March 9, 2022
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court of Ghana, per a majority opinion authored by Justice Pwamang, addressed a supervisory certiorari application arising from a governance dispute within Indepth Network Limited, a not-for-profit company. The High Court had found no AGM since 2017 and ordered one within 90 days, with interim assistance from those operating during litigation to organize it. The applicant argued lack of jurisdiction and inconsistency with the company’s valid regulations; the interested parties relied on the writ’s endorsement for “any other orders” and evidence that Professor Binka was a director. The Supreme Court held that jurisdiction under section 162(1) of Act 992 was invoked and refused certiorari, but criticized the order’s lack of specificity. Exercising Article 132 supervisory powers, it granted a stay of execution pending a Court of Appeal decision, restrained both sides from operating, and directed expeditious transmission of the appeal record. Justice Torkornoo dissented from the stay and additional orders.
MAJORITY OPINION
PWAMANG, JSC:-
The background to this application invoking our supervisory jurisdiction is that the individual persons involved in the case come from various countries and worked together under the umbrella of Indepth Network Limited, a not for profit organization incorporated in 1998 under the company laws of Ghana as a company limited by guarantee. Except for two or so other professionals, the rest are scientists and their focus appeared to have been on advancing the scientific objectives of the organization which are related to public health. Though in operating as an organization the parties were required by law to comply strictly with the provisions of the Companies Act, 1963 (Act 179),they over the years failed to observe some important provisions of the law. Some years back, differences arose among them which could not be resolved and it resulted in a contest for control of the organization by two main factions ending up in the High Court, Accra in May, 2018. There were cross allegations as to who are and who are not legally recognized subscribers, directors, secretary and officers of the organization. After a full blown trial, the High Court gave judgment on 4th November, 2021. In concluding the judgment the trial judge made the following findings and orders at pages 52-53;
“There is no evidence before me that any AGM has been held since the last one in 2017. Based on the Regulations and Professor Binka’s testimony which is to the effect that board members are about nine (9) and hold tenure for two years, it is clear that the last executive council members or
the Board of Trustees’ tenure has expired. Consequently, in order for the company to operate smoothly, it is hereby ordered that an AGM should be held within 90 days from today so that a new board of trustees and or Executive Council members can be appointed forthwith. Until then those who have been operating the company in the course of the litigation shall continue on an interim basis to help organize the AGM.
…All officers who were appointed and whose contracts have expired will have no role in the operation of the company on an interim basis. For instance, the evidence is that Prof. Alimanay Sankoh is no longer the Executive Director, to that extent he has no further role to play in that capacity. Also, Dr Baku testified that Mr Apaliyah’s employment expired on 30th April, 2018, and I note that the testimony was not challenged. To that extent, I hold that Sixtus Apali