THE REPUBLIC v. HIGH COURT, ACCRA (COMMERCIAL DIVISION), EX PARTE: ENVIRON SOLUTIONS & ORS

RULING

PWAMANG, JSC:-

My Lords, this is an application invoking our supervisory jurisdiction to quash by certiorari the order of the High Court, Commercial Division, Accra dated 25th November, 2019. By the impugned order, the High Court, confirmed the merger of the 1st, 2nd and 3rd Interested Parties (hereafter referred to as the “interested parties”) which are all companies engaged in pharmaceutical manufacturing in Ghana. The applicants are shareholders of the 3rd interested party who for sometime now have been battling changes in the share structure of 3rd defendant in the courts. Those changes resulted in the applicants becoming minority shareholders. On this occasion, their application for certiorari has been brought on four grounds. 1. Lack of jurisdiction of the High Court to hear the motion for confirmation of the merger, 2. Lack of jurisdiction of the High Court by reason of failure to observe the applicants’ right to a hearing, 3. Actual Bias, and 4. Lack of fair hearing.

The basis on which the applicants contend that the High Court had no jurisdiction to hear the application for confirmation of the merger is that the motion paper filed on 15th November, 2019 that sought to invoke the jurisdiction of the High Court stated that the application was being made pursuant to section 231(4) of the Companies Act, 1963, (Act 179). But Act 179 was repealed by section 384(1) of the Companies Act, 2019 (Act 992) which came into force on 2nd August, 2019. According to the applicants, as the motion was filed under the provisions of the repealed statute, it could not competently invoke the jurisdiction of the court. In response the interested parties say that merger of companies is a process that entails a series of activities prescribed under section 231 of Act 179 and ending with an application for confirmation by the High Court. Their case is, that they commenced the merger about 10th December, 2018 under the provisions of Act 179 and the application for confirmation is a sequel to those steps. They argue that section 384 (2) of Act 992 saved all acts lawfully done under Act 179 before its repeal and provides that all such acts shall be considered to have been done under the new Act. Therefore, the High Court did not err but had jurisdiction to hear the application for confirmation.

My Lords, the argument of the applicants suggests, that when a court process states on its face a wrong statute as authority for filing it, then, irrespective of whether the