Debates of 21 Mar 2020

MR SPEAKER
PRAYERS 11:40 a.m.
VOTES AND PROCEEDINGS AND THE OFFICIAL REPORT 11:40 a.m.
Mr Speaker 11:40 a.m.
Hon Members, Correction of Votes and Proceedings and the Official Report of Friday, 20th March, 2020.
Mr Speaker 11:40 a.m.
Hon Members, at the Commencement of Public Business, item listed 4 -- Presentation of Papers.
Hon Members, item numbered 4(a) -- Yes, Hon Chairman of the Committee?
Majority Leader (Mr Osei Kyei- Mensah-Bonsu) 11:40 a.m.
Mr Speaker, the Committee of the Whole is yet to meet
on the formulae for the disbursement of National Health Insurance Fund. So, the report is not ready.
Mr Speaker, the Finance and the Local Government and Rural Development Committees are yet to submit the two reports listed as items 4(b) and 4(c).
Mr Speaker 11:40 a.m.
Hon Majority Leader, if that is not ready, can we move on to item numbered 4(b)?
Mr Kyei-Mensah-Bonsu 11:40 a.m.
Mr Speaker that is what I am talking about. Items numbered 4(a), 4(b), and 4(c) are not ready, so the Motions and their consequential Resolutions then cannot be taken.
So we would have to go to item listed as 10.
Mr Speaker 11:40 a.m.
Hon Members, Consideration Stage -- Corporate Insolvency Bill, 2019.
BILLS -- CONSIDERATION 11:40 a.m.
STAGE 11:40 a.m.
  • [Resumption of Consideration from 20/03/2020.]
    • Mr Speaker 11:40 a.m.
    Hon Members, item numbered (i), clause 35. I have been told the Question is to be put.
    Mr Kyei-Mensah-Bonsu 11:40 a.m.
    Mr Speaker, items numbered 10 (i), (ii), (iii) and (iv) are matters that you have stood down for further consultations. So we could begin with item numbered 10(v); that is clause 72.
    Mr Speaker 11:40 a.m.
    Hon Members, clause 72. Yes, Hon Chairman of the Committee?
    Clause 72 -- Notice of appointment
    Mr Kyei-Mensah Bonsu 11:50 a.m.
    Mr Speaker, in clause 72, the sectional note is “notices” and then we would begin with “notice of appointment”.
    Mr Speaker, I beg to move, subclause (1), opening phrase, delete and insert the following:
    “An administrator or a restructuring officer appointed by a company, the liquidator, a secured creditor or the Court shall.”
    Mr Speaker, the other subsections would then follow. So for the preambular, I have added a minor amendment to it by the insertion of the indefinite article “a” between “or” and “restructuring.”
    Question put and amendment agreed to.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (vi).
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, subclause (1), paragraph (a), line 1, after “Registrar” insert “for publication in the Companies Bulletin.”
    Mr Speaker, it would therefore read 11:50 a.m.
    “Lodge a notice of the appointment with the Registrar for publication in the Companies Bulletin before the end of the next working day after the appointment.”
    Question put and amendment agreed to.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (vii).
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, subclause (1), paragraph (b), line 2, delete “not later than three working” and insert “within three”.
    Mr Speaker, the new rendition to paragraph (b) would then be captured as 11:50 a.m.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (viii), still on clause 72.
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, subclause (1), paragraph (c), delete and insert the following:
    “Give written notice of the appointment within seventy-two hours after the appointment to”.
    Mr Speaker, we are deleting the preambular of paragraph (c), not the entirety of (c), so it would read:
    “Give written notice of the appointment within seventy-two hours after the appointment to”.
    Question put and amendment agreed to.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (ix).
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, subclause (1), add the following new paragraph: “publish a notice of the appointment in a daily newspaper of national circulation”.
    Mr Speaker, this amendment would therefore become paragraph (d) of clause 72.
    Question put and amendment agreed to.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (x).
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, add the following new subclause:
    “(2) The Registrar of Companies shall cause to be published in the Companies Bulletin the appointment of the administrator.”
    Question put and amendment agreed to.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (xi).
    Mr Kyei-Mensah-Bonsu 11:50 a.m.
    Mr Speaker, I beg to move, subclause (2),
    lines 2 and 3, delete “as soon as practicable and in any event”.
    Mr Speaker, it would therefore read 11:50 a.m.
    “A secured creditor who appoints an administrator under section 3 shall give written notice of the appointment to the company before the end of the next working day.”
    Question put and amendment agreed to.
    Clause 72 as amended ordered to stand part of the Bill.
    Mr Speaker 11:50 a.m.
    Hon Members, we would move on to the item numbered (xii), clause 73.
    Clause 73 -- Notice of execution of restructuring agreement
    Mr Kyei-Mensah-Bonsu noon
    Mr Speaker, I beg to move, Opening phrase, delete and insert the following:
    “The restructuring officer shall, within fourteen days after a restructuring agreement is executed ....”
    Mr Speaker, it would now read noon
    “The restructuring officer shall, within fourteen days after a restructuring agreement is executed…”
    Question put and amendment agreed to.
    Mr Speaker noon
    Hon Members, the item listed as (xiii)?
    Mr Kyei-Mensah-Bonsu noon
    Mr Speaker, I beg to move, clause 73 -- paragraph (a), after “creditor”, insert “on record”.
    Mr Speaker, it would read noon
    “…send to each creditor on record, a written notice of the execution of the agreement”.
    Mr Speaker, let me say that from the outset, there were some controversies on whether to keep repeating the word, “creditors on record”. At a point in time, we decided to leave it to the draftspersons to either qualify it or leave it as that because if we decide to do that, we should have to go back to the very beginning of the Bill and give recognition to creditors who are recognised by the company and describe them as creditors on record. So that is the essence of this.
    Mr Joseph Osei-Owusu noon
    Mr Speaker, I am surprised that we have come back to this “creditors on record”. I recall that at a point, we agreed that if we start differentiating between creditors on record and other creditors, then, there must be either a definition of who is the “creditor” or who is a “creditor on record”, and therefore, let us leave all at the same level - creditor.
