RIASAND VENTURES LIMITED - (PETITIONER/RESPONDENT/RESPONDENT)
NOBLE GOLD BIBIANI LIMITED - (RESPONDENT/APPLICANT/APPELLANT)
DATE: 7TH DECEMBER, 2017
SUIT NO: H1/129/2017
JUDGES: ADUAMA OSEI JA (PRESIDING), WELBOURNE JA, KWOFIE JA
COUNSEL FOR RESPONDENT/APPLICANT/APPELLANT – KIZITO BEYUO
COUNSEL FOR PETITIONER/RESPONDENT/RESPONDENT – COSMAS ANPENGNUO
ADUAMA OSEI JA:
In this judgment the Petitioner/Respondent/Respondent is referred to as “the Respondent”, and the Respondent/Applicant/Appellant is referred to as “the Appellant”.
On the 20th of September, 2013, the Respondent had obtained summary judgment in the High Court in Suit No. AC.737/13 against the Appellant and when the Appellant failed to pay the judgment debt, the Respondent had on the 5th of February, 2014, upon a petition made to the Fast Track Division of the High Court, obtained an order under the Bodies Corporate (Official Liquidation) Act, 1963, (Act 180) for the winding up of the Appellant, which order was made to take effect on the 30th of June, 2014, to enable the Appellant “make all the necessary arrangements to satisfy its indebtedness to the Petitioner Company failing which the Order shall be effective without any further orders to that effect”. The winding up order had been expressed to be “without prejudice to any steps or applications that may be taken for a review or variation of the Order in the meantime”.
On the 15th of May, 2014, the High Court, Commercial Division, granted an application by the Appellant which sought confirmation of a scheme of arrangement it had proposed to its creditors, which the majority of the creditors had accepted. Then on the basis of the Commercial Court’s confirmation of the scheme of arrangement, the Appellant applied to the Fast Track Division of the High Court for a stay of execution of the winding up order and, further, for the said order to be set aside.
Among the grounds the Appellant urged on the Fast Track Court for the setting aside of the winding up order were:
i) that “when a court makes an order confirming a scheme of arrangement proposed by a company, such scheme of arrangement is binding on all the creditors of the company, and the validity of the scheme of arrangement is unimpeachable in any proceedings”,
ii) that “no winding up can lawfully commence after a scheme of arrangement comes into force”,
iii) that “once a majority in number representing three-fourths in value of the creditors of a company have voted in support of a proposed scheme of arrangement and the scheme has been approved by the Court, the position of all creditors(including the dissenting minority and non-attending creditors) is compromised by the scheme”, and
iv) that as of 17th June, 2014, the Appellant “had satisfied and/or obtained waivers of all the conditions attached to the scheme of arrangement”, and the scheme of arrangement had become effective and operational.
In its Ruling dated the 13th of August, 2014, the Fast Track Court acknowledged that in the present case, all the necessary procedures had been followed in arriving at the scheme of arrangement and, further, that upon confirmation of the scheme, the same “became binding on all members and creditors and its validity was unimpeachable” within the context of section 231(4) of the Companies Act, 1963 (Act 179).
The Fast Track Court adverted to the Australian case of Deputy Commissioner of Taxation (VIC) Vs. Avram Investments Pty Ltd  9 ACSR 580, in which it was held, among others, that in deciding whether or not a court should set aside a winding up order in favour of a scheme of arrangement, the court may have regard to the wishes of the company’s creditors. The Fast Track Court did not however consider that the minority status of the party seeking the winding up of the company was necessarily the deciding factor. In its view, the question to answer was whether because of the scheme of arrangement, the winding up order ought to be set aside. The Fast Track Court did not regard the scheme as necessitating the setting aside of the winding up order and it accordingly declined the Appellant’s application.
This appeal has been brought because the Appellant is not satisfied with the decision of the Fast Track Court, and would want it to be reversed and an order made staying the winding up of the company and setting aside the winding up order.
The grounds on which the Appellant is seeking the above-stated reliefs have been set out in the amended notice of appeal as follows:
A) The trial court erred in its exercise of discretion in refusing to set aside the winding-up order, when the Appellant had satisfied the condition set down for rescinding the said order.
