BANKS AND SPECIALISED DEPOSIT-TAKING INSTITUTIONS ACT, 2016 (Act 930), SS 129

BANKS AND SPECIALISED DEPOSIT-TAKING INSTITUTIONS ACT, 2016 (Act 930), SS 129
129. Control of the hank or specialised deposit-taking institution by receiver

The receiver shall have unrestricted access to and control over the offices, books of account and other records and other assets of the bank or specialised deposit-taking institution.

(2) On the request of the receiver, a law enforcement officer shall

(a) assist the receiver to gain access to the premises of the bank or specialised deposit-taking institution, or

(b) assist the receiver to gain control over the records of the bank or specialised deposit-taking institution.

(3) Subsections (1) and (2) apply to the subsidiaries of a bank or specialised deposit-taking institution.

(4) The receiver shall secure the property, offices, books, records, and assets of the bank or specialised deposit-taking institution to prevent dissipation by theft or other improper action.

(5) The receiver shall in exercising its power under subsection (2) take the following actions:

(a) change the locks and limit access to the new keys on external and internal entrances to the bank or specialised deposit-taking institution which contain financial assets or information or equipment which could enable a person to gain unlawful access;

(b) change or establish access codes to the bank or specialised deposit-taking institution and grant access only to a limited number of computers and employees;

(c) issue new photo identification passes for entry by authorised employees to the premises of the bank or specialised deposit-taking institution and control the access of other persons to the premises of the bank or specialised deposit-taking institution,

(d) cancel authorisations permitting persons to engage the financial responsibility of the bank or specialised deposit-taking institution and issue new authorisations, as appropriate and notify third parties concerned,

(e) inform

(i) correspondent banks or specialised deposit-taking institutions,

(ii) registrars and transfer agents of securities, and

(iii) external asset managers of the bank or specialised deposit-taking institution

that persons who previously had authorisation to give instructions on behalf of the bank or specialised deposit-taking institution involved with respect to dealing in the assets of the bank or assets held in trust by the bank or the specialised deposit-taking institutions are no longer authorised to give instructions and that only the receiver and persons authorised by the receiver have authority to give instructions,

(f) suspend the payment of capital distributions in general and payment to key management personnel, and significant shareholders, except the compensation that may be paid to directors or key management personnel, and

(g) any action necessary for the efficient exercise of the powers of the receiver.

(6) A person who wilfully interferes with the access of a receiver to or the control of a receiver over the offices, assets, books of account and other records of a bank or specialised deposit-taking institution for which that person has been appointed, commits an offence and is liable on summary conviction to a fine of not less than one hundred penalty units and not more than five hundred penalty units for each day that the contravention continues, or to a term of imprisonment of not less than one year and not more than five years or to both.

(7) The suspension of payment under paragraph (f) of subsection (5) does not affect the base compensation payable to directors or key management personnel for services rendered in the capacity as a director or key management personnel of the bank or specialised deposit-taking institution.

(8) The receiver shall furnish the institution responsible for deposit protection with information and reports in the form and manner that may be determined by that institution.

130. Inventory of assets and new financial position

(1) A receiver shall establish a new financial position for the bank or specialised deposit-taking institution, based on a determination of liquidation values of the assets of the bank or specialised deposit-taking.

(2) A liability shall be deemed due and payable and interest shall cease to accrue as from the date of the appointment of the receiver.

(3) An unmatured liability shall be discounted to its present value at the rate of interest determined by the Bank of Ghana.

(4) The receiver shall within one month of taking possession of a bank or specialised deposit-taking institution, take an inventory of the assets and property of that bank or specialised deposit-taking institution and transmit a copy of the inventory report to the Bank of Ghana.

(5) The Bank of Ghana shall publish the inventory report in two daily newspapers of national circulation and on the website of the Bank of Ghana.

131. Receiver's power to repudiate contract

(1) The receiver may within thirty days of the date of appointment repudiate any non performed or partially performed contract for the reason that the fulfilment of the contract is burdensome for the bank or specialised deposit-taking institution and the repudiation would promote the orderly administration of the affairs of the bank or specialised deposit-taking institution and protect the interests of depositors.

(2) Any liability arising from the repudiation under subsection (1), shall be determined as of the date of repudiation and shall he limited to actual direct damages incurred and exclude any damage for lost profits

(3) In case of the repudiation of a contract for the lease of immovable and movable property, the receiver shall give thirty day’s notice.

132. Setting aside of pre-receivership transactions

(1) The receiver may set aside the following transactions affecting the assets of the bank or specialised deposit-taking institution and recover the assets from the transferee or other beneficiary of the transaction:

(a) gratuitous transfers to, or to persons related to, affiliates, insiders or key management personnel of the bank or specialised deposit-taking institution made within five years

(b) transactions with affiliates, insiders or key management personnel of the bank or specialised deposit-taking institution conducted within five years before the effective date of the receivership, if detrimental to the interest of depositors and other creditors;

(c) gratuitous transfers to third parties made within three years before the effective date of the receivership;

(d) transactions in which the consideration given by the bank or specialised deposit-taking institution considerably exceeded the received consideration, made within three years before the effective date of the receivership;

(e) a transaction based on a forged or fraudulent document that the bank or specialised deposit-taking institution has executed to the detriment of creditors;

(f) any act done with the intention of all the parties involved to withhold assets from the creditors of the bank or specialised deposit-taking institution, or otherwise impair their rights, within five years before the effective date of the receivership;

(g) transfers of property of the bank or specialised deposit-taking institution to, or for the benefit of, a creditor on account of a debt incurred within one year before the effective date of the receivership which has the effect of increasing the amount that the creditor would receive in a liquidation of the bank or specialised deposit-taking institution, and

(h) any attachment or security interest other than an attachment or security interest that existed six months before the effective date of the receivership.

