FOURTH REPUBLIC
Insolvency Act, 2006 ACT
708
ARRANGEMENT OF
SECTIONS
The official
Trustee
Section
1)
The Official
Trustee
2) Powers of the
High Court
3). Insolvent
estates fund
4)
Insolvency
register
5)
Notices
in the Gazette
6)
Liability
for default
7)
Annual
report
Insolvency
Proceedings
Petitions
8.) Commencement of
Proceedings
9). Creditor's
petition
10) Debtor's
petition Procedure on petitions
Protection
orders
12) Effect of
protection order
13). Debtor's
statement of affairs
! 4. Debtor's
proposal for arrangement with creditors
15)
Creditors'
proof of debts
16)
First
meeting of creditors
Judicial
consideration
17)Application to
the High Court
18). Hearing of
application
19) Insolvency
order
20) Confirmation
of arrangement with creditors
21). Rescission of
protection order
Bankruptcy
22)
Public
examination of debtor
23)
Adjudication
of bankruptcy
24)
Additional
duties and disabilities of bankrupt
General duties
and disabilities of debtor
25)
Duty to
co-operate with Official Trustee
26)
Duty to
disclose after-acquired property
27)
Duty of
disclosure when obtaining credit
28) Liability to
arrest and seizure of property
29) Liability to
interception of letters
Discharge
30)
Date 0 f
discharge
31)
Earlier
discharge where additional payment made
32)
Alteration
of bankrupt's discharge date
33)
Certificate
of discharge
34)
Effect of
discharge
Termination of
proceedings
35) When
proceedings come to an end
36). Order
tem1inating proceedings
Administration
of debtor’s property
Assets passing
to Official Trustee
37)
Vesting on
making of protection order
38)
After-acquired property
39)
Repayments
by preferred creditors
40)
Repayment of
gifts
41)
Repayments
by moneylenders
42.) Sums to be
credited to debtor's official account
General
functions of Official Trustee
43)
Duty to
protect assets
44)
Duty to
realise assets
45)
Duty to
verify debts ranking for dividend
46)
Duty to
amend admitted proofs
47)
Duty to
ascertain priority of debts
48) Duty to
consult creditors
49) Enquiries by
the High Court
Assets passing
from Official Trustee
50)
Cases where
insolvency order not made
51)
Disclaimer
52)
Fees and
outgoings
53)
Return of
personal effects to debtor
54)
Dividends to
creditors
55)
Return of
surplus assets to debtor
56. Payments to be
made out of debtor's property
Arrangements
with creditors apart from insolvency proceedings
57)
Arrangements
to which sections 58 to 61 apply
58)
Arrangements
register
59)
Arrangements
voidable unless registered
60)
Setting
aside of arrangement
61. Arrangement not
to count as suspension of payments
Modifications in
special cases
62)
Debtors not
of full age and capacity
63)
Joint
debtors
64)
Debtors who
are trustees
65. Participation
in insolvency proceedings by subsequent creditors
Administration
of estates of deceased insolvents
66)
Administration orders
67)
Effect of
administration order
68)
Creditors'
proof of debts
69)
First
meeting of creditors
70)
Duties of
deceased's representative
71)
Application
of sections 37 to 56
72)
Order
terminating administration
73. Death of debtor
during insolvency proceedings
Supplemental
provisions
74)
Offences
75)
Evidence
76)
Rules
77)
Interpretation
78)
Repeal
SCHEDULE
Meetings of
Creditors
THE SEVEN HUNDRED AND EIGHT
Act 708
ACT
OF THE
PARLIAMENT OF THE REPUBLIC OF GHANA
ENTITLED
THE INSOLVENCY ACT 2006
AN ACT to
amend and consolidate the law to provide for the
protection of creditors and debtors in cases of
insolvency and for related matters
DATE OF
ASSENT: 12th April 2006
ENACTED by the
President and Parliament:
The Official
Trustee
Official Trustee
-
(1) There shall
be a public office under the title of Official
Trustee.
(2) The President
may, in accordance with article 195 of the
Constitution, and within six months after the coming
into force of this Act, appoint the official
Trustee.
(3) Until the
appointment is made under subsection (2), the
Registrar-General is the Official Trustee.
(4) A person shall
not be appointed the Official Trustee unless that
person is a legal practitioner of not less than ten
years standing.
(5) An act required
or authorised to be done by, or in relation to, the
Official Trustee may instead be done by, or in
relation to a public officer authorised in that
behalf by the Official Trustee or under an
enactment.
(6) For the
purposes of subsection (5), a public officer is
presumed to be so authorised unless the contrary is
shown.
(7) In the
performance of the functions of the office, the
Official Trustee (a) may seek the services of
a person who is not a public officer, and (b)
may make appropriate payments for the services of
that person.
Powers of the
High Court
2.
(1) A person
aggrieved by an act done by the Official Trustee in
the performance of a function under this Act may
appeal to the High Court, which shall make an
appropriate order.
(2) Where a person
refuses or fails to comply with a requirement made
by the Official Trustee under this Act, the Official
Trustee may apply to the High Court, and the Court
may order the requirement to be carried out.
(3) The Official
Trustee may, where in doubt as to a matter arising
in connection with the performance of a function
under this Act, apply to the High Court for
directions.
Insolvent
estates Fund
3.
(I) There is hereby
established a public fund to be known as the
insolvent estates fund, to which shall be credited
the sums 0 f money received by the Official Trustee
under this Act and to which the Official Trustee
shall debit the sums of money disbursed under this
Act.
(2) There is hereby
established an account within the insolvent estates
fund to which shall be credited the sums of money
received by the Official Trustee by way a f fees and
any other charges.
(3) The payments
required or authorised by this Act to be met out of
the insolvent estates fund are hereby charged on
that Fund.
Insolvency
register
4.
(1) The Official
Trustee shall make and keep an insolvency register,
in respect of a debtor in relation to whom a
protection order is made.
(2) The Official
Trustee shall record in the register within seven
days, as it becomes available,
(a)
the name and
address of the debtor, the previous names of the
debtor, and a change in the debtor's name or address
which is notified to the Official Trustee;
(b)
the date of the
making of the protection order;
(c)
the date on which
the protection order ceases to have effect, and the
reason for its ceasing to have effect;
(d)
where an insolvency
order is made, the date of the making of the order,
the date on which the debtor is discharged and the
date on which the insolvency proceedings are
tem1inated;
(e)
where the debtor is
adjudged bankrupt, the date of the adjudication, the
appointed discharge date, and an alteration in that
date;
(f)
where a
participation order is made, the date of the making
of the order and where the debtor's discharge is
revoked by virtue of the order, a statement to that
effect.
(3) Where an
administration order is made in respect 0 f a
deceased debtor, the Official Trustee shall, within
seven days, record in the insolvency register as it
becomes available,
(a)
the name and last
known address of the debtor, and the previous names
of the debtor,
(b)
the date of the
making of the administration order, and
(c)
the date of the
termination of the administration.
(4) The insolvency
register shall be open, during working hours, for
public inspection on payment of the prescribed fee.
(5) The Official
Trustee shall, on an application made by a person in
the prescribed fom1, and on payment of the
prescribed fee, provide copies of an entry in the
insolvency register.
Notices in the
Gazette
5. (1) Where an
information is required to be recorded in the
insolvency register, the Official Trustee, in
addition to recording the information in the
register, shall publish the information in the
Gazette within fourteen days after it becomes
available to the Official Trustee.
(2) Within fourteen
days after the end of each June and December, the
Official Trustee shall publish in the Gazette
the names, including former names, and addresses of
the bankrupts, together with the dates on which they
were adjudged bankrupt and their appointed discharge
dates.
Liability for
default
6. (1) A liability
does not attach to the Official Trustee in respect
of a breach of a duty imposed on the Official
Trustee by or under this Act, and, except in so far
as may result from an order made under subsection
(3) of section 42, a liability does not attach to
the Republic in respect of that breach.
(2) Subsection (1)
does not affect the institution against a public
officer of criminal proceedings or of disciplinary
proceedings under the Civil Service Act, 1960 (C.A
5).
Annual report
7. Within three
months after the end of each December, the Official
Trustee shall prepare and lay before Parliament, a
rep0l1 giving details of the operation of this Act
during the previous year.
Insolvency
proceedings Petitions
Commencement of
proceedings
8. (1) Insolvency
proceedings in respect of a debtor shall be
initiated by the presentation of a petition to the
Official Trustee in the prescribed manner, and
accompanied by the prescribed fee, for the making of
a protection order, enabling the debtor's assets to
be conserved for the protection of the creditors
until the affairs of the debtor have been considered
by the High Court.
(2) A petition
shall not be presented
(a)
in respect of a
body corporate, or
(b)
in respect of two
or more debtors except where the debts are owed by
those debtors jointly.
(3) Where a
petition is presented, the High Court may, on an
application made by the Official Trustee, restrain
the institution or continuance of civil proceedings
by or against the debtor.
(4) Civil
proceedings under subsection (3) do not include
proceedings by a secured creditor for the
realisation of the security of the secured creditor.
(5) A petition
maybe withdrawn or amended, with the prior consent
in writing of the Official Trustee, before a
protection order is made.
Creditor's
petition
9. (1) A petition
maybe presented in respect of a debtor by anyone or
more of the creditors, if the indebtedness of the
debtor to the petitioner, or the petitioners
collectively, in liquidated sums of money payable
immediately amounts to at least one hundred million
cedis and if,
(a)
the debtor has,
within the preceding three months, suspended payment
or given notice to a creditor that the debtor has
suspended, or is about to suspend, payment of the
debts; or
(b)
the sheriff has,
within the preceding three months, and in pursuance
of a writ offieri facias issued in the
Republic in respect of the debtor, taken possession
of a property of the debtor and sold the property or
retained it for at least twenty-one days; or
(c)
a creditor is
entitled to proceed with the execution, by means of
a writ ofjieri facias issued or issuable in
the Republic, of a judgment or order obtained
against the debtor not less than seven days
previously.
(2) Where a
petitioner is a secured creditor,
(a)
the value and
description of the security shall be specified in
the petition; and
(b)
for the purpose of
applying the one hundred million cedis limit under
subsection (1), the amount of the secured debt shall
be reduced by the value of the security as
specified.
Debtor's
petition
10.
