petitioners seeking for winding up under the Bodies Corporate (Official Liquidations) Act 1963 (Act 180) - Winding up relief sought on just and equitable grounds - Each side prepared to buy out the other - Whether action properly brought before court— Alternative relief available - Claim for winding up dismissed - Petitioners allowed to buy out Respondents.
 

 
IUDGMENT
Two Small Private Limited Liability Companies are in focus in these proceedings. "They are KOSA BEACH RESORT LTD AND ANNINOPA LTD. Henceforth in this delivery they shall be simply called "KOSA" AND "ANN INOPA".
The two Companies are wholly owned by the parties herein, Dutch nationals who had travelled to settle in Ghana purposely to do business.
The Petitioners are a husband and wife. They together hold a simple majority of 56% of the total shares in KOSA. The Respondents, also a husband and wife together hold the remaining 44% and from the records available the four (4) are the only directors of KO-SA. It is not in doubt that the object of KO-SA is mainly to operate a beach resort as a hospitality facility.
The share structure in Anninopa is 50% each for the Petitioners and the Respondents who are as well the first directors. Anninopa was incorporated from its regulations to carry on "Farming, food processing and manufacturing of Agricultural equipment". There is no evidence that any of these businesses has been carried out. The only known asset of Anninopa is the 1.96 acre land situate along the beaches of Ampenyi, a community in the Komenda Edina Eguafo Abrem District of the central Regional of Ghana. It is on this land that KOSA is situate and operated. I do observe that the issues that this court is called upon to determine and which it s!-,all endeavour to do, render the history of the formation of the companies significant to state and I state them briefly.
 

The Petitioners whilst in their home country planned to travel to Africa to invest in the hospitality industry. It was part of their intention to do this in association with others and they appeared to have discussed the idea with a friend. Co incidentally, I presume, the Respondents also shared a similar vision which fact became known to the same friend of the petitioners. It could therefore have only been a perfect opportunity for the two couples to associate to realize their common vision. The two sides eventually met in the Petitioners house back home to marry their plans together.
The Petitioners subsequently searched on the internet and found that KOSA was for sale. It was then known as KOSA CULTURAL CENTRE AND BEACH RESORT LTD.
With the consent of the Respondents the Petitioners negotiated with the former owners and settled on the price for the acquisition of that entity. The business was purchased for €222,500 out of which the Petitioners invested €124,600 and the Respondents €97,600.
This proportion in investment reflect the shareholding structure in KO-SA whose name they changed by a special resolution from the former to the present. The transaction was concluded some time in June 2007. When they commenced business, the parties as directors agreed to manage the business themselves and accordingly shared their roles as follows:
Pt Petitioner in charge of Finance and Administration. 2' Petitioner in charge Marketing and Reservation, 1st Respondent in charge of Gardening and Cleaning and 2nd Respondent in charge of Shopping and Kitchen matters. Anninopa did not exist before. The parties incorporated it some time in May 2007 when they came to Ghana.
 
These are facts that are not in any controversy and from them the conclusion should not be remote to draw that the acquisition and incorporation of the companies in particular and the intention of the parties to invest and do business in the country in general must have been founded on mutual understanding, trust and projected harmony.
In recent times however, the relationship appears to have fallen on evil days and the result of all is the instant action by which if the facts the evidence and the law will warrant it, could, beyond the strained relationship between the two couples, occasion the demise of the corporate entities of KOSA and Anninopa.
The Petitioners have sought the following reliefs:
a)	An order of the court directed at the Respondent to sell their 44% share
in KOSA and 50% share in Anninopa to the Petitioners at the price of
USD 98,245.00 in accordance with the valuation report or in the
alternative.
b)	That the companies be wound up by the court under the provisions of
the Bodies Corporate (official Liquidations) Act 1963 (Act 180)
c)	Costs
d)	Further or other reliefs.
The Respondents have also cross petitioned as follows:
a)	An Order to buy out the Petitioners shares of 56% of KOSA and 50% of
Anninopa for an amount of 115,000 Euro from the companies.
b)	Interim injunction to restrain the petitioners from winding up the
companies.
 
