KWABENA DUFFOUR & ORS VS THE REPUBLIC

MAJORITY DECISION

PROF. MENSA-BONSU (MRS. ) (JSC): -

This is an appeal from judgment of the Court of Appeal dated 17th February 2022, occasioned by a Ruling of the High Court in a criminal prosecution currently underway.

Facts and Background The appellant and 6 others have been arraigned before the High Court, Accra since 12th February, 2020, for the alleged roles they played leading to the collapse of UniBank, a Bank licenced to operate under the Banking and Deposit-taking Act, 2016 (Act 930). They have been charged with 68 counts of the following offences: (i) conspiracy to commit fraudulent breach of trust; (ii) fraudulent breach of trust; (iii) Money laundering; (iv)dishonesty receiving; (v) contravention of the Bank of Ghana Act, 2002 (Act 612); (vi)wilfully causing financial loss to the state; (vii) conspiracy to falsify accounts; and (viii)falsification of accounts.

When, in the course of its operations, UniBank began to show signs of distress, the Bank of Ghana stepped in , and in exercise of its powers of supervision over banks and deposit-taking institutions, appointed an official administrator to reorganize the affairs of the bank.

KPMG, an audit firm, was appointed Administrator of Unibank by Bank of Ghana from 20th March 2018 – 31st July 2018. At the end of the Official Administration, the Bank of Ghana revoked the banking licence of UniBank and appointed Nii Amanor Dodoo, a Senior Partner of KPMG, as the Official Receiver of UniBank pursuant to the provisions of Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930). The effective date of the appointment was 1st August 2018, that is one day after the mandate of the Official Administrator ended.

At the close of Management Conference on 22nd February, 2021, the prosecution opened its case by calling its first witness (PW1), Nii Amanor Dodoo, the receiver of UniBank.

On 26th April, 2021, the appellants raised objection to him testifying and challenged the status of PW1 as a competent witness.

Their objection was based on the fact that being a senior partner of KPMG, the Official Administrator of UniBank, he had taken an active part in the management and operation of UniBank as Official Administrator.

Since one who had acted as Official Administrator was prohibited under 122 (8) of the Act 930 from taking any position as “shareholder, director, key management personnel in a bank”, his appointment as receiver was null and void.

Consequent upon his appointment as receiver b