SIC FINANCIAL SERVICES LIMITED VS ALLTIME CAPITAL LIMITED & 2 ORS.

Before me is an application for an order striking out the pleadings and the 2nd Defendant as a party

to the Plaintiff’s suit. By its Writ of Summons and Statement of Claim issued from the registry of

this Court on 2nd January, 2019, the Plaintiff sought to recover jointly and severally from the

defendants the sum of Four Million, Nine Hundred and Seventy-Two Thousand, Six Hundred and

Nine Cedis Forty-Nine pesewas (GH₵4,972,609.40), interest thereon and legal fees.

The 1st and 2nd Defendants entered conditional appearance on 16th January 2019 per their Lawyer.

After the conditional appearance had crystallized into an unconditional appearance, Counsel for

the 1st and 2nd Defendants filed the instant application on 5th February, 2019 for an order striking

out the 2nd Defendant & pleadings under Order 4 rule 4, Order 11 Rule 18 of C. I. 47 and under

inherent jurisdiction of the Court.

In arguing the application, Counsel for the 2nd Defendant/Applicant (Applicant) stated that the

Applicant is an unnecessary party to this suit because the Plaintiff has not demonstrated per its

Statement of Claim that there is any cause of action against the Applicant. Counsel submitted that

by the Plaintiff’s own showing in its pleadings, the Applicant is the Managing Director of the 1st

Defendant Company and it is the 1st Defendant who directly presided over the transaction in issue.

Since the 1st Defendant is a legal entity that can sue and be sued, he argued that there is no need to

join the applicant. He relied heavily on the case of Morkor v. Kumah (1998/99) SCGLR 620 at

635 paragraph 2. He invited the Court to reject the Respondent’s claim that it has a cause of

action against the Applicant.

In opposing the application, Counsel for the Plaintiff/Respondent (Respondent) submitted that the

1st Defendant is licensed and regulated by the Securities & Exchange Commission, and by virtue

of Regulations 4 & 5 of the Securities & Exchange Commission Regulations 2003 LI 1728, a

Managing Director of a Company subject to those regulations owes special duties to customers

and depositors different from the duties owed by limited liability companies. Referring to

Regulations 23, 24 and 25 of L.I. 1728, Counsel argued that the law required that a certain level

of liquidity be maintained at all times, details of the specific investment to be made with the sum

deposited must be disclosed to the client and the client’s approval obtained in writing. A

compliance off