(2) Subsection (1) does not apply to the payment of deposits of an amount equal to or less than

(a) one thousand four hundred and fifty Ghana Cedis in the case of a specialised deposit-taking institution, and

(b) six thousand two hundred and fifty Ghana Cedis in the case of banks

for each depositor or for the amounts that may be determined in accordance with die Ghana Deposit Protection Act, 2016 (Act 931).

(3) The receiver shall take action to set aside a transfer under this section within one year after the effective date of the receivership.

(4) Despite subsections (1), (2) and (3), the receiver shall not set aside a payment or transfer by the bank or specialised deposit-taking institution

(a) if the payment or transfer was made in the ordinary course of business,

(b) if the payment or transfer was part of a contemporaneous exchange for reasonably equivalent value, or

(c) to the extent that following the transfer the recipient extended new unsecured credit to the bank or specialised deposit-taking institution which had not been satisfied by the bank or specialised deposit-taking institution as of the effective date of the receivership.

(5) Despite subsections (1) to (4), the receiver shall not set aside a payment or transfer by the bank or specialised deposit-taking institution made pursuant to any power of an official administrator under sections 107 to 122.

(6) The receiver may recover property or the value of property transferred by the bank or specialised deposit-taking institution from a transferee of an initial transferee only if the second transferee did not give fair value for the property and knew or reasonably should have known that the initial transfer could be set aside under this Act.

(7) The receiver may order the notice of an action to set aside a transfer to be recorded in the public records for real estate ownership.

(8) Pursuant to the record of a notice under subsection (7) the right of a person to the property in question or a title to interest in the property is subject to the rights of a bank or specialised deposit-taking institution to recover the property.

133. Determination of claims

(1) The Bank of Ghana may prescribe

(a) the procedure for determining the validity and priority of a claim;

(b) the liquidation of the asset of a bank or a specialised deposit-taking institution, and

(c) the return of the property of a customer of a bank or a specialised deposit-taking institution.

(2) Without limiting the powers of the Bank of Ghana under subsection (1), the sale of the asset of a bank or specialised deposit-taking institution, shall be effected in a transparent and commercially reasonable manner.

(3) Subject to subsection (4), a bank or specialised deposit-taking institution shall not allow a set off in respect of claims acquired towards the bank or specialised deposit-taking institution within three months before the appointment of a receiver or after the appointment of a receiver.

(4) A claim against a bank or specialised deposit-taking institution arising from a deposit shall be set-off against any sum due from a depositor to the bank or specialised deposit-taking institution as of the date on which the licence is revoked and the receiver is appointed in the following manner:

(a) automatically, if the sum is matured or past due, or

(b) at the option of the depositor, if the sum is not matured or past due.

134. Claims relating to eligible financial contracts

(1) In determining the rights and obligations between a bank or specialised deposit-taking institution and its contractual counterpart, effect shall be given to the termination provisions of eligible financial contracts between the bank or specialised deposit-taking institution and the contractual counterpart of the bank or specialised deposit-taking institution, except during the period of a temporary stay on the exercise of a right that the Bank of Ghana may prescribe.

(2) The temporary stay of termination provisions shall be subject to the safeguards that the Bank of Ghana shall prescribe in order to facilitate the liquidation of the bank or the specialised deposit-taking institution and simultaneously minimise any disruption to the markets for eligible financial contracts.

(3) The net termination value determined in accordance with an eligible financial contract between a bank or specialised deposit-taking institution and its contractual counterpart, shall be a claim of the bank or the specialised deposit-taking institution on the counterpart or shall be admitted after the net termination value is validated as a claim of the counterpart on the bank or the specialised deposit- taking institution.

(4) In this section, “net termination value” means the net amount obtained after setting off the mutual obligations between the parties to an eligible financial contract in accordance with the provisions of that contract.

(5) For the purposes of this section, the Bank of Ghana shall prescribe the types of contracts that shall qualify as “eligible financial contracts” and that may include a master agreement covering more than one type of contract.

135. Priorities in payment of claims

(1) In pursuance of the liquidation of the assets of a bank or a specialised deposit-taking institution,

(a) allowed secured claims shall be paid

(i) to the extent of the realisation of the security, or

(ii) by delivering to the secured creditor, the security held by the bank or the specialised deposit-taking institution, and

(b) other allowed claims shall be paid in relation to all other debts, in the following order:

(i) necessary and reasonable expenses incurred by the receiver and the Bank of Ghana, including professional fees, under sections 123 to 139;

(ii) payments made by the institution responsible for deposit protection in respect of insured deposits in compliance with the Ghana Deposit Protection Act, 2016 (Act 931),

(iii) credits extended to the bank or specialised deposit-taking institution by the Bank of Ghana until the appointment of the receiver;

(iv) statutory amounts owed to the Government or to a municipality, except as determined by the Government;

(v) wages or salaries earned by an employee not later than one hundred and eighty days before the appointment of the receiver, as may be specified by the Bank of Ghana except for wages and salaries earned by a director or a key management personnel;

(vi) credits extended to the bank or specialised deposit-taking institution after the appointment of the receiver;

(vii) deposits not covered under subparagraph (ii);

(viii) compensation of employees not covered under sub paragraph (v),

(ix) unsecured credits extended to the bank or specialised deposit-taking institution before the appointment of the receiver; and

(x) subordinated debt.

(2) Where the amount available for payment of any class of claim under subsection (1) is insufficient to provide payment in full, the claim of that class shall be reduced in equal proportions.

(3) After payment of all claims filed, the remaining allowable claims that were not filed within the time specified by the receiver for filing, shall be paid.

(4) Where any proceeds remain after all claims of depositors and other creditors have been paid, the proceeds shall be distributed among the shareholders of the bank or the specialised deposit-taking institution involved in accordance with their rights.

136. Termination of receivership and final reporting to the Bank of Ghana

.(1) After the distribution of the proceeds of the sale of assets of a bank or a specialised deposit-taking institution, the receiver shall submit a report to the Bank of Ghana indicating among others

(a) a statement of income and expense; and

(b) sources and uses of funds during the period of receivership.

