IN RE TIMBER AND TRANSPORT KUMASI-KRUSEVAC CO., LTD.ZASTAVA vs. BONSU AND ANOTHER [1979]DLHC1074

IN RE TIMBER AND TRANSPORT KUMASI-KRUSEVAC CO., LTD.ZASTAVA vs. BONSU AND ANOT... [1979]DLHC1074

Date	1979-06-22
Suit No.
Citation No.	[1979]DLHC1074

OSEI-HWERE J.

NUNOO FOR THE PLAINTIFF.

R. K. APALOO FOR THE DEFENDANTS.

[1979]DLHC1074
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													<main id="main" class="content" style="min-height: 60rem" >IN RE TIMBER AND TRANSPORT KUMASI-KRUSEVAC CO., LTD.ZASTAVA <o:p></o:p>vs. <o:p></o:p>BONSU AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 370<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:
22 JUNE 1979<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">

NUNOO FOR THE PLAINTIFF.<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 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.<o:p></o:p>This is a
petition for the official winding-up of a limited liability company called
Timber &amp; Transport Kumasi-Krusevac Ltd. The original name of the company
which was formed in 1966, was Timber &amp; Transport Co., Ltd. On 20 July 1971,
Timber &amp; Transport Co., Ltd., its principal shareholders, Osei Bonsu Snr.
and Osei Bonsu Jnr., entered into a written agreement with a Yugoslav company,
Sumsko-Industrijski Kombinat “Crvena Zastava” or the “Red Flag” Timber
Industrial Combine, whereby the Osei Bonsus agreed to transfer part of their
shareholding in Timber &amp; Transport Co., Ltd. to the Yugoslav company which,
for its part, agreed to invest in and manage the company. It was further agreed
that the name of the company would be changed to its present form, the town of
Krusevac being the situation of the registered office and the principal place
of business of the Yugoslav company.<o:p></o:p><o:p>&nbsp;</o:p>The
affidavit attached to the petition shows that the Yugoslav company took up its
shares, invested U.S. $250,000 as equity share capital, appointed a new
managing director and brought over from Yugoslavia a number of experts to
assist in running the joint enterprise. The name of the company was on 1
September 1971 changed to its present form. From that moment, it could be said
that the fundamental obligations assumed by the parties under the agreement had
been performed, and that to that extent the contract was discharged by
performance. In so far as anything more remained to be done, clause 16 provided
that the agreement should take precedence over and prevail against the
regulations of Timber &amp; Transport Co., Ltd. wherever the two were in
conflict, and it was further directed that a resolution to that effect be
passed by the board of directors of Timber &amp; Transport Kumasi-Krusevac Ltd.
and registered along with a copy of the agreement with the Registrar of
Companies.<o:p></o:p><o:p>&nbsp;</o:p>Differences
having arisen between the parties to the agreement, the Osei Bonsus have caused
a writ to be issued in this court against the “Red Flag” Timber &amp;
Industrial Combine claiming the following reliefs:<o:p></o:p><o:p>&nbsp;</o:p>“(a)
Rescission of the contract dated 20 July 1971; (b) Declaration that the said
contract is discharged; or (c) Damages for breach of the said contract.”<o:p></o:p><o:p>&nbsp;</o:p>The writ
and statement of claim are attached to this petition as exhibits 00.10 and
00.11. The answer of the Yugoslav company is this petition for the official
winding-up of Timber &amp; Transport Kumasi-Krusevac Ltd. On 12 February 1979,
this court heard and granted an ex parte application filed on behalf of the Yugoslav
company for the appointment of the Registrar of Companies as provisional
liquidator under section 4 (7) of the Bodies Corporate&nbsp; (Official Liquidations) Act, 1963 (Act 180),
and for an appropriate injunction.<o:p></o:p><o:p>&nbsp;</o:p>On the
hearing of the petition itself, Mr. Kom, counsel for the respondents, has
raised as a preliminary point, the question whether having regard to clause 15
of the agreement, the petition is competent. Clause 15 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">“Upon
coming into force and effect as aforesaid, this agreement shall be and remain
irrevocable for ten years, and accordingly no member or director of the new
company may, during the term of ten years immediately following upon coming
into force of this agreement, present a resolution to the board of directors or
an application to court, se</main>