    I am surprised that the Winnowing Committee - unless this one has been done previously, otherwise, I thought we had agreed that we leave it at the creditor without adding the “on record”.
    Mr Kyei-Mensah-Bonsu noon
    Mr Speaker, it is precisely because of that reason that I offered the explanation that at a point in time it was decided that we leave it to the draftpersons to clean up because there was one instance, if the Hon Member would remember, that we stumbled on some others' barking and banging on the door that they are also creditors but they may not be recognised. As to
    how they became creditors, you and I perhaps, may not know.
    So if it is deemed necessary to qualify those of them who are recognised officially as creditors, they should be designated as creditors on record; but if on the other hand, we want to leave it open because we think that the company should recognise every one of them as a creditor on record, then, we do not need that qualification. So we leave it to the draftspersons -- of course with this understanding -- let me move it for the purposes of moving it and if we come to cleaning it up, they would do the cleaning up of everything.
    Mr Speaker noon
    So, are we standing that one down?
    Mr Kyei-Mensah-Bonsu noon
    Mr Speaker, it is stood up; we are not standing it down. I have moved the amendment and as I said, we leave the cleaning-up to the draftpersons just to be consistent with what we have done earlier.
    Mr Speaker noon
    So, should I put the Question on it?
    Mr Kyei-Mensah-Bonsu noon
    That is so, Mr Speaker.
    Question put and amendment agreed to.
    Clause 73 as amended, ordered to stand part of the Bill.
    Mr Speaker noon
    The item listed xiv, clause 74?
    Clause 74 -- Notice of failure to execute restructuring agreement
    Mr Kyei-Mensah-Bonsu noon
    Mr Speaker, clause 73(c)(i), there is no amendment but I just want us to go back to what we just did in clause 72; the construction there is a bit different. Here we have a daily newspaper of national circulation. --[Pause]- Well, Mr Speaker, I think I am wrong; I think it is the same construction. I misread it; so we leave it as that because it is consistent with the language in clause 73(c)(1).
    Mr Speaker, we can go to clause 74 now then.
    Mr Speaker, I beg to move, clause 74 -- opening phrase, redraft as follows noon
    “The restructuring officer shall, where a company does not meet the deadline for the execution of a restructuring agreement....”
    Mr Speaker, the emphasis should be on the subject, and the subject is the “restructuring officer” and that is
    why we are doing that rearrangement. It is about the same thing but we have just twit it so that the subject would be “the restructuring officer” and “the” should commence that construct.
    Question put and amendment agreed to.
    Mr Speaker noon
    The item listed as (xv)?
    Mr Banda noon
    Mr Speaker, I beg to move, clause 74 paragraph (b), lines 1 and 2, delete “as soon as practicable” and insert “for publication in the Companies Bulletin”.
    Question put and amendment agreed to.
    Mr Speaker 12:10 p.m.
    Any further amendments to clause 74 which may not be advertised?
    Clause 74 as amended ordered to stand part of the Bill
    Clause 75 -- Notice of termination by creditors or restructuring agreement
    Mr Kyei-Mensah-Bonsu 12:10 p.m.
    Mr Speaker, in clause 73, when we dealt with the time frame for the execution of the restructuring agreement, we
    Mr Speaker 12:10 p.m.
    Hon Majority Leader, please, is that what you proposed under clause 74?
    Mr Kyei-Mensah-Bonsu 12:10 p.m.
    : Yes, Mr Speaker, it is under clause 74(b) and it relates to the filing of a copy of the notice with the Registrar, so I suggest that it should come with a defined time frame. I do not know how many days or hours that we should give because it is just the filing of a notice with the registrar. So maybe, 72 hours; which is within three days would suffice.
    Mr Speaker, I want to propose that clause 74(b) should now read 12:10 p.m.
    “file a copy of the notice with the Registrar for publication in the company's bulletin within 72 hours''.
    Mr Speaker, I would want to further amend what I proposed
    because it relates to the filing of the notice. So it should rather read:
    “file a copy of the notice within 72 hours with the Registrar for publication in the Companies Bulletin''.
    Question put and amendment agreed to.
    Clause 74 as amended ordered to stand part of the Bill.
    Mr Speaker 12:10 p.m.
    Shall we now consider clause 75?
    Mr Banda 12:10 p.m.
    Mr Speaker, we were on clause 75, when the Hon Majority Leader intervened.
    Mr Speaker, I beg to move, clause 75, paragraph (a), after “creditors'' add “on record''.
    The new rendition would read:
    “send a notice of the termination on each of the creditors on record''.
    Question put and amendment agreed to.
    Mr Banda 12:10 p.m.
    Mr Speaker, I beg to move, clause 75, paragraph (b), line 1, after “notice'' insert “twice''.
    The new rendition would read:
    “publish the notice twice in the daily newspaper of national circulation''
    Question put and amendment agreed to
    Mr Banda 12:10 p.m.
    Mr Speaker, I beg to move, clause 75, paragraph (c), delete “as soon as practicable'' and insert “within fourteen days''.
    Mr Speaker, this is consequential.
    Question put and amendment agreed to.
    Clause 75 as amended ordered to stand part of the Bill.
    Clause 76 -- Notice of fact of administration
    Mr Banda 12:10 p.m.
    Mr Speaker, I beg to move, clause 76 headnote, delete “fact of''.
    The new rendition would be:
    “Notice of administration''.
    Question put and amendment agreed to.
    Mr Banda 12:10 p.m.
    Mr Speaker, I beg to move, clause 76, subclause (1), delete and insert the following:
    “A company in administration shall set out, in each document issued or signed by, or on behalf of the company that indicates or creates a legal obligation of the company, after the name of the company where it first appears the words, “in administration'', for as long as the company is in administration.''
    Mr Speaker, it is a recrafting of subclause (1), in order to achieve some kind of elegance but the sense of the provision does not change.
    Question put and amendment agreed to.
    Mr Banda 12:20 p.m.
    Mr Speaker, I beg to move, clause 76, subclause (2), delete.