(2) Where the Bank of Ghana approves the report under subsection (1),

(a) the receivership of the Bank of Ghana terminates, and

(b) the Bank of Ghana and the receiver are relieved of any further responsibility in connection with the receivership of the bank or specialised deposit-taking institution involved.

(3) A receiver may abandon the sale of an asset of a bank or a specialised deposit-taking institution or donate the asset to a charitable institution that promotes public health or education, where

(a) the asset is of an immaterial value;

(b) the receiver is unable to sell the asset, or

(c) the cost of sale of the asset would exceed the amount expected to be received.

(4) The creditor of a bank or a specialised deposit-taking institution does not have a claim against an asset under subsection (3).

137. Miscellaneous receivership provisions

Where a receiver has sufficient reason to believe that shareholders, directors, officers, attorneys, accountants or other professionals have engaged or are engaging in a criminal or fraudulent activity in relation to the business of a bank or a specialised deposit-taking institution, that receiver shall

(a) notify the Bank of Ghana immediately, and

(b) institute a civil action to claim damages and restitution.

138. Relationship with other enactments

The provisions of the Companies Act, 1963 (Act 179), the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180), or any other enactment relating to corporate insolvency or liquidation shall not apply to the winding up and liquidation of an insolvent bank or specialised deposit-taking institution in the country.

139. Voluntary winding-up

(1) Despite the Companies Act, 1963 (Act 179) or any other relevant enactment, a bank or specialised deposit-taking institution shall not wind up voluntarily unless the Bank of Ghana has certified in writing that that bank or specialised deposit-taking institution would be capable on its voluntary winding up, of meeting the obligations it has in respect of the depositors and creditors as the obligations accrue.

(2) Where the Bank of Ghana, at any stage of the voluntary winding up, considers that that bank or specialised deposit-taking institution which is winding up is unable to meet its obligations to depositors or creditors in full, the Bank of Ghana shall appoint a receiver to wind up the affairs of that bank or the specialised deposit-taking institution and sections 123 to 139 shall apply.

Miscellaneous Provisions
Miscellaneous Provisions
140. Review of decisions of the Bank of Ghana on licensing

(1) Where a person is aggrieved with a decision of the Bank of Ghana in respect of issuance of a licence, that person may, within thirty days of the decision, petition the Bank of Ghana in writing for a review.

(2) Where the person is dissatisfied with the outcome of the review under subsection (1), the person may, within thirty days from the date of the decision, in writing, appeal against the decision to the Adjudicative Panel established under subsection (3),

(3) There is established an Adjudicative Panel consisting of

(a) a chairperson who is a Justice of the High Court nominated by the Chief Justice;

(b) one person with knowledge in banking and finance and with not less than ten years experience in banking and finance nominated by the Chartered Institute of Bankers; and

(c) one member of the Institute of Chartered Accountants, Ghana who has been in practice for not less than ten years, nominated by the Institute of Chartered Accountants, Ghana.

(4) The Chief Justice shall appoint members of the Adjudicative Panel.

(5) The Adjudicative Panel shall adopt its own rules of procedure.

(6) The Adjudicative Panel shall communicate its decision to the applicant within thirty days of receipt of the appeal made to it in writing under subsection (2).

(7) A person dissatisfied with the decision of the Adjudicative Panel may appeal to the High Court within thirty days upon receipt of the decision.

(8) The expenses of the Adjudicative Panel including allowances of members of the Adjudicative Panel shall be borne by the Bank of Ghana.

141. Review of decision of Bank of Ghana on official administration, liquidation and receivership by arbitration

(1) Where a person is aggrieved with a decision of the Bank of Ghana in respect of

(a) matters under sections 107 to 122 or sections 123 to 139,

(b) withdrawal of the registration of a financial holding company,

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

(d) an action under sections 102 to 106 and where the Bank of Ghana determines that there is a serious risk to the financial stability or of material loss to that bank or specialised deposit- taking institution or financial holding company

and 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).

142. Review of decisions through arbitration

With respect to an arbitration proceeding against the Bank of Ghana, a member of the decision-making body, a staff of the Bank of Ghana, an agent of the Bank of Ghana, or Arbitration Panel in reaching a decision, may examine whether the defendant acted unlawfully or in an arbitrary or capricious manner having regard to

(a) the peculiar facts,

(b) the provisions of this Act,

(c) a directive of the Bank of Ghana, or

(d) any other enactment.

143. Unclaimed balances

(1) Where a current or savings account has not been operated for a period of two years or a time deposit account has not been operated for a period of two years after the date of maturity of the deposit, a withdrawal shall not be made on the account except with the permission of two authorised officers of the bank or specialised deposit-taking institution involved.

(2) An account referred to in subsection (1) shall be transferred to a separate register of dormant accounts in the books of the bank or specialised deposit-taking institution and a notice in writing of that action shall be given to the depositor at the last known address of the depositor.

(3) Where an account which is transferable under subsection (2) is subject to a service charge, or is an interest bearing account, the charge may continue to be levied or the interest accrued up to the date on which the account was transferred to the register of dormant accounts.

(4) Where an account is transferred to a register of dormant accounts and the account has been on the register for three years, the bank or specialised deposit-taking institution shall advertise in at least two daily newspapers of national circulation the fact that the account has been on the register of dormant accounts for three years.

(5) An account may be transferred out of the register of dormant accounts on a request by the depositor or the legal representative of the depositor where a depositor is dead or incapacitated.

(6) Where an account has been in the register of dormant accounts for a period of three years and that fact has been advertised as required under subsection (4), the balance on the account shall be transferred to an account earmarked for that purpose at the Bank of Ghana.

