IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
DR. KWABENA DUFFOUR AND ANOTHER - (Plaintiff)
BANK OF GHANA - (Defendant)
DATE: 21 ST DECEMBER, 2018
SUIT NO: CMffBDC/0003/19
JUDGES: ANGELINA MENSAH-HOMIAH J, (MRS.) JUSTICE OF THE HIGH COURT
HAROLD ATUGUBA HOLDING BRIEF FOR RAYMOND ATUGUBA FOR THE PLAINTIFF RESPONDENT PRESENT
EMMANUEL DARKWA WITH PATRICK JUSTICE ANNIN AND NELL Y, WALLACE HOLDING BRIEF FOR FRANK DAVIES FOR THE 'DEFENDANT PRESENT
On 6th September 2018, Counsel for the Defendant/Applicant (Defendant) filed a Motion on Notice to set aside the Plaintiffs'/Respondents' Writ of Summons and Statement of Claim. Per the endorsement on the Plaintiffs' Writ of Summons filed on 20th August, 2018 and the Amended Statement of Claim filed on 27th August 2018, these are the reliefs sought:
a) An Order of injunction restraining the Defendant from expropriating UniBank by its purported vesting of "good assets and liabilities" of UniBank in Consolidated Bank Ghana Limited and the revocation of the license ofUniBank;
b) A declaration that the license purportedly granted to the Consolidated Bank Ghana Limited was not granted in accordance with Act 930 and is null and void;
c) A declaration, consequent to (ii) above, that the "good assets and liabilities" of UniBank, including deposits of depositors, cannot be lawfully vested in Consolidated Bank Ghana Limited;
d) An order of injunction restraining the Defendant from arbitrarily and capriciously impairing almost the entire loan book, including debts of Government and Quasi- Government institutions and Shareholders' advances in the accounts of UniBank to justify its purported revocation of the license of UniBank;
e) A declaration that the purported revocation of the License of UniBank is null and void, being in breach of Articles 23 and 296 of the 1992 Constitution of the Republic of Ghana;
f) A declaration that the purported revocation of the License of UniBank constitutes unlawful expropriation of the property of the Plaintiffs' and other shareholders of UniBank in breach of Articles 18 and 20 of the 1992 Constitution of the Republic of Ghana;
g) An order of mandatory injunction requiring the Defendant to restore UniBank to private management and shareholding;
h) Any other relief(s) which this honourable court deems fit.
A SUMMARY OF THE CASE BEFORE THIS COURT
The Plaintiffs describe themselves as shareholders of UniBank. The Defendant is the Central Bank of the Republic of Ghana established under Article 183 of the 1992 Constitution. Between August 2017 and November 2017, it is alleged that the Banking Supervision Department of the Defendant carried out various audits at UniBank and came out with many findings, notably, that the Capital Adequacy Ratio (CAR) of UniBank had drastically reduced from 10.7% to a negative 24.02%, and a capital deficit ofGHCl.18 billion as of December, 2017. Subsequently; the Defendant appointed KPMG as the Official Administrator for UniBank under section 108 of the Banks and Specialised Deposit- Taking Institutions Act, 2016 (Act 930), to "exercise a variety of powers to rehabilitate the bank to regulatory compliance within a period of six months, at the end of which the bank will be returned to private ownership and management". It is also alleged that the Government of Ghana owed UniBank an amount of GHC 428,817,961.06 from various payment certificates, which also contributed to the so-called financial crisis of UniBank. Whilst under the Administrator, the Defendant is said to have accused UniBank of increasing its asset base by granting new loans totaling GH¢760,675,826.23, this assertion was denied by UniBank. The Plaintiffs also accused the Defendant for arbitrarily and capriciously impairing almost the entire loan book of UniBank. In the midst of the Financial Crisis, the Defendant on l " August 2018, issued a press statement to the effect that the Government of Ghana had established a new indigenous bank, Consolidated Bank Ghana Limited (CBG), and had revoked the licenses of five banks, including UniBank. A Receiver was also appointed in respect of the "good assets and liabilities" of UniBank. The Plaintiffs contend that the actions of the Bank of Ghana have infringed their constitutional rights and are also contrary to statute. Hence, the instant suit.
