OHENE-MENSAH v. SUBIN TIMBERS LIMITED

In pursuance of the Provisional National Defence Council (Establishment) Proclamation, 1981, a law was promulgated entitled Forfeiture of Assets and Transfer of Shares and Other Proprietary Interests (Subin Timbers Co., Ltd. and Central Logging and Sawmills Limited), 1982 (P.N.D.C.L. 31). Section 1 of the law provides that "All assets and bank accounts of Subin Timbers Company Limited and Central Logging & Sawmills Limited are hereby vested in the State free from all encumbrances whatsoever." And section 7 provides that:

"Subin Timbers Company Limited and Central Logging & Sawmills Limited shall hereafter be amalgamated and be known as Western Timbers Limited until the said name is further altered in accordance with the Companies Code, 1963 (Act 179)."

The present proceedings before this court are to ascertain the amplitude of the said P.N.D.C.L. 31 and thereby determine whether this piece of legislation does in anyway affect a legal action for damages for negligence in a road traffic accident which had been filed against Subin Timbers Ltd. prior to the promulgation of the law. The plain import of these two provisions is that Western Timbers Ltd., which is an amalgam of Subin Timbers Ltd. and Central Logging & Sawmills Ltd., is allowed to operate as a limited liability company under the provisions of Act 179, but that the State becomes the sole owner of all the assets and shares and other proprietary rights of the company free from all encumbrances. The word "encumbrance" is defined by the Concise Oxford Dictionary to mean: "claim, mortgage, etc. on property." The word encumbrance is not defined in Act 179, but it is defined in the Mortgages Decree, 1972 (N.R.C.D. 96). Section 24 of the latter enactment states that an "encumbrance" includes a mortgage, a lien and a charge, and "encumbrancer" includes any person entitled to the benefit of an encumbrance. In Evans v. Evans (1853) 22 L.J.Ch. 785, C.A. Lord Cranworth L.C. said at p. 790:

"The word `encumbrance' has no strictly technical meaning; but what is usually understood is, that where a person has a right at his pleasure to charge £3,000 upon an estate, that is an incumbrance. In such a state of things nobody could say he had an [p.605] estate free from incumbrances while his estate was liable at any time to be charged with such a sum of money."

From the foregoing analysis it is quite clear that an encumbrance relates to property and not to a person. It is a liability attached to someone's propert