Nduom Vrs BoG :The Court of Appeal was wrong!
I have obtained and read the certified true copy of the Court of Appeal’s ruling in the matter of Dr. Papa Kwesi Nduom versus the Bank of Ghana. The appeal was at the instance of the Bank of Ghana and the contention was about whether or not the trial High Court had jurisdiction or the power to preside over the case that Dr. Nduom had brought against the Bank of Ghana.
Dr. Nduom was alleging that his human rights had been violated whiles the Bank of Ghana was of the view that the case Dr. Nduom had brought was not a human rights matter.
The Court of Appeal in determining the matter in favour of the Bank of Ghana essentially said two things:
* A. That the case brought by Dr. Nduom was not a human rights matter
* B. That section 141 of Act 930 was mandatory and a statutory ouster clause.
The Court of Appeal was wrong for the following reasons:
* A. That the Case Brought by Dr. Nduom is Not a Human Rights Matter
In its ruling, the Court of Appeal relied on the affidavit sworn to by Dr. Nduom, specifically paragraphs 13, 14, 15, 16 which basically talked about the complaint made by Dr. Nduom that the Bank of Ghana on August 16th 2019 revoked the license of GN Savings&Loans (GNSL) and a Receiver was appointed under section 123 (2) of Act 930.
The three judges further made references to paragraphs 26 and 27 of the same affidavits. Paragraph 26 stated as follows:
“That though very much aware of these facts and other relevant circumstances of GNSL in particular and Groupe Nduom as a whole, the 1st Respondent (BANK OF GHANA) the MINISTER OF FINANCE, and the 2nd Respondent (the ATTORNEY-GENERAL representing the GOVERNMENT OF GHANA), either by refusal or negligence, failed to factor the circumstances into determining the solvency of GNSL, the consequence of which is the decision of the 1st Respondent (BoG) to revoke the 3rd Respondent’s (GNSL) specialized deposit-taking license”.
All that Dr. Nduom was saying in the above quoted paragraph is that the Bank of Ghana and the Ministry of Finance, both representing the Government of the Republic of Ghana, did not take into account all the factors, including the important fact that the Government of Ghana owed GNSL, before arriving at the decision to say that GNSL was insolvent. This clearly constitutes administrative injustice on the part of the Government of Ghana, acting through two of its agencies i.e., the Bank of Ghana and the Ministry of Finance.
That administrative injustice which occurred is squarely a violation of Dr. Nduom’s right to Administrative Justice under the 1992 Constitution.
The Court of Appeal cleverly IGNORED this complaint by Dr. Nduom when it concluded as follows:
“Clearly, from the amended deposition in the affidavit in support of the motion set out in extenso, it is obvious that the 3 applicants (Dr. Nduom & others) as shareholders were dissatisfied or aggrieved by the decision of the 1st Respondent, Bank of Ghana to revoke the license of the 3rd Respondent (GNSL).”
Of course, Dr. Nduom was dissatisfied by the revocation of his license but his grievance or dissatisfaction emanates from the fact that he had suffered administrative injustice in the process leading to the decision to revoke his license; that is if the debts owed GNSL by the government of Ghana had been taken into account in the decision-making process, the Bank Ghana would not have arrived at the decision they made that the bank was insolvent. That omission by the Bank of Ghana to take into account the right amount owed GNSL by the Government of Ghana constitutes a violation of Dr. Nduom’s right to fairness and administrative justice, and that clearly is a human right violation under the 1992 Constitution.
In this respect the Court of Appeal was wrong to say that the case before the trial High Court Judge was not a human rights matter.
For the record, some of the human rights provisions under which Dr. Nduom made his application to the High Court include articles 17, 18, 23 and 296. For the avoidance of doubt let me reproduce the two provisions that relate to administrative justice.
The provisions of article 23 and 296 of the 1992 Constitution are as follows:
Article 23 states that “Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”
Article 296 states that “Where in this Constitution or in any other law discretionary power is vested in any person or authority –
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.
