Nduom and Others v. Bank of Ghana and Others, No. J4/07/2023

Material Facts:

The Bank of Ghana, a respondent herein, revoked the specialised deposit-taking licence of the third appellant, Groupe Nduom Limited. The appellants then instituted an action in the High Court seeking, inter alia, a declaration that the revocation of the licence of the third appellant without considering the indebtedness of the Government of Ghana it, violates their rights to administrative justice, to property, and to equality or non-discrimination.

In response to this High Court action, the respondents filed a motion asking the High Court to strike out the action mainly because Section 141 of the Banking and Specialised Deposit-Taking Institutions Act, 2016, (Act 930) , provides and recognises arbitration as the means by which persons aggrieved by the revocation of a licence may seek redress.

Procedural History:

The High Court held that Section 141 of Act 930, which provides for redress through arbitration, does not prevent a party from invoking its Human Rights Jurisdiction pursuant to Article 33 of the 1992 Constitution. The respondents then appealed to the Court of Appeal, which believed that "section 141 of Act 930 is a statutory ouster clause" and therefore foreclosed the jurisdiction of the High Court. It then quashed the decision of the High Court and ordered that the case be referred to an arbitration panel. The appellants appealed against this decision to the Supreme Court.

Issue:

Whether arbitration, as directed under Section 141 of Act 930 , is the exclusive means of redress available to a person aggrieved by the revocation of her licence

Arguments of the Appellants:

That the process by which the licence was revoked occasioned breaches of their human rights guaranteed under the Constitution. They can therefore invoke the human rights jurisdiction of the High Court.

Argument of the Respondents:

1. The provision in Section 141 of Act 930 ousts the jurisdiction of the High Court to entertain any action seeking redress for a grievance. The proper and statutorily recognised forum is arbitration.
2. In the case of Boyefio vs. NTHC Properties Limited [1996–97] SCGLR 531 , Acquah JSC stated that "for the law is clear that where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed…" Consequently, an enactment has provided arbitration as the procedure to use to redress any grievance, and only that procedure ought to be followed.
3. That the effect of Section 141 of Act 930 is to defer the jurisdiction of the regular courts until the parties have gone through the arbitration process, as is the case with domestic tribunals.
4. The matters the appellants are talking about are not genuine human rights issues, but they are only dressed as such by the appellants to enable them to draw on the Human Rights Jurisdiction of the High Court.

Holding:

The arbitration directed under Section 141 of Act 930 is only an alternative means for redress and does not oust the jurisdiction of the courts. The appellants are therefore at liberty to choose either arbitration or to invoke the human rights jurisdiction of the High Court.

Ratio Decidendi:

The decision of the Court of Appeal that Section 141 of Act 980 is an ouster clause that foreclosed the jurisdiction of the High Court is not supported by the letter of Section 141. The section reads:

Where a person is aggrieved with a decision of the Bank of Ghana in respect of…

(c) matters which involve the revocation of a licence of a bank or a specialised deposit taking institution; or

that person desires redress of such grievances, that person shall resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the Alternative Dispute Resolution Act, 2010 (Act 798).

Per Pwamang JSC,

there is nothing in the provision that states that the jurisdiction of any court, or of the High Court for that matter, is ousted. The language by which jurisdiction is ousted is well known and must be explicit in ousting all other existing jurisdictions. The use of the word "shall" alone in section 141 does not oust the jurisdiction of the regular courts in a matter connected with the revocation of a licence.

Even if the section purportedly ousted the jurisdiction of the High Court, that would be unconstitutional because the jurisdiction of the High Court to entertain cases on human rights and its supervisory jurisdiction over administrative bodies are granted by the Constitution and cannot be ousted by a statutory provision.

Specifically on the Human Rights Jurisdiction of the High Court, his lordship noted that Article 33 provides that the jurisdiction of the High Court to enforce personal human rights is "without prejudice to any other action that is lawfully available". By this provision, the framers of the Constitution must have recognised that there may be other means of seeking redress for human rights violations, "yet they conferred recourse to the High Court for enforcement of rights in the Constitution guaranteed as an overarching means for redress." These are simply alternative forums a party may resort to for redress and it is up to the litigant to choose the forum he prefers. The litigants in the present case decided to choose the High Court as the forum for redress, and they cannot be forced to submit their grievances to an arbitration panel.

On the second argument of the respondent, Acquah JSC made that dictum in respect of procedure and not forum. His dictum cannot then be extrapolated to cover situations where a statute provides a forum for redress. His lordship added that:

The fact that a statute provides for a special forum for liabilities arising under the statute does not automatically mean that that is the exclusive forum that must be resorted to for redress of grievances under the statute.

Before a statute can be said to make a special forum the exclusive forum for redress, to the exclusion of other courts, is if the "statute creates a previously non-existent right and in express language gives a specific remedy or appoints a specific tribunal for its enforcement, then that the special forum becomes exclusive." In the present case, it cannot be said that Act 930 created a new right that will justify the creation of an exclusive forum for the enforcement of such a right. In fact, Section 142, which provides that the arbitration panel, in reaching its decision, may examine whether the Bank of Ghana acted unlawfully or in an arbitrary or capricious manner, is similar to the provision in Article 23 that administrative bodies should act fairly. Given the similarity, the means of reviewing the administrative acts of the Bank of Ghana in Act 930 does not extinguish the power of the courts to review the administrative acts of the Bank of Ghana per Article 23.

The decision of the Court of Appeal was quashed, and the High Court could inquire into the plaints of the appellants and determine, among others, whether its human rights jurisdiction has been properly invoked and whether there were violations of their rights.