cJ Costs
Section 246 (1) of the Companies Act 1963 Act 179 provides:
1. "The winding up of a company may be either
a)	By an official liquidation in accordance with the provisions of the Bodies Corporate (official liquidations) Act 1963, Act 180 or
b)	By a private liquidation in accordance with the provision of this part of the code".
Both the long and short titles of the Bodies Corporate (Official Liquidations) Act 1963 Act 180 indicate that the provisions therein govern official liquidation in accordance of which the jurisdiction of this court has been invoked. The relevant provisions are in Section 4 subsections 1, 2 and 5 which state:
"4 (1) The Registrar or any other person who is
a)	A creditor of the company
b)	A member or contributory of the company or
c)	The Attorney General, but only on the grounds specified in paragraph (c) of subsection 2 may present a petition to the High Courtfor the official winding up of the Company.
2) The High Court may order the official winding up of a company on a Petition presented under subsection 1 where,
a) The company does not within a year from its incorporation, commence to carry on all of the businesses which it is authorized by
 
its Regulations to carry on, or suspends any of those businesses for a year.
b)	The company does not have members;
c)	The business or objects of the company are unlawful, or the company is operated for an illegal purpose, or the business being carried on by the company is not authorized by its regulations;
d)	The company is unable to pay its debts or
e)	The court is of the opinion that it is just and equitable that the company be wound-up.
(5) Where the Petition is presented by members or contributories of the company on the grounds that it is just and equitable that the company should be wound up the High Court, if it is of the opinion
a)	That the Petitioners are entitled to relief by winding-up the company or by some other means and
b)	That in the absence of any other remedy it will be just and equitable that the company should be wound up,
Shall make a winding up order unless it is of the opinion that another remedy is available to the Petitioners and that they acted unreasonably in seeking to have the company would up instead of pursuing that other remedy".
The Petitioners have sought the winding up relief on the just and equitable ground under the above Section 4 (2) e and S.
BENIN I. (as he then was) noted in the Case of BILLY VRSKUWOR (1991)1 GLR 522 at page 529 that
 
"When it comes to consider the just and equitable rule, it is a question of fact and as such each case must depend on its own circumstances. The court therefore has unfettered discretion in this exercise since it is not possible to lay down a general guide to the solution of what are essentially individually cases".
See also In RE BLERIOT MANUFACTURING AIRCRAFT (1916) 32 TIMES LR
253.
In their pleadings, the petitioners have levelled several allegations against the Respondents to form the grounds for their winding up relief. For the sake of brevity I sum them up as follows:
1)	The Respondents failure to perform their obligations in the business of the company and showing no interest in the progress of the business.
2)	Poor business relationship between the Respondents and employees of the business and neighbours.
3)	Bad human relations between the Respondents and client.
4)	Finding the Regulations and laws of Ghana absurd. Hence difficulty in handling company matters with government officials and institutions and
5)	Making unsubstantiated accusation of fraud against the Petitioners
resulting in the breakdown of trust and cooperation in the running of the company.
In consequence of these allegations the Petitioners further pleaded as follows in paragraphs 25 and 26 of the petition.
 
"25. Petitioners state that the mutual trust based upon which the parties entered the business has broken down, the business relationship has turned sour and there is no communication between the parties.
26. The Petitioners shall contend that it is not their intention to have the companies wound up but having regard to the circumstances of the matter it is just and equitable that KO-5'A and Anninopa be wound up".
It is right to state that these allegations made by the Petitioners against the Respondents must be proven before they can ground the conclusions drawn for the relief sought.
But before examining the evidence adduced, I shall reiterate the point I earlier made that two companies are involved in these proceedings. It is true that the members and the Directors of the two entities are the same. That however does not intermix their separate and distinct legal status. This is moreso when their authorised businesses do differ. It seems to me that relating to the evidence and the facts established, this dichotomy seems to have been lost on the parties and even on Counsel.
Learned Counsel for the Respondent in his address had made an introductory remark which appeared to have highlighted the distinction. He submitted
"My Lord the facts and background to this case is straightforward. The Petitioner and the Respondent are Dutch nationals who met and agreed in 2005 to invest in a common business KOSA Beach Resort Ltd and Anninopa Ltd. Regrettably however the fact of the two businesses having separate and distinct legal personalities separate from the personalities of the Petitioners and the Respondents seems lost on the Petitioners".
 