(1) A petition may
be presented by a debtor in respect of the affairs
of that debtor if the debtor is insolvent and the
indebtedness in liquidated sums of money payable
immediately amounts to at least one hundred million
cedis.
(2) Where an
indebtedness referred to in subsection (1) is to a
secured creditor then, unless the total of the
unsecured debts amounts to at least fifty million
cedis in liquidated sums of money payable
immediately, the debtor shall specify in the
petition the value and description of the security.
(3) For the purpose
of applying the one hundred million cedis limit
under subsection (I), the amount of the secured debt
shall be reduced by the value of the security as
specified.
Procedure on
petitions
11.
(I) A copy of a
creditor's petition shall be served on the debtor by
the petitioner two clear days before the day on
which it is presented.
(2) After seven
days have elapsed following the presentation of a
petition, the Official Trustee shall consider the
petition and evidence in support of the petition
together, in the case of a creditor's petition, with
the representations made by the debtor and evidence
in support of the petition.
(3) Where a duly
presented petition is not withdrawn the Official
Trustee shall make a protection order in respect of
the petition.
(4) The Official
Trustee shall not make a protection order under
subsection (3), if it appears that, owing to
payments by the debtor or other change of
circumstances, the debtor's total indebtedness in
liquidated sums of money payable immediately,
including indebtedness to persons who are not
parties to the petition, has, after deduction of
the value of securities held in respect of the
indebtedness, fallen below one hundred million cedis.
(5) The Official
Trustee
(a)
may, where a
petition was not duly presented or the indebtedness
of the debtor has been reduced,
(b)
shall, if the
petition has not been withdrawn,
give notice to the
petitioner and, in the case of a creditor's
petition, to the debtor that the petition is
dismissed.
(6) Where two or
more petitions are presented in respect of a debtor,
a protection order made on any of the petitions
shall be deemed to have been made on all of them.
(7) After a
protection order is made a further petition shall
not be presented in respect of the debtor before the
termination of the insolvency proceedings.
Protection
orders
Effect of
protection
order
12.
While a protection
order has effect,
(a)
existing and
after-acquired property of the debtor shall vest in
the Official Trustee in accordance with sections 37
and 38, and shall be conserved in accordance with
section 43;
(b)
the debtor is
subject to the duties and disabilities specified in
sections 25, 26, 28 and 29;
(c)
civil proceedings
by or against the debtor shall not be instituted or
continued without the leave of the High Court.
Debtor's
statement of affairs
13.
(I) Within seven
days after the making of a protection order, or a
longer period which the Official Trustee may allow,
the debtor shall, lodge with the Official Trustee a
statement of affairs conforming to subsection (2),
unless a statement of affairs has been lodged
previously.
(2) The statement
of affairs shall contain
(a)
particulars of the
debtor's existing and potential assets and of any
other property in the possession or control of the
debtor,
(b)
a list of
creditors, showing the amounts and due dates of
debts and particulars of securities held,
(c)
particulars of the
debtor's transactions during a period which the
Official Trustee may specify,
(d)
a statement of the
reasons for the debtor's insolvency, unless the
debtor denies the insolvency, and
(e)
any other
additional information required by the Rules or by
the Official Trustee.
Debtor's
proposal for arrangement with creditors
14.
Within seven days
after the making of a protection order, or a longer
period, which the Official Trustee may allow, the
debtor may make a proposal. for an arrangement with
creditors, and lodge the details of the proposal
with the Official Trustee.
Creditors' proof
of debts
15.
(1) In this Act
"provable debt" means an obligation the value of
which is capable of assessment in money, being
(a)
an obligation
which, apart from this Act, would have been
enforceable by the creditor against the debtor at
the date on which the protection order was made, or
(b)
an existing or a
future obligation, which, by reason of a transaction
which took place before the date on which the
protection order was made might, apart from this
Act, have become enforceable by the creditor against
the debtor after that date;
and references in
this Act to the value of a provable debt are
references to its value apart from this Act on the
date on which the protection order was made.
(2) An existing or
a future obligation referred to in paragraph (a)
of subsection (1) does not include an
obligation unenforceable by virtue of a law relating
to limitation of actions.
(3) While a
protection order has effect, a creditor may lodge
with the Official Trustee a proof of debts, in
accordance with subsection (4).
(4) A proof of
debts shall be in two parts, the first part
containing brief particulars of,
(a)
the values and due
dates of provable debts alleged by the creditor to
be outstanding in favour of the creditor against the
debtor, and the nature and value of the securities
held by the creditor in respect of those debts,
(b)
the values and due
dates of the obligations outstanding in the debtor's
favour against the creditor, being obligations which
would be provable debts if a protection order had
been made against the creditor on the date on which
the protection order was made against the debtor,
(c)
the nature and
value of securities held by the debtor in respect of
the obligations mentioned in paragraph (b),
and
(d)
the total values of
the debts, obligations and securities;
and the second part
containing details of the transactions from which
the debts and obligations arose.
(5) A copy of the
first part of a proof of debts lodged under
subsection (3) shall be given by the Official
Trustee to the debtor and to each creditor who is
mentioned in the debtor's statement of affairs or
who, not being so mentioned, lodges a proof of
debts.
(6) Where the
debtor knows or believes that the proof of debts is
false in a material particular, the debtor shall
inform the Official Trustee of the falsity within
fourteen days of the receipt of the proof of debts.
(7) The Official
Trustee shall examine the proof of debts lodged
under this section and if, after considering the
representations made by the debtor or any other
creditor, it appears
(a)
that an item is
improperly included or a value is incorrectly
stated, or (b) that the proof of debts is
otherwise incorrect,
the Official
Trustee shall give notice of the objection to the
creditor, who may lodge an amended proof of debts
within the period specified in the notice or the
extended period that the Official Trustee may allow.
(8) Where it
appears that a proof of debts is correct, the
Official Trustee shall give notice to the creditor
admitting the proof of debts subject to verification
under section 45.
(9) Where the
creditor fails to lodge an amended proof of debts or
a further amended proof of debts, within the period
allowed under subsection (7), and the Official
Trustee is still of the opinion that the previous
proof of debts is incorrect, the Official Trustee
shall give notice to the creditor of the rejection
of the proof of debts.
First meeting of
creditors
16. (1) The
Official Trustee shall call a first meeting of
creditors for a date not later than four weeks after
the publication of a protection order, and shall
give a notice of the meeting which is practicable to
each creditor who is mentioned in the debtor's
statement of affairs or who, if not mentioned, has
lodged a proof of debts.
(2) Within seven
days of giving the notice under subsection (1), the
Official Trustee shall give to each creditor a copy
of the debtor's statement of affairs and of the
proposals for an arrangement with creditors lodged
by the debtor together with the observations on the
statement that the Official Trustee may wish to
make.
(3) The Official
Trustee shall put appropriate questions to the
meeting, but where the debtor has proposed an
arrangement with creditors, the meeting shall be
asked to approve or reject the proposal.
(4) An arrangement
with creditors is not approved unless it has secured
at least three-quarters of the votes cast, which
represent three-quarters of the total amount of
moneys owed by the debtor.
(5) The meeting
shall be closed not later than six weeks after the
publication of the protection order.
(6) The Schedule
shall apply in relation to the meeting.
Judicial
consideration
Application to
the High Court
17.
(l) Within fourteen
days after the closing of the first meeting of
creditors, the Official Trustee shall make an
application for judicial consideration to the High
Court, for the Court to consider the debtor's
affairs and give its decision as to the future
course of the insolvency proceedings.
(2) On an
application for judicial consideration, the Court
may make (a) an insolvency order, or
(b)
an order confirming
an arrangement with creditors, or
(c) an
order rescinding the protection order.
(3) On the making
of an order under subsection (2), the protection
order shall cease to have effect, but the debtor's
assets shall remain vested in the Official Trustee
except as otherwise provided by section 50.
Hearing of
application
18.
(I) At the hearing
of an application for judicial consideration, the
debtor and a creditor who has lodged a proof of
debts may appear and be heard in person or by
counsel, and the Official Trustee shall submit to
the High Court a report on the circumstances of the
case.
(2) A copy of the
report of the Official Trustee to the Court shall be
served on a creditor who has lodged a proof of debts
two clear days before the hearing of the application
under subsection (l).
(3) The Official
Trustee's report shall include, together with any
other information which may assist the Court, a
statement of
(a)
the grounds on
which the protection order was made,
(b)
the assets of the
debtor which have become vested in the Official
Trustee,
(c)
the liabilities of
the debtor,
(d)
the conduct of the
debtor before and since the presentation of the
petition, and
(e)
the decisions taken
at the first meeting of creditors.
(4) The Official
Trustee and any other person entitled to appear may
adduce oral or written evidence and cross-examine a
witness called before the Court.
(5) The Official
Trustee shall give the assistance that the Court may
require for the Court to reach a conclusion.
Insolvency order
19.
(1) The High Court
shall make an insolvency order where it does not,
under section 20 or 21, confirm an arrangement with
creditors or rescind the protection order.
(2) Where an
insolvency order is made, the Official Trustee shall
proceed to realise and distribute the debtor's
assets in accordance with sections 37 to 56. (3)
While the insolvency order has effect,
(a)
the debtor is
subject to the duties and disabilities specified in
sections 25 to 29; and
(b)
civil proceedings
by or against the debtor shall not be instituted or
continued without the leave of the Court.
Confirmation of
arrangement with creditors
20.
(1) Where an
arrangement with creditors was approved by the first
meeting of creditors and it does not appear that
grounds for bankruptcy exist or that it is likely
that they exist, the High Court shall make an order
confirming the arrangement if
(a)
its terms are fair
and reasonable,
(b)
it provides for an
order of priority of payments corresponding to that
laid down by section 54, and
(c)
it provides for
payment in full of the fees and outgoings due to the
Official Trustee in respect of the insolvency
proceedings.
(2) Where the
conditions specified in paragraphs (a) to
(c) of subsection (I) are not satisfied, the
Court may adjourn the hearing of the application for
judicial consideration and direct the first meeting
of creditors to be reopened with a view to the
submission by the debtor of proposals for a modified
arrangement.
(3) On confirmation
by the Court, an arrangement with creditors in
respect of every provable debt owed by the debtor,
becomes binding on the debtor and on each creditor
who was entitled to lodge a proof of debts, whether
or not that creditor voted in favour of the
arrangement.