(7) Where a balance has been transferred under subsection (6), the Bank of Ghana shall, on a request, refund any unclaimed balances to the depositor, or if the depositor is dead, to the legal representative of the depositor.

144. Prohibition of floating charge

(1) A bank or specialised deposit-taking institution shall not create a floating charge on an undertaking or property of the bank or specialised deposit-taking institution or part of the property of the bank or specialised deposit-taking institution.

(2) The Bank of Ghana may prescribe restrictions on other liens or charges in respect of the property of a bank or specialised deposit-taking institution.

(3) A bank or specialised deposit-taking institution which creates a floating charge in contravention of subsection (1), is liable to pay to the Bank of Ghana an administrative penalty of not more than one thousand penalty units.

(4) A key management personnel who fails to comply with this section is liable to pay to the Bank of Ghana an administrative penalty of not more than one thousand penalty units.

145. Confidentiality obligations of officials and employees of the Bank of Ghana

(1) A director, officer or employee of the Bank of Ghana or any person appointed by the Bank of Ghana pursuant to the banking laws shall, before performing a function under the banking laws,

(a) in the case of a Director or head of department, take an oath of confidentiality in the form set out in Part I of the First Schedule, and

(b) in any other case, make a declaration of confidentiality before the chairperson of the Board in the form set out in Part II of the First Schedule.

(2) A director, officer or employee of the Bank of Ghana or any other person appointed by the Bank of Ghana shall not, during or after a relationship with the Bank of Ghana, disclose directly or indirectly to any person any information related to the affairs of the Bank of Ghana, or any other bank, specialised deposit-taking institution or financial holding company or of any of its customers, which the person has acquired in the discharge of duties or the performance of functions except,

(a) for the purposes of

(i) the performance of functions or the exercise of powers under the banking laws; or

(ii) meeting the requirements of an agreement or understanding reached by the Bank of Ghana with any other relevant supervisory body,

(b) when lawfully required to do so under this Act or any other enactment, or

(c) by an order of a court of competent jurisdiction.

(3) A person who contravenes a provision of this section, commits an offence and is liable on summary conviction to a fine of not less than five hundred penalty units and not more than one thousand penalty units.

(4) Nothing in this section shall preclude

(a) the exchange or disclosure of information, under conditions of confidentiality between the Bank of Ghana and a foreign regulatory agency performing functions similar to those of the Bank of Ghana under this Act, pursuant to any existing or future Treaty, or any agreement or arrangement entered into by the Bank of Ghana pursuant to section 147;

(b) the disclosure of information pursuant to an order made by a judge in chambers under any relevant enactment related to mutual assistance in criminal and related matters to a foreign State,

(c) the disclosure of information to the Financial Intelligence Centre established under the Anti-Money Laundering Act, 2008 (Act 749),

(d) the disclosure of information to members of the Financial Sector Regulators Forum; or

(e) the exchange of information between the Bank of Ghana and the institution responsible for deposit protection.

146. Secrecy of customer information

(1) Subject to this Act, a person with access to the books, accounts, records, financial statements or other documents, electronically or otherwise, of a bank or specialised deposit-taking institution shall,

(a) in the case of a director or key management personnel, take an oath of confidentiality in the form set out in Part I of the Second Schedule, or

(b) in any other case, make a declaration of confidentiality before the chief executive or deputy chief executive of the bank or specialised deposit-taking institution in the form set out in Part II of the Second Schedule, before the person begins to perform any function under the banking laws.

(2) Except for the purpose of the performance of functions or the exercise of a power under the banking laws or as directed in writing by the Bank of Ghana, a person referred to in subsection (1) shall not, during or after a relationship with the bank or specialised deposit—taking institution, disclose directly or indirectly to any person any information related to the affairs of any of its customers including deposits, borrowings or transactions
or other personal, financial or business affairs without the prior written consent of the customer or the personal representative of the customer.

(3) The duty of confidentiality imposed under this section shall not apply to the provision of customer information

(a) to the Bank of Ghana for purposes of carrying out duties and exercising powers under this Act,

(b) to the Ghana Revenue Authority

(i) upon the request of the Ghana Revenue Authority acting in accordance with paragraphs 19 and 20 of the Seventh Schedule of the Income Tax Act, 2015 (Act 896); or

(ii) in accordance with Regulations made under the Income Tax Act, 2015 (Act 896) for the automatic exchange of financial information for tax purposes with the competent authority of another jurisdiction;

(c) to the Financial Intelligence Centre established under the Anti-Money Laundering Act, 2008 (Act 749);

(d) to the Collateral Registry set-up under the Borrowers and Lenders Act, 2008 (Act 773).

(e) in accordance with the provisions of the Credit Reporting Act, 2007 (Act 726);

(f) in accordance with the provisions of the Ghana Deposit Protection Act, 2016 (Act 931); or

(g) to the Securities and Exchange Commission.

(4) The duty of confidentiality imposed under this section shall not apply where

(a) a customer issued with a credit card or charge card by a bank or specialised deposit-taking institution, has had the card suspended or cancelled by that bank or specialised deposit-taking institution by reason of default in payment, and the bank or specialised deposit-taking institution discloses information related to the name and identity of the customer, the amount of indebtedness and the date of suspension or cancellation of the credit card or charge card to another bank or specialised deposit-taking institution that is issuing credit cards or charge cards in the country,

(b) the customer is declared bankrupt or insolvent in Ghana or, in the case of a company, is being wound up,

(c) the customer has died, testate or intestate, and the information is required by the appointed personal representative of the deceased or the testamentary executor solely in connection with the succession to the estate;

(d) the express consent of the customer has been obtained;

(e) civil proceedings have been instituted involving the bank or specialised deposit-taking institution and the customer or the account of the customer,

(f) the information is required by an officer in the employment of the same bank or specialised deposit-taking institution in die country or an auditor or legal representative of the bank or specialised deposit-taking institution who requires and is entitled to know the information in the course of professional duties;

(g) the information is required by another bank or specialised deposit-taking institution for the purpose of assessing the credit-worthiness of a customer, if the information is being sought for commercial reasons and is of a general nature,

(h) the bank or specialised deposit-taking institution has been served with a garnishee order attaching moneys in the account of the customer;

(i) a person referred to in subsection (1) is summoned to appear before a judge or a court of competent jurisdiction and the judge or the court orders the disclosure of the information;

(j) where disclosure is required under an enactment, and

(k) the bank or specialised deposit-taking institution is required to make a report or provide additional information on a suspicious transaction to the Financial Intelligence Centre established under the Anti-Money Laundering Act, 2008 (Act 749).

