An analysis of Clipper Leasing Corporation v Attorney-General & Ghana Airways Ltd (in Official Liquidation)[2025] GHASC 27
The Supreme Court’s decision in Clipper Leasing Corporation v Attorney-General & Ghana Airways Ltd (in Official Liquidation), delivered on April 29, 2025, stands as one of the most consequential recent pronouncements on corporate capacity, the effect of striking off a company from the register, and the application of foreign law in Ghanaian courts. The decision did not only resolve a long-running commercial dispute, but also clarified some uncertainties that frequently arise in cross-border corporate litigation.
Background to the Dispute
Clipper Leasing Corporation, an aircraft leasing company incorporated in Antigua and Barbuda, entered into a lease agreement in March 1997 with Ghana Airways Limited for a McDonnell Douglas DC-10-30 aircraft. Alleging breach of contract, Clipper commenced proceedings in the Commercial High Court in Accra in July 2006, claiming outstanding rent, interest, damages, and the return (or value) of the aircraft.
The Commercial High Court partly upheld Clipper’s claim in 2009, awarding US$27 million as the value of the aircraft, damages, and costs. Both parties appealed. While the appeal process lingered, a critical issue emerged: Clipper’s name had been struck off the register of companies in Antigua and Barbuda in June 2004, two years before it issued the writ in Ghana.
This shifted the litigation’s centre of gravity from contract and damages to a fundamental jurisdictional question: did Clipper have legal capacity to sue when it commenced the action?
Proceedings at the Court of Appeal
Ghana Airways, then in liquidation, applied to the Court of Appeal to strike out the entire action. It argued that under Antigua and Barbuda’s International Business Corporations Act, Cap 222, a company that has been struck off the register lacks the legal capacity to institute proceedings.
The Court of Appeal accepted this argument. It held that once Clipper was struck off the register, it ceased to have legal capacity to sue. The Court further held that Clipper’s subsequent restoration to the register in 2014 could not retroactively validate proceedings commenced while it lacked capacity. On that basis, the writ, the proceedings, the judgment of the High Court, and all monies paid pursuant to the judgment were set aside.
Clipper appealed to the Supreme Court, raising three principal issues. First, what is the legal effect of striking a company off the register under Cap 222? Second, does a struck-off company retain the capacity to sue in the absence of formal dissolution? Third, does restoration to the register revive proceedings commenced while the company was struck off?
Underlying these questions was a broader issue of principle. How should Ghanaian courts ascertain and apply foreign law where expert evidence is limited or entirely absent?
The Supreme Court on foreign law
The Supreme Court reaffirmed the settled position under sections 1(2) and 40 of the Evidence Act, 1975 (NRCD 323), that foreign law is a question of fact. In the absence of proof, it is presumed to be the same as Ghanaian law. Although expert evidence is the usual method of proving foreign law, the Court made it clear that the absence of expert testimony does not leave a court helpless.
Where the foreign statute is properly placed before the court, is uncontested, and is expressed in familiar legal language, the court may interpret and apply it. In doing so, judges may draw on common law principles and comparative jurisprudence, adopting a purposive rather than a strictly literal approach to interpretation.
Interpreting Sections 335 and 336 of Cap 222
Sections 335 and 336 of the International Business Corporations Act formed the crux of the dispute. Section 335 empowers the Director to strike a corporation off the register for defaults such as failure to pay prescribed fees, while section 336 provides that, notwithstanding striking off, the liability of the corporation and its officers “continues and may be enforced as if it had not been struck off.”
Clipper argued that because striking off is distinct from dissolution, the company continued to exist and retained capacity to sue. Ghana Airways countered that striking off suspends a company’s legal capacities, preserving only liabilities for the protection of creditors.
The Supreme Court agreed with Ghana Airways.
Key Holdings
Striking off does not dissolve a company, but it suspends its legal capacities.
The Court accepted that dissolution formally ends corporate existence. However, it held that striking off is a statutory sanction that removes a company’s operational and legal capacities, including the capacity to commence legal proceedings.
Section 336 preserves liabilities, not rights. By expressly preserving liabilities, the legislature intended to protect third parties and creditors, not to allow a defaulting company to continue business or litigation as usual. Applying the maxim expressum facit cessare tacitum, the Court reasoned that what is expressly preserved excludes what is not.
A struck-off company may be sued, but may not sue. Section 336 contemplates enforcement of liabilities against the company. It does not contemplate affirmative action by the company.
Restoration to the register does not retrospectively validate acts done while struck off. Unlike statutes in some jurisdictions that expressly provide a “relation-back” effect upon restoration, Cap 222 contains no such deeming provision. Restoration therefore revives corporate status prospectively, not retrospectively.
The Court of Appeal was right to strike out the suit.
The implications of this decision are considerable.
For corporate compliance, the case is a clear warning to companies, particularly foreign entities operating in Ghana. Administrative defaults in a company’s home jurisdiction can have fatal consequences for litigation in Ghanaian courts.
For cross-border litigation, the decision highlights the importance of properly pleading and proving foreign law, while also recognising the interpretive role of the courts where statutory texts are clear and uncontested.
The Court also clarified the important distinction between corporate existence and corporate capacity. A company may continue to exist in law, yet lack the legal capacity to act.
