DRAM OIL & TRADING LIMITED vs. ALFAPETRO GHANA LTD. AND THE REGISTRAR GENERAL [2018]DLHC9113

Date	2018-11-16
Suit No.	SUIT NO. MISC/0134/2018
Citation No.	[2018]DLHC9113

HER LADYSHIP JUSTICE JENNIFER A. DADZIE

MARIAN S. MENSAH ESQ. BLAY & ASSOCIATES ACCRA COUNSEL FOR APPLICANT

SHADRACK ARHIN ESQ. CORPORATE LEGAL CONCEPTS ACCRA COUNSEL FOR 1ST RESPONDENT

[2018]DLHC9113
																																						<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" >DRAM OIL &amp; TRADING LIMITED<o:p></o:p>(APPLICANT)<o:p></o:p>vs.<o:p></o:p>ALFAPETRO GHANA LTD. AND THE
REGISTRAR GENERAL<o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p>&nbsp;<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO. MISC/0134/2018&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
16TH NOVEMBER, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MARIAN S. MENSAH,
ESQ., BLAY &amp; ASSOCIATES, ACCRA, COUNSEL FOR APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm;margin-left:0cm;margin-right:.2pt">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SHADRACK ARHIN, ESQ.,
CORPORATE LEGAL CONCEPTS, ACCRA, COUNSEL FOR 1ST RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP, JUSTICE JENNIFER A. DADZIE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0cm 1.0pt 0cm">

<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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>By
an Originating Notice of Motion, the Applicant herein prays for an order for
the 1st Respondent to be wound-up pursuant to the provisions of Order
19 rule 2 of the High
Court (Civil Procedure) Rules, 2004 (C.I 47) and section 4 of the Bodies Corporate (Official
Liquidations) Act, 1963, (Act 180) on the grounds set out in the Affidavit
in Support of the Application and the Supplementary Affidavit, which in the
main states that the 1st Respondent cannot pay its just and lawful
debts to its creditors.<o:p></o:p>The
case of the Applicant is that it is a limited liability company incorporated
under the laws of Ghana and duly licensed by the National Petroleum Authority
(hereinafter, the “NPA”) to trade in oil, while the 1st Respondent,
also incorporated under the laws of Ghana is duly licensed as a Bulk Distribution
Company (BDC) by the NPA.&nbsp; <o:p></o:p>The
Applicant states that it commenced action against the 1st Respondent
on June 26, 2018, by serving a Statutory Demand on the 1st
Respondent, as a creditor, under section
3(3)(a) of the Act 180 in a bid to recover the sum of Four Million Seven
Hundred and One Thousand, Four Hundred and Eighty Ghana Cedis Ninety-one
Pesewas (GH¢4,701,480.91) inclusive of interest, which was owed to the
Applicant by the 1st Respondent arising from the unpaid under
recoveries due to the Applicant for the distribution and sale of Nine Thousand
One Hundred (9,100) metric tonnes of
petroleum products Applicant supplied to the 1st Respondent for
distribution.&nbsp; According to the
Applicant, the 1st Respondent failed to respond to the Statutory Demand
within the twenty-one (21) day mandatory period.&nbsp; This statutory demand is attached to the
Affidavit in support and marked as Exhibit
“DOTL1”. <o:p></o:p>A
summary of the events that led the Applicant to commence the present action
against the 1st Respondent are as follows.&nbsp; According to the claim of the Applicant on or
about September 13, 2012, it executed a Distribution Agreement with the 1st
Respondent whereby the 1st Respondent, under its licence as a BDC
was to distribute on behalf of the Applicant petroleum products imported into
the country by the Applicant.&nbsp; The
Distribution Agreement is attached to the Affidavit in support of the
Application as Exhibit “DOTL2”.&nbsp; Applicant claims further that it was a term
of the said agreement that any over/under recoveries due to or from the NPA
arising out of the sale and distribution of the products would be for the
account of the Applicant while the 1st Respondent was entitled to a
distribution fee for products it distributed and for which payments were duly
effected to it.&nbsp; The parties agreed that
a Collection Account would be set up into which all proceeds from the Oil
Marketing Companies (OMCs) or other bulk customers would be paid into by the 1st
Respondent.&nbsp; <o:p></o:p>According
to the Applicant, it imported into the country for sale Nine Thousand One
Hundred (9100) metric tonnes of
gasoline.&nbsp; This import was backed by a
Letter of Credit (LC) in the sum of Nine Million, Nine Hundred and Ninety-three
Thousand
Five Hundred and Twenty-nine Ghana Cedis (GH¢9,993,529.00) issued on its behalf
by the now defunct UT Bank. See the Applicant’s Exhibit “DOTL3”, copies of the LC and in-tank certificate.&nbsp; It is the claim of the Applicant that the 1st
Respondent, subsequent to distributing all the quantities of gasoline, has
refused and/or neglected to pay the under-recoveries due the Applicant as
agreed.&nbsp; The Applicant alleges that a
reconciliation undertaken between the parties and UT Bank in February 2014
established that the under-recoveries due the Applicant amounted to the sum of
Two Million One Hundred and Ten Thousand, Five Hundred and Nine Ghana Cedis,
Eighty-seven Pesewas GH¢2,112,509.87).&nbsp;
This figure, the Applicant claims was endorsed by all the parties to the
transaction.&nbsp; The Applicant has attached
to its Affidavit in Support, Exhibits
“DOTL4” and “DOTL4A”, letters it alleges it wrote to the 1st
Respondent and copied to UT Bank after the reconciliation was completed in
which the amount established to be due after the reconciliation exercise was
referenced and the Applicant in those letters made a demand on the 1st
Respondent to pay the said outstanding amount.&nbsp;
According to the Applicant, UT Bank asked for the reconciliation to be
undertaken becaus</main>