Sei sulla pagina 1di 9

Company: as association of a number of individuals formed for a

common propose.

Section I of the 1st Schedule companies Act: a company is a body


corporate formed and registered under that act or an existing
company.

Company may be incorporated or unincorporated: an unincorporated


company does not have a separate entity from its members but a
incorporated company has has a separate legal entitiy.

Business forms

Sole proprietorship and registered business name

The individual typicall registers the business and carries it out bearing
all the liabilities and debts if any of the business venture.

Advantages:

Easy to, inexpensive, ability to commernce business before


registration.

Disadvantage: liability is not limited , it seldom survives the death of


the owner, the life and health of the owner is tied to his business.

Case Baidoo v Sam

Facts: The plaintiff and the defendant are both businessmen resident

at Elmina and Cape Coast respectively.


2. On or about 29 January 1973 the plaintiff and one John K.

Arzumah together registered a business under the name and style of

Unity Salt Industries with the Registrar-General's Department in

Accra. The company was to operate salt industries in Elmina.

3. Some time in March 1974 the plaintiff took a loan from the

offices of Ghanaian Enterprises Commission to run the industry and

has since then been paying instalments towards the eventual

liquidation of the loan.

4. In June 1980 the plaintiff had word that the industry jointly owned

and operated by him and the said John K. Arzumah had been sold to

the defendant without his consent or concurrence.

If the business is conducted in the owners name the name need not be

registered.

The procedure can be found in the Registration of business names Act

1962 (Act 151)

Pointers: Section - 1 - Persons to be Registered.


(1) Subject to the provisions of subsection (2) of this section, there
shall be registered in accordance with the provisions of this Act the
following persons, that is to say,

(a) every individual having a place of business in Ghana who,

(i) carries on business under a business name which does not consist
of his true surname without any addition other than his true first
names or the initials thereof; or

(ii) has either before or after the commencement of this Act changed
his name, except in the case of a woman in consequence of marriage;

(b) every company carrying on business in Ghana under a business


name which does not consist of its corporate name without any
addition.

(2) Registration shall not be necessary,

(a) where the addition referred to in subsection (1) of this section


merely indicates that the business is carried on in succession to a
former owner of the business;

(b) where the business is carried on by a receiver or manager


appointed by a court of competent jurisdiction.
Section - 2 - Manner and Particulars of Registration.

Every person required under this Act to be registered, shall


furnish to the Registrar at his office a statement in writing in the
prescribed form containing the following particulars, that is to
say,

(a) the business name;

(b) the general nature of the business;

(c) the principal place of the business;


(d) all other places at which the business is carried on;

(e) where the registration to be effected is that of an individual,

(i) his present first name and surname;

(ii) his nationality and, if that nationality is not the nationality of


origin, his nationality of origin;

(iii) his usual residence and other business occupation, if any;


and

(iv) whether he is under the age of twenty-one years at the date


of furnishing the statement and, if so, his date of birth;

(f) where the registration to be effected is that of a company, its


corporate name and registered office;

(g) the date of the commencement of the business.

In a nut shell a person must register a business name except it is his

own name he must be 21 and above under Act 151 .

Case: Barclays Bank v Lartey

Facts: during his lifetime, registered the name of his business under

the Registration of Business Names Act, 1962 (Act 151), as "Scarts."

For the purposes of his business, he took a loan from the plaintiffs to

whom he mortgaged, inter alia, his landed property with buildings

thereon as security for the loan. On the [p.283] death of L., his
administrators, the defendants herein, floated a limited liability

company called Scarts Ltd. to take over the assets and liabilities of

the business. The plaintiffs wrote to the defendants demanding

repayment of the loan. When they failed to repay, the plaintiffs caused

to be issued against them an originating summons for an order for

judicial sale of the mortgaged property.

Held: Unlike Act 179, the Registration of Business Names Act, 1962

(Act 151), was not intended to confer any distinct legal personality on

any business name registered under it. The provisions of the Act are a

clear pointer to this. Whilst the provisions of Act 179 refer to the

company, those of Act 151 refer to the individuals registering their

business names. The fact that registration under Act 151 does not

confer perpetual succession on business names registered under it is

borne out by section 10 (1) of the Act. Act 151 protects the exclusive

use and right of the person registering the business name. It is also

clear from the provisions of Act 151 that the registrar deals solely

with the person registering the business name, and this is

understandable because it is only the "business name" which is

registered and someone must be responsible for such registration. I


therefore hold in my ruling that Scarts as registered under Act 151 did

not acquire any legal personality distinct from the person of

Emmanuel Kotoku Lartey who carried on business under that name. I

also reject as untenable the submission that Scarts enjoyed a perpetual

succession under Act 151.

Incorporated private partnership

A partnership in Ghana is an incorporated body of individuals

between two and twenty with unlimited liability who carry on

business jointly with a view of making profit.

Case: Akakpo v Soli

Facts: Section 39 (7) of the Incorporated Private Partnerships Act, 1962 (Act 152),
provides that:

"37. (7) Subject to any agreement between the partners, if the partnership is for an
undefined term or has become a partnership at will in accordance with section 36 of
this Act, a partner may at any time retire from the firm by giving notice in writing to
the other partners of his intention to retire, and thereupon such partner shall cease to
be a partner in the firm as from the date mentioned in the notice as the date of
retirement or, if no date is so mentioned, as from the date of the communication of
the notice."

