OSEI - BONSU VRS GHANA COMMERCIAL BANK & BANK OF GHANA

JUDGMENT

DODOO, JA (MRS)

This appeal is against the decision of the High Court (Labour Division); delivered in Accra on 6th December, 2017. The brief facts of the case are that the Plaintiff/Appellant (hereinafter referred to in this judgment as the Appellant) instituted suit against the Defendants/Respondents (hereinafter referred to as the Respondents) on 13th October, 2017 claiming the following reliefs:

1.    A declaration that on a true and proper interpretation of Section 123 of the Banks and Specialized Deposit Taking Institutions Act, 2016 (Act 930), the 2nd Defendant acted unlawfully and in ultra vires its powers in appointing two (2) persons as Receivers when it could appoint only a RECEIVER.

2.    A declaration that the 2nd Defendant acted unlawfully and ultra vires its powers when it entered into a Purchase and Assumption transaction with the GCB Bank, 1st defendant herein to have control over the assets and liabilities of the UT Bank in which the Plaintiff has an employment contract.

3.    An Order of Injunction restraining Messrs. Vish Ashiagbor and Eric Nipa from holding themselves out as Receivers on the basis of the ultra vires action of the 2nd Defendant.

4.    An order declaring the letter of the 1st Defendant dated the 29th September, 2017 as a nullity.

5.    An order of Injunction restraining the 1st Defendant from denying the Plaintiff access to his office and any interference with Plaintiff’s employment contract with UT Bank Ltd.

6.    General Damages against the 1st Defendant for unlawful interference with the employment contract of the Plaintiff.

7.    Any other order/s as the Court may deem fit.

The Appellant’s case was that he brought this action against the Respondents in his capacity as an employee of UT Bank Ltd who stood to litigate his labour rights in his employment contract with the UT Bank. He also described himself as a qualifying as a person affected by the revocation of the licence of the Bank and the incidental Purchase and Assumption Agreement entered into between the 2nd Respondent and the 1st Respondent in respect of the Bank as per the provisions of section 141 (1) (c) and (a) of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930). (pages 2-7 of the Record of Appeal {ROA})

The 1st Respondent’s case is that by section 141 of Act 930 any aggrieved person instituting an action under Act 930 would have to resort to arbitration under the Alternative Dispute Resolution Act, 2010 (Act 798) and not to a court. (See p. 17 of the ROA).

The 2nd Respondent entered Conditional Appearance and did not file its Defence.

Both Respondents filed Applications to set aside the writ and statement of claim. The 2nd Respondent in its affidavit in support of its application stated in paragraphs 3, 4 and 5 (found at pages 14-15 of the ROA) as follows:

3.             That the revocation, appointment of receiver(s) and purchase and assumption agreement were undertaken and/or effect pursuant to sections 123 to 139 of the Banks and Specialized Deposit-Taking Institution Act, 2016 (Act 930) and also with section 141 of Act 930, prescribes that any person who is aggrieved with a decision of the Bank of Ghana (2nd Defendant) in respect of matters under sections 123 to 139 of Act 930 and who desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Act, 2010 (Act 798).

4.             That the plaintiff alleges to be a staff (manager, treasury sales, investment) of UT Bank Ltd and is aggrieved by he appointment of two (2) persons as receivers, and the purchase and assumption transaction entered into by 2nd Defendant and 1st Defendant; and also that, as a person asserting a relief under Act 930, he is necessarily bound to comply with the provisions of the statute, in respect of the form for seeking redress as clearly set out in the statute, and certainly not a resort to this court.

5.             That the jurisdiction of this court has been wrongly invoked, insofar as the instant action is in violation of the mandatory statutory provisions regarding the form for seeking redress of the alleged grievance. In the premises, 2nd defendant prays the court for the grant of an order to set aside the writ of summons & statement of claim.

The 1st Respondent filed a Notice of Preliminary Objection and in its affidavit in support states at paragraphs 8-10, 11, 12 and 13 (see pages 25-26 of the ROA) as follows:

"8.    That I am advised and believe same to be true that under the provisions of the Banks and Special Deposit-Taking Institutions Act, 2016 (Act 930), an aggrieved person has to resort to Arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act 2010, (Act 798).