(4) The Official
Trustee shall supervise the carrying into effect of
an arrangement with creditors confirmed by the
Court; and the Court may, on the application of the
Official Trustee or a person interested, give the
directions that may be expedient for carrying it
into effect.
(5) Where it
appears to the Court, on the application of the
Official Trustee or a person interested,
(a)
that default has
been made in carrying into effect an arrangement
with creditors confirmed by the Court, or
(b)
that for a reason
it is impracticable or would be unjust to proceed
with the arrangement, or
(c) that
confirmation of the arrangement was procured by
fraud,
the Court may annul
the arrangement but without prejudice to anything
previously done under the arrangement.
(6) Where an
arrangement is annulled, the Court may make a
protection order against the debtor, and this Act
shall apply as if the protection order had been then
made by the Official Trustee on a creditor's
petition.
Rescission of
protection order
21.
(1) The High Court
shall rescind the protection order if it appears,
(a)
that having regard
to new evidence and to the circumstances generally,
the order should not have been made; or
(b)
that due to
payments made on behalf of the debtor or other
change of circumstances, payment in full has been
achieved.
(2) On information
given by the Official Trustee that the assets vested
in the Official Trustee are likely to be sufficient
to provide for payment in full, the Court may
(a)
adjourn the hearing
of the application for judicial consideration, and
(b)
authorise the
Official Trustee to realise and distribute the
assets as if an insolvency order had been made.
(3) Where the
hearing is adjourned under subsection (2), the
Official Trustee shall apply to the High Court for
the hearing to be resumed,
(a)
when payment in
full has been achieved, or
(b)
if at any time it
appears to the Official Trustee that the assets are
not sufficient to provide for payment in full;
and where it is
satisfied that payment in full has been achieved the
Court shall rescind the protection order.
Bankruptcy
Public
examination of debtor
22.
(1) Where, at the
time when an insolvency order is made, or on an
application made by the Official Trustee at a
subsequent time before the debtor's discharge from
the insolvency order, it appears to the High Court
that grounds for bankruptcy exist or that it is
likely that they exist, the Court shall direct the
debtor to undergo an examination at a public sitting
of the Court in respect of the conduct and affairs
of the debtor.
(2) Subject to
section 8 of the Oaths Decree, 1972, (NRCD 6) (by
which a person is permitted to give evidence on
affirmation in certain cases), the debtor shall be
examined on oath and shall answer the questions put
by the Court or allowed by the Court to be put to
the debtor by or on behalf of the Official Trustee
or a creditor who has lodged a proof of debts.
(3) A transcript of
the examination shall be made and read to or by the
debtor and signed by the debtor; and the signed
transcript may be used as evidence in any subsequent
civil or criminal proceedings affecting the debtor,
whether instituted under this Act or not.
Adjudication
of
bankruptcy
23.
(1) Where a public
examination is held under section 22, the High Court
shall make an order adjudging the debtor a bankrupt
if one or more of the following have been
established, namely,
(a)
that for an
aggregate period of twelve months within the three
years preceding the making of the protection order,
the debtor continued to carry on the trade or
business of the debtor in the knowledge that the
debtor was insolvent;
(b)
that the debtor
contributed to the insolvency by rash speculations
or culpable neglect of the business affairs of the
debtor, or by gambling or extravagance;
(c)
that a provable
debt was contracted by the debtor with the intention
that it should not be met or without a reasonable
expectation of being able to meet it;
(d)
that the debtor has
failed to account satisfactorily for assets of the
debtor which have disappeared since the date of the
making of the protection order or during the year
previous to that date;
(e)
that the debtor has
persistently and without adequate excuse failed to
carry out the duties of the debtor in the insolvency
proceedings; (j) that the debtor is a former
bankrupt;
(g)
that within the
preceding three years the debtor has been convicted
of an offence involving dishonesty in relation to
property and has been sentenced to a term of
imprisonment of not less than three months;
(h)
that within the
preceding three years the debtor has been convicted
of an offence under section 7 or8 of the
Registration of Business Names Act, 1962 (Act, 151).
(2) The order shall
specify a date, at least two years after the making
of the order, for the discharge of the bankrupt.
(3) Where the
Court has directed the debtor to undergo a public
examination under section 22, but the examination
cannot be held because the debtor has absconded, or
is medically unfit to appear, or for any other
sufficient reason, the Court may proceed under this
section as if the examination had been held.
Additional
duties and disabilities of bankrupt
24.
(1) In addition to
the duties and disabilities imposed on a bankrupt by
virtue of an insolvency order made against the
bankrupt, the bankrupt shall not
(a)
carry on, or
take part in the management or direction of, a trade
or business,
(b)
operate an account
with a bank, or any other financial institution,
(c)
obtain credit
exceeding ten million cedis, or
(d)
enter into a
hire-purchase agreement,
except with the
prior consent in writing of the Official Trustee and
in accordance with the directions that may be given
to the bankrupt by the Official Trustee.
(2) A bankrupt
shall, in the form approved by the Official Trustee,
(a)
keep a record of
the income, expenditure and any other financial
dealings of the bankrupt, and
(b)
lodge with the
Official Trustee at intervals of not more than four
months an income and expenditure account.
(3) For the
purposes of paragraph (d) of subsection (1),
"hire-purchase agreement" means an agreement by
which a person agrees to bail goods to a bailee on
the terms that the property in the goods mayor will
pass to the bailee after payment of two or more
installments.
General duties
and disabilities of debtor
Duty to co-operate
with Official Trustee
25.
(1) In addition to
the specific duties imposed on the debtor by or
under this Act, the debtor shall, during the period
between the making of a protection order and the
termination of the insolvency proceedings, comply
within seven days with a direction given by the
Official Trustee in connection with the debtor's
affairs.
(2) During the
period specified in subsection (1), the debtor
(a)
shall attend every
meeting of creditors called by the Official Trustee
and give the information to the meeting that may be
required by the Official Trustee;
(b)
shall, within seven
days, give notice to the Official Trustee of a
change in the name or address of the debtor;
(c)
shall not destroy,
alter, conceal or dispose of an account book or any
other record of the financial affairs of the debtor.
Duty to disclose
after-acquired property
26.
(1) The debtor shall, on becoming entitled to an
after-acquired property, give notice of that
property to the Official Trustee.
(2) For the
purposes of subsection (1), "after-acquired
property" includes movable and immovable property,
and income, which becomes, or but for this Act would
become, vested in the debtor during the period
between the making of the protection order and the
discharge of the debtor or earlier termination of
the insolvency proceedings.
Duty of
disclosure when obtaining credit
27.
Where a bankrupt or any other debtor who has not
been discharged intends, whether personally or
jointly with another person to obtain credit
exceeding ten million cedis from a person, the
debtor shall disclose to that person, before seeking
to obtain the credit, that the bankrupt or any other
debtor is a bankrupt or is undischarged from an
insolvency order.
Liability to
arrest and seizure
of property
28.
(1) Where insolvency proceedings are in progress
against a debtor, and it appears to the High Court
that the proceedings are or may be impeded because
the debtor,
(a)
has absconded, or
is likely to do so,
(b)
has removed,
concealed, destroyed or damaged any property, or is
likely to do so, or
(c)
is likely to fail
to attend as required before the Court, the Official
Trustee or a
meeting of creditors,
the Court may,
without prejudice to its powers in relation to
contempt of court, issue a warrant for the arrest of
the debtor, or the seizure of the property in
question, or for both the arrest and the seizure.
(2) Where a warrant
of arrest is issued under subsection (1), the
provisions of the Criminal Procedure Act, 1960 (Act
30) relating to arrest shall apply in the same way
as they apply to the arrest for a criminal offence;
and a debtor arrested under that warrant may, for
the purposes of the insolvency proceedings, be
conveyed in custody to a hearing by the Court or
the Official Trustee, or to a meeting of creditors.
(3) Property seized
under subsection (1) shall be dealt with as the
Court may direct, but property which does not belong
to the debtor and is not likely to be subject to the
powers of the Official Trustee under sections 37 to
56 shal1 be returned to its owner within twenty
eight days.
Liability to
interception of letters
29.
(1) Where, during
the period between the making of a protection order
and the termination of the insolvency proceedings,
it appears to the High Court that the proceedings
may be impeded unless the Official Trustee is
enabled to inspect the debtor's incoming
correspondence, the Court may make an order directed
to the Minister responsible for Communications
requiring the Minister to cause a postal article or
any other article in print or electronic or any
other form in course of transmission to the debtor
during the period, not exceeding six months,
specified in the order, to be readdressed to the
Official Trustee.
(2) Subsection (1)
is subject to the operation of clause (2) of article
18 of the Constitution.
(3) After taking
the copies and retaining the articles that the
Official Trustee considers expedient for the
purposes of the proceedings, the Official Trustee
shall transmit the remaining articles to the debtor
within seven days.
Discharge
Date of
discharge
30.
(I) The date of
discharge from an insolvency order of a debtor who
is not a
bankrupt shall be
the earliest of the following dates, namely,
(a)
the date two years
after the insolvency order was made;
(b)
the date on which
payment in full is achieved;
(c)
the date specified
in a proposal for additional payment approved by the
High Court under section 31.
(2) The date of
discharge from an insolvency order and from
bankruptcy of a debtor who is a bankrupt shall be
the date fixed under section 23 at the time when the
debtor was adjudged bankrupt, or if that date has
been altered by the Court under section 31 or 32
shall be the date as altered.
(3) The date which
will be the date of discharge unless an event occurs
to alter it, is in this Act referred to as the
appointed discharge date.
Earlier
discharge where additional payment made
31.
(I) Where before
the appointed discharge date of a bankrupt or any
other debtor,
(a)
a person other than
the debtor gives notice to the Official Trustee of a
proposal to pay to the Official Trustee a sum of
money specified in the notice for distribution to
the creditors if the debtor's discharge is fixed for
an earlier date specified in the notice, in this
section referred to as the specified date, and
(b)
it appears to the
Official Trustee that the proposal is made in good
faith and could be carried out,
the Official
Trustee shall call a meeting of creditors, to which
the Schedule shall apply, and shall report to the
meeting the views of the Official Trustee on the
proposal and also, if the debtor is a bankrupt on
the debtor's conduct since the debtor was adjudged a
bankrupt together with an account of any new facts
which have since come to light as to the conduct and
affairs of the debtor before the debtor was adjudged
bankrupt.
