IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
E. K. BONSU LTD - (Plaintiff)
PRUDENTIAL BANK LTD - (Defendant)
DATE: 18TH JULY, 2016
SUIT NO: CM/0266/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Defendant/Applicant seek by this application to stay proceedings of the court pending what he terms as mandatory compliance by the Plaintiff of a statutory provision. The mandatory provision he refers to is section 43 of the Credit Reporting Act, 2007, Act 726. To the applicant as the plaintiff in his claim allege having been defamed based on what plaintiff believe to be inaccurate information provided to XDS Credit Reference Bureau by defendant, the plaintiff ought to have first resorted to the mechanism for resolution of such disputes with the Bank of Ghana before resorting to legal action in the court.
Plaintiff/respondent ardently opposes the application on a number of grounds. One that the application is belated in the sense that the applicant had waived his right to have the matter settled before the arbitral forum created by the law. This he contends that defendant has filed a statement of defence and that amounts to the taking of fresh step. Again to the plaintiff the dispute is not about the operations of the Credit Bureau, XDS Data but mainly has to do with an action the defendant which has made him suffer disrepute in the eyes of the public.
It is provided under section under section 43 of Act 726 as follows:
“(1) A complaint shall be submitted in writing to the Bank before redress is sought in a Court for the settlement of grievance under this Act.
(2) The Bank shall investigate the matter and determine it in accordance with this section.
(3) Where the Bank receives a complaint or notice of a dispute, the Bank shall (a) cause the matter to be investigated, and
(b) settle the dispute or complaint to the satisfaction of the parties concerned, unless the Bank considers the matter to be frivolous or vexatious.
(4) A person dissatisfied with a decision of the Bank may appeal to the High Court.
The Bank here means the Bank of Ghana and the law requires that before any person who has suffers harm arising from the supply of inaccurate or incomplete information about the person is entitled to commence an action in Court against the data provider or credit bureau, by demonstrating that the data provider negligently provided the information which has caused harm to the person, and to seek an injunction or otherwise from the Court to restrain the publication of the inaccurate information. However, this cannot be done unless the aggrieved person has first complied with section 43 of the Law. Clearly then, the action of Plaintiff in this court seeking damages for defamation is well within the grounds of complaints contemplated by section 41 as whatever damages plaintiff may be entitled to arises naturally from the alleged provision of inaccurate information about him by the data provider, that is the defendant and the contention of counsel for plaintiff that this action is not within the perimeters of actions that ought to be first brought before the Bank of Ghana cannot be correct.
What then of the claim that defendant has waived his right to have the matter stayed because he has taken a fresh step? Would filing of a statement of defence be enough to disable a person from invoking a statutory right for settling disputes? It has been cited for the consideration of the court the case of REPUBLIC v HIGH COURT, TEMA; EX PARTE MY SHIPPING PVT LTD  1 SCGLR 237. It is curious to note that in this case an attempt to invoke an arbitration clause to have a matter stayed in favour of arbitration failed because pleadings had been concluded and directions taken. What was left was for the commencement of hearing. It is my understanding that the applicant ought to file the application for stay timeously and not wait when it is too late to do so. Is that the case here? The applicant filed this application after he had entered appearance and filed a statement of defence. Pleadings have not yet closed unlike the case of Ex Parte My Shipping PVT when they were waiting for trial to commence.
In that respect I do not think that there had been an inordinate delay on the part of the applicant. Besides, it is trite that no court has the power to grant immunity to a party to violate the provisions of a statute and if the Law calls for a certain procedure to be complied with before a party comes to court that cannot be waived at the discretion of the court. On that score the application succeeds and the proceedings are stayed until the plaintiff has complied with section 43 of Act 726.
I make no order as to cost.