9.    That I am advised and believe same to be true that by the Plaintiff/Respondent coming to court to seek redress for act(s) of the Bank of Ghana, it exercised under the Banks and Special Deposit-Taking Institutions Act, 2016 (Act 930), in revoking the licence of UT Bank Limited and its consequential effect on the Plaintiff/Respondent is in clear violation of section 141 of Act 930 which he is relying on and doesn’t clothe this Honourable Court with the jurisdiction to deal

with the matter.

10. That I am advised and believe same to be true that the Plaintiff/Respondent in bringing this suit to the Labour Court has failed to demonstrate per his Statement of Claim and Writ of Summons the specific action of the 1st Defendant/Applicant that is contrary to the Labour Act (Act 651) and the particular section of the Act hat has been breached by the 1st Defendant/Applicant.

11. That there is no cause of action disclosed against the 1st Defendant/Applicant in the Plaintiff’s processes filed which is the subject matter before this Honourable Court.

12. That I am advised and believe same to be true that no specific breach of the Labour Act, 2003 (Act 651) has been stated by the Plaintiff/Respondent and that if he is relying on the Banks and Special Deposit-Taking Institutions Act, 2016 (Act 930) as an aggrieved person to seek redress, then the proper forum is at Arbitration under section 141 of Act 930 and not the Labour Court.

13. That I am advised and believe same to be true that the provisions of section 141 of the Banks and Special Deposit-Taking Institutions Act, 2016 (Act 930) are statutory and therefore mandatory."

The trial court considered the affidavits in support and in opposition and come to a ruling and while declining to set aside the writ of summons and statement of claim, stayed proceedings and referred the parties to arbitration. The court relied on section 6(1) of the Alternative Dispute Resolution Act, 2010 (Act 798) which provided that where the court is satisfied that a matter before it has an Arbitration Agreement, the Court shall refer the matter to arbitration.

It is against this ruling that the appeal has been lodged. The amended grounds of appeal are found at pages 36-37 of the ROA and as follows:

i.     The Ruling is against the weight of evidence.

ii.    The learned trial judge exceeded her jurisdiction in ordering arbitration between the Plaintiff and the 1st Defendant when there was no mandatory requirement for such dispute resolution, nor was there an arbitration agreement or written consent to do so.

iii.  That the learned judge erred in her application of Act 798 of 2010 to refer the dispute to arbitration.

iv.  That the learned judge erred in declining to preside over the dispute between the parties on the basis of section 141 of Act 930 when she knew or ought to have known that the said section was inconsistent with Article 140 of the 1992 Constitution and to that extent unconstitutional.

The Appellant’s Submissions

The Appellant contended that while Act 930 gives substantive rights and accords standing to any person affected by the 2nd Respondent’s action in relation to sections 123-139 to initiate arbitration under its section 141, the Common Law and the Labour Act, 2003 (Act 651) accord standing to any person in an employment relationship to initiate proceedings not by way of arbitration but in a court of law. It was therefore their contention, that while Act 930 gave substantive rights, did not exclude the Appellant’s rights under Common Law or the Labour Act to invoke the jurisdiction of the High Court. They further submitted that the jurisdiction of the High Court conferred by Article 140 of the Constitution could not be ousted by Act 930 nor could Act 930 override the exclusionary provisions of the ADR Act, (Act 798) with respect to public interest matters.

The Appellant in his submissions referred to Essilfie and Another v. Tetteh & Ohers (1995-96) 1 GLR 297 per Acquah JA (as he then was) when he said:

Now the right of the individual to resort to the law courts for the adjudication of his dispute is so fundamental in our social structure, and essential in ensuring peace and stability that the courts would not permit this right to be trampled on by vague and prejudicial exclusionary clauses forbidding access to the courts. For inasmuch as society recognizes the right of individuals to enter into agreements of their choice, that right is necessarily limited by the ideals of the general law of the land, morality and social justice. Ideals epitomized in the expression “public policy.”

 

The Appellant also referred to Boyefio v NTHC (1997-1998) 1 GLR 768 where the court had to determine whether section 12 of the Land Title Registration Act (PNDCL 152) operated to oust the jurisdiction of the courts. Section 12 was as follows:

No action concerning any land or interest therein in registration district shall be commenced in any Court until the procedure for settling disputes under this Law have been exhausted.

