OKUDJETO AND OTHERS vs. IRANI BROTHERS AND OTHERS (NO. 2) [1973]DLHC2305

Date	1973-11-23
Suit No.
Citation No.	[1973]DLHC2305

HAYFRON-BENJAMIN J.

U. V. CAMPBELL FOR THE APPLICANTS.

J. REINDORF FOR THE RESPONDENTS.

[1973]DLHC2305
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">OKUDJETO AND OTHERS<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">IRANI BROTHERS AND OTHERS (NO. 2)<o:p></o:p>&nbsp;[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 389<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:
23 NOVEMBER 1973.<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">

U. V.
CAMPBELL FOR THE APPLICANTS.<o:p></o:p>

J. REINDORF
FOR THE RESPONDENTS.<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">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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 salt</main>