HIGH COURT, ACCRA
Date: 23 NOVEMBER 1973
HAYFRON-BENJAMIN J
CASES REFERRED TO
(1) Re Antigen Laboratories, Ltd. [1950] W.N. 587; (1951) 211 L.T.J. 12; 66 (Pt. 2) T.L.R. 1107; 94 S.J. 855; [1951] 1 All E.R. 110n.
(2) Panin v. Amoako (1951) D.C. (Land) ‘48-’51, 363.
[p.390] of [1974] 1 GLR 389
NATURE OF PROCEEDINGS
APPLICATION by summons for the review of a ruling by Hayfron-Benjamin J. (reported at p. 374 supra). The facts are sufficiently stated in the ruling.
COUNSEL
U. V. Campbell for the applicants.
J. Reindorf for the respondents.
JUDGMENT OF HAYFRON-BENJAMIN J.
This is an application by summons for the review of my ruling in this matter on 30 March 1973. When the application for leave came up for hearing the respondents raised a number of legal objections to its grant. I however granted the necessary leave without prejudice to their right to argue the same grounds on the hearing of the substantive motion. When the substantive motion for review came up for hearing the respondents argued the same points, not as preliminary objections, but as part of their answer to the applicants’ arguments. It is therefore necessary first to consider the arguments raised by the applicants in support of their motion. Before doing so, however, I must mention certain steps which were taken in this matter during the legal vacation, and which have been brought to my notice by the registrar.
An application was brought before another judge by the applicants herein for an order extending the time within which to appeal from my ruling on 30 March 1973, the time within which to appeal having lapsed. This application was granted subject to certain conditions. The applicants have since filed a notice of withdrawal and abandonment of the motion. I should say straightaway that no motion is pending before this court; what is pending is a summons for review. In any event, whether it is a motion or a summons the intention is that the applicants are giving up the idea of a review. The court, even if the summons had not been argued, would have had to make an order dismissing it. In this case the summons had been heard, and ruling reserved. I do not think that an abandonment can operate as an arrest of judgment. A court cannot by its orders arrest the judgment of another court of co-ordinate jurisdiction, and any orders having such effect are not binding on the court which is to deliver the ruling. In any event, as I have said, an order for dismissal ought to be made even where notice of withdrawal and abandonment has been filed. It is only where specific statutory provisions have been made, e.g. in the rules of the erstwhile Supreme Court, that a notice of abandonment operates automatically as a dismissal of the proceedings. In the circumstances I proceed to read my ruling on the application for review.
The argument put forward by the applicants that an order for the purchase of an applicant’s shares by a respondent is made in favour of the successful applicant as a consequential relief to him is not in my opinion tenable. Section 218 of the Companies Code, 1963 (Act 179), empowers the registrar to bring applications before the court. If the applicants’ argument is well-founded then the power of the court to order the purchase of shares of some members by others or by the company
[p.391] of [1974] 1 GLR 3
cannot be exercised where the registrar is successful because the court cannot order the registrar to purchase the shares of the defaulting directors or members. Moreover, section 218 (2) (c) does not say that the court can only order the purchase by the applicants of other member’s shares. There is no limitation on the powers of the court. The courts can order the purchase of any member’s shares or debentures including those of an applicant, whether successful or not by any other members or by the company. The further argument that the order for purchase of shares can be made only where an applicant’s grounds are found established overlooks the fact that the grounds of oppression and discrimination can be established by any party before the court. They need not be established by the applicants. Where some members bring an application under the section complaining of acts of oppression or discrimination, the respondents in their answer can also complain of acts of oppression or discrimination by the applicants, and the court’s duty is to find and impose a solution “with a view to bringing to an end or remedying the matters complained of.” There is nothing in the Act stating that the court is restricted to considering and remedying only the complaints of the applicants and ignoring the complaints, of the respondents. In this matter I found that the complaints by the respondents had been established by the admission of the applicants themselves, and the order made had already been considered and suggested by the applicants themselves as a way out of the difficulties faced by the parties in the management of the company. I do not see how they can be heard to complain unless of course they intended when they previously suggested a purchase of their shares, that the sum payable for them should not take into account the sums they admit they were withholding from the company, or the sums they may be found to have clandestinely salted away as a result of over-invoicing of machinery, etc. to the company.
The applicants further argued that since the respondents did not themselves file an application under section 218 of the Code, no order could be made in their favour by way of relief. They relied strongly on the English case of Re Antigen Laboratories, Ltd. [1951] 1 All E.R. 110n. which decided that an applicant must indicate what order he wants. Even in England the courts have held that even though an applicant should indicate the relief he wants, it does not follow that the relief actually given will be that asked for. In any event in the Final Report of the Commission of Enquiry into the Working and Administration of the Present Company Law of Ghana, 1961, Commissioner L. C. B. Gower at p. 162 agreed “with the N. Irish Committee in thinking that the decision in Re Antigen is unfortunate and should not be followed.” He expressed the hope “that the Ghanaian Courts will not adopt the rigid attitude taken by the English Courts in Re Antigen.”
I am of the opinion that in view of the wording of section 218 (2) it is for the court to find a solution and impose it on the parties with the view of bringing the oppressive or discriminatory practices to an end. The court is empowered to make any order it thinks fit, and the orders specified
[p.392] of [1974] 1 GLR 3
in the section are only examples of the sort of orders that the court may make. I do not see anything in the section that says that a specific or any order must be asked for.
In the result I am of the view that all the points and arguments urged in support of this application are misconceived and untenable. However, even if I am wrong in my views, two further questions arise for consideration. The first is whether the grounds relied on by the applicants, even if well-founded, are proper for a review or are more appropriate to an appeal. In Panin v. Amoako (1951) D.C. (Land) ‘48- 51, 363 Windsor Aubrey J. considered the review powers conferred on the court under Order 41 of the General Procedure Rules of the Courts Ordinance, Cap. 4 (1951 Rev.), and said at p. 364:
“My powers of review under Order 41 are, I think, much wider than the equivalent powers in England under Order 28 rule 11 of the Supreme Court Rules where the power of the court to review its judgment is limited to the correction of any error which has the effect of giving a judgment which the court did not intend … but none the less, I consider they are strictly limited. If this court makes an error the usual remedy is to appeal from its decision to the West African Court of Appeal. It is not, I think, the intention of the legislature that this court should reverse any decision it gives, merely because additional arguments make it to believe that its decision is mistaken. If such a course is adopted there will be no finality in its judgments. I consider the power to review could only arise where this court has misled itself or has been misled as a result of deliberate or innocent misrepresentation, on facts or law, where the opposing party cannot refute such misunderstanding by the court. I do not say this is the only ground of review. I can only decide each case as it arises, but it does seem clear to me that if the court has considered a particular issue and reached a conclusion thereon it should not reverse its decision merely because additional arguments lead it to suppose that its conclusion was erroneous.”
In this case the applicants want the court to take another view of the law, and I do not think this can be done on a review.
The respondents also raised the point that the order appealed against is an interlocutory one, and therefore the application for review is out of time. This point was raised in the application for extension of time, and the learned judge then formed the view that it is a final order. In view of this ruling I do not think, despite my own views to the contrary, that I should make any ruling on it. It is up to the respondents if so advised to re-argue this point before another and higher tribunal.
In the result I dismiss the application for review with costs of 025.00 to counsel for the company and another 025.00 to counsel for the other respondents.
DECISION
Application dismissed.
T. G. K.
