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The Equality of Rights Between Shareholders

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The Equality of Rights Between Shareholders View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by KhartoumSpace UNIVERSITY OF KHARTOUM THE EQUALITY OF RIGHTS BETWEEN SHAREHOLDERS By: Atif Saadalla Rahama Supervised By: Dr. Mohammed Ibrahim El Tahir A Thesis Submitted in Partial Fulfillment of the Requirement of LL.M Degree of the University of Khartoum – 2005. iv Contents Dedication…………….…………………………………………….…..iii Abbreviations……………………………………………………..…....iv Acknowledgement………………………………………………….…..v Preface……………………………………………………………….....vi Table of cases…………………….……………………………….….viii Abstract (English).......…..………..……………………………………x Abstract (Arabic)…………………..……………………………….….xii Chapter 1: The Company and Membership Introduction………………………………………………………….…..1 (i) Definition of company……………………………….………….......1 1- In the English Law……………………………………………..1 2- In the United States Law……………………………….……..3 3- In the Sudanese Law…………………………………….……4 (ii) History of companies…………………………………………..…..4 (iii) Company and partnership………………………….……………..7 (iv)The legal entity of the company and the limited liability………..9 (v)The importance of the company…………………………………15 1- The role of the company in the economic development….15 2- The role of the company in the international competitive advantages…………………………………………………………….16 3-The role of the share of company as measure of wealth....17 (vi) Company and membership………………………………….…..18 1-Ways of becoming member…………………………………..18 2-Who can be members…………………………...……………19 3-The register of members……….…………..…………………21 Conclusion …………………………………………………………….23 Chapter 2: Preferentiality & equality in shareholders' right…..…24 Introduction ………………………………………………………….24 (i)The legal nature of the share ………………..…………….……..24 (ii) Types of company shares………………..………………………26 1- Ordinary shares………………………………………………26 2- Preference shares……………………………………………27 (iii) Shareholders' rights………………..…………………………….31 1- Liabilities of shareholder…………………………………….32 2- Rights of the shareholder……………...……………….……37 (iv)The presumption of equality between the shareholders…..…40 1- The conditioned equal rights……………………………..…41 2- The inherent equal rights……………...…………………....58 Conclusion……………………………………………………………..66 Chapter 3: The balance of power and shareholders' relief.….…67 (i)The control of management………………………………..….…..67 v 1- Directors control of management …………………….….67 2- Members' Control of management……………………....70 (ii) Members' statutory relief…………………………...…………….71 1- Unfair prejudicial conduct……………………………...…71 2- Winding up on the just and equitable ground….……….76 (iii) Members' Common Law relief………………….……….……....78 1- The derivative action………………………………………78 2- The personal and the memorandum and articles……...85 (iv) Other members' statutory relief…………………………………88 1- On the application of the company……………………...88 2- Inspection by the order of the court…………………….89 3- Investigation of the ownership of the company………..91 4- Investigation of share dealings………………………….92 5- Inspection of documents………………………………….93 6- Investigation by the Registrar (in Sudan)………………93 Conclusion..................................................................................95 Chapter 4: Conclusion………………………………………………96 Bibliography………………………………………………………….100 vi Dedication To ... My father, the great man....! May his soul rest in peace To ... My mother, and my lovely wife... To … My brothers, sisters and children. vii Abbreviations (SCA) : Sudanese Companies Act. (ECA) : English Companies Act. (a.g.m) : Annual general meeting. (e.g.m) : Extra ordinary general meeting. (o.r) : Ordinary resolution. (e.o.r) : Extra ordinary resolution. (s.r) : Special resolution. (Co.) : Company. S. : Section. SS. : Sections. S.G : Sudan Government. viii Acknowledgement Though, no doubt, all that has been presented in this dissertation lies under the direct responsibility of the researcher, it is worth mentioning that, without persistent assistance of so many people, it would not have come in the shape and organization I consider, at least to me, fairly satisfactory. Here in this acknowledgement I would like to express my deep gratitude to my devoted supervisor Dr. Mohmmed Ibrahim Eltahir, who saved no effort in supervising this research and opening new horizons whenever things remained stagnant. From him I have learnt the principles and approaches mature legal researchers adopt while handling their meticulous investigation I would like also to extend my thanks to Dr. Abdullah Idris Mohmmed Elbashir for his brilliant instruction on Company Law which laid the basic foundation for me in this field and, later, motivated me to choose the stream of Company Law. I would never pass this acknowledgement without thanking my dear friend Hatim Abdelbagi Elfanoub