January 10, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
A mining and minerals trading company licensed by the Minerals and Mining Commission sued the Bank of Ghana and the Securities and Exchange Commission over regulatory notices and a directive alleged to be an abuse of discretion under Articles 23 and 296, seeking declaratory and ancillary reliefs. The defendants entered conditional appearances and moved to set aside the writ, arguing the matter should be brought by judicial review and was an abuse of process; the SEC additionally argued the suit was premature under Section 19 of the Securities Industry Act because internal remedies had not been exhausted. The High Court, per Mrs. Akua Sarpomaa Amoah J., struck out parts of the plaintiffs affidavit impugning counsel and declined to consider late submissions, rejected that proceeding by writ was fatal and that the action was an abuse of process, but held the case was premature and that the plaintiff must first submit its complaint to the SEC and exhaust Sections 1921 before invoking the courts jurisdiction. No costs were ordered.
The Plaintiff/Respondent (Plaintiff) describes itself as a Limited Liability Company incorporated under the laws of Ghana with its registered objectives being engaging in gold and diamond mining, dealers in the purchase and sale of gold and other precious minerals and consultancy. Plaintiff says that it has been duly licensed by the Minerals and Mining Commission of Ghana to engage in its business objectives. By an amended writ dated the 2" day of October, 2018, Plaintiff has sued the Defendants namely "the Central Bank of the Republic of Ghana established by the 1992 Constitution and responsible for the regulation, supervision and direction of banking and credit system and ensure the smooth operation of the financial sector in Ghana" and the 2nd Defendant, "a body corporate established and operating under the Security Industry Act, 2016 (Act 929) to regulate and promote the growth of the securities industry in Ghana."
Among the reliefs endorsed on the writ are for;
"a) A declaration that the Plaintiffs business does not fall within the scope of the Banks and Specialized Deposit-Taking Institutions Act 2016 (Act 930).
b) A declaration that the Plaintiff's business activities does not involve the issuance of gold bucked depository notes (amended as of right on 1st October, 2018);
c) A declaration that the 1st Defendant's Notices No. BG/GOV/SEC/2018/12 and BG/GOV/SEC/2017/24 dated the 6th day of August, 2018 and the 28th day of November, 2017 respectively have hurt the business reputation of Plaintiff;
d) A declaration that 1st Defendant's Notices No. BG/GOV/SEC/2018/12 and BG/GOVISEC/2017/24 dated the 6th of August, 2018 and 28th November, 2017 respectively are an abuse of the Defendant's discretionary powers contrary to Article 23 and Article 296 of the 1992 Constitution;
e) A declaration that the directives contained in the of 7th September 2018 was an abuse of the 2nel Defendant's discretion as same was arbitrary, capricious and contrary to Article 23 and Article 296 of the 1992 Constitution;
f) An order setting aside the directives contained in the 2nd Defendant's letter dated 7th September, 2018;
g) An order of the Court directed at the 1" Defendant to publish an unqualified retraction and an apology with the same prominence with respect to Notices dated the 6thAugust, 2018 and 28th September, 2017 respectively.
An order of Perpetual Injunction to restrain the 1" and 2" Defendants, its officers, servants and agents from interfering with the Pl