B) The trial court erred in law when it failed to find that once the Appellant company had entered into a scheme of arrangement with its creditors
i) the effect of the scheme of arrangement was that the debt due to the Respondent which had resulted in the winding up order dated 5th February, 2014, was released and discharged and could no longer found a winding up order; and
ii) the scheme of arrangement should prevail over a pending winding up order.
C) The trial court erred in law when it ordered that the Appellant should pay the debt owed to the Respondent by monthly instalments commencing 31st August, 2014, when there was a valid and operational scheme of arrangement in place that binds the Respondent, and which provides for a payment plan for all creditors of the Appellant (including the Respondent).
i) The winding up order against the Appellant was not due to become effective earlier than 30th June, 2014.
ii) The Appellant entered into an effective scheme of arrangement with all its creditors, which was approved by the Court on or about 17th June, 2014.
iii) The scheme of arrangement is binding on all creditors, including creditors who did not attend the creditors’ meeting after having been duly notified of the scheme process.
iv) Once there was an operative scheme of arrangement before the winding up order became effective, the debt owed to the Respondent was no longer due and owing, which case the winding up order could not be carried out in favour of the Respondent (or any other creditor who had notice of the scheme of arrangement and whose debt was thereby released).
D) The trial court in coming to its decision, wrongly disregarded the fact that an overwhelming majority of the Appellant’s creditors supported the scheme of arrangement.
E) The ruling is against the weight of evidence.
F) The trial court erred in not staying execution and setting aside the order that the Applicant be wound up since in law, the scheme of arrangement approved by the High Court, Accra, Commercial Division, upon coming into force was binding on all creditors of the Appellant including the petitioner/respondent.
The judgment appealed from can be found at page 568 to page 582 of the appeal record, and the notice of appeal, as amended, appears as the last three pages of the Addendum to the appeal record.
To support the appeal, Counsel for the Appellant has, in his filed submissions, raised two main issues for discussion. These are in respect of what he has described as the binding effect of an approved scheme of arrangement on all creditors, and the exercise of the trial Court’s discretion in ordering the winding up of the Appellant. The issue as to the binding effect of an approved scheme of arrangement is discussed under grounds B, C and F of the appeal, and the discussion on the exercise of the trial Court’s discretion is done under grounds A and D.
In arguing grounds B, C and F, Counsel observes that by express statutory provision, the Respondent as one of the creditors to whom the scheme of arrangement applies, is bound by the terms of the scheme, as confirmed by the Court. For this reason, the Respondent cannot seek to impeach the scheme by obtaining an order for the winding up of the Appellant. In the view of Counsel, permitting the Respondent to obtain a winding up order against the Appellant will amount to supporting him to defeat a scheme of arrangement which has been duly confirmed by the Commercial Court.
In the view of Counsel, the refusal of the trial Court to set aside the winding up order and its order extending the effective date of the winding up order had no legal justification. This is because the trial Court had found as both fact and law that the scheme of arrangement had come into effect and, having done so, the Court could not properly hold that the Respondent was entitled to proceed to levy execution in disregard of the terms of the approved scheme of arrangement.
Counsel observes that by the express terms of section 231(4) of the Companies Act, 1963, (Act 179), upon confirmation of the scheme of arrangement, the scheme as confirmed, became binding on all members and creditors of the Appellant. It did not matter that the Respondent had notice but chose not to take part.
The Respondent had been aware that proceedings had been commenced in the Commercial Court for the approval of the scheme of arrangement as required by law and, indeed, in these proceedings, the position of the Respondent had not been that there was no scheme of arrangement. The case of the Respondent had always been that the coming into force of the scheme was no bar to the Respondent enforcing the judgment by petitioning for the winding up of the Appellant.
Counsel observes that the trial Court considered that notwithstanding the express terms of section 231(4) of Act 179, the scheme of arrangement was not binding on the Respondent, since it did not take part in the creditors’ meeting. In the view of Counsel, however, the fact that the Respondent did not take part in the meeting at which the scheme of arrangement was confirmed does not make it less binding on it. In support of this position, Counsel cites the cases of Fehily and Another Vs. Atkinson and Another  EWHC 3069(Ch.), and Bond Corporation Holdings Ltd. Vs. State of Western Australia (No.2) 7 WAR 61.