The Court @ p. 785 had this to say:

The aim of PNDCL 152 was to provide “a machinery for the registration of title to land and interests in land” according to the memorandum to the Law … The powers and jurisdiction given to the Chief Registrar of Lands and the land adjudication committee under PNDCL 152 is circumscribed and limited to only matters relating to the registration of title in accordance with documentary evidence, as clearly indicated in section 22(3), 23(3) and 23(5) of PNDCL 152. Consequently, Section 12(1) of PNDCL 152 does not operate to oust or postpone the exercise of the general civil jurisdiction, including the jurisdiction over all land matters given to the High Court under the Constitution, 1992 but deals with registration of “good title” to land as defined in section 23(5) of PNDCL 152. To interpret section 12(1) of PNDCL 152 so as to oust the jurisdiction of the High Court in the type of case before the High Court, would be not only wrong but also inconsistent with the provisions of articles 125(3) and 140(1) of the Constitution, 1992 relating to the exercise of judicial power and the general jurisdiction of the High Court.

 

The Court was further referred to Republic v. High Court, Accra (Industrial & Labour Division Court 2); Ex parte Peter Sangber-Dery (Civil Motion No. J5/53/2017) where the court held in respect of Article 140 of the Constitution as follows:

That provision is peculiar and special in the sense that only a provision of the Constitution may limit the jurisdiction of the High Court, and not by an Act of Parliament. The legislature may enhance but not diminish the High Court’s jurisdiction by an Act of Parliament. Thus, it seems to us that the legislature could not by Act 651 take away jurisdiction of the High Court in the light of article 140 (1) of the Constitution which grants it jurisdiction in all matters.

Counsel for the Appellant also argued that the learned trial judge erred in her application of the ADR Act (Act 798) to the instant dispute. It was their contention that this matter being one of public interest prevented on same being referred to for arbitration. In reference to section 1 of the Act, matters which are excluded from ADR are matters in the public or national interest, the environment, the enforcement and interpretation of the Constitution and any other matter that by law cannot be settled by an ADR method. They also argued that this was not a matter in which the parties had given written consent for their disputes to be settled by ADR.

1st Respondent’s Submissions

The 1st Respondent referred to Section 141 of Act 930 which provides as follows:

141. (1) Where a person is aggrieved with a decision of the Bank of Ghana in respect of

(a) matters under sections 107 to 122 or sections 123 to 139;

(b) withdrawal of the registration of a financial holding company;

(c)  matters which involve the revocation of a licence of a bank or a specialised deposit taking institution; or

(d)  an action under sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk to the financial stability or of material loss to that bank or specialised deposit-taking institution or financial holding company

and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act, 2010 (Act 798).

It was its case that the use of the word “shall” made it mandatory for a dispute under Act 930 to be referred to arbitration. In this wise, they referred to Network Computers System Ltd v. Intelsat Global Sales & Marketing (2012) 1 SCGLR 218 where it was held:

Unless a substantive Act can be regarded as directory and not mandatory or its infraction is so minimal that it can be covered by the maxim de minimis non curat lex or such that the complaint about it is mere fastidious stiffness in its construction or the breach related to part of which, in relation to others, can be regarded as subsidiary, and therefore should not be allowed to prejudice the operation of the dominant part or purpose thereof, or the strict enforcement of the statute would amount to a fraudulent or inequitable use of the statute or some other compelling reason, I do not see how a court can gloss over the breach of a statute.

 

The 1st Respondent submitted further that the ground that the Ruling was against the weight of evidence was misconceived as the entire Ruling was based purely on points of law and not facts. They contended that apart from the affidavits filed, no other evidence was adduced for same to be considered in the Ruling.

On the point of the matter being one of public interest, the 1st Respondent referred to the case of Republic v. High Court (Commercial Division) Sunyani and Another; Ex Parte Alfredina Ofori & Ors (No. J5/36/2010) dated 3rd November, 2016 where the Court held:

Act 180 gives power to the Registrar of Companies and the Court to order the official winding up of insolvent companies in general but Section 68(1) of Act 673, the legislature has conferred that power on the Bank of Ghana in the case of licensed banks. In those instances, it is the Bank of Ghana that determines the status of insolvency of the bank and not the Registrar of Companies or the Court. On the basis of the aid to interpretation stated in the Latin maxim generalia non derogant (general provisions do not derogate from special ones), we hold that the Registrar of Companies was validly appointed the official liquidator by the Bank of Ghana to wind up the affairs of DKS Diamond Micro Finance Ltd pursuant to Section 68(1) of Act 673.