(2) After hearing
the Official Trustee's report and the observations
made by or on behalf of the debtor, the meeting
shall vote on the proposal.
(3) If the meeting
approves the proposal the Official Trustee shall
apply to the High Court for its decision on the
proposal and shall submit to the Court a report
dealing with the matters required to be dealt with
in the report to the meeting and including the
decision of the meeting.
(4) Where the Court
is satisfied that it would be proper to discharge
the debtor on the specified date it shall make an
order,
(a)
fixing that date as
the appointed discharge date, and
(b)
requiring the
person making the proposal to pay the sum of money
specified in the order to the Official Trustee
within the period specified in the order.
(5) The specified
date
(0)
shall not be less
than two months after the date on which notice of
the proposal is given to the Official Trustee, and
(b)
in the case of a
bankrupt shall not be less than two years after the
date on which the bankrupt was adjudged bankrupt;
and the Official
Trustee shall carry out the requirements of this
section in sufficient time to enable the Court to
give its decision before the specified date.
(6) A sum of money
paid under this section is, for the purposes of this
section, paid by way of gift to the debtor unless
the proposal states that it is to be paid by way of
loan.
Alteration of
bankrupt's
discharge date
32.
(1) Where, before
the appointed discharge date of a bankrupt, it
appears to the Official Trustee that the date shall
be altered to an earlier or later date by reason of,
(a)
the conduct of the
bankrupt since the bankrupt was adjudged a
bankrupt, or
(b)
new facts which
have come to light as to the conduct or affairs
before the bankrupt was so adjudged,
the Official
Trustee shall call a meeting of creditors, to which
the Schedule shall apply, and shall report to the
meeting the view of the Official Trustee as to the
appropriate new
discharge date and as to the debtor's conduct since
the debtor was adjudged a bankrupt, together with an
account of the new facts.
(2) After hearing
the Official Trustee's report and the observations
made by or on behalf of the debtor, the meeting
shall vote on whether the discharge date should be
altered and if so what the new date should be.
(3) Where after the
meeting the Official Trustee remains of the opinion
that the discharge date should be altered, the
Official Trustee shall apply to the High Court for
its decision, and shall submit to the Court a report
dealing with the matters required to be dealt with
in the report to the meeting, including the decision
of the meeting.
(4) Where the Court
is satisfied that the date should be altered, it
shall make an order fixing as the appointed
discharge date a new date it considers appropriate.
(5) The same
meeting of creditors may, at the instance of the
Official Trustee, consider a proposal made under
section 31 and matters brought before it under this
section, and the Court may deal in the same
proceedings with applications under section 31 and
under this section.
Certificate of
discharge
33.
A bankrupt or any other debtor is discharged on the
arrival of the appointed discharge date of the
bankrupt or the other debtor, and the Official
Trustee shall issue a certificate of discharge
within seven days to the bankrupt or the debtor.
Effect of
discharge
34.
(1) The discharge of a bankrupt or any other debtor
(a)
shall release that
person from the provable debts whether or not
included in a proof of debts, and
(b)
shall relieve that
person for the future from the duties and
liabilities under sections 24, 26 and 27.
(2) The discharge
of a bankrupt or any other debtor
(a)
shall not release a
person who at the date when the insolvency order was
made was a partner or co-trustee of the bankrupt or
the debtor, or was jointly bound with the bankrupt
or the debtor under a contract or otherwise, or was
a surety or in the nature of a surety for the
bankrupt or the debtor, and
(b)
shall not bring the
insolvency proceedings to an end.
Termination of
proceedings
When
proceedings come to an end
35.
(1) Where an
insolvency order is not made, insolvency proceedings
shall come to an end on
(a)
the withdrawal or
dismissal of the petition by which the proceedings
were initiated, or
(b)
the confirmation of
an arrangement with creditors under section 20, or
(c)
the rescission of
the protection order under section 21.
(2) Where an
insolvency order is made the insolvency proceedings
shall come to an end on the making by the High Court
of an order under section 36.
Order
terminating proceedings
36.
(1) Where a
bankrupt or any other debtor is discharged, and,
(a)
the Official
Trustee has completed the distribution of the
debtor's assets under sections 37 to 56, and
(b)
the Official
Trustee's final accouts in the insolvency have been
drawn up, and have been passed by the
Auditor-General,
the Official
Trustee shall apply to the High Court for an order
terminating the insolvency proceedings.
(2) The Official
Trustee shall give notice of the application,
together with a summary of the final accounts, to
the debtor and to every creditor with an admitted
proof
(3) The Court shall
grant the application if satisfied that it is duly
made.
Administration
of debtor
s property
Assets passing
to Official Trustee
Vesting on
making of protection
order
37.
(1) On and by
virtue of the making of a protection order, the
movable and immovable property vested in the debtor
immediately before the order was made, shall vest in
the Official Trustee to the same extent, and,
subject to subsection (3), with the same incidents.
(2) The property in
the possession of the debtor at any time within six
months before the protection order was made shall be
presumed to be vested in the debtor unless the
contrary is shown.
(3) Property which
has become vested in the Official Trustee under this
section shall not be subject to attachment, distress
or any other proceedings for the enforcement of an
obligation against the debtor, whether founded on a
judgment or not.
(4) Subsection (3)
does not apply to proceedings for the enforcement of
a security.
After-acquired
property
38.
(1) The Official
Trustee shall bring about the vesting in the
Official Trustee to the same extent and, subject to
subsection (3), with the same incidents, of the
after-acquired property of the debtor except
property exempted by subsection (2) or as determined
by the Official Trustee.
(2) The following
after-acquired property shall be exempted, namely,
(a)
property necessary
for the reasonable current maintenance of the
debtor, the spouse and children of the debtor;
(b)
money paid or
payable to the debtor, as compensation for the
diminished earning capacity of the debtor, by way of
damages for personal injury or other lump sum;
(c)
money paid or
payable to the debtor by way of loan;
(d)
movable property
bought by the debtor and not paid for in full;
(e)
property in which a
property mentioned in paragraph (h), (c) or
(ef) has been directly or indirectly
invested, or which otherwise represents that
property.
(3) Property which
has become vested in the Official Trustee under this
section are not subject to attachment, distress or
any other proceedings for the enforcement of an
obligation against the debtor, whether founded on a
judgment or not.
(4) Subsection (3)
does not apply to proceedings for the enforcement of
a security.
(5) Where the
debtor has, with respect to after-acquired property
which is not exempted, entered into a transaction by
which the whole or a part of the value of the
property is lost to the creditors, the Official
Trustee may apply to the High Court for an order
setting aside the transaction and requiring the
property or its value, or that part of the property
that was lost to the creditors, to be transferred to
the Official trustee.
(6) The Official
Trustee may give notice to an employer, a banker or
any other person who but for this section would be
under an obligation to transfer after acquired
property which is not exempted to, or to the order
of, the debtor to transfer the property instead to
the Official Trustee, whose receipt shall be a
sufficient discharge.
(7) A person who
fails to comply with a notice under subsection (6)
shall pay to the Official Trustee a sum of money
necessary to make good a loss to the creditors
arising from the failure.
Repayments by
preferred creditors
39.
(1) Where, between
the making of an insolvency order and the debtor's
discharge, it appears to the Official Trustee that,
during the six months ending with the making of the
protection order and at a time when the debtor was
insolvent, the debtor
(a)
made a payment or
any other transfer of property, or
(b)
created a mortgage
or any other charge, or suffered a judgment or
incurred any other
obligation,
with the dominant
intent that any of the creditors of the debtor
should benefit at the expense of others, the
Official Trustee shall give notice to the creditor
so preferred requiring that creditor, within the
period specified in the notice, to restore to the
Official Trustee, whether by payment of money,
transfer of property or surrender of rights, the
benefit which has accrued to the creditor by reason
of that preferment.
(2) Where an
insolvency order is made against a debtor, a person
who, during the relevant period, received a payment
of money, or any other transfer of property, in
respect of a debt owed to that person by the debtor,
shall, on receipt of a notice given in that behalf
by the Official Trustee, restore the property or its
value to the Official Trustee.
(3) Subsection (2)
does not apply to a payment or any other transfer of
property,
(a)
made by the debtor
to the debtor's banker, in so far as it has been
subsequently disbursed by the banker in meeting
cheques drawn by the debtor;
(b)
made in respect of
a debt incurred during the relevant period; (c)
made in respect of a secured debt; or
(d)
made on the
enforcement against a third party of a guarantee or
indemnity, or of a mortgage, charge or lien on that
party's property.
(4) Where an
insolvency order is made against a debtor, the
property in the possession of the sheriff at the
time of the making of the protection order, being
property of which possession was taken under an
execution issued by a creditor of the debtor or the
proceeds of that property, shall, after deduction of
the sheriff s and bailiff's charges in the
execution, be transferred to the Official Trustee.
(5) Where a person
complies with a notice given under subsection (1) or
(2), that person may, within one month after the
notice was given, lodge a proof of debts, or require
the Official Trustee to amend that proof, so as to
enable the debt in respect of which the notice was
given to rank for dividend at the value which is
appropriate in view of the compliance.
(6) For the
purposes of this section, "relevant period" means
the period beginning twenty-one days before the
presentation of the petition on which the protection
order was made, or, if the protection order was made
on two or more petitions, before the presentation of
the first petition, and ending with the making of
the protection order.
Repayment of
gifts
40.
(1) Where, between
the making of an insolvency order and the debtor's
discharge, it appears to the Official Trustee that
the debtor made a disposition of the debtor's
property otherwise than for full value or in
settlement of a due debt, or incurred an obligation
otherwise than for full value, and was not made for
the purpose of defeating creditors,
(a)
during the two
years ending with the making of the protection
order, or
(b)
more than two years
but less than ten years before the making of the
protection order
and at a time when the debtor was insolvent,
the Official
Trustee shall give notice to the person to whom the
disposition was made or for whose benefit the
obligation was incurred requiring that person within
the period specified in the notice, to restore to
the Official Trustee, whether by payment of money,
transfer of property or surrender of rights, the
excess of the benefit which had accrued to that
person above the value of the consideration
provided.
(2) Excess benefit
restored under subsection (1) shall be treated as a
provable debt in respect of which a proof of debts
may be lodged within one month after it was
restored.
(3) This section
does not apply to a disposition made in
consideration of marriage unless the High Court is
of the opinion that the disposition was made for the
purpose of defeating creditors.
