2020
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Marful-Sau JSC delivering the Court’s reasons, dismissed the Official Liquidator of DKM Diamond Microfinance Ltd’s application for certiorari to quash a Wa High Court order granting leave to interested parties to sue the liquidator. After the Bank of Ghana revoked DKM’s licence and liquidation commenced, the interested parties secured leave on 7 July 2020 to issue a writ. The Official Liquidator argued that, under section 93 of the Corporate Restructuring and Insolvency Act, 2020 (Act 1015), only secured creditors could sue. Interpreting section 93 consistently with section 17 of Act 180 and guided by Republic v. High Court (Commercial Division) Ex parte Alfredina Ofori & Nikabs Grande, the Court held unsecured creditors can sue with prior leave. It further reaffirmed that certiorari lies only for patent, fundamental errors or jurisdictional defects. Finding none, and that the High Court acted within jurisdiction, the Court unanimously refused certiorari and affirmed the grant of leave.
MARFUL-SAU, JSC:-
The applicant herein who is the Official Liquidator of DKM Diamond Microfinance Ltd prayed this Court for an order of certiorari directed at the High Court, Wa presided over by His Lordship Justice Kwasi Boakye, to quash the ruling of that court dated the 7th of July 2020 in suit number UW/WA/HC/E2/23/2020. In that suit the interested parties herein had applied for leave to issue a writ of summons against the applicant herein. The High Court granted the application for the interested parties to issue a writ of summons against the applicant. It is the order granting leave to the interested parties to issue the writ of summons that has become the subject of this application. On the 25th November, 2020, this Court by a unanimous decision dismissed the application for certiorari by the Official Liquidator and reserved its reasons which we hereby deliver.
The brief facts of the case are that on the 1st of March 2016 the Bank of Ghana, revoked the licence of DKM Diamond Microfinance Ltd under section 68 (1) of Banking Act 2004, Act 673, and the applicant was appointed the Liquidator of the company. The applicant subsequently ordered the liquidation of the company under section 1(1) (b) of then Bodies Corporate (Official Liquidation) Act, 1963 (Act 180), which is now section 81(1) (b) of the Corporate Restructuring and Insolvency Act, 2020 (Act 1015). The applicant published in the national dailies a Press Release informing the interested parties to submit their proof of debts. The interested parties who were paid portions of their claim, later filed an application in the Registry of the High Court, Wa, for leave to issue a writ of summons against the Official Liquidator. The High Court, Wa, granted the interested parties leave to issue the writ of summons on 7th July 2020.This is the order applicant sought to quash by certiorari.
The applicant formulated one ground for the application, which was that the learned justice of the High Court, Wa committed error of law apparent on the face of the record which goes to jurisdiction when he granted the interested parties leave to issue a writ against the Official Liquidator of DKM Diamond Microfinance Ltd. The issue we need to resolve in this case is whether the High Court, Wa, erred when it granted leave to the interested parties to issue a writ of summons against the applicant herein?
Now, reading the ruling of the High Court, Wa, it is clear that the interested parties herein brought their appli