 

The 1st Respondent also argued that the dispute resolution mechanism provided under section 141 of Act 930 was specific and undoubtedly applied to the Appellant’s cause of action. They referred to the case of X-Tra Gold Mining Ltd v. The Attorney-General (No. J1/23/2016 dated 28th July 2016 where the Court held:

Act 703 makes elaborate provisions to govern operations in the minerals and mining industry and entrusts the responsibility of ensuring compliance with these provisions, including the fixing of fees, to the Minister responsible for Mines. On the other hand, Act 793 is a general provision which puts together a number of enactments that dealt with fixing of fees and charges and entrusted future responsibility of fixing the charges to the Minister responsible for Finance and Economic Planning. Parliament excluded Act 703 from the enactments covered by Act 793. Their intention was very clear to exclude the provisions of Act 703 from the provisions of Act 793 where the affected enactments were carefully set out. The principle of ‘expressio unius est exclusion alterius’ is equally applicable. By excluding Act 703, Parliament’s clear intention was that all the provisions of that Act should continue to apply. ….

 

1st Respondent submitted that in spite of the fact that the Ghana Arbitration Dispute Resolution Centre had not yet been established, section 141 had made it clear that the rules of the Alternative Dispute Resolution Centre under Act 798 were to be applied.

Counsel argued further that the trial judge did not err in declining to preside over the dispute as the trial judge did not strike out the writ of summons but rather deferred jurisdiction by referring the parties to arbitration. He also referred to Ex Parte Sangber- Dery case (cited supra) and argued that the Court therein had made the following observation:

There are instances where the jurisdiction of the ordinary courts is deferred by statute in favour of an inferior tribunal with specialization in a particular field.

 

They therefore contended that to the extent that the Appellant’s grievance stemmed from the 2nd Respondent’s revocation of a banking license, he was obliged under Act 930 to go to arbitration as established under Act 930. They argued further that since the Appellant’s action sought to seek review of the 2nd Respondent’s action of revoking the banking license and in executing a purchase and assumption agreement with 1st Respondent, the Appellant’s suit was neither founded on the Labour Act nor on the Common Law.

2nd Respondent’s Submissions

The 2nd Respondent submitted that the Appellant had argued the ground that the decision was against the weight of evidence as if the application was a full trial. It was of the view that the ground of appeal should rather have been that the ruling was against the weight of affidavit evidence. They referred to the cases of Aryeh and Akapko v. Ayaaa Iddrisu (2010) SCGLR 891, Akufo Addo v. Catheline (1992) 1 GLR 377, Oppong Kofi v. Attribrukusu III (2011) SCGLR 176, Oppong v. Anarfi (2011) SCGLR 556 and Djin v. Musah Baako (2007-2008) 1 SCGLR 686 stating that the Appellant had not shown that there were certain pieces of the evidence on the record which is applied in his favour would have changed the decision of the court in his favour.

They also argued that where an enactment had prescribed a procedure by which something had to be done, it was that procedure and no other which had to be followed. They referred to the cases of Boyefio v. NTHC Properties (1996-1997) SCGLR 531, Jonah v. Kulendi & Others (2013-2014) 1 SCGLR 272 and Republic v. High Court (Fast Track Division) Accra; Ex Parte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties).

They denied that the Appellant’s action was in the public interest as for an action to qualify as a public interest one, it must be one in which the public has a stake or one which will inure to the benefit of the generality of the public.

They also like 1st Respondent, contended that section 141 did not oust the jurisdiction of the court and only deferred same.

