REPUBLIC v. HIGH COURT, ACCRA; EX PARTE PLOETNER

JUDGMENT OF ADADE J.S.C.

Adade J.S.C. delivered the judgment of himself and Apaloo C.J., Sowah and Archer JJ.S.C. Carl Ploetner Engineering Construction (Ghana) Ltd., (hereafter referred to as CP (Ghana)) is a company incorporated in 1975 under the laws of Ghana. By May 1976, the shareholding in this company had re-organised itself as follows:

H. Krahmer 1 share

Martin Ofosuhene 40,000 shares}110,000

Bernhard Ploetner 69,999 shares

These three persons were and are the only shareholders in the company. Bernhard Ploetner says in an affidavit that Martin Ofosuhene holds only 10,000 of his 40,000 shares beneficially; the remaining 30,000 are held by the said Ofosuhene in trust for him, B. Ploetner. This allegation was not controverted by Ofosuhene, but a resolution one way or the other is not relevant for the purposes of this ruling.

Bernhard Ploetner and his wife had another business in Germany, run under the name Carl Ploetner (Bremen) (hereafter referred to as CP (Bremen)). It is not too clear from the little that there is on record whether CP (Bremen) was a limited liability company in the Ghanaian sense or whether it was a partnership. In all probability it was a partnership. This, however, we do not know for certain.

In 1979, CP (Bremen) encountered some financial difficulties with its suppliers in West Germany. The exact nature of these financial difficulties is given only by B. Ploetner in paragraph 12 of an affidavit filed by him in the High Court on 21 October 1981 as follows:

"12 In January 1979 CP (Bremen) went into liquidation as a result of a curious and unauthorised decision of Heins Krahmer (referred to in exhibit BP A) who then managed CP (Nigeria). The said Krahmer had ordered on behalf of CP (Bremen) equipment from dealers in Germany who in the normal trade practice granted credit facilities up to 36 months for as large purchases as worth six million Deutche marks (DM 6,000,000). For some unexplained reasons the said Krahmer issued sight drafts presentable rather in twelve months. CP (Bremen) was unable to honour these drafts because at the material time the Federal Government of Nigeria had delayed payment of a debt of DM 28 million owed to CP (Bremen). The Ghana Government which also owed CP (Bremen) over DM 3 million had similarly delayed payment. In the result, CP (Bremen) infringed German laws which enjoined honour of such drafts within 24 hours or so."

We do not know the view taken by the German courts of the admitted infringe