Counsel quotes the words of section 231(4) of Act 179 and contends that, having found as a fact that the scheme of arrangement had been confirmed and come into force, the trial Court was bound to give effect to the section.
Counsel notes that section 231(4) of Act 179 has not received judicial pronouncement in Ghana. He however considers that the section is in para materia to section 425(2) of the United Kingdom Companies Act of 1985, which is in the following words:
“If a majority in number representing three-fourths in value of the creditors or class of creditors or members or class of members (as the case may be), present and voting either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement, if sanctioned by the court, is binding on all creditors or the class of creditors or on the members or class of members (as the case may be), and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company.”
Counsel says this provision has been considered in a number of cases in the UK, including Barclays Bank plc and Others Vs. British and Commonwealth Holdings plc.  BCC 19, Re Wisepark Ltd.  BCC 221, and the decisions confirm the binding force of the scheme of arrangement on the creditors of the company.
Counsel contends that once confirmed by the Court, the scheme of arrangement is binding on all the creditors of the company and takes effect as a contract between the debtor, in the case of the Appellant, and those of its creditors who are bound by its terms under statute. In the view of Counsel, the provision in section 231(4) of our Companies Act that the validity of the scheme of arrangement “shall not subsequently be impeached in any proceedings” means that the scheme once confirmed is a “closed book” as between the debtor-company and all creditors or class of creditors or on the members or class of members.
In arguing grounds A and D of the appeal, Counsel notes that in the present case, by section 231(4) of Act 179, the scheme of arrangement as confirmed by the Commercial Court was binding, and that an overwhelming majority, over 75%, of the Appellant’s creditors had voted in favour of the scheme of arrangement rather than winding up.
Counsel contends that in these circumstances, the trial Court erred in ordering the winding up of the Appellant by 31st December, 2014.
Counsel refers to section 4 of the Bodies Corporate (Official Liquidation) Act, 1963, (Act 180), under which the winding up petition was brought and acknowledges that the court’s power to make a winding up order was discretionary. Counsel contends however that the Court’s discretion was wrongly exercised in the present case. Counsel considers that a winding up order on a creditor’s petition is not for that creditor’s benefit alone and that for this reason, in considering a winding up petition, a court should have regard to the wishes of other creditors.
Counsel sees in the decision of the trial Court in the petition before it a failure to give consideration to the fact that an overwhelming majority of the creditors of the Appellant had voted for the scheme of arrangement rather than a winding up. In the view of Counsel, if the trial Court had given due consideration to the fact that an overwhelming number of creditors were in favour of the scheme of arrangement as against the Respondent, who was standing alone, the trial Court would not have ordered the winding up of the Appellant. Counsel for the Appellant cites the case of Crentsil Vs. Crentsil  2 GLR 171 (175) and contends that where in the exercise of its discretion, a court acts under a misapprehension of fact in the sense that it gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, an appellate court will be entitled to interfere with the exercise of that discretion.
No submissions are specifically made under the general ground, that is ground E, that the decision is against the weight of the evidence. On the bases of the submissions made under grounds A, B, C, D and F however, Counsel for the Appellant submits that the appeal ought to be upheld, and he invites this Court to intervene and reverse the Order of the trial Court ordering the winding up of the Appellant.
Counsel for the Respondent however thinks otherwise. He contends, for example, that the position taken by the Appellant that the scheme of arrangement, once confirmed by the court, is a “closed book” as between the debtor-company and all creditors, is not tenable, having regard to the provisions of section 232(1) of Act 179. In his view, in view of section 232(1) of Act 179, even where the court has confirmed a scheme of arrangement, the court may subsequently make provision for pending legal proceedings against any transferor company, make provision for persons who have dissented from the scheme of arrangement, and also make provision for other incidental, consequential and supplemental matters.
On the exercise of discretion by the trial Court, Counsel for the Respondent contends that the trial Court took all the relevant circumstances into account in refusing to set aside the winding up order. The Court properly exercised its discretion in arriving at its decision and the Appellant has shown no exceptional circumstances that warrant this Court’s interference with the trial Court’s exercise of its discretion.