    Question put and amendment agreed to.

    Clause 76 as amended ordered to stand part of the Bill.

    Clause 77 -- Notice of change of name.
    Mr Speaker 12:20 p.m.
    There is no listed amendment; Hon Chairman of the Committee, any amendments?
    Mr Banda 12:20 p.m.
    Mr Speaker, there is no advertised amendment but let me finish with this one. Instead of “A contravention of the provisions of…” we can conveniently delete “the provisions of” and simply say:
    “A contravention of section 72 to 77 shall not affect the validity of anything done under section 72 to 77 unless the Court orders otherwise.”
    Question put and amendment agreed to.
    Clause 78 as amended ordered to stand part of the Bill.
    Clause 79 -- Purpose of section 80 to 149
    Mr Banda 12:20 p.m.
    Mr Speaker, with your permission, if I may go back to clause 77 which has already been dealt with in order to effect a couple of amendments.
    Mr Speaker, I beg to move, clause 77, subclause (2), line 3, delete both occurrences of “its” and insert “the” and after both occurrences of “name” insert “the company” and in the same line delete “any” and insert “a”. This would read:
    “Where a company to which subsection (1) applies is in the course of the administration placed in liquidation, the liquidator shall include the former name of the company in a document of the company where the name of the company appears.”
    Mr Osei Bonsu Amoah 12:20 p.m.
    Mr Speaker, the Hon Chairman of the Committee in his submission says that instead of “in any document of the company” we should rather prefer “in a document of the company”. I
    thought “in any document of the company” is better because “any” affects all the documents of the company.
    Mr Banda 12:20 p.m.
    Mr Speaker, we do not have to split hairs over this because “in a document” means any document of the company. The indefinite article “a” is preferable to “any” and which explains why I am trying to substitute “any” with “a”.
    Mr Speaker, the two mean the same thing; it is a distinction without difference.
    Mr O. B. Amoah 12:20 p.m.
    Mr Speaker, I thought we had agreed on it that “any” would cover everything. We might as well say “every document of the company”.
    Mr Kyei-Mensah-Bonsu 12:20 p.m.
    Mr Speaker, with respect to my Hon Colleague from Akwapim South, a document in its singular form with an “a”, we know, that in interpretation, singular connotes plural. So, “in a document” is as good as “in any document” or “in every document”.
    So let us go with “in a document”.
    Mr Speaker 12:20 p.m.
    Very well.
    Question put and amendment agreed to.
    Clause 77 as amended ordered to stand part of the Bill.
    Mr Banda 12:30 p.m.
    Mr Speaker, I beg to move, clause 79 add the following new subclause:
    “Where the Registrar of Companies is appointed as official liquidator, section 80 to 107 shall apply.”
    Question put and amendment agreed to.
    Clause 79 ordered to stand part of the Bill.
    Mr Kyei-Mensah-Bonsu 12:30 p.m.
    Mr Speaker, something just occurred to me and maybe, we could think through it.
    Clause 79 provides:
    “The purpose of sections 80 to 149 is to provide for the official winding up of a body corporate in a manner that results in the maximisation of the realisation of the insolvent estate and the distribution of the insolvent estate having regard to the equitable treatment of stakeholders in the company”.
    Mr Banda 12:30 p.m.
    Mr Speaker, within this context where we are referring to official winding up of the company, the terminology; “insolvent estate” is appropriate. This is because we cannot say that we want to realise an insolvent company, no. We rather realise an insolvent estate and thereafter, distribute the estate. We do not distribute the company but rather an estate.
    So the “insolvent estate” cannot be an insolvent company. Because the “estate” here refers to the assets of the company but not the insolvent company.
    Mr Speaker, within this context, “insolvent estate” is a terminology referring to the state of the estate but not the insolvent company.
    Mr Speaker 12:30 p.m.
    Anyway, shall we make progress? Item numbered (xxv)?
    Mr Kyei-Mensah-Bonsu 12:30 p.m.
    Mr Speaker, what we are going to realise
    will be from the estate of the insolvent body corporate. It is that company that is insolvent but the estate cannot be described as insolvent because insolvent means, ‘unable to pay debts as they fall due' and we are saying that the property is unable to pay debts.
    Mr Speaker, I am not too sure -- we are talking about the insolvent company but it is the state of the insolvent company. Would we describe the property as an “insolvent estate”? That is my worry.
    Mr Banda 12:30 p.m.
    Mr Speaker, insolvent estate is correct. It only means that the debt of the company is greater than the value of the asset left. We are talking about the realisation of the assets of the company and in this particular case, insolvent estate as I have already explained, is where the company finds itself in a situation where it owes more creditors than the value of the assets that it has. That is the insolvent estate and so, what it means is that the official liquidator will then realise the leftover of the company's assets and distribute same according to how much every creditor is owed.
    Mr Speaker, so, we cannot be talking about insolvent company here and I beg to differ.
    Mr Amoako-Attah 12:40 p.m.
    Mr Speaker, I am in full agreement with the position taken by the Hon Majority Leader.
    In dealing with insolvency, there is no way an estate can be insolvent. In talking about the estate of a company, we are describing the assets of that company but insolvency of a company means that putting all the assets of the company against its liabilities. That is, the total value of the liabilities outrun that of its assets so that should any debt fall due, the company will not be in a position to meet those debts. At that stage where a company is incapacitated and cannot meet the demands and requirements from its creditors then the company will have to file for insolvency.
    Mr Speaker, if a liquidator is therefore accordingly appointed, what it means is that the liquidator will be tasked to put together the remaining assets of the company in a way of attempting to defray the outstanding indebtedness and the liabilities of that company.

