THE REPUBLIC vs. HIGH COURT, ACCRA GENERAL JURICDICTION “6” EX PARTE: INDEPTH NETWORK DANIEL KOFI BAKU & 8 OTHERS [2022]DLSC11510

THE REPUBLIC vs. HIGH COURT, ACCRA GENERAL JURICDICTION “6” EX PARTE: INDEPTH NE... [2022]DLSC11510

Date	2022-03-09
Suit No.	CIVIL MOTION NO. J5/12/2022
Citation No.	[2022]DLSC11510

PWAMANG JSC (PRESIDING)

DORDZIE (MRS.) JSC

OWUSU (MS.) JSC

TORKORNOO (MRS.) JSC

HONYENUGA JSC

NANA AGYEI BAFFOUR AWUAH ESQ. FOR THE APPLICANT.

JUSTIN AMENUVOR ESQ. FOR THE INTERESTED PARTIES.

[2022]DLSC11510
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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 GENERAL JURICDICTION “6”<o:p></o:p>(RESPONDENT)<o:p></o:p>EX PARTE:
INDEPTH NETWORK<o:p></o:p>(APPLICANT)<o:p></o:p>DANIEL KOFI
BAKU &amp; 8 OTHERS<o:p></o:p>(INTERESTED PARTY)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL MOTION NO. J5/12/2022&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: 9TH MARCH, 2022<o:p></o:p>

</div>COUNSEL<o:p></o:p>NANA AGYEI BAFFOUR AWUAH ESQ.
FOR THE APPLICANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<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">JUSTIN AMENUVOR ESQ. FOR THE INTERESTED PARTIES.<o:p></o:p>

</div>CORAM&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p>PWAMANG JSC
(PRESIDING), DORDZIE (MRS.) JSC, OWUSU (MS.) JSC, TORKORNOO (MRS.) JSC, HONYENUGA
JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNoSpacing" align="center" style="text-align:center;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">RULING<o:p></o:p>

</div>&nbsp;&nbsp;MAJORITY OPINION<o:p></o:p>&nbsp;PWAMANG, JSC:-<o:p></o:p>The background to this application invoking our
supervisory jurisdiction is that the individual persons involved in the case
come from various countries and worked together under the umbrella of Indepth
Network Limited, a not for profit organization incorporated in 1998 under the
company laws of Ghana as a company limited by guarantee. Except for two or so other
professionals, the rest are scientists and their focus appeared to have been on
advancing the scientific objectives of the organization which are related to
public health.&nbsp; Though in operating as an
organization the parties were required by law to &nbsp;comply strictly with the provisions of the
Companies Act, 1963 (Act 179),they over the years failed to observe some important
provisions of the law. Some years back, differences arose among them which
could not be resolved and it resulted in a contest for control of the
organization by two main factions ending up in the High Court, Accra in May,
2018. There were cross allegations as to who are and who are not legally
recognized subscribers, directors, secretary and officers of the organization.
After a full blown trial, the High Court gave judgment on 4th
November, 2021. In concluding the judgment the trial judge made the following
findings and orders at pages 52-53;<o:p></o:p>“There is no evidence before
me that any AGM has been held since the last one in 2017. Based on the
Regulations and Professor Binka’s testimony which is to the effect that board
members are about nine (9) and hold tenure for two years, it is clear that the
last executive council members or the Board of Trustees’ tenure has expired.
Consequently, in order for the company to operate smoothly, it is hereby
ordered that an AGM should be held within 90 days from today so that a new
board of trustees and or Executive Council members can be appointed forthwith.
Until then those who have been operating the company in the course of the
litigation shall continue on an interim basis to help organize the AGM.<o:p></o:p>…All officers who were
appointed and whose contracts have expired will have no role in the operation
of the company on an interim basis. For instance, the evidence is that Prof.
Alimanay Sankoh is no longer the Executive Director, to that extent he has no
further role to play in that capacity. Also, Dr Baku testified that Mr
Apaliyah’s employment expired on 30th April, 2018, and I note that
the testimony was not challenged. To that extent, I hold that Sixtus Apaliyah
is also not an officer of the company and therefore has no role to play in the
company now unless he is re-hired. I make no order as to costs.”<o:p></o:p>The Plaintiff/Applicant in its motion paper has
complained that the trial judge acted without jurisdiction when he ordered as
follows;<o:p></o:p>“it is hereby ordered that an AGM should be held
within 90 days from today so that a new board of trustees and or Executive
Council members can be appointed forthwith. Until then those who have been
operating the company in the course of the litigation shall continue on an
interim basis….”<o:p></o:p>The applicant’s reason for stating so is that it
is only under section 162 (1) of the Companies
Act, 2019 (Act 992) that a court may draw authority to make the above kind
of order but then the court can only do so on an application by a director of
the company, a member of the company or the Registrar of Companies. The court
cannot make such an order on its own motion. Counsel contends that in this
case, no such application was made to the court so it had no jurisdiction to
make the order it made. Counsel for the applicant cited the case of Republic v Court of Appeal; Ex parte Tsatsu
Tsikata [2005-2006] SCGLR 612 among other cases.<o:p></o:p>Furthermore, it is submitted on behalf of the
applicant that the above order was premised on the court saying that, by the
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