DAN FOSU POKU VS OLIVER DURST & ANOR
2018
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE JANAPARE A. BARTELS-KODWO (MRS.)
Areas of Law
- Civil Procedure
- Corporate Law
- Administrative Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
This case involves an application for stay of execution pending appeal by the 2nd Defendant/Applicant against a judgment ordering the 1st Defendant/Respondent to purchase all shares of the Plaintiff and another party in the 2nd Defendant/Applicant Company. The court addressed procedural issues regarding the timing of stay applications and substantive issues concerning foreign investment laws. After considering the principles for granting stays of execution, including the possibility of irreparable harm and the presence of arguable points of law, the court granted the application for stay of execution pending appeal. The decision emphasizes the court's discretion in granting stays to preserve the status quo and prevent potential statutory violations while an appeal is pending.
Following the judgement of this court on 17th May 2018, in favour of the 1st Defendant/Respondent, counsel for the 1st Defendant/Respondent wrote a letter (Exhibit C)requesting the Plaintiff and the 1st Defendant/Respondent to agree on the choice of Valuers proposed by Counsel for the 1st Defendant/Respondent.
The 2nd Defendant/Applicant contends this shows an intention to enforce the judgment entered against the Plaintiff.
The letter was in respect of one of the orders given by the court that the 1st Defendant/Respondent purchase all of Plaintiff’s and Thomas Duah Darkwah’s shares being 35% and 5% respectively in the 2nd Defendant/Applicant’s Company at a price to be fixed by or determined by a Valuer or Accounting or auditing firm as may be agreed by the 1st Respondent and the Plaintiff or as appointed by the court.
This letter caused the 2nd Defendant/Applicant to apply for a stay of execution pending appeal, he asserts, there is a great chance of the appeal succeeding and that Lawyers for the 1st Defendant/Respondent are taking steps and or have served notice on the 2nd Defendant/Applicant of their intention to enforce the judgement.
Counsel for the 2nd Defendant/Applicant argues that 1st Defendant/Respondent is a German national who invested foreign capital of €10, 000 in the 2nd Defendant/Applicant Company and that it is not permissible for a foreign investor with only €10, 000 investment in the 2nd Defendant/Applicant Company to be the sole owner of a joint venture enterprise such as 2nd Defendant/Applicant Company.
It is the case of 2nd Defendant/Applicant Company that if the 1st Defendant/Respondent is allowed to purchase the shares of the two Ghanaian shareholders it would cause inconvenience to the 2nd Defendant/Applicant as its character would be altered by the modification of incorporation and registration documents at both the Registrar General’s Department and Ghana Investment Promotion Centre.
It is the position of the Applicant that, per the statute under which 2nd Defendant/Applicant was created, i. e. the Ghana Investment Promotion Centre Act 2013 (Act 865) it requires that, enterprises wholly owned by foreign investors should have not less than Five Hundred Thousand Dollars (USD 500, 000. 00) in equity investment.
It is their case that the Applicant only invested €10, 000 which is below the equity capital requirement for foreign investors therefore if the judgement is not stayed, its enforcement could result in the creation of an