IN THE MATTER OF GIHOC (RESPONDENT/APPLICANT) DISTILLERIES CO. LTD AND IN THE MATTER OF AN APPLICATION (PETITIONER/RESPONDENT) FOR WINDING UP BY INTEGRATED INVESTMENTS LTD. A CREDITOR OF GIHOC DISTILLERIES CO. LTD. [2005]DLCA6723

IN THE MATTER OF GIHOC (RESPONDENT/APPLICANT) DISTILLERIES CO. LTD AND IN THE MA... [2005]DLCA6723

Date	2005-04-15
Suit No.	CA/NO. H1/345/2004
Citation No.	[2005]DLCA6723

ADINYIRA JA (PRESIDING)

ASIAMA J.A.

DOTSE J.A.

[2005]DLCA6723
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >IN THE MATTER OF GIHOC<o:p></o:p>(RESPONDENT/APPLICANT)<o:p></o:p>DISTILLERIES CO. LTD<o:p></o:p>AND<o:p></o:p>IN THE MATTER OF AN
APPLICATION<o:p></o:p>(PETITIONER/RESPONDENT)<o:p></o:p>FOR WINDING UP BY
INTEGRATED<o:p></o:p>INVESTMENTS LTD. A
CREDITOR OF<o:p></o:p>GIHOC DISTILLERIES CO.
LTD.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CA/NO. H1/345/2004&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; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 15TH APRIL 2005.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DOTSE J.A. <o:p></o:p>The
facts of this appeal admit of no complexity whatsoever. <o:p></o:p>On
the 28th of August, 2001, the Petitioners/Respondents, hereinafter referred to
as the Petitioners, filed an originating Motion on Notice against the
Respondents/Appellants, hereinafter referred to as the Respondent seeking an
order as follows against the Respondents: <o:p></o:p>"GIHOC DISTILLERIES CO. LIMITED
be wound up on grounds that the said company cannot pay its debts or that such
other order may be made as to the Honourable Court may seem just." <o:p></o:p>The
above application was supported by a Petition and an affidavit verifying the
facts relied upon. <o:p></o:p>The
said application was vehemently contested by the Respondents.&nbsp; Series of interlocutory applications were
filed, and after Counsel’s submission on the matter, the Learned High Court
Judge on the 10th day of April, 2003 sitting in Accra delivered judgment in
favour of the Respondents in the following terms:— <o:p></o:p>"The court, enjoys the privilege
of exercising some amount of discretion where a petition is presented under Act
180, section 4(4) of which provides: <o:p></o:p>"4(4) On the hearing of a winding
up petition the court may dismiss or adjourn the hearing conditionally or
unconditionally or make an interim order, or any order that it thinks fit, but
the court shall not refuse to make a winding up order on the ground only that
the assets of the company have been mortgaged to an amount equal to or in
excess of, those assets or that the company has no assets" emphasis. <o:p></o:p>'In
the circumstances of the instant petition, the only order I consider fit to
make is that since the petitioner itself was not averse to the re-opening of
future negotiations and determinations of respondents indebtedness to it, the
respondent having proposed certain payment terms which the petitioner rejected,
the petition is premature. <o:p></o:p>Accordingly,
the petition that an order be made winding up the respondent company on the
ground of its inability to pay its debts is hereby dismissed.' <o:p></o:p>I
make no order as to costs". Emphasis <o:p></o:p>The
above were the clear concise and unambiguous words of the Learned High Court
Judge, which dismissed the Petitioners, action. <o:p></o:p>As
the Petitioner was dissatisfied with the above judgment of 10-4-03, a Motion on
Notice for Review was filed by them on 28-4-03 in the following terms: <o:p></o:p>"Take Notice this Honourable
Court will be moved by Counsel for and on behalf of the Petitioner/Applicant
for a review of the order made by His Lordship Asare-korang J. (sitting as an
additional HIGH COURT JUDGE) the above mentioned petition upon the grounds set
out in the accompanying affidavit".<o:p></o:p>This
Application for Review of the Courts judgment dated 10-4-03 came up for
arguments before the same court on 15-5-03.&nbsp;
The Court accordingly granted the Review Application.&nbsp; The instant appeal is therefore against the
Review decision of the Court. <o:p></o:p>In
view of the fact that the Ruling delivered by the Court on 15-5-03, would be
featuring prominently in this judgment, it is considered worthwhile to quote in
extenso the said Ruling.&nbsp; The Ruling of
15-5-03, states as follows: <o:p></o:p>"The
application for review is hereby granted, and having regard to the statement
made by Mr. Yamoah who is the Procurement Manager of GIHOC Distilleries, that
the respondent GIHOC desires to sit down with the applicant to negotiate with
him repayment terms, I hereby make the following orders pursuant to my judgment
of 10th April, 2003. <o:p></o:p>(1)
Since the respondent has filed an affidavit in opposition in which it
categorically assets that it has more than enough assets to liquidate its debts
and having previously offered to pay the applicant ¢50 million per month to
defray part of its indebtedness to applicant the respondent shall pay to the
applicant ¢50 million per month as stated in Exhibit SL-2 with effect from 31st
May, 2001</main>