Repayments by
money-lenders
41.
(1) Where it
appears to the Official Trustee that, during the ten
years ending with the making of the protection
order, a sum of money was paid or allowed by the
debtor, the Official Trustee may give notice to the
lender requiring the lender, within the period
specified in the notice, to make a similar repayment
to the Official Trustee.
(2) Subsection (1)
is applicable
(a)
at any time between
the making of an insolvency order and the debtor's
discharge, and
(b)
in respect of a
loan in circumstances which the High Court would
have ordered the lender to make repayment to the
debtor, if proceedings had been brought under the
applicable law.
Sums to be
credited to debtor's official account
42.
(I) The Official
Trustee shall open a debtor's official account,
within the insolvent estates fund for each debtor in
respect of whom a protection order is made.
(2) The Official
Trustee shall credit the debtor's official account
with
(a)
the moneys received
by the Official Trustee in respect of the debtor by
virtue of sections 37 to 41,
(b)
the payments made
to the Official Trustee in respect of the debtor
under an order for early discharge made under
section 31 or otherwise for the purpose of
increasing the assets available for dividend, and
(c) the repayments in respect of excess
dividends made under subsection (2) of section 54.
(3) Where on the
application of the debtor or a creditor, it appears
to the High Court before the termination of the
insolvency proceedings that assets have been lost to
the estate by reason of a default by the Official
Trustee, the Court may order that the debtor's
official account be credited with the sum of money
that may appear to the Court to be just, and that an
equivalent sum of money be debited to the fees
account.
General
functions of Official Trustee
Duty to protect
assets
43.
(I) On the making
of a protection order the Official Trustee
(a)
shall take
possession of the property which has passed to the
Official Trustee under section 37;
(b)
shall take the
steps that are expedient to procure, in relation to
stocks and shares and any other property
transferable in the books of a body corporate or any
other person which have passed to the Official
Trustee under section 37, the transfer of the
property into the name of the Official Trustee;
(c)
shall make the
arrangements that are expedient to secure the
carrying on of a trade or business the continuance
of which would be likely to benefit the creditors;
(d)
shall secure the
payment to the Official Trustee or any other
discharge of the debts and any other obligations,
the right to which has passed to the Official
Trustee under section 37;
(e)
shall take any
other steps that are expedient to ensure the
protection of the debtor's assets for the benefit of
the creditors.
(2) Until an
insolvency order is made the Official Trustee shall
not dispose of, or encumber, a property, otherwise
than in the course of a trade or business, without
the consent of the debtor or the authority of the
High Court.
(3) A restriction
on the transferability of the property as is
mentioned in paragraph (b) of subsection (1)
of this section is not operative in the case of a
transfer to the Official Trustee.
(4) The Official
Trustee may, on suspecting that property is
concealed, offer a reward, to a person who is not
the debtor personally, who produces the property or
gives information leading to its discovery.
(5) The reward
shall not exceed one-twentieth of the value of the
property recovered by the action of that person.
Duty to realise
assets
44.
(1) On the making of an insolvency order the
Official Trustee shall realise as soon as
practicable the assets not held as cash by the means
and for the return that will produce for
distribution to the creditors sums of money
representing the full value of the assets.
(2) Subsection (1)
does not require the realisation of an asset which
cannot be readily or advantageously disposed of.
Duty to verify
debts ranking for dividend
45.
(1) On the making of an insolvency order the
Official Trustee shall take the steps that are
practicable to verify the correctness of every
admitted proof.
(2) Where an
insolvency order is made, and the creditor's
obligations that are mentioned in paragraph (b)
of subsection (3) of section 15 are included in
the creditor's admitted proof,
(a)
the obligations are
cancelled on the making of the insolvency order, and
the values of the debts shall be proportionally
reduced, in a case where the total value of the
obligations as shown in the proof is less than the
total value of debts owed to the creditor as shown;
(b)
the obligations are
proportionally reduced on the making of the
insolvency order by the total value of the debts in
any other case, and the proof shall be expunged.
(3) The Official
Trustee may give notice to a creditor holding a
security that, if the security is not realised
within the period specified in the notice, which
shall not be less than six months, it will be
treated as surrendered.
(4) All securities
are held subject to a judicial order.
(5) Subject to
sections 31 to 56, a debt shall rank for dividend at
any time if, but only if, it is at that time
included in an admitted proof; and the value of the
debt shall be taken to be the value shown at that
time in the proof
Duty to amend
admitted proofs
46.
(1) Where the value
of a debt or security included in an admitted proof
has changed otherwise than in respect of interest
accruing after the protection order was made, the
proof is subject to amendment for the purpose of
altering the value shown in the proof to give effect
to the change.
(2) Where a debt or
security is incorrectly included in an admitted
proof, or the value of a debt or security at the
date of the making of the protection order is
incorrectly stated, the proof is subject to
amendment for the purpose of rectifying the
incorrectness.
(3) Where a
creditor desires to withdraw a claim to the whole or
a part of a debt included in an admitted proof, the
proof is subject to amendment for the purpose of
deleting the debt or reducing its value accordingly.
(4) Where an
admitted proof is subject to amendment under this
section,
(a)
the Official
Trustee may, except in the case of an amendment
under subsection (3), give notice to the creditor
specifying the proposed amendment and inviting the
creditor to consent to it within the period
specified in the notice; or
(b)
the creditor may,
if the Official Trustee has not given the creditor
notice under paragraph (a), give notice to
the Official Trustee specifying the proposed
amendment and, except in the case of an amendment
under subsection (3), inviting the Official Trustee
to consent to it within the period specified in the
notice.
(5) Where notice of
a proposed amendment is given under subsection (4),
the Official Trustee shall amend the proof
accordingly if,
(a)
the party to whom
the notice is given consents to the amendment,
(b) consent is not given but, on an appeal by
the creditor or on an application by the Official
Trustee, the High Court orders the amendment to be
made, or
(c)
the amendment is
proposed by the creditor under subsection (3).
Duty to
ascertain priority of debts
47.
(1) On the making
of an insolvency order the Official Trustee shall,
in relation to each debt which ranks for dividend,
ascertain into which of the following classes the
whole or a part of the debt falls:
Class A
- A debt or
part of a debt which answers either of the following
descriptions, namely,
(a)
remuneration not
exceeding the official minimum wage prevailing at
the time, owed to an employee of the debtor, who is
not a near
relative, in
respect of employment during the whole or a part of
the four months preceding the making of the
protection order; or
(b)
rates, taxes or
similar payments owed to the Republic or a local
authority which have become due and payable within
the year preceding the making of the protection
order.
Class B
- A debt or
part of a debt which does not fall into any other
class.
Class
C - A debt or
part of a debt which does not fall within class D
and is, or was at any time within the year preceding
the making of the protection order, owed to a near
relative of the debtor.
Class D
- A debt or
part of a debt which answers either of the following
descriptions, namely,
(a)
excess benefit
restored to the Official Trustee under section 40,
or
(b)
excess interest,
that is, a portion of a debt which, whether it is
stated to do so or not, represents interest at a
yearly rate in excess of seven percent.
(2) For the
purposes of subsection (1), the following are near
relatives of the debtor, namely,
(a)
the spouse, parents
and issue of the debtor, and
(b)
brothers, sisters,
uncles, aunts, nephews and nieces of the debtor,
whether of the whole or the half-blood.
Duty to consult
creditors
48.
(I) Subject to this Act, the Official Trustee,
(a)
shall report to the
creditors, at intervals not greater than six months,
on the progress of the insolvency proceedings;
(b)
shall consult the
creditors on a matter arising in the proceedings
which substantially affects their interests; and
(c)
shall give effect,
so far as may be practicable, to the views expressed
by the .creditors in relation to the realisation and
distribution of assets.
(2) For the purpose
of complying with subsection (1), the Official
Trustee may call a meeting of creditors at any time,
and shall ca]l a meeting if required to do so by a
notice in writing signed by creditors whose votes
exceed one- fifth of the total number of votes which
could be cast at the meeting.
(3) The Schedule
shall apply in relation to a meeting of creditors
called under this section.
Enquiries by the
High Court
49.
(1) Where the Official Trustee is of the opinion
that it is necessary, in order to enable the
Official Trustee to carry out a function in relation
to a debtor, for the debtor, a creditor or any other
person to be brought before and examined by the High
Court, the Official Trustee may order the debtor,
that creditor or that other person to attend for
that purpose before the Court.
(2) In proceedings
under subsection (1), the Court
(a)
may examine on oath
or otherwise a person brought before it,
(b)
may order the
delivery up by that person of assets to which the
Official Trustee is entitled under this Act, and
(c)
may make any other
appropriate order.
Assets passing
from Official Trustee
Cases
where insolvency order not made
50.
(1) Within fourteen days after an arrangement with
creditors is confirmed under section 20, the
Official Trustee shall, unless the Official Trustee
is to act as trustee under the arrangement, transfer
the property which has become vested in the Official
Trustee under section 37 or 38 in respect of the
debtor to the person entitled to the property under
the arrangement.
(2) Within fourteen
days after a protection order is rescinded under
section 21, the Official Trustee shall transfer the
property which has become vested in the Official
Trustee under section 37 or 38 in respect of the
debtor back to the debtor.
(3) Despite
subsections (1) and (2), the Official Trustee is
entitled to retain assets sufficient to reimburse
the Official Trustee for fees and outgoings due to
the Official Trustee from the debtor in respect of
the insolvency proceedings.
(4) This section
does not apply to property which has already passed
from the Official Trustee, but applies to the
proceeds of property which has been realised as it
applies to property which has been retained in its
original form.
Disclaimer
51.
(1) Within one year after a property has become
vested in the Official Trustee under section 37, the
Official Trustee, if of the opinion that the
property will not be of benefit to the creditors,
may by notice published in the Gazette
disclaim the property.
(2) A person
interested in property vested in the Official
Trustee under section 37 may by application in
writing require the Official Trustee to elect
whether to disclaim the property or not to disclaim
the property.
(3) Subsection (2)
does not apply where the Official Trustee fails to
disclaim the property within one month after the
making of the application, or within a longer period
that the High Court may allow.
(4) The Court may,
on the application of a person interested, give a
relief and make any other appropriate provision in
consequence of a disclaimer under this section.
