PENKENDON COMPANY LIMITED & ORS v. CAL BANK LIMITED & ORS
2015
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU J.A (PRESIDING)
- K. N. ADUAMA OSEI J.A
- I.O. TANKO AMADU J.A
Areas of Law
- Corporate Law
- Civil Procedure
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appeal concerns whether the 3rd Plaintiff had the authority to initiate legal proceedings in the name of the 1st and 2nd Plaintiff companies under the Companies (Act 1963) Act 179. The Trial Court failed to properly address the issue of capacity, leading to its decision being overturned on appeal. The appellate court found that authorization was required from the companies' boards of directors or members in general meeting, which was not obtained. Consequently, the names of the 1st and 2nd Plaintiffs were struck out, and the case was remitted to the Trial Court for continuation.
TANKO AMADU J.A
(1) The key issues arising from this appeal are not novel in our jurisprudence. They are primarily legal and procedural as they relate to the application of provisions of the Companies (Act 1963) Act 179 on corporate governance and the High Court (Civil Procedure) Rules 2004 C.I.47. In order that there will be a better appreciation of issues it is important to set out the factual background to the appeal in some detail.
(2) By writ issued from the High Court Accra, the Plaintiffs/ Respondents, (hereinafter referred to as “the Respondents”), sought the following reliefs against the Defendants jointly and severally (the 2nd, 3rd and 4th of whom shall hereinafter be referred to as “the Appellants”).
“a) A Declaration that Georgina Acquah the 3rd Plaintiff herein is by
virtue of Letters of Administration granted by the High Court
Sekondi dated 23rd June 1997 shareholder and administrator of
1st and 2nd Plaintiff companies.
b) A Declaration setting aside the purported attachment and notice of
auction of the 13.66 are land and sawmill thereon known as No.171
Kansaworado by 1st Defendant herein in satisfaction of a judgment
obtained against the 2nd Defendant herein.
c) A Declaration that the purported conveyance executed by
3rd Defendant herein on behalf of the Plaintiff between Andoh
Hardwood Agencies and 1st Plaintiff is fraudulent and a nullity and
same must be set aside.
d) A Declaration that the representation dated 18th June 2008 made by
the 4th Defendant to the Registrar General that Messrs Robert Peterson,
Mayumi Donkor and Georgina Acquah had resigned as Directors of 2nd
Defendant Company and replaced by 3rd and 4th Defendants as Director
and Secretary respectively was fraudulent and therefore a nullity and
same must be set aside.
e) Ejection and recovery of possession of the premises known as No.171
Kansaworado Road, Sekondi, property of 1st Plaintiff Company and
being used for wood business by 2nd Plaintiff Company from the 2nd, 3rd
and 4th Defendants herein.
f) An order for perpetual injunction restraining the 3rd and 4th Defendants
their agents, workmen assignees and any other persons acting by them
from going into the premises of 1st and 2nd Plaintiff Companies.
g) An order to the 3rd Defendant to render accounts of his activities with
regard to the 1st and 2nd Plaintiff companies from 2005 to date and for
the 4th Defendant to render accounts on his activities with regard to
the 1st and 2nd Plaintiff Co