REPUBLIC vs. NON-PERFORMING ASSETS RECOVERY TRUST; EX PARTE BANK FOR HOUSING & CONSTRUCTION [1996]DLSC616

REPUBLIC vs. NON-PERFORMING ASSETS RECOVERY TRUST; EX PARTE BANK FOR HOUSING & C... [1996]DLSC616

Date	1996-07-16
Suit No.
Citation No.	[1996]DLSC616

AIKINS JSC

BAMFORD-ADDO JSC

CHARLES HAYFRON-BENJAMIN JSC

ADJABENG JSC

AKUFFO JSC

JOHN DAVIES FOR THE APPLICANT.

CHARWAY DODOO FOR THE RESPONDENT.

[1996]DLSC616
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">NON-PERFORMING ASSETS RECOVERY TRUST; EX PARTE BANK FOR HOUSING
&amp; CONSTRUCTION<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1995-96] 1 GLR 591<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>JOHN DAVIES FOR THE APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CHARWAY DODOO FOR THE
RESPONDENT. <o:p></o:p>

AIKINS, BAMFORD-ADDO, CHARLES
HAYFRON-BENJAMIN, ADJABENG AND AKUFFO JJSC<o:p></o:p>

</div>JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC<o:p></o:p>Charles Hayfron-Benjamin JSC delivered the first ruling at the
invitation of Aikins JSC. On 22 May 1996 consequent upon an application by the
Bank for Housing and Construction invoking our supervisory jurisdiction in the
matter of a ruling by the Non-Performing Assets Recovery Tribunal made on 14
December 1995, the Non-Performing Assets Recovery Trust (hereinafter referred
to as the trust) filed a “notice” that at the hearing of the instant
application, the trust by their counsel will raise no fewer than fourteen
preliminary objections.<o:p></o:p>It is difficult to deduce from these general objections which of
them were really such preliminary objections as would induce the court to
dismiss the application in limine. However, it was contended that the
application was misconceived. In the main, the trust having tried to make
capital of the provisions of the Non-Performing Assets (Loans, Investments)
Recovery Law, 1990 (PNDCL 242) concluded by paragraph (13) of their notice of
preliminary points for legal arguments that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(13) The trust contends that certiorari does not lie on the
facts; and that Bank for Housing and Construction has misconceived the scope
and powers of the trust and the NPAR Tribunal. Because where it is within the
powers of the trust, the NPAR Tribunal is clothed with jurisdiction and has
competence to examine the matter in issue and to give a ruling thereon.”<o:p></o:p>By this statement, counsel was understood to mean that the NPAR
Tribunal was “clothed with jurisdiction” and the exercise of that jurisdiction
could not be challenged in the superior courts by resort to prerogative
applications.<o:p></o:p>As it turned out, counsel was in grave error because with the
inauguration of the Fourth Republic and the Constitution, 1992 the existing law
had to be brought into conformity with the Constitution, 1992. Accordingly,
PNDCL 242 had been amended in relevant parts by the Supreme Court Rules, 1970
(CI 13) and the substratum of counsel’s objection had been removed. His
“preliminary points for legal arguments” therefore failed. In my respectful
opinion; the Bank for Housing and Construction’s application is not
misconceived for the grounds averred by the trust and I will overrule it.<o:p></o:p>The instant application is of rather small compass. The applicant
prays in aid the exercise of this court’s supervisory jurisdiction:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“for an order of certiorari to remove into the honourable court
for the purpose of its being quashed the ruling of the NPAR Tribunal given on
14 December 1995 and for an order to restrain the NPAR Tribunal, its servants
or agents from levying execution on the property of the applicant and for such
further orders as this court may deem just.”<o:p></o:p>In the applicant’s affidavit in support of its action, it was
contended on its behalf, inter alia, that the applicant was not originally a
party to the litigation between the trust and a limited liability company
called Nsemmere Quary Ltd of Sunyani, Brong Ahafo Region. The Bank for Housing
and Construction being the majority shareholder and the financier of the
Nsemmere Quary Ltd, had been invited by the Tribunal to explain certain matters
and had been drawn into the litigation as an interested party because its
interest was being threatened: That the “foreign risk element” which was not
borne by the Government of Ghana was “erroneously” passed on to the Nsemmere Quary
Ltd.<o:p></o:p>The Bank for Housing and Construction further contended that the
particular non-performing asset of Nsemmere Quary Ltd which was by the order of
the Bank of Ghana transferred to the trust was “the loan balance and not the
company”, ie Nsemmere Quary Ltd. In the view of the Bank for Housing and
Construction, the NPAR Tribunal failed to appreciate the dual role played by
the bank as a financier and as a shareholder of the company.<o:p></o:p>