Whilst I agree with the principle as indicated by Counsel, he also seems to have, down the line mixed up the implications of the distinction as the conclusions in his address did not reflect the corporate divergence he had drawn initially.
I establish that the grounds urged on this court for the winding up of KOSA may and as the facts will show could not be the same for the winding up of Anninopa. As a matter of fact Anninopa as a Company has never been operational.
In the Regulations of Anninopa which is part of Exhibit 'B' before me, the
authorised business of Anninopa are:
"a) Farming b) Food Processing and
c) Manufacturing ofAgricultural equipment".
There is no evidence, none at all to show that any of these has ever been carried out. It comes out clearly that when the parties sat down and shared their responsibilities in the management of the business it related to KOSA. Anninopa has nothing to do with Reservations, Kitchen, Gardening and Cleaning. Indeed all we are told of Anninopa as far as business is concerned is the fact that it owns the land on which KOSA operates. That has nothing to do with farming food, processing and manufacturing of Agricultural equipment.
I entertain no doubt that all the events resulting in the controversy, the allegations and counter allegations, relate to the business of KOSA. None can apply to Anninopa. Those allegations even if proven cannot in my opinion be relied upon to order the winding up of Anninopa.
 
Therefore "The just and equitable" provision in Section 4(5) of Act 180 is inapplicable to Anninopa. But then the fact which has come out clearly and which this court cannot gloss over is that Anninopa since its incorporation has not carried on its authorised business and that is since May 2007. There is no indication that any of the objects of farming, Food Processing and Manufacturing of Agricultural machinery is intended to be carried out. The provision in Section 4 (2) ( c) of 180 is clear that the court may order the winding up of a company if it has failed to carry on its authorised business within 1 year of its incorporation or suspends any of those businesses for 1 year. The view of the court is that if Anninona is to be wound up, it could only be done under Section 4 (2) ( c) and not 4 (2) (e) which states the just and equitable ground.
In any case however, the power vested in this court under Order 4 (2) ( c) just like that under the "just and equitable" ground is permissive and discretionary. And like any discretionary authority, the power ought to be exercise in the manner the justice of the case shall dictate.
An element of complexity of this case is that because KOSA is situate and run
on the land owned by Anninopa, any winding up order of Anninopa will
certainly affect the business of KOSA.
I shall therefore proceed to consider the case of KOSA before making any
orders about Anninopa.
In considering KOSA, I think that the reliefs being sought by the parties should be put in perspective. As far as the Petitioners are concerned the winding up order is an alternative relief. The primary relief if may describe it so is for an order to buy out the Respondents. For the Respondents, winding up is out of
 
the question. They want to buy out the petitioners. Let me state that the fact that each side is prepared to buy out the ether does not mean a winding up order cannot be made. In the case VUJNOVICH AND ANOR VRS VUJNOVICH (1989) LRC 634, the court found just and equitable grounds to wind up the company even though either side was prepared to buy out the other.
It all depends as indicated earlier on the circumstances of each case.
Lord Cozens-HARDY MR. highlighted this position clearly in the case of YENIDJE TOBACCO LTD. (1916) CH 4,.6. In that case the only two shareholders and Directors with equal management and voting rights became so hostile as to refuse to speak to each other. Despite this the company still made high profit. The court held that the company ought to be wound up because there was a complete deadlock. His Lordship states at page 432 thus
"If ever there was a case of deadlock! think it exists here, but whether it exists or not, I think the circumstances are such that we ought to apply, if necessary the analogy of partnership law and to say that this company is now in a state which could not have been contemplated by the parties when the company was formed and which ought to be terminated as soon as possible. We are told that we ought not to do it because the company is prosperous; making large profits, rather larger profits than before the disputes became acute. I think ones knowledge of what one sees in the street is sufficient to account for that, having regard to the number of cigarettes that are sold for that, and we can take judicial notice of that in judging whether the business is much larger than it was before. Whether such profits would be made in circumstances like this or not, it does not seem to me to remove the difficulty which exists. It is contrary to the good
 
