Story by ATTA K. BOADI
The Court of Appeal with judges Henry A. Kwofie (presiding), Novisi A. Aryeneand Eric Baah on June 2, 2022, by a unanimous decision, upheld the Bank of Ghana’s application that the suit by Dr. Papa Kwesi Nduom and others against the Bank of Ghana’s revocation of the license of GN Bank be referred to Arbitration.
According to the Court, per section 141 of the Banks and Specialised Deposit-Taking Institutions Act, 2016, Act 930, the forum for such a challenge is arbitration and not the court. The judges also said that Dr Nduom and the other applicants had “masqueraded their challenge to the decision of Bank of Ghana as a human rights application.”
The Today Newspaper in this edition seeks to provide background and context associated with this ruling which is leading many citizens to question the motive of the Bank of Ghana (BoG). The BoG ia represented by Mr. Frank Davies in its never ending attempt to prevent the Human Rights High Court from giving its ruling on the matter brought before it by Dr. Papa Kwesi Nduom and others. Frank Davies is the Chairman of the Legal and Constitution Committee of the ruling NPP. The High Court was presided over by Justice Gifty Agyei-Addo.
According to many, this is a travesty of justice that will continue to cause suffering, unemployment and financial loss to thousands of Ghanaians. The general discussion among many industry watchers and Ghanaians in general on the latest ruling have centered on what they consider as the real motive of the BoG’sdecision to seek for arbitration without recourse to the natural order of justice that the plaintiff has been seeking; and also the decision by the Appeals Court to grant the Bank of Ghana the relief.
Keen observers of the GN Bank-BoG case have been asking why the Central Bank is afraid of the court ruling if they had done the right thing in the first place. The consensus among such neutrals is that the BoG know that their decision to revoke the GN Bank license was wrong. It does feeds into the long held view that the BoGtook the decision based on the wrong information deliberately given to them by the Ministry of Finance with the calculated motive to harm Dr. Nduom and GN Bank. Many who have commented on the ruling are asking Dr. Nduom to stay away from any attempt to go to arbitration and to pursue justice in court. They recommend that Dr. Nduom must seek full compensation for the damage to property, financial losses and the dent caused on his reputation.
The Lawsuit August 30 2019
We find it instructive to reproduce the Statement of Case Dr. Nduom’s attorney Dr. Justice Srem-Sai presented to the Human Rights Court:
“This statement of case is on behalf of the Applicants herein, praying this honourable Court for an order of interlocutory injunction restraining the Respondents, their agents, assigns, workmen, privies, howsoever described from interfering with the rights of the Applicant to administrative justice, to property and to equality or non-discrimination, pending the determination of the originating motion (number HR/094/2019) on notice filed in this honourable Court on August 30, 2019. Particularly, the Applicants pray this honourable Court to exercise its discretion to make orders:
a. directing the 1st Respondent or its agents, privies, assigns or workmen howsoever described (and including the said Messrs Eric Nana Nipah, Receiver) to, forth with, restore the 4th Respondent to its specialised deposit-taking licencepending the determination of the originating motion; and
b. restraining the 1st Respondent or its agents, privies, assigns or workmen howsoever described (and including the said Messrs Eric Nana Nipah, Receiver), from further interfering, directly or indirectly, with the rights of the 4th Respondent’s shareholders, directors and management to possession, management and control of the 4th Respondent’s business activities pending the determination of the claim in the originating motion.
The Applicant also prays your Lordship to give any such orders that may be necessary to give full effect to the order expressly prayed for.
2. The details of the facts are sufficiently stated in the Affidavit in support of the originating motion filed on August 30, 2019. The summary of facts, however, is as follows: On August 16, 2019, the 1st Respondent revoked the specialised deposit-taking licence of the 4th Respondent company. The reason for the revocation, as given by the 1st Respondent in its notice dated the same day is that the 4th Respondent has become insolvent. In the same notice, the 1st Respondent appointed Messrs Nana Nipa, accountant, as the receiver of the 4th Respondent company.