(5) Subject to an
order made by the Court, the effect of a disclaimer
is as follows:
(a)
where the property
consists of rights under a lease, share, contract or
any other interest, those rights or interests are
void to the extent that the property affects the
Official Trustee or the debtor;
(b)
where the property
consists of the absolute ownership of land or
chattels that ownership shall revert to the debtor.
Fees and
outgoings
52.
(I) The Official
Trustee is entitled to withdraw from the property of
the debtor which has become vested in the Official
Trustee sums of money sufficient to satisfy the fees
of the prescribed amount charged in respect of the
costs of the administration.
(2) When fees
become due to the Official Trustee in respect of a
debtor, the Official Trustee shall pay them by
transferring the necessary sum of money from the
debtor's official account to the fees account.
(3) When the rent,
rates, charges or any other outgoings fall to be met
by the Official Trustee in respect of the debtor,
the Official Trustee shall pay them out of the
debtor's official account.
Return of
personal effects to debtor
53.
Within fourteen
days after the debtor's property has vested in the
Official Trustee under section 37, the Official
Trustee shall restore to the debtor any of the
following that the debtor may select, which is not
of a total value exceeding five million cedis,
namely,
(a)
property used
personally by the debtor for the purposes of the
employment of the debtor, or
(b)
furniture, clothing
and any other household effects used by the debtor
or any of the dependents of the debtor.
Dividends to
creditors
54.
(1) Subject to
sections 52 and 53, the Official Trustee may as
early as is practicable, declare and distribute
dividends to creditors in accordance with the
following rules:
(a)
provision shall be
made for the payment in full of the class A debts
before a dividend is declared in respect of class B
debts, and so on throughout the classes;
(b)
the debts within
one class shall rank at the same rate;
(c)
payments shall be
made only in respect of debts which rank for
dividend and shall not exceed the values of the
debts;
(d)
where a security
held by a creditor has not yet been realised or
surrendered, the value of the debt against which the
security is held shall be treated as reduced by the
value of the security;
(e)
interest shall not
be allowed after the making of the protection order.
(2) Where a
dividend is paid under this section in respect of a
debt which is subsequently struck out or reduced in
value by an amendment of the admitted proof, the
creditor shall repay to the Official Trustee the
difference between the amount of the dividend and
the amount which, in the light of the amendment,
should have been paid.
(3) Where a
dividend is paid under this section in respect of a
debt which is subsequently increased in value by an
amendment of the admitted proof, the Official
Trustee shall, so far as may be practicable without
disturbing dividends already declared, pay to the
creditor the difference between the amount of the
dividend and the amount of money which, in the light
of the amendment, should have been paid.
(4) Where a
creditor has omitted to lodge a proof of debts
during the period allowed by this Act, or has
omitted a provable debt from that proof, the
creditor may at any time during the insolvency
proceedings apply to the High Court for relief, and
the Court, on the ground that the omission was
excusable, shall make an order requiring the
Official Trustee, so far as may be practicable
without disturbing dividends already declared, to
pay to the creditor the sums of money that would
have been payable to the creditor under this section
if the omission had not occurred.
(5) Where, at the
end of one year following the declaration of a
dividend stated by the Official Trustee to be the
final dividend, the payments under that or a
previous dividend remain outstanding because the
creditors in question cannot be found, the Official
Trustee shall cancel the payments and, unless
payment in full has been achieved, shall declare a
further dividend in favour of the remainder ofthe
creditors.
(6) In the case of
a final dividend, or a further dividend declared
under subsection (5), payment of less than ten
thousand cedis shall not be made.
(7) Payments under
this section shall be in money drawn from the
debtor's official account.
(8) For the
purposes of subsection (7), property which has not
been converted into money may be transferred to a
creditor in lieu of the equivalent amount of money
if the creditor consents.
Return of
surplus assets to debtor
55.
(I) Where, after
provision has been made for the payments and
transfers of property required to be made under
sections 52, 53, and 54, a balance remains in the
debtor's official account, the Official Trustee
shall pay that balance to the debtor.
(2) Where, after
the provision that is referred to in subsection (1)
has been made, the Official Trustee retains property
which has not been converted into money, the
Official Trustee shall transfer that property to the
debtor.
(3) Where the
debtor cannot be found, the High Court may direct
that balance to be transferred to the fees account,
and may give directions for the disposal of that
property.
Payments to be
made out of debtor's property
56.
(I) A person is not
entitled to a payment in respect of anything done by
the Official Trustee in relation to a debtor except
out of a balance in the debtor's official account or
out of assets otherwise vested in the Official
Trustee in respect of the debtor under this Patio
(2) For the
purposes of subsection (I), where in the proceedings
costs are given against the Official Trustee they
shall be met out of the fees account.
(3) During the
continuance of insolvency proceedings, a person
shall not be required, under a contract entered into
with the debtor before the protection order was
made, to supply goods, render services or otherwise
perform an obligation unless that person has
received an assurance in writing from the Official
Trustee that the debtor's estate is sufficient to
enable the goods or services to be paid for, or the
performance of the obligation otherwise recompensed,
in accordance with the terms of the contract.
(4) Despite
subsection (1), where an assurance given under
subsection (3) proves incorrect the person to whom
the assurance was given is entitled to be reimbursed
out of the fees account, or by the State.
Arrangements
with creditors apart from insolvency proceedings
Arrangements to
which sections 58 to 61 apply
57.
This section and sections 58 to 61 apply to an
arrangement with creditors made by an insolvent
debtor, whether in writing or orally,
(a)
if the arrangement
is made at a time when insolvency proceedings are
not in progress against the debtor, and
(b)
if the debts
subject to the arrangement amount to at least one
hundred million cedis and constitute the whole, or
substantially the whole of the debtor's indebtedness
at the time when the arrangement is made.
Arrangements
register
58.
(1) The Official Trustee shall make and keep an
arrangements register in which shall be recorded the
prescribed particulars of instruments lodged with
the Official Trustee under section 59.
(2) Where the
Official Trustee is satisfied that an arrangement
recorded in the arrangements register has been fully
carried out, or has otherwise ceased to have effect,
the Official Trustee shall record the fact in the
register.
(3) The
arrangements register and copies of instruments
recorded in that register shall be open during
working hours for public inspection on payment of
the prescribed fee.
(4) On an
application made by a person in the prescribed form,
and on payment of the prescribed fee, the Official
Trustee shall provide copies of an entry in the
arrangements register or an instrument recorded in
that register.
Arrangements
voidable unless registered
59.
(1) An arrangement to which a provision of sections
57 to 61 applies is voidable unless, within fourteen
days after the arrangement has become binding on the
debtor, two copies of the instrument embodying the
arrangement, or, where the arrangement was oral, of
an instrument recording the details of the
arrangement, have been lodged with the Official
Trustee for entry in the arrangements register.
(2) Where, on an
application by the Official Trustee or a person
interested, it appears to the High Court that an
arrangement is voidable by virtue of subsection (l),
the Court shall declare the arrangement to have been
void from the beginning, or from a later date that
may appear just, unless it considers that the
failure to register was neither willful nor
negligent.
(3) An arrangement
which is voidable by virtue of subsection (l) shall
not on that ground be avoided otherwise than by the
Court under subsection (2).
(4) Where an
arrangement is declared void under this section the
Court may make a protection order against the debtor
and this Act shall apply as if the protection order
had been then made on a creditor's petition by the
Official Trustee.
Setting aside of
arrangement
60.
(1) Where, on the application of a person
interested, it appears to the High Court, as
respects an arrangement to which a provision of
sections 57 to 61 applies, and which is not an
arrangement subject to avoidance under section 59,
(a)
that default has
been made in carrying the arrangement into effect,
or (b) that for a reason it is impracticable
or would be unjust to proceed with the arrangement,
the Court may set
aside the arrangement but without prejudice to
anything previously done under the arrangement.
(2) Where an
arrangement is set aside under subsection (1), the
Court may make a protection order against the
debtor, and this Act shall apply as if the
protection order had been then made on a creditor's
petition by the Official Trustee.
Arrangement not
to count as suspension of payments
61.
Where an arrangement is duly registered under a
provision of sections 57 to 61, neither the
arrangement itself nor an act done for the purpose
of entering into the arrangement shall be treated as
falling within paragraph (a) of subsection
(I) of section 9 for the purpose of founding a
petition for a protection order against the debtor.
Modification in
special cases
Debtors
not of full age and capacity
62.
(1) Subject to this section, this Act applies in
relation to debtors who have not attained the age of
twenty-one years as it applies in relation to
debtors who have attained the age of twenty-one
years.
(2) Where a debtor
has not attained the age of twenty-one years or is
of unsound mind the High Court may on the
application of the Official Trustee or a person
interested, appoint a person to act as the debtor's
guardian in the insolvency proceedings.
(3) In the case 0 f
a debtor who is of unsound mind this Act applies in
relation to property vested in a person as
committee of the debtor or otherwise on the debtor's
behalf as it applies in relation to property vested
in the debtor.
Joint debtors
63.
(1) Where insolvency proceedings are instituted in
respect of two or more debtors jointly, debts not
owed jointly by those debtors shall be disregarded
for the purposes of section 9 or 10.
Where a protection
order is made in respect of two or more debtors
jointly,
(a)
a petition pending
against any of the debtors individually shall lapse;
(b)
subject to this
section, the insolvency proceedings shall extend to
debts owed by the debtors separately as well as to
their joint debts, and assets of the debtors shall
vest in the Official Trustee whether or not they are
referable to the joint debts;
(c) in addition to
the joint official account opened under section 42,
a separate official account shall be opened in
respect of each debtor, in which shall be entered
items referable to that debtor's separate estate and
separate debts.
(3) Where an
insolvency order is made in respect of two or more
debtors jointly,
(a)
the joint estate
shall be applicable in the first instance in payment
of the joint debts, and if there is a surplus of the
joint estate it shall be dealt with as part of the
respective separate estates in proportion to the
interest of each debtor in the joint estate;
(b)
the separate estate
of each debtor is applicable in the first instance
in payment of that debtor's separate debts and if
there is a surplus of a separate estate it shall be
dealt with, so far as may be necessary for
satisfying the joint debts, as part of the joint
estate.
Debtors who are
trustees
64.