faith and essence of the agreement between the parties that the state of things which we find here should be allowed to continue"
Lord Warrington in the same opinion stated:
'lam prepared to say that in a case like the present, where there are only two persons interested, where there are no shareholders other than those two, where there are no means of overruling by the action of the general meeting of shareholders the trouble which is occasioned by the quarrels of the two directors and shareholders, the company ought to be wound up if there exist such ground as would be sufficient for the dissolution of a private partnership at the suit of one of the partners against the other. Such ground exists in the present case. I think, therefore that it is just and equitable that the company should be wound up".
Also in LOCH & ANOR VRS JOHN BLACKWOOL LTD. (1924) AC 783 LORD SHAW in his judgment refers to the case of BAIRD VRS LEES (1924) SC 83 in which the just and equitable rule was made manifest in the following words.
"I have no intention of attempting a definition of the circumstances which amount to a just and equitable" cause. But I think I may say this. A shareholder put his money into a company on certain conditions. The first of them is that the business in which he invests shall be limited to certain objects. The second is that it shall be carried on by certain persons elected in a specified way. And the third is that the business shall be conducted in accordance with certain principles of commercial administration defined in the statute, which provide guarantee of commercial probity and efficiency. If shareholders find that these conditions or some of them are deliberately and consistently violated
 
and set aside by the action of a member and official of the company who wields an overwhelming voting power and if the result of that is that, for the extrication of their rights as shareholders they are deprived by the ordinary facilities which compliance with the companies Act would provide them with, then there does arise in my opinion a situation in which it may be just and equitable for the court to wind up the company".
There is no way paucity of authorities demonstrating the myriad of circumstances which render the just and equitable principle applicable. Learned Counsel for the Petitioners in inviting this court to wind up the companies referred me to the cases of IBRAHIM VRS WESTBOURNE GALLERIES LTD (1973) AC 360;
In RE ZINOTTY PROPERTIES (1984) 3 LL ER 754;
RE: WORLDHAMS PARK GOLF GOURSE LTD (1998) 1 BCLC; and
VIJJNOVICH VRS VUJNOVICH supra all of which are excellent authorities on the subject of the applicability of the principle. I need not go through them because of the view I shall express in a moment.
As I read Section 4 (5) of the Bodies Corporate (Official Liquidation) Act 1963 Act 180, my understanding is that where there is the availability of another remedy, the court may not wind up a company on the just and equitable ground. And the court will not so do where it is plain and obvious that the Petitioner has an adequate alterative remedy but is unreasonably pursuing a winding up petition. I suppose the position of our law only emphasizes the
 
D
popular view that winding up a company should be done as the last resort by a court.
In Re A Company (No. 003028 of 1987) (1988) BCLC 282, the majority shareholder purported to remove the minority from office as director on the ground of serious misconduct. The minority commenced on action by a writ claiming inter alia damages for breach of contract and also presented a winding up petition. The court struck out the winding up petition because in the view of the court the action commenced by the writ would be determinative of the parties rights.
Similarly in RE A (No. 004415 of 1996) (1997) 1 BCLC 497 the Vice Chancellor struck out the claim for winding up, holding that a share purchase order would be an adequate remedy and that the retention of the winding up claim could damage the business of the company.
In the instant case, the issue is simpler. The winding up claim is an alternative remedy. The Petitioners also seek a share purchase order. The Respondents not only resist the winding up claim but seek an order to buy the petitioners out. I am of the view that by their respective claims the parties have taken the position themselves that there exist some alternative remedy which will address their grievances. They have indeed specifically sought and pursued that remedy. Within the context of Section 4 (5) of Act 180 therefore, ordering that KOSA be wound up is not an order this court should make. Although in certain cases the authorities have shown that it will not matter, I am in this case further persuaded by the undeniable fact that KOSA is doing well as a business, making some profit and generating employment. In an economy where the level of unemployment is towering I doubt whether if
 
there are no statutory or other special reasons for it a court in Ghana today should be happy in pronouncing the demise of a hiring company like KOSA. Law should aid development and those of us who interprete them should be the apostles.
I have given thought to the reasons assigned by the Petitioners for the winding up of the companies. I have considered the evidence adduced by the Petitioners to prove them and that by the Respondents in rebuttal. In the light of my findings on Anninopa Ltd and the conclusion I just drew that its sister company KO-SA ought not to be wound up I do not find it necessary to determine in any detail the merit of the individual allegations proffered by the Petitioners for the winding up order sought. However for the reason that some of them relate to the integrity of the parties, I shall make a few comments on them. Generally I find some of the allegations, petty, some unfounded and unproven. For instance the allegation that the Respondents left the business of the Company and went on their holiday without leaving a contact address turned out to be devoid of merits. The evidence adduced
showed that just as the Respondents went on their planned holiday, the Petitioners also subsequently went on their planned holiday. The following exchange which took place when Counsel for Respondent cross-examined the 2" Petitioner should amplify the point being made.
Q:	During the Construction of the restaurant, Respondents embarked on
their annual planned holiday.
A:	It was the first time in three (3) years so it wasn't an annual holiday
which they spent in the Netherland.
 