(5) Subject to subsections (7) and (8), information shall be disclosed where the head office of a bank or specialised deposit-taking institution

(a) incorporated outside the country requires information from the subsidiary of that bank or specialised deposit-taking institution in the country in respect of a transaction of the subsidiary, or

(b) incorporated in the country requires information from the subsidiary or branch of that bank or specialised deposit-taking institution outside the country in respect of a transaction of the subsidiary or branch.

(6) Subject to subsections (7) and (8), information shall be disclosed where the parent bank or specialised deposit-taking institution of a subsidiary, which subsidiary is operating in the country under consolidated supervision, requires information from the subsidiary about any of the transactions of the subsidiary.

(7) Where the information which is required under subsection (5) or (6) relates to a transaction with a customer other than a bank or specialised deposit-taking institution, information other than credit facilities granted to or foreign exchange transactions with the customer shall not be disclosed.

(8) Information related to deposits taken from or foreign exchange transactions with a central bank or any other entity or agency, by whatever name called, which performs the functions of a central bank, shall not be disclosed.

(9) Where an officer of a foreign bank or specialised deposit-taking institution or an officer of a central bank or banking regulator in a foreign country or any other entity or agency, by whatever name called, has the responsibility to supervise a bank or specialised deposit-taking institution or perform the functions of a central bank, proposes to

(a) conduct an inquiry, audit or inspection of a branch or a subsidiary of the bank or specialised deposit-taking institution in the country, or

(b) carry out any other action that would involve the duty of confidentiality imposed under this section, that officer shall obtain the prior written authorisation of the Bank of Ghana.

(10) An officer responsible for carrying out an action that would involve the duty of confidentiality under this section shall be subject to the duty of confidentiality and any other conditions that the Bank of Ghana may impose before information of a confidential nature is made available to the officer.

(11) The Bank of Ghana may disclose to the auditor of a bank or specialised deposit-taking institution any information received under or for the purposes of this Act where the Bank of Ghana considers that disclosing the information would enable or assist the auditor in the discharge of the supervisory duties of the Bank of Ghana.

(12) This section shall not limit

(a) the obligations of the Republic under an international treaty, convention or agreement, and

(b) the obligations of the Bank of Ghana under any agreement or arrangement or under any existing or future memorandum of understanding for cooperation and exchange of information between the Bank of Ghana and any other foreign regulatory agency performing functions similar to those of the Bank of Ghana.

147. Agreements for exchange of information

(1) Where the Bank of Ghana is satisfied that a foreign supervisory institution has the obligation to protect the confidentiality of the information imparted, the Bank of Ghana may enter into an agreement or arrangement for coordination, cooperation, and the exchange of information with that foreign supervisory institution with responsibility to supervise banks or specialised deposit-taking institutions, financial institutions, financial holding companies, or other similar institutions.

(2) The Bank of Ghana may enter into an agreement or arrangement for coordination and the exchange of information with the institution responsible for deposit protection.

148. Disclosure of information relating to banks or specialised deposit-taking institutions or financial holding companies

(1) Despite the provisions of this Act, the Bank of Ghana may,

(a) in the interest of the public, publish information obtained from the banks, specialised deposit-taking institutions or financial holding companies, in a consolidated form that it considers fit, and

(b) share supervisory information, on a confidential basis, with other official agencies, both domestic and foreign, responsible for the safety and soundness of the financial system, if the information is used only for purposes related to the effective supervision on a solo or consolidated basis of the institutions concerned and their affiliates.

Submission of reports on trend and progress

149. (1) The Bank of Ghana shall, not later than one hundred and twenty days after the end of the financial year, submit to the Minister a report on the trend and progress of the business of deposit-taking in the country.

(2) The Bank of Ghana shall include in the report the recommendations that it considers necessary in the interest of the deposit-taking business in the country.

149. Submission of reports on trend and progress

(1) The Bank of Ghana shall, not later than one hundred and twenty days after the end of the financial year, submit to the Minister a report on the trend and progress of the business of deposit-taking in the country.

(2) The Bank of Ghana shall include in the report the recommendations that it considers necessary in the interest of the deposit-taking business in the country.

150. Protection from liability and indemnification

(1) An action shall not lie against the Attorney-General, the Bank of Ghana, an officer of the Bank of Ghana or any other person acting under the direction of the Bank of Ghana for

(a) anything done or omitted to be done in good faith in the implementation of this Act unless it is proven that the act or omission constitutes intentional wrongful conduct or gross negligence; or

(b) the exercise of a power or a discharge of duty authorised or required under any other enactment.

(2) Subject to subsection (3), the Bank of Ghana shall indemnify

(a) a member of a decision-making body of the Bank of Ghana, or

(b) an employee or official of the Bank of Ghana.

(3) An agent of the Bank of Ghana shall be indemnified against costs incurred in the defence of a legal action instituted against the person in connection with the discharge or purported discharge of an official task within the scope of employment or engagement of the person under this Act.

(4) The Bank of Ghana shall not indemnify a person who has been convicted of a crime arising out of the activities that are covered by the legal action.

