OSEI BONSU JOSEPH v. GCB & ANOTHER
2021
COURT OF APPEAL
GHANA
CORAM
- ADJEI, JA
- MENSAH, J.A
- DODOO,J.A
Areas of Law
- Alternative dispute resolution
- Banking and Finance Law
- Administrative Law
- Civil Procedure
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Dennis Adjei, JA authored a concurring opinion in an appeal from the High Court’s referral of a dispute to arbitration under the Alternative Dispute Resolution Act, 2010 (Act 798). The appellant had sued in the High Court seeking interpretation of section 123 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) and other reliefs. The 2nd Defendant moved to strike based on section 141 of Act 930, which mandates arbitration for grievances concerning decisions of the Bank of Ghana and its official administrator; the 1st Defendant filed a defence. Adjei distinguished between contractual and statutory ouster clauses, emphasizing that statutory procedures cannot be waived and must be followed. Relying on Ghanaian and English case law and the Kompetenz-Kompetenz principle codified in section 24 of Act 798, he concluded that legal and interpretative questions may be resolved by arbitrators and found no constitutional issue warranting referral to the Supreme Court. He dismissed the appeal grounds and affirmed the High Court’s ruling.
ADJEI, J.A:
I had the privilege of reading through the draft speech of my respected sister, Jennifer Amanda Dodoo, JA, and I have decided to write a concurrent judgment specifically on legal matters. I will not spend much time in discussing the facts as my sister has ably discussed them. The basis for the appeal was that the Appellant filed the suit in the trial High Court without observing the statutory ouster clause provided by section 141 of the Banks and Specialised Deposit- Taking Institutions Act, 2016 ( Act 930)
The Plaintiff being dissatisfied with the decision taken by the 2nd Defendant/Respondent filed a suit in the High Court for a true and proper interpretation of section 123 of the Banks and Specialised Deposit- Taking Institutions Act, 2016 ( Act 930). The other five reliefs sought by the Appellant would be influenced by the outcome of the interpretation to be given to section 143 of Act 930 by the High Court. The 2nd Defendant entered conditional appearance and filed a motion to set aside the writ of summons and statement of claim within the time it was required to plead. The 1st Defendant on the other hand entered appearance and subsequently filed its statement of defence and therefore seemed to have submitted itself to the jurisdiction of the High Court.
The thrust of the 2nd Defendant’s application to the trial High Court to strike out the action was premised on section 141 of Act 930 which makes it mandatory for a person aggrieved by the decision of the Bank of Ghana and official administrator to undergo arbitration.
Sections 107 to 122 of Act 930 requires a person aggrieved by a decision of Bank of Ghana under any of those sections to resort to arbitration under the Alternative Dispute Resolution Act, Act 798 instead of court. The grounds which require mandatory arbitration under sections 107 to 122 of the Act are: matters relating to the appointment of an official administrator by the Bank of Ghana; matters on the general powers of the official administrator appointed by the Bank of Ghana regarding the official administrator’s accounting role to the Bank of Ghana; matters regarding suspension
of dividends by the official administrator; moratorium imposed by the Bank of Ghana to suspend payments by a bank or specialised deposit-taking institution and its effect on proceedings; a right or obligation of a third party subsisting under any contract shall not be suspended on the appointment of official liquidator ; control to be exercis