October 19, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from Bank of Ghana’s revocation of the microfinance licence of the 1st Applicant Company, in which the individual Applicants have vested interests. Relying on Articles 23, 33 and 296 of the 1992 Constitution and Order 67 of C.I. 47, they sought judicial review, including certiorari to quash the revocation, injunctive relief against appointment of a receiver, and damages. The Bank of Ghana moved to set aside the application, arguing that section 141 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) compels aggrieved persons to resort to arbitration under the Alternative Dispute Resolution Act, 2010 (Act 798). The High Court rejected that preliminary objection, awarding costs. On appeal, ADJEI, JA held that statutory ouster clauses may affect ordinary jurisdiction but cannot oust the High Court’s constitutional supervisory and human rights enforcement jurisdiction. Human rights enforcement is of national interest and excluded from ADR under section 1 of Act 798. The Court of Appeal dismissed both grounds, affirmed the costs, and remitted the matter to the High Court for determination on the merits.
ADJEI, J.A:
This is an interlocutory appeal against the ruling of the High Court delivered on 2nd December, 2020. The Applicants filed an application for judicial review in the nature of certiorari for, inter alia, to quash the decision by the Respondent made on 31st May, 2019 to revoke the licence granted to the Applicants by the Respondent to operate a Microfinance Company; to carry on a deposit-taking business in or from within the country; an injunction to restrain the Respondent from appointing a receiver to manage the institution; and damages for wrongful revocation of the licence. According to the Applicants, who have vested interests in the 1st Applicant Company, the Respondent acted in breach of natural justice by denying them a hearing and, furthermore, committed a patent error on the face of the record by proceeding on a procedure contrary to the one provided by the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930). The Applicants brought their application under articles 23, 33 and 296 of the Constitution of Ghana, 1992 and Order 67 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
The Respondent filed an application to set aside the originating motion on notice to pray the High Court to set aside the application filed by the Applicants for the enforcement of their fundamental administrative rights under article 23 of the Constitution of Ghana, 1992. The thrust of the Respondent’s application is that the Applicants who were mandated to comply with section 141 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) failed to resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act, 2010 (Act 798) and their action was incompetent.
The High Court dismissed the Respondent’s application on several grounds, including the fact that an Act of Parliament cannot oust the supervisory powers of the High Court, and a person whose fundamental human rights are alleged to have been violated cannot be compelled by a statute to resort to arbitration where that person decides to enforce his rights under the Constitution.
The Respondent dissatisfied with the ruling of the High Court which dismissed its preliminary objection, filed an interlocutory appeal against the ruling to this Court. The Respondents filed two grounds of appeal and they are as follows:
“(i) The ruling is against the weight of affidavit evidence and,
(ii) The