BASIS FOR THE APPLICATION
As gathered from the affidavit and supplementary affidavit in support of the application, the gravamen of the Defendant's application is that the Plaintiffs have invoked the jurisdiction of this court by the wrong procedure on two grounds, namely: (i) reading through the pleadings, the Plaintiffs are aggrieved by the actions taken by the Defendant under Sections 123 to 139 of Act And, Section 141(1) (a) of Act 930, prescribes that "any person who is aggrieved with a decision of the Bank in respect of matters under sections 123-139 of Act 930, and that person desires redress of such grievances, that person shall resort to arbitration" under the rules of the alternative Dispute Resolution Centre, established under the Alternative Dispute Resolution Act, 2010 (Act 798).
Therefore, the Plaintiffs ought to have resorted to arbitration rather than issuing a Writ of Summons;
The Plaintiffs have sought reliefs under Articles 23 & 296; and Articles 18 &20 of the 1992 Constitution of the Republic of Ghana as a result of the actions of the Defendant in handling the books, assets and liabilities of Unibank, which has now been taken over by CBG. The Defendant contends that the Plaintiffs ought to have proceeded by way of judicial review (in the form of an originating notice of motion), if they intend to question the decision of an administrative body, and not by way of a Writ of Summons. In his submissions before this Court, Counsel for the Defendant argued that since the Plaintiffs' suit is primary based on the revocation of the licence of Unibank, and Act 930 has specifically made provision for a procedure to seek remedy, it is that procedure alone which must be followed. Boyefio v NTHC Properties Ltd (1996.,97) SCGLR 531 at page 533 cited. Counsel argued further that no Court is at liberty to disobey a statute, quoting the pronouncement of Atuguba JSC in the case of Republic v. High Court (Fast Track Division) Accra; Ex Parte National Lottery Authority (2009) SCGLR 390 at 397-398 titus:
"It is communis opinion among Lawyers that the courts are servants of the legislature. Consequently, any act of a court that is contrary to statute, is ... unless expressly or impliedly provided, a nullity"
Continuing, Counsel argued that the declaratory reliefs sought are ancillary to the real issues to be decided by the Court, that is, the propriety of the revocation of the licence of Unibank, the setting up, and transfer of its assets to CBG. Counsel invited the Court to look at the substance of the claims, and not the form in which they have been couched so as to bring out the real issues in controversy, and to determine whether the Plaintiffs are properly' before this court. He cited two (2) cases to buttress this point: (i) Ghana Consolidated Diamond Ltd v. Tantuo (2003-2004)SCGLR J 136 at 1144, per Atuguba JSC; (ii) Republic v. High Court.Koforldua (Ex Parte Otutu Kono III ( Akwapim Traditional Council Interested Party) (2009) SCGLR 1 @l1 per Georgina Wood CJ.
Concluding, Counsel submitted that assuming that the Plaintiffs' rights have been infringed by an administrative body, the proper procedure is an application for Judicial Review, and not the issuance of an ordinary Writ of Summons. Counsel urged the Court to grant the instant application, and set aside the Plaintiffs' Writ of Summons since it seeks to circumvent the requisite procedure.
GROUNDS FOR OPPOSING TH.E APPLICATION
As to be expected, the Plaintiffs per the affidavit in opposition, and supplementary affidavit filed on 24th September, 2018 and 12th December, 2018 respectively, vehemently opposed the application. In sum, the Plaintiffs contend that this Court is the proper forum provided for in the constitution for the adjudication of claims such as those set out in the Writ of Summons and statement of claim. Counsel for the Plaintiffs, neatly summarized his arguments as follows:
Under the constitution and other Laws of Ghana, the constitutionally guaranteed human right to private property may be enforced by issuing a Writ of Summons in the High Court, without any requirement for mandatory arbitration. The 1992 constitution specifically mandates this; the Courts Act provides for this and the High Court (Civil procedure) rules also make provision for this, and flowing from this The Alternative Dispute Resolution Act, 2010 (Act 798) takes constitutional matters out of the scope of arbitration.
The Writ of Summons and Amended Statement of Claim raise issues of grave non- compliance by the Defendant/Applicant with clear provisions of the 1992 constitution and statutes, matters which are clearly within the jurisdiction of this Court.
The propriety of filing a Writ of Summons in a case such provisions of the Constitution, the Courts Act the High Court as the instant case is clear from (Civil Procedure Rules) and from authority of binding decisions of the Supreme Court.
The Plaintiffs in this case have put forward serious claims in their Amended Statement of Claim and have filed a notice to admit facts which to date Defendant has not responded to. Plaintiffs cannot be driven from the judgment seat without a hearing on the basis of spurious procedural arguments and bald assertions by the Defendant that the claims put forward by Plaintiffs in respect of Constitutional violations are "cleverly couched" as constitutional issues but in reality just challenges to a decision by the Defendant to revoke a Banking Licence.