By a letter dated 18 February 1966, addressed to the manager of their partnership


firm the second defendant informed the management of his, and the third
defendant's immediate retirement as partners. The manager replied that their
"application" was under consideration. However by another letter dated 12 January
1967 the second and third defendants withdrew their letter dated 18 February 1966.
The conduct of the remaining partners however showed that they considered the
letter dated 18 February 1966 to be of no effect and continued the partnership
accordingly. A dispute later arose and the plaintiff, one of the partners, obtained an
order of the High Court directing the defendants to submit themselves to arbitration
in accordance with the partnership agreement. An arbitrator was appointed and he
stated a case to the High Court upon a submission on behalf of the first defendant
that by their letter dated 18 February 1966 the second and third defendants ceased
as from that date to be partners as the said letter could not be recalled.

Held: one of the points of difference between the English Partnership Act, 1890 (53
& 54 Vict., c. 39), and the Incorporated Private Partnerships Act, 1962 (Act 152), was
that whereas the partner in England who insisted on retiring against the will of his
co-partners must be in a position to dissolve the partnership, the latter Act was
designed to avoid this result. Section 39 (7) operated in the manner contended on
behalf of the first defendant only if a retiring partner insisted on his decision to retire
despite all efforts by the others to change his mind if they were of persuasion that
[p.268] he should stay. So that whatever the views of the remaining partners and
however much they wished their retiring partner to stay, if he said that there would
not, there could not be said to be agreement among the partners that the partnership
should continue as it had been. Then according to the law, the retirement dated
from the date of the notice. Upon a consideration of the whole matter in the instant
case, the equities were against the first defendant. It would be wrong to interpret the
law as she wanted it. The conduct of the partners after the letter of 18 February 1966
overwhelmingly favoured the view that that letter was treated by consent by all of
them as of no effect.

Incorporated private Partnership Act, 1962 Act 152, governs

partnership in Gh.

section 3 of Act 152 provides that:

Meaning of Partnership.

(1) Partnership means the association of two or more individuals carrying on


business jointly for the purpose of making profits:

Provided that the association of members of,

Second Sch

(a) a company registered under the Companies Ordinance, (Cap. 193), or any
statutory re-enactment thereof, unless it is re-registered hereunder in
accordance with section 59 of this Act and the Second Schedule hereto;

(b) a company, body corporate, or unincorporated association formed under


any other enactment;
(c) a body corporate formed in accordance with the law of any foreign country
whether or not carrying on business in Ghana; or

(d) a joint venture without a firm name for one or more specific operations,

shall not be a partnership within the meaning of this Act.

(2) Family ownership or co-ownership of property shall not of itself create a


partnership whether or not the family or co-owners share any profits made by the
use of that property.

(3) Subject as aforesaid, the sharing of the net profits of a business shall, prima
facie, be evidence of a partnership, but,

(a) the remuneration of a servant or agent of a person engaged in business by


a share of profits of the business shall not of itself make the servant or agent
a partner; and

(b) a person shall not be deemed to be a partner if it is shown that he did not
participate in the carrying on of the business and was not authorised so to do.

Registration

Section 4Registration of Partnership Firms.

(1) After the expiration of three months from the commencement of this Act, it shall
not be lawful for a partnership to carry on business unless the firm shall have been
duly registered in accordance with section 5 of this Act and not struck off the register
under section 51, 52 or 53 of this Act.

(2) No partnership consisting of more than twenty persons or of which any body
corporate is a member shall be registered under this Act.

Section 5Method of Registration.

(1) Registration under this Act shall be effected in the manner following, that is to
say, there shall be sent or delivered to the Registrar for registration a copy of the
partnership agreement and a statement in the prescribed form signed by all the
partners containing the following particulars, namely,

(a) the firm name of the partnership;

(b) the general nature of the business;

(c) the address and Post Office Box number of,

(i) the principal place of business of the partnership; and

(ii) all other places in Ghana at which the business is carried on;
(d) the names and any former names, residential addresses and business
occupations of the partners;

(e) the date of commencement of the partnership, unless the partnership has
commenced more than twelve months prior to the date of the statement;

(f) particulars of any charges requiring registration under section 25 of this Act
or a statement that there are no such charges,

and where particulars of any charge require registration under section 25 of this Act,
the statement shall be accompanied by the documents required by that section.

Registration of a partnership under Act 151 establishes a corporate

body. Section 12 of Act 152 provides that:

1) From the date of registration mentioned in the certificate of registration issued in


accordance with section 6 of this Act, the firm shall be a body corporate under the
firm name, distinct from the partners of whom it is composed, and capable forthwith
of exercising all the powers of a natural person of full capacity in so far as such
powers can be exercised by a body corporate.

(2) Notwithstanding any changes in the constitution of the partnership, the firm shall
continue to exist as a corporate body until dissolved in accordance with section 51,
52 or 53 of this Act.

(3) Notwithstanding that the firm is a body corporate, each partner therein shall be
liable, without limitation, for the debts and obligations of the firm in the manner
referred to in section 16 of this Act; but shall be entitled to an indemnity from the firm
and to contribution from his co-partners in accordance with his rights under the
partnership agreement

Potrebbero piacerti anche