On the same day, the 1st Respondent and the said Receiver or their agents, workmen or assigns, ostensibly consequent upon the 1st Respondent decision in the revocation notice, moved in and took possession, control and management of the 4th Respondent company. By the tenure of the law – Section 127 and 128 of Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) on the powers of the receiver and effect of the receivership – the powers, rights and privileges of the 4th Respondent’s shareholders, directors and management are extinguished, thereby, empowering the Receiver to take steps to liquidate or dissolve the 4th Respondent. The Receiver has begun this process in earnest.
3. The Applicant is aggrieved by the decision and actions of the 1st Respondents, hence the originating motion on notice. The Applicant’s case is that the decision and actions of the 1st Respondent were unreasonable to the extent:
a. That it did not take into account the indebtedness of the Government of Ghana and its ministries, departments and agencies (MDAs) to the 4th Respondent in deciding that the 4th Respondent has become insolvent; or
b. That, if it ever took that fact (of the Government’s indebtedness) into consideration in reaching that decision, the 1st Respondent misinformed itself or allowed itself to be, either by malice or negligence, misled by the 2nd Respondent on the extent of such indebtedness.
4. Therefore, on August 30, 2019, the Applicant caused an application to issue seeking this honourable Court to:
a. Adjudge and declare that by failing to take into account the indebtedness of the Government of Ghana, its Ministries Departments or Agencies to the 3rd Applicant group, Gold Coast Advisors Limited or the 4th Respondent company before concluding that the 4th Respondent was insolvent and, consequently, revoking its specialised deposit-taking licence, the 1st Respondent has violated, is violating or is likely to violate the rights of the Applicants and the 4th Respondent to administrative justice, to property and to equality or non-discrimination;
b. Adjudge and declare that by relating to the 1st Respondent that the total indebtedness of the Government of Ghana, its Ministries Departments or Agencies to the 3rd Applicant group, Gold Coast Advisors Limited or the 4th Respondent company was Thirty Million and Three Hundred and Twenty-nine Thousand, Four Hundred and Eighty-three Ghana cedis and Eighty-four Pesewas (GH¢ 30,329,483.84) when he (the 2nd Respondent) knew or ought to have known that that amount was woefully inaccurate;
and the 1st Respondent subsequently relying on such communication in arriving at its decision to revoke the specialised deposit-taking licence of the 4th Respondent, the 1st Respondent and the 2nd Respondent have violated, are violating or are likely to violate the rights of the Applicants and the 4th Respondent to administrative justice, to property and to equality or non- discrimination;
c. Make an order of certiorari, quashing the decision in the notice issued by the 1st Respondent dated August 16, 2019, which declared the 4th Respondent insolvent and, consequently, revoked its licence to operate as a specialised deposit-taking institution;
d. Make an order of mandamus to issue, compelling:
i. the 1st Respondent to restore to the 4th Respondent company its licence to enable it to continue operating as a specialised deposit-taking institution;
ii. Messrs Eric Nana Nipah as receiver of the 4th Respondent to submit the possession, management or control of the assets, operations and other activities of the 4th Respondent company to its shareholders or persons who, immediately before August 16, 2019, were in possession, management or control of such assets, operations and activities.
e. Make an order of injunction, restraining the other Respondents, their agents, assigns, privies and workmen howsoever called or described from interfering with the possession, management or control of the assets, operations and other activities of the 4th Respondent company; and
f. Provide any other remedies that the honourable Court may deem fit under the circumstances.
In the light of all these, the present application is praying the honourable Court to order some interim measures which will ensure that the success of the Applicants’ claims in the originating motion does not become meaningless or otiose’
Tactics Put in Play by BOG to Delay the Case: Internal Plaintiff Notes Obtained by Today Newspaper:
1. In December, 2019, the High Court dismissed BoG’s preliminary objection and held that it has jurisdiction to decide our motion for administrative justice and right to property. BoG appealed against the High Court’s ruling.