Q:	And as you rightly put it being in the country for two (2) years plus they
had pre-informed you that they will be taking their annual holiday at
that time of the year.
A:	They informed us that they would take a holiday
Q:	Before they went on that holiday also the work on the restaurant was
almost completed.
A:	the work on the restaurant was not completed
Q:	I didn't say it was completed; I said it was almost completed they had
done a substantial part of the construction at that time
A:	They had done a lot of work at that time
Q:	This holiday was four (4) weeks
A:	That is correct
Q:	When the Respondents returned to Ghana and do the business not quite
long you also took your planned holiday.
A:	We did take a holiday
Q:	And if you recollect, you took your holiday for eight (8) weeks
A:	The holiday was for seven (7) weeks
Q:	In your absence the Respondents also had to hold the fort
A:	They were at that moment responsible
 
Respondents abandoned their schedule and travelled for a holiday. A:	I haven't mentioned the word abandoned".
It is clear from the above that the parties took their planned holidays in turns and in the absence of one couple, the other held the fort. The Petitioners even took a longer period of holidays and from the evidence on record at the time they did the restaurant was yet to be roofed with the raffia. It was not as if it was fully completed. There is also the evidence that whilst on holidays, the respondent exchanged e-mails with the Petitioners. This makes untrue the claim that the Respondent left for the holidays without a contact.
Again when the Petitioners alleged that the Respondents found the laws of Ghana absurd and hence had difficulty in handling company matters with Government Officials and Institutions I would have thought that they would substantiate it, serious as it was. But no single event was cited in an attempt to establish it. For me that was an accusation that sought to put the Respondents in a bad light. I deem this unfair. My observation in all this however is that the allegations are all symptoms of total breakdown of mutual trust and confidence. It all started when the Respondent resisted the Petitioners proposal to put up a private residential facility at the premises of the resort for their personal use.
Obviously, that was what led to the mediation process which turned abortive in resolving their differences and which eventually culminated in the decision to communication by email. Regrettably it will now not be far from the truth to describe their relationship as near rivalry. But for the fact that there is an
 
alternative relief which could be granted, this could have passed for a classical factual situation to order a winding up.
Having weighed all the facts and considered the law, I think I should reject the Petitioners claim that ROSA be wound up. Earlier in this judgment, I stated that because ROSA is situate and operated on the land owned by Anninopa Ltd, any winding up order of Anninopa will certainly effect the business of ROSA. By this kind of operational linkage, the view of the court is that if ROSA should stay then, Anninopa should stay. Therefore whilst I recognize the fact that Anninopa could be wound up because it had not carried on any of its objects, seven ( 7) years or so after its incorporation I do not consider it a good exercise of this court's discretion to wind it up. ROSA survives on Anninopa's land and for that reason Anninopa must live for ROSA to survive. The two should either die together or live together.
I shall therefore similarly dismiss the claim for the winding up of Anninopa.
I shall however recommend to the future shareholders to consider merging the two companies or take immediate steps to commence the object of Anninopa.
Having dismissed the winding up claim, the obvious relief to grant is the order for either the Petitioners to buy out the Respondents or for the Respondents to buy out the Petitioners. The two sides can simply not co exist any longer to run the companies.
This obviously is a difficult decision to make having regard to the apparent fact that each side is strenuously prepared to take over the stake of the other. But before deciding on the options, let me determine the issue about the value
 
of the business and the valuation report that was prepared and tendered at the trial. This valuation report, Exhibit]' forms the basis of the price quoted by the Petitioners for the acquisition of tne Respondents shares. For the Respondents, the report means nothing to them. It does not reflect the realities of the business in terms of total assets and hence the value of the business. To the Respondent therefore the report cannot form the basis of any good offer. So when the Petitioners had the report in evidence through their PW1, the Respondent also brought in their expert to review the report. Exhibit '3' is the review report tendered by DW1.
The issue for determination is whether in its present form the valuation report reflects the true value of the business so as to form the basis of any good offer. I should point one thing out that the Asenta Property consulting, which did the valuation, was engaged to value the assets of KOSA. In their own executive summary in Exhibit 'Y it is stated:
"Asenta Property Consulting, a firm of Chartered Surveyors, Valuers and property consultants has been appointed by KOSA Beach Resort Ltd to advise the company on the open market value of the resort".
One controversy which arose in the course of the trial was the addition of the asset of Anninopa i.e. the land to the value of the assets of KOSA. The Respondents position which this court appeared to share was that if Asenta valued the assets of KOSA, then it was wrong for the value of the asset of Anninopa to be added up because the two were separate business entities. Whilst I still believe in the logic of this argument, I take the view however that given that presently the two businesses must necessarily be kept and run together, and given also that the only known asset of Anninopa is the land
 
