IN RE BOB KWAME AND CO. LTD.; GYINGYI v. BERNARD AND ANOTHER
1990
COURT OF APPEAL
GHANA
CORAM
- AMPIAH
- ESSIEM
- OFORI-BOATENG JJ.A
Areas of Law
- Civil Procedure
- Corporate Law
1990
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Essiem J.A. delivered the lead judgment on an appeal by a minority shareholder-director of Bob Kwame and Co. Ltd. challenging the High Court’s refusal to grant interim reliefs. The appellant alleged misconduct and mismanagement by majority shareholder and managing director, Bob Kwame Bernard, after a 31 July 1987 board meeting removed him as director. He sought an interim injunction, preservation of company assets, appointment of a receiver and manager, and accounting, pending determination of an originating motion under the Companies Code. Emphasizing the limited scope for appellate interference with discretionary decisions and the risk of prejudging the merits, the Court of Appeal upheld the refusal of interim reliefs. Given the specialized road construction business and risks of receivership, the court ordered Bernard to give a written undertaking not to dispose of company machines until the main action is determined, and dismissed the appeal.
JUDGMENT OF ESSIEM J.A.
The appellant has appealed against the refusal of the High Court (coram Lamptey J.A. sitting as an additional judge of the High Court) to grant him certain interim reliefs he sought from the court.
The appellant had commenced proceedings in that court by an originating motion on notice under relevant sections of the Companies Code, 1963 (Act 197), seeking a number of reliefs. The motion was supported by a 45-paragraph affidavit in which he made a number of allegations of misconduct and mismanagement in connection with the affairs of Bob Kwame and Co. Ltd. against the first respondent. It was three days after filing the originating motion on [p.89] notice that he applied to the High Court for an order of interim injunction, interim preservation of property and the appointment of a receiver and manager. The full prayer was for an order of:
“(a) interim injunction restraining the first respondent from dealing with the company’s affairs, operating its various accounts or interfering with the company and its operations pending the determination of the application herein;
(b) an order of interim preservation of the estate and properties movable, immovable, fixed and otherwise of Bob Kwame and Co. Ltd. pending the determination of the application herein; and
(c) an order appointing a receiver and manager to take over and manage the affairs and business of Bob Kwame and Co. Ltd. pending the hearing and determination of the application herein ; and
(d) an order upon the first respondent to file within a time to be appointed by the court an account of all moneys accrued due to the said company and in his possession since 31 July 1987 and further to pay to the receiver and manager such sums as may be found due on such account. And for such further or other orders as this honourable court may seem meet”
This application for interim reliefs pending the determination of the originating motion was, needless to say, accompanied by an affidavit in which the appellant also relied on the affidavit in support of the originating motion.
In his two affidavits in opposition to both the originating motion on notice and the application for the interim reliefs, the first respondent was not found wanting in levelling counter-accusations of misconduct and mismanagement against the appellant. The affidavit evidence before the court discloses that the parties are shareholders in Bob Kwame and Co. Ltd. The appellant on his own showing is the minority sh