IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
WEST AFRICA QUARRY LTD.- (Plaintiff/Respondent)
GODFRED SUMABE AND 3 OTHERS - (Defendants/Appellants)
DATE: 18 TH JANUARY, 2018
CIVIL APPEAL NO: HI/5/2018
JUDGES: KUSI-APPIAH JA (PRESIDING), HONYENUGA JA, KWOFIE JA
MR. KWASI BLAY FOR THE 1st AND 2ND APPELLANTS
MISS ABIGAIL TETTEH FOR THE RESPONDENT
MR. EMMANUEL KOFI DARKO WITH HIM EDMOND DIAMOND ADDO FOR THE DIRECTORS OF THE PLAINTIFF/RESPONDENT AND GHACEM
This appeal is against the Ruling of the High Court (Commercial Division), Accra dated the 24th day of January, 2017. In the said ruling, the High Court dismissed the 1st and 2nd defendants/appellants application to attach the properties of the plaintiff/respondents and its Directors for non-payment of the Judgment debt dated the 31st day of July 2015. In this appeal, the 1st and 2nd defendants/appellants would be simply referred to as the appellants and the plaintiff/respondent and the Directors as the respondents.
The facts of this appeal may be stated as that the respondent initiated an action against the appellants and others at the High Court, Commercial Division, Accra claiming inter alia an injunction to restrain them from interfering with the respondent’s quiet possession of the concession and quarry to mine limestone/dolomitic limestone, and refund of GH¢2.3million. The appellants among others counterclaimed, claiming recovery of GH¢1,829,650.00 being outstanding balance on the contract executed by the appellant at the instance of the respondent. The 3rd defendant thereon also counterclaim which left the 4th defendant to only file a Statement of Defence. Upon the close of pleadings, an application for directions was taken and the case was heard to its finality. The learned trial judge in his judgment entered judgment for the appellants and the 3rd and 4th defendants therein, upon their counterclaim for general damages for breach of contract among other claims together with various costs. On the 22nd day of June 2016, the appellants filed a motion on notice for leave to attach the properties of the Directors of the respondent on the grounds that the respondent company failed to pay the judgment debts, that a garnishee order issued against the respondent yielded no more than GH¢674,151.91 and that the appellants had not sighted any valuable movable and immovable properties to be attached to defray the outstanding judgment debt.
The motion was vehemently opposed. Upon hearing both counsel for the parties, the learned trial judge dismissed the motion and another motion to pierce the veil of the respondent based on the principles of company law, that the Directors cannot be held liable and that the corporate veil could not be pierced in aid of execution in the circumstances of the case. It is against this ruling that the appellants have appealed to this court, praying that the ruling be reversed based on the following grounds:
“(i) The learned trial judge erred in the exercise of discretion in refusing the application for leave to attach the properties of Directors and Officers of the plaintiff/respondent company brought under Order 43 Rule 5(1)(bb) of C.I. 47 as amended filed on 11/7/2016.
(ii) The learned trial judge erred in her ruling that the judgment could not be effected against the Directors and Officers of the plaintiff/respondent company because they were not parties to the suit.
(ii) The learned trial judge erred in her failure to give separate rulings in respect of the application filed by the appellants herein and another application filed by the 3rd defendant seeking to pierce the corporate veil in aid of execution filed on 4/7/2016.
(iv) The learned trial judge failed to adequately consider the case of the 1st and 2nd defendants/appellants.
Further grounds of appeal to be filed upon receipt of a copy of the record of proceedings”.
It is noted that further grounds were not filed and they are considered abandoned.