whose value has been indicated in the report, the controversy dwindles and the court can conveniently assess the valuation report within the scope of the two companies. The first point to make is that by quoting their offer on the basis of the value stated in the valuation report, the Petitioners have proceeded from the premise that the report was prepared for purposes of the sale of the business. But was the valuation prepared for the purpose of the sale of KOSA?
There is nothing in the evidence to show that when Asenta was engaged it was told that the purpose of the exercise was for the sale of the business. It is said of valuation that one particular asset can have different values at one particular point in time depending upon the purpose of the valuation. So that for instance, talking about one and the same property and the same time, its value for say insurance purpose will be different from its value for sale purpose. Again its value for mortgage purpose will be different from its value for balance sheet purposes. I came across this information in a book titled
INTRODUCTION TO PROPERTY VALUATION (A.F MILLINGTON) 5th edition page 49-50.
The Defendants witness Mr. Amofa Agyemang made the same point in his evidence as follows.
Q: On number 4 of your findings you have indicated that it is not clear what the initial purpose of the valuation was..........would you mind explaining that one too to the court
A:	I was just being fair to do the valuer because when you are consulted to value a property the person would have to indicate the purpose for
 
which he needs the valuation report. If a valuation for example is requested for account purposes the values may be different from valuation for sale. For account purposes you are interested in the value of the asset minus depreciation in the books of the company so all those details are taken away. When it comes to value for sale, they are essentially different because you are selling out everything. So the purpose is to indicate how much I can sell this thing to day...............so it is important that the client indicates to the valuer the purpose for which they require the report that would enable the valuer to do exactly what the client wants".
This enlightenment from the authors of the book and from the witness affords me sufficient basis to raise the question as to the extent to which Exhibit 'J' the report does reflect the real value of the companies for purposes of sale, there being no indication that that purpose was made known to Asenta and there being no evidence to show that the exercise was done for that purpose.
Secondly the report also indicates clearly that Asenta valued the fixed assets of ROSA. It is stated in the executive summary under "JOB UNDERSTANDING" as follows:
"The Job involves the identification, survey and the determination of the open market value of all the fixed assets of the resort which includes land and buildings, chattels and equipment based on their existing use value......
The simple question to ask is does the business not have any assets apart from fixed assets? And if there are other assets, are they valueless?
 
KOSA is a beach resort that hosts guests on regular basis. I doubt if there were no current assets like stock and consumables. There is no mention of cash deposits. But the evidence of the Pt Respondent indicates that the company has a considerable cash deposit. Infact, a portion of the Pt Respondents evidence on this issue which is not controverted will not only show that the business has a strong liquidity position but will also demonstrated how wobbly the report is in terms of the asset value of the business. He said:
"Coming back to the amount, we bought KO-SA for €248,000 and even the former owner's price quoted on the internet was €410,000. After that we made further investments like buying a car for €10 000 doing some maintenance work on some buildings and we also had to pay the elders about GHt4,000 because of a small piece of land in front of KOSA. We did all these investment on 50/50 basis. I looked at the figures for the past nine (9) months for example, the average income of KOSA is GI-11.32,000 and profit for each month is GHt8,000. And even now we have about G11026,000 so when you compare that to the amount mentioned in the report then for me I don't take it very serious': This evidence makes much sense to me.
Even though, there is no evidence to show how much cash deposit the business had at the time of the valuation, I think I can safely infer that the business at that material time could boast of a sum considerable enough to render unrealistic any asset valuation which did not take it into account.
Assuming the property is to be sold today on the basis of the valuation report
and for that matter the quotation indicated by the Petitioners, what happens
to the GHC126,000 deposit which constitutes about 85% of the total value of
 
