BROWN AND OTHERS vs. HOEKS (GHANA) LTD. [1977]DLHC1263

Date	1977-07-03
Suit No.
Citation No.	[1977]DLHC1263

GRIFFITHS-RANDOLPH J.

KWAKU BONSU FOR THE PLAINTIFFS.

SEY FOR THE OFFICIAL LIQUIDATOR.

[1977]DLHC1263
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													<main id="main" class="content" style="min-height: 60rem" >BROWN AND OTHERS <o:p></o:p>vs. <o:p></o:p>HOEKS (GHANA) LTD. <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977] 2 GLR 15<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:
3 JULY 1974<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">

KWAKU BONSU FOR THE PLAINTIFFS.<o:p></o:p>

SEY FOR THE OFFICIAL LIQUIDATOR.<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">

GRIFFITHS-RANDOLPH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF GRIFFITHS-RANDOLPH J.<o:p></o:p>Griffiths-Randolph
J. sitting as an additional judge of the High Court, Accra, made the following
order on 7 March 1973: “Application granted and let the plaintiffs be at
liberty to enter final judgment against the defendants in a sum which is the
equivalent in cedis to DM 143,292.00 being the balance of accounts due and
owing by the defendants to the plaintiffs as claimed in the writ of summons.
The rate of conversion will be the rate as determined by the Bank of Ghana on
the prevailing rate today, 7 March 1973 before noon. Simple interest of 8 per
cent awarded from 23 June 1971 to the date of judgment on the amount as
determined in cedis. Costs of ¢700.00 inclusive to the plaintiffs.”<o:p></o:p><o:p>&nbsp;</o:p>A little
over two weeks thereafter, a series of garnishee proceedings were commenced
against a number of companies and an individual, who were thought to be owing
the defendant company, viz. (a) the Accra and Kumasi branches of A. Lang Ltd.;
also (b) Ghana Broadcasting Corporation, Accra; (c) Mr. Albert Adomakoh, Accra;
(d) Tetteh Quarshie Memorial Hospital, Mampong, Akwapim; (e) Standard Bank
Ghana Ltd., Accra; (f) Domus Construction Ltd., Accra (g) Fulgurit Asbestos
Ghana Ltd., Accra; and (h) Bank of Ghana, Accra; but it would appear that so
far, only an amount of ¢17,499.38 has been recovered from (a) (supra), also the
garnishee summonses issued against (b) and (h) above have been struck out as
the two garnishees have maintained that they were not indebted to the defendant
company; and no order has been made for the issue of execution to levy any
amount on the banks of the other garnishees.<o:p></o:p>However,
on 10 July 1973, an application by the plaintiffs for the costs of ¢700.00
awarded them on 7 March 1973 to be increased to ¢5,700.00 was referred by me to
Annan J.A.; also on 11 May 1973 an application for a writ of fi. fa. to issue
together with a duly completed form of the writ was filed; and on 26 November
1973 a motion on notice respecting the unexpired terms of leases on properties
owned by the defendant company was filed, but it has not yet been disposed of.
A motion for stay of execution filed on 7 December 1973 on behalf of the
defendant company also was adjourned on 14 December 1973 at the instance of the
defendant company, which disclosed it would be in a position to pay off the
balance of the judgment debt and costs if a three-month adjournment was granted
by the court.<o:p></o:p><o:p>&nbsp;</o:p>However,
it seems that it only tantalised the plaintiffs, because on 30 January 1974 a
petition by Joseph Richard Asiedu, chairman of the board of directors of the
defendant company, for the winding-up of the defendant company was presented to
the official liquidator by Kudjawu and Co. The plaintiffs reacted to this move
on the part of the defendant company by filing on 13 February 1974 a motion on
notice with supporting affidavit for an order of the court granting them leave
to proceed with the motions pending in the court notwithstanding the winding-up
petition; and the court was successfully moved on 20 February 1974, in the
absence of the official liquidator’s representative and the defendants’
counsel, by K. Tay. who held Kwaku Bonsu’s brief for the plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>Kwaku
Bonsu purported to move the court again on 3 May 1974 in connection with the
application for an order for leave to proceed with the pending motions, which had
already been disposed of; and this subsequent motion was opposed on behalf of
the official liquidator by Sey, who relied on section 17 of the Bodies
Corporate (Official Liquidations) Act, 1963 (Act 180), which provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On the
commencement of a winding-up, no action or civil proceedings against the
company, other than proceedings by a secured creditor for the realization of
his security, shall be proceeded with or commenced save by leave of the Court
and subject to such terms as the Court may impose.”<o:p></o:p><o:p>&nbsp;</o:p>He also
produced a certified true</main>