I would consider the ground of appeal as filed and argued by the learned counsel for the appellants. Counsel first argued ground (i) of the notice of appeal and straight away attacked the learned trial judge’s decision for having agreed with a submission that the appellants’ application was incompetent in failing to show that the Order 43 Rule 5(1)(bb) of C.I. 47 relied upon included rules 5(1)(a) and (b) which they conveniently left out in making the application before he followed it with the sub sections (aa), (bb) and (cc) and that alone was sufficient to dismiss the application. Counsel submitted that in making reference to the Rules of Court the entire Rules under the Order are looked at and considered as a whole and not in isolation and therefore the learned trial judge erred in her holding as such. Learned counsel further referred to Order 43 Rule 5, 5(1) rule 9(2) of C.I. 47 and contended that the appellants opted for Rule 5(1)(bb) for leave to attach the properties of the directors and other officers of the respondent company. Counsel referred to Klimatechnik Engineering Ltd. v Skanska Jensen International [2005-2006] SCGLR 913 at 917 Holding 2 and stated therefore that the trial court failed to consider the entire Rule 5 of Order 43 in determining the application and urge this court to allow the appeal. Learned counsel for the appellants stated that there is no doubt that Morten Gode and Thornvaldsen Reider are directors of the respondent. Pages 38 to 43 of the record of appeal indicated the financial statement of the respondent company as Exhibit ‘A’ with the Directors and Ghacem Limited as 100% shareholders. Counsel also referred to Exhibit DM1 on pages 81 to 83 of the record of appeal which showed that Dominik Michel was appointed as Director in place of Reider Thorvaldsen and contended that the appellants cannot be faulted for invoking the jurisdiction of the court to attach their properties to satisfy the judgment debt dated 31/7/2015.
Learned counsel referred to the definition of sequestration and contended that by the rules, the appellants were clothed with jurisdiction to apply with leave for a writ of sequestration against the Directors. He submitted that the trial judge erred in the exercise of her unfettered discretion in dismissing the appellants’ application. Counsel then referred to Article 296(a) and (b) of the 1992 Constitution and submitted that the trial judge contravened the Article 296 of the Constitution by not exercising her discretion by ignoring Order 43 rule 5 as a whole in determining the application. Counsel referred to Kojach Ltd. v Multichoice Ghana Limited [2013-2014] 2 SCGLR 1994 (it should read 1494) Holding 2 in support of the grounds of a court exercising its discretion. Counsel further referred to the Kojach Ltd case and invites this court to interfere with the exercise of the trial court’s discretion.
Further, learned counsel submitted that the Directors were all served with copies of the judgment or order of the court. Counsel submitted that the directors and Ghacem Ltd. have active and constructive notices of the judgment of the court and therefore the trial judge erred in dismissing the application. Counsel further submitted that the directors and Ghacem Ltd. have waived any irregularity by not raising any objection on grounds of non-service and this can be cured under Order 81 of C.I. 47 on Enforcement of Judgment for payment of money. Counsel contended that the judgment of the court which the appellant sought to enforce is for the payment of money by writ of sequestration under Rule 1(1) and there is no gainsaying that the appellants chose to enforce the judgment by relying on Rule 5 of Order 43. Counsel finally submitted that the dismissal of the appellants’ application was most unfortunate and the Honourable trial judge erred in the exercise of her discretion.
Before I address the arguments as stated, I shall quote in extenso the relevant provisions of the High Court (Civil Procedure) Rules 2004 (C.I. 47) namely, Order 43 rules 1(1), 5(1)(aa), 5(1)(bb), 5(1)(cc) and 12(1) respectively as follows:-
“Order 43 rule (1). Subject to these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment into court, may be enforced by one or more of the following means:
(a) Writ of fieri facias;
(b) Garnishee proceedings;
(c) A charging order
(d) The appointment of a receiver;
(e) In a case in which rule 5 applies, an order of committal or a writ of sequestration. 5(1) where
(a) A person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or reduced under
Order 80 rule 4; or
(b) A person disobeys a judgment or order requiring the person to abstain from doing an act, the judgment or order may subject to these Rules be enforced by one or more of the following means:
(aa) a writ of sequestration against the property of that person with leave of the court;
(bb) a writ of sequestration against the property of any director or other officer of the body where that person is a body corporate, with leave of the court; or
(cc) an order of committal against that person or, where that person is a body corporate against any director or other officer.
12(1) Rule 1(1) of this Order with the omission of paragraph (e) and Orders 27, 44 to 47 and 49 shall apply to a judgment or order for the payment of money”.
