In re Abamakoro Trading Company Ltd [2012] KIHC 2; Civil Case 147 of 2011 (22 February 2012)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 147 OF 2011

IN THE MATTER OF AN EX PARTE APPLICATION BY MR TIONATAN, THE CHAIRMAN OF THE ABAMAKORO TRADING COMPANY LTD,

AND

IN THE MATTER OF AN EX PARTE APPLICATION PURSUANT TO SECTION 129(1) OF THE COMPANIES ORDIANANCE (CAP 10A) FOR THE OFFICIAL WINDING OF THE ABAMAKORO TRADING COMPANY LTD,

AND

IN THE MATTER OF AN APPLICATION TO HAVE THE REMAINING ASSESTS OF ABAMAKORO TRADING COMPANY LTD DISTRIBUTED.

FOR APPLICANT: BIRIMAKA TEKANENE
Date of Hearing: 21 November 2011 and 22 February 2012

JUDGMENT

This is an application for the official winding of the Abamakoro Trading Company Limited, inherenafter referred to as ATL . The application is filed by the chairman of the ATL, Mr Tabwere Tionatan and is being brought pursuant to section 129(1) of the Companies Ordinance, Cap 10A.

Background of ATL

ATL is a public company. Since 2004 ATL ceased its operation. The Government of Kiribati, being the majority shareholder, sent out a radio announcement to the other shareholders for the purchase of their shares by the Government. Shareholders came and the Government purchased their shares. Since then the Government of Kiribati remained the majority shareholder which then transferred its shares to the Bobotin Kirirbati Limited (BKL). Sometimes after the closure of operation new directors were appointed for the sole purpose of winding up of the company, hence the purpose of this application.

Grounds for the application:

There are four grounds raised to support this application. These are as follows:

1. That the company has ceased operation since 2004;
2. That all legal actions (if any) against the company are Statute Barred;
3. That the company still has some remaining liquid cash; and
4. That company is still on the Register.
   

The affidavit of the Chairperson, Mr Tionatan, confirmed that ATL's operation was ceased in 2004. Paragraph 4 of his affidavit states the purpose of their appointment as directors, that is, to prepare the company for the official winding up. Since their appointment as directors they have worked very hard to collect all information to support their task. According to him ATL does not have any outstanding debt, or if there is one, it would have been statute barred since it is over 6 years now after the company ceased its operation.

Section 129(1) of the Companies Ordinance deals with the official winding up by an order of the Court and it reads as follows:

"A company may be wound up by order of the Court if the Court makes an order for an official winding up following application made to the Court pursuant to section 24, 120, 121 or 124, or if the company is unable to pay its debts, or if the Court is satisfied that it is just and equitable that the company should be wound up."

After careful consideration of the nature and grounds of the application together with the supporting affidavit, this court is satisfied that ATL should be wound up. It is almost seven years now after ATL closed its doors, it is only best for the court to declare it officially wound up.
Ground three deals with the company's remaining cash. According to Mr Ionatan's affidavit, the details are as follows:

Money with ANZ Bank	$7979.64
Money with Punjas (Kiribati) Limited	$14,685.53
Money with Court	$3,529.43

From the above the total amount of remaining cash is $26,194.60.

Counsel for ATL's chairperson made two applications concerning this remaining cash. First, that the two directors are paid for the work they have done since their appointments. He submitted that the two directors have not received any payment or allowance since their appointment in 2004. Chairman cannot remember exact times they have sat in a meeting as directors but he gave an indication of more than 10 times. Second, that the remaining cash be transferred to the Republic as the amount cannot be equally distributed among the shareholders.

The only liability that the company is aware of is the payment of tax to the Government Taxation Office in the amount of $2,810.06. Annex A is referred to as evidence of this. Mr Ionatan deposed that they had not received any update on this. I take this to mean that they are not sure whether or not this has been cleared or settled.

Bearing in mind section 129(2) of the same Ordinance which states as follows:

'where an order is made for the official winding up of a company, the Court shall appoint an official receiver.'

There is a need to appoint an official receiver, laid down by the above rule. The Court is obliged to follow the law. Therefore, pursuant to section 129(2) I hereby appoint Ms Arian Arintetaake, an Assistant People's Lawyer to be an official receiver for this particular case. She will be subject to the supervision of the Court.

On the completion of her work the official receiver shall produce her final accounts and a report of the conduct of the liquidation to the Court. The Court shall signify its approval of such account and report to the Registrar. Pursuant to section 129(8) the dissolution of ATL shall not take effect until the Court has signified its approval.

The Court will reserve its judgment on the applicant's request concerning the remaining cash of ATL until after the official receiver's report is received. In the meantime, it is hereby ordered that ATL's money with the ANZ (Kiribati) Bank and Punjas (Kiribati) Ltd be paid into Court for future disbursement.

Dated ......March 2012

TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT