THE REPUBLIC vs. HIGH COURT, ACCRA (COMMERCIAL DIVISION) ; EX-PARTE: ENVIRON SOLUTIONS AND 3 OTHERS [2020]DLSC8798

THE REPUBLIC vs. HIGH COURT, ACCRA (COMMERCIAL DIVISION) ; EX-PARTE: ENVIRON SOL... [2020]DLSC8798

Date	2020-04-29
Suit No.	CIVIL MOTION NO. J5/20/2019
Citation No.	[2020]DLSC8798

DOTSE JSC (PRESIDING)

APPAU JSC

PWAMANG JSC

DORDZIE (MRS.) JSC

OWUSU (MS) JSC

DENNIS ARMAH FOR THE APPLICANTS.

KWESI AUSTIN FOR 1ST 2ND AND 3RD INTERESTED PARTIES.

[2020]DLSC8798
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH COURT, ACCRA (COMMERCIAL DIVISION) (RESPONDENT); EX-PARTE: ENVIRON SOLUTIONS AND 3
OTHERS (APPLICANTS)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
MOTION NO. J5/20/2019&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: 29TH APRIL,
2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DENNIS ARMAH FOR THE
APPLICANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWESI AUSTIN FOR 1ST,
2ND AND 3RD INTERESTED PARTIES.<o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;<o:p></o:p>DOTSE JSC (PRESIDING), APPAU
JSC, PWAMANG JSC, DORDZIE (MRS.) JSC, OWUSU (MS) JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>PWAMANG, JSC:-<o:p></o:p>My Lords, this is an application invoking our supervisory
jurisdiction to quash by certiorari the order of the High Court, Commercial
Division, Accra dated 25th November, 2019. By the impugned order,
the High Court, confirmed the merger of the 1st, 2nd and
3rd Interested Parties (hereafter referred to as the “interested
parties”) which are all companies engaged in pharmaceutical manufacturing in
Ghana. The applicants are shareholders of the 3rd interested party
who for sometime now have been battling changes in the share structure of 3rd
defendant in the courts. Those changes resulted in the applicants becoming
minority shareholders. On this occasion, their application for certiorari has
been brought on four grounds. 1. &nbsp;Lack of
jurisdiction of the High Court to hear the motion for confirmation of the
merger, 2. Lack of jurisdiction of the High Court by reason of failure to
observe the applicants’ right to a hearing, 3. Actual Bias, and 4. Lack of fair
hearing.<o:p></o:p>The basis on which the applicants contend that the
High Court had no jurisdiction to hear the application for confirmation of the
merger is that the motion paper filed on 15th November, 2019 that
sought to invoke the jurisdiction of the High Court &nbsp;stated that the application was being made
pursuant to section 231(4) of the Companies Act, 1963, (Act 179). But Act 179 was repealed by section 384(1) of the Companies Act, 2019 (Act 992) which
came into force on 2nd August, 2019. According to the applicants, as the motion
was filed under the provisions of the repealed statute, it could not
competently invoke the jurisdiction of the court. In response the interested
parties say that merger of companies is a process that entails a series of activities
prescribed under section 231 of Act 179
and ending with an application for confirmation by the High Court. Their case
is, that they commenced the merger about 10th December, 2018 under
the provisions of Act 179 and the
application for confirmation is a sequel to those steps. They argue that section 384 (2) of Act 992 saved all
acts lawfully done under Act 179
before its repeal and provides that all such acts shall be considered to have
been done under the new Act. Therefore, the High Court did not err but had
jurisdiction to hear the application for confirmation.<o:p></o:p>My Lords, the argument of the applicants suggests,
that when a court process states on its face a wrong statute as authority for filing
it, then, irrespective of whether the process is competent under some other law,
the citation of the wrong statute nullifies the process. I say this because the
case of the applicants is not that the interested parties did not have legal
basis for bringing the application. In fact, they have argued elsewhere that it
ought to have been served on them pursuant to section 231(5) of Act 179 to enable them object to the
confirmation. Also, at the hearing of this application counsel for applicants
conceded that Act 992 has maintained
the jurisdiction of the High Court to confirm mergers after companies have satisfied
conditions similar to those stated &nbsp;in section 231 of Act 179. So, their quarrel
is with the form and not the substance of the application. But I find it
intriguing that while the applicants contend that the motion ought to have been
brought pursuant to Act 992, they have not hinge their claim of entitlement to
service on section 239 (6) of Act 992
which is the same as section 231(5) of
Act 179 that has been repealed. That to me is an admission by the
applicants that rights that accrued under the repealed legislation are still
enforceable. &nbsp;<o:p></o:p>The citation on court processes of the correct law
on the strength of which the process has been filed is a practice that is
insisted upon by judges because it enables the court to understand precisely
the legal basis of the case the party is making and for the opponent to
understand fully the case she is required to answer. This is a useful practice
that advances the requirements of fair hearing. That notwithstanding, stating
the correct statute on court processes is not a strict rule of procedure
failure to comply with which can nullify a court process. It is more of a
practice for the convenience of proceedings than a rule. Courts have a duty to
do substantial justice to the parties in every case so a court is not disabled
from hearing a party on the only ground that she cited the wrong statute on her
process. The court is required to consider the substance of the case presented
through the process and if it alludes to a legal right that can avail the
party, the court will deal with the merits of the matter. See the case of Okofoh Estates Ltd</main>