In my considered opinion, the main issue in this appeal is whether the judgment could be enforced against the Directors who were not parties to the action? At this stage, I wish to address the appellants’ initial complain that the learned trial judge was wrong in agreeing to the submission that the appellants left out the order under which their application was brought but upon moving the application they attempted to rely on Order 43 Rule 5(1)(bb) of C.I. 47. For avoidance of doubt, I would reproduce the motion filed by the appellants on 22/6/16 as follows:-
“Motion on Notice for leave to Attach Properties of Directors
PLEASE TAKE NOTICE that this Honourable Court will be moved by Lawyer for and on behalf of the
1st and 2nd defendants/judgment creditors, the applicants herein praying for leave of the court to issue a writ of fi-fa commanding the sheriff of the court to cause to be made out a writ of attachment on the properties of the Directors i.e. Morten Gade and Shareholders i.e. Ghana Cement Company Ltd. (Ghacem) or other officers of the plaintiff/judgment-debtor company in respect of the judgment debt which the plaintiff company has willfully refused or neglected to pay in terms of the annexed affidavit. AND FOR any further order(s) as to this court may deem fit”.
The relevant paragraphs 4, 5, 6, 7, 8 and 9 of the affidavit in support of the motion is reproduced as follows:-
“4. That the plaintiffs have willfully refused or neglected to pay to the applicants the judgment debt, interest and cost.
5. That we have not sighted any valuable movable and immovable properties to be attached to defray the outstanding judgment debt.
6. That by the plaintiffs’ own showing the director/shareholders of her are Morten Gade, its Managing Director, Thorvaldsen Rider whiles Ghana Cement Co. Ltd. i.e. Ghacem limited is the 100%, shareholders. Please see Exhibit ‘A’.
7. That the Directors/shareholders have sufficient funds and or properties (both movable and immovable) to pay the judgment debt, interest and cost but have willfully refused to pay.
8. That the Directors/shareholders of the plaintiff company are aware of the unsatisfied judgment debt but continue to file frivolous applications to delay the payment and thereby frustrate the applicants in realizing the full compliments of the judgment of the court.
9. In the circumstances I swear to this affidavit in support of the application for the leave of the court for an attachment against the Directors, Shareholders and other officers of the plaintiff company for the payment of the judgment debt, interest and cost referred to in paragraph 2 supra”.
It is thus obvious that the motion was not brought under any specified rule. It is incumbent upon counsel who appear before the courts to state and identify the powers of the court under which the jurisdiction of the court is invoked. This is the yardstick which the court would use to determine its jurisdiction. The Supreme court per Dr. Date-Bah JSC espouced this principle of caution in Ashanti
Goldfields Co. Ltd. v West Chester Resources Ltd. (Consolidated) [2013-2014] 1 SCGLR 398 at page 401 as follows:-
“This court does not have indeterminate and limit less power to straddle the judicial system dispensing orders right, left and centre from its ample powers. Its powers are derived from the Constitution, Statute and practice (including settled rules as to inherent power). Counsel therefore, owes an obligation to identify which of this: Court’s powers he is relying on”.
Counsel for the appellants at the High Court failed to indicate the Order they relied on the motion paper. The learned trial judge was right in her observation at page 209 to 210 of the record of appeal as follows:-
“The question I then ask myself is by what means or process are the applicants attempting to achieve their aim? In respect of the 1st and 2nd applicants, they have attempted to invoke the jurisdiction of the court by relying on Order 43 Rule 5(1) (bb) of C.I. 47 as seen earlier on thus ruling. They have been taken on by the counsel for the Directors of GHACEM for bringing up an incompetent application in failing to show that the Order relied upon included 5(1)(a) & (b) conveniently left out in making this application before it is followed by the sub sections (aa), (bb) and (cc). In as much as I agree with the learned counsel that this alone is sufficient to dismiss the application, I propose to deal with the entirety of the submissions made so at this stage I do proceed”.
