Dispute over incorporation of Stanbic Bank GH Ltd : High Court gives Kwame Serbeh-Yiadom the green light

The High Court, on April 25, 2022, dismissed a motion filed by Stanbic Bank Ghana Limited and 2 others that sought to strike out portions of Mr. Kwame Charles Serbeh-Yiadom’s Writ of Summons and Statement of Claim in a suit challenging the incorporation of Stanbic Bank Ghana Limited.

The court, by its decision, has thus given the plaintiff, Mr. Serbeh-Yiadom the green light to prove the allegation of fraud relative to previous judgments won by the defendants.

Educationist and Real Property Consultant, Kwame Charles Serbeh-Yiadom first commenced an action against Stanbic Bank and others on October 2, 2000, at the High Court but the same was dismissed.

Subsequently, in March 2010, he took a second action but was again dismissed and barred from further litigating the matter.

Notwithstanding, on March 7, 2012, he issued yet another suit in the Commercial Division of the High Court but was once again dismissed and was again barred from further litigating the matter.

In his current suit, he describes the decisions in the previous cases as fraudulently decided thereby avers that the plea of estoppel per rem judicatam does not apply thus seeking the court to overturn them.

The plaintiff contends that he was one of the two original shareholders and amongst the first five directors of the Union Mortage Bank Limited, whose name has been changed to Stanbic Bank Ghana Limited per an ‘ineffectual’ Written Special Resolution of July 1999.

Further to this, he describes as fraudulent, how Union Mortgage Bank Limited was changed into Stanbic Bank Ghana Ltd and adds that the document contained certain entries which were not in the original, dated 9th July 1999.

The plaintiff also avers that even though it was he and one Alhaji Fattau El-Aziz who originally incorporated the Union Mortgage Bank Limited, he was not privy to the transaction in Johannesburg, South Africa between him and Doreen Iliasu, Company Secretary of the Stanbic Ghana Limited.

The defendant; Stanbic Bank Ghana Limited and two others filed a motion seeking to strike out certain paragraphs in his Writ of Summons and Statement of Claim.

They noted among others that the Statement of Claim is scandalous, frivolous, vexatious and an abuse of the process of the court citing the fact that Mr. Yiadom had been barred in the previous judgments from further litigating the issue.

On its part, the Court presided over by His Lordship Francis Obiri held that the interest of justice will be best served if the plaintiff, Serbeh-Yiadom is given the opportunity to prove his allegation of fraud in respect of the previous judgments.

He added also that if the plaintiff is able to successfully prove the allegation of fraud, the issue of him being barred from relitigating the matter against Stanbic Bank and others will not arise thus dismissing the application and ordering the case to take its normal cause.

Serbeh-Yiadom per the substantive suit is seeking a total of 95 reliefs. Among them are;

A declaration that Kwame Charles Serbeh-Yiadom andA!haji Fattau El-Aziz is listed in the system of the Registrar-General's Department as the original subscribers/shareholders each with 500,000 shares of no par value wo1th ¢500,000,000.

An order declaring Kwame Charles Serbeh-Yiadom and Alhaji Fattau El-Aziz as the subscribers/shareholders.

A declaration that Kwame Charles Serbeh-Yiadom has not disposed of any of his 500,000 shares in Union Mortgage Bank Limited.

A further declaration that Alhaji FaLtau El-Aziz has disposed of all of his 500,000 shares in Union Mortgage Bank Limited to SBIC AFRICA HOLDINGS LIMITED (SAHL).

An order declaring Kwame Charles Serbeh-Yiadom as owning 50% of the shares of Union Mortgage Bank Limited.

A declaration that Kwame Charles Serbeh-Yiadom, Alhqji Fattau El-Aziz, Edward Henaku Boohene, Samuel Wilfred Yaw lnkoom, and Joseph Ofori are listed in the system of the Registrar­ General's Department as the first 5 Directors of Union Mortgage Bank Limited.

An order declaring Kwame Charles Serbeh-Yiadom, Alhaji Fattau El-Aziz, Samuel Wilfred Yaw lnkoom, and Joseph Ofori as the surviving subscriber/shareholders of Union Mortgage Bank Limited.