for the encouragement and great help I received from him before and while doing this study. I also thank my cousins Nasereldeen, Magdi, Osama Abdelhafeez. I also thank Ustaz Ahmed Eseid, His Honor Mohmmed Ali Esied, His Honor Mawlana Awad Elhassan Elnour, Ustaz Nasereldeen Hussein and Dr. Abu-zar Elgifa'ari Bashir and all those who kindly supported me in many ways. 9 Preface It is a common concept that company meetings and voting on them resemble the Parliament activities. This resemblance is well recognized in the legal curriculums and the voluminous company literature. The logical consequences for such resemblance is that an equality in members rights must be granted to all members of the company, also majority powers must be absolute and without limits. Such resemblance may be adequate in the old forms of companies, but it may be not precise in the modern company forms since that the modern company is authorized by law to issue the preference shares. As their name implies preference shares confer on holders' preference over the ordinary shares in respect of many rights in the company. The equality between the shareholders in a company is well known presumption in the English Companies Law references. Professor Gower mentioned this presumption in his great Company Law reference "The Principles of Modern Company Law" This presumption remains exist unless there is a provision to the contrary in the memorandum or articles of association of the company. Whenever there is a provision to the contrary, the presumption of the equality between the shareholders will defeat then the preferentiality between the shareholders takes place. The question which may arise is whether the preferentiality may extents to reach a discrimination limit. Many of the Company Law writers explained this question and concluded that preferentiality will not reach a discrimination limit. They justified the issuing of preference shares by that it is for the benefit of the company as a whole since that the issuing of preference shares is one of the important means to capitalize and recapitalize the company. We add that many of the shareholders' rights are not effected by such issuing since these rights, by their nature, are not preferable and all holders of these rights must be treated equally, the examples for these rights is the right of a shareholder to prevent the ultra vires act, or the right of a shareholder not to have his obligations to the company increased without his consent. Another feature of resemblance between the company and the Parliament is the majority powers in both. Again, this feature seems not precise in that majority powers in the company are not absolute powers and there are many limits imposed by the law on the company. These limits clearly appear in the relief of minority shareholders in many events, for example in winding up the company on the just and equitable ground, the intervention of the 10 court in the event of unfair prejudicial conduct of the company and in the personal and derivative actions. This dissertation discusses the features and justifications of the preferentiality between the shareholders in one company when it is allowed by the company memorandum and articles of association. Also this dissertation explains rights on which such preferentiality is applicable and rights on which preferentiality inapplicable. Lastly, this dissertation explains the methods of the relief of the minority shareholders and the balance of powers between minority and majority shareholders. 11 Table of cases English cases: Alexander v. Automatic Telephone Co. (1900)2 Ch. 56…............33 Ashbury Rail Way Carriage & Iron Co. (1875) LR.7 HL.653……..60 Automatic Cleaning Syndicates (1906) 2 Ch. 34……..……....…..68 Allen v. Hyatt (1914) 30 T.L.R 444…………………...……………..86 Borland's Trustee v. Steel (1901) 1 Ch 279 .………….……17,25,66 Bradford Banking Co. v. Briggs & Co. (1886) 12 App. Cas 29......34 Bellerby v. Rowland & Mar Wood Stemship Co. (1902) 2 Ch 14..35 Beter Bushanan Ltd. v. Mc Vey (1950) reported (1955) AC 516..35 Bushell v. Faith (1970) A.C 1099……………………………….…..43 Burland v. Earle (1902) A.C 83 at 93…………………….…….…...55 Bleriot Aircraft Co. (1916) Re. 32 T.L.R. 325………….….…….....77 Bahia San Fransisco R. lwy (1868) Re L.R 3 QB. 584.................64 Currth v. ICI (1937) AC. 707 ………………………………………..44 Chmpagne Perrier–Jouet v. HH Finch Ltd.(1882)1W.L.R1359.....34 Edwards v. Halliwell (1950) All ER. 1064…………………………..82 Elsomboro (1958) Re. Ch 900………………..……………………..42 Elder v. Elder & Watson (1952) S.C 49.........................................73 Foss v. Harbottle (1843) Hare 461…………………………....7,73,78 Gething v. Kinler (1972) 1 W.L.R 337………………………………86 Harman and Another v. BML Group Ltd. (1994) BCLC 674..........43 Henderson v. Bank of Australia (1890) 45 Ch.D330.....................47 Hole
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