BERNARD SAM v. REGISTRAR OF COMPANIES

GERTRUDE TORKORNOO, J. A: When it comes to ending the operation of a company, one does not have the option of using many ways.

From Sections 246 to 261, The Companies Code 1963 Act 179 and Bodies Corporate (Official Liquidations) Act, 1963 (Act 180) designate two main models for doing so.

These are private or official liquidation and winding up.

Departing from these models will cause invalidity of the process through infringement of statute.

The case of the appellant is that on 19th August, 2011, the Directors of Capricorn Development Company Limited wrote to the Registrar of Companies stating that: ‘The directors of Capricorn Development Company Ltd.

with effect from this day 22nd August, 2011 wish to cancel our ‘Capricorn Development Company ‘due to financial constraint and hope the Registrar of Companies will take action on it.’ With this request and nothing more, the office of the Registrar General proceeded ten (10) days later on 1st September, 2011 to issue a ‘NOTICE OF DISSOLUTION OF COMPANY’ and declared the company dissolved and its name struck off the Register of Companies.

The appellant, who had been part of the directors who signed the alleged ‘cancellation’ letter backtracked and returned to court with a motion pursuant to Section 261 (6) of Act 179 to seek a restoration of the name of the company to the register of companies.

The learned trial judge described the application as ‘trying to conjure back a company the (appellant) himself caused the Registrar General to dissolve’. He refused the application hence this appeal.

The grounds of appeal are that:

1. The Learned Judge erred in refusing the application for restoration of the name of Capricorn Development Company to the register of companies.

2. The learned trial Judge erred by failing to adequately consider the Appellant’s application.

3. The ruling/decision is against the weight of the evidence before the court below.

It is my humble evaluation that this is a case which typifies the horrors of delays in our justice system.

The appeal record is all of 24 pages.

So why has it taken this appeal so long to reach judgment? The inordinate delay of two years between the high court judgment and the placing of the case before the court of appeal for judgment is indeed worrisome and calls for reforms in the sluggish mode in which appeal records are prepared, rectified, served and made ready for judgment.

The matter in issue is very simple.

Was the court right or wrong in refusi