The learned trial judge was therefore right in proceeding to further hear and consider the application based on Order 43 Rule 5(1)(bb) of C.I. 47 which counsel for the appellants invoked in moving the application. What is sequestration? The learned author, S. Kwami Tetteh in his book “CIVIL PROCEDURE: A PRACTICAL APPROACH” at page 1007 stated that:-
“Sequestration is a dramatic process for the enforcement of a judgment or order. It freezes the assets of a contemnor for as long as the disobedience of a decision persists. It is available in all cases including matrimonial causes and proceedings against the state. It applies to assets of individuals, corporate bodies or their directors or officers who neglect to comply with a judgment or order directing payment of money into court (Order 43 r.1(2)(b), C.I. 47) or default of a judgment or order restraining an act or directing the performance of an act within a specified time, such as an order that the party or corporate body yield possession of immovable property within a specified time or to deliver possession of movable property within a specified time. It does not however lie for the enforcement of a judgment or order for payment of money. Sequestration is a process in the nature of contempt proceeding. (Emphasis mine)”
As rightly stated by learned counsel for the respondents, order 43 rule 1(e) of C.I. 47 (supra) allows for committal or a writ of sequestration in enforcement of judgment or orders for payment of money where Order 43 rule 5 applies. Order 43 rule 5(1)(bb) under which the appellants’ application was considered provides that where a person required by a judgment or order to do an act within a specified time or neglects to comply, the judgment or order may be enforced by a writ of sequestration against the property of any director or other officer of the body corporate, with leave of the court. However, the judgment or order may also be enforced under Order 43 rule 5(1)(cc) by an order of Committal against that person or where that person is a body corporate, against any director or other officer. There is however, a contradiction, while order 43 rule 1(e) allows the payment of money not being a judgment or order for payment of money into court by committal or a writ of sequestration, order 43 rule 12(1) of C.I. 47 with the omission of Order 43 rule 1(1)(e) allows for enforcement of a judgment or order for the payment of money. In other words, a judgment or order for the payment of money by order 43 rule 12(1) cannot be enforced by a committal or a writ of sequestration. The provisions under Order 43 rule 5(1) are general and relate to the performance or abstention of acts which are not specified in the statute while those in Order 43 rule 12(1) relate specifically to the enforcement of judgment and an order for the recovery of money. The facts in the instant appeal are on all fours with the Supreme Court judgment in Republic v High Court (Fast Track Division) Accra; Ex parte PPE Ltd. & Paul Junc (Unique Trust Financial Services Ltd. Interested Party) [2007-2008] SCGLR 188. The facts in the PPE Limited case were that Unique Trust Financial Services Ltd., the interested party in the proceedings before the court had obtained judgment in the Fast Track High Court, Accra for the sum of (old cedis) ¢1,328,797.91 against PPE Ltd. (hereinafter called the first applicant). After several failed efforts to execute the judgment, the interested party filed an application before the Fast Track High Court, Accra for an order to require the first applicant company to pay the judgment debt within six weeks from the date of the application. The learned High Court Judge (Gyaesayor, J) duly ordered that the debt be paid within the period of six weeks.
Subsequently, when the 1st applicant company failed to comply with the order of the High Court, the interested party, Unique Trust Financial Services Ltd. filed a motion seeking to commit to prison for contempt Mr. Paul Junc, the 2nd applicant, in his capacity as a director of the 1st applicant company for the 1st applicant’s failure to comply with the court order to pay the judgment debt within the said six weeks period.
At the hearing of the motion, counsel for the 1st applicant company and the 2nd applicant, Mr. Paul Junc raised a preliminary objection to it, but the learned High Court Judge overruled it.
