The Receiver of Unibank cannot issue a writ against Duffuor, 9 others - Court

The commercial division of the High court in Accra on June 24, 2021, struck out a writ that had been issued by Unibank under the receivership of Nii Amanor Dodoo, against Dr.Kwabena Duffuor and 9 others.

Her Ladyship Justice Afi Agbanu Kumodor, justice of the High court presided over a motion filed on behalf of Dr.Kwabena Duffuor, HODA Holdings, and HODA properties who are 1st, 2nd, and 3rd Defendants respectively in the substantive case(as applicants herein).

The motion sought to dismiss the said suit on the grounds of Nii Amanor Dodoo’s lack of capacity to institute the same.

“The instant application filed on behalf of 1st, 2nd, and 3rd Defendants is one on notice for an order of this court dismissing the instant action for want of the capacity of the plaintiff under the receivership of Nii Amanor Dodoo to sue.”

The Applicants argued that the appointment of Nii Amanor Dodoo as Receiver of Unibank by BoG and his acceptance is illegal because KPMG, his accounting firm, was the official administrator of the same bank. Particularly when Nii Amanor assumed the above role within two years of his appointment as official administrator.

Furthermore, they questioned the Receiver’s capacity to issue the said writ. They submitted that no action can be founded on an illegal act and the capacity to sue must be present before the issuance of a writ.

They cited sections 122(8), 123(2), and 127 of Act 930, section 205 of the Companies’ Code 1963(Act 179), Awuku v Tetteh(2011) 1 SCGLR 366 among others to support their case.

On his part, the respondent opposed the instant application, describing it as without merit and a ploy to delay the trial.

Moreover, the respondent’s counsel argued that the issue of the alleged flawed appointment of Nii Amanor Dodoo as Receiver of Unibank has been referred to arbitration by a differently constituted High Court and indicated that should the instant application be granted during the pendency of the arbitration, it will create conflicting decisions.

He ended by citing Act 930 to support the case that a person who was previously an official Administrator of a bank can become the Receiver of the same bank when the bank’s license is revoked and closed down.

Saskatchewan Ltd v Price waterh0use Coopers Inc., {2003 J SKQB 175 2. Re Walley; in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FeA 486 were also cited to buttress his defense.

In her ruling, the judge discussed the issues in the motion under three main areas. They are;

1.Whether or not Nii Amanor Dodoo by being a member of the KPMG team can accept an appointment as its receiver less than two years after the end of the official liquidation.

2.Whether or not Nii Amanor Dodoo lacks the capacity to issue the writ.

3.Whether or not this action ought to be struck out and dismissed.

In the first instance, the court ruled that Nii Amanor Dodoo’s appointment as the receiver is in breach of statutory requirements.

“The court finds that Nii Amanor Dodoo’s acceptance of the said appointment as Receiver of Unibank by Bank of Ghana is in breach of the statutory requirement in section 122(8) of Act 930 not to accept such appointments less than two years after Unibank’s official liquidation.”

On the second issue, the court ruled that Nii Amanor Dodoo lacks the capacity to issue the instant writ.

“This court after analyzing the facts of the case with the applicable laws having found that Nii Amanor Dodoo’s acceptance of his appointment as receiver of Unibank by Bank of Ghana less than two years after Unibank’s official liquidation breaches section 122(8) of Act 930; Nii Amanor Dodoo’s acceptance of the said appointment as Receiver of Unibank is therefore void and of no effect. Therefore, Nii Amanor Dodoo lacks the capacity to issue the instant writ.”

Finally, the court struck out the writ on the grounds of illegality relative to Nii Amanor Dodoo’s acceptance as Receiver of Unibank.

“This court having found that Nii Amanor Dodoo lacks the capacity to issue the writ, it is right in concluding that “out of nothing comes nothing” as was held in the case of Awuku v Tetteh {2011J 1 SCGLR 366 per Ansah, JSC. The writ is therefore struck out on grounds of illegality in respect of Nii Amanor Dodoo’s acceptance of his appointment as Unibank’s Receiver by Bank of Ghana,” she concluded.

Subscribe to the Dennislaw database to read the full ruling.