NICHOLSON v T F NICHOLSON LTD AND IN THE MATTER OF THE COMPANIES CODE, 1963 (ACT 179) SECTION 35 (1) (a) AND NICHOLSON v. T. F. NICHOLSON LTD
1970
HIGH COURT
GHANA
CORAM
- ABOAGYE J.
Areas of Law
- Civil Procedure
- Corporate Law
1970
HIGH COURT
GHANA
CORAM
AI Generated Summary
In the High Court, ABOAGYE J considered an application by counsel Mr. Jonathan Arthur on behalf of T.F. Nicholson Ltd to dismiss an originating summons filed by John Nicholson seeking rectification of the company’s register for 25,001 shares formerly held by his deceased father, T.F. Nicholson. The summons, brought under section 35(1)(a) of the Companies Code, asked whether the father owned the shares at his death, whether the administrator was entitled to be substituted on the register, whether the company could refuse to enter him, and whether the court should order rectification. The defendant relied on an affidavit by its managing director, Eric Trench Anderson, pointing to allegations of irregularities and fraud, and asserting the matter did not depend on statutory interpretation. The court held the Code does not prescribe procedure, imported English civil procedure under Order 74, and concluded that while rectification may be sought by originating summons or motion, disputed facts require an action. The originating summons was dismissed with costs, liberty to sue.
JUDGMENT OF ABOAGYE J
This is an application by Mr. Jonathan Arthur, counsel for the defendant-company herein, praying that the originating summons issued by the plaintiff be dismissed as being irregular or wrongly issued. The plaintiff had taken out the originating summons for the determination of the following questions:
"(1) Whether T. F. Nicholson the plaintiff's deceased father at the date of his death on 7 September 1969, was possessed of 25,001 shares of no par value in the defendant-company.
(2) Whether the plaintiff having on 27 July 1970 obtained letters of administration to his aforesaid deceased father's estate in Ghana is entitled to have his name entered in the register of members of the defendant-company in substitution for T.F. Nicholson.
(3) Whether the defendant-company is entitled in law to refuse to enter plaintiff's name in the aforesaid register.
(4) Whether plaintiff is entitled to an order of the court on the defendant-company to rectify the register of members by having his name inserted as a member in respect of the aforesaid 25,001 shares."
The application is made under section 35 (1) (a) of the Companies Code, 1963 (Act 179), and is supported by an affidavit sworn to by the applicant, John Nicholson. [His lordship here read the relevant paragraphs of the affidavit in which the allegations of irregularities and fraud were made and continued:]
The grounds upon which Mr. Arthur attacks the originating summons are stated in paragraphs 4, 5, and 6 of the affidavit of Eric Trench Anderson, the managing director of the defendant-company. The said paragraphs 4, 5 and 6 read as follows:
"4.That I am advised and verily believe the same to be true that as the plaintiff in the supporting affidavit to the said originating summons has alleged irregularities or fraud in the transfer of shares in T.F. Nicholson Ltd. the originating summons is irregular or wrongly issued.
5.That I am further advised and verily believe the same to be true that on the face of the originating summons the plaintiff is not entitled to any right the determination of which depends upon the interpretation of a statute.
6.That I am further advised and verily believe the same to be true that the determination of the questions posed in the originating summons does not in any way depend upon the construction of any statute."
Section 35 (1) (a) of the Companies