Título de la propuesta

Upon the commencement of winding up by the court, any disposition of the property of the company, including things in action and any transfer of shares or alteration in the status of the members of the company, shall, unless the court otherwise orders, be void.⁴²⁴ Since a compulsory winding up commences with the presentation of the petition, property which should be available to the creditors may have been disposed of in the period between the time of the presentation of the petition and the making of the winding up order. Hence, to preserve such property for the creditors, it is usually

421 CAMA, op cit, s. 415 (1); Insolvency Act, op cit, s. 129 (1) (UK); Bodies Corporate (Official Liquidations) Act, op cit, s. 13 (Ghana).

422 CAMA, ibid, s. 414 (2); Insolvency Act, ibid, s. 129 (2).

423 Bodies Corporate (Official Liquidations) Act, op cit, s. 13.

424 CAMA, op cit, s. 413; Insolvency Act, op cit, s.127 (UK); Utuk v The Liquidator Utuks Constructions and Marketing Ltd [2011] All FWLR (pt 554) 144 at 159, paras A–B.

106

provided that all dispositions of the company‟s property after the commencement of the winding up are void unless the court orders otherwise.

The purpose of preventing the disposal of property after commencement of winding up of a company and the need for court approval of certain transactions was summarised thus:⁴²⁵

this is a wholesome and necessary provision, to prevent during the period which must elapse before a petition can be heard, the improper alienation and dissipation of the property of a company in extremis. But where a company actually trading, which it is in the interest of everyone to preserve, and ultimately to sell, as a going concern, is made, the object of a winding up petition which may fail or may succeed, if it were to be supposed that transactions in the ordinary cause of its current trade, bona fide entered into and completed, would be avoided, and would not, in the discretion given to the court, be maintained, the result would be that the presentation of a petition, groundless or well-founded, would, ipso facto, paralyse the trade of the company, and great injury, without any counter-balance of advantage, would be done to those interested in the assets of the company.

Unfortunately, the principles governing the exercise of the courts discretion to validate dispositions of property was not provided for in the CAMA or the Rules.

425 A Hicks & S H Goo, Cases and Materials on Company Law (2^ndedn, London: Blackstone Press Limited,1997) p. 629.

107

Hence, the guiding principles considered and approved by the court in Re Gray‟s Inn Construction Co. Ltd⁴²⁶ in the interpretation of section 127 of the Insolvency Act would apply in the court‟s exercise of discretion in respect of the provisions of section 413 of the CAMA. These guiding principles postulated by the court⁴²⁷ are as follows:

i. The discretion vested in the court is entirely at large, subject to the general principles which apply to any kind of discretion, and also subject to a limitation that the discretion must be exercised in the context of the liquidation provisions of the statute.

ii.The basic principle of law governing the liquidation of insolvent estates,

whether in bankruptcy or under the companies‟ legislation, is that the assets of the insolvent company at the time of the commencement of the liquidation will be distributed pari passu among the insolvent‟s unsecured creditors as at the date of the bankruptcy…

iii.There are occasions, however, when it may be beneficial not only for the

company but also for the unsecured creditors, that the company should be able to dispose of some of its property during the period after the petition has been presented, but before the winding up order has been made. Thus, it may sometimes be beneficial to the company and its creditors that the company should be able to continue the business in its ordinary course.

iv.In considering whether to make a validating order, the court must always do its best to ensure that the interests of the unsecured creditors will not be prejudiced.

v.The desirability of the company being enabled to carry on its business was often speculative. In each case, the court must carry out a balancing exercise.

426 [1980] 1 WLR 711.

427 Ibid at 717 – 719.

108

vi.The court should not validate any transaction or series of transactions which might result in one or more pre-liquidation creditors being paid in full at the expense of other creditors, who will only receive a dividend, in the absence of special circumstances making such a course desirable in the interest of the creditors generally.

vii.A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that the petition has been presented would usually be validated by the court unless there is ground for thinking that the transaction may involve an attempt to prefer the disponee, in which case, the transaction would not be validated.

viii.Despite the strength of the principle of securing pari passu distribution, the principle has no application to post-liquidation creditors; for example, the sale of an asset at full market value after the presentation of the petition. That is because such a transaction involves no dissipation of the company‟s assets for it does not reduce the value of its assets.