The Appellant’s view was that the mandatory reference of the dispute to arbitration by section 141 was therefore inconsistent with Article 140 of the Constitution. According to the Appellant, the High Court’s jurisdiction as enshrined in the Constitution must be jealously guarded by the Courts. In support of this argument, the Appellant made reference to Adofo v. The Attorney-General (2005-2006) SCGLR 24 where the Supreme Court held that a statute which provides for a total ouster of the court’s jurisdiction was inconsistent with Article 140 of the Constitution in the following words:

… Applying the ratio decidendi of Sam (No. 2), it may be asserted that, to the extent that section 5 of PNDCL 125 purports to oust the jurisdiction of the High Court, it is in conflict with article 140(1) and being a mere statute must fall away to the extent of its inconsistency. Any statutory provision intended to impede access to the general unlimited jurisdiction of the High Court, as set out above in Article 140(1), is equivalent to an endeavour to curtail that jurisdiction. That jurisdiction being one conferred by the Constitution itself, any statute in conflict with it is unconstitutional to the extent of such conflict.

 

The court will deal with the final ground of appeal first. This is:

That the learned judge erred in declining to preside over the dispute between the parties on the basis of section 141 of Act 930 when she knew or ought to have known that the said section was inconsistent with Article 140 of the 1992 Constitution and to that extent unconstitutional.

 

In our view, the constitutionality or otherwise of Article 141 was never an issue before the trial judge in the first place. If the Appellants had raised this issue before the trial court, the trial judge would have been required to state a case for the consideration of the Supreme Court and would have made the necessary referral. A finding that section 141 is inconsistent with the Constitution is a jurisdiction reserved exclusively for the Supreme Court. See Article 130 which states:

130.

(1)   Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -

(a)   all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.

We do not think it fair for the Appellant to malign the trial judge when the issue of the constitutionality or otherwise of section 141 of Act 930 was never brought up for adjudication in the first place.

Grounds i-iii will be considered together. These are:

i.     The Ruling is against the weight of evidence. 

ii.    The learned trial judge exceeded her jurisdiction in ordering arbitration between the Plaintiff and the 1st Defendant when there was no mandatory requirement for such dispute resolution, nor was there an arbitration agreement or written consent to do so.

iii.  That the learned judge erred in her application of Act 798 of 2010 to refer the dispute to arbitration.

 

The first ground of appeal is that the judgment is against the weight of evidence. The authorities are to the effect that where an appellant appeals against a judgment on the omnibus ground that the judgment is against the weight of evidence, the appellate court is bound to consider comprehensively, the entire evidence on record before coming to a conclusion on the matter. See the cases of Aryeh & Akakpo v. Ayaa Iddrisu (2010) SCGLR 891 and Djin v. Musah Baako (2007-2008) SCGLR 686 @691 where the Court speaking through Aninakwah JSC stated:

It has been held in several decided cases that where an (as in the instant case) appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.

 

It is provided by Section 141 of Act 930 which has its heading as: Review of decision of Bank of Ghana on official administration, liquidation and receivership by arbitration that:

141. (1) Where a person is aggrieved with a decision of the Bank of Ghana in respect of

(a) matters under sections 107 to 122 or sections 123 to 139;

(b) withdrawal of the registration of a financial holding company;

(c)  matters which involve the revocation of a licence of a bank or a specialised deposit taking institution; or

(d)  an action under sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk to the financial stability or of material loss to that bank or specialised deposit-taking institution or financial holding company and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act, 2010 (Act 798).

 

The provision “that person shall resort to arbitration” is mandatory and the Appellant by his own description in his statement of claim “qualifies as a person who is affected by the revocation of the licence of the Bank and the incidental Purchase and Assumption Agreement entered into between the 2nd Defendant and the 1st Defendant (GCB Bank) in respect of the Bank as per the provisions of section 141 (1) (c) and (a) of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930).” He therefore fell within the purview of section 141.

Furthermore, in paragraph 9 of his Statement of Claim, the Appellant averred:

The Plaintiff says that by the provisions of the said Act 930, he could initiate arbitration under the Rules of the Alternative Dispute Resolution Centre set up under the Alternative Dispute Resolution Act, 2010 (Act 798) (hereinafter called the ADR Act) and since such a centre has not yet been set up, he is entitled under the said ADR Act to bring proceedings for this honourable court to refer for arbitration the matter or such part of the matter that requires arbitration.

So, if by his own showing and in his own words, the Court had power to refer for arbitration, the matter or such part of the matter which requires arbitration, why would he now make a volte face and accuse the court of doing just exactly what he had adumbrated in his own statement of claim? We think the Appellant should not be allowed to approbate and reprobate.