In further arguing against the appeal, Counsel for the Respondent contends that since the Respondent’s judgment in Suit No. AC 737/13 has not been set aside, the Respondent is entitled to enjoy the fruits of that judgment. Towards this end, the Respondent is entitled to take any legal step in execution of that judgment, and the provisions of Act 179 under which the scheme of arrangement has been made is no bar to the Respondent pursuing its constitutional right.
In the view of Counsel, the position that a judgment creditor is entitled to the fruits of its judgment by way of execution has been confirmed by the Supreme Court in Civil Appeal No. J4/16/2016. He also contends that the said decision also shows that the decision of the trial Court that the Respondent is entitled to execute its right to enjoy the fruits of its judgment by seeking an order to wind up the Appellant in spite of the confirmation of the scheme of arrangement, is correct. Counsel urges this Court to follow the decision of the Supreme Court and dismiss this appeal.
Counsel for the Respondent considers that the Supreme Court settles the issues between the Appellant and the Respondent when it states in its decision in Civil Appeal No. J4/16/ 2016, (a) that “the available evidence shows that the appellant had already obtained judgment and had, indeed, exercised the rights conferred on it under the Bodies Corporate(Official Liquidation) Act 1963 (Act 180) to wind up the respondent company for being unable to pay its debts to the appellant”, and (b), that “We must say that the was clearly in order as no inhibitions were placed on the appellant to cause the winding up of the respondent company”. Counsel accordingly invites this Court to follow the decision of the Supreme Court in Civil Appeal No. J4/16/2016, in accordance with article 129(3) of the 1992 Constitution and dismiss this appeal.
Counsel also refers to clause 9 of the Scheme of Arrangement and observes that the effect of that clause is that if the Appellant is liquidated, the scheme of arrangement will still be effective and implemented. He contends that in view of this, the winding up of the Appellant would not cause any injustice and would be an act within the terms of the scheme of arrangement.
Referring to that part of ground C of the appeal which contends that there is a valid and operational scheme of arrangement in place which binds the Respondent and which provides for payment plans for all creditors of the Appellant (including the Respondent), Counsel notes that, in reality, there is no payment plan for the Respondent in respect of the judgment debt. He refers to clause 4 of the Scheme of Arrangement and contends that the provisions of the Scheme demonstrate that there is in fact no payment plan for the Respondent. In the view of Counsel, the trial Court exercised its discretion properly when it ordered payment by instalments.
In his reply to the submissions filed on behalf of the Respondent, Counsel for the Appellant contends that the text of section 232(1) of Act 179 does not bear the contention by Counsel for the Respondent that the section contemplates that orders can be made with respect to those who dissent from the Scheme of Arrangement and for other incidental matters. In his view, it has a limited application and applies only where the assets of the Scheme Company are transferred to a new entity, being the “transferee company”.
Counsel considers that the scheme which was effected by the Appellant’s parent company is not the type contemplated in section 232(1). The scheme effected by the Appellant’s parent company did not entail the transfer of the Appellant to another company.
To the argument that since the judgment in Suit No. AC.737/13 had not been set aside, the Respondent was entitled to execute it, Counsel for the Appellant responds that there is no need to first set the said judgment aside before section 231(4) of Act 179 would take effect. The section provides that upon confirmation, the Scheme of Arrangement will be binding on “all creditors”. The fact that the judgment in Suit No. AC.737/13 has not been set aside does not derogate from the fact that section 231(4) of Act 179 applies to the Respondent, since the Respondent is, no doubt, a creditor.
Counsel in his reply also rejects the contention of Counsel for the Respondent that the Supreme Court had determined the issue whether a judgment creditor is entitled to enforce its judgment notwithstanding the existence of a scheme of arrangement confirmed by the court subsequent to the judgment debt arising. In the view of Counsel, the statement by the Supreme Court in respect of the right of the Respondent to enforce its judgment could at best be described as an obiter.
It is further contended by Counsel that that statement was made per incuriam, since it did not have the benefit of the full suite of arguments on the issue, that is, as set out in the Appellant’s submissions. The Supreme Court did not therefore advert to the express words of the relevant statutory provision, which is section 231(4) of Act 179.
