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AMPIAH J.S.C.:
In this application, the
Applicants seek an Order of
Certiorari to have brought to
this Court for the purpose of
having it quashed a Ruling of
the High Court, Accra wherein
the Court had made the following
Orders:—
“(a) An order appointing the
Chief Registrar of this Court
Manager and Receiver in respect
of House No. D.767/4 Beach
Avenue, Okaishie who shall among
others investigate and submit a
provisional report on all
physical assets in the said
property and term of all
tenancies/leases or occupancy of
shop-rooms in the property.
(b) An order that the 2nd
Defendant cease commercial
activity forthwith and that the
Director thereof invite the
Auditors to take stock of the
Company’s assets and liability
and that the resultant report be
presented to the Court, through
the Registrar of the Court.
(c) an order restoring the
maintenance of the Plaintiffs as
specified in paragraph 9 of the
Plaintiff’s Statement of Claim.
(d) An order restraining the
Defendants whether acting by
themselves or by their agents,
associates and servants from
appropriating or disposing of
any property or assets of the
said estate save by prior leave
of the court”.
These orders had been made on an
application for interim
injunction brought by the
Plaintiffs, Respondents in this
application in a Civil Suit No.
2088/98 entitled—
“Mrs. Grace Safo and
Others…Plaintiff
vrs.
1. Elvis Appiah
... Defendants
2. Lims Company Limited
And
Mavis Safo and Four (4) Others
… Co-Defendants.”
The facts briefly of this case
are that one Kofi Safo whose
estate is the subject-matter of
the action, had died on 22nd
April, 1998 and his wife Mrs.
Grace Safo, the 1st Plaintiff in
the action and the 1st
Defendant, Elvis Appiah a
brother of the deceased had been
granted Letters of
Administration on 12th August,
1998 to administer the estate of
the deceased.
The Inventory filed of the
estate had included House No.
D.767/4 Beach Avenue which the
Defendants claimed belonged to
the 2nd Defendant-Company.
Though no papers or documents
have been exhibited in this
application showing material
particulars such as the share
capital or the shareholding, the
directors (including the
Managing Director), the
Secretary, Auditor/Accountants,
the balance sheet showing the
assets and liabilities etc. etc.
of the 2nd Defendant Company, it
appears that the Company
undisputably had been
incorporated solely by the
deceased as a limited liability
company with a share Capital.
The Plaintiffs claim that the
late Kofi Boye Safo owned 100%
of the shares. This is however
disputed by the Defendants who
claim that they have interest in
the shares and that the deceased
held the shares in trust for
them. These are issues to be
resolved by evidence, but it is
not disputed by the parties that
the Company is a limited
liability company.
With this disagreement between
the parties, concerning the
contents of the estate there was
bound to be problems and an
impasse in the administration of
the estate. It was therefore not
surprising that on 10th
December, 1998, the Plaintiffs
issued out a Writ of Summons
claiming—
“(a) An order requiring the 1st
Defendant to account for all
monies received in respect of
the estate of the deceased since
April 1998.
(b) An order requiring the 2nd
Defendant Company to file a
Statement of Account
representing the current
financial position of the
company.
(c) An order requiring the 1st
Defendant to join the 1st
Plaintiff in distributing the
said estate to the beneficiaries
thereof in accordance with the
law.
(d) Further order or orders”.
Pleadings were filed and Summons
for Directions taken, but before
a date could be fixed for
hearing of the substantive
action, the Plaintiffs applied
for an order of interim
injunction. What they sought was
what was included in the order
of the Court referred to earlier
and which the applicants herein
seek to have set aside.
An order of certiorari would be
made where the order sought to
be quashed has been made inter
alia, without jurisdiction
either because the Court has
exceeded its jurisdiction or
lacks jurisdiction. It is also
said that a Court having
jurisdiction may lose that
jurisdiction if its decision is
made in bad faith, if it has
failed in the course of the
inquiry to comply with the
requirements of natural justice;
it has refused to take into
account something which it was
required to take into account or
it might have based its decision
on a matter it has no right to
take into account—See Anisminic
Limited vs. Foreign Compensation
etc. [1969] 2 AG 147 at 171. The
list cannot be said to be
exhaustive. However where the
Court has jurisdiction to
entertain the action its
judgment or ruling cannot be
impeached on the mere ground
that its decision is wrong.
Under those circumstances the
proper thing to do is to appeal
against that decision. Where
however upon the face of the
proceedings themselves it
appears that the decision of the
Court is wrong in law,
certiorari to quash will be
granted—See R v. Northumberland
Compensation appeal Tribunal,
Ex-parte Shew (1952) 1 K.B. 338.
In the instant case, the orders
made seem to involve an
incorporated body. By the
deceased’s presumed 100%
shareholding, the Lims company
(2nd Defendant) seems to have
been included in the estate of
the deceased. The presumption
being that since he owned 100%
of the shares, he and the
Company are one and that the
Company is owned by the deceased
as his personal property. That
may factually be so, but the
legal position is that an
incorporated company has a legal
personality of its own different
from those who form it. It could
sue and be sued as a legal
entity. There is no dearth of
authority on this issue. See
Salomon v. Salomon and Company
[1897] AC 22.
Consequently, though the late
Kofi Boye Safo could be the
owner of the 100% shares in the
Company he is not the company so
as to make the Company his
personal property. As a legal
entity the Company is governed
by Rules and Regulations of the
Company. Its management is
vested in the Board of Directors
whose Managing director is
directly involved in the day to
day activities of the Company
and who is responsible to the
Board and the shareholders. Upon
the death of a shareholder his
shares, unless otherwise
directed by the deceased
himself, are vested in his legal
representatives [Executors or
administrators] who would later
distribute them to the
beneficiaries who then would
have their name entered in the
Register of the company as
members.
Consequently, the 1st Plaintiff
and the 1st Defendant having
been appointed the
administrators of the estate
hold whatever interest the
deceased had in the Company in
trust for the beneficiaries. The
ownership of the 100% shares is
however an issue for trial, but
the administration of the
company itself as a legal entity
remains with the Directors of
the Company. It would appear
therefore that the direction of
the Court that the Company’s
affairs be conducted by persons
other than the Directors, as if
the Company belongs to the
deceased and has become part of
his estate was given without
recourse to the law.
Perhaps it is no longer
necessary to go into details of
this issue for, the Applicants,
subsequent to this application,
applied and had it varied the
order sought to be quashed. The
Variation Order was attached to
the Plaintiffs/Respondents’
affidavit in opposition to this
application. There has been no
appeal against the Variation
Order. It would seem therefore
that the parties are now
satisfied. The issues posed in
my opinion seem to have been
disposed of. The Directors have
been vested with authority to
manage the Company with the
Registrar as the Supervisor to
protect the interest of the
estate. What is left is for the
action to be disposed of
expeditiously to enable
administration of the estate to
proceed.
The Order of 20th July, 1999 no
longer being in existence, I do
not think the applicants should
have pursued this application. I
would accordingly dismiss the
application.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
ACQUAH, J.S.C.:
I agree.
ATUGUBA, J.S.C.:
I agree
AKUFFO, J.S.C.:
I also agree.
COUNSEL |