151. Collection of civil penalties

An administrative penalty imposed under this Act by the Bank of Ghana shall be a debt due from that person to the Bank of Ghana and shall

(a) in the case of a director, key management personnel, or any other person, be recoverable by personal action against the director, key management personnel, or that other person if the debt is not paid within sixty days after demand,

(b) in the case of a bank, be recoverable by debit to the bank account of that bank with the Bank of Ghana, or

(c) in the case of a specialised deposit-taking institution or financial holding company, be recoverable by an action against the specialised deposit-taking institution or financial holding company if the debt is not paid within sixty days after the demand.

152. Prosecution of offences and penalties

(1) The Attorney-General may, by executive instrument, authorise an officer of the Bank of Ghana specified in the instrument to prosecute an offence that arises under this Act.

(2) Where a body of persons is convicted of an offence under this Act,

(a) in the case of a body corporate other than a partnership, every director and officer of that body shall be deemed to have committed the offence, and

(b) in the case of a partnership, every partner shall be deemed to have committed the offence.

(3) A person shall not be convicted under subsection (2), if that person proves that the offence was committed without the consent or connivance of that person and that due diligence to prevent the commission of the offence was exercised having regard to the circumstances.

153.

Despite the provisions of any other enactment, where a person is accused of more than one offence under this Act, that person may be charged with and tried at one trial for any number of those offences committed.

154.

A person who commits an offence under this Act for which a penalty is not provided is liable on summary conviction,

(a) in the case of an individual, to a fine of not less than five hundred penalty units and not more than two thousand penalty units or to a term of imprisonment of not less than six months and not more than two years or to both.

(b) in the case of a corporate body to a fine of not less than five thousand penalty units and not more than ten thousand

(c) in the case of a continuing offence to a further fine of fifty penalty units for each day that the contravention continues.

155.

(1) The Minister may, in consultation with the Bank of Ghana, by legislative instrument, make Regulations prescribing or making provision for anything which under this Act may be prescribed or

(2) Without limiting subsection (1), the Minister may make Regulations to provide

(a) for the payment of fees and charges under this Act, and

(b) generally for the effective implementation of this Act.

156.

In this Act, unless the context otherwise requires,

“affiliate” of a company means

(a) a body corporate of which the company is a subsidiary,

(b) a subsidiary of the company, or

(c) a body corporate that is under a common control

“applicant” means a body corporate;

“associate” means an entity over which a bank, specialised deposit-taking institution, or financial holding company has power to participate in its financial or operating policy decisions but which does not control or jointly control its policies;

“bank” means a body corporate which engages in the deposit-taking business and is issued with a banking licence in accordance with this Act;

“banking law” means an enactment related to the banking system;

“banking policy” means a policy which is specified by the Bank of Ghana in the interest of the banking system or in the interest of monetary stability or sound economic growth;

“capital adequacy ratio” is the ratio expressed as a percentage of the adjusted capital base to the risk weighted financial exposure;

“Chief Executive” in relation to a body corporate, means a person, by whatever name called, who is responsible, subject to the authority of the board of directors of the body corporate, for the conduct and management of the business of the corporate body,

“Company Regulations” means the Regulations of a company incorporated under the Companies Act, 1963 (Act 17 9);

“control” means a relationship where a person or a group of persons acting in concert, directly or indirectly

(a) owns twenty five percent or more of the voting rights of a person;

(b) has the power to appoint or remove the majority of the members of the board of directors of the person;

(c) has the ability to exert a significant influence on the management or policies of a person; or

(d) has the ability to direct the activities of the person so as to affect the financial returns on any investment made with the person;

“credit union” means a body corporate established to operate as a co-operative and not for profit but to provide savings, credit and other financial services to members of that body corporate based on a common bond and linkage of association;

“controlling shareholding” means a holding or means of influence exercised by a person or a group of persons acting in concert, directly or indirectly that constitutes control over the bank or specialised deposit-taking institution;

“corporate group” means a company and the affiliates or associates of that company,

“deposit” means a sum of money paid to a person on condition that it is to be repaid by that person, with or without interest or premium either on demand or at an agreed time under the legal and contractual conditions applicable and not referable to the provision of property or services or the giving of security,

“Deposit Protection Scheme” means the Ghana Deposit Protection Scheme established under the Ghana Deposit Protection Act, 2016 (Act 931).

“deposit-taking business” means the business of

(a) taking money on deposit and making loans or other advances of money; and

(b) financial activities prescribed by the Bank of Ghana for purposes of this definition,

“deposit-taking microfinance institution” means a specialised deposit-taking institution engaged primarily in the provision of deposit-taking and credit services targeted at low income clients and the economically active poor;

“emolument” means salaries and allowances other than performance related earnings;

“employee” means an individual employed by a bank or specialised deposit-taking institution other than a director or key management personnel;

“enhanced reporting” means frequent and detailed reporting;

“examination” includes the carrying out of on-site, off-site, credit reporting and any other examination as may be determined by the Bank of Ghana under the Anti-Money Laundering Act, 2008 (Act 749) or any other relevant enactment;

“financial exposure” in relation to a bank, specialised deposit-taking institution, or financial holding company with respect to a person is the aggregate of

(a) the loans, advances, placements, and credit facilities including off-balance sheet obligations given to that person, and

(b) the value of the holdings by that bank, specialised deposit-taking institution, or financial holding company of shares and debentures and other debt securities issued by that person;

“financial group” means a corporate group that includes a bank or a specialised deposit-taking institution and its affiliates or associates that the Bank of Ghana determines to be taken into account for purposes of this Act;

“financial holding company” means a company that controls a bank or a specialised deposit-taking institution which is subject to registration requirements under this Act;

“finance house” means a specialised deposit-taking institution engaged primarily in providing consumer credit and business finance;

“financial institution” means a bank or a specialised deposit-taking institution;

“Financial Sector Regulators Forum” means a platform for exchange of information between regulators of the financial system in the country;

“fit and proper person” means a person who is suitable to hold the particular position which that person holds or is to hold as regards