2. As part of the appeal process, the High Court Registrar is required to compile and forward the records of the High Court proceedings to the Court of Appeal Registrar.
3. BoG, as the appellant, is required to pay the cost of compiling the record of proceedings.
4. The payment is a condition for the appeal – without it, the appeal will not be heard. However, it is our (the Applicant/Respondent’s) duty to get the Court of Appeal to dismiss the appeal for BoG’s non-compliance with the conditions of appeal.
5. We got the appeal dismissed for non-compliance earlier in May 2020. However, BoG later fulfilled the conditions and got the appeal restored. This means that the appeal records could now be compiled.
6. Upon compiling the records of appeal, the High Court Registrar informed us that the cost was more than what BoG had paid. This means that the difference in cost has become an additional condition of the appeal which BoG had to satisfy by paying a top-up (of about GHC 10,000).
7. We wrote to the Registrar to formally notify BoG of the additional condition and give them an ultimatum to pay.
8. There were inefficiencies in how the Registrar handled the process. This led to a delay in enforcing the conditions for appeal.
9. When we felt that the Registrar was not being effective, we wrote again to him demanding that he issues a certificate of non-compliance to enable us have the Court of Appeal to dismiss the appeal once again.
10. It was at this point that the Registrar informed us that BoG had written to him to ask for an extension to satisfy the condition.
11. Just before the legal vacation on July 30, 2021, the Registrar informed us that BoG has fulfilled the condition.
12. This means that the records of appeal will now be forwarded to the Court of Appeal for the appeal which BoG filed in December 2019 to be heard.
13. We will work during the legal vacation to have the appeal set down for hearing early in the next legal year which begins on October 1.
14. We expect the Court of Appeal to give its decision on the appeal by December 2021.
15. The Court of Appeal’s decision will pave the way for the High Court to give its judgement on the substantive matter.
16. Because we have already closed the High Court case in November, 2020, the High Court judge is only left with reading out the judgement.
*GN BANK CASE: BOG APPEAL STRUCK OUT, HIGH COURT TO GIVE FINAL JUDGEMENT*
The Court of Appeal has struck out the Bank of Ghana’s appeal in the GN Savings & Loans case. This was done in the morning of Tuesday, 18th January 2022.
The ruling of the Court of Appeal clears the way for the High Court to deliver its final judgement in the protracted legal battle between Dr Papa Kwesi Nduom and the Bank of Ghana, the Attorney-General and Mr Nana Nipa (the Receiver).
It may be recalled that in August 2019, Dr Nduom filed this suit challenging the decision of the Bank of Ghana to revoke the operating licence of GN Savings & Loans Company Limited. The High Court judge set 9th December 2020 for its final judgement.
However, just a few days before the judgement day, Bank of Ghana applied to the Court of Appeal for a stay of the High Court’s proceedings. The case had thus paused for over a year.
At the High Court, Dr Nduom’s lawyers, Praetorium Solicitors, have argued that the Bank of Ghana’s decision to revoke GN Savings’ licence was irrational and constitutes an abuse of regulatory authority.
An Accra High Court has, on Wednesday 14th October 2020, dismissed an application brought by the Bank of Ghana to stay the proceedings in the case in which Dr Papa Kwesi Nduom is challenging the revocation of GN Savings & Loans’ licence.
This is the third time that the Bank of Ghana has brought such an application. The first and the second applications were at the High Court in January 2020 and at the Court of Appeal in May 2020 respectively. In dismissing the application, the trial judge agreed with Dr Nduom’s lawyers, Praetorium Solicitors, that the application had no basis in law.
It may be recalled that Dr Nduom and two other shareholders of GN Savings & Loans have been in court since August 2019 to challenge the Bank of Ghana’s decision to revoke Savings & Loans’ licence. Their case is that the Bank of Ghana and the Minister of Finance have colluded to “maliciously” understate the assets of GN Savings & Loans.
