IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
AMANSIE WEST RURAL BANK LIMITED - (Plaintiff)
BROOKS ASSET MANAGEMENT LIMITED & 6 ORS -(Defendant)
DATE: 29 TH JANUARY, 2018
SUIT NO: BFS/04/18
JUDGES: P ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
SULLEY SAMBIAN FOR PLAINTIFF
NII OMAN BADOO FOR 7TH DEFENDANT
The Securities and Exchange Commission, the Applicant herein, per its lawyer moves the court as follows:
1) That the jurisdiction of this Honourable Court has been improperly invoked under the High Court Civil Procedure) Rules, 2004 (C.I.47) as amended.
2) That the Suit/Action is premature as the mandatory or domestic remedies provided under the Securities Industries Act, 2016 (Act 929) (hereinafter called the ‘SIL’) have not been complied with by the Plaintiffs.
That this suit is an abuse of this Honourable court’s process and vexatious.
The gravamen of the application is that the Respondent has not exhausted the mandatory local remedies provided under Act 929 and therefore this court’s jurisdiction has not been properly invoked. It has been argued by counsel for the applicant that the Plaintiff’s case falls within the purview and legal mandate of the Commission. And, the Commission has rules which require that “a complaint, dispute or any violation arising under this Act shall before any redress is sought in the Courts, be submitted to the Commission for hearing and determination in accordance with this Act.”
Counsel for the 7th Defendant/Applicant in his written submissions cited and relied on several authorities in which the courts have ruled that the domestic remedies are to be exhausted prior to instituting an action in court. I will highlight the case of The Republic v High Court (Commercial Division) Accra, Ex parte Republic Bank Limited ;HFC Bank (Ghana) Limited & Securities and Exchange Commission (Interested parties) Unreported Civil Motion No. JS/45/2014 17th December, 2014, per Atuguba JSC.
As to be expected, the Plaintiff/Respondent vehemently opposed the application. The grounds are contained in affidavit in opposition filed on 15/12/17. In sum, the Plaintiff/Respondent’s contention is that before this suit was initiated, it wrote to the 7th Defendant/Applicant complaining about the action of the 1st Defendant, a copy of that letter was attached as exhibit ‘MB.’ This was followed up by a letter from the Plaintiff’s solicitor a month later, yet the 7th Defendant turned a blind eye to its complaints. Another contention is that since the 7th Defendant is a party to this suit, there is a likelihood of bias if the case is referred to them for investigation, and, it cannot raise the issue of ‘domestic remedies’ so as to take a shield under the same.
In his written submissions filed on 23/01/2018, counsel argued that the 7th Defendant/Applicant has been silent on exhibit ‘MB’, that is, the complaint lodged by the Plaintiff herein, and has not in any way challenged it. Counsel also argued that from the provisions of the Act, the 7th Defendant/Applicant will clearly be a judge in its own cause to insist that the Plaintiff ought to have exhausted internal remedies when the 7th Defendant is a party. In his view, if the Act is construed in that manner, it will lead to absurdity.
Citing the Ex parte Republic Bank Ltd, Case, referred to, supra, counsel argued that unlike the facts in that case, the Plaintiff herein has already lodged a complaint with the 7th Defendant, but it failed to take any action. And, it is this same body that the 7th Defendant/Applicant wants the Plaintiff/Respondent to seek “domestic remedies” from. So, in the view of counsel, the Plaintiff/ Respondent has already exhausted the domestic remedies under the Act. Counsel also argued that even if the ‘domestic remedies” have not been exhausted, the proper cause is to stay proceedings and not to strike out the writ of summons.
This court has closely examined the submissions of both counsel, as well as the affidavits and other processes filed. Indeed, section 19 of Act 929, variously referred to by counsel, states:
(1) A complaint, dispute or a violation arising under this Act shall, before any redress is sought in the courts, be submitted in writing to the Director-General
(2) A person who intends to submit a complaint or a matter to which subsection (1) applies shall submit it in writing to the Director-General.
(3) The Director-General shall cause the matter to be investigated and unless the Director-General can settle the disputed matter, refer the matter together with the findings of the investigations to the Hearings Committee within thirty days of receipt of the written complaint, dispute or violation; and at the same time inform the complainant or persons concerned of the submission to the Hearing Committee.
(4) Subject to section 22, the hearing Committee shall on receipt of a complaint or matter under this section, examine and determine the complaint or matter.