(a) the probity, competence and soundness of judgment of the person for purposes of fulfilling the responsibilities of that person;

(b) the diligence with which that person fulfils or is likely to fulfill those responsibilities,

(c) whether the interest of depositors or potential depositors of the entity are threatened, or likely to be, in any way threatened by the person holding that position; and

(d) that the integrity of the person is established and the qualifications and experience of the person are appropriate for the position in the light of the business plan and activities of the entity which the person serves, or is likely to serve, taking into account the size, nature and complexity of the institution;

“foreign bank” means a foreign company that is authorised to engage in a deposit-taking business in the country where its head office is located;

“foreign company” means a company incorporated under the laws of a country other than Ghana;

“foreign exchange business” means the business of buying, selling, borrowing, lending, receiving or paying foreign exchange;

“holding company” means a company that controls another company or body corporate, whether or not the holding company is a non-operating or operating company;

“insider” with respect to a bank or a specialised deposit-taking institution means a director, an executive director, key management personnel and a significant shareholder other than a financial holding company;

“key management personnel” includes the chief executive, deputy chief executive, chief operating officer, chief finance officer, board secretary, treasurer, chief internal auditor, the chief risk officer, the head of compliance, the anti-money laundering reporting officer, the head of internal control functions, the chief legal officer, the manager of a significant business unit of the bank, a specialised deposit-taking institution, or a financial holding company or any person with similar responsibilities;

“large exposure” means financial exposure to a single borrower or group of connected borrowers that in the aggregate exceeds ten percent of the net own funds of the bank, a specialised deposit-taking institution, or financial holding company;

“law enforcement agency” means the Police, Bureau of National Investigations and officers of the Economic and Organised Crime Office;

“management letter” means a formal letter from the auditor addressed to the financial institution on the weaknesses identified in the operations of a financial institution during the audit;

“micro and small business financing” means the financing of households and small business enterprises;

“minimum paid-up capital” includes

(a) initial funds required to start-up a bank or specialised deposit-taking institution, and

(b) the operational start-up costs as may be prescribed by the Bank of Ghana but excludes expenses incurred in employing capital;

“Minister” means the Minister responsible for Finance;

“net open position” means the sum of the foreign currency exposure of a bank expressed as a percentage of that bank’s net own funds taking into consideration the following:

(a) the net position of its total foreign currency assets and liabilities,

(b) the position of spot and forward foreign exchange transactions on the reporting date, and

(c) the sum of all off-balance sheet obligations maturing within two working days of the reporting date or any other period as may be prescribed by the Bank of Ghana;

“net own funds” includes the sum total of share capital that has been paid-up, free reserves but excludes revaluation reserves, on property, plant, and equipment, other non-distributable reserves unless with the approval of the Bank of Ghana, other than the Reserve Fund established under section 34, subject to netting out accumulated losses, goodwill and unwritten off capitalised expenditure including pre-operating expenses and deferred tax;

“non interest banking” means a banking service that does not attract interest;

“off balance sheet transaction” includes contingent assets contingent liabilities in the form of letters of credit, guarantees, bids, bonds and indemnities;

“ordinarily resident” means a situation where a person has lived in Ghana for at least twelve months;

“paid-up capital” includes minimum capital, additional fully paid-up shares, and the capitalisation of income surplus;

“person” includes a body corporate, whether corporation, aggregate or corporate sole and unincorporated body of persons as well as an individual;

“prescribed” means prescribed by Regulations or Rules or directives issued by the Bank of Ghana under this Act;

“public interest” includes a right or advantage which enures or is intended to enure to the general benefit of the people of this country;

“purchase and assumption” means an agreement in which a part or the whole of the assets of the failed bank are purchased and all or some of the liabilities are assumed by an acquiring bank;

“relevant entities” include a bank, a specialised deposit-taking institution, and financial holding company,

“Regulations” means the Regulations made under this Act;

“related interest” in relation to an insider means

(a) a firm or company in which an insider is interested, directly or indirectly as a director or controlling shareholder, partner, proprietor, employee or guarantor; and

(b) a holding company, subsidiary, or affiliate of that company in which an insider is interested, directly or indirectly, as director, key management personnel, controlling shareholder, partner, proprietor, employee or guarantor,

“related persons” in relation to an insider means a spouse, son, daughter, step son, step daughter, brother, sister, father, mother, cousin, nephew, niece, aunt, uncle, step sister and step brother of an insider;

“rural or community bank” means a specialised deposit-taking institution engaged primarily in deposit-taking business within a defined catchment area;

“savings and loans company” means a specialised deposit-taking institution engaged primarily in the deposit-taking business from households and small business enterprises and the provision of credit to the corporate and non-corporate sector, and micro and small business financing;

“shell company” means a company that has no physical presence in the country in which it is incorporated and licensed, and that is unaffiliated with a regulated financial service group that is subject to effective consolidated supervision;

“significant shareholder” means a shareholder who has a direct or indirect holding which represents five percent or more of the capital or of the voting rights;

“significant shareholding” means a direct or indirect holding which represents five percent or more of the capital or of the voting rights;

“specialised deposit-taking institution” means a body corporate which engages in the deposit-taking business and is issued with a licence to engage in the deposit-taking business in accordance with this Act;

“subsidiary” means a company over which another company has control;

“supervisory structures” include units, offices, departments or other outfits within the Bank of Ghana authorised by the Bank of Ghana to supervise banks and specialised deposit-taking institutions;

“time deposit account” means an account held at a bank or specialised deposit-taking institution into which money is deposited for a specified period and out of which money can only be withdrawn before the expiration of the specified subject to

(a) notification;

(b) re-negotiation; or

(c) upon payment of a penalty; and

“ultimate beneficial owner” means an individual that ultimately derives the benefits of ownership or control of a juridical person.

157. Repeal and savings

(1) The following enactments are repealed:

(a) the Banking Act, 2004 (Act 673).

