OSEI BONSU JOSEPH vs. GCB AND BANK OF GHANA [2021]DLCA10847

Date	2021-05-20
Suit No.	SUIT NO. H1/76/2020
Citation No.	[2021]DLCA10847

ADJEI JA

MENSAH JA

DODOO JA

[2021]DLCA10847
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													<main id="main" class="content" style="min-height: 60rem" >OSEI BONSU JOSEPH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>GCB AND BANK OF GHANA<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM:
<o:p></o:p>ADJEI JA, MENSAH JA, DODOO JA<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;tab-stops:170.25pt center 234.0pt;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;ADJEI, J.A:<o:p></o:p>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)<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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 <o:p></o:p>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).<o:p></o:p>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 <o:p></o:p>there
is a serious risk to the financial stability of an institution or financial
holding company.<o:p></o:p>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.<o:p></o:p>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:<o:p></o:p>“Where
in any action befo</main>