SAMUEL GYAMFI & 693 OTHERS v. BANK OF GHANA & ANOR
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
Areas of Law
- Banking and Finance Law
- Administrative Law
- Evidence Law
- Civil Procedure
- Tort Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Plaintiffs, customers of Onward Investment Limited (now in liquidation), sued the Bank of Ghana alleging it knowingly permitted Onward to operate commercially as a bank without a licence, failed to warn the public, and thereby breached constitutional, statutory, and tort duties, contributing to fraud and their losses. Following a procedural course in which a prior default judgment was set aside by the Supreme Court, the High Court tried the case. Reviewing Onward’s corporate objects (Online Forex Trading, General Merchandise, Investment Services), public materials (a Partnership Booklet and brochure offering fixed-term profits), and plaintiffs’ admissions and recorded profit payments, the court found Onward held itself out as an investment house, not a bank. Applying Act 673, Act 930, and Act 774, and crediting testimony about Ghana’s four financial regulators, the court held that BoG regulates banks and certain non-banks, while the Securities and Exchange Commission regulates investment entities. BoG’s report to Police and EOCO was a civic duty, not regulatory enforcement. Without BoG as regulator, no duty of care arose, plaintiffs failed to prove their claims, and the action was dismissed without costs.
JUDGMENT
Background
This is a suit arising from the operations of the 2nd Defendant herein and the regulatory duty of the central bank, Bank of Ghana (1st Defendant herein). It is about whether the Bank of Ghana was the regulator of the 2nd Defendant herein and if yes, whether it was negligent in its regulatory duty.
The Plaintiffs were described as customers of the 2nd Defendant herein. The 2nd Defendant was an incorporated limited liability company under the laws of Ghana. The 1st Defendant herein, Bank of Ghana is a constitutional and statutory body responsible for the regulation of banks and non-bank financial institutions among other functions. It must be noted that the names of the then Governor of the Bank of Ghana, Paa Kwesi Amissah Arthur and the Head of Banking Supervision, Franklin Belnye who were originally the 2nd and 3rd Defendants respectively have been struck out of the suit as non- proper parties to the suit. Consequently, Onward Investment Limited is now the 2nd Defendant while the Bank of Ghana remains the 1st Defendant. The 2nd Defendant has undergone liquidation and so did not participate in the trial.
By a Writ of Summons and Statement of Claim dated the 29th day of June, 2012, the Plaintiffs are seeking the following reliefs against the Defendants therein:
“a. A Declaration that the deliberate and or intentional act of 1st defendant, 2nd defendant & 3rd defendant permitting and or indulging the 4th defendant to operate commercially as a bank concern in the Greater Accra region, Ashanti region, and Brong Ahafo region respectively for over 2 years without the requisite Bank of Ghana banking Licence was not only negligent and or unconscionable but unconstitutional, fraudulent and legally impermissible and as a result have caused substantial miscarriage of justice and civil injuries to plaintiffs.
b. A Declaration that by the testimony of the Representative of the Governor of Bank of Ghana and Head of Banking Supervision (i.e. 2nd & 3rd defendants) herein on oath in civil Suit No. RPC 102/2012 admitting and confirming that the Bank of Ghana was aware that 4th defendant had no Licence from the Bank of Ghana whilst it (4th) defendant was operating and also failing to warn the General Public from dealing with the 4th defendant who was operating illegally and fraudulently in foreign transactions/ exchange amounted to a breach of article 183 (2)(d) of the 1992 Constitution of Ghana, the Bank of Ghana Act, 2002 (Act 612) and the Banking