the whole business using the investment approach indicated by Asenta? (US$92,207.00).
Apart from the current assets, mention was also made of intangible assets like goodwill which was not factored. The PW1's explanation is that goodwill comes in when a facility has really made a name. 1 find this explanation unpersuasive. It is in the same report that the property has been described as having a "unique location". As the Respondents witness pointed out location is a unique attribute one cannot easily copy or reproduce. I strongly believe that if the property were to be sold, the fact that its location is unique will in some measure enhance its value and price. This is the sense in which I appreciate the position of the Respondents witness. If this did not matter to Asenta, then maybe it was on account of the method they adopted. With the valuation report considered, against the background of the other evidence on record I am not satisfied that the report gives the real total value for purpose of sale of the business. I find that the businesses have been woefully undervalued and Exhibit 'J' cannot form the basis of any realistic quotation.
For the purpose of one side buying out the other therefore, I strongly hold that a more comprehensive valuation should be conducted.
Now who should buy out the other? Counsel for the Petitioners has laid out three main grounds for me to consider and order that the Petitioners buy out the Respondents. These are in brief as follows:
1.	That the Respondents are the cause of the mistrust and the breakdown of the parties business relationship.
2.	That the Petitioners are the majority shareholders of KOSA
 
3. That the Petitioners have exhibited more interest in seeing the companies grow and achieve its full pitential.
On the other hand Counsel for the Respondent has pointed out the following:
1.	That the Respondents have shown that they have a passion to run the
business having resigned their lucrative jobs in Holland and relocated in
Ghana.
2.	That the Respondents have not shown any rule of law that allows them
as majority shareholders in KOSA to buy them out.
3.	That the Respondent have worked diligently and tireless and shown
commitment to buy out the Petitioners if they wanted to opt out.
I must confess that there is scarcity of local authorities on this area of our law. Counsel for the Petitioners invited me to draw an analogy from Section 218 of our Companies Act 1963 Act 179. However the provision there offers no assistance. The relevant provision is Section 218 (2) which confers on this court the power to make an order for the purchase of shares or debentures of members by other members or debenture holders on grounds of oppressive conduct. The provision does not prescribe that the majority should purchase the shares of the minority or vice versa.
There is therefore no analogy to draw. In the case of SCOTTISH CO OPERATIVE WHOLESALE SOCIETY LTD. V MEYER (1959) AC 324, the court ordered the majority to buy out the minority on grounds of oppressive conduct but it was for the reason that it was the majority that had perpetrated the oppression and not for the reason it was the majority shareholder. That case therefore gives only a little assistance.
 
I am of the opinion that, this court has discretion in the matter. And the object of this discretion for me should be; in whose hands can the companies do well.
The claim that the Respondents are the cause of the mistrust and break down is not established. I strongly think both sides share in the blame. It takes two to tango and the impression that the Petitioners always did right does not attract me. I also find that each side has contributed its fair due to the progress of the company. But let me say that, even though being the majority shareholder is not an established yardstick, it is also a fact which is difficult to wish away.
I also notice that when the parties sat down to share their management roles the Petitioners took the roles of finance and Administration and marketing and Reservations.
The Respondents took the roles of gardening and cleaning and shopping and kitchen. Comparatively, the roles taken by the Respondents are low keyed in the scheme of the business.
It is my view that the Petitioners, aside their majority shareholding in KOSA have also handled the more essential and key roles in the management of the business. These two factors give them a slight urge over the Respondents and they inform my decision that they are better placed to buy out the Respondents.
Accordingly, I rule that the Petitioners buy out the Respondents. This is subject to a comprehensive total asset valuation done for the purpose of the sale of Respondents shares and/or interest to the Petitioners. The cost of the valuation shall be at the expense of KOSA. Pending the valuation and the take
 
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over, I order that the parties continue with the respective roles and remain entitled to all benefits in the business as they exist presently. I order further that upon the valuation the Petitioners shall pay what is accruable to the Respondents in full within 30 days; and upon such payment, the Respondents shall with immediate effective cease to be members and Director of the companies. I charge the lawyers of the parties to agree on a valuation firm to conduct the valuation within 14 days from today. If the lawyers cannot agree on one then both or any of them may bring an application before me for the appointment of a valuer.
In the circumstance of this case, I order the parties to bear their costs in these
proceedings.
(SGD.)
RICHARD ADJEI-FRIMPONG
JUSTICE OF THE HIGH COURT