(I) Where a debtor
in respect of whom an insolvency order is made,
whether personally or jointly with any other person
or persons, is a trustee of a property, and the
debtor's interest in the property as trustee has
become vested in the Official Trustee under this
Act, then,
(a)
where the debtor
had a beneficial interest in the property, the
Official Trustee shall continue to act as trustee in
place of the debtor until the beneficial interest
has been realised;
(b)
subject to
paragraph (a), the Official Trustee shall
within twenty-one days take steps to secure the
appointment of another trustee in place of the
Official Trustee or, where there are two or more
remaining trustees, to retire from the trust.
(2) This Act does
not affect the beneficial interest of a person other
than the debtor in trust property.
(3) For the
purposes of this section "trustee" includes a
personal representative or any other person holding
property on a fiduciary basis, and "trust property"
shall be construed accordingly.
Participation in
insolvency proceedings by subsequent creditors
65.
(1) Where an
insolvency order is made but the insolvency
proceedings have not yet come to an end, anyone or
more creditors of the debtor may, on payment of the
prescribed fee, apply to the Official Trustee for
the making of a participation order, enabling that
creditor or those creditors to participate in the
insolvency proceedings in respect of new debts.
(2) An application
under subsection (1) shall not be made,
(a)
unless the debtor's
indebtedness to the applicant, or to the applicants
collectively, comprises new debts in liquidated sums
of money payable immediately and amounting to at
least two hundred and fifty thousand cedis; and
(b)
unless debts
amounting to at least two hundred and fifty thousand
cedis remain unpaid fourteen days after the service
on the debtor of a written demand for payment.
(3) Sections 11,
13, 15, and 16 shall apply as nearly as may be
in relation to an application under subsection (1)
of this section subject to the following
modifications, namely,
(a)
references to a
petition shall be read as references to the
application; (b) references to a protection
order shall be read as references to a participation
order.
(c)
sections 13 and 15
shall not apply to debts which are new debts, and
the period within which a proof of debts may be
lodged shall be limited to three months from the
making of the participation order; (d) in
section 16, the reference to an arrangement with
creditors in subsection (2), subsection (3), and
subsection (5) shall be omitted. (4) Sections 37 to
56 shall apply as nearly as may be in relation to a
participation order, subject to the following
modifications, namely,
(a)
references to a
protection order or an insolvency order shall be
read as references to the participation order;
(b)
the Official
Trustee shall open a participation account within
the debtor's official account, to which shall be
credited the proceeds of the after-acquired property
which becomes vested in the Official Trustee after
the making of the participation order and before any
other subsequent order is made, together with any
other moneys which become vested in the Official
Trustee by virtue of the participation order;
(c)
subject to section
52, the participation account shall be used only for
the payment of dividends in respect of debts ranking
for dividend by virtue of the participation order,
and dividends in respect of those debts shall be
paid out of the participation account;
(d)
where there is a
surplus on the participation account and a
deficiency on the debtor's main account, or a
surplus on the main account and a deficiency on the
participation account, the surplus shall be
transferred to the credit of the main account or the
participation account;
(e)
where more than one
participation order has been made, a surplus shall
be dealt with on the principle that the main account
is to be credited in preference to a participation
account and an earlier participation account is to
be credited in preference to a later participation
account.
(5) Where a
participation order is made,
(a)
if the debtor is a
bankrupt and the appointed discharge date is less
than two years ahead, then, subject to sections 31
and 32, it shall be postponed to the date two years
after the participation order is made;
(b)
if the debtor is
not a bankrupt and has not been discharged from the
insolvency order, then, subject to sections 23 and
31, the appointed discharge date shall be postponed
to the date two years after the participation order
is made;
(c)
if the debtor has
been discharged from the insolvency order and, where
applicable, from bankruptcy, the discharge shall be
treated as revoked, and,
(i) subject to
sections 23,31 and 32, the appointed discharge date
shall be the date two years after the participation
order is made;
(ii) the debtor
shall surrender the certificate of discharge to the
Official Trustee;
(iii) the debtor
shall not be treated as having contravened section
24,26, or 27 because of an act done by the debtor
between discharge and the revocation of the order.
(6) For the
purposes of this section "new debt" means a debt
incurred by the debtor after the making of the
protection order or, if the participation order is a
second or subsequent participation order, means a
debt incurred by the debtor after the making of the
last participation order.
Administration
of estates of deceased insolvents
Administration
orders
66.
(1) Where the estate of a deceased debtor is
insufficient to pay the debts of the deceased
debtor, the representative or a creditor of the
deceased may, on payment of the prescribed fee,
apply to the Official Trustee for the making of an
administration order, for the administration of the
estate under this section and sections 67 to 73.
(2) Where an
application under subsection (I) is made by a
creditor, the applicant shall at the same time serve
a copy of the application on the representative of
the deceased.
(3) After seven
days have elapsed following the making of the
application, the Official Trustee shall consider the
application and evidence in support of the
application, together, in the case of a creditor's
application, with the representations made by the
representative of the deceased, and if the Official
Trustee considers
(a)
that the
application was duly made, the Official Trustee
shall make an administration order on the
application; or
(b)
that the
application was not duly made, the Official Trustee
shall give notice to the applicant and, in the case
of a creditor's application, to the representative
of the deceased that the application is dismissed.
(4) References in
this section and sections 67 to 73 to the
representative of a deceased debtor shall be
construed as references to the personal
representative of the deceased debtor or, if the
deceased debtor does not have a personal
representative and was subject to customary Jaw, as
references to the successor under customary law.
(5) Where there is
no representative of the deceased, the provisions
requiring anything to be done by or in relation to
the representative shall not apply.
Effect of
administration order
67.
(1) On and by virtue of the making of an
administration order there shall vest in the
Official Trustee to the same extent and, subject to
subsections (2), (3), (4) and (5), with the same
incidents, the movable and immovable property which,
immediately before the order was made, was vested
for the purposes of the administration of the
deceased's estate in the personal representative,
or, by virtue of sect ion 1 of the Administration of
Estates Act, 1961 (Act 63), in the Chief Justice;
and the representative shall not have a right of
retainer in respect of debts owed to that
representative.
Administration
orders
66.
(1) Where the
estate of a deceased debtor is insufficient to pay
the debts of the deceased debtor, the representative
or a creditor of the deceased may, on payment of the
prescribed fee, apply to the Official Trustee for
the making of an administration order, for the
administration of the estate under this section and
sections 67 to 73.
(2) Where an
application under subsection (1) is made by a
creditor, the applicant shall at the same time serve
a copy of the application on the representative of
the deceased.
(3) After seven
days have elapsed following the making of the
application, the Official Trustee shall consider the
application and evidence in support of the
application, together, in the case of a creditor's
application, with the representations made by the
representative of the deceased, and if the Official
Trustee considers
(a)
that the
application was duly made, the Official Trustee
shall make an administration order on the
application; or
(b)
that the
application was not duly made, the Official Trustee
shall give notice to the applicant and, in the case
of a creditor's application, to the representative
of the deceased that the application is dismissed.
(4) References in
this section and sections 67 to 73 to the
representative of a deceased debtor shall be
construed as references to the personal
representative of the deceased debtor or, if the
deceased debtor does not have a personal
representative and was subject to customary 1 aw,
as references to the successor under customary law.
(5) Where there is
no representative of the deceased, the provisions
requiring anything to be done by or in relation to
the representative shall not apply.
Effect of
administration order
67.
(1) On and by
virtue of the making of an administration order
there shall vest in the Official Trustee to the same
extent and, subject to subsections (2), (3), (4) and
(5), with the same incidents, the movable and
immovable property which, immediately before the
order was made, was vested for the purposes of the
administration of the deceased's estate in the
personal representative, or, by virtue of section 1
of the Administration of Estates Act, 1961 (Act 63),
in the Chief Justice; and the representative shall
not have a right of retainer in respect of debts
owed to that representative.
(2) Property which
has become vested in the Official Trustee under
subsection (I) is not subject to attachment,
distress or any other proceedings for the
enforcement of an obligation against the debtor's
estate, whether founded on a judgment or not.
(3) Subsection (2)
does not apply to proceedings for the enforcement of
a security.
(4) The
administration order shall not affect the validity
of a realisation or distribution of assets made by
the representative or any other act of
administration done by the representative before the
rece1:Jt of notice of the making of the
administration order.
(5) Within seven
days after the making of an administration order, or
a longer period allowed by the Official Trustee, the
representative of the deceased shall lodge with the
Official Trustee a copy of the will left by the
deceased, whether or not it has been admitted to
probate, and a statement containing,
(a)
particulars of the
assets of the deceased,
(b)
a list of
creditors, showing the amounts and due dates of
debts and particulars of securities held,
(c)
a description of
the steps already taken by the representative by way
of realising and distributing the assets, and
(d)
a description of
the funeral, testamentary or administration expenses
incurred.
Creditor's proof
of debts
68.
(I) During the
period of three months following the making of an
administration order, a creditor of the deceased may
lodge with the Official Trustee a proof of debts, in
accordance with subsection (2).
(2) A proof of
debts shall be in two parts, the first part
containing brief particulars of
(a)
the amount
outstanding of a debt owed to the creditor by the
deceased's estate,
(b)
the amount
outstanding of a debt owed by the creditor to the
deceased's estate, and
(c)
the nature and
value of the securities held by the creditor, or
held on behalf of the deceased's estate, in respect
of those debts;
and the second part
containing details of the transactions from which
the debts arose.
(3) The Official
Trustee shall give a copy of the first part of a
proof lodged under subsection (1) to the
representative of the deceased and to each creditor
who is mentioned in the statement lodged by the
representative or who, not being
so mentioned,
lodges a proof; and if the representative knows or
believes that the proof is false in a material
particular the representative shall inform the
Official Trustee of that particular within fourteen
days.
(4) The Official
Trustee shall examine the proof of debts lodged by a
creditor and if, after considering the
representations made by the representative or a
creditor, it appears to the Official Trustee that an
item is improperly included or a value incorrectly
stated or that the proof is otherwise incorrect, the
Official Trustee shall give notice of the objection
to the creditor, who may lodge an amended proof
within the period specified in the notice or an
extended period allowed by the Official Trustee.
(5) Where it
appears that a proof is correct the Official Trustee
shall give notice to the creditor regarding the
admission of the proof subject to verification under
section 45.
(6) Where the
creditor fails to lodge an amended proof or a
further amended proof, within the period allowed
under subsection (4) and the Official Trustee is
still of the opinion that the previous proof is
incorrect, the Official Trustee shall give notice to
the creditor of the rejection of the proof.