According to an affidavit deposed to by Dr Nduom, the Bank of Ghana had reached an “unfounded, unproven, unverified and bizarre conclusion in respect of GN Savings’ financial position” because of their “failure or malicious refusal to take into account GN Savings’ assets that were and are still with the Government and its MDAs.”
Wednesday’s ruling paves the way for the High Court to rule on whether the evidence that the Bank of Ghana is seeking to rely on as a basis for its decisions to revoke GN Savings and Loan’s licence is proper and admissible.
In a long legal argument lasting for over two hours, Dr Nduom’s lawyers have objected to the admissibility of the Bank of Ghana’s exhibits, describing one of them as a mere “unmarked, unidentified, unauthenticated and unauthored Microsoft Word print-out.” They argued that as many as five exhibits filed by the Bank of Ghana, namely, Exhibit YAO5, Exhibit YAO6, Exhibit YAO7, Exhibit YAO8 and Exhibit YAO9, seriously offend the Evidence Act and must be rejected by the Court.
In their response, however, the lawyers for the Bank of Ghana surprised the entire courtroom with a plea that the Court should allow them to go and reorganise their evidence and come back. The case has been adjourned to Monday 19th October,2020 for a ruling on the admissibility of the Bank of Ghana’s evidence and whether the bank of Ghana can go and bring different evidence to justify the revocation.
The Bank of Ghana Cannot Justify the Revocation of the License of GN Savings
Judging from what is being played out in Court, the Bank of Ghana is finding it very difficult to justify why it revoked the license of GN Savings. On 21st May 2020, Mr. Justice Srem-Sai Attorney representing Groupe Nduom and two others, filed an objection to the affidavit evidence of the Bank of Ghana. This is in relation to the matter in the court of the High Court of Justice, Human Rights Division presided over by Justice Gifty Agyei-Addo.
The Honorable court ordered the Respondents to file their Affidavits by January 17, 2020 and for all parties to file their addresses by April 14, 2020. The applicants complied with the judge’s orders. However, the Bank of Ghana and others did not. It took multiple orders from the judge for the Bank of Ghana to file its Affidavit in Answer on May 6, 2020 and Address on May 8. In other words, the Bank of Ghana only filed these documents, hurriedly, after being ordered to do so Again and again, and only after they got the added benefit of reading the Address of the Applicants, Groupe Nduom and two others.
The Affidavit filed by the Bank of Ghana demonstrates that for the lack of proper justification, it pulled some documents just for show and maybe with the hopes of confusing the Honourable Court.
For this reason, Justice Srem-Sai appears to have mounted a deadly blow to the Bank of Ghana by exposing the tricks and deceit its lawyers Are trying to pull. He has filed legal objections to the admissibility of the Bank of Ghana’s affidavit evidence. For example:
1. The BOG presented in its affidavit an unidentified, unauthored and unauthenticated document purported to be the total loan portfolio of GN Savings. No name, no author, date or anything to verify where it came from.
2. The BOG presented exhibits it claims were the performance reviews conducted on GN Savings with the dates – August 20, 2018, September 10, 2018 and November 22, 2018. However, the savings and loans license was issued to GN Savings on January 4, 2019!
3. A universal license requires minimum capital of GHC400 million. However, a Savings and loans license requires only GHC15 million as minimum capital. All the arguments of BOG refer to universal banking requirements. It is evident that BOG never bothered to do a performance review of GN Savings before revocation of its license.
4. The Bank of Ghana presented a confidential report prepared by one Yaw Sapong who played the role of BOG Advisor to GN Savings. This confidential report was not shared with the directors, shareholders or management of GN Savings and contains his opinions gathered in a clandestine manner.
Justice Gifty Agyei-Addo has set The 9th of June 2020 to consider and rule on whether to admit or not to admit these document that appear not to have any relevance to the case at hand.