Counsel proceeded to expatiate the points raised above in the subsequent paragraphs of his written submissions to demonstrate that not all the reliefs sought by the Plaintiffs relate to the revocation of the Banking License of Unibank. References were made to reliefs (ii) & (iii), which according to Counsel, are explicitly about the grant of a licence to CBG, relief (iv) which concerns matters that occurred prior to the purported revocation of the licence of Unibank; as well as reliefs (v) & (vi) which are about the breach of Articles 23 & 296 of the Constitution which made the purported revocation of the licence of Unibank a nullity; and also the unlawful expropriation of the property of the Plaintiffs and other shareholders of Unibank in breach of Articles 18 & 20 of the 1992 Constitution.
It was also the submission of Counsel for the Plaintiffs that no statute can take away the authority granted this Court by the Constitution to adjudicate claims. Thus, Section 141(1) (a) of Act 930 does not, in any case, purport to take away the authority of this Court to entertain fundamental Human Rights. He supported these submissions with case Law, both reported and unreported (but furnished to the Court). The procedure adopted by the Defendant in bringing this application was also questioned by Counsel on the basis that a party who enters conditional appearance to a Writ of Summons cannot proceed to file a process to set aside the Writ of Summons, and that such applications amount to an abuse of the court process. The statement by Kpegah J C in the case of Republic v. High Court, Accra Ex Parte Aryeetey (Ankrah Interested Party) (2003-2004) SCGLR 398 was cited to reinforce this point thus:
... The Circumstances under which a Defendant can enter a conditional appearance and thereby have a right to apply to set aside the writ ought to be known to practitioner given audience on Court. But for the avoidance of doubt, we would like to reiterate that a conditional appearance is to enable the Defendant who intends to object to the issue or service of the writ or notice of the Writ on him, or to object to the jurisdiction of the court, to apply to the court to set aside the Writ or the service thereof on him ... It is not permissible for a Defendant who has entered a conditional appearance, to move the court to have the writ set aside because he has a legal defence, even if unimpeachable, to the action ...Such a Defendant cannot also apply, after entry of conditional appearance, to have the writ set aside on grounds that the action is either frivolous, vexatious or an abuse of the process of the court ".
Bringing down the curtain on this line of arguments, Counsel indicated the Court has inherent jurisdiction to dismiss an action which is an abuse of its process, but in his estimation, the instant suit cannot be classified as one of an abuse of the court process. The next line of argument was about the exclusive jurisdiction of the High Court in respect of enforcement of Human rights matters. On this point, counsel cited and relied on cases such as Edusei (No.2) v. Attorney-General (1998-99) SCGLR 753; Republic v. High Court, Accra, (Industrial and Labour Division); ex parte Peter Sangber-Dey; and Adamu v. University of Cape Coast & Anor (1999-2000) 1 GLR
John Ofori v. Bank of Ghana & Ors (unreported) Commercial Court Accra, dated 30''' November 2017 was distinguished.
On the argument that the enforcement of human rights can be commenced by Writ of Summons, as in the instant case, Counsel cited and relied on authorities such as i)The Republic v. High Court Winneba ex parte University Teachers Association of Ghana (Winneba Chapter); (Supi Kofi Kwaye ra 1 I Interested Party) (University of Winneba 2nd Interested Party) ( Minister of Education JI'41nteresfed Pat1J.~ (Unreported decision of the Supreme Court dated 20''' December 2017); ii) The Attorney General v. Balkan Energy & Drs (2012) 2 SCGLR 998.
Concluding, counsel submitted that the constitutionally protected property rights of the Plaintiffs have been violated by the Defendant, such infractions are not arbitrable, that the instant application is a mere attempt to delay proceedings, and that the Courts have a duty to avoid delay, unnecessary expense, and multiplicity of suits in fidelity to Order 1 r 1(2) of C.L 47.
ANALYSIS BY THE COURT
On the question of whether an application to set aside a Writ of Summons can be filed after the entry of conditional appearance, the position of the law as stated in Ex parte Aryeetey cannot be challenged, counsel for the Plaintiffs was right in his argument on this point. It is also not in dispute that the Defendant in the case before this court entered a conditional appearance on 23rd August, 2018, and proceeded to file the application to set aside the writ of summons on 6th September, 2018. By simple arithmetic, from 23rd August, 2018 to 6th September, 2018 is a period of Fifteen (15) days. By the 15th day, the conditional appearance had crystallized into an unconditional appearance within the meaning of Order 9 Rule 7 (2) of C.l. 47 which reads:
A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as unconditional appearance unless the Defendant applies to the Court within the time limited for the purpose, for an order under rule 8 and the Court makes an order under that rule.