From the submissions filed by Counsel for the parties, it is clear that the crucial issue for determination in this appeal is whether, with the approval of the scheme of arrangement by the Commercial Court, the scheme is binding on all creditors of the Appellant in the sense of demanding the setting aside of the judgment in Suit No. AC.737/13 and/or the winding up order made by the Fast Track Court, and/or taking away the Respondent’s right to execute that judgment by having the Appellant wound up.
Now, Counsel for the Respondent has contended that the Supreme Court has settled this issue in Civil Appeal No. J4/16/2016, and he has urged this Court to follow the Supreme Court’s decision and dismiss this appeal in accordance with article 129(3) of the 1992 Constitution. By referring to article 129(3) of the Constitution, the Respondent is contending that the statement by the Supreme Court on the issue is binding on this Court and this Court is therefore obliged to follow it and hold that in spite of the court approved scheme of arrangement, the Respondent is entitled to have the Appellant wound up for the purpose of enjoying the fruits of its judgment.
As we have noted above, however, Counsel for the Appellant has countered that the statement made by the Supreme Court in its decision in Civil Appeal No. J4/16/2016 which the Respondent is putting forward as having settled the issue between the parties, is at best obiter and cannot be justified as a decision or directive made under article 132 of the 1992 Constitution. He has contended further, and in the alternative, that in making the said statement, the Supreme Court did not have the benefit of the full suite of arguments on the issue, and was therefore made per incuriam, with no binding force.
It seems to me from the above that before the core issue in this appeal can be considered, it is necessary for this Court to consider whether the Supreme Court’s statement being relied upon by the Respondent as having settled the core issue was made obiter and or per incuriam.
In Black’s Law Dictionary, 8th Edition, 2004, “obiter” is explained as derived from Latin and meaning “by the way”; “incidentally”; or “in passing”. “Obiter dictum” is explained as “something said in passing”; a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)”.
The Words and Phrases, Permanent Edition, Vol. 29, defines `obiter dicta' or `dicta' as: “opinions of a judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the judge himself”; “opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; It is mere observation by a judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him”; "argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the judge who utters them”.
“Per incuriam” as a concept has been considered by C.C.K. Allen in Law in the Making, and at page 246, he explains “incuria” as meaning literally, “carelessness”.
In Morelle Ltd Vs. Wakeling  2 QB 379 the English Court of Appeal has stated that, as a general rule, the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.
In Huddersfield Police Authority v. Watson  2 All ER 193, Lord Godard CJ considered a decision given per incuriam as a decision given “when a case has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of the case or statute”.
In India, in the case of Siddharam Sattlingappa Mhetre Vs. State of Maharashtra, the
Supreme Court said the following about the concept of per incuriam:
"Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited  All ER 293, the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law”.
Having thus considered some of the meanings often attached to “obiter dicta” and “per incuriam” and their implications, I will proceed to consider the submission by Counsel for the Appellant that the statement made by the Supreme Court in its decision in Civil Appeal No. J4/16/2016 concerning the binding effect of the scheme of arrangement, is at best obiter and or in the alternative, a statement made per incuriam.
In Civil Appeal No. J4/16/2016, the Supreme Court identified as the sole ground set down in the appeal, the contention that “the Court of Appeal wrongly exercised its discretion when it unconditionally granted the respondent/appellant/ applicant/ respondent’s application for stay of execution”. Having identified this as the sole ground of objection in the appeal, the Supreme Court proceeded to consider its merits and came to the conclusion that that appeal ought to be dismissed because the appellant in that appeal had failed to demonstrate where the Court of Appeal wrongly exercised its discretion.
It is noted however that in Civil Appeal No. J4/16/2016, after the Supreme Court had outlined the bases of its decision to dismiss the appeal, it picked up a legal point which the respondent in that appeal had raised in the course of the appeal and decided to consider it, as the highest court of the land. The views expressed by the Supreme Court on this legal point were that the appellant in that appeal had exercised rights conferred on it under Act 180 to wind up the respondent in that appeal for being unable to pay its debts to the appellant, and that the exercise by the appellant of its rights under Act 180 was “clearly in order”, since no restrictions were placed on the appellant in its exercise of that right. In further explanation of its view that the appellant in that appeal was entitled to cause the winding up of the respondent, the Supreme Court stated that the order of the court which made the scheme of arrangement operational was not binding on the appellant because the said order was made in a case different from the appeal. The Supreme Court considered significant the fact that at the time the order which was to make the scheme operational was made, a valid subsisting judgment had already been entered in favour of the appellant, that is, the Respondent in this appeal.