    So any company which is insolvent can therefore not meet this obligation. It might have run out of liquid cash; its cash flow situation cannot be

    guaranteed. So the liquidator would have to rely on the remaining assets in any attempt to defray the outstanding indebtedness of that company.

    Mr Speaker, the estate of that company cannot be described as insolvent. It is the company itself; a corporate body, so registered which has a legal personality and perpetual succession that cannot continue to operate, and that makes the company insolvent, but it is never the case that the assets of the company can be described as insolvent.
    Mr Speaker 12:40 p.m.
    When you balance the two, the company will fall into a certain category, then you would know whether it is the company which is insolvent or not.
    Dr Kwaku Afriyie 12:40 p.m.
    Mr Speaker, when we talk about insolvency, it means an entity whose liabilities are greater than its assets, so it is a state of being. Sometimes, it can be coterminous with an “estate”. So, we could actually say “an insolvent estate” depending on the context. In this instance, we would have to look at -- [Interruption] -- we can say, “an insolvent estate”.
    Mr Joseph Osei-Owusu 12:40 p.m.
    Mr Speaker, I am quite confused about “estate” in managing a company's
    Mr Speaker 12:40 p.m.
    Hon Chairman, are you advised?
    Mr Banda 12:40 p.m.
    Mr Speaker, I am compelled to be advised, but “insolvent estate” is not a wrong terminology and an “insolvent company” is one that is not able to pay its debts as they fall due. The company may have assets whose value may be greater than the debt that company owes, but that could still make the company insolvent.
    Mr Speaker, when we talk about “insolvent estate”, it comes about when the company is -- compare it to a person -- when the company is
    dead. So when a person dies, the property of the person is referred to as the estate of the person. So we are trying to compare a company to a human being who is dead. Where an estate of a company is referred to as insolvent, what it means is that after putting all the assets and after valuing all the assets and comparing the value of the assets to how much it owes, and the value of the assets of the company is less than the value of the money that it owed its creditors; that is the way I understand it.
    Mr Speaker, but once the House is of the view that we should change insolvent estate to an insolvent company, Mr Speaker, I would go -- [Interruption] -- So what are you saying? -- [Laughter] --
    Mr Collins Owusu Amankwah 12:40 p.m.
    Mr Speaker, respectfully, I beg to defer from the proposition by the Hon Chairman.
    Mr Speaker 12:40 p.m.
    Hon Member, do you defer from the former or the latter position? The Hon Chairman has given us an earlier position and he has modified to the latter. Which one do you differ from? Otherwise, we would not know.
    Mr C.O. Amankwah 12:40 p.m.
    Mr Speaker, a company is declared “insolvent” when it goes into liquidation. If he
    says “insolvent estate”, then it means that when a company is insolvent; how is a liquidator appointed?
    Mr Speaker 12:40 p.m.
    So do you agree to his latter position? The Hon Chairman has shifted, so if you do not agree with his prior position, but with the latter, let us go clearly. In my mind, we agree with the Hon Chairman's latter position.
    Mr O.B. Amoah 12:40 p.m.
    Mr Speaker, I agree with the Hon First Deputy Speaker. We should stick to “insolvent company” instead of “insolvent estate”. I have done a bit of research just now. When we talk about “estate” it is attached to individuals than to corporate bodies. So it is safer for us to stick to “insolvent company” than “insolvent estate”. Indeed, if we look at the interpretation section, “insolvent” means unable to pay debts as they fall due. It is more of a company -- [Interruption] -- Yes, it states more or less when the person is no more.
    Mr Speaker 12:40 p.m.
    Hon Chairman; would you adopt “insolvent estate” and let us move on?
    Mr O. B. Amoah 12:40 p.m.
    Mr Speaker, “insolvent company” or “insolvent estate”.
    Mr Speaker 12:40 p.m.
    When we say the company is insolvent, we all know it.
    So shall we proceed on that pathway?
    Mr Banda 12:40 p.m.
    Mr Speaker, let me amend the rendition to read:
    “The realisation of the assets of the insolvent company and the distribution of the assets of the insolvent company having regard to the equitable treatment of stakeholders”.
    Mr Speaker, I would take the new rendition 12:40 p.m.
    “The purpose of section 80 to 149 is to provide for the official winding up of a body corporate in a manner that results in the maximisation of the realisation of the assets of the insolvent body corporate and the distribution of assets of the body corporate having regard to the equitable…”
    Mr Speaker, I have used “body corporate” because in line 2, the words “body corporate” has been used. So I am only trying to be consistent, so we do not shift from body corporate to company.
    Mr Kyei-Mensah-Bonsu 12:40 p.m.
    Mr Speaker, the body corporate in this context means “a company.” The body corporate is a corporation incorporated in the Republic. It really means “the company”. So I am not too sure whether we have to go back and --
    Mr Speaker 12:40 p.m.
    Hon Chairman, where is the compromised rendition?
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move that we do away with “body corporate” and insert “company”. So the first line would read: “company”, and the subsequent one would also read “company.”
    Question put and amendment agreed to.
    Clause 79 as amended ordered to stand part of the Bill.
    Clause 80 -- Appointment of liquidator to company in administration
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, headnote, delete “to” and insert “for”.
    Mr Speaker, it would therefore read 12:40 p.m.
    “Appointment of liquidator for company in administration.”
    Question put and amendment agreed to.
    Mr Speaker 12:40 p.m.
    Hon Members, we would move on the item numbered (xxvi), by the Hon Chairman of the Committee.
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, clause 80 subclause (1), opening phrase, delete “to” and insert “for”.
    Mr Speaker, it would read 12:40 p.m.
    “A liquidator may be appointed “for a company”, instead of “to a company”.
    Question put and amendment agreed to.
    Mr Speaker 12:40 p.m.
    Hon Members, we would move on to the item numbered (xxvii), by the Hon Chairman of the Committee.
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, clause 80 subclause (5),
    opening phrase, line 1, delete “to” and insert “for” and in line 2, delete “person” and insert “administrator.”
    Mr Speaker, this is consequential.
    Question put and amendment agreed to.
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, clause 80 subclause (5), paragraph (b), line 2, delete “person” and insert “administrator.”
    Mr Speaker, this one is also consequential.
    Question put and amendment agreed to.
    Mr Banda 12:40 p.m.
    Mr Speaker, I have a couple of amendments. Though not advertised, with your leave, I beg to effect an amendment in respect of clause 80 (2), line 3. I beg to move that the first “it”, which is a pronoun should rather read “the court”. The rendition would be: “the court is satisfied that it is in the interest…”.
    Question put and amendment agreed to.
    Mr Speaker 12:40 p.m.
    Hon Chairman, any further amendment on clause 80?
    Mr Banda 12:40 p.m.
    Mr Speaker, clause 80, subclause (4) reads: “the appointment by the Court of a liquidator for a company”. So --
    Mr Speaker 12:40 p.m.
    Hon Members, the Hon First Deputy Speaker would take the Chair.
    [Pause] --
    12.56 --
    MR FIRST DEPUTY SPEAKER
    Mr First Deputy Speaker 12:40 p.m.
    Yes, Hon Chairman of the Committee?
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, subclause (4) of clause 80, in the first line, the word “to” should read “for”. So it would read: “The appointment of the Court of a liquidator for a company…”
    Question put and amendment agreed to.
    Mr Banda 12:40 p.m.
    Mr Speaker, last but not least, clause 80, subclause (2) reads:
    “The Court may adjourn the hearing of the application…”
    The definite article “the” should be used because the word “application” is already mentioned in clause 80(1)(a). So we can conveniently say:
    “The Court may adjourn the hearing of the application under section 86.”
    Mr Kyei-Mensah-Bonsu 12:40 p.m.
    Mr Speaker, clause 80(5) says: “Where a liquidator is appointed to a company…” It should be captured as: “Where a liquidator is appointed for a company in administration...” These are just two minor amendments.
    Question put and amendment agreed to.
    Clause 80 as amended ordered to stand part of the Bill.
    Clause 81 -- Modes of winding- up.
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, clause 81 subclause (1), paragraph (c), delete “of” and insert “to”.
    Mr Speaker, it would therefore read 12:40 p.m.
    “A petition to the Court”, not a petition of the Court.”
    Question put and amendment agreed to.
    Mr Banda 12:40 p.m.
    Mr Speaker, I beg to move, clause 82, subclause (7), line 3, before “court --
    Mr Speaker, has the Question been put on the whole of clause 81?
    Mr First Deputy Speaker 12:40 p.m.
    That was what we were doing. I thought that you were moving another amendment?
    Mr Banda 12:40 p.m.
    Mr Speaker, I have finished with clause 81.
    Mr First Deputy Speaker 1 p.m.
    Very well, then, I would put the Question.