Order 7 Rule 8 also states:
A Defendant may at any time before filing appearance, or, if the Defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to
(a) set aside the writ or service of the writ:
(b) declare that the writ or notice of it has not been served on the Defendant; or
(c) discharge any order that gives leave to serve the notice 011 the Defendant outside the country.
Therefore, the instant application which is essentially challenging the procedure used to invoke the jurisdiction of this Court, and filed after the conditional appearance had crystallized into an unconditional appearance is to be distinguished from the Ex-parte Aryeetey case,
MATTERS WH1CH ARE ARBITRABLE
It is provided under section 1 of the Alternative Dispute Resolution Act 2010, Act 798 as follows:
1. This Act applies to matters other than those that relate to
(a) the national or public interest;
(b) the environment;
(c) the enforcement and interpretation of the Constitution;
(d) any other matter that by law cannot be settled by an alternative dispute resolution method.
On the issue that matters relating to the enforcement of the constitution are not arbitrable, the court will uphold the submissions of counsel for the Plaintiffs and hold that irrespective of how the reliefs and (vi) endorsed on the Writ of Summons have been couched, a person who alleges that his or her constitutionally protected rights have been violated cannot be compelled to resort to arbitration since that will amount to a clear violation of statute. Put differently, human rights violations and enforcement are not arbitrable within the meaning of section 1 of Act 798 referred to, supra.
On the issue of enforcing human rights by issuing a Writ of Summons, the opinion of this Court will be based on Article 33 (1) of the 1992 Constitution of the Republic of Ghana; and Order 67 of the High Court (Civil" Procedure Rules) 2004 C.1. 47 as quoted below:
Article 33 (1) of the 1992 Constitution
"Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress"
Order 67 of .1.47
Application for redress under article 33 of the Constitution
A person who seeks redress in respect of the enforcement of any fundamental human right in relation to the person under article 33 (1) of the Constitution shall submit an application to the High Court.
Mode of submission of application
2. (1) The application shall be made to the Court by motion supported by an affidavit signed by the applicant or by the applicant's lawyer and shall contain the following particulars
(a) the full name and address for service of the applicant and the lawyer of the applicant;
(b) the facts upon which the applicant relies;
(c) the relief or remedy sought by the applicant and the grounds on which the applicant seeks the relief or remedy: and
(d) The full name and address for service of any person directly affected by the application.
(2) A copy of the application shall be served on the Attorney-General and such other persons as the Court may direct.
Time for submission of application
3. (I) the application shall be submitted to the High Court within
(a) six months of the occurrence of the alleged contravention: or
(b) three months of the applicant becoming aware that the contravention is occurring or is likely to occur.
In the case of Awuni 11, West African Examination Council (2003-2004) SCGLR 471at 475, the Supreme C o u r t , per Sophia Akuffo JSC (as she then was) stated:
When article 33(1) gives to a person alleging that any of his rights and freedoms under chapter jive has been, is being or likely to be contravened the right 10 apply to the High Court for redress, there is an irresistible presumption that such a person may invoke the jurisdiction of the High Court by way of an application rather than by way of a writ of summons. When fundamental human rights have been, are being or likely to be contravened, access to judicial redress must be as swift and timely as feasible to ensure that such rights or freedoms are not lost or irredeemably damaged forever ... lt is clear to me that article 33(1) is a special one,' and by clear constitutional stipulation, it may be invoked by an application. Whether such an application must be by originating summons or originating motion on notice, the constitution does not prescribe any form of such an application, but rather envisages in article 33(4), that the Rules of Court Committee would make rules to guide the practice and procedures for the purposes of the article ... As yet, however; there are no correlated provisions in the Rides of the High Court that mandate any particular form of the application for invoking article 33(1). It is, therefore, my view that, until such rules have been made, the High Court must be guided by the terms of the article itself plus common sense and pragmatism.’’
It flows from the above decision of the Supreme Court that with the coming into force of the High Court (Civil Procedure Rules), 2004 C.l. 47, a person who alleges that his human right and freedoms under the constitution has been, or is being or is likely to be contravened, may invoke Article 33 (l) of the 1992 Constitution, and then apply to the Court under Order 67 of C.l. for redress. And, by Order 67(2) (1), the application shall be by motion supported by affidavit. Therefore. if the redress being sought falls within the contemplation of Article 33(1) of the 1992 Constitution, especially in terms of the time lines, then the proper procedure is by an originating notice or motion, supported by an affidavit. It cannot be commenced by a writ of summons. However, after the expiration of the time frame envisaged under Article 33 (1) which is invoked by Order 67 of C,l. 47, the cause of action is not extinguished, nor become statute barred, it becomes a wrong in common law. An aggrieved party may seek a common law remedy which can be enforced by issuing a Writ of Summons (see Enforcement of Fundamental Human Rights and Supervisory Powers of the Court- A paper delivered by Justice Dennnis Adjei, 11th September, 2018).
