RE GHANA TIMBER MARKETING BOARD’S APPLICATION;GHANA TIMBER BOARD v. ASHANTI CURL & LUMBER PRODUCTS LTD.
October 17, 1968
HIGH COURT
GHANA
CORAM
- ANNAN J
Areas of Law
- Corporate Law
- Civil Procedure
October 17, 1968
HIGH COURT
GHANA
CORAM
AI Generated Summary
Annan J considered an application by the Ghana Timber Marketing Board, acting as creditors, for an extension of time under section 115 of the Companies Code, 1963 (Act 179) to register particulars of a charge that should have been registered under section 107. The debtor company, Ashanti Curl and Lumber Products Ltd., opposed, raising a capacity challenge and pointing to a pending writ seeking declarations that the mortgage deed was null and void. The court emphasized its broad discretion under section 115, noting the applicant’s burden is light and extension generally follows absent deliberate failure, including where omission is due to circumstances beyond the applicants’ control, such as delays in stamping or registry processing. The court declined to adjudicate issues of liability or to decide whether the charge required registration on such an application. Finding the applicants to be “persons interested,” the court rejected the capacity objection in this context and held that the pending suit had no bearing. The court granted an extension until 30 October 1968, without prejudice to rights acquired before registration.
This application is brought under section 115 of the Companies Code, 1963 (Act 179), for an extension of time within which to register particulars of a charge in terms of section 107 of the Code. The application is brought by the Ghana Timber Marketing Board, the creditors. The debtors, the Ashanti Curl and Lumber Products Ltd. oppose the application. The duty to effect registration of charges is placed on the debtor company in the first place and the Code provides penalties as against the company for default in sending for registration any particulars which require registration. However section 111 permits "any person interested" in a charge to register it. Clearly the purpose of this provision is to safeguard the interests of such a person in cases where a company deliberately refuses to register. Where, however, there is a failure to register within the statutory period of 28 days, either the company or a person interested in the charge may apply to the court for an extension of time within which to register. The matters relevant for consideration on an application for extension are whether or not the omission to register was accidental or due to inadvertence or to "some other sufficient cause" and also whether there is a likelihood of prejudice to the position of creditors or members of the company. Again the court may grant relief if satisfied that "on other grounds it is just and equitable to grant relief."
Clearly the court has a wide discretion whether or not to grant an extension and the burden put on the applicant does not appear to [p.933] me to be particularly heavy, and it seems to me that where there has been no deliberate failure on the part of the applicant to register, his application should normally succeed whether the failure to register arises from ignorance of the statutory provision or from ordinary carelessness. A fortiori where the applicant establishes that the failure to register was due to circumstances beyond his control, such as delay in the course of stamping or registration of the document at the appropriate registry, then extension should be granted.
The court will not as a rule on such an application decide the question whether a charge requires registration. I should think that the court is also not called upon to decide any issues as to the liability of the debtor company under the contract or transaction giving rise to the liability that is secured by the charge or indeed under the mortgage itself. The court is not c