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JUDGMENT
1. It is provided under
section 107(1) of The Companies
Act 1963 (Act 179) as follows:
“
Every charge, other than those
specified in sub section (3) of
this section, created by a
company after the commencement
of the code shall be void so far
as any security on the company’s
is property (which expression
includes its undertaking and the
unpaid liability on its shares)
is thereby conferred, unless the
particulars hereinafter
prescribed (together with the
original or a certified copy of
the instrument if any, by which
the charge is created or
evidenced) are delivered in the
prescribed form to the Registrar
for registration within 28 days
after the date of its creation.”
2. The undisputed facts of
this case are that
Defendant/Judgment Debtor in the
substantive suit herein had
executed in favour of the
claimant herein a debenture over
all fixed and floating assets of
the Defendant/Judgment Debtor as
far back as March 1998. In
accordance with the provisions
of the Companies Act 1963 (Act
179) referred to above the
claimant dutifully registered a
charge over the said assets as
evidence in ‘Exhibit BDG3’
attached to the claimant’s
affidavit of interest filed on 6th
May 2011. This security was
limited to the sum of
˘200,000.00 now indexed as
GH˘20,000.00 only in today’s
monetary terms.
3. The Plaintiff/Execution
Creditor herein commenced action
against the Defendant on 25th
October, 2007 and obtained
judgment on 2nd May
2008 and or the 6th
May 2008 proceeded to execute
same.
4. The Plaintiff/Execution
Creditor then proceeded to
attach all assets of the
Defendant/Execution Debtor by a
writ of fieri facias. As it
turned out, the assets of the
Defendant/Execution Debtor
attached in execution of the
judgment obtained by the
Plaintiff/Execution Creditor in
this suit, are the same assets
secured by the claimant herein
as creditors to the
Defendant/Execution Debtor under
and by virtue of the Certificate
of Charge issued by the
Registrar General on 19th
March 1998 referred to in
paragraph 2 of this ruling as
limited to a sum of GH˘20,000.00
only.
5. What this means is that
even before the
Plaintiff/Execution Creditor
herein commenced its action
again the Defendant/Execution
Debtor and indeed before
attachment of the Defendant’s
assets which gave rise to this
interpleader, there has been
constructive notice to the whole
world including the
Plaintiff/Execution Creditor of
the existence of a charge on the
same assets attached in the
execution of the judgment of
this court. However, this is for
a limited sum of GH˘20,000.
6. This situation, I
appreciate will not be
ordinarily known to the
Plaintiff/Execution Creditor
herein or any other person and I
would have thought that all the
Plaintiff/Execution Creditor
needed to do would have been to
subject the Claimant’s claim to
interrogatory by conducting
searches at the Company’s
Registry.
7. However, the issues
arising from this dispute are
far more complex than it will
ordinarily appear to be.
Firstly, the claimant herein
apart from being secured
creditors had also proceeded
against the defendant and had
obtained judgment much later in
time than the Plaintiff’s
judgment obtained from this
court.
8. In terms of priority of
judgment obtained by the
Plaintiff /Execution Creditor
and the Claimant therefore, it
will be obvious that it is the
Plaintiff/Execution Creditor who
has the priority and therefore
the first option in execution.
9. I have earlier
reproduced section 107(1) of Act
179 and have referred to Exhibit
‘BDG3’ which in fact limits the
claimant’s secured interest to
only GH˘20,000.00 in today’s
denomination index.
10. I think the claimant
took its secured interest for
granted and for no apparent
reason failed to advert its mind
to the provisions of Section 108
of Act 179 where it is provided
that:
“Where a charge, particulars of
which require registration under
Section 107 of this code is
expressed to secure all sums due
or to become due or some other
uncertain or fluctuating amount
the particulars required under
paragraph (c) of sub section (4)
of the said Section 107 should
state the maximum sum deem to be
secured by such charge (being
the maximum sum covered by stamp
duty paid thereon) and such
charge shall be void, so far as
any security on the company’s
property is hereby conferred, as
respects any excess over the
stated maximum:
(a)
additional stamp duty
subsequently paid on such charge
and
(b)
at any time thereafter
prior to the commencement of the
winding up of the company
amended particulars of the said
charge stating the increased
maximum sum deemed to be secured
thereby. (together with the
original instrument by which the
charge was created or evidenced)
are delivered to the Registrar
for registration.
then, as from the date of such
delivery the charge if otherwise
valid, shall be effective to the
extent of such increased maximum
sum except as regards any person
who, prior to the date of such
delivery has acquired any
proprietory rights in, or a
fixed floating charge on the
property subject to the charge”.
11. In my view, learned
Counsel for the Claimant has
come to terms with the
inadequacy of the steps they
took to secure the whole of
claimant’s funds extended to the
Defendant/Judgment Debtor in
various facilities they granted
to Defendant/Judgment Debtor.
She has urged me, relying on
case law to do an interpretation
which will give meaning to the
priority they claim to have over
the Plaintiff/Judgment Creditor
herein. She asserts that in
doing so, this court will
thereby be doing substantial
justice instead of relying on
technicalities.
12. But no substantive
justice is achieved when a court
of law in the face of clear
provisions of statute embarks on
an evasive voyage of pretending
to do substantial justice
contrary to the clear provisions
of statute.
13. In the case of THE
REPUBLIC VRS HIGH COURT FAST
TRACK DIVISION EX-PARTE NATIONAL
LOTTO AUTHORITY CIVIL MOTION NO
JS 22/2009. Atuguba JSC. in
delivering the unanimous opinion
of the Supreme Court said at 4
of the judgment as follows:
“It is communis opinio among
lawyers that the courts are
servants of the legislature.
Consequently, any act of a court
that is contrary to a statute is
unless otherwise expressly or
impliedly provided a nullity”.
……………….., the courts have been
bound to hold that the court’s
own law, the common law must
give way to statute”.
14. It is for this reason I
will decline the invitation by
the claimant that it is entitled
to be unconditionally declared
as prior secured creditors whose
interest should first be
satisfied before any other
unsecured creditor as in the
Plaintiff/Execution Creditor
herein.
15. On the contrary I will
and hereby agree with the
Plaintiff/Execution Creditor’s
counsel as set out in his
statement of case filed on 10th
June 2011 and hereby direct that
the property attached shall be
sold by public auction in terms
of the order for reserved price
made by this court in this
suit. The Claimant herein shall
have the first option to receive
the secured sum of GH˘20,000.00
as created by the Certificate of
Charge issued by the Registrar
General on 14th April
1998. Thereafter, the
Plaintiff/Execution Creditor
shall be entitled to recover its
entire judgment debt.
16. If there shall be any
residue of the judgment debt
resulting from the auction sale,
same shall be paid into an
interest yielding account in the
title of this suit and notice of
such account shall be brought to
the attention of the Director of
Finance of the Judicial Service
and the Judicial Secretary
immediately.
17. Since Suit No. AN
67/2008 between the Claimant and
the Defendant/Execution Debtor
is not before me, I am unable to
make any order with respect to
the Claimant’s interest in the
residue.
JUSTICE
I. O. TANKO AMADU
JUSTICE
OF THE HIGH COURT
COUNSEL
Opoku Boateng Esq.
(For Plaintiff/Execution
Creditor)
Mary Agyekum (Ms.)
(For Claimant)
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