First meeting of
creditors
69.
(1) The Official
Trustee shall call a first meeting of creditors for
a date not less than six and not more than eight
weeks after the publication of an administration
order, and shall give notice of the meeting as may
be practicable to each creditor who is mentioned in
the representative's statement or who, not being so
mentioned, had lodged a proof of debts.
(2) So far in
advance as may be practicable, the Official Trustee
shall give to a creditor a copy of the
representative's statement, together with the
observations on the statement that the Official
Trustee may wish to make.
(3) The Schedule
applies in relation to the meeting.
Duties of
deceased's representative
70.
(1) In addition to
the specific duties imposed on the representative of
the deceased by or under this Act, the
representative shall, as a general duty, during the
period between the making of an administration order
and the termination of the administration, comply as
promptly and fully as is practicable with a
direction given by the Official Trustee in
connection with the performance of the functions of
office as to the deceased's estate.
(2) During the
period specified in subsection (1), the
representative
(a)
shall attend every
meeting of creditors called by the Official Trustee
and give the information to the meeting that may be
required by the Official Trustee;
(b)
shall as soon as is
practicable, give notice to the Official Trustee of
a change in the name or address of the
representative;
(c)
shall not destroy,
alter, conceal or dispose of an account-book or any
other record of the deceased's financial affairs.
Application of
sections
37 to 56
71.
(1) Where an
administration order has effect, sections 37 to 56
shall apply as nearly as may be for the purposes of
the administration, subject to the modifications
set out in this section.
(2) The following
provisions shall be omitted, namely,
(a)
sections 37 and 38
(which deal with vesting of property);
(b)
subsection (2) of
section 43 (which restricts the disposition of
property by the Official Trustee);
(c)
section 50 (which
relates to divesting of assets where an insolvency
order is not made);
(d)
section 53 (which
provides for the return of personal effects to a
debtor); and
(e)
section 55 (which
requires surplus assets to be returned to the
debtor).
(3) Except where
the context otherwise requires, the following
adaptations shall be made, namely,
(a)
references to the
debtor shall be read as references to the
representative of the deceased;
(b)
references to
section 37 shall be read as references to section
67;
(c)
references to a
protection order or an insolvency order shall be
read as references to an administration order;
(d)
references to the
debtor's discharge shall be read as references to
the termination of the administration.
(4) The Official
Trustee shall cause the funeral, testamentary and
administration expenses incurred by the
representative to be met out of the deceased's
official account in priority to any other payments.
(5) Funeral
expenses in excess of one million cedis shall rank
as a Class D debt.
(6) Where, after
provision has been made for payments and transfers
of property required to be made by virtue of
subsections (1), (2), (3), (4) and (5), a balance
remains in the deceased's official account, the
Official Trustee shall within fourteen days pay that
balance,
(a)
to the
representative of the deceased, who shall deal with
it as property of the deceased's estate, or
(b)
to the
Administrator-General, who shall deal with it as
unrepresented estate if there is no representative
of the deceased.
Order
terminating administration
72.
(1) Where an estate is administered under sections
66 to 73 and,
(a)
the Official
Trustee has duly completed the distribution of the
assets of the deceased, and
(b)
the Official
Trustee's accounts in the administration have been
drawn up, and have been passed by the
Auditor-General,
the Official
Trustee shall apply to the High Court for an order
terminating the administration.
(2) The Official
Trustee shall give notice of the application,
together with a summary of the accounts in the
prescribed form, to the representative and to every
creditor with an admitted proof
(3) The Court shall
grant the application if satisfied that it is duly
made.
Death of debtor
during insolvency proceedings
73.
(1) This section applies where a debtor in respect
of whom insolvency proceedings have been instituted
dies before the proceedings have come to an end.
(2) The proceedings
shall lapse where the death occurs before a
protection order is made or while a protection order
has effect, and in the latter case property vested
in the Official Trustee by virtue of the protection
order shall devolve in accordance with section 1 of
the Administration of Estates Act, 1961 (Act 63).
(3) Where the death
occurs after an insolvency order is made, the
proceedings shall continue except so far as they
concern the debtor personally, as if a participation
order is made immediately before the death, and,
(a)
an administration
order shall not be made in respect of the
deceased;
(b)
the deceased's
representative shall be subject to subsection (5) of
section 67 and to section 70, as if references in
those provisions to the making of an administration
order were references to the death;
(c)
in relation to the
disposal of surplus assets, subsection (6) of
section 71 shall apply in place of section 55;
(d)
in relation to the
termination of the proceedings, section 72 shall
apply in place of section 36;
(e)
in relation to
funeral, testamentary and administration expenses
incurred by the deceased's representative,
subsection (4) and (5) of section 71 shall apply.
Supplementary
provisions
Offences
74.
(1) A person who
does an act in contravention of a duty imposed on
that person as a debtor or as the representative of
a deceased debtor by or under this Act commits an
offence and is liable on summary conviction to a
fine of not less than two hundred penalty units or
to a term of imprisonment of not less than three
years or to community service.
(2) Subsection (1)
is without prejudice to the power of the High Court
to issue a warrant in relation to a debtor under
section 28 of this Act, or to punish a person for
contempt of court or for an offence under the
Criminal Code, 1960 (Act 29.)
Evidence
75.
A register kept, a
notice published or a certificate given under this
Act is prima facie evidence of the matters stated in
that document.
Rules
76.
(1) The Minister
responsible for Justice may, by legislative
instrument, make Rules, other than Rules of Court,
providing for a matter which under this Act is to be
prescribed or provided for by rules or which
otherwise relates to procedure under this Act.
(2) Where it
appears to the Minister that a monetary limit
specified in sections 9, 10, 57 and 65 should be
altered the Minister may, by legislative instrument,
make the rules that are necessary for effecting the
alteration.
Interpretation
77.
In this Act, unless
the context otherwise requires,
"address" includes
place of residence, place of business, an electronic
address and a post office box number habitually
used;
"admitted proof'
means a proof admitted under subsection (7) of
section 15 or subsection (5) of section 68;
"after-acquired
property" has the meaning assigned to it by
subsection (2) of section 26;
"application for
judicial consideration" means an application made by
the Official Trustee under subsection (1) of section
17;
"appointed
discharge date" has the meaning assigned to it by
subsection (3) of section 30;
"arrangement with
creditors" means a contract between a debtor and the
creditors of the debtor under which, with a view to
the payment
of debts in whole
or in part, the creditors agree not to exercise, or
agree to defer or modify the exercise of, any of
their rights in respect of the debtor;
"bankrupt" means a
person who has been adjudged a bankrupt under
section 23 and has not been discharged;
"civil proceedings"
includes proceedings, other than criminal
proceedings or proceedings under this Act, in or on
the order of a Court, and the levying of distress,
or the attachment of a debt, without a court order;
"community service"
means community service as determined by the Court
in consultation with the Minister responsible for
Social Welfare;
"fees account"
means the account established by subsection (2) of
section 3; "Fund" means the insolvent estates fund
established by section 3; "ground for bankruptcy"
means anyone or more of the grounds specified in
subsection (1) of section 23;
"insolvency order"
means an order made under section 19; "insolvency
proceedings" means the procedural steps taken in
respect of a petition to the Official Trustee for
the making of a protection or any other order under
this Act;
"insolvency
register" means the register made and kept by virtue
of subsection (1) of section 4;
"insolvent" means
unable to pay debts as they fall due;
"name" in relation
to a debtor includes a name under which the debtor
carries on a business, whether personally or with
other persons;
"official account"
in relation to a debtor means the account opened in
respect of the debtor under section 42;
"Official Trustee"
includes the person appointed as the Official
Trustee under the Public Trustee Ordinance 1952 (No.
24) and a public officer authorized in terms of
subsection (2) of section 1;
"payment in full"
means the making of provision for the payments and
transfers of property which in the circumstances are
required to be made under sections 52 to 54;
"prescribed" means
prescribed or required to be provided for under this
Act, or prescribed by Rules made under subsection
(1) of section 76;
"proof of debts"
means a statement lodged with the Official Trustee
in accordance with subsections (3) and (4) of
section 15;
"protection order"
means an interim order made pursuant to subsection
(1) of section 8;
"provable debt" has
the meaning assigned to it by subsection (1) of
section 15;
"Rules" means the
Rules made under section 76;
"security" means a
mortgage, charge or lien on the property of the
debtor for securing payment of a debt, and "secured
creditor" and "secured debt" shall be construed
accordingly;
Repeal
78.
The Insolvency Act,
1962 (Act 153) is hereby repealed.
SCHEDULE
(Section
16 (6))
MEETINGS OF
CREDITORS
1. A meeting of
creditors is not competent to act for a purpose
unless at least three creditors with admitted
proofs, or those creditors if there are less than
three, are present either in person or by
representatives holding proxies.
2. Where a quorum
is not present within half an hour after the time
appointed for a meeting of creditors, the Official
Trustee shall adjourn the meeting to a date that the
Official Trustee may determine, which is not less
than seven and not more than fourteen days after
that meeting; and if a quorum is still not present
within half an hour after the time appointed for the
adjourned meeting, the meeting is cancelled
3. The cancellation
of a meeting under paragraph (2) shall not prevent
the High Court from considering and determining a
matter as if the meeting had been held and closed on
the day on which it was cancelled, but this
paragraph does not authorise the Court to confirm an
arrangement with creditors which has not been
approved by the first meeting of creditors.
4)
The Official
Trustee shall preside at a meeting of creditors
5. At a meeting of
creditors each creditor with an admitted proof is
entitled to be heard in person or by a
representative holding a proxy.
6. (1) Except where
this Act otherwise provides, questions at a meeting
of creditors shall be decided by a simple majority
of the votes cast.
(2) Each creditor
with an admitted proof is entitled to one vote for
each complete ten thousand cedis of the net amount
of the debt owed to that creditor as shown in the
proof at the time when the meeting opens.
(3) For voting
purposes the net amount of a debt shall be
calculated by deducting the following amounts, from
the total value of the debts owed to the creditor,
namely,
(a) the total value of securities held by the
creditor;
(b)
the total value
of obligations outstanding in the debtor's favour
against the creditor;
(c)
the amount of every
dividend to which the creditor has become entitled
Date of Gazette
notification:
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