In the case of Republic v High Court, Accra (Industrial & Labour Division, Court 2) the court referred to Article 140 of the Constitution which provides:

The High Court shall subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, civil and criminal matters and such original and appellate and other jurisdiction as may be conferred by this Constitution or any other law.

 

The Court further held that it was only a provision of the Constitution which could limit a court’s jurisdiction and not an Act of Parliament. The court however stated that there were certain instances where the jurisdiction of the ordinary courts could be deferred by statute in favour of an inferior tribunal with specialization in a certain field. In our view, this is what section 141 of Act 930 seeks to do. It has not ousted the court’s jurisdiction. It has merely deferred its jurisdiction and required any aggrieved person instituting an action under Act 930 to seek arbitration.

Now the Appellant says his dispute is not amenable to ADR since it is a matter in the public interest. What is public interest? Article 295 (1) of the 1992 Constitution has provided a definition of the term “public interest”. It states:

In this Constitution, unless the context otherwise requires “public interest” includes any right or advantage which ensures or is intended to inure to the benefit generally of the whole of the people of Ghana.

 

In Professor Asare v. AG (No. J1/15/2015 unreported) the court cited with approval, the meaning of the expression public interest in the cases of the Republic v Yebbi & Avalifo [2000] SCGLR 149 and R v. Sussex Confirming Authority; Ex Parte Tamplin & Sons Brewery (Brighton) Ltd. (1937) 4 All ER @ page 108, where Lord Hewart observed,

If the condition is in the interest of a considerable part of the public, then it is true to say that it is in the interest of the public of which that is a part. It would, I think, be fantastic to argue that a condition cannot be in the interest of the public unless it is in the interest of every part of the public ... if it is in the interest of the Public concerned, then it is in the interest of the public as a whole.

 

In the instant case, the Appellant was litigating his personal rights which he said had been affected by 2nd Respondent’s action in when it entered into a Purchase and Assumption transaction with the 1st Respondent to have control over the assets and liabilities of the UT Bank in which the Plaintiff has an employment contract. There were no public interest claims here.

We conclude that the trial judge did not err in referring the dispute to arbitration. the appeal fails in its entirety and same is dismissed.

SGD 

JENNIFER A. DODOO (MRS)

(JUSTICE OF APPEAL)

CONCURRING

ADJEI, J.A:

 

I had the privilege of reading through the draft speech of my respected sister, Jennifer Amanda Dodoo, JA, and I have decided to write a concurrent judgment specifically on legal matters. I will not spend much time in discussing the facts as my sister has ably discussed them. The basis for the appeal was that the Appellant filed the suit in the trial High Court without observing the statutory ouster clause provided by section 141 of the Banks and Specialised Deposit- Taking Institutions Act, 2016 (Act 930)

The Plaintiff being dissatisfied with the decision taken by the 2nd Defendant/Respondent filed a suit in the High Court for a true and proper interpretation of section 123 of the Banks and Specialised Deposit- Taking Institutions Act, 2016 (Act 930). The other five reliefs sought by the Appellant would be influenced by the outcome of the interpretation to be given to section 143 of Act 930 by the High Court. The 2nd Defendant entered conditional appearance and filed a motion to set aside the writ of summons and statement of claim within the time it was required to plead. The 1st Defendant on the other hand entered appearance and subsequently filed its statement of defence and therefore seemed to have submitted itself to the jurisdiction of the High Court.

The thrust of the 2nd Defendant’s application to the trial High Court to strike out the action was premised on section 141 of Act 930 which makes it mandatory for a person aggrieved by the decision of the Bank of Ghana and official administrator to undergo arbitration.