    Clause 81 as amended ordered to stand part of the Bill.
    Mr First Deputy Speaker 1 p.m.
    Clause 82?
    Clause 82 -- Procedure on resolution
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 82 subclause (7), line 3, before “court”, delete “a” and insert “the”.
    Mr Speaker, it then reads 1 p.m.
    “…without the approval of the Court unless it is in the normal course of business”.
    Question put and amendment agreed to.
    Clause 82 as amended, ordered to stand part of the Bill.
    Mr First Deputy Speaker 1 p.m.
    Clause 83?
    Clause 83 -- Procedure on petition to the Registrar
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 83 -subclause (4), line 2, before “satisfied”, insert “the Registrar” and in line 3, delete “its debts” and insert “the debts of the company”.
    Mr Speaker, it reads 1 p.m.
    “The Registrar may alter the official winding up of the company on the petition when the Registrar is satisfied that the company is unable to pay the debts of the company”.
    Question put and amendment agreed to.
    Mr First Deputy Speaker 1 p.m.
    The item listed as (xxxii).
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 83 subclause (5), opening phrase, line 1, delete “not able” and insert “unable” and in line 2, delete “its debts” and insert “the debts of the company”.
    Mr Speaker, the reason is that in the antecedent provision, we used unable and we want to also avoid the use of the possessives. It would then read:
    “For the purpose of section 80 to 148, a company is unable to pay the debts of the company if…”
    Question put and amendment agreed to.
    Mr First Deputy Speaker 1 p.m.
    The item listed as (xxxiii).
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 83 subclause (5), paragraph (a), line 3, delete “Ghana Cedis” and insert “currency points” and in line 5, delete “twenty-one” and insert “thirty”.
    Question put and amendment agreed to.
    Mr Banda 1 p.m.
    Mr Speaker, we are still on subclause (5), paragraph (b)
    -- 1 p.m.
    rose
    Mr First Deputy Speaker 1 p.m.
    Yes, Hon Member for Akim Oda?
    Mr Quaittoo 1 p.m.
    Mr Speaker, in subclause (4), the amendment that the Chairman did in line 2; before “satisfied”, insert “the Registrar”, when we read the rendition, we would not get it right. I think there should be “the Registrar is satisfied”.
    Mr First Deputy Speaker 1 p.m.
    I added the “s” because when he was reading it, he added it.
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 83 subclause (5), paragraph (b), line 1, delete “in the Republic”.
    Question put and amendment agreed to.
    Mr Banda 1 p.m.
    Mr Speaker, I beg to move, clause 83 subclause (7), line 2, delete “it is presented” and insert “the petition is presented to the Registrar”.
    Mr Speaker, it reads 1 p.m.
    “The petitioner shall send a copy of the petition on the company
    on or before the day on which the petition is presented to the Registrar”.
    Question put and amendment agreed to.
    Mr Banda 1 p.m.
    Mr Speaker, just a couple of amendments though not advertised; in subclause (5), paragraph (c), line 2, “its debt” should be amended consequentially. And we have the last one in subclause (6), line 1, “its debt” should also read “the debt of the company”.
    Question put and amendment agreed to.
    Mr Kyei-Mensah-Bonsu 1 p.m.
    Mr Speaker, you put the Question on the entirety of clause 83, to draw the Hon Chairman's attention to clause 83(6). I think a better arrangement should read:
    “The Registrar shall in determining whether a company is unable to pay the debt of the company, take into account, the contingent and prospective liabilities of the company”.
    Mr First Deputy Speaker 1 p.m.
    What did you say it should rather be?
    Mr Kyei-Mensah-Bonsu 1 p.m.
    Mr Speaker, it should rather begin with the subject to read:
    “The Registrar shall in determining whether a company is unable to pay the debt of the company, take into account, the contingent and prospective liabilities of the company”.
    Mr First Deputy Speaker 1 p.m.
    Very well, it is for the consideration of the House.
    Question put and amendment agreed to.
    Mr Kyei-Mensah-Bonsu 1 p.m.
    Mr Speaker, I would also want the Chairman to take a second look at the construction in clause 83(2). In the case of a company with shares, a member is not entitled to present one legal petition unless the shares of the member -- or some of them?
    Mr Banda 1 p.m.
    Some of the shares.
    Mr Kyei-Mensah-Bonsu 1 p.m.
    So we need to clean that one up; the shares of that member or some of the shares. Mr Speaker, perhaps, we could even say unless the shares or some of the shares of that member.
    Mr Banda 1:10 p.m.
    Mr Speaker, I would want to freeze it in the manner suggested by the Hon Majority Leader. However, I would want to begin with “a member''. So it would read:
    “A member of the company with shares is not entitled to present a winding-up petition unless the shares or some of the shares of that member…''
    Mr First Deputy Speaker 1:10 p.m.
    That is much better.
    Question put and amendment agreed to.
    Mr First Deputy Speaker 1:10 p.m.
    Now I would put the Question on the entire clause --
    rose
    Mr First Deputy Speaker 1:10 p.m.
    Yes, Hon Majority Leader?
    Mr Kyei-Mensah-Bonsu 1:10 p.m.
    Mr Speaker, we must go slower because the quartet at the Table Office, are overwhelmed by what we are doing.
    Mr First Deputy Speaker 1:10 p.m.
    Hon Chairman, you may read out your rendition again, for the Table Office to capture it properly.
    Mr Banda 1:10 p.m.
    Mr Speaker, clause 83(2) would read:
    “A member of the company with shares is not entitled to present a winding-up petition unless the shares or some of the shares of that member…''
    Question put and amendment agreed to.
    Mr First Deputy Speaker 1:10 p.m.
    Now I can put the Question on the entire clause 83.
    Clause 83 as amended ordered to stand part of the Bill.
    Clause 84 -- Procedure on petition to the Court
    Mr Banda 1:10 p.m.
    Mr Speaker, I beg to move, clause 84, subclause (6), paragraph (b), line 1 delete “will be'' and insert “is'' and after “company'' delete “should''.
    The new rendition would read:
    “In the absence of any other remedy it is just and equitable that the company be wound up''.
    Question put and amendment agreed to
    Mr Anyimadu-Antwi 1:10 p.m.
    Mr Speaker, I want to find out from the Hon Chairman, whether the expression “contributory'' in clause 84(1)(b) should be allowed? The clause 84(1) reads:
    “The Registrar or any other person who is
    (a) a creditor of the company,
    (b) a member or contributory of the company…''
    Mr Speaker, I am not comfortable with the “or contributory of the company''.
    Mr First Deputy Speaker 1:10 p.m.
    So, who is a “contributory'' to the company?
    Mr Anyimadu-Antwi 1:10 p.m.
    The Hon Chairman of the Committee, was the one who led in drafting of the Companies Act, so I would want to find out if this expression is alright.
    Mr Banda 1:10 p.m.
    Mr Speaker, it is correct. “A contributory member'', is one who sponsored or financed the commencement of the company. It is like a promoter.
    Mr First Deputy Speaker 1:10 p.m.
    Do we have such phrase in the Companies Act?
    Mr Banda 1:10 p.m.
    Yes, Mr Speaker.
    Mr Kyei-Mensah-Bonsu 1:10 p.m.
    Mr Speaker, indeed, in the “Interpretation section'', the word “contributory'' has been defined as:
    “contributory'' includes
    (a) a person(s) liable to contribute to the assets of the company in the event of its being wound up,
    (b) a person alleged to be a contributory for the purpose of the proceedings for determination…''
    Mr First Deputy Speaker 1:10 p.m.
    Very well. So I would put the Question.
    Mr Kyei-Mensah-Bonsu 1:10 p.m.
    Mr Speaker, respectfully, not yet.
    Mr Speaker, even in the opening of clause 84(1) --
    “The Registrar or any other person who is''
    We do not need “any other person who is''. It should read:
    “The Registrar or
    (a) a creditor of the company
    (b) a member or a contributor of the company or
    (c) the Attorney-General may present…''
    The “any other person'', is most unnecessary.
    Mr First Deputy Speaker 1:10 p.m.
    Hon Chairman, I agree with the Hon Majority Leader's proposed amendment.
    Mr Banda 1:10 p.m.
    Mr Speaker, I also agree with the amendment.
    Question put and amendment agreed to.
    Mr Anyimadu-Antwi 1:10 p.m.
    Mr Speaker, if the Hon Chairman could look at the arrangements at clause 84(1) because it starts with “the Registrar'', followed by paragraphs (a), (b) and (c), so if we could put the whole of subclause (1) together.
    So that clause 84(1) would read; “the Registrar'' before paragraphs (a), (b) and (c) could follow. This is because if we only have “the Registrar'', it would read like:
    “The Registrar
    (a) or a creditor of a company.
    Mr Mercer 1:10 p.m.
    Mr Speaker, I agree with what the Hon Member said because the options of the persons who are entitled to bring the application include “the Registrar'', “the creditor, “the member'' and “the Attorney-General''. So he said that why do we distinguish “the Registrar'' from the rest of them in terms of the numbering? His suggestion is that we should put all of it in one sentence to say that:
    “The Registrar, or the creditor or the member of a company or the Attorney-General may present a petition for the purposes…”
    Mr Banda 1:20 p.m.
    Mr Speaker, if we put paragraphs (a), (b) and (c), together
    with clause 84(1), it would be clumsy -- it may even take about two or three lines.