Consequently, the 1st and 2nd applicants therefore brought an application before the Supreme Court to invoke its Supervisory jurisdiction to quash the ruling of the learned High Court Judge and to prohibit him from proceeding with the contempt proceedings pending before him. The Supreme Court “held unanimously granting the application for an order of certiorari and of prohibition from hearing the committal proceedings for contempt of court that the provisions in Order 43, r. 5(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) are general and relate to the performance and abstention from acts which are not specified in the rule. However, the provision in Order 43 rule 12(1) of C.I. 47 relates specifically to the enforcement of judgment or order for the payment of money. On the application of the rule of interpretation, i.e. the generalibus specialia denegant (special provisions override general ones), the specific or special provision in Order 43 rule 12(1) takes precedence over the general provision in Order 43 rule 5(1)(cc). The court would construe the provision in Order 43 rule 12(1) as meaning that the option of committal for non-payment of “a judgment or order for the payment of money” has been removed from the jurisdiction of the High Court. In the instant case, the trial court was in grave and fundamental error, which error was patent on the face of the record, when it purported to enforce order 43 rule 5(1)(cc) without reference to Order 43 rule 12(1)”
It is thus clear from the judgment of the Supreme Court that Order 43 rule 12(1) of C.I. 47 had removed the jurisdiction of the High Court to commit for non-payment of a judgment or order for payment of money. Learned counsel for the respondent rightly submitted that in the context of the ex parte PPE Ltd., the applicable rule under paragraph (e) is Order 43 rule 5(1)(bb) and the deletion of paragraph (e) effaced Order 43 rule 5(1)(bb). Moreover, apart from the PPE Ltd. which has ousted the jurisdiction of the High Court to commit for non-payment of a judgment or order for payment of money, I find solace in the learned author S. Kwami Tetteh’s book (supra) which on page 1007 quoted supra also supports the view that a writ of sequestration cannot lie for the enforcement of a judgment or order for payment of money.
Furthermore, a perusal of the motion paper which I have reproduced (supra), indicate that the appellants prayed for a writ of fieri facias (fi.fa) and not a writ of sequestration. A writ of fi.fa is not the same as a writ of sequestration. The learned trial judge ought to have dismissed the motion because it was procedurally flawed. However, as earlier stated, the learned trial judge was right in proceeding to consider the merits of the application. No discretion arises in this matter. Furthermore, the trial High Court did not order the respondents to do an act within a time specified by the judgment which order was flouted and there was no order that required the respondents to abstain from doing an act which they disobeyed. Order 43 Rule 5(1)(a), (b), (aa) and (bb) of C.I. 47 did not invoke the jurisdiction of the trial court. It is my considered opinion that based both on procedural ground and the law this ground of appeal ought to fail and it is hereby dismissed.
The next ground and which is the crust of this appeal is ground (ii) which states that “The learned trial judge erred in her ruling that the judgment could not be enforced against the directors and officers of the plaintiff/respondent company because they were not parties to the suit”. Learned counsel for the appellants did not agree with the Ruling of the learned trial judge that:-
“Also the Directors sought after here, were not parties to the substantive suit therefore enforcing the judgment against them will be out of tune with our legal chords since no personal liabilities have been established against them”.
Counsel’s main argument is that by the terms of Order 43 rule 5 of C.I. 47, the directors and officers of the company against whom a judgment of the court is sought to be enforced need not be parties to the suit. Counsel for the appellants therefore submitted that the trial judge’s Ruling that the directors and officers of the respondent company against whom the judgment is being enforced were not parties to the suit and dismissed the appellants’ application is not supported by any law and should be set aside. This submission is in support of the paragraphs 4 and 8 of the supplementary affidavit of the application for leave to attach properties of Directors as follows:-
“4. That I am informed and verily believe same to be true that under the laws of Ghana, the directors, officers and shareholders of the respondent company, though distinct from the respondent company can be called upon to satisfy the judgment obtained against the respondent company.
8. That the argument that the directors and shareholders of the respondent company were not parties to the suit and cannot therefore be held personal responsible for the acts of the respondent company is wholly misconceived”.
I must state that learned counsel for the appellant’s reliance on Order 43 rule 5(1)(bb) of C.I. 47 had been settled earlier under the first ground of appeal and dismissed.
Now, it is the law that save its regulations after registration, a company has all the powers of a natural person of full capacity to undertake its authorized business. In this capacity, a company is a corporate being, which, within the bounds of the Companies Act, 1963 (Act 179) and its regulations may perform all the duties of a natural person. In its own name, it can sue and be sued and it can owe and be owed legal liabilities. A company once duly incorporated is thus a separate legal personality with a capacity separate, independent and distinct from its members and persons employed by it. This is the cardinal principle of Company Law enunciated in the celebrated case of Salomon v Salomon & Company Limited  AC 22. In the recent case of Soonboon Seo v Gateway Worship Centre  SCGLR 278 Holding 4, the Supreme Court held succinctly that:
“It is clear from the record of appeal that, the second-plaintiff church is a company limited by guarantee and incorporated under the Companies Act, 1963 (Act 179). As a result, pursuant to section 24 of the Companies Act, 1963 it has all the powers of a natural person of full capacity. As such, it is a fully-fledged legal entity, with a personality separate from the natural persons forming it, and with capacity to sue and be sued in its own name. In law, the members of the company have no direct proprietary rights over its assets, the company being the sole owner of its assets. Since it is patent from the record that the subject-matter of the action was being claimed as the church’s asset rather than the joint property of the church and the first plaintiff, there was no reason why the first plaintiff should have been included as a co-claimant”.