I am in no doubt from my reading of the judgment in Civil Appeal No. J4/16/2016, that in the said judgment, the Supreme Court expressed the view that in spite of the order which made the scheme of arrangement operational, the Respondent in this appeal, was entitled to cause the winding up of the Appellant herein. This, in my view, would justify the decision of the trial Court refusing to set aside the winding up order and would oblige this Court to dismiss this appeal having regard to article 129(3) of the 1992 Constitution.
But, as we have noted above in respect of obiter dicta and the concept of per incuriam, this would be so only if it is determined that the Supreme Court’s view was neither an obiter dictum nor a statement made per incuriam. If it was obiter or per incuriam, this Court would be free to arrive at its own decision as to whether or not the Respondent herein is precluded by the scheme of arrangement from causing the winding up of the Appellant herein.
From my understanding of the concept of per incuriam, I will say straight away that the Supreme Court’s view cannot be considered a view expressed per incuriam. I do not find in the judgment in Civil Appeal No. J4/16/2016, any indication that the decision was given in ignorance or forgetfulness of any case or statute relating to the issue. The available evidence had led the Supreme Court to a consideration of Act 180 and the rights a creditor thereunder can exercise against a company which cannot pay its debts. It is shown on the face of the judgment that the Supreme Court was also cognisant of the provisions of section 231 of Act 179. In my view, if the view of the Supreme Court should not prevail in this appeal, it should not be because that view was expressed in ignorance or forgetfulness of any relevant case or statute.
But the obiter issue, in my opinion, calls for a closer consideration. The Supreme Court’s concluding words in the judgment in Civil Appeal No. J4/16/2016 were as follows: “In sum, these are our reasons for dismissing the interlocutory appeal as clearly unmeritorious”. These words came after the Court had discussed the issue whether the scheme of arrangement became operational when it was confirmed by the Commercial
Court on 15th May, 2014 and was binding on the Respondent herein, and had expressed the view that the scheme however placed no inhibitions on the Respondent herein and that it was in order for the Respondent to exercise its rights under Act 180 and cause the winding up of the Appellant herein. By this, the Supreme Court included in the reasons for dismissing the interlocutory appeal, its view that the Respondent herein was entitled to cause the winding up of the Appellant herein in spite of the scheme of arrangement.
We note however that in the judgment in Civil Appeal No. J4/16/2016, the Supreme Court identified as the only ground set down in the interlocutory appeal the contention that the Court of Appeal wrongly exercised its discretion when it unconditionally granted the application of the respondent (that is, the Appellant herein), for stay of execution. Considering that this is the sole ground in the interlocutory appeal, the view of the Supreme Court that the Respondent herein was entitled to cause the winding up of the Appellant herein in spite of the scheme of arrangement cannot be a view directly addressing the sole ground. It was a view expressed in passing or as an aside and cannot be considered as part of the ratio decidendi in the appeal. It may, in the circumstance, be treated as standing outside the ambit of the operative part of the judgment, and therefore not binding under the principle of stare decisis.
I consider this court obliged, in the circumstance, to make its own determination as to whether the circumstances of the present case entitle the Respondent herein to have the Appellant wound up, in spite of the court-confirmed scheme of arrangement.
In the judgment appealed from, the trial Court acknowledged that by section 231 of Act 179, upon confirmation by the Commercial Court, the scheme of arrangement became binding on all members and creditors of the Appellant, and its validity was unimpeachable in any proceedings within the context of subsection 4 of section 231. The Court noted that, being a scheme confirmed by the Court, it had become an order of the Court which had to be obeyed unless it was set aside.
But the other side of the matter before the trial Court was that the Respondent had also obtained a judgment which had not been set aside and which it had a legal right to enforce. It was for the purpose of exercising this legal right that it had obtained the winding-up order against the Appellant.
In these circumstances, the trial Court saw the application before it as raising, in the main, the issue as to what the effect of the court-confirmed scheme of arrangement should be, in the face of the Respondent’s right to enjoy the fruits of its judgment. So it posed the question, “should the winding up order be set aside because of the scheme of arrangement?” The trial Court weighted the competing claims in favour of the Respondent’s right to enjoy the fruits of its judgment and it accordingly declined to set aside the winding up order. But did the trial Court act right in so doing?
