General News of Saturday, 22 December 2018
An Accra High court has thrown out a suit by founder of defunct uniBank Dr. Kwabena Duffour, who challenged the revocation of the bank’s licence by the Bank of Ghana.
The court, presided over by Justice Angelina Mensah-Homiah, said counsel for the plaintiff had used the wrong procedure in complaining about the revocation and also alleging an abuse of his fundamental human rights.
uniBank Gh. Ltd’s licence was withdrawn on August 1, 2018 after the Bank of Ghana’s governor said the local bank was severely undercapitalised.
Four other local banks also had their licences withdrawn on that same day and assets absorbed into the newly created Consolidated Bank of Ghana.
Dr. Kwabena Duffour who was a majority shareholder of uniBank and former Governor of the Bank of Ghana filed a suit on Monday August 20, 2018 claiming the August 1 decision to collapse his bank amounts to illegal expropriating property of the plaintiffs and other shareholders of uniBank.
This, his lawyer, Professor Raymond A. Atuguba of Atuguba and Associates, argued is in breach of Articles 18 and 20 of the 1992 Constitution of Ghana, which protects the right to private property and prohibits the compulsory takeover of private property except under certain conditions.
But the Accra High court in a 13-page judgment said the matter of revocation of uniBank licence must first be heard by an arbitration center as prescribed under Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930).
Section 141 prescribes that any person aggrieved by a decision of the central bank such as revocation of a licence “shall resort to arbitration under the rules of the Alternative Dispute Resolution Center established under the Alternative Dispute Resolution Act, 2010 (Act 798).
This decision upheld the argument raised by counsel for the Bank of Ghana that the plaintiff had put the cart before the horse by proceeding to court instead of triggering arbitration.
But the plaintiff had argued, part of their reliefs are constitutionally guaranteed human rights to private property. Such matters are not arbitrable issues but weighty matters for the exclusive jurisdiction of the High Court.
While the court upheld this view by Dr. Duffour’s lawyers, it also ruled, a matter of human rights abuse must be brought to the court via a motion and not a writ of summons as used by the plaintiff.
She referred to Order 67 of CI. 47 which states, a person who seeks redress in respect of the enforcement of any fundamental human right in relation to the person under article 33 (I) of the Constitution shall submit an application to be made by motion supported by an affidavit.
Justice Angelina Mensah-Homiah said the Plaintiff’s writ of summons had mixed two procedures for addressing two different issues – an alleged human rights abuse and an alleged illegality in the revocation of a licence by a regulator.
While the court has dismissed the suit, Dr. Kwabena Duffour and 16 other shareholders, directors and debtors of the defunct bank are facing a suit by the official administrator of the defunct bank, KPMG.
KPMG among other things, is seeking an order of the High Court directing that Dr Duffuor and the defendants be held liable and made to repay an amount of ¢5.7bn owed the bank.
The ex-shareholders and directors have said the bank run into liquidity challenges partly because the government owed it 428 million cedis.