It is noted that the appellants conceded in paragraph 4 (supra) of the supplementary affidavit that the Directors, shareholders, officers of the respondent company are distinct from the company in the instant appeal, the Directors among others thus are distinct from the respondent company which has legal personality.
However, the legal personality and its distinct from its members and or directors can be ignored by law and the veil of incorporation could be lifted or pierced to ascribe liability to various individuals or corporations in exceptional circumstances that the company was established to further fraudulent activities, defeat public convenience, justify wrong to avoid contractual liability or defend crime among others. This is known as the alter ego doctrine. Indeed, the learned trial judge stated the law correctly in her Ruling at pages 210 and 211 of the record of appeal thus:-
“I have looked at the plethora of cases that the counsel for the Directors of GHACEM rely on and also researched same and I must admit that it resonates so strongly within all these cases with clarity that a Limited Liability Company or Corporation has its legal existence apart from its Directors and members. It also echoes throughout those cases that seldom will the veil be lifted unless it can be proven in exceptional circumstances that the company has been established to further fraudulent activities to avoid contractual liability. (See the cases of MORKOR VRS KUMA (supra), OWUSU VRS R. N. THORNE (supra), SALOMON (supra), SOONBOON SEO (supra) etc.). It is not the law that, simply because judgment debts remain unpaid by a subsidiary company the mother company or directors must be held responsible …. In the present circumstances I am of the humble view that the applicants have not measured up to the mark by establishing any such wrong conduct on the part of Plaintiff Company nor its directors to enable the veil to be lifted”.
Was the learned trial judge right in dismissing the appellants’ application to hold the Directors liable to pierce the veil in aid of execution? Indeed the learned trial judge cited all the relevant legal authorities in arriving at her decision. In Morkor v Kuma (East Coast Fisheries case) [1998-99] SCGLR 620, the alter ego doctrine was discussed by the Supreme Court and this guided the learned trial judge in her ruling. In this case the plaintiff entered into a sale. The sale agreement was negotiated and witnessed by the 2nd defendant, the Chief Executive Officer, director and shareholder of the company. a deposit was paid by the company, which promised to pay the balance of the purchase price by the end of September 1990. The company however, defaulted in settling the balance of the purchase price. Consequently, the plaintiff, in October 1990, sued both the company and the 2nd defendant jointly in the High Court, Accra for the outstanding balance of the purchase price. Having entered appearance to the writ, both the company and the 2nd defendant filed a joint statement of defence on 20th November 1990.
In March 1991, the plaintiff applied to the High Court for leave to enter summary judgment against the 2nd defendant for the outstanding sum of over US$86,000.00. The defendants jointly filed an affidavit in opposition. However, on24th June 1991, the High Court, in the absence of both defendants and their counsel, granted the plaintiff’ application for summary judgment for the amount claimed. Subsequently, on 19th July 1991, both the company and the 2nd defendant filed in the High Court for a stay of execution of, and an order to set aside the summary judgment obtained against them on 24th June 1991. In the affidavit in support of the application, the 2nd defendant, for the first time, raised the issue of the propriety of her being sued jointly with the company. She averred that since the sale agreement had been executed between the plaintiff and the company and not with her personally, it was wrong for the plaintiff to have sued her, albeit a director of the company, jointly with the company. she also averred that an amount of US$24,427.00 had, in fact been paid to the plaintiff but that amount had not been credited in favour of the company so as to reduce the outstanding debt of the company before the grant of the summary judgment.