A further order declaring Kwame Charles Serbeh-Yiadom, Alhaji Fattau El-Aziz, Samuel Wilfred Yaw lnkoom, and Joseph Ofori as proper persons to constitute the Board of Directors of Union Mortgage Ban_k Limited.

A declaration that the information which emanated from the Registrar of Companies in the 2 Search Reports dated 30'" August 2019 and 71' May 2020, constitute the discovery of new and important matter or evidence bothering on the allegation of fraud which after the exercise of due diligence, was not within the knowledge of either party and which would have had a material effect upon the decisions of the Court in the under-listed actions;

 

• S/No. MISC.2145/2000: Kwame Charles Serbeb-Yiadom v Staubic Bank (Gh.) Ltd.;
• S/No. FTC.8/2001: Kwame Charles Serbeh-Yiadom v Stanbic Bank (Gh.) Ltd.
• S/No. AC.94/2010: Kwame Charles Serbeh-Yiadom v Stanbic Bank (Gh.) Ltd. & Stanbic Africa Holdings Ltd. (UK).
• S/No. MISC.152/97: Union Mortgage Bank v Kwame Charles Serbeh-Yiadom;
• S/No. OCC.18/12: Kwame Charles Serbeh-Yiadom v Alhaji Fattau El-Aziz;
• Civil Appeal: S/No.Hl/188/13: Kwame Charles Serbeh-Yiadom (Plaintiff/Appellant) v Alhaji Fattau El-Aziz (Defendant/Respondent).

A further declaration that an action lies to rescind an earlier judgment on the ground of fraud and the discovery of new and important matter or evidence.

A further order that Alhassan Andani, Kodwo Atta Mills, Nana Dwemoh Benneh, Ernest Aryeetey, Kwamina Koranteng Asomaning, Asliok Mohinani, Estelle Akoflo-Sowah, and O/ayinka Sanni shall cease to hold office as Directors of 2nd defendant-bank, forthwith.

A further declaration that the name of  1st plaintiff-company was changed from Union Mortgage Bank Limited into Stanbic Bank Ghana Limited by Special Written Resolution passed on 27th July 1999, by Alhaji Fattau El-Aziz and Edward Afriye.

A declaration that the change of the name of 1st plaintiff-company by Special Resolution from Union Mortgage Bank Limited to Stanbic Bank Ghana Limited on 27th July 1999, was null and void as having been procured by fraud as set out in paragraph 27 of the statement of claim because Stanbic Bank did not exist at that date.

An order setting aside the change of Ist plaintiff company's name from Union Mortgage Bank Limited into Stanbic Bank Ghana Limited as having been procured by fraud, the details as set out in paragraph 27 of the statement of claim.

A declaration that per the provisions of the Agreement made and entered into on the 3rd day of March 1999, in Johannesburg, South Africa, between SBJC AFRICA HOLDINGS LIMITED (SAHL) and UNION MORTGAGE BANK LIMITED (UMB), only the subscribers/shareholders as of 3rd March 1999, could change the name of JS1 plaintiff-company from Union Mortgage Bank Limited to Stanbic Bank Ghana Limited.

A further declaration that the change of name of I st plaintiff-company from Union Mo1tgage Bank Limited to Stanbic Bank Ghana Limited was effected by Alhaji Fattau El-Aziz and Edward Afriye.

A declaration that the involvement of Edward Afriye who was not a subscriber/shareholder of 1s1 plaintiff-company as of 3rd March 1999, in the passing of the Written Resolution dated 27th July 1999, breached the Agreement made and entered into on the 3rd day of March 1999, in Johannesburg, South Africa, between SBIC AFRICA HOLDINGS LIMITED (SAHL) and UNION MORTGAGE BANK LIMITED (UMB) rendering the said Written Resolution null and void and of no legal effect.

An order setting aside the Written Special Resolution dated 27th July 1999, as having been executed in breach of the Agreement made and entered into on the 3rd day of March 1999, in Johannesburg, South Africa, between SBIC AFRICA HOLDINGS LIMITED (SAHL) and UNION MORTGAGE BANK LIMITED (UMB).