Sections 107 to 122 of Act 930 requires a person aggrieved by a decision of Bank of Ghana under any of those sections to resort to arbitration under the Alternative Dispute Resolution Act, Act 798 instead of court. The grounds which require mandatory arbitration under sections 107 to 122 of the Act are: matters relating to the appointment of an official administrator by the Bank of Ghana; matters on the general powers of the official administrator appointed by the Bank of Ghana regarding the official administrator’s accounting role to the Bank of Ghana; matters regarding suspension of dividends by the official administrator; moratorium imposed by the Bank of Ghana to suspend payments by a bank or specialised deposit-taking institution and its effect on proceedings; a right or obligation of a third party subsisting under any contract shall not be suspended on the appointment of official liquidator ; control to be exercised by official administrator over specialised deposit institution; preparation of inventory and plan of assets and liabilities of specialised deposit- taking institution after an official administrator has been appointed; capital increase by existing shareholders with the approval of Bank of Ghana pursuant to the plan and inventory prepared by the official administrator of a specialised deposit - taking institution; recapitalisation by new members; decision on mergers, sales and other restructurings by the official administrator with the approval of Bank of Ghana; mandatory restructuring liabilities; removal of directors and key management personnel by the official administrator with the approval of Bank of Ghana; the power of official administrator to deal with misconduct by significant shareholders, directors, key management personnel and others; matters relating to the expenses of the official administrator to be fixed by the Bank of Ghana to be paid by the institution concerned and ; termination of official administrator. A person aggrieved by the decision taken by the Bank of Ghana under sections 107 is mandatorily required to resort to arbitration under the Alternative Dispute Resolution Act 2010 (Act 798).

The other areas of the Act which makes arbitration mandatory are matters under section 123 to 139 of the Act; where a registration of a financial holding company is withdrawn; any decision affecting the revocation of a licence granted to an institution; and; where the Bank of Ghana takes a decision under sections 102 to 106 of the Act that there is a serious risk to the financial stability of an institution or financial holding company.

The Plaintiff filed the action to seek for a true and proper interpretation of section 123 of Banks and Specialised Deposit- Taking Institutions Act, Act 930 which is one of the provisions that section 141 of the Act mandates arbitration.

The law is settled that ouster clauses exist in deeds and documents, statutes and national constitutions. Ouster clauses in deeds and documents entitle parties to oust the jurisdiction of the courts but cannot oust the entire jurisdictions of the courts. The parties may postpone the original jurisdiction of the court but cannot completely oust the original and the supervisory jurisdictions of the appropriate courts. Where an ouster clause in deeds and documents including those with arbitration clauses arbitration is side stepped, the defendant may enter appearance and apply to the court timeously to refer the action in accordance with the arbitration agreement or may waive it. Section 6 of the Alternative Dispute Resolution Act, Act 798 provides that where an application is made to the court to refer the matter to an arbitration in accordance with an arbitration agreement and it is granted, it automatically operates as stay of proceedings. On the other hand, where the defendant fails to file an application to make reference and file statement of defence, the court shall proceed with it unless that court makes reference under section 7 (5) of Act 798. Section 7 (5) of Act 798 provides thus:

“Where in any action before a court the court realises that the action is the subject of an arbitration agreement, the court shall stay the proceedings and refer the parties to arbitration.”

The court in which the matter is pending shall proceed with the matter where there is an arbitration clause and it is side stepped by the Plaintiff and the defendant also files a statement of defence. A defendant may also confer jurisdiction on the court by deciding not to apply to the court to make reference under section 6 of Act 798.

A statutory ouster clause is where a statute provides for a resolution of dispute by a tribunal, administrative body or through an Alternative Dispute Resolution methods. A statutory ouster clause does not however completely oust the jurisdictions of the courts but it either postpones or defers some of the jurisdictions exercisable by the courts. Section 141 of Act 930 which is on ouster clauses provides thus:

“141.               (1) where a person is aggrieved with a decision of the Bank of Ghana in respect of

a.             matters under sections 107 to 122 or sections                              to 139;

b.             withdrawal of the registration of a financial holding company;

c.             an action under sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk

to the financial stability or of material loss so that bank or specialized deposit-taking institutions or financial holding company and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Act, 2010(Act 798)”.

The position on statutory ouster clauses has been settled by case law. The law was stated in Tuarley v Abaidoo [1962] GLR 411 and Boyefio v NTHC Properties Limited [1996-97] SCGLR 531 that where an Act of Parliament or any other enactment provides for a special procedure to be used in resolving disputes, it is that procedure alone that must be used. A party cannot sidestep a statutory ouster clause and seek redress in court. The law is that where an enactment prescribes for a particular mode of seeking grievance, it is that procedure alone which shall be used and the parties cannot agree to waive it unlike ouster clauses in deeds and documents where the parties may agree to waive it expressly or by necessary implication by the fact that they voluntarily introduced it into an arbitration clause. Where a party side steps a statutory provision and seeks redress in court, the action is not dismissed but reference is made to operate as a stay of proceedings. In the cause of a statutory ouster clause, the courts do not have the power to ignore it as it pertains in ouster clauses in deeds and documents.