(5) The hearings Committee shall not determine a complaint or matter which is the subject matter of an action before a court.
There are several statutes which provide internal mechanisms for resolving disputes. The position of the courts has been that those internal mechanisms have to be exhausted before a party can come to court. So, in the Ex-parte Republic bank case, supra, Atuguba JSC, did not hesitate to quash a ruling of the High Court which assumed jurisdiction when the domestic remedies had not been exhausted. Similarly, in Boyefio v NTHC Ltd (1997-98) 1 GLR 768 the court made this observation:
The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. Furthermore, section 12(1) of PNDCL 152 was in consonance with the modern practice of setting up an internal tribunal in an institution to determine at first instance disputes arising within that institution before recourse was made to the courts if the matter did not end at the internal tribunal. In such situations, where a person ignored the internal tribunal and came to court in respect of any such internal dispute, unless that person had a substantial reason for side-stepping the internal tribunal, the courts would invariably order him to go back to the internal tribunal.
So, the question now is, has the plaintiff/respondent availed himself of the remedies under section 19 of Act 929, and exhausted the same? The plaintiff’s exhibit “MB” dated 2nd August, 2017 reads:
Securities & Exchange Commission
P.O. Box CT 6181
COMPLAINT OF NON-PAYMENT OF INVESTMENTS BY BROOKS ASSET MANAGEMENT LTD.
We officially write to complain about the failure of Brooks Asset Management Ltd to pay our investments and accrued interests to the tune of GHC 4,555,500.00 as at 31st July, 2017.
We therefore implore your outfit to intervene in this regard as the regulator of the sector.
Counting on your co-operation.
Sgd. Mills Opoku Boateng
I must say that even if there are standard forms to be used in filing a complaint, exhibit ‘MB’ in its present form should suffice, as it is the content, but not the form that matters. What did the 7th Defendant do with regards to the Plaintiff’s complaint between August 2017 to October, 2017 when the writ of summons was issued? One would have thought that the Commission would at least respond to the said letter formally, and if it did, the affidavit evidence does not show that the same was brought to the attention of this court. So, it is reasonable to infer that the complaint was not given the needed attention by the Commission. After waiting for a reasonable period without a word from the 7th Defendant, what was the Plaintiff supposed to do? Throw its hands in despair and wait upon the 7th Defendant to wake up from its seemingly unending deep slumber? Obviously, not! The
Plaintiff was entitled to presume that the 7th Defendant will not take any action, having waited for a reasonable period. In the circumstances of this case, which is distinguishable from the ex-parte Republic Bank case, supra, the Plaintiff cannot be faulted for seeking redress in court out of desperation. That is what any reasonable man would have done under those circumstances.
Be that as it may, the 7th Defendant/Applicant has now come to a realization that it needs to set in motion its domestic remedies, and must the court prevent it from doing so? This brings to mind the submission by counsel for the Plaintiff/Respondent that proceedings could, be stayed, and for the matter to be referred to the Commission. Ordinarily, that argument would have found favour with the court. However, considering the provisions of sections 19 (5) of the Act, quoted above, and section 23, It states:
SEC. 23: APPEALS FROM DECISIONS OF THE BOARD WITH REFERENCE TO THE HEARING COMMITTEE.
A person dissatisfied with a decision of the board may seek redress in the High Court.
First, from section 19(5), once the case is still pending in court, the Commission cannot go into it and so no useful purpose will be served in staying proceedings. Second, the jurisdiction of the High Court in matters which fall within the domain of the Commission is appellate, reading from section 23 of the Act. It is the considered opinion of this court that this court cannot assume original jurisdiction, the Plaintiff’s writ of summons ought to be struck out, so that the Commission will attend to the Complaint lodged by the Plaintiff.
That notwithstanding, it was the 7th Defendant’s inaction that pushed the Plaintiff to cause a writ of summons to be issued. The filing fees and related statutory charges was approximately GHC 3,270.00. The Plaintiff was also represented by a lawyer as required under Order 4 rule 1(2) of C. I. 47. Who must bear the legal expenses under these unfortunate circumstances? Ordinarily, a Plaintiff whose writ of summons is struck out will not be awarded cost, but the Plaintiff herein who is in court as a result of the inaction of the 7th Defendant/Applicant, cannot be expected to bear its legal expenses. Accordingly, the court awards GHC 5,000.00 as cost against the 7th Defendant/Applicant to be paid forthwith.
The Plaintiff’s writ of summons and statement of claim are struck out.