RIASAND VENTURES LTD & NOBLE GOLD BIBIANI LTD v. RESPONDENT

JUDGMENT

ANIN YEBOAH JSC:-

My Lords, this interlocutory is from the ruling of the Court of Appeal, Accra dated the 28/1/2015. The legal point to be determined by us appears to be simple but to appreciate the reasons for our decision I will proceed to briefly state the facts in this interlocutory appeal.

The appellant commenced an action at the Fast Track Division of the High Court, Accra, in 2013 in a suit titled: RIASAND VENTURES LTD v NOBLE GOLD BIBIANI LTD for recovery of certain sums of money from the respondent, a company incorporated in Australia as Noble Minerals Resources wholly owned NOBLE MINING GHANA LTD AND DRILLING AND MINING SERVICES LTD which are registered in Ghana as Ghanaian companies. Noble Mining Ghana Ltd is the sole shareholder of the respondent in this appeal. The three subsidiary companies which for purpose of brevity and convenience was referred to by counsel for the respondent as “Scheme Companies”. As the “scheme companies” continued to experience financial challenges, the sole shareholder proposed a scheme of arrangement to prevent the ultimate winding up of the financially crippled companies, pursuant to section 231 of the Companies Act of 1963, Act 179 to prevent their ultimate winding up.

It was thus clear that the sole purpose for establishing the scheme was to restructure the debts of the companies to creditors which of course included the appellant. It was as a result of the said arrangements that on 27/02/2014, NOBLE MINRALS applied to the High Court, Commercial Division (Accra) and successfully obtained an order to convene a meeting of creditors of the “scheme companies” so as to approve the scheme to salvage the distressed companies. The meeting was duly convened with notices actually served on all the creditors of the “scheme companies”, which of course included the appellant herein.

The meeting was held on 24/03/2013 and the creditors, save the appellant, who was absent endorsed the proposals of the scheme. However, on 20/09/2013 the Fast Track High Court, Accra had entered summary judgment at the instance of the appellant against the respondent herein in suit № AC 737 for part of the amount due and owing to the appellant. On 27/06/2014 the same court entered judgment for the outstanding claim which was for damages for breach of contract.

Pursuant to the said judgment, the appellant filed a petition under the Bodies Corporate (Official Liquidation) Act of 1963 (Act 180) to liquidate the respondent as it was unab