NATAR vs. BOYE (THE RECEIVER) AND FYNE LTD. [1992]DLHC2043

Date	1992-07-09
Suit No.
Citation No.	[1992]DLHC2043

BROBBEY J.A.

SAMMY ADDO FOR THE PLAINTIFF.

STANLEY AMARTEIFIO FOR THE DEFENDANT.

[1992]DLHC2043
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">NATAR<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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BOYE (THE RECEIVER) AND FYNE LTD.<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 145<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">

</div>COUNSEL:<o:p></o:p>SAMMY ADDO FOR THE PLAINTIFF.<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">

STANLEY AMARTEIFIO FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT OF BROBBEY J.A.<o:p></o:p>On 1 October 1987 the plaintiff was employed by Fyne Ltd. as its
managing director. The contract was in writing and contained the terms and
conditions of the employment.<o:p></o:p>The defendant was appointed receiver of Fyne Ltd. in 1991. One of
the first actions the defendant took was to write to continue the services of
the plaintiff as per the second paragraph of the letter dated 1 November 1989.
Subsequently, the defendant wrote to the plaintiff this time to discontinue the
employment.<o:p></o:p>The plaintiff then issued a writ claiming, inter alia, US $40,786
as accrued salary and other allowances as well as a return air ticket to
Lebanon as stated in the written contract of employment. In his statement of
defence, the defendant admitted in paragraph (7) that he was indebted to the
plaintiff but the amount owed was US $39,703.12.<o:p></o:p>The plaintiff then filed a motion for judgment in terms of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 32, r. 6. This
motion has been resisted on a number of grounds.<o:p></o:p>From the pleadings, there is no doubt that the defendant admitted
that US $39,703.12 was owed to the plaintiff. This will be found in paragraph
(7) of the statement of defence. All that the defendant contends now is that
the plaintiff’s action is premature for the reason that the plaintiff’s claim
is an unsecured debenture and can only be paid after he had paid the secured
debentures.<o:p></o:p>The defendant was appointed as a receiver out of court. This is
not disputed by either party. The legal position as stated in Gower, Principles
of Modern Company Law (3rd ed.) at p. 436 is as follows:<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">“A receiver appointed by the court is not an agent of anyone, but
an independent office of the court. A receiver appointed out of court, on the
other hand, might be expected to be an agent of the party appointing him, namely,
the debenture holder or trustee, but in practice, the debenture will invariably
provide, expressly or impliedly, that the receiver shall be deemed to be the
agent of the company.”<o:p></o:p>In actual fact, what is stated in that book is precisely what transpired
in the instant case. By paragraph (8) of the debenture executed by Fyne Ltd. in
favour of the Standard Chartered Bank of Ghana Ltd. and under which the
defendant was appointed receiver, Fyne Ltd. agreed with the bank that the
receiver shall be the agent of the company.<o:p></o:p>The defendant and the bank are very much aware of this. No attempt
has been made to rectify the situation to make the defendant agent of the bank.
It was with this full knowledge that the defendant proceeded to perform his
duties. On 1 March the defendant wrote to continue the services of the
plaintiff. In that letter, the defendant stated that he would arrange with the
said bank to settle the plaintiff’s unpaid salaries and end of service
benefits. I consequently found it not surprising when the defendant made the
admission in paragraph (7) of his statement of defence.<o:p></o:p>Professor Gower in Principles of Modern Company Law (3rd ed.) at
p. 437 states the legal position thus:<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">“The present position regarding the receiver’s liability on contracts
is that he is not bound by those entered into by the company even if he sees
that they are performed, as he normally should if abandonment would affect the
goodwill. If, however, he enters into new contracts for the purpose of his
receivership, he as well as the company, will be personally liable thereon,
unless the contract otherwise provides, but with a right of indemnity out of
the assets.”<o:p></o:p>