In the instant case where the constitutional violations complained of, that is the revocation of the licence of UniBank, the transfer of its good assets and liabilities, among others, occurred less than six months before the commencement of the suit, the proper procedure was to have filed an application to enforce those rights pursuant to Article 33( 1) of the 1992 Constitution and Order 67 of C.L 47. If the proper procedure had been followed, the High Court, clothed with its exclusive jurisdiction in the enforcement of constitutional rights, could determine the application. It is to be noted that the jurisdiction of the Commercial Division of the High Court to entertain such an application for the enforcement of Human Rights has not been taken away, even though it does not fall under cases typically handled by the Commercial Court under Order 58 rules (1) and (2) of C.1. 47. This is because under Article 140(1) of the 1992 Constitution, the High Court has original jurisdiction in all matters. As it stands now, the plaintiffs have not properly invoked the jurisdiction of the High Court as far as the enforcement of the alleged Human Rights are concerned. In respect of reliefs (i), (ii), (iii) and (iv), it is the candid opinion of this court that the cause of action arose from the actions of the Bank of Ghana, the Defendant, in performing various statutory functions under sections 123 to 139 of Act 930. The court will uphold the submissions by counsel for the Defendant that an aggrieved person must seek redress as provided for under section 141 (1) (a) of Act 930. It reads:
"where a person is aggrieved with a decision of the bank of Ghana in respect of matters under section 107 to 122 or sections 123 to 139, ... and that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternate Dispute Resolution Centre established under the Alternative Dispute Resolution Act 2010. Act 798".
It true as counsel for the Plaintiffs has argued, that the Alternative Dispute Resolution Centre under Act 798 has not been set up. However, that alone must not prevent aggrieved persons from seeking redress from any accredited ADR Centre in Ghana such as the Ghana Arbitration Centre. Put differently, until an ADR Centre is established under Act 798 an aggrieved person and the Bank of Ghana may agree, and select their own arbitrator, or a panel of arbitrators, to go into the matters complained of. The next question which arises is, whether a writ of summons issued by a party who ought to have gone for arbitration, is to be struck out by the court. On this point, there are numerous authorities to the effect that in such circumstances, proceedings ought to be stayed, and the matter referred to arbitration. But, an application for stay of proceedings must be filed, supported by an affidavit under Section 6 (1) of Act 798. It is to be observed that the situations that fall within the contemplation of Section 6(1) of Act 798 are arbitral clauses in agreements between parties. See, Skanska Jensen International v. Klimatechnlk Engineering Ltd (2003/3004) SCGLR 698, HOLDING 1, where the court held as follows:
"Section 8 of the Arbitration Act, 1961 (Act 38), requires that an application must be made to the court specifically praying to the court for an order that the proceedings be stayed. The application must be by motion, supported by an affidavit upon which the applicant relies. The other party may file an affidavit in opposition ..."
Section 8 of Act 38 is not different from Section 6(1) of Act 798). Is this procedure applicable to mandatory arbitration under a statute as in Section 141 .of Act 9307 The opinion of this court is that, Act 798 cannot oust the jurisdiction of the High Court. It follows that as far those reliefs are concerned, proceedings could be stayed and the matter referred to arbitration, even though a formal application was not filed. However, the writ of summons in its present form, is a mixture of two (2) procedures which the Plaintiffs ought to have followed. That is, for the enforcement of the constitutional and/or human rights, an originating motion on notice ought to have been filed. For the reliefs falling outside the constitution, a Writ of Summons could be issued. If proceedings are stayed, what happens to the human rights aspect which ought to have been commenced by an application to the court under section 67 of C.I. 47? In the peculiar circumstances of this case, the court is of the humble opinion that the Plaintiffs cannot be put to their election as to whether the human rights aspect must be struck out, so that the outstanding reliefs which certainly fall within Sections 123 to 139 of Act 930, are referred to arbitration.
The net effect is that the Plaintiffs' Writ of Summons in its present form cannot stand, and the same is accordingly set aside and the suit is struck out.
There is no order as to cost.