    This is the way that is more convenient, elegant and reader friendly.

    Mr Speaker, it is not trying to put the Registrar ahead of any of them or in any special class differently from paragraphs (a), (b) and (c). In fact, paragraphs (a), (b) and (c) have the locus or capacity just as the Registrar.

    Mr Speaker, I believe that the placement of the Registrar on top of paragraphs (a), (b) and (c) does not make any difference. It is rather better to craft it the way it finds expression in clause 84 (1).
    Mr Anyimadu-Antwi 1:20 p.m.
    Mr Speaker, inasmuch as I am not comfortable, I may want the Hon Chairman of the Committee to consider whether this would cause any mischief? With your permission, I read:
    “84 (1) The Registrar, a creditor of the company, a member or contributory of the company, or the Attorney-General may present a petition to the Court for the official winding-up of the company..”
    Then we delete the paragraphing (a), (b) and (c).
    Mr First Deputy Speaker 1:20 p.m.
    Hon Members, may I share a view? If we look at the original rendition, it appears that the Registrar was supposed to be the person to do it, then the other category of persons are also entitled. So it is only the any other which qualifies the others but it has been deleted. However, very clearly, the Registrar is intended to stand on a class of its own, otherwise, he has no interest in the company.
    It is the Registrar or any other person, who are the creditors, a member or contributory or the Attorney-General who may also bring an application. I think that if we want to capture the same sense, we should let “the Registrar or any other person” stand on its own and the others in another category.
    Mr First Deputy Speaker 1:20 p.m.
    Hon Member for Manhyia North, yes, if you want my attention, stand up. I see you lifting your hand. You are not supposed to do that.
    Mr Collins Owusu Amankwah 1:20 p.m.
    Mr Speaker, respectfully, I do also agree with you in that inasmuch as
    they have the same locus, those listed operate from different offices. The construction must remain.
    Mr Speaker, I would like to appeal to the Hon Chairman of the Committee to look at clause 84 (1), line 6, and to insert “as” after “grounds”. This would clearly identify the paragraphs.
    Mr First Deputy Speaker 1:20 p.m.
    Hon Member, I think the value is the same.
    Mr Amankwah 1:20 p.m.
    Mr Speaker, yes, but “as” makes it more appropriate.
    Mr First Deputy Speaker 1:20 p.m.
    Unfortunately, Hon Member, I do not share the same view.
    Mr Banda 1:20 p.m.
    Mr Speaker, I have a couple of amendments to clause 84 (2) (i), line 1, delete “every” and insert “the” and in line 2, delete “its” and insert “the company”.
    Mr First Deputy Speaker 1:20 p.m.
    What is the difference between “commence” and “carry on” in the phrase “commence to carry on”. I do not think it is an elegant drafting language.
    Mr First Deputy Speaker 1:20 p.m.
    Can you not say, it has not commenced business?
    Mr Anyimadu-Antwi 1:20 p.m.
    Mr Speaker, I have the view that “carrying on” is a continuous process. One must start to continue with the operation of the business. I think it is correct and we do not have to drop it.
    Mr Kyei-Mensah-Bonsu 1:20 p.m.
    Mr Speaker, I believe the more appropriate rendition would be:
    “(a) the company
    (i) does not commence or carry on the business…”
    If it is in business already, it does not continue; if it has not started, it does not commence.
    Mr First Deputy Speaker 1:20 p.m.
    Hon Members, “every” after “carry on” appears to be ill placed; “(i) does not commence or carry on every business…” [Interruption] -- “the business” is all right.
    Mr Ato Codjoe 1:20 p.m.
    Mr Speaker, if we say “commence or carry on”, my understanding is that it refers to two different activities. The entity commenced and stopped or it commenced and carried on.
    Mr First Deputy Speaker 1:20 p.m.
    I think it means, if the entity has not started, it must not; if it is already in business, it should stop.
    Mr Ato Codjoe 1:20 p.m.
    Mr Speaker, if the entity has started and it has stopped --
    Mr First Deputy Speaker 1:20 p.m.
    Kindly listen;
    “(2) The Court may order the official winding-up of a company on a petition presented where (a) the company (i) does not commence or carry on the business which the company is authorised by its constitution to carry on, or....”
    Mr Ato Codjoe 1:30 p.m.
    Mr Speaker, my position is that it gives two meanings; ‘commence' and ‘carry on' --
    Mr First Deputy Speaker 1:30 p.m.
    The whole clause itself does not sound correct.
    Hon Chairman, kindly read it out for all of us starting from (2).
    Mr Banda 1:30 p.m.
    Mr Speaker, somehow there is somewhere in the Companies Act that; where if a company is incorporated and it does not start its business for quite some time, that is a legitimate business to have that company wound up. I think that is the essence being captured here. Maybe, the way the provision has been couched that is where the problem comes from. However, “does not commence to carry on” is not a bad expression because “does not commence” is the first and “carry on” is the second.
    So it means; “does not commence to do business”. That is the sense that this provision is trying to portray. If we separate the expression into; “does not commence or carry on', it will bring out a completely different meaning and that is not the sense that this provision is trying to capture.
    Mr First Deputy Speaker 1:30 p.m.
    Hon Chairman, let us read the whole clause (2) again:
    “The Court may order the official winding up of a company on a petition presented where
    (a) the company
    (i) does not commence to carry on every business which it is authorised by its constitution to carry on, or
    (ii)suspends any of those businesses for a year within a year after its incorporation;”
    Hon Members, does it sound right?
    Mr A.K. Appiah-Kubi 1:30 p.m.
    Mr Speaker, the way I understand it is that the framers are intending to impeach a company to start in the event of an incorporated activity of a company. Let us say, the promoters are in the process of executing the objects of a company, pre- incorporation. So the courts will have the mandate to impeach such activity going forward or if the company is in the process of commencing, a pre- incorporated company then the court's order will stop the commencement.
    Mr Speaker, in the event that a company has been incorporated already here the court order will also impeach the progress of work pursuant to the object of the company.
    So the court is attacking two different activities; ‘incorporation' and continuation of work, if it is incorporated. So pre-incorporation activity --
    Mr A.K. Appiah-Kubi 1:30 p.m.
    Mr Speaker, the way I understand it is that it is a scenario where the company has been incorporated but no work has started or that the company has not started work but it has also not incorporated or better still, the company has started work but has not incorporated. That is, pre- incorporation and so, the company should not start work.
    Mr Speaker, there are situations where the company's promoters start work --
    Mr First Deputy Speaker 1:30 p.m.
    No, we are trying to understand what is here so that if there is the need to
    change it and we get the sense of it and we still need to make a change, then we do it. However, what is here says that:
    “The Court may order the official winding up of a company on a petition presented where
    (a) the company;
    (i) does not commence to carry on the business which it is authorised by its constitution to carry on;
    (ii) suspends any of those businesses for a year within the year of incorporation”
    So in these two circumstance, the court may order a winding up where a petition is presented. It is describing the state of being of a company which is open to being wound up on a court order. I think the wording is right.
    Mr Kyei-Mensah-Bonsu 1:30 p.m.
    Mr Speaker, let us take it from clause 84(1) which is on petition to the court for winding up purposes. It could be done by the Registrar, a creditor of a company, a member or contributory of the company or the Attorney- General.
    Sequel to subclause (1) is (2) and how may this be effected? The first is
    that, one is authorised to do an activity but has not commenced and that person could be asked to wind up.
    The second instance is that, one is in business and perhaps, for whatever reason, the court could ask one to stop carrying on with the business.
    Mr Speaker, the third one is within a stipulated time and that is, within a year of the company's incorporation. One is supposed to be doing something and within that year, one could be stopped. What of, if it goes beyond a year or two, one could still be stopped from carrying on and that is what is tied up in subclause (1).
    So as I see it, there are three scenarios and not two. That is why, “does not commence”, the “to” after it should be deleted with ‘or' to read; ‘does not commence or carry on the business which that company is authorised by its constitution to carry on'.
    Mr Speaker I do not know in that regard, we may want to do Roman numerals (i), (ii) and (iii) and I believe that will be tidier.
    Mr Anyimadu-Antwi 1:30 p.m.
    Mr Speaker, I agree with the Hon Majority Leader save to say that once we go with the ‘or' then there would
    not be the need to keep Roman numeral (ii) because once we say that; ‘does not commence or carry on business', we are saying that if we do not carry on the business it means that they have suspended the activities of the company.
    So I support the Hon Majority Leader in substituting ‘or' for “to” but then there would not be the need to keep the --
    Mr Speaker, what I am saying is that if the first one is split into two to read; “does not commence or carry on business”, we are saying that they do not start the business at all and if we say that they do not carry on business, it means that along the line, they will suspend the operation of the business. That is why the second scenario which says “suspends any of those businesses …| I do not think that will be necessary.
    So once we insert the “or”, we must do away with Roman numeral (ii).
    Mr First Deputy Speaker 1:30 p.m.
    We do not need to, because it is actually talking about two different things. The phrase; “does not commence to carry on the business” means the company does not start to do the business it was registered to do.
    Mr First Deputy Speaker 1:40 p.m.


    That is what we seek to break into two to say that the company did not start the work or did not carry on the work, but “not carry on the work” is what is provided for in subclause (2).

    For example, you could simply let subclause (1) say that “the company does not start to do the business which it is authorised to do.” It is one. The phrase used here is, “…does not commence to carry”, it is same as “it does not start to do”. So, they are in a sense, one thing or one process.