The High Court dismissed the application and her appeal against the decision of the High Court to this Court was also dismissed by a majority decision. One of the grounds on which this court dismissed the appeal was that the circumstance of the case justified the lifting of the veil of incorporation surrounding the company and that both the company and the 2nd defendant could be held personally liable together with the 1st defendant company for the outstanding debts of the company.
Not satisfied with the decision of this court, the 2nd defendant appealed to the Supreme Court.
Counsel for the plaintiff argued in support of the decision of this court among others that the 2nd defendant had been sued because she was the chief executive who directed the day to day affairs of the defendant company.
The Supreme Court held among others that since the 2nd defendant had been sued jointly with the company, a limited liability company for the only reason that she was the chief executive, main shareholder and a director of the company, she would be a proper party to the suit only if a specified personal liability were established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the defendant company or vice versa. The Supreme Court considered whether or not a circumstance justifying the lifting of the veil existed depended on the peculiar facts driving each particular case. It however, pointed out that the mere fact that the 2nd defendant was at all times a shareholder, director and manager of the company was not enough to make her personally liable. The Supreme Court reacted to the statement of case by counsel for the 2nd plaintiff who explained that the 2nd defendant was joined “so as to ensure that the respondent collects his money”, the court stated that allowing the veil to be lifted to achieve such and end would mean that “every time a company defaults in the settlement of debts, any person who combines the role of chief executive, shareholder and director would, ipso facto, become personally liable. This would defeat the very essence of business incorporation”. See Akoto v Akoto , SCGLR 533 Holding (3). See also Soonboon Seo v Gateway Worship Centre (supra), Owusu v R. N. Thorne Ltd. & Another  GLR 90, Vicentia Aku Abusa & Ors. v A. K. Deku  48 GMJ 186 CA.
In the light of the authorities, it is clear that a court would not remove the veil of incorporation on the strength of mere assertions which cannot be strongly proved. Indeed, in the instant appeal, the learned trial judge held that mandatorily, any wrongdoing on the part of the company must be established to enable the court lift the veil in order that the ugly face of the erring company is seen. The trial judge further concluded that the appellants did not measure up to the mark by establishing any such wrong conduct on the part of the respondent company nor its directors to enable the veil to be lifted.
In the instant appeal, the reasons given by the appellants for their application in the affidavit in support to have the veil lifted were among others that the respondents have willfully refused or neglected to pay the judgment debt, that they have not sighted any valuable movable and immovable properties to attach, that the directors/shareholders have sufficient funds and or properties but have willfully refused to pay, that the directors are aware of the judgment debt but continued filing applications to delay and thereby frustrate the appellants from realizing the full compliments of the judgment of the court and therefore the Directors, shareholders and other officers of the respondents should be attached.
A perusal of the supplementary affidavit filed by the appellants reveal similar sentiments. A perusal of the grounds on which the appellants wanted the veil of incorporation to be lifted to make the directors to pay the judgment debt are baseless and flawed. There is no evidence that the respondents have established the company to further fraudulent activities or to avoid contractual liability, or have breached the Companies Act, Act 179 among others. From the record of appeal therefore the learned trial judge was right in dismissing the application since no evidence was established to prove that the company was established to further fraudulent activities among others. This ground of appeal fails and it is dismissed as misconceived and incompetent.