* B. That Section 141 of Act 930 was Mandatory and a Statutory Ouster Clause
The court also stated that section 141 of Act 930 was mandatory and therefore constituted a “statutory ouster clause”. The court referred to a previous ruling by His Lordship Sir Dennis Adjei in the case of Osei Bonsu versus Ghana Commercial Bank, Civil Appeal No. H1/76/2010. The court quoted the relevant portions of that ruling of Sir Dennis Adjei as follows:
“……….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 a stay of proceedings. …….. A statutory ouster clause is where a statute provides for a resolution of disputes by a tribunal, administrative body or through Alternative Dispute Resolution method. A statutory ouster clause DOES NOT however COMPLETELY OUST the jurisdiction of the court but it either postpones or defers SOME of the jurisdiction exercised by the courts” (Emphasis mine)
I am confused and I find myself at sea as to why the three eminent Appeal’s Court Judges in the instant case made reference to the ruling of Justice Sir Dennis Adjei. I say this because the quotation from Justice Dennis Adjei’s ruling does not support the claim made by these Appeal’s Court Judges at all. In fact, a closer reading of the citation from Justice Sir Dennis Adjei clearly states that statutory ouster clause does not oust the jurisdictions of courts but MAY postpone SOME of the jurisdictions of courts. Even when it comes to arbitration, Justice Dennis Adjei said in the citation that the court may grant that a matter be referred to arbitration “in accordance with to an arbitration agreement”.
Where is the arbitration agreement between Nduom and the Bank of Ghana on the basis of which the Bank of Ghana is asking for an arbitration?
Second, Justice Sir Dennis Adjei did not conclude that fundamental human rights violations over which the High Courts have been given exclusive jurisdiction by the 1992 Constitution is one of the “jurisdictions” that maybe ousted by a statutory ouster clause.
For the avoidance of doubt, article 33(1) states that: Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
Granted that section 141 of Act 930 is a mandatory ouster clause as the Appeal’s Court Judges struggle to explain, article 33(1) is emphatic that WITHOUT PREJUDICE TO ANY OTHER ACTION THAT MAYBE LAWFULLY AVAILABLE, a person may decide to go to the High Court.
So, the Appeal’s Court could not compel Dr. Nduom to exercise the arbitration route without any arbitration agreement between him and the Bank of Ghana and more so when he had a right granted by the supreme law of Ghana, the 1992 Constitution, to seek redress of in the High Court for any human rights violations he alleges.
All that there is to this case is that the Ministry of Finance (under the direction and control of the Minister of Finance) lied to the Bank of Ghana when it stated that the Government of Ghana owed Dr. Nduom and GNSL only some Ghc30 million. This is the information the Bank of Ghana relied upon to conclude that GNSL was insolvent. The actual figure, which is some Ghc4billion, was not factored into the calculation because the Finance Ministry lied to the Bank of Ghana and that if the actual amount had been factored into the calculations, the Bank of Ghana would not have reached the conclusion that GNSL was insolvent.
It is also instructive to note that GNSL Special Deposit-Taking Institution license was approved in January 2019, and between January, 2019 and August 2019 when the license was revoked, the Bank of Ghana did not conduct any examination on GNSL’s assets and liabilities for them to be able to come to a fair conclusion that the GNSL was insolvent.
Someone just got to work in the morning of August 16th 2019 and announced per a press statement that the license of GNSL has been revoked. That is the administrative injustice Dr. Nduom is complaining about and he has rightfully per the Constitution brought his case to the Hight Court for redress.
All that is required is to allow the learned High Court Judge to pronounce on the allegation being made by Dr. Nduom that his right to administrative justice under the 1992 Constitution had indeed been violated or otherwise. The Ghana Arbitration Centre, which is even yet to be established, does not have jurisdiction over Human Rights matters.
Our nation’s motto is Freedom & Justice. Therefore, Justice must not just be done in this case, but it must manifestly be seen to be done.
Citizen, Republic of Ghana