The Plaintiff’s action was brought under section 123 of Act 930 and same is caught by section 141 of the same Act which provides for mandatory arbitration under Act 798. Any proceedings founded on section 123 of Act 930, which is on mandatory revocation of licence issued to a bank or a specialised deposit- taking institution and initiation of receivership is by law amenable to arbitration under the Alternative Dispute Resolution Act, Act 798 and a party cannot sidestep it. The trial High Court Judge was right in referring the matter for arbitration under Act 798.

The old position that matters of interpretation should be decided by the courts other than by a tribunal or through Alternative Dispute Resolution mechanism by the fact that the courts are well suited has ceased to be a good law. In the case of Essilfie and Another v Tettey and Others [1995-96] 1 GLR 297, the Court of Appeal following the old English decisions in Baker v Jones [1954]2 AII ER 553 and Lee v Showmen’s Guild of Great Britain [1952] 1 All ER 1175 held that on questions of interpretation of law the courts are better suited and their jurisdictions on Interpretation cannot be ousted. The true position of matters of interpretation of documents and statutes was decided by the Supreme Court in the case of In Re Ghana Private Road Transport Union (GPRTU); Tettey & Others v Essilfie and Anor [2001-2002] 1 GLR 440 where the Court of Appeal’s decision mentioned above was reversed on wrong application of the laws on ouster clauses. The Supreme Court following its previous decision in Tularley v Abaidoo, supra, held that legal issues may be resolved through any other mode of dispute resolution and does not fall within the exclusive jurisdiction of the courts. The Kompetenz Kompetenz principle in arbitration proceedings which provides that arbitration bodies are competent to resolve legal matters within their jurisdiction has been codified under section 24 of the Alternative Dispute Resolution Act, Act 798. Arbitrators have jurisdiction to resolve both legal and factual matters within their jurisdiction.

The constitutionality of statutory ouster clauses has been resolved by the Supreme Court in cases including Boyefio v NTHC Properties Ltd, supra, and does not require reference to be made to the Supreme Court. The Supreme Court at page 546 of the Law Report held thus:

“Section 12 (1) of PNDCL 152, is indeed, in consonance with the modern practice of setting up an internal tribunal in an institution to have a first bite at disputes arising within that institution, before recourse is made to the courts if the matter does not end at the internal tribunal. Where a person ignores the internal tribunal and comes to court in respect of any such internal dispute, the courts will invariably order him to go back to the internal tribunal if that person has no substantial reason for sidestepping the internal tribunal. For the law is clear that, where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed.”

I am not oblivious of the current dominant purposive approach to interpretation which suggests meanings of already decided provisions of the Constitution may change in the course of time. The Supreme Court in the case of Republic v High Court, General Jurisdiction, Accra; Ex parte Zanetor Rawlings (Ashittey & National Democratic Congress Interested party) (No 1) [2015-2016] SCGLR 53 are some of the cases which have held that meanings of provisions of the Constitution are likely to change over time as a result of the dominant purposive approach to interpretation which takes into account subjective and objective meanings of constitutional provisions. I find that there is no issue of constitutional interpretation to make reference to the Supreme Court to waste its precious time.

A person dissatisfied with the decision May appeal to the Supreme Court in its appellate jurisdiction as I am satisfied that there is no interpretative issue involved in the appeal before this Court. I dismiss grounds (i), (ii), (iii) and (iv) of the grounds of appeal as unmeritorious. I affirm the ruling delivered by the High Court on 6th December, 2017.

SGD

DENNIS ADJEI

(JUSTICE OF APPEAL)

P. B. MENSAH JA

I also agree                                                               

SGD

P. BRIGHT MENSAH

(JUSTICE OF APPEAL)

 

 

 

 

COUNSEL

MAAME B. ADU AMOAH FOR PLAINTIFF/APPELLANT

SAMUEL OFOSU ASAMOAH FOR 1ST DEFENDANT/RESPONDENT

PATRICK J. ANING FOR 2ND DEFENDANT/RESPONDENT