JUDGEMENT

ADJEI-FRIMPONG, JSC :

This appeal raises an issue of corporate law importance. In the main, can a company which has been struck off the Register of companies exercise any legal capacity or standing to commence an action in court? And what happens if having commenced the action, that company is subsequently restored to the register? Now, the company in question is Clipper Leasing, the Plaintiff/Respondent/Appellant/Applicant (hereinafter, “the Plaintiff”). This was not a Ghanaian company. It was incorporated under the laws of Antigua and Barbuda. The origin of the Plaintiff and the issues arising in the case appear to limit the application of pure Ghanaian law to the matter. In the happenings however, the question of the application of a foreign law to a case in Ghana also comes to the fore in this appeal.

The suit itself has not arrived in this Court by a straight route. We shall however recount the following as sufficient to place the issues in perspective.

The Plaintiff, an aircraft leasing company leased a McDonnell Douglas DC-10-30 aircraft to the 2nd Defendant/Respondent/Appellant/Respondent (hereinafter “2nd Defendant”) by an agreement dated 7th March 1997. Alleging that the 2nd Defendant breached the agreement, the Plaintiff took various steps to seek remedy which culminated in the Plaintiff commencing the suit in the Commercial High Court, Accra.

The Attorney General was joined in the suit as 1st Defendant. This was on account of certain commitments/undertakings supposed to have been made by the Government of Ghana as the sole shareholder of the 2nd Defendant which the Plaintiff claimed amounted to the assumption of the 1st Defendant’s liability. The events which also led to the 2nd Defendant being placed in liquidation are not worth rehearsing unless it becomes necessary later in this discourse to do so. The Plaintiff’s action in the Commercial High Court was for the following reliefs:

a.Recovery of the sum of thirty-five million and twenty-one thousand, four hundred and eighty-eight dollars (US$35,021,488) being outstanding rent for the lease of the McDonnell Douglas DC-10-30 series Aircraft and replacement engines.

b.Interest on the sum of thirty-five million and twenty-one thousand, four hundred and eighty-eight dollars (US$35,021,488) from 20th June 2001 to date of final payment.

*c.Return of the aircraft McDonnell Douglas DC-10-30 series Aircraft with Manufacturer’s Serial Number 46554 and