October 19, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Dennis Adjei JA, reviewed a High Court decision that had terminated a microfinance institution’s judicial review application for want of capacity after the Bank of Ghana revoked its deposit-taking license on insolvency grounds. The applicant argued the revocation violated section 16 of Act 930 and audi alteram partem, seeking certiorari to quash the central bank’s decision. The Bank of Ghana opposed on a preliminary objection, invoking section 123(1) of Act 930 to assert that, once a receiver is appointed, only the receiver can sue. The High Court accepted that position and struck out the application. On appeal, the Court of Appeal held that capacity is not a prerequisite for judicial review in Ghana, citing Supreme Court authority that prerogative writs have a public aspect and are not constrained by locus standi. The appeal was allowed on the capacity ground, and the matter was remitted to the High Court for determination on its merits.
ADJEI, J.A
This appeal emanates from the ruling delivered by the High Court Accra on 12th March, 2020 which terminated the judicial review application filed by the Applicant/Applicant for want of capacity. The thrust of the Applicant’s application filed before the High Court was that the Respondent revoked the licence it granted to the Applicant to operate as a Non-Bank Financial Institution, Micro Finance (Deposit-Taking) under the Banking Act, 2004 (Act 673) on 10th April, 2014 without any justification or explanation. According to the Applicant, the Respondent revoked the licences of some Microfinance Companies for being insolvent and included the Applicant as one of them without complying with section 16 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), which prescribes the procedure for revocation of a licence issued by the Respondent to undertake a deposit-taking business.
The Applicant filed its application for judicial review under Order 55 of the High Court (Civil Procedure) Rules, C.I. 47, section 16 of the Courts Act, 1993 (Act 459) and Article 141 of the Constitution of Ghana, 1992, praying the High Court to issue certiorari to quash the purported decision of the Respondent which revoked the licence issued to it to carry on deposit-taking business. The two grounds assigned by the Applicant to justify the application were that the revocation of the licence was unlawful and made in violation of a statutory provision; and furthermore, the decision to revoke the licence was made in blatant violation of the principle of audi alteram partem.
The Respondent raised a preliminary objection to the competence of the application on the premise that, in accordance with section 123 (1) of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), when the Respondent revokes a licence on grounds of insolvency, it appoints a receiver at the effective date for the revocation, and the receiver shall take possession and control of assets and liabilities of the affected specialised deposit-taking institution and any action on behalf of the institution shall be brought by the receiver.
The High Court upheld the preliminary objection and ruled that where the licence of a deposit-taking institution is revoked by the Respondent under section 123 of Act 930 and a receiver is appointed, it is the receiver who takes control of the assets and liabilities of the institution. Furthermore, section 127 (3) (k) of the Act clothes