(b) the Banking (Amendment) Act, 2007 (Act 738).

(2) Despite the repeal of Act 673 and Act 738, the Regulations, orders, directives, notifications, instructions, exemptions, approvals, decisions, rules and any other executive or administrative act lawfully made, given or done under Act 67 3 and Act 738 shall, upon the coming into force of this Act, continue in force until amended, reviewed, terminated or revoked in accordance with this Act.

158.

A bank or specialised deposit-taking institution licensed under or provided for under the Banking Act, 2004 (Act 67 3) or established under any other enactment and in existence before the coming into force of this Act shall continue in existence subject to compliance with this Act.

159.

(1) A person who controls a bank or specialised deposit-taking institution on the coming into force of this Act shall file an application for registration as a financial holding company within ninety days of the coming into force of this Act.

(2) Where the Bank of Ghana rejects an application filed under subsection (1), the Bank of Ghana shall restrict transactions between the bank or specialised deposit-taking institution and the applicant and direct the applicant to divest the bank or a specialised deposit-taking institution in respect of which the applicant is a financial holding company.

(3) Where a divestiture directed under subsection (2) is not accomplished within one year from the date the directive is issued, the Bank of Ghana shall take over the official administration of the bank or specialised deposit-taking institution and may exercise any of the powers available to the Bank of Ghana under this Act in order to change the ownership of the bank or specialised deposit-taking institution.

(4) The Bank of Ghana may exempt a person to which this section applies from a provision of this Act that is applicable to a financial holding company or modify the application of a provision of this Act, where the Bank of Ghana determines that the exemption or modification is not inconsistent with the provisions of this Act.

(5) An application filed in accordance with this section shall not be approved unless the applicant has submitted as an alternative a plan for achieving compliance that is satisfactory to the Bank of Ghana in place of compliance with all applicable provisions of this Act.

(6) Where an applicant fails to implement a plan for compliance, the Bank of Ghana may take action under subsections (2) to (4) and any other action authorised under this Act.

160. Moratorium for transition

(1) A bank or a specialised deposit-taking institution that owns

(a) a subsidiary company engaged in agricultural, commercial or industrial activity or

(b) investments, activities or properties in breach of section 19 shall divest itself of such subsidiaries, investments, activities or properties not later than one year after the coming into force of this Act, or any other period as the Bank of Ghana may prescribe.

(2) A bank and specialised deposit-taking institution in existence before the coming into force of this Act shall, upon the coming into force of this Act, have a grace period of six months or any other period as the Bank of Ghana may determine to ensure full compliance with the provisions of this Act in relation to matters of capital, liquidity, corporate governance, lending and investments.

(3) The Bank of Ghana may

(a) exempt a bank or specialised deposit-taking institution to which this section applies, or

(b) modify the application of this section to a bank or specialised deposit-taking institution,
if the Bank of Ghana determines that the exemption or modification is not inconsistent with the provisions of this Act.

FIRST SCHEDULE
Part I

(Section 145 (1) (a))

Oath of Confidentiality

IN THE HIGH COURT

I, ..................................................................................................................... .
having been appointed ..................................................................... do hereby swear/solemnly affirm that I shall maintain during or after my relationship with the Bank of Ghana the confidentiality of any matter related to the banking laws which comes to my knowledge and shall not, on any account and at any time, disclose directly or indirectly to any person, any matter or information related to the affairs of the Bank of Ghana or of any other bank, specialised deposit-taking institution or financial holding company or the affairs of any of their customers, otherwise than for the purpose of the performance of my functions or the exercise of my powers under the banking laws or when meeting the requirements of an agreement or understanding reached by the Bank of Ghana with any other relevant supervisory body or when lawfully required to do so by a Judge in chambers or any court of law or under any enactment.

Signature of declarant ....................................................................................

Taken before me .............................................................................................

The Registrar of the High Court on ............................................ (date)

Part II

(Section 145 (1) (b))

Declaration of Confidentiality

L ......................................................................................................................
having been appointed ............................................... do hereby declare that I shall maintain during or after my relationship with ............................................ the confidentiality of any matter related to the banking laws which come to my knowledge and shall not, on any account and at any time, disclose directly or indirectly to any person, any matter or information related to the affairs of .................................. otherwise than for the purpose of the performance of my functions or the exercise of my powers under the banking laws or when lawfully required to do so by a Judge in chambers or any court of law or under any enactment.

Signature of declarant .............................................................
Made before me .......................................................................
Name .......................................................................................
The Chief Executive .................................................................. (date)

SECOND SCHEDULE
Part I

(Section 146(1)(a))

Oath of Confidentiality

IN THE HIGH COURT

I …………………………………………………………………………………having been appointed ……………………………………………..do hereby swear/solemnly affirm that I shall maintain during or after my relationship with …………………………….the confidentiality of any matter related to the banking laws which come to my knowledge and shall not, on any account and at any time, disclose directly or indirectly to any person, any matter or information related to the affairs of ………………………….otherwise than for the purpose of the performance of my function or the exercise of my powers under the banking laws or when lawfully required to do so by a Judge in chambers or any court of law or under any enactment.

Signature of declarant……………………
Taken before me……………………………..
The Registrar of the High Court on ………………………..(date)

Part II

(Section 146(1)(a))

Declaration of Confidentiality

I …………………………………………………………………………………having been appointed ……………………………………………..do hereby declare that I shall maintain during or after my relationship with …………………………….the confidentiality of any matter related to the banking laws which come to my knowledge and shall not, on any account and at any time, disclose directly or indirectly to any person, any matter or information related to the affairs of ………………………….otherwise than for the purpose of the performance of my function or the exercise of my powers under the banking laws or when lawfully required to do so by a Judge in chambers or any court of law or under any enactment.

Signature of declarant……………………
Made before me……………………………..
Name ………………………..
The Chief Executive on……………………….(date)

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