OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966]DLHC1739

Date	1966-01-25
Suit No.
Citation No.	[1966]DLHC1739

BOISON J.

J. OWUSU YAW FOR THE PLAINTIFF-APPLICANT.

G. DAVEY FOR THE FIRST RESPONDENT.

[1966]DLHC1739
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													<main id="main" class="content" style="min-height: 60rem" >OWUSU v. R. N. THORNE LTD. <o:p></o:p>AND <o:p></o:p>ANOTHER <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1966] GLR 90<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
25 JANUARY
1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. OWUSU YAW FOR THE PLAINTIFF-APPLICANT.<o:p></o:p>

G. DAVEY FOR THE FIRST RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BOISON J.<o:p></o:p>The
plaintiff sued the defendants, R. N. Thorne Ltd. and J.K. Anane. The plaintiff,
by an ex parte motion, obtained an absconding warrant against Mr. R. N. Thorne,
one of the directors of the first defendant company. The present proceedings
are to determine if there is probable cause for believing that the defendant is
about to leave the jurisdiction: see the Supreme [High] Court (Civil Procedure)
Rules, 1954,1 Order 35, r. 2. It was argued on behalf of the first defendant
that the plaintiff sued R. N. Thorne Ltd. as the first defendant as distinct
from R. N. Thorne personally. Counsel submitted that as the first defendant is
a limited liability company with a separate personality from the directors, and
as Mr. Thorne has not personally contributed to or personally caused the injury,
he cannot be held personally liable for the torts of the limited liability
company, and that Order 35 on the whole cannot be evoked against a limited
liability company. Counsel further submitted that the action in this case does
not fall or come within the limited exceptions where the directors of a company
are held personally responsible.<o:p></o:p><o:p>&nbsp;</o:p>On behalf
of the plaintiff it was argued that the first defendant acts through human
beings and the human beings are therefore responsible for the acts of the
company; that, as in this case Mr. R. N. Thorne and his wife are the only
directors, the two therefore comprise the first defendant company. They have
sold some of their property, closed their office and Mr. R. N. Thorne is going
on leave and is not likely to return to Ghana and it was submitted he must
therefore give security for his appearance.<o:p></o:p><o:p>&nbsp;</o:p>What the
court has to determine in this motion is whether R. N. Thorne personally or the
company is the first defendant in this case. The theory of legal personality of
corporations has its own practical problems but it is clear that a limited
company or corporation has legal existence apart from the directors and
members, and it is in a few recognised exceptions that the law lifts the
“corporate veil,” as it has been put, and looks to the directors and members
personally. On the plaintiff’s own pleadings he sued R. N. Thorne Ltd. the
first defendant and one other as the second defendant— the first defendant was
the master of the second defendant. It may well be and undoubtedly is true that
R. N. Thorne and his wife are the only directors of the company but the company
exists apart from the directors and the members. To hold that the directors are
personally the first defendant in this case will be defeating the doctrine of
the separate existence of a limited liability company. The action is not
against R. N. Thorne personally. I am not determining the liability of the
first defendants as a company. The question here is: Is R. N. Thorne personally
sued as the first defendant so that he is a “defendant” within Order 35? The
answer is no. As far as the court is aware the company is not in the process of
being wound up and even if that were so, it would not make R. N. Thorne
personally the first defendant in this case. In the absence of R. N. Thorne
from Ghana, another director has been appointed. The company as far as the
court can gather is still in existence and R. N. Thorne is not and cannot be
personally the first defendant herein so as to go into the question of his security.
Costs of ¢5.00 for the defendants against the plaintiff.<o:p></o:p>

<o:p>&nbsp;</o:p></main>