Ivy Benson
10 August 2007
Accra — THE LEGAL enterprise embarked upon by Kludjeson International Limited (KIL) to assume its previous shareholding of the company now known as Kasapa Telecom Limited, has taken anther dimension.
KIL has now issued a strangulating legal suit at the High Court against Hutchison Telecommunication Limited, a Hong Kong-based company, which purportedly holds shares in "Kasapa Telecom", for fraud.
Joined in the suit is Certwell Limited, which is based in the British Virgin Islands and a completely owned subsidiary of Kuwata Limited also based in the British Virgin Islands, which also claims to hold shares in "Kasapa Telecom" on behalf of Hutchison Telecom.
KIL had full ownership of Celltel Limited, operators of mobile telecommunication services.
KIL has indicated that Hutchison Telecom concealed the real identity and status of Certwell Limited and in the process misled it into transferring a substantial 80% of it's ownership in Celltel to the Hong-Kong-based company in March 30, 1998.
The suit filed on June 5, 2007 is therefore seeking against defendants jointly and severally among other reliefs and order of the court to call up the March 10, 1998 Share Purchase Agreement carried out between KIL and Hutchison Telecom for rescission and termination as a result of fraudulent material disclosure and representation.
Additionally, KIL is requesting an order of the court to prohibit Hutchison Telecom and Certwell Limited from putting up themselves as shareholders of "Kasapa Telecom" that is Celltel Limited either as a beneficiary or through an Associate or any designated title.
The rest of the reliefs sought include an order that the June 10, 1998 resolution of the company, any act or transaction entered into, based on the Share purchase and Shareholders' Agreements are null and void, and any further orders as the court deems fit as well as costs, which should include solicitor's legal fees.
According to a statement of claim filed through its legal representative, Zoe, Akyea & Co., KIL noted that there was an approval on March 30, 1998 between it and Hutchison Telecom by a Share Purchase and Shareholders' Agreements that it would shed 80% of its 100% shares from the company to the Hong-Kong-based telecommunication company.
KIL indicated that in the agreement entered into with Hutchison Telecom, it was noted that the Hong-Kong-based company would hold the shares allotted to it in the company "either by beneficiary or through its Associate."
Plaintiff was of the view that in the bid to induce it to finalize the agreements that would transfer to Hutchison Telecom, a vast equity of the company, the Hong-Kong-based company by a "Shareholders' Resolution dated June 10, 1998 disclosed that it was nominating the 2nd Defendant (Certwell Limited), which it falsely represented as its wholly owned subsidiary to hold the shares in the company on its behalf."
Plaintiff held that following the agreement entered into with Hutchison Telecom, the latter led it into believing that it was dealing with the Hong-Kong-based company through its "supposed wholly owned subsidiary," the British Virgin Islands-based company, Certwell Limited.
However, KIL noticed that Certwell Limited was not a totally owned company of Hutchison Telecom, an action that runs contrary to what the Hong-Kong-based company articulated.
According to KIL, Hutchison Telecom is a totally owned subsidiary of Kuwata Limited, which was not part to the arrangement reached between it and the Hong-Kong-based telecom company.
Plaintiff therefore pointed out that if it had not being misled as to the true identity and status of Certwell Limited, it would not have completed the March 30, 1998 Share Purchase and Shareholders' Agreements since the identity and status of Certwell Limited was of vital concern and rationale behind the share transfer arrangement.
It is in view of the alleged misrepresentation on the part of Hutchison Telecom regarding the identity and status of Certwell Limited that KIL indicated that the two foreign companies had defrauded it.
Plaintiff further stressed that as a result of their fraudulent character, Hutchison Telecom, "in its April 2005 Report on Foreign Private Issuer Form 6-K filings with the Securities and Exchange Commission of the United States of America, fraudulently represented that its shares in the Company increased from 80% to 100% following a purported transfer of the remaining 20% shareholding from the Plaintiff at no consideration."
An ex-parte motion filed and argued out by lawyers of KIL before an Accra High Court presided over by Justice K.A. Ofori-Atta, sought permission to issue the writ of summons and notice for service out of the jurisdiction to the defendants in June 2007 and was granted.
The court further ordered each of the defendants to 'file appearance within 21 days of the service of the processes on it," however, the defendants are noted to have filed appearance on July 20, 2007.
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