    When we come down, it says “… the business was started…”, but within one year, it was suspended and it has stayed suspended for another year. In that case, it could be wound- up. These are the two scenarios. The third one that you suggested breaks this one - it would be same as the second one.
    Mr Kyei-Mensah-Bonsu 1:40 p.m.
    Mr Speaker, respectfully, it is not. The first one is that you are registered to pursue a business, then it has not started and the grounds to halt operations.
    The second one is that, the person registered to do a certain business and then he deviates to do something else, so he did not carry out that business
    as per the object of the company. That is carrying on the business which it is authorised by its constitution to do and that is the second scenario.
    Mr Speaker, for the third one, you are right. A person registered to carry on some business and just within one year of incorporation, he suspends operations. So in my view, there are three different scenarios.
    Mr Joe Ghartey 1:40 p.m.
    Mr Speaker, I suspect that one of the problems we are facing is that we are using terminology which is relevant to the old Companies Act (Act 179) because if we look at that sentence, in Act 179, when we talk about commence, it is about certificate to commence business and that is evidence of the fact that business has commenced.
    Mr Speaker, under the new Act 992, there is no certificate to commen business. So the first question I asked myself was that what is the evidence that I have not commenced?
    The second thing is that now ultra vires rule is gone. A person does not need to be authorised to carry on any particular business. He could incorporate as a company and carry on any business he wants. In fact for the person to state the authorised
    business is to restrict oneself. So the whole terminology of this sentence is predicated on the old terminology of the old Companies Act where we have a certificate to commence business and where authorised business was so important that if a person went outside his authorised business, he was flouting the ultra vires rule. So that was why perhaps, I heard him use the word “start” instead of “commence” because when you use commence, for the old testament lawyers, we know “commence” is akin to certificate to commence.
    Mr Speaker, perhaps, we could proceed while we spare some time -- we must bear in mind that if the terminology that we want to use has changed, it had different connotations then we must avoid confusing ourselves by the use of “commence” and “authorised business”.
    Now, a person can establish a company without stating his authorised business. So if we say the business which is authorised, it means that a narrow interpretation could be read to mean that it does not affect companies which have not been authorised to carry on any business. I just incorporate my company and take advantage of the fact that now, I am not supposed to state the business I am authorised to -- there is no certificate of commencement. What is the evidence
    that I have commenced or I have not commenced?
    So I would plead that we tarry a bit on this and think through a bit, look at the terminology, so that we do not confuse ourselves. We can go on to do other things.
    Mr Speaker, I think somebody has a different view. There are many views as there are Hon Members of Parliament. This is my view and I would take my seat.
    Mr A. K. Appiah-Kubi 1:40 p.m.
    Mr Speaker, I just called my boss's attention to the fact that you are still limited under the new Act. As we did yesterday, you needed certain authorisation to be able to undertake certain aspects of business. Although we seemed to have an omnibus position to do anything without limiting ourselves to certain objects, we are still limited by certain provisions of law that we cannot do a, b, c and d without the authorisation.
    Mr Speaker, assuming the law we passed yesterday comes into effect and a person is just incorporated, does it give the person unfettered access to do everything? The answer is, no! -- [Interruption] -- the position of the law we created yesterday, if we went into those areas, we need authorisation of Ministers,
    Mr First Deputy Speaker 1:40 p.m.
    That is not a business that the person is registering; it is an activity you intend to undertake.
    Mr A. K. Appiah-Kubi 1:40 p.m.
    When we are registering a business, we are supposed to disclose the extent of business, but again, by operation of law, the person is a stock in doing some other business.
    So, what the Hon Majority Leader means is that assuming the person has been operating and he believes that he has unfettered access to everything and he goes into all those restricted areas. Then there is an application before a court to stop the person from getting into those areas. The court says that under such circumstances the person could be stopped.
    Mr Ghartey 1:40 p.m.
    Mr Speaker, if I could just help the Hon Member?
    Section 5 of the new Companies Act, which was section 7 of the old Companies Act, recognises special legislation and gives examples of banking and insurance. So the company is incorporated as a limited
    liability company whether under the old law or under the present law, and they want to go and establish a bank, they would have to refer to that law.
    Mr Speaker, but if the company does not operate in any area which requires special legislation, then it could just be incorporated as Joe Ghartey Limited provided they do not stray into Free Zones, banking, insurance et cetera -- [Interruption] -- but that is different from authorised business. In the days of old, every company must state its authorised business and they could not go outside their authorised business.
    Mr Banda 1:50 p.m.
    Mr Speaker, we just passed the Companies Act and my senior Hon Joe Ghartey is right because now, if a person wants to incorporate a business, he does not have to restrict himself to objects. In this case, the ultra-vires rule will not apply to that person, but he could still if he wants, upon the incorporation of
    the business restrict himself to objects in which case the ultra-vires rule applies to that person. This is the distinction.
    Mr Speaker, to come back to clause 84(2), the sense that was captured does not start to do business. That is the sense that the current rendition tries to capture. If we try to separate the provision into two, the meaning would change.

    So in order to bring a stop to the confusion that is ensuing, I would want to go by the rendition that you are proposing, in which case clause 84(2)(i) would read: “…Does not start to do the business which the company is authorised by the constitution of the company to do.” This would help to simplify the matter and bring everything to a closure. The Hon Majority Leader agrees now. If not, then what is left?
    Mr Kyei-Mensah-Bonsu 1:50 p.m.
    Mr Speaker, the Hon Minister for Railways Development knows that I have a lot of deference for him, especially, with regard to company law. However, in this particular case, with all respect, I cannot agree with him. I do not want to say that he is wrong, but I cannot agree with him.
    Mr Speaker, if you listened to him, he said that he could do anything, provided he does not veer off - veer off what? Veer off a certain tangent into other areas that are not prescribed by his own constitution. That is the language here, unless we are saying that we should delete it.
    Mr Speaker, with the first one, I am saying that there is a distinction. The first one says: “…Does not start to do the business which the company is authorised by the constitution of the company to do.” The second one also says: “…Does not carry on with the business which the company is authorised by the constitution of the company to do.”
    Mr Speaker, that is why I am saying that one may start - like we did yesterday, for instance, a person may want to go into the cultivation of cassava for the manufacture of maybe cassava dough for starch production. Along the line, if the person veers into the production of cannabis, that cannot be allowed. So the person may have started well, but would have veered into other areas. The person can therefore not be allowed to carry on any longer, on which grounds the person may be forced to wind up.
    Mr Speaker, I would want the Hon O. B. Amoah to add up to what I am saying. This is because he agrees with

    me. If the person veers into other areas - the person might have intended to produce cassava to for instance, feed the Ayensu Starch Factory. The person might have started, but in the first two to three years he might have veered into the production of cannabis because he thought that would be much more profitable. In that case, the person cannot be allowed to carry on.

    Mr Speaker, with the third one, the person might have suspended business a year after incorporation, and then seeks to start again after more than one year of suspension. That is also sufficient ground to order the winding up of the company. That is why I say that as far as this one is concerned, there are three scenarios before us, not two.

