A sweet victory for Areeba`s David•As court declares meeting to remove him illegal

An Accra Commercial court, presided over by Justice Cecilia Sowah, yesterday declared as irregular and unlawful a Notice issued for an Extra-Ordinary meeting scheduled for November 29, 2006, which according to the Plaintiff, Mr. David Andreas Hesse, a shareholder of Scancom Limited (operators of Areeba mobile telecommunication services), had the purpose of removing him as a director.

The court therefore declared the said notice issued by Azmi as null and void as requested by the Plaintiff, indicating that “It is clear on the facts and from the relevant documents exhibited to the application that indeed the requirements laid down in the Code for convening a meeting to remove directors from office were not complied with in the notice of 7th November, 2006”
“I accordingly hereby declare the Notices null and void and of no effect for failure to comply with sections 271 and 185 (2) of the Code as to requisite notice,” the court ruled.

The commercial court, however, refused to grant Plaintiff's application for an interlocutory injunction in which Mr. Hesse, was seeking to halt the defendants Scancom and Investcom Consortium Holdings SA (now Investcom LLC) of Beirut, its parent company, from organizing a shareholders meeting and removing him as a director of Scancom Limited.

According to the court a director cannot stay in office for life and therefore it could not prevent defendants forever from holding the said meeting, stating, “The irregularities complained of are however within the defendant's power to remedy as the shareholders acting together can do anything intra vires the company.”

Justice Sowah indicated that the substantial issues of shareholding could be determined whether plaintiff remains a director or is removed in accordance with law.

Mr. Hesse, a reputable lawyer handling his own case, had argued before the court that if Scancom removes him as a director of the giant mobile telephone service provider, it would affect his claim to the 6% shares that he owned in the company.

Plaintiff in his arguments had also demanded that his shares in the company be valued and the equivalent paid to him.

In reply to the concerns raised by Mr. Hesse, counsel for Scancom Limited, Mr. Benson Nutsukpui of Kuenyehia & Co., noted that plaintiff's claim to his shares in the company would in no way be affected if he no longer holds a directorship position in the company.

According to counsel, shareholders of the company have the right under the law to appoint and remove directors, noting that plaintiff would be adequately compensated in damages in lieu of his shareholdings in the mobile telecommunication service provider.

On his part, counsel for Investcom Consortium Holdings SA (now Investcom LLC) of Beirut, Mr. Larry Otoo, asserted that the court had no power under the laws to impose shareholders on a company and that if it sides with the plaintiff, it would virtually be imposing the plaintiff on shareholders of the company, which would amount to wrong doing.

The bone of contention against the multi-billion telecommunication company and Investcom Consortium Holding S.A. arises from a claim made by Mr. Hesse that he was entitled to being restored a 6% shareholding stake in Scancom as well as restoration of interest in Scancom he held by virtue of his ownership stake in Scan Construction Limited ("Scan Construction"), another former Scancom shareholder.

The internationally renowned lawyer is contending that his original 6% shareholding stake in Scancom was wrongfully diluted to 2% by an alleged illegal capital call issued by Scancom in 1999 and was therefore seeking for a court order to reverse it.

The court which initially awarded a ¢5million cost had to reverse to ¢3million each against both defendants, after counsel for Scancom complained that the cost was excessive.

Plaintiff is further seeking an order restoring to him, his 6% shares in Scancom or in the alternative an order directed at the multibillion dollar telecommunication company to purchase his 6% shares in the company after a valuation of the company by an independent auditor.

Additionally, Mr. Hesse wants an order of perpetual injunction restraining Scancom Ltd., acting by itself, or its shareholders and officers from removing him as a director of the company in breach of the Shareholders Agreement and the law.

Seeking further, Plaintiff wanted an order of the court restoring the 3.4% shares of scan construction limited in Scancom or in the alternative an order that 914,600 of the ordinary shares of the company representing his 25% interest in Scan Construction Limited be restored to him.

Notwithstanding the claims enumerated, Mr. Hesse, further sought an order that the parties go into account to determine the amount of dividends due to him on his shares as well as demanding an order directed at the defendants to pay such amounts to him and other orders the court may deem fit.