If I understood the trial Court, when it posed the question, “should the winding up order be set aside because of the scheme of arrangement?”, it was wondering whether the scheme of arrangement should be the cause of the setting aside of the winding up order, or whether the scheme of arrangement of necessity entailed the setting aside of the said order. In other words, what is there about the court-confirmed scheme of arrangement that places it above the Respondent’s right to enjoy the fruits of its judgement, which is also derived from court orders?
The Appellant sees section 231(4) of Act 179 as the reason why the court-derived rights of the Respondent must yield to the court-confirmed scheme of the Appellant. I have read this section carefully and I do not find in it any stipulation by virtue of which valid court orders which confer enforceable rights lose their validity or legal force so as to demand their having to be set aside. Of course, the sub-section says confirmed schemes shall be binding on all members and creditors of the company concerned. But, in my view, without the statute saying so expressly, the binding character of the scheme should not automatically translate into the nullification of court orders which confer rights on members or creditors. The binding character or property of the scheme may impose a contractual obligation, as Counsel for the Appellant has submitted, but, in my view, the setting aside or nullification of valid court orders, unless statutorily stipulated, cannot be counted among the remedies against breach of contractual obligations. Also, the subsection says the validity of such schemes shall not subsequently be impeached in any proceedings. But my view, again, is that a stipulation that the scheme shall not be impeached, without more, should not translate into the erasure of subsisting rights, especially rights derived from sources equal to the source from which the scheme of arrangement derives its confirmation and legal force.
To state it in other words, if the Respondent is evincing an intention to breach its contractual obligation under the scheme of arrangement, without section 231(4) of Act 179 saying so expressly, that development does not render the winding up order irregular so as to demand its being set aside. There are remedies against breaches or intended breaches of contractual obligations which the Appellant could have resorted to.
The significance of this position is highlighted in the opinion of the Supreme Court contained in Civil Appeal No. J4/16/2016, which I have held as standing outside the ambit of the operative part of the judgment. Even though I have so held, as a view expressed by the highest court of the land, it has a strong persuasive force and is entitled to the highest degree of respect and attention.
Indeed, in the Canadian case of R V. Henry  3 SCR 609, 2005 SCC 76, Doherty J.A., speaking for a unanimous court, stated, among others, that lower courts “should be slow to characterize obiter dicta from the Supreme Court of Canada as non-binding. It is best to begin from the premise that all obiter from the Supreme Court of Canada should be followed, and to move away from that premise only where a reading of the relevant judgment provides a cogent reason for not applying that obiter. The orderly and rational development of the jurisprudence is not served if lower courts are too quick to strike out in legal directions different than those signalled in obiter from the Supreme Court of Canada”.
In the judgment in Civil Appeal No. J4/16/2016, the Supreme Court observed that the case presented by the confirmed scheme is separate from the other cases, “the other cases” being Suit No. AC/737/13, and the winding up order obtained by the Respondent for the enforcement of the judgment therein. I see this notion of separate existence as grounding the Supreme Court’s view that the scheme of arrangement placed no inhibitions on the Respondent to cause the winding up of the Appellant, and that the winding up “was clearly in order”. I am encouraged to complement this with the observation that the right of the Respondent to enjoy its rights to wind up the Appellant is rooted in the fact of the cases being separate. To my mind, without section 231(4) of Act 179 saying so in respect of rights of the nature and source owned by the Respondent, the obligation under the scheme of arrangement does not cross over into the ambit of the winding up order to demand the setting aside of the winding up order.
If it is in order for the Respondent to cause the winding up of the Appellant, then the trial Court was right in declining to set aside the winding up order, and there is no basis for us to interfere with the trial Court’s decision. The appeal therefore fails and the same is hereby dismissed. Cost of Ten Thousand Ghana Cedis (GH¢10,000) in favour of the Petitioner/Respondent/Respondent.
K. N. Aduama Osei
(Justice of Appeal)
Welbourne I agree Margaret Welbourne
(Justice of Appeal)
Kwofie I also agree Henry A. Kwofie
(Justice of Appeal)