I now consider ground (iii) that is “The learned trial judge erred in her failure to give separate Rulings in respect of the application filed by the appellants herein and another application filed by the 3rd defendants seeking to pierce the Corporate Veil in aid of execution filed on 4/7/2016”. Learned Counsel for the appellants contended that the purpose of the two applications was aimed at levying execution against Ghacem Limited and the Directors of the respondent Company, the Trial judge ought to have given separate Rulings on the two applications having regards to the fact that they were filed by different parties and under different Rules of Court. Counsel submitted that it is trite that in situations where cases are even consolidated separate judgments are delivered and that the delivery of a single Ruling in respect of two separate applications initiated by different parties was wrong and amounted to travesty of justice. The learned trial judge resolved both applications in the same ruling at page 209 of the Ruling as follows:-
“I intend to resolve the two applications before this Court i.e. the application on Notice for Leave to attach the Properties of the Directors of GHACEM Ltd. or other officers of the company and that as well to pierce the corporate veil in aid of execution simultaneously. The reason being that they are two sides of the same coin, and with the sole aim of going into execution against GHACEM or its named directors as brought to court. I have studied the respective affidavits filed in support and in opposition to the applications. Likewise I have paid great heed to the learned submissions made by counsel in the matter”
Before I address this ground of appeal, I must state that the appellants complaint that the trial judge was influenced by the submission of counsel for the Directors and Ghacem Limited that the respondent company was distinct from its directors and was unjust to pierce the veil of incorporation merely because the respondent company was unable to settle its debt had been dealt with under ground (ii) and it would be superfluous to do so. Now it is trite that suits initiated separately could be consolidated and dealt with within one judgment and ruling because of their communalities. In the case of Ghana Bar Association & ors v A-G & Anor; Richard Sky v A-G, Kwasi Danso-Acheampong v A-G (Consolidated)  112 GMJ 1 rightly cited by counsel for the respondents, the Supreme Court per Atuguba JSC when confronted with three different suits which were consolidated delivered a single judgment at page 25 as follows:-
“These three suits were separately initiated but by reason of certain basic commonalities between them were subsequently consolidated by the court. We now proceed to dispose of them seriatim”.
Moreover, two motions can be heard together and a single ruling delivered provided the two motions are inextricably intertwined. In Re Yendi Skin Affairs; Yakubu II v Abudulai [1984-86] 2 GLR 239 SC, the Supreme Court heard two motions, one for stay of execution pending appeal and the other for injunction pending appeal but a single ruling was delivered. The Supreme Court spoke through Adade JSC (as he then was) as follows:-
“Civil Motion No. 9/85 is an application by Na Yakubu II, the appellant herein, for an order that execution of the judgment of the Court of Appeal (see In Re Yendi Skin Affairs; Abudulai v Yakubu
[1984-86] 2 GLR 189 CA) be stayed pending appeal. It is brought under rule 20 of the Supreme Court Rules, 1970 (C.I. 13). Civil Motion No. 13/86 is an application by Mahamadu Abudulai, the respondent in the appeal, asking this court to restrain by injunction, Na Yakubu II, the appellant.
“from putting himself as Ya-Na in any name whatsoever and in particular that the said Na Yakubu II shall:
1. Forthwith vacate from, and cease to reside at the Ya-Na’s place at Yendi.
2. Refrain from appointing and/or installing any chief or Gbon Lavia in Dagbon; and
3. Not make any assurance whatsoever and howsoever of any land in Dagbon vested in the Ya-Na”.
As can be seen, the two motions are inextricably intertwined: Motion No. 9/85 is asking that the enforcement of the orders of the Court of Appeal be suspended while No. 13/86 is contrawise, requesting that the said orders be substantially enforced against the appellant, by restraining him from exercising and enjoying some important chiefly powers and privileges inherent in his office as Ya-Na. In the event the two motions were taken together and argued together. In this ruling, in order to avoid confusion, unless otherwise indicated, Ya-Na II will be referred to throughout as the applicant, and Mahamadu Abudulai as the respondent, notwithstanding the particular application being commented upon”.
It is thus a principle of law that a single judgment or ruling could be delivered in consolidated case provided there are commonalities between them and a single ruling could be delivered in several motions provided they are intertwined. In the instant appeal therefore, the learned trial judge was right in hearing both applications and delivered a single ruling. This ground of appeal fails as it is frivolous and it is hereby dismissed.
Having adequately dealt with grounds (i), (ii) and (iii), I deem it unnecessary to consider ground (iv), which in itself does not arise in this appeal.
In conclusion, the appeal is dismissed as unmeritorious. The Ruling of the High Court, Commercial Division dated the 24th day of January, 2017 is hereby affirmed.
C. J. HONYENUGA
(JUSTICE OF APPEAL)
KUSI-APPIAH, J.A. I agree F. KUSI-APPIAH
(JUSTICE OF APPEAL)
KWOFIE, J. A. I also agree HENRY KWOFIE
(JUSTICE OF APPEAL)