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General News of Thursday, 11 July 2019

Source: Graphic.com.gh

Receiver of defunct uniBank can’t sue in his name ; High Court rules

Nii Amanor Dodoo, the receiver of the defunct uniBank, has no capacity to initiate a legal action in his name against the shareholders of the bank, the Accra High Court has ruled. The court has, accordingly, dismissed a suit filed by the receiver which sought to find 16 shareholders of the bank culpable of breaching their fiduciary duties, leading to the collapse of the bank.

Per the judgment delivered by the court, presided over by Justice Jennifer Dadzie, although Nii Dodoo has the power to manage the assets of the bank and act in the bank’s interest, whatever action he takes, including the initiation of a legal action, should be done in the name of the bank and not in his name.

According to the court, there is no provision in the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), the law regulating the banking industry, which gives the receiver the power to initiate a legal action in his name.

Also, the court held that the letter from the Bank of Ghana (BoG) appointing Nii Dodoo as the receiver of uniBank did not also give him the power to initiate a legal action on behalf of the bank in his name.

“Therefore, I hold that the appointment of the plaintiff (Nii Dodoo) as the receiver does not divest uniBank of title to its assets nor does it vest same in the plaintiff to establish in him a right to institute the present action in his name.

“It is, therefore, my considered view that the present action having been initiated in the name of Nii Amanor Dodoo, the writ of summons is defective and void,” Justice Dadzie held.

Arbitration should continue

Although the processes emanating from the suit were declared null and void, the court gave the green light for an arbitration process to determine whether or not the revocation of uniBank was lawful.

It, accordingly, dismissed an injunction by the receiver which sought to stop the arbitration to determine a counter-claim by the shareholders challenging the appointment of Nii Dodoo as the receiver and the revocation of the licence of uniBank by the BoG.

“Accordingly, the said writ of summons and all proceedings held thereunder are hereby declared a nullity except the order referring issues to arbitration, which, in my view, relates to matters by Act 930 to be determined by arbitration,” Justice Dadzie held.

The arbitration is before Justice Samuel Date-Bah, a former Justice of the Supreme Court.

Suit and counterclaim

On September 4, 2018, the receiver of the uniBank sued the 16 shareholders for allegedly breaching their fiduciary duties as directors of the bank and, in the process, making the bank to incur a GH¢5.7 billion debt, leading to its collapse.

The plaintiff, accordingly, prayed the High Court to hold the 17 defendants jointly liable for all the loss uniBank Ghana Limited had suffered. He prayed the court for an order to recover GH¢5.7 billion debt.

Nii Dodoo further asked the court to order the shareholders to return all assets in their possession which were acquired with funds from the bank.

The shareholders include Dr Kwabena Duffuor, HODA Holdings Ltd, Properties Ltd, Integrated Properties Ltd, Alban Logistics Ltd, Starlife Assurance, Bolton Portfolio Ltd and Dr Kwabena Duffuor II.

The rest are Opoku Gyamfi Boateng, Prof. Newman Kwadwo-Kusi, Owusu Ansah Awere, Ekow Nyarko Dadzie-Dennis, Boatemaa Kakra Duffour-Nyarko, Kofi Kyereh Darkwah, Nana Boakye Asafu-Adjaye and Alex Gaddiel Buabeng.

The defendants denied all the allegations, and on October 12, three of them filed a counterclaim accusing the plaintiff of certain infractions and, therefore, seeking certain reliefs.

Dr Duffuor II, Prof. Kwadwo-Kusi and Ms Duffuor-Nyarko, in the counterclaim, accused Nii Dodoo of issuing a defective report, leading to the collapse of the bank.

Background

On August 1, 2018, the BoG revoked the licence of uniBank.

It was one of the eight local banks that collapsed as a result of what the BoG described as “poor corporate governance and mismanagement of depositors’ funds”.

The bank, set up by Dr Kwabena Duffuor, was one of the five banks merged into the Consolidated Bank of Ghana (CBG) which is a 100 per cent state-owned entity, after their licences were revoked by the BoG.