IN THE MATTER OF THE BODIES CORPORATE (OFFICIAL LIQUIDATIONS) ACT 1963 (ACT 180) v. AIDS LABA & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- OFOE, J.A
- GAISIE, J.A
- ANTHONY OPPONG, J.A
Areas of Law
- Civil Procedure
- Corporate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arises from a dispute in Latex Foam Rubber Products Ltd over governance and remedies sought by an applicant-member. On 8 September 2015, the applicant commenced proceedings in the High Court by an Originating Notice of Motion seeking, among other reliefs, a just and equitable winding up under section 4 of the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180). The respondent moved to strike out the process as incompetent because Act 180 requires a petition to commence winding up. The High Court granted the strike-out. On appeal, Justice Victor Ofoe, J.A., writing for the Court of Appeal, confined the matter to whether the originating motion could properly invoke jurisdiction. Holding that ‘petition’ is a specialized procedure with settled form and that court rules (C.I. 47) are subsidiary to substantive law, the court affirmed the High Court and dismissed the appeal. Concurring, Justices Amma Gaisie and Anthony Oppong agreed.
J U D G M E N T
OFOE, J.A:
The appellant, on the 8th of September, 2015 filed in the High Court an Originating Notice of Motion seeking the following reliefs
a) An order for just and equitable winding up of the Company, Latex Foam Rubber Products Ltd under s4 of the Bodies Corporate (Official Liquidations) Act 1963 Act (180).
In the alternative to relief (a)
b. An order that the shares of the 1st Respondent be sold to the Applicant at their fair value or at any other value at which the Court see fit to order their sale.
In the alternative to relief (a) and (b)
c. A declaration that the free use of the Company’s property by Moon Beam Company Ltd on the authority of the 1st Respondent is not in the best interest of Latex Foam Ltd and a breach of the 1st Respondents’ fiduciary duty to the Company.
d. A declaration that the free use of the company’s property by GDS Training Center on the authority of the 1st Respondent is not in the best interest of Latex foam Ltd and a breach of the 1st respondent’s fiduciary duty to the company.
e. An order for compensation, Account and Recission directed at the 1st Respondent regarding the transactions mentioned in reliefs © and (d).
f. An order directed at the 1st Respondent to repay the GH₵740,000.00 owed by hm to the company with interest thereon to the company at the commercial bank rate from 2006 till date of final payment.
g. A declaration that the alteration of the Regulations of the company regarding the maximum number of directors to 6 required each copy of such Regulations to reflect such alteration after the said change for same to guide post-alteration activities of the company. A declaration that the resolution appointing the two directors, (Louis Abi Habib and Wassim Laba) was unfairly prejudicial to the interest of the Applicant as an equal partner in membership of the Company.
h. An order cancelling the resolution appointing Louis Abi Habib and Wassam Laba as directors of the company.
i. Such other order/s may be made as the Court thinks fit”.
Since section 4 of the Bodies Corporate Official Liquidation Act provided that winding up of a company should be by petition, the respondent filed an application for the originating notice of motion filed by the applicant seeking to wind up the company Latex Foam Rubber Co. Ltd to be struck out as incompetent and incapable of invoking the jurisdiction of the High Court. Section 4 provides as follows
“4. Procedure on petition to the High Court
(1) The Re