RE GHANA TIMBER MARKETING BOARD’S APPLICATION; GHANA TIMBER BOARD v. ASHANTI CURL & LUMBER PRODUCTS LTD. [1968] GLR 931

DIVISION: HIGH COURT, KUMASI

DATE: 17 OCTOBER 1968

BEFORE: ANNAN J.

NATURE OF PROCEEDINGS

APPLICATION by mortgagees for extension of time within which to register a charge under the Companies Code, 1963 (Act 179). The facts sufficiently appear in the ruling.

COUNSEL

Osei-Bonsu for the applicants.

Kofi Sackey for the respondents.

JUDGEMENT OF ANNAN J.

This application is brought under section 115 of the Companies Code, 1963 (Act 179), for an extension of time within which to register particulars of a charge in terms of section 107 of the Code. The application is brought by the Ghana Timber Marketing Board, the creditors. The debtors, the Ashanti Curl and Lumber Products Ltd. oppose the application. The duty to effect registration of charges is placed on the debtor company in the first place and the Code provides penalties as against the company for default in sending for registration any particulars which require registration. However section 111 permits “any person interested” in a charge to register it. Clearly the purpose of this provision is to safeguard the interests of such a person in cases where a company deliberately refuses to register. Where, however, there is a failure to register within the statutory period of 28 days, either the company or a person interested in the charge may apply to the court for an extension of time within which to register. The matters relevant for consideration on an application for extension are whether or not the omission to register was accidental or due to inadvertence or to “some other sufficient cause” and also whether there is a likelihood of prejudice to the position of creditors or members of the company. Again the court may grant relief if satisfied that “on other grounds it is just and equitable to grant relief.” Clearly the court has a wide discretion whether or not to grant an extension and the burden put on the applicant does not appear to

[p.933] of [1968] GLR 931 me to be particularly heavy, and it seems to me that where there has been no deliberate failure on the part of the applicant to register, his application should normally succeed whether the failure to register arises from ignorance of the statutory provision or from ordinary carelessness. A fortiori where the applicant establishes that the failure to register was due to circumstances beyond his control, such as delay in the course of stamping or registration of the document at the appropriate registry, then extension should be granted. The court will not as a rule on such an application decide the question whether a charge requires registration. I should think that the court is also not called upon to decide any issues as to the liability of the debtor company under the contract or transaction giving rise to the liability that is secured by the charge or indeed under the mortgage itself. The court is not concerned as a rule with looking into the matter of liability or rights or obligations arising under either the precedent obligation to pay or the mortgage. In the present application the affidavit of the applicants by paragraph (3) thereof satisfies me that the omission to register was due to circumstances over which the application had no control and although there is a suggestion of tardiness on the part of the applicants in bringing this application, I do not think that this is sufficient to deprive them of the benefit of section 115. The company raised the issue of capacity and maintained that the applicants have no locus standi. They also contend that since they have taken out a writ against certain persons described as the Committee of Management of Ghana Timber Board for declarations that the mortgage deed is null and void and of no legal effect, the present application should not be granted pending the determination of that suit. The argument as to the capacity, or rather lack of capacity, of the applicants is that there is no such legal entity as the Ghana Timber Board with corporate personality and that the applicants, whoever they are, cannot sue as the Ghana Timber Board since there is no such board. It is contended that there was only a committee of management and not a statutory board. In my view whatever may be the merits of the argument as to capacity, and it certainly seems to me attractive on the face of it, I do not feel called upon on this application to decide the issue of capacity. The applicants do not in this application seek to sue anybody or in any other manner to enforce their rights under the mortgage. They merely ask for an extension of time to register the charge. The question of capacity if it arises at all on this application can only arise in the form of the applicants’ capacity to bring this application. Section 115 permits any person interested in a charge to make [p.934] of [1968] GLR 931 this application. Clearly the applicants, by whatever name they are called, are persons interested in the charge.

The present application is not brought in the course of or in connection with any cause or matter pending in the court. There are no proceedings pending in this court or anticipated in the course of which or in connection with which the present application is brought. In short the applicants do not seek to sue anybody. I think the argument as to capacity cannot succeed in the context of the present application. With regard to the suit now pending in this court that clearly has no application to the present matter. There is no obligation on the court to look into the question of liability under the mortgage on an application for an extension of time to register and I may add that there does not seem to me to be any such duty on the registrar. The application must be allowed and I do so and grant an extension till the 30 October 1968 without prejudice to the rights of parties acquired prior to the time when the mortgage is actually registered.

DECISION

Application for an extension of time granted.

F. S. T.

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