2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Plaintiff, a company limited by guarantee, invoked the Supreme Court’s original jurisdiction under Articles 2(1) and 130 to challenge the Bank of Ghana’s December 27, 2018 Corporate Governance Directive concerning tenure of Managing Directors/CEOs, Board Chairs, and Non‑Executive Directors of regulated financial institutions. Plaintiff argued the directive, issued under sections 56 and 92 of Act 930, was an Article 11(1)(c) “Order, Rule or Regulation” requiring compliance with Article 11(7)’s parliamentary laying and gazetting. The Bank of Ghana, supported by 2nd Defendant, maintained the directive implemented Act 930 and was administrative. The Court, per Kulendi JSC, analyzed Article 11 and Act 930, distinguished legislative from administrative action, highlighted scenarios when Article 11(7) applies, emphasized BoG’s independence under Act 612 and Act 930, and held the directive is not an Article 11 instrument. Accordingly, Article 11(7) does not apply and the suit fails.
KULENDI JSC:-
INTRODUCTION
Before us is a writ invoking the original jurisdiction of this Court brought by the Plaintiff seeking the interpretation and the enforcement of the 1992 Constitution, and appropriate orders and directions to give effect to any orders made.
CAPACITY
The Plaintiff says that it is a company limited by guarantee and as such brings this action in the capacity of a person under Articles 2(1) and 130 of the 1992 Constitution of the Republic of Ghana.
BACKGROUND
According to averments made by the Plaintiff, specifically at page 3 of its Statement of Case, this suit is provoked by a “document of the 1st Defendant dated in December 2018 and titled; “Explanatory Notes on the Revised Corporate Governance Directive issued in December 2018” and the "Corporate Governance Directive of 2018.”
These Documents, and not “document”, are referred to by the Plaintiff as “the directives” and while the Plaintiff says that both the explanatory notes and the Corporate Governance Directive of 2018 are marked as exhibit 1, it appears that only the Corporate Governance Directive of 2018 is exhibited and marked as Exhibit 1.
The 1st Defendant issued a directive described as the Banking Business Corporate Governance Directive in March 2018, pursuant to sections 56 and 92(1) of the Banks and Specialised Deposit-Taking Institutions Act 2016 (Act 930) hereinafter referred to as Act 930.
According to Plaintiff’s Statement of Case, the 1st Defendant subsequently issued transitional provisions to the banking industry in July 2018, aimed at operationalizing the directive of March 2018 and ensuring full compliance with the directive by 31st December, 2018.
The Plaintiff says that due to concerns raised by various stakeholders affected by the directives, the 1st Defendant revised the March 2018 directives and issued the 27th December 2018 directives which are the subject-matter of the instant suit.
GROUNDS FOR APPLICATION
The Plaintiff is of the view that ”the directives of 27th December 2018, which were made pursuant to Sections 56 and 92 of Act 930, are legislative instruments that is to be precise, rules and regulations within the intendment of Article 11(1)(c) of the 1992 Constitution and therefore ought to be promulgated in accordance with Article 11(7) of the 1992 Constitution of the Republic of Ghana and as a result, could only come into force upon being laid before parliament for a period of 21 sitting days and published in the gazette on the day it