    Mr Speaker, I see that the Hon former Attorney-General, lecturer in company law, and indeed an author, nodding his head this time around. I believe he now agrees with me.
    Mr Ghartey 1:50 p.m.
    Mr Speaker, what he does not realise is that with respect, when one nods his head frontwards, it depends on whether one is mimicking Indians or not. When Indians nod their heads frontwards, it means no. I have done so much railway business with them such that
    now when I nod my head frontwards, I rather mean no. So, the Hon Majority Leader should not think that because I nodded my head that way, I agreed with him - I disagreed with him vehemently.
    I think that it is very simple. When one incorporates a company today, one has two choices. He can either state his authorised business -- for instance, he could say that he is authorised to produce starch. One could also incorporate a company which has no authorised business; the person might not even state anything. He may not even state that it is general merchants, he may just incorporate the company.
    When any of these two companies -- for example, if I incorporate a company and say that I would want to go into banking, that does not mean that I have licenses to operate a bank, but I would then have to go through the Bank of Ghana Act and et cetera, and that is special legislation.
    So we are saying that if a person incorporates a company generally with no authorised business, then this section of authorised business does not apply to him. The only section that applies to that company is when he stops doing business. This is because he did not state any authorised business; so he cannot be questioned on the conduction of an authorised
    business. This is because the person has no authorised business. The person's authorised business is everything -- omnibus.
    The Ayensu Starch Company example does not apply to such companies, but I agree with him. Under our Companies Act, one could decide to state his authorised business, but if they do so, then the Ayensu Starch example applies to him. I would want the Hon Chairman of the Committee to take that into account as they redraft or recraft it.
    There are two scenarios - in the first scenario, the Hon Majority Leader is right, but the last scenario is the case where the person does not state any authorised business. If that is so, then how can the person be questioned on why he is not doing his authorised business, when he has not stated any such thing? If the person is not doing any business at all, then he can be -- I think that the Hon Speaker wants to say something, so I would take my seat.
    Mr First Deputy Speaker 1:50 p.m.
    I think that what we are trying to do is to try to interpret what is here. In the interpretation, we seek to interpret another possible scenario. If we intend to add that, then I suggest that we propose that to be added.
    However, as it is now, I suggest that the amendment of the Hon Chairman be made simpler. The phrase: “Does not start to do the work it is incorporated to do” makes it easier, but if we would want to add a scenario where a person is doing something else other than what the person is incorporated to do as a third one, that is also welcome.
    It is 2.00 p. m.; so, I intend to bring proceedings to a close at the end of this one.
    Yes, Hon Chairman?
    Mr Banda 1:50 p.m.
    Mr Speaker, I therefore beg to move that clause 84 (2) (i) reads:
    “Does not start to do the business the company is authorised by the constitution of the company to do.”
    Question put and amendment agreed to.
    Mr First Deputy Speaker 1:50 p.m.
    Hon Majority Leader, if you wish to propose what your interpretation is as an addition, you are entitled to do so.
    Mr Kyei-Mensah-Bonsu 1:50 p.m.
    Mr Speaker, I would propose leading to where we say “suspends any of those businesses”, we sanitise the place to perhaps read “suspend business for a year within a year after the
    Mr Ato Cudjoe 1:50 p.m.
    Mr Speaker, I think that companies may be registered with several businesses as the object. I think that is the idea for why the draftpersons put in the word “any”. This is because the company has five business lines which are not -- [Pause] --
    Mr First Deputy Speaker 1:50 p.m.
    Hon Member, if you have taken your seat, then I would put the Question on the Hon Majority Leader's proposed amendment.
    Question put and amendment agreed to.
    Mr Banda 2 a.m.
    Mr Speaker, a couple of amendments not advertised. -- [Interruption]--
    Mr Kyei-Mensah-Bonsu 2 a.m.
    Mr Speaker, now, I think the former Attorney-General is migrating towards my position. What we are doing now relates to a business which is suspended within a year after its incorporation. What of maybe, into the second or the third year?
    Mr Speaker, they have started operation and have veered into some other areas. That is why I said, let us read the first two so we can have a third leg which says “does not carry on the business which the company is authorised by the constitution of the company to carry on”.
    Mr First Deputy Speaker 2 a.m.
    Hon Majority Leader, if we go to paragraphs (b), (c), (d), (e) and (f), your fears are taken care of; the business or object of the company is unlawful; the company is operating for an illegal purpose; the business being carried by the company is not authorised by its constitution; the company is unable to pay its debts. So all the things you feared that they
    were talking about are actually catered for.
    Mr Ghartey 2 a.m.
    Mr Speaker, I must admit that I do not know whether it is part of the new Companies Act, but under the old Companies Act, the Registrar could strike out one's company where the Registrar is of the view that a company is not carrying on with business any longer. But we seemed to have restricted this power to only one year.
    So after one year, if I carried on business for one year and then, my second, third or fourth year, I go to sleep; I suspend my business, then, what covers it? I am not doing an illegal business; I have members; I am not doing an unlawful business; I am able to pay my debts; but I just simply decided that I am not carrying out the business again because I know that that line of business is not profitable and one year later - I established a business for the purposes of tourism for example, and after one year, because of Coronavirus, I decide that I would not run that business again. The Registrar has noticed that I do not file my returns --
    Mr First Deputy Speaker 2 a.m.
    No, the one year is only in respect of paragraph (a):
    “…does not commence within the period or suspend within one year.”
    So, it is one of the conditions under which the Registrar or creditor or a member or the Attorney-General may apply for it to wound up. So paragraph (b) and others are not related to the first year.
    Mr Ghartey 2 a.m.
    Mr Speaker, I agree with you; I do not want to engage you in discussion or argument. Mr Speaker, but what if it is two years but not one year? Let us imagine for the sake of argument that paragraphs (b), (c), (d),(e), and (f) do not exist; what if it is within two years that I suspend my business? What if I work for one year and in the second year, I suspend my business? And when the Registrar or a member or the Attorney-General comes to attack me, I tell them that in the first year, I was working, and the law says within a year and I have indeed, worked within a year. But now, I am asleep for three years.
    Mr Speaker, I am wondering why maybe, the --
    Mr First Deputy Speaker 2 a.m.
    Paragraph (g) may be applicable.
    “The Court is of the opinion that it is just equitable that the company should be wound up”.
    Mr Ghartey 2 a.m.
    Very well, that is omnibus enough. But I am just wondering if the Hon Chairman could assist us; what was the thinking behind the year? Why is it not two or three years? What made them think that a year is -- ? [Interruption] --
    Mr First Deputy Speaker 2 a.m.
    I seem to think that paragraphs (a)(i) and (a)(ii) contemplate a situation why they consider the company as a non- starter. One got the corporation, one did not do anything or one started within a year, stopped or suspended and for a whole year, the company has not resumed work, so it is considered as a non-starter. And then, there are the other conditions also.
    Question put and amendment agreed to.
    Mr Banda 2 a.m.
    Mr Speaker, I beg to move, clause 84, subclause (3), line 2, delete “its debt” and insert “the debt of the company” and in --
    Mr First Deputy Speaker 2 a.m.
    Hon Chairman, I will give a consequential order.
    Mr Banda 2 a.m.
    Mr Speaker, I beg to move, clause 84, subclause (6), line 4, delete “it” and insert “the Court”.
    So it would read:
    “If the court is of the opinion that…”
    Question put and amendment agreed to.
    Clause 84 as amended, ordered to stand part of the Bill.
    Mr First Deputy Speaker 2 a.m.
    I will further direct the draftspersons to make the appropriate consequential amendments that makes the clause fit for the purpose.
    Hon Members, it is ten minutes past 2.00 p.m.; we have exceeded the 1.00 p. m. we intended to close so, that will bring us to the end of the consideration stage of the Corporate Insolvency Bill, 2019 for today.
    The House is adjourned to Monday, 23rd cMarch, 2020 at 10.00 a.m. in the forenoon.
    ADJOURNMENT 2 a.m.
  • The House was adjourned at 2.08 p.m. till Monday, 23rd March, 2020 at 10.00 a.m.